USDOJ Attempts to Defend CNMI Guest Worker Program

November 21, 2011

I am somewhat surprised by the weak response from the U.S. Department of Justice in the lawsuit requesting an injunction to stop the implementation of the CNMI-only guest worker program. It is obvious that the long-delayed program is a total mess.  Perhaps the USDOJ has no choice but to defend it, but still, defending this program as it exists now is a task I would not want to undertake.

When the clock strikes twelve on the night November 28th it will not just be the foreign workers who will be profoundly harmed. It will also be the CNMI employers and everyone who calls the CNMI their home.

The CNMI and the U.S. governments have failed the foreign workers, the de facto citizens who contributed years and decades to a mostly ungrateful and unappreciative island nation and an uncaring U.S. government. The lawsuit by Governor Fitial caused delay, and then the DHS delayed releasing the final rule until just months before it is to go into effect resulting in uncertainty, confusion and desperation. The U.S. Congress ignored the April 2010 DOI Report, failing to introduce legislation that would provide an acceptable status (one that exists under the INA) for all legal, long-term foreign workers. The Departments of Interior, DHS, Labor and Justice failed in their responsibility to coordinate efforts to oversee a just and democratic program that would benefit all of the residents of the CNMI.  All of these failures to act; all of the unacceptable delays, excuses, and attempts to maintain the status quo have resulted in chaos and suffering. There now exists a humanitarian crisis in the CNMI that most elected officials are ignoring, denying or dismissing.

How is this federal program any better than the old corrupt CNMI system? Scams and cheating of workers have escalated without federal intervention. (Unless one calls federal officials saying, "Don't do that" intervention.) The system that maintained the oppressive two-tiered society of the haves and have nots still exists under the federal program. The idea that guest workers should be treated as less than human, as replaceable commodities still exists. The injustices continue and will continue because the program is flawed.

Any guest worker program that has a revolving turnstile where foreign workers can enter, be abused, be denied justice, be sent home, and new ones come in to repeat the cycle is inhumane and un-American. A just guest worker programs requires that foreign workers are viewed as future citizens. A just guest worker program ensures that the foreign workers are paid what is owed them.

In the most recent case against the program, the defendants filing of a Declaration by Corinna A. Luna, USCIS Branch Chief of the Business and Employment Services Branch for the Service Center Operations Directorate proves that the federal CW Program is, at this point, a major failure. It states that as of November 17, 2011 a mere 1,154 foreign workers have been petitioned for CW visas by their employers. USCIS has received only 616 Form I-129CW petitions for foreign workers from only 172 CNMI employers.  With the most recent estimate that there are 16,000 legal, long-term foreign workers in the CNMI, that would mean that less than 10% of the total legal foreign workers have been petitioned by their employers.

US DOJ Attorney Theodore Atkinson submitted this brief in response to the call for a declaratory injunction: