More questions than answers in USCIS regulations

With less than one hundred (100) days before Nov. 27, 2011, foreign workers’ umbrella permits will cease to exist and that, uncertainties in both foreign workers and businesses alike are evident.

One of the intents of Congress in passing Title VII of the Consolidated Natural Resources Act of 2008 was to phase out the CNMI’s nonresident contract worker program and phase in the U.S. federal immigration system in a manner that minimizes adverse economic and fiscal effects and maximizes the CNMI’s potential for future economic and business growth. Congress also intended to provide the CNMI with as much flexibility as possible to maintain existing businesses and other revenue sources and develop new economic opportunities.

That intent is being violated because the final regulations will create more adverse economic effects due to the unsecured immigration status of foreign workers who may or may not qualify for any status. Businesses are now scaling down the number of employees and are about to discharge some due to strict CW regulations and requirements.

Where is the flexibility to maintain existing businesses and other revenue sources and develop new economic opportunities if the final regulations will drive away investors because no investor will survive if no manpower is available to get the job done? Manpower services will emerge and will hire potential labor for a cheap salary. Poor foreign workers will grab the opportunity in seeking employment through manpower agencies just so they could secure CW status. This is an indirect form of discrimination and human trafficking among foreign workers who have no other choice but to accept cuts in their salaries-by working for manpower agencies-just so they could stay to take care of their U.S. citizen children. Because of this, foreign workers stand firm and consistent in their request for a permanent resident status to be included in the final regulations.

PL. 110-229 contains a provision requiring the Department of the Interior secretary to consult with Homeland Security and the CNMI governor two years after the bill’s enactment and report to Congress on the status of nonresident workers in the CNMI, including recommendations on whether Congress should consider permitting legal aliens to apply for long-term immigration status. But these provisions under PL 110-229 have not been considered in the final regulations, sad to say.

While it is true that “it’s not the end of the world,” it may be the end of the family that stays together, prays together, and lives together. One or two family members will soon bid goodbye, leaving the islands to go back to their country of origin due to adverse affect of the USCIS CW regulations.

The U.S. Interior Department submitted five recommendations for foreign workers statuses, the CNMI Senate recommended the FAS-like status for all foreign workers and U.S. Rep. Kilili Sablan’s H.R. 1466 to give CNMI-only status to four groups of foreign workers were all forwarded to Congress but none of those favorable recommendations were considered in the final rule governing foreign workers in the CNMI. Those submissions, recommendations and consultations were all fruitless under the 8 CFR Parts 103, 214, 274)(a) regulations.

Deportation and possible rejection of applications due to incomplete requirements or other related documents as needed for processing CW applications, H or L type of status application and other travel restrictions such as CW visa, the loss of status of immediate relatives of U.S. and Freely Associated States citizens are among the expected predicaments after Nov. 27, 2011. Employers, too, will have difficulty in deciding whether to petition their foreign workers for H, L, or CW status due to economic slowdown.

Employers can only petition for a CW worker if they have already considered all available U.S. workers for the position. This rule is no different from the local labor laws. These CW regulations will also restrict foreign nationals from leaving the island for a short period of time because workers with CW status will have to secure a CW visa from a U.S. Embassy or Consulate from their country of origin, to be able to re-enter the CNMI. This is another form of indirect rejection of your privilege to travel back to CNMI because of 50/50 chances in securing a CW visa from the U.S. embassy or consulate in their country of origin. It is also another indirect form of removal proceedings of foreign nationals from the CNMI. There’s no guarantee that even if a worker has been granted a CW status, he will also get a CW visa. USCIS must issue a CW visa or other document similar to advance parole before a foreign national leave the island for short time like vacation and medical purposes.

A USCIS official reiterated that there won’t be any mass deportation but foreign workers who do not have jobs or who do not have employers by Nov. 27, 2011, could face deportation. How? Who will pay for the airfare? USCIS should include in the final regulations mechanics on how they will deport or eliminate foreign nationals without CW status so that poor foreign workers can start packing their personal belongings beginning Oct. 7, 2011, when employers begin processing the CWs of their employee. USCIS must also consider in the deportation proceedings the uncollected monetary obligation of the host island, like uncollected tax refunds, unpaid wages and salaries and all types of claims that is under litigation.

The CNMI is part of the country that embraces immigrants, being itself a nation of immigrants. But with these regulations, the dream of living in the land of opportunity will remain just that: a dream.

Carlito J. Marquez
Puerto Rico, Saipan