Outline
H4 Visa Guide + Detailed DIY for H4 EAD Application
August 24, 2024
What is an H4 Visa?
An H4 visa is a non-immigrant visa issued by the U.S. Citizenship and Immigration Services (USCIS) to the immediate family members of H-1B visa holders, including spouses and unmarried children under the age of 21. With an H4 visa, you can legally reside in the U.S. However, if an H4 visa holder wishes to work legally in the U.S., they must obtain an H4 EAD (Employment Authorization Document), which will be explained later.
The validity of the H4 visa is tied to the H-1B holder’s visa. As long as the H-1B holder’s visa is valid, the H4 visa holder can legally stay in the U.S.
H4 Visa Process
The H4 visa process differs based on whether you are applying from outside or inside the U.S. For those applying from outside the U.S., the process is relatively quick and involves scheduling a visa interview. For those already in the U.S., the process can take longer, especially with the added delays in fingerprinting due to the pandemic. Given current travel bans and various policies, individuals in the U.S. who wish to return to their home country to apply for an H4 visa should be cautious.
(Note: The following process is a general overview. During special periods, policies may change, so it’s important to check the latest guidelines.)
What are the conditions for obtaining work authorization?
To be eligible for an EAD (Employment Authorization Document), an H4 visa holder must meet one of the following two conditions:
- The H1B spouse has an approved I-140: If the H1B visa holder has started the green card application process and their I-140 form has been approved and is in the waiting period, the H4 visa holder is eligible to apply for an H4 EAD.
- The H1B spouse is in the 6-year extension phase: If the H1B visa holder is in the extension phase beyond the initial 6-year limit, the H4 visa holder can apply for an H4 EAD.
H4 Application Materials Checklist
The H4 visa application process is divided into two main categories: applying from outside the U.S. and applying from within the U.S.
- Applying from Outside the U.S.: This method is very fast. You can complete the visa interview, fingerprinting, and approval processes on-site.
- Applying from Within the U.S.: This method requires mailing the relevant materials and waiting for approval. The typical processing time for a status change is about 6-8 months under normal conditions.
Applying from Outside the U.S.
The process for applying from outside the U.S. is similar to applying for other U.S. visas: DS-160 -> Visa Appointment -> Interview -> Passport Collection.
Appointment: After paying the fee, schedule your appointment (click here to schedule). You can apply for expedited processing after making the appointment, but you only have one chance to do so. Once your appointment is successful, you can check your status by clicking here.
Materials Checklist: It is best to prepare all documents to avoid a Request for Evidence (RFE), though having additional documents can be beneficial.
- DS-160 form
- Passport valid for at least 6 months
- Spouse’s I-797A form for work authorization
- Copies of spouse’s passport information page and visa page
- Copy of spouse’s Social Security number and driver’s license
- Spouse’s W2 tax form
- Employment contract between spouse and employer
- Invitation letter (in both Chinese and English)
- Marriage certificate (original)
- Appointment confirmation page
- Bank payment receipt from CITIC Bank
- Visa photo
- Evidence of the authenticity of the marriage (e.g., joint photos, phone records, joint bank accounts)
Due to the Trump administration’s restrictions and extensions on H/J/L visas, from June 24, 2020, to March 31, 2021, the issuance of H-1B (specialty occupation visa), H-2B (temporary work visa), H-4 (H1B spouse visa), L-1 (intracompany transferee visa), and certain J-1 (exchange visitor visa) visas were suspended.
Changing Status from Within the U.S.
The process for changing status from within the U.S. is time-consuming and requires higher standards for documentation. Be sure to prepare all necessary materials.
