The Philippine Exchange Visitor
Program (EVP) Committee has issued new guidelines for obtaining a No Objection
Statement (NOS), effective for requests received on and after May 25, 2021.
[Link to EVP
Committee page with EVP Resolution 01-2021 (lifting the moratorium) and Revised
NOS Guidelines.]
Thousands of Filipinos are in
the U.S. in J-1 status. Many of them are
school teachers; mostly in public schools but some employed in private
institutions. New requirements for
obtaining the No Objection Statement will make staying in the U.S. after their
J-1 status expires very difficult.
NOTE: Although this latest Resolution affects many
different J-1 categories, this blog post is directed specifically to J-1 teachers. And as always, this advice is only general in
nature, is not a full discussion of all possible J-1 waivers, and may or may
not apply to any one person’s specific situation. Always consult an attorney for specific
advice based on your individual circumstances.
Quick background. Many teachers enter the U.S. on a J-1 visa
that includes a two-year home country return requirement before they are
allowed to change their immigration status to a different work visa categories
or to U.S. permanent residence. However,
there are several ways to have the two-year return requirement waived that allows
the teacher to remain in the U.S. after J-1 status ends. The most common way to be allowed to stay is
when the Philippine government issues them a “No Objection Statement”. After suspending the issuance of NOS’s for
the last 12 month, the Philippine EVP Committee has resumed accepting requests
for No Objection Statements from J-1 nonimmigrants in the United States. However, the new requirements for a NOS will
make it extremely difficult or impossible for most teachers.
No longer is a NOS from the
Philippine almost automatic if you met certain requirements, such as married to a U.S.
citizen, have a U.S. citizen minor child, or in many cases, with even less
justification for obtaining the NOS.
The New Standard for No
Objection Statements
Resolution 01-2021 allows for
the grant of a NOS only “for highly meritorious cases that will redound to the
benefit and national interest of the Philippines”. The example of “highly meritorious circumstances”
in the Revised Guidelines describes researchers or professionals whose work
relates to Philippine government priorities and whose stay in the United States
“will advance the Philippines’ national interest.” Numerous additional filing requirements have
also been added.
Future hope for No Objection
Statements?
Reading Resolutions 01-2021
and the Revised Guidelines together, the EVP Committee makes clear their intent
to only grant NOS’s for “highly meritorious” cases. Only time will tell if the Committee strictly
follows this new standard, or if a lesser standard evolves through later decisions
or policy directives.
One possibility is that the
EVP Committee may be asked to reconsider their recent decision as it applies to
those teachers who already met the NOS requirements in effect prior to May
25, 2021. Although they were
eligible to obtain a NOS, they were unable to file their NOS requests because of
the 12-month COVID-caused moratorium. Through
no fault of their own, the new Guidelines are effectively a retroactive rule
change that disqualifies them despite their prior eligibility. Although they were eligible for the NOS prior
to May 25, 2021 under the old guidelines, they were prevented from applying for
the NOS due to the moratorium.
Other Waiver Options
Aside from the NOS, two other
waiver options are possible. Neither of
them easy. The first is to show that the
J-1 teacher would be subject to ‘persecution’ if returning to the
Philippines. The requirements for this
waiver shares many of the same requirements as a request for asylum in the United
States. This ‘persecution’ waiver is
rarely granted.
The second option is the “exceptional
hardship waiver” which requires J-1s to prove that returning to their country
of last residence will cause “exceptional hardship” to their U.S. citizen spouse
or U.S. citizen child. Obviously, teachers without a US citizen spouse or
child will not be eligible for this waiver.
There is no single definition
of “exceptional hardship”, or even agreement of what combination of hardships will
rise to the level of “exceptional”, but the case law is clear that the hardship
is much more then the usual inconvenience and disruption encountered with an unwanted
departure from the United States.
Teachers who feel that their
departure will cause special and exceptional problems for their U.S. citizen
child/spouse should discuss their particular situation with their immigration
provider.
Remember: Two years out is not always the end of your
U.S. career.
For teachers that will have
to leave but wish to come back to the U.S. later to resume teaching, advance
planning can increase your chance of returning.
Many teachers are in
specialty fields where U.S. workers are in short supply. That is unlikely to change in the next
several years.
Discuss with your employer
the possibility of returning in two years.
Many schools are exempt from the annual “H-1B Cap”, making a return to
the U.S. in H-1B status a viable option.
You can also discuss with
your school district the possibility of returning in two years as a permanent
employee. This would require the school
to go through the labor certification process – often referred to as “PERM” –
to prove there are no workers able and willing to perform you job. Your two years out provides the school with time
to traverse the legal requirements that could lead to you returning as a permanent
worker with proven abilities.
Developing and communicating a
plan to keep your skills sharp during your two-year absence may be helpful in
convincing an employer of the benefit to them if when you return. Suggestions would include plans to continue
with your education, either in person or through remote training seminars. Explore temporary employment in the Philippines
at a quality school during your absence.
Determine if it is possible to keep your U.S. teaching license active
while away.
NOTE: Because of our current workload, Austin
& Ferguson, LLC is only scheduling consultations from current clients, former
clients, and persons who we have done consultations with in the past. Those persons can call 816 356-7100 to schedule a time to visit with an
attorney. This work reduction program began
in April and will probably continue until August, 2021.
Weekend Skype
appointments will still be occasionally available specifically for readers of
this blog. Those appointments can only
be scheduled by emailing your information and a brief description of the
problem to consultations@austinferguson.com.
Go to the Most Recent US Immigration Topics
View Qualifications of Attorney James W. Austin
