Where are we now?

By FRANK GIBSON
Special to the Saipan Tribune

Question from more than one person: No one has said anything to me. My boss hasn’t told me if he is petitioning me or not. I don’t know what is going to happen. Should I presume that I am going home? What should I do?

I have had several questions on human resource management issues, such as how to handle absenteeism problems, why do we need job descriptions and written policies if we employ at will, and other similar topics. These are all good questions, but I am having a hard time overlooking the questions of more immediate concern that are coming up now. The problem is that I’m not sure that I have the answers-or that anyone else has.

Mr. Dave Gulick and his USCIS staff put a lot of time, effort, and personal concern into educating all interested CNMI residents about the Final Rule and what employers and employees needed to know and do. In the process, some unexpected problems and potential adverse effects came to light and they have been responsive in finding ways to alleviate the impact and in communicating that information to us.

Most-but not all-employers have started the decision-making process with placing job vacancy announcements to see how many qualified U.S. workers are available to fill their positions. When asked, I have advised employers to advertise in the newspapers or on the CNMI DOL website, as the USCIS question-answer page instructed and Gulick confirmed. I have advised advertising for a one to two-week period, which would appear sufficient to actually be a “good faith effort” to determine if there are qualified U.S. workers. I have been watching the papers and seen the increase in job ads, but certainly not the 10,000-12,000 non-U.S. workers that are supposedly employed here in the Commonwealth. I am aware of employers advertising on the radio, which Mr. Gulick said, in his last presentation at the Saipan Chamber meeting, would not meet the “good faith effort” standard, and of others that are advertising only once, which would also seem to fall short.

At times I feel like a prophet of doom, which I certainly hope is not so, when I say to employers that they should look at the worst possible outcome, which is to have their petitions denied because of taking shortcuts, and that they should go ahead and do that little bit extra to stay on the safe side and away from possible disaster.

Because of previous creative job titles to get around CNMI DOL hiring limitations, many non-U.S. employees with professional titles and credentials might not work at the professional level. However, some do and should be processed as such for an appropriate visa status. I think that it is important to remember that the discussion of public comments on page 105-6 of the Final Rule provides the DHS estimate of 1,540 to 1,909 non-U.S. workers eligible for other INA visa classifications than the CW-1. The Rule acknowledges that the numbers provided by the Department of the Interior might be imprecise, but it should warn us that they are expecting significant numbers of H-1B and other INA visa petitions.

Dave Gulick and his staff emphasized that they anticipate a high percentage of approvals for the CW-1 requests, but he also stressed the need to be honest in providing the information on the petitions. I recommend that this advice be taken seriously. Mr. Gulick is known for not discussing matters outside of his authority, but those here who have worked with him also know that he does what he says he will do. I anticipate that he will do everything possible to help the CNMI, its employers and its workers, both U.S. and non-U.S., but he will not ignore the regulation or the INA laws. I would recommend taking the attestation seriously; especially the two points regarding the availability of qualified U.S. workers and whether a worker qualifies for any other nonimmigrant worker classification. I take the phrase “under penalty of perjury” quite seriously.

Right now everyone is waiting. After the advertisements, the interviews will take place and at that time employers will know who can be petitioned and who will not. Applicants will know if they have found employment or not. For some the waiting will end there and those persons not petitioned will have to quickly find another petitioner or plan their return home. For those newly hired, the challenges of a new job will begin. For others, the wait will continue until petition approval or denial is received.

I guess you can say that we are all in a holding pattern. I wish all of us a safe landing-wherever our eventual destinations might be.