Murthy Success Story: Previously Denied H-4 Nunc Pro Tunc and I-485

Our firm is pleased to share with MurthyDotCom and MurthyBulletin readers another of our recent success stories. In this case, attorneys at the Murthy Law Firm were able to overcome both an H-4 and an I-485 denial. Our client has graciously agreed to allow us to report this case. Neither case details nor client information is ever shared without a client’s permission. This client was pleased with the successful result, and hopes that, through sharing this information, other families may avoid the problems that were faced by this family. When our office was approached by this individual, the I-485 application had been denied. An earlier H-4 nunc pro tunc filing had also been denied.

Common Mistake of Not Extending H-4 Status

Earlier articles can be found on MurthyDotCom that reveal to our readers the common oversight of not requesting to extend H-4 status. This happens primarily because individuals simply do not know that it is necessary to specifically request extension of H-4 status prior to the I-94 card expiration for individuals who are within the United States. The potential solution is to request acceptance of a late-filed H-4 extension, in what is known as a nunc pro tunc request.

In this case, the H-4 spouse initially entered the United States in 2001. The H1B spouse extended status, and the H-4 spouse did not. However, the couple traveled abroad prior to the expiration of the H-4 spouse’s status. They both applied for visas at the consulate abroad and reentered the United States. The H-4 spouse was given an extended date on the I-94 at the port of entry, based on the H1B extension. This is the correct procedure, and provides one option for the H-4 spouse to extend status by travel. This provided the H-4 spouse with valid status until 2005.

The H1B spouse extended H1B status again when needed, but the H-4 spouse did not know to do so. The couple did not travel and, thus, the H-4 fell out of status in 2005.

First Attorney Did Not Warn or Notice the Problem

The couple’s prior attorney (not affiliated with the Murthy Law Firm), who had been responsible for the H1B filings, did not ask about the existence of any family members or dependents as part of the H1B information-gathering process. The forms used to request H1B information did not contain any warnings or references to the need to file extensions for H-4 family members.

This attorney also worked on a labor certification and I-140 petition filed on behalf of the H1B employee / beneficiary. The I-140 referenced the family members, which by then included a young child as well as the spouse, as part of the data requested for that form. Even when the attorney became aware of the existence of the spouse, however, no questions were asked about the spouse’s status. This is important, because the I-140 was filed less than 180 days after the spouse’s H-4 status had expired. Had this status lapse been identified at that time, the H-4 spouse would have had the option of reinstating status simply by traveling abroad, applying for a new H-4 visa stamp, and obtaining a new I-94 card at the port of entry. Once the status lapse exceeded 180 days, this option was problematic, as it would trigger a three-year or ten-year bar to reentry, based upon the length of unlawful presence in the United States.

Second Attorney Notices Problem – Unable to Fix It

A second attorney (again, not affiliated with the Murthy Law Firm) worked on the couple’s application for adjustment of status (I-485) filings. The attorney asked for copies of valid I-94 cards establishing lawful status, as is standard in I-485 cases. The H-4 spouse only had the expired I-94. The attorney identified the problem and took proper action by filing an H-4 case requesting nunc pro tunc approval. While this was pending, the couple filed their I-485 applications.

Unfortunately, the H-4 nunc pro tunc case was denied. The attorney filed a motion to reopen (MTR), which was also unsuccessful. The attorney then advised the couple to wait and see what would happened with the still-pending I-485.

Primary’s I-485 is Approved; H-4 Spouse’s I-485 is Denied

The U.S. Citizenship and Immigration Services (USCIS) approved the I-485 for the primary spouse as part of the routine process, about one and a half years after the I-485 filing. An interview was set at the local USCIS office for the expired status of the H-4 spouse. The officer identified the status problem and, in an apparent effort to find a basis for approval, requested a letter from the first attorney stating that the failure to maintain status was not the fault of the foreign national. The attorney would not issue the letter and, thus, the I-485 was denied.

Murthy Law Firm Obtains H-4 and I-485 Approvals

The individual came to the Murthy Law Firm after receiving the spouse’s I-485 denial. We simultaneously filed an H-4 case requesting nunc pro tunc approval, as well as an MTR on the I-485 case. Both of these filings were approved.

The nunc pro tunc case reflected the previous efforts to address the status problem. We argued that the first attorney had failed to provide proper warnings and advisements to the H1B spouse regarding the need to extend the H-4 spouse’s status. In support of this claim, we used the copies of the data collection forms used by the attorney, which the client fortunately had retained. The absence of appropriate mention and advisement regarding family members was used in support of the nunc pro tunc claims.

Our firm also argued that the attorney had missed a chance to catch and remedy this error, at the point of the I-140 petition filing. As mentioned above, the I-140 filing was made while the H-4 violation was still less than the 180-day period of unlawful presence. This compounded the failure to advise the H1B client regarding the procedures for avoiding the three-year bar for H-4 family members.

Our attorneys presented evidence of the efforts to address the problem, the fact that the family had expanded to include a U.S. citizen child, and that the former H1B spouse was now a U.S. permanent resident. We discussed the consequences to this young family if the nunc pro tunc request was not granted. We included family pictures, as well as other evidence that the applicant was deserving of favorable discretion and consideration from the USCIS.

In the end, the H-4 nunc pro tunc case was approved, with an I-94 that was backdated by more than two years. This reinstated our client’s H-4 status. This proof was forwarded to the USCIS local office to supplement our pending I-485 MTR. The local USCIS approved the motion and I-485 application for our client. Our client, who potentially was subject to a ten-year bar on reentering the United States, is now a U.S. permanent resident.

Conclusion

As you can imagine, we at the Murthy Law Firm were delighted with the successful outcome of this case. It can be difficult to surmount such problems, particularly when the USCIS has already denied a prior nunc pro tunc request. MurthyDotCom and MurthyBulletin readers are reminded to double check their nonimmigrant status I-94 cards for the expiration dates. If the date on your card has been reached, and there is no other legal basis in place for remaining in the United States, then legal advice should be sought immediately, as quick action is required.

A dependent’s status does not automatically extend with the primary applicant’s H1B extension filing. This erroneous assumption is a common mistake that often does not have a simple solution. The best way to minimize the anxiety and expense of fixing such an oversight is by choosing an experienced immigration lawyer for your case. Getting another opinion on your case or guidance on your spouse’s situation is possible through a consultation with the experienced immigration attorneys at the Murthy Law Firm. It is also important to continue to stay informed about immigration laws and policies, in order to better understand information provided by your attorney, and to know when to ask questions about your immigration matters.

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