‘Ban’ on construction workers needs clarification

Northern Marianas Business Alliance Corp. raised the supposed ban on construction workers under the CNMI-Only Transitional Worker program during a series of meetings with federal officials last week in Washington, D.C.

House Resolution 339 was adopted for fiscal year 2017 with several amendments. This opened up 350 CW slots, allocated slots for heath care workers and power plant operators, increased the education fee from $150 to $200 that will be used in the training of the local workforce, and the aforementioned barring of construction workers from renewing under the CW-1 program.

Gov. Ralph DLG Torres and NMBAC officers and board members met with senior officials of the Department of Homeland Security and U.S. Citizenship and Immigration Services in the nation’s capital last week to get answers to questions and clarity to ambiguities in interpreting H.R. 339 and the future of the CW-1 program.

Among those discussed was the need to define who construction workers are and the execution of the construction workers ban included in H.R. 339.

In defining who construction workers are, NMBAC restated the language of H.R. 339 that it was clear that construction workers would be the ones losing permits and not other industries.

NMBAC chair Alex Sablan said that due to the ban on construction workers, there were instances where businesses who employ individuals to do general repairs are now being denied permits.

“These individuals are being denied permits because they fit under the U.S. Department of Labor overall under construction category which was used in H.R. 339. We have hotel maintenance workers who fix leaky faucets and CUC (Commonwealth Utilities Corp.) engineers who maintain the engines at our power plants who are in danger of losing their permits,” he added.

NMBAC board member Gloria Cavanagh seconded Sablan by saying “Under no scenario would we have supported a ban on maintenance or general handy employees.”

As for the application of the construction workers ban in H.R. 339, Cavanagh said “When the governor and the business community endorsed the initial language in 2015, we believed that the intent of the construction ban was only going to affect the additional CW permits requested for fiscal year 2017.”

On the other hand, USCIS officials have a different understanding of the intent of H.R. 339 based on its author’s statement on the floor of the House of Representatives on Aug. 15, 2017.

A USCIS official said that they used the second provision in the statement where “existing construction companies with foreign workers who have been employed prior to fiscal year 2016 will be able to continue to renew the CW-1 permits of those specific individual workers understood to have been 1,000-1,500 individuals.”

USCIS said that this provision was the basis of the pre-October 2015 exclusion being tied to an individual employer. It speaks of companies being able to continue renewing the CW-1 permits only for those workers “who have been in their employ prior to fiscal year 2016.”

The floor statements went further by saying that the construction permits ban should apply to “pending petitions” such as those petitions for fiscal year 2018 that had already been filed prior to August 2017 but have not been approved by USCIS.

USCIS informed NMBAC that there could have been an open question as to whether the ban would apply to petitions filed prior to H.R. 339’s enactment but the (author’s) statement clearly rules that out.

After the meeting, NMBAC member Perry Inos Jr. could not contain his shock after hearing the discussions.

“Clearly, we were shocked that our argument about the original intent as presented to us was completely wrong. We feel misled,” he said.

Future of the CW-1 program

Torres and Sablan presented detailed reports to the officials and provided up-to-date information on the imminent impact of the 3,000-slot reduction in the CW-1 program for fiscal year 2018.

Every member of the NMBAC shared the different scenarios that result with every CW-1 denial on the CNMI economy, federally funded infrastructure projects and families.

The USCIS officials expressed their understanding on the plight of the CNMI economy and stated that they are bound by the laws passed by Congress. However, USCIS stands committed in assisting the CNMI in ways that they can.

First, USCIS said they will conduct a review of the denial process to ensure that permit applications that fall under construction applications shall be taken out before they start issuing denials.

NMBAC stated that some denials had already occurred, but USCIS said that they will conduct an internal review and get back to NMBAC.

Second, USCIS committed working with Torres on the legislation expected to be introduced by Sen. Lisa Murkowski (R-AK) and while they are not allowed by law to influence legislation, they would provide technical assistance in the drafting process and make themselves available to answer inquiries,

Finally, USCIS pledged to work with the governor’s office in expediting H2-B applications and stated that 30 days is the typical time spent in DHS after receiving from the U.S. Department of Labor.

DHS is actively working with the U.S. DOL to streamline the process and expedite applications by processing electronically.