Saturday, June 13, 2015

How soon after your marriage to your H1B spouse can you file for your H4 Visa and H4 Work Permit?

In many communities, summer is often the "marriage season",  and this means that some new H1B or existing H1Bs will be getting married soon. First, congratulations - now it is time for the H1B holders spouse to apply for an H4 and if qualified for an H4 EAD.  You can actually apply as soon as your marriage is completed and registered.  We often encounter two types of H4 visa applications: 
  1. Change of status from F1 or other non-immigrant visas to H4 status, where you should file for a form I-539 change of status; and
  2. Those applying at the US consulate at the country of origin. Note that there is no need to have an H4 797 approved before applying for the H4 visa at the US Consulate.  You actually apply directly at the Consulate. Important:  H4 visa holders CANNOT apply for the H4 EAD at the US consulate or while you are abroad.  They have to first enter the United States then apply for their EAD.
For those who have been married for years, the two options above are quite an easy process where it is fairly easy to prove the bona fide of the marriage.  Bona Fide in simple terms  means it is a real marriage not entered to obtain immigration benefits. Documents such as marriage certificates, children birth certificates and few pictures should suffice.

Now with the new H4 EAD, and newly wed couples, the Department of Homeland Security (DHS) and Department of State might actually question the marriage intent.  As such H4 visa applicants might find themselves in an akward position of having to prove the bona fide of their marriages just like the family petitions cases.  Our recommendation is that if you are a newly married H4 visa applicant, you should be ready to prove your marriage just like any family immigration marriage petition.  You might want to show pictures of wedding, good marriage certificates, and other relevant evidence. So make sure you have reliable documents and other evidence to prove your case.  If you want us to assess your documentation or your case or even help, please contact us at (510) 742 5887 or email info@peerallylaw.com

The marriage re-enactment interview short movie below was created to give an idea of how a marriage interview is conducted.  While we do not expect such a big interview for H4 visa applicants, it might still be helpful to have an idea how they see a marriage in immigration. Please enjoy and hope it helps. Don't forget to subscribe to our mailing list!