Wednesday, December 16, 2009

Local
Thursday, December 17, 2009

Labor completes work on worker unpaid wage claims

In this file photo, alien workers line up at the Department of Labor during the issuance of umbrella permits. The department now says it has completed its processing of unpaid wage claims from 2008 and all prior years. (Haidee V. Eugenio) The Labor Department has completed its processing of unpaid wage claims from 2008 and all prior years, Deputy Secretary Cinta M. Kaipat announced Wednesday.

“The department published notices over a six-month period to register unpaid wage or other claims. That period ended on Oct. 30, 2009,” Kaipat said. “We have finished processing the claims of all the foreign workers who registered. We have held hearings as necessary, and we have completed the hearings in all the cases. Nearly all of the orders have been issued, and the orders in the few remaining cases will be issued shortly.”

Total claims under $450,000

The total amount of these outstanding unpaid wage claims was under $450,000, Kaipat estimated. “We don't have an exact number because some of the claims came in without any amount stated,” she said.

However, there never was a total of $6.1 million in unpaid wage claims as was publicized many, many times over in the press, Kaipat emphasized. That total was never correct, she said. “In fact, now that we have more data, we know that the Commonwealth has a far lower rate of unpaid wage claims among alien workers than any U.S., European, Australian or New Zealand jurisdiction that publishes data in these regards,” Kaipat said.

First, it is important to distinguish between claims that are and are not covered by labor bonds. Unpaid wage, medical expense, and repatriation claims are covered by employer bonds. “However, claims such as unpaid wages for illegal work, liquidated damages, workers compensation, cosmetic surgery and other non-essential medical treatment, common law spouse claims, and other similar matters are not covered by employer bonds,” Kaipat said. Once the claims that were never intended to be covered by the Labor Department's bonding system are taken out of the calculation, the number and amount of claims decreases dramatically.

Second, it is also important to understand that-just like any other insurance policy-bonds have limits on what they are required to pay. “We distinguish between claims that are within the standard limitations of bond coverage and those that are not,” Kaipat said. Employer bonds typically cover three months of wages, $3,000 in medical expenses, and full fare for repatriation tickets. This means that the bonding system assumes that workers will bring their claims promptly.

However, under the old labor system, workers often waited until the very end of their work permit period to bring their claims. This meant that all of the unpaid wages beyond the three-month limitation were not covered by bonds.

“P.L. 15-108 fixed this problem by limiting the period within which workers could bring claims,” Kaipat said. “A worker must seek to resolve disputes promptly. This is a better system than waiting months and months to bring a stale claim after the employers and witnesses may be long gone.” When the claims that are beyond bond coverage are eliminated, the number and amount of claims falls even further.

Claims being paid

The department expects that a substantial number of workers either have been or in the near future will be paid by the bonding companies. “Some bonding companies have paid voluntarily once the claims were put on the Hearing Office docket,” Kaipat said. But other bonding companies have appealed to the Secretary and to the courts. The Attorney General's Office is handling the appeals that have been filed in federal and Commonwealth courts by the bonding companies.

Access to courts

“The department still believes strongly that the proper venue for expeditious resolution of worker claims against employers and bonding companies is in the courts,” Kaipat said.

The department advertised for unpaid wage and other claims and set up the special hearings on bond claims in response to two court opinions requiring workers to press their claims first at the Labor Department before going to court.

Of the approximately $450,000 in claims, only about $54,000 has been paid as a result of the bond claims hearings. Other claims have been appealed.

“It is ironic,” Kaipat noted, “that when we told workers to go to small claims court, the bonding companies objected that they should be in Labor Department hearings. When we brought them before the Administrative Hearing Office for hearings on whether they should pay, they argued that they should be in court.”

Ultimately, Kaipat expects that the department will prevail in the courts, and that the bonding companies will be ordered to pay.

Further action in the courts

“We have not ignored claims that are not covered by bonds at all or that are beyond the standard coverage provided by labor bonds,” Kaipat said. “All of those claims have been referred to the Attorney General for action in the courts as appropriate.”

Orders from the Administrative Hearing Office have been issued stating the name of the claimant and the case in which the claim arose. Those orders are published on the department's Web site.

“We expect that the Attorney General's Office will determine which claims might be collected through the court system and which claims are simply uncollectible at this point. Claims may be totally uncollectible because either the employer or the bonding company or both are no longer in business and there is no person or entity that a court could order to pay,” said Kaipat.

The Labor Department wanted to use experienced collection lawyers to pursue all unpaid worker claims in the courts, Kaipat disclosed. “We thought this would get the fastest action and the best results.” However, the Attorney General's office decided that it would pursue these claims for workers in the courts.

Extra time to earn

If a claim is uncollectible, then the worker who has made the claim cannot use that claim as a basis for remaining in the Commonwealth. However, Kaipat explained that the umbrella permit system essentially allows these workers-whose claims can never be collected-to have an extra chance to work in the Commonwealth to recoup their losses.

“Under the normal system, these workers with uncollectible claims would be repatriated,” Kaipat said. “However, their umbrella permit gives them repayment of a kind, in that they are allowed to remain in the Commonwealth, which is what they would like to do, and to continue to seek work for an extra period of time. This is a way of meeting, in some part, any inequity in the system in the past.”

The Labor Department discussed this aspect of the umbrella permit system with representatives of foreign worker groups, and it was agreed that if the claims were totally uncollectible, an opportunity to “earn it back” would be the next best thing that could be offered to affected workers.

Future unpaid claims

The court opinions ordering the Labor Department to hold bond claim hearings cover only the Nonresident Workers Act, not the current labor law, Kaipat said. However, the department will continue the bond claims process for 2009 cases.

The notice for registration of any unpaid wage claims from administrative orders issued in 2009 was published two weeks ago, the registration period will end on Dec. 30, 2009, for orders issued in the first three quarters of 2009. Kaipat announced that the Labor Department expects to finish all the 2009 claims by March 30, 2010. (PR/Department of Labor)

Sunday, December 13, 2009

Local
Monday, December 14, 2009

No changes in transitional worker rule reopened for comments

By Haidee V. Eugenio
Reporter

The U.S. Department of Homeland Security has not made any changes to its interim final rule on the CNMI Transitional Worker Classification but merely reopened it for public comment on Dec. 10.

The interim final rule seeks to create a new CNMI-only transitional worker, or “CW,” classification intended to be effective during the transition period from Nov. 28, 2009 to Dec. 31, 2014. It was initially published on Oct. 27 and intended to become effective on Nov. 27.

But a federal judge issued a preliminary injunction two days prior to federalization, preventing DHS from implementing the regulations on Nov. 28, to give the public enough time to comment as required by the Administrative Procedures Act.

Two weeks later, DHS reopened and extended for another 30 days the public comment period for the interim final rule as published in the Dec. 10 Federal Register.

The comment period will remain open until Jan. 8, 2010, and not Jan. 7, 2010, as earlier announced.

Marie Thérèse Sebrechts, DHS-U.S. Citizenship and Immigration Services regional media manager, said Friday that USCIS “will consider all comments received during the public comment period of Oct. 27, 2009 to Jan. 8, 2010 in the development of its final transitional worker rule.

“Pursuant to a recent order of the U.S. District Court for the District of Columbia, DHS will not implement the transitional worker visa classification provisions until DHS considers comments received on the interim rule, makes any necessary revisions resulting from those comments, and issues a final rule,” Sebrechts said.

The interim final rule will continue to be available for public comment at www.regulations.gov. To find this rule on regulations.gov, search under the docket number USCIS-2008-0038.

Teresa Kim, interim press secretary, said re-opening the comment period on regulations that are the subject of a court order is a customary practice for an agency that now must decide how to respond to the court order.

“Prior comments were provided without the benefit of either the court’s opinion with respect to the Commonwealth’s challenge to the statute or the court’s second opinion with respect to the Commonwealth’s challenge to the failure by DHS to abide by the requirements of the federal Administrative Procedure Act,” she told Saipan Tribune when asked for comment.

Some 100 entities submitted comments to the interim final rule in its initial public comment period.

“The additional comment period will give others a chance to provide DHS with information for use in the rule-making process. The administration urges all affected persons and businesses to take advantage of this opportunity to assist DHS in promulgating a practical and workable rule that will not further damage the Commonwealth’s economy,” Kim added.

Saipan Chamber of Commerce president Jim Arenovski, lawyer Steve Woodruff and United Workers Movement-NMI board chair Ronnie Doca earlier said they welcome the additional public comment period.

Since the reopening of the public comment period, one comment has so far been posted online from an individual whose name was withheld.

“To all legislators, it's simple and straightforward. If you were in our shoes, having a family here on the island of Saipan, will you want your kids to be left out whenever us as parents cannot step back to U.S. soil because we were denied by the embassy after having a vacation? Who will take care of our kids? Who will raise them? Isn’t it in the school system they are teaching that U.S. is the land of the free? But now, who is saying that is the enemy,” the commenter said.

DHS is establishing a Transitional Worker Visa category, a new nonimmigrant visa classification under the Immigration and Nationality Act using the admission code CW-1 for the principal transitional worker and CW-2 for dependents. “CW” stands for “Commonwealth transitional worker.”

A “transitional worker” is defined as an alien worker who is currently ineligible for another classification under the INA and who performs services or labor for an employer in the CNMI.

Under the CNMI-Only Transitional Worker program, employers may file a petition for a transitional worker with USCIS using Form I-129CW, Petition for a Nonimmigrant Worker in the CNMI.

The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker program.

The fee for Form I-129CW would be $320, the same amount charged for the I-129, and an $80 biometrics fee.

In addition, the Consolidated Natural Resources Act mandates a “CNMI education funding fee” of $150 per beneficiary per year, which cannot be waived.

Under the interim final rule, the CNMI-Only Transitional Worker program includes all occupational categories being used in the CNMI now.

