CW Permits Shows Need for Foreign Workers

December 13, 2011

Advocates, officials, foreign workers and employers questioned how the transition to the CNMI guest worker program could possibly be implemented justly and smoothly when the final rule was not released until September and was set to go into effect only months later on November 28th. The delay has caused hardship and turmoil for the employees and their families who had to wait to see the final rule before deciding their future; for business owners who were hit with a ridiculously short period of time to learn the new requirements, advertise positions and submit applications to petition their foreign workers; and for the CNMI community at large which is economically dependent on foreign workers.

P.L. 110-299, the law that applied federal immigration to the CNMI, called for a report from the U.S. Department of the Interior to the U.S. Congress by May 2010 to recommend status for all of the foreign workers. Most expected that after the release of the report that the U.S. Congress would act, but it failed to immediately introduce comprehensive legislation in 2010. That is unfortunate because at that time (May 2010) comprehensive legislation that would grant permanent residency to all legal, long-term foreign workers actually had a good chance of passing according to staffers in both the Senate and House. (In fact, I have been told that legislation was proposed, but was withdrawn for political reasons.)

The delays and failures have resulted in uncertainty and hardship not just on the foreign employees, but also for businesses, which cannot operate to full capacity without all of their foreign employees. Foreign workers report that they are still waiting to see if their parole was granted, waiting to see if their applications for work visas was accepted and waiting for EADs to be processed in order to legally work. Different responses from USCIS personnel have confused matters for some. According to foreign workers, some applications were submitted to USCIS months ago, yet they still have not been processed, resulting in work stoppage. Foreign workers do not qualify for federal programs like food stamps, so no work means no pay. The lack of urgency and swift action by the federal government officials including members of Congress and agency personnel has created a humanitarian crisis.

As of December 9, 2011 the USCIS reported that number of foreign workers petitioned for CW work visas by 1, 900 employers had reached 11,019 with about half or 5,380  1-29CW petitions being entered to date. The numbers prove that the foreign workers are essential with almost 80% of the estimated 13, 399 foreign workers being petitioned.

That number of petitions means that $150 for each applicant or about $1,652,850 will be given to the CNMI for education of U.S. citizens. Has the CNMI even created a plan for that money? Will it be wasted away like so much of the federal funds has been over the last thirty years? Who is working on this?

CNMI Immigration Court
Every week or so the Saipan papers print an article or two on the removal proceedings for foreign workers in immigration court. In almost every story the worker has been in the CNMI for decades and some have children. Most have no means to purchase a ticket.  This begs several questions. What happened to the Morton memo? Why isn't it being followed in the CNMI?  I will be inquiring as to the application of "prosecutorial discretion" in the U.S. mainland as compared to the CNMI, and why it seems that in the CNMI judges "decline to exercise their prosecutorial discretion" when those being brought to court for removal proceedings have committed no crime and have compelling reasons to be in the U.S. including fear of religious prosecution and family considerations.

Also, why aren't the last employers paying for airfare? Why dump this on the Philippine or other governments? Such a deplorable system for a country that claims to be the torch bearer of human rights.

Extreme Scammer
KSPN News revealed in their December 13, 2011 broadcast that former labor abuser Mariano Pangelinan of Arch International has been charging foreign workers $810 for application fees for CW visas with the promise of getting them a job. This man needs to return the fees, his business license needs to be yanked and he should find a new home behind bars. Preying on unemployed foreign workers is seriously evil and charging them $810 for jobs that do not exist is criminal. Only the employers can file for visas and pay the fees. The employees can only be charged for the $85 application fee.

13 comments:

Anonymous said...

Pangelinan isn't the only one, add Ben Fejeran, Barry Ladd, and a former guest worker for three starters!

About half the people I know have paid their own fees or agreed privatly to have a zero hours work requirement...half, and I can name 20 businesses just for openers. The workers are as guilty as the abusers here...perfectly tied.

Anonymous said...

If these labor abusers violating Federal Law are caught and prosecuted, they will be sent to Club Fed, not a nice place.
Fejeren, Pangelinan, and Ladd are long over due. Used to see these guys always going to the front of the lines at the Dept of Labor.

