News for Foreign Workers

October 17, 2011


U.S. Citizenship and Immigration Services regional media manager Marie Therese Sebrechts told the Marianas Variety that foreign workers who are "out of status" on November 27, 2011 will be considered to be in the United States unlawfully. She said that those who have no pending application for a CW visa or family based application (I assume she means application for a green card filed by a spouse or child over the age of 21)"would build on unlawful presence."

By law, aliens who are considered unlawful will not be permitted back in the United States for a stated period of time. If a person is present unlawfully for 180 days, but less than a year, then he/she cannot return to the U.S. for three years. If a person stays for more than a year illegally than he/she will be barred for ten years.

Ms. Sebrechts was quoted by the Variety as saying:
“I cannot tell people what to do with their lives. USCIS has done everything possible in the past three years to provide information to help people make decisions and plans, and to provide options that gave them time to make decisions long before end of the two-year period after which their ‘grandfathered’ permits from the CNMI would expire,” Sebrechts said.

“Someone must have some type of status to remain lawfully present in the CNMI. USCIS does not grant parole based upon someone being unemployed,” Sebrechts went on to say.
I would like to know what the U.S. government is going to do in the following cases:

  • A foreign worker has a documented unpaid judgment against his/her employer and the case has been filed with the CNMI or U.S. Department of Labor to recover the back wages and/or illegal deductions that are owed. The United States government  is aware of this situation since the persistent violation of wage theft has been brought to the attention of U.S. Congress and U.S. departments and agencies through letters, reports, statements and testimony of DOI personnel and individuals over the last five years. Both the CNMI and the U.S. governments have failed to routinely prosecute abusers or assist victims in collecting their wages.  Many are now unemployed, but even the foreign worker who earns $5.05 an hour and averages 32 hours a week makes about $8,400 a year before taxes and live well below the poverty level. Such foreign workers cannot afford to walk away from a $5,000 - $20,000 judgment so they have been hanging on in the CNMI hoping for improved status or that someone will take their labor case pro bono. The result is that there are now hundreds of indigent foreign workers incapable of paying for airfare for themselves and their families. Who will pay? The employers, the bonding companies, the CNMI government, or the U.S. government?
  • A business has not paid their employees the wages that they are owed. The business, for example the Tinian Dynasty, is advertising for foreign workers. Will such a business that owes its current employees thousands, or even hundreds of thousands of dollars in back wages, be allowed to hire foreign workers under the CW Program? What if the business terminates the workers that are owed the wages with the intention of getting "new" foreign workers under the 22,417 cap? Will such a business be allowed to use this old trick routinely used under the dysfunctional CNMI system? 
  • During any time during the transition period will the cap of foreign workers that can be hired be reduced by the number of workers that exit? Or will the U.S. program mirror the CNMI's system that allowed the workers to be replaced after they were no longer wanted because they were owed wages, complained about abuse, became pregnant or other reasons that made them fall out of favor with employers.
  • Will foreign workers who have foreign-born children who have been enrolled in CNMI schools for most or all of their school years be allowed to apply for parole in place to be able to stay in the CNMI as the foreign workers with U.S. citizen children are allowed? 
I suggest that the USCIS require an exit survey from exiting workers as I have recommended in every report or testimony since 1992.  Included on the survey should be questions related to the employment experience and if any back wages are owed.

17 comments:

TAGLISH said...

And maybe we could provide USCIS a list of employers who has pending case of unpaid wages, abuse etc. who constantly violates the law. A list that they could refer to in reviewing CWs and H1B applications. I don't really know if this will work. I am just sickened by these employers who are really oppressive, heartless demons. We will be forever stocked in this mud if they will continue to stay and operate while the CWs who were abused and deprived are the ones leaving.

Anonymous said...

the u.s. government can get them a ticket back, when the government deports someone the governemnt is responsible to pay their way back. if the u.s. dol or eeoc is taking the case it is out of hawaii and the person is here. they can follow their case from the pi or china the same way. no status under fed law to stay and pursue a claim whether 5 yrs old or ten years old or one year old

Anonymous said...