Also, for the first year, the numerical limits for CW-1 status are based on the CNMI government’s own estimate of the nonresident worker population, which is 22,417. After the first year, the numerical limit will decrease, as determined by the DHS secretary.

Saturday, December 12, 2009

Sunday, December 13, 2009
Local
Saturday, December 12, 2009

Q&A
UMBRELLA PERMITS

Question: What will be the function of the CNMI Department of Labor under federalization?

Answer: The CNMI Department of Labor will continue to perform its functions as prescribed by CNMI law except those directly concerned with the process of actual entry into the Commonwealth and the process of actual deportation from the Commonwealth.

With respect to the entry of foreign workers, in the past, the department approved applications for entry that were forwarded to the Division of Immigration for action. The function of allowing entry to the Commonwealth now rests with USCIS.

With respect to the deportation of foreign workers, in the past, the department referred to the Division of Immigration those who did not comply with repatriation orders. The department will continue to assist workers with voluntary repatriation and obtain repatriation tickets from the last employer of record. However, those who do not comply with repatriation orders will be referred to the federal Immigration and Customs Enforcement agency for deportation.

With respect to other functions-including approval of applications, requirements with respect to medical expenses and bonding of wages and other expenses, transfers, investigations, hearing of disputes, and revocation of permits-the department will continue to function as it has in the past.

Q: Will the Department of Labor issue any additional umbrella permits?

A: No umbrella permits will be issued after Nov. 27, 2009. The federal law recognizes all CNMI umbrella permits issued through Nov. 27, 2009 and not thereafter.

Q: If a person's name is on a list on the department's Web site as eligible for an umbrella permit, will the department issue it?

A: No umbrella permits will be issued after Nov. 27, 2009.

Q: If a permit was printed for a person, but that person did not pick up the permit for some reason, will the department issue it?

A: No. The printing of permits is different from the issuance of permits. A permit is “issued” when the holder of the permit appears in person on or before Nov. 27, 2009, presents acceptable identification, and signs and dates the permit before a Labor Department staff member who also signs and dates the permit.

Q: What happens to a person who holds a valid permit but who did not pick up an umbrella permit?

A: Any person who held a valid permit on Nov. 27 may stay in the Commonwealth and work until the expiration of that permit.

Q: Did the department issue umbrella permits to any overstayers?

A: The department issued permits to persons who did not have currently valid work permits if they were not on any overstayer list certified to the Immigration Division, filed an application on a form provided by the department at the Administrative Hearing Office, and met the criteria in the Governor's Protocol issued in September 2009.

Q: What about persons who might meet the Governor's Protocol criteria who applied to the Attorney General instead of the Labor Department?

A: Persons on certified overstayer lists were not qualified for an umbrella permit under any circumstances unless they received a waiver from the Immigration Division. Once an overstayer list is published, and opportunity is given for persons named on the list to appear at Labor and clear up their record, the names of all persons who appear are deleted from the list and the names of all persons who do not appear remain on the list. The department certifies quarterly overstayer lists to the Immigration Division. Thereafter, the department will not take action as to an overstayer without a waiver from the Immigration Division. When waivers were granted by the Immigration Division, the department considered these overstayers under the same criteria as overstayers who were not on a certified list.

Q: What happens to the overstayer who did not get an umbrella permit?

A: The CNMI Labor Department will assist overstayers to obtain repatriation tickets from the last employer of record and to depart voluntarily. Under a voluntary repatriation, the person may remain eligible to enter the U.S. in the future if they comply with federal immigration law.

Overstayers who do not comply with voluntary repatriation will be referred to the Immigration and Customs Enforcement agency. Only the federal government can deport people. A person who is deported may not be eligible to enter the U.S. in the future.

Q: What is the report-back date on the umbrella permits?

A: The report-back date is the last date on which some necessary action must be taken to keep the umbrella permit in force. For holders of valid work permits, the report-back date is the date on which the work permit expires and a renewal or transfer should be in process. For those whose applications were in process when the umbrella permit was issued, the report-back date is the last date to correct deficiencies or appeal denials. For those with cases or claims, the report-back date is a date by which the matter is expected to be resolved. If the matter is not resolved by that date, a new report-back date will be set. For those who are seeking work, the report-back date is the date by which an employer intent form must be filed.

Q: Are all holders of umbrella permits allowed to register with Employment Services in order to seek work?

A: All holders of umbrella permits may register when they are seeking work except those who hold umbrella permits under a claim of pending case, pending appeal, or pending claim under an administrative order for unpaid wages. Those with pending cases, appeals, and claims may be authorized to seek temporary work, but when the case, appeal, or claim is completed, the basis for remaining in the Commonwealth may end. Those who have unpaid wage claims that are determined by the Attorney General to be uncollectible may register to seek permission to transfer to a new employer.

Q: When are those who hold umbrella permits and are seeking work required to register with Employment Services?

A: Anyone holding an umbrella permit and seeking work who has already registered with Employment Services is not required to re-register unless ordered to do so by a Hearing officer. An Employer Intent Form must be filed before the report-back date.

Anyone holding an umbrella permit and seeking work who has not yet registered with Employment Services must register before the report-back date on their umbrella permit and file an Employer Intent Form before the report-back date.

Q: How will the temporary handwritten umbrella permits be handled?

A: Temporary permits were issued in some cases because the computer system did not have a sufficient photo image or there was some other problem with the record from which the umbrella permits were printed. Temporary permits all carry a report-back date of January 15, 2009. From December 15, 2009 through January 15, 2009, the holders of temporary permits may report to Labor Processing to pick up their permanent permit with their picture on it. Those who have no photos on file will be asked to supply a passport-sized photo.

Q: Is an employer allowed to renew a worker who has an umbrella permit?

A: Yes, if a worker has an umbrella permit, the worker can be renewed under the department's normal processes.

Q: Is an employer allowed to renew a worker who does not have an umbrella permit but still has a valid work permit?

A: A worker without an umbrella permit can be renewed if the worker has time left on his or her regular work permit. So, for example, if the application was filed by the employer in December 2009, and the worker's permit does not expire until June 2010, then the worker can be renewed for the period until the worker's permit expires in June 2010.

Q: Is an employer allowed to renew a worker who does not have an umbrella permit and does not have a valid work permit?

A: Yes, but only if the application was filed by the employer on or before November 27, 2009 and was in process on November 27, 2009. If the worker's permit expired but the worker was still eligible to be renewed under normal department processes, then the renewal filed on or before November 27 will proceed as usual. The worker will get whatever period of time the employer applied and paid for (one year, two years, etc.)

Q: Is a worker allowed to transfer to a new employer if the worker has an umbrella permit?

A: Yes, under the department's normal processes.

Q: Is a worker allowed to transfer if the worker does not have an umbrella permit?

A: A worker without an umbrella permit can transfer if the worker has time left on his or her regular work permit. So, for example, if the application was filed by the employer in December 2009, and the worker's permit does not expire until June 2010, then the worker can transfer and work until the worker's permit expires in June 2010. In addition, if the employer's application with respect to the worker was in process on November 27, the worker will be allowed to transfer for whatever period the employer applied and paid for.

Q: Is an employer allowed to employ a worker under a transfer if the worker does not have an umbrella permit and does not have a valid work permit?

A: Yes, but only if the application was filed by the employer and there was a conditional grant of transfer on or before November 27, 2009. The worker will get whatever period of time the employer applied for (one year, two years, etc.)

Q: When will the department start issuing plastic cards again?

A: On December 15, 2009, after all of the records for the umbrella permit process have been put into the department's computer system.

Q: Where do IRs report for their annual registration now that the Immigration Division is gone?

A: Immediate relatives of U.S. citizens register with the Office of the Attorney General. Immediate relatives of aliens register with the Department of Labor.

Q: What about 240P permits and refugees?

A: The Attorney General handles those matters.

Q: Who revokes umbrella permits?

A: An umbrella permit issued by the Labor Department will be revoked, if necessary, by the Labor Department. An umbrella permit issued by the Commerce Department will be revoked, if necessary, by the Commerce Department. An umbrella permit issued by the Immigration Division will be revoked, if necessary, by the Office of the Attorney General, except for umbrella permits issued to immediate relatives of aliens, which will be handled by the Labor Department.

The department will follow the same process it uses for revoking any permit. The Director of Labor will petition the Hearing Office to revoke the permit. The Hearing Office will hold a hearing to determine whether the permit should be revoked. A Hearing Officer will issue an order either revoking the permit or leaving it in force. Thereafter, parties will have an opportunity to appeal to the Secretary, and a further judicial review in the Commonwealth Superior Court.

Q: What happens to workers whose appeals are decided after they get their umbrella permits?

A: The umbrella permit allows a worker to stay and pursue an appeal. If the appeal is successful, then the umbrella permit remains in effect and the order will allow the worker to re-register and pursue a transfer. If the appeal is denied, then the order will deal with the umbrella permit.

Q: What happens to workers whose cases are decided after they get their umbrella permits?

A: The umbrella permit allows a worker to stay and pursue a case. If the case is successful, then the umbrella permit remains in effect. If the hearing officer dismisses the claims or finds against the worker, the order will deal with the umbrella permit.

Q: What data will be issued about the umbrella permit program?

A: Data on the umbrella permit program will be available after the Department reconciles its digital records. The data will be available in the Department's year-end annual report to the Legislature.

Source: CNMI Department of Labor

Wednesday, December 9, 2009

Local
Thursday, December 10, 2009

USCIS seeks new comments on transitional worker rules

By Haidee V. Eugenio
Reporter

The U.S. Citizenship and Immigration Services has reopened the comment period for the interim final rule on the CNMI Transitional Worker Classification, giving a bit of reprieve to a community still grappling with changes brought by the federal takeover of CNMI immigration since Nov. 28.

The additional 30-day comment period will close on Jan. 7, 2010.

USCIS is one of the component agencies of the U.S. Department of Homeland Security, the lead agency implementing Public Law 110-229 or the federalization law.

The rule will be re-published in the Dec. 10 Federal Register.

