Effective April 4, CNMI employers seeking to hire foreign workers under the CW-1 program will be required to obtain labor certification proving the non-availability of U.S. workers to fill the job positions being petitioned for.
The requirement for labor certification, to be issued by the CNMI Department of Labor, is established in the Department of Homeland Security interim final rule posted Saturday on the Federal Register.
The new rule is aimed at encouraging CNMI employers to prioritize hiring locals before tapping the foreign labor market.
Workers from China hold a protest rally in front of the Imperial Pacific Resort in Garapan in this August 2018 file photo. Photo by Jon Perez
Labor certification is a statutory requirement that applies to other jurisdictions. The CNMI was granted temporary exemption from this requirement under the Northern Mariana Islands U.S. Workforce Act of 2018, which President Trump signed on July 24, 2018.
The Workforce Act extends the CW-1 program through Dec. 31, 2029 and increases the CW-1 cap for fiscal 2019 from 4,999 to 13,000.
“In accordance with the Workforce Act, DHS will update regulations to reflect the statutory requirement that a CW-1 petition for temporary employment in the CNMI be accompanied by an approved (temporary labor certification) from DOL,” the final rule states.
In updating the regulations, DHS concluded that the new procedures and requirements will help CNMI employers “obtain a reliable and productive workforce while also providing appropriate incentives to encourage the hiring of U.S. workers in the CNMI and protect the integrity of the program.”
The Government Accountability Office (GAO) found that in 2016, foreign workers in the CNMI made up 53 percent of those employed and filled the majority of all hospitality and construction jobs. During the audit period, the estimated employment level was 29,215 workers (15,559 foreign workers and 13,656 domestic workers) in 2016, while the number of unemployed persons was 2,386 persons.
“Historically, the unemployment rate in the CNMI has been higher than 10 percent because many unemployed persons in the CNMI lack the skill sets and work experience required for the jobs filled by foreign workers, even though many of those jobs are for low-skilled workers,” GAO said.
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According to the CNMI Department of Commerce’s estimate, there were 2,646 unemployed persons in the CNMI in the fourth quarter of 2017, 53.1 percent (1,406) of whom were U.S. citizens and 11.7 percent (310) of whom were permanent residents.
The DHS’s updated rules that require labor certification aim at tapping the unemployed pool.
The labor certification “confirms that there are not sufficient U.S. workers in the CNMI who are able, willing, qualified, and available to fill the petitioning CW-1 employer's job opportunity,” and that “a foreign worker's employment in the job opportunity will not adversely affect the wages or working conditions of similarly employed U.S. workers.”
Under the interim final rule established the following process for obtaining labor certification:
* First, the employer must request and obtain a prevailing wage determination from DOL's Office of Foreign Labor Certification before filing a CW-1 application for temporary employment certification.
* Second, the employer must file a completed CW-1 Application for Temporary Employment Certification (Form ETA-9142C and appropriate appendices) with the OFLC National Processing Center no more than 120 calendar days before the date of need.
* Third, where all program requirements are met, the employer will receive a notice of application from the certification officer directing the recruitment of U.S. workers for the job opportunity and requesting a written report of the employer's recruitment efforts.
* To encourage the hiring of U.S. workers for employment in the CNMI, the employer will be required to advertise the job opportunity on the CNMI Department of Labor's job listing system; contact its former U.S. workers and solicit their return to the job; post a copy of the CW-1 Application for Temporary Employment Certification at the place(s) of employment in which the work will be performed by the CW-1 workers; and conduct any other recruitment activities required by the certification officer.
Amid labor shortage, the CNMI is currently is bracing for massive construction to rebuild Saipan and Tinian after the devastation caused by Typhoon Yutu in October 2018. The American Red Cross damage assessment found that 5,910 homes were destroyed or suffered major damage.
The Philippines is the main source of construction manpower for Saipan. The CNMI government is concerned that the DHS’s decision to drop the Philippines from the list of countries eligible for H2-B program would limit the local employers ability to fill the construction job positions.
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