Umbrella Permits: Pushing the Administration's Agenda at the Expense of the Guest Workers





















October 16, 2009

There is much confusion in the guest worker community concerning the two-year umbrella permits. Deanne Siemer, the mastermind of the program, claims, "it will bring stability.” Perhaps stability to the current local labor system, but it will certainly offer no stability to foreign guest workers or to their families.

Labor officials claim that the idea of the permits is to "stabilize the workforce, protect employers and employees, and prevent undue damage to the economy." Again notice that there is no mention of any benefit to the guest workers. Yet, DOL is asking them to sign up for the permits.

The program was created to ensure that the CNMI maintains control of the maximum number of foreign for the maximum period allowed under PL 110-229. It's an attempt to ensure that DOL can maintain their system and true federal control of the system of labor is further delayed.

One official was quoted as saying, "It just demonstrates that they have status here. Actually, the umbrella permits are not necessary, since the foreign contract workers' permits, TWAs and other government-issued documents already prove their status.

Why not just come out and say, "We want to ensure that we can maintain a bloated workforce of disenfranchised, low paid labor to keep control of our corrupt system."

Siemer also stated that the "new system is part of the “protocols” presented by the Fitial administration to the U.S. government." The protocol written by Deanne Siemer and handed over to DHS Secretary Janet Napolitano last month was also attempt to maintain maximum control of the system. There are some very disturbing provisions in that protocol that I will discuss later in this post.

What real purpose does the two-year permit serve and why is DOL telling the guest workers that it benefits them? Leaving the grandfathering provision in the federal law would have benefited them. Passing Rep. Tina Sablan's status bill would have benefited and protected them. Recommending that the U.S. government pass legislation to give them green cards would benefit them. This benefits the CNMI government, the business owners wanting to maintain the system, and anyone who profits off the backs of the disenfranchised workers.

Siemer appeared at the Philippine Consulate to discuss the permit, but guest workers said that they got few answers to their questions.

What really turned off one guest worker who called me this morning was the comment that Siemer made concerning the federal lawsuit:
“Regulations and laws may change. But we expect that by two years, we already made a lot of adjustments [because of this umbrella permit] and I expect to win the lawsuit [vs. the federal government],” Siemer told the crowd.
That statement was also quoted by the Marianas Variety:
Siemer said Labor could no longer wait to see the outcome of the governor’s lawsuit against the federalization law.

“We had to act and we had to do something that would be operationally workable no matter how things turn out,” she said.

Under the umbrella permit, all the current permits and all labor department process will stay in place, she said in a press conference attended by guest workers and employers.

After Nov. 27, 2011, Siemer said Labor will have no authority to issue permits.
Siemer said it herself. The anti-federalization fighters will use every means possible to maintain control of the CNMI labor system including expensive litigation not authorized by the legislature, lobbying, manipulation of facts and administrative umbrella permits. U.S. District Court Judge Paul Friedman still has not issued an opinion on the lawsuit that was heard seven months ago, so Siemer and the anti-federalization fighters could wait no longer, they needed to pull another rabbit out of their hat of dirty tricks. That was the umbrella permit.

The theme of the Fitial Administration is to maintain the oppressive labor system, halt federalization, and keep the workers indentured and disenfranchised. This administration, its volunteers, and their followers think it is perfectly acceptable that the guest workers be treated as disposable commodities.

The federal government may be fooled initially if they haven't done their research and if they don't discuss the current system with parties other than the governor's representatives. However, once the takeover goes into effect and the transitional guest worker program is under the federal control, they will find out very quickly that if they allow the transitional guest worker program to be a continuance of the corrupt and dysfunctional CNMI labor system in place now they will have advocates, attorneys, guest workers, and officials demanding reform.

Why Sign the Permit?
So many have called and emailed me about this permit asking why they should even sign it. I say why sign a permit that erases huge contractual benefits? It offers nothing, but takes away a lot. Guest workers fear that they will be illegally burdened with paying for their own repatriation and medical costs. Under CNMI labor law PL 15-1098, the law penned by Seimer, Kara and Kaipat, it states:
§ 4536. Payment of medical and related expenses.
All employment contracts in which any branch, agency or instrumentality of the
Commonwealth government is the employer shall provide for payment of the costs of health insurance for a foreign national worker, as defined in 3 CMC §4911, on the same terms as for citizen and permanent resident employees and other workers, and shall provide for the payment of the costs of repatriation, as defined in 3 CMC §4911.
Their fears are legitimate, the permit may not be.

