H1B visa holder died, Can dependents continue with H4 EAD and expedite Green Card Processing

[NAK77]

Hello Sir,

My friend was in H1B and I-140 approved. His wife was working with H4 EAD and they have a child (US Citizen). Recently my friend died, now can wife continue working with the existing EAD and can the greencard processing be expedited or can the EAD be made permanent so that she can work and support her child. What other options she has for staying at USA ? Please enlighten. Thanks.

[newacct]

There are two separate issues: their current nonimmigrant status, and their immigration.

Regarding their current status, since your friend is no longer on H1b status (because he died), if his wife is on H4 that was based on his H1b, then she is also no longer in H4 status, and is technically deportable immediately. However, she does not start accruing "unlawful presence" until her I-94 expires. Whatever she does, unless she is able to file Adjustment of Status, she should make sure to leave the US no later than 179 days after her I-94 expires, because if she leaves the US after accruing more than 180 days of unlawful presence, she will trigger a ban.

Regarding her EAD, I am not sure, but I believe that she is not authorized to work on her H4 EAD anymore, since she no longer has H4 status.

Regarding her immigration, normally, the principal beneficiary dying before immigrating means that the petition is revoked, and no derivative beneficiaries can immigrate. However, there are a few exceptions and the one that is most relevant to her is INA 204(l) reinstatement. To qualify for this, she needs to have been residing in the US at the time the principal beneficiary died, and continue residing in the US at the time of seeking the reinstatement. So she should seek this reinstatement ASAP, while she is still residing in the US. She has a limited amount of time in the US before she is forced to leave the US or face a ban, so she should take advantage of this limited time to get the reinstatement, or lose this opportunity.

If a visa number is available for his I-140 category and priority date on this chart less than 180 days after he died, then she can file I-485 for Adjustment of Status (together with the request for reinstatement) less than 180 days after he died, to get a green card from within the US. (Employment-based categories benefit from INA 245(k), meaning they can file I-485 as long as they have not been out of status or working illegally for 180 days since the most recent admission.) Otherwise, she cannot do Adjustment of Status and will have to do Consular Processing abroad after getting the reinstatement. According to the INA 204(l) reinstatement page, under "Other Requirements to Benefit from Section 204(l) Relief" -> "Ineligible to Adjust Status", someone who is ineligible for Adjustment of Status and must do Consular Processing abroad can still get INA 204(l) reinstatement.

 

[NAK77]

Thank you for the detailed explanation. This helps much.