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|MEMORANDUM CIRCULAR NO. MCL-09- 001|
SUBJECT : PROVIDING THE IMPLEMENTING RULES AND REGULATIONS FOR EXECUTIVE ORDER NO. 758, DATED 04 FEBRUARY 2009, ENTITLED “PRESCRIBING THE GUIDELINES FOR THE ISSUANCE OF SPECIAL VISA FOR EMPLOYMENT GENERATION TO CERTAIN INDIVIDUALS AND UNDER SPECIAL CIRCUMSTANCE
Section 1. Title. – These rules shall implement the issuance of the Special Visa for Employment Generation (SVEG) under Executive Order (E.O.) No. 758 (series of 2008).
Section 2. To Whom Issued. – Subject to restrictions imposed by the Constitution and existing laws on control, nationality and/or ownership of working capital, a SVEG shall be issued to a foreigner or foreigners with controlling interests in an entity, firm, partnership or corporation that establishes, expands or rehabilitates a business activity, investment, enterprise or industry that enables the proportional employment of at least ten (10) full-time/regular Filipino workers are actually employed on a long-term basis in the Philippines.
The minimum requirement provided for in the preceding paragraph shall not apply to laws requiring specific investment and/or capitalization requirement such as, but not limited to, the Foreign Investment Act and Retail Trade Liberalization Law.
Further, the foreign equity participation in an entity, partnership or corporation shall be consistent with the Constitution, the Foreign Investment Act and other special laws.
Section 3. Viable and Sustainable Commercial Investment/Enterprise – Viable and sustainable commercial investment, enterprise or industry shall mean any business activity, investment, enterprise or industry in the Philippines that a SVEG under these rules shall be issued to any foreigner or group of foreigners in any business activity, investment, enterprise or industry in accordance with the laws, rules and regulations of the Philippines that:
(a) Engages in the manufacturing, processing, assembly, production, packaging, supply, delivery and/or trading of goods, products and/or commodities, either for mass consumption or for export including foreign investors in special economic zones owned and/or administered by the Philippine Economic Zone Authority (PEZA);
Section 4. Nature of Employment of Filipino Workers. – Under these Rules, the employment of at least ten (10) long-term and full-time/regular Filipino workers shall be for managerial, executive, professional, technical, skilled or unskilled positions in a business activity, investment, enterprise or industry in the Philippines.
Section 5. Definition of Managerial Position. - A position is managerial if these characteristics concur:
(a) The worker manages the organization or a department of the organization;
Section 6. Definition of Executive Position. - A position is executive if these characteristics concur:
(a) The worker directs the management of the organization or a major part of the organization;
Section 7. Definitions of Professional, Technical, Skilled and Unskilled. – The term professionals shall refer to employment requiring formalized, extensive training or education in creative and intellectually challenging work that includes, but are not necessarily limited to, researchers, computer data and systems technicians/designers/programmers/analysts, physical/occupational therapists, nurses, medico-health specialists, medical technologists, radiologists and electronic/graphic/digital media specialists.
The term technical shall refer to employment that requires highly-specialized scientific, agro-industrial, chemical, mechanical, electric, electronic and similar expertise.
The term skilled shall refer to employment that requires at least two years training or experience.
The term unskilled shall refer to employment that requires less than two years training or experience. However, this term excludes housekeepers and household workers, including domestics, nannies, cooks, guards, caretakers and the like.
Section 8. Other Investments in the Philippines. – Foreigners with other investments in the Philippines consisting of real estate, shares of stock or bonds, insurance, mutual plans, estate funds, local or foreign currency time deposits may avail themselves of the privileges of the SVEG upon proof of utilization of such investments into an active and continuous business activity, investment, enterprise or industry in the Philippines under Section 2 of these Rules.
Section 9. Filing and Contents of SVEG Application. – The SVEG application shall be filed at the Office of the Commissioner consisting of :
(a) Notarized letter-request;
The application shall also certify, among others, that:
(a) The applicant maintains a lawful immigration status in the Philippines;
Section 10. Compliance to Permit, License and Clearance Requirements. Cooperation and Coordination. – Applicants for SVEG shall also attach proofs of compliance with the Labor Code, SSS, PhilHealth and Pag-Ibig on business license and other clearance requirements as may be required by law or regulations.
