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.

106 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.


  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 ?


    1. I filed extension for my H1B and H4(dependents) in May-2019. (H1B AND H4 Was about to expire in (Aug-19).

      My H1B Extension approved in Sept-2019.
      But My H4 dependents petion was in progress and got denied in May 2020.

      So my Query is
      1) can I reapply H4 for my dependents without them leaving the country ? What are the ways?

      2) will it impact my Approved H1B?

      3) If not immediately when can I reopen the H4 for the denied case?

  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.


  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,

  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 ?


  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

  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


  10. 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?

  11. 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.


  12. 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 ?

  13. 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.


  14. 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…

  15. Hi Kelly
    I entered US this Jan 2019 and got my I-94 till my passport expiry date which was Sept 14 2019. I have i797 valid till sept 2021. I renewed my new passport but missed my I-94 update which makes me out of status for past 2 months. I m scheduled to go to India November 30th should I just fill in DS160 yes overstay and give reasoning and get visa stamped or do npt? Please help

  16. Hello Kelly,

    I have valid i-797 till July 2020 however my wife and daughters i-94 expired in Aug 2018 and we were not aware of filling for both them separate extension after landing. Now they have crossed already 1 year out of status. We had a consultation with one attorney and she suggested us to file 2 NPTs for both them. I wanted to check if that’s needed as my daughter is below 18 years.
    How long it will take for decision from USCIS and we also have to file new h4 extension for my h1b petition.

  17. Hi Kelly,

    I have a questions regarding my status in USA.My I-94 got expired in March2019 and H1-B Extension got Denied in Dec 2019.We filed a Nun pro Tunc in January 2020 and it got Approved in January with I-94 starting from January 2020 to Dec 2020.My new I-94 which is approved was not backdated to March 2019 and we are yet to receive the Hard copy from USCIS so my questions are

    1) Am i legally allowed to stay in USA and work with my Client as i got a new I-94.
    2) If i am not legally allowed then did i incurr illegal stay from March 2019 or the date of the Denial.
    3) Can i check with a CBP offcer to correct the I-94 back dated issue.
    4) Do i need to go out of country and get my Visa Stamped and will it cause any issue.

    Please let me know.


  18. Hi Kelly,

    I have filed my H1 visa extension on Nov 2019 and received an RFE . We have responded back with all the details . Later my extension got denied on Jan 7 2020 . So in the mean time my I-94 got expired on Dec 25th 2019 .

    Now we planned to file the extenion with all the required details correctly and use the NPT . As we have filed this in premium today , can I stay for few more days now .

    Can you help on this with your suggestions .

    Will my case be approved with the NPT .


    1. Hi Kelly,
      My husband had I-797 valid until Jan 25, 2021. When we went Out of country and entered USA in Aug 2019, CBP gave i94 until Apr 2020 due to his passport expiration date. We did not realise the expired i94 until recently when we filed for H1B extension. Our lawyer filed it with Nun pro tunc but we got RFE asking to provide evidence for delay in filing petition. We are not sure how to respond to this RFE. Please provide your suggestion . We can discuss over email or call if possible.

  19. Hi Kelly,
    First of all Thanks for publishing such a detailed article and generously responding to everyone questions.

    I’m fortunately found your blog while searching for possible solutions to my problem.

    My situation:
    My Daughter (6 yrs old) I94 was given based on her passport during the last arrival in USA (may 2018) , I94 was given til OCt 2019 but post renewal of her passport, I forgot to act on I94 and realized now, which is expired now over 155 days but she has valid I797A and VISA Copy till June 2020 same as primary H1B applicant.

    My dependents suppose to travel to India but due to current travel restrictions and COVID19 Situation, we had to cancel the trip.

    My company attorney is agree to file an NPT however I would like to know if there is any other possible solutions . or What would be the possible cases that USICS not approve the NPT? if so, what would be the consequences may cause.

    Also heard that post I94 expiry visa status would be voided or invalidated state automatically by USCIS so can’t return US thru existing H4 though have active VISA Stamping till June 2020, Is it true ?

    Appreciate your response and valuable suggestions.

  20. Hi Kelly,

    First of all thank for you valuable inputs for above questions, i am also in similar situation

    My old employer filed extension and i got RFE, we replied to RFE and got denial this time, in mean time My i-94 got expired(Feb 20th 2020). I have filed consular H1B with my new employer and got approval, but due COVID-19 i was not able to travel and all consulates closed even in Mexico and Canada. I don’t have any option to get visa stamped.

