VSC Clarifies Position on Nunc Pro Tunc Requests
Posted Dec 28, 2007
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In a recent liaison meeting with representatives of the American Immigration Lawyers Association (AILA), the U.S. Citizenship and Immigration Services (USCIS) Vermont Service Center (VSC) clarified its position with regard to requests to excuse a late filing. This type of request is known as nunc pro tunc (legal term in Latin, meaning "now for then"). The question regarding nunc pro tunc cases was submitted by attorneys at the Murthy Law Firm. It was the result of our experience with the VSC's approving requests to reinstate an individual's status without backdating the reinstatement. Backdating the approval is necessary to accomplish the goal of reinstating a proper, uninterrupted status history.
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This matter was reported to MurthyDotCom and MurthyBulletin readers in our November 9, 2007 article, Nunc Pro Tunc H1B and H-4 Approvals Have Gaps in Status. That article described a common pattern of adjudicators reinstating the requested statuses, issuing I-94s from the approval date valid through the requested extension period. They were not always backdating the approvals to the dates when the statuses initially lapsed, however, thus creating status gaps. These status gaps may present serious problems when these individuals apply for future immigration benefits or when they need to travel.
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VSC May Backdate Extensions of Status - Not COS Requests
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In response to the question submitted by the Murthy Law Firm for clarification on the nunc pro tunc adjudication process, the VSC 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). When the VSC adjudicates such requests, it does not change an applicant's status retroactively. In contrast, if a nunc pro tunc request is favorably considered for an applicant seeking an extension of status, the VSC 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 dependant status, such as an H-4, when the petitioner files to extend the status of the primary spouse.
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Conclusion
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One who files a nunc pro tunc request to excuse her/his failure to file an application or petition for change of status, may consider the current VSC policy not necessarily to be good news. While such individuals are able to continue in status, they may not be able to change or adjust their statuses or obtain visas at a later date. Conversely, those whose late filings for extension of status are excused, may find they have better chances of having their approval notices backdated to the dates when their statuses lapsed. But even such a case offers no guarantee that the VSC will backdate the validity dates to close gaps in status. Either type of nunc pro tunc request is entirely discretionary and is in no way a routine filing. It is always better, therefore, to try to file any applications or petitions before the current status noted on the I-94 expires to avoid having to file a nunc pro tunc request. If there are any questions as to whether a filing is needed, it is best to speak with an experienced, qualified immigration attorney.