Murthy H1B Nunc Pro Tunc Success for Former TVU Student

The Murthy Law Firm is pleased to report that we have recently been able to help a former Tri-Valley University (TVU) student successfully obtain a change-of-status approval from F-1 to H1B after the closure of TVU. The Murthy Law Firm used a nunc pro tunc (NPT) argument to convince the U.S. Citizenship and Immigration Service (USCIS) to forgive the status violation created by the TVU closure, and issue an H1B approval for a change of status (with I-94 attached to the approval notice). The Murthy Law Firm does not reveal the identity of any client or the specifics of a case without the client’s prior written consent. The former TVU student described here graciously agreed to share the facts of his case for the benefit of MurthyDotCom and MurthyBulletin readers in the hope that other former students may be able to legally remain in the United States and similarly obtain changes of status.

Background: Tri-Valley University

As regular readers of MurthyDotCom and the MurthyBulletin are aware, TVU was the subject of a widely publicized investigation and raid by U.S. Immigration and Customs Enforcement (ICE). As a result, TVU has ceased to function as an academic institution. The Student and Exchange Visitor Information System (SEVIS) registrations of all TVU students were terminated immediately prior to the raid. This action resulted in the TVU students losing their F-1 status abruptly; many were placed in removal (deportation) proceedings. Enforcement efforts against these students continue as of this writing. A summary of some of ICE’s allegations of wrongdoing on the part of TVU were discussed in our news article, Allegations Against Tri-Valley University: Complaint for Forfeiture of Properties (11.Feb.2011).

Initial Student Enrollment

Prior to enrolling at TVU, the individual in the case discussed here had attended another U.S. university in valid F-1 status as a full-time student. He completed his degree at the first school. After completion of the degree, he decided to continue as a student at TVU. Separately, the student was also the beneficiary of an approved H1B petition. Prior to the TVU raid and closure, however, he held F-1 status and an active SEVIS registration through TVU.

Attempt to Transfer After Raid

Following the ICE raid on TVU, the student was faced with the same dilemma regarding immigration status as many other former TVU students. In order to continue his education, and maintain immigration status, our client considered transferring to a different university within the United States. He tried to transfer to another educational institution and to be reinstated in SEVIS. Like many others at that time, however, he was told that SEVIS would not or could not release his student record from TVU. This freeze of his record prevented the new school from transferring him through the same SEVIS registration and continuing his F-1 status in the United States. This prevented fixing the problem he was facing from within the U.S., which would have allowed him to keep his F-1 status.

Murthy Takes Action: Case Approved

The former TVU student contacted the Murthy Law Firm for assistance, as have many other former TVU students. Given that the individual had a previously-approved H1B petition, and did not need to wait for the next H1B cap filing season, we looked to the option of changing our client’s status to H1B. Fortunately for him, he also had a willing employer / sponsor for an H1B position.

The problem that we faced was that this individual’s status as an F-1 student had been terminated with the raid and closure of TVU. It is generally necessary to be in a valid nonimmigrant status at the time of filing in order to request and obtain a change of nonimmigrant status from within the United States. An attorney from the nonimmigrant section of the Murthy Law Firm executed a strategy using a nunc pro tunc argument to request that the USCIS accept the change-of-status request after termination of our client’s F-1 status. The sudden nature of the school closure and status termination, among other factors, made it appropriate to request that the USCIS forgive the brief gap in our client’s status.

Accordingly, it was requested that the USCIS issue an H1B petition approval, with the I-94 card attached as approval of the change of status. The other alternative, generally necessary for filings after a gap or lapse in status, is an approval for consular notification, which requires one to depart the U.S. and apply for an H1B visa “stamp” at a U.S. consular post abroad. The uses of nunc pro tunc filings were discussed in our news article, Nunc Pro Tunc H1B and H-4 Cases Approved (08.Sept.2006).

We are delighted to share with our readers that, in this case, the USCIS approved the H1B petition as well as the requested change of status. Based on the approval, this student transitioned immediately into H1B status within the United States, able to start working with his H1B employer effective immediately. In this case, there was no need for the foreign national to leave the United States to apply for an H1B visa at a U.S. embassy or consular post abroad.

Fast Action Likely Helped in this Case

We at the Murthy Law Firm are pleased to share this positive outcome with our readers. When TVU students first began to contact our firm following the ICE raid of TVU, there was a great deal of uncertainty and fear. This continues for those students who have not yet departed the United States or otherwise addressed their loss of status. In order to request nunc pro tunc relief, and request that any status “gap” be overlooked or forgiven, it is necessary to account for the reason for the status break as well as the length of time it took to try to fix the issue. The client in this case acted promptly to address his situation; he did not linger or hide from it. We have other clients who took similar steps immediately after the TVU raid and were similarly successful.

Murthy Law Firm Available to Help Former TVU Students

In February 2011, the Murthy Law Firm held a free teleconference for the benefit of former TVU students to discuss possible options. Subsequently, attorneys Sheela Murthy and Aron Finkelstein were invited to present the case on behalf of former TVU students, articulating their issues and concerns before DHS and SEVP officials at the Embassy of India in March 2011.

All former TVU students, who still are in the United States but have not yet addressed their immigration status issues, need to determine a proper and swift course of action. ICE is still on the lookout for former TVU students. These former students can be – and many will be – placed in removal (deportation) proceedings. For some, nunc pro tunc requests may still be possible, if there are available statuses for which they are potentially eligible, and valid explanations for the delay in filing between the raid at the end of January 2011 and the time the nunc pro tunc request is made.

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.