July 1, 2010

The latest ridiculous CNMI Department of Labor scheme is truly an act of desperation. The service provider permit scheme devised by the CNMI Department of Labor appears to be another attempt to fill those empty CNMI coffers at the expense of the poor foreign workers.

All foreign workers who have a valid umbrella permit can legally work in the CNMI until November 27, 2011 for as many employers as they want without having to get further permits from the CNMI DOL, without paying extra fees, and without having to give up rights. That is a fact that I confirmed with a federal official.

Still the CNMI DOL is trying to squeeze the foreign workers once again.  Some have reported that the CNMI DOL is requesting foreign workers to turn over their valid umbrella permits and pay huge fees to get this unrecognized and unnecessary permit!

Some of the highlights of the service provider permit include this introduction:
Service provider employment. A foreign national worker who is currently eligible to work in the Commonwealth and who has been employed successfully in the Commonwealth for ten years or longer may become a service provider and sell his or her services, but not any kind of goods or products or the services of others, upon approval by the Secretary and in compliance with the equivalent of Section 40.2‐425 (self‐paid bonding), Section 40.2‐430 (financial capability), Section 40.2‐465 (self‐paid medical expenses), Section 40.2‐495 (self‐paid repatriation) and Section 70.4(c) (self‐paid Commonwealth fee). A
service provider must be in good standing with respect to payment of all taxes and charges of the Commonwealth Health Center.
Why would any worker who can already work legally for multiple employers pay for an unneeded permit and request the permission of the Secretary of Labor to work in the CNMI?

Time conditions from the application:
ELIGIBILITY: I am currently eligible to work in the Commonwealth and I have been employed successfully in the Commonwealth for ten years or longer.
The federal government makes no such time requirement. There is no federally-imposed condition as to length of time that a foreign worker has to be in the CNMI to work as long as that person has a valid umbrella permit.

Bond condition from the application:
BOND: I understand and acknowledge that I am responsible for my own medical expenses and repatriation expenses. I have provided a bond, cash deposit, insurance contract, or guarantee of a financially responsible person for $3,000 in the event I incur medical expenses and for all expenses associated with repatriation.
The last employer of record is responsible for medical expenses and for repatriation.

Fee requirement from application:
FEE: If my request for a service provider permit is approved, I understand and acknowledge that I will be required to pay a fee of $300 (for one year) or $600 (for two years) and provide the receipt in order to obtain my service provider identification card.
A service provider permit is not recognized by the federal government; only an umbrella permit or federally issued permits such as parole in place are. Why on earth would any foreign worker pay a fee when they can work legally in the CNMI for multiple employers without paying for a useless permit? It would make far more sense to save this money.

Waiver requirement:
WAIVER: I hereby waive, fully and completely, any rights to confidentiality concerning records with respect to my employment in the possession, custody, or control of any agency of the federal, state, or Commonwealth government. Such records may be made available to the Department of Labor, upon request, for purposes of administering the Commonwealth labor laws.
Why would any person waive these rights for a permit that is not federally recognized or needed to work legally in the CNMI?

Consent requirement:
CONSENT: I hereby consent, fully and completely, to any administrative inspection by the Department of employment records and worksites of my service provider activities in accordance with requirements for employers under the Employment Rules and Regulations published by the Department of Labor. I agree to maintain complete employment records and documentation, in English, with respect to service provider assignments during and for a period of two years after the employment, and agree to report to the Department in writing all incidents involving injury during work assignments.
Why would anyone consent to this!?

Certification requirement:
CERTIFICATION: I make the following certifications as of the date subscribed below:
a) I am in full compliance with all applicable Commonwealth statutory and regulatory
requirements with respect to taxation.
b) I have no outstanding bills from the Commonwealth Health Center (other than
those for which a previous employer is responsible).
Actually, the umbrella permit holder does not need to consent to this to work legally in the CNMI.

I am sending this application to federal agencies to get their take.  I will comment here when I get a response.

In the meantime, if you are a foreign worker,  please consult the federal labor ombudsman before  applying for this permit.  It appears to be totally unnecessary and only devised to steal more money from innocent foreign workers. Disgusting!

Where are you U.S. Department of Justice?!

Disclaimer: This is not a legal blog. 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.


Anonymous said...

These bogus conditions will be clearly rejected as soon as the DHS USCIS CW regulations are issued and become final.

Anonymous said...

These should be rejected NOW - the USCIS CW regulations do not need to be issued and finalized to realize this preempts federal law!

Anonymous said...

Foreign workers do not need this nonsense. If you attended the forum at the ampark on June 26, 2010. The speaker clearly stated that foreign workers are free agents, which means that we can work for any employer(s) with just our Umbrella permit (with the following requirement: issued before Nov.28,2009; with a picture in it and expiry date of Nov. 2011). However, if an foreign worker falls under any of the following:

1. No umbrella permit.
2. Umbrella permit was revoked, replaced, renewed by the CNMI DOL.
3. No picture in the umbrella permit.
4. Umbrella permit was lost.

...then you better visit the ombudsman's office for assistance.

Wendy said...

Thank you for your comment anonymous 3:29

Anonymous said...

Anonymous 3:29 AM,

Now we see where this "legal advice" of glueing photographs onto umbrella permits (!) has its origins. Thank you, Pamela S. Brown, for standing up to legal malpractice.

