correct earlier ruling

Nunc Pro Tunc Reinstatement of Status

nunc pro tunc

A powerful tool to salvage an accidentally expired I-94

Nunc pro tunc (English translation: “now for then”) is a Latin expression in common legal use in the United States, the United Kingdom, and other countries. In general, a ruling nunc pro tunc applies retroactively to correct an earlier ruling.

A typical Scenario requiring nunc pro tunc adjudication in the non-immigrant visa context:

You go on-line to the CPB website to pull up your I-94 for your lawyer because you are getting ready to either file a change of status, an extension of stay or adjustment of status, and to yours and everyone else’s shock and disbelief, an expired Form I-94 pops up.

At face value, it looks like the end of the line. It is not permissible to file either an extension or change of status or adjust status to permanent residence in an employment context if the I-94 has expired. Furthermore, presence in the U.S. without a valid I-94 constitutes not only an overstay in unlawful status but “unlawful presence” with draconian consequences. Unlawful presence of 6-12 months + departure from the U.S. triggers the three- year bar to re-entry. Unlawful presence of 12 months or more + departure from the U.S. triggers the ten-year bar.

How does this happen?

An employee and/or family member does not realize that an I-94 has expired. Sometimes, the CBP officer at the airport only gives just enough time on the I-94 to match the visa in the passport and not to match the validity date of the underlying approved Form I-797.

In another situation, the CBP officer enters the I-94 validity date into the computer as expiring on the same date as the expiration of the passport. This is often the case and the unsuspecting individual does not notice because she has already submitted the passport to her Consulate to obtain a new one. She doesn’t download her I-94 from the website until she is ready to file the extension and to her shock and horror she realizes that she has been out of status and accumulated unlawful presence with her expired I-94.

In a different scenario, the employer had changed the employee’s status to H-1B but had not done anything for the H-4 family members. The wife and child had obtained H-4 visas at the overseas Embassy and entered the U.S. When the employer filed the petition to extend the H-1B for the employee, the H-4s were not extended for the family. The wife and child were therefore in the U.S. on expired Forms I-94.

In the first example, CBP clearly made an error and if it is discovered after a short while after entry it may be possible to go to deferred inspections at the local USCIS office and point out the CBP error. Often, they will fix it. But if the error is not discovered until after filing either an extension or an adjustment of status and USCIS issues an RFE, then usually USCIS will accept the explanation if proof can be submitted along the lines of a Nunc Pro Tunc argument.

A Nunc Pro Tunc approval means that even though the application may have been filed after the expiration of the I-94, and there was a technical break in the status, the approval will excuse the late filing and seamlessly connect the dates so that there is no break in the status. For example, if the applicant’s status expired on August 1st, 2016, and an extension application was not filed until December 6, 2016, if the application was approved Nunc Pro Tunc, the validity period of the extension would start on August 2, 2016, thus erasing the gap in valid status. This is critically important because it means that even though the application was filed late, because the application was approved Nunc Pro Tunc back to August 2, there was no break in status and therefore no violation of status and therefore no unlawful presence.

What is Required to file a successful Nunc Pro Tunc Application?

Even if an applicant needs to file an extension or change of status late, after the I-94 has expired, it can be approved Nunc Pro Tunc (out-of-time) to avoid the break in status in limited circumstances, if the applicant can show that:

  1. The failure to file was due to extraordinary circumstances;
  2. The extraordinary circumstances were beyond the applicant’s control;
  3. The delay in filing was commensurate with the circumstances, meaning that the explanation is reasonable and the delay makes sense in light of what happened;
  4. The applicant is a bona fide Non Immigrant;
  5. The applicant has not otherwise violated his/her visa status; AND
  6. The applicant is NOT in removal (deportation) proceedings

If the applicant can prove all of the above to the satisfaction of USCIS, then the application will be granted with a Nunc Pro Tunc status reinstatement back to the date of expiration of the I-94.

We applied these six rules to the third example above, where the employer didn’t file an extension for the H-4 family members.

If you find yourself in a similar predicament, and if your lateness to file can be explained using the 6 factor requirements above, then you may be eligible for the Nunc Pro Tunc status reinstatement which will preserve your valid U.S. immigration status.

