Filing a Nunc Pro Tunc Request to Reinstate Status in the U.S.

There are times when it is necessary to request that the U.S. Citizenship and Immigration Services (USCIS) forgive someone’s failure to timely file a request to change or extend status. A request to change or extend status typically must be filed before the current nonimmigrant status expires, usually reflected on the foreign national’s I-94 card. Due to a misunderstanding, illness, or just human error, however, this does not always happen. In that event, it is possible to request forgiveness and file for a backdated nunc pro tunc (legal term in Latin, meaning “now for then”), approval.

Legal Requirements for Filing a Nunc Pro Tunc

Nunc pro tunc (NPT) is a discretionary remedy by which the USCIS may approve a late filed request to change or extend status, based on facts and extenuating circumstances presented. Specifically, the USCIS has the discretion to approve a NPT request if it is demonstrated that: (1) the late filing is the result of extraordinary circumstances beyond the control of the applicant or petitioner and the delay is commensurate with the circumstances; (2) the foreign national has not otherwise violated her/his nonimmigrant status; (3) the foreign national remains a bona fide nonimmigrant; and (4) the foreign national is not subject to deportation or removal proceedings.

NPT is a Discretionary Remedy

It is important to stress that the USCIS decision on whether to approve a late-filed request to change or extend status is discretionary. In other words, the USCIS has no obligation to approve the request. However, the USCIS does have a duty to provide a rational explanation as to why discretion was not exercised when an NPT request is submitted.

Extension of Status Can be Backdated but not a Change of Status

The USCIS has explained that it normally would grant an effective date of a change of status (COS) as of the date of adjudication (or a future date requested by the applicant or petitioner). Essentially, when the USCIS adjudicates such requests, it generally does not change an applicant’s status retroactively.

In contrast, if an NPT request is favorably considered for an applicant seeking an extension of status, the USCIS will typically backdate the validity date to close the gap in status. This is helpful in many cases, since it is common for applicants to fail to extend a dependent status, such as an H-4 dependent, when the petitioner files to extend the status of the primary spouse.

Gap in Status if the I-94 Card Not Backdated

In instances where the late filing is forgiven, but not backdated, a gap exists in the foreign national’s status history. Thus, by approving the case and forgiving the late filing, the person, once again, is in valid nonimmigrant status.

If there is a gap between the prior I-94 card and the newly issued one, however, the person’s problems are not necessarily over. If the gap exceeds 180 days, the foreign national likely will face ongoing difficulties in the event of international travel or the filing of an application to adjust status (form I-485).

Travel Concerns: 3-Year or 10-Year Bar on Reentry to the U.S.

With respect to travel, a person who has been unlawfully present in the United States for more than 180 days and then departs the country is then barred from reentering for three years. This increases to a ten-year bar if the individual accumulates more than one year of unlawful presence.

Unlawful presence (ULP) is measured from the time when either the I-94 expires or there is a finding that one is out of status. Thus, without a valid I-94 for more than 180 days, there is a three- or ten-year bar triggered upon departing the U.S. Reinstating the status without backdating the I-94, therefore, does not solve all problems in this situation.

Another Discretionary Approval May Be Necessary for I-485

Further, in cases for which the late filing is forgiven but a gap in status exists, the foreign national is not insulated from having to revisit the same NPT argument at the I-485 stage. In an employment-based case, it is still possible to adjust status to permanent residence even if the foreign national has been out of status or worked without authorization for up to a maximum of 180 days. If the status gap extends beyond the 180-day point, however, or if the I-485 is not based on an employment-based immigrant petition, the individual must request that the USCIS exercise discretion and forgive the gap.

NPT Especially Challenging for H1Bs

Filing an NPT for a person whose H1B status has expired, and who wishes to resume H1B status, tends to be problematic. This is because a valid LCA covering the period requested is required in order for an H1B petition to be approved. And, unlike status, an LCA is not ordinarily approved retroactively. Therefore, unless the petitioning employer has a valid LCA to cover the period requested, getting an NPT approved to cover any status gap is unlikely.

Common Problem with H-4 Dependent/s Not Extending Status

One of the most common scenarios in which an NPT application is needed involves an H1B principal being granted an extension, not realizing that a separate application is necessary to extend the status of each H-4 dependent family member. Depending on the circumstances, the best approach in this situation may be for the H-4 dependent to leave the U.S., apply for a new H-4 visa foil (commonly referred to as a visa “stamp”), and then return to the U.S. in H-4 status. In some cases, however, this is not an option. If the I-94 has lapsed for 180 days or more, as explained above, departure from the U.S. would result in the imposition of a temporary bar to reentry. Therefore, filing an extension of status with an NPT request may be advisable. An H-4 dependent in this situation should consult with a qualified immigration attorney.

Conclusion

Taking steps to avoid the need for an NPT is virtually always preferable to relying on an NPT request to regain valid status. But, if one faces a situation in which the legal status has expired or been revoked, it may be worth considering an NPT request. Given that this is a discretionary benefit, however, it is important to understand the risks involved. One should consult with an experienced immigration attorney before filing an NPT request.

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