Adjustment of Status for Nunc Pro Tunc Asylees

As I explained in a previous blog post, there are a variety of ways that derivative asylees may lose their eligibility to file for adjustment of status. This can happen, for example, when the principal asylee becomes a U.S. citizen (or dies), or where the derivative asylee gets married. In these situations, while the derivative asylee does NOT lose asylum status, they do lose the ability to file for adjustment of status, mainly due to technical reasons that are found in the U.S. Immigration laws and regulations. In order to provide relief from this unfortunate situation – which in my experience is usually due to circumstances beyond the applicant’s control – U.S. Immigration law provides these asylees with the legal ability to file a Nunc Pro Tunc asylum application, which, if approved, will provide the derivative applicant with a grant of asylum in their right and in their own name.

Assuming that the Nunc Pro Tunc asylum applicant is not inadmissible (for having committed certain acts or otherwise violated U.S. immigration law), the applicant may be eligible to apply for permanent residence (a Green Card) through the filing of Form I-485, Application for Adjustment of Status, if he or she meets the following additional requirements:

• The applicant is physically present in the U.S. at the time of filing the Form I-485;
• The applicant has been physically present in the United States for at least one year after the date that asylum was granted;
• The applicant continues to meet the definition of a refugee, or to be the spouse or child of a refugee, or has obtained a Nunc Pro Tunc asylum approval;
• The applicant has not firmly resettled in any foreign country;
• The applicant’s grant of asylum has not been terminated;
• The applicant is admissible to the U.S. for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief; and
• The applicant merits a favorable exercise of discretion.

In regards to the 1 year of physical presence requirement, which I have italicized above, note that since the Nunc Pro Tunc asylum application is granted “nunc pro tunc” to the date of the original approval (ie. the principal’s approval which formed the basis of the derivative asylees asylum status), the applicant may compute the 1 year period of physical presence from that date; not from the date of the approval of the Nunc Pro Tunc application. In just about every Nunc Pro Tunc case that I have ever worked on, the original grant of asylum was already several years old by the time we filed the Nunc Pro Tunc asylum application. This means that most Nunc Pro Tunc asylum applicants will have already fulfilled their 1 year of physical presence on the same date that they receive their Nunc Pro Tunc approval notice (assuming of course that they were in fact physically present in the U.S. for at least one year). And, again, provided that the applicant can meet all of the other requirements above, the Nunc Pro Tunc Asylee can immediately file an I-485 application for adjustment of status, without having to actually wait out the 1 year.

If you have any questions or need assistance with the filing of your I-485 Application for Adjustment of Status based upon your approved Nunc Pro Tunc Asylum application, call U.S. Immigration Lawyer Sean D. Hummel to schedule a consultation today (954) 385-3111.

Special Note. The information on this blog is of a general nature and is not intended to answer any individual’s legal questions. Do not rely on the information presented in this blog to address your individual legal concerns. If you have a legal question about your individual facts and circumstances, you should consult an experienced U.S. Immigration Lawyer.