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Success for H-1B Filed Nunc Pro Tunc

November 8, 2012

Passport ClockFiling an H-1B Nunc Pro Tunc petition may help you avoid difficulty getting an approved H-1B visa if you did not maintain your visa status, or your status has expired. The general rule in these cases is that a petition for a change of nonimmigrant visa status will be denied for a foreign national who has failed to maintain status or whose status has expired before the H-1B petition was filed.

What is Nunc Pro Tunc?

Nunc Pro Tunc is an exception to this rule in certain circumstances at the discretion of the USCIS if all of the following four criteria can be met: 1) The reason for the delay in filing the visa petition must have been due to extraordinary circumstances beyond the control of the employer or employee; 2) The employee must not have any other visa status violations; 3) The employee must be a bona fide nonimmigrant; 4) The employee must not be in removal proceedings.

What Should a Nunc Pro Tunc Petition Consist of?

Our firm has had several successes in the past filing H-1B Nunc Pro Tunc petitions and obtaining discretionary approval from the USCIS. In one such recent situation, we represented a company that sought to file a petition for a prospective employee whose F1 visa status had already expired without an H-1B petition having been timely filed before the expiration date. We were able to get an H1B approved by establishing to the satisfaction of the USCIS that the circumstances of that case merited Nunc Pro Tunc discretion.

Strategy for filing Nunc Pro Tunc

In this case, we established that our client company had no control over the circumstances of the original filing. Our petition included evidence to establish that the failure to file a timely application was due to extraordinary circumstances beyond the control of the applicant or petitioner.

Establishing extraordinary circumstances

We showed that the original petition was filed by the first previous employer, and then that employer was acquired by the second previous employer. Significantly, the asset purchase agreement omitted the beneficiary from the list of continuing employees that were disclosed to the purchasing entity, the second employer, although the beneficiary was at that time employed by the first employer pursuant to OPT. Subsequently, the second employer was acquired by the current petitioner, our client company. The petitioner reviewed the beneficiary’s employee file and could not locate the I-797A from his original approval. The petitioner then requested a duplicate copy from the USCIS that same month so that it would have the beneficiary’s paperwork in order.

The petitioner was thus two entities removed from the original company that failed to request a change of status for the beneficiary. As such, it had no control over the circumstances of the original filing, which occurred two years before. It took steps to remedy its missing paperwork for the beneficiary after reviewing his file.

Furthermore, several facts regarding the original petition indicated that it was intended to request a change of status for the beneficiary instead of consular notification. The original filing had been attached as an exhibit, the receipt number of beneficiary’s EAD application was provided where indicated on the form. Providing the EAD application receipt number in this section instead of indicating “N/A” suggested that the original petitioner intended to request a change of status, since that or an extension are the only reasons why information would be provided in this section.

In addition, the I-129 provided all of the beneficiary’s information pursuant to his then-current OPT employment with the petitioner, indicating a change of status to H-1B from OPT. Finally, the original petitioner’s support letter suggested that a change of status was the original intention as it stated that the beneficiary was currently in the United States under F1 status and was authorized to work, and that the original petitioner requested three years to enable the beneficiary to work for the company. This, coupled with the EAD extension filed for the beneficiary that granted him a 17 month STEM extension, indicated that a change of status for him was desired by his original petitioning employer.

Establishing the Employee’s Eligibility for Discretion

We established that the beneficiary had not otherwise violated his nonimmigrant status. Since the approval of the original petition, beneficiary had worked continuously and without interruption as his petitioning employer has changed hands twice. The beneficiary’s paycheck stubs were attached to show that he continued to work in compliance with the requirements of an H-1B visa. In addition, the beneficiary’s EAD extension lasted thirteen months past the start date of his original H-1B validity period. Thus, he held work authorization for a significant period of time after the date to which his change of status should have occurred. We established that the beneficiary remained bona fide nonimmigrant and not the subject of removal proceedings. The beneficiary did not have an approved immigrant petition, nor had he filed for permanent residency. He thus remained a bona fide nonimmigrant and was not subject to removal.

If you are a prospective H-1B employer or employee and you have an issue involving failure to maintain status or expiration of status, Nunc Pro Tunc discretion may be a remedy for you.

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