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Founded in 1986
Founding Publisher/Editor:
Lito A. Gajilan
Columnists:
Atty. Michael J. Gurfinkel
Joseph G. Lariosa
Gani P. Tolentino
Ted L. Reyes
Atty. Reuben S. Seguritan
Photographers:
Butch Gata
Sheryl Garcia
The opinions expressed by columnists are their own and do not reflect the opinion of the paper nor that of the publisher
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For the past 20 years, The Filipino Express has provided the Filipino American community the best news, arts and entertainment coverage from around the United States and the Philippines.
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This website includes selected articles from this week's edition of the Filipino Express. Not all the stories published in the printed version appear on this site.
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To tell us what you think about Filipino Express Online or to comment on the stories published here, E-mail us at Filexpress@aol.com
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AFTER a two-day respite from mundane activities, it’s back to the salt mines.
To many of our kababayan in the Philippines, the Holy Week has always been a welcome break from the hassles and stress of the regular work grind. What most us dread really is when the Lenten season comes to a close -- when we have to convince our tired and weary bodies to pick up the slack once more after the much sought-after rest. It’s not easy to shake off the sluggishness of those few precious days of vacation.
Others, however, come off the Holy Week break feeling rejuvenated, with renewed faith and recharged energies. Those few days of Lenten retreat and solitude almost always offer an opportunity for us to reflect and assess life in general. The past week allowed us to bury the past and start anew with a fresh outlook.
The message of Easter is hope and rebirth. It should be with renewed hope that we must greet the post-Holy Week days.
Although, admittedly, many Filipinos consider the last day of Lent as a perfect day to go to the beaches, not only to celebrate the end of the Holy Week break but also to mark the dawning of the new hope on the first day of the rest of our lives.
But then, with this year’s local congressional and local elections, the end of the Holy Week break meant the resumption of the political season. From the spiritual back to the earthly; from the solemn back to the unholy.
After a two-day break from election campaign, the coming days signalled the resurgence of election gimmicks, inanities and gobbledegooks from politicians and wannabes. If you think you’ve seen enough nincompoopery courtesy of candidates and their hacks during the past few weeks, wait till you see the remaining days of election season. We haven’t seen nothing yet.
With just three weeks to go into the May polls, the electoral race is expected to heat up and intensify into an all-out war among candidates. Mudslinging will be more frequent and vitriolic, accusations would be more vicious, and exposés would be more bombastic -- the more ridiculous the better.
Worse, candidates would now promise the moon and the stars to the electorate, and would further offfend our sensibilities by dancing and singing a lot more than they did during the early goings of the electoral campaign season. If only for their insensitivity in forcing on us such unsightly spectacles and ear-unfriendly noises, they do not deserve our votes.
And violence? The National Police reported that 25 candidates have already been killed since the start of the campaign period.
Still and all, we can still hope all animosities generated during this season will be resolved by the people through the ballots, and not by candidates through the bullets.
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Ways to go around the H-1B Cap
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Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com
THE latest figures from the US Citizenship and Immigration Services (USCIS) indicate that cap-subject H-1B cases filed for Fiscal Year 2008 reached more than 119,000, or about twice the available H-1B numbers for FY 2008. The H-1B numbers will be available when FY 2008 begins on October 1, 2007, but the filing period opened six months prior on April 1, 2007.
This unprecedented H-1B “cap-out” has fueled calls for a major overhaul of the nonimmigrant worker system, particularly, the issue of setting numerical limits.
Proposals ranged from removing the numerical limit for H-1Bs altogether (as suggested by Microsoft chief Bill Gates), or a market-driven limit adjusted on a yearly basis. Whichever way the H-1B reform goes, the 65,000 annual cap is definitely unrealistic.
Background
Ever since the annual H-1B cap reverted to 65,000 in FY 2004, the demand for H-1B numbers has only grown progressively worse over the years. For FY 2007, the H-1B numbers were exhausted by May or in less than two months into the H-1B filing period.
Out of the 65,000 annual cap, 6,800 have been carved out for Chilean and Singaporean nationals who are seeking H-1Bs pursuant to the US-Chile and US-Singapore Free Trade Agreements. In effect, there are only about 58,200 H-1B numbers under the regular cap.
Since the 6,800 carve-out for Chilean and Singaporean nationals are rarely used up, some H-1B relief is obtained when these unused numbers are recaptured and used to process cap-subject H-1B cases.
Cap Procedure
Cap-subject petitions that have been received on April 2 and 3, 2007 will undergo a computer-generated random selection process. Those petitions that have not been selected as well as petitions that were received by the USCIS on or after April 4, 2007 will be returned together with the filing fee.