    Today i heard about NPT, i have fews questions regarding NPT

    1) can i file NPT given the global pandemic situation ?
    2) can i file premium processing ?
    3) what if my petition for NPT got rejected or denied, my I-797B will be still valid to get visa stamping if consulate reopens

    will be waiting for you reply

    Thank you

  21. Hi Kelly,

    First off, thank you very much for being so kind in taking time to answer all the questions here. Hats off!

    I have filed my H-1B visa extension in December 2019 and received an RFE . We have responded back with all the details . Later, my extension got denied on March 18, 2020 . So, in the mean time my I-94 on the previous approval got expired on January 03, 2020.

    1. When does my unlawful presence start?
    2. Will my H-1B visa and my wife’s H4 visa be void and cancelled due to overstay?
    3. I was transitioning from a contract employee to a full time employee. So, my full time employer has filed a H-1B transfer on February 24, 2020 in regular processing. It is still pending. Will the transfer be denied? Since premium processing is temporarily suspended, I can’t get this approved in a timely manner. Can they file a nunc pro tunc request and probably upgrade to premium processing when it is made available? Will I get a I-94 on the approval due to covid-19 and my wife’s pregnancy?
    4. If we file a nunc pro tunc request and change status to a visitor visa, can we get back to H-1B and H4 respectively later when my pending application is approved?
    5. How long does nunc pro tunc request take for approval? Does it need to be made in conjunction with a H-1B extension? Can we stay while a decision is made? Can I start working if my current employer re-files an extension with nunc pro tunc request?( Approval might take 4 months minimum).
    6. We can’t travel to India and wait there as international travel is chaotic, not safe due to the virus outbreak. My wife can’t travel (we have physician’s letter saying not safe for her to travel). How long can my wife and I stay here as it’s not safe to travel? Is there any way I can get an extension to work without leaving the country? My wife is 28 weeks pregnant and I need medical insurance to pay her hospital bills. I’m the only one here to take care of her. I need to stay here too.

    Please suggest. Thank you.



  22. Hi Kelly,

    Thank you very much. Appreciate it. Yes, it’s my top priority right now to keep my wife and baby safe. Thank you for patiently answering all my questions. That’s awesome. But with no premium processing, I will have to wait at least 3 months for a decision (not sure if I can get I-94 with the approval). It’s more than the grace period. So, I was thinking about NPT to reinstate my status, get approval with I-94 as it’s a life risk for my wife and baby to travel right now (virus outbreak adding to the woes) and to avoid problems during visa interviews and port of entry in the future. As long as I don’t exceed 180 days and since I have a pending petition filed before denial, I should be okay I guess? Please correct me if I’m wrong.


  23. Hi Kelly,

    Thanks for your valuable blog and answers. These really help especially during these circumstances outside.
    Need your advice/thoughts on my situation please…

    My I94 expired on Nov 5,2020, while my employer filed H1b extension before I94 expiration, however my H1b extension was denied on March 16 2020.

    Due to COVID 19, I am not able to travel at-least until April 15 and further notice as per International Travel Ban in my country(India) and CDC Website.

    1) Can a new employer file a H1b with NPT? And can I stay in US and work on receipt notice?
    2) When does my unlawful presence begin? ( on Nov 6,2019 or March 16,2020 ?)
    3) If I don’t get any employer to file a new H1b, can I atleast file I539 and stay in US for some time untill situation becomes normal outside?
    4) What is best thing to do considering the situation?

  24. Hi Kelly.
    Thanks for this awesome answers.

    My case
    1. H1 Transfer initiated in June 2019 by employer A
    2. Converted to PP in January 2020, as I-94 was approaching (I-94 expiry – 20th march 2020)
    3.Got RFE , i was pushing the employer to give quick response so that my decision could come before I-94
    4. RFE response was delayed and given on 12th March – got denied on 23rd Mar 2020

    Option1: My current employer A and attorney is telling that they will file a new petition with NPT

    Option2 : Employer b is also ready to file new petition with NPT ,mentioning they got delayed for doing h1 transfer(After I-94 Expiry)

    Ques 1: which option will you advice in terms of looking a Strong case for NPT and h1 approval
    Like Existing employer A of New employer B

    Quest 2: After applying and if it is taking more then 180 days attorney is suggesting to leave USA and wait in home country and come back after stamping . so any impact of staying in USA out of status as long as it is less then 180 days

    Looking for quick response as i have to get it filed next week

  25. Hi Kelly,

    I have a valid H1b visa and I94 till Jun 3, 2021. My employer filed an amendment to the new client and this amendment got approved only till March 17th, 2021 which is the same date on which USCIS decision is updated.
    Since it was a normal process it took 10 days to reach the I797 copy to my law firm. Once they received the copy on April 3rd,2020 they realized that the I797 approved with past dated.