“To provide the public and the CNMI with optimum opportunity to comment on the proposed transitional worker classification provisions, USCIS is reopening the comment period for an additional 30 days. USCIS will consider comments received during the entire public comment period in its development of the final rule,” USCIS said yesterday.

Some 100 comments, mostly from foreign workers in the CNMI, were received during the initial 30-day comment period.

Easy conversion mechanism

Steve Woodruff, who has been representing hundreds of nonresident workers in the CNMI, said yesterday that reopening the comment period is “the best way to satisfy the Administrative Procedures Act requirements, to give people enough time to comment on the regulations, before coming up with the final rule.”

Woodruff, a former Senate legal counsel, said his comment will focus more on technical aspects of the rule.

“DHS had said it prefers very specific comments,” he said.

But Woodruff said DHS should have a mechanism that allows for “easy conversion” of existing CNMI nonresident workers to CW-1 status.

“They should be able to obtain that new status just by presenting their CNMI permit,” he said, adding that DHS has taken other right steps, including providing parole and advance parole options.

Transitional worker

DHS is establishing a Transitional Worker Visa category, a new nonimmigrant visa classification under the Immigration and Nationality Act using the admission code CW-1 for the principal transitional worker and CW-2 for dependents. “CW” stands for “Commonwealth transitional worker.”

A “transitional worker” is defined as an alien worker who is currently ineligible for another classification under Immigration and Nationality Act and who performs services or labor for an employer in the CNMI.

The CNMI-Only Transitional Worker Program will be available to two groups of nonresidents: those who are lawfully present in the CNMI and those who are abroad.

Under the CNMI-Only Transitional Worker program, employers may file a petition for a transitional worker with USCIS using Form I-129CW, Petition for a Nonimmigrant Worker in the CNMI.

The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker program.

The fee for Form I-129CW would be $320, the same amount charged for the I-129, and an $80 biometrics fee.

In addition, the Consolidated Natural Resources Act mandates a “CNMI education funding fee” of $150 per beneficiary per year, which cannot be waived.

Helpful

Jim Arenovski, president of the Saipan Chamber of Commerce, said although it does not look like DHS is changing anything in the rules at this point, providing additional time to get more input is “helpful.”

“However, we will need to check and verify that nothing has been changed. If nothing is changed, I would not see any reason for the Chamber to make additional comments,” he said.

Arenovski, who is also president of Delta Management Corp.-Saipan, was among those who submitted comments on the interim final rule.

In his seven-page comment as Chamber president, Arenovski offered an alternative solution to structure the mandated reduction in CNMI-only transitional workers: the creation of a “federally-administered CNMI-only H-2 visa program exempt from the numerical limitations applied in the United States.”

He said this solution would be “effective and efficient.” He said such a program would be otherwise largely identical to the existing federal H-2 visa program, but would “not” allow exit from the CNMI to Guam or other areas of the United States.

When asked for comment yesterday, Arenovski said he welcomes the reopening of the public comment period.

“It is welcomed because the more input DHS has about how these rules negatively (or the remote positive comment) affect individuals and businesses, the more they should push the regulations toward the intent of the law, which is not to harm the economy of the NMI. We hope more comments will help DHS see the need for a flexible program that meets their security needs and allows us the workforce (including long term access to foreign labor) to grow our economy,” he said.

Improved status

Ronnie Doca, board chair of the United Workers Movement-NMI, said the additional comment period will also give DHS more time to consider their request of giving improved status, like “green cards,” to long-time nonresident workers in the CNMI.

Doca, who is also the board chair of the Pilipino Contract Workers Association, said they will continue encouraging workers to submit comments to DHS.

“We may go from house to house for written comments,” he said.

Workers' groups, along with Florida-based human rights advocate Wendy Doromal, have been circulating a signature drive petitioning President Obama, the U.S. Congress and other federal agencies to grant “green cards” to long-term foreign workers in the CNMI.

Many of the comments submitted to DHS' interim final rule were from foreign workers and their U.S. citizen children.

Preliminary injunction

The interim final rule was initially published on Oct. 27 and intended to become effective on Nov. 27.

However, on Nov. 25, U.S. District Court for the District of Columbia Judge Paul L. Friedman issued a preliminary injunction to prevent DHS from implementing the rule until it considers public comments and issues a final rule.

Friedman is the judge handling the CNMI government's lawsuit against federalization.

As a result of the judge's ruling, DHS has not implemented the transitional worker rule and USCIS has not accepted any petitions for a CNMI transitional worker, or CW-1, Nonimmigrant, Form I-129CW, until further notice.

The injunction did not affect any aspect of the CNRA's application of federal immigration laws other than the transitional worker nonimmigrant category. U.S. Customs and Border Protection took over immigration processing at airports on Nov. 28.

In his ruling, Friedman said DHS had no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedures Act.

To help alien workers leave and re-enter the CNMI or for employers to hire needed off-island workers, Friedman suggested that DHS promulgate a narrowly focused and temporary emergency regulation that addresses these issues.

DHS's USCIS decided instead to reopen and extend by 30 days the comment period.

Quick link

Janna M. Evans, USCIS regional lead for community outreach, reminded the public yesterday about the DHS website's quick link for the CNMI page, www.uscis.gov/cnmi.

Evans called on stakeholders to circulate the quick link to their coworkers, clients, friends, family and constituencies.

“It is the central repository for everything USCIS is doing to implement the CNRA in CNMI and we will continue to post useful information on this site. I am currently working to have our PowerPoint training materials posted there,” she said.

Sunday, December 6, 2009

DHS to re-publish transitional worker program regs
Monday, 07 December 2009 00:00 By Gemma Q. Casas - Reporter
E-mail Print

THE U.S. Department of Homeland Security plans to re-run sometime next year in the Federal Register the regulations for the transitional worker program to comply with the technical rules of the U.S. Administrative Procedures Act and to meet CNMI employers’ need to keep foreign workers who may not be eligible for currently available U.S.-based employment programs.

The interim final regulations for the transitional worker program that would have created the Commonwealth Worker or CW-1 status for a select group of foreign workers in the CNMI remain suspended and so do the regulations for the E-2 foreign investors.
The suspension came about after U.S. District Court for the District of Columbia Federal Judge Paul Friedman ruled in favor of the CNMI’s motion for an emergency injunctive relief against the questioned regulations on grounds that they failed to comply with the U.S. APA that mandates a sufficient public comments period before they are adopted.
The regulations would have taken effect on Nov. 28, 2009, the date when the U.S. Immigration and Nationality Act was applied to the CNMI.
David Gulick, regional area director of the U.S. Citizenship and Immigration Services, an agency under the U.S. Department of Homeland Security, said their department plans to republish in the Federal Register the regulations.
“Sometime in next year, we really can’t say when but hopefully before Nov. 2011,” he said.
He said the program should meet the need of hotels and other local employers to employ housekeepers or cleaners and other categories of foreign workers who may not meet the professional qualifications set-forth in other U.S.-based employment programs such as the H-visas or L-visas.
The transition phase to transfer foreign workers to any U.S.-based employment programs where they may be deemed eligible begins on Nov. 28 and will end on Dec. 31, 2014.
Majority of foreign workers in the CNMI have locally issued labor permits valid through Nov. 27, 2011 only.
Local
Monday, December 07, 2009

US Labor works on prevailing wage determinations in CNMI

By Haidee V. Eugenio
Reporter

The U.S. Department of Labor is now providing guidance for prevailing wage determinations for use in the CNMI effective Nov. 28, the date when the U.S. federal government took over CNMI immigration.

But the USDOL notice was published a few days after federalization, in the Dec. 4 Federal Register.

The prevailing wage is different from, and is generally higher than, the minimum wage.

In the CNMI, the current minimum wage is $4.55 an hour, and will increase by 50 cents every year until it reaches the federal wage floor of $7.25 an hour.

USDOL's Employment and Training Administration, in a notice, said it is now “providing guidance about the implementation of the issuance of prevailing wage determinations for applications in the CNMI.”

The USDOL notice can be accessed at http://edocket.access.gpo.gov/2009/pdf/E9-28963.pdf.

It said the CNMI Department of Labor, as of Nov. 28, would normally be charged with the issuance of prevailing wage determinations under the various regulations governing such determinations.

“Since there is very little time between Nov. 28, 2009, and Jan. 1, 2010, the Department has determined it is more feasible for the Department to receive such requests directly rather than have the CNMI receive and process such requests,” USDOL said.

All requests for a prevailing wage determination for a job opportunity in the CNMI made in connection with a potential filing in a labor certification program must be made in the manner described in USDOL's filing procedures.

David Gulick, district director of the U.S. Citizenship and Immigration Services, said last week that USDOL intended to publish its notice on the prevailing wage determination on Friday (Washington, D.C. time), which was Saturday in the CNMI.

Officials from USCIS and other component agencies of the Department of Homeland Security had said that questions about prevailing wage rates must be addressed to USDOL.

DHS officials are currently on island to help educate CNMI residents about U.S. immigration law and regulations, and oversee the federalization of CNMI immigration.

Prevailing wage is defined as the hourly wage, usual benefits and overtime, paid in the largest city in each county, to the majority of workers, laborers, and mechanics.

USDOL said the minimum monetary wages and fringe benefits to be paid are established based on what is prevailing in the locality.

A rate is determined to prevail where a single rate is paid to a majority (50 percent or more) of the workers in the same class in a particular locality.

If a single rate is not paid to the majority of workers in a locality, statistical measurements such as the median (a point in a distribution where 50 percent of the surveyed workers receive that or a higher rate and 50 percent receive a lesser rate) or the mean (average) are used to establish prevailing wage rates.

For example, in Guam, which is only about 120 miles away from the CNMI capital of Saipan, the prevailing wage rate for an accountant is $12.46 an hour or $25,917 a year to $22.70 an hour or $47,216 a year, based on data from USDOL's website.