In August a worker leader told me that guest workers were told at the counter at the DOL Office that they had to sign a paper agreeing to bear the costs of their medical expenses and repatriation if they wanted a transfer or an extended transfer. Why should employers (or bonding companies) who sign contracts get out of doing what they are legally required to do? I asked Deanne Siemer about this process and was told that it was the only way that the community would allow DOL to issue transfer extensions because extensions are not covered in PL 15-108, just 30 day transfers. I was also told that unknown community members and foreign worker leaders agreed to this. (We will ignore the fact that extensions are not provided for in PL 15-108 if we get out of major contractual responsibilities.)

From the transfer cover sheet:
Repatriation: I understand and agree that if I am granted an extension of time to transfer, I may be required to pay for my repatriation ticket. Difficult economic circumstances may cause my last employer of record to go out of business or otherwise be unable to pay for my repatriation ticket. I will maintain sufficient resources to pay for the ticket if necessary.
Medical expenses: I understand and agree that if I am granted an extension of time to transfer, I may be required to pay for my medical expenses. An extension of time to transfer may extend beyond the time, under Commonwealth law, that my last employer of record is responsible for my medical care. In that event, I will be responsible to pay for medical care myself, and I will ensure that I am not otherwise a burden on the Commonwealth. I agree to present adequate assurance to the Department of Labor with respect to this undertaking in the form of insurance, a solvent sponsor, a working spouse, cash resources, or other documentation acceptable to the Department of Labor. I also agree to subscribe to, pay for, and keep current any form of health or death/accident insurance offered by the government of my home country for its citizens.
Again, it appears that the administration is making every attempt to remove the contractual responsibilities of employers/businesses to allow the impoverished guest workers to shoulder this burden. Of course, we know they do not have the financial resources to either pay for medical expenses or to pay for return tickets.

There is also talk that the administration plans to release bonding companies from their obligations to the guest workers.

Guest workers I spoke with today said that there are too many unanswered questions. They believe that the umbrella permit has absolutely nothing to with them and everything to do with pushing forward the agenda of the DOL and Fitial Administration.

One guest worker said, "Why are we going to help the people who hold the sword over our heads and got rid of the grandfathering provision? We should not sign this!"

Guest workers do not feel that the permit provides security to workers. Workers cited this quote from the Saipan Tribune:
The labor department will use its existing processes under its existing regulations to determine if and when a two-year umbrella permit should be revoked.
Text from the proposed agreement suggests that promise of a secure two year permit does not offer true security since the permit can be revoked anytime during that two-year period. It is nnot like the legislation proposed by Rep. Tina Sablan that actually allowed them to have CNMI status. The language is so vague that the umbrella permit could be revoked at any time.

Few workers have trust in the DOL because they know that the department supports the interests of the business owners and employers, and not the interests of the guest workers. Statements from DOL employees and the administration made over the last two years verify that view. There is substantial documentation that the DOL and CNMI government have consistently denied due process to guest workers, and have failed to go after employers or bonding companies that owe workers millions in unpaid wages.

The umbrella permit is not an employment authorization. It is not to be issued by the Division Immigration, but by DOL. Who knows if the federal government will even honor it? Who knows if it is even legal? Why sign it with all of these unanswered questions?

The permit appears to be another self-serving political ploy by a callous administration. This is an administration that claimed in their court documents that they wanted to maintain the foreign workforce, but works continually against them being granted any status.

Protocol
There are some serious questions regarding the "Protocol" that is said to have been written by a "task force" under the Attorney General. Several people have said that it was written by Deanne Siemer without input from the Attorney General. In fact, the Attorney General knew little about the umbrella permit (that was written about in the Protocol) as the Saipan Tribune reported the day before it's release:
Saipan Tribune decided to run the story after Attorney General Ed Buckingham confirmed to KSPN2 yesterday about the government's “umbrella permit” policy.

Buckingham last night confirmed that the plan is to issue two-year permits.

“But I am still reviewing it now and should complete my review on or before noon tomorrow,” said the AG in an e-mail.
Some concerns about the Protocol:

1. CNMI government negotiating with DHS to secure a contract on behalf of a private CNMI contractor
From the Protocol:
With respect to CBP functions (but not USCIS processing functions), a proposal for outsourcing certain port of entry jobs to a private CNMI contractor has been prepared for discussion with CBP in Washington. The private contractor would employ current Immigration Division employees and provide these employees to supplement CBP personnel assigned to the Commonwealth. The contractor personnel would work under the supervision of CBP on-site supervisors.”
Why is the CNMI government negotiating to get a contract on behalf of a private CNMI contractor? Who is this contractor? Isn't there an official bidding process, announcement process concerning government-issued contracts? How can this be legal? Where is the protocol?