- I-539 form
- G-1145 form: For receiving application status updates via SMS/Email
- Copy of personal passport information page
- Copy of personal visa page
- Personal I-94 form
- Proof of legal status: I-797A (H1B to H4), I-20/EAD/Transcripts (F1 to H4)
- Recent 2-3 months of pay stubs (if available)
- Copy of spouse’s passport information page
- Copy of spouse’s visa
- Spouse’s I-797A – H1B approval notice
- Spouse’s I-94 form
- Recent 2-3 months of spouse’s pay stubs
- Employment verification
- Marriage certificate
- 2 visa photos
- Check: $370 (I-539) + $85 (Biometrics)
H4 EAD Card Application Materials Checklist
- I-765 form (fill out based on your situation + refer to the “OPT Application – I-765 Filling Guide,” paying attention to the Eligibility Category)
- G-1145 form: For receiving application status updates via SMS/Email
- I-797 / I-94 form from the I-539 application
- Copies of all previous EADs (if any)
- Copy of personal passport information page
- Copy of personal visa page
- Copy of Marriage Certificate
- Spouse’s I-140 I-797 notice
- 2 visa photos
- Check: $410
H4 – I-539 Form Filling Guide
Updated Filing Fees for Form I-539
Starting April 1, 2024, USCIS has introduced new fees for Form I-539 applications. The fee for online submissions is set at $420, while paper filings will cost $470. These fees will be applicable to all applications postmarked on or after April 1, 2024. Additionally, those requesting premium processing will be required to pay $1,965.
Elimination of Biometrics Fee
Starting October 1, 2023, USCIS has eliminated the $85 biometrics services fee previously associated with Form I-539. You no longer need to include this fee with your application. If you accidentally send the biometrics fee separately, USCIS will return the payment and process your application as usual. However, if you combine the biometrics fee with the application fee in one payment, your application will be deemed incorrect and rejected. If you mistakenly authorize a credit card payment that includes the biometrics fee, USCIS will only charge you for the application fee.
How Long Does It Take to Get Form I-539 Approved?
The processing time for Form I-539 can vary between 3 to 8 months depending on the type of status being requested. Keep in mind that these times can fluctuate due to factors such as the specific USCIS service center handling your application.
Can I Travel Abroad While Form I-539 is Pending?
No, you cannot travel abroad while your I-539 application is pending. For instance, if a B1/B2 visa holder leaves the U.S. while their I-539 is pending, USCIS will consider the application abandoned. Similarly, an F1 student who departs the U.S. during this period will need to reapply and pay the filing fees again to continue with the application.
Can I Stay in the U.S. While Form I-539 is Pending?
If you apply for an extension or change of status before your I-94 expires, you may remain in the U.S. for up to 240 days while your I-539 application is being processed. During this time, you must comply with the conditions of your current visa, including any restrictions on work or study. If your application is denied, you must leave the U.S. either immediately or by the expiration date of your I-94.
Can I Work or Study While Form I-539 is Pending?
No, you are not permitted to work or study while your I-539 application is pending with USCIS. You must continue to follow the terms and conditions of your current nonimmigrant status until your I-539 application is approved and you have successfully transitioned to a new nonimmigrant status that allows work or study.
If your current status does not allow employment or study, you must wait until your I-539 application is approved and you have been granted a new status that permits these activities. Engaging in work or study without proper authorization while your I-539 is pending could be deemed a violation of your current status and could negatively impact your immigration situation.
What Happens After Form I-539 is Approved?
After your Form I-539 is approved, you will receive an official notice of approval (Form I-797) from USCIS. If you filed I-539 online, you will receive Form I-797 both online and by mail. If you filed I-539 by mail, you will only receive the paper version of Form I-797.
Submitting I-539 Online vs. By Mail
Form I-539 can be filed in two ways for a change of status application: online or via traditional paper mail. At present, most change of status cases can be completed through online electronic submission. However, applications where H1B visa holders are changing to other statuses, such as from H-1B to F-1 student or B-2 visitor status, must be submitted by paper mail due to ongoing issues with online filing.
| Method | Pros | Cons |
|---|
| By Mail | 1. Allows for bundled applications with dependents. 2. Not restricted by visa type; all I-539 applications can be submitted by mail. | 1. Approximately one week for receipt of mail, adding to the waiting period. 2. Risk of lost mails. |
| Online | 1. Faster than mail and no risk of lost mail. 2. Easy to submit and add documents by uploading online. | Some visa categories cannot be changed online (e.g., changing from H-1B to F-1 cannot be filed online). |
What Should I Do If I Receive a RFE for I-539 Application?