With respect to H-1B petitions that my office has filed, it is interesting to note the caveat on the Receipt Notices from the USCIS which essentially read that such Notices are not even evidence that (the) case/s are still pending.
Clearly, the unrealistic numerical limit on H-1Bs per year is adversely affecting US businesses which need to stay globally competitive by attracting top professionals and skilled workers. The “random selection process” demonstrates how the ability of US business to be competitive is already a question of chance rather than a matter for rational and responsive policy-making on the part of the US Congress.
What must a US employer do to improve its access to professional and skilled labor resources?
Advanced Degree Cap
One way to avoid the “cap-out” is tapping on the so-called Advanced Degree Cap. The latest USCIS figures indicate that it has received 12,989 advanced degree H-1B cases so far. This means the Advanced Degree Cap is still open and prospective employers of qualified foreign workers may still submit their H-1B petitions.
Although the Advanced Degree Cap is by no means the solution to the chronic lack of H-1B numbers, the Advanced Degree Cap has eased the severe demand for H-1Bs and enabled thousands of US employers to hire first-rate foreign workers.
Under the H-1B Visa Reform Act of 2004, Congress mandated the addition of 20,000 H-1B numbers for foreign workers who have obtained their advanced degrees from US colleges and universities.
Thus, foreign workers who have master’s degrees or Ph.Ds from US colleges and universities need not rely on the regular H-1B visa cap. On the other hand, US employers need not even prove that the job requires an advanced degree as the statute and regulation simply specifies that the 20,000 additional visa numbers should go to advanced degree holders.
It is worth noting that based on USCIS reports, the Advanced Degree Exemption Cap for FY 2007 was exhausted by July 2006 or about three (3) months even before the fiscal year began on October 1, 2007. This underscores the need for F-1s on optional practical training to plan ahead as the Advanced Degree Cap runs out relatively fast as well.
Cap-Exempt US Employer
US businesses may also utilize barely-noticed provisions in the rules that could exempt them from the H-1B cap.
Two factors come into play in determining whether an H-1B petition is cap exempt or not: first, the nature of the employer and second, where the H-1B beneficiary will render his/ her services.
Under H-1B regulations the numerical cap does not apply if the employer is either of the following: (a) an institution of higher learning; (b) a nonprofit entity related or affiliated with an institution of higher learning; (c) nonprofit research organization; or (d) governmental research organization.
An “institution of higher learning” is an educational institution that meets the following requirements: first, it admits high school graduates only; second, it is legally authorized to provide a program of education beyond high school; third, it provides a bachelor’s degree program or at least a 2-year program that can be credited toward a bachelor’s degree; fourth it is a public or other nonprofit institution and lastly, it is accredited or pre-accredited by a nationally-recognized accrediting agency.
To prove that it is an “affiliated entity” a prospective US employer must present proof of “shared ownership or control by the same board or federation operated by an institution of higher education.” Such employer may also present evidence of its attachment to the institution of higher education as a “member, branch, cooperative or subsidiary.”
A nonprofit research organization must be “primarily engaged in basic research and / or applied research.” In a similar vein a governmental research organization is a “United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research.”
The second factor that comes to play is whether the beneficiary will be “employed (or has received an offer of employment) at” the entities described above. Many employers question whether this casts a wider net of qualification than if the alien was to be “employed by” such entities.
According to a USCIS memo, Congress intended to extend cap-exemption to aliens who are to be employed “at” a qualifying institution from the cap. In other words, the qualifying institution need not be the direct employer of the alien beneficiary. But the duties of the foreign worker must “directly and predominately further” the primary purpose of the qualifying institution.
Non-Cap Foreign Worker
Certain foreign workers are no longer counted towards the H-1B cap so that petitions on their behalf may be processed by the USCIS.
These petitions include those filed for an extension of H-1B status; those that change the terms of employment of an existing foreign worker with the same US employer; those filed for H-1B workers who are transferring to another US employer; and finally those filed for current H-1B workers for a second H-1B position.
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THE hottest “bio-diversity hotspot” in the country could well be a pinpoint, 30 meters by 30 meters, alongside one of Cebu island’s more picturesque waterfalls.
“In this needle spot in Kawasan Nature Park, five threatened species of the highest diversity value were bunched up -- only on one of the river’s banks,” observes University of San Carlos’ Franz Seidenschwarz. “The magic of it all is this unique pinpoint looks similar to other stretches along the river. Nothing seems special. And yet, it is the hottest bio-diversity hotspot on Cebu island, perhaps in the entire Philippines.”
In Kawasan, Dr. Ernest Krach, for example, found a very rare alga: batrachospermum. No other Philippine town has it. Japan is the only other place in the world where it grows -- in Miyako’s Nu-gusuku-ga springs.
