In a recent post, this blog covered the more complicated than it seems question of how someone can determine exactly when their legal immigration status in the United States expires. We discussed the question of how, in certain cases, a person can be admitted to the United States for a period corresponding neither to the validity of the visa he used to enter the United States, nor to the period validity of the visa application underlying his/her United States visa application. the employer may have filed on his behalf.
In this previous article, we gave the example of a beneficiary of an approved H-1B visa application filed on their behalf by a US employer that has a validity period of 3 years, from October 1, 2022 to October 30, 2022. September, 2025. This individual can use this approved petition to obtain an H-1B visa from a U.S. consulate or embassy, and in most cases, that visa will be valid for the same period – until ‘as of September 30, 2025. If, at the time of application to enter the United States, that person’s passport expires before September 30, 2025. However, U.S. Customs and Border Protection is required by the regulations limit the period of admission to the expiry date of the passport or, in some cases, up to six months before the expiry date of the person’s passport.1 If the traveler is unaware of this, they may operate on the assumption that their immigration status is valid until September 30, 2025, when in fact it would expire before that date.
Significant problems can arise when travelers do not find out about their abbreviated admission period until after their legal immigration status has expired or, similarly, in cases where unforeseen circumstances (for example, illness or disaster natural) prevent the individual from applying to change or extend nonimmigrant status before their current nonimmigrant status expires.
For example, using the situation above, let’s say the recipient of this H-1B petition traveled overseas in June 2023. Given that their H-1B visa and the underlying H-1B petition are all two valid until September 30, 2025, it assumes that upon entry, she will be admitted to the United States for the duration of this petition – until September 30, 2025. However, if upon entry in June 2023, her passport expires 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 United States until December 31, 2023. The I-94 issued by Customs and Border Protection in time of entry in June 2023 (which is valid until December 31, 2023) would override the I-94 previously issued by USCIS as part of the original H-1B petition, which was valid until to September 30, 2025. This means that as of January 1, 2024, she no longer has a status and accumulating an illegal presence in the States s United. Unless that person retrieves their I-94 online from the Customs and Border Protection website upon entry in June 2023 and discovers the abbreviated admission period, they may ignore the expiration date altogether. of her actual status until the time to extend her H-1B petition, which likely wouldn’t be for some time in early to mid-2025. At that point, she will no longer be in valid H-1B status in the United States and, in addition, will have been without status/illegally present for more than one year. What is she doing at this time?
Generally, in order for U.S. Citizenship and Immigration Services to grant an application to change or extend nonimmigrant status in the United States, the applicant must be in legal/valid status at the time of application. submission of the request. USCIS may, however, approve a late-filed application to change or extend status, if there are extenuating circumstances present that would excuse the late filing. This is commonly known as “nunc pro tunc” relief (translated from Latin, nunc pro tunc means “now for then”).
Specifically, USCIS has the discretion to approve a late-filed application to change or extend status under the nunc pro tunc theory where four criteria can be demonstrated by the applicant: (1) the late filing is the result of extraordinary circumstances beyond the applicant’s or petitioner’s control and the delay is proportionate to 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.
In particular, however, nunc pro tunc relief is finally a
discretionary remedy. USCIS is not mandated or obligated to approve such a request, even when the above four criteria appear to be met. In practice, it is a remedy that is granted only in meritorious or extraordinary circumstances. The mere fact of not knowing the expiry date of one’s status – even in cases where the period of admission has been shortened by Customs and Border Protection upon admission to the United States without notice given by border officials at the time of entry – is often deemed insufficient by USCIS as a reason to grant this discretionary waiver and allow late filing. USCIS expects all foreign nationals to diligently monitor the validity period of their status and verify the admission period on their I-94 each time they enter the United States.
Thus, it is essential that foreign nationals are aware of their I-94 expiration date and retrieve their I-94 online immediately.
each when they enter the U.S. The sooner this issue is noticed, the more likely USCIS is to grant a slightly delayed application for a status extension, and even if denied, the more options the individual may have to remedy their status, for example by leaving the United States to re-enter. Conversely, the longer it takes before an I-94 expiration is discovered, and the longer it takes to file a request for an “extension” of status after one’s status expires, the less it is likely that USCIS will exercise favorable discretion to pardon late filing. In the most serious cases, if the person’s status expired more than 180 days ago and a nunc pro tuncapplication for restoration of status is ultimately denied by USCIS, the individual could find themselves in the unenviable position of being without status and having to leave the United States, while also triggering a ban on re-entering the United States 3 years due to the accumulation of more than 180 days of illegal presence (and, if the accumulated illegal presence exceeds 365 days, this bar changes to a bar of 10 years).
It should also be noted that Customs and Border Protection often wrongly shortens the validity period of individuals’ I-94s. For example, we frequently see I-94s issued only until the traveler’s visa expiration date, even if their application is valid longer. In other cases, an I-94 may be mistakenly shortened for no apparent reason. If Customs and Border Protection mistakenly shortens an I-94 validity period, the error can be corrected by a CBP Deferred Inspection Office. However, it is not wrong for CBP to shorten an I-94 due to an expiring passport, and CBP is not legally able to “correct” the validity period of the I-94 when has been correctly shortened.
If you have questions about immigration status or the 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 who work throughout New York State in our offices in Albany, Buffalo, Ithaca, Long Island, New York, Rochester and Syracuse . Our immigration lawyers focus on strategies – including immigrant visas for permanent resident status in the United States and temporary visas for foreign nationals – to ensure businesses are able to hire, transfer and retain the brightest and best non-American talent.
1. USCIS regulations prohibit DHS from admitting a foreign national to the United States more than 6 months before their passport’s expiration date, unless the individual is a citizen of a “Six Month Club”. If the individual’s country of citizenship is a member of this club, they may be admitted until the expiry date of their passport. However, if the person’s country of citizenship is not a member of this club, they can only be admitted up to 6 months before the expiration date of their passport. The only exception concerns people admitted for “duration of status” or “D/S” in F-1 or J-1 status.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.