Atty. Dornagon’s Blog

In the next two weeks, I’ll be in London, Paris, and Rome. I’ll resume the posting upon my return. Till then…

Foreign professionals desirous to work in the United States, by way of the H1B visa program, have been plagued by limited H1B visas. As what happened recently, and reported in my recent post, re: FY 2008 H1B quota reached, the visas were gone in one swoop when thousands of H1B visa petitions from employers poured in.

It’s a sad reality for many foreign professionals. They want to work in the United States- but the door to this opportunity doesn’t open wide enough for them.

This is why there has been a hue and cry for more H1B visas. But Uncle Sam has fallen deaf to these pleas.

There’s a welcome news. Foreign professionals, desirous to take a bite of the much sought H1B visa “pie,” have found a new ally. Bill Gates, the world’s richest man with $56 billion rattling around in his pockets, has thrown his support to the clamor for more H1B visas.

Bill recently went to Washington and told a Senate panel that H1B visa limit should be scrapped. He found fault on visa policies that restricted the entry of “great minds” into the United States. Read more about it.

Bill raised a good point. The H1B visa program has played an important role in the economy of the United States. It has been the primary means for U.S. employers who are unable to find suitable U.S. citizens and lawful permanent residents to fill professional level positions in their companies. It is through the H1B visa program that U.S. employers can attract and hire the best talents and skills from around the world. And many believe that, owing to the H1B visa program, the United States has maintained its global competitiveness in a wide range of scientific and technical fields.

Bill’s view, however, runs counter to the perception of many ordinary Americans about the H1B visa. Ask any Tom, Dick or Harry about the H1B visa, and he’ll readily tell you that an H1B foreign professional is just out to take a job away from him. This explains why efforts to increase the H1B visa quota always meet stiff opposition at every turn.

The question now is, does our friend, Bill, have Uncle Sam’s ear on the H1B issue? Well, it’s too early to tell, but let’s wait and see.

With the recent scooped up of H1B visas, what other work visas are available to Filipino professionals? That’s one of the several questions I recently got from many “kababayans.” They asked the question, apparently, after reading my posting, re: FY 2008 H1B quota reached.

Aside from the H1B visa, there are a number of work visas that are available to pinoy professionals desirous to work in the United States. However, these visas are a bit different from H1B in certain ways.

For instance, while H1B requires the alien worker to fill a “specialty occupation” upon petition by a U.S. employer, the other work visas - which we will briefly discuss- require either a current employment with a specific kind of employer or a membership in a certain organization.

Let’s briefly discuss each of these work visas available to pinoy professionals:

L visa for an intra-company transferee employee

This visa is available to an alien who works for a multinational corporation that has offices both in the U.S. and abroad. With the L visa, the alien is able to work in the U.S. by being transferred by the foreign subsidiary, affiliate or branch. Thus, the term “intra-company transferee.”

To qualify for the L visa, the alien must hold a managerial or executive capacity, or a position that requires specialized knowledge.

R visa for a religious worker

This visa allows an alien who is a member of a religious denomination having a bona fide non profit religious organization in the United States.

The alien may be classified into one of the three types of religious workers, according to the work he will perform upon his admission into the United States: (1) to carry on the vocation of a minister of the religious denomination, (2) to work in a professional capacity in a religious vocation or occupation, or (3) to work in a non professional religious vocation or occupation.

E visa for an employee of a treaty trader or investor

Philippine nationals are given treaty trader and investor status on the basis of reciprocity secured by an agreement entered into by the Philippine and the United States governments.

As such, a Filipino businessman or a Filipino-owned enterprise can engage in business in the U.S., and may avail of a treaty trader or investor visa.

An employee hired by the enterprise may also avail of the E visa, if he will perform duties that are executive or supervisory, or as an employee who has special qualifications that make his services essential to the efficient operation of the business or enterprise.

All the above visas are discussed at length in the book, “A Guide to U.S. Visas for Filipino Professionals.” Copies of the book are available at Conanan Bookstore, 2019 C.M. Recto Avenue, Manila, Philippines. Tel. (02) 735-5582.

Some readers of my recent posting, re: FY 2008 H1B quota reached, asked: (on the chatterbox): “Do pinoy professionals seek H1B visas?” Of course, my answer was a resounding, yes.

Yes, pinoy professionals- like other professionals from many countries around the world- seek H1B visas, too. No doubt, a number of them joined in the recent H1B visa “fray” when, on the first day of the H1B filing, about 150,000 new visa petitions poured into the offices of the U.S. Citizenship and Immigration Services (USCIS)- each one sought a piece of the visa “pie.” And the mad rush of H1B visa petitions prompted the USCIS to raise the “white flag” and declare that the fiscal year 2008 H1B quota had been reached.

Then, came another query: Of the approximately 150,000 visa petitions received by the USCIS, how many of them are for pinoy professionals? My response: I’ve no idea; I can’t come up with any ballpark figure.

However, if prior H1B figures were to serve as a guide, then a reasonable answer could be- not many.

