What Defines a Visa Dependent?
When your petition for an H-1B visa is approved, the final step in the process for those outside the US is an interview at the embassy or consulate. You’ll receive the visa stamp that permits you to enter the US.
But if you plan on bringing dependents, they’ll need individual approval. Dependents are defined as the H-1B holder’s spouse and unmarried minor children. Children over 21 are not eligible for dependent status.
Work and School Rules
Your spouse and children are not in the country under an H-1B visa. They have a separate designation, usually an H-4 status, that determines their employment and school opportunities.
Students are allowed and encouraged to attend school in grades K-12. Your immigration attorney can advise you as to which type of schools are allowed outside of public systems. Public and private schools have different rules.
When it comes to working, your spouse may obtain a job if they are approved for an Employment Authorization Document (EAD). This is required for anyone wishing to work, whether through regular employment, freelancing, or self-employment, while an H-4 visa holder.
What the EAD Allows
When the dependent receives an EAD, they may work part-time, full-time, or short-term for employers based in the US. The EAD doesn’t expire until the H-4 status is no longer valid. Typically, the H-4 timeframe follows that of the H-1B beneficiary. These start at three years but can be extended another three for a total of six years. H-4 visa holders follow the renewal requirements of the H-1B holder. When the H-1B beneficiary renews or is no longer valid, the H-4 visa beneficiary must also renew or leave.
Spouses can seek employment as soon as they submit the application for the EAD. However, they are not allowed to begin working until the USCIS approves the application and sends each applicant their own EAD. Unmarried children under 21 are not allowed to obtain an EAD.
EAD Work Restrictions
With an EAD, spouses can work for multiple employers at the same time. They can take internships (paid or unpaid) and have no restrictions on the type of job or industry where they work. They can even freelance or start their own business and hire employees if they follow the government’s tax and registration requirements.
How to Obtain an EAD
To be eligible for an Employment Authorization Document, the recipient must meet all of these criteria:
● The spouse is a dependent of an H-1B non-immigrant worker.
● The applicant holds an H-4 visa status.
● The H-1B worker is on track to obtain a Green Card or has an extension on the H-1B status under section 106(a) and (b) of the AC21 (American Competitiveness in the 21st Century Act).
● The H-4 visa holder lives in the US at the time of the EAD application.
If all of these factors are met, the spouse can complete Form I-765, the Application for Employment Authorization. The form is broken down into six parts and must be submitted with a $410 filing fee.
How to Complete Form I-765
Each form section must be completed and submitted by the spouse with the filing fee and required documentation. If you are not confident about completing it, your immigration attorney can help you.
We’ve broken down Form I-765 into each part for the spouse here:
● Part 1: Reason for Applying. This may be to accept employment, or you may need to renew your current EAD or replace a lost one.
● Part 2: Your Information. In this section, you’ll include your name as it is on your H-4 document and passport, as well as previous names. You’ll also add your current US address, alien registration number, gender, marital status, USCIS online account number, and information regarding any previous EAD applications. You may need to include US social security numbers, your parents’ information, and the last time you were in the US. The form also requests your country of nationality/citizenship and your eligibility category.
● Part 3: Applicant’s Statement and Signature. Here, you’ll write your contact information, declare that all information is accurate, certify your attestation, and sign the form.
● Part 4: Interpreter Statement. If someone helped you complete the form, their contact information, declaration, certification, and signature go here.
● Part 5: Third-party Statement. If a third party, such as an attorney, helped you complete the form, their contact info, declaration, and signature go here.
● Part 6: Relevant Information. If there is any additional relevant information necessary that USCIS should know to consider your application, add it to this part.
Once complete, submit the form with your supporting documents and the filing fee. There is also a required $85 biometric services fee. Processing time is a minimum of 90 days but could take longer if you’re applying during busy periods or if USCIS requests further documentation. Premium processing is not available for an EAD. Accelerated processing time for extreme circumstances is possible.
Supporting Documents
To ensure the application is processed timely and without delays, include these documents with your filing fee and form:
● Proof of H-4 status
● Spouse’s arrival and departure record (Form I-94)
● A copy of the spouse’s government-issued photo ID
● A copy of the marriage certificate to the H-1B holder
● A copy of the approval notice Form I797
● A copy of the H-1B beneficiary’s passport
● All current and previous I-97 and I-797 forms
● Proof of why the H-1B worker’s stay was extended
You may travel outside the US after you submit your application without adverse consequences. However, if USCIS can’t reach you, it could delay your application.
What’s Next?
An EAD is not the only way to obtain work as a spouse under an H-1B visa holder’s status. If your dependents or spouse wish to work or go to school, contact Visa2US to see their options We’ll guide your family on the path to employment and education.
Our expert legal staff is available 24 hours a day, 7 days a week, to assist you, your spouse, and your dependents improve their lives in the United States.
