CNMI LABOR FORUM

DHS to Issue One Other NMI Federalization Rule in March

2010-12-22T14:00:00.000-08:00

Local
Thursday, December 23, 2010

DHS to issue one other NMI federalization rule in March

By Haidee V. Eugenio
Reporter

Besides a March 2011 self-imposed deadline to release the long-awaited CNMI-only transitional worker rule, the U.S. Department of Homeland Security also intends to issue during that period the final rule on the application of federal immigration regulations to the CNMI.

This pertains to the DHS and U.S. Department of Justice's implementation of conforming amendments to their own regulations to comply with Public Law 110-229, which federalized CNMI immigration on Nov. 28, 2009.

The final rule amends the regulations governing asylum and references to the geographical “United States” and its territories and possessions, among other things.

It also amends the rules governing alien classifications authorized for employment, documentation acceptable for employment eligibility verification, employment of unauthorized aliens, and adjustment of status of immediate relatives admitted under the Guam-CNMI Visa Waiver Program.

DHS' previous self-imposed deadlines on the release of the final E-2 CNMI-investor rule in July 2010 and the CNMI-only transitional worker rule in September 2010 were not met.

DHS just issued the final investor rule this month, and the final worker rule is set to be released six months after the first deadline.

Gov. Benigno R. Fitial said he would like to ask Homeland Security Secretary Janet Napolitano early next year to allow the CNMI to continue implementing its labor and immigration laws absent the implementation of federal statutes or rules.

'Premium processing suspension'

At the same time, DHS' U.S. Citizenship and Immigration Services suspended the “premium” or expedited processing for petitioners filing a Form I-129 on behalf of a CNMI nonimmigrant worker “requesting a change of status or initial grant of status.”

The Form I-129 is for employers who petition for an alien to come to the U.S. temporarily to perform services or labor, or to receive training, as an H-1B, H-1C, H-2A, H-2B, H-3, L-1, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1 or R-1 nonimmigrant worker, USCIS said in its website.

Employers may also use this form to request an extension of stay or change of status for an alien as an E-1, E-2, or TN nonimmigrant.

“USCIS is suspending premium processing for change of status or initial grant of status in the [CNMI] until we can reasonably ensure that we can complete processing within 15 calendar days,” USCIS said in a statement.

Premium processing service provides faster processing for certain employment-based petitions and applications.

Specifically, USCIS guarantees15 calendar day processing to those petitioners or applicants who choose to use this service, or USCIS will refund the premium processing service fee.

USCIS said the suspension of premium processing only affects petitions requesting change of status or initial grant of status.

“USCIS will continue to provide premium processing services for Form I-129, Petition for a Nonimmigrant Worker, petitions for workers in the CNMI who request a consulate or embassy be notified of an approved petition; an extension of status; or an amendment to his or her status,” the federal agency said.

Information about premium processing service, including who may request this service, is available on the USCIS website at www.uscis.gov or by calling the USCIS National Customer Service Center toll free at (800) 375-5283.

The public is encouraged to continue checking the CNMI web page at www.uscis.gov/cnmi for announcements and updated information.

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Aliens Can Change Status W/O Leaving CNMI

2010-12-19T11:55:00.000-08:00

Local
Monday, December 20, 2010

Aliens can change status without leaving CNMI

By Haidee V. Eugenio
Reporter

The U.S. Citizenship and Immigration Services issued on Tuesday a policy memorandum allowing aliens to obtain a non-immigrant status in the CNMI without having to leave the islands.

The policy memorandum takes effect immediately.

David Gulick, district director of USCIS Honolulu District 26, said the grant of status policy memo would affect mostly those who are seeking R status, along with H1B, H2B, and H3 status. R-1 is for temporary religious workers, while R-2 is for the spouse/children of an R-1.

“These are the main groups that should be taking advantage of that policy. That will save people some trips; they don't need to travel outside to get their status,” Gulick said at a news briefing on Saturday about the policy memo.

In most cases, an individual in the U.S. without a non-immigrant status needs to leave the country in order to obtain a non-immigrant classification.

But the USCIS has made exceptions for individuals in the CNMI with CNMI permits or parole authorization.

“If you are a CNMI worker with a valid CNMI work permit or parole status, immigration officials may consider you lawfully present in the CNMI for the purposes of obtaining a grant of initial grant of status,” the USCIS said.

The USCIS is one of the component agencies of the U.S. Department of Homeland Security which is the lead agency overseeing the federal takeover of CNMI immigration.

Those who are eligible for an initial grant of status are those who are lawfully present in the CNMI, were present in the CNMI before Nov. 28, 2009, do not currently hold a non-immigrant classification, and are admissible.

The policy memo applies to and binds all USCIS employees who adjudicate petitions and applications for non-immigrant status.

It adds Chapter 36.4 to the Adjudicator's Field Manual, “Waivers of Inadmissibility and Grants of Status for Certain Aliens Seeking Nonimmigrant Status in the Commonwealth of the Northern Mariana Islands.”

USCIS said allowing for the grant of nonimmigrant status to eligible aliens who are physically present in the CNMI will help encourage these aliens and their employers to seek an appropriate, federal immigration status for themselves and their employees.

“This (policy memo) is consistent with congressional intent to promote as rapid and smooth a transition as possible from former CNMI statuses to federally based statuses,” the federal agency added.

More information is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/December/cnmi-status.pdf.

DHS Issues Final Investor Rule for CNMI

2010-12-19T11:51:00.000-08:00

Local
Monday, December 20, 2010

DHS issues final investor rule for CNMI
2-year status covers those with $50,000 minimum investment
By Haidee V. Eugenio
Reporter

The U.S. Department of Homeland Security issued the long-awaited final E-2 CNMI-only investor rule which, among other things, allows eligible foreign long-term investors with a minimum of $50,000 instead of $150,000 in investments to remain in the CNMI through Dec. 31, 2014.

Eligible investors can start applying for this status on Jan. 18, 2011.

DHS' U.S. Citizenship and Immigration Services said petitions received prior to Jan. 18, 2011 will be rejected.

The E2 CNMI investor visa is valid for two years, is renewable, and is valid only in the CNMI.

The investor's spouse and children may also apply for a status as dependents of the investor.

DHS issued the final investor rule almost 15 months after U.S. Public Law 110-229, which placed CNMI immigration under federal control, required them to publish it.

By the end of the federalization transition period on Dec. 31, 2014, these investors are required to obtain another U.S. immigrant or nonimmigrant visa classification.

The E-2 CNMI investor rule will be published in the Federal Register on Dec. 20 in Washington, D.C. or Tuesday, Saipan time.

It is now available for review at http://www.ofr.gov/OFRUpload/OFRData/2010-31652_PI.pdf.

Those eligible to apply for the E-2 CNMI investor status include long-term business investors, foreign investors, and retiree foreign investors.

Major change

David Gulick, district director of USCIS Honolulu District 26, said the reduction in investment for eligibility to apply for an investor status is the “major change” in the proposed rule.

He said DHS made a great deal in considering the 13 comments received.

“What I personally hope people would realize is that if you read the comment section, that peoples' comments were seriously considered. In fact, there was one change in the rule, the $50,000 from $150,000. We do take comments seriously,” Gulick said at a news conference on Saturday afternoon.

Gulick also briefed some stakeholders in the CNMI community about the final rule, which provides the procedures to obtain status as an E-2 CNMI investor.

Were it not for this modification in the proposed rule, most of the estimated 500 long-term foreign investors in the CNMI would not qualify to apply for this status because their minimum investments do not meet the $150,000 proposed threshold.

This goes along with DHS' goal and U.S. Congress' intent of minimizing the potential adverse economic impact of P.L. 110-229 or the Consolidated Natural Resources Act which was signed in May 2008 but took effect on Nov. 28, 2009, with a transition period ending Dec. 31, 2014.

The final rule also clarifies the authority and process by which applicants in the CNMI can be granted E-2 CNMI investor status in the CNMI without having to travel abroad to obtain a nonimmigrant visa.

No worker rules yet

During the news briefing, Gulick said the transitional worker regulations are still being developed.

He said there's no telling when those will be published, along with the final rule on the tourist visa waiver program.

Delegate Gregorio Kilili C. Sablan, for his part, said while DHS has made progress by issuing the investor regulation, he continues to stress to DHS officials that all regulations implementing P.L. 110-229 “must be issued, particularly the CNMI-only Transition Worker Classification.”

“The delays continue to cause harm to our struggling economy and are contrary to the intent of the law,” he said.

Other stakeholders have yet to fully review the investor rule, and have deferred comment at this time.

If you need more information

Gulick said he will be on Saipan until Wednesday, Dec. 22, and will make himself available to investors who have questions about the E-2 CNMI investor rule.

He said investors can walk in and see him if he's at the Saipan Application Support Center at the TSL Plaza in Garapan between today and Wednesday.

After Wednesday, investors need to make Infopass appointments to ask questions about the investor rule.

Gulick said he will be visiting the Japanese Consulate on the investor rule, and will also make himself available for presentations to representatives of the Korean business community, the Chinese business community, the Saipan Chamber of Commerce, and other stakeholders in the CNMI.

In the second to fourth week of January 2011, USCIS will send a team of experts to the CNMI to make presentations and answer specific questions about the investor rule.

“Included in that team will be representatives of the California Service Center, which will be the one handling these petitions. They will be able to meet with all you guys to go over the regulation, they will have power point presentation, they will be able to answer questions in depth,” Gulick said.

He said the holiday break will give investors and other stakeholders a chance to go over the investor rule and formulate specific questions they may have, in time for the visit of the USCIS representatives from California.

Fees, qualification

The current processing fee for Form I-129 is $325, plus an $85 biometrics fee for certain beneficiaries who require an initial grant of status in the CNMI.

Fee waivers for inability to pay are available.

To qualify for E-2 CNMI investor status, the applicant must:

Have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before Nov. 28, 2009;

Have continuously maintained residence in the CNMI under long-term investor status;

Currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and

Otherwise be admissible to the United States under the U.S. Immigration and Nationality Act.

Investors who were admitted to the CNMI in long-term investor status under CNMI immigration law qualify to apply for an E-2 CNMI investor status.

They include long-term business investors that the CNMI issued a long-term business certificate based upon an investment of at least $50,000.

They also include those with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment.

Investors eligible also include retiree investors over the age of 55 years who were issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI, but not including the two-year non-renewable retiree investor program limited to Japanese nationals.

Q&A: E-2 CNMI Non-Immigrant Investor Status

2010-12-19T11:21:00.000-08:00

Q&A: E-2 CNMI Nonimmigrant Investor Status
Monday, December 20, 2010 12:00AM
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(USCIS) — U.S. Citizenship and Immigration Services posted a final rule in the Federal Register that creates a nonimmigrant investor visa classification in the CNMI.

The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014 and is intended to help with the transition to U.S. immigration law in the CNMI.

This final rule implements one of the CNMI-specific provisions of the Consolidated Natural Resources Act of 2008, which extends the immigration laws of the United States to the CNMI.

Background

The Consolidated Natural Resources Act of 2008, Public Law 110-229 was signed into law on May 8, 2008. Title VII of this law extends the immigration laws of the United States to the CNMI. One provision of the CNRA authorizes the Secretary of Homeland Security to classify, during the transition period, an foreign investor in the CNMI as an E-2 nonimmigrant investor. This transition period formally began on Nov. 28, 2009 and is set to end on Dec. 31, 2014. Accordingly, USCIS’s rule allows foreign long-term investors to reside in the CNMI through December 2014 in CNMI E-2 nonimmigrant investor status. This rule temporarily resolves the immigration status of long-term investors in the CNMI and provides them time in which to obtain another lawful immigration status under the provisions of the Immigration and Nationality Act. As with other immigration benefits, individuals must apply for E-2 CNMI Investor status.

Q1. Why did USCIS create this rule?

A1. As required by the CNRA, this final rule enables long-term foreign investors in the CNMI to apply for status as CNMI-only E-2 nonimmigrant investors. USCIS created this transitional regulatory provision because of the unique nature of CNMI investors who are not otherwise immediately eligible to obtain U.S. immigrant or nonimmigrant visa classifications.

Q2. What is the CNMI-only E-2 nonimmigrant investor status?

A2. The rule establishes a transitional status that does not exist anywhere else in the United States to temporarily resolve the immigration status of long-term investors in the CNMI by allowing foreign long-term investors to obtain status to reside in the CNMI through December 2014.

Q3. Why is this category temporary?

A3. The CNRA only provided for this status during the transition period. The E-2 CNMI Investor status is intended to help with the transition to U.S. immigration law in the CNMI. These investors are required to obtain another U.S. immigrant or nonimmigrant visa classifications by the end of the transition period, or Dec. 31, 2014.

Q4. What forms of work authorization are investors currently using in the CNMI?

A4. Since the transition period began on Nov. 28, 2009, most investors are continuing to work under CNMI-issued “umbrella permits” or other CNMI work authorization permits issued prior to that date. These permits are valid until Nov. 27, 2011, or their date of expiration, whichever is sooner.

Q5. What are the existing foreign investor requirements under the INA?

A5. Under U.S. immigration law, foreign investors may enter the United States as nonimmigrants within the treaty investor classification with an E-2 visa or may change to E-2 treaty investor nonimmigrant status from within the United States.

To qualify for E-2 treaty investor status, treaty investors must:

• Invest a substantial amount of capital in a bona fide enterprise in the United States;

• Seek entry solely to develop and direct the enterprise;

• Enter the United States according to treaty provisions;

• Be nationals of a country with which the United States has a treaty of friendship, commerce, or navigation; and

• Intend to depart the United States when their treaty investor status ends.

Q6. What happens at the end of the transition period?

A6. At the end of 2014, the transition period will expire and the E-2 CNMI investor status and visa will expire. Therefore, individuals in the CNMI with E-2 CNMI status must depart the CNMI at the end of the transition period or qualify for and obtain another nonimmigrant or immigrant status in order to lawfully remain in the CNMI.

Q7. When does the transition period end?

A7. The transition program will last through Dec. 31, 2014.

Q8. Will any extensions of the transition period, as determined by the Secretary of Labor, affect eligibility for the CNMI-only investor visas?

A8. No. The CNMI-only investor status ends at the end of the transition period. Any extension by the Secretary of Labor will apply only to the CNMI transitional worker category. As mandated by the CNRA, the investor provisions will terminate on Dec. 31, 2014, regardless of whether an extension to the transitional worker provision occurs.

Q9. What nonimmigrant or immigrant statuses can investors in the CNMI apply for?

A9. That will depend upon individual circumstances. Investors who obtain the E-2 CNMI nonimmigrant investor status have until the end of 2014 to adjust or change their status. (Similarly, investors in the CNMI may apply for a nonimmigrant or immigrant status for which they qualify without first obtaining the E-2 CNMI investor status, however, they may not adjust status to a business based immigrant status without first obtaining an INA based nonimmigrant status.) Some examples of nonimmigrant or immigrant status that an E-2 CNMI Investor may be eligible are:

• To qualifying for an L-1A nonimmigrant executive or managerial visa;

• Adjusting status based on the status of family members; or

• Qualifying under other investor or employment-based visas.

Q10. What happens to dependents of CNMI E-2 Investors during the transition period?

A10. During the transition period, dependents (spouses and children) can qualify for dependent status under the CNMI E-2 Investor final rule. Dependents will follow normal procedures with respect to extensions or changes of status for nonimmigrants.

Upon the end of the transition period, spouses and children also will be subject to the same regulations as other immigrants. For example, if the E-2 CNMI Investor qualifies for a change of status to regular E-2 status at the end of the transition period, his or her dependents would have to apply for a change of status as well and qualify under those statutory and regulatory provisions.

Q11. Who qualifies for the CNMI-only "E-2" nonimmigrant investor visa?

A11. To qualify for E-2 CNMI Investor status, the primary applicant must:

• Have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before Nov. 28, 2009;

• Have continuously maintained residence in the CNMI under long-term investor status;

• Currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and

• Otherwise be admissible to the United States under the U.S. Immigration and Nationality Act.

Q12. Which current CNMI investor statuses qualify?

A12. Individuals who were admitted to the CNMI in long-term investor status under CNMI immigration law qualify, specifically:

• A long-term business investor who was issued a long-term business certificate by the CNMI based upon an investment of at least $50,000;

• A foreign investor with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment; and

• A retiree investor over the age of 55 years who was issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI (but not including the two-year non-renewable retiree investor program limited to Japanese nationals).

Q13. How did USCIS decide which categories will qualify under the final rule?

A13. The CNRA refers to admission in “long-term investor” status under the laws of the CNMI when creating the E-2 CNMI Investor status. Only CNMI categories that mandated a fixed minimum threshold amount of investment and are renewable over a period of multiple years (long-term) were considered to be “long-term investor” statuses for this rule, namely the three categories listed above (long-term business investor, foreign investor, and retiree foreign investor).

Q14. How many people are currently in these three CNMI long-term investor categories?

A14. USCIS estimates that there are approximately 500 foreign-registered investors in the CNMI long-term investor categories.

Q15. Which CNMI Investor categories are not eligible for E-2 CNMI Investor status under the rule?

A15. Other investors, including the following, are not eligible for this E-2 visa under the final rule:

• The sub-category of the retiree investor specifically limited to Japanese retirees;

• Short-term business entry permits; and

• Regular-term business entry permits.

Q16. Why is the sub-category of the retiree investor specifically limited to Japanese retirees not eligible for E-2 investor status?

A16. The rule does not consider this category eligible, as these individuals do not classify as “long-term investors.” The CNMI permit for the two-year program for Japanese retirees is nonrenewable and only requires monthly rental payments rather than long-term investment.

Q17. What can these Japanese retirees do once their permit expires?

A17. By Nov. 27, 2011, or the expiration of the Japanese retiree investor’s CNMI-issued permit (whichever occurs first), the individual must depart the CNMI unless he or she applies for and is eligible to remain in the CNMI under another lawful status.

Q18. Why are individuals with short-term and regular-term business entry permits not eligible for E-2 investor status?

A18. Foreign nationals lawfully admitted under the CNMI short-term business entry permit or the regular-term business entry permit categories are not eligible because these permits are not long-term and they do not require investments.

Q19. If individuals with short-term and regular-term business entry permits are not eligible for an E-2 CNMI Investor visa, what can they do?

A19. Individuals with short-term and regular-term business entry permits will not be eligible to obtain the E-2 CNMI Investor visa and therefore must depart the CNMI at the expiration of their CNMI issued status or Nov. 27, 2011, whichever occurs first OR apply for and obtain another immigrant or nonimmigrant classification under the INA that permits them to remain in the CNMI.

Q20. Will foreigners who had pending CNMI Investor applications on Nov. 28, 2009, be eligible for the new E-2 CNMI Investor status?

A20. Foreign nationals who were not admitted as eligible CNMI investors prior to the beginning of the transition period are not eligible for classification as E-2 CNMI nonimmigrant investors. Therefore, individuals who had investor applications pending with the CNMI as of the transition program effective date are not eligible for E-2 CNMI Investor status.

Q21. Is an individual with an approved investor application eligible for E-2 CNMI Investor status?

A21. An individual who was not admitted as an eligible CNMI investor prior to Nov. 28, 2009, is not eligible for classification as E-2 CNMI nonimmigrant investor. Therefore, an individual who has an approved investor application but was not admitted to the CNMI as of the transition program effective date is not eligible for E-2 CNMI Investor status.

Q22. What does the E-2 CNMI Investor visa requirement “continuous maintenance of residence” mean? What if an investor travels regularly outside CNMI?

A22. “Continuous maintenance of residence in the CNMI” means residence in the CNMI from the date that an individual obtained his or her CNMI status through the date on which USCIS grants the new E-2 CNMI Investor status. This is not the same as continuous physical presence; therefore, an investor does not need to remain in the CNMI for the entire period in order to have maintained continuous residence. The rule provides, however, that an investor must be physically present in the CNMI for at least half the time for which continuous residence is required. Additionally, an individual will not maintain continuous residence if he or she leaves the CNMI for more than one year or leaves the CNMI for more than six months and cannot demonstrate that he or she did not abandon his or her residence by this absence.

Q23. Can an investor lose his or her status?

A23. Yes, an investor could lose immigration status if he or she does not maintain the investment(s) that formed the basis for admission. To establish that an investor is maintaining the investment or investments that formed the basis for admission to the CNMI, the rule requires each applicant to provide specific evidence demonstrating that the investor is in compliance with the terms upon which the CNMI investor certificate was issued. Additionally, as previously mentioned, an investor can lose immigration status is he or she does not maintain continuous residence in the CNMI.

Q24. What evidence must an applicant for E-2 CNMI Investor provide?

A24. All documentation previously submitted in each investor application to the CNMI government should be submitted as part of each E-2 CNMI petition to USCIS.

All individuals must provide the following evidence of lawful admission to the CNMI:

• A valid unexpired foreign passport; and

• A properly endorsed CNMI admission document (e.g., entry permit, entry certificate or foreign investor visa) with a period of validity that includes Nov. 28, 2009.

Individuals with a CNMI-issued foreign investor entry permit or long-term business entry permit

An applicant with a CNMI-issued foreign investor entry permit or long-term business entry permit must submit evidence to show that he or she has maintained his or her investment with the E-2 CNMI Investor application. This evidence could include:

• An approval letter issued by the CNMI government;

• Evidence that capital has been invested, such as bank statements, receipts or contracts for assets purchased, stock purchase transaction records, loan or other borrowing agreements, land leases, financial statements, business gross tax receipts, or other agreements supporting the application;

• Evidence that the applicant has invested at least the minimum amount required, such as evidence of assets purchased or property transferred from abroad for use in the enterprise, evidence of monies transferred or committed to be transferred to the new or existing enterprise in exchange for shares of stock, any loan or mortgage, promissory note, security agreement or other evidence of borrowing secured by assets of the applicant;

• A comprehensive business plan for new enterprises;

• Articles of incorporation, by-laws, partnership agreements, joint venture agreements, corporate minutes and annual reports, affidavits, declarations or certifications of paid-in capital;

• Current business licenses;

• Foreign business registration records, recent tax returns of any kind, evidence of other sources of capital;

• A listing of all resident and nonresident employees;

• A listing of all holders of business certificates for the business establishment; or

• A listing of all corporations in which the applicant has a controlling interest.

For the holder of a certificate of foreign investment, copies of annual reports of investment activities in the CNMI showing that the certificate holder is under continuing compliance with the standards required. Each report must be accompanied by an annual financial audit report performed by an independent certified public accountant.

Individuals with a CNMI-issued retiree investor permit

CNMI retiree investors should submit the following with their applications for E-2 CNMI Investor status:

• Proof that the foreign applicant has an interest in property in the CNMI, such as a lease agreement;

• Proof of the value of that property, such as an appraisal; and

• Proof of any improvements to the property, which could include receipts or invoices of the costs of construction, the amount paid for a preexisting structure, or an appraisal of improvements.

Q25. When can individuals apply for E-2 CNMI Investor status?

A25. Petitions for E-2 CNMI Investor status may be filed on Jan. 18, 2011. Any petitions received prior to Jan. 18, 2011 will be rejected. E-2 CNMI investors may apply for changes of status to any other nonimmigrant or immigrant visa classifications for which they may qualify anytime during the transition period.

Q26. What is the final date that initial petitions will be accepted for the E-2 CNMI Investor visa?

A26. The final acceptable filing date for initial E-2 CNMI investor petitions will be Jan. 18, 2013.

Q27. What application must be submitted for the E-2 CNMI Investor visa?

A27. The existing Form I-129, Petitioner for a Nonimmigrant Worker, with Supplement E is the application form used for requesting E-2 CNMI Investor status.

Q28. What is the cost of the application?

A28. The processing fee for Form I-129 is $325. In addition, the biometrics fee for applicants present in the CNMI who are applying for an initial grant of status is $85.

Q29. Where should I file the application?

A29. Most U.S. immigration applications, including the Form I-129, are filed by mail. Detailed instructions for each form, including the address to which the application should be sent, are found on-line at www.uscis.gov/forms. All E-2C petitions are filed with the California Service Center at: P.O. Box 10698, Laguna Niguel, CA 92607-1098. All courier/express deliveries should be forwarded to 24000 Avila Road, 2nd Floor, Room 2312, Laguna Niguel, CA 92677.

You must be present in the CNMI or outside the United States at the time your application is filed with USCIS. If you are outside the United States upon approval, you will need to obtain an E-2 CNMI Investor nonimmigrant visa at a United States Embassy or consulate abroad to be admitted to the CNMI as an E-2 CNMI Investor.