    Now my law firm is saying that since the latest petition is approved with less validity and I have not traveled internationally after my amendment petition is approved, they are saying my I94 is expired and am legally out of status and my employer is saying I should go on an unpaid leave till I get the legal status.

    during this corona situation I cannot travel internationally, they are saying they will initiate NPT extension. How long will it take to process?

    My question, when I have valid visa stamping and valid I94 till June 3 2020, am not sure why my law firm is saying that being out of status and my company stopped the payroll based on this situation.

    Please suggest what options I have at this point, it will be a huge financial burden on me during this time without a salary to maintain my family.

    Any guidance during my tough situation will be a great help. Thanks in advance.

  26. Hi Kelly,

    My H1-B extension petition got denied on 4/8/2020. My I-94 is also expired on 3/28/2020. Even though I initiated the process of extension in November last year, we got an RFE and due to the COVID-19 issues beginning in March, my employer’s attorneys sent the response only on 4/4/2020.

    The attorneys are asking me to leave the country ASAP. I would have also done that if I could. But due to the travel restrictions all over the world and risks associated with air travel these days, I am not willing to take the risk as of now and decided to stay put for as long it takes to be safe.

    Meanwhile, my employer has put me on unpaid leave. This has caused a great hardship for me financially.

    I read the option about nunc pro tunc h1b extension during extraordinary circumstances. Am I eligible to re-file the petition using this clause to regain status as well as work authorization while I am not able to leave?

  27. Hello,

    I got a backdated approval on the H1B petition filed for me and got notified after my I94 expired. My Employer is filing a NPT (nunc pro tunc) for me along with I129. Due to current Covid situation, I cannot plan to travel to India and bound to stay put. And if i go in loss of pay, it would be a huge financial concern for me. Can i work and stay in US legally until there is a decision on the NPT ? How much time it would take for USCIS to give decision on NPT now that the Premium processing is paused ? Is there any other option for me in this situation? Kindly suggest.

  28. Hi,
    I am an Indian Citizen on H4 Dependent Visa and a Housewife. my I94 had expired 11/19/2019 and I couldn’t travel due to my pregnancy and my due date was 10 to 15 days prior to my I94 expiry and since I had many complications through my pregnancy I had lost track of the situation and Also had delivered my baby with C-Section due to other medical complications.later post pregnancy we were planning to travel to India but due to my continued health issues I couldn’t travel as planned and later we ended up in the COVID-19 situation and we have to cancel all our travel plans and I was not aware of the I539 extension until recently. I had filed for the I539 application a day or 2 ago and I am not sure how the process works. Is there is possibility that under this criteria my I94 will be extended ? My H4 visa status is valid until June 2021

  29. Hello Kelly,

    First off, I want to say you rock for providing answers and for your candidness.

    If you are able to, I need a second opinion. I am on an L1A that was expiring Jan 15th 2020 with an extension filed Jan 10th and was recently (May 7th) renewed after an RFE. My wife and daughter were on L2 visas expiring Jan 15th. They were not included in my extension filing. My immigration attorneys state I did not provide their details on a questionnaire they had me fill out. I did not add their details in a tab – because I did not notice instructions to do so – but did indicate that I had a wife and dependent child in the main questionnaire. I expected them to be included in my application and have email correspondence delaying the filing so my wife could travel.

    As the process of initiating my EB-1C was starting, we discovered this error and now the attorneys are pushing me to travel outside the US and file for the L2s instead of a nunc pro tunc. My wife and I are at increased risk of mortality from Covid19 so I wish to avoid travel but feel like the downside of a nunchuck’s pro tunc denial is too great.

    What would you advise?

  30. Hi Kelly,

    First of all, thanks for the valuable blog!

    I am a H1b holder, with I-797 expires on 07/10/2020, but the I-94 expired on 06/25/2019 due to an old passport (expired 01/24/2020). I didn’t realize that until recently my employer is filing a H1b extension.

