non pro dunc in asylees

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camus

Registered Users (C)
hi everybody!
It\'s been a long time since I don\'t share experiences or ask questions in this forum.Maybe my doubts have been so ridiculuos, sorry..guys!!!!!!anyways, i have a big doubt right now.
Well , I am a derivative asylee, my father was granted political asylum and I\'ve been with that status for almost 2 years.I\'m already over 21 but I reveived that status before turning 21 and I\'m worry about it. I applied for my adjustment of status the last year( in may) but I didn\'t apply for the non pro dunc( i don\'t know if I wrote it right), well the lawyer said it wasn\'t necesary because i received the benefit before I turn 21 and non pro dunc applies only if you received your asylum after you turn 21.I was wondering if someone really knows about this stuff, is kinda confusing and many lawyers are not sure about this issue. Any experience in this forum with the non pro dunc???? Did I make a mistake not applying for non pro dunc?
 
Hi Camus

The right spelling is "nunc pro tunc". You got the asylum status before turning 21 and that is to remain indefinitely. It doesn\'t matter your age, you will hold the asylee status. Remember, your I-94 says asylum granted indefinitely, there is no age restriction. The "nunc pro tunc" term applies when a derivative asylee reaches 21 before he/she files I-485 for AOS. The question for you is "Were you already 21 when you filed your I-485?" If yes, as I understand you had to send your I-589--be sure to write in big red letters on the bottom margin of I-589 and G-28 "Nunc Pro Tunc". Your application does not have to state your own claim for asylum--you are applying per the "Cummins letter" because you are 21, and therefore cannot adjust status as an asylee without a nunc pro trunc grant of asylum. If you were not 21 at the time of filing for AOS, the nunc pro trunc procedure does not apply.
I found that there is a letter from Associate Commissioner John Cummings back in 1992, saying that the over 21 year old derivative asylee may still AOS, but has to submit I-589 along with I-485 for nunc pro trunc granting of asylum status as a principal applicant. There are also memos on this issue in 1998 and 1999, but the "Cummins memorandum" is the standard. Unfortunately, I don\'t have copy of those memos.
A different and more confusing story is when you were under 21 at the time of filing AOS, but turned 21 while waiting for a visa become available.
I did some search about this a while ago. This is what I found in the Minutes of AILA-NSC teleconference of May 22, 2001.
Procedure to follow when a minor derivative asylum applicant "ages out": If the child is under age 21 years at the time of filing but reaches 21 years of age by the time of adjustment adjudication, please send a copy of the I-589 asylum application, completed and signed by the applicant, to the NSC. It is possible to obtain an asylum grant nunc pro trunc from an asylum office. This approach allows the adjustment application (of the apparently aged-out applicant) to continue to remain pending with the NSC.
Hope this helps.
In your case the important thing is to know if you were 21 at the time you filed your I-485 for AOS. Good luck
 
No Title

You should really contact the asylum office director serving your place of residence to discuss this problem. Technically, people in your situation are required by INS headquarters to undergo the nunc pro tunc process. But some asylum directors are not willing to take this extra work. So you really need to first find out his or her preferences.

Best wishes,
 
still confuse

Thanks for your information and answers Alanpero and Gilbert.I still thinking if I did a mistake or not in applying for my adjustment without the nunc pro dunc.Let me answer your question Alanpero, I was already 21 when I applied for adjustment but my lawyer told me It was Ok in applying without nunc pro dunc because nunc pro dunc is only for cases when you were granted derivative asylum when you were already 21 and if the nunc pro dunc was neccesary I shouldn\'t have received a receipt notice from the INS like I received.If there was a problem with my age out they should have told me...but who knows sometimes de INS makes "human mistakes"..and those kind of mistakes really scare me..I also think that what you are saying sounds reasonable too.Maybe my lawyer is completely lost in this topic......*#%#*##!!!!!( it really makes me angry)...Maybe like Gilbert says, at the end the decision will be made by an officer so maybe for him it doesn\'t matter.
Do you think It\'s ok the way I did it or maybe someday I will receive a letter from the INS saying that I need to apply again because of the nun pro dunc??.
 
