12/20/2005

One of the most common mistakes that we see among those who contact our Office involves a spouse with a derivative status, such as an H-4, who assumes that the status is valid simply because the principal spouse's H1B status is valid. This is not the case. The filing of the H1B extension (or any principal status extension) does not extend the status of the dependent spouse and/or children.

The confusion seems to arise from the fact that the derivative spouse usually first enters the U.S. based upon an approved H-4 visa received at the consulate. This visa is based upon the H1B approval of the principal spouse. There is no separate petition filed for the dependant spouse. The procedure changes, however, when the H-4 enters the United States. Once in the U.S., the status is dependent upon the date on the I-94 card. 

The person will fall out of status unless the dependent spouse files his/her own request to extend or change status beyond the I-94 date. The primary spouse's extension or change request is not enough to take care of the family. The family members need separate filings, with different forms and separate filing fees, referencing the primary spouse's filing. 

A lack of awareness of the need to extend status and the resulting expiration of the I-94 card can result in the spouse's failure to maintain status. This can have serious consequences. If one falls out of status, that person generally cannot extend the status in the U.S. Thus, under the normal procedures, if the I-94 has expired, one would be unable to regain a nonimmigrant status in the U.S. S/he would have to leave the United States, obtain a visa at the consulate, and reenter.

The problem with this solution, in addition to the cost and inconvenience, is that a person who has accrued more than 180 days of unlawful presence will  be barred from reentering the U.S. for three years following departure. This bar on reentry increases to ten years for a violation of one year or longer. Thus, the dependant spouse may be unable to get back into status in the U.S. and also be unable to return if s/he goes abroad for a visa.