Last week, the main topic of discussion was the umbrella permitting system instituted by the CNMI Department of Labor. This week it will be the interim final rules regarding the CNMI-Only Transitional Worker Program. The closer we get to the deadline, the fewer options remain to those whose status is still unsettled. This is why it is so critical that everyone understands as clearly as possible the rules which apply to their particular situation. We are all treading on unfamiliar territory to some degree. The rules governing the conjunction of CNMI and U.S. immigration laws are not certain and will remain uncertain, in many respects, for some time to come. What we try to do in this column is to articulate the issues and offer advice according to the most current available information.
CNMI-only transitional worker program
The Department of Homeland Security has announced that interim final rules for the implementation of the CNMI-Only Transitional Worker Program will be available for “public display” today, Oct. 26, and will be published in the Federal Register on Tuesday, Oct. 27. Because the times indicated in the DHS press release are Eastern Standard Time, the regulations will first be available to us in the CNMI on Tuesday, rather than on Monday. We are concerned that DHS chose to publish these rules under the “interim final rule” provision which will reduce the time and opportunity for public comment. Since the minimum public comment period is 30 days, that means the public comment period would close on Nov. 27, the day before the immigration authority of the CNMI comes to an end. In other words, even if there is a notice and comment period, which is not assured under an “interim final rule” scenario, it will close the day before federal authorities begin implementing the program, leaving no time for the consideration or incorporation of public comments into the regulations. We hope that some provision will be made in the process for the consideration of community input. Certainly, those most directly affected by regulations, which is every person living in the CNMI, should have a voice in how the federal law is to be implemented.
Umbrella permits revisited
Even after a vigorous public debate last week, some questions still remain in the community regarding umbrella permits. For those who didn’t have the opportunity to attend last Saturday’s Umbrella Forum at the American memorial Park, we will address some of the questions asked that were not addressed in last week’s column:
Why is the Department of Labor issuing the umbrella permits rather than the Division of Immigration and does the Department of Labor have legal authority to issue these permits?
The CNMI Department of Labor has clear statutory and regulatory authority to control the terms and conditions under which foreign workers may be hired and be employed in the commonwealth. The Division of Immigration controls the borders: who may enter the commonwealth and who must depart if they have violated the conditions of their stay. But once a foreign worker is admitted into the commonwealth, his or her period of stay is governed by CNMI labor laws as enforced by the Department of Labor. Once a foreign worker’s period of stay is terminated by the Department of Labor, then that person either departs voluntarily or is referred to the Division of Immigration for deportation proceedings. Once a person’s name appears on a final overstayer list, the Department of Labor loses jurisdiction over that person. This why umbrella permits are not available to foreign workers whose names have been referred to the Division of Immigration. What the umbrella permits do is conditionally extend a foreign worker’s stay in the commonwealth to Nov. 27, 2011. There is no entry involved, the umbrella permits apply only to workers who are lawfully present already in the CNMI. Since no entry is involved, the extension of the period of stay is legitimately a Department of Labor function.
Is there a possibility that the umbrella permit program will be used to help the CNMI government’s position in the federalization lawsuit?
As a panelist on the Umbrella Forum pointed out, there is no limit to what a clever lawyer will do with any piece of evidence. That being said, we do not foresee any possible usefulness that the umbrella permit program might have in the federalization lawsuit. The federalization lawsuit has been argued and briefed. The briefing has been closed, which means that no more papers can be filed by either side until after the judge makes his decision. The parties are now in waiting mode. The judge can issue his decision any day he chooses to do so. The lawsuit challenges the power of Congress to curtail certain powers of the commonwealth after Nov. 28. The umbrella permits will be issued prior to Nov. 28, under authority that the CNMI government clearly retains. We therefore see no rational relationship between the umbrella permit program and the CNMI government’s position in the federalization lawsuit.
Why is the CNMI government making a special effort to assist foreign workers by issuing umbrella permits?
This is the question that underlies most of the other questions that have been raised with respect to umbrella permits. There is understandable skepticism by many foreign workers toward a program that appears to give them a valuable benefit for nothing. Foreign workers in the commonwealth have not always been well-treated by individuals, by agencies and by the CNMI government as a whole; they are understandably suspicious of this sudden “free gift.”
Why? The answer is simple: because it benefits the CNMI government at the same time that it benefits the foreign workers. It benefits the CNMI government because it stabilizes and maintains the existing available work force at a time when the economic situation of the commonwealth badly requires stability. Any economic growth will require an available work force. We don’t know the specifics of the CNMI-Only Transitional Worker Program, which was purportedly designed to replace the CNMI guest worker program. What we do know is that the federal system of immigration is stricter, more complicated, more time consuming and more expensive than the CNMI system we are all familiar with. No matter what the new system looks like, it will cause expense and delay for employers who try to bring new foreign workers into the CNMI. Therefore, stabilizing the work force that is already within our borders by issuing each worker a two-year umbrella permit is an ingenious solution. It also provides stability and an extra layer of protection to foreign workers during uncertain times. The CNMI government is offering the umbrella permit to foreign workers because, for once, the interests of the foreign worker and the CNMI government coincide.
There are 32 calendar days and 23 working days left until Nov. 28.
The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by e-mail to [email protected]. Readers may also e-mail written questions through the Marianas Variety at [email protected].
