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.