“Nunc pro tunc” Equitable Remedy for Nonimmigrant Petitions

By: Jagan Tamirisa

“Nunc pro tunc” is a Latin expression which signifies “now for then”.  In immigration law, the expression refers to the equitable cure for noncitizens who are beneficiaries of nonimmigrant petitions (such as L-1, H-1, R-1, O-1 etc.)[1] A similar provision is offered for noncitizens to whom the Child Position Safety Act (CSPA) applies and who failed to go after their long term home in just one particular-year of visa availability.[2]

Nunc professional tunc refers to the discretionary electric power of USCIS to take care of one thing done now as productive as of an earlier date. When a make a difference is adjudicated Nunc pro tunc by USCIS, it is successful as if it were completed as of the time that it ought to have been finished.[3] Ordinarily, in nonimmigrant petitions filings, it yields a final result that will put the noncitizen in a a lot more snug lawful position than he would be without the need of it. For case in point, a noncitizen can transfer back from illegal status to legal nonimmigrant status allowing for them to pursue their environmentally friendly card apps. This solution is also offered to nonimmigrant dependent filings much too (these as L-2, H-4, R-2 etcetera.)

The limitation of the Nunc pro tunc treatment is that the petitioner cannot use this remedy to right their possess faults or retroactively improve disqualifying situation of their possess building.

For nonimmigrant petitions, the normal rule of legislation is that the petitioners are expected to create eligibility for the nonimmigrant reward as of the petition’s submitting date.[4] When the noncitizen trying to find the reward is bodily existing in the United States, they should display they have and are actively maintaining valid nonimmigrant position..

There are many scenarios that can crop up when a Nunc pro tunc can aid a noncitizen who is bodily present in the United States and falls out of position owing to amazing circumstances outside of noncitizen’s handle. This sort of circumstances can be in various types such as but not minimal to:

•  when an employer files a nonimmigrant petition for the principal applicant and leaves out the dependents who subsequently fall out of position
• when CBP challenges a shorter validity time period on the I-94 and the noncitizen is not mindful of it
• when CBP matches the I-94 expiration date with that of the passport expiration day and the same is not noticed by the noncitizen because the I-797 approval detect has a for a longer time validity period and the employer and noncitizen assumes all is properly
• when the USCIS reissues a different I-797 acceptance recognize with a lessened I-94 validity day without the need of recognize
•  when the USCIS approves a petition, and the approval discover arrives with an by now expired I-94 date (as it experienced happened quite a few occasions in the prior administration)

Travel is not an selection for noncitizens with expired visas, who are facing these instances for the reason that overseas visa appointments are unavailable, and, where obtainable, U.S. Consulates are routinely issuing visa refusal notices beneath INA Sec. 221(g) (when they come across the software wants to be topic to administrative processing that are delaying visa issuance by far more than 6 months). For this kind of noncitizens, Nunc pro tunc treatment is the option.

Nunc pro tunc solution falls beneath 8 C.F.R. §214.1(c)(4) that allows USCIS to exercise discretion and justification a failure to preserve nonimmigrant position provided the subsequent limited disorders are achieved:

1. The scenario arose owing to remarkable instances.
2. The incredible conditions are beyond the command of the applicant or petitioner.
3. The USCIS finds the delay commensurate with the situation.
4. The noncitizen has not in any other case violated his or her nonimmigrant position.
5. The noncitizen remains a bona fide nonimmigrant, and
6. The noncitizen is not the issue of deportation proceedings below portion 242 of the INA Act.

Some illustrations of extraordinary circumstances are really serious disease, legal, mental or actual physical incapacity, loss of life of member of the instant loved ones and many others. Other illustrations consist of courier delivery failures, lacking signatures, bounced look at, in some cases ineffective assistance of counsel and so on. In purchase to figure out if an particular person application fulfills the specifications, even further assessment of individual facts and instances encompassing their nonimmigrant filing will be executed. Even if these elements are in noncitizen’s favor, the aid will be provided only if USCIS finds the hold off commensurate with the situations. Usually, the greatest way to make your scenario is to supply affidavits, with credible corroborative evidence, that demonstrates the applicant is facing an remarkable circumstance.

The Nunc professional tunc aid does not apply in the occasion where the noncitizen failed to sustain standing through a disqualifying celebration that took position in the course of the interval earlier authorized. For illustration, if the noncitizen frequently adjusted companies (creating bridge petitions) prior to the nonimmigrant standing was because of to expire or violated their nonimmigrant standing in a fashion unrelated to the expiration of that standing.

Finally, in the scenario of an extension petition where by the petition was well timed filed and the I-94 had than expired and the noncitizen is beneficiary of 240-times function authorization extension,[5] the approval of these types of timely-filed extension petitions is always regarded Nunc pro tunc, effectively masking the interval from the working day the I-94 expired to the approval date of the extension.[6]

In conclusion, petitioners must choose a careful method to Nunc professional tunc reduction and appraise all possible info encompassing the nonimmigrant submitting and be certain that sufficient credible evidence is submitted to persuade USCIS to exercise favorable discretion in the subject. To study far more about Nunc professional tunc relief, situation unique concerns, or to see if making use of is proper for you make contact with the dependable Chugh, LLP immigration crew.

[1] See 8 C.F.R. §214.1(c)(4)
[2] See 8 C.F.R. §208.4(a)(5)
[3] See Matter of A-, 3 I. & N. Dec. 168, 172-73 (BIA 1948) (remedying a prior failure to waive grounds of exclusion by entering an get Nunc pro tunc).
[4] See 8 C.F.R. § 103.2(b)(1), Make any difference of Izummi, 22 I&N Dec. 169, 175 (Comm’r 1998), and Subject of Katigbak, 14 I&N Dec. 45, 49 (Reg’l Comm’r 1971)
[5] See 8 CFR § 274a.12
[6] See Make any difference of Dacanay 16 I&N Dec. 238 (BIA 1977).