Sunday, January 27, 2008

Transition Program Under H.R. 3079 By Howard Willens

[Note: Press Presentation By Howard P. Willens, Esq.]

January 26, 2008


1. The provisions of H.R. 3079 relating to the transition program mandated by the legislation must be interpreted in light of their language, objective, and legislative history – including the earlier bills on the subject considered by the Senate in 1998-2000.

2. The consistent objective of these bills has been to establish a process for reducing the Commonwealth’s reliance on temporary nonimmigrant foreign workers and to require that the CNMI employ only U.S. citizens, freely associated state citizens, or workers admitted on an immigrant basis into the Commonwealth.

3. H.R. 3079 prohibits the CNMI from increasing the number of temporary nonimmigrant foreign workers in the Commonwealth (currently about 19,000) after the enactment of the legislation.

4. Nonimmigrant foreign workers lawfully working in the Commonwealth may remain to the conclusion of their contracts in place on the effective date of the transition program but no longer than two years after that date – which may be either one year or 18 months after the enactment of the legislation.

5. The transition period under the bill applies to all temporary nonimmigrant foreign workers in the CNMI unless otherwise entitled to be in the Commonwealth under one of the exceptions provided by the Immigration and Nationality Act for workers who enter under treaties with the United States, freely associated state citizens, or those covered by one of the many specialized provisions in the Immigration and Nationality Act (business visitors, exchange visitors, employees of international concerns, etc.) All foreign workers admitted in the Commonwealth’s 706K immigration category are temporary nonimmigrant workers who do not fall within any of the exceptions under the federal statute.

6. The permit system under the transition program therefore covers both the foreign workers currently in the CNMI and any person who may be issued an H visa during the transition period under the provisions of H.R. 3079.

7. H.R. 3079 permits an alien to apply for a H-1B or H-2B visa to enter the CNMI during the transition period without regard to the national caps on the numbers of such visas. Guam is given an exemption from these caps of indefinite duration. With respect to the Commonwealth, the exemption from the national caps does not authorize the admission of nonimmigrant foreign workers into the CNMI during the transition period outside of the permit system implemented by the federal officials under H.R. 3079.

8. H.R. 3079 eliminated the three alternative means for supplementing the local workforce of US and freely associated citizens contained in earlier versions of the bill – family sponsored immigrants, employment based immigrants, and a “grandfather” provision for long term foreign workers in the Commonwealth.

9. Under the permit system, each temporary nonimmigrant foreign worker employed in the CNMI must fill a position for which his or her employer has obtained a permit from the federal officials.

10. The federal officials are given broad discretion for developing and implementing the permit system under H.R. 3079. This will necessarily involve decisions affecting industries (and companies within industries) differently – with increasingly intense competition for the reduced number of foreign workers available each year under the transition program.

11. According to H.R. 3079, the permit system must operate to reduce the number of permits – and therefore the number of nonimmigrant foreign workers – in the CNMI to ZERO by the end of 2013. This very short time for reaching zero is four years earlier than the deadline provided in any earlier version of the legislation.

12. The bill does provide for one or more extensions – of up to five years – of the transition period. The Secretary of Labor is given the authority to grant such an extension after consultation with other federal officials and the Commonwealth. Such extensions are wholly within the discretion of the federal officials and no assumptions can be responsibly made as to when an extension might be requested or granted. Extensions would still require a reduction to zero but would probably allow smaller reductions each year during the extended transition period.

13. On the effective date of the transition period H.R. 3079 preempts all CNMI immigration laws and most, if not all, of the Commonwealth’s labor laws. This will remove all employer and Commonwealth Government benefits for foreign workers in the CNMI.

14. The fees to be charged by federal officials administering the transition program are certain to be substantially higher than those currently charged under CNMI laws. H.R. 3079, if enacted, would deny the Commonwealth its right under the Covenant to seek the return (or cover over) of the immigration fees from the federal government.

Howard P. Willens
Special Legal Counsel


Ron Hodges said...

Chamberonomics XXXI…MLK vs evil

I attended Reverend Martin Luther King activities last weekend. I heard Cinta Kaipat, Senator Pangelininan, and Governor Fitial praised for their efforts making MLK day a CNMI holiday. Martin Luther King Jr. was the greatest American. Dr. Kathryn Takara spoke on the tenets of civil rights in the Pacific region. I thought about who will defend the tenets of human rights in our commonwealth.

I submitted comments to the CNMI DOL concerning PL-15-108. Cinta Kaipat, recently signed a letter to the editor of both Saipan newspapers titled “Hodges’ distortions shameful”. I read this, as did many current students, friends, family, and business associates. Federal Ombudsman Jim Benetto and human rights activist Wendy Doromal wrote responses to the fallacies and inaccuracies in the Kaipat signed letter.

A guest worker here received a letter from the US federally funded CNMI Department of Labor signed by NMI assistant AG Eleanor Nesperos. This letter was so strikingly like the Kaipat signed letter that they were authored by the same villain. Both letters can be read at { “Who is pulling the strings” by Wendy Doromal}

Nesperos confirmed that she signed and sent one letter but was not the original author. DOL head Barry Hirshbein told me he did not write either letter. All parties I discussed this matter with told me the architect was Deanne Siemer, who I do not know.

I asked many questions of DOL this week. I asked repeatedly who wrote the letters. Deanne Siemer did not answer or respond to over twenty phone calls. I don’t care about Cinta signing a letter she did not write, but I do certainly care that someone like Siemer would have authority to pass judgment for the decent people of the commonwealth regarding who shall be deported and when.

