More Jive

June 10, 2010

Cinta Kaipat's letter to the editor, Correction in report about new labor regs, is another attempts to defend PL 17-1, the law that appears to preempt federal authority and deny foreigners in the CNMI of their civil rights.

Kaipat wrote:
Registration. There is nothing new about alien registration in the Commonwealth. Annual registration has been required since the first alien workers came to the Commonwealth in the mid-1980s. The new regulations only shift this responsibility from the old Immigration Division to the Labor Department because the Attorney General has deleted the old immigration regulations under which annual registration was accomplished. The procedural registration provisions remain the same; the office implementing them has changed
Actually, there is something new. PL 110-229 went into effect in November 2009 releasing the CNMI government of their authority over immigration matters. "Shifting responsibility" from the Immigration Division to The Department of Labor, and relabeling "immigration regulations" to declare that they are now "labor regulations" is just another attempt to overstep authority and maintain the broken local system. You can change the name of an apple and call it a peach, but it will still be an apple.

Foreign workers and nonresidents do not need to register with the CNMI Department of Labor according to federal officials. The federal ombudsman, Pamela Brown wrote:
Any alien that is concerned about his/her status should call my office for assistance. Aliens with umbrella permits must understand that they cannot give it up for any reason. The Federal government will not recognize any permit issued by the CNMI to any alien after November 27, 2009.

The Federal government will recognize all CNMI permits, umbrella or otherwise, that were issued before November 27, 2009. Renewal of your entry permit may require that you give up your umbrella permit, if you have one. I highly recommend that you not give up your original since that is what provides you the authorization to remain and work in the CNMI until November 27, 2011, the date of its expiration.
Again, any questions on "registration" or "renewal" should be directed to the Federal Ombudsman.

Kaipat defended DOL's fees. There is no need for foreign workers to register and pay a fee according to federal officials who stated that umbrella permits were recognized as valid permits until November 2011 and did not require "renewal."

Regarding workforce participation, Kaipat said:
The regulations provide that: “In the workforce of any employer, the percentage of citizens, U.S. permanent residents, and CNMI permanent residents and the immediate relatives of citizens, U.S. permanent residents, and CNMI permanent residents (“status-qualified participants”) employed shall equal or exceed the percentage of status-qualified participants in the private-sector workforce unless attainment of this goal is not feasible within the current calendar year after all reasonable efforts have been made by the employer.”

What this means is that if citizens, U.S. permanent residents, CNMI permanent residents, and their immediate relatives comprise 40 percent of the private-sector workforce, then the benchmark for every private-sector employer is 40 percent. The private-sector workforce is comprised of persons who are employed and persons who are seeking employment. We use the same definitions as the U.S. Department of Labor.
Officials and attorneys have challenged Kaipat's logic regarding PL 17-1. Attorney Jane Mack, from Mironesian Legal Services wrote an excellent post, The Local Preference in Hiring. From her MLSC A Day in Court blog:
When the CNMI controlled its own immigration, it could set terms and conditions for employment of foreign workers; and by extension, it could set terms and conditions for quotas of local/resident work force before employers could utilize alien labor. But the CNMI no longer has that authority. U.S. law governs not only entry and exit of aliens, but also their employment.

Judge Friedman, in the case brought by the CNMI to challenge federalization of immigration, CNMI v. U.S., #08-1572 (U.S. Dist. Court, D.C., 11/25/2009)said:
“[P]laintiff (CNMI) 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.” ... As defendants point out with ample support... precisely such schemes are at the heart of federal immigration law. ... Finally, and for similar reasons, the fact that the application of federal immigration laws to the CNMI through the CNRA (P.L. 110-229) 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 the immigration laws necessarily have a significant impact on labor markets and practices.... There is thus no question that the relevant portions of the CNRA are immigration laws explicitly authorized by the Covenant.”
It is clear that the CNMI lost control of immigration, and with that, control of alien labor to the extent it is any different than local labor. The CNMI cannot now set conditions on hiring foreign workers or establish preferences for hiring local labor, with the exception of bona fide requirements. The present CNMI quota law embodies preferences that now create unlawful discrimination.
Disclaimer: This is not a legal blog. No opinion or statement should be perceived as legal advice. All posts are the opinion of the author or contributors who are expressing their First Amendment Rights.


