Murthy Success Story: H-4 Nunc Pro Tunc Reinstatement

Long-time readers of MurthyDotCom and the MurthyBulletin have read previously about nunc pro tunc (NPT) reinstatement of status. The most common example of an NPT filing involves reinstating an H-4 spouse who does not realize that an H-4 request for extension of status (EOS) requires a filing separate from the principal’s H1B. The solution often is found in an NPT submitted with the late filing, which requests the U.S. Citizenship and Immigration Services (USCIS) grant backdated status reinstatement. A twist on this type of filing is described here. In this case, the Murthy Law Firm obtained an H-4 NPT approval of this type after the H-4 spouse had departed the United States.

As always, we at the Murthy Law Firm keep all client information in strict confidence. Any case-specific information provided is with the permission of the client. We appreciate the generosity of the individual in this case for allowing us to share this story with our readers.

Typical Mistake: Failing to File the H-4 EOS

This case started in a fairly typical manner. The individual who later would seek the Murthy Law Firm’s help, held H1B nonimmigrant status. He got married and his wife obtained an H-4 visa at a U.S. consulate and entered the United States in H-4 status. When it was time to extend the principal’s H1B status, he updated his client intake form at the request of his attorney at the time. Unfortunately, he failed to note his new marital status.

The H1B status holder in this case was unaware of the need for a separate filing by his spouse to extend her H-4 status. Like so many other foreign nationals, he assumed his wife would be in status as an H-4 dependent, as long he maintained or extended his H1B status. He had updated his other employment records to reflect his marriage and thought he had provided his H1B-sponsoring employer with everything needed regarding his spouse and his marital status.

Problem Not Discovered at I-140 Filing Stage

The husband’s permanent residence (“green card”) case later reached the I-140 employer petition stage. The I-140 requires spousal data and the H1B principal’s information was updated to reflect his marriage. Unfortunately, while the I-140 included his wife’s name, her status was not considered at that time. It was not until the next time the husband had to extend H1B status that his wife’s expired H-4 status came to light.

H-4 Spouse’s Departure Triggers 10-Year Bar

The H-4 spouse and the couple’s baby departed the United States before the prior immigration attorney in this case reviewed her information. Only then was it discovered that the wife’s H-4 status had lapsed more than a year prior to her departure from the U.S. The H1B principal was correctly advised that his wife was barred from reentry to the U.S. for ten (10) years as the result of her departure from the U.S. after a period of unlawful presence in excess of one year.

Murthy Law Firm Contacted after Ten-Year Bar Triggered

The Murthy Law Firm was contacted by the principal H1B holder in this case after learning the devastating news regarding his wife’s inability to return to the United States. Our new client’s wife was abroad with the couple’s 14-month-old child, who was not coping well with the conditions in her parents’ home country. The young child had been in and out of hospitals since arriving in India, and needed to return to the United States.

Murthy Strategy: Rewrite the Past with Nunc Pro Tunc Filing

Usually, Form I-539, requesting an extension or change of status, is filed for individuals who are in the United States. The general rule is that one must be in status in order to make such a filing and obtain an approval. Status is only held when within the U.S. In late-filed cases, however, the USCIS is asked to forgive the lateness of the filing. The nunc pro tunc concept allows the USCIS to issue a retroactive approval that is treated as if it was filed at an earlier time.

The Murthy Law Firm made a novel and creative argument that the wife in this case continued to be eligible to file the I-539 even from outside the United States. We argued that, because she otherwise fulfilled the requirements for a nunc pro tunc filing, the USCIS must accept the application as if it had been filed while she was still in the U.S. We also requested that the H-4 extension of status petition be expedited based on the child’s health problems.

Murthy’s Arguments for H-4 NPT Extension Approval

To show eligibility for the late filing, the Murthy legal team argued that the couple reasonably believed that the wife’s status was tied to her husband’s, with no need to make a separate H-4 filing. This was based upon their initial experience with obtaining the H-4 visa and H-4 entry to the United States. We presented proof that the wife in this case had suffered a difficult pregnancy. Her attention therefore was focused on her pregnancy and new baby, and she entrusted her husband to address all her immigration matters. We showed that the husband’s mistake in not updating his H1B intake form correctly was compounded by other missed opportunities by the prior attorney to identify the wife’s status problems. We also argued humanitarian issues, as the couple’s U.S. citizen daughter was having health concerns in India and her doctor had recommended their immediate return to the United States.

It was requested that the USCIS approve the case for the time between the wife’s last H-4 expiration date and her departure from the United States. We requested H-4 status only for the time when she had been in the U.S., and would otherwise have been eligible for such H-4 status, had she only known she needed to file Form I-539 for her extension.

Retroactive H-4 Approval Reverses 10-Year Bar!

The USCIS agreed with the strategy and arguments presented by the Murthy Law Firm in this case, and approved the H-4 extension of status for the spouse. The benefit of the approval is that it rewrote the past, and gave our client H-4 status retroactively. This remedied her past status violation. By eliminating the period of unlawful presence, we were able to also eliminate the ten-year bar to her reentry to the U.S. This cleared the path for her to return with the child and for the family to be reunited.

We are very pleased with this result that brought this family back together. MurthyDotCom and MurthyBulletin readers who may have made similar mistakes regarding H-4 or other nonimmigrant filings are encouraged to contact the Murthy Law Firm to consult with an attorney. The attorneys at the Murthy Law Firm can provide advice in such cases and, where appropriate, can provide legal assistance in an effort to address problems of this nature.

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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.