Q30. Is a fee waiver available?

A30. Yes, the final rule allows the applicant to file for a fee waiver. If you wish to apply for a fee waiver, you must complete and submit a Form I-912, Request for Fee Waiver with the Form I-129 petition.

Q31. Why does the rule permit a fee waiver for an “investor” who would have to make a relatively significant monetary investment to qualify for the visa?

A31. Waiver of the fee for filing Form I-129 is normally not permitted. However, USCIS is allowing a waiver limited to investors under this rule in the CNMI due to the current adverse economic conditions there and because of the retirees and proprietors of small businesses included in this new nonimmigrant category. The fee waiver provision is limited to those who show inability to pay. USCIS understands that some CNMI E-2 Investor eligible retiree investors may have invested the majority of their savings in their investment residences, may be living on fixed incomes, and may qualify for waivers.

Applicants in the CNMI who are applying for an initial grant of status must also submit the biometric service fee. This fee is waivable for inability to pay under current USCIS regulations.

Q32. What can I do if my application is denied?

A32. As with other adjudications of Form I-129, the denial of an E-2 CNMI investor application may be appealed to the USCIS Administrative Appeals Office for a review.

Q33. Does immigration status extend to dependents of E-2 CNMI Investors?

A33. The rule allows dependents of the principal E-2 CNMI Investor to accompany or follow-to-join the principal investor, irrespective of the nationality of these dependents. To qualify for this status, the spouse and children must be otherwise admissible to the United States under the INA. As outlined below, to obtain this status, a dependent living in the CNMI must submit a Form I-539, Application to Extend/Change Status.

Q34. How does a dependent (a spouse or child) obtain derivative E-2 CNMI Investor status?

A34. If a dependent is living in the CNMI, he or she must submit a Form I-539, Application to Extend/Change Status. The fee for this form is $290, plus the biometric fee of $85 if requesting an initial grant of status in the CNMI. Fee waivers are available for inability to pay. If abroad, the spouse and/or child should not file the Form I-539 but each dependent needs to apply for an E-2 CNMI visa at the appropriate U.S. embassy or consulate.

Q35. For how long is the E-2 CNMI Investor visa valid?

A35. The initial admission period is two years. Upon approval of their application(s) for derivative status, the spouse and minor children accompanying or following-to-join an E-2 CNMI investor would be admitted for the same period that the principal investor is in valid E-2 CNMI Investor status.

Q36. What happens to dependents if an E-2 CNMI Investor temporarily departs from the CNMI?

A36. The derivative status of the dependent spouse and children would not be affected, provided that the familial relationship continues to exist and the principal remains eligible for admission as an E-2 CNMI investor.

Q37. How will work authorizations be handled?

A37. All E-2 CNMI Investor principal and spousal employment authorization is limited to employment in the CNMI. Certain investors and their spouses will be eligible to work in the CNMI:

• The E-2 CNMI Investor is authorized to work for a specific employer determined by the long-term investor status under CNMI law on which the grant of E-2 CNMI Investor status is based.

• The spouse of an E-2 CNMI Investor may request employment authorization after he or she lawfully obtains E-2 CNMI Investor status and lawfully enters the CNMI. Spouses of E-2 CNMI Investors who initially had CNMI Retiree Investor Certificates are not authorized to seek employment authorization.

• Work authorization is not permitted for children of E-2 CNMI investors.

• Neither E-2 CNMI Investors with status under a retiree investment permit nor their spouses are work-authorized. Entering the CNMI as a “retiree” is inconsistent with obtaining employment.

The E-2 CNMI Investor principal’s work authorization is employer-specific incident to the E-2 CNMI Investor status, so the principal does not need to apply for an Employment Authorization Document. The investor’s passport and Form I-94 showing E-2 CNMI Investor status are acceptable forms of documentation to complete the Employment Eligibility Verification, Form I-9, when commencing any new employment authorized under that status. A spouse must apply for an EAD, using Form I-765, in order to be granted employment authorization. If granted an EAD, the spouse may use it as evidence of identity and work authorization for Form I-9 purposes with any employer in the CNMI.

Q38. What happens if an individual changes employers without filing with USCIS?

A38. An unauthorized change of employment to a new employer could cause the individual to lose lawful status.

Q39. May E-2 CNMI Investors apply for extensions?

A39. Yes. An individual may apply for an extension before the status expires. An individual with E-2 CNMI Investor status may apply for an extension until the end of the transition period.

Q40. What will be required for an extension of stay?

A40. To apply for an extension of stay, an E-2 CNMI investor must file a new Form I-129 and Supplement E with the required evidence and fee.

Q41. Does this visa allow an E-2 CNMI Investor to travel elsewhere in the United States?

A41. No. E-2 CNMI Investor status for long-term CNMI investors is a “CNMI-only nonimmigrant” status, and does not exist within the United States as a whole. It does not authorize entry to Guam or to any other part of the United States. However, it does not bar travel if the investor is otherwise authorized and admissible to the United States in another status.

Q42. What would happen if an E-2 CNMI Investor traveled to another part of the United States solely based up the CNMI-only E-2 visa?

A42. Travel or attempted travel from the CNMI to another part of the United States without the appropriate visa or other authorization is a violation of the E-2 CNMI Investor status. If an individual fails to comply with the conditions of the E-2 CNMI Investor status, he or she would be deportable from the CNMI or any other U.S. location.

Q43. Could an E-2 CNMI Investor travel outside the United States and then return to the CNMI?

A43. Yes, the final rule allows for travel outside the U.S. However, individuals who are present in the CNMI under a CNMI-only nonimmigrant status who depart and desire to return in the same status must obtain a visa from the U.S. Department of State in order to be readmitted to the CNMI. Therefore, if an E-2 CNMI Investor obtained his or her status from USCIS in the CNMI, he or she would need to obtain an E-2 CNMI Investor visa from a U.S. Embassy or Consulate in order to be readmitted to the CNMI, regardless of nationality. USCIS approval of E-2 CNMI Investor status provides status while present in the CNMI, but does not eliminate the requirement of a visa for admission to the CNMI.

Q44. What is the process for obtaining a visa overseas?

A44. Once USCIS approves a petition for E-2 CNMI Investor classification, the investor should apply for an E-2 CNMI Investor visa at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence.

Q45. How many public comments were received in this rule making and were they taken into account?

A45. USCIS received 13 comments. DHS and USCIS reviewed and considered each comment that was submitted. In one of the most significant changes resulting from public comments, the final rule reduced the minimum investment of a CNMI Long-Term Business Entry Permit holder with a CNMI Long-Term Business Certificate to $50,000 from the $150,000 threshold in the proposed rule. USCIS also clarified the manner in which E-2 CNMI Investor status will be granted directly in the CNMI using appropriate waiver authority under the INA, without requiring investors to travel abroad to obtain a visa in order to be admitted in E-2 Investor status. All comments received are posted without change to http://www.regulations.gov, as part of the final rule.

Feds Issue Rule for NMI-Only Investor Program

2010-12-19T11:18:00.000-08:00

Feds issue rule for NMI-only investor program
Monday, December 20, 2010 12:00AM By Gemma Q. Casas - Reporter
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U.S. Citizenship and Immigration Services on Friday posted a final rule in the Federal Register that creates a nonimmigrant investor visa classification in the CNMI.

The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside on the islands through the end of the federalization transition phase, Dec. 2014.

This visa will be issued for two years, is renewable, and is valid only in the CNMI. The investor’s spouse and children may also apply for status as dependents of the investor.

According to USCIS, individuals who were admitted to the CNMI in long-term investor status under commonwealth immigration law qualify, specifically:

• A long-term business investor who was issued a long-term business certificate by the CNMI based upon an investment of at least $50,000;

• A foreign investor with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment; and

• A retiree investor over the age of 55 years who was issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI (but not including the two-year non-renewable retiree investor program limited to Japanese nationals).

“What you are going to show us is the investment that you’ve made to become an investor. We’re not asking you to show us what investment you’ve made right now but the documentation that enable you to get that investor status,” David Gulick, USCIS Honolulu regional director, said in a media conference on Saturday.

He said CNMI investors with questions on the new E-2 rule should visit the USCIS office on Saipan.

He said he is also scheduled to meet with the Japanese and the Philippine consuls to explain the E-2 rule and other related issues.

“Don’t panic,” the USCIS said. “We’re not in the business of deporting people.”

It is U.S. Immigration and Customs Enforcement that deports aliens that no longer have legal status.

Gulick said a team of immigration experts is coming to Saipan next month to hold public forums and consultation talks with employers, the local government and other groups in the community.

The final regulations for the Commonwealth Worker status remain in the drafting stage, said Gulick.

He earlier said that these regulations should be announced before Nov. 2011, when the CNMI umbrella permits expire.

2010-09-26T14:32:00.000-07:00

NMI Labor claims jurisdiction over case filed by US citizen
Monday, 27 September 2010 00:00 By Junhan B. Todeno - Reporter
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THE administrative hearing office of the Department of Labor can adjudicate cases involving U.S. citizen workers.

Hearing Officer Jerry Cody said the jurisdiction of his office is determined by the Commonwealth Employment Act of 2007, or Public Law 15-108, as amended by Public Law 17-1.

He said P.L. 17-1 specifically addresses permanent residents and citizens in its “employment preference” section that deals with an employer’s obligation to hire local residents or U.S. citizens.

Section 4528(a) of P.L. 15-108 states that a citizen, CNMI permanent resident, or U.S. permanent resident who is qualified for a job, may make a claim for damages if an employer has not met the law’s requirements; the employer rejects an application for the job without just cause; or the employer hires a person who is not a citizen, CNMI, permanent resident, or U.S. permanent resident for the job.

Under the law’s Section 4528(b), Cody said the hearing office has original jurisdiction to resolve all claims filed under that section.

“Thus, it is clear that the hearing office has jurisdiction to adjudicate a U.S. citizen’s claim that an employer has violated CNMI ‘preference’ laws,” he said.

Attorney Joey P. San Nicolas, who represented Saipan Triple Star Recycling Inc., asked Labor to dismiss the complaint filed by its employee Antonio A. Reyes, citing the hearing office’s lack of jurisdiction.

In a brief filed with Labor, the employer argued that a “plain reading of the public law reveals that the administrative hearing office does not have jurisdiction to adjudicate questions related to employee’s termination.”

But Cody, in his administrative order dated Sept. 22, denied the motion to dismiss filed by Saipan Triple Star Recycling Inc.

A review of Public Law 17-1, he said, reveals that it contains a specific section that confers broad jurisdiction to the hearing office.

Section 4942(a) states that “[t]he Administrative Hearing Office shall have original jurisdiction to resolve all actions involving alleged violations of the labor and wage laws of the commonwealth,” he said.

He said this broad jurisdictional language, which first appeared in P.L. 15-108, “represents a significant change from the limited jurisdiction” of the Nonresident Workers Act that had been in effect for 10 years prior to the enactment of P.L. 15-108.

Cody admitted that P.L. 17-1 is not a model of clarity with respect to the jurisdictional issue, saying that claims of citizens or permanent residents are not specifically mentioned except in sections dealing with “employment preference issue.”

But, he added, the fact that the broad jurisdictional language was added by the Legislature when it replaced the Nonresident Workers Act with P.L. 15-108, suggested that the Legislature intended to expand the hearing office’s jurisdiction from the former limited jurisdiction of the NWA to complaints filed by U.S. citizens or residents.

According to Cody, “It makes sense to allow local residents or citizens to utilize the services of the hearing office that operates on an expedited simplified format with relaxed rules of evidence and an absence of legal formalities.”

He added, “This administrative court is designed to enable a worker to bring a complaint regarding wages or working conditions without having to hire legal counsel.”

He said given that many local U.S. citizens or residents make the same wages as foreign national workers, they should be allowed to utilize the department’s administrative system to adjudicate their labor complaints.

Cody said the labor case of Reyes has been referred to the department’s enforcement section for investigation.

'Extend transition period to 2019'

2010-09-16T16:38:00.000-07:00

Local
Friday, September 17, 2010

By Haidee V. Eugenio
Reporter

Gov. Benigno R. Fitial has asked a congressional panel to consider extending the transition period related to the federalization of CNMI immigration from the end of 2014 to the end of 2019, and to reinstate a “cover over” tax provision in the Covenant that the federalization law deleted.

The governor cited the U.S. Department of Homeland Security's failure to issue final regulations on foreign workers and foreign investors/foreign students, as well as DHS' failure to develop and enforce “an effective program to identify and remove illegal aliens” in the CNMI as reasons for the need to extend the transition.

These are part of Fitial's 11-page written testimony to the U.S. House Subcommittee on Insular Affairs, Oceans and Wildlife, which held a Sept. 16 oversight hearing in Washington, D.C. on H.R. 6015.

“Consideration of this amendment seems particularly appropriate because of (a) the delay by DHS in issuing the necessary regulations; and (b) the uncertainty engendered by DHS' legal position as to whether in fact the Secretary of Labor has the authority to extend the transition period,” Fitial said.

HR 6015, introduced by subcommittee chair Delegate Madeleine Bordallo (D-Guam), has two major sections, including two proposed technical corrections to the immigration provisions contained in the Consolidated Natural Resources Act that are applicable to the CNMI and Guam.

The CNRA, signed in May 2008, is the law that placed CNMI immigration under federal control on Nov. 28, 2009.

HR 6015 also requires the director of the U.S. Department of Commerce's Bureau of Economic Analysis to publish certain economic data on territories and Freely Associated States.

The governor believes that the U.S. Congress intended that an extension of the transition period by the U.S. Labor Secretary would also mean extending the two other programs that CNRA authorizes: numerical limitations on H visas, and CNMI-only nonimmigrant investor visa program.

He said despite frequent requests by the CNMI, DHS has never provided any written opinion in support of its interpretation of the CNRA.

“This Subcommittee may wish to make a similar request of DHS so that the Subcommittee can evaluate the conflicting opinions before it acts on H.R. 6015,” Fitial said.

The governor reiterated the CNMI's frustration with the interim final rule regarding the joint Guam-CNMI visa waiver, and the exclusion of China and Russia from the list of approved countries.

In his written testimony, Fitial also said that DHS has not developed and enforced an effective program to identify and remove illegal aliens in the CNMI.

“The number of illegal aliens in the Commonwealth is expanding rapidly, now that federal controls are in place, for three reasons,” Fitial said.

These reasons include “a perceived lack of enforcement by federal officials leads to illegal aliens to conclude that there is no risk to staying” in the CNMI; “some federal officials have repeatedly suggested that green cards will be available to any alien who is in the Commonwealth when Congress addresses this questions;” and “new federal policies with respect to food stamp assistance and free medical care allow these benefits to be claimed by illegal aliens.”

“Under these circumstances, voluntary repatriation by aliens in the Commonwealth has almost entirely disappeared,” Fitial added.

The governor also asked the Subcommittee to reinstate the “cover over language” in the Covenant that the CNRA eliminated.

“Cover over” refers to the return to local governments of taxes paid to federal agencies by residents of insular areas.

“The effect of this amendment will be to deny the Commonwealth tens of millions of dollars over time-and places the full financial burden of applying the immigration laws on the Commonwealth and its residents rather than assumed by the nation as a whole whose national security was believed to require this congressional action,” he added.

Oversight hearing

The oversight hearing in Washington, D.C. was during the wee hours of this morning Saipan time.

Besides HR 6015, Bordallo's Subcommittee also held an oversight hearing on CNMI Delegate Gregorio Kilili Sablan's HR 4339, which creates the Dr. Rita Hocog Inos Fellowship Act.

Among those scheduled to testify on the two measures were Assistant Interior Secretary for Insular Affairs Tony Babauta, Fitial's legal counsel Howard P. Willens, Guam Visitors Bureau vice chair Lamonte J. “Jim” Beighley, and former CNMI Board of Education member Anthony Pellegrino.

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DOL Receives $73K for Federal Labor Certification

2010-09-15T17:04:00.000-07:00

Local
Thursday, September 16, 2010

Labor bags $73K to support federal labor certification programs for farm workers

By Press Release

The CNMI Department of Labor has received approval from the Office of Foreign Labor Certification of the U.S. Department of Labor of its “FY 2010 Annual Plan for Foreign Labor Certification.”

The approval from the Washington D.C.-based Employment and Training Administration was accompanied by a grant award in the amount of $73,355.32. The funds are intended to support activities by the Office of Foreign Labor Certification in the H-2A program for the local agriculture industry.

While the CNMI Department of Labor has participated in an online training session, this is the first time it will officially participate, like other states, in Office of Foreign Labor Certification activities.

“I'd like to congratulate the CNMI Department of Labor for applying for and receiving this grant from the federal government which is recognition of the ongoing role that our CNMI Labor Department will play in foreign labor certification. It is important to have federal and Commonwealth laws operate in tandem regarding labor matters, as in other states and territories,” said Gov. Benigno R. Fitial.

The grant awarded to the Labor will be used for the startup of Foreign Labor Certification under U.S. Department of Labor Planning Guidance for the local agriculture industry. Specifically, the program will provide funding to cover the work of CNMI Department of Labor employees in providing housing inspections and wage surveys. CNMI Labor will supplement the standard U.S. wage survey for the agriculture industry with a complete review of all alien CNMI farm labor contracts.

The CNMI also recently added farm workers to the central job order system created by the CNMI Department of Labor in recent years. The online job order system is designed to promote a statutory job preference for U.S. citizens, U.S. permanent residents, and CNMI permanent residents. Job orders are posted for 14 days on the Web at www.marianaslabor.net in order to give qualified citizens an opportunity to apply.

At the present time, there were 114 job orders forecasted CNMI-wide for foreign agriculture workers that will fall under the H-2A program.

Nonresidents registering with Labor

2010-09-14T15:44:00.000-07:00

Wednesday, 15 September 2010 00:00 By Junhan B. Todeno - Reporter
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LABOR Deputy Secretary Cinta M. Kaipat says nonresidents have begun registering with her department as required by Public Law 17-1.

“People are registering steadily,” she said in an-email.

“Remember that we already registered many people because we did that together with other transactions, and we continue to do that so there is not necessarily any line for registration on any particular day. I expect we will have nearly everyone registered by the deadline, which is some time off.”

The registration window at Labor is open from 8:15 a.m. to 4:15 p.m., Monday through Thursday.
The schedule for registration is as follows:

• Sept. 7-24: Aliens in the 240K classification who are not already registered (current or former workers)

• Sept. 27-Oct. 14: Aliens in the 240G, 240H, and 240N classifications who are not already registered (current or former investors, students, and business owners)

• Oct. 18-Nov. 3: IRs in all classifications who are not already registered (current IRs of U.S. citizens, foreign workers, foreign students, foreign investors, and foreign business owners)

• Nov. 8-30: All other aliens regardless of status
Workers whose contracts are renewed during 2010 are automatically registered in the contract process and their new updated ID cards have been issued. The same is true for all foreign investors, foreign business owners, foreign students, and immediate relatives who already have CNMI-issued ID cards for 2010. Those persons are already registered and need not do anything further about registration this year.

“We are now working on registering all other aliens in the commonwealth, including immediate relatives, common law spouses, minors, victims of crime and aliens eligible under the Violence Against Women Act and all others,” Kaipat said in an earlier press release.

Registration is required of all aliens other than lawful permanent residents (green card holders), regardless of status. There is no fee for these registrations.

For aliens who do not have a prior-year registration or permit card, the documentation required for registration includes a passport-sized photo, a completed registration form, and personal identification showing birth date.

The registration form is on the department’s website, www.marianaslabor.net.

Labor hails Wiseman decision

2010-09-14T15:40:00.000-07:00

Wednesday, 15 September 2010 00:00 By Junhan B. Todeno - Reporter
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THE recent court ruling on a labor case is something that the Department of Labor has been seeking for several years, Deputy Secretary Cinta M. Kaipat said yesterday.

Labor believes that bond claims enforcement should be done in court, she added.

“Only a court has the power to force a bonding company to pay,” she said in an e-mail.

Labor, she added, “does not control the licensing of bonding companies, and we cannot attach their bank accounts. So we could issue opinions on their liability with respect to bonds, and nothing would happen. We had cleaned up the entire backlog of labor cases and we wanted our orders enforced.”

In 2007, she said, after the enactment of Public Law 15-108, Labor pushed for the enforcement of bond claims in court.

In the same year, she added, “we started handing out Small Claims packets to claimants telling them how to take their cases to court. Many of them did that, and two of the insurance companies — Royal Crown and Oceania — objected. They said that the workers’ claims on the bonds could not be considered in the first instance in court. They argued that they were entitled to a hearing at the Labor Department first. Judge [Perry] Inos issued an opinion in 2009 accepting the insurance company arguments and sending all these cases back to the Department of Labor. So we did two things: first, we set up hearings for all the bond claims and advertised extensively so workers would come in and present their claims. Second, we petitioned the Legislature to change the law to make it clear to the courts that workers could go to court to enforce the Department of Labor’s orders.”

According to Kaipat, “We processed all the claims and issued orders in all the cases where there was a bond by January of this year. Many of those cases were appealed to the [Labor] secretary, and all those appeals were completed months ago. Now, Royal Crown is back in Superior Court appealing the secretary’s decision in eight of these cases claiming — you guessed it — that they did not get a fair deal at the Labor Department (where they were ordered to pay) and now they want their day in court. They even took one case to federal court, where Judge [Alex] Munson held that the Department of Labor had proceeded properly. He dismissed their claim.

Judge Wiseman has not yet ruled on the appeals the insurance companies have filed in Superior Court, but we expect the same result as we got from Judge Munson.”

Kaipat said Labor “succeeded in getting a new section put into P.L. 17-1 providing specifically that workers could take the enforcement of their claims to court. We drafted that statutory section in consultation with lawyers for the workers. That became effective in March 2010.”

So, she added, “we have cleaned up all the past bond claims that were presented to the department, and we have changed the law so that, going forward, workers can take their cases directly to court. This is an example of the good progress the Department of Labor is making on all fronts.”

On Friday, Judge David A. Wiseman ruled that based on Public Law 17-1, which took effect last March, alien workers can now file court actions to collect administrative awards even without exhausting collection remedies at the Department of Labor.

2010-09-01T07:49:00.000-07:00

Local
Thursday, September 02, 2010

Labor announces mandatory alien registration

The Commonwealth has been registering aliens annually since 1985. After the Immigration Division was disbanded, its former task of registering aliens was assigned to the Department of Labor.

“Every alien who has an ID card issued by the CNMI after Jan. 1, 2010 is already registered,” said Labor deputy secretary Jacinta Kaipat. “Those aliens need do nothing further until next year.”

Workers whose contracts are renewed during 2010 are automatically registered in the contract process and their new updated ID cards have been issued. The same is true for all foreign investors, foreign business owners, foreign students, and immediate relatives who already have CNMI-issued ID cards for 2010. Those persons are already registered and need not do anything further about registration this year.

“We are now working on registering all other aliens in the Commonwealth, including immediate relatives, common law spouses, minors, victims of crime and aliens eligible under VAWA (Violence Against Women Act), and all others,” Kaipat said.

Registration is required of all aliens other than lawful permanent residents (green card holders), regardless of status. There is no fee for these registrations.

For aliens who do not have a prior-year registration or permit card, the documentation required for registration includes a passport-sized photo, a completed registration form, and personal identification showing birth date. The registration form is on the department's website, www.marianaslabor.net.

The registration window will be open from 8:15am to 4:15pm, Monday through Thursday.

The schedule for registration is as follows:

* Sept. 7-24: Aliens in the 240K classification who are not already registered (current or former workers)

* Sept. 27-Oct. 14: Aliens in the 240G, 240H, and 240N classifications who are not already registered (current or former investors, students, and business owners)

* Oct. 18-Nov. 3: IRs in all classifications who are not already registered (current IRs of U.S. citizens, foreign workers, foreign students, foreign investors, and foreign business owners)

* Nov. 8-30: All other aliens regardless of status

Alien registration cards will be available for pickup either at the time of the registration or within a few days after the registration form is filed.

“Aliens who register may also have their umbrella permit status problems addressed at the same time,” Kaipat said. “Those who did not make their report-back date for some reason or who have other umbrella permit issues may request to have their umbrella permits or existing permits updated when they register.

Registration is required under Commonwealth PL 17-1. (PR)

2010-09-01T07:46:00.000-07:00

Local
Thursday, September 02, 2010

Employers surveyed for jobs inventory

By Haidee V. Eugenio
Reporter

Hundreds of employers in the CNMI are now being surveyed online for their jobs inventory, data from which is expected to help provide employment for U.S. citizens and to help determine the extension of the transition period for foreign workers to remain in the Commonwealth, among other things.

