Applying for an H-4, whether inside or outside the U.S., can be a hassle. There can be long wait times, a stack of paperwork to complete, and a significant cost. Why, then, should a spouse or child of an H-1B temporary worker apply for an H-4 when a B visitor visa or entry to the U.S. through the visa waiver program (“VWP”) could be more convenient?
Length of Stay
In nearly all cases, H-4 dependents will be admitted to the U.S. for the same period of admission or extension as the principal H-1B. H-1B temporary workers are generally granted three years of initial H-1B validity and can extend for another three years. They may even have the option to continue extending their H-1B indefinitely until they are eligible to apply for lawful permanent residence (“LPR”) if certain requirements are met. B-1/2 visitors may be admitted for up to one year (requires an extension after six months), and entry through the VWP only gets you up to 90 days.
Opportunity for Employment Authorization
H-4 spouses may apply for work authorization if the H-1B worker has an approved I-140 or, in special circumstances, a PERM pending with the Department of Labor. A B tourist is not permitted to work in the U.S. They may apply for jobs, attend interviews, and engage in very specific business-related activities, but will need to change to a work-authorized status to accept employment and earn pay. Similarly, VWP participants may not be employed in the U.S.
Fraud
This is a somewhat tricky area. While those who are eligible for H-4 may enter on a B-2 if it would be inconvenient or impossible to obtain an H-4 (9 FAM 402.10-14(D)), keep in mind that B visa classification is not meant to be “a catch-all classification available to all who wish to come to the United States temporarily for whatever purpose.” Matter of Healy & Goodchild, 17 I&N Dec. 22 (BIA 1979). A B visa is technically meant for those individuals who intend to depart the U.S. at the expiration of their permitted stay, who have no intention of abandoning their foreign residence, and who are visiting for pleasure or strict kinds of business. “Pleasure” is defined as “[l]egitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment and activities of a fraternal, social or service nature.” 22 CFR §41.31(b)(2).
U.S. Customs and Border Protection can, and has, denied B-visa dependents accompanying H-1B status holders entry into the U.S. on suspicion of visa fraud. The morality and legality of these denials are dubious, but they are nevertheless fact. For this reason, we recommend consulting an immigration attorney to determine the best option for you and your family.
My firm has years of experience advising and preparing H-4 applications. If you have questions, please feel free to contact me through the “Contact Us” link on my website or by emailing info@pdortegalaw.com.
Source:
Kurzban, Ira J. Kurzban’s Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. American Immigration Lawyers Association, 2024.
