Teachers in the US face mounting challenges

First Posted 12:26:00 10/24/2010

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CALIFORNIA, United States?Nimfa and Margaret are both special education teachers who obtained ?J1? visas to teach in two different school districts in the United States.

Nimfa?s employer signed a two-year contract for a J1 visa to allow Nimfa to work, teach, and engage in other exchange activities in an elementary public school in Southern California. In the same way, Margaret was able to obtain a J1 visa to teach in a school somewhere in Maryland.

When Margaret?s visa was about to expire, she was able to change her status documents from a J1 visa to an H1B working visa. Nimfa?s employer, however, refused to change her status from J1 to H1B. She was instead asked to go home to the Philippines and obtain her visa at the US embassy in Manila. Nimfa was hesitant to leave the US. She had heard that Margaret was able to obtain a ?waiver? allowing her to acquire a professional working visa without going home.

What is this waiver and why is it critical in changing a J1 to an H1B working visa? What will happen if Nimfa refuses to leave and just files for a change of status anyway?

Unlike Margaret, Nimfa arrived in the US with her spouse and two minor children. If she is required to go back to Manila, Nimfa claims she would have difficulty uprooting her children from their US school. This would cause unnecessary disruption of their education, especially if they have to go the Philippines temporarily and return to the US anyway.

Migration of teachers

Just like health care workers, specifically registered nurses, there has been significant recruitment of teachers to work in different school districts in the US. Most of those who came to teach were math, science, and special education teachers.

The US employers utilized the ?J? exchange-visitor visa to allow these Filipino teachers to come to the US without going through the US Citizenship and Immigration Service (USCIS) process of petitioning.

In the case of registered nurses, a recruiter needs to file a petition and have that petition approved so that the nurse may obtain the appropriate visa to come to the US. In the case of a J1 visa teacher, all that needs to be done is to obtain a Form DS-2019 Certificate of Eligibility from a designated sponsoring organization (DSO), which monitors the work provided by the prospective US employer or university.

This DS-2019 is usually arranged with the DSO by a recruiter in the Philippines, who also scouts for the US school where the teacher will work.

Considering that the J1 visa is the quickest way to obtain entry for teachers, it naturally comes with restrictions. Teachers are listed on the skills list of the US Department of State and are subject to a two-year foreign residency requirement. What this means is that after the expiration of the J1 visa, the teacher must return to the Philippines for at least two years before being able to apply again for another working visa.

Waiver of residency

The only way for a J1 teacher to change status without meeting the two-year residency requirement is to obtain a ?waiver.? Most of the teachers are successful in getting a waiver and requesting a ?no objection? statement from the Philippine embassy. The teacher then presents this ?no objection? statement to the Department of State which then issues an advisory to a USCIS Service Center.

In the case mentioned, Margaret was able to successfully obtain a ?no objection statement? and a favorable recommendation from the US Department of State. This is the reason why she was granted a change of status to H1B and did not have to depart for Manila to meet the two-year physical presence requirement.

For Nimfa, her DSO did not support her request for the ?no objection? statement; hence, Nimfa is unable to change status to an H1B visa even if she has a willing employer. She has no option but to return to Manila.

Not all of those who were able to obtain waivers have been fortunate enough to maintain their status. Even though they obtained H1B working visas during the last school year, many have been terminated because of State budget problems. They necessarily lost their status, except those who were able to find new employers to re-petition them in a timely manner.

Even those who have been able to be get approved immigrant visa petitions from their school employers are not necessarily safe. These visa petitions may still be revoked if it is discovered by USCIS that the petitioning schools are suffering from financial setbacks. These are just a few of the challenges our Filipino teachers face in the US.

Though it is disruptive for some teachers to meet the two-year foreign residency requirement, it may unfortunately be a necessary inconvenience so they do not encounter future problems in their visa applications. Besides, the purpose of the J1 visa is for our teachers to bring home whatever added skills and training they have learned after their stint in the US.

Considering the difficulties and restrictions imposed on J1 visa holders, considering reverse migration back to the homeland may not be such a negative idea after all.

Tancinco may be reached at law@tancinco.com or at 02-8877177 or 02-7211963.

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