An “RFE” (Request for Evidence) is issued by USCIS if the initial information provided with your application is insufficient or unclear. It asks applicants to supply additional evidence or documentation to support their application. Receiving an RFE does not imply denial; a thorough response to the request still offers a strong chance of approval. Here are six major reasons for Form I-539 denials based on client cases:
| Reason | Details | Case Study |
|---|
| 1. Violation of the 90-Day Rule | – Definition: Addresses changes in intent after entering the U.S. – Official Explanation: Avoid inconsistent activities or status change applications within 90 days of entry. – Timing: – Within 30 days: Likely seen as evidence of misrepresentation. – 30-60 days: Ambiguous; reasonable explanation may help. – After 90 days: Generally not seen as misrepresentation. – Exemptions: Dual intent visas (e.g., O-1, H-1B, L-1) are not subject to this rule. | Client A: Entered on a B visa for tourism but later decided to study. Provided evidence of initial intent and successfully changed status to student. |
| 2. Illegal Work Records | – Definition: Any work without proper authorization. – Scenarios: – No SSN or Payroll Records: May go unnoticed. – SSN Provided, Pay Under $600: Explanation letter may be required. – SSN Provided, Pay Over $600: More problematic; may need to negotiate with employer or provide detailed explanations. | Client B: Worked before receiving CPT authorization. Provided detailed explanation and communication records, resulting in a successful status change. |
| 3. Failure to Maintain Valid Status | – Definition: Must maintain current status until new status is granted. – Rules: For example, M-1 visa applicants must maintain status until 30 days before the program start date. – Gap Impact: A lapse in status can affect future applications. | Client C: Lost H-1B job and faced delays in obtaining school acceptance. Provided evidence of timely communication and mitigating circumstances, leading to approval. |
| 4. Immigration Intent | – Definition: USCIS may suspect the intent to stay permanently without reasonable cause. – Consideration: Questions about past I-485 applications can trigger scrutiny. | Client D: Applied for F-1 status after losing H-1B job. Previous I-140 not disclosed but application was approved with legal assistance. |
| 5. Insufficient Financial Resources | – Definition: Must prove sufficient funds for tuition and living expenses. – Proof: Use of assets like stocks, real estate, or family funds. | Not specified in case studies. |
| 6. Criminal Record | – Definition: Must disclose any arrests or convictions. – Requirements: Detailed explanations and evidence of subsequent changes. – Assistance: Experienced lawyers can highlight mitigating factors. | Not spec |
How to Respond to RFE for I-539
When you receive an RFE, it’s important to respond within the timeframe given (typically outlined in the RFE notice) and submit the additional documents requested by USCIS. Not responding on time or failing to provide sufficient information may result in denial of your application. For complex or urgent cases, obtaining dependable legal support during the application process is essential.
What Should I Do If My Form I-539 Is Denied?
Change of Status applications usually have a favorable outcome, but denials can occur for several reasons, including:
- Travel During Pending Application: Leaving the U.S. while your application is pending may be viewed as abandoning it. Although you can provide an explanation letter, it does not guarantee that USCIS will not cancel your application.
- Ineligible Visa Categories: Certain visa types, such as C, D, K, S, and some J-1 visas (with the 212(e) home residency requirement), do not permit a change of status.
- Expired Status: If your current status expires before your application is approved, it is likely to be denied. This includes the conclusion of the H-1B grace period or the expiration of L-1 visas.
- Failure to Meet Requirements: Lack of sufficient documentation, such as financial proof for F-1 visas or delayed SEVIS fee payments, can lead to a denial.
- Incomplete or Incorrect Forms: Mistakes or missing information on the I-539 form can cause your application to be rejected.
- Suspicion of Immigrant Intent: If officials suspect that you intend to immigrate permanently, your application might be denied.
- Inconsistent Documents: Discrepancies between your application and supporting documents can raise concerns about fraud.
If your Form I-539 application is denied, you have several options depending on your situation:
- Motion to Reopen or Reconsider: If new evidence becomes available or if the original decision did not consider all relevant information, you can file a motion to reopen or reconsider your case. This allows you to present new information that could potentially alter the decision.
- Reapply After Denial: If the denial was due to a technical error, you can correct the mistake and submit a new application for the same or a different nonimmigrant status.
- Appeal the Decision: If you believe the denial was incorrect, you may be able to appeal. However, not all application types are eligible for appeals, so confirm whether this option is available for your case.
