The forum on foreign worker issues sponsored by the Society for Human Resources Management CNMI demonstrated that neither the CNMI, nor the Federal Government would back down from their positions regarding who has the authority over the foreign workforce. The CNMI government claims that DOL still has authority until November 27, 2011, while the federal position is that the federal government has had authority over the foreign workforce since November 28, 2009.
Labor Ombudsman Pamela Brown told the audience that she recommended that they follow the federal position. The Saipan Tribune quoted Ms. Brown as urging people with questions to contact their legal consuls, saying "Case law is clear."
Ms. Brown and David Gulick, district director of the USCIS, maintain that employment of aliens is a federal matter and that is the U.S. government's position. Brown clarified DOL's authority:
As I pointed out numerous times, no state has authority over the foreign workforce, which is linked to federal immigration.
- The CNMI Department of Labor's role is now the same as any other state labor department, including enforcement of state minimum wage and enforcement of any contract they had approved.
- Training citizens and providing employment services to citizens.
Brown disagreed. From the Saipan Tribune:
Brown reiterated the federal government's position that the CNMI lost jurisdiction over any alien employment effective Nov 28, 2009.It's really a silly argument that the highest legal official of the CNMI makes. He claims that nonresidents and employers should continue to go to DOL for "issues related to the umbrella permit, so as not to jeopardize their status." As an attorney he must know that only ICE has the power to deport foreign nationals, and they are following the federal position which holds that the umbrella permits are recognized until November 27, 2011.
“You have to remember that umbrella permits basically didn't just provide authorization to work. They extended entry permits so, because labor and immigration has been so wrapped together in the CNMI, that seems to be the source of confusion,” she added.
Buckingham encouraged nonresidents and employers to still comply with the conditions of their umbrella permits and to proceed to the CNMI Department of Labor for issues related to the umbrella permit, so as not to jeopardize their status.
But Brown said after Nov. 28, 2009, it is up to the federal government to decide what benefits to grant people. “We've determined that those benefits include work authorization until Nov. 27, 2011,” she said.
Buckingham recognized that the removal of foreigners on the islands now solely rests on the U.S. Department of Homeland Security’s law enforcement unit, the Immigration and Customs Enforcement, or ICE.It was revealed by David Gulick that the final regulations on the transitional worker program would be released "this year." The sooner, the better. There will continue to be confusion until the CNMI stops their fight.
Even if the CNMI government revokes umbrella permits, their holders cannot be removed because ICE adheres to the federal government’s interpretation that they can legally stay on the islands until Nov. 27, 2011 unless they have been convicted of crimes.
“The umbrella permits provide unrestricted employment authorization in the CNMI,” said Gulick who has 31 years of experience in U.S. immigration matters.
Dr. Carlos S. Camacho, the CNMI's first governor recommends that the Fitial Administration work with the federal government. The Marianas Variety quotes the former leader:
Camacho said there is no use fighting federalization at this point but there is still always time to have productive talks with the U.S. authorities.Still Going To DOL
“I think the CNMI government and the people should cooperate with the feds. Take advantage of the time. Maintain continuous communication with the feds. The U.S. has its own laws. We have to understand that,” he said.
The former governor said there is still hope for the CNMI to get what it wants to help revive its tourism-based economy which is driven by a foreign-labor force.
Camacho said the focus now is to empower locals to be productive members of the CNMI’s economy.
The Marianas Variety reported that foreign workers are still reporting to DOL for such things as temporary work authorizations and transfers. One guest worker stated, "Let them throw their money away instead of listening to the federal officials."
Only hearing officers Barry Hirshbein and Jerry Cody are hearing cases. Deputy Secretary Kaipat defiantly maintains that DOL has the authority to oversee the foreign workforce until November 27, 2011, even though the federal government issued clear statements and Q & As to clarify that the DOL lost that authority last November.
There is no longer uncertainty regarding the umbrella permit.
The U.S. Department of Homeland Security has already explained where it stands regarding this document and because CNMI immigration is under federal control, DHS’ announcement is the only one that counts. All issues regarding the hiring of foreigners in the CNMI are now federal matters and only DHS can deport nonresidents.
The CNMI government, to be sure, can throw a hissy fit but it cannot enforce its labor and immigration rules that have been preempted by the relevant provisions of U.S. P.L 110-229 — the law of the land whose validity has been upheld by a federal court in D.C. The CNMI government, in other words, is now acting like a police officer wannabe without a badge, without a gun and without jurisdiction.
The Fitial administration, clearly, cannot move on. But it has to. It’s over. Its continued insistence on an authority it no longer has and cannot enforce is bad for business, literally. It is affecting the operations of companies that are struggling in this horrible economy. Indeed, employers of guest workers fear that they may be harassed by the CNMI government if they ignore its whining.