(Consular Officers May Still Deny Visas Notwithstanding Approved Petitions)
Dear Atty. Lou,
I came here in United States on a tourist visa in November 2007 and I applied for a change of status to an F1 (student) before my 6 months stay here expired. I got approved on my F1 status in 2008. I went to school and studied. I finished my course and got my certificate to teach. I did my practicum for a year (2010-2011) and my employer filed an H1B petition for me and I got approved on December 2011. Currently I am working as a teacher here in California.
I never thought that a visa and a status are two different things. I only found out later. So as of now I have an H1B visa status but I have no visa. How can I get an H1B visa stamped on my passport? I want to travel to the Philippines and be able to return to the United States as an H1B visa holder? I want to visit my sister who is sick in the Philippines this summer and need guidance on what to do. Thank you in advance for your response.
Jessica
Dear Jessica,
It is true that a visa and proof of status are two different things but they are interrelated. This means that you will not be able to obtain a valid and legal status as an H1B if you do not have an approved H1B visa petition.
When a nonimmigrant enters the United States on a temporary visa, this visa may be changed into another nonimmigrant category if you meet all the requirements for the new visa category you are seeking. In your case, you entered as a visitor and then you changed your visitor visa status to that of a student visa. This clearly indicates that the U.S. Citizenship and Immigration Services found you eligible for a student visa resulting in your approval of your request for change of nonimmigrant visa status. To show proof of your approval and valid change of status, a new I-94 is attached to your approved request. In the same manner, when you changed your visa category from student visa (F1) to that of a professional working visa (H1B), the U.S. Citizenship and Immigration Services found you eligible for the visa category you requested. You are now holding a valid I-94 as an H1B visa holder. These I-94s subsequently issued by the U.S.C.I.S. indicates your lawful status in the United States. If you decide to depart for the Philippines you will need an H1B visa stamped on your passport to return to the United States.
Obtaining a visa stamped of your new visa category must be done outside of the United States. For Filipino nationals, they are generally required to obtain it at the consular section of the U.S. Embassy in Manila. Hence, if you are going back to the Philippines, you should schedule for an interview to get your H1B visa at the U.S. Embassy. You need to apply again for the visa and bring all your supporting documents, which include the H1B visa approved petition, the I-129 petition that was filed and all that was attached to the petition. For H1B visa applicants at the U.S. Embassy, the consular officers usually asked for proof that your employer pays you the actual prevailing wage as indicated in the petition that was filed. You should bring your latest tax returns and latest pay stubs. A letter from your employer will also be helpful.
Please note that the consul at the U.S. Embassy will examine your application very closely and it is very important that you submit all required documents and that your U.S. employer complied with all the representations made in the petition. There are H1B visas that are being re-adjudicated at the U.S. Embassy and even the approved H1B petition is not a guarantee that your visa will be issued. Exercise caution and diligence.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her principal office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 1-888-930-0808, 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)
