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Can H4 visa holder stay in US without primary H1 applicant?

Bellevue, WA |

Am on H1 Visa working in US and have to leave to my home country for a month or so.
I will be on my employer INDIA payroll and not on US payroll during this time.
My spouse is on H4 and pursuing an educational course in US and hence i do not want to take her along with me to my home country.
Please advice if she can stay in US without me and if yes, then how long she can stay like this?

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Attorney answers 2

Best Answer

In my opinion no. Here's the problem. If your being taken of the US employer's payrolls covered by the LCA, i.e. being posted overseas even though its only for 30 days, then you yourself are essentially being benched and working for a company not provided for on your own LCA and you, your self are no longer on a valid H-1B and therefore neither is she, thats my opinion and reading of the situation. I could be wrong and perhaps others have a differen view and analysis of your situation and may weigh in on the issue.


H-4 is for accompanying or following to join H-1B spouse. If your husband is not maintaining his H-1B status, you will not meet your burden to show you were maintaining H-4 status.

This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.

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