Judge stops DHS from implementing interim final rule

Judge stops DHS from implementing interim final rule

Friday, November 27, 2009

Agency told to come up with regs for alien workers to travel in, out of NMI
By Ferdie de la Torre
Reporter

The federal government's interim final rule on the CNMI transitional worker program will not go into effect tomorrow, Saturday, after the judge handling the CNMI government's lawsuit against federalization issued a preliminary injunction yesterday to prevent the rule from going into effect pending the outcome of the lawsuit.

U.S. District Court for the District of Columbia Judge Paul L. Friedman agreed with the CNMI government that the U.S. Department of Homeland Security had no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedures Act.

To help alien workers leave and re-enter the CNMI or for employers to hire needed off-island workers, Friedman suggested that DHS promulgate a narrowly focused and temporary emergency regulation that addresses these issues.

Labor special counsel Deanne Siemer said this is virtually a command for DHS to come up with an emergency regulation that would allow aliens in the CNMI to travel in and out.

Also, since no U.S. Citizenship and Immigration Services' regulations on CW status or business permits will come into effect tomorrow, the CNMI will continue to operate under its existing labor system except for entry and exit, Siemer said.

The interim rule defines the types of businesses that will be eligible to receive permits for alien workers. It sets a numerical limit on the number of permits that will be granted between Nov. 28, 2009 and Sept. 30, 2010. It also outlines requirements that must be met by employers seeking to obtain a permit.

The CNMI, through the Block and Jenner law firm, asked the court to bar the implementation of the regulations, citing that DHS violated the APA in promulgating them. The CNMI argued that DHS wrongfully dispensed with the notice-and-comment procedures required by the law.

The federal government countered that DHS' action does not violate the APA because it had “good cause” to dispense with the requirement.

In granting the CNMI's motion, Friedman said DHS first provided public notice of the rule when it published the rule in the Federal Register on Oct. 27, 2009.

“Since the interim rule was already in its final form on that date, it is undisputed that DHS failed to provide the notice and opportunity for comment typically required by the APA,” Friedman said.

The judge concluded that upon consideration of the totality of the circumstances surrounding the issue, the CNMI is likely to succeed on its claim that DHS did not have “good cause” to dispense with the notice-and-comment procedures and thus violated the APA.

The federal government suggested that providing notice and an opportunity to comment prior to promulgating the rule was impracticable because Congress, in passing the Consolidated Natural Resources Act (federalization law), imposed several burdensome administrative duties on DHS and only allowed the agency 18 months in which to fulfill them.

Friedman found this argument unpersuasive. He said the interim rule will dramatically alter the CNMI's current system for admitting guest workers, who constitute two-thirds of the CNMI's private workforce.

In short, the judge said, the rule will enact far-reaching changes that likely will have significant effects on the CNMI labor market, and it will do so despite the fact that it has not “been tested via exposure to diverse public comment.”

Friedman found convincing the CNMI's arguments that residents and government have meaningful concerns about the rule.

Friedman cited that the criteria established by the rule for issuance of permits for new guest workers to employers may be inadequate.

As written, the judge pointed out, the rule requires employers seeking permits to “consider all available U.S. workers for the position” that is to be filled by a new guest worker, but does not require those employers to consider guest workers already present in the Commonwealth for the position.

To ensure that employers have “considered available U.S. workers,” the rule only asks that employers attest that they have done so, Friedman said.

“The CNMI posits that such attestations may 'be prone to fraud and leave qualified U.S. citizens unemployed,' a matter it would have raised and documented if it had been given the opportunity to comment,” he said.

The judge added that if he ultimately decides the merits of the CNMI's APA claim in the Commonwealth's favor, the damage done by DHS' violation of the APA cannot be fully cured by later remedial action.

He noted that once the program structured by the rule has begun operation as scheduled on Nov. 28, 2009, DHS is far less likely to be receptive to comments.

“If the interim permit rule is not enjoined prior to its effective date, the CNMI will never have an equivalent opportunity to influence the rule's contents,” Friedman said.

The federal government has provided no evidence to show how many workers and businesses will be affected by a temporary delay in the implementation of the rule, and the court is aware of none.

Friedman said it is unclear that foreign workers otherwise eligible under the Immigration and Nationality Act will be able to leave the CNMI and re-enter it within the first several weeks after Nov. 28, 2009, even if the rule is in place.

“Similarly, while the interim permit rule creates a mechanism whereby a CNMI employer may arrange to hire foreign workers from outside the Commonwealth, it is difficult to know whether employers will have much need for that mechanism in the weeks immediately following Nov. 28, 2009.”

