Local
Friday, September 17, 2010
By Haidee V. Eugenio
Reporter
Gov. Benigno R. Fitial has asked a congressional panel to consider extending the transition period related to the federalization of CNMI immigration from the end of 2014 to the end of 2019, and to reinstate a “cover over” tax provision in the Covenant that the federalization law deleted.
The governor cited the U.S. Department of Homeland Security's failure to issue final regulations on foreign workers and foreign investors/foreign students, as well as DHS' failure to develop and enforce “an effective program to identify and remove illegal aliens” in the CNMI as reasons for the need to extend the transition.
These are part of Fitial's 11-page written testimony to the U.S. House Subcommittee on Insular Affairs, Oceans and Wildlife, which held a Sept. 16 oversight hearing in Washington, D.C. on H.R. 6015.
“Consideration of this amendment seems particularly appropriate because of (a) the delay by DHS in issuing the necessary regulations; and (b) the uncertainty engendered by DHS' legal position as to whether in fact the Secretary of Labor has the authority to extend the transition period,” Fitial said.
HR 6015, introduced by subcommittee chair Delegate Madeleine Bordallo (D-Guam), has two major sections, including two proposed technical corrections to the immigration provisions contained in the Consolidated Natural Resources Act that are applicable to the CNMI and Guam.
The CNRA, signed in May 2008, is the law that placed CNMI immigration under federal control on Nov. 28, 2009.
HR 6015 also requires the director of the U.S. Department of Commerce's Bureau of Economic Analysis to publish certain economic data on territories and Freely Associated States.
The governor believes that the U.S. Congress intended that an extension of the transition period by the U.S. Labor Secretary would also mean extending the two other programs that CNRA authorizes: numerical limitations on H visas, and CNMI-only nonimmigrant investor visa program.
He said despite frequent requests by the CNMI, DHS has never provided any written opinion in support of its interpretation of the CNRA.
“This Subcommittee may wish to make a similar request of DHS so that the Subcommittee can evaluate the conflicting opinions before it acts on H.R. 6015,” Fitial said.
The governor reiterated the CNMI's frustration with the interim final rule regarding the joint Guam-CNMI visa waiver, and the exclusion of China and Russia from the list of approved countries.
In his written testimony, Fitial also said that DHS has not developed and enforced an effective program to identify and remove illegal aliens in the CNMI.
“The number of illegal aliens in the Commonwealth is expanding rapidly, now that federal controls are in place, for three reasons,” Fitial said.
These reasons include “a perceived lack of enforcement by federal officials leads to illegal aliens to conclude that there is no risk to staying” in the CNMI; “some federal officials have repeatedly suggested that green cards will be available to any alien who is in the Commonwealth when Congress addresses this questions;” and “new federal policies with respect to food stamp assistance and free medical care allow these benefits to be claimed by illegal aliens.”
“Under these circumstances, voluntary repatriation by aliens in the Commonwealth has almost entirely disappeared,” Fitial added.
The governor also asked the Subcommittee to reinstate the “cover over language” in the Covenant that the CNRA eliminated.
“Cover over” refers to the return to local governments of taxes paid to federal agencies by residents of insular areas.
“The effect of this amendment will be to deny the Commonwealth tens of millions of dollars over time-and places the full financial burden of applying the immigration laws on the Commonwealth and its residents rather than assumed by the nation as a whole whose national security was believed to require this congressional action,” he added.
Oversight hearing
The oversight hearing in Washington, D.C. was during the wee hours of this morning Saipan time.
Besides HR 6015, Bordallo's Subcommittee also held an oversight hearing on CNMI Delegate Gregorio Kilili Sablan's HR 4339, which creates the Dr. Rita Hocog Inos Fellowship Act.
Among those scheduled to testify on the two measures were Assistant Interior Secretary for Insular Affairs Tony Babauta, Fitial's legal counsel Howard P. Willens, Guam Visitors Bureau vice chair Lamonte J. “Jim” Beighley, and former CNMI Board of Education member Anthony Pellegrino.
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Showing posts with label Howard Willens. Show all posts
Showing posts with label Howard Willens. Show all posts
Thursday, September 16, 2010
Sunday, March 21, 2010
Willens says NMI can regulate workforce
Monday, March 22 2010 00:00 By Gemma Q. Casas - Reporter
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GOVERNOR Benigno R. Fitial’s special legal counsel, Howard P. Willens, says the CNMI government is free to consider alternative means of regulating its workforce despite the federal government’s statement that the employment of aliens on the islands is now within U.S. jurisdiction.
