DHS to Issue Statement on Umbrella Permits

January 31, 2010


There was a short blurb in the January 29, 2010 issue of the Marianas Variety hinting that the Department of Homeland Security would be issuing a statement to clarify the legal standing on umbrella permits. Reportedly USCIS field office director Walter Haith said the statement would be issued within a few weeks. That may mean that the DHS will issue the permanent rule at that time.

From the Variety:
“There just seems to be so much confusion with the private sector and also the public sector where there are foreign workers. [Haith] said, basically, the umbrella permits will be fine. It will be honored until 2011. He also said the Department of Homeland Security would be coming up with a ruling or interpretation of the umbrella permit as it applies to the U.S. immigration law within a few weeks,” said Plinske.
Why is there so much confusion? Most of the problem can be traced to the CNMI Department of Labor. Statements by the DOL as to umbrella permits have been ever-changing and fluid since they were first issued.

DOL's 2009 Annual Report stated: "DHS representatives have acknowledged publicly that they will respect all of the CNMI-issued permits for two years and that the CNMI governs the terms and conditions for those permits." It is the terms and conditions of the permits that are so confusing.

Questions remain as to the authority of the local labor department now that PL 110-229 is law. Can DOL continue to enforce "primary preference" regulations which requires that 20% of the workforce be held by U.S. citizens or permanent residents? Does DOL still have the authority to operate the "foreign worker transfer registry"? Can DOL continue to regulate the application and processing of foreign workers? Are TWAs still needed by foreign nationals if they are covered by an umbrella permit?

In a comment to DHS, Howard Willens outlined changes to CNMI law to conform to PL110-229. There is a difference between labor and immigration, but the CNMI government wants those lines to be blurred. The proposed changes to the laws include: a CNMI-run alien registration and identification system, changing the words "work permit" and "permit" to "identification card", and CNMI repatriation of foreigners. DHS will have to clarify more than just umbrella permits.

How can the CNMI government have an alien registration system and any control over repatriation if PL 110-229 shall supersede and replace all laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth? Is there any state in the United States that conducts its own alien registration, identification system, and/or repatriation of foreign nationals?

In the proposed CNMI law changes, the name "Immigration" is deleted and is replaced by the name "Registration and Employment":
B. A new Part 1 (Registration) shall be added, as follows:
§4301 Registration of Aliens.
(a) Every alien who remains in the Commonwealth longer than 90 days shall by regulation be required to be registered. Registration may be renewable annually. The parents or legal guardians of aliens under the age of 18 are responsible for such child’s registration.
1) Registration of aliens who are qualified to work in the Commonwealth, aliens who are religious ministers and missionaries and work in the Commonwealth, and aliens who are immediate relatives of aliens qualified to reside in the Commonwealth shall be conducted by the Department of Labor.
2) Registration of aliens who are investors, business-owners, or students qualified to reside in the Commonwealth shall be conducted by the Department of Commerce.
3) Registration of all other aliens qualified to reside in the Commonwealth shall be conducted by the Attorney General
(b) Such registration information as the registration authorities may require, including but not limited to fingerprints, is confidential and may be made available only on request of law enforcement authorities in connection with criminal or juvenile delinquency investigations.
(c) Registration information required by the registration authorities may be taken on oath or by declaration. Persons employed as registrars are authorized to administer oaths for purposes of this section.
(d) Registered aliens will be issued an identification card, which will indicate date of expiration and nonimmigrant class, as well as such other information, including photographs, as the registration authorities may require.
(e) Registered aliens 18 years old or older shall keep their identification card in their personal possession at all times.
(f) Any alien who knowingly fails to comply with this section shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not more than 90 days, or fine of not more than $500 or both.
(g) An alien, for purposes of this section, is any person who is not a citizen, national, permanent resident of the United States, or a CNMI permanent resident as provided by Trust Territory or Commonwealth law.
Why does the CNMI government need to issue identification cards? Isn't that the responsibility of U.S. immigration? What were the umbrella permits issued for? Why would aliens 18 years or older need a CNMI-issued ID card in their personal possession at all times? Are they seriously suggesting that an alien who fails to comply with their rules could be jailed or fined $500 by the local government?

