More Undermining of Federal Authority




















March 15, 2010

Once again the top CNMI officials have come out to defiantly challenge the federal government's statement on foreign national status, umbrella permits and limitations of the CNMI DOL. You can read all of the latest drama in the Saipan Tribune. Fitial claims that the "employment of aliens in the CNMI under the CNRA is a shared responsibility of the federal and CNMI governments." The Q&As issued by the Office of the Governor can be read here.

The administration's interpretation clearly supports maintaining DOL's power to continue to rake in revenue on the backs of the guest workers and their employers. For example, they claim that the two dates on the umbrella permit are important and that they maintain the power to revoke the permits. even though the federal government stated that they can not be revoked and informed workers that they need not report to DOL to pay more fees for a renewal of the permit and to get their approval to remain in the CNMI.

The CNMI does not have the power to revoke a person's permit or status. That is an immigration duty and falls under federal control. No state has this power either.

Here are a couple of the governor's questions and answers:

Q. My umbrella permit does not have a photograph? What should I do?

A. Your umbrella permit has already been revoked. You were required to appear prior to Jan. 15, 2010 to obtain a new permit with a photograph, and you did not do so. No employer may accept an umbrella permit without a photograph.

Q. My umbrella permit has been lost, stolen, or damaged. What should I do?

A. Because of the confusion surrounding the present situation, the Department of Labor will not issue any replacement permits. Every holder of an umbrella permit who signed for the permit was warned to keep the permit in a safe place. The department will verify, to an employer who is complying with Commonwealth law, that a permit was issued and remains valid.
Can you get any snarkier than that? Certainly the federal government will have to deal with their obstinate and childish reaction. Hopefully, the Fitial Administration's decision to retaliate against the guest workers and to defy the federal government's position will help us to get the DHS to grant parole to the foreign national workers so the matter of umbrella permits will be moot.

This tennis match between the CNMI and federal governments needs to end. The foreign national workers do not deserve to be used as pawns in the CNMI’s battle over federalization.

Using fear, threats, and intimidation to control the foreign contract workers in getting old fast.

All foreign workers should contact the Federal Ombudsman's Office with any questions or for assistance in labor-related matters. No foreign contract worker needs to go to DOL unless they need a replacement umbrella permit.

I spoke to someone who helped to pen the CNRA today. He stated that the local DOL no longer maintains control over immigration issues. This fact is very clear.

From the opinion of U.S. District Court Judge Paul Friedman issued November 25, 2009:
Specifically, the CNRA provides that federal immigration law shall
apply in the CNMI beginning on the “transition program effective date” (November 28, 2009), id. sec. 702(a), § 6(a)(1), and that federal law, including the CNRA’s transitional provisions, shall at that time “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.” Id. sec. 702(a)
The judge further stated (emphasis added):
Second, plaintiff is just plain wrong when it asserts that nothing in federal immigration and naturalization law permits an “employer-by-employer, worker-by-worker local labor permitting scheme.” Mot. Dismiss Opp. at 30. As defendants point out with ample support, see Mot. Dismiss Reply at 19-20; see also Tr. at 47-48, precisely such schemes are at the heart of federal immigration law. See, e.g., 8 U.S.C. § 1153(b) (explaining how employment-based visas are to be allocated); 8 U.S.C. § 1184(c) (providing that “[t]he question of importing any alien as a nonimmigrant worker under [certain sections] of this title in any specific case . . . shall be determined by the Attorney General . . . upon petition of the importing employer ”). Finally, and for similar reasons, the fact that the application of federal immigration laws to the CNMI through the CNRA may have a dramatic impact upon the CNMI’s labor force does not convert an immigration law into a labor law. It has long been recognized that immigration laws necessarily have a significant impact on labor markets and practices. See, e.g., INS v. Nat'l Center for Immigrants' Rights, Inc., 502 U.S. 183, 195 (1991) (“[A] primary purpose in restricting immigration is to preserve jobs for American workers.”); De Jesus Ramirez v. Reich, 156 F.3d 1273, 1274-75; (D.C. Cir. 1998) (discussing relationship between employment market and administration of immigration). There is thus no question that the relevant portions of the CNRA are immigration laws explicitly authorized by the Covenant.