Anonymous said...

Noni 4:33 is correct.
Take Ladd for example, as I know for a fact and have used his workers in the past.(never again) He has in fact been nothing but a "manpower" operation.
The majority of his workers have been dismissed or have not been renewed for cause from other places.
Ladd has always been making his "worker's" pay for all of the costs. including medical.

It is well known among the CW's that if you cannot find a job, this is one company you can go to "stay legal".
In the past the workers that go to this company are the ones that cannot find jobs anywhere and THEY offer money and to pay all costs so that they are able to have a place to sleep and a contract so they can stay in the CNMI.
Ladd has had too many labor complaints to count.
Has always been delinquent on his payroll obligations etc.
His workers are niot given the required hours of work as they are canvasing work on their own unless a contractor need a number of temp. hires for a job.
So many time when there has been a contract and Ladd has supplied temporary labor the main contractor has to pay his back due payroll as the workers have stopped work and refused to work unless they get their back pay thus jeopardizing the whole project.

He is also a non-US Cit.doing business in the CNMI.
I wonder if he is doing business legally in the NMI and is registered with the Feds.
His company should have been shut down years ago but he has had local DOL in his pockets.
I guess soon we will see if the Feds look into this guy.

Anonymous said...

I'm not sure how a surge in applications translates into a need for workers. Many employers interviewed U.S. workers just in case their CW visas were denied. No business will give up long term loyal employees, especially for unskilled work. Why would any business hire a teenager to work for the same wages as a loyal, mature, experienced and educated worker?

Without an office or staff of any kind, I doubt the USDOJ will be putting a lot of resources into rampant CW fraud and abuse going on in the CNMI. The OCR division of the USDOJ has seen a number of CW visa fraud complaints, however without investing the resources into investigation, I suspect most of the scams will go unchecked.

Anonymous said...

.. i am so frustrated with the situation right now.. frustrated not just with the cnmi politics.. but most frustrated with the US politics.. USA used to represent the abused and neglected.. now, they are the ones violating the very basic human rights. GOD BLESS AMERICA!

Anonymous said...

If you read the Saipan Tribune article it states, "forgone conclusing transition period should be extended".

In the CNMI, there is a giant loophole which allows no correlation between experience, qualification, and salary requirements for recruiting foreign workers under the CW visa. Until that is fixed I would agree that the status quo has to continue and it is a "foregone conclusiong that the transition period must be extended"...indefinitely.

Anonymous said...

People are simply buying CW! permits. That does not show we need contract workers here. It shows how desperate and to what extreme measures non residents will go to stay in the CNMI, unemployed, a burden on all of us.

Green Cards for All! said...

Wendy said . . .

Also, why aren't the last employers paying for airfare?

The CNMI law requiring current employers to repatriate employees who wish to return home within 90 days of the conclusion of their contractual relationship has been preempted by immigration federalization.

Even under CNMI law, this duty to repatriate was not open-ended. If former employees transferred to a new employer, or wished to remain in the CNMI for other reasons, such as pursuing a lawsuit or non-employment considerations, the employer's obligation expired after 90 days.

I would think that nothing bars the parties from bargaining for a longer repatriation period. For instance, employees of the CNMI government hired from the U.S. mainland have up to one year after the conclusion of their contracts to exercise their right to government-paid return airfare. You probably had such a provision when you were a teacher on Rota.

Under federal law, long-ago former employers have no obligation to pay for airfare to their workers' countries of origin.

Is there any federal regulation that even current employers are required to do so at the conclusion of the contract?

If not, there's your answer.

The federal government should arrange airlift or sealift capacity for those "held hostage" in the Commonwealth by the economic collapse of the CNMI caused at least in part by the poorly implemented federalization of minimum wages and immigration.

Perhaps Ombudsman Pamela Sue Brown could work on this with Commander, Joint Region Marianas (maybe with the assistance of Kilili).

Pamela Brown said...

Whoever keeps referring to me as Pamela Sue Brown should know that I do not use that name any longer but am simply Pamela Brown or Pamela Brown Blackburn. I do not agree with your interpretation of the SOL on the repatriation responsibilities under P.L. 15-108 as amended but will check and get back to you. CNMI DOL should have enforced these requirements long before the effective date of the CNRA. It simply failed to do so.

