Unanswered questions

Has anyone thought through what the consequences would be if all foreign workers without USCIS-approved status actually left island by No. 27, 2011—as they are being told they should? What if, after that date, a new business—a store or restaurant—wanted to open? What if, after that date, a businessman decided to add a new service and needed more workers? What if, after that date, a school found itself short of teachers and needed two more? An employee decided to get married, and be a stay-at-home rather than continue working? Someone had a stroke, and needed a caregiver? A contractor found he needed more construction workers? Someone got tired of trying to keep his/her own books and wanted to hire an accountant? Where would they find the needed worker(s)?

Theoretically, after that date those employers could hire a local resident, or someone from FSM, Marshalls, or Palau. But what if that didn’t work? What if none of them qualified for the positions?

If all the foreign workers who did not have an approved status left island by Nov. 27, 2011, the amorphous multi-faceted labor pool that is now available in the CNMI would no longer exist. It will have disappeared—because the USCIS rules say that anyone other than local residents, those from the FSM, the Marshalls or Palau, who does not have a legitimate “status”—and that means a job, or parole—is not eligible to remain on island. (Foreign workers who are spouses of legitimate residents may stay, but they are not, per se, eligible for so-called CW-1 status, which would enable them to work.)

One would have to find a recruiting agency and start the lengthy, laborious—and costly—process of trying to hire someone, sight unseen, from elsewhere—presumably the Philippines. Has anyone thought through what that means? Not only to local businesses but, even more importantly, perhaps to new businesses interested in establishing themselves in the CNMI? Would anyone even be willing to start a new business here, if s/he was not able to interview applicants here, in person?

It is true that the USCIS has said that it will not immediately deport everyone who is not working and does not have the “right” paperwork. There is something called the “Morton memo,” which says the USCIS will give priority to deporting “undesirables” instead. There is also the reassurance from former Immigration and Naturalization general attorney Loida N. Lewis that no one can be deported without the due process of a legal hearing. And the reassurance from other off-island immigration lawyers that such workers have “numerous legal relief available to them”—lawyers, it should be noted, that may be experts in their field but may not be all that familiar with the provisions of the CNRA and immigration law as it applies to the CNMI.

With that encouragement, maybe not all foreign workers without jobs, without legal status, will leave the CNMI. But those that stay would still face the risk that when their turn came for a legal hearing, they would be told that because they have overstayed beyond the limits of their previous permits, they would be barred from returning to any U.S. soil for years. There is some hope that Kilili’s House bill, H.R. 1466, may eventually pass the U.S. Congress and give status to some long-term workers. Those, perhaps, can justify their staying on despite the expiration of their permits. But what about the many others not covered by this bill? What can they offer as justification for ignoring the deadlines? Some of them will no doubt stay as well, just hoping. But it’s a terrible position to put them in. And, technically speaking, couldn’t those who hire these workers be themselves found guilty of conspiring to break the law?

The simplest way to ensure that the necessary labor pool continues to be available to all who may need workers from here on out would be to allow workers already here to remain here. That, of course, brings up the concern that if such workers are jobless, they would become a drain on the social services the CNMI provides to those in need. But in general, foreign workers who have been on island for many years have developed their own support systems, their own infrastructure of help and support. There are not all that many to begin with, and if they were allowed to stay and work, there wouldn’t be that many without jobs of one sort or another in any case.

The CNMI’s need for foreign workers is real. There simply are not enough warm bodies to fill all the positions available. Moreover, some of the warm bodies are not willing to take on some of those positions; others lack the skills, the training, the expertise. Hence the need for a supplementary work force. The current USCIS regulations do not accommodate this situation. They do not take into consideration the simple math involved. Nor are they at all flexible. Once every foreign worker on island has an approved status, USCIS seems to believe the “problem” will be cured. The regulations contain no provisions for changes in circumstances.

The USCIS does not have the authority, under the CNRA, to provide for improved status for foreign workers. It can only deal providing a guest worker in the Commonwealth with lawful nonimmigrant status during the “transition period.” It will take an act of the U.S. Congress to properly solve the CNMI’s problem.

In the meantime, perhaps the USCIS should postpone—for at least six months—the effective date of its new regulations until more of the wrinkles get ironed out. Or lift some of the restrictions on who may work and under what conditions. Or broaden who is eligible for parole. Or…? Right now, its staff is so beleaguered that one cannot even get an InfoPass—the only way available to talk to USCIS personnel on island.