Flip Flopping on the Exit Provision


















March 22, 2008

Consideration To Be Given to Hardship Cases

In December I met with Governor Fitial to discuss the hardships that the exit requirement would impose on guest workers and their U.S. citizen children. Several months ago I submitted written comments on P.L. 15-108. Included in the comments were specific ones again addressing the issue of the hardships that an exit provision would impose on guest workers and their families. I received a response to my comments. Below is what I wrote about the exit provisions and the CNMI Department of Labor's response:


Doromal comment:
The Exit Provision Section 4953 of P.L. 15-108
The provision to require guest workers to exit would cause great harm to the guest workers and their families. It is hard to believe that a government that invited guest workers to their islands, and has depended on their skills and talents to construct their roads and buildings, to work in their medical centers, to serve the tourists, to fish, to farm, to work in restaurants, hotels, bakeries, stores and other businesses in the CNMI to the extent that the guest workers have for 5, 10, 20, 30 or more years, could create such a provision. This provision would lead to the division of families and the exile of U.S. citizen children.

If it was the intent or “basic bargain” of the CNMI government that guest workers would enter the CNMI, work, and leave after a limited amount of time, then provisions should have been made thirty years ago to limit their stay or the number of contract renewals. However, the CNMI needed the guest workers and encouraged them to stay, issuing thousands of renewals to hardworking guest workers each year. Many of the trusted and skilled guest workers have been in the CNMI over 20 years, and some have spent more years in the CNMI than in their homelands. Most long-term non-resident workers consider the CNMI as their home. Whether CNMI officials like it or not, by definition and by emotions attachment it is their home. It is the only home that the majority of their U.S. citizen children have ever known. The long-term guest workers have been legally working and residing in the CNMI for extended periods, have started their families in the CNMI. They have benefited the CNMI by their contributions as laborers and through the taxes they pay.

This provision sends a message that the guest workers are wanted in the CNMI as long as they remain indentured, disenfranchised servants, to be disposed of and replaced with a new ones, like a commodities. This provision sends a message that the guest workers are not accepted as valued members of the CNMI community. The provision disregards the social and political rights of the guest workers, and does not value or respect the well being of their families and children. This provision is in conflict with the United Nations Declaration of Human Rights.

It does not matter whether the guest workers are required to exit for 60 days or six months, the order would divide families and cause great harm to the U.S. citizen children and their parents. The children of the guest workers, an estimated 6,000 to 8,000, who were born in the CNMI are United States citizens. Should their parents be forced to leave, they would have to bear the costs for their spouses and children to accompany them. Most have expressed that could not afford the airfare to bring family members with them. This is not surprising since most earn a meager $3.55 an hour. With the recent minimum wage increases, the DOL has allowed employers to amend the labor contracts to cut benefits such as housing and travel, which has put the guest workers in even deeper financial peril.

In December when I met with Governor Benigno Fitial, former House Speaker Oscar Babauta, Policy Advisor Ray Mafnas, and Special Assistant Esther Fleming, I expressed my concerns about this provision. I asked what plans the CNMI has to care for hundreds of displaced children. At that time there were none. If this provision stands, the CNMI government will have to start setting aside funds to repatriate the children with their parents, or set aside funds to find other ways to provide for them if their parents are deported or sent home without them.

Some of the parents of U.S citizen children told me that their children would not be able to attend school in their homelands. As foreign citizens, the parents would be charged tuition to enroll their children in school, and they said they could not afford this expense. Especially since the parents will most likely be unemployed for the exile period. Many have stated that they would try to make arrangements to leave their children in the CNMI to attend school so they will not interrupt their education. If the children did go with their parents, most would have to postpone their education. Here is an excerpt from a letter I received that details some problems:

