Clarification of Question by
divinatio-ga
on
19 May 2005 12:54 PDT
Hello!
Here are some comments about this question:
It says in 141.15(B) that the restriction does not apply for
"specialists, professionals, or technically trained personnel."
Questionable part here is what is the definition of an "emergency or
temporary operation?" A frac job is temporary- they go do the job,
and come back.
Anyway please check this out - it also says in 141.20(h2) that
exemption is not required for certain temporary employees that have
already been admitted to hold their position in the US.
_________________________________________
This is the part of the document that I have. And some comments:
1. In the text: "does not include specialists, professionals" To me -
our Engineers are specialsists providing technical support outside the
scope of the "regular complement of the unit." They are professionals
and are technically trained as evidenced by their engineering degrees.
Also- it says for training purposes the citizenship requirements do
not apply - so we can accept people for trainig.
2. "When there is not a sufficient number of citizens" - We all have
L-1 visas. To receive the visas they already had to prove
"specialized knowledge" to justify allowing them to work here over an
American Citizen or permanent resident alien.
And looks like this document is 2004 edition. "33 CFR Ch. I (7?1?04 Edition)"
_______________________
Page - 141 - Coast Guard, DHS § 141.20
(3) In the case of a corporation, one
which is incorporated under the laws of
the United States or of any State
thereof.
Citizen of a foreign nation means:
(1) In the case of an individual, one
who is not a citizen of the United
States;
(2) In the case of a partnership, unincorporated
company, or association,
one in which more than 50% of the controlling
interest is vested in citizens of
a nation other than the United States;
or
(3) In the case of a corporation, one
which is incorporated under the laws of
a nation other than the United States
so long as (i) the title to a majority of
the stock thereof is free from any trust
or fiduciary obligation in favor of any
citizen of the United States; (ii) the
majority of the voting power in the
corporation is not vested in any citizen
of the United States; (iii) through any
contract or understanding, the majority
of the voting power may not be exercised
directly or indirectly on behalf
of any citizen of the United States; or
(iv) by no other means, control of the
corporation is conferred upon or permitted
to be exercised by any citizen of
the United States.
Resident alien means an alien lawfully
admitted to the United States for permanent
residence in accordance with
section 101(a)(20) of the Immigration
and Nationality Act of 1952, as amended,
8 U.S.C. 1101(a)(20).
§ 141.15 Restrictions on employment.
(a) Each employer of personnel on
any unit engaged in OCS activities
that is subject to this part must employ,
as members of the regular complement
of the unit, only citizens of
the United States or resident aliens except
as provided by § 141.20.
(b) As used in paragraph (a) of this
section, ??regular complement of a unit??
means those personnel necessary for
the routine functioning of the unit, including
marine officers and crew; industrial
personnel on the unit, such as
toolpushers, drillers, roustabouts, floor
hands, crane operators, derrickmen,
mechanics, motormen, and general
maintenance personnel; and support
personnel on the unit, such as cooks,
stewards and radio operators. The term
does not include specialists, professionals,
or other technically trained
personnel called in to handle emergencies
or other temporary operations;
extra personnel on a unit for training;
and other personnel temporarily on a
unit for specialized operations, such as
construction, alteration, well logging,
or unusual repairs or emergencies.
(c) The Officer in Charge, Marine Inspection,
may determine whether a
particular individual or position is part
of the regular complement of a unit. A
copy of the determination is provided
to the owner or operator of the unit affected.
(Approved by the Office of Management and
Budget under OMB control number 2130?0182)
[CGD 78?160, 47 FR 9379, Mar. 4, 1982, as
amended by USCG?1998?3799, 63 FR 35530,
June 30, 1998]
§ 141.20 Exemptions from restrictions
on employment.
(a) An employer may request an exemption
from the restrictions on employment
in § 141.15 in order to employ
persons other than citizens of the
United States or resident aliens as part
of the regular complement of the unit
under the following circumstances:
(1) When specific contractual provisions
or national registry manning requirements
in effect on September 18,
1978 provide that a person other than a
citizen of the United States or a resident
alien is to be employed on a particular
unit.
