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What happens to spouses and children when a foreign national employee loses status?

With the uncertainty of life, it is important to know what steps to take if a principal visa applicant is terminated, passes away, or divorces a dependent spouse. There are a lot of materials on what the employee can or should do, but often overlooked are dependent spouses and children. What can they do to protect themselves?

 

What happens when the principal spouse is terminated

 

8 C.F.R. § 214.1(l)(2) provides a 60-day discretionary grace period (you must have a valid I-94 for the duration of the grace period) upon termination of employment (last day of employment) for those admitted in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classification and their dependents. The grace period can only be used “once during each authorized validity period”, meaning once per H-1B approval. During the grace period, the principal has the following options:

 

  1. Transfer

 

If the principal is in H-1B status, they can transfer to a new employer during the 60-day grace period. We recommend including evidence of the termination date in the form of a letter or similar communication. If the H-1B status is transferred, dependents can remain in the U.S. pursuant to their H-4 status. Dependents working on an H-4 EAD, can remain working on the same EAD as well.

 

  1. Change to another status

 

The principal spouse can apply for a “change of status”. Options include F-1 status (requires enrolling in a university), H-4 status (if they are a family member of an H-1B visa holder), L-1 status, J-1, or some other work status. We recommend applying for the change of status as soon as possible after learning of the termination.

 

  1. Depart the U.S.

 

If the principal spouse is terminated by their employer and chooses to depart the U.S. and is in H-1B, H-1B1, or E-3 status, the employer must offer to pay for the cost of reasonable transportation to the last country of residence. However, the employer is not required to pay the transportation costs for dependents. So spouses and children may find themselves in a situation where the costs of their return trip are not covered by the employer.

 

What happens when a principal and dependent spouse divorce, and what happens to their children?

 

If a principal nonimmigrant visa holder divorces his dependent spouse, the dependent spouse will be out of status once the divorce is finalized. Therefore, a dependent spouse would either need to seek an alternative status to legally remain in the U.S. before the divorce is finalized. Otherwise, he or she would have to depart the United States. The principal and dependent spouse’s children would still have valid derivative status in connection with the principal employee unless the he or she does not custody rights over the children.

 

What happens to dependents when a principal spouse passes away?

 

If the principal spouse passes away, the dependents may be eligible for relief based on Section INA 204(I) – Relief for Surviving Relatives. They may be eligible to seek relief if they are a:

 

  • Principal or derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the petitioner was a U.S. citizen or lawful permanent resident), and the petitioner died;

 

  • Derivative beneficiary of Form I-130, Petition for Alien Relative (regardless of whether the petitioner was a U.S. citizen or lawful permanent resident), and the principal beneficiary died;

 

  • Derivative beneficiary of Form I-140, Immigrant Petition for Alien Worker, and the principal beneficiary died;

 

  • Beneficiary of a pending Form I-730, Refugee/Asylee Relative Petition, and the petitioner died;

 

  • T or U nonimmigrant visa holder in a derivative classification (T-2, T-3, T-4, T-5, U-2, U-3, U-4, U-5) and the principal (T-1 or U-1) visa holder died;

 

  • Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) died.

 

  • Derivative asylee (AS-2 or AS-3) and the principal asylee (AS-1) died;

 

  • Derivative beneficiary for VAWA classification (Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant) and the VAWA self-petitioner died;

 

  • Derivative beneficiary of Form I-485, Application to Register Permanent Residence or Adjust Status, filed by a battered spouse or child under the Cuban Adjustment Act or the Haitian Refugee Immigrant Fairness Act on and the principal applicant dies; or

 

  • Conditional permanent resident (CPR) child of a CPR filing a waiver of the joint filing requirement for Form I-751, Petition to Remove Conditions on Residence, based on battery or extreme cruelty, and the CPR dies.

 

To be eligible for relief under INA 204(l), at least one beneficiary must have been residing in the United States when the qualifying relative died, and the same beneficiary must continue to reside in the United States at the time of seeking relief. The Department of Homeland Security (DHS) may decline to provide relief if it determines, in its discretion, that doing so would not be in the public interest.

 

If none of the above apply, then the dependent spouse will fall out of status as soon as the principal spouse passes away. The dependents can attempt to remain in the U.S. by seeking alternative legal status; if not then they must depart the country. Remaining in the U.S. would make the dependents unlawfully present. Accruing more than 180 days of unlawful presence, but less than 365 days will result in a bar from reentering the U.S. for three years. Accruing more than 365 days of unlawful presence will result in a bar from reentering the U.S. for ten years.

 

Losing a job, losing a spouse, and divorce are significant life events that can take a heavy toll. It can be difficult to think about anything else in such times. For these reasons, while these situations are relatively rare it is best to know ahead of such a difficult event.

 

Please contact your Graham Adair attorney with any case specific questions or contact us at info@grahamadair.com; +1 408 715 7067.

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