“We are Chinese, have worked and stayed in Saipan more than ten years. We have four children. The eldest was born in China, now is 15 years old. The other three children were born in Saipan; they are 11, 7, and 5 years old now. The eldest is high school student in China. The year of 2003, we sent the three children back to China to my hometown school. The grandparents are taking care of them. We were told to pay 20,000 yuans for three of them for each school term, but for Chinese student no need to pay for this additional fee. But if we apply Chinese passport for our children (it means our children need to give up their US citizen and surrender the US passport to Chinese Government), we need to pay the Government 150,00 yuans for each child (450,000 yuans for three of them because we have more than one child. The Chinese government law only allow "One child per couple." If we pay for the fine of 450,000 yuans and surrender the US passports, our children can go to school same as other Chinese students. We don't have this much money to pay and we don't want our children to give up their US citizenship too. So now we take them back to Saipan...Both of us are contract workers, it is very hard for us to support the family. But we do have hope for our children and they can go to public school having good education for free in here, they will not be forced to lose their future even though we are not enough rich and earning minimum wage.”

Furthermore, most U.S. citizen children of guest workers speak only English. A Bangladeshi family told me that their children would have to start school in the first grade to learn Bengali, whether they were in the first grade or tenth grade in the CNMI.

Other guest workers told me that they would be afraid to leave their children in the CNMI to attend school during the time of their exit because there is no assurance that there would be a job waiting for them in the CNMI when the exit period ended. They may be financially unable to return to the CNMI to get their children if they leave them, or they may even not be allowed to enter to the CNMI in an emergency. The provision defines the exit as repatriation. Their children could become abandoned.

Assuming that a guest worker can raise the funds to bring their spouse and children with them during the exit period, how would they be able to support the family for their period of unemployment? Many workers have stated that since they have lived in the CNMI longer than they have lived in their homelands, they have no home, no land, no place to go should they be forced to exit. The hardship placed on these workers and their families will be unbearable. To exile a family to homelessness is inhumane.

The policy with respect to periodic exit is explained: “The first and primary reason is to open up opportunities for local residents to be trained and employed in positions previously held by foreign national workers.” Since the current law calls for contracts to be renewed annually, there is actually no reason for this statement. Isn’t it a fact that if there are local residents available for a position, the contract would not be renewed, and the local person would be hired? Presently there is not an adequately trained or skilled local workforce available to replace all of the non-resident workers who would be subjected to exit requirements. It is not likely that there would be a trained and skilled local labor force to replace the majority of the guest workers in the near future either. In fact, there are not even the numbers of local residents to replace them. Businesses would suffer from this requirement, the CNMI people would suffer, and the economy would suffer.

The second reason
is the primary reason for this provision. It states: “The second reason, also important, is to enforce the basic bargain that was made with each foreign national worker who entered the Commonwealth for employment purposes and not for permanent residence.” In other words when a guest worker hires on in the commonwealth they can be expected to be treated as an outsider and to remain as indentured servants with no political and social rights. They can be expected to pay taxes, but to have no voice or fundamental rights. The basic bargain is no bargain. The CNMI government has allowed skilled and professional guest workers to live and work in the CNMI for very long periods of time. They were renewed because they are valuable and trusted workers. Now the government has enacted a law that reinforces that they consider the guest workers to be disposable commodities, and not valued as human beings or community members. If a person lives and works legally in a country for twenty years they have earned the right to call that community home.

The CNMI government is arrogant to think that after passage of this law that they will be able to retain and recruit enough skilled guest workers. It is arrogant to assume that workers who must endure the hardships of being returned to their homelands for 2 months or 6 months –whatever the case would be - would return to the CNMI to suffer further hardships. It is arrogant to assume that the guest workers that are forced to exit will not tell their countrymen of their experiences, and of the oppressive labor laws in the CNMI. It is arrogant to assume that guest workers would choose to return to the CNMI when they are needed all over the world in an expanding global economy. Why would they choose to go to the CNMI where they lack social and political rights when they could choose to be employed in a country that offers a pathway to citizenship? The governments and potential workforce of the host countries are being notified and educated as to the intent and content of this law.

