Dear Atty. Lou,
I am one of the Prince George County teachers in Maryland. Our employer violated Department of Labor rules and so our H1B visas were terminated. I filed for a change of status to B2 visa since my H1B expired last July 31. I just want to inquire on the following: (1) I am planning to go back home to the Philippines and I can’t wait for the B2 decision. What will happen to my tourist visa application to USCIS? (2) If I am already in the Philippines and get a job offer and sponsorship from a school that I am applying for, how will the pending B2 visa application affect my future H1B application and interview in the US Embassy?
Anne
Dear Anne,
What happened to hundreds of Filipino teachers is really very unfortunate. As a result of the employer’s alleged violation of the terms and conditions of the H1B’s Labor Condition Application, the employer is debarred from further employing foreign nationals with H1B visas.
I understand that most of you filed for a change of status to a B2 visa before your visas expired. If this application for change of status is approved, then you are authorized to stay in the United States for the period of time you requested on your application. Your letter states that your application for change of status to B2 visa is still pending and you are now planning to return to the Philippines without waiting for the decision on your B2 visa application. If you leave and your application for B2 visa is subsequently approved, then you will not be deemed to have incurred unlawful presence in the United States. On the other hand, if you left the US and if your application for change of status to a B2 visa is subsequently denied, then you are deemed to have incurred unlawful presence from the date your H1B expired up to the time you left the United States.
The answer to your second question depends on whether or not you have incurred unlawful presence. If you have a new job offer for an H1B visa and you are already in the Philippines, your visa application at the U.S. Embassy will be approved if you have had no unlawful presence. This means that your pending B2 visa application should have been approved. Otherwise, there might be an issue in regards any new visa applications.
While unlawful presence in the United States may be a ground for denial of future visa applications, US immigration law is clear about the 3-year/10-year bars. If the unlawful presence is six months to less than one year, you will be barred from being admitted to the United States for three years. The bars to admission will be ten years if you incurred unlawful presence for more than one year. In your case, if you leave for the Philippines before the six months of your H1B expiration, you will not be barred from re-entering the United States should there be a new petitioner who is willing to petition you.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com
