Dear Atty. Lou,
I was one of the media specialists who were terminated as part of the school’s reduction in force at the end of the school year 2010-2011 in the Maryland school district. I submitted an H1B visa extension in November 2010 since my visa will expire on July 30, 2011. At the end of the school year I received a letter from the school district informing me that my position as medial specialist has been eliminated as part of the reduction in force. I decided to go back to the Philippines on July 29, 2011.
When I arrived in the Philippines, I checked on the status of my extension. I found out that the visa was extended until April 30, 2014. I tried to obtain a copy of the approval from the school district but I was told that the officer in charge of recruitment needed to consult with their lawyer first. They refused to give me a copy of the approval. My question is whether or not I can still use the approved extension until April 2014 to return to the U.S. and continue to work as an H1B visa holder? Can I also use it change employer? I resent having left the United States and now with an approved extension I wish to return as soon as possible. Thank you in advance for your reply.
Myra
Dear Myra,
When your employer terminated you as an employee at the end of your school year, your H1B working visa was also terminated. You mentioned that your employer filed an extension of your H1B visa. This took place prior to the decision of your employer to terminate your H1B visa. Hence, the approval of the extension of your H1B is an act that preceded the termination. This means that despite the extension of your H1B visa by the USCIS, you will still not be able to work using this approval.
The USCIS may have approved your extension because your employer failed to inform the agency of their decision to terminate your position. However, you may still want to communicate with your employer about your desire to return to the United States. If they decide to reinstate your position, you may use this extension to apply for a your H1B visa. If they decline to reinstate your position, despite the approval you may not use this to apply for the visa. The fact that your employer refuses to give you a copy of the approval is not a good sign. You really need to communicate directly with the officer in charge of recruitment or human resources In addition, if you worked for the Prince George’s Public School, there is an existing debarment imposed on them by the Department of Labor which bars them from filing H1Bs.
What you can do is to try to search for new employers and have them file a new H1B for you. You do not have to resent having returned to the Philippines because you avoided incurring unlawful presence and this way you may return to the U.S. without any problem as long as you have a new H1B or any nonimmigrant visa.
I hope this information is helpful. 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, 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)