    What could be the best way to deal with the problem?
    1). Get the I94 adjusted by the CBP?
    2). Extension with NPT? (Risk of 10 yr bar?)
    3). Leave and reapply for H1b visa (3yr bar waiver?)


  31. Hi

    I came upon your blog and was hoping you can help me answer a few of my questions.

    My company filed for my H1 extension and H4 and H4 EAD together on Nov 25,2019. Since my H1 was in premium I got my approval within 2 weeks. My wife travelled to india immediately after filing H4 extension and last week we got a notice saying that her H4 extension was denied.
    Reasons given were since she she was not present in US after filing. Also somehow the biometric appointment letter was missed or not mailed to us. So essentially her H4 extension got abandoned. The problem now is that her I-94 has expired on 3/7/2020 and now since her petition also got denied, she is not out of status.
    1. What are the next steps that could be done?
    2. Can we file the I-539 extension again or make the re-appeal to reconsider her denied petition so that this time they send the new biometric appointment letter?
    3. What is rule for unlawful presence is US. Is it 180 days after I-94 date or 180 days after denial date?
    4. Should NCT be filed?
    5. Can we file for expedited H4 extension this time?

  32. Hi Kelly,

    Thank you very much for the article. I’m in an expired I-94 situation as well. Here is my case

    I filed a H1 extension and got it on 12/16/2019 in premium processing & my extension/visa was approved from 01/01/2020 to 12/31/2020
    but my I-94 was issued only from 01/01/2020 to 01/10/2020.

    The end date of I-94 wasn’t noticed by my attorney & employer when the approval came. And later when it was sent to me, I didn’t notice it either.

    When I went for my Driver’s licence renewal yesterday(June 16th,2020), the employee pointed out that my I-94 expired in January.

    I realized then that my original passport expiry date was 01/19/2020 and I got my new passport in January after my H1 was approved. So, did USCIS mistakenly issue the I-94 end date as 01/10/2020 or was it intentional ?

    I brought it to my employer’s notice immediately on June 16th & he filed for a typographical correction form with USCIS on June 17th 2020.

    I’m really worried now as I’m considered out of status now and will reach 180 days with out of status on July 8th 2020. I want to know my options if the correction form submitted by my employer gets rejected.

    Can I file a Nunc Pro Tunc H1B extension as it was not intentional?. If I do that, can I continue to work?. I can’t travel now with COVID and embassies are closed in India. What is the best course of action for me now?

    Please advise, I would greatly appreciate it.

    Thank you,

  33. Hi Kelly,

    I am so glad i found your thread while looking for answers to my current situation. I am in a very stressful situation and the COVID situation along with Trumps new executive order is making it much more difficult. Here is a brief of my case, hoping to hear from you as soon as possible.

    My current I 94 expired on January 10th 2020. My employer initially filed an extension in September 2019 for my previous project and I got an approved H1b only until end of year 2019. I changed my client on January 3rd and my employer filed an amendment /extension on January 2nd 2020, unfortunately I got a denial on it on March 31st. My employer immediately refiled new H1B and I got a consular approval on June 17th. By this time my I 94 had already expired. During this pandemic and travel restrictions I could not leave the country to get stamping done, I don’t know how long it will take for me to even travel, on top of all this Trumps new executive order the suspended until end of the year! I please suggest /answer my questions below:

    1. When does my unlawful stay started is it from January 10th the I 94 expired date or the from the day I got the denial on my petition that is March 31st.?
    2. Is there a way for me to request uscis to transfer from consular processing to regular processing and get an I 94 given the current situation and unable to travel to get stamping and even though I go for stamping it will not be done until the end of year.
    3. If there is no other way than to travel and get stamping done, can I request uscis to extend my stay due to the travel restrictions without accruing unlawful presence that might ban my re entry to US? Please suggest

  34. Hi Kelly,

    My wife is on H1B just noticed that her I-94 expires on 14th Jun 2020(date of her passport expiration, she got a new passport about 2 months back), given the immigration situation now is nunc pro trunc the best way to go about this?


  35. Hi Kelly,
    Thanks for putting in all your valuable time and efforts to answer the questions!

    So, I am in a similar situation to others. I am on a L1-A visa and my I-797 is valid till March 2021 but my I-94 recently expired (like 10 days ago). I approached my employer this week and they told me that they would file for the NPT by next week Monday.

    So my questions are:

    1) Am I still allowed to work till the extension is filed on Monday?
    2) What are the chances of NPT getting approved?
    3) What if the NPT gets denied?

