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Hiring of foreign workers put Immigration’s special provision clause under scrutiny

Fanene Edda Wyberski, AG Fainuulelei Falefatu Alailima-Utu and Chief Immigration Officer Fagamalama Fualaau

Pago Pago, AMERICAN SAMOA — The special provisions clause of the Immigration law was under scrutiny in a hearing of the Senate’s Immigration Committee, which convened as a committee-of-the-whole yesterday morning, and all 15 members present were given an opportunity to comment on the issue.

Witnesses called to testify were Chair of the Immigration Board Fanene Edda Wyberski, AG Fainuulelei Falefatu Alailima-Utu and Chief Immigration Officer Fagamalama Fualaau.

Committee Chairman Senator Satele Aliitai Lili’o in his opening remarks stated that it was apparent that there has been a significant increase in the number of workers from other countries living and working in the Territory.

 “We are all aware of this predicament and it is increasing at an alarming rate,” Satele stated. “There has been an influx of people from China, Vietnam, Indonesia, Korea, Philippines, Fiji and other countries who are taking up jobs that should have been taken by local workers.

 “Shops, restaurants, sewing shops and manufacturing businesses like companies producing glass windows, tiles and even construction companies are bringing in their own work forces from other countries. There are hardly any Samoans employed at these businesses.

 “The question that arises is, ‘How did these people enter the Territory?’ The answer is simple. Ninety percent of these people entered American Samoa through the special provisions clause in the Immigration law.”

Attorney General Fainuulelei revealed that he has implemented certain changes that will improve and enhance the performance of duties of the Immigration Office with regard to integrity.

He stated that he has emphasized to the Chief Immigration Officer and her staff the importance of performing their duties with honesty and integrity so that public and leaders of the Fono will have no reason to question them and accuse them of corruption.

 “I have warned them not to let the lure of money influence the performance of their duties and that anyone caught will be terminated immediately,” the AG stated.

He also revealed that the Immigration Office staff now have the opportunity to receive training coordinated by the Pacific Immigration Development Community (PIDC), a part of the Pacific Islands Forum and staff have attended three of these trainings off-island. This is the first time in more than ten years that these trainings have been made available to local immigration officers.

With regard to the issue of the special provisions clause, AG Fainuulelei pointed out that it is not a new problem and that previous immigration boards and attorneys general have tried unsuccessfully to find a solution.

 “Under the American Samoa Code Annotated 41-0301(d) it states that “the numerical limitations established by this section shall not include aliens employed by the American Samoa Government or the United States of America, or aliens admitted and employed under Chapter 9 of this title, or other groups as further weighed by the board order upon the showing of extenuating circumstances.”

He revealed that more than 800 foreign workers are currently employed in the territory under the special provisions clause of the immigration law. This is the count from January 2022 to July of this year. Thirteen percent work for the government and a total of 875 work in the private sector.

The ones employed by the government are approved by the Attorney General and the ones working in the private sector are authorized by the Immigration Board.

Chair of the Immigration Board Fanene told senators that the problem lies in a loophole of the special provisions clause, which businesses are taking advantage to bring in their own people.

She pointed out that the board cannot do anything to try to stem the flow of off-island workers brought in through this loophole because the law is not amended to prevent it from happening.

Fanene stated that Asian businesses have been doing this for some time but now bigger companies like construction companies are doing it. She revealed that last year, many of the workers brought in under the special provisions clause were builders from Samoa.

Chief Immigration Officer Fualaau clarified that the law specifies that only corporations can use the special provisions clause and there is no limitation on the number of workers hired under the clause. There is also no requirements that the workers have specialized skills.

 “A sole proprietor or partnership business cannot bring in workers from off-island,” she explained. “However, in reality, the special provisions clause has been used by any type of business to bring in their own people from the owners’ countries of origin. This is the reason why aliens are working as waiters and waitresses, store keepers, delivery workers and other menial jobs which do not require special skills.”

She also pointed out that a certificate must be obtained with the attorney general’s approval before corporations can bring workers from other countries.

She added that they need to advertise the job vacancy three times publicly in the newspaper before their application for off-island workers can be considered.

Fualaau pointed out that this may be part of the problem because there is not enough time for the public to be aware of these vacancies as these advertisements are mostly done in three consecutive days just to fulfill the requirement as stipulated.

She suggested that these job advertisements should be spread out in a certain time frame so that the public may learn about these job opportunities.

Senator Tuiasina Dr. Salamo Laumoli told senators that part of the problem lies with our own people, who do not want to perform these types of jobs.

Senator Togiola T.A. Tulafono pointed out that the immigration board should have administrative regulations to base their decisions on regarding which applications they approve, to which AG Fainuulelei responded that there were no administrative rules.

He explained that currently, the decision to approve and decline applications for off-island workers is left to the immigration board’s discretion.

 “According to the law as I earlier quoted, it clearly states that, ‘…other groups as further weighed by the board order upon the showing of extenuating circumstances,’” the AG reminded. “That means the board has the discretion in their decision making.”

Fainuulelei stated that he has talked to board members about the need for administrative rules to base their decisions on instead of approving nearly every application they receive, because the law clearly states that the decision must be based on “extenuating circumstances.”

Immigration Board Chair Fanene claimed however that the board is carefully assessing every application with regard to special skills and that they have capped applications for labor and other menial jobs that can be filled by locals.

 “The only other option is for the Fono to create a law which would take away the board’s discretion and state clearly what they should follow in their decision making,” Fainuulelei said.

Togiola stated that it was evident from the AG’s testimony that they have known about the problems caused by the special provisions clause for some time but have done nothing to rectify it.

 “It looks like you have known about the existence of these problems for some time now but you have not brought it up with the Fono saying, ‘….there is a leak caused by the loophole in the special provisions clause that must be tightened to prevent these problems….’” Togiola stated. “Why? When are you going to do something bout it?”

Fainuulelei responded by saying it was not a simple matter and these same problems were there during Togiola’s tenure as governor.

 “Don’t blame me for not solving the problem when I was in office,” Togiola shot back. “I am commenting on your statements where you claim that there is a problem and something should be done. That problem is getting out of hand. When are you going to do something about it?”

Fainuulelei reiterated that the matter was not a simple one and they needed to proceed with caution because the Senate’s concern with the increasing number of Asians in the Territory could result in discriminatory policies.

Togiola however pointed out that Title 41.0201 of the Constitution prioritizes the protection of the interests of the people of American Samoa and its culture and traditions.

 “…Therefore, with the increasing mobility of todays population, the only way to preserve the American Samoa culture and way of life and allow the people of American Samoa to determine their political and economic future, is to restrict the entry of non-American Samoans into American Samoa…”

Chairman Senator Satele, who is also a member of the Immigration Board, concluded the hearing by suggesting that the Fono suspend the special provision clause in the immigration law pending further review.

Senators Utu Sila Poasa and Tuiasina Dr. Salamo Laumoli objected to this, saying that they have businesses that need foreign workers.

Utu said that he owns a construction company and he needs a few workers from Samoa, while Tuiasina revealed that he has started a sewing shop which employs one seamstress from the Philippines. He said he was concerned because he has invested a substantial amount of money on the venture.