Let's Do the Time Warp Again: The Magic of Nunc Pro Tunc
Okay, a quick and painless legal lesson for both you, the lay reader, and YOU, the immigration attorney who can't remember stuff back from law school (as if I could...HA!). Today's lesson involves a scary sounding Latin phrase which really is quite simple...
According to the online 'Lectric Law Library [http://www.lectlaw.com/def2/n083.htm]:
Occasionally, a court or a party...forgets to file the papers necessary to obtain the final decree [or whatever needed doing]... If the oversight presents a problem, the court may agree to issue a nunc pro tunc order, which grants the final [decree] retroactive to the earlier date.
This phrase is used to express that a thing is done at one time which ought to have been performed at another. Leave of court must be obtained to do things nunc pro tunc, and this is granted to answer the purposes of justice, but never to do injustice. A judgment nunc pro tunc can be entered only when the delay has arisen from the act of the court." [Emphasis supplied]
So, first of all, the only way something can be corrected via nunc pro tunc is if the court (or, in our world of business immigration, the INS) messed things up. It is not a mechanism available to correct something botched by the employer, the alien, or the attorney. So, in the real world of business immigration, how does it work?
Well, you may be surprised, but it works by simply asking for it. I imagine that an awful lot of young INS Examiners have to work their way back to the crusty old veterans when they want to know what the heck a nunc pro tunc request is, but they DO get them from guys like me. Example? Here's one I just got this week and I didn't even request it. It just came from an officer who knew the law very well and did the correct thing. Back in November of 2000, we filed an I-539 request for a sweet little old lady who was visiting her first grandson, just born in the United States. She wanted to stay a few months longer than the six months given to her on the I-94. Well, I-539 processing being what it is, it took a very long time. Do you know when they got to adjudicating the case? December 2001! Grandma was LONG gone, of course, and while the officer probably figured as much, so here's what they did to make sure her next visit went smoothly. The officer issued a nunc pro tunc approval for her, dating back from the date of expiration of her original six month period of approval in B-2 status all the way through the end of January, 2002. Why? Because the officer knew that if the little old lady ever got hassled about having overstayed her visit by several months, we would have proof of that extension approval, and future visits to her new American grandson would be safe.
Pretty cool, huh? INS does stuff like that all the time, but you never hear about it because guys like me are always fuming about what they do wrong. It's a shame we don't make more time to tell you about all the cool things they do. Note to self: try to relay more cool INS stories.
In the hands of a sharp immigration attorney, nunc pro tunc is a virtual time machine, folks... a heavenly gift where INS can literally turn the clock back and undo some pretty horrific messes. Getting INS to invoke the mighty power of nunc pro tunc, however, is more of an art than a science, and here's why. I remember the early days of my practice, sitting in the horrific waiting room of the Miami INS office on 79th street, herded in and out like cattle. While I understand the relationship between most attorneys and INS staff has mellowed, the early 90s could be very tense and, as far as I could tell, both sides were at fault. While the majority of INS adjudicators were nice, reasonable people, several (now long gone) Napoleons made our lives a living hell. And the arrogance of some of my South Florida colleagues was absolutely epic. Despite the fact that we were still in administrative proceedings and not in litigation -- remember, I never did deportation or criminal alien defense -- the personalities involved made the process so adversarial.
And that, folks, is the problem today. Talk to any INS information officer and ask him or her about the phone manner of most attorneys and you will get an earful. Read the letters written by a disturbing percentage of attorneys and you will see that common courtesy and respect are NOT a part of most requests for intervention. I'm not talking groveling and fawning; I'm talking "please" and "appreciate" and "kindly."
If you are asking an overworked INS officer to please go, fetch the file, open it up, find the error, correct the error, and generate a new I-797 with retroactive validity reinstating your client's status so that her life can be back where it is supposed to be, doesn't it make sense to ask nicely?
About The Author
Jose Latour is the founding partner of Latour & Lleras, P.A., a Gainesville, Florida based business immigration practice working primarily with the IT industry and foreign investors. JELPA is an A/V rated firm whose web site, www.usvisanews.com, is one of the Internet’s most visited immigration sites. The firm was named “ONE OF AMERICA’S TOP TEN INTERNET/VIRTUAL COMPANIES” in the 1999 Inc. Magazine and Cisco Systems “Growing with Technology Awards.” Mr. Latour served as a U.S. Diplomatic and Consular Officer in Mexico and Africa before entering private practice and today divides his time between his law practice, writing, flying, and his music.