Nunc Pro Tunc H1B and H-4 Cases Approved
Posted Sep 08, 2006
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The term nunc pro tunc, when translated literally from the Latin, means "now for then." In the world of immigration, it refers to a case approval bearing an effective date prior to the filing of the case. In other words, the approval is backdated, possibly wiping out any negative consequences. This request is made when someone fails to file an application on time or when a timely application is filed incorrectly. We cannot emphasize strongly enough that this type of decision is purely discretionary on the part of the government and one should not rely on such in making any concrete plans.
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Common Problem with H-4 Dependent/s Not Extending Status in U.S.
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We at the Murthy Law Firm most frequently make requests for nunc pro tunc approvals in H-4 (spouses / children of H1B) cases. As described in several earlier MurthyBulletin articles, the need to extend H-4 status is often overlooked. Many have the mistaken impression that the H-4 spouse / children remain in status, as long as the H1B spouse / parent extends his or her status properly. The reason for this misunderstanding is primarily that no H-4 petition is required in order to bring a spouse / minor child/ren to the U.S. from abroad initially. Only the H1B petition approval is needed at the consulate for the dependent family members to obtain the visa stamp and then obtain the I-94 card granting them H-4 status upon arrival in the U.S. When it was still possible to revalidate visa stamps in the passport within the U.S., the problem was compounded further. Many H-4 spouses were able to obtain new H-4 visa stamps based on the H1B approval, without actually extending the H-4 status with the USCIS, as required by law. Thus, they thought that they had done everything required to maintain status when the visa stamp in the passport does not grant legal status in the U.S. In fact, H-4s must maintain valid I-94s, and must file the request for the extension of their H-4 status prior to its expiration.
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An H-4 who finds him or herself in this situation should consult with a qualified immigration attorney. Sometimes, the best approach is to leave the U.S. and return in H-4 status. In some cases, however, this is not an option. If the I-94 has lapsed for 180 days or more, departure from the U.S. will result in the imposition of a 3-year bar to reentry to the U.S. This period increases to 10 years if the I-94 expired a year or more before departure. In the situations where departure is not an option, the nunc pro tunc may be the solution.
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H-4 Nunc Pro Tunc Approved Based on Facts
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The Murthy Law Firm files H-4 nunc pro tunc cases regularly and we are pleased to report positive results. To provide readers with an example, we will describe one such case that fits a fairly common pattern. In this particular case, the husband was in H1B status; the wife was an H-4. The husband changed jobs and obtained the extension of the H1B approval, as required. The immigration work was handled by the husband's company, or its attorney, without discussions or involvement by the wife. The company never advised the couple of the need to do anything to extend the wife's status, as they were only concerned with obtaining an H1B approval for their employee. The couple simply assumed that, if the husband was in status, the wife was in status.
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Additionally, the wife was pregnant while the husband's H1B was being filed, and, following the birth of the child, was focused on the care of the child. She had no reason to think she had to research immigration laws. The wife entrusted these matters to her husband. The husband entrusted the matter to his company sponsor.
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After the wife's status had expired, her husband stumbled across information on MurthyDotCom that made the couple realize their error in not extending the wife’s H-4 status with the USCIS. Travel abroad was not a simple option in this case, as the wife would find it difficult to travel with a young infant and the husband did not want to be separated from his new-born child. Therefore, the couple decided to have the Murthy Law Firm help them to obtain the wife’s H-4 approval by a nunc pro tunc application.
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In our request, we explained the situation, provided affidavits from the couple, documented that the husband had always maintained status and that the wife had no other status violations. Much to the relief of this couple, the case was approved.
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H1B Nunc Pro Tunc Requires Approved LCA for Valid Dates
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Obtaining nunc pro tunc approval of an H1B is much more unusual than doing so in an H-4 case. The simple reason for this is that H1Bs require a labor condition application (LCA) covering the full H1B period. The U.S. Department of Labor (DOL) will not approve backdated LCAs. So, for most H1Bs, nunc pro tunc is not an option. However, once in a while, we encounter a case where it is possible to request an H1B nunc pro tunc with the USCIS.
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The cases for which nunc pro tunc H-1s are possible are those for which an LCA was obtained with the necessary start date, but something went wrong with the H1B case.
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H1B Nunc Pro Tunc Case Approved
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In a recent case, an H1B petition had been prepared by the employer, without the assistance of an attorney. The employer missed the difference between an approval from the USCIS given with a change of status, and one issued for consular processing. In this situation, the H1B petition was approved without an I-94 attached. Thus, the approval of the H1B did not change the status of the foreign national. After the expiration of his previous (student) status, the foreign national was out of status. What he should have done after he received the H1B approval was to travel to the U.S. consulate in his home country, obtain an H1B visa in his passport, and reenter the U.S. in order to gain H1B status via issuance of an I-94 at the port of entry.
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Instead of leaving the U.S., the foreign national began to work for the employer. Both believed that the foreign national held H1B status and was permitted to work, even though the H1B approval stated that it was not authorized for employment in the U.S. Upon realizing their error, they sought our help. To resolve the problem, we filed an amended H1B petition, with the existing LCA, as well as an new LCA for a new work location, and argued that the H1B should be approved with a change of status, nunc pro tunc. We argued that the employer, acting without counsel, made a clerical error that created harsh consequences for the beneficiary. With proper affidavits from the employer and foreign national explaining the situation, and skillful argument and analysis on our part, the USCIS granted the nunc pro tunc H1B. This approval wiped out 18 months of what would have been a period of being out of status and working without authorization.
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Conclusion
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The nunc pro tunc request can be a valuable tool in some difficult situations. We at the Murthy Law Firm have used this option creatively in several instances beyond those discussed here. We appreciate the willingness of the USCIS to forgive certain inadvertent lapses in status in their discretion and based on the facts and affidavits in particular cases. However, we again emphasize that those who obtain these approvals are fortunate, and that it is necessary to have valid proof, strong legal argument, and, in most situations, some humanitarian reason as to why this benefit should be granted. It is best to double check I-94 expiration dates and to consult with a qualified, experienced immigration attorney if there are any questions regarding what needs to be filed to maintain legal status and when it should be filed. Not all situations have the nunc pro tunc option, and not all nunc pro tunc cases are approved.