H4 EAD Status after death of spouse -- Urgent**

[blooms4me]

I am an Indian woman, currently on H4 visa with EAD, both valid until Sep 2024,residing in Michigan with my daughter.

MY situation :
Unfortunately, my husband, the H1B holder passed away recently. His company lawyer, told me that I could stay and work in the US until the expiration of the H4/ EAD in Sep 2024. Meanwhile my husband's company and his company lawyer filed an application to USCIS requesting them to change the green card application into my name since my husband, had already received the I-140. I am currently working.

Today, his company and lawyer told me to seek help of some other lawyers since they were not too sure if H4/H4 EAD would be valid if the H1B holder was not alive.
I thought I had time until Sep 2024 to look into options where in I could stay and work further, but this puts me in a difficult situation. My daughter was born in USA and is a US citizen.

One of the lawyers I contacted gave me a slightly positive reply.

If anyone out there knows anything about this, please let me know.

1. I wanted to know if it is legal for me to stay and work until Sep 2024?**

2. If not, what are the options for me?

Awaiting your reply at the earliest.

[flyingron]

I'm sorry for your loss. While your visa became invalid when your husband passed, you are entitled to stay for the duration specified on your I-94 and continue to use the EAD.

I'm not sure I understand your statement about "changing the green card into your name." That can't happen. If they had applied for you to change your status while your husband was alive (which could have happened coincidentally with his application) then it is likely you can stay/work until you hear one way or another. But given the imprecise nature of your statements, I would suggest this is a question best directed to the attorneys.

[newacct]

you are entitled to stay for the duration specified on your I-94 and continue to use the EAD.

I don't think this is true. Having a valid I-94 doesn't mean you are in status. For H4 to be in status, their spouse or parent must be in H1b status. In this case, they are no longer in status once the H1b principal worker died. They do not accrue "unlawful presence" for the purposes of the ban until the I-94 expires, but they are still out of status and technically deportable.

[newacct]

I am an Indian woman, currently on H4 visa with EAD, both valid until Sep 2024,residing in Michigan with my daughter.

MY situation :
Unfortunately, my husband, the H1B holder passed away recently. His company lawyer, told me that I could stay and work in the US until the expiration of the H4/ EAD in Sep 2024. Meanwhile my husband's company and his company lawyer filed an application to USCIS requesting them to change the green card application into my name since my husband, had already received the I-140. I am currently working.

Today, his company and lawyer told me to seek help of some other lawyers since they were not too sure if H4/H4 EAD would be valid if the H1B holder was not alive.
I thought I had time until Sep 2024 to look into options where in I could stay and work further, but this puts me in a difficult situation. My daughter was born in USA and is a US citizen.

One of the lawyers I contacted gave me a slightly positive reply.

If anyone out there knows anything about this, please let me know.

1. I wanted to know if it is legal for me to stay and work until Sep 2024?**

2. If not, what are the options for me?

Awaiting your reply at the earliest.

With respect to the green card application, you should look into INA 204(l) reinstatement. The death of the principal beneficiary automatically voids the petition, but it can be reinstated under INA 204(l) if at least one derivative beneficiary resides in the US at the time of the principal beneficiary's death, and continues to reside in the US until the time of requesting reinstatement. So you should request this reinstatement ASAP, while you are still residing in the US. Once you leave the US, you would lose the opportunity for this reinstatement.

[blooms4me]

Yes the reinstatement is what was done by his company lawyer. They filled out form G-28, request letter form their side, latest letters/bills etc. stating I am still going to stay in USA. I haven't received any response from USCIS yet.

According to his lawyer yesterday, regardless of that- the H4 EAD I am on becomes invalid immediately. Wouldn't the USCIS contact me if that were the case?

Also, is it advisable to contact USCIS directly by phone to clarify this? I know it will take a long time to get a hold of them, but I am moving on just assumptions as of now.

I am consulting a lawyer soon. Just wanted some insight from anyone here on this forum.

[newacct]

Generally, USCIS will not inform you (and often, does not even know) that you are out of status. Whether and when you were out of status will only be retroactively determined based on the facts if and when it matters for a future application.

For example, having maintained status is a requirement for Adjustment of Status (to get a green card from within the US). Since you are in an employment-based category, INA 245(k) allows you to have been out of status or working illegally for less than 180 days since your most recent entry and still be eligible for AOS. So if your priority date can file AOS within 180 days of your husband's death, then that would allow you to stay without leaving.

If you exceed that, you are ineligible for AOS, but you can still do Consular Processing abroad as long as you don't have a ban. For the 3-year/10-year ban, it is unlawful presence that matters, not being out of status, and unlawful presence starts accruing when your I-94 expires. So if you have to do Consular Processing abroad and want to avoid a ban, you would have to leave the US before 180 days after your I-94 expires at the latest.

[blooms4me]

My husband passed away on Jan 13th 2022. The Reinstatement Request application package was sent by Fedex on Jan 28th.

That was my confusion too- I have to stay is US as a requirement for Adjustment status, but right now HOW to stay is the problem.

[newacct]

What is the category, priority date, and country of birth for your husband's immigrant petition? Is a visa number available or will it be available soon?

[trinishu]

We are in the same situation with my younger brother family. I did have paid consultation with couple of attorneys and weirdly they have different opinions. The take away is H4 EAD is invalid right away. You can use 204(l) and again one attorney advised to wait until your priority date becomes current under Final Action Date . They are generally of the opinion that you need to stay here to apply I-485 and consular processing is not an option as part of general comment. The issue is how does people stay here legally with H1 quota over for this year already. The priority date is Eb2 April 2016 India and we don't know how long they have to be in a limbo.

[AndreyDuplanti]

I see that this thread is a year old. I hope that you were able to find the support and guidance you needed in the past year. If not, I still recommend reaching out to a lawyer who specializes in immigration and H4/EAD visas to discuss your options."I see that this thread is a year old. I hope that you were able to find the support and guidance you needed in the past year. If not, I still recommend reaching out to a lawyer who specializes in immigration and H4/EAD visas to discuss your options. In the meantime, if you're still looking for a way to honor your husband's memory, Headstones with butterflies by SB Monumental is a beautiful option that can help you create a peaceful and meaningful resting place for your husband. Again, I'm sorry for your loss and I hope you found the legal support and guidance you needed to navigate this situation. Take care of yourself and your daughter.

[OasisBEE]

I would suggest discussing the potential options and legal pathways with the lawyer in more detail. They can provide you with accurate information based on your circumstances and guide you through the process.

Please keep in mind that I'm not a professional in this field, so it's important to consult with experts who can provide you with the most accurate advice. I hope you find the information you need and the right support to navigate this challenging situation.