When filing for an extension of nonimmigrant status, the extension must be filed prior to the expiration of your current status. An extension of status request filed where your existing status has already expired would be voided, because there would be no existing status to extend. However, in some situations with extraordinary circumstances, USCIS has the discretion to approve late filings.
Under 8 CFR 214.1(c)(4)
(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances;
(ii) The alien has not otherwise violated his or her nonimmigrant status;
(iii) The alien remains a bona fide nonimmigrant; and
(iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act.
A late filing under 8 CFR 214.1(c)(4) would be considered a nunc pro tunc filing. In Latin, nunc pro tunc means “now for then.” If USCIS determines there were extraordinary circumstances in your case that caused a late filing, your approval can be backdated to the date when a timely file extension would have taken place.
A nunc pro tunc filing may be appropriate:
- Your I-94 was shortened upon entry and has now expired
- Dependent applicants are left off of a change of status or extension of status request
- Other situations where you may have fallen out of status due to extraordinary circumstances
Of course, a grant of a nunc pro tunc extension is discretionary. This means USCIS and the officer reviewing the case have the power to decide if your particular circumstances warrant an approval. It is possible that your petition can be approved but the nunc pro tunc extension of status denied. This means that you would be required to travel outside of the United States and obtain a visa (if necessary*) before returning.
If you overstayed your I-94 expiration by 180 days or more, you would be required to obtain a waiver before returning as well. To obtain the waiver, the Department of State would recommend your application following your Consular interview. Your file would then be forwarded to the Admissibility Reviews Office for a decision which can take several months. If the waiver is approved, your visa will be issued.
* Note that generally Canadian citizens are visa exempt except in certain circumstances. For non-Canadians and Canadians that require a visa - even if you have an existing, valid visa in your passport it may have been cancelled if you overstayed the validity dates.
Contact the Law Offices of James D. Eiss today to schedule a consultation about nunc pro tunc filings.