In other U.S. states and cities, an accountant is paid more. In San Francisco, California, for example, the prevailing wage rate for an accountant is from $24.23 an hour or $50,398 a year to $44.41 an hour or $92,373 a year.

The USDOL's notice involving prevailing wage determinations in the CNMI accompanied a notice that, as of Jan. 1, 2010, the department's Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, D.C., will receive and process prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.

Filing procedures

The USDOL said requestors must submit prevailing wage determination requests using the Application for Prevailing Wage Determination, Form ETA-9141.

This request must be sent to the NPWHC by U.S. Mail or comparable physical delivery service at the following address: U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center, Attn: PWD Request; 1341 G Street, NW., Suite 201, Washington, DC 20005-3142.

On and after Nov. 28, 2009, for the CNMI and on and after Jan. 1, 2010, the NPWHC will only process prevailing wage determination requests received by mail in hard copy.

“The Department is in the process of developing an electronic means for the submission of PWD requests and will publish a notice in the Federal Register informing the public when such a process becomes available,” USDOL said.
Local
Saturday, December 05, 2009

'Labor will assist overstayers who want to claim repatriation tickets'

By Ferdie de la Torre
Reporter

The Department of Labor will help overstaying alien workers who want to claim their repatriation tickets and voluntarily return to their countries, according to acting Labor Secretary Cinta Kaipat.

“Anyone who entered the Commonwealth as a 240K foreign worker is entitled to claim a repatriation ticket from his or her last employer of record,” Kaipat told Saipan Tribune yesterday.

She explained that a voluntary return means that the overstayer has a chance of re-entering the United States at some future time.

Kaipat also emphasized that deporting overstayers is now a federal function when the federalization law took effect on Nov. 28.

She said the U.S. Immigration and Customs Enforcement will deal with all deportations, according to federal laws and regulations.

“A deportation means that the overstayer will never be allowed to enter the United States in the future,” Kaipat added.

Attorney General Edward Buckingham recently issued a public notice granting conditional “umbrella permits” to 628 aliens who have been classified as overstayers.

Buckingham later backed off from this position when Kaipat objected, saying Labor was not consulted with the granting of conditional “umbrella permits” to overstayers.

Buckingham and Kaipat later issued a joint statement, saying that the Office of the Attorney General and Labor would not issue “umbrella permits” to overstayers as such is not an amnesty program.

Kaipat clarified that Labor never issued any “conditional umbrella permits” and that no “umbrella permits” were issued after the Nov. 27, 2009, deadline.
Local
Friday, December 04, 2009

Labor never issued 'conditional umbrella permits'

By Ferdie de la Torre
Reporter

The Department of Labor never issued any “conditional umbrella permits” and that no “umbrella permits” were issued after the Nov. 27, 2009, deadline, according to acting Labor Secretary Cinta Kaipat yesterday.

Kaipat also disclosed to Saipan Tribune that their current estimate is that more than 96 percent of eligible workers picked up their “umbrella permits.”

On the “conditional umbrella permits” issue, the acting Labor Secretary said they never issued such permits and that the announcement in the newspapers about the permits was only from Attorney General Edward Buckingham.

After the publication of that announcement, Kaipat said she and Buckingham issued a joint statement to clarify the situation.

“That statement is the current position of both agencies,” she stressed.

In the joint statement, the Office of the Attorney General and Labor stated they would not issue “umbrella permits” to overstayers as the permits are not part of an amnesty program.

Buckingham earlier issued a public notice granting conditional “umbrella permits” to 628 aliens who have been classified as overstayers.

Kaipat said yesterday that Labor is not issuing “umbrella permits” anymore as the deadline was midnight of Nov. 27, 2009, which was set by federal law.

Kaipat said Labor issued “umbrella permits” to every person who applied with Labor who was eligible either under Labor's normal processes or under the Governor's Protocol.

“We finished issuing the last permit at about 5:15pm on Friday, Nov. 27. We were always confident that we could finish the permit-issuing process within the available time, and we did that. I'm very proud of the way the Labor Department staff performed this very large and important task,” she said.

Kaipat said those who did not pick up their permits have already left the CNMI or are planning to leave soon and therefore did not need such permits.

“We will have more precise numbers when we reconcile all the digital records,” she added.

Labor started issuing “umbrella permits” last Oct. 26.

Sunday, November 29, 2009

Kaipat: AG didn’t consult Labor in decision to grant protection to overstayers
Monday, 30 November 2009 00:00
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THE attorney general’s decision to give broad protection to illegal overstayers was a complete surprise to the Department of Labor, its Deputy Secretary Cinta Kaipat said in a media release.

“The attorney general never discussed this plan with us and, so far as we know, he never discussed it with anyone on his interagency working group — not the chamber of commerce, the representatives of foreign workers, the Department of Commerce, Customs, or anyone else,” she added.
The AG formerly had legitimate interests in prosecuting illegal aliens, but as of Nov. 28, 2009, those duties were taken over by the federal Immigration and Customs Enforcement, which is a part of the U.S. Department of Homeland Security.
“The attorney general certainly could use these applications from overstayers for law enforcement purposes,” Kaipat said. “All these records could be turned over to the federal law enforcement authorities so that illegal aliens could be deported.”
She added, “Labor never intended the umbrella permit program to be any general amnesty, and it should not be treated as such by any commonwealth agency. There should be no general grant of permits to illegal aliens. We do not know what the attorney general plans to do, but Labor will not grant any permission to work to any person that Labor has not approved for an umbrella permit. In the commonwealth government, only Labor has the legislative authority to allow aliens to work in the commonwealth.”
According to Kaipat, “Labor has a process by which we certify overstayers to the director of Immigration, who works for the attorney general. Overstayer names are published in the news media a number of times and persons on the list are given an opportunity to come in to Labor and correct the records. After the records have been corrected as necessary, a certified list is created. Once an overstayer is on the certified list, then Labor stays its hand and does not deal administratively with that worker until Immigration allows the worker to come off the list for a good reason.”
Kaipat said most persons put on the list are never removed from it.
By making this informal agreement with the Immigration Division, which is not in writing, Labor has not delegated any of its authority to the attorney general, she added.
Labor is simply cooperating with another commonwealth agency, she said.
“We will no longer be certifying overstayers to the attorney general,” Kaipat said.
Arrangements with federal authorities have not yet been worked out, however.
Monday, November 30, 2009
Local
Monday, November 30, 2009

Limited re-entry options for alien workers in CNMI
CBP now conducts immigration checks at Saipan, Rota airports
By Haidee V. Eugenio
Reporter

The U.S. Department of Homeland Security has yet to decide whether to come up with emergency regulations to allow foreign workers to travel in and out of the CNMI as a federal judge suggested last week, or to issue a new set of rules for the transitional worker program, even as DHS officially took over CNMI immigration at 12:01am on Saturday.

In the interim, alien workers who need to exit and re-enter the CNMI will be dealt with by the U.S. Citizenship and Immigration Services on a case-by-case basis, including those traveling for emergency reason, or an “advanced parole” for others.

Securing a CW-1 visa is not yet an option for re-entry, due to a court ruling preventing DHS from implementing its CNMI transitional worker program rule.

Takeover

At least 14 U.S. Customs and Border Protection officers took over the immigration booths at the Saipan International Airport to process the first flight to arrive in the CNMI under federal immigration law.

Among them was CBP officer James Collett, from Buffalo, New York.

“I've been with CBP since 2007 and this is my first time here on Saipan,” he said, while preparing his immigration booth to process passengers.

Jeff Guerrero, a CBP officer from Guam, was also among those who manned the first shift at the Saipan airport under federal immigration control.

He's been with CBP for four years, and expects the processing on Saipan to be “a little bit different” from that in Guam where there are more passengers arriving at any given day.

Each immigration booth at the Saipan airport is equipped with a passport reader, a camera, and a fingerprint scanner, said Edward Low, public affairs liaison at the CBP-San Francisco office.

Low said there were 37 CBP officers and CBP managers on Saipan for the takeover, along with four others assigned to Rota on a temporary basis. CBP will be recruiting officers to be permanently assigned to the CNMI.

Jerry Aevermann, interim port director of CBP for the CNMI, and CBP port director for Hawaii Bruce Murley were also at the airport to oversee the federal operations.

First flight in

At 1:11am on Saturday, passengers of a Northwest Airlines flight from Japan began lining up in front of fully equipped immigration counters manned by CBP officers from all parts of the United States.

Tourists from Japan, which is included in the visa waiver program, are not required to have a U.S. visa to enter the CNMI.

At least one passenger from the Philippines with no U.S. travel or work visa had to be directed to a secondary immigration check. DHS or CBP officials declined to comment on the status of the passenger, including whether she will be allowed in or sent back to the Philippines.

DHS invited CNMI officials including U.S. Rep. Gregorio Kilili C. Sablan (D-MP), Senate President Pete P. Reyes and other lawmakers, along with members of the media, inside the airport to witness the first passengers to be processed by CBP officers.

Also at the airport were Rep. Ralph Torres (R-Saipan), Rep. Tina Sablan (Ind-Saipan), Rep. Ray Tebuteb (R-Saipan), Rep. Diego Benavente (R-Saipan), Marianas Visitors Authority managing director Perry Tenorio, and MVA board member Marian Aldan-Pierce.

“This is very interesting. The operation looks fairly clean and smooth,” said Tebuteb when asked for comment on his observation of CBP's takeover of immigration processing at the airport.

'Advanced parole'

Alexander Y. Hartman, immigration policy advisor at DHS' Office of Policy Development, said CBP officers have a number of options they can look at whether they can parole someone in on a case-by-case basis, including an advanced parole to travel, or a U.S. B1 or B2 visa.

Hartman said DHS has not made a decision yet whether to issue emergency regulations to allow foreign workers to exit and re-enter the CNMI as suggested by Judge Paul Friedman last week or come up with a new set of rules.

