Nunc Pro Tunc: Addressing H1B and H4 Late Filing Issues

Here is a scenario which happens often:

H1b beneficiary entered USA using the H1b visa stamping of old employer. The beneficiary showed the H1b approval of the new employer but the CBP office issued an I-94 with an end date matching the end date in the prior employer’s H1b approval instead of the end date from the new H1b approval. Now the H1b beneficiary’s employer, after the I-94 issued at port of entry expired, became aware of the expiry of I-94.

Another scenario where the end date is less than the end date listed in H1b approval could be because of CBP’s policy to match the end date in I-94 with the expiry date in passport which could be shorter than the expiry date in H1b approval.

It is the duty of CBP (Customs and Border Protection) to issue an accurate I-94 based on the latest H-1B approval notice (Form I-797) presented by the beneficiary at the time of entry. However, errors can occur, and it is ultimately the responsibility of the H-1B beneficiary and their employer to verify the I-94 and correct any mistakes promptly.

CBP’s Responsibility in I-94 Issuance

1. I-94 Should Reflect the Latest H-1B Approval
   • When an H-1B beneficiary enters the U.S., the CBP officer should review both the visa stamp and the latest I-797 Approval Notice.
   • The I-94 expiration date should match the end date of the most recent I-797 approval, not the visa stamp (which is tied to a prior employer’s petition).
2. Common CBP Mistakes in I-94 Issuance
   • Incorrectly assigning the I-94 end date based on the old visa stamp instead of the latest I-797 approval.
   • Matching the I-94 expiration date to passport validity, which can cut short the authorized stay.

How to Correct an Incorrect I-94 Due to CBP Error

If CBP incorrectly issues an I-94 with a shorter validity than the H-1B petition approval date, the following steps should be taken:

1. Visit a CBP Deferred Inspection Site

• Many errors can be corrected by visiting a Deferred Inspection Site at a major airport or CBP office.
• The individual should bring the latest Form I-797 approval notice and passport.
• Most CBP officers will correct the mistake if it is clearly an error.

While there is no strict deadline imposed by CBP for requesting an I-94 correction, it is strongly recommended that the H-1B beneficiary approach CBP as soon as possible after discovering the error. Ideally, the correction request should be made within a few days to a few weeks of entry into the U.S.

Key Considerations for Timing

Corrections Are More Likely to Be Granted if Requested Quickly

• CBP is more willing to correct I-94 mistakes if approached soon after entry (typically within 30 days).
• If the request is made months later, CBP may refuse to correct it and refer the individual to USCIS for an H-1B extension instead.

Act Before the Erroneous I-94 Expires

• If the I-94 has already expired, CBP is unlikely to make corrections, and the beneficiary may have to leave the U.S. and re-enter or file for an H-1B extension with USCIS under Nunc Pro Tunc (NPT).

CBP’s Discretion

• Each CBP Deferred Inspection Site has different policies on how long they will accept correction requests.
• Some sites may not entertain requests after 30-45 days from entry.

Please note that CBP has the authority to initiate removal proceedings and detain an individual if, during an I-94 correction request, they determine that the person has overstayed their authorized period of stay and accrued unlawful presence. However, the likelihood of this happening depends on several factors:

Key Considerations When Approaching CBP for an I-94 Correction

1. If the Overstay is Minor (Less than 180 Days)
   • If the person recently overstayed but is still within the 180-day period, CBP may:
     • Simply deny the correction request and advise the individual to file an extension with USCIS.
     • Allow the person to leave the U.S. voluntarily to avoid further unlawful presence.
   • They are less likely to detain or initiate removal proceedings in this case.
2. If the Overstay Exceeds 180 Days
   • If CBP discovers that the individual has overstayed for more than 180 days but less than one year, they may:
     • Inform the individual that leaving the U.S. will trigger a 3-year reentry bar under INA § 212(a)(9)(B).
     • Refer the case to ICE (Immigration and Customs Enforcement) for further action.
     • Depending on CBP discretion, they could detain the individual and issue a Notice to Appear (NTA) in immigration court.
3. If the Overstay Exceeds One Year
   • If the individual has overstayed for more than a year, CBP may:
     • Warn that departure would trigger a 10-year bar under INA § 212(a)(9)(B).
     • Issue an NTA (Notice to Appear) and initiate removal proceedings.
     • In serious cases, such as those involving prior violations, fraud, or national security concerns, CBP may detain the individual.
4. If There Are Other Factors (Fraud, Misrepresentation, Prior Removal Orders)
   • If the person previously had a removal order, CBP could reinstate deportation immediately.
   • If fraud or misrepresentation is discovered, the person could face expedited removal under INA § 235(b)(1).

