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Dependents

The legally married spouse and unmarried children under the age of 21 of the primary status holders (e.g. H-1B, TN) will generally qualify for a “dependent” status, such as E-3 dependent, H-4, O-3 or TD. If the dependent is joining the primary status holder from abroad, they can apply for their visa at the U.S. embassy or consulate on the basis of the primary status holder’s immigration status documents as well as proof of the relationship – normally a marriage certificate for the spouse and birth certificates for children. 

Note that Canadian citizens are generally exempt from the non-immigrant visa requirement and will need to present their eligibility documents, including evidence of their relationship, at the port of entry.

If the dependent is currently in the U.S. in a different immigration status (or needs to extend their existing dependent status), a Form I-539, Application to Extend/Change Nonimmigrant Status must be filed with USCIS. This form must generally be filed by the applicant him or herself. If FSIS is filing an application for the primary status holder, FSIS can file this I-539 with the main application. The filing fee for an I-539 application is the responsibility of the applicant.

Re-registration for children turning 14 years old while in the US

The US Department of Homeland Security requires that anyone turning 14 years old while they are physically present in the US apply for re-registration within 30 days of their birthday. Children under 14 are not required to re-register. Individuals who traveled internationally, re-entered the U.S. and were issued a new I-94 after their 14th birthday do not need to re-register.

E-3D/S

The dependents (spouse and unmarried children under the age of 21) of individuals in E-3 status are eligible for E-3 dependent status. Note that, whereas the primary E-3 status holder must be an Australian citizen, E-3 dependent status holders do not need to be Australian citizens. All individuals in E-3 dependent status may study and dependent spouses whose I-94 is endorsed with E-3S status also have employment authorization (without the need to apply for an EAD. Spouses in E-3S dependent status may also choose apply for an EAD on the basis of which they may work. If a dependent spouse has an I-94 that indicates their E-3 status but does not confirm they are in spousal E-3S dependent status, an EAD is required. To apply for an EAD, the spouse in E-3S status must file an I-765, Application for Employment Authorization, with USCIS.

H-4

The dependents (spouse and unmarried children under the age of 21) of individuals in H-1B status are eligible for H-4 status. Individuals in H-4 status may study but they may not work, unless they have an EAD. Individuals in H-4 status may qualify for an EAD based on a pending green card application by filing a Form I-765.

The following individuals in H-4 status are eligible for an EAD:

The following individuals in H-4 status may also apply for an EAD:

  • Individuals in H-4 status whose spouse in H-1B status is the beneficiary of an approved I-140 (employment-based Immigrant Petition).
  • Individuals in H-4 status whose spouse in H-1B status was granted an extension of their status beyond the standard maximum period of six years of H-1B status (based on an employment-based green card application. The I-765 may be filed concurrently with the I-539 and I-129 for the status extensions beyond the sixth year.

Please be sure to review the instructions before filing a request for an EAD.

O-3

The dependents (spouse and unmarried children under the age of 21) of individuals in O-1 status are eligible for O-3 status. Individuals in O-3 status may study but they may not work. 

TD

The dependents (spouse and unmarried children under the age of 21) of individuals in TN status are eligible for TD status. One does not have to be a Canadian or Mexican citizen to qualify for TD status. Individuals in TD status may study but they may not work.

I-539

This information is provided as a courtesy and does not constitute legal advice. FSIS staff cannot complete/prepare the I-539 on your behalf. Form I-539 is a personal application and FSIS cannot provide you with more specific guidance or advice on how to complete it. USCIS provides comprehensive instructions on how to complete this form. If, after reviewing the information below, you have further questions about what how to respond to a particular question on the Form I-539, please consult an immigration attorney.

For more information on completing Form I-765 to request an H-4 EAD, please refer to our "Applying for an EAD while in H-4 Status" section below.

If FSIS is filing an employment-based immigration petition (e.g. an H-1B petition) for an employee, Form I-539 is used by the dependents (spouse and children under age 21) who are applying for a change or extension of their immigration status (e.g. H-4).