The proposed changes suggest that the CNMI government may be duplicating what the federal government is or will be doing, for instance fingerprinting aliens. Or are they attempting to be a labor-immigration department.

The proposed registration is absolutely unnecessary. Any registration of aliens should be the responsibilty of the federal government. Is this a way to maintain their broken system? A way to continue collecting revenue? Another attempt to allow the local DOL to control the foreign national workers?

Their proposal includes changing the words "entry permit" and "permit" to "identification cards":
N. Division 4 (Immigration), Part 3 (Employment), Chapter 6 (Employment of Foreign Nationals) is renumbered Chapter 3 and is amended to change the terms “entry permit” and “permit” to “identification card,” and as follows:
1) Article 1 (General) is amended to:
a) Amend current §4911(f) to read: “Identification Card” means the card issued by the Department using the Labor Information Data System (LIDS) or comparable system and delivered to a foreign national worker or immediate relative of a foreign national worker pursuant to this chapter;”
b) Amend current §4911(h) to read: ““Immediate relative” means a parent, spouse, or child, whether natural or adopted, if adopted before his or her eighteenth birthday. A disabled child of any age qualifies as an immediate relative if in the continuous custody and care of the parent.”
c) Amend current §4911(j) to delete the words “whether” and “or by deportation.”
d) Amend current §4911(l) to delete the words “enters the Commonwealth pursuant” and substitute the words “is a party.”
e) Add a new §4911(m) to read: ““Umbrella permit” means a two-year permit issued prior to November 28, 2009 by the Department of Labor, the Department of Commerce, or under the authority of the Attorney General, to expire on November 27, 2011, that protects the status of the holder to remain in the Commonwealth until revoked or expired.”
f) Arrange the subsections of §4911 in alphabetical order as required.
2) Article 2 (Entry into the Commonwealth) is amended to:
a) Change the title of Article 2 to “Identification and Documentation”
b) Delete §4921.
c) Amend §4922 by –
i. In subsection 4922(b) by deleting the words “or part-time casual employment” and substituting the words “and provide for part-time casual and other employment.”
ii. In subsection 4922(d) by deleting the words “and forward it for immigration clearance”
d) Amend §4923 by –
i. Deleting subsection 4923(a).
ii. Amending current subsection 4923(c) to delete the first sentence.
iii. Amending current subsection 4923(d) to read: “Upon receiving notice that there is a medical reason any foreign national worker or immediate relative should not be permitted to remain in the Commonwealth for health reasons, the Secretary shall notify the foreign national worker and offer repatriation at the earliest date on which it is medically safe to travel. If repatriation is not accomplished, the Secretary shall forward the relevant documentation to the federal immigration authorities for deportation.”
iv. Renumbering the subsections as necessary.
v. Amend §4924 by amending subsection 4924(a) to delete the words “issuance of an entry permit for” and substitute the words “commencement of work by”e) Amend §4925 by –
i. Amending the title to read: “Foreign national worker status”
ii. Changing the term “entry permit” to “identification card”
iii. Amending subsection 4925(a) to read: “The Secretary shall cause to be issued an identification card which shall include the foreign national worker’s name, employer, citizenship, gender, birth date, expiration date of the card, and LIDS number.”
iv. Amending subsection 4925(b) to delete the last two sentences.
v. Adding a new subsection 4925(e) to read: “Umbrella permits issued by the Department to foreign national workers continue in full force and effect until revoked by the Department. Each holder of an umbrella permit must also hold a current identification card.”
f) Amend §4926 by –
i. Amending the title to read: “Immediate relative of foreign national worker status.”
ii. Changing the term “immediate family member” to “immediate relative.”
iii. Deleting subsection 4926(a).
iv. Amending subsection 4926(b) to read: “Each immediate relative of a foreign national worker shall be issued an identification card which shall include the sponsoring foreign national worker’s name, and the relative’s name, citizenship, gender, birth date, expiration date of the card, and LIDS number. The expiration date of the card shall be the same expiration date as the card held by the foreign national worker.”
v. Deleting subsection 4926(c).
Remember when Deanne Siemer and Cinta Kaipat said that anyone having a those DOL-issued "free" umbrella permits could remain in the NMI until November 27, 2011? Now they propose that anyone holding an umbrella permit must also have a CNMI-issued identification card:
Adding a new subsection 4926(e) to read: “Umbrella permits issued by the Department to immediate relatives of foreign national workers
continue in full force and effect until revoked by the Department. Each holder of an umbrella permit must also hold a current identification card.”
By changing the word "deportation" to "repatriation" can the CNMI government control who is subject to repatriation?
g) Delete §4927.Under the changes "deportation" is changed to "repatriation."
Amend §4964 by –
i. Deleting the word “deportation” and substituting the word “repatriation” and deleting the word “deportable” and substituting the words “subject to repatriation.”
DHS will have more to explain than legal standing on umbrella permits.