Expect a return volley by the federal government in reaction to the governor's Q &As.

Meanwhile the Variety reported that the Society for Human Resource Management will host a luncheon on March 18, 2010 with guest speakers Federal Labor Ombudsman Pamela Brown, CNMI Attorney General Edward Buckingham and David Gulick, district director of the USCIS. The paper states, "The guests will explain their rationale for their perspectives regarding umbrella permit and possible consequences for individuals that do not follow their recommendations."

So if you want to watch the debate instead of reading about it, I guess you could pay $20 if you are a SHRM member and $30 if you are a nonmember.

Kara and Mailman also had a column on the debate, which you can read here.

Again, if you are a foreign national worker and have and concerns or questions please go to the Federal Labor Ombudsman's Office. The ombudsman is an attorney and the service is provided free of charge.

Update: Here is the AG Opinion by AG Edward Buckingham, which is located after the Q&A by the Governor's Office. Here is the Q&A by the USCIS that I published on March 12, 2010.

25 comments:

Anonymous said...

Love the graphic! I would add to "using fear, threats, and intimidation" creating doubt, muddying the waters, and causing division. These guys are going to push the envelope until the feds get fed up and take some serious action. Maybe parole would the right move.

Anonymous said...

The arguments Buckingham lays out were the same ones argued in the federalization case. The arguments were shot down in Washington DC District Court and they will be shot down again. Such a waste of time, resources and energy.

Anonymous said...

I wish the feds would sue the CNMI government already. Maybe Friedman could issue an injunction to the CNMI to stop its nonsense.

Anonymous said...

and a waste of taxpayers money!

Anonymous said...

"Your umbrella permit has already been revoked." But the federal government doesn't care what you guys says. Whether you say it's revoke or not, feds say it's not revoke so who cares.

Anonymous said...

Thank goodness for Pamela S. Brown!

Have you seen a copy of yesterday's AG opinion?

Jane said...

Anon, 9:27 AM--The problem is that those umbrella permits without photos are not being recognized by the USCIS and now the CNMI says they won't issue corrected umbrella permits for these people. For these people, I feel very sorry. They are really caught in the power struggle.

Everyone else should be holding on to their umbrella permits at all times. Get a protective plastic sleeve for it. This is an important document.

For employers, you have my sympathy. I tend to agree with Maya's analysis. I'd be more afraid of the feds and not complying with their rules than with the CNMI. But being the test case could be expensive.

Jane said...

Wendy,
Do you have the Ides of March CNMI AG opinion?

Melberlin said...

"Q. My umbrella permit has been lost, stolen, or damaged. What should I do? A. Because of the confusion surrounding the present situation, the Department of Labor will not issue any replacement permits. Every holder of an umbrella permit who signed for the permit was warned to keep the permit in a safe place. The department will verify, to an employer who is complying with Commonwealth law, that a permit was issued and remains valid."

What if I lost to a thief who broke in to my house or what if it damages or lost due to fire that are beyond our control? Why punish again the victim? Victims of these circumstances should be helped.

Every documents from passport to driving license (everything I believed) are being replaced when lost, stolen or damaged; why this umbrella permit singled out and not be replaced?

Anonymous said...

I believe this has to end,,and the only solution is to give us all the necessary status similar to Guam Organic Act,,also can they include the CNMI HUman Resources Act of 1977,,so we can go down to do sustainable micro-enterprise,there are several other international funding to seek help,,who cares about the local support?We can find ways ,,,,,Were not guinea pigs!!!God bless Ms. Pamela Brown and Ms, Wendy,,truly you are the American Gabrielas!

Captain said...

I see the "Perfect Storm" is on the Horizon.

Anonymous said...

This is a stupid controversy, just like the federalization lawsuit. The outcome is a foregone conclusion, and only the twits who advise the Guv say anything to the contrary.

