INS on "Nunc Pro Tunc" Extensions of H-1B/L-1 Status
District Directors (including foreign)
Officers in Charge (including foreign)
Service Center Directors
Training Facilities: Glynco, GA and Artesia, NM
From: Jacquelyn A. Bednarz
Acting Assistant Commissioner
Adjudications
Subject: Extensions of H-1B and L-1 Status for Adjustment Applicants whose I-485 was pending between March 17, 1997 and September 5, 1997
This is a supplement to previous policy memorandum HQ 70/6.2.5, 70/6.2.12, 70/23.1, 120/17.2 dated August 5, 1997, regarding maintenance of E, H-1B or L status and continued validity of unexpired nonimmigrant employment while the application for adjustment (I-485) is pending.
Before the above referenced memorandum was issued, there was a significant level of confusion about when certain E, H-1B and L-1 nonimmigrants could have their status extended while their adjustment applications were pending. Unfortunately, many aliens who filed for an adjustment-based employment authorization document (EAD) and advance parole did not obtain the EAD and advance parole before their nonimmigrant status and work authorization expired. Many of these aliens failed to file a timely extension application because they were under the I-485. Even after the above referenced memorandum was issued, the affirmed policy of allowing h-1b, L and E nonimmigrants to obtain extensions after the I-485 is filed was slow to take effect.
This memorandum clarifies that the employers of such aliens may file a petition for H-1B or L classification and an application for extension of stay, or a motion to reopen on a previously denied application for extension of stay, and that, if the application is otherwise approvable, the Service will adjudicate it and approve it nunc pro tunc to the date the previous status expired.
Please note that Form ETA-9035, the labor condition application (LCA), need not indicate the same period of intended employment as the I-129. In H-1B cases where the underlying LCA was valid at the time the alien filed for adjustment but expired prior to the issuance of this memorandum, the LCA may be considered to cover the nunc pro tunc extension.
Nunc pro tunc extensions may only be granted in cases where the E, h-1b, or L-1 alien:
- Properly filed an application for adjustment of status prior to March 17, 1997;
- Failed to file a timely application for extension of stay between March 17, 1997 and September 5, 1997, or had an application for extension of stay filed between these dates denied because of the confusion over when an E, H-1B or L-1 alien is eligible for an extension; and
- Has not yet had an adjustment-based EAD or advance parole issued, or would, save for the policy enunciated in this memorandum, have been considered to have worked or traveled without authorization prior to the issuance of an adjustment-based EAD and/or Advance Parole.
If you have any questions, please direct them through supervisory channels to HQADN, ATTN: Irene Hoffman, 202/514-5014.