Meanwhile, guest workers are advised not to go to DOL. If any guest worker has any questions concerning umbrella permits and the process of reporting to DOL call the Federal Ombudsman Office:

Please call Cris/Glen if Tagalog or Sri Lankin - 322-8034/8038 and Li/Ripon if Mandarin, Cantonese or Bangladeshi - 322-8033/8037.

7 comments:

malou berueco said...

this "identification card" for alien workers is not a proposal anymore...they have issued this already to few workers January 15, 2010 onwards. One of my good friend show this kind of card to me. S/he is an accountant with good and legal employer. Aside from that, his/her umbrella permit was also replaced though the first was issued was computer generated with pictures on it and an expiration date of nov.27, 2011.
As I expect, that DOL will do anything they want to do, even though they were saying it just a proposal only.

Anonymous said...

DOL has no authority to issue ID cards! DHS needs to stop this!

Anonymous said...

So why are people still going to DOL? They cannot deport the guest workers. Why go there!?

malou berueco said...

that's why those in real authority should come up with their statement or position and have this published! please do it soonest!

malou berueco said...

another problem are the employers, they don't want to hire guest workers who are just holding an umbrella permit. they should be educated too!

the teacher said...

Malou, I guess employers are apprehensive to hire employees with umbrella permits because they don't know what they would be buying into, or what their liabilities and responsibilities are, and I can’t say I blame them. Many would probably hire permit holders for part time work, but the question is, “does that mean the employer is required to a contract period, health insurance, and repatriation”.

In the new commonwealth contract labor will be reduced drastically and the old mindset of two year contracts will become a thing of the past. Employers in America can fire employees with little notice based solely on needs of the business, and conversely, employees can walk in a free market system to accept better opportunities. The whole umbrella scheme was to stall federalization and keep restricted workers for as long as possible. The CW program used in conjunction with the investor visa regulations will resolve this stalemate soon after implementation.

Anonymous said...

Hopefully DHS will issue a new Federal I-9 form that includes the specifics on the umbrella permit.

I'm not sure that DHS itself knows how to best handle the CNMI DOL. I doubt that DHS will say that what CNMI DOL is doing if correct. DHS can say that umbrella permits are only good for pre-existing jobs and workers will not be able to transfer or seek new employment, which will mean 1500-2000 workers will not have authorization to work at all.

DHS can also say that umbrella permits are all that is needed, no matter the color of the band but then they would have to decide (1) Minimum hours an employee can work (can a worker be hired for 15 hours a week)? (2) Are non-FSLA employment required to pay minimum wage (can waitresses make $2/hr as in the mainland)? (3) Are employers responsible for medical, worker's comp, repatriation, bonds, 2 year experience, contract period, health screen? (4) Can students who hold umbrella permits work? (5) Do employers have to hire 20% or 1 U.S. worker if less than 5 employees? (6) Do employers have to post vacant positions and interview for local workers first?

In order to give employers an incentive to apply for the CW visa, and not to open up a big can of worms, I predict that DHS will state that umbrella permits are not good for employement without a pre-existing employer.