In recent weeks, we have encountered numerous inquiries from individuals who entered the United States and received shorter validity dates or did not file an extension for the I-94 when required. Not filing an extension prior to the I-94 expiration date can have significant implications for your stay in the U.S. If not addressed promptly, leaving the U.S. under these circumstances may subject you to a reentry bar. Fortunately, there is a legal remedy available: nunc pro tunc filings.

Understanding the Issue

When entering the U.S., the I-94 is an essential document that outlines the duration of your authorized stay. Ideally, this form should mirror the expiration date of your visa or USCIS status document. However, there are times when CBP enters a shorter validity period. In some of these cases, the entered date could be an error. In which case, the individual could contact CBP to have the date corrected.

There are other instances where CBP might enter the expiration date of the individual’s passport, as it is required that you maintain a valid passport for the duration of your stay in the US. If you enter the U.S. with a passport that expires earlier than the date listed on , CBP might set your I-94 expiration date to match the passport’s expiry, rather than the visa’s validity. In such cases, CBP will not correct the date, viewing it as a procedural adherence rather than an error. This can lead to unintended overstays if not noticed and addressed promptly.

Another common issue arises with H-1B visa holders and their dependents (aka H-4 visa holders) either forgot to file the H-4 extension or did not realize that a separate extension application was required. This oversight results in a gap in status for the H-4 dependents, potentially leading to unlawful presence. It’s critical for H-4 visa holders to independently verify their status and ensure their extensions are filed timely to avoid complications. Although the H-4 status is dependent on the H-1B, USCIS views these as separate statuses and thus requires separate applications.

3-Year and 10-Year Bar

If you discover that your I-94 has expired, it is important that you do not leave the US without consulting with an attorney as your departure could trigger a bar. The 3-year and 10-year bars are critical components of U.S. immigration law, specifically related to the concept of unlawful presence. Unlawful presence refers to the period an individual remains in the United States without proper authorization. If an individual accrues more than 180 days but less than one year of unlawful presence and then departs the U.S., they trigger the 3-year bar, which prohibits them from re-entering the country for three years. Similarly, if they accrue one year or more of unlawful presence and leave, they face the 10-year bar, preventing their return for a decade. These bars are designed to penalize individuals who overstay their visas or enter the country without inspection, thus encouraging compliance with immigration laws.

Notably, minors under the age of 18 do not accrue unlawful presence. This provision is crucial because it protects young individuals—who often have little control over their immigration status—from facing severe penalties due to decisions made by parents or guardians.

Steps to Take

1. Verify Your I-94: As soon as you enter the U.S., check your I-94 information online through the CBP’s official portal. Ensure the expiration date aligns with your visa or USCIS status.If you are in the US and filed a change or extension of status, verify the expiration date on of your USCIS status document.
2. Contact CBP or USCIS for Corrections: If there’s a discrepancy on your entry I-94, visit a CBP Deferred Inspection Site or contact them for a correction. Act quickly to address this issue. For more information on how to correct CBP error, please see our website: Oops They did it Again: Correcting I-94 errors with CBP. If your expiration date is incorrect on your USCIS status document, contact USCIS directly to have the error resolved. USCIS provides options on their website: USCIS Contact Center.
3. Document Everything: Keep copies of all relevant documents, including your passport, visa, and any correspondence with CBP or USCIS.
4. Seek Legal Guidance: Given the complexities involved, consulting with an immigration attorney can be invaluable. They can assist in navigating the system and ensuring your rights are protected.

Overstayed Due to I-94 Mistake?

Nunc Pro Tunc Filings: A Possible Solution

In legal contexts, “Nunc pro tunc” refers to retroactively correcting a record or decision to reflect what should have been done initially. In immigration, it can be used to amend past errors in your status documentation.

Applying Nunc Pro Tunc in Immigration

Correcting Past Mistakes: If your I-94 expiration issue wasn’t resolved in time, nunc pro tunc relief might be sought. The nunc pro tunc requests USCIS to backdate the needed status document to avoid a gap in your status.
Legal Process: Typically, this involves filing a petition with USCIS, supported by documentation and, often, legal representation.

Conclusion

U.S. immigration procedures require vigilance and proactive measures. The discrepancy between your I-94 expiration and your USCIS status document or visa can have serious consequences if not promptly addressed. By verifying your I-94 details immediately upon entry, seeking necessary corrections through CBP, and maintaining thorough documentation, you can safeguard your legal status in the country. Please contact me at cprescott@patellegal.com if you have any questions or need assistance with filing a nunc pro tunc.