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.