By Kaitlyn Garcia, J.D. | Immigration Attorney | Houston, Texas
Although a filing for an extension of stay (EOS) generally must be submitted before the expiration of an individual's previously authorized period of stay, an immigration officer at USCIS does have complete discretion to approve a late extension filing under federal regulations, specifically under 8 C.F.R. § 214.1 if the reasons for the delay warrant the discretion.
In order to request this sort of discretion, the EOS petition needs to include a “nunc pro tunc” request. Nunc pro tunc is a latin term that means “now for then.” In plainer terms, it is a decision that is made that retroactively covers an earlier date.
What is nunc pro tunc in immigration?
For immigration, a nunc pro tunc argument seeks to correct any mistakes made that caused an EOS filing to be late. In other words, when an EOS is filed including a nunc pro tunc request, the EOS is essentially asking the immigration officer to forgive or excuse the reason why the filing was filed late. If the officer agrees, the extension of status will be approved and the approval will cover any brief time that the individual might have been out of status.
What does USCIS look at when approving nunc pro tunc requests?
In choosing whether to approve a nunc pro tunc request, USCIS looks primarily at 4 things.
(1) The reasons for late filing and whether the reasons were due to extraordinary circumstances beyond the applicant’s control;
(2) Whether there is any indication that the applicant may have violated their status in some other way;
(3) Whether the applicant is a bona fide nonimmigrant; and
(4) Whether the applicant has been apprehended and placed in deportation proceedings by the service.
Nunc Pro Tunc for late H-1B and H-4 filings
For H-1B and H-4 filings, nunc pro tunc scenarios where USCIS has granted a late extension filing include employer/employee oversight of an H-4 extension when filing for an H-1B extension (i.e. not filing the H-4 along with the H-1B extension). Additionally, an overlooked H-4 change of status can also be approved using nunc pro tunc. This happens frequently when an F-1 student changes status to H-1B, but their F-2 dependent spouse did not timely seek a change of status to H-4 status. In some cases, an H-1B denial can also be corrected using a nunc pro tunc argument if extraordinary circumstances beyond the petitioner/beneficiary’s control are present. These reasons must be detailed specifically in the nunc pro tunc legal argument to be successful.
What does an approved nunc pro tunc filing look like?
If USCIS grants a late extension of status filing, the applicant/petitioner will receive an approval notice that should include the I-94 and the individual's status is restored back to the date of their previous authorized period of stay. In other instances, where USCIS does not entertain the nunc pro tunc request, the underlying petition might still be approved, but without an I-94, requiring the individual to take a trip abroad for visa stamping.
Overall, a nunc pro tunc request is entirely discretionary, but a possible remedy to keep in mind for any extraordinary cicumstances causing a late extension of status, or even in the case of a denial.