Murthy Success Story: The Undeterred Path to H-4 Nunc Pro Tunc Reinstatement24 Jul 2023
The Murthy Law Firm recently succeeded in getting an H-4 spouse’s nonimmigrant status approved with a nunc pro tunc request and removing her ten-year inadmissibility bar. This client graciously granted permission for the Murthy Law Firm to share her story to help others who face similar challenges.
Common Cause of Status Problem for H-4 Spouses
All too often, attorneys at the Murthy Law Firm hear from H-4 spouses who failed to realize that an extension of the principal H1B worker’s status does not automatically extend the status of the dependent spouse. If an H-4 spouse neglects to file an application to extend status before the I-94 expiration date, the individual generally falls out of status and begins to accrue unlawful presence. As discussed in the MurthyDotCom NewsBrief, Differences Between: Lawful Status, Period of Authorized Stay, & Unlawful Presence (19.Apr.2022), unlawful presence can lead to a 3- or 10-year bar.
Nunc Pro Tunc Option
One possible solution for an H-4 dependent who falls out of status is to apply for an approval nunc pro tunc (NPT) – a Latin phrase that means “now for then.” By filing the NPT with the USCIS, the goal is to request that the case be approved with a backdated I-94 so that there is no gap in the H-4’s legal status in the U.S. More details on this concept are discussed in the MurthyDotCom InfoArticle, Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S. (01.Feb.2018).
Failing to File the H-4 Extension of Status
The individual who would later seek the Murthy Law Firm’s help married an H1B nonimmigrant and was issued an H-4 nonimmigrant visa at a U.S. consulate. The H-4 visa was based on the H1B spouse’s then-valid H1B petition, and the H-4 spouse was admitted with an I-94 valid though the expiration date on that petition. However, between the H-4 spouse’s visa interview and her arrival in the United States, her husband’s H1B extension was approved. Unfortunately, the couple did not realize that the H-4 spouse’s I-94 did not reflect the extended validity period listed on the H1B holder’s new I-94. This resulted in the H-4 spouse’s I-94 expiring without either of them noticing, and she fell out of status and started to accrue unlawful presence.
Error Discovered Too Late
Months later, the H1B holder’s employer started working on a new H1B extension and discovered that the H-4 spouse had been out of status for more than six months. Because the H-4 spouse accrued more than six months of unlawful presence, she would be subject to a three-year bar if she left the U.S. The spouse was nearing the end of a difficult pregnancy and could not risk travel at that time.
The couple attempted to remedy the situation by having the H1B holder’s employer file an H-4 extension of status with a NPT request, but this was denied by the USCIS. The employer then tried filing a second NPT, but the request was again denied by the USCIS.
H-4 Spouse Triggers a Ten-Year Bar
At the time the initial NPT requests were filed, the H-4 spouse mistakenly believed the pending H-4 applications placed her in a period of authorized stay. However, because she was not in status at the time the H-4 application was filed, those pending applications provided no protection. So, by the time she departed the U.S., she had accrued more than one year of unlawful presence, automatically triggering a ten-year bar.
Upon returning to her home country and discovering that she was now subject to a ten-year bar, the spouse applied for a nonimmigrant visa (NIV) waiver at a U.S. consulate. However, the U.S. consulate denied the waiver request. After the NIV waiver denial, the couple contacted the Murthy Law Firm for help.
Murthy Strategy: A Multi-Pronged Approach
When the H-4 spouse engaged the Murthy Law Firm, she was in a difficult predicament, which required a multi-pronged strategy to resolve. The Murthy Law Firm first filed a new NIV waiver at the U.S. consulate so the H-4 spouse could reenter the United States. At the same time, the Murthy Law Firm filed a new NPT to request reinstatement of the spouse’s H-4 status. The Murthy Law Firm argued that the H-4 spouse’s failure to file a separate H-4 extension of status was due to circumstances beyond her control and highlighted her lack of knowledge of immigration law and that she was dealing with an incredibly difficult pregnancy. The NIV waiver was granted, but the NPT unfortunately was denied.
Murthy Law Firm Files a Motion to Reopen
The H-4 spouse reentered the U.S. with the NIV waiver, but she remained subject to a 10-year bar. The Murthy Law Firm was not finished fighting for the H-4 reinstatement. The NIV waiver alone would not allow the H-4 spouse to apply for certain immigration benefits for which she would be eligible otherwise. The H-4 spouse also would be required to apply for a new NIV waiver each time she needed a new visa for the next ten years.
The Murthy Law Firm filed a motion to reopen (MTR) on the NPT, arguing that the USCIS failed to provide a legally sufficient reason for denying the NPT in light of the H-4 spouse’s circumstances. Persuaded by the Murthy Law Firm’s arguments, the USCIS granted the MTR and reopened the NPT.
Still, the fight was not yet over. The USCIS then issued a request for evidence (RFE) on the NPT, again asking for explanation of the extraordinary circumstances that led to the H-4 spouse’s failure to file a timely extension. The Murthy Law Firm successfully overcame this RFE, and the H-4 spouse’s NPT ultimately was approved, thereby reinstating her H-4 status and removing her ten-year bar.
Despite all of the obstacles, the family never gave up fighting to try to correct this oversight, and the Murthy Law Firm is thrilled to have assisted them in achieving this successful outcome. Nevertheless, an ounce of prevention is worth a pound of cure, and an H-4 dependent should always remember to file a separate extension of status request to avoid similar issues. It is important to keep in mind that, since the NPT is a discretionary approval, there is no guarantee of a successful outcome, as each case is different. The Murthy Law Firm works hard to keep families together and to help families achieve their American dream of living and working in the United States.
The Murthy Law Firm never reveals details of any case handled by our firm, nor the identity of any client, without first obtaining express consent. We appreciate the generosity of our client in allowing us to use this case as an example to our readers. Please note that all cases are different. Even with cases that appear to be similar, past success does not guarantee a favorable result.
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