How H-1B parents with children on H-4 visas should plan for college admissions

By Rajkamal Rao  

There are many H-1B parents whose rising senior children on H-4B visas face a dilemma about how to protect their immigration status and still attend college.

There are two main questions:  What should the immigration status of the children be when they enter college? H-4B or F-1? And, what kinds of scholarships and financial aid can these children find applicable?

Immigration stages and the priority date

Which immigration status the child decides to be in largely depends upon the green card priority date of the H-1B parent.

There are three major steps to obtaining a green card.

1. The Labor Certification or PERM stage (Application for Permanent Employment Certification).
2. The Immigrant Petition (I-140) stage.
3. The Adjustment of Status (I-485) stage.

The priority date is the date on which the Labor Certification was filed with the Department of Labor, or, if no Labor Certification is required, as in the case of applicants with exceptional ability, the date on which USCIS received the I-140 petition.

The priority date is simply the reserved position in the queue to obtain a green card.

With so many H-1B employees applying for I-140s, and only about 7,900 green cards issued each year, the wait is long. Estimates are that anyone with a priority date after 2009 is in this line, those closer to 2009 at the head of the line, and those with a priority date of today at the very end of the line. Everyone in the line is considered to be in the green card backlog.

When the priority date becomes current - that is, there is a green card available for the employee and their family - H-1B families enter the I-485 stage.

When the I-485 is properly filed, USCIS will initially respond by mailing a letter that confirms receipt of the application, via Form I-797C, approximately 2-3 weeks after the I-485 filing. This is the H-1B employee's confirmation that they are officially an “adjustment of status” applicant. It takes 8-14 months after receiving the I-797 to obtain the physical green card.

What should the immigration status of the children be when they enter college?

Children of H-1B families are by default on H-4 dependent visas. These are restrictive and do not permit any meaningful activity other than going to school. Working for gain is forbidden, although, the experience of work in college (on-campus employment, teaching assistant roles, internships) is integral to the college experience. The H-4 EAD visas that permit H-1B spouses to work are not granted to children.

For students whose families are in the I-485 stage, it may be appropriate to stay on the H-4 visa and wait out the 8-14 month processing time to get the green card.

If the family is not yet at the I-485 stage, students should consider converting to an F-1 visa so that they can pursue on-campus employment and internship opportunities. However, such a move could force them to pay out-of-state tuition fees [see next section]. The decision to convert to F-1 has to balance these two conflicting priorities. In some cases (see points 2 and 3 below), converting to F-1 may be the only way that a student can legally remain in the United States.

The process to convert to F-1 is fairly straightforward. In general, you need three documents to file your I-539 - (see item #6 in the document) - the official form that USCIS requires to grant you the change of status: your I-94, the I-20 from your target institution and a financial statement to demonstrate that the cost of a year's attendance in college (tuition, fees, books, room and board) is covered. Some institutions process the so-called Change of Status for you but you still have to do the federal paperwork. 

1. Once the student sends in a deposit to a college and locks in a seat, the student should request the college to process a conversion to an F-1 visa. The University of Missouri has published an excellent checklist of the process. Rochester also has a detailed guide.
   
   
2. This conversion may be especially necessary if the H-1B parent becomes unemployed and is forced to leave the U.S when the student is in college on a H-4 visa. Job loss may even occur when the student is a rising high school senior. Luckily, U.S. law allows for high school students at public high schools to study for an entire academic year on an F-1 visa, although, the student must technically reimburse the high school for tuition expenses.
   
   
3. If a student is younger and the parent has to return to their home country, the student can still convert to an F-1 visa but switch to a private high school. Students on an F-1 visa can pursue a full secondary education – and even earn a diploma – but only at U.S. private high schools.

As long as a student is younger than 21, they can continue to appear on their parents' I-485 application and still get their green cards. As a student turns to being within 9 months of their 21st birthday and the parents haven't still obtained their green cards, the student has to find other ways to remain in the United States - convert to F-1, obtain an H-1B sponsorship - or even consider marriage to a citizen or permanent resident!

Scholarships and financial aid for H-1B children

The majority of public scholarships - such as FAFSA grants, work study, and subsidized loans - are unfortunately not available to H-1B families. Many states operate financial aid programs specifically for such families - like the State of Texas TASFA program.

But the best news for H-1B families is that children can attend public colleges and universities as in-state residents. Domicile is a technical term that colleges use to determine whether someone is resident in a state or not. The legal definition of domicile is that it is a place that a person treats as their permanent home, or lives in and has a substantial connection with. States permit H-1B families to claim domicile on the theory that these families want to immigrate to the United States and make the state their future home.

Many children of H-1B families know of no homes other than those in America. State law is fairly uniform and we will use Texas as an example. If a child is a dependent of an H-1 or L-1 parent, and if the child graduates from a Texas public high school and has attended that school for three years leading to obtaining a high school diploma, the student is automatically deemed to have earned independent domicile in the state of Texas and is eligible to be treated as in-state for the purpose of tuition. This classification remains even if the parents leave the state of Texas but still hold on to their H-1 or L-1 status.

Even if the student did not spend three years in Texas leading to a high school diploma, the student can qualify for in-state tuition - as a dependent of their parents. This assumes that the parents continue to live in Texas as their domicile - they live in a home in Texas, work in Texas, drive in Texas, and have a substantial connection to the state. The only time such dependent domicile becomes an issue is when the parents have to leave the state, say to go to California. Then, the student attending a Texas college is no longer an in-state resident for the purposes of tuition.

Students who covert to an F-1 visa will lose their in-state tuition privileges. The F-1 is a non-immigrant student visa and by definition, F-1 students are expected to return to their home countries after their studies even if the F-1 student in this case has no connections to the home country. The F-1 is NOT a dual intent visa - that is, unlike those on an H-1B visa, students on an F-1 visa are not permitted to apply for a green card directly, and therefore, cannot reasonably claim domicile in a state. USCIS rules prohibit F-1 students from attempting to gain domicile in a state for the purposes of enjoying in-state tuition benefits.

We recommend that students of H-1B families limit their school choices to state public universities and colleges.

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