Yes, not many pinoy professionals seek H1B visas. Pinoys comprise a minuscule segment in the H1B population.

According to the USCIS, of the 217,340 H1B petitions received and approved for fiscal year 2003 (which figures included new and continuing H1B visa petitions at the time) 10,432 H1B beneficiaries were from the Philippines. It represented a mere 4.8% - a picayune figure in the H1B statistics.

Indeed, this information comes as a surprise to many observers. Pinoy professionals, despite their competence and proficiency in the English language, lag behind other nationalities in taking advantage of the opportunity to work in the United States through the H1B program.

Why? Some are prompted to ask. I surmise that one reason is the lack of information about the H1B visa program and how to go about it.

This is why to disseminate information about the H1B visa program, I wrote the book “A Guide to U.S. Visas for Filipino Professionals” and published by GIC Enterprises & Co, Inc. Copies of the book are available at Conanan Bookstore, 2019 C. M. Recto Avenue, Manila, Philippines. Tel. (02) 735-5582.

The book provides the necessary information about the H1B visa program and other work visa options to the pinoy professionals desirous to work in the United States.

Why so fast? That’s the question heard in “Greek chorus” from employers, job seekers, and kibitzers on learning that the H1B visa quota for fiscal year (FY) 2008 had been reached as of the first day of H1B filing, April 2, 2007.

As you know, H1B is the working visa for professionals of all stripes desirous to work in the United States. This group includes accountants, engineers, programmers, physical therapists, managers, and, yes – perhaps, bloggers, too.

The H1B visas, as discussed in our earlier posting, re: File early- to get a slice of the H1B visa “pie,” have all been scooped up.

The U.S. Citizenship and Immigration Services (USCIS), on April 3, 2007, released a notice saying that it had received enough H1B petitions to meet the congressionally mandated cap for FY 2008. As of late Monday afternoon (April 2), the USCIS had received approximately 150,000 cap-subject H1B petitions.

So, what does this mean to Caloy and Kulas, our “kababayans” who are still looking for employers willing to petition for them? Well, they’re out of luck. They can’t be petitioned this year. They will have to wait for next year, by April 1, 2008 at the earliest, to avail of the H1B visas for fiscal year 2009.

The Visa Bulletin is a publication by the United States Department of State Bureau of Consular Affairs. It provides a summary of visa availability every month. The Bulletin is important for those beneficiaries waiting for their visa numbers.

Visa numbers are available for those beneficiaries who have a priority date earlier than the cut-off date.

Let’s take a look at the Visa Bulletin for April 2007 and see the movements of priority dates since March 2007 for Philippine-born beneficiaries of family and employment-based immigrant petitions.

FAMILY-BASED PETITIONS

Petitions by U.S. citizens:

Unmarried sons and daughters (first preference, F-1): Priority date has moved forward by a month, from January 22, 1992 to February 22, 1992.

Married sons and daughters (third preference, F-3): Priority date has moved backward by almost six years, from September 1, 1990 to January 1,1985.

Brothers and sisters (fourth preference, F-4): Priority date has moved forward by two months, from September 1, 1984 to November 1, 1984.

Petitions by U.S. permanent residents (“Green Card holders”):

Spouses and children (second preference, F-2A): Priority date has moved forward by ten days, from March 22, 2002 to April 1, 2002.

Unmarried sons and daughters (second preference, F-2B): Priority date has no movement; it remains the same- October 1, 1996.

EMPLOYMENT-BASED PETITIONS

Professionals & skilled workers: Priority date has no movement; it remains the same- August 1, 2002.

Non-skilled workers: Priority date has also no movement; it remains the same- October 1, 2001.

This week, the United States Citizenship and Immigration Services (USCIS) has begun to accept H1B visa petitions from United States employers.

H1B is a work visa that allows an alien to work in the United States.

As I’ve pointed out in my previous posting, re: File early- to get a slice of the H1B visa “pie,” since Fiscal Year 2004, the H1B visa cap has been set at 65,000. However, after deducting 6,800 visas set aside for the U.S. Chile and U.S. Singapore Trade Agreements, what is up for grabs is a net of 58,200 visas. Because of the limited visas, there’s now a mad scramble for submission of H1B visa petitions. Many observers believe that with the number of visa petitions pouring in at the USCIS, the H1B visas may run out anytime soon.

Caloy, a Certified Public Accountant in the Philippines, is one prospective H1B beneficiary who called me to ask if the job that the employer has offered him is H1B eligible. He has been offered the job of an accounting clerk.

I told him that the job doesn’t qualify for H1B.

Why? He asked in disgust. To be H1B eligible, the job must be one that’s categorized as a “specialty occupation.” In plain and simple language, it must be a professional level position that normally requires a four-year college degree.

Let’s get into some details.

Caloy is a B.S. accounting graduate. No question about that.

It’s true that the accounting clerk position is related to Caloy’s academic background. But it’s also true that a college degree is not the minimum requirement for entry in the accounting clerk position. Meaning, one doesn’t need to be a holder of a bachelor’s degree in accounting to perform the duties of an accounting clerk. In short, the duties of an accounting clerk are not complex as to require an accounting degree.

