In a recent post, this blog covered the more-complicated-than-it-seems issue of how someone can best determine exactly when their lawful immigration status in the United States expires. We discussed the matter of how, in some instances, an individual may be admitted to the United States for a period corresponding neither to the validity of the Visa they used to enter the U.S., nor to the validity period of the underlying visa petition their U.S. employer may have filed on their behalf.

In that prior post, we offered the example of an individual who is the beneficiary of an approved H-1B visa petition filed on her behalf by a U.S. employer that has a 3-year validity period, from October 1, 2022 to September 30, 2025. That individual can use that approved petition to obtain an H-1B Visa from a US consulate/embassy, and, in most instances, that Visa will be valid for the same period – until September 30, 2025. If, at the time of seeking entry to the U.S., that individual’s passport expires prior to September 30, 2025, however, U.S. Customs and Border Protection is required by regulation to limit the period of admission to the passport expiration date or, in some cases, until six months prior to the individual’s passport expiration date.[1] If the traveler is unaware of this, she may operate under the assumption her immigration status is valid until September 30, 2025, when, in fact, it would expire prior to that date.

Significant problems can arise when travelers do not discover their abridged admission period until after their lawful immigration status expires, or, similarly, in instances where some unexpected circumstance (for example, illness or natural disaster) prevents the individual from filing an application to change or extend nonimmigrant status before their current nonimmigrant status expires.

For example, using the situation above, let’s say the beneficiary of that H-1B petition traveled abroad in June of 2023. Because her H-1B visa and underlying H-1B petition are both valid through September 30, 2025, she assumes that upon entry, she’ll be admitted to the U.S. for the full duration of that petition – until September 30, 2025. However, if at the time of entering in June 2023 her passport is expiring on December 31, 2023, and if she is a member of the Six Month Club, Customs and Border Protection will only admit her to the U.S. until December 31, 2023. The I-94 issued by Customs and Border Protection at the time of her entry in June 2023 (which is valid until December 31, 2023) would trump the earlier-issued I-94 by USCIS as part of the initial H-1B petition, which was valid through September 30, 2025. This means that, as of January 1, 2024, she is out of status and accruing unlawful presence in the United States. Unless this individual retrieves her I-94 online from the Customs and Border Protection website upon her entry in June 2023 and discovers the abridged period of admission, she may be entirely unaware of her actual status expiration date until the time comes to extend her H-1B petition, which would likely not be until some time in early- to mid-2025. By then, she will no longer be in a valid H-1B status in the U.S. and, furthermore, will have been out of status/unlawfully present for over a year. What does she do at that point?

Generally speaking, in order for U.S. Citizenship & Immigration Services to grant an application to change or extend nonimmigrant status in the U.S., the applicant must be in a lawful/valid status at the time of filing the application. USCIS can, however, approve a late-filed request to change or extend status, if there are extenuating circumstances present that would excuse the late filing. This is generally known as “nunc pro tunc” relief (translated from Latin, nunc pro tunc means “now for then”).

More specifically, USCIS has the discretion to approve a late-filed request to change or extend status under the nunc pro tunc theory when four criteria can be demonstrated by the applicant: (1) the late filing is the result of extraordinary circumstances beyond the control of the applicant or petitioner and the delay is commensurate with the circumstances; (2) the foreign national has not otherwise violated their nonimmigrant status; (3) the foreign national remains a bona fide nonimmigrant; and (4) the foreign national is not subject to deportation or removal proceedings.

Notably, however, nunc pro tunc relief is ultimately a discretionary remedy. USCIS is not mandated or obligated to approve such a request, even where the four criteria above would seem to be satisfied. In practice, this is a remedy that is granted in only meritorious or extraordinary circumstances. Merely being unaware of one’s status expiration date – even in instances when the period of admission was shortened by Customs and Border Protection upon admission to the U.S. without notice given by the border officers at the time of entry – is often deemed insufficient by USCIS as a reason to grant this discretionary relief and permit a late filing. USCIS expects all foreign nationals to diligently monitor their status validity period and verify the admission period on their I-94 each time they enter the U.S.

Thus, it is critical that foreign nationals are mindful of their I-94 expiration date and retrieve their I-94 online immediately each time they enter the U.S. The sooner this issue is noticed, the more likely it is USCIS may grant a slightly late-filed request to extend status and, even if denied, the more options the individual may have for remedying their status, such as by leaving the U.S. to make a new entry. Conversely, the more time that passes before an I-94 expiration is discovered, and the longer the delay in filing a request to “extend” status after one’s status has expired, the less likely it is that USCIS will exercise favorable discretion to forgive the late filing. In the most serious of cases, if the individual’s status has been expired for more than 180 days, and a nunc pro tunc request to reinstate status is ultimately denied by USCIS, the individual could be in the unenviable position of being out of status and having to leave the United States, while also triggering a 3-year bar on returning to the U.S. due to the accrual of more than 180 days of unlawful presence (and, if the unlawful presence accrued exceeds 365 days, that bar increases to a 10-year bar).

It should also be noted that Customs and Border Protection often erroneously shortens individuals’ I-94 validity period. For example, we frequently see I-94s issued only through the traveler’s visa expiration date, even if their petition is valid for longer. In other instances, an I-94 may be mistakenly shortened for no apparent reason. If Customs and Border Protection erroneously shortens an I-94 validity period, the error can be corrected by a CBP Deferred Inspection office. However, it is not erroneous for CBP to shorten an I-94 due to an expiring passport, and CBP is not legally able to “correct” the I-94 validity period when it was properly shortened.

If you have questions about the immigration status or validity period for yourself or your employees, contact the Harris Beach immigration team to discuss the options that may be available to you. Our Immigration Law Practice Group includes immigration attorneys that work across New York State in our Albany, Buffalo, Ithaca, Long Island, New York City, Rochester and Syracuse offices. Our immigration lawyers focus on strategies – including immigrant visas for permanent U.S. resident status and temporary visas for foreign nationals – to ensure that companies are able to hire, transfer, and retain the brightest and best non-U.S. talent.

[1] USCIS regulations prohibit DHS from admitting a foreign national to the U.S. more than 6 months prior to their passport expiration date, unless the individual is a citizen of a country that is a member of the “Six Month Club.” If the individual’s country of citizenship is a member of this club, they can be admitted right up until their passport expiration date. However, if the person’s country of citizenship is not a member of this club, they can only be admitted up until 6 months prior to their passport expiration date. The only exception is for those admitted for “duration of status” or “D/S” in F-1 or J-1 status.