Nunc Pro Tunc Asylum = applying for asylum in your own right
As I explained in a previous blog post on Nunc Pro Tunc Asylum procedures, sometimes Derivative asylees are cut off from their ability to adjust status and obtain permanent residence through their Principal asylee because of something that happened after they were granted asylum.
For instance, if a Principal asylee dies or naturalizes, the Derivative asylee (usually a child or a spouse) no longer meets the definition of a “refugee” and is therefore prevented from adjusting status through their (former) Principal. Similarly, if a child ages out (turns 21) or marries, he or she no longer meets the definition of “child” under the law and is also blocked from adjusting status through his or her Principal. Even though, when learning of this, it is likely to strike fear in the heart of the Derivative asylee, the good news is that it’s not the end of the world and this situation can be fixed by filing a Nunc Pro Tunc I-589 Asylum application.
SIDEBAR: “Nunc Pro Tunc” is just a fancy-sounding Latin phrase which, in the law, means “now for then.” In a real-world context, it applies to acts that are allowed to be done after the time for doing them under the law has already passed or expired. And thus, when an action is taken nunc pro tunc, that action will be given retroactive legal effect, as if it had actually been performed on a specific earlier date.
Old USCIS Policy. Very frequently, Derivative asylees do not even know that they have lost their eligibility and they file their I-485 applications for adjustment of status, only to later find out from USCIS that they are no longer eligible to adjust. In previous years, USCIS officers who encountered such ineligible applicants would issue a denial letter (without refunding the filing fee, of course) and explain that the applicant was ineligible because they no longer met the definition of “refugee” or “child” under the Immigration and Nationality Act and thus that they would have to file for asylum “in their own right” through filing a Nunc Pro Tunc asylum application. Coincidentally, this is how some of my clients first discover my blog posts – while researching the meaning of “Nunc Pro Tunc” – and learn how my firm can help them navigate their application through USCIS.
New USCIS Policy. More recently, however, USCIS has changed its policy and, instead of issuing an outright denial of the I-485 adjustment application, will issue a Request for Evidence giving the applicant an opportunity to file a Nunc Pro Tunc I-589 asylum application, and will allow the Asylum Office to make a decision on that I-589 application before issuing a decision on the adjustment application. This is a huge benefit to adjustment applicants because it allows them to keep their place in the adjustment line and saves them the expense of having the refile and pay the fee for their adjustment of status application at a later date.
Ineligible Derivative Asylees with Pending Adjustment Applications. Occasionally, I am contacted by clients who have pending I-485 applications for adjustment of status who, before receiving any notification from USCIS, learn that they are ineligible to adjust status and must apply for asylum in their own right. For example, after an adult child derivative dependent’s father (the principal asylee) becomes a naturalized citizen, the adult child is doing research on their own or is tipped off from a friend, regarding whether their parent’s naturalization will have any effect on their adjustment application. And during the course of their research learn that they are ineligible and that their adjustment application will probably get denied.
Options for Ineligible Derivative Asylees. Derivative asylees who have pending I-485’s under these circumstances have at least two options: (1) wait for USCIS to issue a Request for Evidence (RFE) and then file the Nunc Pro Tunc asylum application; (2) file a Nunc Pro Tunc asylum application as soon as possible and send the asylum receipt notice to the USCIS office where the I-485 is pending to request deferred adjudication. Some applicants prefer the “wait and see” approach of option (1) because they may think that USCIS will still approve their adjustment application; others would rather be proactive and get a head start on the adjustment process, believing that they would only waste more time by waiting for an RFE. In either case, my recommendation is that individuals in this situation contact an experienced U.S. Immigration Lawyer, such as myself, to discuss their options before taking any action.
If you have any questions about your pending adjustment of status application or you would like to apply for Nunc Pro Tunc asylum, contact U.S. Immigration Lawyer Sean D. Hummel to schedule an appointment to discuss your case and go over your options.