Friedman said the emergency rules to address the problem of foreign workers seeking to leave and return to the CNMI or employers in need of workers from outside the CNMI may be promulgated without notice and comment, since they fall within the APA's “good cause” exception.

“It is unfortunate that DHS may have to issue such ad hoc emergency rules. The court emphasizes, however, that this is a problem of the agency's own making,” he said.

Had DHS released the rule earlier in the year and provided the public with notice and an opportunity for comment, the current problem would never have arisen, he said.

“DHS should not now expect to excuse its violation of the APA by pointing to the problems created by its own delay,” Friedman said.

By failing to meet even the minimum standards set by the APA, DHS has also failed to comply fully with Congress' intent to secure the meaningful involvement of the Commonwealth in the transformation of the CNMI's immigration law, he said.

Friedman said the transitional work permitting program “is of great importance to the CNMI, since it has the potential to transform the nature of the Commonwealth's workforce.”

“That program also involves an area-the regulation of immigration into the CNMI-about which the Commonwealth has significant expertise, having knowledge of the needs of its own economy and having operated its own immigration program for decades,” he said.

The judge said the public interest will be best served if the rule is temporarily stopped so that it may be revised as necessary by DHS upon receipt of comments and advice from the CNMI and other parties.

Fitial, workers welcome ruling

Fitial, workers welcome ruling

Friday, November 27, 2009

Federal takeover excludes labor-for now
By Haidee V. Eugenio
Reporter

The federal government will only be able to implement border control at the stroke of midnight on Nov. 28, but not the existing CNMI labor program, at least for now.

This is because of a federal judge's order dated Nov. 25 preventing the U.S. Department of Homeland Security from implementing in its current form the interim final rule on the CNMI transitional worker program, which takes effect on Saturday.

Gov. Benigno R. Fitial and the United Workers Movement-NMI separately welcomed yesterday U.S. District Court for the District of Columbia Judge Paul L. Friedman's ruling granting the CNMI government's motion for a preliminary injunction preventing DHS from implementing its CNMI transitional worker (CW) classification rule.

“I am very pleased with this favorable decision by Judge Friedman. The interim final rule fails to comply with Public Law 110-229 and will be very damaging to the Commonwealth if it goes into effect in its present form,” Fitial said in a statement yesterday.

Fitial, who turns 64 today, sued the federal government over federalization.

He urged DHS to consider the over 100 comments that have so far been filed on its transitional worker program rule.

In an interview with Saipan Tribune on Wednesday, Fitial reiterated that a federal takeover of local labor is “unnecessary.”

“We don't have any problem having the federal government take over immigration. Let them control our border because we don't have the capabilities to do that, but we have a strong enforcement mechanism to control our labor. Why do they have to remove labor from us? It doesn't make sense and we're the only one. All the other [U.S.] territories, they control their own labor,” he said.

'Green card'

Ronnie Doca and Rabby Syed, leaders of the workers group, hope that latest court ruling will give DHS more time to consider their concerns.

Workers groups in the CNMI want the federal government to grant “green cards” or legal permanent resident status to certain classes of nonresidents in the CNMI, including long-term foreign workers.

“We are happy with the ruling so DHS will have more time to look into our concerns. Among the most important things we are asking [for] is a better immigration for long-time nonresident workers, and a blanket authority for those with valid CNMI permits to re-enter the CNMI after a vacation or emergency exit,” said Doca, board chairman of the group, which comprises thousands of foreign workers in the CNMI.

Worker groups have started a signature campaign asking President Obama and the U.S. Congress to grant “green cards” to certain foreigners in the CNMI, ahead of the May 10, 2010, deadline for Interior Secretary Ken Salazar to recommend to Congress whether a grant of permanent immigration status to nonresidents in the CNMI is necessary.

'Exit, entry'

DHS' interim final rule, which is supposed to take effect Saturday, prohibits foreign workers from re-entering the islands using only their valid CNMI work and entry permit.

Friedman said DHS could “promulgate a narrowly focused and temporary emergency regulation” that addresses only the “exit and entry” problems presented in the department's interim final rule.

Regulations by DHS' U.S. Citizenship and Immigration Services would have required foreign workers to secure a CW-1 visa from a U.S. embassy for them to re-enter the CNMI, but only after they first secure a CNMI-only transitional worker status, which may take up to 60 days to acquire.

This means foreign workers can exit but not re-enter the CNMI up to at least early 2010, in order to secure a CW status and a CW-1 visa to comply with the DHS interim final rule.

DHS, however, repeatedly said that nonresident workers can exit the CNMI any time during the transition period from Nov. 28, 2009 to Dec. 31, 2014, but they cannot re-enter the islands without a CW-1 visa obtained from a U.S. embassy.

