Ustun Law Group, PLLC

What is Nunc Pro Tunc?

Nunc Pro Tunc is a Latin phrase which means “Now for then”

How Nunc Pro Tunc Can be Used in The Case of Extensions or Status Change Date?

  • 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 unavoidable life situations like illness, or human error the nonimmigrant in question might forget to change or extend current nonimmigrant status
  • It is not advisable to wait that long, but under certain conditions, this mistake might be forgiven by USCIS
  • In such cases, a backdated nunc pro tunc approval request can be filed to USCIS.

Please note not all Nunc Pro Tunc (NPT) requests are approved.

The Conditions for Approval of Nunc Pro Tunc:

  • 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
  • The foreign national has not otherwise violated her/his nonimmigrant status
  • The foreign national is a bona fide nonimmigrant
  • The foreign national is not subject to deportation or removal proceedings

Please Note:

  • USCIS decision on whether to approve a late-filed request to change or extend status is discretionary
  • The USCIS has no obligation to approve the request
  • The USCIS is obliged to provide a rational explanation as to why discretion was not exercised when an NPT request is submitted

What is the Difference Between Backdated Status and Change of Status?

 There is a difference between the two for the following reason:

  • The USCIS 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 for H-4 dependent when the petitioner files to extend the status of the primary spouse

Is the 1-94 Automatically Backdated?

  • It is not always true
  • At certain instances, a late filing is forgiven, but not backdated which leaves a gap in a foreign national’s history
  • The nonimmigrant status will become valid again, but the gap will remain
  • If the gap exceeds 180 days, the foreign national likely will face ongoing difficulties in the event of international travel
  •  There will also be a problem while filing of an application to adjust status (form I-485)
  • If the status gap extends beyond the 180-day point, in case of the employment-based case the individual must request forgiveness from USCIS
  •   if the I-485 is not based on an employment-based immigrant petition, the individual also must request that the USCIS exercise discretion and forgive the gap.

What are Future Concerns?

  • 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
  • If the individual accumulates more than one year of unlawful presence the bar becomes 10 years
  • 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
  •  Hence, 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, hence, will not solve all problems in this situation

Why is 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
  • Because a valid LCA covering the period requested is required in order for an H1B petition to be approved
  •  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 extremely difficult

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

  • There are times when H1B principal being granted an extension, without realizing separate application is necessary to for status extension for the dependent, H-4
  • 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 stamping 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, a 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 is advised to consult with a qualified immigration attorney

 Nunc Pro Tunc for Asylum Cases

  • “Nunc pro tunc,”  refers to cases where a derivative asylee who is ineligible to adjust status as a derivative asylee may file for and be granted asylum in his or her own right
  • The grant may be dated as of the date of the original principal’s asylum grant
  • Any alien who is physically present in the United States regardless of status may apply for asylum. In certain cases
  • The nunc pro tunc process may enable a derivative asylee who is ineligible to adjust as a derivative to become a principal asylee and eligible to adjust status
  • Like any other asylum application filed with USCIS, these cases are handled by the Asylum Division of the Refugee, Asylum and International Operations (RAIO) Directorate
  •  New asylum applications can be filed by derivative asylees requesting to be considered as principal applicants
  •  If an officer encounters a case in which the applicant is not eligible for adjustment of status as a derivative asylee, the adjustment application should be denied.

NPT request should only be used only when the legal status has expired or has been revoked. Given that it is a discretionary benefit, it is important to understand the uncertainty and risk involved with the NPT approval request. Hence it is prudent to avoid the need for an NPT and file extension or change of status request on time.

If you failed to filed for an extension on time, consider taking advantage of a free thirty minutes call to briefly discuss your specific situation. For more information about our firm, becoming a client, or to schedule a consultation, please contact us using the form on this page or give us a call at 469-994-9407.