35 thoughts on “Nunc Pro Tunc Reinstatement of Status”

  1. I have an H1B visa valid till March 2021. My 797 is also valid till March 2021. However, my passport expired this year 4th June 2019. I have applied for a passport and expect to get it next week.

    The issue is that my I-94 was also valid till 4th June 2019. I just noticed this today- I have currently overstayed my I-94 by 17 days and running. What are my options now? I am still waiting for my new passport.

    Also, my green card application is underway – I have applied for I-140 under EB1A.

    Please advice.

    Thanks,

    1. Hello. How long do you think it will take until you get the new passport? I am trying to help you decide if you should file an amendment nunc pro tunc now or if it would make more sense to wait for the new passport and then leave the U.S. and re-enter in your valid status. We don’t want you to hit the 180 day mark because then you will be subject to the 3 year bar. And it would also help to know your priority date for the Eb-1. If you would like to send me an email with more details, please do so at kelly@kellywachs.com. Thank you.

  2. Hi Kelly,

    I had my H1B renewed in 06/2017 and got a 3 year extension with I-94 expiry until 10/2020. Later I went to India, got Visa stamped and when returned to USA, I was issued a new I-94 with an expiry of 09/2018 (expiration date of my old passport). I renewed my passport in 02/2018 but didn’t notice that my I-94 was expiring. So, its been more than 9 months that my I-94 is expired but my Visa, I-797 are valid until 09/2020.

    Should I file for a Nunc Pro Trunc (NPT) H1B or call CBP office to get the I-94 corrected or leave USA and come back to get a new I-94 ?

    Thanks,
    Praveen

    1. Hi Praveen- In my experience, Deferred Inspection will not correct it once it has expired even if the PP is now valid and the visa is valid. The problem with leaving and returning is that you are subject to the 3 year bar because it’s been expired for over 6 months. The bar is triggered upon an application for admission. So I think you are left with NPT unless you are in a jurisdiction where they will allow immigration to correct the I94. I am close to the San Jose and San Francisco offices, and they will not do it. The only time they will fix the I 94 in the system is if there is a new passport, but the I94 has not yet expired. Then they will change the end date to match the end date on the passport.

  3. My wife on L2 got I94 till Jan 2019 due to her passport expiry date but she had valid I539 till June 2019. We came to know about it by end of March 2019. So she reentered USA on March 2019 and got her I94 till June 2019.

    My questions are
    1. The period between Jan 2019 to March 2019, is still considered as overstay?
    2. Will this overstay have impact on subsequent visa extension or green card processing?

  4. Hi Kelly,

    Thanks for such a detailed article on Nunc pro Tunc. Could we also file for Nunc Pro Tunc ruling in case of late filing for renewal of I765 (employment authorization document).

    I have my I-485 pending with a priority date of Dec 21, 2017. I-485 interview held on Mar 25, 2019 and was given a recommendation for approval at the time of interview. My current EAD expired on May 14, 2019. I applied for renewal on June 20th 2019 & recieved I-797 for my I-765 renewal application.

    Could I file a Nunc Pro Tunc application with USCIS to forgive my failure to timely file a request to renew my EAD, and backdate the validity date to close the gap in status, so that I can continue to work.

    I would appreciate your advice.

    Regards,
    HM

    1. Hi HM-

      I have never done this with an I-765. I don’t know what preference category you are in, so I don’t know where things stand with your adjustment of status case? Perhaps it’s backlogged? In any case, when you file for AOS, you can have up to 180 days of unauthorized employment under INA Section 245K and still be able to adjust. So I don’t think it’s going to be a huge issue that you have a bit of unauthorized employment with respect to your green card when they get around to issuing the green card. But that does not address any issue with your employer and work authorization. The only people who benefit from the automatic extension of the EAD are those who timely filed. The EAD’s are taking forever. Have you received it yet or you are still waiting? I suppose you could file it nunc pro tunc but not sure what the reason was for the late filing? Also, if it’s pending and you file another application, that might confuse them. So I am not really sure of the best way to handle this. Did you fail to keep your underlying non-immigrant visa valid? It’s situations like this that have made our policy to encourage employers to keep the non-immigrant visa active even if the employee has an EAD.