Form I-539 is not used for the primary status holder, i.e. the employee in H-1B, TN, E-3 etc. status. Therefore, Form I-539 and the supplemental Form I-539A are completed from the perspective of the dependent family members only; the "applicant" is usually the spouse or the oldest dependent child. Additional dependent family members are "co-applicants," for whom the I-539A supplement is completed. (Note that Form I-539 may also be used by individuals applying for a change of status to, for example, F-1 or J-1 status. In that scenario, the primary status holder's information would be included on Form I-539 and the information on any dependent family members would be included in the I-539A supplement.)   

Following are some suggestions for dependent(s) completing Form I-539 applications.

  • Form I-539 can be filed (and paid) online.
  • Be sure to use the correct edition of the form. See "Edition Date" under "Form Details" for the latest information.
  • In those boxes on the application that do not apply to you, write “none” or “N/A” (not applicable), as appropriate.

PART 1: Information About You (the dependent family member, the applicant). 

  • U.S. Mailing Address is where the applicant receives mail.
    • This is the address where USCIS will send the receipt notice and approval notice as well as any other relevant communication about the I-539 application.
    • If you anticipate you will be moving after filing the I-539, please consult with an FSIS adviser.
  • U.S. Physical Address is the applicant's U.S. residential address.
  • Other Information About You:
    • #11: Use the number of the passport you used to enter the U.S., even if it has expired.  You can enter your new passport number in Part 4, 1. For "country of issuance," list the country that issued the document, not the country in which it was obtained, i.e. generally the applicant's country of citizenship. In other words, if you obtained your passport in the U.S., but your country of citizenship is India, country of issuance is India, not U.S.).
    • #12: Applicant's current non-immigrant status. Provide the status expiration date as indicated on the applicant's I-94. If applicant holds F or J status, check the "Duration of Status (D/S)" box instead.

PART 2: Application Type 

  • #2: If you are applying for change of immigration status, indicate the requested status, e.g. H-4, as well as the requested effective date of that change. If you are applying for an extension of status, indicate “N/A" in both sections of #2.
  • #3: If applicant is the only dependent family member that is included on the I-539, select “I am the only applicant.”  If there are multiple dependent family members, select “I am filing this application for myself and members of my family.”
  • #4: Indicate the total number of dependent applicants. (Do not include the primary status holder in the number in #4.)
  • #5+6: Does not apply to applicants pursuing a change of status to H-4, TD, E-3D status

PART 3: Processing Information 

  • #1: The latest possible extension end date is the end date that is requested (or was already granted) to the primary status holder. FSIS can confirm the requested end date for the primary status holder.
  • #2: Select "Yes" only if the I-539 is filed after the primary status holder’s status petition was already approved.  (Applicant will need to submit own I-539 directly with USCIS.)
  • #3: Select “Yes, filed with this Form I-539" if we are including this application as a courtesy with the employee's H-1B/TN/ E-3 petition. (Provide signed I-539 with support documents to FSIS.)  Select “Yes, filed previously and pending with […] USCIS” if the primary status holder’s application has already been filed with USCIS but has not yet been approved. (Applicant will need to submit own I-539 directly with USCIS.)
  • #4: Select the form number used by/on behalf of the primary status applicant.  For H-1B applicants, the form number is I-129.
  • #5: If the I-539 is filed concurrently with the I-129, the USCIS receipt number is not yet available. Provide the USCIS receipt number for the primary status holder’s petition, if a petition has already been filed or approved.
  • #6+7: Indicate “N/A” unless the I-539 is not filed with the I-129 and the I-129 remains pending.

