An H-4 visa is meant to allow close family members of someone who is in the United States on a H-category visa to accompany them or to join them in the U.S. It allows the spouse and/or unmarried children (under 21 years old) of a H visa holder to enter the United States and live with the visa holder while the H visa holder is employed in the U.S.
The H-4 nonimmigrant visa is a derivative visa. It is only available when someone else (a family member) is granted an H-category visa in another subcategory (H-1B, H-2A, H-2B, or H-3). It is not an independent visa – it cannot be granted on its own, but only as an extension (derivative) of another visa.
What Are Some Details of an H-4 Visa?
Your H-4 visa is tied to the primary H visa holder. So if the primary H visa expires, the H-4 visa will expire as well.
There are no travel restrictions on the H-4 visa. A H-4 visa holder can travel outside the U.S. and reenter at any time, so long as the H-4 visa is still valid.
H-4 visas are usually issued overseas by the U.S. consulate of the country you are in. However, if you are already in the U.S. you can file form I-539 in order to request a change of status from your current visa to an H-4 visa.
Besides the H-4 visa category, family members of H visa holders may obtain a visa in another category to which they are entitled. As an example, H-4 visa holders can attend college or other schools, but also the F-1 visa category could be used to attend school. An immigration attorney can help you determine which visa option is best for you.
What Are the H Visas?
As mentioned, H-4 is a derivative visa based off of the primary person’s H category visa. The H visa category for temporary nonimmigrant visas includes several subcategories:
H-1B: Person in Specialty Occupation
An H-1B visa, also known as a specialty occupation visa, is a type of temporary nonimmigrant visa that is issued to foreign nationals who have special training to perform work for a certain job that is located in the United States. H-1B visas are the most commonly issued of the H category visas, and in fact are one of the most popular visas overall.
The principal requirements to meet the definition of what is considered to be a “specialty occupation” visa are as follows:
- The occupation is so specialized that only workers who hold a bachelor’s degree or higher would be able to perform the work (e.g., accountants, lawyers, doctors, engineers, etc.)
- The prospective employee has a bare minimum of at least a bachelor’s degree (if not higher) or its foreign equivalent in the field that matches the position for which they are applying
- If issued in the field of work, the alien must have either an unrestricted state license, certification, registration, or some other form of an accreditation that allows them to perform the duties required of the occupation
- If the alien does not have a college degree, they have received special training or have sufficient job experience in the industry to be the equivalent of a college degree in the field, and they can successfully perform the primary functions of the job
H-1B visas can also be issued to fashion models who have “renowned merit and ability,” which essentially means famous models.
Over time, the H-1B visa has become more difficult to obtain, because each year more and more foreigners want to get H-1B visas but there is a limitation on how many can be awarded per year. Each year only 65,000 regular H-1B visas are approved. This is referred to as the H-1B visa “cap.” An additional 20,000 H-1B visas are set aside for foreigners who have an advanced degree (a master’s or a PhD) that was earned at a U.S. university.
A person may hold an H-1B visa for a maximum of six years, in increments of three years at a time; so, either six years at once, or three years now and then another three years later on. However, there are some specific special conditions in which an employee may hold a H-1B visa for a period lasting beyond the six-year period.
H-2 Visas
The H-2 visa comes in two variations, the H-2A visa and the H-2B visa. H-2A and H-2B visas apply to individuals who will be fulfilling seasonal, temporary positions in agriculture, or in other types of short-term labor. Individuals who will be fulfilling agricultural positions would apply for the H-2A non-immigrant classification while all other temporary workers would pursue the H-2B visa status.
These are some types of employees who can obtain H-2B visas:
- Entertainers
- Landscapers and groundskeepers
- Forest and other conservation workers
- Maids and home cleaners
- Amusement recreation attendants
- Waiters and waitresses
The H-2 visas are issued for the length of the job opportunity, not to exceed one year. They can be extended, however, for up to three years.
H-3: Trainee or Special Education Visitor
The H-3 visa applies to individuals who are planning on receiving special training in the United states. The H-3 visa does NOT apply to graduate medical education or training. The primary conditions for an H-3 visa is that the training does not exist in the foreign national’s home country, and that the training will be offered at a U.S. company, not at a university or other school.
H-3 visas are also granted to participants in practical training programs in the education of children with mental, physical, or emotional disabilities. H-3 visas are granted for as long as the training lasts, and cannot be extended.
Can I Work On an H-4 Visa?
The standard answer is no. However, in 2015 U.S. Citizenship and Immigration Services (USCIS), a division of the Department of Homeland Security (DHS) announced that it would extend eligibility for employment authorization to certain H-4 dependent spouses of H-1B non-immigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS went ahead and amended the regulations to allow these H-4 dependent spouses to accept employment in the United States. They may also receive social security numbers.
An H-4 dependent spouse of an H-1B non-immigrant can file Form I-765, Application for Employment Authorization to obtain an employment authorization document (EAD), if the H-1B non-immigrant:
- Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the 21st Century Act
Other H-4 visa holders are not eligible to get a Social Security Number and cannot be employed, but they can hold a driver’s license and open bank accounts. Note that even If an H-4 noncitizen is not eligible for employment authorization in the United States, they may nevertheless have tax liability in the United States, and in order to file a U.S. tax return, must obtain an ITIN (Individual Taxpayer Identification Number).
In 2019 the executive administration announced a proposed regulation to rescind the 2015 rule and to stop granting employment authorization to H-4 spouses. Some media outlets reported that the majority of people who would lose work authorization as a result of the proposal were highly skilled Indian women, and USCIS data backed up the assertion that the vast majority of H-4 EAD beneficiaries are Indian women. In January 2021 the executive administration withdrew the proposal to rescind the H-4 EAD program.
However, the future of the H-4 EAD program continues to be threatened by ongoing litigation against DHS in U.S. federal court which alleges that the H-4 EAD program is illegal
Do I Need an Attorney to Obtain a H-4 Visa?
If you need help with a visa application, you should contact an immigration attorney. An experienced immigration lawyer will be able to walk you through the process of obtaining an H-4 visa, tell you if you meet all the requirements to qualify for one, and explain the process of applying for any other visas that might be applicable to your situation. They can also help you decide what your next steps should be if you are denied a visa.
