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

[aj_12345 0]

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?
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.

[aj_12345 0]

Thoughts anyone?

[Pinkrlion 2,724]

Why can't the husband's former employer file for her?  H-4B status ends when husband dies.  She has no status and will have to return home.  

Edited January 29, 2020 by Pinkrlion

[aj_12345 0]

@Pinkrlion  ... thank you for your response. She does not have the right to work in the US. So her husband's former employer cannot make any filings on her behalf. Unless you had a particular filing in mind that would not require the right to work. Please elaborate.

[xyz12345 260]

On 1/22/2020 at 6:22 PM, aj_12345 said:

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?
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.

Some of your questions of your questions may be best answered by a knowledgeable immigration lawyer, but it seems like she's on the right track with step #1 by the way I read 204(l)

 

https://www.uscis.gov/greencard/section-204l-relief-surviving-relatives

 

I'm no lawyer though. I'm glad that the husband's employer is going to give her a role. imo i would get lawyer if I were in her shoes. 

[Boiler 45,558]

Sounds promising, presumably being handled by the Employers Lawyers.