      1. Hi Kelly,

        I was on L-1A visa with my ex-employer, who also sponsored my I-485 application in EB-1 category (priority date Dec 21, 2017). I got my EAD in May,2018. Also got my I-485 interview done on Mar25, 2019. My attorney with my ex-employer told me we don’t need to file for EAD renewal as GC should arrive & also I have L-1 visa valid through 2022. Unfortunately 2 things happened, a) My employment with ex-employer abruptly ended in May 2019, & b) I-485 for Indian citizens got retrogressed.

        I have secured an offer from another company and also filed for EAD renewal on June 20, 2019 (after expiry of my previous EAD on May 14, 2019). Since EADs are taking much longer currently, and I don’t get 180 days automatic extension due to delay in filing for EAD renewal, that’s the reason I was asking whether Nunc Pro Tunc could be applied requesting USCIS to backdate my I-765 application to May 14, 2019 from my actual reciept date of June 20, 2019. That would then qualify me for 180 days automatic extension of EAD.

        I would really appreciate your advice.

        Best Regards,
        HM

    2. I know you were on an L but were you ever on an H that was not exhausted? As I said- I have never done a NPT for EAD. Not sure how you would do it since it’s already pending. Normally, you would do it upon filing. Could you ask for an expedite for financial reasons? I’m not sure if they are granting them but you could try?

  5. Hello Team,

    My new employer missed to apply for my wife’s extension during my H1B visa transfer. Her I-94 expired on sept 19th 2018. She crossed 320 days.

    What is the best way for her to reinstate her I-94 status.
    1. Apply for NPT?
    2. Leave the country ?
    3. Apply for my extension and her ? On premium? My I-797 expires on Mar 2020
    4. I send my wife to India . Change employer ON PREMIUM and apply for new visa stamping for my wife ? + NPT

    Please suggest best and legal solution in my case.

    With Regards,
    Khan

      1. Hello Kelly,
        I’m filing for my wife H4 Visa Stamp.
        There is a question on Overstay in the DS 160.
        “Have you ever been unlawfully present, overstayed the amount of time granted by an immigration official or otherwise violated the terms of a U.S. visa?
        Yes No”

        what would be the right way to respond here in my case?

        Please let me know, if i could reach out to you to discuss the options.
        with regards,
        NK

  6. Hi Kelly,

    I have H1B Visa till 08/11/2019 and my I94 expiry date is also on 08/11/2019. My employer has filed an extension on 08/07/2019 and it was rejected on 08/08/2019 due to Incorrect fee. They have filed the petition again on 08/21/2019 using Nunc Pro Tunc provision. I would like to know whether I will go out of Status till I receive the new receipt notice for the new filing or I am good to continue the work.
    Will I get a new receipt number or the old receipt number will be used ?

    Thanks

    1. I believe that technically you are out of status for that brief period. But if the extension is approved NPT it will correct the gap. In any case you are not anywhere near having 180 days and this brief period will not impact your AOS if one is in process. If they deny the NPT but approve the status, you will have to depart, but it should still be okay. I hope they PP.

  7. Thanks Kelly for the quick reply

    New receipt number will be generated or the old receipt number will be used for reprocessing. Can you please confirm

    1. If the check was wrong I’m surprised you got a receipt notice. Did you? Usually it’s generated when the check is cashed. If it was rejected but assigned a receipt number, it should be the same one. I cannot day for sure, but generally once a receipt is generated, that’s the one they will use.

  8. Actually they have sent the check for normal processing but applied in premium processing due to which uscis has rejected based on incorrect fee. As per your statement i think the receipt notice has generated using the check given for normal processing.

    So now the same receipt number will be used for premium processing?

  9. Hi Kelly,

    Sorry I have another question related to my wife’s petition I 539, She has received Bio metric appointment and receipt notice. Will that remain same, we can go ahead with the same letter or do we need to wait for another Biometric appointment letter

    Thanks

  10. She can get her biometrics now. Even if you PP, the H-4’s are taking so long that they will match it up to yours in the end.

    Regards and hope I helped!

    Best,
    Kelly

  11. Hi Kelly,

    Thank you for your inputs. My I-94 expired on 8/31/19 and an H-1b extension has been filed at a wrong service center that had reached them on 8/30/19. We are not sure when it will be mailed back to be able to send it to correct service center with a NPT request. Will I be accruing unlawful presence meanwhile? Will I have continued authorized stay?

