H1B Visa Extensions – Don’t Forget About Extending Your Spouse’s and Children’s H-4 Visas Too!
H1b visa holders (and their employers and their attorneys) need to be very careful when it comes to time to extend their H1b visas to remember to also extend the derivative H4 visas for a spouse and minor children. As most H1b visa holders understand, H1b visas can be granted for up to 6 years, typically in two 3 year increments. (Under certain, very specific circumstances, an H1b visa can be extended beyond 6 years). When an H1b visa is approved, the spouse and the minor children of an H1b visa holder are given H4 visas.
Prior to the end of the first three year period, the employer of the H1b visa holder can file to extend the employee’s H1b stay for an additional 3 years. Unfortunately, either through oversight or ignorance, separate, simultaneous extension applications are sometimes not made for the H4 spouse and H4 minor children. When this happens, the H1b visa is extended and the H1b visa holder remains in status while his or her H4 spouse and H4 children fall out of status, obviously with very unfortunate results.
H4 visas are NOT just automatically extended when H1b visas are extended! Each H4 visa holder must file their own I-539 application to extend. When the H1b visa is extended, obtaining an H4 visa extension should be simple—as long as everyone remembers to apply!
What if the H4 visa holder, for whatever reason, fails to file for an extension?
Much depends on how long the H4 visa holder is out of status. If the H4 visa holder is out of status for less than 180 days, he or she can return to their home country and reapply for an H4 and not worry about the three or ten year bar that plagues those who fall out of status. If the H4 visa holder has been out of status for more than 180 days then they should not leave the U.S.; if they do, they will trigger the 3 year bar (if they are out of status for more than 180 days) or the 10 year bar (if they are out of status for more than 365 days.
In that case, their best option is to file for an extension nunc pro tunc. (Latin for “Now For Then”) If there is a good reason for having failed to file on time for an extension of an H4 visa, you can file late and ask for retroactive approval of an extension. You will have a stronger argument to make if the failure to file on time was the fault of your H1b employer or your or the employer’s attorney. You will not have a strong argument if the failure to timely file was simply your own neglect or your own ignorance of the law.