    Thanks in advance!

  36. Hello Kelly,

    Thanks a lot for taking time to do this. I got most of the answers to my question by reading the thread – very helpful.

    I also have an expired I-94 (expired on 05/09/2020, linked to expiry of my passport) and have a valid L-1A (expiring in 2024). i’m currently exploring doing a (same day) return trip to Mexico/Jamaica to correct the expired date on the I-94 (since I have been able to renew my passport).

    1. What are the risks of me being declined entry? Can I explain to CBP officials?
    2. Is that a viable option versus filing an NPT which can take 4 months?


  37. Hi Kelly

    I changed job in Aug,2019 with i797 approved till June,2022. I went to Canada in Oct,2019 for 2 days of work.
    When I came back via land, CBP office used my old employers visa stamp to update I-94 which expired on Feb,2020; instead of my current employers I797.
    Now, what are my options?

    Thank you so much in advance!

  38. Hi Kelly.
    Question- h4 out of status due to below reason.

    We filed h4 extension in Feb ,but h1 got denied on 23rd March.after i-94 expiry.(20 March)
    we filed new h1 with npt and it got approved on June 30 with backdated I-94.
    We forgot to file h4 extension along with that.

    I have filed h4 extension last week.. my friend said I had to add npt as h4 are out of status for around 4 months now to get h4 approved.

    . As if now the check has not been encashed and we have not got receipt no.yet.

    .what are ways to get NPT added to our application ? Or any other suggestions to get h4 approval.

  39. Hi Kelly

    How do I consult with your office? My company lawyer is saying they don’t think I am eligible for NPT but my company is okay me to hire outside lawyer to do this.

    Please this is an urgent matter as I am out of status 150 days now.

  40. Hi Kelly,

    Thanks for your response. I filed for NPT and just got response from USCIS for RFE; Fingers crossed.

    Had a related question. If my i-94 (which is overstayed) is tied to my old passport number and I travel out of the US with my new passport and return still with my new passport, will CBP know if I truly overstayed? since they would not have my records of departure (under old passport) but rather new. Hence could have the CBP issue me a new I-94 based on new passport number upon return? I am not sure if CBP systems are able to link old and new passports but is this something you have seen happen in the past? and if you have any experience to share that would be great. I’m really considering that.

    1. Hi Kelly,

      I was selected in the H1B lottery for 2021. We sent our full H1B petition on June 29 by Fedex with scheduled delivery date of June 30. June 30 was the last date for H1B submission. How every, due to delay by Fedex our petition delivered to USCIS on July 1 (one day after the last due date).

      Few days ago we got noticed from USCIS our petition is rejected because of late filing. I am planning to file/request NPT. Do you think NPT would help in my case? Or NPT would allow us to resubmit our H1B petition with more chances of getting the H1B approval from USCIS?

      I really appreciates your quick responses.

      Thank You

  41. Hi Kelly,
    Thanks for your response in advance.

    My L1B was expired on 11/03/2019. My employer initiated extension by end of October.

    I was selected for H1B Lottery this year and L to H conversion filed on June 29th for the same employer. Received receipt notice on July 29th. Status is still pending with USCIS.

    My 240 days expired for L1B extension on June 30th 2020. I stopped working from July 1st.

    Unfortunately L1B denied on August 10th (5 days back). My employer yet to get the denial notice for the reason.I’m still working for the same project it got approved initially 3 years back.

    I can’t travel out of country as my wife is currently pregnant and doctor advised not to travel due to high risk in COVID-19 and provided a medical certificate for the same.

    What is the best option for me?

    1) Can we apply L1B extension in Nunc pro Tunc considering my wife’s situation?

    2) i assume I’m in out of status from August 10th(L1B extension denied) . How long can i be in out of status and will it impact my H1 conversion?

    3) If it impacts H1, will it affect only the COS or the H1 petition itself ?

    4) Chances of getting H1B approved under consular processing if it affects only COS?

    5)Again if H1 gets approved under consular processing, we need to travel out of country to get it stamped and can’t come back until December end due to the new proclamation.

    6) what can be done to avoid the out of status from August 10th to October 1st if H1 approved with COS by any chance ?

    Can you please suggest me the best option considering my wife’s pregnancy and health?

