Exempted employee status granted

The Business Staffing Plan Board has granted applications for exempted employee to expatriate workers and will continue to do so, said Chairwoman Sophia Harris.

Exempted employees are not subject to seven-year term limits, and can receive work permits for nine years, long enough to qualify to apply for permanent residency.

‘The numbers [of applications] we’re seeing are not particularly alarming, and not out of line with the number of positions granted by the previous Board,’ Mrs. Harris said. ‘Chances are, the numbers we have granted and will grant will not differ substantially [from the previous Board].’

Mrs. Harris said, however, the numbers will differ with respect to three companies that the previous board had granted a total of 188 exempted positions, something she said was not defined under the law in any case.

When it comes to exempted positions, Mrs. Harris disagrees with former Business Staffing Plan Board Chairwoman Sherri Bodden.

The disagreement delves into what some have called a different interpretation of the Immigration Law 2003 and what the Government has called inconsistencies and anomalies in the law itself.

Last September, the Cayman Islands Government appointed a team to conduct a detailed review of the Immigration Law and to make recommendations concerning any changes needed.

The enforcement of the rollover policy has caused uproar from the business owners, some who say losing their long-standing expatriate employees within a short period of time could cripple their businesses.

Mrs. Bodden, who supports the fixed term policy and believes it unavoidable given the fact that more than half of Cayman’s population is non-Caymanian, thinks the current problems being experienced by business owners have been caused by two factors.

Under the transition provisions in the Immigration Law 2003, Mrs. Bodden said business owners would have had ample time to train Caymanians or otherwise replace employees that had to leave because of the seven-year term limit.

‘To be fair to the employers, however, no one in November 2003 [when the law was being debated in the Legislative Assembly] anticipated the arrival of Ivan in September 2004.

‘By the beginning of 2005, when employers should have been calculating the length of time that their long-term employees would have been resident on the island, they were focused instead on trying to rebuild their homes and businesses,’ Mrs. Bodden said. ‘We can not ignore the reality of Ivan.’

In addition to the distraction of Ivan, Mrs. Bodden said the other problem has been the new Government’s reluctance to implement the exempt employee provisions of the Immigration Law.

‘The fixed term policy was not intended to operate alone, but it was envisioned to work together with the exempted employee policy,’ she said. ‘And the problem is that for whatever political reason, no announcement had been made that either [the Business Staffing or Work Permit] Board is moving to assist businesses with identifying or confirming which employees will be exempted.’

Mrs. Harris and Work Permit Board Chairman David Ritch said they have indeed been granting applications for exempt employees, but have been hampered by several aspects of the Immigration Law 2003.

Under the previous Board, some of the 65 companies with Business Staffing Plans applied for positions in their company to be exempt.

Section 43(2) of the Immigration Law states employers may request and have approved ‘a specific number of positions for exempted employees’ in their Business Staffing Plan.

While acknowledging the existence of 43(2), Mrs. Harris asserts that the section does not actually help businesses.

‘There’s no way you can confer [exempted employee] benefits to a position,’ she said.

For one thing, Mrs. Harris said the exempted position could have a Caymanian in it. In addition, just because a position has an expatriate filling it at one time, does not guarantee that person will remain with the business.

In the end, Mrs. Harris maintains that the benefits of being an exempt employee can only be conferred to a specific person.

‘When a company identifies a position as being critical to their business, it does not mean they are designating the person sitting in that chair as an exempted employee,’ she said.

Section 47 of the Immigration Law is the only part of the law that can confer those benefits, Mrs. Harris believes.

It is here where there is a difference in interpretation of the two sections of the law.

Mrs. Bodden asserts that sections 43(2) and 47 were always meant to be used together, and that positions for exempted employees were always meant to eventually relate to specific people.

Mrs. Bodden stressed that granting a person exempted employee status did not exempt them from the Immigration Law all together.