PART 4: Additional Information About the Principal Applicant 

  • #1: Only required if different from the passport information in Part 1.
  • #3-13: Please be sure to respond to all questions. If you respond “yes” to any of these questions, provide an explanation in Part 8.
  • #14: Whether applicant selects “yes” or “no,” be sure to provide an explanation in Part 8.
    • If applicant answered "no" to #14, provide the following information in Part 8:
      • Fully supported by [spouse/parent]
      • Name of [spouse/parent]
      • Position Title
      • [name of unit], University of Michigan
      • Current annual salary: [...]
    • If applicant answered “yes” to #14, provide the requested information and include documentation of your employment authorization (e.g. EAD).
  • #15: If “yes,” please provide an explanation in Part 8. In your explanation, you must include the J-program dates. It is also recommended you indicate whether or not the applicant was subject to the two year home residency requirement and, if so, whether the requirement was waived or served out.

PART 5: Applicant's Contact Information, Certification and Signature 

Support Documents and Filing Fee 

USCIS provides a list of required support documents, specific to each type of I-539 request. Be sure to attach a copy of each of those documents. It is strongly recommended applicants also keep a complete copy of the application and supporting documents for their records. 
For H-4 I-539 applicants, USCIS requires the following documents and filing fees: 

  • Form I-94 or paper I-94 for each dependent. If applicant has a paper I-94, provide copies of front and back.
  • Evidence of relationship, generally marriage certificate for spouse and birth certificate for child.
  • English translation, if applicable
  • At least one of the following IF the I-539 is NOT filed concurrently with the H-1B petition:
    • A copy of Form I-129 (H-1B petition) filed on behalf of primary status holder -- NOTE: FSIS has this and will include with concurrently filed I-539s;
    • A copy of Form I-797 Receipt Notice, if H-1B petition is pending;
    • A copy of the H-1B status holder’s most recent Form I-94; or
    • A copy of Form I-797 Approval Notice, if the H-1B petition has been approved.

Beyond these required documents, you may also consider including additional, relevant documents, such as:

  • Passport biographical information page for each dependent
  • Current US visa sticker in passport, if any
  • Current status documents, e.g. I-20/DS-2019/I-797 approval notice, if any
  • EAD, if applicable
  • IAP-66 or DS-2019 form if you previously held J status, if applicable
  • Waiver of two-year home residency requirement, if applicable

Also attach a Form G-1450 for payment of the USCIS filing fee. To calculate the required filing fee, please see the "filing fee" section at the USCIS website or use the USCIS fee calculator.  Note that, if the I-539 is filed concurrently with the H-1B petition, the form of payment MUST be a debit or credit card. USCIS will not accept mixed forms of payment for applications that are filed together - to pay by check or money order, the application would need to be filed separately.

Note:

  • Depending on your travel plans, it may not be necessary to file Form I-539.
  • As a result of a Settlement Agreement (Edakunni vs. Mayorkas), USCIS will adjudicate Form I-539 together with the underlying H-1B petition IF they are filed together.
I-765 - Applying for an EAD while in H-4 Status

Individuals in H-4 status normally do not have employment authorization. However, spouses in H-4 status (not dependent children) are eligible for an Employment Authorization Document (EAD) under eligibility category "(c)(26)" as soon as the primary status holder in H-1B status:

  • Is the beneficiary of an approved Form I-140 (Immigrant Petition), or
  • Has been granted an extension of their H-1B status beyond the standard six-year limit of H-1B eligibility based on a pending employment-based green card application.

Unless and until these narrowly defined criteria are met, spouses in H-4 status do not qualify for an EAD under eligibility category "(c)(26)." Many individuals in H-4 status are not eligible for an EAD on this basis.

How to Apply 

This information is provided as a courtesy and does not constitute legal advice. FSIS staff cannot complete/prepare the I-765 on your behalf. Form I-765 is a personal application and FSIS cannot provide you with more specific guidance or advice on how to complete it. If, after reviewing the information below, you have further questions about what how to respond to a particular question on the Form I-765, please consult an immigration attorney.

To apply for an EAD, eligible spouses in H-4 status must file a Form I-765 and pay a filing fee. Please review the USCIS information on how to apply for an EAD for a process overview and an overview of required support documents.