The “2010 CNMI Jobs Inventory Survey” is being conducted by the CNMI Department of Labor.

Douglas Brennan, president of the Saipan Chamber of Commerce, encouraged businesses to take the time to fill out the survey form, which is also done in line with Public Law 17-1 or the CNMI omnibus immigration law.

PL 17-1 makes the Commonwealth Code conform with the requirements of the federalization law, Title VII of U.S. Public Law 110-229, with respect to federal control of immigration and deportation. It converts the mandatory 20- to 30-percent local hiring preference into a floating benchmark.

“If employers don't fill up the form, then they could expect a call or visit from Labor to make sure they participate in the survey,” Brennan told Saipan Tribune.

The Chamber, the largest business organization in the CNMI with some 150 members, held its monthly meeting yesterday afternoon at The Palms Resort in San Roque.

Employers are asked to complete the survey within two weeks of receiving the request or as soon as possible.

They are asked to report on each job for which a worker was paid at any time during the month of August 2010.

Labor Secretary Gil M. San Nicolas, in his cover letter for the survey, said the Commonwealth needs the survey in order to qualify for certain federal grants, and to “assist with respect to the U.S. Secretary of Labor's determination on the extension of the transition period for foreign workers to remain in the Commonwealth.

San Nicolas said the survey will also help plan for and provide better employment training of U.S. citizens.

“(The survey also seeks) to provide the Commonwealth government and the public with information we do not now have because the U.S. agencies do not collect this information in the CNMI on a current basis,” San Nicolas said.

The Labor secretary said the information that employers provide is kept strictly confidential and will be used only to prepare statistical compilations that do not identify individuals or employers.

Some of the information requested by the survey form include the employer's name and employer number or TIN/SSN, as well as their business expectations - fewer aliens, same number of aliens, more aliens.

Employers are also asked about the O-NET job code, their employees' job title, job status, worker's name, Form I-9 status, and Form I-9 ID number.

The federal government took over CNMI immigration on Nov. 28, 2009.

Carolinians Gather to Oppose Interior Report on Nonresident Workers

2010-07-25T08:11:00.000-07:00

Local
Monday, July 26, 2010

By Haidee V. Eugenio
Reporter

A little over a hundred members of the Carolinian community, along with guests, gathered at the Civic Center in Susupe on Saturday afternoon to voice out their opposition to the U.S. Department of the Interior's report recommending improved immigration status to some 20,000 foreign workers in the CNMI.

The gathering also served as a campaign event for two delegate candidates with Carolinian blood-former Gov. Juan N. Babauta and former House Floor Leader Joseph N. Camacho.

Gov. Benigno R. Fitial, who is a Carolinian, encouraged those at the assembly to participate in a referendum asking their opinion on the Interior report, should such question be posed in the November 2010 elections.

A referendum, also known as a plebiscite or a ballot question, is a direct vote in which an entire electorate is asked to either accept or reject a particular proposal.

Fitial said the specific question to be asked is now being worked on, and is expected to be included in the Nov. 2 ballot.

Fitial addressed the crowd in Carolinian language for 17 minutes which started at 1:57pm.

In his speech, he reiterated the Interior's failure to consult with him or the CNMI government before releasing the report to the U.S. Congress. He said Public Law 110-229 or the federalization law requires such consultation.

The governor also described the Interior report as “seriously defective,” adding that the conclusions regarding the CNMI economy and future need for foreign workers are rebutted by publicly available data and professional economic analysis.

Fitial's reasons for opposing the report also include failure to consider the potential impact of the recommendations on unemployed U.S. citizens in the CNMI and the ability of the CNMI to provide essential public services to its residents. He said any change in status should be considered only in the context of overall immigration reform in the U.S.

Camacho echoed Fitial's opposition to the Interior report, saying it violated the federalization law. Because of the lack of consultation, the Interior report bore a “one-sided recommendation.”

He said he would like to see all able-bodied U.S. citizens in the CNMI to be working either in government or the private sector, and only then should foreign workers be allowed to fill in other positions.

Camacho said he is now working with Rep. Frederick P. Deleon Guerrero (Ind-Saipan) in establishing a master list of available jobs in government and private sector.

Deleon Guerrero drafted a resolution asking U.S. House Subcommittee on Insular Affairs, Oceans and Wildlife chair Madeleine Z. Bordallo (D-Guam) to “reject” the Interior report and conduct hearings in the CNMI on the said report.

Babauta, for his part, said there is already a law that allows foreign workers to apply for U.S. citizenship or other immigration status, and that foreign workers in the CNMI should comply with the same requirements as others applying for such status.

“If anybody wants to become a U.S. citizen, they should stand in line.for fairness,” he told the crowd.

He said the focus of the debate should not be about the granting of U.S. citizenship, but on the CNMI economy, specifically the number of foreign workers needed to sustain and grow the local economy.

“If our delegate is doing his job, we won't be having this discussion today,” said Babauta, who is also a former resident representative of the CNMI to Washington, D.C.

The Interior report, submitted to the U.S. Congress in April, recommends five options that include granting long-term alien workers permanent residency status, U.S. citizenship or a status similar to those granted to citizens of the Freely Associated States.

Dolores Rasiang, a Dandan resident, said she attended the Carolinian gathering to learn more about the referendum and the Interior report.

“I don't support the Interior report 100,000 percent because I want to protect my land,” she said.

Saturday's gathering was reminiscent of the May 29 peaceful assembly held by indigenous Chamorros and Carolinians also to show their opposition to the Interior report. Nonresidents also held a peaceful assembly showing support to the Interior report and recommendations.

Fitial, in an interview later, said he wrote another letter to Interior Secretary Ken Salazar, asking him to respond to his previous letter.

The governor asked Salazar to withdraw the Interior report recommending long-term immigration status for alien workers who have been in the CNMI for at least five years.

Besides Fitial, Camacho, and Babauta, the others who spoke at the Carolinian assembly included Indigenous Affairs Office resident executive director Ignacio Demapan, Carolinian Affairs executive assistant Angie Iginoef-Mangarero, Vice Speaker Felicidad Ogumoro (Cov-Saipan), former Speaker Oscar Rasa, Deputy Labor Secretary Cinta M. Kaipat, Community and Cultural Affairs Secretary Melvin Faisao, and Leon I. Taisacan.

Other lawmakers present at the gathering were Rep. Rafael Demapan (Cov-Saipan) and Rep. Stanley Torres (Ind-Saipan), who earlier said that the Interior report will destroy the CNMI.

2010-06-08T15:06:00.000-07:00

Letters to the Editor
Wednesday, June 09, 2010

Correction in report about new labor regs

I write to correct the errors in the report in the Saipan Tribune about Labor's revised regulations under PL 17-1. This report suggested that there were certain new provisions in the regulations when, in fact, the provisions remain the same as in prior regulations. For example:

Registration. There is nothing new about alien registration in the Commonwealth. Annual registration has been required since the first alien workers came to the Commonwealth in the mid-1980s. The new regulations only shift this responsibility from the old Immigration Division to the Labor Department because the Attorney General has deleted the old immigration regulations under which annual registration was accomplished. The procedural registration provisions remain the same; the office implementing them has changed.

Fees. There is nothing new about Labor fees. If you compare the new fee schedule to the old fee schedule, you will see fees cited in the article have not changed. What has changed is a provision that any employer who pays a federal fee does not have to pay a Commonwealth fee. There is no duplication of fees. Your report did not include that fact. In addition, the moratorium exemption fee has been deleted, as the moratorium is now gone.

Workforce Participation. Your report contains a serious factual error with respect to workforce participation. Your article said: “It [the new regulation] said the number of citizens, U.S. permanent residents or CNMI permanent residents or their immediate relatives shall equal or exceed the number of foreign workers in the private sector workforce unless attainment of this goal is not feasible within the current calendar year after all reasonable efforts have been made by the employer.” That is not correct.

The regulations provide that: “In the workforce of any employer, the percentage of citizens, U.S. permanent residents, and CNMI permanent residents and the immediate relatives of citizens, U.S. permanent residents, and CNMI permanent residents (“status-qualified participants”) employed shall equal or exceed the percentage of status-qualified participants in the private-sector workforce unless attainment of this goal is not feasible within the current calendar year after all reasonable efforts have been made by the employer.”

What this means is that if citizens, U.S. permanent residents, CNMI permanent residents, and their immediate relatives comprise 40 percent of the private-sector workforce, then the benchmark for every private-sector employer is 40 percent. The private-sector workforce is comprised of persons who are employed and persons who are seeking employment. We use the same definitions as the U.S. Department of Labor.

Reporting Requirements. There has been no change in the reporting requirements. The reports required in the new regulations are the same reports as have been required in prior regulations.

Workforce Plan. Only technical changes have been made in the workforce plan requirements to conform to the provisions of PL 17-1. For example, PL 17-1 deleted classifications for jobs, so the references to those classifications in the workforce plan requirements were also deleted. A workforce plan requirement has been in Commonwealth law for a long time.

Jacinta M. Kaipat
Deputy Secretary of Labor

2010-06-06T13:16:00.000-07:00

Monday, June 07, 2010
Local
Monday, June 07, 2010

New labor rules now in effect
Alien registration, floating benchmarks, new fees
By Haidee V. Eugenio
Reporter

The CNMI Department of Labor's amended employment regulations came into effect on June 1, requiring aliens to register every year, establishing fees of up to $300, and reorganizing the department.

The final rules also change the 20-percent local hiring requirement into a floating benchmark, incorporate changes contained in Public Law 17-1, and require employers to submit a workforce plan that include a timetable for replacing aliens with qualified citizens.

The 65-page CNMI Employment Rules and Regulations were published in the May 21, 2010, Commonwealth Register, which was distributed on Friday.

Under the newly amended regulations, every alien who remains in the CNMI longer than 90 days shall be required to register annually and to comply with an ID system.

Failure to comply with the alien registration and ID system shall result in a misdemeanor and upon conviction, shall be punished by jail for up to 90 days, or a fine of up to $500, or both.

The parents or legal guardians of aliens under 18 years old are responsible for the child's registration.

The CNMI Department of Labor will be conducting the registration for all classes of aliens.

“Registered aliens will be issued an identification card, which will contain the name of the alien, the LIDS number, such identifying information as the secretary may require, and the expiration date of the card,” the regulations partly read.

Labor Secretary Gil M. San Nicolas, in a public notice of certification and adoption of the labor rules, said the department “received no comments stating reasons against its adoption.”

Labor incorporated seven changes to the final rules, mostly technical changes that the department said were “non-material.”

San Nicolas said they received one comment that pointed out the problem of a lack of regulations from the Department of Public Health secretary so that the department could put into operation the insurance pool provided in P.L. 15-108.

“That commenter also requested additional language about deductions for co-pay and insurance premiums. A clarification was added for co-pay but insurance premiums may require a case-by-case analysis as to the cap on deductions,” San Nicolas said.

He added that Labor circulated the proposed regulations extensively before publication and adopted the informal oral comments it received in the proposed regulations that were published in the April 19 Commonwealth Register.

Labor gave the public 30 days from April 19 to comment on the proposed regulations.

“These regulations are effective on June 1, 2010 and shall not apply retroactively to applications filed or proceedings in the Administrative Hearing Office that were pending before that date,” the final rules stated.

The amended rules include implementing the changes in definitions provided in P.L. 17-1 or the omnibus immigration bill that asserts CNMI control over nonresident workers, and removes all references to immigration and deportation from the Commonwealth Code to conform with the federalization law that became effective on Nov. 28, 2009.

Labor said umbrella permits may be revoked by order of a hearing officer for failure to comply with Commonwealth law or regulations, failure to appear at a hearing, or conviction of a felony or more than one misdemeanor, among other reasons.

The regulations also reiterate job preference for qualified citizens, CNMI permanent residents and U.S. permanent residents in the private sector.

It said the number of citizens, U.S. permanent residents or CNMI permanent residents or their immediate relatives shall equal or exceed the number of foreign workers in the private sector workforce unless attainment of this goal is not feasible within the current calendar year after all reasonable efforts have been made by the employer.

Reporting requirements

Employers of foreign nationals are required to keep six sets of information for at least two years, and present these upon written request by the Labor secretary or his designee.

These include personnel and payroll records for each foreign national, receipts for cash payments, documentation for each foreign worker, the employer's business license and security contract information with respect to each foreign national worker, and the number and type of employment-related accidents or illnesses involving workers and adequate identification of each worker involved.

Employers are also required to provide Labor with a workforce plan that aims to increase the percentage of U.S. citizens, U.S. permanent residents, and CNMI permanent residents and their immediate relatives in the workforce of the employer.

A workforce plan shall also identify specific positions currently occupied by nonimmigrant aliens.

It shall also include a timetable for accomplishing the replacement of nonimmigrant aliens with qualified citizens, CNMI permanent residents, and U.S. permanent residents until the workforce participation objective is met.

Fees

The Department of Labor is now implementing at least 22 fees ranging from $5 to $300.

However, posting a job vacancy announcement, registration to transfer, attendance at orientation, filing of workforce plan, and mediation of labor disputes, are free of charge.

Labor imposes a $300 fee for an application for an approved contract, including initial, transfer and renewal. But there will be no fee if a federal fee has been paid.

There's also a $250 fee for an application for an approved contract for non-business employers. Again, there will be no fee if a federal fee has been paid.

The other fees range from $5 to $150.

These include:

- $150 for processing a temporary work authorization;

- $150 for expedited processing, in addition to the fee;

- $100 for request for certificate of good standing;

- $50 for replacement or duplicate permit;

- $50 for request for extension of transfer;

- $35 a month for contract extensions of up to six months;

- $25 for contract amendment or change;

- $25 for annual registration;

- $20 per person for filing a complaint with the Hearing Office; and

$5 as penalty for untimely renewal.

2010-05-27T10:39:00.001-07:00

Umbrella permit holders told to report to Labor
Friday, 28 May 2010 00:00 By Gemma Q. Casas - Reporter
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THE commonwealth government requires all umbrella permit holders to report to the local Department of Labor on or before the expiration date of their annual employment contract or their permits will be revoked.

All umbrella permits are valid until Nov. 27, 2011.

On the left hand corner of each umbrella permit is a box labeled “Next Filing Date to Avoid Revocation” which is referred to as the “report-back date” in the 77-page regulations for the Commonwealth Employment Act of 2007 as amended by Public Law 17-1.

“The report-back date is an important measure for ensuring compliance with employment requirements. In the event the department is unable to confirm that conditions continue to be met, the permit will be revoked,” the regulations state.

Labor’s volunteer attorney Deanne Siemer told the Society for Human Resource Management during yesterday’s teleconference meeting that the CNMI government will allow legal guest workers to have a 32-hour a month part-time job.

She said part of this liberalized labor policy is the creation of a new classification known as service provider which is a privilege extended to documented foreign workers who have stayed for at least 10 years in the CNMI.

“A foreign national worker who is currently eligible to work in the commonwealth and who has been employed successfully in the commonwealth for 10 years or longer may become a service provider and sell his or her services, but not any kind of goods or products or the services of others, upon approval by the [Labor] secretary,” the regulations further read.

A service provider must be in good standing with respect to payment of all taxes and charges of the Commonwealth Health Center.

The CNMI government said a revoked umbrella permit is a ground for deportation but the federal government disagrees.

The U.S. Department of Homeland Security has said that all umbrella permit holders will be allowed to stay in the CNMI until Nov. 27, 2011 even if Labor revokes the permits.

According to CNMI labor regulations, the annual registration of aliens is necessary to track down their condition so as not to unduly burden the cash-strapped government.

2010-05-26T13:52:00.000-07:00

Local
Tuesday, May 25, 2010

Kaipat slams ICE's Haley for 'inflammatory' claim

By Ferdie de la Torre
Reporter

Labor deputy chief Cinta Kaipat bristled at the suggestion that her department is not cooperating with the U.S. Immigration and Customs Enforcement, and reminded an ICE spokesperson that the CNMI is not “a colony.”

In a statement issued yesterday, Kaipat said that ICE spokeswoman Lori K. Haley's allegation that Labor was not responding to ICE's requests relating to more than 500 deportation referrals was not true and even inflammatory.

“The Commonwealth should be treated as a partner. We are not a colony,” she said.

Haley had yet to respond to an e-mail request for comments as of press time.

To make the Commonwealth and federal collaboration a success, Kaipat said it is necessary to have mutual respect for their respective roles and operational cooperation at working level between agencies. This operational cooperation, Kaipat said, should be done “without inflammatory defensive statements from public relations officials.”

Haley told Saipan Tribune last week that ICE has repeatedly asked Labor to provide it additional biographical information on more than 500 deportation referrals, but Labor has yet to respond to these requests.

“ICE is ready to review and determine appropriate action on the DOL referrals as soon as we receive the necessary follow-up information,” Haley had said.

Kaipat insists that Labor has facilitated ICE processes to remove illegal aliens, not delayed them.

“The statement made by Lory K. Haley, a public affairs officer and not an operational officer of ICE, is not correct,” Kaipat said. “Ms. Haley may not be familiar with the situation here in the Commonwealth.”

She said Labor has provided information to ICE officials in exactly the same manner they used to provide information to the CNMI Immigration Division.

“Our former Immigration Division deported between 200 and 300 illegal aliens each year. There is no reason ICE cannot do the same,” she said.

Kaipat recommended that ICE use its authority under Section 287g of the Immigration and Nationality Act to provide funding to local law enforcement officers to assist in locating and arresting aliens.

She said ICE has an Office of State and Local Coordination that operates this program nationwide and that many states participate in.

Kaipat also pointed to the failure of U.S. agencies to hire local people.

“I understand that ICE's personnel, assigned to the Commonwealth only on a temporary basis, may have a problem. If they need translators and informants to find people, they should use their resources to hire them. But one part of the problem stands out,” she said.

Kaipat said ICE has not hired any of the former local Immigration Division inspectors to assist them.

“These people are very knowledgeable about the local immigration enforcement situation. I think this would be an obvious resource to tap. If ICE used local talent, with the information that the Labor Department formerly supplied to local officials and now supplies to ICE, they should have considerably more success,” Kaipat noted.

Under former Commonwealth deportation processes, the Labor Department provided identification information to the Immigration Division on illegal aliens who formerly had held work permits.

Kaipat said the Immigration Division used that identification information to locate and arrest the named aliens. These people were then presented to Commonwealth prosecutors.

“Under our former deportation processes, the prosecutors would ask the alien for a current passport and a current permit allowing employment in the Commonwealth. If the alien did not have these credentials, they were deemed deportable. Of course, anyone can present a defense against the prosecution's challenge, but these cases moved quickly in the Commonwealth Superior Court,” she said.

Kaipat said under the CNMI deportation processes, most of the cases were disposed of and the alien departed within 60 to 90 days.

“We provide the same identification information to ICE on a very timely basis, and we certify illegal status in the same way for ICE. That means, if ICE needs it, there is a Labor Department official ready to testify that the alien has no current permit to work in the Commonwealth,” Kaipat said.

She criticized ICE for not deporting anyone in the six months they have been in charge of deportations in the Commonwealth.

“So now we have a public affairs officer, Ms. Haley, saying that it is our fault, not ICE's fault, for this rather astonishing record,” she said.

Elsewhere in the United States, Kaipat explained, ICE officials are responsible for finding illegal aliens and creating the necessary information with which to prosecute their deportation. She said there is no burden on state agencies to spend their resources for this purpose.

Kaipat said that before Haley offered her observations, the CNMI already initiated a meeting with ICE officials in the Commonwealth to collaborate on their problems with deporting illegal aliens. That meeting will be held in the near future,” she added.

She noted that ICE has not even processed the more than 200 cases that the Commonwealth prosecutors turned over to them on the transition date.

“Those cases involved complete prosecutor files. As I understand it, nothing remained to be done but to bring the case,” she said.

“The GAO [Government Accountability Office] report told us that ICE had not even brought many of these cases. So why ICE is complaining about the lack of data on the more than 1,300 illegal aliens that we certified to them months ago is puzzling,” Kaipat said.

She said she regards the failure to deport any illegal aliens and the consequent buildup of illegal aliens in the Commonwealth as an enormous social problem for the Commonwealth.

She vowed that she and Labor will do their best to help alleviate this problem.

“At the same time, I must spend our very meager funding resources on finding jobs for U.S. citizens. I cannot do ICE's job for it. They are the federal government. They have enormous resources. They need to use those resources to fix this problem,” she added.

2010-05-03T13:57:00.001-07:00

Local
Tuesday, May 04, 2010

Fitial wants unified NMI voice on Interior report

By Haidee V. Eugenio
Reporter

Gov. Benigno R. Fitial's administration said yesterday it is “deeply disappointed” by the U.S. Department of the Interior's lack of proper consultation and its submission of a report to the U.S. Congress on the status of alien workers six hours before local leaders had a chance to see the report's contents for the first time.

The Fitial administration is bent on opposing portions of the report, as well as the recommendation by the Interior of granting long-term status to nonresidents who have legally resided in the CNMI for at least five years.

“It almost appears as if there were ulterior motives behind the advanced submission of the Interior’s recommendations,” press secretary Angel Demapan told Saipan Tribune.

Alien worker groups led by the United Workers Movement-NMI are now working on a strategy of their own to ensure that the U.S. Congress will act swiftly on Interior's recommendations, including granting U.S. citizenship or permanent residency leading to citizenship.

Ronnie Doca, board chairman of the UWM-NMI, invited community members to the strategy session on Saturday at the American Memorial Park, from 2pm to 4pm.

Interior gave five examples of how a long-term status can be granted, including conferring U.S. citizenship by an act of Congress and granting permanent residency leading to U.S. citizenship.

Fitial will meet as early as today with lawmakers, mayors and at least four Cabinet members to come up with a unified CNMI government response to the Interior report and recommendation.

“This meeting is aimed at safeguarding the interests and addressing the potential impact that such recommendations will have on the Commonwealth and the local community. It is the intent of the administration to have the Commonwealth leaders come together in an effort to formulate a unified response and position to the recommendations submitted by DOI,” Demapan said.

Uphill battle in Congress

CNMI Delegate Gregorio Kilili C. Sablan (D-MP) recognized the anxiety caused by the Interior report. Among other things, he said these are just recommendations to Congress.

Sablan said as the CNMI representative to the U.S. Congress, he is not going to let immigration legislation go through Congress until everyone has a chance to give their opinion.

“And I am not going to let any immigration legislation go through Congress unless I think it represents the will of the majority,” he said.

Secondly, Sablan said “the political reality is that any immigration legislation faces an uphill battle in Congress.”

“Whether you like the recommendations or you don't like them - as President Obama said on Friday-Congress lacks 'the appetite' for immigration legislation this year,” said Sablan, responding to Saipan Tribune questions.

He, however, said that Congress has to have a “very serious and level-headed discussion about the future of foreign workers in the Marianas.”

“We need a labor force for our economy. We need consumers in our economy. Can we really afford to send all 20,000 foreign workers home?” he asked.

Sablan also cited Fitial's statements to the media in December stating that he won't oppose the federal government's granting of “green cards” to alien workers should the federal government decides to do so.

“Well, as you know the governor said months ago that he is not opposed to green cards. And now the Secretary of the Interior is agreeing with the governor on that,” he added.

'Weaknesses'

Sablan said the Interior report has some “serious weaknesses.”

“In many ways its recommendations are just a list of options. So that's not very helpful. Then there is the problem of forecasting how many workers our economy will need in the coming years. Interior interviewed 10 businesses and concluded we would need 15 percent more workers than we have now. That's a pretty weak analysis. Giving all foreign workers green cards-which the governor says is okay-is one end of the spectrum. The other end is to do nothing and let foreign workers be zeroed out,” he said.

The delegate said most people would probably like to see something between those two extreme positions.

“This is why we have a transition period: to allow time for all of these questions to be answered. But we do have to start a serious discussion. The situation calls for some real leadership despite that the issue is messy, difficult, and requires compromise,” he said.

Washington, DC hearing

Demapan said Fitial also “hinted” that he may be attending a hearing in Washington, D.C. on May 18 to be conducted by the U.S. House Subcommittee on Insular Affairs, Oceans and Wildlife chaired by Guam Delegate Madeleine Z. Bordallo.

Bordallo's subcommittee will hold an oversight hearing on the implementation of the federalization law in the CNMI.

