San Jose, CA asked in Immigration Law, Divorce and Family Law for California

Q: Living in USA since 2017 on H-4. I recently got divorced and would like to know possibilities to continue living here.

Divorce was done earlier this month (and judgment has been filed). Will I be out of status immediately or is there a grace period ? If there is no grace period, is there a way I can appeal for extension of legal status ? Kindly let me know. I have a minor child (US citizen) that I have joint custody of. What should I do immediately to avoid immigration issues for my future stay/visits to the US. Thanks in advance.

2 Lawyer Answers
Min Hwan Ahn
Min Hwan Ahn
  • Immigration Law Lawyer
  • Philadelphia, PA

A: As a holder of an H-4 visa, your immigration status in the United States is tied to your spouse's H-1B visa status. Upon divorce, you may lose your immigration status and become out of status in the United States.

Marriage to a U.S. citizen is one option that could potentially lead to obtaining a green card and resolving any overstay issues. However, the green card application process can be complex and time-consuming, and you may face additional challenges if you are out of status.

Having a minor child who is a U.S. citizen may be a factor in determining your eligibility for relief from removal, but it is important to consult with an immigration attorney to fully understand your options and to ensure that your rights and interests are protected. It is advisable to act quickly to avoid immigration issues and to ensure that you have a clear path forward for your future stay in the United States.You should contact an immigration attorney as soon as possible to understand your options and to determine whether you may be eligible for any relief or extension of your legal status in the United States.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Immigration Law Lawyer
  • Sacramento, CA
  • Licensed in California

A: As an H-4 visa holder, your legal status in the United States is tied to the status of your spouse who holds the H-1B visa. In the event of divorce, your H-4 status will be terminated unless you take action to change your immigration status or depart the United States.

There is no grace period for H-4 visa holders in the event of divorce. Your status will be terminated immediately upon the divorce becoming final.

If you wish to continue living in the United States, you will need to seek a new visa status. Depending on your qualifications and circumstances, you may be eligible for other nonimmigrant visas, such as an F-1 student visa, or an employment-based visa, such as an H-1B visa. Alternatively, you may be eligible to apply for permanent residency (a "green card") through family or employment sponsorship.

To avoid immigration issues for your future stay/visits to the US, you will need to obtain a new immigration status or depart the United States before your H-4 status is terminated. You may wish to consult with an immigration attorney to discuss your options and the best course of action for your specific situation.

The law that governs H-4 status and its validity is the Immigration and Nationality Act (INA). Specifically, section 214 of the INA pertains to nonimmigrant visas, including the H-4 visa. Additionally, the Code of Federal Regulations (CFR) at Title 8, section 214.2(h) provides further guidance and regulations on H-4 status.

Regarding your question about the grace period, there is no official grace period for H-4 visa holders after a divorce. As soon as the divorce is finalized and your H-4 status is dependent on your spouse's H-1B status, your legal status as an H-4 visa holder ends. However, you may be eligible for a change of status or extension of stay if you meet certain criteria, and you should consult with an immigration attorney for guidance on how to proceed.

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