If the H-1B holder has a pending or approved I-140 and passes away, INA § 204(l) provides a safety net to the H-4 derivative beneficiaries. Under § 204(l), the H-4 derivative beneficiary may ask USCIS to reinstate the approval of the I-140 petition. The I-140 reinstatement process preserves the H-4 holder’s ability to adjust their status to permanent residency- provided they request the reinstatement.

There is no fee to request the I-140 reinstatement. The reinstatement may be done while the I-140 is pending, after the I-140 is approved, simultaneously with the adjustment of status application, or after the adjustment of status application is filed.

To request reinstatement of the I-140, a few documents should be submitted. First, the name of the derivative beneficiary, the name of the deceased spouse, and the name of other derivative beneficiaries on the same petition. Second, the H-4 holder’s A number and the deceased H-1B holder’s A number. Third, the number of other beneficiaries. Fourth, H-1B spouse’s death certificate. Fifth, proof the H-4 derivative beneficiary resided in the U.S. from the time the H-1B beneficiary passed away until the time of filing the reinstatement. Finally, a form I-864 affidavit of support from a substitute sponsor, if applicable.

If USCIS approves the reinstatement, then the H-4 beneficiaries may apply for an adjustment of status based on the I-140 of the deceased spouse. Without this provision, H-4 beneficiaries would lose the ability to adjust status once the H-1B holder passes away. It is important to note while awaiting the priority date to become current, the beneficiaries will need to maintain a different nonimmigrant status or depart the U.S., as the H-4 status will no longer be valid after the H-1B principal beneficiary is deceased.

Here we discussed § 204(l)’s applicability to H-4 derivative beneficiaries; however, this provision applies to further categories of immigrants and nonimmigrants as well. § 204(l) also applies to beneficiaries of family-based applications (I-130), immediate relative applications, employment-based petitions, asylees and refugees, nonimmigrants in T or U status, and VAWA self-petitioners.

If you have questions about INA § 204(l) and its effect on derivative beneficiaries, please reach out to an experienced attorney at ILBSG today. We are here to help.

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