Camus

Camus, Check this link http://www.ins.usdoj.gov/graphics/services/refadjust/index.htm. This is what INS says in this regard:
"If you were granted derivative asylee status as the child of an asylee and you are now over age 21 and are unmarried, you should contact the nearest asylum office and request information on filing a "nunc pro tunc" asylum application (using Form I-589)in conjunction with your adjustment of status application (Form I-485)"
In my opinion, if you were already 21 when filed I-485 you had to file a "NPT" asylum application. If that is the case you lawyer made a mistake, and it is apparent that the INS officer also made a mistake. Apparently, your lawyer believes the "NPT" counts from the time of the asylum approval, and that is incorrect.
It is hard to say what is going to happen, maybe everything goes smoothly with no problem or maybe someday they realize that there is something wrong there. Up to now INS has done nothing with your application. They have just received and put on a shelf, and will do nothing until there is a visa available for you. At that time they might realize that there is something wrong there.
If I were you I would check with other attorneys, with proven experience in handling similar cases, and ask for advise on how to proceed. In AILA website there is a message center where AILA members post their experiences in handling different type of cases. A while ago ago I found one member that seemed to be very experienced in handling this type of cases. I have never talked nor contacted her but have her e-mail and phone number (if still active). I wouldn\'t limit to ask only to her, I would get second and third opinions but only with lawyers that have handled this type of cases before. If you are interested, let me know.
The first step is to make it sure you followed the right procedure. Based on what you have explained, my opinion is that you did not.
Good luck
 
wow! now all is a mess

Thanks again for answering and for offering your help Alanpero.It\'s really hard for me to take a decision right now I really need to think carefully what next step to follow.I\'m gonna arrange an appointment with my lawyer one of this days to talk about this issue.It looks like you are the most experience in immigration issues here Alanpero and maybe you can give me one more opinion about this situation: for you, what is the worse it could happen??? I mean, let\'s suppose i do an application again for adjustment of status,writing nunc pro dunc and applying an I-589 again, my question is: Am i loosing all this time that passed for my adjustment to be approved?? or the guys at the INS are going to put my application on my file( cause everybody with pending adjustment application has) and I just keep waiting like i\'ve been doing but without loosing the year and a half i have gained?

This forum is really interesting everybody can learn a lot of things but I think I am the only one with this kind of problem.I never read somebody before talking about the nunc pro dunc so much like us. So everybody is a little old here...am I the only baby-face?? hehe...I also want to know if you know somebody that did nunc pro dunc in this forum??
 
Not at all Camus

Yes, it is really hard to make a decision, and thinking carefully what next step to follow is a very good start. I do not think you are going to lose any time. YOU DO NOT HAVE TO FILE I-485 AGAIN!!, at least I do not think so. Remember, you already have an I-485 application filed with an I-589 apparently missing, that will be resting for years on one of the INS shelves and you can add to the file any document that might be missing before the I-485 is adjudicated or simply wait until INS request for further evidence. I do not see a problem with that, though I am not an expert in this matter.
Remember, that INS has done nothing with your application, they just received it, filed and left on a shelf waiting for the time when a visa becomes available. Until then, nobody in the INS is going to review it or check anything. Therefore, you can update that application with whatever document or information that might be missing. I don\'t think you need to file a new I-485, that would really make a mess of everything.
Question here is if it is better to send the I-589 with the script "NPT" to be included in your I-485 file now or simply wait until INS request for further evidence?, and you need professional advise to find out the best thing to do.
First of all talk to your attorney, ask if he/she knows the Cummings letter. What your lawyer says doesn\'t make sense with what INS has posted in their website.
Search for lawyers with PROVEN EXPERIENCE with NPT cases, and ask for a second, third and fourth opinion, check with the asylum office and then decide on what would be the next step to follow. That is what I would do, if I had the same problem.
Don\'t worry too much Camus, there is a potential problem with your case that needs to be clarified. It could happen that the best thing to do is "do nothing" and wait for the time your application is adjudicated. If INS notice the problem, they will request for further evidence and then you will have to show your I-589, that\'s it!!. I do not recall of anybody posting similar experiences in this Forum.
Good luck
 
For Camus\'s attention

Camus,

The central INS office (at least the asylum branch) has been saying for ten years that people in your situation must undergo the nunc pro tunc process in order to adjust. It specifically says that the date of adjustment will be used to determine if the nunc pro tunc process is applicable.

But experience has shown that some district offices adjust aged out asylees without asking for a new asylum grant. Many officers privately feel that this nunc pro tunc exercise is a waste of every body\'s time. For this same reason, many asylum office directors refuse to grant nunc pro tunc asylum unless asked to do so in writing by the INS office handling the asylee\'s adjustment. Only they have the legal authority to issue asylum grants.

That was the reason I asked you in a previous posting to talk to your asylum director. If he or she is receptive to a nunc pro tunc grant, then go ahead and apply. This is the best outcome because it removes the possibility of your having future problems with the adjustment unit. But if the director is unwilling to consider this, then you have no recourse. If your age does become an issue in the future (when the I-485 comes up for approval), contact the asylum office again. Do not worry. You do not need to wait all over in the adjustment line again. They will backdate it--that is what nunc pro tunc means.

It is not even necessary to use the service of a lawyer. It is quite simple.
 
