Options for spouse upon death of applicant after EB-2 application and I-140 approval

#1
I am asking on behalf of friends. The primary applicant had entered the US on a H-1B visa. His employer applied for an EB-2 visa under the category of "Advanced Degree / Exceptional Ability." His Form I-140 petition was approved in July 2019, but he wasn't able to file for an Adjustment of Status using Form I-485 since his priority date had not become current (as he was Indian). Unfortunately, he passed away earlier this month.

His wife and 13y-old son also entered the US on H-4 visas along with him. Upon receipt of approval of the primary applicant's Form I-140 petition, his wife intended to file Form I-765, Application for Employment Authorization. However, she could not complete this application due to the primary applicant's poor health.

His wife would now like to take two steps.
  1. Apply for INA Section 204(l) relief to allow her and her son to continue residing in the US.
  2. Upon receiving the 204(l) relief, she will file Form I-765, Application for Employment Authorization, in order to obtain the right to work in the US. She has been promised a role at her husband's former employer.
My questions are as follows:
  1. Is she eligible to perform these two steps? Can they be applied in parallel?
  2. What is the likelihood of success of each step?
  3. What is the processing timeframe for each step?
  4. Can they (mother and son) continue living in the US and attend a public school (i.e. son) while the application remains outstanding? Can they leave the US and return?
  5. If successful, what is the maximum timeframe until which they can reside and work in the US? Is it limited by the deadline under their current H-4? Will the H-4 be renewed, like it would have if the primary applicant were alive?
  6. For step 2, (i.e. Form I-765), does she need a confirmed letter of employment to apply?
  7. Is there an alternative course of action that would be more productive than that outlined above in order to enable mother and son to live and work in the US?
Please share your expertise and experiences generously to support a bereaving wife and son.
 

whitemimauz3

Registered Users (C)
#3
I am sorry for the loss. H4 EAD benefit you are trying to claim is based on the fact that principal H-1B applicant's I-140 approval & H4's are derivative meaning deriving status from principal H-1B applicant based on the fact that they are related either spouse or child. BUT now since that principal has died I am not sure how spouse could be derivative any more.
 
#4
Thank you @whitemimauz3 for your response. The purpose of the INA Section 204(l) relief is to reinstate the I-140 approval as a result of the principal's death. This would also re-instate the H4s of all derivative beneficiaries. I can't seem to paste links here but a search for "204(l)" should take you to the USCIS website with details.
 

whitemimauz3

Registered Users (C)
#5
You are talking about I-140 approval. Your argument can hold good if priority date is current and she is eligible to I-485 invoking INA section 204 (I) even if principal I-140 beneficiary is dead and may be in future whenever if priority date is current she can either file I-485 if present in US or go with consular processing route of immigrant visa. BUT the question is if principal H-1B applicant is dead she is no more on H4 status and I believe she could stay in US on H4 status until validity of I-94 or switch to different status.
 
#6
Thank you @whitemimauz3. My understanding, with basic exposure to US immigration law, was that reinstatement of the I-140 invoking INA section 204(I) approval would automatically put her and her son back to the same status as before her husband's death. This would mean their H4 statuses would be reinstated allowing them to continue to reside and that she would be eligible to file for EAD using Form I-765 allowing her to work. Is my understanding incorrect? Can you point me to any online resources that clarifies this point (I could not find any)?

Also is there any other way to reinstate their H4 status? Unfortunately, their priority date is more than a decade away, given that the principal was an Indian national. So a speedy submission of I-485 is ruled out.

Lastly, if there is no way to reinstate their H4 status, their current H4 expires in May 2022. Do they have the right to reside in the US until then?
 

whitemimauz3

Registered Users (C)
#7
Unfortunately 204 (I) gives relief to I-140 approval situation & it is silent regarding H1B's principal applicant's death. I-140 & 485 filing is totally different from H1B/H4 statuses. Unfortunately upon principal's H-1B's death, spouse has to move to other status or leave country.
 
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