There is also a possibility that an applicant may be denied a CW-1 visa and therefore won't be able to re-enter the CNMI and continue working on the islands despite possessing a valid CNMI work and entry permit.

The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker, or CW, program.

A “transitional worker” under P.L. 110-229 is defined as an alien worker who is currently ineligible for another classification under the U.S. Immigration and Naturalization Act and who performs services or labor for an employer in the CNMI.

Most of the foreign workers in the CNMI are from the Philippines and China, while others are from Korea, Thailand and Bangladesh.

Florida-based human rights activist and former Rota teacher Wendy Doromal expressed hope that the comments so far submitted on the DHS interim final rule “should now be considered by DHS.”

Many relate to travel restrictions and the requirement for a visa for a foreign worker to return to the CNMI after traveling for personal or medical reasons.

Friedman agreed with the CNMI that DHS had no reasonable basis for publishing the interim final rule without complying with the notice and comment provisions of the Administrative Procedures Act.

The judge also made clear that he was denying any possible effort by the U.S. Department of Justice representing DHS to obtain a stay of his order pending appeal to the U.S. Court of Appeals in Washington, D.C.

Border control

The DHS transitional worker rule is supposed to take effect Saturday, when DHS' U.S. Customs and Border Protection takes over border control.

Edward H. Low, public affairs liaison at CBP's San Francisco office, earlier said that between 40 and 50 CBP officers will be on Saipan to take over immigration control at the Saipan International Airport at the stroke of midnight on Nov. 28.

But as of press time yesterday, Low said he's still checking to see what, if any, impact the court ruling will have on CBP operations.

Among other things, the federal takeover of local immigration means U.S. visas will be required of foreigners to enter the CNMI, just like Guam, Hawaii, and the rest of the United States, except for nationals of countries that are included in visa waiver programs.

The CNMI is the last U.S. territory that controls its own borders.

Fingerprinting and eye scan will also become main fixtures at the airport, just like anywhere in the U.S.

P.L. 110-229 or the Consolidated Natural Resources Act, signed by President George Bush in May 2008, not only applies federal immigration control in the CNMI but also gave the CNMI its first non-voting delegate to the U.S. Congress.

As a result of the federalization law, the CNMI held its first delegate election in November 2008, won by Gregorio Kilili C. Sablan, a former executive director of the Commonwealth Election Commission.

DHS interim rule deficient for many reasons-Willens

DHS interim rule deficient for many reasons-Willens

Friday, November 20, 2009
By Ferdie de la Torre
Reporter

The U.S. Department of Homeland Security should not implement the interim rule on the CNMI-Transitional Worker Classification on Nov. 28, 2009, as it is deficient for many reasons, according to Gov. Benigno R. Fitial's special legal counsel, Howard P. Willens.

In the CNMI's comments on the interim rule, Willens said the rule fails to implement the statutory requirement that the DHS Secretary establish and enforce a transitional work permit system in the CNMI that provides for allocation and a reduction in the number of foreign workers to zero by Dec. 31, 2014.

Willens said DHS failed to conduct an economic impact analysis of the proposed regulations, as required by Executive Order 12866 and the Regulatory Flexibility Act of 1980.

He added that the rule fails to implement the statutory goals of minimizing harm to the CNMI, protecting and increasing job opportunities for U.S. citizens; and fostering the expansion of tourism and economic development.

“We believe that DHS has an obligation under the Administrative Procedure Act to review all the comments submitted in this rule-making proceeding and amend its proposed regulations so that they comply with the requirements of Public Law 110-229 (federalization law) and will not cause the serious injury to the Commonwealth people and economy that will otherwise result,” he said.

Willens said the rule describes no system for how the permits are to be divided among employers.

“In view of the law's mandated reduction in the number of permits to zero within five years, there can be no question but that DHS will be required to confront the need to allocate permits among CNMI employers whose collective demand for foreign workers is greater than the available number of permits during the next year,” he said.

The proposed regulations, he noted, do not even identify the criteria that might be used in making critical distinctions among employers competing for foreign workers.

Second, Willens said, the proposed rules do not identify any procedure for reducing the number of the permits to zero by the end of the transition period.

Based on data supplied by the Commonwealth in August 2008, Willens said, the rule indicates that 19,083 foreign workers are in the CNMI and concludes that about 14,543 of these workers (13,543 in-status and 1,000 out-of-status) “will be granted CW status in 2009.”

“With these figures at hand, DHS certainly had sufficient data to consider the alternative means of reducing the number of foreign workers during the transition period as required by the law,” he said.

