USCIS’ Gulick cautions employers to be truthful

U.S. Citizenship and Immigration Services district director David Gulick is warning that employers who make an attestation that is “not truthful” when filing a CW-1 petition for a guest worker can face penalty fines and prosecution.

“Don’t play games with us,” said Gulick, speaking at the Rotary Club of Saipan meeting at the Hyatt Regency Saipan yesterday.

Gulick said that employers filing a petition for their guest workers need to attest that there are no qualified U.S. workers that are available for the guest workers’ positions “on the day they file the petition.” U.S. workers include U.S. citizens, lawful permanent residents, green card holders, or citizens of the Freely Associated States.

Employers, Gulick said, also need to attest that they “reasonably believe the worker is not eligible for another U.S. immigration category as a non-immigrant worker.”

Gulick noted, though, that the duration for advertising the position is not specified anywhere in the worker rule.

“They [employers] have to take reasonable efforts to determine whether or not there are available U.S. workers in the CNMI at the time when they signed for the petition,” said Gulick.

According to Gulick, they are giving employers “a great deal of discretion” by leaving it up to them how to satisfy the attestation requirement by making a “reasonable determination” as part of their office’s “ongoing efforts throughout our adjudication process to reduce the paperwork on employers and applicants.”

“The burden shifts from us to the employer and they have to start thinking, doing decisions for themselves and they have to make good faith efforts to do what they can do,” he added.

Gulick emphasized that the purpose of the transitional worker rule “is to replace all the guest workers in the CNMI with regular U.S. immigration workers.”

“This is something that I hope people begin to understand and let’s work together to do this,” he said. “It may take some energetic, some out-of-the-box thinking on the case of the CNMI employers in trying to come up with how they’re going to solve their worker needs with U.S. workers in the future.”

Gulick said that when an employer deliberately misrepresents facts “with the intention of getting us to approve” the petition, then the U.S. Attorney will become involved.

While Gulick said that they will be conducting random checks to determine the accuracy of the petitions filed by employers, these random checks “may be subject to budgets and other factors.”

“It could very well happen. I would do my best to make sure it happens as much as I can,” he said.

Besides the amount of time needed to advertise a guest worker’s position before making an attestation, Gulick said that inquiries about determination of H1 visa eligibility and processing was also a key point that came out in all the outreach sessions that their team has conducted.

The USCIS team also conducted an outreach session on Rota on Monday and on Tinian yesterday, with schedules of more outreach session today and tomorrow. Except for Gulick, the outreach experts are scheduled to leave on Friday. Gulick will be on island until Oct. 9.

“Even right now, I don’t have answers to every question.We will give everybody fair consideration and take into account all the circumstances and there’s a lot of unique circumstances that exist here,” said Gulick.

These circumstances that have raised concerns, Gulick said, include the hiring of household workers and caregivers. He said that they’re “not going to be restrictive” if a legitimate business engaged in an ongoing activity of providing services or goods for profit “comes to us and petitions for a household worker or a maid.”

According to Gulick, “we will probably go ahead and assume that that’s one of the situations where it’s legitimate and we will probably not question it” like they would, for example, a restaurant that petitions for a heavy duty equipment operator.

“But I do tell employers that if you do, there had better be an employer-employee relationship,” he added.