Global Immigration Updates | Week Beginning 19 April 2021

April 23, 2021

PHILIPPINES: Revised Work Permit Regulations Take Effect 5 May 2021

The Department of Labor (DOLE) revised rules for the issuance of employment permits to foreign nationals, announced in January, are expected to take effect on 5 May 2021.

The key changes are as follows:

 Application requirements and processing

• The period for filing applications for Alien Employment Permit (AEP) is indicated as within ten working days from date of signing of the contract or before the start of the employment.
• Accepted proofs of Tax Identification Number are listed.
• Certified true copies of corporate documents and other documents relating to the business are required.
• Proof is required that the employer has published the job vacancy in a newspaper of general circulation at least 15 days calendar days before the application is submitted, as well as a duly notarized affidavit stating no applications were received or no Filipino applicant was considered for the position. This is in addition to the publication of the position by the regional labour office within two working days after receipt of the application.
• There is a significant increase in the applicable fees.
• The processing period has been changed to five working days.

 Validity, Issuance, Cancellation, and Revocation of AEP

• Failure to claim the AEP card within the prescribed period is now a ground for its revocation.
• The AEP remains valid until it expires, for the same position, despite the transfer of the company to another location;
• The existing AEP remains valid in case the foreign national has been transferred or subsequently assigned to related companies in another region.  However, publication is required upon renewal of the AEP with the concerned labour office.  The employer shall notify the concerned labour office of any transfer or reassignment of foreign national within ten working days.
• In case of any change in the foreign national’s position or employer, he/she shall be required to file a new application for AEP and surrender the previously issued AEP card for nullification.
• Cancellation of the AEP may now be requested by the employer or the foreign national.
• There are some changes in the grounds for revocation of the AEP and the steps and timelines are more detailed.
• More detailed requirements for the remedy of appeal to the DOLE Secretary are provided.

 Renewal of AEP

• The procedure for an AEP renewal application where election or appointment is required for the position has been provided for the following instances: (a) if the foreign national was elected or appointed for the same position before his/her AEP expires; (b) if the foreign national still holds the same position or office in a hold-over capacity, and if thereafter, the subject foreign national has been elected and qualified for the same position; and (c) if the foreign national was elected/appointed for a different position.
• All applications for renewal without an appropriate visa shall be treated as a new application after the expiration of the existing AEP.
• There are some changes in the grounds for denial of application for new and renewal of AEP

 Exemption and Exclusion from AEP

• There are some changes in the lists of categories of foreign nationals who are exempted or excluded from securing an AEP.
• The requirements and procedure for securing a Certificate of Exemption is provided but securing said certificate is only voluntary as it states that all foreign nationals exempted from securing an AEP may request for a Certificate of Exemption from the labour office concerned.  Previously, there was no provision on securing a Certificate of Exemption
• The requirements and procedure for securing a Certificate of Exclusion is provided. As before, it is mandatory for covered foreign nationals to secure a Certificate of Exclusion but there are some changes in the requirements.
• The validity of the Certificate of Exemption shall be from the date of issuance up to the end of deployment, while the Certificate of Exclusion shall be valid from the date of issuance up to the end of the contract, appointment, or election.  Previously, the Certificate of Exclusion issued by DOLE was only valid for one year.

 Sanctions and Penalties

• Foreign nationals found to be working with expired AEP or had been working without the necessary AEP and employers found to be employing such shall be barred from filing AEP application for five years, plus payment of penalties.
• The sanction of being barred from filing of application for five years for three counts of filing of fraudulent applications of AEP by the employer, authorized representative, and/or Accredited Agents remain but the procedure and timelines have been clarified.  The employer, authorized representative, and/or accredited agents found to have filed fraudulent applications shall be notified by the labour office for every count thereof directing them to explain, within the required period, why they should be disqualified from further filing any applications for AEP.
• The amount of fine to be imposed upon the foreign national and employer remain the same and the grounds are enumerated.  However, it may be noted that the labour office may impose a fine for other circumstances analogous to those specifically enumerated therein and for any violation of the AEP Revised Rules and Regulations, the Labor Code, as amended, and other relevant guidelines, issuances, circulars, governing the employment of foreign nationals.

 Other

• The duty of the employer to submit reports to the concerned labour office, the instances when this is required, and the timeline are provided.
• The labour office shall adopt a policy of accreditation of agents or representatives authorized to represent, to act for and on behalf of a Philippine-based employer and/or foreign national for the issuance of AEP and it shall also create a database of accredited agents for monitoring and regulation thereof.
• The labour office shall develop and establish an online database system for AEP.  Online filing of applications has been adopted by certain labour offices during this pandemic.

SOUTH KOREA: Electronic Travel Authorisation Launched

The Korean government has announced an Electronic Travel Authorisation system (K-ETA) which will be piloted from 3 May 2021 for visa-free nationals of 21 countries and fully implemented from September 2021 for visa-free nationals of 112 countries in total.

• Applicable travellers must apply for a K-ETA at least 24 hours before boarding aircraft or ships to South Korea, either online or via an app.
• An application costs KRW 10,000 (about US $9 plus additional fees), but fees are waived during the pilot period.
• The K-ETA is valid for two years for the date of approval.

UNITED STATES: USCIS Expands Online Filing to F-1 Students Seeking OPT

The U.S. Citizenship and Immigration Services (USCIS) announced that F-1 students seeking optional practical training (OPT) can now file Form I-765, Application for Employment Authorization online if they are filing for: pre-completion OPT, post-completion OPT, or STEM OPT. The online filing option comes in the midst of USCIS’ significant backlogs in issuing receipt notices and adjudications for these types of applications.

The update is particularly useful for students seeking STEM OPT employment authorization, who are permitted to establish employment authorization for Form I-9 purposes by presenting an expired OPT EAD card with Form I-20 endorsed by the student’s designated school official but require evidence that the STEM OPT application was timely filed to get the endorsed Form I-20. By filing online, students should receive electronic filing receipts quickly and be able to use these receipts to confirm filing to their designated school officials; thereby being able to secure STEM OPT employment authorization even prior to receiving the official STEM OPT EAD card.

Finally, the option to file Form I-765 online is only available to F-1 students seeking OPT-based employment authorization. USCIS will deny any online applications for non-OPT categories and retain related fees.

Our Advice

Employers who may be affected by any of these immigration changes are encouraged to contact Newland Chase for case-specific advice.