Indian-origin cancer patient seeks H-1B guidance, ‘…have 6 months left', expert weighs in
An H1B visa holder with terminal blood cancer seeks advice on securing his family's future in the US after his passing. Expert chalks down some way outs.
Facing a terminal diagnosis of blood cancer, an anonymous H1B visa holder has turned to the popular Facebook group ‘SOS Global Indians®️USA Solutions & Networking For Indians In US’ for advice, hoping to secure a future for his family in the U.S.
With only six months left to live, the user, who resides across the Atlantic with his wife (on a dependent H4 visa) and their US-born daughter, is searching for ways to ensure that his family doesn’t have to return to India after his passing. “I have been diagnosed with blood cancer and have 6 months left. I am here on H1B, living with my wife (dependent visa) and a daughter born in the US. Is there any chance that they could continue living here after I am gone and not have to move to India? Want to have a future for them here,” the anonymous user posted.
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Now, one of the primary concerns is how his wife can continue to stay and work in the U.S. after he is gone. Many users commented on his ordeal and wished him.
While talking to HindustanTimes.com, Indian-American visa podcaster Rahul Menon laid out several options, although each comes with some catch.
“For his wife to continue working there, these are some of the more straightforward options,” Menon explained. The first possibility is for her to switch to her own H1B visa. However, this process has limitations. “Only happens in April, Needs to find an employer willing to file, chances are low due to the large number of applicants,” Menon said. Another option involves moving to a cap-exempt H1B visa, which allows for petitions to be filed at “any time of the year” through nonprofit organizations. The downside here is “Limited only to non-profits. So it limits her opportunities”
Section 204(l) INA: Can be a relief for surviving relatives of deceased petitioners
Another suggestion the Maharashtra Institute of Technology goer cited for the wife was to start a degree program and switch to an F1 student visa. However, Menon pointed out that “it will be difficult to support her family” under this option since F1 visas do not allow supplemental income, adding financial strain.
Moving on to more complex possibilities, Menon highlighted the “Compelling Circumstances EAD,” which could allow the wife to work if her husband has an approved I-140. “They can apply for employment authorization stating compelling circumstances related to serious illness/disability,” he said.
“Validity is 1 year for this authorization and can renewed annually. This isn’t a guaranteed path as it is usually dependent on the discretion of the U.S. Citizenship and Immigration Services officers. USCIS states that The principal nonimmigrant’s EAD must be valid for the spouse and children to receive their own.”
Another possible way the Indian-American podcaster noted the wife may be eligible for relief under Section 204(l) of the Immigration and Nationality Act (INA), which provides protection to surviving relatives of deceased petitioners. “The wife will be eligible for relief under INA 204(l), as she was living in U.S. when the qualifying relative (her husband) died, and continues to reside in the United States at the time of seeking relief,” Menon explained. However, there is still no certainty with this option either, as “DHS may decline to provide relief if it determines... that doing so would not be in the public interest.”
Peculiar case of Srinivas Kuchibhotla
Menon concluded charting his course citing an apparent “precedent”, saying, “Srinivas Kuchibhotla was shot as part of a hate crime. His widow Sunayana Dumala had her visa status in jeopardy due to his death as he was on H1B. She left for India due to this. A US politician intervened and helped her obtain a 12-month employment authorization document.”