Best Practices Before Visiting CBP for an I-94 Correction

✅ Consult an immigration attorney before going to CBP, especially if you suspect an overstay.
✅ Check I-94 records online at CBP’s I-94 website before visiting CBP.
✅ If the overstay is significant, consider filing a nunc pro tunc (NPT) extension with USCIS instead of going to CBP.
✅ Bring all supporting documents to show that the overstay was due to an error on the part of CBP.

Best Practices for Timely I-94 Correction

• Check the I-94 online immediately after arrival at CBP’s I-94 Website.
• If an error is found, visit a CBP Deferred Inspection Site or submit a correction request online ASAP.
• Keep records of the request (emails, CBP communication, screenshots of the incorrect I-94).
• If CBP refuses to correct it, consult an immigration attorney to determine if an H-1B extension is needed.

2. Submit a Correction Request Online (CBP’s I-94 Website)

• Some ports of entry allow individuals to request I-94 corrections online via the CBP’s I-94 website (https://i94.cbp.dhs.gov).

3. File an H-1B Extension with USCIS

• If CBP refuses to correct the I-94, the employer may need to file an H-1B extension with USCIS to request a corrected I-94 before the erroneous one expires.

So above situation we are talking about the I-94 end date of H1b beneficiary not matching with H1b approval. There are also situations where the H-4 I-94 issued at Port of entry expires before the spouse’s H1b approval or H-4 I-94 that was issued by USCIS as part of spouse’s prior employer H1b approval expires and the H-4 spouse’s new employer did not file H-4 along with the H1b transfer.

This is where Nunc Pro Tunc comes into picture. Nunc Pro Tunc (NPT), is a Latin phrase meaning “now for then,” and is a legal doctrine allowing retroactive correction of records to reflect what should have been done at an earlier date. In the context of U.S. immigration law, NPT is used to excuse late filings for extensions or changes of status and to restore lawful presence when certain extraordinary circumstances prevent timely action.

For non-immigrants, such as H-1B visa holders and their dependents, NPT can be a critical tool to prevent unlawful presence, which could otherwise lead to severe consequences like three-year or ten-year bans on reentry to the U.S.

Common Scenarios Requiring Nunc Pro Tunc Relief

NPT relief is often sought when a foreign national realizes that their I-94 has expired, which can happen due to various administrative errors or misunderstandings. Some common scenarios include:

1. CBP Error in I-94 Issuance

• A foreign worker enters the U.S. with a valid H-1B visa approved for three years, but the Customs and Border Protection (CBP) officer mistakenly issues an I-94 with an earlier expiration date, matching the visa stamp from the old employer instead of the approval from the new employer​.
• If the error is caught immediately, a CBP Deferred Inspection Site may correct it. However, if discovered late, NPT may be the only solution.

2. I-94 Expiration Due to Passport Validity Issues

• Many travelers do not realize that CBP officers may limit their I-94 validity to match their passport expiration date, even if their visa is valid beyond that date​.
• The individual assumes their status remains valid after renewing their passport, but their online I-94 still shows an expired status.
• If they realize this issue after filing an application, they must request NPT relief to backdate an extension of stay.

3. Employer or Attorney Oversight in Filing Extensions

• An employer files an H-1B extension for a worker but forgets to file for the H-4 dependents​.
• The H-1B extension gets approved, but the H-4 dependents fall out of status unknowingly.
• If discovered later, the H-4 dependents must file an NPT request to have their status reinstated retroactively.

USCIS Stance on NPT Requests

1. USCIS May Grant NPT for Late-Filed Extensions

• If the request is for an extension of status, USCIS may backdate the validity date to prevent a gap in status​.
• This is common in H-4 cases, where dependents fail to extend their status along with the primary H-1B visa holder.