This makes the accounting clerk position not H1B eligible under immigration rules.

So, the point is- to meet H1B eligibility, both the person to be petitioned and the position to be offered must be PROFESSIONAL.

You know if it’s election season back in our beloved Philippines: politicians are all around blurting out anything on their minds.

Politicians talk a lot. And, of course, they talk of things the voters want to hear. But, one thing is noticeably clear: the politicians’ spiels verge on lies- at times, on nonsense.

For instance, last week, Vice President Noli De Castro, in a speech before graduates of the University of Batangas, said that jobs are forthcoming for the new graduates.

De Castro said, “Your search for jobs won’t be long because the positive economic indicators clearly suggest that jobs would be abundant sooner than you expect.” “The economic gains reaped by the Philippines recently will provide more employment opportunities for the country’s new graduates.” See Manila Bulletin’s article.

Some graduates may have been beguiled hearing those words from De Castro. But I also imagined that many of the listeners may have raised eye brows on De Castro’s pitch.

What De Castro talked about is a far cry from reality. Far from being untrue, it also raised false hopes on poor graduates, who wish of finding decent paying jobs once they get their sheepskins.

When one reads articles about the Philippines - the more recent is the PERC survey giving our country a bad mark as Asia’s most corrupt- one readily thinks that politicians are really parsimonious with the truth.

The fact is, our country’s economy is in the doldrums. And that there are always people joining the beeline leaving abroad in search for jobs. This is why, as I said in my earlier posting, the root cause of the diaspora of Filipinos is our bad economy.

In one of its recent editorials, the Philippine Star said, “As economic experts have pointed out, however, the country isn’t attracting enough job-generating investments. The dearth of such investments as well as depressingly low salaries in this country are driving overseas a steady stream of Filipinos, including teachers, health professionals and skilled workers in specialized fields such as aviation. Over eight million Filipinos are now working abroad, most of them away from their families.” See Philippine Star’s editorial.

So, at election time, take politicians’ words with a grain of salt. As you know, they’re always economical with the truth.

There’s a reason for this: As Will Rogers once said, “If you ever injected truth into politics you have no politics.”

I received a flurry of e-mails on my posting about the 3/10 year bar.

Many commiserate with poor Procopio, who was denied his immigrant visa. One reader asked if there was a way Procopio could have remained in the United States and, instead, had his application processed there.

Sure, there was- if Procopio was eligible for it. It’s found in Section 245(i) of the Immigration and Nationality Act (INA).

Normally, an alien who has an approved immigrant visa petition and whose visa number is available, and is present in the United States may apply- if eligible- for a “Green Card” without leaving the country, through a process called “adjustment of status.”

With “adjustment of status,” the alien doesn’t have to go back to his home country and apply for the immigrant visa at the U.S. Embassy.

But, first, the alien has to be eligible for “adjustment of status.” In general, this means, he must have maintained a valid non-immigrant status in the United States and have not engaged in unauthorized employment.

What if the alien- like Procopio- isn’t qualified for “adjustment of status” because he became “unlawfully present” or to use a familiar term, “TNT”?

That’s when Section 245(i) of INA comes in. It allows the alien, otherwise ineligible, to adjust status in the United States.

To be eligible for Section 245(i), the alien must be the beneficiary of one of the following:

(1) A family petition or employment-based petition that was filed on or before January 14, 1998;

(2) Eligible under the Legal Immigration and Family Equity Act of 2000 (Life Act). This law extended the cutoff date for eligibility to April 30, 2001. To qualify, the alien must have been physically present in the U.S. on December 21, 2000, if his application or petition was filed after January 14, 1998 but on or before April 30, 2001.

In order to benefit from the provision of Section 245(i), the alien must pay a penalty fee of $1,000 in addition to the basic fee for an adjustment of status application.

My posting, re: Family-based petitions, has been generating a lot of queries from “kababayans.” Some sent their queries by e-mail. Some called me by telephone.

Well, it’s easy to understand why. It’s the most common sponsorship process for many Filipinos- for those who are here, as well as for those back in our country.

The sad part is, with the exception of petitions for immediate relatives, (i.e., petition for spouses, children, and parents by U.S. citizens), most petitions in this class for Philippine natives suffer from heavy visa backlog.

For instance, based on the Visa Bulletin for March 2007, a petition for unmarried sons and daughters by U.S. citizens has a visa available only for those filed back on 22 January 1992 and earlier dates; married sons and daughters, 01 September 1990; and brothers and sisters, 01 September 1984.

So, beneficiaries of these petitions would have to wait for a long time for visa availability.

Now, here’s a query sent via e-mail:

“I’ve been here in the U.S. for over 15 years, but wala pa ring “papel.” I’ve got three kids born here. The eldest is 12. Can I get sponsored by one of them since they’re U.S. Citizens?”

The answer is yes. He or she can be petitioned by one of his or her kids when one of them becomes 21 years of age.

Why? The law requires that a parent may be petitioned by a U.S. citizen, if the latter is at least 21 years of age.