FAMILY MEMBERS OF H-1B VISA HOLDERS


	LAW OFFICE OF AJAY K. ARORA Empire State Building 350 Fifth Avenue, Suite 1415A New York, NY 10118 Phone: (212)268-3580 Fax: (212)268-3582 Email: info@h1b1.com

Disclaimer: This article is not intended to establish an attorney-client relationship. All information contained herein is generalized. Any reliance on information contained herein is taken at your own risk.

H-1B

PERM

L-1

EB-1

NIW

O-1

FAMILY SPONSORSHIP

OTHER IMMIGRATION

FAMILY MEMBERS OF H-1B VISA HOLDERS

What action, if any, is required on the part of an H-4 nonimmigrant alien (a family member of a H-1B principal alien) if the H-1B principal alien changes employers? This question will be answered after a brief overview of the H-4 category.

H-4 Category

Family members of the H-1B worker are admitted to the United States in the H-4 category. Qualifying family members include only the spouse and unmarried children under 21 years old. Family members are admitted for the same period for which the principal family member is admitted.

Family members may alternatively be admitted in other nonimmigrant categories for which they qualify, such as the F-1 category for children or spouses who will be students or the H-1B category for a spouse whose employer has also obtained approval of an H-1B petition to employ the spouse.

H-4 family members may undertake studies while remaining in the H-4 category. Family members cannot engage in any form of employment in the H-4 category, however. In order to work, family members must obtain U.S. Citizenship & Immigration Service permission through the approval of a change of status application to a nonimmigrant category permitting employment.

Change of Employer

The following question by a fellow American Immigration Lawyers Association (AILA) member was recently put to Ms. Yvonne M. LaFleur, Chief, Nonimmigrant Branch, INS [USCIS]: "Whether the H-4 visa holders maintain their status as long as the principal alien maintains his/her status, or are they also required to re-file to maintain their status in change of employer situations?"

The following facts were furnished to Chief LaFleur: "The principal alien is the beneficiary of an H-1B visa petition by 'Company A'. The visa is valid for a period of three years. The accompanying family member receives an H-4 visa for the same period reflecting the principal alien's employment with 'Company A'. One year later, the principal alien changes employers. A new H-1B visa is petitioned for by 'Company B', and all procedures are followed so that the principal alien is never out of status. The validity dates on the H-4 accompanying family member's visa has two years remaining, but still shows 'Company A' as the H-1B petitioner and not 'Company B'.

Chief LaFleur's response to the AILA member's query acknowledged that an H-4 nonimmigrant alien's authorized stay in the United States is contingent on the continued validity of the H-1B principal alien's status. The H-4 nonimmigrant alien continues to remain in valid nonimmigrant status as long as the principal alien remains in a valid nonimmigrant status.

"[S]ince the H-4 nonimmigrant classification is not specific to an employer, the H-4 nonimmigrant alien remains in valid status even if the principal alien changes H-1B employers. No action is required on the part of the H-4 nonimmigrant alien when the principal H-1B alien changes employers within the same classification."

Chief LaFleur's response should enlighten USCIS examiners in regards to whether the principal alien's family owes a penalty under Immigration & Nationality Act Sec. 245(i) when adjusting status (procedure leading to issuance of permanent resident status). The USCIS examiner may in good faith (until now) have believed that H-4 status is violated by not refiling when the H-1B principal alien changes his or her employer.

It is important to remember, however, that family members extend their I-94 prior to expiration. This form determines eligibility to remain legally in the U.S. and is issued at either the port-of-entry when entering the U.S., or is attached to an approval notice granting change or extension of nonimmigrant status by the USCIS. The “last action rule” applies, so that the latest issued I-94 is dispositive in determining when an individual’s I-94 expires if there are multiple I-94’s in possession.

Please contact our law firm for additional discussion and alternative options.

[Note: Please consult with an attorney specializing in Immigration & Nationality law for professional advice in specific situations.]

Ajay K. Arora, Esq., is a prominent member of the Immigration & Nationality bar in New York City and a member of the American Immigration Lawyers Association. He may be contacted at (212)268-3580.