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Motion to Reopen Success Story - USCIS Approves change of status filed after H1B employee's termination

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Camille is a citizen of the Philippines. She came to the U.S. in August 2007 on a J-1 visa to train in the hospitality operations of a restaurant. The restaurant subsequently hired Camille to work for them under H-1B visa in the position of Human Resources Specialist. The employer did not follow the H-1B regulations, did not pay Camille the required wage for the position or overtime wages.


On September 28, 2010, the restaurant informed Camille that she is fired effective immediately. Camille has long been thinking about continuing her education and obtaining a Master's Degree. She immediately started searching for good MBA programs at local schools. On Monday, October 4, 2010, Camille retained an attorney, collected all the necessary documents for Change of Status application which was filed on Tuesday, October 5, 2010.
USCIS denied Camille's application for Change of Status because, in the opinion of the Service, Camille was not in a lawful status when she filed the Change of Status application because she was discharged from work on September 28, 2011 and was in violation of her status the next day.


Due to several reasons, Camille could not go back to the Philippines in order to apply for a student visa from there. Our office has filed a motion to reopen the case arguing that the denial decision should be overturned and Camille should be granted the F-1 status.


MOTION TO REOPEN THE CASE


In the motion to reopen, we argued that Camille continued to maintain her valid status when she filed the application on October 5, 2011. We presented evidence that there was no bona fide termination of Camille's employment until February 8, 2011 when the employer notified USCIS. Additionally, and most importantly, we provided proof that Camille was an employee of the restaurant on the date of filing the application because her termination was not effective until October 19, 2010, the date the Separation Agreement between her and the employer became effective.


In addition, we argued that even if the period of previously authorized status had expired, Camille's circumstances warrant the favorable exercise of discretion to grant the applicant the change of status to F-1 student. The lack of notice given to Camille regarding her discharge from work, Camille's good faith and expeditious efforts to find an appropriate school program supported the favorable exercise of the Service's discretion in granting the Change of Status.
There has not been a bona fide termination of Camille's employment until February 8, 2011 when the employer notified USCIS. In order to determine whether Camille was in a valid nonimmigrant status, we need to determine the date the employment relationship between her and the H-1B employer terminated.


U.S. employers who hire temporary H-1B nonimmigrants are required by law to notify the Service that an H-1B employee no longer works for the employer so that the petition is canceled. 8 Code of Federal Regulations ("CFR") 214.2(h)(11)(i)(A). The regulations similarly require the employer to provide the employee with payment for transportation home under the circumstances in 8 CFR 214.2(h)(4)(iii)(E)). Upon the Service's receipt of an employer's request to withdraw an H-1B petition, the revocation of the approval of such petition is automatic. 8 CFR sec. 214.2(h)(11)(ii).


Therefore, notification to USCIS is fundamental to ending an H-1B employer's obligations. The notice triggers USCIS's ability to revoke the H-1B petition, thereby invalidating the employee's H-1B status. See 8 CFR sec. 214.2(h)(11)(iii)(A)(1).


USCIS regulations do not provide for the automatic revocation of an H-1B petition when the employee leaves his/her employer. The petition remains valid until its expiration date or its revocation by the employer. This means that the employer remains liable for payment of back wages to the employee up to the point of the petition's expiration or revocation.


An employee may not be considered properly terminated unless the employer follows the regulations and notifies USCIS that the employment relationship has been terminated so that the I-129 petition is canceled and provides the employee with payment for transportation home. See Amtel Group Florida, Inc. v. Yongmahapakorn, ARB case no. 04-087, ALJ case no. 2004-LCA-006 (Sept. 29, 2006).


Under Amtel, a bona fide termination requires 1) notice to the employee; 2) notice to USCIS that employer has terminated the employment relationship and withdrawing the petition; and 3) employer providing the employee with payment for transportation home.
Therefore, notification of USCIS and payment for return transportation abroad are essential components of evidencing bona fide termination of employment.


In Camille's case, the employer has not notified USCIS until February 8, 2011 that it is withdrawing the H-1B petition for the beneficiary. Therefore, there has not been a bona fide termination of Camille's H-1B employment up until February 8, 2011.


Camille was an employee of the Restaurant on the date of filing the application for a change of status on October 5, 2010 because the Separation Agreement became effective only on October 19, 2010


Additionally, Camille signed the Separation Agreement and General Release of All Claims with her employer on October 11, 2010. The Separation Agreement itself became effective on October 19, 2010. The separation agreement serves as additional proof that Camille was an employee of the company when she filed the application for a change of status on October 5, 2010.


Camille's circumstances warrant the favorable exercise of discretion to grant the applicant the change of status


In the motion, we also requested the Service to favorable exercise the discretion to grant Camille the change of status even if it is determined that her previously authorized status had expired.


 


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Comments

  1. Backlogged's Avatar
    So now each case is handled as "Guilty until proven innocent style", so it seems atleast from the spate of denials at the consular posts despite of having an approved petition. I guess the story would be entirely different if the client had approached the consulate in her home country. Such is the double standards and I would if anyone from AILA care to bring it up with DoS officials of their two faced actions?
  2. H1B Visa Lawyer los angeles's Avatar
    In the motion to reopen, the
    immigration lawyer suggest that Camille was absolutely right to maintain her valid status when she filled the application which was provided for proof,that Camille is an employee of the restaurant at that time when she was filling the form.

    for more information regarding
    immigration please contact us on our toll free no:1-888-501-3133.
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