“Actually the judge gave a bit more latitude in his decision. He said the current rule can't go into effect and that DHS needs to find a way to go through the notice and comment process and issue a rule, and so one option is to do an emergency rule.We're still considering whether we want to go that route,” Hartman told reporters in an interview at the Saipan airport while CBP officers were processing passengers of a Northwest Airline flight.

He said another option is to issue a new proposed rule and start the process from scratch.

“We haven't decided either way which option we'll do. In the intervening time, we will be looking at people's need to travel on a case-by-case basis,” he said.

Nonresident workers who are in the CNMI now and who would have been eligible for a transitional worker visa are allowed under the Consolidated Natural Resources Act to stay on the island for the time their permit is valid or up to two years, whichever is shorter. As long as they're on island, they still have work authorization if their permit is valid under CNMI law.

Hartman said legitimate foreign workers who need DHS authorization to exit and re-enter the CNMI for emergency reason will be dealt with on a case-by-case basis.

For non-emergency travel, nonresident workers may apply for a so-called “advanced parole” with USCIS.

Advanced parole is different from the parole authority for Chinese and Russian tourists visiting the CNMI.

“Advanced parole is like advancing permission to travel. So you file an application with USCIS and they issue you a document that says you are authorized to leave and return, subject to inspection at the airport when you come back. Parole is when somebody arrives at the airport and that Customs and Border Protection officer makes a determination whether to allow them to come in even if they don't have a visa,” Hartman said.

Those wanting to apply for advanced parole would need to schedule an appointment or go online to obtain and file an application with USCIS.

DHS, in a statement issued on Saturday, said immigration laws of the CNMI will be replaced by the Immigration and Nationality Act and other U.S. immigration laws effective Nov. 28 pursuant to a law signed by President Bush on May 8, 2008.

The definition of “United States” in the INA will simultaneously be amended to include the CNMI-providing new privileges and easing restrictions to CNMI residents wishing to live and work in the United States.

Transition period

Although U.S. immigration law applies to the CNMI beginning Nov. 28, the CNMI will undergo a transition period with temporary measures ending Dec. 31, 2014, to allow for an orderly transition and give individuals time to identify an appropriate visa classification under the INA.

Marie Thérèse Sebrechts, USCIS regional media manager, said the takeover on Saturday marked a major step in a series of DHS initiatives undertaken since the Consolidated Natural Resources Act's signing to address the legal and operational needs for a smooth transition.

Five important rules to facilitate the transition were published in the Federal Register in 2009 to address key changes under the CNRA, including a CNMI-Guam Visa Waiver Program interim rule on Jan. 16; an E-2 Nonimmigrant Status for Aliens in the CNMI with Long-Term Investor Status proposed rule on Sept. 14; a CNMI Transitional Worker Classification interim rule on Oct. 27; and an Application of Immigration Regulations to the CNMI “conforming amendments” interim rule, also on Oct. 27.

On March 10, USCIS also opened its Application Support Center at TSL Plaza on Saipan to provide biometric services-including fingerprint capture, photos and signatures-along with additional services, including naturalization and adjustment of status interviews, as well as opportunities for the public to obtain answers to immigration questions.

'Parole authority'

Homeland Security Secretary Janet Napolitano, in recognizing that some unique situations would result as the CNMI transitions to U.S. immigration laws, announced the granting of parole to applicants for admission on a case-by-case basis for urgent humanitarian reasons or significant public benefit.

Parole authority will be used in two specific situations in the CNMI.

One is for eligible Chinese and Russian nationals visiting for business or pleasure will be eligible for CBP-administered parole into the CNMI on a case-by-case basis.

The second one is for certain impacted aliens-notably CNMI permanent residents and various categories of immediate relatives-will be eligible for USCIS-administered parole on a case-by-case basis.

Impact on Guam

The CNRA also contains two provisions that specifically impact Guam, including the elimination of the current Guam Visa Waiver Program and the creation of a new Guam-CNMI Visa Waiver Program, under which eligible nationals of program countries and geographic areas may be authorized to visit Guam and/or the CNMI for up to 45 days.

The second one is for the elimination of the statutory cap on the number of H nonimmigrant worker petitions that can be filed by employers in Guam and the CNMI.

The federal takeover on Saturday marked another chapter in the CNMI's 34-year relationship with the United States. The so-called federalization of local immigration took decades of political, social and economic wrangling between Washington, D.C. and the CNMI.
Local
Monday, November 30, 2009

OAG, Labor: No 'umbrella permits' for overstayers
Kaipat says Labor not consulted on broad protection for overstayers
By Ferdie de la Torre
Reporter

The “umbrella permits” are not part of an amnesty program for overstayers and, as such, will not be issued to these out-of-status aliens, according to a joint statement issued Friday by the Office of the Attorney General and the Department of Labor.

The joint statement came shortly after acting Labor Secretary Cinta M. Kaipat expressed disappointment with Attorney General Edward Buckingham's decision to grant conditional “umbrella permits” to overstayers.

Kaipat and Buckingham explained that their joint statement would clarify the situation with respect to overstayers.

The two officials said the “umbrella permit” program implemented by Labor was never meant to be-and is not-an amnesty program.

Kaipat and Buckingham said overstayers were given the opportunity to legitimately return to the Department of Labor's guest worker program and their names were published in newspapers on more than one occasion, but they failed to rectify their status.

“They are excludable aliens on many counts. They do not meet the statutory requirements to be legitimately put back on the system,” Kaipat and Buckingham said.

As a result, they said, these overstayers remain excludable today and Labor and the OAG agree that no further processing of applications from this group of overstayers is appropriate.

They said the list of overstayers will be forwarded to federal immigration.

“No further review will be conducted by the Office of the Attorney General,” Kaipat and Buckingham said.

In a press release prior to the joint statement, Kaipat said Buckingham's decision to give broad protection to illegal overstayers was a complete surprise to Labor.

“The AG never discussed this plan with us and, so far as we know, he never discussed it with anyone on his interagency working group-not the Chamber of Commerce, the representatives of foreign workers, the Department of Commerce, Customs, or anyone else,” Kaipat said.

She said the AG formerly had legitimate interests in prosecuting illegal aliens, but as of Nov. 28, 2009, Saturday, those duties were to be taken over by the federal agency Immigration and Customs Enforcement.

“The AG certainly could use these applications from overstayers for law enforcement purposes. And all these records could be turned over to the federal law enforcement authorities so that illegal aliens could be deported,” Kaipat said.

She pointed out that there should be no general grant of permits to illegal aliens.

“We do not know what the Attorney General plans to do, but Labor will not grant any permission to work to any person that Labor has not approved for an umbrella permit,” she said.

Kaipat said only Labor has the legislative authority to allow aliens to work in the Commonwealth.

Kaipat said that, by making an informal agreement with the Division of Immigration, which is not in writing, Labor has not delegated any of its authority to the AG.

Labor is simply cooperating with another Commonwealth agency, she added.

“We will no longer be certifying overstayers to the Attorney General,” Kaipat said.

Buckingham on Thursday issued a public notice granting conditional “umbrella permits” to 628 aliens who have been classified as overstayers.

Labor started issuing “umbrella permits” on Oct. 26. Last Friday was the supposed to be the last day of issuing the permits. As of Friday at 8:30pm, Labor stopped entertaining less than 10 alien workers, mostly Chinese, who requested for “umbrella permits.”

Thursday, November 26, 2009

Fitial, Workers Welcome Ruling; Federal Takeover Excludes Labor--For Now

Local
Friday, November 27, 2009

Fitial, workers welcome ruling
Federal takeover excludes labor-for now
By Haidee V. Eugenio
Reporter

The federal government will only be able to implement border control at the stroke of midnight on Nov. 28, but not the existing CNMI labor program, at least for now.

This is because of a federal judge's order dated Nov. 25 preventing the U.S. Department of Homeland Security from implementing in its current form the interim final rule on the CNMI transitional worker program, which takes effect on Saturday.

Gov. Benigno R. Fitial and the United Workers Movement-NMI separately welcomed yesterday U.S. District Court for the District of Columbia Judge Paul L. Friedman's ruling granting the CNMI government's motion for a preliminary injunction preventing DHS from implementing its CNMI transitional worker (CW) classification rule.

“I am very pleased with this favorable decision by Judge Friedman. The interim final rule fails to comply with Public Law 110-229 and will be very damaging to the Commonwealth if it goes into effect in its present form,” Fitial said in a statement yesterday.

Fitial, who turns 64 today, sued the federal government over federalization.

He urged DHS to consider the over 100 comments that have so far been filed on its transitional worker program rule.

In an interview with Saipan Tribune on Wednesday, Fitial reiterated that a federal takeover of local labor is “unnecessary.”

“We don't have any problem having the federal government take over immigration. Let them control our border because we don't have the capabilities to do that, but we have a strong enforcement mechanism to control our labor. Why do they have to remove labor from us? It doesn't make sense and we're the only one. All the other [U.S.] territories, they control their own labor,” he said.

'Green card'

Ronnie Doca and Rabby Syed, leaders of the workers group, hope that latest court ruling will give DHS more time to consider their concerns.

Workers groups in the CNMI want the federal government to grant “green cards” or legal permanent resident status to certain classes of nonresidents in the CNMI, including long-term foreign workers.

“We are happy with the ruling so DHS will have more time to look into our concerns. Among the most important things we are asking [for] is a better immigration for long-time nonresident workers, and a blanket authority for those with valid CNMI permits to re-enter the CNMI after a vacation or emergency exit,” said Doca, board chairman of the group, which comprises thousands of foreign workers in the CNMI.

Worker groups have started a signature campaign asking President Obama and the U.S. Congress to grant “green cards” to certain foreigners in the CNMI, ahead of the May 10, 2010, deadline for Interior Secretary Ken Salazar to recommend to Congress whether a grant of permanent immigration status to nonresidents in the CNMI is necessary.

'Exit, entry'

DHS' interim final rule, which is supposed to take effect Saturday, prohibits foreign workers from re-entering the islands using only their valid CNMI work and entry permit.