The CNMI is allowed to pass and enforce labor laws of general application, e.g., all employees must be over 16; all employees must be paid every two weeks; all employees must be covered by workers compensation, etc. But laws requiring only alien workers to hold ID cards, register, maintain steady employment, etc., have been preempted by the federal law. It's just that simple.

The Guv's volunteer attorneys have gone beyond simply giving bad legal advice. They are now counseling government officials to engage in acts that will likely result in lawsuits in federal court for civil rights violations, and financial ruin for the officials. They are also attempting to strong arm employers into jumping into the chasm with them in the name of anti-federalization, indigenous rights, or who has the bigger you-know-what.

If I was Gil San Nicolas, Cinta Kaipat, a DOL investigator or hearing officer, or anyone else responsible for implementing or enforcing these new "policies" or laws, I would consult a good attorney. Former DOLI Secretary Mark Zachares learned the hard way that you can be held liable for enforcing Commonwealth laws that you should have known were unconstitutional. "I was only following orders" is what someone says as they pull the noose tight around his neck.

Anonymous said...

Wow. Unimpressive graphic and disrespectful. Take the high road and don't devolve into this Administration's gutter politics.

Keep everyone focused, as you usually do, and let the emotions stay on the side. I don't like the images, but I love the content of this post.

Saipan Writer said...

It might be that the CNMI's terrible treatment of aliens now will prompt the US Congress to take action that has been languishing--grant status. That would be wonderful.

Wendy said...

Anonymous 6:28 Did you see the Wizard of Oz? It's about a powerless man tricking people into thinking he was the "all powerful Oz." This is very similar to what is happening in the CNMI. Leaders who lack power are using scare tactics, intimidation and threats to maintain their power. There is nothing "gutter" about the graphic, but a lot of deceit and trickery in the Fitial Administration.

Wendy said...

Anonymous 6:28

What's disrespectful? Take a look at their Q&A to find an example:

"Q. My umbrella permit has been lost, stolen, or damaged. What should I do?

A. Because of the confusion surrounding the present situation, the Department of Labor will not issue any replacement permits. Every holder of an umbrella permit who signed for the permit was warned to keep the permit in a safe place. The department will verify, to an employer who is complying with Commonwealth law, that a permit was issued and remains valid."

How petty, childish, and disrespectful to the guest workers. It is retaliation. It's typical of this administration and very disrespectful.

Wendy said...

Please read the excellent post by attorney Jane Mack at the Day in Court site: The Power Struggle Over Alien Labor

Appreciation said...

The graphic perfectly depicts the current situation and there is nothing disrespectful about it.

Anonymous 6:28 and thousands of others get to read this blog every day for free. Wendy spends her time to get out news that primarily impacts the lives and well-being of foreign nationals, but also keeps others up-to-date. Many times she has posted news before the CNMI media outlets have. What a service! The resources are invaluable. She pays for the court documents that she puts up on this site as links. So a big thumbs down to you anonymous 6:28, and a huge thank you to you, Wendy!

Islander said...

I'm getting fed up with the local govt. There is just too much confusions and bitter times, is there any petitions for recall?

Anonymous said...

This is funny...

Q. My umbrella permit has been lost, stolen, or damaged. What should I do?

A. Because of the confusion surrounding the present situation, the Department of Labor will not issue any replacement permits. Every holder of an umbrella permit who signed for the permit was warned to keep the permit in a safe place. The department will verify, to an employer who is complying with Commonwealth law, that a permit was issued and remains valid.

Who ever wrote this "rule" should start taking a Neuro-Psycho Test or probably consult a Pshycologist. This is an act of a desperate, childish, absurd person who should belong to a lunatic asylum.

Anonymous said...

aren't they all need it? (psycho test)

malou berueco said...

what's funnier is that, they're the one who seems to be more confused!

Anonymous said...

If I lost my Green card & US passport it will be replaced, Umbrella can't be replaced?? Is this for real??

Anonymous said...

Kaipat,Fitial & the AG's never actually give useful info. Just a bunch of dorks spewing worthless garbage.

Tom Cruz

malou berueco said...

tom cruz: that was exactly happened with the forum earlier!...