‘They remain subject to the Immigration Law, for instance, the employer must continue to demonstrate a genuine need to employ the person, he has to demonstrate there is no Caymanian available for the position, and his character has to remain good,’ she said. ‘All the exempted employee status does is enable a person to remain on the island long enough to apply for permanent residency as long as they continue to satisfy those criteria.’

Mrs. Bodden also pointed out her board had rejected more applications for positions of exempted employees than the 335 it approved.

‘We refused 385 applications for exemption because we did not think they would qualify,’ she said.

Mrs. Bodden noted that being granted exempt employee status does not in any way guarantee a person would get permanent residency if he or she applied for it.

With regard to the errors in the wording of the law, which the Government has claimed was drafted ‘hastily’, Mrs. Bodden said there were always problems with new laws.

‘The company law has been amended 15 times and the old Immigration Law eight times,’ she said. ‘Every law, once it has been passed into legislation, has glitches and there’s always room for improvement.’

Mrs. Bodden said there was a reason for passing the legislation quickly.

‘To be fair to government, however, one of the goals of having it come into effect on the first of the year was that if it went into effect past the first of the year, Government would have been under the legal obligation to issue yet another Status quota for the year 2004.’

Mrs. Bodden thinks the real difficulty lies elsewhere.

‘The problem is that, unlike any other piece of legislation, the amendments to the Immigration Law have been used as a smokescreen to hide the reality that this Government as well as the last see no choice but to implement a fixed term policy, which will obviously cause certain difficulties for business.

‘To blame it on the technical glitches is disingenuous.’

Mrs. Bodden said the government needed to admit that is was sticking with the fixed term policy and ‘get on with the implementation of the exempt employee policy’.

Mrs. Harris, however, said the anomalies in the Immigration law amount to more than just glitches, because they in fact hinder the implementation of the law itself.

Pointing to section 47(2) of the Immigration Law 2003 for instance, Mrs. Harris said its current wording ‘probably made all the previous grants [of exempted positions] illegal under the law’.

Mrs. Harris said Section 47(1) requires that an application being made for an exempted employee can only be made at the same time as an application for a grant or renewal of a work permit, which means, that under the law, if a person is on their final work permit renewal under the seven-year term limit, there is no legal basis for an application for exempt employee status with respect to that person.

Because of difficulties created by the Law such as when an application for an exempted employee can be made, Mrs. Harris said the grants have been, and will be, made at a slower pace than the previous board, even though the total numbers will be similar in the end.

Despite the anomalies however, Mrs. Harris said the Immigration Review Team had not found and any real problems with the principles of the Immigration Law 2003, which includes the concept of the seven-year fixed term policy.

Mrs. Harris expressed concern about who could qualify as an exempted employee under the Law, noting that her Board wanted to be equitable and ensure the process was fair

Mrs. Harris noted in the three firms given 188 exempted positions, it appeared most of their professionals, particularly lawyers, were exempted from the fixed term policy.

Mrs. Bodden said that generally, only professionals were applying for exempted status at the time.

‘It was professionals that mainly were granted exempted employee status simply because bankers, lawyers and accountants where the ones who had submitted plans and were applying for exempted employees,’ she said.

‘When it came to the law profession, firms granted exempted positions were told they had to advertise the positions every six months, and that for every five lawyer positions granted as exempted employees, the firm had to hire one Caymanian articled clerk,’ Mrs Bodden said.

‘The goal there being to allow these businesses the professional employees they needed, so long as the qualified lawyers were not available in adequate measure, but also to ensure so far as possible, that the companies were being forced to sponsor and train Caymanian professionals so that at some point in the future, they would be available in adequate measure.

Mrs. Bodden said that only nine per cent of the expatriate work force was professional, while 11 per cent were managerial or administrative, 35 per cent were unskilled, and 45 per cent were skilled or semi-skilled.

‘You should be able to get an exempted employee in any one of those classifications,’ she said.