AILA Conference 2022 Day 1, Session 2: Nunc Pro Tunc

2022 AILA Conference Day 1, Session 2: What To Do If You Fall Out Of Status - Key Takeaways About Nunc Pro Tunc

Categories: Resources
Published: June 17, 2022
Tags: AILA
2022 AILA Conference Nunc Pro Tunc Session Summary:

In this video attorney Joseph Tsang covers the key takeaways from the nunc pro tunc session at the AILA conference in 2022. Learn what nunc pro tunc means, how it is used when you’ve fallen out of status, and the key factors to consider when using nunc pro tunc.

The first factor to consider using nunc pro tunc is if the filing attorney made a mistake and can admit this mistake and plead on your behalf. The second is that you should know there is a key difference between a change of status and an extension of status, and the third is that you may not need to use nunc pro tunc if a government agency can fix the original mistake for you.

Watch the full video to learn more.

Full Video Transcript
What happens if you fall out of status? If you’re out of status, well, there’s nunc pro tunc, which means “now for then”. It essentially just means retroactively you’re just doing it now what you should have done earlier. As you can imagine, if the legal system allowed everybody to do things retroactively, the whole system will break down. So obviously, it is very, very strict. Only under the most urgent circumstances will USCIS allow you to do things later that you should have done now, or the other way around.

So AILA put together an amazing group of panelists who share about this very subject [nunc pro tunc]. Let’s get to it.

Hi everyone! My name is Joseph. I’m the managing partner here at Tsang & Associates where we solve legal problems with creative solutions, and the legal problem is that some people have fallen out of status. Maybe you were here on an international student visa, and then now you fell out of status, or you were here on a tourist visa, and you couldn’t get back due to COVID. You didn’t do an extension of status on time. Or, you didn’t do a change of status on time. Or maybe you were a spouse of somebody else who had an invalid visa, and somehow the attorney helped them do a change of status but forgot about their family and so now you are out of status. So, whatever the situation, you should have done something. You should have filed the change of status or an extension, but you didn’t, and you need to do it now, and you’re begging the government to allow you to do later what you should have done. That’s nunc pro tunc.

[1:30] So here are three key takeaways. The first one, and they mentioned this in the very end, but if an attorney made a mistake. That might qualify as a nunc pro tunc exception if the attorney admits it. If they were able to write and plead on your behalf. Well, there’s this whole other case law manalazeta we could go and do that in a separate topic, but essentially that is what allows USCIS to excuse the beneficiary to excuse the applicant. If you trusted your attorney and the attorney made a mistake and you technically should sue them but you didn’t, then you just want this thing done that should have been so simple, well, maybe we’ll excuse it.

[2:06] The second major thing is that there’s a key difference between a change of status and an extension of status. When you need to do an extension of status later on when you should have done it earlier, USCIS could backdate your approval date. Which means it covers the entire duration of the time that you should have applied but you didn’t. When you do a change of status going from one status, like for example, if you’re an international student to an H-1B, for example, or an L-1, for example, and there’s a gap missing, even if USCIS accepts this late filing and approves it because of circumstances way beyond your control, well, that period of gap, they will not cover it. Which just means you are allowed to continue to stay, but later on, if you need a visa or if you need to do an adjustment of status, there might be unlawful presence that still lurks in your application, which could bar you from certain future benefits later on. So there is a key distinction between a change of status or an extension of status.

[3:13] The third key takeaway is you might not need to file this nunc pro tunc application because maybe another government agency is able to cure this defect. Maybe CBP made a mistake, or maybe, the consulate can help you fix it. So maybe another government entity is able to cure this out-of-status situation, give you the new I-94. And then, when you finally file with USCIS, well, you are in perfect standing.

[3:35] But fundamentally, these types of applications are extremely difficult. If it’s a well-known problem like an H-1B dependent that just got left out in the application. USCIS has provided memos on that, and that they recognize that’s a problem. So oftentimes, if you use those memos, you can successfully get the application approved even though there’s a huge gap. Or if it’s an international problem like COVID B-1 B-2 extensions filing again and again, USCIS might approve the case even if you don’t argue the nunc pro tunc right.

So if common sense tells you that this situation should be leniently gra,ciously approved, well, then chances are it might be. But if you’re just privileged and you want to do things late, the government might not accept it. Those are the key takeaways. If you have any questions, feel free to reach out to us. You can watch the entire thing on AILA Agora. Take care, see you next session.