My Spouse Has a Work Visa in the United States
What can I do if my spouse has a work visa in the United States?
There are many types of visas that give work authorization. These visas usually allow spouses and minor children to come to the United States as “derivatives” so the family can stay together.
The most common work visa is the H-1B, but there are a dozen others as well. Each nonimmigrant work visa has its own derivative visa category. In the case of the H-1B and H-1B visas, the derivative visa is an H-4. Each derivative visa category has special rules, but there are many common features as well.
How do I get a “derivative” visa?
An employer will petition for the prospective employee. After that petition is approved, the prospective employee (sometimes called the “principal”) will apply for the visa at the United States consulate. The employee’s spouse can apply for a derivative visa at the same time.
Children under the age of 21 may also apply for derivative visas.
How long can I stay in the United States with a “derivative” visa?
A derivative spouse will be able to stay in the United States as long as the principal spouse is in good status. Depending on the visa category, this can be for anywhere from one to three years, typically.
What can I do in the United States with a derivative visa?
A spouse or a minor child in derivative status is allowed to live in the United States. They may also attend school “incidental to status” without having to first obtain a nonimmigrant student visa or nonimmigrant student status. Minor children can attend public school in derivative status.
A derivative spouse can often apply for driver’s license. In Connecticut, a derivative spouse and a derivative child over the age of 16 can apply for a driver’s license. Each state has its own rules on who can apply for a driver’s license, so it is important to look at the state’s Department of Motor Vehicle website.
In order to be declared as dependents on the principal’s tax return, each family member will have to apply for a Taxpayer Identification Number from the Internal Revenue Service (IRS).
Can I work in the United States?
Derivative visas do not automatically authorize employment, so the general rule is that a spouse cannot work in the United States. However, some visa categories allow a spouse to apply for an employment authorization document after arriving in the United States. Spouses in the United States in E-2 or L-2 status may apply for an employment authorization document. It takes about 90 days to receive the employment authorization document. With the employment authorization document, an E-2 or L-2 visa holder may apply for a Social Security Number and then may work in the United States.
An H-4 visa holder may apply for an employment authorization document if the H-1B spouse is in line to obtain lawful permanent residence but is waiting for an immigrant visa number to be available.
Otherwise, the only way derivative spouses may work in the United States is if an employer petitions for them for their own work authorized nonimmigrant visa.
What if my spouse loses his or her job?
The status of a derivative spouse (and minor children) is linked to the principal visa holder’s nonimmigrant visa status. If the spouse loses his or her job, the entire family loses their nonimmigrant visa status.
What if my spouse changes jobs?
Any time an employee changes jobs, the new employer must petition to change the employee’s status and to have the new employment authorized. Often, family members apply to have their nonimmigrant visa statuses changed and extended so the entire family has the same expiration date.
Can I stay in the United States if my spouse is outside of the United States?
As noted above, the derivative spouse’s status in the United States is dependent on the spouse with the work visa. If the employee spouse is outside the United States for a short trip, the derivative spouse may stay in the United States. However, if the employee will be outside the United States for an extended time, whether because of a long term assignment or due to some other significant change in job duties, the derivative spouse and any children probably will not be allowed to stay in the United States.
What if I get divorced?
To put it simply, a divorce terminates the derivative status. Once a divorce is final, the derivative spouse loses lawful status and any related employment authorization is terminated. If a divorce or separation may happen, it is vital to speak with an immigration attorney as soon as possible.
What if my spouse gets the Green Card (lawful permanent residence)?
Derivative spouses and minor children under the age of 21 may apply for lawful permanent residence with the employee and usually receive lawful permanent residence at the same time as the employee.
After receiving the Green Card, the derivative’s status in the United States is no longer linked to the principal’s status.