CNMI employers have started filing their Commonwealth-only worker petitions and started to exhaust by all means to reach out US citizen to fill occupations currently occupied by foreign workers regardless of if said foreign workers are long time employees of a company, regardless of even if that particular foreign workers are very familiar with the type of occupation he or she is working with or regardless of whether that particular workers are highly qualified for that particular occupation and even if he or she had been doing great for the past 20 years or more in line with his/her occupation, all employers are mandated by the final regulations to replace foreign workers by US citizen who will apply and is qualified to do the job because that is the US Law. There are individual who spent their life time in the CNMI, established their own family regardless of their immigration status, live and work together with their families and friends for more than ten years then here comes the Federal Law via final regulations driving them out of the island disregarding the fact that being jobless is not the FAULT of foreign workers, but rather it is due to economic slowdown worldwide.
The job vacancy announcements are meant to encourage qualified and available U.S. workers to apply for these foreign worker-held positions. This means that there is no mercy in hiring and replacing foreign nationals under the final regulations. The final regulations were delayed for more than two years until it came out last September 7, 2011. The much awaited release of final regulations was delayed for so many reason and now with only less than sixty (60) days of its effective date until November 27, 2011 the final regulations said all foreign workers will be out of status if no employer will petition them. Employers need proof, including job vacancy announcements, to attest that there were no qualified U.S. workers for the position currently occupied by foreign worker for a CW status. This job vacancy announcement had been existing in the CNMI long before foreign workers enter and signed employment contract with the CNMI Department of Labor but the same is true, no available US Citizen to fill up foreign workers work force. This was no different than before and therefore the final regulation is imposing unreliable labor pool, an act of indirect removal of foreign workers.
The USCIS said that the transition period is a matter of statute, found in the Consolidated Natural Resources Act of 2008 or Public Law 110-229 which placed CNMI immigration under federal control and that there is no provision in the CNRA to move to a later date. The drafters of the final regulation forget to state the “general rule” that says “for every rule there is always an exception.” Advance Parole and or Parole in place will only prolong the agony of affected foreign workers. There is also currently nothing in the U.S. Congress being considered to extend the Nov. 27, 2011 deadline according to the USCIS officials. The final regulations are violating the intent of the CNRA provision. CNRA PL 110-229 said that the intent is to minimize to the greatest extent practicable the potential adverse economic and fiscal effects of that phase-out, to maximize the CNMI’s potential for future economic and business growth, and to assure worker protections from the potential for abuse and exploitation. This is not true, it rather create more serious violation of check-in-balance in terms of economy. The implementation of final regulations is to spent more money on the part of the business and workers because in complying with the final regulations all sectors from businesses to workers will spend money for final regulations statuses payment H and/or CW visas because implementers of the final regulations is a profit based entity that will create more adverse effect to the business community and will eventually result into more layoffs, business closures.
If there are rules with two or more meaning, that are contradicting, that are conflicting, that are confusing, that rules are not enforceable.
There were series of information workshop or meetings seeking to explain the final rule but there are still question with no concrete answer, with contradicting answer, therefore, the rule is most likely not enforceable and is subject for changes and or insertions.
From November 28, 2009 until the release of the CW Final Rule, employers and foreign worker population in the CNMI are in limbo as to what to do. Pending the release of the CW Final Rule, confusion abound among employers and employees alike about the application of labor laws, conditions and policies were wrong and misleading information exposed workers and employers to serious immigration and labor consequences afterwards. The government agencies, both local and federal, were all silent about what to do and where to and the common response was to wait for the release of the CW Final Rule. And now that the final regulations is out for implementation within the time period of less than sixty days (57 days only) everyone is still in limbo, therefore final regulations is not enforceable yet that needs to be extended.
There are foreign workers with pending claims and with resolved cases but no enforcement of judgment, for workers who were unfairly terminated by their employers, workers with U.S. citizen children but have no employers to petition them, workers who have labored in the CNMI for a long time some of them up to twenty to thirty years are now facing loss of immigration. Where is the humanitarian consideration in the final regulations, parole in place will only prolong the agony of affected foreign workers, prolong your fear of being deported and without peace of mind.
There is a man trying to do something to earn for his family, cut a trees for charcoal production, there is a construction contractor who is about to demolish a century old forest or vacant lot for the construction of a commercial building but both were put to jail for violations of the “Birds Habitat” because what they did is a violation of the law. How about foreign workers, they are humans who had been in the island for years, this islands became foreign workers habitat too for years and years but because of the final regulations law, poor foreign workers will be forcibly leave the island for fear of being deported out of the islands that they consider their habitat too.
The implementation of the CW Final Rule is unduly prejudices foreign workers and business owners due to the short period by which it was released and time of implementation. Given the economic conditions in the CNMI, proponents of the CW Final Rule failed to take into consideration the Congressional Intent in implementing Public Law 110-229, among which is “to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out the Commonwealth’s nonresident contract worker program and to maximize the Commonwealth’s potential for future economic and business growth.”
An extension of umbrella permit or suspension of the final regulations final date of implementation for one year should be considered.
CARLITO J. MARQUEZ
Puerto Rico, Saipan
