Month: October 2010

Categories
Global Pinoy

Teachers in the US Facing Mounting Challenges

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Nimfa and Margaret are both special education teachers who obtained “J1” visas to teach in two different school districts in the US. Nimfa’s employer signed a two-year contract for a J1 visa to allow Nimfa to work, teach and engage in other exchange activities in an elementary public school in Southern California. In the same way, Margaret was able to obtain a J1 visa to teach in a school somewhere in Maryland.

When Margaret’s visa was about to expire, she was able to change status from a J1 visa to an H1B working visa. Nimfa’s employer, however, refused to change her status from J1 to H1B. She was instead asked to depart for the Philippines and obtain her visa at the US Embassy in Manila. Nimfa was hesitant to leave the US. She discovered that Margaret was able to obtain a “waiver” allowing her to change her status to a professional working visa. What is this waiver and why is it critical in changing status from a J1 to an H1B working visa? What will happen if Nimfa refuses to leave and just file for change of status anyway?

Unlike Margaret, Nimfa arrived in the US with her spouse and two minor children. She claims that she will have difficulty uprooting her children from their US school as this will cause disruption of their education especially if they have to go back temporarily in the Philippines and return to the US anyway.

Migration of Teachers

Just like the health care workers, specifically registered nurses, there was also significant recruitment of teachers to work in different school districts in the United States. Most of those who came to teach were math, science and special education teachers.

The US employers utilized the “J” exchange-visitor visa to allow these Filipino teachers to come to the US without going through the US Citizenship and Immigration Service (USCIS) process of petitioning. The reason for this is that unlike other visas, the “J1” visa does not require the prior filing of a petition with the USCIS.
    
Just for comparison purposes, a recruiter of a registered nurse needs to file for a petition and have that petition approved in order that the nurse may obtain the appropriate visa to come to the US. In the case of a J1 visa teacher, all that needs to be done is to obtain a Form DS 2019 Certificate of Eligibility from a designated sponsoring organization (DSO), which monitors the work provided by the prospective US employer or university.

This DS2019 is usually arranged with the DSO by a recruiter in the Philippines who also takes the effort to find the US school where the teacher will work. With the DS2019, the teacher applies for a visa on Form DS-160 with supporting documents as required by the consulate. If everything else is complete in terms of the forms and documents, the US consular officer at the embassy issues the J visa. There is no numerical limit on the issuance of J1 visa category unlike the H1B visa.

Considering that the J1 visa is the quickest way to obtain the visa for teachers, it naturally also comes with restrictions. Teachers are listed on the skills list of the US Department of State and are subject to the two-year foreign residency requirement under INA Section 212(e). What this means is that after the expiration of the J1 visa, the teacher must return to the Philippines for at least two years before being able to apply for another working visa like the H1B or L1 visa. They are also prevented from adjusting to permanent resident status unless they meet the two-year foreign residency requirement.

Waiver of the Two Years

The only way for a J1 teacher to change status without meeting the two-year requirement is obtaining a “waiver”. Most of the teachers are successful in getting a waiver by requesting “no objection” statement from the Philippine government through the Philippine Embassy. After a “no objection” statement is obtained, the teacher presents this to the Department of State which then issues an advisory opinion to a USCIS Service Center. A change of status to other nonimmigrant visa or to a permanent resident status visa is only granted if a waiver is recommended by the Department of State.

Effect of Failure to Obtain Waiver

In the case mentioned, Margaret was able to successfully obtain a “no objection statement” and a favorable recommendation from the US Department of State. This is the reason why she was granted a change of status to H1B and did not have to depart for Manila to meet the two-year physical presence requirement.

For Nimfa, her designated sponsoring organization (DSO) is not supporting her request for the “no objection” statement; hence, Nimfa is unable to change status to an H1B visa even if she has a willing employer. She has no better option but to return to Manila to avoid problems and complications on her future visa applications.

More Challenges

Not all of those who were able to obtain waivers have been fortunate enough to maintain their status. Despite the fact that many teachers were able to obtain H1B working visas during the last school year, many have also been terminated from their jobs because of State budget problems. Those who were terminated necessarily lost their status too unless they found new employers to re-petition for them in a timely manner.

Even those who have been able to be get approved immigrant visa petitions from their school employers are not necessarily safe as these visa petitions may still be revoked if it is discovered by USCIS that the petitioning schools are suffering from financial setback. These are just a few of the challenges for our Filipino teachers in the US.

Though it is disruptive for some teachers to meet the two-year foreign residency requirement, it may unfortunately be a necessary inconvenience in order that they not encounter future problems in their visa applications. Besides, the purpose of the J1 visa is for our teachers to bring home whatever added skills and training they have learned after their stint in the US.  Considering the difficulties and restrictions imposed on J1 visa holders, maybe considering reverse migration back to the homeland may not be such a negative idea after all.