  • In Part 1, select 1.a. ("initial permission to accept employment") if this is the first time you are applying for an EAD in a given category, e.g. c26, as indicated in Part 2, question 27, even if you already have an EAD in a different category.

In general, the following support documents should be included:

  • Copy of passport
  • Copy of current EAD, if applicable.
  • Proof that the H-4 status holder is currently in status, such as
    • H-4 Approval Notice
    • I-94 record
  • Marriage license (with English translation, if applicable)
  • Proof of eligibility for the EAD
    • Copy of I-140 Approval, OR
    • Proof of H-1B status approval beyond the sixth year
  • Two identical passport photos (with name written on the back)

Individuals in H-4 status may not begin employment until USCIS has approved the application and the EAD has been received by the applicant.

Also attach a Form G-1450 for payment of the USCIS filing fee. To calculate the required filing fee, please see the "filing fee" section at the USCIS website or use the USCIS fee calculator.  Note that, if the I-765 is filed concurrently with the H-1B petition, the form of payment MUST be a debit or credit card. USCIS will not accept mixed forms of payment for applications that are filed together - to pay by check or money order, the application would need to be filed separately.

EAD Extensions

The expiration date of the EAD will often coincide with the validity of one’s approved H-4 status. When filing Form I-539 to request an extension of one’s H-4 status, a new I-765 may be filed at the same time. To avoid future gaps in employment eligibility – with limited exceptions, one’s EAD has to be valid in order for H-4 spouses to work – it is important that future status extension requests are filed as early as possible. 

Because H-4 status extension requests are dependent on status extensions for the H-1B status holder, H-1B status extension requests should be filed as early as possible. USCIS will accept H-1B extension requests up to six months prior to the requested start date. Note that individuals in H-1B status who are the beneficiaries of a pending H-1B extension petition may continue to work for a period of 240 days while their extension petition is pending with USCIS. However, H-4 spouses who are employed on the basis of an EAD do not have this benefit and must stop working when their EAD expires, unless they are covered by the 11/12/2021 policy guidance referenced below. Therefore, it is strongly recommended that H-1B extensions be filed five to six months prior to the requested extension start date so that EAD requests for H-4 spouses can be adjudicated in time.

Effective 11/12/2021, USCIS issued new policy guidance that confirms that qualifying H-4 dependent spouses whose status continues to be valid beyond the expiration date of their EAD are eligible for an automatic extension of their EAD. Upon the timely filing of an EAD extension request (Form I-765), their employment authorization will automatically be extended for a period of 180 days OR until the date their H-4 status expires, whichever is shorter.

Note: USCIS re-issued a Temporary Final Rule (TFR) on 4/8/2024 to change the automatic extension period for certain EAD categories from 180 days to 540 days, for extension requests filed between 10/27/2023 and 9/30/2025. Note that USCIS will not be issuing new I-797 receipt notices to affected individuals. I-797 receipt notices for affected categories that refer to a 180-day extension period will still meet the regulatory requirement for employment authorization.

All H-1B petitions filed on behalf of the University of Michigan must be filed by the International Center (IC) on the Ann Arbor campus. As a courtesy, at the request of the H-4 spouse, the IC can include the Form I-539 and I-765 with the H-1B petition.

When to Apply

Spouses in H-4 status who are not yet eligible to apply for the EAD under the eligibility criteria should not file the I-765 until they can establish their eligibility. Spouses who will become eligible for an EAD based on an extension of the primary status holder's H-1B status beyond the sixth year of eligibility may file the Form I-765 together with their request for an extension (Form I-539) of their H-4 status. The I-539 and I-765 should be adjudicated together, assuming they were filed together with the primary status holder's underlying H-1B petition.

Do all individuals in H-4 status qualify for an EAD? 

No. Only spouses, not children, of H-1B status holders qualify. To qualify, the spouse must hold H-4 status and the H-1B status holder must be the beneficiary of an approved I-140 or have been granted an extension of their H-1B status beyond the sixth year of H-1B eligibility based on a pending employment-based green card application.