I have received hundreds of emails and letters testifying to the sleepless nights, the worry, and the emotional pain that the anticipation of this provision has caused the parents and hundreds of innocent children. Children should not be spending their days worrying about being separated from parents, or living in fear of being exiled to a foreign country. They should not be crying in pain over thoughts of being uprooted from school, friends, and the only home that they know and love. It is astounding to me that out of a beautiful culture that so reveres and respects the family, a callous plan such as this could be written and enacted into law.

The intent of the law is clear. The law allows the exploitation of guest workers to benefit the CNMI, the denial of a clear path to file valid labor complaints, and the limitation and denial of the guest workers’ constitutional rights and due process.

Section 4953, 8. Rehire upon the re-entry to the Commonwealth
Assuming that a foreign contract worker has survived a six-month exit requirement, or has not taken a job in his or her homeland or another country where workers’ rights are respected, what makes the CNMI government think that he or she would return to a CNMI employer knowing that in three years the exit drama would replay? In fact, guest workers have said should this law stand without any revisions; they would use the exit time to find employment in their homeland or to seek employment in countries where there is a clear pathway to citizenship. The language and intent in this section is clear:

“Foreign national workers who return to the Commonwealth after six months abroad are starting a new period of residence in the Commonwealth. No period of prior residence is relevant after return.”

It is clear that the CNMI government is fearful that the tax-paying guest workers may someday be granted political rights and a have voice. The intent of this provision is to uphold the practice of disenfranchisement and indentured servitude, and to ensure that the long-term guest workers will never be given status or a pathway to citizenship, at least not from the CNMI government.

The way a person treats another person, reflects the character of that person; the way a nation treats the people who live within its borders, determines the character of that nation. An exclusive society that disenfranchises a major portion of the population from political and social rights will not prosper politically, socially, morally, or economically. An economy built on the backs of indentured servants will not grow. As long as guest workers remain disenfranchised, the CNMI will not have a free labor market to grow the economy. As long as guest workers are denied of the opportunities to work for more than one employer, to work for as many hours as they are needed, and to share their skills with multiple employers, the economy will suffer. A free and open labor market would result in the economic recovery of the CNMI. P.L. 15-108 stands as a barrier to economic progress and prosperity in the CNMI.

I ask you to reconsider this law and to revise it so it will be fair and just to every resident and non-resident worker who calls the CNMI their home. I ask you to revise this law to consider the destructive impact it will have on the U.S. citizen children of non-resident workers. I ask you to revise this law to remove all obstacles to justice so that victims of labor abuse will have a clear pathway to file labor complaints. I ask you to revise this law to provide adequate consequences –serious fines, jail-time, and the loss of the privilege to ever again hire guest workers for employers who violate the labor laws, and cause harm to guest workers.

Department response:

This is absolutely untrue. No demonstrable harm will be caused to guest workers or their families. The periodic exit provision of PL 15-108 is much more generous than the comparable provisions of U.S. law, which require exit for one year, and the Commonwealth's provision for a 60-day alternative is immensely better for foreign workers than the permanent deportation within five years and bar from returning that is imbedded in H.R. 3079, the "federalization" bill. (Note -this is not true) The federalization bill really would exile U.S. citizen children because of the U.S. rules barring nearly all exceptions to deportation based on U.S. citizen children. The U.S. courts have consistently rejected every argument that U.S. citizen children should be a factor in deciding whether nonimmigrant parents should be deported. It is important to understand what PL 15-108 provides:

(1) Not all foreign workers are covered by the periodic exit requirement. An employer is permitted to exempt 10% of foreign worker employees as "key" employees. These key employees are not required to depart in three years.

(2) Foreign national workers need depart for only 60 days if they work for a qualifying employer. A qualifying employer is one who meets the statutory requirement for workforce participation by U.S. citizens. As this is a requirement of law, every employer should qualify. If an employer does not qualify, that situation can be easily remedied by hiring the necessary percentage of U.S. citizens.

(3) The 60-day departure is at the convenience of the employer and the employee. The Department of Labor intervenes only if no compliance with the law is forthcoming.
Employees who have children can schedule the 60 day period during summer school
vacation.