The counsel said DHS' failure to comply with the law imposes additional burdens and uncertainty on CNMI citizens.

He said the CNMI economy is composed almost entirely of small businesses, many with less than five employees and only a handful with more than 50 employees.

“Without some clear indication of DHS' intentions with respect to the allocation and reduction of the available permits for foreign workers, all participants in the economy suffer,” Willens said.

He said the proposed rule will also hurt the Commonwealth's “very successful efforts” to stop human trafficking under its 2007 labor reform law.

“The federal rule lacks safeguards to ensure that women coming to the Commonwealth possess the necessary skills in their intended occupation; it has no procedures for checking credentials or an orientation at the airport before entry; and provides no available employment history records that could flag likely abuses and previous infractions by employers before a permit is granted,” he said.

'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.

US: NMI's challenge to interim rule too speculative

US: NMI's challenge to interim rule too speculative

Thursday, November 12, 2009
By Ferdie de la Torre

The U.S. government described as “too speculative” the CNMI's claim that the Department of Homeland Security's interim permit rule on the transitional worker program will lead to disastrous economic conditions.

The U.S. government, through the Office of Immigration Litigation trial attorney Theodore W. Atkinson, insisted that the issuance of the interim permit rule does not add to or alter the CNMI's arguments about the constitutionality of the Consolidated Natural Resources Act of 2008 (federalization law).

Atkinson said the existence of the interim permit rule does not add to the CNMI's challenge to the CNRA, because it does not deviate from the mandates of the CNRA in any way.

Atkinson's arguments are contained in the U.S. government's response yesterday to the CNMI's supplemental memorandum in support of a motion for a preliminary injunction.

“In other words, the mere issuance of regulations to implement the Act does not impact the CNMI's arguments regarding the constitutionality of the Act itself,” the lawyer said.

Atkinson said the CNMI's argument that the interim permit rule proves that the Act ousts local control over two-thirds of the CNMI's private sector workforce is nothing new.

“This is the same argument the CNMI has repeatedly made throughout its briefing on the instant motion, but the issuance of the Interim Permit Rule does not provide support for the CNMI's speculative claims of future injury or add to its challenge of the Act,” he said.

The Act itself, Atkinson said, mandates the implementation of a CNMI-only worker permitting system, and specifies that the number of CNMI-only permits shall be reduced during the period of transition to zero at the end of the transition period.

He said the transition period can be extended for five-year periods at the discretion of the U.S. Labor Secretary.

The attorney emphasized that the CNMI's claim is not only speculative but “is also wholly undermined by the fact that the CNMI challenges the transitional nonresident worker permit system, but does not challenge the application of all other federal immigration laws to the CNMI.”

Atkinson said that position is confounding because it completely cuts against the CNMI's argument that a preliminary injunction would avoid harsh economic and other results.

He said without the provisions of the CNRA creating a transitional worker permitting system and without the interim permit rule, nonresident workers currently in the CNMI and who travel outside the CNMI would be inadmissible upon return to the Commonwealth under federal immigration laws not challenged by the CNMI, once those laws take effect on Nov. 28.

Atkinson added that businesses in the CNMI would be unable to hire nonresident workers from outside the Commonwealth as of Nov. 28, because without a CW (transitional worker) classification, such nonresident workers would also be inadmissible.

“In short, without the Interim Permit Rule being effective on Nov. 28, 2009, current CNMI nonresident workers may not be able to return to the CNMI if they leave within two years of that date, and businesses in the CNMI may not be able to 'import' any new nonresident workers from outside the CNMI if the number of current nonresident workers in the CNMI drops,” Atkinson said.

He pointed out that while the CNMI's claims regarding economic injury arising from the implementation of the transitional worker permit system under the Act is speculative, the impact on the CNMI of the immediate application of federal immigration laws in the absence of the interim permit rule is not.

Atkinson asked the court to conclude that the U.S. Congress properly exercised its authority in enacting the CNRA and applying federal immigration law, including the transitional work permit system, to the CNMI.

He said the court should deny the CNMI's motion for a preliminary injunction and grant the United States' motion to dismiss the lawsuit.

The interim rule was published on Oct. 27, 2009. It is scheduled to become effective on Nov. 28, providing for a CNMI Transitional Worker Program.

The CNMI contends that DHS cannot justify its failure to follow the notice and comment provisions of the Administrative Procedure Act before issuing these regulations in final form.

The CNMI seeks for a preliminary injunction to stop the implementation and enforcement of the interim rule.

The CNMI wants the court to issue a preliminary injunction that would prevent DHS from enforcing or implementing the interim permit rule pending the court's resolution of the Commonwealth's claims on the merits.