2. Entry and employment permits
From the Protocol:
C. Entry and employment permits Federally-issued CNMI-only employment permits are not an immediate large-scale problem because the Commonwealth will issue two-year permits, effective as of November 27, 2009, to aliens and their employers who apply within the deadlines established by the Immigration Division and the Labor Department. The Commonwealth will administer those permits until they expire in November 2011 or earlier, according to their terms. However, the transition to federal CNMI-only permits will begin immediately as persons present in the CNMI (who do not have CNMI-issued permits as of the transition date or whose CNMI-issued permits do not extend for the full available two-year period) apply. This section deals with those issues.
Clearly, the umbrella permits were created to ensure that the CNMI "will administer those permits until 2011." It is remarkable that LIDS could not determine the current number of foreign contract workers currently in the CNMI a few months ago, but now DOL claims in their proposal for the umbrella permits (emphasis added):
Administrative issue of permits: The permits would be issued by administrative action. The Department of Labor would put together the appropriate data set from our computer files, set up the permit form, and then print the permits automatically from the data set. The DoL signature would be digital. No application would be required for this permit because the Department already has all the necessary information about each of the persons who would be covered by this permit. No fee would be charged.
Yet, look at this conflicting data from the 9th Interim DOL Report issued in May 2009:
The number of foreign national workers legally present: As of December 31, 2008, the Department had recorded 22,917 permit transactions during 2008 in the 2406K (foreign worker) immigration category. The Department counts only its administrative operations; it does not conduct any census of foreign workers actually present in the Commonwealth. The number of permit transactions is usually greater than the number of workers present in the Commonwealth at any given point in a typical year because some permit actions are contract amendments or extensions; some permit holders elect to leave the Commonwealth during the year for personal or employment reasons; some employers implement reductions in force and cancel their “issued” permits for some of their workers; some employers close their businesses entirely and their “issued” permits are cancelled by the Department; and other similar reasons. This year, there are also usually about 40 additional foreign workers who do not hold permits but who hold TWAs and about 70 foreign workers who do not hold permits but hold memoranda authorizing them to seek work while a labor case is pending.
So what happened between May 2009 and October 2009 that makes it possible now to print the exact number of umbrella permits (13,000) from the LIDS system? How were they able to determine there are 13,000 guest workers who qualify?

3. Banned Employers
From the Protocol:
The federal system, when implemented, should honor CNMI-approved employment and every employer who then employs foreign workers should receive permits for each of the the employed foreign workers. Only in this way can irreversible damage to the Commonwealth’s economy be avoided. In addition, the Commonwealth expects that federal authorities will honor and enforce the Commonwealth’s barred list. The Commonwealth bars employers who violate Commonwealth law from employing foreign workers either for a period of months or years or permanently. Employers who have been barred by the Commonwealth should not be granted permits by federal authorities. To do so would undermine Commonwealth law enforcement and endanger the Commonwealth’s labor system.
Where are these mysterious lists? Are they actually followed? Some employers who previously cheated workers were allowed to change the name of their company or get a relative to head a new company and hire new worker to abuse.

4. Task Force:
From the Protocol
Commonwealth operations
1. Prepare clean-up bill for CNMI Legislature amending laws to accommodate federalization - The Attorney General’s Task Force on implementation of PL 110-229 will prepare a clean-up bill for submission to the Commonwealth Legislature in January 2010 to amend and repeal laws as necessary to accommodate federalization.
2. Prepare amended immigration, labor, and commerce regulations to accommodate federalization - The Attorney General’s Task Force will prepare amended immigration, labor, and commerce regulations as soon as the Legislature has completed its action on the proposed clean-up bill.
Who are the people on this task force? Did the CNMI legislature or any members have input on this? Did they review it before it was presented to Secretary Napolitano? If the current governor loses the election what will happen to this "Task Force" believed to be primarily one person, Deanne Siemer?

More questions need to be answered before I would recommend that the guest workers sign the agreement for the umbrella permits.

23 comments:

Anonymous said...

Wendy:

You are absolutely correct. The workers are being asked to give up medical benefits and repatriation in exchange for a worthless piece of paper that the Feds may ignore.

Melberlin said...

There should be more public meetings or assembly for open discussion between guest workers and the policy makers of this argument justifying the course of action of the CNMI gov't. Short posting to offer this type of what they so-called beneficial to guest workers is another storm affecting them especially those that are uncertain with the upcoming Feds and will bite any bait. This is requiring a choice between equally unfavorable options.