Willens made the statement in support of House Bill 17-25 which both houses of the Legislature passed on Friday afternoon during their back-to-back sessions.
“Looking further ahead, the commonwealth will be free to consider alternative means of regulating its workforce in light of all applicable laws. The clear direction of [U.S. Public Law 110-229 or the Consolidated Natural Resources Act of 2008] is that United States citizens are to be favored for employment and all foreign workers who cannot qualify under the federal system for a visa must be removed by the end of 2014,” Willens said in a memorandum to the governor.
H.B. 17-25, or the Omnibus Immigration Conformity Act of 2010, which Rep. Rafael S. Demapan, Covenant-Saipan, sponsored is expected to be signed into law.
According to Willens, no federal law affects the Commonwealth Legislature’s ability to pass the bill.
“This proposed Omnibus Immigration Conformity Act of 2010 is designed primarily to reflect and implement the provision of the CNRA expressly preempting those commonwealth laws ‘relating to the admission of aliens and the removal of aliens from the commonwealth.’ The proposed legislation does this by eliminating all references in the relevant CNMI laws to the immigration authority previously exercised by the commonwealth,” said Willens.
According to the bill, U.S. citizens must be given preference when seeking employment in the CNMI.
It further requires all documented foreigners on the islands who have been here for over 90 days to register with the CNMI Department of Labor even if they posses umbrella permits that are valid through Nov. 27, 2011.
“The legislation…deals with the local economy and workforce in ways that do not affect the federal government’s immigration authority or the foreign affairs or security issues addressed by the CNRA,” Willens said.
Monday, March 22 2010 00:00 By Gemma Q. Casas - Reporter
E-mail Print
GOVERNOR Benigno R. Fitial’s special legal counsel, Howard P. Willens, says the CNMI government is free to consider alternative means of regulating its workforce despite the federal government’s statement that the employment of aliens on the islands is now within U.S. jurisdiction.
Willens made the statement in support of House Bill 17-25 which both houses of the Legislature passed on Friday afternoon during their back-to-back sessions.
“Looking further ahead, the commonwealth will be free to consider alternative means of regulating its workforce in light of all applicable laws. The clear direction of [U.S. Public Law 110-229 or the Consolidated Natural Resources Act of 2008] is that United States citizens are to be favored for employment and all foreign workers who cannot qualify under the federal system for a visa must be removed by the end of 2014,” Willens said in a memorandum to the governor.
H.B. 17-25, or the Omnibus Immigration Conformity Act of 2010, which Rep. Rafael S. Demapan, Covenant-Saipan, sponsored is expected to be signed into law.
According to Willens, no federal law affects the Commonwealth Legislature’s ability to pass the bill.
“This proposed Omnibus Immigration Conformity Act of 2010 is designed primarily to reflect and implement the provision of the CNRA expressly preempting those commonwealth laws ‘relating to the admission of aliens and the removal of aliens from the commonwealth.’ The proposed legislation does this by eliminating all references in the relevant CNMI laws to the immigration authority previously exercised by the commonwealth,” said Willens.
According to the bill, U.S. citizens must be given preference when seeking employment in the CNMI.
It further requires all documented foreigners on the islands who have been here for over 90 days to register with the CNMI Department of Labor even if they posses umbrella permits that are valid through Nov. 27, 2011.
“The legislation…deals with the local economy and workforce in ways that do not affect the federal government’s immigration authority or the foreign affairs or security issues addressed by the CNRA,” Willens said.
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.”
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.”
Tuesday, February 12, 2008
2-13-08 Saipan Tribune: C. Reyes Ltr to Ed--"Response to Mr. Wicker"
Wednesday, February 13, 2008
A response to Mr. Wicker
Mr. Willens asked me to respond to the letter from the Communications Director of the Senate Energy and Natural Resources Committee published in the Variety on Feb. 8, 2008. Mr. Willens is still waiting for a written response from a Committee lawyer to his detailed analysis of the plain meaning of H.R. 3079.