Fitial is likely to use the occasion to present the CNMI government's unified position on the Interior report and recommendation.

Bordallo invited CNMI officials to attend the hearing or submit testimony.

Sablan said he will also try to hold a field hearing in the CNMI-“probably in early 2011 so people have more opportunity to express their feelings.”

Senate President Paul A. Manglona (R-Rota), who was among those invited to the Washington, D.C. hearing, said he would rather submit a testimony which will incorporate the position statement on the Interior report that the CNMI Senate is expected to come up with by next week.

House Speaker Froilan C. Tenorio (Cov-Saipan) said Fitial can submit his own comments to Congress, but his plan of coming up with a unified CNMI government position after meeting with other top officials will be better.

But Tenorio said Interior only did what it was required to do-to submit a report on the status of alien workers by a set deadline.

U.S. Public Law 110-220 or the federalization law gives the Interior until May 10, 2010, to submit the report. It contains data on the alien population in the CNMI, as well as recommendations for long-term status for the alien population.

Interior recommends that thousands of alien workers who have lawfully resided in the CNMI for a minimum of five years be allowed to apply for long-term status under the Immigration and Nationality Act.

Tenorio, just like other lawmakers, said he has yet to decide whether to support the Interior recommendations on the status of aliens in the CNMI.

Manglona, for his part, commended the governor for trying to reach out to other leaders to come up with a unified position on the Interior report and recommendation.

He said he also asked all the other senators to carefully read the Interior report so that the Senate can also come up with a position paper as early as next week.

“We may also introduce a resolution on our position,” said Manglona.

House Minority Leader Diego T. Benavente (R-Saipan) said the group will meet today to discuss, among other things, the Interior report.

'Railroaded'

Demapan said the Fitial administration “is deeply disappointed by the lack of consultation and the actions of DOI in submitting the recommendations to Congress six hours before local leaders had a chance to see its contents for the first time.”

Assistant Interior Secretary for Insular Affairs Tony Babauta said that Interior submitted the report to Congress toward the close of business hours on Thursday in Washington, D.C. or about 8am on Saipan on Friday.

At 2pm last Friday, Babauta met with Lt. Gov. Eloy S. Inos and other CNMI officials to personally present copies of the Interior report.

Babauta said Interior had consulted with CNMI officials. He also said the CNMI can submit comments to the Congress.

Demapan said the CNMI was not afforded the opportunity to review a draft report nor offer alternative recommendations that would reflect the concerns of the government and the local community.

“The administration finds it appalling that the process was pretty much railroaded. Moreover, the administration has called into question the supporting data used by DOI to issue such recommendations. It is quite disappointing that the feedback of 10 business entities was used as the basis that would determine the economic future of the CNMI in terms of addressing the fate of alien workers in the Northern Marianas,” he said.

He said in view of Interior's action, Fitial will call for a leadership meeting to include elected leaders such as members of the Legislature and the mayors.

Fitial will also include in the meeting the heads of the Department of Labor, Department of Commerce, the Marianas Visitors Authority, and Office of the Attorney General.

“The governor and lieutenant governor want to ensure that through a meeting of the minds with our islands’ leaders, a comprehensive consensus will be attained in charting how best we can make the concerns of our islands heard in halls of the U.S. Congress,” Demapan said.

2010-03-28T13:34:00.000-07:00

Monday, March 29, 2010
Local
Monday, March 29, 2010

ADVICE TO CONFUSED WORKERS, EMPLOYERS
'Continue coordinating with CNMI Labor'

By Ferdie de la Torre
Reporter

Attorney General Edward T. Buckingham said alien workers and employers who are confused about the conflicting views of the federal and CNMI governments on umbrella permits should continue to coordinate with the Department of Labor.

Buckingham told Saipan Tribune that workers should attend to their scheduled return date to Labor and continue to obey all CNMI and U.S. laws.

“I have a legal opinion on this matter (umbrella permits issue),” Buckingham said, adding that he respects a difference of opinion with federal officials.

The federal government's position is that the CNMI Labor lost its authority to revoke the umbrella permits after the federalization law took effect on Nov. 28, 2009. CNMI Labor and Buckingham dispute this.

Walter Haith, the Guam/CNMI U.S. Citizenship and Immigration Services field office director, said in a recent forum that the federal government is certain in its views on the umbrella permit and authority over nonresident workers, but it is ultimately the decision of workers and employers whom they will believe and follow.

The CIS official also suggested to workers and employers to see their office or Federal Ombudsman Pamela Brown if they have problems with their umbrella permits.

Haith said employers should also consult their legal counsel if they have doubts.

Buckingham disclosed that Immigration and Customs Enforcement agents continue to work with Labor at the operational level.

“We have a recent case where the ICE agent inquired about the umbrella permit. Labor advised them there was a permit,” Buckingham said.

The ICE agent, the AG said, stated that the foreign national worker had been convicted of a sex offense against a minor and if Labor would revoke the umbrella permit.

“Labor said it would take steps to revoke. ICE said it would work with Labor after the umbrella permit was revoked so the person could be deported,” Buckingham added.

2010-03-25T08:05:00.000-07:00

Letter to the Editor: Open letter to the citizens of the Commonwealth
Friday, March 26 2010 00:00
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I OPPOSE the federal ombudsman’s interference in local political affairs, and I oppose her efforts to de-stabilize the Commonwealth’s workforce at a time when our economy most needs stability and certainty.

I have explained my reasons to the Legislature in urging the enactment of P.L. 17-1, the bill that conformed our Code to federalization of immigration and deportation, which the ombudsman tried unsuccessfully to derail. I now want to explain these reasons to our citizens.

The serious problems with the ombudsman’s positions can be explained by reference to some basic questions:

1. Should foreign workers be able to use the umbrella permit issued to them by the Department of Labor to “take any job” as the ombudsman recommends?

My answer to this proposition is an emphatic “no.” I have two reasons for this.

First, when a foreign worker can “take any job,” the most immediate effect is to cut out our qualified citizens from the opportunity to compete for that job. That should not happen. We did not invite foreign workers to the Commonwealth to squeeze our citizens out of jobs. We invited them to augment our workforce as necessary.

Second, the ombudsman’s position is contrary to P.L. 110-229, the federalization law, which is intended to increase citizen employment in the Commonwealth. As the Senate Committee explained in its report: “Section 102(a) expresses Congressional intent to...[extend] the INA with special provisions for...providing opportunities for locals to work.” The law directs the Secretary of the Interior “to assist employers in the Commonwealth in securing employees first from among citizens and nationals resident in the Commonwealth and, if an adequate number of such [local citizen] workers are not available, from among legal permanent residents, including lawfully admissible citizens of the freely associated states.” Emphasis added. The ombudsman’s efforts are devoted exclusively to putting foreign workers ahead of U.S. citizens in the employment queue. She should not be doing that. It is contrary to the express intent of the law.

2. Should foreign workers be given special assistance to remain in their existing jobs through renewals that are not authorized by the Department of Labor?

My answer to this proposition is “absolutely not.”

Every renewal of a contract is an opportunity for a qualified citizen to compete for the job. That is the intent of our law. By advocating renewals without any opportunity for citizens to compete — backed by a real job advertisement program and enforcement capability — the federal ombudsman is stealing jobs from our people.

3. Should foreign workers be allowed to remain in the Commonwealth until November 2011 regardless of whether they violate Commonwealth law or the conditions of their permits? The ombudsman says the Commonwealth cannot revoke the permits it granted.

I say that the ombudsman’s position is both bad law and bad public policy. I have four reasons for this.

First, every foreign worker who has an umbrella permit was required to appear personally, present sufficient identification, and sign a contractual agreement to abide by Commonwealth law. The umbrella permit specifically provides: “I, the person to whom this permit is issued as named and identified above, agree to the permit conditions set out above and acknowledge as a condition of the issuance of this permit allowing my employment in the Commonwealth that every aspect of the issuance, modification, or termination of this permit is governed by Commonwealth law and is administered by the Commonwealth Department of Labor.”

Like everyone else, foreign workers are to be held to their contractual agreements. If any worker had refused to agree to the terms on which the umbrella permit was issued, we would not have given out the permit. The federal ombudsman is, in effect, saying to foreign workers that it is okay to break the contract that you entered into. That is not right.

Second, every year a few foreign workers commit serious crimes and are convicted. I say we can revoke the umbrella permit of anyone who commits a crime. We are not required to tolerate criminal behavior and allow those people to have the advantages of the guest worker program.

Third, some aliens lied on their applications for their umbrella permits. They were never entitled to an umbrella permit. A permit that was issued based on representations that were not true can be revoked, and a person who deliberately made a false statement to a Commonwealth official has violated Commonwealth law. There is no reason that these people should be allowed to keep their permits in force.

Fourth, unemployed workers can be a significant burden on the Commonwealth. We have set out conditions in the umbrella permit under which we will take the risk of allowing an unemployed worker to remain for enough time to find a job — the worker has to agree to meet certain conditions during the time he or she is unemployed and they have to report back to the Department on the report-back date in the permit so we can assess the situation. We have not agreed to take that risk without careful consideration with respect to anyone who has an umbrella permit. If a worker has not found employment for six months, the likelihood of locating employment in the future is very low, and we are not required to allow that person to keep a permit over the long term.

4. Does federal law take the place of all of the Commonwealth’s labor laws?

The Attorney General and the Special Counsel to the Governor have both answered this question in legal terms.

The ombudsman is wrong. Federal law and Commonwealth law operate in parallel. There are important practical points to be made here.

First, Commonwealth law requires that employers pay medical expenses of foreign workers. This is a very important protection for Commonwealth citizens. If foreign workers can flood CHC with unpaid bills by accepting treatment and then just walking away from the bills because they do not have money to pay, then all our citizens suffer. The hospital will not have the funds to provide quality care for citizens. It is struggling now. The added burden of more unpaid bills would cause a serious decline in its capability. We are required by federal law to take aliens into the hospital. We need the protection of requiring employers to pay these bills. We are entitled to have that protection through our Commonwealth laws. There is no such protection under federal law.

Second, Commonwealth law requires bonding of an employer’s obligations for wages, medical expenses, and repatriation tickets. The federal system has no such protection. If there were no bonds, then there would be no alternative source to tap when employers fail to pay and most court cases would be fruitless. This is particularly true when an employer is a foreign-operated company that can just leave the Commonwealth and strand workers who have no recourse but to rely on Commonwealth benefits programs.

Third, Commonwealth law requires health examinations. Every year, a few foreign workers turn up with drug-resistant tuberculosis and other infectious diseases. The health exams catch these diseases, which can spread easily in a small island community and can cause very significant costs to the Commonwealth’s health care system. Under federal law, there is no such protection for our citizens.

Fourth, Commonwealth law allows employment disputes involving foreign workers to be resolved in administrative hearings which are relatively quick and inexpensive. Under the federal system, there is no administrative dispute resolution system. The federal system puts all these disputes into state courts where the burden is on the other users of the court system and the taxpayers of the jurisdiction who have to pay for the court system. In the Commonwealth, if the courts had to adjudicate the several hundred employment disputes involving foreign workers each year, other cases involving the rights of our citizens would have to wait longer and longer to be resolved and our court system would be more expensive to operate.

The Commonwealth government has very important interests at stake in the labor field. We will continue to insist that our citizens not be walled out of employment opportunities by federal labor initiatives. And we will prosecute where necessary to ensure that our taxpayers do not have additional burdens thrust upon them as a result of the transition program. There is no need for this to happen. Our laws have now been conformed to U.S. immigration requirements, and all references to immigration and deportation have been removed. We look forward to mutually supportive work with the Department of Homeland Security on these matters.

Respectfully,

CINTA M. KAIPAT
Deputy Secretary of Labor

2010-03-24T06:07:00.000-07:00

Kaipat says feds don’t know how many tourists didn’t exit NMI
Wednesday, March 24 2010 00:00 By Gemma Q. Casas - Reporter
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A LOCAL official says the U.S. Department of Homeland Security does not know how many foreigners who visited the CNMI have actually exited the islands because it does not have the capability to collect exit information data.

Jacinta M. Kaipat, deputy secretary of the CNMI Department of Labor, said her office is “working cooperatively” with the DHS units, the Customs and Border Protection, or CBP, and the Immigration and Customs Enforcement, or ICE, to address this problem.

In February, the U.S. Congress’ investigating agency, the General Accountability Office, reported that DHS still cannot access the CNMI’s Labor Information Data System and Border Management System despite the implementation of the law that federalized the islands’ immigration system on Nov. 28, 2009.

The GAO told the U.S. Senate Committee on Natural Resources, which has jurisdiction over the CNMI: “The LIDS and BMS databases have remained in the CNMI’s control during the CNMI’s transition to U.S. immigration law, and as of January 2010, the U.S. government’s direct access to information in these databases had not yet been established.”

Federal law enforcement agencies can only access those databases on a case-by-case basis despite their suggestion that those be linked to their existing systems: the Computer Linked Application Information Management System, ot CLAIMS 3 and 4, and the U.S. Visitor and Immigrant Status Indicator Technology, or US-VISIT.

But Kaipat said their office is working with the federal government.

“I can tell you that we are working cooperatively with CBP and ICE. For example, CBP does not have the capability to collect exit information on people leaving the commonwealth so they don’t know if tourists who arrived here in October and Nov. 2009, just before the deadline for federal control, have actually gone home or whether they have gone underground here in the commonwealth,” she said in her written testimony submitted to the CNMI Legislature.

“We have had the capability for years to collect exit information. For that reason, we are using our Border Management System to continue to collect exit information so we can help ICE identify overstayers. We cooperate with ICE by providing them with the data and information they need on a same-day basis when they investigate possible overstayers,” she added.

DOL has so far revoked about 200 umbrella permits and referred the names of an estimated 300 persons for possible removal or deportation from the CNMI.

2010-03-22T08:54:00.000-07:00

Local
Tuesday, March 23, 2010

CNMI omnibus immigration bill now law
Fitial asks Labor to reorganize, urges alien workers to abide by umbrella permit terms
By Haidee V. Eugenio
Reporter

As expected, Gov. Benigno R. Fitial immediately signed into law yesterday afternoon the omnibus immigration bill that asserts CNMI control over nonresident workers and removing all references to immigration and deportation from the Commonwealth Code to conform to the federalization law that came into effect on Nov. 28, 2009.

The Fitial administration-proposed measure passed the House and Senate during back-to-back sessions on Friday afternoon, despite the resistance of Republican House members.

House Bill 17-25, HS1 is the first bill in the 17th Legislature to be signed into CNMI law.

The over 70-page bill is now Public Law 17-1.

“We have always been concerned that the federalization law would be interpreted as affecting many of our internal labor controls, which some interpreted as such recently. However, that opinion is incorrect,” Fitial said in his three-page letter to legislative leaders.

The new law will make the Commonwealth Code conform with the requirements of the federalization law, Title VII of U.S. Public Law 110-229, with respect to federal control of immigration and deportation.

It also converts the mandatory 20- to 30-percent local hiring preference into a floating benchmark.

Fitial also asked the CNMI Department of Labor to reorganize itself to focus on local employment, and called on nonresidents to abide by the terms of their umbrella permit and all other provisions of the Commonwealth law.

“For example, the renewal of any foreign worker contract can be done only with the approval of the Labor Department,” he said.

The bill was introduced by Rep. Rafael S. Demapan (Cov-Saipan), who chairs the House Committee on Judiciary and Governmental Operations, which recommended passage of the bill.

Besides Republican lawmakers, Federal Labor Ombudsman Pam Brown, the Saipan Chamber of Commerce, and others had raised concerns and opposition to the bill's provisions. Brown had suggested that the measure's enactment will violate federal laws other than the Consolidated Natural Resources Act.

'Not about local laws'

Fitial said U.S. District Court for the District of Columbia Judge Paul L. Friedman, who handled the CNMI government's lawsuit against federalization, stated in his opinion that “the CNRA asserts federal authority over 'few' if any, matters which can be considered as purely 'local'; rather, it 'incidentally' affects some local labor matters to the extent that they are inseparable from immigration matters.”

“Remember, the federal case was not about our local labor laws. It was about the provisions of the federal law that mandate the complete removal of all aliens from the Commonwealth within five years. Judge Friedman recognized, as other federal courts have done, that labor is a subject where states have an important role in legislating the terms and conditions under which people work,” Fitial told House Speaker Froilan C. Tenorio (Cov-Saipan) and Senate President Paul A. Manglona (R-Rota).

In the CNMI's case, the federal role is limited to existing federal labor laws, which have always applied here, and other labor matters that are “inseparable from immigration matters,” the governor said.

“What our Legislature has done is to take out from our Code the few local labor matters that are inseparable from immigration matters,” he added.

Labor reorganization

The governor asked the Department of Labor to reorganize itself to focus on citizen employment. He said the omnibus bill includes the authority to do this.

“Our economy provides enough jobs to employ all our people, and we are going to take tough new measures to move them into those jobs,” he told lawmakers.

He has asked Labor to create a focal point in the department for dealing with employers on both citizen employment and guest worker issues.

“We will insist that employers obey Commonwealth law, and we need to make it as efficient as possible for them to do so. For example, I want employers to be able to deal with the department online to the maximum extent possible,” he said.

Fitial said most foreign workers are law-abiding people who just want an opportunity to live comfortably in the CNMI with their families and work at their jobs, which are important to the local economy.

“I urge every foreign worker to abide by the terms of the umbrella permit that you have been granted and all other provisions of Commonwealth law, now that it has been clarified by the bill that the Legislature has just passed,” he said.

The governor also asked Labor to create a focal point in the department for dealing with federal government agencies.

“We want to be responsive to their needs, and we want to be transparent in what we do so that they and we can work together on a good basis. I want to emphasize that there are as yet no federal regulations under the federalization law that are applicable to workers or investors in the Commonwealth,” he said.

Fitial said Judge Friedman struck down the worker regulations that were issued last year, and no final investor regulations have been issued after the comment period closed last October.

“So we need to proceed cooperatively in the interim so that there is as little instability and uncertainty as possible.. I believe this bill creates a stable employment platform for the Commonwealth and will help in the Commonwealth’s economic recovery,” he added.

Working with DHS

Fitial said he believes his administration can work with the U.S. Department of Homeland Security to overcome any operational problems.

“We can make valuable contributions in the process,” he said.

He cited as an example Customs and Border Protection, which does not have the capability to record exits from the Commonwealth in digital format on a real-time basis.

“They are working on this, but they don’t have a system yet. We have had a very effective digital exit control system for years. So we are keeping our exit control system operational until CBP has their system up and running, hopefully within a year or so,” Fitial said.

The Department of Labor had the draft bill ready to go in December and consulted widely in the community about it, he said.

The Office of the Attorney General also gave careful attention to the legal issues from the very beginning of the umbrella permit process through the drafting of the bill and its presentation to the Legislature, he added.

Regulations now being worked on

Labor Secretary Gil M. San Nicolas and Deputy Labor Secretary Cinta M. Kaipat, who were present at the bill signing ceremony at 3pm yesterday, said the department is now working on regulations that will be promulgated in accordance with the new law.

The entire labor law, as amended by the omnibus bill, will shortly be on the Labor Department’s Web site at www.marianaslabor.net.

Also witnessing the governor's signing of the bill were Demapan, Labor's Jeffrey Camacho and Tom Torres, Rep. Ramon Basa (Cov-Saipan), Attorney General Edward T. Buckingham, acting Resident Executive for Indigenous Affairs Ike Demapan, and press secretary Angel Demapan.

Earlier, Fitial’s special legal counsel, Howard P. Willens, said that no federal law affects the CNMI Legislature’s ability to enact the omnibus immigration bill.

He said the CNRA does not preempt the CNMI from administering and revoking the CNMI immigration status of aliens lawfully present on the islands on Nov. 28, 2009, during the CNRA’s two-year transition period.

He agreed with Buckingham’s legal opinion, basically reaching this conclusion.

2010-03-21T14:48:00.001-07:00

Willens says NMI can regulate workforce
Monday, March 22 2010 00:00 By Gemma Q. Casas - Reporter
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GOVERNOR Benigno R. Fitial’s special legal counsel, Howard P. Willens, says the CNMI government is free to consider alternative means of regulating its workforce despite the federal government’s statement that the employment of aliens on the islands is now within U.S. jurisdiction.

Willens made the statement in support of House Bill 17-25 which both houses of the Legislature passed on Friday afternoon during their back-to-back sessions.

“Looking further ahead, the commonwealth will be free to consider alternative means of regulating its workforce in light of all applicable laws. The clear direction of [U.S. Public Law 110-229 or the Consolidated Natural Resources Act of 2008] is that United States citizens are to be favored for employment and all foreign workers who cannot qualify under the federal system for a visa must be removed by the end of 2014,” Willens said in a memorandum to the governor.

H.B. 17-25, or the Omnibus Immigration Conformity Act of 2010, which Rep. Rafael S. Demapan, Covenant-Saipan, sponsored is expected to be signed into law.

According to Willens, no federal law affects the Commonwealth Legislature’s ability to pass the bill.

“This proposed Omnibus Immigration Conformity Act of 2010 is designed primarily to reflect and implement the provision of the CNRA expressly preempting those commonwealth laws ‘relating to the admission of aliens and the removal of aliens from the commonwealth.’ The proposed legislation does this by eliminating all references in the relevant CNMI laws to the immigration authority previously exercised by the commonwealth,” said Willens.

According to the bill, U.S. citizens must be given preference when seeking employment in the CNMI.

It further requires all documented foreigners on the islands who have been here for over 90 days to register with the CNMI Department of Labor even if they posses umbrella permits that are valid through Nov. 27, 2011.

“The legislation…deals with the local economy and workforce in ways that do not affect the federal government’s immigration authority or the foreign affairs or security issues addressed by the CNRA,” Willens said.

2010-03-21T14:47:00.001-07:00

Kaipat defends proposed benchmark on hiring locals
Monday, March 22 2010 00:00 By Gemma Q. Casas - Reporter
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DEPUTY Labor Secretary Jacinta M. Kaipat says the administration’s proposed floating benchmark on hiring locals will not harm the business sector.

Kaipat said the change from the fixed 20 to 30 percent local hire requirement to a floating percentage was purposely done for legal and practical reasons.

“[T]he change…will not work any hardship on our businesses. We at the Labor Department are very sensitive to the difficult economic circumstances in which businesses must operate. We recommended the flexible benchmark rather than the fixed percentage for both legal and practical reasons,” Kaipat said in her written statement submitted to the Legislature last Friday.

Both houses of the Legislature passed House Bill 17-25 or the Omnibus Immigration Conformity Act of 2010 on Friday, and the governor is expected to sign it into law.

“The department already has flexibility under existing law to move the mark from 20 to 30 percent so the flexible provision would not really be a big jump from where we are now,” Kaipat said.

“We will publish regulations with respect to the flexible benchmark as soon as the bill is enacted, and those regulations will sit before the Legislature for review before they can become effective,” she added.

Comments

+2 #1 Keys 2010-03-22 10:44 Cinta what is it you don't understand? You have no more authority. Let it go and move on!

2010-03-21T10:47:00.000-07:00

Monday, March 22, 2010
Letters to the Editor
Monday, March 22, 2010

Open letter to Malou Berueco

Dear Ms. Berueco,

This is in response to your letter to the editor posing several questions wrapped in your opinions about the Commonwealth.

Your question: Why did the Department of Labor issue the umbrella permits before Nov. 28, 2009?

Answer: PL 110-229 specifically required the federal government to respect any permit issued by the Commonwealth government prior to the transition date so long as that permit remained valid and was not revoked. The Commonwealth government acted to provide stability in the workforce so that foreign workers would not quickly fall into illegal status. As you know, the initial regulations issued by the Department of Homeland Security (which were struck down by the federal judge) provided only 10 days for workers to find new jobs if they were terminated by their employers or not renewed. Ten days is a very short time for someone to find a new job. We thought that it would be better to allow more time. Under the federal system, employers can employ a worker without a contract, terminate a worker for any reason at any time, and provide no guarantee whatsoever that the worker will actually be paid. Workers in that kind of unstable situation, that has caused many, many problems in the mainland U.S., would not be very productive for the Commonwealth's economy. The Department of Labor's system provides stability.

Your question: Why is it that the foreign national identification card does not contain an issuance date, unlike previous permits the Department of Labor issued?

Answer: The budget of the Department of Labor has been cut very substantially. As a result, we have cut costs wherever we can, even in relatively small ways. The cost to print identification cards has been reduced by cutting the amount of ink we use and changing the card stock.