More forum to work this out between parties will move into a strategically more advantageous position to everyone, not by this one-sided policy.

If they can complete this in 10 days to issue permits to 13,000; there are still time to to meet for open discussion until Nov. 27 from now.

Anonymous said...

The major flaw in the Wendy's argument about not signing the 2 yr permit (if it even needs to be signed) is that the post-federalization CNMI-only labor permits will only apply to unskilled labor. For the teachers, nurses, accountants, electricians, managers, and computer programmers, employers (without the umbrella permit) would have to secure H-visas at possibly 3-6x the current salary they are receiving if they keep the foreign employees.

I recently saw a teacher position advertised on the dept. of labor website with a bachelor's degree and (nine) 9 years experience for 5.00 an hour. A fresh bachelor of education graduate couldn't even apply.

I know citizens get first preference for jobs, but due to the law the skilled non-residents must have 2 years experience, little to no experience local college graduates are not being considered.

Skilled non-resident workers will benifit the most from the 2 year umbrella permits, because without them most likely they would not be able to work it their permits expired. Non-skilled workers might be okay not signing the permits since they should theoretically be able to get into the federal cnmi worker transitional program, but employers would probably prefer to employ workers that are under the umbrella permit (less restrictions), so I don't think there is really a way around not participating in the umbrella permit program.

Anonymous said...

Noni:

you're missing the point. Giving workers permits for a number of years and allowing them to transfer will give them and the employers a bit of cushion or stability. But whether this is good policy or not is irrelevent. It's contrary to both CNMI law and the new federal law. Under the CNMI labor law, workers can only transfer in a few limited circumstances, and the employers and bonding companies are responsible for medical care and repatriation. Under the new federal law, whatever permit or status you have on November 28 is all you get. DOL can give you a two-year permit on November 27, but it's only good until it expires or 2 years in, whichever comes first. So if your permit expires in January, the CNMI will have NO POWER to extend your permit. Issuing everyone a contingent permit that you can use when your real permit expires will slmost certainly be disregarded by Homeland Security. So if you have previously signed away your right to repatriation, not only will you have to go, but you will have to buy your own ticket home.

Wendy said...

Correct 10:36

And really it is devious and sly.

I absolutely would NOT sign these permits.

The time line also suggest it is a sly political move made before the election

Anonymous said...

Stop giving out work permits and contracts altogether. Let's just move on. Contract is up, leave. Want to stay, there's a recession and money is tight along with benefits like Health Care. Deal with it, it's the things are. A LOT of businesses in the US do not give worker's health insurance. Be adults, this is the real world. Be adults, this is an adult decision. You do not have to stay, you can buy a one way ticket back to Manila. No one forces you to stay.

Anonymous said...

You be an adult. Want to repeal medical care for workers?Change the law. Want to let employers and bonding companies off the hook for nonpayment of wages and plane tickets home? Change the law. Want to give workers the right to transfer freely? Change the law!

Anonymous said...

With the help of the Unity marchers, we did change the law!

It's called Pub. L. 110-229. There are no unrestricted transfer, repatriation, or medical benefits called for in that law. Maybe if foreign national workers are lucky, those benefits will be required in the federal regulations.

But in the post-federalization economy, how many employers will be able to afford such benefits?

Everyone is forgetting that the purpose of Pub. L. 110-229 is to send all the guest workers home by the end of five years.

It says so right in the law itself. What part of that is so hard to understand?

The smart guest workers are moving on already.

Those with deep roots in the CNMI, or the “gamblers” with nothing much to lose (hoping for green cards and citizenship), or the scammers are going to try to hang on as long as possible. The rest can read the writing on the wall. Foreign national workers are good at seeing the indicators of a failing economy.

Sign your umbrella permit or don't sign it.

What really matters is the CNMI economy, and whether your employer can afford to keep you on the payroll. The more expensive that becomes, the less likely it is.

Anonymous said...

Someone here is giving false hope to contract workers who do not a have chance to get green cards after 11/28/09. It is a losing battle for non-resident workers. Better sign the umbrella agrement and try to find good job and save money in case nothing happens after 2 years.

Anonymous said...

It's the CNMI government who decide whether the OCWs get green cards. It's the US. If you really believe there is no chance, why stay here where we are not wanted? If they want us, they can ask for us to have green cards. They want us as slaves only. There are other countries where you get citizenship after so many years.

Anonymous said...

Ah, but PL 110-229 only recognizes CNMI Immigration status that is in place when the TP begins. So if you want an umbrella, make sure you get it BEFORE November 28.

Anonymous said...

