September 02, 2011

H-1B Workers – Three Dangerous Mistakes You Must Avoid to Keep Your Family in the US Legally

The spouse and minor children of an H-1B professional worker may come to (or remain in) the U.S. under the H-4 visa. The H-4 visa is strictly tied to the H-1B visa. Therefore, if the worker loses H-1B status, then the dependent family members lose their H-4 status. However, the H-1B visa is not tied to the H-4 visa. Therefore, an H-4 dependent (spouse and/or children) may lose his H-4 status without affecting the H-1B status of the worker.

There are three dangerous misconceptions that are commonly made by H-1B workers and/or their H-4 dependents:

1. Mistakenly assume that as long as the employer is in H-1B status, the dependents are in H-4 status. For example, the H-4 spouse and/or children travel outside the U.S. and return using the advance parole or travel documents. Upon entry to the U.S on advance parole, the H-1B dependents lose their H-4 status, even though worker has maintained H-1B status. H-4 status is preferred even if there is a green card application pending because it protects against deportation in case the green card application is denied.

2. Mistakenly assume that the dependents are in H-4 status even if the worker is not in H-1B status. For example, an H-1B worker loses his H-1B status when he returns to the U.S using an advance parole or travel document. If he traveled alone and his spouse or children remained in the U.S., they would lose their H-4 status instantly and are no longer legally present in the United States.

3. Mistakenly assume that the worker’s spouse and children’s H-4 status is extended automatically when the H-1B extension is filed. That is incorrect. A separate I-539 application must be filed by the spouse before the expiration of the H-4 status in order to maintain H-4 status. Any H-4 children can be included on the spouse’s application. Failure to apply on time will cause the family to lose legal status.

Avoid these mistakes and keep your spouse and children in legal status by consulting with your immigration attorney before you or your family travels internationally. When extending your H-1B status, fully inform your immigration attorney of the immigration status of your spouse and children. Also, be sure to check expiration date of each family member’s I-94. Don’t make a fourth dangerous mistake of assuming that the expiration date is the same as yours.