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