TSC Update : November 4, 2002
Posted Nov 22, 2002

Recently released notes of a meeting between the Texas Service Center (TSC) and the American Immigration Lawyers Association (AILA) provide some insight into I-140/I-485 concurrent filing issues, problems with fingerprinting, and potential extensions of stay for out-of-status H-4s. This information is provided as a service to MurthyBulletin and MurthyDotCom readers who may have cases pending at TSC.

Concurrent I-140/I-485s

Questions have arisen with respect to the processing of the I-765 (Application for Employment Authorization Document), filed with the concurrently filed I- 140/I-485. TSC states that if the I-140 cannot be adjudicated within 60 days of receipt, they will at least do a preliminary review of the I-140 to determine it is not frivolous, meaning, that it is not without legal basis. Sometimes this quick review may be all that is needed to actually approve the I-140 and, in such case, TSC will issue the I-140 approval. The I-765 and the I-131, requesting advance parole, will be adjudicated upon the finding that the I-140 is not frivolous or upon the approval of the I-140, if the INS decides to approve the I-140 petition after preliminary review.

The processing goal is 60 days for I-765s and I-131s.

Missing Fingerprint Notices

Many I-485 applications filed with TSC between May and December 2001 did not receive fingerprint notices. In order to identify those needing fingerprinting, TSC is reviewing the cases filed during that period. Fingerprinting will be scheduled for the cases that were missed. It is not possible to make an individual request for fingerprinting.

Overlooked H-4s

It is a common problem that H-4 family members are overlooked when extensions / changes of employer are filed for the H1B worker. For a variety of reasons, the failure to extend H-4 status for the spouse and children occurs on a regular basis. Many people assume that since the H-4 is a dependent status, that status would automatically be extended along with the extension of the H1B status for the principal, without requirement of any application. It is often assumed that, as one was able to apply at the consulate without any INS approval, s/he can, similarly, obtain status by extending the H-4 visa stamp in the passport. The consequences of failure to maintain H-4 status can be severe. A person holding an expired H-4 I-94 may have inadvertently overstayed in the U.S. beyond 180 days, thus subjecting him/herself to the 3- or 10-year bar upon departure, while also rendering him/herself ineligible for adjustment of status (I-485). Note that in such cases there are some very limited exceptions to the I-485 ineligibility.

Although the INS regulations provide that an individual must be in status at the time of filing a request to extend status, the INS will sometimes approve an H-4 or other dependent status extension "nunc pro tunc" or backdated to the date it should have been filed. Whether to allow this is entirely discretionary on the part of INS and there are significant risks to filing such requests. Nunc pro tunc extensions should be used only when a mistake has occurred, but there are no guarantees of success. The INS must be convinced that the mistake was through no fault of the foreign national. Not knowing the law is usually never, in and of itself, sufficient reason to obtain a discretionary approval from the INS. One should always pay attention to status expiration dates and to the importance of maintaining status.

TSC has indicated that it will review the facts of each such case and consider a request for Nunc Pro Tunc processing, provided the request is placed on a colored sheet of paper and labeled "Nunc Pro Tunc Request." We take this opportunity to remind our readers of this common mistake. [See also our January 4, 2002 article entitled Start 2002 by Verifying Immigration-Related Dates.]