Teachers in the US Facing Mounting Challenges07 October 2010
Nimfa and Margaret are both special education teachers who obtained “J1” visas to teach in two different school districts in the US. Nimfa’s employer signed a two-year contract for a J1 visa to allow Nimfa to work, teach and engage in other exchange activities in an elementary public school in Southern California. In the same way, Margaret was able to obtain a J1 visa to teach in a school somewhere in Maryland.
When Margaret’s visa was about to expire, she was able to change status from a J1 visa to an H1B working visa. Nimfa’s employer, however, refused to change her status from J1 to H1B. She was instead asked to depart for the Philippines and obtain her visa at the US Embassy in Manila. Nimfa was hesitant to leave the US. She discovered that Margaret was able to obtain a “waiver” allowing her to change her status to a professional working visa. What is this waiver and why is it critical in changing status from a J1 to an H1B working visa? What will happen if Nimfa refuses to leave and just file for change of status anyway?
Unlike Margaret, Nimfa arrived in the US with her spouse and two minor children. She claims that she will have difficulty uprooting her children from their US school as this will cause disruption of their education especially if they have to go back temporarily in the Philippines and return to the US anyway.
Migration of Teachers
Just like the health care workers, specifically registered nurses, there was also significant recruitment of teachers to work in different school districts in the United States. Most of those who came to teach were math, science and special education teachers.
The US employers utilized the “J” exchange-visitor visa to allow these Filipino teachers to come to the US without going through the US Citizenship and Immigration Service (USCIS) process of petitioning. The reason for this is that unlike other visas, the “J1” visa does not require the prior filing of a petition with the USCIS.
Just for comparison purposes, a recruiter of a registered nurse needs to file for a petition and have that petition approved in order that the nurse may obtain the appropriate visa to come to the US. In the case of a J1 visa teacher, all that needs to be done is to obtain a Form DS 2019 Certificate of Eligibility from a designated sponsoring organization (DSO), which monitors the work provided by the prospective US employer or university.
This DS2019 is usually arranged with the DSO by a recruiter in the Philippines who also takes the effort to find the US school where the teacher will work. With the DS2019, the teacher applies for a visa on Form DS-160 with supporting documents as required by the consulate. If everything else is complete in terms of the forms and documents, the US consular officer at the embassy issues the J visa. There is no numerical limit on the issuance of J1 visa category unlike the H1B visa.
Considering that the J1 visa is the quickest way to obtain the visa for teachers, it naturally also comes with restrictions. Teachers are listed on the skills list of the US Department of State and are subject to the two-year foreign residency requirement under INA Section 212(e). What this means is that after the expiration of the J1 visa, the teacher must return to the Philippines for at least two years before being able to apply for another working visa like the H1B or L1 visa. They are also prevented from adjusting to permanent resident status unless they meet the two-year foreign residency requirement.
Waiver of the Two Years
The only way for a J1 teacher to change status without meeting the two-year requirement is obtaining a “waiver”. Most of the teachers are successful in getting a waiver by requesting “no objection” statement from the Philippine government through the Philippine Embassy. After a “no objection” statement is obtained, the teacher presents this to the Department of State which then issues an advisory opinion to a USCIS Service Center. A change of status to other nonimmigrant visa or to a permanent resident status visa is only granted if a waiver is recommended by the Department of State.
Effect of Failure to Obtain Waiver
In the case mentioned, Margaret was able to successfully obtain a “no objection statement” and a favorable recommendation from the US Department of State. This is the reason why she was granted a change of status to H1B and did not have to depart for Manila to meet the two-year physical presence requirement.
For Nimfa, her designated sponsoring organization (DSO) is not supporting her request for the “no objection” statement; hence, Nimfa is unable to change status to an H1B visa even if she has a willing employer. She has no better option but to return to Manila to avoid problems and complications on her future visa applications.
Not all of those who were able to obtain waivers have been fortunate enough to maintain their status. Despite the fact that many teachers were able to obtain H1B working visas during the last school year, many have also been terminated from their jobs because of State budget problems. Those who were terminated necessarily lost their status too unless they found new employers to re-petition for them in a timely manner.
Even those who have been able to be get approved immigrant visa petitions from their school employers are not necessarily safe as these visa petitions may still be revoked if it is discovered by USCIS that the petitioning schools are suffering from financial setback. These are just a few of the challenges for our Filipino teachers in the US.
Though it is disruptive for some teachers to meet the two-year foreign residency requirement, it may unfortunately be a necessary inconvenience in order that they not encounter future problems in their visa applications. Besides, the purpose of the J1 visa is for our teachers to bring home whatever added skills and training they have learned after their stint in the US. Considering the difficulties and restrictions imposed on J1 visa holders, maybe considering reverse migration back to the homeland may not be such a negative idea after all.
(Tancinco may be reached at firstname.lastname@example.org or at 02-8877177 or 02-7211963)