Friedman said DHS could “promulgate a narrowly focused and temporary emergency regulation” that addresses only the “exit and entry” problems presented in the department's interim final rule.

Regulations by DHS' U.S. Citizenship and Immigration Services would have required foreign workers to secure a CW-1 visa from a U.S. embassy for them to re-enter the CNMI, but only after they first secure a CNMI-only transitional worker status, which may take up to 60 days to acquire.

This means foreign workers can exit but not re-enter the CNMI up to at least early 2010, in order to secure a CW status and a CW-1 visa to comply with the DHS interim final rule.

DHS, however, repeatedly said that nonresident workers can exit the CNMI any time during the transition period from Nov. 28, 2009 to Dec. 31, 2014, but they cannot re-enter the islands without a CW-1 visa obtained from a U.S. embassy.

There is also a possibility that an applicant may be denied a CW-1 visa and therefore won't be able to re-enter the CNMI and continue working on the islands despite possessing a valid CNMI work and entry permit.

The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker, or CW, program.

A “transitional worker” under P.L. 110-229 is defined as an alien worker who is currently ineligible for another classification under the U.S. Immigration and Naturalization Act and who performs services or labor for an employer in the CNMI.

Most of the foreign workers in the CNMI are from the Philippines and China, while others are from Korea, Thailand and Bangladesh.

Florida-based human rights activist and former Rota teacher Wendy Doromal expressed hope that the comments so far submitted on the DHS interim final rule “should now be considered by DHS.”

Many relate to travel restrictions and the requirement for a visa for a foreign worker to return to the CNMI after traveling for personal or medical reasons.

Friedman agreed with the CNMI that DHS had no reasonable basis for publishing the interim final rule without complying with the notice and comment provisions of the Administrative Procedures Act.

The judge also made clear that he was denying any possible effort by the U.S. Department of Justice representing DHS to obtain a stay of his order pending appeal to the U.S. Court of Appeals in Washington, D.C.

Border control

The DHS transitional worker rule is supposed to take effect Saturday, when DHS' U.S. Customs and Border Protection takes over border control.

Edward H. Low, public affairs liaison at CBP's San Francisco office, earlier said that between 40 and 50 CBP officers will be on Saipan to take over immigration control at the Saipan International Airport at the stroke of midnight on Nov. 28.

But as of press time yesterday, Low said he's still checking to see what, if any, impact the court ruling will have on CBP operations.

Among other things, the federal takeover of local immigration means U.S. visas will be required of foreigners to enter the CNMI, just like Guam, Hawaii, and the rest of the United States, except for nationals of countries that are included in visa waiver programs.

The CNMI is the last U.S. territory that controls its own borders.

Fingerprinting and eye scan will also become main fixtures at the airport, just like anywhere in the U.S.

P.L. 110-229 or the Consolidated Natural Resources Act, signed by President George Bush in May 2008, not only applies federal immigration control in the CNMI but also gave the CNMI its first non-voting delegate to the U.S. Congress.

As a result of the federalization law, the CNMI held its first delegate election in November 2008, won by Gregorio Kilili C. Sablan, a former executive director of the Commonwealth Election Commission.

628 'overstayers' get conditional umbrella permits

Local
Thursday, November 26, 2009


By Ferdie de la Torre
Reporter

Attorney General Edward T. Buckingham has granted conditional “umbrella permits” to 628 aliens who have been classified as overstayers.

As this developed, two long lines of people seeking “umbrella permits” were seen at the Department of Labor yesterday-four days before the federalization transition date takes effect on Saturday, Nov. 28.

In a public notice issued today, Thursday, Buckingham said that certain conditions apply in the case of the 628 individuals who were classified as “overstayers.”

Should any of these individuals fail to comply with each and every condition, the conditional umbrella permit shall be null and void, he said.

The AG said each conditional “umbrella permit” is subject to renewal and that members of the AG Investigative Unit will be reviewing the renewals.

Aliens classified as “overstayers” and those having pending Labor cases trooped to Labor yesterday as early as 6am. As of 12pm, many of the “early birds” were still near the entrance of the former Halinas Kitchen where Labor and Immigration were processing the “umbrella permits.”

The other separate line was for persons having Immediate Relative status or pending IR status. Some of those with IR status said they fell in line on Tuesday, but were instructed to return yesterday.

In a statement issued Tuesday, Labor Deputy Secretary Cinta Kaipat stated that over 90 percent of those qualified to obtain the “umbrella permits” have already obtained their permits.

The federalization law states that any Commonwealth-issued permit that is in existence on Nov. 27, 2009, will be honored for two years after the law's transition date. The transition date is currently set for Nov. 28, 2009.

Labor began the distribution of “umbrella permits” last Oct. 26.

Thursday, August 13, 2009

Hirshbein now acting Labor secretary, deputy secretary

Local
Friday, August 14, 2009

By Ferdie de la Torre
Reporter

Barry Hirshbein, a Labor administrative hearing officer, is now both the acting Labor Secretary and acting Labor Deputy Secretary.

This developed after Labor Deputy Secretary Jacinta M. Kaipat became the acting Labor Secretary after Labor Secretary Gil M. San Nicolas took a leave of absence.

Kaipat, however, took a temporary leave last week after the Election Commission certified her candidacy for the Senate.

Saipan Tribune learned yesterday that on July 29, Kaipat, as then acting Labor Secretary, appointed hearing officer Hirshbein as acting Labor Deputy Secretary.

“No budgetary authority will be expended on this position as this appointment is temporary. Mr. Hirshbein holds a permanent appointment as a hearing officer and will be compensated only in that capacity,” said Kaipat in a letter appointing Hirshbein.

In June, Kaipat removed Hirshbein as Labor director and transferred him to his previous assignment, Labor administrative hearing officer.

Hirshbein, who is a former prosecutor, served as Labor director for one year and six months.

Kaipat also recently appointed Labor administrative hearing officer Jerry Cody as acting director of the Labor Administrative Hearing Office.

“No budgetary authority will be expended on this position as these duties will be consolidated temporarily with hearing officer duties,” she said.

Kaipat said Cody holds a permanent appointment as a hearing officer and will be paid only in that capacity.

Fitial asks garment trust fund to help displaced workers

Friday, August 14, 2009
Local
Thursday, August 13, 2009


By Haidee V. Eugenio
Reporter

Gov. Benigno R. Fitial yesterday asked the Garment Workers Trust Fund to reconsider its decision not to provide compensation to former garment workers who have prevailed in their labor cases but who have not been paid because both the employer and the bonding company have gone out of business.

The governor's letter came over two months after the trust fund announced that it still has $600,000 available to help former garment workers who are still on Saipan and are facing hardships.

The trust fund also earlier said it intends to donate its remaining funds to charity.

In yesterday's letter to Garment Workers Trust Fund chair Timothy H. Bellas, Fitial said “if the Trust Fund can make a donation to a charity, then it would seem also possible for the Trust Fund to make a donation to each qualified worker.”

Fitial said a distribution from the trust fund to each worker with proven claims that remain unpaid seems the best way to carry out the original intent of the litigation that created the fund. He said the distribution may be in an equal amount.

He said there is no need to make any attempt to make the workers whole on their claims or to pay any “wage” as such.

Bellas, in a phone interview yesterday, said he reserves any comment to the media until he responds directly to Fitial's letter.

He also said he will be sending a copy of the governor's letter to two other members of the Garment Workers Trust Fund. They are former Washington State Supreme Court chief justice Richard Guy and former California Supreme Court justice Cruz Reynoso.

Fitial cited a list of individuals claims on behalf of 213 former garment workers totaling some $700,000 that was provided by the Department of Labor to Bellas' office in May.

At the time of the release of the list, Kaipat had said the claims were from the information provided by those who registered with Labor at the Garapan Central Park last summer and include those who registered with the federal ombudsman's office in the summer of 2007. Kaipat's list includes workers who were employed by garment industry subcontractors.

“Some of these workers would like o return home, but do not have enough savings for a ticket and there is no employer or bond to tap for the ticket,” Fitial told Bellas.

In his letter, the governor also said the CNMI “has made great strides in improving its guest worker program.”

“Making a donation to qualified workers would help close the books on the past. I hope that you will be able to support this proposal,” he added.

The former Garment Oversight Board, then chaired by Bellas, established the trust fund after settlement money in the form of checks originally distributed to the workers came back or were not cashed.

The board was set up pursuant to the landmark $20 million settlement agreement in the class action against Saipan's garment industry.

Since March, Saipan has completely lost its once mighty garment industry due to the lifting of world trade rules. The industry used to employ some 20,000 workers, most of them from Asian countries such as China and the Philippines.

Earlier, Bellas said the trust fund is still accepting applications from former garment workers to avail of the funding until Aug. 15, 2009.

Monday, August 3, 2009

Kaipat says passport surrender policy not new

Tuesday, 04 August 2009 00:00 By Junhan B. Todeno - Variety News Staff
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FOREIGN workers who just arrived on Saipan said the Division of Immigration asked them to surrender their passports upon their arrival at the Francisco C. Ada International Airport and only got them back after they underwent the mandatory orientation seminar at the Department of Labor.

Division of Labor officer Israel De Leon briefs guest workers who just arrived on Saipan during a mandatory orientation program. Photo by Junhan B. Todeno

Division of Labor officer Israel De Leon briefs guest workers who just arrived on Saipan during a mandatory orientation program. Photo by Junhan B. Todeno
But Labor Deputy Secretary Cinta Kaipat said there is nothing new to this policy.

“Workers must complete certain processing, including orientation, in order to enter the Commonwealth. The Immigration Division holds passports until all processing is completed,” she said.

She said even the U.S. applies the same policy when admitting foreign workers.

She said every guest worker arriving in the Commonwealth must attend the orientation. If they fail, they could be immediately repatriated.

