Understanding H-1B Visa Transfer and Spouse's H-4 Status

The question of transferring an H-1B visa to a spouse and allowing the spouse to hold an H-4 status is one that arises frequently among those navigating the U.S. immigration system. While it is possible to have your spouse hold an H-4 status, this does not equate to transferring the H-1B visa itself. It is crucial to understand the implications and requirements to make informed decisions.

Is It Possible to Transfer an H-1B Visa?

An H-1B visa is specifically designed to be held during the sponsored period by the individual for whom it is sponsored. This means that it cannot be transferred; a new petition must be filed if a change of employer is desired. It is not possible to transfer the sponsored status of an H-1B visa from one person to another outside the formal petition process.

Current Holder of the H-1B Visa

If you hold an H-1B visa, you retain the responsibility and the benefits of this status during your employment term, as outlined by your sponsoring employer. To work in the United States on an H-1B visa, you must have a lawfully approved Form I-140, Immigrant Petition for Alien Worker, and possess an Employment Authorization Document (EAD).

Spouse's H-4 Status

You can, however, have your spouse hold an H-4 status. H-4 status is granted to the spouses of H-1B visaholders who entered the United States legally. If your spouse has an H-4 status, they are typically not employed by the sponsoring employer, which means they do not have the right to work in the United States during this period.

Conditions and Risks for Spouses in H-4 Status

While your spouse with an H-4 status can engage in limited activities, such as pursuing higher education or volunteer work, they do not have the authorization to work in the United States. This means that if your spouse seeks to work, they will need to apply for an EAD (Employment Authorization Document) which can be challenging and requires their own approved I-140.

Impact on the H-1B Visa Holder

For the H-1B visa holder, obtaining an EAD can involve risks. If their spouse's application for an EAD is approved, the spouse can legally work until the EAD expires. However, if the application is denied, the H-1B holder may face significant consequences, including the need to leave the U.S. and reapply for a new visa, such as an F-1 for education or a B-1 for short-term business purposes.

Employer-Sponsored Petitions and H-1B Transfers

To clarify, an H-1B visa holder is not the true owner of the visa; the employer sponsors the H-1B petition. If another employer wishes to sponsor an H-1B petition for you, you would need to file a new petition with the new employer. Your original H-1B status cannot be transferred within the current employer.

Key Takeaways

An H-1B visa cannot be transferred from one individual to another; a new petition must be filed if you wish to change employers. Your spouse can hold an H-4 status, which allows them to remain in the U.S. but does not grant work authorization. Obtaining an EAD for a spouse in H-4 status is possible but comes with risks and uncertainties. The original employer is responsible for the H-1B petition and the employer must apply for a new petition if you wish to change employment.

For more detailed information or assistance with navigating the complexities of U.S. immigration, consider consulting with a qualified immigration attorney who can provide personalized guidance based on your specific circumstances.