2. Change of Status (COS) Requests Are More Complex

• If a foreign national wants to change status (e.g., from B-2 to H-1B) using NPT, USCIS does not backdate approvals.
• This can create gaps in status, impacting future visa applications​.

3. NPT Requests Are Discretionary

• NPT is not a guaranteed solution. Each case is reviewed based on its merits and the applicant’s ability to prove extraordinary circumstances.

Legal Criteria for a Successful Nunc Pro Tunc Request

To be approved, an NPT petition must establish six key factors​:

1. Extraordinary Circumstances – The delay must be due to exceptional circumstances (e.g., CBP error, administrative oversight, employer mistake).
2. Beyond the Applicant’s Control – The situation should not have been preventable by the applicant.
3. Timely Response – The applicant must act quickly once they become aware of the issue.
4. Valid Nonimmigrant Intent – The individual must remain eligible for the visa classification they are requesting.
5. No Other Status Violations – The applicant must not have violated other visa conditions (e.g., unauthorized work).
6. Not in Removal Proceedings – If the applicant is in deportation proceedings, NPT is not an option.

If these conditions are met, USCIS may approve the request and backdate the extension, eliminating gaps in lawful status.

How to Draft a Strong Nunc Pro Tunc Affidavit

A well-drafted affidavit for NPT should include the following five key sections. This example is in context of Nunc Pro Tunc for H-4:

1. Affiant’s Personal Information

• Full Name
• Relationship to the primary beneficiary (H-4 spouse, dependent, etc.)
• Address
• Immigration status (e.g., “I am currently in the U.S. in H-4 status, dependent on my husband’s H-1B status.”)

2. Clear Statement of the Issue

• Explain the error that led to the current issue.
• Provide dates and key facts (when USCIS issued the I-94, when the error was discovered).
• Describe the assumption or misunderstanding (e.g., “I believed my H-4 status remained valid as long as my husband’s H-1B status was valid.”).

Example:
“On [DATE], USCIS issued me an H-4 approval with an I-94 (No. ________). Upon recent review, I discovered that my I-94 had an expiration date of [WRONG DATE], whereas my husband’s I-94 is valid until [CORRECT DATE]. At the time, I was under the good-faith belief that my H-4 status was valid as long as my husband’s H-1B remained active. However, I recently learned that my I-94 expiration did not match my husband’s approved validity period, which was due to an administrative oversight beyond my control.”

3. Justification for NPT (Extraordinary Circumstances)

• Explain why the mistake happened and why it was not corrected earlier.
• Describe steps taken to resolve the issue promptly after discovering it.

Example:
“I did not notice this discrepancy earlier because I relied on my understanding that my H-4 status was automatically tied to my husband’s H-1B approval. Upon discovering the issue on [DATE], I immediately contacted my husband’s employer and sought legal guidance. I was advised that I must file a nunc pro tunc request to correct my I-94. I am filing this request at the earliest opportunity after discovering the discrepancy.”

4. Request for Relief

• Clearly request a new I-94 with corrected dates.
• Mention that the correction aligns with the H-1B primary’s approved status.

Example:
“I respectfully request that USCIS grant this nunc pro tunc petition and issue me an I-94 with validity dates from [START DATE] to [END DATE] to match my husband’s current H-1B I-94. This correction is necessary to maintain my lawful H-4 status and prevent any unintentional violation of immigration laws.”

5. Supporting Evidence & Declaration

• List supporting documents attached (e.g., H-1B I-797, current and prior I-94s, USCIS correspondence).
• Include a declaration under penalty of perjury affirming the truthfulness of the affidavit.

Example:
“I have attached copies of my husband’s I-797 approval notice and both of our I-94s for reference. I hereby affirm, under penalty of perjury under the laws of the United States, that the foregoing is true and correct to the best of my knowledge and belief.”

