AG's Opinion on Foreign Workforce

March 16, 2010

The Opinion of the CNMI Attorney General, Edward Buckingham, regarding CNMI power in immigration matters, verifies that the Fitial Administration wants to maintain the CNMI DOL's control over the foreign workforce at least during the transition period. Buckingham states:

The CNRA does not expressly or impliedly preempt the Commonwealth from administering and revoking aliens' Commonwealth immigration status during the CNRA's two-year transition period. Therefore, the Commonwealth may administer and, if appropriate, revoke the Commonwealth immigration status of aliens lawfully present in the Commonwealth on November 28, 2009, during the CNRA's two-year transition period.
I think he will be proven wrong. His opinion is in direct conflict with the federal stand and with PL 110-229.

PL 110-229 states:
SEC. 6. IMMIGRATION AND TRANSITION.(a) (2) TRANSITION PERIOD- There shall be a transition period beginning on the transition program effective date and ending on December 31, 2013, except as provided in subsections (b) and (d), during which the Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of the Interior, shall establish, administer, and enforce a transition program to regulate immigration to the Commonwealth, as provided in this section (hereafter referred to as the 'transition program').
The Secretary of the Department of Homeland Security was designated to establish, administer and enforce a transition program, not CNMI officials. As of November 28, 2009 the U.S. government oversees CNMI immigration and the employment of foreign nationals, not the CNMI government or the CNMI DOL.

The debate raging between CNMI and Federal officials is about who has authority over the foreign workers during the two year period of the transition phase ending November 27, 2011.

From PL 110-229:
(e) Persons Lawfully Admitted Under the Commonwealth Immigration Law-
(1) PROHIBITION ON REMOVAL-
(A) IN GENERAL- Subject to subparagraph (B), no alien who is lawfully present in the Commonwealth pursuant to the immigration laws of the Commonwealth on the transition program effective date shall be removed from the United States on the grounds that such alien's presence in the Commonwealth is in violation of section 212(a)(6)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(A)), until the earlier of the date--
(i) of the completion of the period of the alien's admission under the immigration laws of the Commonwealth; or
(ii) that is 2 years after the transition program effective date.
(B) LIMITATIONS- Nothing in this subsection shall be construed to prevent or limit the removal under subparagraph 212(a)(6)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(A)) of such an alien at any time, if the alien entered the Commonwealth after the date of the enactment of the Northern Mariana Islands Immigration, Security, and Labor Act, and the Secretary of Homeland Security has determined that the Government of the Commonwealth has violated section 103(i) of the Northern Mariana Islands Immigration, Security, and Labor Act.
(2) EMPLOYMENT AUTHORIZATION- An alien who is lawfully present and authorized to be employed in the Commonwealth pursuant to the immigration laws of the Commonwealth on the transition program effective date shall be considered authorized by the Secretary of Homeland Security to be employed in the Commonwealth until the earlier of the date--
(A) of expiration of the alien's employment authorization under the immigration laws of the Commonwealth; or
(B) that is 2 years after the transition program effective date.
The DHS stated that they recognize the CNMI-issued umbrella permit as being legal until November 27, 2011, even if the CNMI claims that they "revoked" the permit. The CNMI disagrees, stating that the second date on the permits give the CNMI DOL the right to revoke the permit if the foreign worker does not comply with local law. This seems ridiculous since the CNMI DOL no longer has control over the foreign workforce.

Even if the CNMI legislature passes H.B. 17-25 which aims to blur lines between immigration and labor and give authority to the CNMI government, I doubt it will be legally recognized.

From PL 110-229:
(f) Effect on Other Laws- The provisions of this section and of the immigration laws, as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)), shall, on the transition program effective date, 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.
It seems that the Fitial Administration will never give up their fight to maintain control over the foreign workers. What is ironic is that in their court battle, in testimony, and in public statements CNMI officials emphasized the need to keep a large number of foreign workers in the CNMI to ensure a stable workforce and strong economy. However, in recent statements and in arguments about umbrella permits they claim they want to maintain the power to be able to revoke the permits and recommend deportation of foreign workers to ICE!

The best analysis of this whole issue can be found on attorney Jane Mack's Day in Court blog, The Power Struggle Over Alien Labor.

3 comments:

swivel chair lawyer said...

Even the subject line and introductory paragraph are wrong.

The “Transition Period” is not two years, but continues from November 28, 2009 until December 31, 2014, unless further extended.

Anonymous said...

Swivel chair - Right! He is talking about the first two years of the transition period that aliens are allowed to remain in the CNMI with valid umbrella permits...

Anonymous said...

Perhaps Buckingham Palace should just Leave It to the Volunteers.