The answer to your questions is easy: Nothing. DHS will do nothing. That is not their job nor their jurisdiction Wendy. They are here to enforce Federal Immigration law not go after employers who owe money. You and others have constantly misunderstood the purpose of the DHS and yes it has come back to bite you.

Wendy Doromal said...

Hello Taglish:

Ditto. I am sick of the abuses and sick of the turnstile in the guest worker program. The abuses will never stop until two things happen: 1. There are regular prosecutions of the employers and they are fined and/or sentenced to prison; and 2. The guest workers are regarded as future citizens and not as disposable and replaceable commodities. It doesn't matter what label is stuck on the guest worker program -local or federal. Both are deficient as long as cheated victims are forced out without justice and the wages that they are owed.

We could provide them a list and also copies of the unpaid judgments that were collected in 2008 and 2009. The Federal Ombudsman can turn those over.

Wendy Doromal said...

9:56 I did not ask what DHS will do, but I asked what the US government will do in certain situations. Maybe the answer is nothing, but it is our right to ask. Right? PL 110-229 charged the DOI, DOL, Justice, State and DHS to coordinate this program. Furthermore, U.S. agencies are also tasked in reporting to the Resources and Judiciary Committees on asylum so yes, the U.S. agencies and Congress, not just DHS should be coordinating in their efforts and administration of this program.

the teacher said...

This is a great post, no one wants cheated people turned over with new workers. USCIS couldn't be serious about allowing employers with outstanding judgements to petition CW workers.

Old judgements are unlikely to be collected though. Most anyone in business has receivables and old ones are tough to collect 10% on. For closed companies, bankrupt, and deceased persons, the case is hopeless and shouldn't be grounds to stay, but for non-payers still in business...go get'em and I hope DHS cleans up every scammer on this island, both the mighty and the weak.

Anonymous said...

U.S. to postpone deportation of illegal immigrants http://www.rawstory.com/rs/2011/08/18/u-s-to-postpone-deportation-of-illegal-immigrants-with-criminal-records/

Anonymous said...

U.S. to allow illegal immigrants to stay http://www.dailybreeze.com/news/ci_18717089?source=pkg

Wendy Doromal said...

3:34 and 4:00 Yes, that has been the message and then there are Cases like this one where a alien brought to the U.S. illegally as a child has been allowed to remain in the U.S. as was the case with a Bangladeshi college student in New York demonstrate leniency in the U.S.

I'll be watching this very closely. I predict a double standard for the U.S. and CNMI enforcement. As long as leaders cry that the "CNMI is special" then they will maintain too loud a local voice in the federal rules and policies. Both Fitial and Sablan are saying the same thing to the foreign workers with no U.S. spouses or children. "Go home." I don't remember any leaders, except former Rep. Tina Sablan, saying we must make sure the workers get their back wages before they leave. I could be wrong.

Wendy Doromal said...

9:53

You said, if the u.s. dol or eeoc is taking the case it is out of hawaii and the person is here. And that is one of the major problems. When asked what is happening to cases, the EEOC and/or DOL says that investigators are in Hawaii and or San Francisco. These agencies must be properly funded and staffed with people on the ground in the CNMI. Too often, by the time investigators get to a CNMI case the company is closed or the cheated workers gave up and are gone. Good deal for the employers and bad deal for the workers and the reputation of the U.S. The CNMI has probably the largest percentage of wage theft among workers in the U.S. per population. The U.S. tries to do everything on the cheap and this hasn't worked and never will.

Anonymous said...

Wendy

Which individuals recommended the prevailing wage be from $5.05 / hr to $100.00/hr for professionals?

Wendy Doromal said...

2:47 Maybe the Chamber knows -they were paid by DOI to oversee the wage survey...

[1 of 2] Green Cards for All! said...

(Sorry for the alarmist headline supplied by The Hill. In fact, there can be somewhat good news inferred from the quoted portion of the article, as explained below.)

Record deportations of illegal immigrants under President Obama

The U.S. deported more people — nearly 400,000 — who were in the country illegally in fiscal 2011 than ever before, according to the latest numbers released Tuesday by the Immigration and Customs Enforcement bureau.