The labor official said all guest workers should be aware about the local labor policies, particularly the mandatory, orientation seminar.

The local labor laws were modified on Jan. 1, 2008.

Kapat said they haven’t received any complaints about the orientation process, and “many guest workers have expressed their thanks for the very informative way the Commonwealth welcomes new workers.”

In some cases, she added, employers attend the orientation session along with the workers. She said some employers even praise the local labor system for adopting the mandatory orientation policy.

The Labor Department holds orientation seminar in three languages—English, Chinese and Korean—though a videotaped program.

Kaipat said they will soon have Filipino and Japanese versions despite budget constraints.

She said each new guest worker received basic information on their rights and responsibilities under Commonwealth and U.S. law.

The employment of each arriving guest worker is checked to ensure that an actual job is available and the employer is financially capable of paying the required wages, she said.

“All these new steps, put into place by Public Law 15-108, have substantially reduced the number of labor disputes and complaints involving recently-arriving workers. The program is working as the Legislature intended,” Kaipat said.

But Kaipat said the numbers of arrivals of guest workers have declined this year compared to the previous years.

She cited the contributing factors: the Labor Department vigorously enforces the U.S. citizen workforce participation requirement and regulation changes that have greatly narrowed the available exemptions; the Governor barred entry of unskilled workers; and the Labor Department enforces a secondary preference for on-island workers as it is much more efficient for the Commonwealth government when

Wednesday, July 22, 2009

Kaipat sets Sept. deadline for bond claims hearings

Local
Thursday, July 23, 2009


By Ferdie de la Torre
Reporter

Labor Deputy Secretary Cinta Kaipat yesterday vowed to complete by September 2009 the hearings on bond claims filed by alien workers who have unpaid Labor awards.

“Our process for dealing with all of these old bonding claims is quite efficient, and we anticipate that the entire task will be completed this fall,” said Kaipat in her interim progress report on the implementation of Public Law 15-108 or the new labor reform law that she authored when she was a Representative.

Kaipat said they expect that the bonding companies may appeal adverse decisions on these old bonding claims to the Labor secretary.

“Those appeals will be decided promptly,” the Deputy Secretary said.

She said it is also likely that any adverse decisions by the Secretary will be appealed to the Superior Court.

Kaipat said the court has enforcement powers that Labor does not have so they expect that most of the contested cases will be decided in court.

“It was for this reason that the Department took the position that contested bonding claims should be resolved in the court in the first instance,” she said.

In June last year, Labor encouraged alien workers to collect their administrative awards by filing small claims in the Superior Court.

Labor recently notified those alien workers with administrative awards to come in to the Labor Hearing Office to register their bond claims.

Kaipat earlier admitted that Labor was required to change its practices because of Superior Court associate judge Perry B. Inos's ruling pertaining to bond issue.

Kaipat, however, stated that due to some reasons many foreign workers will still be referred to small claims court as Labor has been doing in the past.

Last March, Inos ruled that Labor has exclusive jurisdiction over alien workers attempting to collect on labor bonds and that the courts do not have the authority to enforce these bonds.

Inos dismissed for lack of jurisdiction the consolidated small claims filed by 11 Chinese workers against two bonding companies.

The issue stems from a Labor advice for alien workers to file small claims in the Superior Court to recover the awards granted them by Labor against their employers.

Inos noted that the primary reason the workers are unable to recover the awards granted them by Labor is because Labor has thus far not attempted to enforce the insurance companies' obligations under the labor bonds.

In her interim report submitted yesterday to the Legislature, Kaipat said after Judge Inos issued the ruling holding that Labor must adjudicate bonding claims, they organized to get this work done.

Labor divided the potential bonding claims in four categories: labor and agency cases decided in 2008; cases collected by the federal ombudsman decided in 2007 and 2006; cases collected by the federal ombudsman decided in 2005 and prior years; and all other cases.

Labor already published notices in the English and Chinese press with respect to cases in the first three groups. Labor is planning to publish the final notice covering all remaining cases by the end of this month.

Kaipat said because of large-scale business closures and failures in 2005-2007, there are a considerable number of bonding claims from cases completed in those years.

“We will not know the total number until our last notice is published and the last date for registering claims (Aug. 20, 2009) has passed,” she said.

To conduct hearings on the bond claims, Labor shifted some personnel around temporarily.

Kaipat said former Labor Director Barry Hirshbein went back to his former post as administrative hearing officer to help out with the bonding cases.

Kaipat said they have also put other staff members in the Hearing Office temporarily to help with handling case records and other tasks “so that we can get this work done promptly.”

She said the first 183 labor cases decided in 2008 yielded only nine bond claims.

Kaipat said there are few bonding claims arising out of new cases because Labor mediates almost all complaints within 15 days of filing and hearings were done within 90 days of filing.

“Resolving cases promptly means that employers have not become bankrupt or disappeared before the case is resolved, leaving the bonding claim as the only revenue for payment,” she added.

Thursday, June 25, 2009

Friday, June 26, 2009
Local
Friday, June 26, 2009

Labor asks alien workers with awards to register

By Ferdie de la Torre
Reporter

In June last year, the Department of Labor encouraged alien workers to collect their administrative awards by filing small claims in the Superior Court.

Now Labor is notifying those alien workers with administrative awards to go to the Labor Hearing Office to register their bond claims.

Acting Labor Secretary Cinta M. Kaipat told Saipan Tribune yesterday that Labor was required to change its practices because of Superior Court associate judge Perry B. Inos' ruling relating to the bond issue.

Kaipat, however, stated that due to some reasons, many foreign workers will still be referred to the small claims court as Labor has been doing in the past.

Last March, Inos ruled that Labor has exclusive jurisdiction over alien workers attempting to collect on labor bonds and that the courts do not have the authority to enforce these bonds. Inos dismissed for lack of jurisdiction the consolidated small claims filed by 11 Chinese workers against two bonding companies.

The issue stems from a Labor advice to alien workers to file small claims in the Superior Court to recover the awards granted them by Labor against their employers.

Inos noted that the primary reason the workers are unable to recover the awards granted them by Labor is because Labor has thus far not attempted to enforce the insurance companies' obligations under the labor bonds.

Last Monday, Labor placed a one-page notice in this paper, notifying 129 alien workers who were awarded money damages by Labor but have not been paid to visit Labor's Complaint Intake Section.

In the notice, Labor asked the complainants to fill out a declaration affirming that payments have not been paid to them.

The workers were advised to bring a copy of their administrative orders and their entry permit card. The complainants are given until July 20, 2009, to report to the Complaint Intake Section.

Labor said awards in some of these cases may be covered by labor bonds.

When asked by Saipan Tribune about the notice, Kaipat said that Labor was not a party to the case in which Judge Inos issued his opinion so the department did not have a chance to explain why their policy of using the small claims court is the most effective and efficient way to get bond claims resolved.

“We also did not have a chance to appeal. Labor is hopeful that when the courts have a case in which Labor is a party and can present its view, the rule will change,” Kaipat said.

The acting Labor Secretary, however, stated that for now the department must abide by Inos' ruling.

She said two more of the same notices will be issued over the summer.

Labor divided up the entire list so that their staff is not overloaded with many people trying to register at once.

Kaipat explained that a bond claim is entirely separate from a labor case.

“For that reason, a new proceeding must be started. In this new proceeding, under Judge Inos' ruling, the director of Labor brings a claim on behalf of the worker against the bonding company,” she said.

In order to do this, Kaipat explained, the Labor director needs a sworn statement from the workers that the awards have not been paid. When a worker registers the bond claims, she said, a notice is provided to the bonding company, and a hearing is held. Kaipat said the director presents the worker's sworn statement that the award has not been paid, and the bonding company presents any defenses that it has.

“The Hearing Office issues an opinion. Either side may appeal to the Labor Secretary. Once the Secretary's opinion is issued, either party may appeal to the court. Then the bond claim will be in the court, where the department thinks all bond claims should be in the first place,” she said.

Kaipat said the bonding companies are licensed by the Department of Commerce and that only the courts have the power to seize their assets and make them pay awards.

Kaipat cited three reasons why many alien workers will still be referred to small claims court: There is no bond; there is a bond but the worker's claim is covered only partially by the bond; and there is a bond, but the bond does not cover the award at all.

Last year, then federal ombudsman James Benedetto told Saipan Tribune that he refused to turn over to Labor his office's documents regarding the $6.1 million owed to hundreds of alien workers because Labor could provide no assurances that the data would not be used against the workers.

Benedetto said he wants assurances that the records would be used to go after the employers and bonding companies who owe the money, and not the workers.

Robert Myers, lawyer for 127 alien workers, has also filed a class action against Labor and some of its key officials over the same bonding issue.

No Loopholes Under Labor Law

Opinion
Friday, June 26, 2009

No loopholes under labor law

By JACINTA M. KAIPAT
Special to the Saipan Tribune

I write to respond to the several letters that have appeared in the press about citizens who are unable to find jobs. There are no loopholes under the labor law, as has been repeatedly suggested.

PL 15-108 benefits local applicants

The new labor law fixed very significant problems for local applicants under the old law and extended protections to ensure that local applicants know about and get preference for jobs in the Commonwealth. PL 15-108 provides a new remedy - damages in the amount of six months' wages - in the event that a citizen is passed over for hiring by an employer who renewed or hired a foreign worker. Our Hearing Office mediates these complaints and offers prompt hearings on all complaints. I urge any citizen who thinks that he or she has been to come to the Labor Department and file a complaint. The staff of the Hearing Office will help you fill out the complaint form. Our investigators will go out and gather the employer's records to present at a hearing. PL 15-108 provided this protection specifically in order to guard against the kind of problems about which the letter-writers complain.

