In 2008, Anne was recruited to work as a schoolteacher. She was able to enter the U.S. with an H1B professional visa valid until 2011. When her visa was about to expire, the employer filed an application to extend her visa. A short time after filing the extension, however, her employer changed its mind. She was instead informed that her contract with the school would no longer be renewed. Without waiting for the results of her extension application, she voluntarily returned to the Philippines in July 2011 to avoid incurring any unlawful presence or violation of the terms of her visa.
Last month, Anne received information from her colleague in the United States that the extension of her visa, which was applied prior to her termination, was actually approved. Since she is already in Manila, Anne is planning to return to the United States using her approved extension of visa. Unfortunately, her employer informed her that despite the approval of her extension, they stand by their decision not to renew her contract. This decision by her employer was a result of a debarment imposed on them by the U.S. Department of Labor. This debarment is a penalty that many Filipino teachers in the school district endured for unlawful acts committed by their employer. In the meantime, Anne was offered a job by another school district in the U.S. and was wondering whether she can use the approved H1B extension to apply for another working visa at the consular office of the U.S. Embassy.
Effect of Termination of Contract
By its nature, the H1B or professional working visa is an employer-specific type of visa. This means that the holder of this visa may only work for the employer who filed the petition. Termination of the contract with the employer will result also in the termination of that visa. When the visa is terminated, the H1B employee will incur unlawful status or will be an “overstaying” foreign national.
There are certain exceptions to avoid falling out of status. Termination of contract will not result in unlawful status if the H1B employee is able to change employer and file a new H1B petition prior to the date of the termination of the contract. If the timing of the change of employer is right, the H1B employee may smoothly transition from one employer to another. This is on the assumption that the job offer of the new H1B is also a specialty occupation.
Another option is to change status to another nonimmigrant status or adjust to an immigrant visa if a visa petition is available. Changing from an H1B visa status to another nonimmigrant status is not without complications. There are certain technical issues to consider. For instance, if the H1B is seeking to change status to a visitor’s visa, the eligibility requirement for B2 visitors visa must be present. This includes clear proof of the intent to return to the homeland after the visitors visa expires. The same case applies to changing status to an F1 or student visa. The H1B employee changing to an F1 must show the financial capacity to study in the U.S. and the sincere intention to go to school.
Another Filipino teacher, who was terminated by her employer, divorced her husband in the Philippines through the state courts and married her co-worker who is a U.S. citizen. An application for adjustment of status or green card was filed on her behalf by her U.S. citizen spouse after she was terminated from her employment by the school district. If this second marriage is entered into in good faith, then there will be no bar to receiving her green card. However, if this marriage was entered solely to avoid falling out of status, then the green card may not be issued and the H1B teacher may risk being place in deportation proceedings.
In changing to another immigrant status, the new visa that is being applied for may not be used to simply maintain the status but also to use it according to the nature of the new visa.
Revocation of Visa Approvals
Approval of a visa petition by U.S. Citizenship and Immigration Service indicates that the beneficiary of such petition meets all the prima facie requirement of the visa and is entitled to receive that visa. If the beneficiary is not in the United States, an application for the visa is filed with the consular office of the U.S. Embassy. Otherwise, a change of status may be effected if the beneficiary is already in the United States.
Even after the approval notice is issued, the approved visa petition may still be revoked in certain circumstances. Examples of subsequent events include withdrawal of job offer by the petitioner or termination of the employment contract. This is what actually transpired in the case of Anne. Hence, despite the approval of the extension of her visa petition, the subsequent termination of her contract resulted in the revocation of the approved visa petition. She may no longer use the approval notice to apply for the new H1B visa as it has been considered revoked under the law.
New H1B Visa Petitions
Finding a new employer to petition Anne may be the best solution for her to return to and work in the United States. This new employer needs to file a new H1B petition on her behalf. Once it is approved, the U.S. Embassy should issue her a new visa if there are no other barriers to receiving the new H1B visa.
On November 23, 2011, the U.S. Citizenship and Immigration Services announced that the H1B cap of 65,000 for fiscal year 2012 had been met. This means that no new H1B visas may be accepted for filing until next year. Change of employers for current H1B visa holders, however, will still be accepted. For Anne, her H1B visa is no longer current after her termination and, unfortunately, she is subject to the cap and may only file for her new H1B visa sometime next year 2012 when the USCIS announces acceptance of new working visa petitions.
(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)
