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Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Tuesday, January 22, 2019

Effect of Philippine H2B/H2A Country List Removal


This is NOT A TOTAL BAN on Philippine H-2Bs.   H-2 visas and H-2 status are still possible, but they will require additional evidence and will be fewer approvals

Every year, the United States publishes a list of countries whose citizens are eligible to receive H-2A (temporary-agricultural) and H-2B (temporary-non-agricultural) status.  This year, the U.S. removed the Philippines from the list, effective from January 19, 2019, to January 18, 2020. 

Below are the answers to the most common questions. [Information that uses the term “H-2” is applicable to both H-2A and H-2B]

  
Question:  I am in the U.S. now in H-2B status:
Answer:  There is no effect on your current H-2B status.

Question:  I am not in the U.S., but have a valid H-2 visa:
Answer:  You can still use the H-2B visa to enter the United States to begin or resume your authorized employment.

Question:  Can I change my status while in the U.S. from H-2 to some other nonimmigrant category?
Answer:  Yes.  Just because the Philippines was removed from the list does not immediately effect your current H-2 status.  As long as you are still in a valid H-2 status, you are eligible to request a change to a different non-immigrant status.

Question:  Can I change my status from something else to H-2B?
Answer:  Since you are now asking for H-2B status, the delisting of the Philippines makes obtaining H-2B status difficult.  However, see the exceptions below in “special requirements”.

Question:  Can I still change employers and extend my H-2B status without leaving the United States?
Answer:  An extension of your H-2B status requires a petition from a new employer.  That petition is effected by delisting the Philippines from the list of H-2 eligible countries.  With the new petition, your employer will have to submit evidence that you qualify for an exception.  See “special requirements”, below.

Queston:  My employer is in the process of filing an H-2B petition for employment later this year.  Will I still be granted the H-2B visa at the embassy in Manila?
Answer:  If USCIS properly approves an H-2 petition for you, the embassy will not use the delisting as a basis to deny you a visa. The approval of the petition, if properly completed with information regarding the special requirements (below), serves as notice to the embassy that USCIS determined it was in the U.S.’ interest to approve the petition.

Special requirements for Filipinos to obtain an H-2 visa or H-2 status:


USCIS can still approve H-2 petitions for workers from the Philippines.  However, USCIS must first determines that “it is in the U.S. interest for that alien to be a beneficiary of such petition.”  Many cases can still be approved under this standard.

Each request is decided ‘case by case’ and there are many factors USCIS will consider.  Included in those factors, and relevant to many Filipinos, are
            1) your previous history while holding H-2 status, and
            2)  that you are a low risk to commit fraud or abuse the H-2 visa system.

It is your particular facts and history, as outlined by your employer during the petition process, that will decide if USCIS will grant your H-2 petition.

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