Nunc Pro Tunc H1B and H-4 Approvals Have Gaps in Status
Posted Nov 09, 2007
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There are times when it is necessary to request that the U.S. Citizenship and Immigration Services (USCIS) forgive someone's failure to file a request to change or extend status in a timely fashion. Requests to change or extend status are supposed to be filed before the current nonimmigrant status expires, usually reflected on the foreign national's I-94 card. Through mistakes, misunderstanding, or illnesses, however, this does not always happen as it should. In that event, it is sometimes possible to request forgiveness and file for a backdated, nunc pro tunc (legal term in Latin, meaning "now for then"), approval. Nunc pro tunc (NPT) is a discretionary remedy by which the USCIS permits a late filed request to change or extend status, based on the facts and extenuating circumstances presented. Recently, our firm has seen an increasing number of NPT case approvals reinstating status, but not backdating the I-94 to the date that the prior status expired.  
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The Vermont Service Center (VSC) has confirmed to the Murthy Law Firm that, upon the approval of NPT cases, the agency is likely to reinstate the petitioner's H-4 or H1B status, but does not always backdate reinstatement to the date when the petitioner inadvertently fell out of status. This creates ongoing problems that are intended to be addressed by a NPT approval. To learn more about NPT and the circumstances in which it is appropriate to file it, please refer to our September 8, 2006 MurthyBulletin article, Nunc Pro Tunc H1B and H-4 Cases Approved, available at MurthyDotCom.
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Gap in Status if the I-94 Card Not Backdated
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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 her/his prior I-94 card and the newly issued one, however, the person's problems are not necessarily over. If there is a gap in status that exceeds 180 days, the foreign national faces ongoing difficulties in the event of international travel or the filing of an I-485, Application for Adjustment of Status to Permanent Residence ("green card").
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Travel Concerns: 3-Year or 10-Year Bar on Reentry to the U.S.
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With respect to travel, persons who have been unlawfully present in the U.S. for more than 180 days are barred from reentering the country for three years following departure. (This increases to a ten-year bar for individuals who are unlawfully present for over a year.) Unlawful presence 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 over 180 days, there is a three- or ten-year bar to one's reentering the U.S., if s/he travels abroad. Reinstating the status without backdating the I-94, therefore, does not solve all problems in this situation.
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Another NPT Discretionary Approval Required for I-485
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Further, in cases for which the late filing is forgiven but a gap in status exists; one is not insulated from having to revisit the same nunc pro tunc argument at the I-485 Application for Adjustment of Status adjudication stage. In an employment-based case, it is still possible to adjust status to permanent residence even if the applicant has been out of status or worked without authorization for as long as 180 days. If the status gap extends beyond the 180-day point, however, then there is a problem. The individual will be left with requesting that the I-485 examiner exercise discretion and forgive the gap, since the late filing was previously forgiven. The examiner may or may not accept the argument that the person is eligible for adjustment of status to permanent residence (i.e., a "green card") because of the gap in valid status in the applicant's immigration history. This presents a problem and a certain degree of uncertainty for adjustment-of-status applicants in such circumstances.
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Conclusion
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A foreign national in nonimmigrant status should be careful not to let his/her status lapse. It appears that, in addition to the VSC, other service centers are adopting the same procedures of not backdating an individual's status when granting reinstatement. While falling out of status is beyond one's control, in many cases, the foreign national is sometimes able to fix his/her current status by having a NPT case approved. One must be ready, however, to face the consequences of arguing the same issue when it comes up at the adjustment stage. The Murthy Law Firm has been successful in arguing the same issue of gaps in status after a person's status was reinstated but not backdated. There is no guarantee, however, that the I-485 adjudicator will accept this argument in every case. Additionally, this does not resolve the problem of travel. We would urge the USCIS to reconsider this matter, and to resume granting NPT reinstatements, when appropriate. The forgiveness contained in the regulation permitting late filings is intended to be remedial. Not approving such cases with backdated I-94 cards fails to carry out the remedial purposes of the approval of the late filings.