I think I will wait

I came with the conclusion that maybe is better to wait some time before making a decision.I don\'t want to put my asylum and adjustment application at any risk so I will wait for them to send me a notification or something like that.Maybe like Gilbert says, is not neccesary to apply nunc pro dunc because for the officer that will see my file at the time of my adjustment to be approved is ok .In my opinion it looks also a waist of time.Nunc pro dunc shouldn\'t exist in the first place it gives more work to us and also them.

By the way, I always wondered myself what kind of asylum does everybody has in this forum??....Like we know this forum is for political asylees but I don\'t think all the people really got it because of direct political persecutions, sometimes is because of a religious persecution, in some cases even for terrorism or by culture..etc etc...Mine is because of a direct political persecution. Is there any special classification by the kind of asylum someone has in the approval letter or the Alien number or I don\'t know, somewhere?? in the INS records??....or the INS doesn\'t care about the type of asylum and mix them all together in the same line or they separate them ??...good question ah!!who really knows or have heard about any kind of classification ??
 
my question on nunc pro tunc too

I\'m 19 but i filed i-485 in 1999 but i think it will b 5 more years before i have a approval for i-485. But i was wondering would I have to go to interview by myself of nunc pro tunc or how would it work. Will they just sent me a letter of grant of nunc pro tunc asylum ?
 
Jamie82

I do not think you have to worry about, just wait for your turn. You have an asylum status granted indefinitely, and it is not conditioned to your age, so that is not going to change. Technically speaking, the NPT doesn\'t apply to your case, nor you have to go to interview by yourself, so don\'t worry too much about that, just be alert.
I read in Minutes of meetings between INS and AILA that, in cases like yours, INS is requiring to send the original I-589 to NSC; however, we don\'t have to take that as an official requirement. The best thing to do is just wait, not to worry but be alert. Good luck.
 
Nunc Pro Tunc processing

nunc pro tunc
President Bush will shortly sign a new law that I think will make the age-out problem moot for asylees.

That is one piece of good news for us.

************I am updating this in Spring 2003 for the benefit of anyone who might chance upon this thread. In early 2003, the General Counsel of the INS/BCIS advised that aged out derivative asylees do NOT need to submit a nunc pro tunc asylum request as long as the Form I-485 was pending or or after 8/6/2002, the date the Child Status Protection Act became law*************
 
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Child Status Protection Act HR 1209

Age-Out Protection Bill Cleared for President’s Signature

Cite as "Posted on AILA InfoNet at Doc. No. 02072402 (July 24, 2002) ."

The House of Representatives, on July 22, approved and cleared for the President legislation that addresses the problem of minor children losing their eligibility for certain immigration benefits as a result of INS processing delays. The Senate previously amended and approved the measure on June 13. Under current law, a child’s eligibility to receive a visa or be part of his or her parent’s application is based on the child’s age at the time that the alien relative petition is approved, not the time the petition is filed. Because of enormous backlogs and processing delays, many children turn 21 before the INS adjudicates the petition. In such cases, the child “ages-out” and is ineligible to receive an immediate relative visa or is no longer considered to be part of the parent’s application. The child’s petition is either automatically moved to a lower preference category or the child is required to submit his or her own petition, resulting in years of delays and possible ineligibility.
The “Child Status Protection Act” (H.R. 1209), sponsored by Representatives George Gekas (R-PA) and Sheila Jackson Lee (D-TX), and subsequently broadened and improved by Senate legislation (S. 672) sponsored by Senator Dianne Feinstein (D-CA), provides that the determination of whether an unmarried alien son or daughter of a U.S. citizen is considered an “immediate relative child” (under 21 years of age) will be based on the age of the alien at the time the Petition for Alien Relative (Form I-130) is filed on his or her behalf, rather than on the date the petition is adjudicated, as is the case under current law. The legislation makes similar determinations in the case of permanent resident parents who subsequently naturalize after having filed petitions for their sons or daughters and citizen parents who file petitions for married sons or daughters where such sons or daughters later divorce. In the former situation, the age determination will be made at the time of the parents’ naturalization. In the latter, the alien beneficiary’s age will be determined as of the date of his or her divorce.
For the children of legal permanent residents, or those who are accompanying or following to join on a petition for an immigrant visa, their eligibility will be determined based on the date that a visa becomes available to them, but only if they seek to acquire permanent resident status within one year of such availability.

In addition, the legislation provides age-out protection to alien children who accompany or follow to join parents who have filed for asylum or refugee status.

Finally, Section 6 of the bill provides that the family-sponsored petition of an unmarried alien son or daughter whose permanent resident parent subsequently becomes a naturalized U.S. citizen will be converted to a petition for an unmarried son or daughter of a U.S. citizen, unless the son or daughter elects otherwise.
President Bush is expected to sign the legislation in the near future.
 
President signs Age Out Protection Law

President Bush signed the Age Out Protection Law
 
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