nunc pro tunc now or after I-485 plus few other questions

otterpop

New Member
Hi everybody. First, I want to say I am so glad to find this very helpful forum. I spent about five hours last night searching through it and many of my questions were answered. Thanks to everyone for being so knowledgeable.

I have 4 questions that I couldn't find responses to on this forum, and I am hoping that some of you could help me out. The first one is the most important, so please respond to that one if you feel you don't want to read the rest. Thanks :)

1. I was recently granted asylum as the derivative child. I am 20 years old but I will turn 21 before I am eligibile to adjust to LPR via I-485. It is my understanding that I will have to apply for asylum nunc pro tunc. As doing so does add a delay to my I-485 application, do you think it's best to apply nunc pro tunc now before I am eligible to complete the I-485, or should I wait until I am formally told to apply nunc pro tunc? From what I can tell, the advantage of applying nunc pro tunc now is that I wouldn't go through this delay when I'm trying to adjust status, but the advantage of waiting is that perhaps having a formal notice instructing me to apply nunc pro tunc will make the nunc pro tunc process easier, or more likely to be approved, and will confuse asylum officers less, as compared to applying nunc pro tunc on my own.

Side question: Maybe I need to be over 21 to apply nunc pro tunc, in which case I must wait a few more months?

2. It would be nice to travel outside the U.S. this summer. It looks like the only thing I'd need is a RTD. I'd like to travel to Europe somewhere. However, I read the USCIS memo that states that having a RTD doesn't guarantee that an asylee will be admitted back into the U.S. Does that mean it's better to wait until after I am a permanent resident to travel outside the U.S.? Is having just a RTD enough to get you into the U.S. without problems?

Side question: Does traveling abroad for short (less than 1 month) periods of time interrupt the 1 yearr physical presence in the U.S. requirement? Does traveling outside the U.S. while in asylee status make it harder to adjust status to permanent resident?

3. For those of you who are going through or have went through the I-485 process, did you use an attorney?

4. One of the questions on the I-485 asks if the applicant ever received public assistance, not including emergency medical care. Asylees are eligible to receive certain benefits, and I am considering applying for the health insurance benefit. Is this a bad idea? Or does having health insurance count as "emergency medical care?" I don't really understand what the question is trying to ask.

Thank you SO MUCH!
 
1. If your marital status is single then it sounds like you do not have to undergo the nunc pro tunc process. For determining your need to apply nunc pro tunc they use the date when your parents applied for asylum. If you were under 21 on that date then you would be fine as long as you stay single.

2. Technically everyone (who is not a citizen) is not assured of admission to the United States. Even a green card does not formally guarantee admission. Remember permanent residents are still aliens in the eyes of American law. So do not worry about that particular sentence.

Yes it will break the 1 year period but it will not make the adjustment process harder. You will need to subtract the time you spend overseas from the one year period.

4. As an asylee receiving benefits will not impact your adjustment process. An yes answer will not hinder you. The question is really meant for folks who are not asylees.
 
Thankful, thanks so much for your response. I've read many of your previous responses and I'm glad you responded to my thread!

Are you sure about the nunc pro tunc? At the time my mom submitted her asylum application, I was under 21. At the time of the approval of the asylum application, I was still under 21. However, by the time we apply to adjust status to LPR, I will be over 21. I found this on the USCIS website:

"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)."

Please let me know what you think. I will be very happy if you are correct. In fact, I will donate $10 to some charity if you are right.
 
Yes I am sure.

The law on this was changed in 2002. Under the new law you lock in the date on which your parents file their asylum application. So if you are under 21 on that date the law will consider you to be under 21 regardless how long the process actually takes.
 
Thanks for your response. Do you have any proof of this? I really want to believe you because you seem very experienced, but could the USCIS website be wrong? Could it really be 5 years behind? Also, please refer to these threads if you have time: http://boards.immigrationportal.com/showthread.php?t=257492&highlight=nunc+pro+tunc
http://boards.immigrationportal.com/showthread.php?t=209245&highlight=nunc+pro+tunc

(you actually replied to the second thread)

The above threads seem to be in my situation: granted asylum when they were under 21 years of age as dependents of the principal asylee, and applied for permanent residency after reaching 21 years of age.
 
Check out the attachment which has two memoranda from the USCIS on this issue.

Page 2: "For asylees, a child who is under 21 the date the Form I-589 is receive by CIS will continue to be classfied as a child for purposes of determining asylum eligibility and benefits....Thus, for asylum or refugee application filed on or after August 6, 2002, a derivative child will retain classification as a child for purposes of the initial asylum or refugee determination, for any subsequent Form I-730 Refugee/Asylee Relative Petition, and/or for the section 209 adjustment."

Also check out the last page.
 
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Thank you!

Thank you, Thankful! You have no idea how elated I am. I would have never found this out by myself.

Do you think CIS officers down in Nebraska are familiar with this memorandum and cases like mine? You think I can lay this issue to rest when I send in the I-485 this November?

Once again, thanks!

P.S.The USCIS website needs updating! I would have thought they would have put new information reflecting this memorandum when they updated thewebsite after INS because USCIS.
 
It is their job to know about the memos.

You should not be spending too much time thinking about this right now. Wait until you are eligible to apply for your green card.
 
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