Our advice to employers has been consistent: we tell them to survey their work force, because federalization will affect different categories of workers very differently.
As far as U.S. citizens, permanent residents (“green card” holders) and citizens of the Freely Associated States (the FSM, the Marshall and Belau) are concerned, there will be no change. These employees will not be affected. As far as the foreign national workers (“contract workers”) are concerned, we are assured by federal officials that most of these workers will be able to transition into a new status that will be created by the federalization law: the CNMI-only Transitional Worker category. Unfortunately the regulations that will spell out the implementing details of this new program have not yet been published. What we do know is that workers who have valid status on November 28, 2009, and who are not otherwise eligible for a U.S. visa, will be eligible to apply for this program. Employers must make sure that foreign national workers’ entry permits are current; those who are out of status on November 28 will not be eligible for the CNMI-only Transitional Worker program.
The more problematic category of employees are the immediate relatives or IRs. These are workers who, by virtue of their family relationships to a U.S. citizen, a U.S. permanent resident, a CNMI permanent resident, or an FAS citizen, have been issued CNMI immediate relative entry permits and are deemed “local” workers under CNMI law. Hiring IR workers in the past has been very attractive to employers because they could be hired at-will (without a contract); they counted toward the local preference requirement in hiring, and the employer was not responsible for the medical care or repatriation of the worker. As we explained in our previous columns, these workers will lose their immigration status whenever their current CNMI entry permits expire after November 28. U.S. immigration law has no equivalent to the CNMI’s IR status. IRs of U.S. citizens and IRs of U.S. permanent residents may be eligible for green cards. The reality however is that even for IR workers who are eligible for green cards, the cost is often prohibitive. We have suggested to employers that they consider creating loan programs to assist their valued IR employees in securing the funding necessary to apply for U.S. permanent residency. Some employers have done so.
IRs of FAS citizens and CNMI permanent residents will generally not be eligible for green cards. IRs who are not eligible for green cards may be eligible for certain employment based visas, such as H1 and H2B. Those who are not, will likely be eligible for the CNMI-only Transitional Worker program. In any event, the best way to protect these workers is to make sure that their IR permits are renewed for the longest possible term. Two year permits are available for all but FAS IRs. FAS IRs can renew for one year only. IR permits must be renewed or extended prior to November 28. On that date, the CNMI will lose all authority to control immigration: it will not be able to issue, extend, renew, or revoke entry permits of any kind.
Accordingly, the bottom line advice we give to employers is fourfold: (1) survey the work force and determine whom you have in each category; (2) if you have valuable foreign employees you want to retain, determine if they are eligible for a U.S. visa and help them get one if necessary; (3) keep your foreign national workers’ CNMI permits current and keep abreast of developments regarding the CNMI-only Transitional Worker program; (4) make a serious effort to hire and train local U.S. citizen workers; they are future backbone of your workforce.
The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to [email protected]. Readers may also submit written questions through The Marianas Variety (insert street address/directions.)
