When should you downgrade a Philippine work visa? Why should it be downgraded? What happens if it is not downgraded? We explore the answer to these questions below.
Foreign nationals who want to change their status to a temporary visitor or tourist (9a) visa should have their visa downgraded.
Companies terminating a foreign national’s employment usually downgrade his visa status to a 9a visa. This gives the alien some time to fix his affairs.
Visa downgrade issues
Once the Bureau of Immigration approves the downgrade application, it will not allow the foreign national to work in any capacity in the Philippines.
If the BI inspects and discovers that a company allowed a foreigner to work after the downgrade, it can punish both company and foreigner into trouble. This violates the Immigration Act. The BI does not do this often, though.
Some companies won’t downgrade the visa of their employees. Instead, they will have them leave on or before the last day of their contract and let the work visa expire abroad. There are consequences to this, depending on the type of work visa.
There are many issues on downgrading. Many companies consult immigration lawyers to make sure that they get the proper legal advice.
When and why we downgrade a work visa
A foreigner may only work in the Philippines if he has a work visa or a special work permit (this is different from the Alien Employment Permit or AEP). The company files a downgrade application to a temporary visitor’s (9a) visa when the foreign national is resigning or has resigned from the company.
Companies should submit downgrade applications several days before termination of the foreigner’s employment. It ends any employer-employee relationship between them. Companies do this to avoid any liability or legal complications if the foreigner were to overstay or commit a crime or other violation.
When the BI approves the downgrade, it terminates the working relationship between the foreigner and the company. In fact, the BI cancels the foreigner’s alien certificate of registration or ACR I-Card, thus “downgrading” his status from an alien with the privilege to work here, to a mere temporary visitor who cannot. If the foreigner keeps working for the company, he violates the legal requirement for a work visa or permit. This is a legal violation. The BI will penalize both if discovered.
Under the newly implemented regulation, companies should now downgrade their foreign employees before employment termination, and before leaving the country for good. For more details, please see this link.
Some BI-accredited agencies suggest that the company apply for a downgrade while the employee will still be working for the company. This exposes both the company and the foreigner to penalties for violation of immigration laws if the BI downgrades the visa while the foreigner still works there. If the BI discovers this arrangement, there will be consequences.
At this point, because of the new regulation (see update above), the BI should put in place a remedy for those companies who need their foreigners employees to the last minute. In the past, the procedure was to secure an emigration clearance certificate for a foreigner leaving for good. The company surrenders the ACR I-Card and the BI issues a clearance for the foreigner to leave on a certain date. But this procedure has been changed. Once I know of the new procedure, I will post about it.
Another reason to apply for a visa downgrade is for changes in employment. When a foreigner gets a work visa, it is only connected with the company that applied for it. If he wanted to change go to a different company, he would have to change his visa status from that of a work visa to a temporary visitor’s visa (9a). After that, his new company would be able to file a new application for a work visa.
One can only convert to a work visa from a 9a visa.
Normally, when a foreigner changes his employment from one company to another, he should leave the country and come back with a temporary visitor’s (9a) visa. But instead of leaving, the employee could opt to downgrade his visa. This will convert his visa status to 9a without having to leave the country.
Who files the visa downgrade?
The company usually files the visa downgrade application. Payment for downgrading depends on the agreement between the employer and employee. Some companies pay for it, others don’t.
Some companies won’t even file a downgrading application. In such cases, the BI now allows the foreign employee to file the downgrade. Be ready for additional documentary requirements. It would be best to consult a lawyer on this as the policy changes from time to time.
Effect of not downgrading?
At this point, we have to differentiate between the kinds of work visas. The effect of not downgrading depends on the work visa issued.
The first effect involves issuance of an exit clearance – known better as the emigration clearance certificate (ECC). This is a clearance from the BI which declares a foreigner to have no outstanding obligations to the Philippines. It allows the person to leave.
Only the work visas covered under section 9 of the Immigration Act (such as 9d and 9g visas) are required to secure a clearance.
The RHQ and ROHQ visas are exempted from all BI clearances. Hence, there is no effect if these visas expire while the foreign national is abroad. The 47a2 visa is a special visa that also does not require downgrading. However, the BI has required some 47a2 visa holders to secure an ECC. Check with an immigration lawyer if you need this or not.
If a foreign national with a section 9 visa does not secure an ECC, he is considered to have an expired work visa if he is abroad when his visa expires. Technically, he cannot obtain another visa until he has his expired visa canceled.
This can be a problem considering that the only way to have a visa canceled is to have the BI in the Philippines cancel it. This cannot be done abroad. It can only be done in the Philippines. But the foreign national will not be given a visa to go to the Philippines to cancel it.
Remedies when you don’t downgrade
If the foreign national is covered under the Balikbayan Law or is from a country whose citizens are allowed visa-free entry into the Philippines, they will usually be allowed to enter the country without securing a visa. When they enter, their status will be equivalent to that of a 9a visa. This overrides their previous visa, hence, there is no need to downgrade.
A restricted foreign national will apply for a visa in the Philippine embassy. If the embassy notices the expired visa, it will not issue him another unless he secures clearance from the BI.
The remedy is to send notice to the BI that the foreigner has left the country for good and to apply for cancellation of the visa and the ACR I-Card. The BI will run a clearance check before cancellation. During the check, it will determine if there are fines or charges that need to be paid. When both documents are canceled, the foreign national may now apply for a new visa. Lawyers can do this for their clients.
This is a basic rundown of when and why to downgrade. Some problems are on a case-to-case basis, so it may be wise to consult with a lawyer.