Nonresidents registering with Labor

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

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.

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

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.

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

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.

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.

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!

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

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.”

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.

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

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

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

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

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"

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.

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)

Local
Saturday, December 05, 2009

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

By Ferdie de la Torre
Reporter

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

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

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

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

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

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

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

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

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

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

Local
Friday, December 04, 2009

Labor never issued 'conditional umbrella permits'

By Ferdie de la Torre
Reporter

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

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

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

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

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

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

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

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

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

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

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

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

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