Pamela Brown said...

Greencardsforall, I find no reference in the law or regulations to your statement that an alien has only 90 days to claim recruitment benefits. Please enlighten me as to your citation.

Wendy Doromal said...

I agree with Pam. The CNMI DOL and CNMI government always took the wrong action; made false statements; or refused to enforce their own laws. The result was harm the foreign workers. They claim that there is no outstanding cases because every so often when advocates point out that they never enforce their own laws, they would announce all past cases will be removed. Only making the victims whole can correct the wage theft -pretending it never existed by trying to erase it is totally stupid. Same with the umbrella permits -they tried to release all of the employers from CNMI employers' responsibility of repatriation and dump the responsibility on the individuals, US government or consulates. Go back a re-read why I opposed umbrella permits -it was for these reasons. The CNMI government are always trying to unring the bell.

Anonymous said...

I'm not saying I agree with anything Kaipat says, but on March 8th, 2010, there was a posting on the CNMI DOL Blog, "Under the CNMI labor law, Kaipat said the last known employer of the foreign worker has liability to pay for his or her medical expenses and repatriation up to 90 days after their contract is severed."“After 90 days they are no longer liable,” ...In case the last known employer is unable to pay for the repatriation of a foreign worker, bond companies could be tapped to pay for their exit.

If a worker ends their contract and wants to go underground for 5 years, I don't see why an employer should still be liable for medical or repatriation.

Green Cards for All! said...

The Commonwealth Code and Commonwealth Administrative Code are not online, so there is no way for me to verify the statute of limitations, if any, on an employer's repatriation obligation, either.

From Google I note this statement. "The employer must provide a surety bond guaranteeing three months of wages, medical coverage, and repatriation expenses for each nonresident worker. [3 CMC] § 4435." Sagana v. Tenorio, 384 F.3d 731 (9th Cir. 2004); see James J. Benedetto, Federal Ombudsman's Report at 11 (Mar. 29, 2006); see also Id. at 13 (CNMI House Bill 15-38 to "repeal the provision allowing a worker to be repatriated to his point of hire at theCommonwealth's expense if his employer is unwilling or unable to repatriate him.")

Perhaps I was conflating the obligation for medical expenses, or thinking of a specific express contractual provision I had read somewhere, or recalling a proposal described in the local press, as alluded to by the poster at 12:50 referring to Cinta Kaipat's blog. Sorry I can't be more definitive, and I hope I was wrong.

What is the source of the employer's repatriation obligation in the first place? Is it statutory or is it contractual?

If the former, does it survive pre-emption by the CNRA? For how long?

If purely contractual, wouldn't the limitations period start to run at the time the contract was breached, i.e., when repatriation is refused or not afforded? That would seem to be when the cause of action accrues, though there may be factual issues if no demand were made.

Yet isn't there some sort of reasonableness provision inherent in all contracts?

The limitations period of breach of contract, of course, is six years. 7 CMC § 2505; Century Ins. Co. v. Guerrero, 2009 MP 16 ¶ 7.

There may be additional issues if workers declined proffered repatriation in favor of a new employer who subsequently became insolvent.

As we all know, the wholesale refusal, abandonment, or neglect of repatriation obligations is widespread. See, e.g. Timothy H. Bellas, "Response to former garment workers," Saipan Tribune, Tue., Feb. 9, 2010 (Garment Settlement Agreement the trust funds used to repatriate 65 workers back to their countries of hire by providing them with one-way airline tickets and $100 for incidental travel expenses).

If you or other members of the bar intend to sue the former employers or their bonding companies to comply with their repatriations, I wish you the very best.

To whatever extent such efforts are thwarted due to defendants being insolvent and judgment proof (as has happened with respect to the $6.1 million in unpaid wage claims, and occurs all over the country), at least these collection efforts can be used as part of an eventual justification for airlift by Commander, Joint Region Marianas.

In the meantime, those who refuse to pay their just debts need to have that fact made public.

Keep up the good work, Pam!