Your question: Why not issue those unclaimed umbrella permits?

Answer: The department issued very clear widely publicized guidance in October 2009 that anyone who did not sign the contractual agreement included in the umbrella permit and take personal possession of the permit prior to Nov. 28, 2009 would not thereafter be issued a permit. Unfortunately, some commentators in the Commonwealth and elsewhere advised that the umbrella permit was not necessary. I recall that you issued public statements questioning the umbrella permits. Foreign workers who followed the advice that umbrella permits were questionable or unnecessary are now facing the very real possibility that they will fall into illegal status very soon. If they had followed the department's guidance and picked up their permits, they would not have this problem.

Your question: Why not work with other government agencies to find ways and funds on how to train your citizens to be workers?

Answer: We intend to replace foreign workers systematically until every citizen has a job. That is one of my priorities. The recent disparagement of Department of Labor programs has made the Commonwealth's citizens very determined in this regard, and we will move aggressively on this front. In many cases, our citizens do not need training. They are very able employees. They need help in overcoming illegal sponsorships that keep foreign workers in jobs for which they are not paid or kickback situations in which foreign workers are paid less than the minimum wage. They need help in dealing with the hostile workplace environment when foreign workers try to squeeze them out of their jobs. And they need help in requiring a few foreign owners of businesses to obey Commonwealth laws. Do not underestimate our citizens' capability to replace foreign workers, and our efforts to help them to do so.

Your question: Does the CNMI really need to import lagoniza, tocino, et al.?

Answer: The CNMI's economy is not a “managed” marketplace where the government dictates who should import what-as is the case in some foreign countries. Private enterprise imports what sells.

I have these additional comments on the opinions you offered.

The intention of the Department in issuing umbrella permits was to stabilize the workforce. There is no basis whatsoever for your statement that this was really “to make it appear.that the CNMI government was concerned about the economy.” Every Commonwealth Administration has been vitally concerned with the economy. You came to the Commonwealth for the economic opportunity that it offered to you personally. Many aliens came to the Commonwealth because they wanted to get into the U.S., but the U.S. system (now extended to the Commonwealth) would not accept them. And the Commonwealth has been very good to you. You have had an opportunity here to use your skills and to advance based on merit. You have a good job; you married a U.S. citizen and have better status by reason of that; and the only labor complaint you've had since I have been at the Labor Department was that your U.S. citizen son had difficulty in his place of employment due to a work environment that did not favor U.S. citizens. Similarly, the Commonwealth's guest worker system has been very good to most foreign workers who have had economic opportunities that never would have been available to them in their home countries.

There was no surprise whatsoever that the federal government accepted the umbrella permits. We discussed the umbrella permits with Department of Homeland Security officials in Washington as we developed the program. We knew they would be accepted when issued.

Thank you for recognizing that the department expended considerable energy and intelligence, plus very scarce funding, in providing the umbrella permits that are so helpful to the majority of foreign workers. Having stabilized the workforce and protected our economy to the extent we can, we are now turning our primary attention to ensuring that U.S. citizens fill jobs held by foreign workers until every citizen holds a good job.

Cinta M. Kaipat
Deputy Secretary of Labor

2010-03-21T10:19:00.000-07:00

Local
Monday, March 22, 2010

'Omnibus immigration bill does not violate federal laws'
'Employers who hire aliens without umbrella permit may be violating CNMI, US laws'
By Haidee V. Eugenio
Reporter

Gov. Benigno R. Fitial's special legal counsel, Howard P. Willens, has said that no federal law affects the CNMI Legislature's ability to enact the omnibus immigration bill that the House and the Senate passed on Friday during back-to-back sessions.

Fitial is expected to immediately sign House Bill 17-25, HS1.

Introduced by Rep. Rafael S. Demapan (Cov-Saipan), the Fitial administration-sponsored omnibus immigration bill asserts CNMI control over nonresident workers, and converts the mandatory 20- to 30-percent local hiring preference into a floating benchmark.

The over 70-page bill seeks to conform the Commonwealth Code to the requirements of the federalization law, Title VII of U.S. Public Law 110-229, with respect to federal control of immigration and deportation.

Willens, in a memorandum for the governor dated March 18, said the Consolidated Natural Resources Act or the federalization law does not preempt the CNMI from administering and revoking the CNMI immigration status of aliens lawfully present on the islands on Nov. 28, 2009, during the CNRA's two-year transition period.

He agreed with Attorney General Edward T. Buckingham's legal opinion basically reaching this conclusion.

Deputy Labor Secretary Cinta M. Kaipat, in a three-page statement to the Legislature on Friday, said most of the provisions of the bill simply remove provisions with respect to immigration and deportation from various sections of the Commonwealth Code without changing the substance of the remaining provisions of those laws.

But during Friday's session, House Minority Leader Diego T. Benavente (R-Saipan) and other Republicans took turns questioning the legality and urgency of the bill, adding that the measure may only be advancing Fitial's agenda “that the federal government is wrong; that we control labor, not the federal government.”

Buckingham and House legal counsel John Cool assured House members that the bill is legal and does not violate federal laws.

Willens, in his memo, also said that the preemption provision of the CNRA does not bar all legislation by the CNMI regarding its workforce either before or after the two-year transition period.

He said none of the provisions of the local omnibus immigration measure affects or unduly burdens the authority of the U.S. Department of Homeland Security to implement its standard visa program, to issue regulations providing for a transitional worker program as directed by the CNRA, or to remove those aliens no longer authorized to remain in the CNMI.

“As amply documented in the Opinion of the Attorney General, the CNRA does not expressly or implicitly preempt local CNMI laws dealing with employment practices pursuant to the Commonwealth's authority over intrastate commerce and its police power. There is nothing in the language of the CNRA or its legislative history that suggest otherwise,” Willens said.

'Premature, inaccurate'

Willens also described as “premature and inaccurate” the contention that enactment of the omnibus bill will violate other federal laws.

He said Federal Labor Ombudsman Pamela Brown, one of the opponents of the local bill, has suggested that its enactment will violate federal laws other than the CNRA.

Brown cited the Illegal Immigration Reform and Immigration Responsibility Act of 1996, and the Immigration Reform Control Act of 1986.

“The first of these two laws appears entirely irrelevant to the issues now before the Legislature,” Willens said.

The second law, he said, makes illegal the knowing hiring or recruiting of illegal immigrants who do not possess a lawful work authorization under the federal immigration laws.

He said some state laws have recently been challenged under this law requiring an interpretation of the preemption provision.

Kaipat, in her statement, said Brown's short legal opinion on the subject “is wrong.”

“This is not an area of Ms. Brown's concern as federal ombudsman. So far as we know, no one at Homeland Security has asked her to take these confrontational actions in the Commonwealth,” she added.

'Employers may be in violation of laws'

In his four-page memo to Fitial, Willens said in the first place, the CNMI Legislature clearly has the authority to update its laws in light of the preemption provision of the CNRA and to reaffirm the authority contained in that federal law to enforce the umbrella permits until Nov. 27, 2011.

“Employers who elect to hire employees who lack an umbrella permit may be at risk of violating both CNMI and federal laws during this transitional period until Nov. 27, 2011,” Willens said in a footnote in his memo.

He said looking further ahead, the CNMI will be free to consider alternative means of regulating its workforce in light of all applicable laws.

“The clear direction of the CNRA is that United States citizens are to be favored for employment (and all foreign workers who cannot qualify under the federal system for a visa must be removed by the end of 2014),” Willens told Fitial.

He added that the provision regarding preferences for U.S. citizens in the legislation appears appropriate and lawful under both the CNRA and the 1986 Immigration and Control Act.

Kaipat, for her part, said the local measure is not limited to a two-year time horizon.

“The Commonwealth has the power, like any state, to legislate with respect to the terms and conditions of employment in the Commonwealth. This legislation will last for as long as there is employment in the Commonwealth or until the Legislature amends it,” she said.

If enacted, the omnibus bill amends parts of Public Law 15-108, or the Commonwealth Employment Act of 2007. It will delete all regulations of the defunct CNMI Division of Immigration and “move any necessary language over to the labor regulations.”

She added that another key provision of the bill is the reorganization of CNMI Labor, so that the department “can address more effectively the problems of promoting citizen employment.”

2010-03-19T07:45:00.000-07:00

Local
Saturday, March 20, 2010

Legislature OKs omnibus immigration bill

By Haidee V. Eugenio
Reporter

The House and Senate passed a Fitial administration-sponsored omnibus immigration bill that asserts CNMI control over nonresident workers, and converts the mandatory 20- to 30-percent local hiring preference into a floating benchmark, during back-to-back sessions yesterday afternoon.

Gov. Benigno R. Fitial is expected to immediately sign the bill when it is transmitted to his office on Monday.

“Governor Fitial is very pleased with the swift action of both houses of the Legislature. He will sign it into law when it reaches his desk on Monday,” said press secretary Angel Demapan, who attended the House and Senate sessions with Attorney General Edward T. Buckingham and Deputy Labor Secretary Cinta M. Kaipat.

Republicans in the House, however, questioned the legality, true purpose, and urgency of House Bill 17-25, HS1, which also reorganizes the CNMI Department of Labor.

HB 17-25, HS1, introduced by Rep. Rafael S. Demapan (Cov-Saipan), amends sections of the Commonwealth Code dealing with immigration functions, to reflect the assumption of immigration responsibilities by the federal government pursuant to Public Law 110-229, Title VII, which became effective on Nov. 28, 2009.

House Minority Leader Diego T. Benavente (R-Saipan) said the “questionable” piece of legislation contradicts federal position, which was also highlighted in separate questions-and-answers documents released by the CNMI and the U.S. Citizenship and Immigration Service.

“Is this bill legal, in a way that it does not conflict with or violate federal law?” Benavente asked House legal counsel John Cool. The counsel said in his opinion, the bill is legal and also cited the attorney general's opinion on the matter.

House Speaker Froilan C. Tenorio (Cov-Saipan) said the legality of the bill is not for the Legislature to decide.

“It seems to me that the bill pushes the agenda of the governor that the federal government is wrong; that we control labor, not the federal government,” said Benavente.

Buckingham said the bill clarifies the role of the CNMI Department of Labor and gives direction to employers and nonresident workers.

Kaipat said the bill “brings clarity” on what's pre-empted and what's not, adding that coming up with the umbrella permit is an ingenuous way to stabilize the workforce and allowed the CNMI to continue to implement the local law.

“I urge all of you to pass this bill today,” Kaipat told House members.

As Buckingham earlier said, the CNMI Labor has the authority to revoke umbrella permits, contrary to statements made by Federal Labor Ombudsman Pamela Brown that seem to suggest that an umbrella permit cannot be revoked.

Buckingham also earlier said that CNMI Labor has both the authority and the duty to monitor compliance with umbrella permit holders, and should one or more conditions of the umbrella permit are not met, the umbrella permit may be revoked.

He said the federal government assumed control over entry and exit into the CNMI, but did not replace the CNMI Department of Labor for its activities.

The House unanimously adopted the 27-page standing committee report by Demapan's Judiciary and Governmental Operations Committee, recommending passage of Demapan's HB 17-25, HS1.

After over an hour of discussion and debate on the measure, HB 17-25, HS1 passed the House on a 16-2 vote, with one abstention and one absence.

Only Reps. Ramon A. Tebuteb (R-Saipan) and Ray N. Yumul (R-Saipan) voted “no” on the bill, while Rep. Trenton Conner (R-Tinian) abstained from voting. Rep. Frederick P. Deleon Guerrero (Ind-Saipan) was excused.

Benavente voted “yes with major reservation,” while Rep. Francisco Dela Cruz (R-Saipan) voted “yes with reservation.” Benavente said he still thinks that the bill is questionable.

Immediately after the House passage, Demapan's bill was transmitted to the Senate.

Senators unanimously passed the bill. Only seven of nine senators were present yesterday. Sens. Henry San Nicolas (Cov-Tinian) and Sen. Ralph Torres (R-Saipan) were absent.

Kaipat earlier said the omnibus immigration bill will change the mandatory 20 percent to 30 percent local hiring preference to a floating benchmark based on the population of U.S. citizens and permanent residents on the islands in a bid to reduce unemployment among them.

The Saipan Chamber of Commerce, the largest business organization in the CNMI, is opposed to a floating benchmark in local hiring.

If enacted, the omnibus bill amends parts of Public Law 15-108, or the Commonwealth Employment Act of 2007. It will delete all regulations of the defunct CNMI Division of Immigration and “move any necessary language over to the labor regulations.”

Kaipat said another key provision of the bill is the reorganization of CNMI Labor.

2010-03-15T07:40:00.000-07:00

Local
Tuesday, March 16, 2010

Q&A
Employment requirements imposed by CNMI law

No regulations have been issued by the U.S. Citizenship and Immigration Service with respect to foreign workers or foreign investors in the Commonwealth. Instead, USCIS has issued a "Questions & Answers" document setting forth their policy views with respect to matters they believe might be subject to federal regulations. Some of the questions addressed by USCIS raise issues with respect to the extent to which CNMI laws continue to be enforced during the two-year period following Nov. 28,2009. The Commonwealth contends that the answers provided by USCIS to these questions are not consistent with the provisions of the Consolidated Natural Resources Act of2008 ("CRNA"), PL 110-229. So that the differences between the federal Government and the CNMI on these issues can be easily understood, this we have set forth the same questions addressed in the USCIS document and provide the Commonwealth’s answers to these questions.

Many of the questions addressed in the USCIS Q&A Document, such as those pertaining to the use of Form 1-9 CNMI and the enforcement of Section 274A of the INA, are exclusively matters of federal law. They do not affect the way that Commonwealth law is and will be enforced.

In addition, many Commonwealth employers already have approved employment contracts in place with the foreign workers they employ. All of these employment arrangements must be honored and cannot be disturbed by federal officials.

Q. Is the employment authorization of aliens present in the CNMI a matter of federal law or of CNMI territorial law?

A. The employment of aliens in the CNMI under the CRNA is a shared responsibility of the federal and CNMI governments. The CRNA applied the immigration laws of the United States to the CNMI, which means that various visa categories are available to workers, students, and investors to the same extent that they are available in other parts of the United States. In addition, the CRNA authorized the issuance of special regulations with respect to workers and investors, but no final regulations in these two areas have yet been issued by the Department of Homeland Security. The CNRA specifically preempted the immigration laws of the CNMI, which it defined as those "laws, provisions, or programs of the Commonwealth relating to the admission of aliens and the removal of aliens from the Commonwealth."

The preemption provision in the CNRA does not preempt the labor laws of the Commonwealth-broadly defined as those laws regulating the terms of employment between employers and employees, including those specific provisions relating to the employment of foreign workers such as the provision for medical expenses-that do not conflict with any provisions of federal law. In short, CNMI can and will exercise the same powers with respect to its workforce as are exercised by the States. The views of the Commonwealth on this preemption issue are set forth more fully in the Opinion of the CNMI Attorney General dated March 15,2010.

As recognized by the USCIS document, the CNRA contained specific provisions applicable to the two-year period following Nov. 28, 2009. During this period foreign workers are allowed to work based on the employment authorization that they had received under CNMI law before this transition date. These permits are called "umbrella permits" and were issued to those eligible workers who presented themselves in person to the CNMI Department of Labor and signed the permits reflecting their agreement to the terms of the permit. The permits clearly indicated that they could be revoked by the CNMI Department of Labor if the worker failed to comply with the relevant provisions of CNMI law. The USCIS document indicates that the Department of Homeland Security "fully recognizes employment authorization based on" this provision of the CNRA.

Q. What is an "umbrella permit"?

A. The Commonwealth provided to USCIS the listing and description of "umbrella permits" set forth in the USCIS document. As indicated, such permits were issued to various categories of persons other than workers, including certain immediate relatives, investors, students, and government employees.

Q. As the holder of an umbrella permit, may I work in the CNMI under federal law?

A. The holders of such permits may not work "for any private employer in the CNMI until Nov. 27, 2011" as asserted by USCIS. This is inconsistent with the provisions of CNMI law under which the permits were issued and agreed to by the worker, student, investor, or other recipient of such a permit. In the case of a foreign worker, for example, who received an umbrella permit under category 240k, the worker is required to return to the CNMI Department of Labor in the event that he or she is no longer employed, for whatever reason, and seek permission to pursue other employment within a limited period of time. In the event that the worker cannot find another job within the specified period of time, the umbrella permit will be revoked under CNMI law. Once the permit is revoked, the worker is subject to removal (or deportation) under the INA unless the worker can obtain a federal visa or conditional work permit (under DHS regulations that do not yet exist) which entitles the worker to remain in the Commonwealth.

Similarly, investors are not permitted to work for any private employer. They may work only in the establishment in which they have invested. And students may not work for any private employer. They may work only part-time and in accordance with the limitations set out in Commonwealth law and regulations.

Q. My umbrella permit has two dates. Which one controls the length of my authorized employment?

A. Both dates are important. No worker can continue to work in the CNMI until Nov. 27,2011 unless the worker has complied with the report-back date requirement. This is required both by the provisions of CNMI law under which the permit was issued and the conditions on the issuance of the permit to which the worker agreed. The "Next filing date to avoid revocation" means exactly what it says. It means that some aspect of the umbrella permit needs to be reexamined, and approved, by the CNMI Department of Labor, in the absence of which the permit will be revoked, with the consequences summarized above.

The federal government has no authority to change CNMI law in this respect, and the CNRA clearly indicated that the federal government would honor those permits issued by the CNMI before the transition date of Nov. 28,2009. In the absence of a transitional worker program of the kind under consideration, the only basis on which the worker would be entitled to remain in the CNMI (and avoid the risk of removal or deportation under the INA) would be if he or she could obtain an H visa or some other standard visa available under the INA. In the absence of such a legal basis for remaining in the CNMI, an employer who hires such a worker whose CNMI permit has been revoked, takes on the risk of employing an alien unauthorized to be in the CNMI even if the employer completes the Form 1-9 CNMI.

Q. As an employer in the CNMI, do I need the approval of the CNMI DOL to hire the holder of an umbrella permit for new employment?

A. This depends on the type of umbrella permit that has been issued. If the holder of an umbrella permit is the immediate relative of a U.S. citizen or U.S. permanent resident (240D), then no approval is required. Similarly, the holders of240B, 240G, 240H, 240N and 2400 permits do not need prior approval, however all these categories of permit holders must comply with Commonwealth law. Holders of foreign national worker umbrella permits (240K) may not be employed without Department of Labor approval.

The Commonwealth disagrees with the USCIS answer to this question, and specifically the suggestion that there is no legal risk involved if the employer hires the holder of an umbrella permit without securing the approval of the CNMI Department of Labor. As indicated above, the employer needs to satisfy itself that the umbrella permit has not been revoked by the CNMI Department of Labor and that the department authorizes the terms under which the foreign worker is being employer. If the umbrella permit has been revoked, or if the employer does not seek the approval required under CNMI law, the employer will be violating CNMI law and may be subject to the sanctions provided under CNMI law. In addition, if the umbrella permit has been revoked, the worker may be subject to removal (or deportation) from the CNMI unless the worker has a federal visa or other permit issued under federal law or regulations authorizing the worker to remain in the CNMI.

Q. Can an umbrella permit be extended or revoked?

A. An umbrella permit cannot be extended beyond Nov. 27,2011 until the federal law is changed. The holder of a permit that has been revoked cannot continue to work or be employed anywhere in the Commonwealth after revocation.

Q. As an umbrella permit holder, how can I obtain an immigration status that will allow me to remain in the CNMI after Nov. 27, 2011?

A. Until the federal law is changed or the transition period is extended, a U.S. visa will be necessary. Currently it is quite difficult to get a federal visa unless you are an immediate relative of a U.S. citizen or permanent resident.

Q. Can holders of umbrella permits change employment without regard to existing employment contracts or to professional licensing requirements?

A. All contractual and legal obligations under CNMI law can be enforced by Commonwealth authorities, even though they are not enforced by federal authorities.

Q. Does this mean that if I hold an umbrella permit I cannot be removed from the CNMI until after Nov. 27,2011?

A. The holder of a valid umbrella permit cannot be removed unless grounds for removal under U.S. law apply. The holder of a revoked umbrella permit can be removed and the Commonwealth will seek removal. US CIS recognizes in its answer to this question (as maintained by the CNMI) that an umbrella permit holder may be subject to removal from the Commonwealth if the status previously granted by the CNMI has expired or been revoked prior to Nov. 27,2011.

Q. On the transition date, I was an investor (or visitor, temporary worker, student, permanent resident, etc) under CNMI law. What is my status under federal immigration law?

A. The CNRA permits aliens to stay in the Commonwealth on the basis of their CNMI status as of the transition date for "as long as their activities in the CNMI are consistent with those authorized by their previous CNMI status." This means that a foreign worker whose umbrella permit has been revoked, or is not employed pursuant to CNMI law, is subject to removal from the Commonwealth under federal law.

Q. I have a student umbrella permit or an investment and business umbrella permit. Can I work fulltime for any employer?

A. No. A foreign student may work only part time and only in conjunction with the program of studies that allowed the foreign student to gain admission to the Commonwealth. A foreign investor may work full time but only in the enterprise in which the investor’s capital is invested.

Q. I am on the CNMl’s "barred employer list." Does federal immigration law prohibit me from employing aliens who are authorized to be employed in the CNMI?

A. federal law does not apply, but Commonwealth law prohibits barred employers from employing any foreign worker. The Commonwealth will prosecute any barred employer who seeks to employ a foreign worker while the bar is still in place.

Q. Does my umbrella permit authorize me to travel outside the CNMI and return?

A. Anyone may leave the Commonwealth at any time without any permission from either the CNMI or the U.S. unless an arrest warrant is outstanding. However, entry to the Commonwealth is controlled by the Customs and Border Protection agency of the Department of Homeland Security. The Commonwealth has been assured that the current "advance parole" system that is in effect to allow holders of umbrella permits to travel to the Commonwealth will remain in place indefinitely.

Q. If I quit my job or I am terminated from employment, does my umbrella permit authorize me to remain in the CNMI until Nov. 27, 2011 without working?

A. No. The CNRA was not intended to saddle the Commonwealth with the burden of unemployed aliens. If a foreign worker quits or is terminated, that worker must register with the Department of Labor and search diligently for employment within the time limits permitted. The umbrella permit of any worker who does not follow this procedure will be revoked by the department.

Q. Can the CNMI government or my employer remove me from the CNMI?

A. No. Only the Office of Detention and Removal within the Immigration and Customs Enforcement agency can remove an alien from the CNMI. However, the CNMI government will promptly and vigorously seek removal of any alien who does not comply with Commonwealth laws and may seek other remedies as well.

Q, May an employer accept an umbrella permit issued after Nov. 27,2009?

A. There are no valid umbrella permits issued after Nov. 27, 2009 as none have been issued by the CNMI.

Q. My umbrella permit does not have a photograph? What should I do?

A. Your umbrella permit has already been revoked. You were required to appear prior to Jan. 15, 2010 to obtain a new permit with a photograph, and you did not do so. No employer may accept an umbrella permit without a photograph.

Q. My umbrella permit has been lost, stolen, or damaged. What should I do?

A. Because of the confusion surrounding the present situation, the Department of Labor will not issue any replacement permits. Every holder of an umbrella permit who signed for the permit was warned to keep the permit in a safe place. The department will verify, to an employer who is complying with Commonwealth law, that a permit was issued and remains valid.

Q. Who is responsible for enforcing the anti-discrimination provisions of Section 274B of the INA?

A. Any employer who complies with Commonwealth law is not subject to the antidiscrimination provisions of Section 274B of the INA because the labor program under which they operate is governed by local law.

Source: Office of the Governor

2010-03-15T07:35:00.000-07:00

Local
Tuesday, March 16, 2010

Fitial hits USCIS; issues own Q&A
AG: CNMI may revoke aliens' immigration status
By Haidee V. Eugenio
Reporter

Gov. Benigno R. Fitial and Lt. Gov. Eloy S. Inos said yesterday that the answers provided by the U.S. Citizenship and Immigration Services on federalization and the extent to which CNMI laws continue to be enforced during the two-year transition period following Nov. 28, 2009 “are not consistent” with the provision of the Consolidated Natural Resources Act.

Attorney General Edward T. Buckingham also issued yesterday a legal opinion stating that the CNRA does not expressly preempt the CNMI from administering and revoking Commonwealth immigration status of aliens during the two-year transition period.

“Indeed, it would be illogical and unjust to allow aliens to remain in the CNMI for up to two years by virtue of their Commonwealth status without a mechanism for administering that status,” Buckingham said in his eight-page legal opinion.

