Saturday, November 28, 2009

A koan to pick

"The CNMI maintains that the Commonwealth’s guest worker population currently is experiencing high rates of unemployment, and that employers are consequently unlikely to require permits for new guest workers in the near future." -- District Court Judge Paul L. Friedman

Yes, I'm still walking that dog. Come on along for the exercise.

How can a member of the "guest worker population" be unemployed? Either you're still under contract, or you're in the process of being repatriated. I meditated on that paradox all night.

But never mind, we'll deal with that when the "Transition Conditional" (240K or "umbrella") permits run out in two years-- or maybe the first time someone tries to use one.

The next lawsuit, or
If it's an umbrella why am I left holding the bag?

Enter the Employment Eligibility Verification Form I-9 CNMI, used "to verify the identity and employment authorization of each new employee (both citizen and noncitizen) hired in the Commonwealth of the Northern Mariana Islands (CNMI) after November 27, 2009."

The I-9 used in the rest of the U.S. has a list of acceptable documents in a format something like a Chinese menu: you can use one from List A or one from List B and one from List C. For CNMI use only, the following documents are acceptable in List A:

All documents must be unexpired

1. A foreign passport and Alien Entry Permit with red band issued to an alien by the CNMI Office of the Attorney General, Division of Immigration before November 28, 2009, as long as the period of employment authorization has not yet expired.

2. A foreign passport and an unexpired Permanent Resident Card issued by the CNMI.

3. A foreign passport and a temporary work authorization letter issued by the CNMI Department of Labor before November 28, 2009, containing the name and photograph of the individual, if the period of employment authorization has not yet expired and the proposed employment is not in conflict with any restrictions or limitations identified on the temporary work authorization letter.

That's it. There's nothing about "an approved employment contract as provided in Department of Labor regulations"-- the language of the 240K I saw.

Maybe that will change. The umbrella permits were rushed, and the I-9 CNMI was rushed, sloppy or both. The current I-9 is Rev. 11/12/09, it replaces Rev. 10/21/09, which said the Alien Entry Permit was issued by the Department of Labor.

The sticking point is "lawfully present and authorized to be employed in the Commonwealth pursuant to the immigration laws", the language of P.L. 110-229. That is echoed by "authorizes the holder to be employed" in the umbrella permit, but that's a Labor document (policy?) and the CNMI immigration laws were superceded as of Nov. 28. I don't want to argue, that's one for the lawyers. I also don't want to get caught in the middle.

I'm up in the air until the I-9 is revised, and so are prospective employees with unbrella permits. I can only accept, and they must provide, the documents listed on the I-9. It has no provisions for CNMI documents generated after Nov. 27.

Lawfully present? Sounds good, the "Umbrella Permits", though issued by CNMI Labor instead of Immigration, may cover that.* Again, go for it, lawyers. It's not up to me. But I won't give you a job, and I can't give a job to Transition Conditional workers until somebody else volunteers to be the test case.

The "CW" classification under the transitional rules might have solved that problem, but the Restraining Order has set them back for at least two or three months. Umbrella permits definitely need to be addressed when they are revised.

* I'm not sure about the students and investors who got temporary (Rain Check?) permits from the Department of Commerce. "Holders are scheduled to return to Commerce on March 1, 2010, to claim their permanent umbrella permit."

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