Foreign nationals who enter the U.S. on non-immigrant visas (such as a B2 tourist) often wish to extend their stay beyond the usual 6 month period that they were granted when they arrived in the U.S., as shown on their I-94 arrival/departure record. Normally, this can be done through the filing of an I-539 Application for an Extension, filed BEFORE the expiration of the validity period shown on the I-94, and with supporting documents regarding the reasons for requesting an extension. If the application is not filed BEFORE the expiration of the validity period, it could result in a finding that the applicant violated their status and they would be ineligible to change, adjust or extend that status while in the U.S. As a further result, a violation of status could trigger INA Section 222(g) which voids the visa in the applicant’s passport and requires him/her to return to his/her country of nationality to obtain a new visa.
It is important to note, however, that even if an applicant has NOT filed the I-539 Application to Extend before the Expiration of the I-94, the application can still be filed late (out-of-time) and approved in very limited circumstances, but only if the applicant can show that:
- The failure to file was due to extraordinary circumstances;
- The extraordinary circumstances were beyond the applicants control;
- The delay in filing was commensurate with the circumstances, meaning that the explanation is reasonable and the delay makes sense in light of what happened;
- The applicant is a bona fide Non Immigrant;
- The applicant has not otherwise violated his/her visa status; AND
- The applicant is NOT in removal (deportation) proceedings
If the applicant can prove all of these above things to the satisfaction of USCIS, then the application will be granted nunc pro tunc to the date of expiration of the I-94. This means that even though the application was filed late and there was a technical break in the status, the approval will excuse the late filing and seamlessly connect the dates so that there is no break in the status. For example if the applicants status expired on October 1 and the application was filed on October 17, IF the application was approved Nunc Pro Tunc, the validity period of the extension would start on October 2. This is important because it means that even though the application was filed late, because the application was approved Nunc Pro Tunc to October 1, there was no break in status and therefore no violation of status.
If you need assistance in filing an out-of-time Application to Extend your Nonimmigrant Status in which you are requesting nunc pro tunc consideration, call South Florida Immigration Lawyer Sean D. Hummel at (954) 385-3111,