Nunc Pro Tunc – A Possible Relief to Late Filed Applications

Time is of the essence in immigration matters. Failing to file an application in time can result in severe consequences from an immigration standpoint. In these types of situations, applicants may invoke the doctrine of “Nunc pro tunc” as a last resort, which is a discretionary relief that can be granted by the U.S. Citizenship and Immigration Services (USCIS) in limited circumstances.

“Nunc pro tunc” is a latin expression that literally means “now for then.” Under such doctrine, acts are allowed to be done after the time expired.

The doctrine of Nunc pro tunc has been codified in 8 C.F.R. § 214.1(c)(4), which provides that failure to file for extension of stay or change of status before the period of previously authorized status expired may be excused in the discretion of the Service and without separate application, where it is demonstrated at the time of filing that:

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;

(ii) The alien has not otherwise violated his or her nonimmigrant status;

(iii) The alien remains a bona fide nonimmigrant; and

(iv) The alien is not the subject of deportation or removal proceedings.

Late Filing of Change of Status or Extension of Stay

Nunc pro tunc may be invoked in the event that an applicant failed to timely file for an extension of stay or a change of status. As a general rule, any request to change status or to extend one’s status must be filed before the alien’s current status expires (as shown on the alien’s I-94). Several reasons could lead to one’s failure to file the request in time: unforeseen circumstances such as illness or accident, inadvertency or negligence, or even poor counseling. In this type of scenario, the doctrine of Nunc pro tunc may be invoked, whereby the applicant asks USCIS to exercise its discretion favorably and grant a backdated approval of a late filed request to change or extend status.

Conditions to Invoke Nunc Pro Tunc

Even if the conditions laid out in 8 C.F.R. § 214.1(c)(4) are satisfied, USCIS has the discretion to grant the relief. Therefore, the Officer has no obligation to approve the request. The regulations provide that such requests may be approved only if the following conditions are satisfied:

• The late filing is the result of extraordinary circumstances beyond the control of the applicant or petitioner;
• The delay is commensurate with the circumstances;
• The alien has not otherwise violated her/his nonimmigrant status;
• The alien remains a bona fide nonimmigrant; and
• The alien is not subject to deportation or removal proceedings.

Thus, the alien must not have otherwise violated his or her nonimmigrant status (e.g., by having engaged in unauthorized employment), must remain a bona fide nonimmigrant, and must not be subject to removal proceedings. If those three conditions are satisfied, the alien must demonstrate that the late filing is due to extraordinary circumstances. Whether an alien can demonstrate extraordinary circumstances will depend on the facts of the case. In addition, the regulations require that the delay is reasonable in light of the demonstrated circumstances. Therefore, if an alien is seeking a change of status after his or her status expired, it is important to act promptly and file the Nunc pro tunc request as soon as possible.

Backdated Approval in Limited Circumstances

If the applicant can prove all of the above conditions and if USCIS exercises its discretion favorably, the extension of stay request will be granted retroactively to the date of expiration of the I-94. This means that there will be no interruption in the status, and therefore no violation of status.

However, for change of status requests, USCIS will typically not backdate the effective date of the change of status when approving a Nunc pro tunc request. This gap might raise some issues depending on the length of the gap due to the unlawful presence reentry bars. In this situation, the applicant would need to consult with an immigration attorney to carefully review his or her options. The attorneys at Law Offices of Deacon Zhang can discuss the best strategy for you.

Example – H-4 Spouse Extension of Stay

A typical mistake for an H-4 spouse is not realizing that an H-4 request for extension of status requires a separate filing from the principal’s H-1B application. In this situation of late filing, the H-4 spouse can file a Nunc pro tunc request submitted with the late filing, which requests USCIS to grant backdated status reinstatement.

Conclusion

In situations where a change of status or extension of stay has not been filed timely, Nunc pro tunc might be the only relief left. However, because of its discretionary nature and strict conditions, it is recommended to consult with an immigration attorney before filing a Nunc pro tunc request.

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If you have any questions about the doctrine of Nunc pro tunc, please contact Law Offices of Deacon Zhang for a case assessment, at one of our offices below.

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Disclaimer: The information provided above is of a general nature and does not constitute legal advice. You should always talk to a licensed attorney before making any decision about your case.