(4) Automatic contract extensions apply after the periodic exit is completed, and contract adjustments are available. Nearly every country with a guest worker program enforces a periodic exit (or touch-back) provision with respect to nonimmigrant workers. The Commonwealth's 60-day provision is the most generous of any
country.

Every single sentence in your comments about the periodic exit provision contains a factor that was considered by the Legislature during its deliberations on PL 15-108. Every one of these factors has been analyzed and rejected. If you would like further detail, sentence-by-sentence, as to why the perceived problems you explain in your comments are highly unlikely to materialize as PL 15-108 is put into effect, please let me know. We have been over these arguments time and time again. The Department of Labor has detailed documentation with respect to these considerations indicating that hardship cases will be very few in number.

First: the Commonwealth records every departure, including every departure and re-entry by foreign workers. Unlike the United States, which does not keep data on departures, the Commonwealth has data on each foreign worker who has returned to their home country for leave within any three-year period. The percentage of the total number, particularly among Filipino workers who have been in the Commonwealth
for more than three years, is very high. This suggests that a very high percentage of these workers have substantial ties with their home country and have a place to go when the 60-day periodic exit is required. When we get the names or LIIDS numbers of the persons whose examples you have cited, we will be able to tell you exactly how many times they have been back to their home country since they have been in the
Commonwealth.

Second: the Commonwealth, like other U.S. jurisdictions, has records of remittances sent abroad. This came into effect some years ago as a national security measure. The Commonwealth has data on how many foreign workers have sent substantial remittances back to their home country. The percentage of the total number is very high. This also suggests very substantial ties with the home country.

Third, no matter what adverse effects are produced for a very small number of individuals who truly have absolutely no ties remaining in their home country, that effect is also present under H.R. 3079 which will deport all of these people within five years. If a person has no ties to a home country and is adversely affected under PL 15-108, that person will be ever so much more affected by H.R. 3079 which will send
them home and not let them come back.

The Department of Labor supports the balance struck by the Legislature in enacting PL 15-108. It is a fair and generous guest worker program that can be implemented efficiently by the Department. We suggest that you evaluate experience under the new law after a reasonable amount of time has passed to judge whether any of your theoretical hardship cases actually occur. The Department has flexibility built into its regulations and will work with you to ameliorate any unanticipated effects of the legislation. Please direct that correspondence to me. The Department plans to report to the Legislature in September 2008 with respect to its performance under PL 15-108 and the actual experience with the implementation of the law.

Respectfully,

Eleanor Nisperos
Assistant Attorney General and Counsel to the Department of Labor
_______________________

News from DOL states that the CNMI Department of Labor may be softening their stance on the exit provision. This may be positive news for the guest workers. The Saipan Tribune reported:

Deanne Seimer, who is assisting Labor, said the department is working on implementing a “hardship exemption” that would postpone the exit requirement for foreign workers who are facing “real hardships.”

“We recognize that there are foreign workers who do not have a place to go, or too many children to take with them, or are facing a situation on island that will not allow them to leave,” Seimer said.

The department is working with a variety of agencies such as the Philippine Consulate General, the Legislature, and other foreign worker groups to come up with a fair set of criteria on how to implement the exemption for foreign workers who are faced with real hardship.


“The hardship exemption will not excuse the periodic exit altogether,” Seimer explained, “but will postpone the periodic exit” until the employee can be able to leave without conflict.

Seimer said that in the U.S. mainland, there is “almost no hardship exemption. But because we're a small place, and we need provisions that are appropriate for our situation, we try to accommodate everyone's interest in putting this [hardship exemption] together.”


There is no set date yet as to when the provision will take place. "

A couple months ago they were very firm in their repsonse to me:

"No demonstrable harm will be caused to guest workers or their families."

"Every single sentence in your comments about the periodic exit provision contains a factor that was considered by the Legislature during its deliberations on PL 15-108. Every one of these factors has been analyzed and rejected. "

I am amazed that they are flip flopping on their stand! This could be good news for the guest workers. Of course, with the talk that the administration will be backing legislation to improve guest worker status, the exit provision would no longer make sense. Time will tell...

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