Of the 396,906 people removed from the U.S., more than half of them — 216,698 —had been previously convicted of felony or misdemeanor crimes, according to the ICE numbers, which boast a 90 percent increase in the number of criminals deported over those in fiscal year 2008.

ICE Director John Morton attributed this jump to the agency’s newly revamped discretionary policy that allows agents to focus their resources on removing illegal immigrants they deem to be a more imposing threat to society over those who are in the country illegally but are not violating other laws.

"Smart and effective immigration enforcement relies on setting priorities for removal and executing on those priorities," Morton said in a statement.

“These year-end totals indicate that we are making progress, with more convicted criminals, recent border crossers, egregious immigration law violators and immigration fugitives being removed from the country than ever before,” he said.


* * * *

Jordy Yager, “Record deportations of illegal immigrants under Obama,” The Hill, Tuesday, October 18, 2011 (boldface emphasis added), available at http://thehill.com/homenews/administration/188241-ice-announces-record-breaking-deportations.

This statement by ICE Director John Morton suggests that beyond the convicted criminals already being targeted, in the CNMI the priorities of ICE DRO (Detention and Removal Operations) will be “recent border crossers [and] egregious immigration law violators.”

There are hundreds of out-of-status individuals in the CNMI who intentionally overstayed tourist visits and educational visas to work underground or in hope of obtaining some “magical” status change, including those out-of-status even from CNMI immigration control days. By competing without the normal overhead to which legitimate businesses are subject, these scofflaws hurt U.S. citizens and legal guest workers alike in their quest for employment.

The anticipated ICE DRO detention facility on Middle Road should be welcomed, not scorned, as part of the improvements that will arise from federalization. It is these bad actors who will be the first priority of enforcement efforts.

As for those who fall out of status due to non-employment, the biggest threat is not in a sweep of Garapan clubs and seedy employers, but in eventual denial of applications if there is overstaying “bad time” on one's record.

This is particularly important if the period of overstay is greater than 6 months or one year. In those cases, there would be a bar to re-entry of 3 years and 10 years, respectively. That is something to beware of, especially if one has a child who will turn 21 years old in less than that time.

[2 of 2] Green Cards for All! said...

It seems somewhat unlikely to me that USCIS would grant wholesale parole in place based on pending congressional legislation, since the eventuality is so uncertain.

I would say a better argument would be for a blanket 60 or 90 days based on the delay in issuing the CW regs. This is not open-ended, and does have strong factual justification in the form of employer uncertainty caused by the delay.

Why does USCIS get to delay as long as they want in promulgating statutorily mandated tasks, while the hard-working guest workers struggling in a devastated economy -- the CNMI is in a depresson, not merely a recession, based on the number of quarters of declining GDP -- get zero consideration for the direct consequences of DHS's failures?!

60 to 90 days is the least they can do!

I know Kilili wants parole-in-place for all his bill's expected beneficiaries, and you want it for everyone, but sometimes, for safety, it is good to suggest fall-back positions.

Imagine if the workers and CNMI government had united around the detested FAS status in the CNRA instead of advocates “going for broke” with Green Card demands.

Just a thought.

Hopefully USCIS reads this blog. Hi, Mr. Gulick! Regards to Katie Busenkell.

Anonymous said...

No Wendy,

Did the DOI or the Ombuds recommend that the prevailing wage be set from the insulting $5.05/hr to $100/hr for highly trained workers? Who made that decision and who's advice did they get it from?

Wendy Doromal said...

8:41 Obviously, I do not know the answer! Why are you asking ME? I am as surprised as everyone else is.

Anonymous said...

The reason we're asking is that there's something much more sinister and possibly illegal at work here. We are looking very closely at this issue. Why would the US DOL accept such a broad pay spectrum? Someone who has influence and some very close business interests has whispered sweet nothings into some Federal ears. This reminds us of the Ken Wright days at NMC when a certain someone simply whispered and twelve people got fired. We are investigating this and will release our findings to you.