It is clear that Mr. Wicker does not understand H.R. 3079. It establishes a permit system under which each employer in the Commonwealth must have a permit in order to hire a nonimmigrant foreign worker. It does not matter whether the foreign worker is presently in the CNMI or enters under the H visa program. He or she cannot get a job unless the employer has a permit to hire a foreign worker for the particular job. Under the current bill, these permits must be reduced to zero by Dec. 31, 2013. If there is no extension of the transition period, the law would require the departure of more than 19,000 foreign workers currently working here.
Mr. Wicker's lack of familiarity with the legislation is also made clear by his suggestion that, after the termination of the transition period, “the nonimmigrant worker program under the INA will continue indefinitely, along with all of the provisions of the U.S. immigration laws.” He seems to forget that by that time the CNMI will be subject to the national caps on H-1B and H-2B visas. If they are allocated proportionally to population, that will entitle the Commonwealth to 10 or fewer workers in each category, which would clearly fall far short of CNMI’s labor needs.
Mr. Wicker's letter, however, did provide some new information. The Senate Committee has finally decided to write a Committee report regarding its recommendation that the Senate pass H.R. 3079. When the Committee decided last December to bundle this “non-controversial” bill with 50 or more other bills from the House of Representatives, there was no suggestion that the Committee would file a report explaining its action. Why is the Committee asking the full Senate to vote on a bill any day now without any explanation from the Committee as to what the bill means and what will be its impact on the Commonwealth's economy, citizens, and foreign workers?
Why should we be surprised? This is the same Committee that endorsed a bill based on the facts of 10 years ago, when Allen Stayman was in the Clinton Administration, rather than the situation existing today in the Commonwealth. This is the same Committee that requested a report from the Government Accountability Office and then refused to defer action until the GAO completed its work-now only a few months away. This is the same Committee that endorsed a House bill that is substantially different from the version considered by the Committee at its hearings in July 2007, without pausing to evaluate the changes made by the House of Representatives or asking for comments from the Commonwealth.
Charles P. Reyes Jr.
Press Secretary
Capital Hill, Saipan
A response to Mr. Wicker
Mr. Willens asked me to respond to the letter from the Communications Director of the Senate Energy and Natural Resources Committee published in the Variety on Feb. 8, 2008. Mr. Willens is still waiting for a written response from a Committee lawyer to his detailed analysis of the plain meaning of H.R. 3079.
It is clear that Mr. Wicker does not understand H.R. 3079. It establishes a permit system under which each employer in the Commonwealth must have a permit in order to hire a nonimmigrant foreign worker. It does not matter whether the foreign worker is presently in the CNMI or enters under the H visa program. He or she cannot get a job unless the employer has a permit to hire a foreign worker for the particular job. Under the current bill, these permits must be reduced to zero by Dec. 31, 2013. If there is no extension of the transition period, the law would require the departure of more than 19,000 foreign workers currently working here.
Mr. Wicker's lack of familiarity with the legislation is also made clear by his suggestion that, after the termination of the transition period, “the nonimmigrant worker program under the INA will continue indefinitely, along with all of the provisions of the U.S. immigration laws.” He seems to forget that by that time the CNMI will be subject to the national caps on H-1B and H-2B visas. If they are allocated proportionally to population, that will entitle the Commonwealth to 10 or fewer workers in each category, which would clearly fall far short of CNMI’s labor needs.
Mr. Wicker's letter, however, did provide some new information. The Senate Committee has finally decided to write a Committee report regarding its recommendation that the Senate pass H.R. 3079. When the Committee decided last December to bundle this “non-controversial” bill with 50 or more other bills from the House of Representatives, there was no suggestion that the Committee would file a report explaining its action. Why is the Committee asking the full Senate to vote on a bill any day now without any explanation from the Committee as to what the bill means and what will be its impact on the Commonwealth's economy, citizens, and foreign workers?
Why should we be surprised? This is the same Committee that endorsed a bill based on the facts of 10 years ago, when Allen Stayman was in the Clinton Administration, rather than the situation existing today in the Commonwealth. This is the same Committee that requested a report from the Government Accountability Office and then refused to defer action until the GAO completed its work-now only a few months away. This is the same Committee that endorsed a House bill that is substantially different from the version considered by the Committee at its hearings in July 2007, without pausing to evaluate the changes made by the House of Representatives or asking for comments from the Commonwealth.
Charles P. Reyes Jr.
Press Secretary
Capital Hill, Saipan
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