(Tancinco may be reached at law@tancinco.com or at 02-8877177 or 02-7211963)

Categories
Immigration Round Table

Whitman’s Hiring of Undocumented Worker Creating Fear to Other Workers

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Dear Atty. Lou,

I work as a housekeeper for a family somewhere here in Southern California for more than ten years now. I am an overstaying visitor and I do not have a social security number but I was able to obtain a tax identification number from the Internal Revenue Service (IRS). My employers are deducting taxes and other SS payments from the bi-weekly pay checks. I have no problem with this and I know that everything is working well until my employer received a “No Match letter” from the Social Security Administration in 2008. My employer sought advice from their lawyer and they were told just to ignore this letter. I was never asked by my employer to explain the discrepancy in the numbers I submitted which actually is my tax identification number.

Recently, I read on the papers regarding the case of the Nicky Diaz Santillan, who is the housekeeper of Meg Whitman. My employers are not running for any public office but I am afraid that they will have problems with the no-match letter. Will I be reported to the immigration service about the inconsistency of my social security number? Please help me.

Pinay Diaz

Dear Pinay Diaz,

US employers are mandated by law to report wages paid to their employees and their contribution to the social security system. When reporting these wages on form W2, they indicate the social security number of the employees. The Social Security Administration then matches the individual names with the social security numbers they have on file. When there is an inconsistency between the name and the social security number, the SSA is not able to account for the individual’s contribution to the system.

There is an estimated $189 billion in the SSA which are unaccounted for. This means that there are thousands, if not millions, of contributions to the SSA by individuals who are not using accurate social security numbers.

In the past, the SSA sent letters to both the employer and the employee asking them to explain the discrepancy in the individual names and their social security numbers. These letters were called “no match” letters which actually scared a lot of employers and employees. Many employers were forced to terminate employees who are not able to explain the discrepancies. Also, in the past, employers risk incurring liabilities of hiring undocumented individuals simply by being put on notice about the illegal status of an individual through an unexplained “no match letter”. This rule was called the Safe Harbor Procedures for Employers Who Receive a No Match Letter dated August 15, 2007.

Several labor unions and advocacy groups contested the SSA policy resulting in the rescission of this 2007 No Match Rule. The 9th Circuit Court of Appeals has ruled that receipt of an SSA no-match letter about a worker is not “just cause” for firing the worker when the worker is covered by a collective bargaining agreement. An employer also lacks the legal grounds to fire workers who are named in the no-match letters. Receiving a notice from SSA that information submitted to it about a worker does not match its records does not mean that the employer is facing a penalty from the immigration service.

In your particular case, since you are an undocumented immigrant, the risk are always there but the “no match” letter you received should not be a reason for you to be fearful considering that they are not generally forwarded to the immigration service. However, if the attention of the Department of Homeland Security is called on your unlawful presence other than this letter, you should be ready to raise appropriate relief in court if you are put in proceedings. In the same way, your employer may also run the risk of hiring an undocumented immigrant if the DHS discovers this information otherwise. In the case of Meg Whitman, she is claiming innocence based on the unanswered “no match” letter because of the change of policy in 2009. However, the mere admission of her past undocumented employee is surely damaging to Meg Whitman especially on her candidacy for governor of the State of California.

Atty. Lou

Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)

Categories
Updates

Supreme Court to Hear Case about Arizona E-Verify Law

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Later this year, the Supreme Court will hear a case related to an
Arizona law that requires the use of E-Verify, the federal online
employment eligibility verification system. The case, which will be
held December 8, should clarify whether states have the right to
mandate the use of such a program. Opponents of the Arizona law claim
it infringes on the rights of individuals, while supporters of the law
state that the state has the right to monitor and remove business
licenses, because it is the entity that provides those licenses.

It
is believed that the decision from the Supreme Court will hold weight
in more than just the Arizona law that requires the use of E-Verify. It
could also provide guidance for states seeking to implement other laws
related to immigration enforcement.

Categories
Updates

Local Communities May Not Be Able to Opt Out of the Secure Communities Program

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Recent communication from Immigration and Customs Enforcement (ICE)
implies that local communities, even those that chose to opt out, may
be required to participate in the Secure Communities program. The
program, which enables ICE to use fingerprints collected by state and
local law enforcement officials as a means to identify illegal
immigrants, is considered by many local law officials to be a detriment
to their ability to provide adequate police services to their
communities.

Secure Communities was widely considered to be optional and many local
communities, including the District of Columbia, San Francisco and
Santa Clara County (CA), had chosen to opt out of participation in the
program. However, a senior ICE official recently commented that ICE
will have access to fingerprints forwarded to FBI from state and local
law enforcement officials, regardless of local communities’ wishes to
not participate in the program.