Again, no matter what any federal employee "says" or what any attorney, worker, or blog commenter "realizes", the sad fact is that the CNMI has indeed been given limited residual authority over immigration by Public Law 110-229 for the first two years of the Transition Program to the extent that the valid CNMI immigration status is conditional.

The only legal way to stop this nonsense for once and for all is for DHS USCIS to issue CW regulations rejecting the CNMI shenanigans.

Then all these CNMI conditions will have been pre-empted.

Until DHS USCIS does its job, the CNMI authority is not yet pre-empted. This is made abundantly clear by the Consolidated Natural Resources Act, Pub. L. 110-229, CNRA, § 702(a), ’6(e)’, 122 Stat. 754, 858-60, codified at 48 U.S.C. § 1806(e).

Get on the ball, DHS!


HHmmm another way to have a milking cow by the CNMI DOL.

Anonymous said...

6:45 The regs don't have anything to do with PL 17-1. The law is unconstitutional on its face, and promulgation of the regs is not necessary to show that the feds have 'occupied the field' of immigration law.

Anonymous 6:45 AM said...

Since January 9, 1978 the CNMI entry permits have been issued subject to ongoing, changeable conditions, and Public Law 110-229 recognizes that. CNMI Public Law 17-1 is simply one in a long line of unwise or alien-burdensome policy decisions that has resulted in the approaching absolute loss of immigration control two years after the Transition Program Effective Date (Nov. 28, 2009 plus two years equals Nov. 28, 2011).

DHS USCIS has not yet pre-empted N.M.I. Pub. L. 17-1 through its regulations, and the CNRA does not until November 28, 2011. If you think otherwise, please cite to us the section of the CNRA that says so.

I have already linked to the portion of the law showing the continued vitality of conditional CNMI entry permits during these two years.

Anonymous said...

CNMI control over the alien workforce is preempted.

Anonymous said...

CNMI control over the alien workforce through modification of conditions in umbrella permits issued prior to the Transition Program Effective Date is not preempted unless DHS takes some regulatory or other legally binding action in writing to do so.

Anonymous said...

PL 17-1 was passed after the CNRA became law. It is a preemptive law. The court will decide.

Anonymous said...

When USCIS issues its CW regs, pre-emption will be in black and white (not implied, or subject to residual CNMI authority), and N.M.I. Pub. L. 17-1 will become moot.

Anonymous said...

DHS doesn't need to do anything, or issue any regulations. The CNMI lost any power to affect umbrella permits on the transition period effective date. CNMI can no longer revoke those permits or modify the conditions of issuance, and certainly cannot issue any more or reissue existing ones. An alien can freely decline to listen to DOL's pronouncements because DOL has no legal authority to order the worker to leave. The law that gave the CNMI that power was superseded by the CNRA. Those who are tempted to follow Howie and Deanne down the rabbit hole of their illogic would do well to recall Stevie Wonder: "When you believe in things you don't understand, you suffer . . ."

Anonymous said...

Are you of the school that if something is repeated often enough people will believe it to be true?

The CNRA clearly gave validity to CNMI entry permits through 28 November 2011. Those permits have always been subject to conditions, including after-imposed conditions.

Yes, we all agree that the CNMI cannot deport out-of-status individuals. That falls to DHS ICE.

But unless explicitly pre-empted, which it has not been by the CNRA, the CNMI retains authority to modify the conditions of its permits.

Whether such modification includes issuance of replacement permits (for no more than the current duration) may ultimately have to be decided by a court -- if USCIS doesn't get off the dime and issue pre-emptive regulations -- but that would certainly seem a reasonable reading of CNRA Section 702(a), "Section 6(e)".

The CNRA does not remove the power to modify conditions. It does not say that, and that has always been part of the authority that the CNRA continued in effect.

You seem to be the one talking about things you don't fully understand. That is why USDOJ has not filed any sort of lawsuit against the CNMI enjoining their ongoing efforts, because there is no valid legal basis for doing so.

What needs to be done is for USCIS to issue its CW visa regs, and in so doing to rein in the CNMI Department of Labor to whatever extent USCIS deems appropriate.

Then and only then will the CNMI modifications of currently valid permits be pre-empted.

Anonymous said...

There will be a valid basis for doing so as soon as DOL tries to fine or imprison any employer or alien for not complying with its patently unconstitutional "law.". And you are wrong. The CNRA does not recognize CNMI permits as valid before or after the transition period effective date. It does grant valid work status to those who were in the CNMI legally on that date, and specifies that aliens may not be removed solely because they are within the U.S. without having gone through a valid port of entry. Nowhere does it say that CNMI permits--umbrella or otherwise--remain valid, confer status, may be revoked or modified, etc. Nor does it say that until November of 2011 the CNMI can charge aliens for any aspect of their employment authorization, since that is now strictly a federal matter.

Your saying "the CNRA does not remove the power to modify conditions" ignores the simple pronouncement of the new federal law that on the TPED, all CNMI laws dealing with entry and exit of aliens--and that certainly includes bogus new permits and fees charged to confer work status the CNMI no longer controls--are superseded. Of course the CNRA doesn't say anything about removing the power to modify permits; it doesn't have to, since those permits are no longer worth the paper they were printed on.

As to DOJ's reasons for doing or not doing anything, I sincerely doubt you have any basis beyond wishful thinking for your opinion. And it is you, not I, who keeps repeating the Big Lie that CNMI's control over alien workers is still extant until regulations are promulgated. The CNRA does that already. Regulations only clarify existing intent as embodied in statute. The CNMI no longer has any control over alien workers. Period.