Kawasan at Matutinao, Badian, is 120 kilometers south of Cebu City. “Matud nila tin-aw” means “they say it’s very clear” -- a reference to the water’s sparkling purity.
The valley is one of a denuded province’s last habitats. It holds rare birds, including bee-eaters, hornbills, kingfishers. At least 10 pairs of the endangered black shama (copsycus cebuensis) were seen. “This thrushbird is found only in Cebu, nowhere else,” USC studies show. Highly endangered trees, like “ipil” (instia bijuga) and “tugas” (vitex parviflora), among others, flourish.
But in 1989, a mini-hydropower plant threatened to wreck the falls and valley’s tropical ravine forest. And few paid attention when then-power firm manager Fr. Francisco Silva and engineer Lutz Scholz of Germany’s aid agency GTZ decisively redrew the plans.
Their revised plans conserved the falls by staggered operating hours. It integrated a nature park component. The park dammed up intrusion into the valley’s vegetation. Guidelines for construction were drawn to
protect wildlife.
What emerged, when the turbines first turned, on May 31, 1990, was an eco-friendly hydropower plant. It serves tourists. Its conserved bio-diversity trove draws scientists from Silliman University and universities abroad.
“Bio-diversity” refers to the full abundance of plant, animal and microbial life and ecosystems where these species interlock. Their unique genes are building blocks of life. High-yielding rice, for example, is spliced from different genes. So are hybrid livestock. Medicine against AIDS or cancer comes from plants.
Oxford University’s Norman Myers led scientists, in the early 1980s, in warning against the spiraling loss of plant and animal species. When species go extinct, so do their unique genes. It forecloses options for the future.
Myers also helped identify a series of “hotspots” worldwide. Among the five “hottest of the hotspots” pinpointed was the Philippines.
There is also the “accident” of history. The Philippines, Taiwan, Borneo and Sulawesi are separated by deep-sea trenches. Over millions of years, these trenches have resulted in a very high degree of endemism, i.e. many species occur only in this region.
Of the almost 400 species of birds in the Philippines, 44 percent are endemic. For mammals, it’s 64 percent, and 70 percent for reptiles. Thus, more than half of the country’s bio-diversity is found nowhere else in the world.
Fourteen years after the Kawasan hydro-plant-cum-nature-park started, the San Carlos Botany Research Group resurveyed the area. Among its conclusions were:
There’s been substantial re-growth of trees, mostly indigenous species, along Kawasan River. The initial rapid conversion of riverside vegetation into cottage areas is now balanced.
“Valley inhabitants generate substantial income from tourism. The power company is following agreements to maintain natural water flow to preserve the waterfalls.”
The nature park approach “assured the survival of species that were not even known at the onset of the project... Several very rare endemic species were discovered in the following years.”
Three damselfly species, all endemic to Cebu, were discovered in August 1999 and February 2001. The three are now scientifically catalogued, the latest being the Kawasan mosquito hawk (protostica plicata). The Kawasan paper kite butterfly was named after the renowned Cebu-lepidopterist, Julian Jumalon.
“The new findings were surprising,” the report notes. “It was thought that all species of forest dwelling damselflies would have already been extinct in Cebu because of the massive loss of forest cover.
“These species are very much endangered. Without the nature park concept, they would have vanished without even being discovered.”
And that’s precisely what happened 50 km up the road, at the Mantayupan Falls in Barili. There, a mini-hydropower plant was built with little regard for the falls and the surroundings. “Go, live in Africa,” then-governor Pablo Garcia of Cebu province taunted green groups.
Today, his daughter, Gov. Gwen Garcia, is revisiting a project that has wrecked the falls and the surroundings. It is one of those little ironies of history.
But it will be too late for some species. “We may never know what we lost,” Seidenschwarz observes.
At San Carlos University, he is finalizing a book on the issue. To come off the press later this year is “The Rare and the Vanishing: Cebu’s Special Plants and Animals.” The book will document the threatened plant and animal species of an island that markedly differs from those of its neighbors. “There is no mechanism that can recall them from extinction,” Seidenschwarz says.
E-mail: juan_mercado@paci-
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Michael J. Gurfinkel has been an attorney for over 26 years, and is an active member of the State Bar of California and New York, as well as the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association. He has always excelled in school:
Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California.
WEBSITE: www.gurfinkel.com
Four offices to serve you:
LOS ANGELES:
219 North Brand Boulevard, Glendale, California 91203
Telephone: (818) 543-5800
SAN FRANCISCO:
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NEW YORK:
60 East 42nd Street, Suite 2101, New York, NY 10165 Telephone: (212) 808-0300
PHILIPPINES:
Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines 1227
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