Dear Atty. Lou,
I arrived in the US on February 5, 2008 and worked as a housekeeper here at South Carolina. I was petitioned by an agency and was issued an H2B visa. My H2B visa expired on June 20, 2008 and requested our agency to renew it for six months or until December 15, 2008. Before the expiration of our visa, we were terminated by our petitioning agency on October 15, 2008.
There are twenty of us in the same situation and so we all separated and tried to find for a new agency that will petition us for our extension. I found another agency in Chicago and my extension was filed in October 2008. Before receiving any response from the USCIS, this agency again terminated our employment. Thereafter, we received news from our lawyer that our request for extension was granted until October 15, 2009 but that we are required to leave for the Philippines and return to the US with another visa stamped on our passport.
We do not want to go back yet to Manila. I owe creditors hundreds of thousands of dollars just to be able to pay for my recruitment and visa fees in 2008. I will not be able to pay this debt if I return to the Philippines.
I consulted another lawyer and I was told that to depart as well. Why are we being asked to return to Manila if our H2B extension was granted?
Super Confused H2B Employee
Dear Super Confused,
It is unfortunate that your employment with the petitioning agency did not continue as you had initially expected. During this economic downturn and when several businesses are not earning as much profits, several employees are often being terminated for the business to survive. H2B visa holders are not exempted from this situation.
Your second petition for the H2B visa may have been approved but that is different from the approval of a change of status. Your extension or change of status may have been denied and that is the reason you are being asked to return to Manila to get a new H2B visa.
H2B visas have limitations imposed by regulations. If the petition by the US employer is approved, the H2B visa is issued with validity of no more than one year. Extension of stay may be granted but no more tan 12 months and maximum of three years. After spending three years in the US on H2B, the employee may not seek extension, change status or be readmitted to the US under the H or L nonimmigrant classification unless s/he “has resided and been physically present outside the US for the immediately prior six months.”H2B is limited to 66,000 visas a year.
When a visa is expiring, the H2B visa holder may have his visa extended provided the each extension must again show the temporariness of the employer’s need. If at any time, it shows that the job has become a permanent in nature, the extension shall be denied.
The employee is required to reside outside the US for six months after three years on a H2B visa. No change of status to H or L visa may be permitted under the regulations. Also, if there is an immigrant visa that is approved on behalf of the employee, no extension of stay shall be granted.
Considering the restrictive nature of the H2B visa compared to other nonimmigrant working visas, there are a number of Filipinos on H2B visas that had fallen out of status for varying reasons. They are either terminated prematurely by their US employer or they refuse after three years to leave the US for six months to enable them to change their status. You may decide now on what to do base on this information that I have provided. Good luck.
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, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon 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 can submit questions to law@tancinco.com)