Even if that umbrella permit is illegal do you recommend workers sign for one. WHY? what are the advantages?

Anonymous said...

Well, if you have been waiting for DOL to issue an order in a labor case for the last year or two, and you suspect the hearing officer will decide the case in favor of your employer, you might want one of those new permits. The alternative is no transfer, and a plane ticket home once your appeal time runs out.

It's a crying shame that Homeland Security has handled this transition so poorly. If they had issued the regs for the transitional worker program, the employers and workers wouldn't have to guess whether they need to dance with the devil in order to stay around a little while longer.

Anonymous said...

Noni 1:56

You are wrong. Pl 110-229 allows transitional workers to transfer freely from one employer to another, as long as the new employer is in an industry that DHS has found needs alien workers to supplement the local workforce.

As for repatriation benefits or medical coverage, the regulations aren't out yet, so nobody knows.

Wendy said...

I agree with you 10:10. It is a shame that DHS is so slow and I guess it is because of the transition between administrations. I commend those in congress and the officials -CNMI and U.S. - who have been trying to get answers from them.

Still should guest workers sign away their benefits? Is this even legal considering that under PL 15-108 they are covered? Are you saying that if the worker does not sing and has a case that they will be denied due process and a hearing? There are so many questions that the workers, community members and advocates have. I hope that an attorney will clarify these questions.

This move seems politically motivated and aligned with the elections. (Or maybe it is an amazing coincidence)

The fact that DOL is releasing employers from their contractual responsibilities of repatriation and medical costs -all very odd. Why not issue the permit and omit that part about the repatriation and medical costs? Isn't that illegal?

Wendy said...

One more thought. Since I put up this blog I have had numerous commenters remark, "The workers were never promised status." This is a common statement from those who want to maintain the system and keep the guest workers disenfranchised.

Well, to you who say that to me, I say to you now, The workers WERE promised that their employers would repatriate them and they WERE promised that their medical expenses would be paid by their employers when they signed their contracts. They came to the CNMI under those conditions. How is it okay to pull the rug out from under them with this administrative action? How is that LEGAL, MORAL, OR ETHICAL?

Anonymous said...

Maybe I'm missing something, but where does the umbrella permit say that people have to provide their own reparation and medical expenses? I belive that the permits say "when seeking employment" such as with a transfer. If people want to go home anytime under a contract their employer will have to pay to send them home.

Also, the Philippine Overseas Labor Office requires recruiting agencies to pay for reparating workers and medical bonds, so the workers are likely covered if they want to go home. The problem is that most workers don't want to go home, they would rather seek employment. And it doesn't make sense for employers to be on the hook for medical expenses years after an employees leaves the company.

Anonymous said...

I meant repatriating, not reparating.

Anonymous said...

I hope you do not take my comment as personal attack, Mrs. Wendy Doromal. Have you noticed that even your Lawyer friend does not agree with you on this matter? What is your motives Wendy?

Wendy said...

4:51

What lawyer friend are you referring to? I do not seek agreement -I seek answers!

Motives:
1. Ensure that the workers are not used to push forward a political agenda.
2. To determine if umbrella permits are legal now and will be under the federal transition
3. To determine clearly how the permits would actually benefit the workers and community.
4. To remove provision in agreement that requires those who sign to agree that they will pay for their own repatriation costs and medical fees if they are seeking work.

Wendy said...

11:26

The provision does say when seeking employment and many under the umbrella permit will be seeking employment or are right now. Why should they agree to that? When someone's contract expires in December that person will be seeking employment if they are not renewed. Then they signed the umbrella permit and not only will be faced with seeking employment, but paying for medical expenses and their repatriation because they signed that? I think I am understanding this correctly. If not, someone please explain this!

the teacher said...

Unknown organizations are putting this together, they invited the notorious Saipan "chamber" of Commerce, whose members were instrumental in the Jack Abramoff bribery scandal, lobbied Washington against the first minimum wage hike here (FIFTY CENTS)in a decade, and they have exploited foreign workers while local Chamorro and Carolinians were unemployed, and they didn’t invite me?

There was no need for a two year transition umbrella and this regulation is poorly thought out. Tina had a five year transition proposal, which may not have been perfect, but was much better for the community and the CGW than this. This takes much burden off the employer without offering employment opportunity, so I would not sign such a document. It also allows illegal business operators to ride the train another 2 years, a terrible economic mistake for Saipan.

The reason they (meaning the chamber and fitial) want this is to freeze impoverished workers here and further drive the cost of labor down because of supply and demand.

Anonymous said...

Why should employers or the workers pay when the federal government will do so?