Government departments and agencies shall coordinate with the BI in the issuance of directives with a view to minimizing documentary requirements under these Rules.
Section 11. One Stop-Shop Center. – A One-Stop Shop Center shall be established at the BI to assist the issuance of permits, licenses and clearances [not otherwise attached in their applications under Section under Section 9 of these Rules. The BI shall provide adequate office space and facilities to all duly-authorized representatives of the government agencies concerned.
Section 12. Processing Time. Substantive Proof Needed. Control Number for Each Application. Preventing Intercalations. Non-Application of Technical Rules of Evidence and Procedure. – The Commissioner of Immigration shall, upon payment of an application fee of P2,000.00, together with payment of legal research fee, BI clearance and Express lane fee, receive and resolve completely-accomplished SVEG applications within fifteen (15) working days from the date of filing.
He shall assign a specific control number for each application and implement measures to prevent intercalations. Substantive proof shall be received and evaluated, without strict observance to the technical rules of evidence and procedure.
Section 13. Notice of Approval/Disapproval. Motion for Reconsideration. Decisions/Rulings are Final and Executory. – Upon resolution of each application, the Commissioner of Immigration shall send via registered mail a Notice of Approval/Notice of Disapproval to the applicant. Within forty five (45) days from receipt, a Notice of Disapproval may be reviewed via a Motion for Reconsideration (MR) to the Commissioner of Immigration. An MR fee in the amount of P 1,500.00, together with payment of legal research fee, BI clearance and Express lane fee, shall be paid and collected, for this purpose. Only one MR shall be allowed. The Commissioner of Immigration shall resolve the MR within a period of five days from receipt. Such resolution shall be final and executory.
Section 14. Registration and Documentation. Issuance of ACR I-Card and Identification Certificate. Multiple Entry Privileges and Conditional Stay. – The Notice of Approval shall direct the alien to report, without need of prior departure from the Philippines, for registration and documentation at the BI. An Alien Certificate of Registration (ACR) I-Card and an Identification Certification (I.D.) shall be issued upon payment of appropriate fees. The A.C.R.-I Card and I.D. shall indicate, among others, as follows:
Status Adjusted Without Departure as a Special Non-immigrant with Multiple Entry Privileges and Conditional Stay in the Philippines under EO No. 758 (Series of 2008 in relation to C.A. No. 613, Section 47(a)(2) under BI Control No. _____.
Special return certificates with multiple-entry privileges shall also be issued to SVEG holders.
Section 15. Conditional and Immediate Implementation SVEG. – Upon approval, the Commissioner of Immigration shall issue a one (1) year probationary SVEG. Thereafter he shall, upon request filed by the applicant within 30 days before the expiration of the probationary period, issue a SVEG for indefinite stay, upon payment of P2,000.00, together with payment of legal research fee, BI clearance and Express lane fee, and substantive proofs that:
(a) The business activity, investment, enterprise or industry is an actual, on-going and operating activity for past twelve (12) months immediately preceding the filing of the SVEG application;
Section 16. Replacement of Lost or Damaged SVEG Documentation. – Lost or damaged SVEG-related immigration documents issued under these Rules shall be replaced within 24 hours upon application at the BI or satellite office concerned, after submission of a duly-notarized affidavit of the lost SVEG or proof of the damaged SVEG and payment of appropriate fees as maybe assessed by the Alien Registration Division for lost I-Card,
Section 17. Other Beneficiaries of Special Non-immigrant Status. Fees. – The privileges of these Rules may extend to the alien spouse and dependent unmarried children below 18 years of age, whether legitimate, illegitimate or adopted. An application fee in the same amount as the principal shall be paid and collected by the spouse and its dependent children, for this purpose.
Section 18. BI Express Lanes and Services – To ensure full enjoyment of multiple entry privileges under these Rules, the BI shall, at no additional costs, provide express lane facilities and services to all SVEG holders at the main and satellite offices, including sub-ports, the Ninoy Aquino International Airport Terminals I, II and III, Cebu and Clark Airports.
