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.

5 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?

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