Immigration

Srinivasa Reddy Kandi: Filing Strategies and 2025 Updates

February, 13, 2025-04:37

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Filing Strategies and 2025 Updates:

Navigating the H-4 application process for dependents of H-1B nonimmigrants is essential for those pursuing the American Dream. It is crucial to engage in careful planning within the U.S. immigration framework to ensure that dependent family members maintain their legal status, allowing them to remain in the United States alongside their loved ones. Staying updated on current regulations and forthcoming changes is vital, as these may affect H-4 visa holders, particularly regarding work authorization and processing times.

When is an H-4 Application Required?
The H-4 visa is designated for the spouses and children of H-1B beneficiaries. In some cases, the spouse or children of an H-1B holder may possess their own independent nonimmigrant statuses, such as F-1 (student) or their own H-1B employment visa. In these instances, it may not be necessary to file for a change of status to H-4 using USCIS Form I-539, as long as they plan to maintain their current visa category.

However, for family members of H-1B beneficiaries participating in the H-1B Lottery this fiscal year and currently holding dependent visas like F-2 (dependent of an F-1 student), L-2 (dependent of an L-1 visa holder), TD (dependent of a TN visa holder), or E-3D (dependent of an E-3 visa holder), it is mandatory to file for a change of status to H-4 before the H-1B status takes effect on October 1. Likewise, family members of H-1B beneficiaries who currently hold H-4 status must either apply for an H-4 extension of stay using USCIS Form I-539 within six months of their visa expiration or leave the U.S. before their current visa expires and apply for a new H-4 visa at a U.S. consulate abroad.

Instances Requiring an H-4 Application:

F-2 to H-4: A spouse holding F-2 status (dependent of an F-1 student) must transition to H-4 status when their partner changes from F-1 to H-1B employment.

L-2 to H-4: If an H-1B beneficiary previously held an L-1 visa and their spouse was on L-2 status, the spouse is required to switch to H-4 status upon approval of the H-1B.

E-3D to H-4: The spouse of an Australian E-3 visa holder must apply for H-4 status once their partner secures an H-1B position.

TD to H-4: A child on TD status (dependent of a TN worker from Canada or Mexico) is required to submit an H-4 application before the TN worker transitions to H-1B status.

Advantages of Concurrently Filing the H-4 Application with the H-1B Petition

 On January 19, 2023, USCIS is mandated to adjudicate a properly filed H-4 application simultaneously with a properly filed H-1B petition, whether under regular or premium processing. This settlement ensures that the processing times for the bundled H-4 (Form I-539) and H-4 EAD (Form I-765) align with those of the H-1B petition in the same submission. The objective of this change is to minimize processing delays and guarantee that dependents receive their work authorization without unnecessary interruptions.

However, the settlement are set to remain in effect for two years. Consequently, it is probable that starting January 18, 2025, USCIS may revise its adjudication policies regarding the concurrent processing of H-4 dependent applications and their associated employment authorization documents (EADs) alongside the primary H-1B petition.

The ideal time to submit Form I-539 for H-4 status is at the same time as the principal H-1B applicant's I-129 petition. Filing these applications together provides several benefits:

Minimizing Status Gaps: Submitting applications concurrently ensures that the processing of dependents aligns with the H-1B approval schedule, thereby decreasing the likelihood of family members losing their status.
Enhanced Tracking and Processing: Concurrent filing allows USCIS to monitor dependent applications more effectively, although it is important to note that H-4 petitions may still experience longer processing times compared to H-1B petitions, as Form I-539 does not offer premium processing.

With the terms of the settlement concluding on January 18, 2025, it remains uncertain whether USCIS will choose to uphold the principles established settlement. Should USCIS revert to its former processing methods—where dependent applications are treated separately—those affected should prepare for extended processing delays, as the agency will no longer be obligated by the settlement's terms? This change could lead to longer wait times for H-4 and L-2 dependents, potentially resulting in significant employment challenges for many spouses and their employers, as has occurred in the past. It is crucial to understand that the settlement does not limit USCIS's ability to implement new regulations, policies, or procedures concerning status extensions or employment authorization documents (EADs) for eligible noncitizens with valid H-4 or L-2 status.
H-4 Employment Authorization (EAD) Considerations

H-4 visa holders typically do not have the right to work unless they qualify for an Employment Authorization Document (EAD). An H-4 EAD can be obtained only if the H-1B principal has progressed to a certain stage in the green card process, such as having an approved I-140 petition. In these situations, the H-4 spouse must submit a separate I-765 application for work authorization. Additionally, the H-4 EAD application can be filed simultaneously with the H-4 visa if the H-4 is set to expire within the next six months.

An H-4 dependent with an H-4 EAD does not need to reapply or extend their work authorization simply because the H-1B beneficiary is changing employers. Their ability to maintain H-4 dependent status is contingent solely on the H-1B principal's maintenance of their H-1B status, rather than the identity of the employer petitioner. However, it may be beneficial to file the H-4 and H-4 EAD applications concurrently with the H-1B beneficiary’s employer change to prevent employment gaps that could arise from potentially lengthy processing times for H-4 and H-4 EAD.

Example:
A spouse currently on L-2 status can work without needing an additional EAD. However, if they switch to H-4 status, they will lose their automatic work authorization and must wait for H-4 EAD approval, specifically until the EAD card is received, which may take at least 6-8 months. This waiting period could lead to employment disruptions, making advance planning essential.

Final Thoughts
To ensure compliance and prevent status gaps, H-1B applicants and their legal representatives should actively assess whether an H-4 application is necessary for dependents. Submitting the H-4 application alongside the H-1B petition is often the most effective approach to avoid complications and ensure uninterrupted legal status for dependent family members. As policy changes are set to take effect in 2025, applicants should remain informed to leverage new processing enhancements and work authorization opportunities.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.