Captain said...

unfortunately, until the Feds set out a set of regs, this type of systematic "extortion" will continue.
Not unlike this Gov's "fuel crisis" so he can "reprogram" funds for his own personal agenda.
As this was taken away from him, now he needs (again) to create crisis to be able to pay for his political "obligations"
He used the CUC before to get him re-elected by having the power "stabilized" prior to the re-election bid.
Now he uses a created "crisis" to enable him to control funds that he was, by law unable to control without the vote from (useless) senate.
When are the people going to start "demonstrating" about a real problem here.
The problem here is the suppressed wages in the private sector,the uneducated "indigenous" that think the contract workers will "upset" the balance in the islands.
Unfortunately many cannot see the forest from the trees.
Or unable to comprehend the "real world" along with the economic factor in regard to the "consumer base".
Yes,let all of the CW people go home and leave this "less than third world country" to the indigenous. (most that are outspoken about it would not really qualify as indigenous in reality)
A 50% in consumer patronage, in everything would result in a big problem that would affect prices, big time.
This would affect CUC on down the lines.
As the major outbound exodus of "local" families since this "clown" and the recycled has "beens, and wanna bees" were re-elected, have been affecting the whole economy with major price increases.
As the outbound trend continue the spireling down trend will continue.
Until the Govt. starts to "downsize" only more problems will "show it's head" (unfortunately, this is reality)

Anonymous said...

Yet we are still discriminated when applying for job..Some establishment would blatantly tell us thyre hiring locals only,,We hope that our condition here be prioritized and give us what we deserved ..conferred citizenship anytime soom.. We too are human being needing to earn to supply the needs of our families here and back home,,

the teacher said...

Noni above: Your comments above hurt your own case. It is not legal to advertise "locals" only as a hiring practice but it is legal to have a company hiring policy or criteria of being US citizens or permanent residents.

This statement is even more ignorant:
"We hope that our condition here be prioritized and give us what we deserved ..conferred citizenship anytime soom.."
I can tell you how prioritized the NMI recommendations are, as the US Congress is more interested in the "anchor baby bill", which seems absurd, but is claiming 56% support, and 76% among republicans. As for disserved, I would guess some yes, and some certainly not, but I would be real careful throwing around the terms disserved, entitled, and earned unless your name is chiseled on granite at AMP. As for supplying the needs of families back home, your comment is strong reason for the US & CNMI to block citizenship.

Your silence will strengthen your case.

Anonymous said...

A lot of indigenous likewise claim that there is discrimination against them in favor of guest workers.

I have no doubt that there is discrimination against most or all ethnicities in the CNMI by some employer or other.

But as Pamela S. Brown and Jane E. Mack have correctly pointed out -- except to the extent the CNRA gives the CNMI some residuary control over foreign national workers until November 28, 2011 (especially in the absence of any USCIS regulations) -- it is flat-out illegal and a violation of Title VII, capable of redress in federal court, to discriminate on the basis of alienage or national origin.

All one needs is written federal authorization to work, and to fill out a Form I-9.

Some employers are going to have big-time problems if they don't accept written federal authorization and a filled-out Form I-9 as sufficient predicates to choose employees solely on merit based on bona fide occupational qualifications.

I can hardly wait to see who will be the first bone-headed employer to be dragged into federal court! I do hope Jane E. Mack or another workers' lawyer gains a great victory.

It probably won't happen, though, until USCIS publishes its regs for the CW visa.

A big legal question is whether or not a CNMI Umbrella Permit constitutes a valid “written federal authorization to work”. If Ombudsman Pamela S. Brown says it does, then that is likely what the USCIS regs will indeed eventually provide.

In that case, the advice of Pamela S. Brown is even more urgent -- don't give up physical possession of your Umbrella Permit! Or you could be very deeply out of luck.

Anonymous said...

To the Teacher,

Noni 1:52 above is indeed anonymous! I don't think he/she belongs to CWs, he belongs to the hate group, twisting and testing the water.

Anonymous said...

Activists and others: would be great to see a storm of EOE actions against blatant discriminatory hiring here. This includes not just the old-boy network "Chamorros only" places but all the employment ads that say stuff like "want to hire Filipina lady 25-35."

One by one, hit the government depts with EOE actions.


noni 1:52 You'r kind of a trojan horse hiding on a belly of haters.

Anonymous said...

A vast majority of the discriminatory hiring is done not by the CNMI government but by private employers.

As for not giving up physical possession of one's Umbrella Permit, perhaps a work-around would be to get several certified copies made, having each notarized as a true and correct copy of the original.

But is it true that the CNMI Department of Labor is demanding surrender of original Umbrella Permits as a condition of contract renewal?

If so, there are two possible responses. (1) Ignore their game and play solely with the feds.

(2) If the employer doesn't want to risk future problems with the CNMI government and insists on still going through CNMI Labor, and you really, really want to keep your job with that employer, be sure to have those certified copies made, duly notarized before surrendering those original Umbrella Permits to CNMI Labor.

Look at the long, term big picture, which is a federal CW visa (assuming the status change proposals take longer than some are hoping for).