Section 19. Official Receipts for Payment of Fees. Accounting and Auditing Requirements. – All payments shall be acknowledged by bonded collecting officers via issuance of official receipts. And all collections shall be accounted-for as government funds and subject to strict auditing procedures.
Section 19.a. Monitoring Requirement. Annual Report. – For the purpose of monitoring SVEG requirement as well as the employment of ten (10) long-term and full-time/regular Filipino workers, the SVEG holder shall at least one month after the year ends file a sworn report at the Office of the Commissioner of the Bureau of Immigration, supported by the following documents:
a Latest General Information Sheet (GIS) duly stamped received by the Securities and Exchange Commission (SEC);
Section 20. Revocation of SVEG. Review by the Secretary of Justice. – The Commissioner of Immigration shall revoke the SVEG under these Rules: (i) If obtained by the alien through fraud or willful misrepresentation of material facts; (ii) Upon conviction of the alien by final judgment for a crime or offense in the Philippines or (iii) A final determination by competent authority that the alien poses a risk to the general welfare.
The applicant shall have within fifteen (15) days from receipt of the Order of Revocation to file a petition for review to the Secretary of Justice.
Section 21. Additional Grounds for Revocation of SVEG. – The Commissioner of Immigration shall also revoke the SVEG, upon:
(a) Death of the SVEG holder;
Section 22. Failure/Inability to Maintain Ten (10) Filipino Workers. Review by the Secretary of Justice. – The SVEG holder shall always maintain the employment of ten (10) long-term and full-time/regular Filipino workers under these Rules. In case of failure or inability to comply, the SGEV holder shall immediately submit the reasons for non-compliance to the Commissioner of Immigration.
For meritorious reasons, the SVEG holder shall have a period of one (1) year employment requirement. Otherwise, the Commissioner of Immigration shall terminate the privileges of the SVEG. The termination of the SVEG may be reviewed via a petition for review to the Secretary of Justice within 15 days from notice.
Section 23. Effect of Final Conviction for a Crime, Offense, Fraud or Willful Misrepresentation. Review by the Secretary of Justice. – The revocation of the SVEG under Section 20 of these Rules shall cause deportation via summary proceedings. In the case of revocation under Section 20(ii) and (iii), the deportation shall be implemented after service of sentence.
A foreigner under these Rules who is ordered deported by the BI Board of Commissioners under this section shall be transported to the country whence he/she came, or to the foreign port at which he/she embarked for the Philippines, or to the country of his/her nationality of or of which he/she is a citizen or a subject, or to the country in which he/she resided prior to coming to the Philippines. However, he/she may within 15 days from receipt of the deportation order file a petition for review to the Secretary of Justice.
Section 24. Maintenance and Safeguard of Digitized Data. – The Commissioner of Immigration shall implement such measures as may be necessary to maintain and safeguard the integrity of all data. He shall use available electronic technology to digitize all data subject of these Rules.
Section 25. Confidentiality of Records. – Any application, document or attachment submitted under these Rules shall not be divulged in any manner to any person or entity without the express written authority from the Commissioner of Immigration.
Section 26. Submission of Reports to the President and Secretary of Justice. – The Commissioner of Immigration shall submit regular copies of monthly auditing reports and copies of BI-issued SVEG with relevant attachments to the Office of the President and the Secretary of Justice.
Section 27. Periodic Inspection. Promulgation of Additional Rules. Creation of Oversight Committee. – The Commissioner of Immigration shall:
(a) Conduct periodic inspections to ensure compliance with these Rules;
Section 28. Repeal and Amendments of Other Regulations. – Existing regulations that are inconsistent with these Rules are hereby repealed or amended accordingly.
Section 29. Effectivity. – This Memorandum Circular shall become effective immediately upon its publication in the newspaper of general circulation.
Let copies of this Memorandum Circular be filed with the Office of National Administrative Register (ONAR) at the UP Law center, UP Complex, Diliman, Quezon City.
Done this ____ day of February 2009, in the City of Manila.
MARCELINO C. LIBANAN
HON. RAUL M. GONZALEZ
Secretary, Department of Justice
Padre Faura, Manila