Challenges & Risks in NPT Cases

While NPT is a valuable tool, there are significant challenges:

1. Labor Condition Application (LCA) Issue for H-1B Extensions
   • USCIS requires a valid LCA for the requested approval dates.
   • Since LCAs cannot be issued retroactively, using prior LCA along with a new one to cover the period​ can be a solution.
2. No Guarantee of Backdated I-94
   • Some NPT approvals do not include a backdated I-94.
3. Processing Delays & Costs
   • NPT requests require extensive legal documentation and explanations.
   • Premium Processing is recommended to ensure quick adjudication and the fees is expensive.

Best Practices for Employers & Foreign Nationals

To avoid reliance on NPT, consider these best practices:

1. Regularly Check I-94 Expiry Dates

• Travelers should immediately review their I-94 records after each entry into the U.S.
• Employers should track I-94 expirations for their foreign employees.
• Employers must remember to extend H-4 dependents.

3. Seek Legal Advice Before NPT Filings

• NPT petitions require strong supporting evidence and careful legal argumentation.
• Premium processing should be considered to expedite decisions.

Why Employers Should Collect the New I-94 and Update Form I-9

1. I-94 Determines Work Authorization Period
   • The I-94 governs the employee’s period of authorized stay and employment eligibility, not the H-1B approval (Form I-797) alone.
   • If the new I-94 has a different expiration date than expected, the employer may need to take corrective action.
2. Compliance with Form I-9 Employment Verification
   • Employers must ensure that work authorization remains valid and that records are accurate.
   • If the new I-94 shortens the period of stay, failing to update I-9 could lead to non-compliance issues.
3. Preventing Accidental Status Violations
   • If CBP incorrectly issues a shorter I-94 (e.g., based on passport validity rather than the H-1B approval period), the employee could unknowingly fall out of status.
   • Early detection allows corrective steps such as CBP Deferred Inspection corrections or filing for an extension before expiration.

How to Handle I-94 Updates for Form I-9

1. Request the Employee’s New I-94 Upon Return
   • Employers should proactively ask for a copy of the updated I-94 from their employee after each international trip.
2. Review the I-94 Expiration Date
   • Compare the I-94’s validity with the H-1B approval notice (Form I-797).
   • If the I-94 has a shorter date, the employer should seek legal guidance or consider filing a correction.
3. Update Form I-9 (If Required)
   • If the I-94 expiration changes the work authorization period, update Section 3 of Form I-9 (Reverification).
   • If there is no change, an update may not be required, but keeping a copy in the employee’s records is a best practice.

It will be interesting to note from legal research point of view that as per the minutes of the Legacy INS / AILA(American Immigration Lawyers Association) Liaison meeting held on October 17, 2001, a question was posed by AILA to INS regarding I-94 validity date discrepancies for H-1B nonimmigrants. AILA gave the example of an H-1B worker entering the U.S. with a new petition approval (Form I-797) but a visa is issued based on a prior petition, leading CBP officers to issue an I-94 with an expiration date matching the old visa validity rather than the new petition approval period.

According to the Legacy INS’s response at that time, if an H-1B worker held an unexpired I-797 approval notice from their current employer covering the full authorized period, they would not be considered out of status or accruing unlawful presence, even if their I-94 had expired and was not corrected. However, AILA noted inconsistencies in how District Offices and ports of entry handled I-94 correction requests in such cases. This discussion is based on older minutes from Legacy INS and may not reflect current USCIS or CBP policy. We are citing it solely for historical perspective on how a similar issue was addressed in the past. Current policies should always be verified through USCIS or legal counsel. We are pointing this out for people who may want some perspective on how one of the INS office responded in the past to a similar issue. But the current practice is to file for NPT if the CBP does not issue a correction and also look into possibility of leaving USA and reentering to avoid any 3 years or 10 years bar based on overstay after expiry of I-94.

Conclusion

Nunc Pro Tunc (NPT) is a valuable but discretionary remedy for foreign nationals who have fallen out of status due to administrative errors, misunderstandings, or unforeseen circumstances. While it provides relief in many cases, it is not a guaranteed solution, and USCIS may require applicants to travel for visa stamping instead of backdating status.

To prevent the need for NPT, foreign nationals and employers should monitor I-94 validity, file timely extensions, and seek expert legal guidance if any issues arise. So one has to weigh all the options and this is one of the most complicated issues to deal with and expert legal guidance is required.

About the Author

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

Author's website Author's posts