(2) When there is not a sufficient
number of citizens of the United States
or resident aliens qualified and available
for the work.
(3) When the President determines
with respect to a particular unit that
the employment of only citizens of the
United States or resident aliens is not
consistent with the national interest.
(b) The request must be in writing,
identify the provision of paragraph (a)
of this section relied upon, and:
(1) If involving specific contractual
provisions under paragraph (a)(1) of
this section, list the persons claimed
exempt and contain a copy of the contract;
(2) If involving persons without an H?
2 Visa under paragraph (a)(2) of this
section, list the persons or positions
sought to be exempted; or
Page - 142 - 33 CFR Ch. I (7?1?04 Edition) § 141.25
(3) If under paragraph (a)(3) of this
section, identify the unit involved and
contain any information in support of
the claim.
(c) Requests must be submitted to
the Commandant (G?MOC), U.S. Coast
Guard Headquarters, 2100 2nd Street,
SW., Washington, D.C. 20593.
(d) Upon receipt of a request under
paragraph (a)(2) of this section, the
Coast Guard seeks information from
the Department of Labor concerning
whether there are citizens of the
United States or resident aliens qualified
and available for work. If information
is provided that citizens of the
United States or resident aliens are
qualified and available, the employer
may be required to seek their employment
before the request is approved.
(e) Upon receipt of a request under
paragraph (a)(3) of this section and
after consulting with other Federal
agencies as appropriate, the Commandant
forwards the request and the
comments of the Coast Guard and
other interested agencies to the President
for determination.
(f) Upon approval by the President
for request under paragraph (a)(3) of
this section or by the Coast Guard for
all other requests, the Coast Guard
issues a certification of the exemption.
A certification issued under paragraph
(a)(2) of this section is valid for one
year from the date of issuance.
(g) If, within 30 days of receipt by the
Coast Guard of a request under paragraph
(a)(2) of this section, the Coast
Guard does not make a determination
or advise the employer that additional
time for consideration is necessary, the
request is considered approved for a period
of 90 days from the end of the 30
day period.
(h) A request need not be submitted
for persons who are not citizens of the
United States or resident aliens and
who:
(1) Are employed under the national
registry manning requirements exception
in paragraph (a)(1) of this section;
or
(2) Have been classified and admitted
to the United States as temporary
workers under 8 U.S.C. 1101(a)(15)(H)(ii)
for work in a position for which admitted.
(Approved by the Office of Management and
Budget under OMB control number 2130?0182)
[CGD 78?160, 47 FR 9379, Mar. 4, 1982, as
amended by CGD 96?026, 61 FR 33665, June 28,
1996]
§ 141.25 Evidence of citizenship.
(a) The employer may accept as sufficient
evidence that a person is a citizen
of the United States any one of the following
documents and no others:
(1) A merchant mariner?s document
issued by the Coast Guard under 46
CFR Part 12 which shows the holder to
be citizen of the United States.
(2) An original or certified copy of a
birth certificate or birth registration
issued by a state or the District of Columbia.
(3) A United States passport.
(4) A Certificate of Citizenship issued
by the Immigration and Naturalization
Service.
(5) A Certificate of Naturalization
issued by a Naturalization Court.
(6) A letter from the Coast Guard
issued under paragraph (d) of this section.
(b) If a person does not have one of
the documents listed in paragraphs
(a)(1) through (a)(6) of this section,
that person may appear in person before
an Officer in Charge, Marine Inspection,
and submit one or more of
the following documents which may be
considered as evidence that the applicant
is a citizen of the United States:
(1) A Certificate of Derivative Citizenship
or a Certificate of Naturalization
of either parent and a birth certificate
of the applicant or other evidence
satisfactorily establishing that
the applicant was under 21 years of age
at the time of the parent?s naturalization.
(2) An original or certified copy of a
birth certificate from a political jurisdiction
outside the United States
which demonstrates citizenship status.
(3) A Baptismal certificate or parish
record recorded within one year after
birth.
(4) A statement of a practicing physician
certifying that the physician attended
the birth and has a record showing
the date on which the birth occurred.
