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.
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.View Qualifications of Attorney James W. Austin
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