Can anyone in the commonwealth imagine such a person having power to deport the parents of a minor US itizen? I am asking US federal authorities to act and prevent this from happening. I would ask that guest workers not to comply with “orders” from DOL or Siemer until she is removed.

I don’t know who is protecting the tenets of civil rights in the commonwealth or the ideals of Reverend Martin Luther King Jr. here, but it is not our DOL or Deanne Siemer.

The Saipan Blogger アンジェロ・ビラゴメズ said...

Greatest American

Ron Hodges said...

Angelo - I could see Lincoln (2nd) but Reagan(1st) intensified the arms race while the gap between rich and poor in America widen for the first time since FDR...who would have been a clear 3rd outside the scientific arena, besides RR was a champion among the conservative white midwest and southern bible belt areas. He was the forrunner of George (I'll kill the terrorists & gays) W.

Arms for hostages baby, just read my lips.

The Saipan Blogger アンジェロ・ビラゴメズ said...

That list is very heavy with people from the last 50 years. Reagan won 49 nine out of 50 states in 1984, but I still wouldn't put him in the top 10.

I would make Thomas Jefferson first, George Washington second, Lincoln third, with John F Kennedy and Martin Luther King 4th and 5th or 5th and 4th.

Ron Hodges said...

Angelo - i would agree with your top five in some order.

Willens Misinterprets H.R. 3079

Howard Willens, the governor's special legal counsel, in a forum held at Bruce Bateman's Porky's Bar, claimed that the H.R. 3079 will force all foreign contract workers to leave after two years. Again, having just come from Washington, D.C. and having discussed this with staffers from the Senate and House Committees, I can only say once again this information is wrong. I suggest that he contact the committee staffers to clarify his misunderstandings. I assume he would have read this letter to Governor Fitial from Senator Jeff Bingaman, Chairman of the Senate Committee on Energy and Natural Resources. He could also contact Federal Ombudsman Jim Benedetto for clarification. In a recent letter posted here Mr. Benedetto made corrections to the same misinformation including these remarks:

"The Commonwealth will have a say in whether the Transitional Guest Worker Program is extended... The Bill provides that the U.S. “Secretary of Labor, in consultation with the Secretary of Homeland Security, the Secretary of the Interior, and the Governor of the Commonwealth, shall ascertain the current and anticipated labor needs of the Commonwealth and determine whether an extension, in up to a 5-year increment, of the provisions of this subsection are necessary to ensure an adequate number of workers will be available for legitimate businesses in the Commonwealth.” The transition period can be extended indefinitely if a genuine need can be demonstrated.

The Bill also provides that any alien “who is lawfully present and authorized to be employed in the Commonwealth pursuant to the immigration laws of the Commonwealth on the transition program effective date shall be considered authorized by the Secretary of Homeland Security to be employed in the Commonwealth” until their contract runs out, or two years after the transition period effective date, during and after which their employers may sponsor them for H visas, or they can participate in the transitional guest worker program.

Alien workers may also benefit from the CNMI’s exemption from the numeric caps on H workers. The rest of the country only gets a certain amount of H worker visas, so businesses must compete to get them. After the Bill passes, CNMI employers will be able to apply for all the H worker visas they need; the cap doesn’t apply to us during the transition period (which, as noted above, can be extended indefinitely if necessary). And, skilled workers brought in under H-1 visas can apply for lawful permanent resident (LPR) status after five years and get a “green card.”

Of course, one of the greatest benefits the Bill would extend to alien workers participating in the transitional guest worker program is the right to freely transfer from one employer to another, at will, as long as the new employer is also in a segment of the economy the Secretary has determined is in need of alien workers. So, if a worker isn’t being paid, he or she can simply go to another employer, without risking the loss of status and subsequent deportation the current law threatens them with.

The current law, on the other hand, ties each worker to a single employer, restricts workers’ right to complain to a very brief period, and threatens a worker who complains with loss of his or her claims and deportation if Labor finds the worker has committed any of a number of violations unrelated to the subject of their complaint.

For example, under the new law, if a guest worker files a complaint, he could be asked whether he had complied with all the provisions of his contract; if he had not, he could be denied transfer and sent home. He could also be asked whether he had engaged in any work during the period his employer wasn’t paying him, or after his employer had abandoned him; whether he had ever paid his own application fee or renewal fee; whether he had ever given any misleading information to Labor or any government employee, orally or in writing; and whether he had worked for his own employer before his contract had been approved, or after it had expired, even if he was being renewed and his employer told him it was legal to do so. If he answers “yes” to any of those questions, it would be “grounds for deportation . . . and forfeiture of all claims” under the new law. We should all be very concerned about whether these parts of the new law will have a chilling effect on a worker’s right to file a complaint."

Jeff said...
This comment has been removed by the author.
Jeff said...

Cinta -- spectacular turtle pic.

Angelo, Reagan the greatest American. Cmon. Get real. Elvis got scrwed.

The Saipan Blogger アンジェロ・ビラゴメズ said...

I didn't pick the people on the list. It was a TV show.

I say Thomas Jefferson was #1. He wrote the Declaration of Independence, started the University of Virginia, spoke like 7 languages, former president, and all around cool guy.

Jeff said...

Was Jefferson in Blue Hawaii? I think not.

lil_hammerhead said...

That "number 13" is important.. it will immediately negate PL 15-108. Yay!!!!

The Saipan Blogger アンジェロ・ビラゴメズ said...

If this passes, a lot of people are going to be shocked when they find out they don't have health insurance.

The Saipan Blogger アンジェロ・ビラゴメズ said...

that sucks.

Tamara said...

What makes you think they have Health Insurance now Sblogger??

marry said...

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