Fitial and Inos pointed out that USCIS has not issued final regulations with respect to foreign workers or foreign investors in the CNMI.

“Instead, USCIS has issued a questions and answers document setting forth their policy views with respect to matters they believe might be subject to federal regulations,” said Fitial and Inos.

USCIS is one of the component agencies of the U.S. Department of Homeland Security.

The Fitial administration's statement came after U.S. Interior Assistant Secretary Tony Babauta defended Federal Ombudsman Pamela Brown's statements at a forum where she stated, among other things, that the CNMI Department of Labor lost its authority to revoke umbrella permits when the federalization law took effect on Nov. 28, 2009.

USCIS also issued this weekend a guidance memorandum that supports Brown's statements on umbrella permits and alien employment issues.

The Fitial administration said the employment of aliens in the CNMI under the CNRA is a shared responsibility of the federal and CNMI governments.

USCIS earlier said this is now a matter of federal law.

Fitial and Inos issued yesterday their own question-and-answers similar to the format issued by USCIS during the weekend, so that the differences between the federal government and the CNMI on federalization issues can be easily understood.

“In addition, many Commonwealth employers already have approved employment contracts in place with the foreign workers they employ. All of these employment arrangements must be honored and cannot be disturbed by federal officials,” they said.

The administration said the preemption provision in the CNRA does not preempt the labor laws of the Commonwealth-broadly defined as those laws regulating the terms of employment between employers and employees, including those specific provisions relating to the employment of foreign workers such as the provision for medical expenses-that do not conflict with any provisions of federal law.

“In short, CNMI can and will exercise the same powers with respect to its workforce as are exercised by the states. The views of the Commonwealth on this preemption issue are set forth more fully in the opinion of the CNMI Attorney General dated March 15, 2010,” Fitial and Inos said.

'Inconsistent'

Fitial and Inos said holders of umbrella permits may not work “for any private employer in the CNMI until Nov. 27, 2011” as asserted by USCIS.

“This is inconsistent with the provisions of CNMI law under which the permits were issued and agreed to by the worker, student, investor, or other recipient of such a permit. In the case of a foreign worker, for example, who received an umbrella permit under category 240K, the worker is required to return to the CNMI Department of Labor in the event that he or she is no longer employed, for whatever reason, and seek permission to pursue other employment within a limited period of time,” they said.

USCIS earlier said in the case of the category 240K Foreign National Worker Permit, aliens are authorized to work for any private sector employer in the CNMI until Nov. 27, 2011.

The Fitial administration said investors are not permitted to work for any private employer, and may work only in the establishment in which they have invested.

It said students may not work for any private employer, but may work only part-time and in accordance with the limitations set out in Commonwealth law and regulations.

'No conflict'

Buckingham said there is no actual conflict between the CNRA and the CNMI's administration and revocation of Commonwealth immigration status during the transition period.

First, it is possible for the CNMI to administer and revoke Commonwealth immigration status without violating the CNRA because the CNRA preserves Commonwealth status, which is dependent on compliance with Commonwealth law, during the transition period.

Second, CNMI administration and revocation of Commonwealth immigration status during the transition period would not be an obstacle to the CNRA's purposes and objectives.

This, according to the attorney general, is because: (1) border security would not be adversely affected; (2) the Commonwealth's foreign national worker program would be phased-out in an orderly manner; (3) federal immigration responsibilities would be phased-in in an orderly manner; (4) potential adverse economic and fiscal effects of phasing-out the Commonwealth's foreign national worker program would be minimized by the orderly transition; and (5) the Commonwealth's potential for future economic and business growth would be maximized by the orderly transition.

Deputy Labor Secretary Jacinta M. Kaipat said earlier that the names of some 300 foreigners are ready to be referred “soon” to the U.S. Immigration and Customs Enforcement for deportation, while some 200 umbrella permits issued to foreigners have so far been revoked.

Labor Wants Floating Benchmark to Prioritize Hiring of Locals

2010-03-09T06:34:00.000-08:00

Labor wants floating benchmark to prioritize hiring of locals
Wednesday, 10 March 2010 00:00 By Gemma Q. Casas - Reporter
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THE local Department of Labor is asking the Legislature to pass legislation that will change the mandatory 30 percent local hiring preference to a floating benchmark based on the population of U.S. citizens and permanent residents on the islands in a bid to reduce unemployment among them.

Deputy Labor Secretary Jacinta M. Kaipat said increasing the employment rate of U.S. citizens, U.S. permanent residents and CNMI permanent residents will strengthen the islands’ foreign-labor dependent economy.

“We are proposing to change our hiring preference from a flat percentage (20 percent rising to 30 percent) to a floating benchmark governed by the percentage of the population that is U.S. citizens, U.S. permanent residents and CNMI permanent residents,” Kaipat said in her written testimony submitted to the Senate Standing Committee on Judiciary and Governmental Operations which is reviewing House Bill 17-25, or the Immigration Conformity Act of 2010.

“As foreign workers depart the commonwealth, the percentage of ‘U.S. qualified’ persons in the commonwealth’s working population has been rising. We estimate that it is now about 40 percent of the total workforce and is still rising. A floating benchmark serves us better as a practical matter and is similar to the ‘hiring goals’ that have been used in the U.S. for many years,” she added.

H.B. 17-25 is proposed to be lumped with another bill pre-filed in the Senate.

This omnibus bill will amend parts of Public Law 15-108, or the Commonwealth Employment Act of 2007.

If enacted, the omnibus bill will delete all regulations of the defunct CNMI Division of Immigration and “move any necessary language over to the labor regulations.”

Kaipat acknowledged that the CNMI’s power to admit and remove aliens in the commonwealth was superseded when the U.S. extended federal immigration law to the islands on Nov. 28, 2009 under U.S. Public Law 110-229 or the Consolidated Natural Resources Act of 2008.

“Thus, any commonwealth law governing the ‘admission of aliens’ from foreign countries into the commonwealth or the forcible ‘removal of aliens’ from the commonwealth back to a foreign country has been preempted, or made unenforceable, by U.S. P.L. 110-229 as passed by Congress,” she said.

Among the major changes that DOL wants is the reorganization of the department.

Kaipat said DOL should be restructured to serve the needs of the commonwealth.

She said the old management structure with layers of supervisors is no longer needed.

“That structure is expensive to maintain in terms of personnel costs and freezes us to a structure that was geared to a situation we faced a decade ago. In addition, I need to take personnel out of areas dealing with foreign workers and deploy them in functions helping U.S. citizens get jobs, which is our first priority,” she said.

This will mean dividing the employment services division and widening its scope.

Kaipat said there are enough jobs for U.S. citizens in the CNMI.

“We have enough jobs in the commonwealth’s economy at present to employ every single U.S. citizen in the commonwealth who wants a job. We currently have more than 9,000 jobs filled by foreign workers. If the U.S. Census Bureau provided us with the same services they provide to every state and county in the U.S., I could tell you how many unemployed people we have,” she said.

“But the U.S. Census refuses to give us the vital information they provide mainland jurisdictions so we are left to guess about unemployment in the commonwealth. However, we know that we had about 11,000 people filing W-2 forms last year and we know we have about 32,000 U.S. qualified residents — that is, U.S. citizens, U.S. permanent residents and CNMI permanent residents,” she added.

The CNMI government lost its anti-federalization case against the U.S. Department of Homeland Security and the Department of Labor late last year in the U.S. District Court for the District of Columbia.

One of its major arguments is that federalization will wipe out the estimated 16,000 remaining foreign workers on the islands by 2014 under a federalized immigration system.

About 300 Facing Deportation, 200 Umbrella Permits Revoked

2010-03-08T09:44:00.000-08:00

Local
Tuesday, March 09, 2010

About 300 facing deportation, 200 umbrella permits revoked

By Haidee V. Eugenio
Reporter

Deputy Labor Secretary Jacinta M. Kaipat said yesterday that the names of some 300 foreigners are ready to be referred “soon” to the U.S. Immigration and Customs Enforcement for deportation, while some 200 umbrella permits issued to foreigners have so far been revoked.

Kaipat was responding to a question from Senate President Paul A. Manglona (R-Rota) on whether the CNMI Department of Labor has deported anybody since the federal takeover of local immigration.

Members of the Senate and House of Representatives held a meeting with Labor and other administration officials to discuss two omnibus immigration bills yesterday afternoon on Capital Hill.

Kaipat said passage of the proposed Immigration Conformity Act of 2010 takes into account the impact of U.S. Public Law 110-229 or the federalization law, on the CNMI, including possible pre-emption of CNMI law by federal actions.

“Time and time again, the 300 some people were given the opportunity to clear their status but they didn't come forward. They know who they are. We will be referring their names to ICE soon,” Kaipat told Saipan Tribune right after the meeting with lawmakers.

She said many of the overstayers have been in the CNMI for years without legal status. She, however, said Labor could not release the names yet.

ICE is one of the component agencies of the U.S. Department of Homeland Security.

“This does not yet include those with umbrella permits revoked. Some 200 is what we have so far,” she told lawmakers.

Kaipat, as well as lawmakers, said ICE should have procedures that will clarify when CNMI employers are relieved of their obligations to foreign workers who are subject to ICE deportation.

“We need to put pressure on DHS to step up deportation of people referred to them [by Labor],” she said.

Rota Labor resident director Richard Taisacan, who was also at the meeting, said ICE does not have a system in place to speed up the process of deportation.

On Rota alone, he said, there are 10 individuals considered deportable but the CNMI could not deport them because it lost its authority to do so to the federal government.

'Reckless'

During the meeting, Kaipat said U.S. Labor Ombudsman Pamela Brown is not only creating confusion but has also been “acting recklessly.”

Brown, who met with foreign workers on Thursday, said CNMI Labor lost the authority to revoke umbrella permits issued to alien workers and those with immediate relative status on Nov. 28, 2009, when the federalization law took effect.

“Employment of aliens is now a matter of federal law,” Brown told the crowd at the American Memorial Park’s amphitheater Thursday night.

“Pam Brown is acting recklessly and irresponsibly in urging people to ignore established laws. People are relying on her and are therefore jeopardizing their status. Her statements are really uncalled for,” Kaipat told lawmakers.

Brown could not be reached for comment yesterday.

Manglona instructed Senate legal counsel Antonette Villagomez to invite Brown to yesterday's meeting. Villagomez said Brown was off island and could not attend the meeting.

“I want to caution workers not to jeopardize their status because Pam Brown is not DHS and she's not a federal judge,” Kaipat added.

Rep. Tony Sablan (R-Saipan), a former immigration director, echoed Kaipat's concerns about Brown's statement made to the public on the issue of umbrella permits and the authority of CNMI Labor.

AG clarification

Attorney General Edward T. Buckingham separately clarified that the CNMI Department of Labor has the authority to revoke umbrella permits, reacting to Brown's statement that seems to suggest that an umbrella permit cannot be revoked.

He said the CNMI retains authority through the Department of Labor for the management of umbrella permits.

“Specifically, the Department of Labor has both the authority and the duty to monitor compliance with umbrella permit holders. Should one or more conditions of the umbrella permit not be met, the umbrella permit is subject to being revoked,” Buckingham said.

Buckingham said if holders of umbrella permits believe they no longer need to comply with Labor standards, they may face revocation of the permit.

“This may affect their status in the Commonwealth and may lead to deportation proceedings. The Commonwealth and the Department of Homeland Security, Immigration and Customs Enforcement have different roles to play. But, as a whole, we are part of the same government,” he said.

'Unfortunate consequences'

The attorney general said the federal government assumed control over entry and exit into the CNMI, but did not replace the CNMI Department of Labor for its activities.

“To take the position that someone could stop complying with requirements of the CNMI Department of Labor could mean that a person would be without employment. Such people would be a drain on the economy and present a risk of involvement in criminal activities or, because of not having employment, risk becoming victims of unscrupulous people taking advantage of their problems,” Buckingham said.

He said ignoring conditions set by the Department of Labor is, in his view, “unwise” and may subject the holder of an umbrella permit to “unfortunate consequences.”

“An umbrella permit can be revoked. Legal status can be lost. And, through coordination between the CNMI and Immigration and Customs Enforcement, an individual may be subject to deportation,” he added.

Omnibus bills

Members of the Senate Committee on Resources, Economic Development and Programs, as well as other lawmakers, discussed yesterday with Departments of Labor and Commerce officials two omnibus immigration bills.

The 73-page House Bill 17-25, introduced by Rep. Rafael Demapan (Cov-Saipan), seeks to amend certain sections of the Commonwealth Code dealing with immigration functions. It is also called the “Immigration Conformity Act of 2010.”

The second, still unnumbered, Senate bill runs only 17 pages and is also called the “Immigration Conformity Act of 2010.”

The Saipan Chamber of Commerce, the largest business organization in the CNMI, is now also reviewing the bills, which may move quickly in the Legislature.

Labor Ready to Refer Overstayers to Feds

2010-03-08T09:41:00.000-08:00

Labor ready to refer overstayers to feds
Tuesday, 09 March 2010 00:00 By Gemma Q. Casas - Reporter
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THE local Department of Labor will refer to the U.S. Department of Homeland Security’s Immigration, Customs and Enforcement, or ICE, the names of about 300 foreign nationals who have overstayed on the islands.

Department of Labor Deputy Secretary Jacinta M. Kaipat, center, answers questions from the members of the Senate Committee on Judiciary and Governmental Operations during a hearing yesterday afternoon. Photo by Gemma Q. CasasDeputy Secretary of Labor Jacinta M. Kaipat told the Senate Standing Committee on Judiciary and Governmental Operations that ICE is the proper federal agency dealing with the removal of aliens in the CNMI for violating federal immigration law.

DHS took control of the islands’ immigration system on Nov. 28, 2009.

Its U.S. Citizenship and Immigration Services, or USCIS, deals with the issuance of permits, applications for green cards, the so-called parole for inter-state traveling and advance parole for overseas traveling among foreign nationals legally allowed to stay in the CNMI.

The department’s U.S. Customs and Border Protection, or CBP, on the other hand, deals with screening persons entering the CNMI, at the Saipan international airport and other major points of entries via sea and air.

ICE can arrest foreigners violating federal immigration and customs rules.

Kaipat said with the CNMI Division of Immigration now dismantled the deportation of foreigners rests solely with ICE.

Some senators raised concern on the continued presence of overstayers including those with umbrella permits despite not having jobs.

Under the CNMI labor law, Kaipat said the last known employer of the foreign worker has liability to pay for his or her medical expenses and repatriation up to 90 days after their contractual agreement is severed.

“After 90 days they are no longer liable,” said Kaipat and noted that in the legal world, “ignorance of the law is not an excuse.”

In case the last known employer is unable to pay for the repatriation of a foreign worker, bond companies could be tapped to pay for their exit.

Some lawmakers said the number of jobless foreign workers may increase after the federal government announced that umbrella permits entitled these nonresidents to legally stay on the islands until Nov. 27, 2011, even if they lose their jobs.

Labor Says It Can Revoke Umbrella Permits

2010-03-08T09:40:00.001-08:00

Labor says it can revoke umbrella permits
Tuesday, 09 March 2010 00:00 By Gemma Q. Casas - Reporter
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JUST days after Federal Labor Ombudsman Pamela Brown announced that umbrella permit holders are protected from being deported until Nov. 27, 2011 even if they lose their jobs, the CNMI Department of Labor is now asking lawmakers to pass a measure, H.B. 17-25, requiring all foreigners working, studying and doing business on the islands to register every year with DOL.

Deputy Labor Secretary Jacinta M. Kaipat told the Senate Standing Committee on Judiciary and Governmental Operations during a hearing yesterday afternoon that despite the implementation on Nov. 28, 2009 of U.S. Public Law 110-229, or the federalization law, the CNMI government can still enact labor-related laws to protect its interests.

“We need to…prevent any disruption by federal preemption. When we take out the immigration and deportation language, then [CNMI] laws are beyond the reach of federal preemption,” said Kaipat.

A major issue is the legal impact of the umbrella permits that thousands of foreign workers, students and investors as well as their dependents were given prior to Nov. 28, 2009.

Brown said the employers do not need the approval of the CNMI Department of Labor to hire umbrella permit holders and these workers can also get part-time jobs.

Kaipat disagrees.

“The federal ombudsman and some other lawyers are consistently trying to undermine the umbrella permit program. Careful analysis prior to implementing the umbrella permit program confirmed that it is within the powers already granted to the Department of Labor by the Legislature,” said Kaipat in her written testimony.

“However, to dispel any doubt, Section 2 of [House Bill 17-25] provides: ‘It is the intent of the Legislature that the umbrella permits issued by the Department of Labor in 2009 continue to be governed under the department’s normal processes. All umbrella permits and the bases on which they were granted are ratified and approved…any other provision of current or former law or regulation notwithstanding…. Section 5(Q)(4) confirms the department’s authority to modify or revoke umbrella permits,” she added.

H.B. 17-25, or the Immigration Conformity Act of 2010, was introduced by Rep. Rafael S. Demapan, Covenant-Saipan.
According to the bill, the federalization of the islands’ immigration system “does not preempt the commonwealth’s labor laws.”

“It is the intent of the Legislature that this act shall exercise the authority of the commonwealth to regulate labor conditions and practices within the commonwealth,” H.B. 17-25 stated.

“It is the intent of the Legislature that the umbrella permits issued by the Department of Labor in 2009 continue to be governed under the department’s normal processes,” it added.

The bill requires every alien who remains in the CNMI longer than 90 days to register with Labor. This registration will be renewed annually.

Failure to register is considered a misdemeanor punishable by a fine of $500 and imprisonment of not more than 90 days or both.

The bill also asserts the power of DOL to “revoke umbrella permits” if conditions are not met.

NMC Partners With Workforce "Action Team"

2010-03-08T09:38:00.000-08:00

NMC partners with workforce ‘action team’
Tuesday, 09 March 2010 00:00 By Junhan B. Todeno - Reporter
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NORTHERN Marianas College officials last week met with the Strategic Workforce Action Team, which aims to “enhance” the labor market.

Representatives of the Strategic Workforce Action Team meet in a conference room at Northern Marianas College.“It has been found in studies that a thriving community has a trained and qualified labor workforce,” NMC interim President Lorraine T. Cabrera said.

The members of the action team include representatives from the Northern Marianas Trades Institute, International

Business and Professional College, NMC, the Public School System, the Workforce Investment Agency, the Department of Labor, the Office of Saipan Higher Education Financial Assistance, the Office of Vocational Rehabilitation, the Department of Community and Cultural Affairs, the Department of Public Health and the Saipan Chamber of Commerce.

They discussed labor market information, including labor demand and supply as well as education.

They also talked about economic development, funding assistance and resources for employers, partnerships with the U.S. Apprenticeship Program, vocational and technical training, financial aid for college, challenges and barriers, and strategies for effective collaborative relationships.

“The information that is gathered through meetings such as this is significant to the success of employers and employees in the CNMI,” Cabrera said.

She said the team was formed in Sept. 2007 and is made up of organizations that have strong interest in workforce development and labor force preparation.

The action team, which meets on a quarterly basis, serves as a program advisory council to NMC on workforce development and continuing education needs.

It advises the college on labor market needs and the preparedness of the current and emerging labor supply.

2009-12-16T07:05:00.001-08:00

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)

2009-12-13T06:33:00.000-08:00

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.

2009-12-12T22:32:00.001-08:00

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

2009-12-09T07:07:00.000-08:00

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.

2009-12-06T07:12:00.001-08:00

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.

2009-12-06T06:47:00.001-08:00

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.

2009-12-06T06:43:00.001-08:00

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.

2009-12-06T06:26:00.000-08:00

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.

2009-11-29T10:01:00.000-08:00

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.

2009-11-29T09:48:00.000-08:00

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.

2009-11-29T09:32:00.000-08:00

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.”

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

2009-11-26T06:58:00.000-08:00

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

2009-11-26T06:18:00.000-08:00

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.

Hirshbein now acting Labor secretary, deputy secretary

2009-08-13T16:38:00.001-07:00

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

2009-08-13T16:22:00.000-07:00

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.

Kaipat says passport surrender policy not new

2009-08-03T09:15:00.000-07:00

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

Kaipat sets Sept. deadline for bond claims hearings

2009-07-22T07:32:00.000-07:00

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.

2009-06-25T16:13:00.001-07:00

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

2009-06-25T16:03:00.000-07:00

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.

The Labor-Business Balance

2009-06-04T13:52:00.000-07:00

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.

Labor Submits Claims for 213 Ex-Garment Workers

2009-05-26T08:32:00.000-07:00

Local
Wednesday, May 27, 2009

The Department of Labor submitted yesterday to former judge Timothy Bellas, the trustee of the Garment Workers Trust Fund, individual claims on behalf of 213 former garment workers totaling about $700,000.

Deputy Secretary Cinta M. Kaipat said the list of claims was assembled from the information provided by those who registered with the Labor Department at Garapan Park last summer and includes those who registered with the federal ombudsman in the summer of 2007. Kaipat's list includes workers who were employed by garment industry subcontractors.

These subcontractors were “virtually indistinguishable from the main garment factories that they served,” Kaipat said.

Last Friday, Bellas announced that the Garment Workers Trust Fund still has $600,000 available to assist former garment workers who are still on Saipan and are facing hardships. He said the $600,000 is leftover money from the checks distributed to the workers as settlement in the class action against garment factories. “Under the terms of the settlement agreement, it is supposed to go to help workers if we can. If we can't, then it goes to charity,” he said.

In the past two years, Kaipat said, the Labor Department has adjudicated wage claims made by former garment workers whose cases were filed long before the current administration. The adjudication of these claims has made it possible for garment workers to be compensated from the trust fund. Nearly all of the cases on the list submitted by Kaipat were filed in the years 1997 through 2004.

“We expect that our list is reasonably complete,” Kaipat said. The former ombudsman, Jim Benedetto, compiled a list after extensive advertising for unpaid wage claims in local papers in 2007. He turned that list over to the department. Also, the department advertised and held a mass registration in 2008 to assemble claims from the 2007 and prior-year cases that had been completed in Labor's cleanup of old cases.

The trust fund is accepting applications until Aug. 15, 2009 from former garment workers who want to avail of the funding.

Applicants need to send their applications either in Chinese or English to GWTF, P.O. Box 505943, Saipan, MP, 96950. (PR)

Labor Proposes Changes in the Regs

2009-05-19T11:02:00.000-07:00

Wednesday, May 20, 2009
Local
Wednesday, May 20, 2009

Labor wants new changes to employment regulations

By Ferdie de la Torre
Reporter

The Department of Labor is again proposing another set of amendments to the current employment rules and regulations.

Labor is seeking public comments in its notice of proposed rules and regulations filed before the Commonwealth Registrar's Office.

According to Labor Secretary Gil M. San Nicolas, the proposed revisions are intended to provide additional opportunities for the employment of U.S. citizens and to advance the phase-out of the moratorium.

In Labor's public notice, San Nicolas said the proposed amendments are also intended to suspend the provisions for periodic exit until the uncertainties of the federalization law are resolved, and to decrease the department's paperwork burdens and make other administrative changes.

According to Labor, the proposed amendments are:

* To broaden the requirement to post job vacancy announcements on the department's website so that job opportunities are made known within the community and to increase the requirements for an exemption from the workforce participation requirement of 20 percent U.S. citizens in order to promote the employment of U.S. citizens;

* To advance the phase-out of the moratorium to July 1, 2009 in order to increase flexibility for local businesses under the current adverse economic circumstances and to suspend the provisions for periodic exit until the uncertainties of the federalization law are resolved so that local businesses are not faced with potentially conflicting requirements;

* To simplify the provisions for part-time employment of foreign national workers in order to decrease the paperwork burdens on local employers;

* To simplify the regulations governing deductions from wages in light of minimum wage hikes;

* To eliminate or simplify certain paperwork burdens on the department and to make minor adjustments in fees;

* To provide guidelines for judicial review of final agency actions.

Comments are due within 30 days from the date of the publication of the notice.

Last October, Labor also filed proposed amendments to the employment rules and regulations.

Labor Bars Employer Who Engaged in Extensive Fraud

2009-05-17T08:38:00.000-07:00

Local
Monday, May 18, 2009

Labor bars employer who engaged in extensive fraud

By Ferdie de la Torre
Reporter

The Department of Labor has barred an employer from employing alien workers in the CNMI for a two-year period for engaging in extensive fraud in operating his businesses.

