Alien worker whose IR status is in jeopardy sues Tenorio

A nonresident worker who is in danger of losing his “immediate relative” status when his fiancée broke off their engagement filed yesterday a lawsuit against Department of Labor Secretary Joaquin A. Tenorio, who affirmed an administrative order that denied his employment transfer papers.

In a complaint Bangladeshi national Reazul Islam, who filed the suit by himself without the assistance of a lawyer, asked the Superior Court to reverse Tenorio’s decision pertaining to his appeal and grant him authorization for employment transfer.

Islam stated that on Nov. 15, 2005, Tenorio dismissed his appeal from an administrative order issued by Labor’s Division of Administrative Hearing Office in connection with his labor case.

“The decision was arbitrary, capricious, contrary to constitutional right, an abuse of discretion, in excess of statutory authority, without observance of procedure required by law, unwarranted by the facts, and otherwise not in accordance with law,” said Islam in his petition for judicial review.

Labor records show that on March 18, 2005, the respondent filed a notice of appeal to Tenorio concerning an administrative order issued by Hearing Officer Cinta M. Kaipat on Feb. 28, 2005.

In that order, Kaipat denied Islam’s motion to re-approve a stipulated settlement agreement and administrative order in connection with his labor complaint.

Islam was then granted, among other things, 45 days in which to file transfer papers with Labor.

Islam moved to re-approve the agreement because he missed the 45-day deadline in which to file transfer employment papers with Labor.

The respondent claimed that he missed the deadline because he was engaged to be married to a woman with Marshallese citizenship and that once they got married, he would have an IR status.

Islam said his fiancée, however, broke off their engagement after the 45-day period in which he could file transfer papers had passed.

Kaipat ruled she was without jurisdiction to re-approve the stipulated settlement agreement.

Kaipat cited, among other grounds for the denial of the motion, were Islam’s failure to depart the Commonwealth after the expiration of the 45-day deadline and that Islam did not discover until Nov. 3, 2004, or 21 days after the expiration of the deadline, that his fiancée was breaking off their engagement.

Kaipat found that “No doubt the more prudent thing for complainant to do would have been to submit a one-year employment application within the 45-day transfer period and then convert his status to that of an “IR” after the marriage.

Hence, she said, the complainant has failed to offer any legitimate justification for his failure to file a timely employment application by the Sept. 23, 2004 deadline.

On appeal, Islam asked Tenorio to find that Kaipat does have jurisdiction to re-approve the agreement and that she may grant him extra time in which to file transfer papers.

But in denying his appeal, Tenorio ruled that there is no provision in either the Nonresident Workers Act or in the Alien Labor Rules and Regulations which allow a hearing officer to grant additional periods in which a nonresident worker may file transfer papers once that nonresident worker’s original grant of time in which to file those papers has expired.

However, Tenorio said, hearing officers have broad authority to fashion remedies, and under exceptional circumstances a hearing officer may find that it is in the interests of discharging his or her duties of office, to grant additional periods of time in which a nonresident worker may apply to transfer employers.

“The circumstances do not include instances when a nonresident worker voluntarily foregoes timely filing of papers because he or she believes that in the future his or her immigration status will change,” the secretary pointed out.