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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.

Sunday, June 6, 2021

Philippine No Objection Statement (NOS) More Difficult for J-1 (Teachers)

 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.


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Friday, February 5, 2021

Philippines Again an H-2B "Eligible Country"

 

Philippines restored to list of eligible countries for H-2B Visas 

 Philippines H-2B eligibility is valid from January 19, 2021, to January 18, 2021.

 For additional information on how H-2B visas were still possible in 2019-20, along with a Question and Answer, see the January 22, 2019 blog discussion.

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Thursday, January 28, 2021

H-4 EAD Program Will NOT Be Cancelled

The H-4 EAD program will continue unchanged.

The prior administration attempted to cancel allowing certain persons in H-4 status to obtain an Employment Authorization Document (EAD) by proposing a new rule that would cancel the program.  On January 25, 2021, the Department of Homeland Security withdrew the proposed rule from consideration before the cancellation of H-4 EADs went into effect.

This action means that persons in H-4 status who are elgible for work authorization can still apply for and receive an H-4 EAD.

However, issuance of H-4 EADs are experiencing substantial delays.

Over the last year, the time it takes to actually receive an H-4 EAD has slowed significantly.  There are two causes Hfor the processing delay. 

First, the delays began when USCIS changed their procedure to no longer adjudicate the H-4 Extension of Status (and attached I-765 EAD request) at the same time they decide the H-1Bs Extension of Status.  This added a delay of many months before the H-4 EAD was issued.

And second, overall USCIS processing times of many applications greatly slowed during COVID times.  A large part of the delayed processing has also been attributed to implementation of time-consuming changes in adjudicative policies that applied a more restrictive view to H-1B eligibility.

Many of us are hoping that these inefficiencies will gradually be corrected within the next year.

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Sunday, January 24, 2021

New Immigration Laws on the Horizon? Don’t Get Scammed!

 There is not a new U.S. immigration amnesty law.

 Whenever there is a new major immigration law proposed, my phone starts ringing.  The top two questions:  “Will it apply to me?”, and “when can I apply?”

To all who have already called me or emailed, and to those who will do so in the next few weeks, below is the four part answer to those questions:

First, there is no new law.  Only the outline of a proposal has been made public.  Soon an actual bill may be introduced in the House and the Senate

Second, any bill introduced now is not what the law will say when – and if - it is later passed by Congress.  If this proposal is even actually taken up and considered by Congress, the legislation will first undergo hundreds of changes before there will be any chance of the legislation becoming a new law.

Third, this does not mean to give up hope that some law will pass that may benefit you.   There is presently considerable support in Congress to implement positive changes to our immigration system.  We all have to wait and see how this develops.

And fourth, be careful.  I always have to give this reminder whenever rumors are circulating of a new immigration laws.  There are good immigration providers and there are people who take advantage of your hope to just get your money.  If you wish to watch how the proposed legislation develops over the next several months, follow multiple reputable news sources.  Do NOT rely on social media posts and comments.

If a new law does pass, chose an immigration service provider carefully.  Look for knowledgeable immigration attorneys or agencies with non-attorneys accredited by the Board of Immigration Appeals.  Never trust anyone who does not take the time to deeply question and document your complete immigration history.  Aside from the obvious questions you would expect, a thorough immigration provider will discuss the details all of your entries and exits, history of any immigration filings by you or your relatives, details of documents you have used to work in the U.S., and any contacts you and your family have had with U.S. officials.  At some point, they may even ask about traffic tickets, so be prepared for a long discussion!

 

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