Labor Administrative Hearing Officer Jerry Cody referred its order against Soleman (his name and last name) to the Division of Revenue and Taxation.

“The evidence establishes a systematic pattern of fiscal mismanagement, neglect of business by this owner, and extensive fraud with respect to the issuance of sales receipts. Such business practices render any income and expense figures completely unreliable,” Cody said.

As of the date of the Labor hearing on June 3, 2008, Soleman operated a barracks rental, land clearing, charcoal manufacture and sale, and commercial cleaning.

The charcoal business was known as “Dajets Island Charcoal & Lime.”

Cody, however, allowed 10 employees of Soleman to seek new employers. Aalthough it is likely that some of these workers' jobs were mere sponsorships, he said the fact remains that other workers, in fact, produced charcoal for Soleman.

Cody said Labor did not examine individual workers to establish which of them have engaged in sponsorship versus legitimate charcoal manufacture.

“Therefore, the Hearing Officer finds that all workers should be granted transfer relief at this time,” he added.

According to Labor records, Soleman began employing or attempting to hire an increasing number of workers as “charcoal makers” for his charcoal business.

Soleman claimed that his charcoal business-making business was profitable and that he needed all of these workers to maintain and increase the capacity of his land clearing and charcoal businesses.

In April 2008, the Labor director denied a number of transfer applications submitted by Soleman due to failure to comply with a deficiency notice; income not justifying an additional hiring; salary records showed that not all workers are being paid; and suspected sponsorship.

Soleman and the 11 workers appealed.

Cody said that at the hearing, Soleman produced a number of sales receipt books regarding his charcoal sales.

Cody said the Labor director's examination showed that numerous entries in the books had been altered to make it appear that a greater number of bags of charcoal had been delivered and a greater amount of cash had been collected.

To document the fraud, the director obtained affidavits signed by the customers themselves attesting to the actual numbers of charcoal bags they had purchased and the prices they paid.

With respect to tax records, Cody said Soleman admitted under oath that he intentionally falsified the amount of revenue he claimed to have received in an attempt to reduce his tax payments.

Labor processed 22,917 foreign labor permits in 2008

2009-05-17T08:22:00.000-07:00

Monday, 18 May 2009 00:00 By Gemma Q. Casas - Variety News Staff
E-mail Print PDF

THE Department of Labor says it processed a total of 22,917 labor permits for foreign workers as of the end of calendar year 2008 but couldn’t say exactly how many of them are still present on the islands as of this month.

Deputy Labor Secretary Jacinta M. Kaipat stressed that the total number of actual foreign workers in the CNMI are typically lower than the permits processed because some of them are contract amendments or extensions or some chose to leave the islands for personal or employment reasons.

“As of Dec. 31, 2008, the department had recorded 22,917 permit transactions during 2008 in the 2406K (foreign worker) immigration category. The department counts only its administrative operations; does not conduct any census of foreign workers actually present in the commonwealth,” Kaipat said in her latest report to the Legislature.

Labor reported that there were just more than 16,000 documented foreign workers in the CNMI as of Sept. 2008.

Kaipat said the department does not anticipate its functions to change dramatically unless the federal government wins over the CNMI’s pending lawsuit challenging the labor-related provisions of the federalization law that mandates the U.S. Department of Homeland Security to take control of the islands’ immigration system starting Nov. 28.

“U.S. Public Law 110-229 will have very limited effect on the functions of the Labor Department unless the federal government wins the current lawsuit brought by the commonwealth. A further report on this will be issued by the department after the court rules,” she said.

It is widely anticipated though that fewer foreign workers’ permits will be processed if the immigration changes take place because many of them will not quality under the U.S. visa requirements for employment.

“It is anticipated that very few foreign workers will qualify under U.S. visa requirements, perhaps fewer than 200 per year. Another change will be the transfer to the United States of the processing of applications to enter the commonwealth,” she said.

“However, these applications have fallen off very substantially in 2008 because of the economic conditions in the commonwealth,” she added.

Labor will assess its manpower and financial needs starting June 1, 2009 in anticipation of the changes on the islands’ immigration system.

Labor reform badly needed

2009-04-19T13:21:00.000-07:00

Letters to the Editor
Monday, April 20, 2009

I must say that I was very impressed when I walked into Super Fresh Market. I saw nothing but local employees. This just shows that the mentality that locals are lazy is just plain wrong. Super Fresh Market is a business that is in touch with today's CNMI. Unfortunately, our labor laws are out of touch with today's CNMI. Currently, only a measly 20 percent resident hire is required for private businesses. Resident workers must cover their own medical expenses, while contract workers enjoy having their medical expenses paid for by their employers. Federalization has been delayed for six months. Labor reform is needed to protect our resident workforce. Increase the mandatory resident hire from 20 percent to 35 percent. The upcoming minimum wage increases will entice more residents to turn to the private sector, while the government continues to threaten employees with austerity measures such as austerity Fridays, layoffs, and unpaid holidays. Aren't the laws supposed to protect the resident workforce as well or are they only meant to protect the nonresidents? There is nothing wrong with having nonresident workers. The only problem is, they outnumber the resident workers big time. The more resident workers we employ, the more money gets invested in the CNMI. Less money would leave the CNMI for the Philippines, China, Korea, Bangladesh, Nepal, etc.

Kudos to Kagman Joeten, Kagman Mobil, Super Fresh Market and other businesses for supporting the local workforce. Kudos to Northern Marianas Trades Institute for training resident workers to replace the nonresident workers in the vocational field.

Support the local workforce. Support local products. Support local services. Support local education. Export more, import less. It is for the sake of our economy.

Jesse Torres
Kagman

From 86 in 2006, Labor reduces staff to 46

2009-04-19T13:13:00.001-07:00

Local
Monday, April 20, 2009

By Ferdie de la Torre
Reporter

From 86 staff in 2006, the Department of Labor now only has 46 personnel beginning 2008.

Labor Deputy Secretary Cinta Kaipat said they have decreased staffing from 86 in 2006 to 72 in 2007 and 46 in 2008.

At the same time, Kaipat said, they have increased Labor's automation system and expanded its website so that service to the community will not suffer.

She said Labor is a revenue-generating agency so it is important that budget cuts not adversely affect revenue collections.

“If we are slowed down in our administrative process by lack of staff, we are also slowed down in our revenue generation for the Commonwealth Treasury,” she added.

Kaipat said they have reorganized and cut down positions through their own processes.

“Hopefully, we will not be bundled with agencies that have resisted change and were subjected to arbitrary cuts,” she said.

Labor, the deputy secretary said, is working hard to get into compliance with the 2009 budget recently enacted by the Legislature.

Kaipat Says Labor is Helping Alien Workers with US Citizen Children

2009-04-19T13:04:00.000-07:00

Local
Monday, April 20, 2009

By Ferdie de la Torre
Reporter

Department of Labor Deputy Secretary Cinta Kaipat said they are helping alien workers who have U.S. citizen children in getting transfer extensions.

In her progress report on the implementation of the Labor Reform Law, Kaipat said on occasion they give transfer extensions to alien workers who are in “hardship cases.”

“For example, the parents would be required to take their U.S. citizen children out of school near the end of the school term,” Kaipat said.

She said they also sometimes give transfer extensions to skilled workers whose prospective employers need time to get the transfer papers together and secure the necessary bonding.

The deputy secretary noted that their success in placing U.S. citizens in jobs and disqualifying unfit employers have resulted in extensions of transfers for some workers.

“If a worker is displaced because a U.S. citizen applied for the job and was hired, then the foreign worker gets another chance to transfer. If we did not do this, we would have less success in getting foreign workers to help train their U.S. citizen successors,” Kaipat said.

If a worker finds a transfer employer but Labor disqualifies this employer for reasons that are not the worker's fault, then the worker gets another chance to transfer, she said.

If Labor did not do this, she said, the department would have less success in keeping workers out of the underground economy.

Kaipat claims they manage the transfer process carefully.

“Every transfer has to be approved in the Administrative Hearing Office and every employer has to be approved by the Director of Labor,” she added

Dead wrong

2009-04-16T08:45:00.000-07:00

Letters to the Editor
Friday, April 17, 2009

My friend Zaldy Dandan's editorial segment in Thursday's Variety titled “A big problem” is dead wrong. Zaldy asserts that the Labor Department is denying “more” labor permits and that is a “problem.” The Labor Department processes applications from employers more quickly and efficiently than in prior years. Deficiencies and denials are cleared up or decided promptly. Workers are cleared to work much faster than in prior years.

So Zaldy, would you have us grant labor permits for employers who are running scams and collecting money from foreign workers when there is no job available at all?

Would you have us grant labor permits for employers who have no demonstrable resources with which to pay the workers and thus cause more labor cases about unpaid wages?

Would you have us grant labor permits for employers whose work premises present health and safety hazards?

Would you have us grant labor permits to employers who have had multiple labor cases in the past and have been barred from hiring more foreign workers?

The Labor Department has better automated processes now, and we can weed out unqualified employers efficiently. However, you fail to point out that when we disqualify an employer, we always give the foreign worker another chance to transfer if the worker was not at fault in the employer's failure to qualify.

Your criticism is unfounded and unfair. This Administration has no intent to shrink the foreign worker population in advance of a change in federal law. In fact, we have consistently argued that foreign workers are a valuable part of the community and should not be forcibly deported as the federalization law contemplates. The Labor Department tries hard to work with the foreign worker groups and their representatives to minimize adverse impacts on workers and on the community.

Jacinta M. Kaipat
Deputy Secretary of Labor

'In layoffs, alien workers first before US citizens'

2009-04-16T08:33:00.000-07:00

Local
Friday, April 17, 2009

The Labor Department is vigorously enforcing the U.S. citizen preference in any reductions-in-force, according to Employment Services director Alfred Pangelinan in a statement issued yesterday.

The department's regulations, issued under Section 4937 of Public Law 15-108, provide that every employer must lay off foreign workers first before laying off U.S. citizens in the same O-Net job classification. The regulations also provide that every employer must lay off foreign workers who arrived more recently before laying off foreign workers who have been in the Commonwealth for a longer time.

The only exceptions to this job preference in layoffs are provided in Section 4965 of P.L. 15-108 for consular operations and students on work/study assignments. All other employers are covered by the layoff provisions.

“We have some discretion under our regulations,” said Pangelinan. “We can agree with the employer under certain circumstances to vary the job preference in layoffs for important business reasons, but we must be notified and agree in advance. We cannot provide any flexibility after the fact.”

If an employer has not yet established O-Net classifications with the department when hiring workers, Pangelinan said the department will apply the broadest applicable O-Net classification for layoff job preference for U.S. citizens.

Pangelinan said the regulations recognize that economic necessity may require layoffs. “We recognize that these are difficult economic times,” he said, “and we will work with employers to find a good solution. But we must protect the rights given to U.S. citizen workers by CNMI law.”

Employers are required to give the department 60 days advance notice of any layoffs, so the department can ensure that U.S. citizen employment rights are protected and foreign worker transfers are arranged.

An employer who has laid off foreign workers is barred from hiring any on island foreign workers in the O-Net job classification from which workers were laid off, and is barred for six months from hiring any off-island foreign workers.

An employer who lays off U.S. citizens before laying off foreign workers in the same job classifications is subject to the revocation of foreign worker employment contracts. (PR)

Labor presses cutting backlog of labor cases pending in court

2009-04-16T08:26:00.000-07:00

Local
Friday, April 17, 2009

By Anthony Pellegrino
Special to the Saipan Tribune

Department of Labor Deputy Secretary Cinta Kaipat said they are eyeing a reduction in the backlog of labor cases pending in the Superior Court.

In her interim report on the implementation of Public Law 15-108, Kaipat said they expect to be current within six to eight weeks on labor cases filed in the local court.

Kaipat said that Labor's new counsel, Eli Golob, appeared in court on several cases a few days after being sworn in as member of the CNMI Bar.

Golob practiced law in Arizona and New York and is reportedly an experienced trial attorney and in administrative hearings.

Kaipat said Golob will also be working on reducing the backlog of alien worker claims at the Equal Employment Opportunity Commission, the U.S. Labor Relations Board, and the U.S. Department of Labor.

Kaipat emphasized that the backlogs in these federal agencies are not the result of any delay at CNMI Labor.

“We are going to urge the agencies to move along and terminate Temporary Work Authorizations as soon as possible in cases where the agencies continue their undue delays,” she added.

Labor: Lay off guest workers first before US citizens

2009-04-16T08:14:00.001-07:00

Friday, 17 April 2009 00:00 By Emmanuel T. Erediano - Variety News Staff
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THE Department of Labor yesterday said it will “vigorously” enforce the policy that gives U.S. citizens preference when companies have to reduce their workforce.

Citing Public Law 15-108, Employment Service and Training Division Director Alfred Pangelinan in a statement said every employer must lay off foreign workers before U.S. citizens in the same job classification.

The regulations also provide that every employer must lay off foreign workers who arrived more recently before laying off foreign workers who have been in the CNMI for a long time.

The only exceptions to this job preference in layoffs are those in consular operations and students on work/study assignments.

All other employers are covered by the layoff provisions.

“We have some discretion under our regulations,” Pangelinan said adding that Labor can agree with the employer under certain circumstances to vary the job preference in layoffs for important business reasons, “but we must be notified and agree in advance.”

“We cannot provide any flexibility after the fact,” he added.

Pangelinan said if an employer has not yet established classifications with Labor when hiring workers, the department will apply the broadest applicable classification for layoff job preference for U.S. citizens.

He added that the regulations recognize that economic necessity may require layoffs.

Employers, he said, must give Labor 60 days before laying off their workers so the department can ensure that U.S. citizen employment rights are protected and foreign worker transfers are arranged.

An employer who has laid off a foreign workers is barred for 90 days from hiring any on-island foreign worker in the same job classification.

Such employer is also barred for six months from hiring any off-island foreign workers.

On the other hand, an employer who lays off U.S. citizens before terminating foreign workers in the same job classification is subject to the revocation of foreign worker employment contracts.

2009-04-15T09:12:00.000-07:00

Local
Thursday, April 16, 2009

Labor uncovers massive sponsorship scheme

By Ferdie de la Torre
Reporter

The Department of Labor has uncovered a massive sponsorship scheme involving 24 alien workers who paid money to their “employer.”

Labor Administrative Hearing Officer Jerry Cody sanctioned Leon H. Lizama in the amount of $500 for each sponsorship submitted, for a total sanction of $12,000.

Cody permanently barred Lizama from employing foreign national workers in the CNMI.

Cody also referred Lizama's case to the Office of the Attorney General for possible criminal investigation.

The hearing officer ordered 19 alien workers to report to the Labor Enforcement Section to make arrangements for their repatriation.

Cody, however, allowed five other alien workers to seek new employers after they came to Labor, admitted the fraud, and assisted Labor with its investigation.

“Such assistance was instrumental in framing the department's case and establishing the truth with respect to this massive sponsorship scheme,” he noted.

Labor records showed that Lizama had represented to Labor that he owns and operates a commercial farm and a health supply service.

Labor began an investigation after it noticed that Lizama filed 23 transfer applications in 2007, while at the same time declining to renew six out of seven of his current employees.

Labor subsequently denied 24 of Lizama's applications. The 23 workers appealed the denial.

Lizama first denied engaging in any sponsorship, but then changed his story at the second hearing on July 7, 2008, admitting that all the applications were actually sponsorship agreements.

Under the arrangement, Lizama would file employment application offering non-existent jobs to workers in exchange for a payment from the worker.

The workers each paid $50 per month for three months. Each worker would be responsible for paying his or her labor processing fees, including bonding.

Cody said Lizama and the workers committed fraud against Labor by submitting permit applications that purported to evidence actual employment when, in fact these arrangements were nothing more than sponsorships.

2009-04-13T11:34:00.000-07:00

Local
Tuesday, April 14, 2009

Kaipat: Delay gives Labor more time for transition

By Ferdie de la Torre
Reporter

With the 180-day delay in implementing the federalization law, there is lesser urgency for any transition related to labor matters, according to Department of Labor Deputy Secretary Cinta Kaipat

In her progress report on the implementation of Public Law 15-108 or the new reform labor law, Kaipat said Labor can now await the outcome of Gov. Benigno R. Fitial's federalization lawsuit without employers and workers having to adjust their affairs in the interim.

“However, we have been meeting regularly with the federal authorities since last fall to explain exactly what we are doing, how we are making decisions, and why our procedures are working effectively,” she said.

Kaipat said she believes Labor has good lines of communication and that the federal authorities have much better and more current information about Labor activities than has been the case in past years.

With respect to the federal stimulus issue, Kaipat said they believe that the Labor Employment Services and Enforcement sections may qualify for grants under the federal stimulus funding.

“We are working on three proposals, and we expect to have them submitted shortly,” Kaipat said.

2009-04-09T09:31:00.000-07:00

Local
Friday, April 10, 2009

Labor issues new form for transfer alien workers

By Kristi Eaton
Reporter

Foreign workers seeking to transfer jobs will now be required to sign a form, showing they understand they are responsible for repatriation and medical expenses if the previous employer goes out of business during the transfer process.

The Department of Labor issued the new form this week.

The policy is not new, but the agreement is a reminder to workers their former employer may go out of business while they are looking to transfer jobs. If that is the case, the worker must cover any repatriation or medical expenses. Repatriation expenses are only incurred if the worker decides to return to their native country.

“We allow some extra time to transfer in cases where the worker has good prospects for employment in the Commonwealth but has not yet quite completed the employment arrangements,” said DOL Deputy Secretary Jacinta M. Kaipat in a statement. “If a worker asks us for extra time, and there is good reason to give a little extra time, then we want the worker to understand the risk that the former employer might become insolvent. That risk means that the worker may have to meet repatriation and medical expenses for themselves. There might be no former employer there to meet these expenses.”

Labor has had a few instances where an employer, who was responsible for repatriating a worker, went out of business while the worker was attempting to transfer, the statement said. Later, when the worker could not find a job and decided to leave the Commonwealth, there was no employer to pay for repatriation.

“We are not making any different rules,” Kaipat said. “The last employer of record is always responsible for repatriation expenses. We are just explaining the practicalities of our current economic circumstances. When a worker decides to remain in the Commonwealth and transfer to a new employer, then there could be a risk attached to that decision. We do not think the risk is very great, but in the interests of fairness, we just explained our policy about who should bear this risk.”

The policy protects the Commonwealth's taxpayers from any costs associated with repatriated foreign employees, the statement said.

Kaipat said foreign worker groups were consulted about how to allocate the risk.

“The Department has always emphasized that we cannot ask the taxpayers of the Commonwealth to pay for employment risks. The Department does not regard these situations as presenting a significant risk; however, in hard economic times, any risk is important. The documentation that will be required by the Department is similar to documentation as to financial resources required by Immigration,” she said.

Gov. Benigno Fitial said he commends the Department for “implementing a policy to educate workers and reduce financial liabilities to the CNMI government.”

Moreover, Fitial said he appreciates the work Labor has made over the past three years, citing the agency's establishment of a website and automated processing, as well as the department's clearance of a backlog of old labor cases.

“I am especially pleased with our Labor Department's amazing handling of the massive repatriation of garment factory workers after the industry collapsed,” the governor said in the statement. “Labor effectively handled many thousands of labor cases, transfers, and repatriations, which could have easily been a disaster for a less capable Labor Department.”

2009-04-06T09:14:00.001-07:00

Denied labor applications rising
Tuesday, 07 April 2009 00:00 By Gemma Q. Casas - Variety News Staff
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MORE employers who want to hire foreign workers are being turned down by the Department of Labor.

“There has been a large increase in the number of applications denied. Appeals of these denials have been filed in 627 cases from June 2008 through March 2009…. The director’s disqualification has been upheld in many cases, and the employer has been denied permission to employ foreign workers,” said Deputy Labor Secretary Cinta M. Kaipat in her latest report to the Legislature.

She said the stringent scrutiny of foreign labor applications aims “to weed out employers who are insolvent, who lack the necessary resources to pay their foreign workers, who may not be providing a real job, or who are otherwise unqualified.”

The labor official said the measure benefits the cash-strapped CNMI government and foreign workers who may have been otherwise exploited.

“This has three beneficial effects: first, the number of unfit employers has been reduced very substantially, resulting in fewer labor complaints from foreign workers about not being paid; second, the number of employment scams set up solely for the purpose of allowing foreign workers to remain in the commonwealth while unemployed has been reduced, resulting in fewer law enforcement problems,” she said.

“And third, the number of U.S. citizens hired has increased because a business can hire a U.S. citizen without any scrutiny of its finances by the Labor Department,” she added.

The government continues to encourage private sector employers to hire U.S. citizens or local residents instead of foreign workers.

Kaipat, however, said this policy still allows displaced foreign workers to apply for jobs.

“Since Oct. 2008, we have processed transfer requests for 615 foreign workers who have been displaced in their jobs by U.S. citizen hires. That is only one informal measure of our success because not every foreign worker who is displaced elects to request permission to transfer; some elect to be repatriated,” she said.

Labor Department data showed more than 16,000 foreign workers left the islands for their home countries from 2006 to 2008.

Majority of these workers have opted to be repatriated after the conclusion of their labor cases.

“During the last three years — 2006, 2007, and 2008 — the Department has processed and completed the repatriation of over 16,000 foreign workers. This has been an enormous administrative task of completing labor cases, securing repatriation tickets, and making voluntary arrangements for departures,” Kaipat said in her report.

“The department has done this work quietly and efficiently, working cooperatively with foreign workers and their representatives to accommodate hardship concerns and to honor requests for the timing of repatriation,” she added.

2009-04-06T08:47:00.000-07:00

Local
Tuesday, April 07, 2009

Kaipat notes large increase in denial of applications to hire alien workers

By Ferdie de la Torre
Reporter

Labor deputy secretary Cinta Kaipat has noted a large increase in the number of applications filed by employers to hire alien workers that were eventually denied by Labor.

Kaipat said appeals of these denials have been filed in 627 cases from June 2008 through March 2009.

“All of these appeals have been processed efficiently by the [Labor] Hearing Office, in addition to its normal caseload of labor complaints,” said Kaipat in her interim progress report submitted Wednesday last week to the Legislature on the implementation of the Public Law 15-108. She was the author of the controversial labor reform law when she was a representative.

The deputy secretary, however, did not cite figures in her report to support her claim of a “large” increase in Labor denials.

Kaipat said Labor director Barry Hirshbein has subjected applications to employ alien workers to tighter scrutiny, using Labor's new automated process.

She said the careful scrutiny has been done to weed out employers who are insolvent, who lack the necessary resources to pay their foreign workers, who may not be providing a real job, or who are otherwise unqualified.

The deputy secretary claimed that Hirshbein's disqualification has been upheld in many cases, and the employers have been denied permission to employ foreign workers.

Kaipat listed three “beneficial effects” of such scrutiny.

First, she said, the number of unfit employers has been reduced very substantially, resulting in fewer labor complaints from foreign workers about not being paid.

Second, Kaipat said, the number of employment scams set up solely for the purpose of allowing foreign workers to remain in the CNMI while unemployed has been reduced, resulting in fewer law enforcement problems.

Finally, she pointed out, the number of U.S citizens hired has increased because a business can hire a U.S. citizen without any scrutiny of its finances by Labor.

In the same report, Kaipat disclosed that in the last three years, Labor processed and completed the repatriation of over 16,000 alien workers.

2009-04-05T08:24:00.000-07:00

Local
Monday, April 06, 2009

16,000-plus alien workers sent home in past 3 years

By Ferdie de la Torre
Reporter

In the last three years, the CNMI Department of Labor processed and completed the repatriation of over 16,000 alien workers, according to Labor deputy secretary Cinta Kaipat.

Labor is also making good progress in placing U.S. citizens in jobs, she added in her interim progress report submitted Wednesday last week to the Legislature on the implementation of the Public Law 15-108. Kaipat was the author of the controversial labor reform law when she was a congresswoman.

She said the repatriation of 16,000-plus foreign workers in 2006, 2007, and 2008 was an enormous administrative task that involved completing labor cases, securing repatriation tickets, and making voluntary arrangements for departures.

“The department has done this work quietly and efficiently, working cooperatively with foreign workers and their representatives to accommodate hardship concerns and to honor requests for the timing of repatriation,” Kaipat said.

Labor is not involved in any non-voluntary departures as the Immigration Division handles deportations.

The deputy secretary said Labor has assisted Immigration by using its new automation system to generate quarterly overstayers lists.

The lists, when published, she said, assist in obtaining voluntary departures or correction of the records for those whose status entitles them to remain in the CNMI.