Individual problems

In order to try to solve the individual problems at hand as expeditiously as possible, I looked at our records with respect to applications filed by the letter writers to see if we could help with their applications. I found that none of the letter writers save three had used our system-at least under the names that they used when they wrote to the press. (Mr./Ms. Loly A. Sablan and Mr. Kelvin A. Aldan never used our system to apply for a job online. Mr. Greg Magofna used the system once, back in January. Mr. Gregorio Cruz and Mr. Willie Brundidge, Jr. have used the system many times.) I looked at our complaint files to determine if any of the letter-writers had used the protection that PL 15-108 offers citizens in cases where a foreign worker has been hired or renewed over a qualified citizen. None had except for one.

No waivers

There are no waivers of the workforce participation requirement or the job preference requirement under PL 15-108. All waivers were abolished. Waivers were granted based on subjective standards. Under prior law, there were hundreds of waivers granted to employers that allowed them to hire foreign workers when they were not in compliance with our workforce participation requirements or our job preference requirements. Those who long for the “old days” remember a time of full employment when these waivers did not matter much because citizens were employed by the government or private- sector jobs were available.

Advertising renewals yields jobs for citizens

The letter-writers ask why we require employers to advertise jobs where the employer hopes to renew a foreign worker. The simple answer is that advertising renewals helps create jobs for locals. During the 12 months after April 2008, approximately 600 locals took jobs that were intended as renewals for foreign workers. In the past, there have been renewals of foreign workers where no local applicant was available. But now, for example, Tony Pellegrino's training program is producing local applicants with carpentry, plumbing, electrician and other skills that were not in the job market before. When a renewal in one of those categories comes up, we are now training local applicants with the skills to claim these jobs and they are successful in doing so.

Incentive exemption

The letter-writers ask why we have an incentive exemption, and they blame the exemption for shutting locals out of jobs. The answer is that we have the exemption in order to encourage businesses to hire locals and the exemption actually creates good jobs for locals; it does not shut locals out. This came about as a result of a year-long study led by the Public Auditor's Office, which recommended that the Legislature ultimately adopt this Incentive Exemption as it opens up those jobs paying more than the minimum wage to qualified locals. In order to give businesses that hire local workers in good jobs some competitive reward, PL 15-108 allowed a limited incentive exemption. The incentive exemption can be claimed only when an employer has reached the performance benchmark in hiring locals well above that required by the workforce participation provision.

Phasing out of the incentive exemption

The Legislature gave the Labor Department the regulatory power to phase out the incentive exemption, and the Department has been doing that over time since PL 15-108 was enacted. Four months ago, the Department began a consulting process with respect to further proposed changes in the exemption. It is very important that labor regulations not cause businesses the kind of increased costs and burdens that contribute to closures. If we do that, we lose jobs forever. After taking into considerations the comments we got in the informal consultation process, in May, the Department proposed regulations that would increase the performance benchmark to 50% (from 35%) U.S. citizen employment in designated job categories in order to qualify for the exemption, and that would limit the job categories to which the exemption applies. Those regulations go into effect on July 1, 2009. This change will cut back the exemption.

Small business exemption

The letter-writers complain about the small business exemption, which allows businesses with fewer than five employees relief from the job preference requirements. At the time PL 15-108 was enacted (and today), the concern of the Legislature was that small businesses both fail more quickly, thus eliminating jobs, and are the engine of recovery from an economic depression because they start up more quickly when the economy turns around. The Legislature wanted to encourage small businesses. For the same reason, legislators in the House have recently proposed allowing small businesses relief from the gross receipts tax.

Phasing out of the small business exemption

The Legislature gave the Labor Department the regulatory power to phase out the small business exemption, and the Department has been doing that over time since PL 15-108 was enacted. Last year, I issued a notice that required all retail businesses that accept food stamps to have at least one U.S. citizen employee. This opened up about 100 jobs for U.S. citizens. This year, we have increased the requirement so that all small businesses of any kind must have at least one full-time U.S. citizen employee. This change will cut back the exemption.

Standards

One important feature of PL 15-108 was to eliminate discretionary waivers and require that exemptions be based on objective standards set out in regulations. The Director of Employment Services enforces standards rigorously. An employer either qualifies for an exemption or does not. We do not do favors for anyone. All employers are measured by the same standards. The system is fair and effective in meeting competing interests of preserving businesses and jobs and, at the same time, ensuring citizen access to available jobs.

Enforcement

The Director of Employment Services and the Director of Labor have effective processes in place to enforce the requirements of PL 15-108 that provide U.S. citizens preference for available jobs. Citizen complaints are investigated and those who violate the law are prosecuted under agency cases brought by the Director of Labor. The Hearing Office deals quickly with any complaints from citizens that a foreign worker has been hired over a qualified citizen. Whatever may have been complaints about enforcement in past Administrations, these people are dedicated civil servants doing their jobs well.

It is not possible to satisfy everyone. Some citizens will not find jobs for reasons that employers find compelling and that are not prohibited by law. Anyone who has hired any kind of employee, even a houseworker, knows that there are certain important traits that employers want to see in employees. The Labor Department is doing a good job in assisting U.S. citizens to find and take advantage of the job opportunities available to them that they are qualified for. We have come a long way over the past three years, and we continue to look for ways to improve. I welcome citizen comments. My e-mail address is depsec2@gmail.com.

Jacinta Kaipat is the Deputy Secretary of the CNMI Department of Labor.

Thursday, June 4, 2009

The Labor-Business Balance

Friday, June 05, 2009
Opinion
Friday, June 05, 2009


By JACINTA M. KAIPAT
Special to the Saipan Tribune

I write to all our citizens who are concerned about finding jobs in the Commonwealth. This is my No. 1 priority in the Labor Department. We need to open available jobs to our citizens in a fast and effective manner, but we have to be careful about how we do this.

In our situation of serious economic decline, the labor-business balance in the Commonwealth is more important than ever. Citizens want a preference for all jobs; they don't want businesses using foreign workers when unemployment among citizens continues to occur. Businesses want a preference for business-friendly policies; they don't want to be burdened with extra costs at a time when the minimum wage is rising dramatically and the market in the Commonwealth, especially for tourist services, is declining.

Each side has a point. First, it is important that our citizens be employed. That is the only way we can keep our talented people from migrating to the States or falling into poverty here at home. Second, it is important that every business survive this economic downturn because businesses create jobs. If businesses fail, then jobs disappear altogether, and there are no jobs to take their place. When that happens, the entire community loses.

As a community, we must do the best we can for each side of the labor-business balance. Our current labor law, P.L. 15-108, which was enacted in 2007, does that.

On the Labor side, to push for citizen employment, the law provides five basic tools:

1. We have a workforce participation requirement of 20 percent. Citizens must hold 20 percent of the full-time positions in every business in the Commonwealth. That percentage will increase to 30 percent by 2012. In addition, in the proposed regulations, we have increased the requirement for small businesses (fewer than five employees) to employ at least one citizen employee.

2. We have a job vacancy announcement requirement. Every job available in the Commonwealth must be advertised so that citizens know what jobs are available.

3. We have a citizen-preference requirement, so that a citizen who is qualified for a particular job must be given preference in hiring over a foreign worker.

4. We have an approved process for jobs that go to foreign workers-new, renewal, or transfer-so that before giving a job to a foreign worker, the first three requirements must be met. Under the Labor Department's new automation system, we are able to give these requests for approval much more rigorous scrutiny.

5. We have a citizen claims provision that, in the event a foreign worker was hired for a job for which a citizen applicant was qualified, the citizen may make a complaint to the Labor Department and, if he or she wins, collects up to six months in wages from the employer who made the hiring decision.

In addition, there are fees attached to the use of foreign labor (application fees, processing fees, and bonding fees), medical, and repatriation expenses that make the use of foreign labor more expensive. These fees are increased from time to time to cover Labor Department costs and contribute to the Commonwealth revenues.

On the business side, the Labor law recognizes that there are costs involved to businesses from limitations on the free-market for labor. When we impose hiring requirements, there are record-keeping costs in connection with compliance. When we require a citizen preference, there are substantial costs involved in losing the experience of the worker who has previously held the job. Training new workers, even if only for a few months, incurs costs. Any regulatory system imposes delays on businesses, and every delay also involves costs. Additional costs are very difficult for any business to absorb during an economic downturn without cutting jobs. To ease the transition to citizen labor over a three-year period, the Labor law provides four benefits to businesses:

1. We are phasing out the moratorium and we have suspended the periodic exit that imposed recording-keeping costs.

2. We have allowed an exemption from the citizen preference (but not the 20 percent requirement) for lower-paying jobs when a business achieves 35 percent citizen employment in high-paying jobs. We have just increased this to 50 percent in the proposed regulations so the exemption will be harder to get. This exemption will continue to get smaller next year.

3. We have allowed more part-time work and two-year contracts temporarily during the economic depression.

4. We have paid for and installed an interactive website so businesses do not have to pay to advertise jobs, and we have paid for and installed a new automation system so delays are now a matter of only a few days rather than weeks or months.

I believe that this balance is a fair one to both sides: citizens who want jobs, and businesses who want to avoid having to close down. The statistics indicate that most of the permanent loss of jobs during the economic depression has fallen on foreign workers. Their numbers have declined from more than 30,000 in 2005 to fewer than 16,000 today. Even after the garment manufacturers closed down, foreign workers continue to be displaced. More than 2,000 departed the Commonwealth just in the last 12 months. We do not have good statistics on citizen employment because the U.S. Census Bureau does not give the Commonwealth and other territories the same kind of data services it routinely provides to States and counties in the U.S. We are hopeful that our Delegate in Congress can do something about this.

The system is not perfect. Not every citizen will find the kind of job he or she wants. But on the whole, by maintaining a labor-business balance, we will have more citizens employed and keep more businesses open and operating-providing more jobs are available in this economy. I understand the pain and frustration of those individuals who cannot find the jobs they need. The Labor Department is working hard to make available as many job opportunities as possible. I believe we can work our way through this economic depression more successfully with labor-business harmony and this will benefit everyone in our community.

Jacinta M. Kaipat is the Deputy Secretary of Labor and a former House of Representatives lawmaker.