The fate of a terminated US teacher

In 2008, Anne was recruited to work as a schoolteacher in the United States. She entered the US with an H1B or professional visa valid until 2011. When her visa was about to expire, the employer filed an application to extend her visa. A short time after filing the extension, however, she was informed that her contract with the school would no longer be renewed. Without waiting for the results of her extension application, she voluntarily returned to the Philippines in July 2011 to avoid incurring any unlawful presence or violation of the terms of her visa.

Last month, Anne received information from a colleague in the US that the application for the extension of her visa, which was filed  prior to her termination, was actually approved. Anne was offered a job by another school district in the US and is wondering whether she can use the approved H1B extension to apply for her working visa.

Effect of termination

For Anne and others in the same position, here are some relevant points on immigration law.  By its nature, the H1B or professional working visa is an employer-specific type of visa. This means that the holder of this visa may only work for the employer who filed the petition. Termination of the contract with the employer will result also in the termination of that visa.

There are certain exceptions. Termination of contract will not result in unlawful status if the H1B employee is able to change employer and file a new H1B petition prior to the date of the termination of the contract. If the timing of the change of employer is right, the H1B employee may smoothly transition from one employer to another. This is on the assumption that the job offer of the new H1B is also a specialty occupation.

Another option is to change one’s visa status, say to another nonimmigrant category or to immigrant status. Changing from H1B to another status is not without complications. There are certain technical issues to consider. For instance, if the H1B visa is to be changed to a visitor’s visa, the eligibility requirement for visitors must be present. This includes clear proof of the intent to return to the homeland after the visitors visa expires. The same case applies to changing to a student visa. The applicant must show one’s financial capacity to study in the US and the sincere intention to go to school.

Another Filipino teacher, who was terminated by her employer, divorced her husband in the Philippines and married her coworker who is a US citizen. An application for adjustment of status or green card was filed on her behalf by her US citizen spouse after she was terminated from her school district. If this second marriage is entered into in good faith, then there will be no bar to receiving her green card. However, if this marriage was entered solely to avoid falling out of status, then the green card may not be issued and the H1B teacher may risk deportation proceedings.

A new visa has to be used according to the nature of the status applied for. The beneficiary of such a petition should meet all the requirements of the new visa.

Revocation of approvals

Even after the approval notice is issued, however, the visa may still be revoked under certain circumstances such as withdrawal of a job offer by the petitioner or termination of the employment contract.

This is what actually transpired in the case of Anne. Hence, despite the approval of the extension of her visa petition, the subsequent termination of her contract resulted in the revocation of the approved petition. She may no longer use the approval notice to apply for a new H1B visa.

Finding a new employer

Finding a new employer to petition Anne may be the best solution for her to return to work in the US. This new employer needs to file a new H1B petition on her behalf. If the beneficiary is not in the US, an application can be filed with the US Embassy.

On November 23, 2011, the US Citizenship and Immigration Services announced that the H1B cap of 65,000 for fiscal year 2012 had been met. This means that no new H1B visas may be accepted for filing until next year. Change of employers for current H1B visa holders, however, will still be accepted. For Anne, her H1B visa is no longer current so she will be covered by the cap. She may only file for her new visa sometime next year when the USCIS announces acceptance of new working petitions.

(Tancinco may be reached at [email protected] or at 887 7177 or 721 1963)