  42. Hi Kelly,
    Thank you so much for replying for replying all our queries. It was really helpful. I have a same situation in terms of my H1B
    My I94 expired on June 2019 which CBP matched based on my passport expiry date. (I94 – 06/2019, H1B expiry – 09/2020, old passport date – 06/2019 according to the system I overstayed more than 420 days counting )
    I have renewed and got the new passport but I didn’t notice my I94 expiry date and honestly I didn’t even know I94 plays major role in terms of lawful presence later. I got to know from my lawyer during the preparation of my H1B extension. As per the suggestion of my Lawyer I tried calling CBP Deferred Site but no luck. Finally we ended up filing H1B through NPT with Premium processing on 08/21/2020, It’s delivered to USCIS already. Lawyer was stating it’s kind of hard to get extension for me as USCIS will state that the fault of not checking could be me. I’m kind of little nervous right now. I just want to check with you and below are questions and I really appreciate if you could share any ideas for me to proceed forward.
    1.Will my H1b-NPT will get approved for 420+ overstayed days?
    2. If not, What are other options do I have right now
    3.If not, Can I appeal back for the worst case scenario
    4. Just curios question, Is there a way I could try for other CBP sites to check my luck while my H1B in process
    Please suggest
    Thank you

  43. Hi Kelly,

    I heard a lot of good feedback on you.
    Just reading on each and everyone case you really amaze me.
    Hoping you could give me a good advise for my options.

    My current lawyer who filed my 140, H4 extensions and I-485 never noticed that
    I don’t have a valid I-94 during the filing of my I-485 (filed October 2019)
    My family already got the GC EAD and just waiting for interview schedule (but it was cancelled last April 2020 due to covid).
    Problem occured when we have to file Nunc Pro Tunc last April 2020 to correct the H1b tranfer petition
    (previous lawyer filed I-797 as consular processing) 2nd lawyer never notice about my expired I-94
    We just got the approval on Nunc Pro Tunc this week but only approve for future dated date April 30, 2020 to March 2021.
    My starting date of my employment was not covered from March 12, 2018 – April 29,2020
    Which leaves me a gap status with occuring unlawful status and unauthorized work for more than a year (10 year bar based on my research).

    Can I refile my Nunc Pro Tunc again to ask to cover the backdated date?
    Can I use the Nunc Pro Tunc as an evidence to proof that it was not my mistake during the GC interview?
    I have no idea what are my options to fix this before getting a new schedule for GC interview. Hope you can give some advise.

    Thanks in advance!

  44. This made my day Kelly! Our lawyer is not answering our calls and email so we’re like hanging and no once to ask. I never knew about Nunc Pro Tunc for H1b cannot backdate due to LCA so I thought I still have to worry about the gap status. Since most of the thread I’ve read was approved for backdated date. Your understanding is correct based on my lawyer, I’ve been out of status for more than 180 days so they filed Nunc Pro Tunc to fix the issue while my green card is still pending. I’m really glad that I take a chance on asking you this. I can enjoy my weekend with having peace of mind. Thank you so much
    Kelly! Have a great weekend!

  45. Hi Kelly, I went through most of the posts and I’m really impressed by the kind of service you are doing. Thanks for it!

    I’m on H1b was working for employer A with i94 valid until May 22, 2020 so were my wife and son’s i94, valid until May 22, 2020. I changed my employer in January 2020, the company B applied for my transfer, there was RFE on transfer in March and then Covid 19, flights ban to India when my I94 was approaching and I had these tensions in mind. Later RFE is submitted and I got my extension approved on July 27 until Aug 27, 2020. When I received the approval copy, I realized the H4 extension was not submitted. Employer applied for H4 extension using NPT, in the request letter they have mentioned that we did not notice the last date of I94. Is it good enough to expect an approval?

    After Aug 27, there was another extension submitted for my h1b, this time they did not file for H4 extension citing my wife and son are already in out of status for some time. My H1b is approved now. Can I apply for extension using NPT again while my previous NPT extension is in process?

  46. My wife’s I-94 expired 45 days ago due to passport expiration. Her H1B is still valid till Aug 2021 but we are concerned about accumulating out of status time. Some follow up questions:
    1. Is it better to leave country and file NPT after leaving country to avoid accumulating out of status time?
    2. Is premium processing allowed on NPT?
    3. How long does it take for NPT approval on an average on premium processing?
    4. If NPT gets approved, will USICS automatically remove the gap of 45 days?
    5. If NPT is rejected and it takes 3 months for the results, will her out of status time be 45 days + 3 months or will it be just 45 days?