    1. Well technically yes. It must be appropriately filed. But it’s a very short amount of time. So if they don’t approve it nunc pro tunc, you could leave and return and should be ok. No 3 year bar. These things happen. They know that. Hopefully, they will be generous. This is why these cases should be filed ahead of time. But sometimes it’s not possible. Good luck.

      Kelly

  12. Dear Kelly,

    I filed I-539 with nunc pro tunc request to extend my H4 visa this June (We were unaware that we need to file separate extension application for H4 and the immigration attorney helping us failed to advise us on this). I did the fingerprint in July. And then we just got a letter from USCIS, requesting an explanation for the late filing. We are so confused. Our attorney included the nunc pro tunc request and explanation in the cover letter for I-539 form. What could be the possible reason for this request from USCIS? Could this be a simple human error (for some reason the USCIS officer processing our case did not get a chance to look at the cover letter)? Or does this mean our request for nunc pro tunc relief was not appropriately made? Does USCIS charge additional fee for nunc pro tunc request? Is there any specific form to be filled out in order to make a nunc pro tunc request?
    Please advice.
    Your kind assistance will be greatly appreciated.

    T&W

  13. I have a valid H1-B i797 until 2021 but my i94 expired in Aug 2019 which corresponds to my previous employer’s H1-B visa date.

    I entered USA in Jan 2019, but i94 was’nt updated to latest i797 date.

    Should I have the lawyer contact CBP office on my behalf or should I file nunc pro tunc ?

    1. Hi. In our experience Deferred Inspection won’t update the I-94 once it’s expired. You can try, but you may have to NPT. If you have a valid visa stamp you could go out and back in. You don’t have 180 days of unlawful presence. Kelly

  14. Hi kelly,

    My employer filed my H1b in 2018. It was selected but due to a missing page in LCA, USCIS rejected my application. My employer never told me that. I got to know right now. Can I apply for NTP.? I need help. what can Be done.? Please help.

    Thanks.

    1. Hi Premal-I’m sorry for not answering this more quickly. Right now, we would not be able to help with this. We are booked up until the new year (2020). Can you tell me when your I-94 expired, or are you on OPT still? Or what it your status? When you say you were selected, do you mean in the lottery? I cannot believe it was rejected and not RFE’d and that your attorney didn’t tell you. Give me more info and maybe I can help you without actually having a consultation (which would require a fee) since we would not be able to handle it right now in any case.

      Best,
      Kelly

  15. Hi Kelly,
    My situation is :
    1 – > I’m on H4.
    2 – > My wife is on H1 and I94 Expired on Sep 30 2019
    3 – > My Son is on H4 and I-94 expired on Sep 30 2019
    4 – > My wife’s employer says all the petitions were sent in single package to USCIS on Sep 30 2019 and USCIS received on Sep 30 2019 as per Fedex Tracking Number
    5 – > I-797 C received for all the applicants last week.
    6 – > Received Date in My form and My Wife’s form is Sep 30 2019
    7 – > But in my Son’s I-797 C it is October 07 2019.
    8 – > Fedex tracking says the documents were received on Sep 30 2019
    9 – > My Receipt Number and my son’s receipt number are in same sequence and ends in next numbers (140 & 141)

    Will this be a problem for my son.

    Please advice…

    1. Hi Rajesh:

      I don’t think this is going to be a problem. If it is, you would be able to file a nunc pro tunc application to close that brief gap by showing proof that you filed in a timely manner. I’m thinking that they will most likely date his H-4 the same as your H-4. That being said, it’s not advisable to file an extension of stay at the very last moment because so many things can happen that can delay the receipt of the docs to USCIS. I’m guessing this was b/c the attorney didn’t file ahead of time. In the future, make sure that they do. Also, how did the application get sent on the same day it was received? Just curious. Well, at this point, I think you will just have to wait and see what they do with your son’s case. But it’s going to be okay and not that difficult to fix if they date it a few days later than the actual expiration date. I hope this helps. Best, Kelly

      1. Thanks Very much Kelly for the response. All the documents were sent in a single package and it was received by USCIS on 10:03 am of Sep 30 2019 and it was signed and received by some person as per Fedex Tracking Report.

        Thanks.

Leave a Reply

Your email address will not be published. Required fields are marked *