'Law meant to protect citizens from wage depression'

'Law meant to protect citizens from wage depression'

Monday, November 16, 2009
By Ferdie de la Torre

One of the fundamental purposes of the U.S. immigration law is to protect U.S. citizens from wage depression resulting from the presence of inexpensive nonresident labor, according to the federal government.

The U.S. government, through Office of Immigration Litigation trial attorney Theodore W. Atkinson, said the other fundamental purpose of the U.S. immigration law is to ensure that U.S. citizens have access to local job opportunities.

Atkinson highlighted these points in the U.S. government's amended response to the CNMI government's supplemental memorandum in support of a motion for a preliminary injunction against the federalization law.

Atkinson said the CNMI's assertion that “immigration” laws do not include nonresident labor and foreign workforce regulations ignores large sections of the Immigration and Nationality Act, and is contradicted by the two fundamental purposes of immigration law.

The CNMI argues that the provisions governing the permitting of nonresident workers do not fall under the category of “immigration” laws.

The CNMI asserts that the Department of Homeland Security's interim permit rule is “labor” and not “immigration” as shown when the interim permit rule was promulgated separately from the second set of regulations (interim conforming amendments) issued on Oct. 28, 2009.

But Atkinson said this argument is “without merit.”

“There can be little dispute that the regulations at issue serve separate purposes. As DHS noted in issuing the interim rule, the Interim Permit Rule was implemented to 'create a new, temporary, CNMI-only transitional worker classification (CW classification) in accordance with the Consolidated Natural Resources Act,” he said.

The interim conforming amendments, on the other hand, were promulgated to amend existing immigration regulations covering various areas, Atkinson said.

These areas include asylum and credible fear determinations, the definition of “United States” and its territories and possessions, and the Guam-CNMI Visa-Waiver Program.

Indeed, Atkinson said, several of the amendments cover employment-based regulations that, if one follows the CNMI's logic, would fall outside the area of “immigration” law and tread into “labor” law.

He said these include conforming regulations providing that, “upon the transition program's effective date, employers and certain recruiters and referrers for a fee in the CNMI will be subject to the same prohibitions as other employers in the U.S. against knowingly employing aliens who are not authorized to work in the United States.”

“They also include regulations that require employers in the CNMI to follow rules regarding the verification of employment authorization, and apply hiring prohibitions to employers in the CNMI,” he said.

Atkinson said that DHS issuing one interim rule to create the nonresident worker permitting system and another to make it conform to existing regulations is unremarkable, and not evidence that the CNRA's transitional nonresident work permit system is not part of federal immigration law.

The CNMI wants the court to stop the implementation and enforcement of the interim rule and to issue a preliminary injunction that would bar DHS from enforcing or implementing the interim permit rule pending the court's ruling on the Commonwealth's lawsuit.