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H-1B WORKERS ARE NOT REQUIRED TO GO TO EMBASSY
FOR ISSUANCE OF FAMILY’S H-4 VISAS
by Michael J. Gurfinkel, Esq.
Dear Atty. Gurfinkel:
I entered the U.S. on a visitor's visa for a vacation
and to visit family and friends. The INS Officer at the airport
gave me six months. A few months into my vacation, I was offered
a job by an employer, so I filed for a "change of status",
from visitor to temporary worker (H-1B). The change of status
was approved by the INS, and I am now working for the employer.
I would now like my wife and children to join me
in the U.S., by having them go to the U.S. Embassy and get H-4
visas as my dependents. However, I am being told that, in order
for my family to be issued H-4 visas, I am required to accompany
them at the Embassy, in order that the Consul can issue both my
H-1B visa and my family's H-4 visas.
I have just started my job, and cannot afford to
be away for too long. Going back to the Embassy would be a tremendous
hardship and inconvenience for me. Is it true that, as a condition
for issuance of my family's H-4 visas, I am required to go back
to the Embassy?
Very truly yours,
H.P.
Dear H.P.:
I just returned from the annual convention of Immigration Lawyers
in Chicago. Among the panelists/speakers at this convention were
members of the Visa Office of the State Department in Washington,
D.C. (These officials oversee, and provide instruction and guidance
to the Embassies around the world.) The Assistant Chief of the
Visa Office announced at the Convention that an H-1B worker who
has changed status in the U.S. is NOT required to
go back to the U.S. Embassy as a precondition to the Consul's
issuance of H-4 visas to the family members. As stated by the
Visa Office's Assistant Chief:
" . . . It is our opinion that it is never appropriate to
require the Principal to come back as a condition for issuing
the derivative. The Principal may do so if he or she chooses,
but that cannot be a condition for issuing the H-4. There are
other ways to determine that the person is validly in status other
than doing that, and we just don't think it's appropriate. And
when it has been brought to our attention in individual cases,
we have so advised the post."
As you can see, straight from the State Department,
if a person changes status in the U.S., he is not required to
go back to his home country in order for his family members to
be issued H-4 visas. Instead, assuming all the legal and procedural
requirements have been met, a person may validly change status
in the U.S. to H-1B, and his family members could go to the Embassy
for H-4 visas.
Of course, just because the H-1B worker is not required
to go to the Embassy, does not automatically mean that the family
will be issued H-4 visas. The Consul may still inquire into the
validity and bona fides of the H-1B worker's job (i.e Is the job
real or fixed? Is the alien really working for the employer? Is
the worker being paid the "prevailing wage", or is he
really being paid minimum wage? Is the person being petitioned
in a college-level job, but is really working as a filing clerk
or bookkeeper? ) In other words, the Consul can examine, evaluate,
and investigate in detail whether or not the H-1B worker is following
the rules. However, with this announcement by the State Department,
at least H-1B workers know that they do not need to leave
the U.S. in order for their spouse and children to apply for H-4
visas. However, I caution everyone who has changed status to make
sure you meet and follow all the legal requirements. Otherwise,
not only could the H-4 visas be denied for your family, but it
could also possibly affect your own status and situation.
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