On hiring local residents or U.S. citizens, Kaipat said they initially reported only those U.S. citizens who came to Labor in person for assistance in finding a job.

However, she said, they have improved their website so that they can report on all U.S. citizens who find jobs with the assistance of Labor either through the website or through in-person assistance.

“Our new capabilities will allow us to review resumes posted online by persons who have not come to the office,” Kaipat said.

Labor also added the capability for employers to more easily create lists of potential U.S. citizen candidates who have the qualifications for the job to be filled.

Kapat said that since October 2008, they have processed transfer requests for 615 foreign workers who have been displaced from their jobs by U.S. citizen hires.

“That is only one informal measure of our success because not every foreign worker who is displaced elects to request permission to transfer; some elect to be repatriated,” she added.

Feds OK 180-Day Delay

2009-04-01T13:03:00.001-07:00

Feds OK 180-day delay
Thursday, 02 April 2009 00:00 By Gemma Q. Casas - Variety News Staff
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U.S. Department of Homeland Security Secretary Janet Napolitano ordered to delay until Nov. 28 the mandated June 1st U.S. takeover on the islands’ border security and immigration system giving relief to local officials, employers and some foreign workers who are worried about uncertainties on the transition phase.

Congressman Gregorio C. Sablan, Homeland Security Assistant Secretary Richard Barth, and Congresswoman Madeleine Z. Bordallo at her office on Capitol Hill. It was Barth who delivered the notification from Homeland Security Secretary Janet Napolitano that she had granted a 180-day delay in the commencement of federal immigration control in the Northern Marianas. Contributed photo

Congressman Gregorio C. Sablan, Homeland Security Assistant Secretary Richard Barth, and Congresswoman Madeleine Z. Bordallo at her office on Capitol Hill. It was Barth who delivered the notification from Homeland Security Secretary Janet Napolitano that she had granted a 180-day delay in the commencement of federal immigration control in the Northern Marianas. Contributed photo
Marie Thérèse Sebrechts, regional media manager of the department, said Napolitano reached the decision upon consultation with the secretaries of the departments of Labor, Interior and State, the U.S. attorney general and Gov. Benigno R. Fitial.

“As a result of the secretary’s decision the existing CNMI immigration laws will continue to apply until November 28, 2009. Additionally, the implementation of Customs and Border Protection’s interim final rule establishing a joint Guam-CNMI Visa Waiver Program, that was scheduled to begin on June 1, 2009, also will be delayed until Nov. 28, 2009 and the existing Guam VWP will continue to operate until that date,” she said in a statement.

The delay also means the estimated more than 16,000 foreign workers here can still exit and enter the islands using their valid Northern Marianas labor permits within the next six months.

Under the federalization law, once the U.S. administers the islands immigration system international airlines will not board anymore foreign workers bound here unless they have a U.S. visa.

They will also not be allowed to work here unless they have the appropriate U.S. employment visa.

Relieved and thankful

The governor and CNMI Delegate to the U.S. Congress Gregorio Sablan separately asked Napolitano for the delay citing grave economic concerns over the possible negative impact of a hastily administered federal immigration system.

The tourism-based economy of the CNMI is driven by foreign workers whose employment contracts are based on locally-issued labor permits.

Once the DHS takes over the administration of the immigration system here, all foreign workers will be treated as transitional guest workers and must eventually be employed under the soon to be introduced federal guest worker program.

Fitial thanked Napolitano and others who strongly lobbied Washington for the delay.

“Today, I join many people in our community in expressing thanks and gratitude to Janet Napolitano, the secretary of the U.S. Department of Homeland Security, for agreeing to delay the implementation of federal immigration rules for the CNMI,” said the governor in a special press conference held yesterday.

He added that he’s grateful for the federal government and other individuals who strongly lobbied for the delay taking into account the negative impact of the move on the islands’ fragile tourism-based economy.

He also expressed hope the six-month delay will give the CNMI more time to bargain for more rights under the federalization law.

He expressed hope the delay would enable local and federal authorities to ensure the smooth transition phase of handing down the control of the islands’ immigration system to the DHS.

He also stressed the time at hand would enable the CNMI to host more tourists from Russia and China.

“My hope is that this six-month delay will give Homeland Security additional time to put in place the necessary equipment, personnel and systems in the CNMI so that we can continue to welcome Chinese and Russian tourists without a single day of lapse. We have been hosting these tourists for more than a decade without any problems and they are a vital part of our tourism industry,” the governor said.

Sablan, for his part, said he’s glad Napolitano granted their delay request.

“I am glad to finally have the secretary’s decision,” said Sablan in a statement. “We now know with certainty that the transition to federal immigration will begin on Nov. 28, 2009. As I have said before, this is not delay for the sake of delay. The reason to push back the date is so that the Department of Homeland Security has enough reason to do it right.”

Assistant Secretary for Policy Richard Barth delivered Napolitano’s decision to Sablan and Guam Congresswoman Madeleine Bordallo.

Time for more talks

Speaker Arnold I. Palacios, R-Saipan, said they expect the six-month period to be marked by continued dialogues between the CNMI and federal officials.

He said local businesses want assurance they will continue to have the labor force they need.

“There are other concerns that were not clear. It appeared that they [federal authorities time] have a final rule already. We have a little concern with that because nobody in the commonwealth made comments on that and so the only way to do this is to delay and make sure that unified requests will be taken into consideration,” the speaker told the Variety.

Rep. Ray N. Yumul, R-Saipan and the chairman of the House Committee on Ways and Means, said the delay should give local and federal authorities time to further study possible loopholes on the yet to be drafted regulations to ensure the smooth transition phase.

House Floor Leader Joseph N. Camacho, R-Saipan, added, the delay would let stakeholders in the federalization law “iron-out unintended consequences in a mutually agreeable positions.”

He said many people would be affected in the proposed changes like foreign workers, their employers, foreign investors, immediate relatives of U.S. citizens, foreign students and the islands economic future.

Phillip Mendiola-Long, president and chairman of the Tinian Chamber of Commerce, said the DHS made the right decision.

“The chamber frankly did not see it possible to implement P.L. 110-229 in the time frame available because DHS had not completed regulations for the CNMI Transitional Worker Program, they had not completed regulations for existing CNMI foreign investor transitions or created the new foreign investor policy, they had not established regulations for Immediate Relatives and they had not established regulations regarding prevailing wage rates,” he said in an email to the Variety.

“With all of these pending and uncompleted regulatory issues, it would not have been prudent for the federal agency to create policy and regulations in haste just to meet a time deadline,” he added.

Tinian is being developed as a major casino hub in the Pacific. The industry is expected to generate both local and international employment.

Taotao Tano leader Greg Cruz, on the other hand, said the delay will not change things at all as the islands’ immigration system would still be handed down to DHS before the year is over.

“In our view it makes no difference come November, everyone will be right back on the same situation,” he said.

He added: “We continue to address that the entire federal immigration takeover is of national defense but everyone seems to ignore this issue. We are interested in seeing what will happen after the six months. In our view it’s just aggravating the situation.”

Comments
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SaipanFox - Who is he? |2009-04-01 19:41:30
What does Kalili know about the federal government. If John Oliver was elected, 110-229 would
already have been repealed. Kalili, on the other hand, is trying to take credit for the hard work
of our Great and Benevolent Leader in Governor Ben Fitial.

Our Great Governor will bring in daily
Asiana flights from Japan, Russia, China and Korea once he is reelected to another term. He will
bring in economic development like we saw when the garment industry was here. The casino industry
in Tinian will prosper and bring in more money than the stimulus.

In Our Great Leader Governor
Ben Fitial we TRUST.

2009-04-01T12:35:00.000-07:00

Local
Thursday, April 02, 2009

'Permanent residency via employment applicable to NMI'

By Moneth Deposa
Reporter

Once federalization kicks in, adjustments to lawful permanent resident status will be applicable to the CNMI in the same manner it is being enforced anywhere else in the United States.

This was the assurance of U.S. Citizenship and Immigration Services in an e-mail to Saipan Tribune yesterday, saying that everyone who is eligible may apply for these changes to obtain permanent resident status on island.

“Anyone in the CNMI who is eligible under the Immigration and Nationality Act to apply for adjustment to lawful permanent resident status-either based on family or employment-will have the ability to do so in the same manner as people anywhere in the U.S.,” said Marie Therese Sebrechts, USCIS regional media manager.

According to the USCIS Web site, if a person wants to become an immigrant based on the fact that he or she has a permanent job, or if an employer wants to sponsor someone for lawful permanent residency based on permanent employment in the United States, they need to go through some important steps. These include making sure that the individual to be petitioned by the employer is eligible for lawful permanent residency and the employer completes a labor certification request for the applicant-employee.

The USCIS must approve an immigrant visa petition for the person wishing to immigrate, which the employer will file himself since the employer will act as the sponsor or petitioner for the applicant who wants to live and work on a permanent basis in the United States. An immigrant visa number is issued after completing the process that the applicant must go through to adjust to permanent resident status.

There are four categories for granting permanent residence to foreign nationals based upon employment:

- EB-1 is for priority workers who are foreign nationals of extraordinary ability in the sciences, arts, education, business or athletics; professors and researchers; managers and executives subject to international transfer to the U.S.

- EB-2 is for professionals with advanced degrees or persons with exceptional ability including foreign nationals of exceptional ability in science, arts and business; and advanced degree professionals.

- EB-3 is applicable for skilled or professional workers with bachelor's degrees, skilled workers with minimum two years training and experience, and unskilled workers.

- EB-4 is for religious workers.

Yesterday, the Department of Homeland Security announced the delayed transition of federalization in the CNMI after consultations with various entities and concerned parties.

As a result of the decision, the existing CNMI immigration laws will continue to apply until Nov. 28, 2009. Additionally, the implementation of Customs and Border Protection's interim final rule establishing a joint Guam-CNMI Visa Waiver Program, that was scheduled to begin on June 1, 2009, will also be delayed until Nov. 28, 2009, and the existing Guam visa waiver program will continue to operate until that date. To effectuate this change, CBP plans to issue a technical amendment to the Guam-CNMI interim final rule published on Jan. 16, 2009.

This decision also delays the implementation of the exemption from the current statutory caps on the number of nonimmigrant H-1B and H-2B petitions granted yearly for employers filing H worker petitions in Guam.

2009-04-01T12:28:00.001-07:00

Local
Thursday, April 02, 2009

Schorr: Investor, worker rules out in 1 to 2 months

By Haidee V. Eugenio
Reporter

Major business and workers groups are relieved that the start of transition to federal immigration is delayed by 180 days, but they want the U.S. Department of Homeland Security to soon publish the CNMI-only transitional worker and investor regulations.

Jeff Schorr, field representative of the Interior's Office of Insular Affairs, yesterday told Saipan Chamber of Commerce members and guests that these two sets of regulations will be out in “another month or two.”

Homeland Security's decision to delay federalization by 180 days-from June 1, 2009 to Nov. 28, 2009-was welcome news for members of the Saipan Chamber of Commerce, the Tinian Chamber of Commerce, the Rota Casino Gaming Commission and the United Workers Movement NMI.

Doug Brennan, vice president of the Saipan Chamber of Commerce, said the delay gives businesses a breathing room to develop a business plan once these regulations are published.

“Our position paper stated that we are in favor of a delay simply because we want all the rules and regulations in front of us before this takes place. It's very difficult to develop a business plan for any of our member businesses when we don't know what the rules are going to be. What we were told was it will be U.S. immigration but there was talk about various exemptions and waivers. We'd like to see these,” Brennan told Saipan Tribune after the Chamber's general membership meeting at the Pacific Islands Club in San Antonio.

The Saipan Chamber of Commerce is the largest business organization in the CNMI with approximately 150 members.

To date, DHS has released only the Guam-CNMI visa waiver program regulations.

Phillip Mendiola-Long, president of the Tinian Chamber of Commerce, said the 180-day delay was the correct decision considering the lack of time available to make “extremely difficult policy decisions.”

“I frankly did not see it possible to implement Public Law 110-229 in the time frame available because DHS had not completed regulations for the CNMI Transitional Worker Program. They had not completed regulations for existing CNMI foreign investor transitions, or created the new foreign investor policy. They had not established regulations for immediate relatives, and they had not established regulations regarding prevailing wage rates,” Mendiola-Long said.

He said it would not have been prudent for DHS to create regulations in haste just to meet a deadline.

Mendiola-Long said the Tinian Chamber of Commerce appreciates the extension and intends to work closely, as equal stakeholders, with DHS/U.S. Citizenship and Immigration Services in the next 180 days “to ensure that policy and regulations promulgated will not bring extreme hardship on the people of the CNMI.”

“One of the main objectives of the Tinian Chamber of Commerce is to ensure that future policy and regulations drafted will address issues affecting all the islands, not just Saipan,” he added.

Mendiola-Long is also executive vice president of Bridge Investment Group-CNMI, which is building a $40 million to $50 million casino and condominiums project on Tinian. The company halted construction at the site because of federalization.

Impact study on Rota

Diego M. Songao, chairman of the Rota Casino Gaming Commission, said the delay will provide an opportunity for the federal government to conduct an impact study, at least on the island of Rota as it tries to develop its casino industry.

Just like Tinian, Rota's casino industry targets mostly Chinese tourists who, along with Russians, will not be exempt from the U.S. visa requirement.

“It will also give them time to put security measures in place to see if the CNMI-Guam visa waiver.may continue to include Chinese and Russians,” Songao told Saipan Tribune.

Rabby Syed, president of the United Workers Movement NMI, is thankful for the federalization delay, and to Delegate Gregorio “Kilili” Sablan for raising with DHS the issue of immediate relatives of Freely Associated States.

“We also like Mr. Sablan to raise other issues like those parents of U.S. citizen children with disabilities, long-term guest workers with U.S.-born children, and to give immigration status to guest workers with unpaid wages so they can stay here until they get their wages,” he said.

Businessman Juan T. Guerrero, a former president of the Saipan Chamber of Commerce, said businesses are thankful for the delay which he said will give them more time to make more appropriate planning.

“The delay will allow us more appropriate time to review them and come up with a solid decision to operate businesses,” he said, adding that the regulations will restrict hiring of non-professional foreign workers.

But Guerrero, president of Herman's Modern Bakery, said professional categories do not include bakers, unless employers pay them the federal wage rates.

“They can qualify but it means you have to be paying U.S. standard rates and you're looking at maybe $30,000 a year. How many employees earning $30,000 can we hire at Herman's Bakery?” he added.

2009-04-01T12:19:00.000-07:00

Thursday, April 02, 2009

DHS grants 180-day delay

By Kristi Eaton
Reporter

Department of Homeland Security Secretary Janet Napolitano They asked for it and they got it.

Department of Homeland Security Secretary Janet Napolitano yesterday announced the June 1 start date to the federalization law will be delayed by 180 days-the maximum amount allowed by law-until Nov. 28, 2009.

The extension means the CNMI will continue to administer its own immigration system until Nov. 28. The proposed joint Guam-CNMI Visa Waiver Program, which excludes the emerging Chinese and Russian markets, will also not go into effect until Nov. 28. Guam's own visa program will operate until Nov. 28.

The move comes after Gov. Benigno Fitial, CNMI Rep. Gregorio “Kilili” Sablan, CNMI government officials and agencies, lawmakers, and businesses asked for a delay. Guam Gov. Felix Camacho, Guam Rep. Madeleine Bordallo, and the Guam Legislature also voiced their desire to push back six months the implementation of the Consolidated Natural Resources Act, which extends the U.S. immigration system to the CNMI. The Congressional Hispanic Caucus supported a delay as well.

According to a DHS statement issued yesterday, “Under the CNRA, the Secretary of DHS has the sole authority to delay the June 1, 2009, transition date to U.S. immigration law up to 180 days, after consultation with the secretaries of Labor, Interior and State, the attorney general, and the governor of the CNMI. The Secretary has determined based upon those consultations that it is advisable to exercise that authority fully.”

At a news briefing yesterday, Fitial thanked Napolitano for delaying the enactment of Public Law 110-229.

“I am very grateful to the federal government for acknowledging the serious economic concerns we have raised regarding the implementation of this sweeping new federal immigration law,” the governor said.

DHS Assistant Secretary Richard Barth delivered Napolitano's decision to Bordallo and Sablan yesterday on Capitol Hill.

“As I have said before, this is not delay for the sake of delay,” Sablan said in a statement. “The reason to push back the date is so that the Department of Homeland Security has enough time to do it right.”

Regulations

As the June 1 date neared, many questions over the implementation remained unanswered.

The delay will allow DHS to draft and release the remaining regulations relating to the law, and allow for enough time for the public to comment. The proposed Visa Waiver Program is the only regulation that has been released for public comment, and it has received opposition from many in the CNMI community. The final rule has not been released.

Regulations relating to foreign workers, investors, students and retirees have not yet been released for comment, something that Rep. Diego Benavente, the chairman of the House's Committee on U.S. and Foreign Relations, said has led to a climate of uncertainty in the Commonwealth.

“While everyone realized it will happen at some point, I think people need a little bit more time to understand and prepare for that,” the representative said.

Rep. Sablan said he hopes the delay will allow Homeland Security more time to consider specific populations in the CNMI that will be greatly impacted if the regulations are not carefully written. As it is right now, some legal residents of the Commonwealth who do not have a valid U.S. visa will not be able to re-enter the CNMI if they must leave for a medical emergency or other reason. He asked DHS to create regulations allowing any legal resident to leave and re-enter without the need for a new U.S. visa. Moreover, Sablan is asking DHS to make the visa process more affordable for families with both U.S. citizen and non-U.S. citizen members.

“Visas applications are expensive and they require that families earn at least 125 percent of the federal poverty level,” he noted in the statement, adding that he hopes Napolitano will use her authority to make the process more affordable.

“I am hopeful that now that the new Obama Administration is settling in, we will be able to get down to the nitty-gritty of writing these regulations,” the congressman said. “It's been almost a year since the law was enacted. It's time that we start clearing away all the uncertainty that exists without clear regulations.”

Another reason Sablan asked for a delay is because there has been no money appropriated for border controls. One of the reasons that China and Russia were recently left out of the Guam-CNMI Visa Waiver program, Sablan noted, is that DHS believed border security was not adequate at this time.

“But this costs money. And no money has been appropriated by Congress to set up the NMI borders,” he said in February. “So it makes sense for me to work in Congress to get the needed funds for fiscal year 2010 and have DHS complete the buildup of the entry points after Oct. 1, when the fiscal year begins and new money could be available.”

Lawsuit still on

When asked if the extension would have any effect on the lawsuit the CNMI has filed against DHS and U.S. Department of Labor, Fitial said: “I don't think so. I think that this lawsuit has its own place and this extension will provide all the necessary work that needs to be done to improve the implementation and enforcement of the new immigration law.”

The CNMI sued the federal agencies in September to halt the implementation of PL 110-229. A preliminary injunction seeking to stop DHS and DOL from taking over the local labor system was also filed in November. The case currently pending in U.S. District Court

Benavente said he hopes the lawsuit will be cleared so the CNMI can work with the federal agencies over the next several months.

Fitial has not been in communication with DHS about regulations, but Howard Willens, special legal counsel to the governor who is representing the CNMI in the lawsuit, said Commonwealth representatives have taken part in discussions at all levels with Homeland Security.

“There has been open and full discussions between representatives of the Commonwealth and representatives of DHS, in respect to all outstanding issues,” Willens said.

One such representative is Lynn Knight, chairperson for the Commonwealth Economic Development Commission. Knight is currently stationed in Washington D.C. to work on the federalization law and other economic development issues.

“We have had numerous meetings with the Department of Homeland Security over the past two months and they are listening to the CNMI's concerns. They're also reading all of the comments that individuals have taken the time to submit on the DHS website, so it's definitely worth the time and effort to comment,” Knight said in a statement.

Willens said the CNMI anticipated an extension might be granted but it was made clear in the lawsuit's briefs that that does not effect the Commonwealth's entitlement to a preliminary injunction. Each party-the CNMI and the federal government-will probably submit a short statement about the extension, Willens said.

CNMI Labor deputy secretary Cinta Kaipat said the 180-day extension would not impact the department. The department is pleased about the delay, but she said she is optimistic the judge will find in favor of the CNMI's preliminary injunction.

Judge Paul L. Friedman has taken the lawsuit and preliminary injunction under advisement.

Fitial said the CNMI will begin to prepare for the implementation of the federalization law once a decision on the lawsuit and preliminary injunction is announced.

“We will do what we need to do after the result of the lawsuit comes out, because we don't want to be doing something that we may not have to do after all,” he said, adding that the judge is aware of the deadline and should make a decision soon.

No benefit

Some people said they believe the delay is simply postponing the inevitable, with no noticeable benefit to be gained.

“In our view it makes no difference come November, everyone will be right back on the same situation,” said Taotao Tano president Gregorio Cruz Jr. “We continue to address that the entire federal immigration takeover is of national defense but everyone seems to ignore this issue. We are interested in seeing what will happen after the six months. In our view it's just aggravating the situation.”

A delay wasn't expected, Wendy Doromal said in an e-mail, but unfortunately, the federal government was not ready.

Doromal, a human rights advocate who has been outspoken about her support for the law, said she was hoping the extension would not be granted.

“My concern is that a delay will allow more time for the anti-federalization administration to scheme and manipulate at the expense of the foreign contract workers who will continue to be under the dysfunctional local labor system,” she said. “Perhaps a delay will give us more time to convince Congress to grant the foreign contract workers and foreign parents of U.S. citizen children a pathway to citizenship. That's what I will continue to work on.”

Money and jobs

The extension means more money coming in and more money going out for the CNMI government, which will affect both the Fiscal Year 2009 and Fiscal Year 2010 budgets.

Six more months of the Russia and China markets could mean more than $100 million coming into the CNMI, according to the Marianas Visitors Authority. Nonresident worker fees will also becoming in for six more months, an additional $2.5 to $3 million in revenue to the CNMI.

But both fiscal year budgets did not include appropriations for the local immigration division. The FY 2009 budget stops appropriating money to the agency on May 31, the day before the law was to go into effect and federal employees were to take over. The FY 2010 budget proposal, which the administration was preparing to turn into the Legislature yesterday, did not include funding for the local immigration division or include the revenue that could be seen from six more months of visa-free travel.

Fitial said the administration is making provisions to the budget.

CNMI Immigration director Melvin Grey yesterday said it is business as usual in the division. Sixty-one employees will be able to keep their jobs for another six months, but “we'll have to face it again in six months.”

2009-03-17T07:14:00.001-07:00

Local
Wednesday, March 18, 2009

FOR FAILING TO KEEP RECORDS
Labor bars corp. from hiring foreign workers

By Ferdie de la Torre
Reporter

The Department of Labor has ordered the permanent disqualification of a corporation from hiring alien workers for not keeping records of hours and wages and unlawfully charging fees from its masseuse.

Labor hearing officer Herbert D. Soll said that Yan Li Corp. and its general manager, Luan Lifen, are permanently barred from employing nonresident workers in the CNMI.

“No reconsideration of this sanction should be entertained until a substantial satisfaction of the award is made,” Soll said.

Yan Li Corp. and Lifen were found jointly liable to pay masseuse Li Min $4,094.40 in unpaid wages and unlawfully charged fees.

The hearing officer authorized Min to seek recovery from the bonding company if Yan Li Corp. and Lifen do not pay the award.

Soll did not issue a transfer order since Min already has an immediate relative status after marrying James Macklin, a U.S. citizen.

“In weighing the evidence presented, I conclude that [Min] was truthful and convincing in her testimony,” Soll said.

According to Labor records, Min was a nonresident worker when she filed a Labor complaint against Yan Li Corp. and Lifen.

Min worked in the garment industry for a period of years. She then transferred to the employment of Yan Li Corp. in April 2007. She was to work as a masseuse in Yan Li Corp.'s beauty parlor.

The corporation's business was entirely operated and controlled by Luan Lifen. The corporation exists as an entity in the Commonwealth, but it does not appear that any of the designated officers participate in the decision-making or in the operation or its activities.

Neither the corporation or its general manager, Lifen, kept required records of hours and wages for the work performed by Min.

In contrast, Min kept a reasonable account of the time that she worked and the money that she received.

Soll said that Min's account of the dates and hours worked supports a finding of wages owed in the net amount of $2,894.40.

Min testified that she was asked to pay $1,200 in order to have her application processed in 2007.

Soll said he finds the complainant's testimony with respect to the application fee correct and that the respondents must reimburse her for that amount in addition to wages owed