  47. Hi Kelly, Are there any issues during I-485 if applicant able to resolve these issues thru NPT (Nunc Pro Tunc). I had similar situation back in 2011 and got resolved and went for stamping in home country. During VISA appointment officer mentioned to me your not in out of status. Could assume I-94 is back dated thru NPT. Kindly let me know.

  48. Hello Kelly,
    My I-94 expired due to passport expiration while my visa is still valid till next year. My employer filed nunc pro tunc petition which got approved today with status as “Case Was Approved And My Decision Was Emailed” (based on USCIS website status). I haven’t received the physical documents yet, but wanted to check if approval with consular processing a possibility in this case? If Yes, do I need to leave immediately? Will I be eligible for dropbox?

  49. Hi Kelly,

    Really need your advise about my case.
    Got the approval of my Nunc Pro Tunc H1b petition till this date of file April April 2020 up to February of 2021 but it was not back dated.
    I have counted the days and it looks like I accumulated more than 180 days of gap out of status from the time of petition of my employer and time of filing of my I485. I’ve received I485 interview notice and worried on what to say to the USCIS officer. Please help if I need a lawyer to speak with us during the interview. I appreciate your response on this matter. Thank you so much and God bless…

  50. Hi Kelly

    Thanks a lot for answering the questions related to Nunc Pro Tunc.

    My H1B extension was denied on 11/5 and my company’s lawyers are planning to re-file my H1B again. My reason for denial was that the job does not qualify as a Specialty Occupation. So we are planning to file the new H1B under different SOC code. My I-94 expired in 9/2020.

    1) What details can we include to make a better case for the NPT request

    2) Does having a new LCA impact the outcome of the NPT request as the LCA would not cover the period since 9/20 or if NPT request is granted it would not matter?

  51. Hi Kelly, thank you for the support and knowledge you’re offering to anxious minds in these crazy times!

    My situation:
    * I-94 expired June 8, 2020 (same as passport)
    I had no clue that this was a thing to be dealt with (point noted for future)
    * I-797 was valid until March 2021
    * Employer submitted PP NPT H1B extension Nov 23, 2020.
    * Case status shows receipt Nov 25, 2020

    ** My 180 days of ULP are up on Dec 4, 2020 **

    1) Should I leave to avoid going beyond 180 days?
    2) If I do, does my NPT application get abandoned?
    3) If the USCIS website showed “Approved” as case status on Dec 4, would it mean I don’t have to leave? Or do I need the I797 to be certain?

    Really really appreciate your help! 🙂

  52. Hi Kelly,
    I came across this post and I’m amazed by your patience! My mom is here on a B2 visa. Due to some unfortunate events, her I-94 expired 200 days ago and she doesn’t have a I-539 extension approved. Now it looks like the only option is applying for I-539 online with NPT. Is explaining how my mom meets the 6 NPT requirements in the cover letter same thing as filing NPT? Or is NPT a separate document? Can I do it myself or is an attorney required for filing I-539+NPT?
    Thank you so much!

  53. Hello Kelly,

    Thanks for your great service to this community. It means a lot to all of us.
    I am into the following situation and appreciate your expert advise on the same.

    1. H1B visa max out date Dec 10th 2020, i-94 expiry Dec 10th 2020
    2. COS from H1 to H4 filed on Dec 7th, 2020. I wanted to travel back to India but could not do that due to spike in the COVID cases across US and the world.
    3. PERM approval received on Dec 9th, 2020 one day before max out date.
    4. I-140 approval received on Dec 22, 2020
    5. Now my i-140 sponsoring employer is considering to file H1B extension based on the approved i-140. I know, it can be done by requesting consular processing but that means I will have to travel out of US and in this situation it is not advisable. Can we make use of NPT to get i-797A approval (without consular processing) with a valid i-94? Please advise

  54. Hello Kelly,
    My I94 expired in the end of Oct2020 concurrently along with my old passport.
    My I797 is valid till end of March2021. I also have an H1b visa in my old passport with a validity date till end of March 2021.
    I did not realize my I94 expiry date was my that crucial.
    In jan 2021 my employer realized my I94 was expired when they started looking into my H1b extension.
    Based on your answers to people in similar situation filing a nunc pro tunc extension seem to be the best option.

    I am trying to convince my employer to file NPT.

    Based on your experience What do you think are the chances of getting an extension approved in NPT in such situations?

    Thank you.


  55. Hi Kelly,

    I am in tricky situation right now. I have valid H1b/I797 (Expires on sep 2nd 2021). I was planning a trip to India and checking with my company attorney and making sure that I am good to travel. And that’s when they realized that I 94 expired on 4th August 2020 (Expiration along with my old PP). I know I have already shot 180 days. Now my company has filed for NPT in premium. I am in the US since 2012 and never overstayed. What are chances of NPT approval? Upon approval do I need to leave the country ASAP and renter? Worst case my company is planning to sending to other countries but this overstay issue can create problem from getting work visa from another country?

  56. Hi Kelly,
    It is not related to NPT. Apologize to ask it here. Hope you will respond back.

    It is related to my New H1B Visa. My H1B visa was filed on June 2020 as change of status(COS) when i was in in US in L1B Visa. My L1B Visa extension got denied in August and i moved to Canada. Hence, my H1B got approved as Consular process instead of COS. I booked my Visa appointment on March 23rd in Toronto. As i was in US when the presidential proclamation PP 10052 related to travel ban introduced on June 24th 2020, am i eligible for exception?

    Though PP 10052 is expiring on March 31 2021, i might not get a date in near future if i miss this interview date.

    Please let me know what can be done here.

    Thanks for your response.

  57. Hi,
    I have applied for h4 NPT and received approval.

    However i-94 has not been backdated, that means there exists a gap in i-94, so to remediate this gap, what options do we have to bridge this gap.

    Please let me know


  58. Hi Kelly,
    I am in a tricky situation. My H1B was approved through consulate processing on 03/03/2020. I have my CPT valid until 06/27/2020. I did not realize that my CPT was ended on 06/27/2020 and when I asked for my attorney to apply for change of status on 01/20/2021 I realized that my SEVIS was terminated on 03/03/2020. I contacted my school and they said it is an error on USCIS side. My attorney applied for NPT for change of status. The COS is approved for current date and I received my i797 starting 02/22/2021 along with i94.
    Now my question is can I go to India and get my visa stamped? Will I have any issues at immigration or visa stamping? Is the 3 year bar still valid in my case?
    Could you please help me with these questions.

  59. Hi Kelly,
    Thanks for all the details that you are providing on this website.
    I was out of status for more than 180 days, my attorney has filed for NPT and got approved. But the H1 dates are from the current date and they did not cover the out-of-status period. Now can I go to my home country and get my visa stamped? will the 3 year bar kick in? will there be any problem during immigration? Thank you for your response in advance.

  60. Hello Kelly,
    This is not with regard to NPT hope you can provide some guidance. My husband company filed for our AOS this October 2020. We couldn’t get my Birth certificate on time for filing, but got the same in December with discrepancy in my DOB . I immediately corrected my passport. Can you please let us know how to inform USCIS before I get my EAD. I’m from India. Thanks.

  61. Hey Kelly-
    thanks again for answering all the questions. Please help me with my situation below.

    I had filed for my H1b extension on oct 2020 and it got denied in May 2021. My i94 expired in Dec 2020.
    My current employer is not willing to repeal and do a NPT either and wants me to leave back to India ASAP and the situation in India due to COVID is very bad. I have a 5 week old son.

    Meanwhile I have another employer who is ready to transfer my H1b or file a new one. Can I have the new employer file a H1b in premium processing with NPT?

  62. Hi Kelly,
    This is the best blog I have read on NPT H1b Extension. Can you please review my case and help answer a few questions?
    1. H1b and i94 on I797 approved on April 2019 till May 2022
    2. Last entry into the USA, my I94 was truncated to Oct 2020 to match my Passport expiry date.
    3. I realized that my I94 has expired on 21st May 2021. (180+ day)
    4. My employer is filing my NPT H1b extension.

    Normally, this would not happen as I travel internationally every 3 months but due to Covid-19, I couldn’t travel (with my new passport). Frankly, I was not aware of this i94 admit-only date.

    1. What are the possible outcomes of the NPT H1b extension?
    2. I heard that sometimes the H1b extension would be approved with backdated i94. What does that mean? Would it clean the slate?
    3. What would happen if my H1b extension is approved but i94 not backdated?
    4. Connected with point 3 above, if my i797 is valid till May 2022, is my LCA also valid till May 2022? I heard that LCA can’t be backdated. Does that apply to my case?
    5. What if my H1b extension and NPT are denied? Would I have to leave the country? Would I get any grace period to wrap my belongings here?
    6. Can the NPT application include Covid-19 as a special circumstance?

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