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Wednesday, 27 May 2009

Marianas Variety Editorial

A Brief History on the Federalization Threats

A DECADE ago during the Teno administration, the following disaster led to the current predicament we all face today. A true sign of failure, ignorance and self-interest hidden political agendas and was the sole basis and reason why the local control of immigration and labor was recently stripped by the U.S. Congress.

The elected leaders, lawmakers and business community who had been involved with today’s disaster are still sitting in office, some seeking re-election. We say STEP DOWN and retire immediately before you bring further destruction to our homeland.

Feb. 22, 1999: Senate President Paul Manglona and Speaker Diego Benavente flew to Washington D.C. to join Gov. Pedro P. Tenorio to thwart off fresh attempts by the Clinton administration, seeking a federal take-over of the CNMI immigration and labor local control.

According to Senate President Manglona back then, the meeting with key congressional members and staffers was an opportunity for island leaders to provide report on the tight financial situation of the government as well as various reforms implemented by the Teno administration in the past year. Our government came under fire anew two months prior over the alleged failure of our local government to curb number of Asian migrant workers on the island (non-resident guest workers); charges repeatedly refuted by CNMI officials with reports of accomplishments of labor and immigration reforms.

A quote to a reporter by Speaker Benavente: “We always felt that we do not have a serious situation here and it’s always easier, I feel, for anyone to understand that when they come here and see for themselves,” (meaning the U.S. Congress).

TAOTAO TANO states the following; does the current predicaments we face today a result of not having a serious problem? Our indigenous local U.S. citizens who were host to thousands of non-resident guest workers had remained unemployed and untrained to take on those positions that required special skills. Why? Our people had been disrespected and insulted by foreign non-resident guest workers demanding citizenship in our homeland, why? Mayhem and uncertainties now taking place. Did our leaders then do anything to prevent such predicaments? Keep reading and you shall find out.

May 3, 1999: After meeting with key members of U.S. Congress in Washington, D.C. the CNMI Legislature hoped to continue reform measures to deal with concerns on local labor and immigration in an attempt to block a federal takeover proposal.

Sept. 15, 1999: Senate President Manglona, and Speaker of Benavente along with Governor Teno Testified on S. 1052 in Washington, opposition the application of federal immigration law to the Northern Marianas. Our leaders warned that such a legislation would have adverse impact on the CNMI economy, further stating that S. 1052 was not the vehicle that would further the interest of the commonwealth. Governor Teno led the CNMI delegation comprised of administration officials, members of the Legislature and representatives from the business sector — the Saipan Chamber of Commerce and HANMI.

TAOTAO TANO states that our leaders are still using the same excuse, the ECONOMY! The real question is did they do anything to correct the labor and immigration problems? Did any of our leaders do anything to better prepare the CNMI with alternate industries in case of a federal takeover?

Keep reading — the truth is getting closer and interesting.

Remember, today the same leaders who were opposed to such federal take-over of our immigration and labor are now in full support, to include the Speaker Benavente, now the chair of the House Foreign and Federal Relations Committee.

Full support, for they failed the CNMI tremendously.

Feb. 8, 2000: Our elected leaders stepped up campaigns opposing automatic federal takeover of our labor and immigration control. U.S. Senate Energy and Natural Resources Committee chaired by then Frank H. Murkowski, R-Alaska, and two other ranking Democrat members, a bipartisan bill that sought automatic implementation of the U.S. Immigration and Nationality Act in the commonwealth for serious concerns on the alleged failure of our government to curb the INFLUX of migrant workers from Asian countries as well as impact of such policy on employment opportunities for LOCAL U.S. residents. An opportunity which led to prioritizing foreign guest workers in our homeland instead of U.S local residents.

Lobbying then was Speaker Benigno Fitial and the Teno administration in opposition to federal takeover. Also in full support of opposing a takeover was then Senate Floor Leader Pete P. Reyes.

Feb. 9 2000: Passage of takeover bill in U.S. Senate “A Wake Up Call,” says Saipan Chamber of Commerce president Lynn Knight.

Feb. 15, 2000: TAOTAO TANO states, that while an impending federal takeover bill was headed to the U.S. House our elected leaders along with the business community came up with their version of how to fix our labor and immigration.

They repealed Public Law 11-69, the three-year stay limit for all nonresident workers in the CNMI — 30,000 nonresidents back then to be exact, holding more than 90 percent of the jobs in the private sector. Rep. Diego T. Benavente was confident then that the legislative branch would move swiftly to amend Public Law 11-69.

Feb. 2001-April 2001: A campaign both elected leaders and the business community ensued to repeal Public Law 11-69 the three-year stay limit for all guest workers.

Those heavily involved in such a disastrous move were Speaker Fitial, Sens. Pete Reyes, Paul Manglona, Ricardo Atalig, Edward Maratita, David Cing, Rep. Diego Benavente and then-Saipan Chamber of Commerce president Anthony Pellegrino, who now operates the TRADES School educating and training our local U.S. residents.

TAOTAO TANO states could it be that he felt GUILTY for leading our people to their own detriment by aggressively fully supporting repealing Public Law 11-69 to appease 30,000 nonresident workers?

Also supporting the repeal of the stay limit we’re Lynn Knight, Tan Holdings executive representing the CNMI in D.C. as authorized by Governor Fitial and not by the will of the people of the commonwealth, and then HANMI president Ronald Sablan, now in charge of medical referrals.


July 4, 2001: Governor Teno gave a significant pre-Liberation Day present to 30,000 non-resident guest workers plus continued recruitments ultimately flooding our gates with foreign workers in the commonwealth by suspending Public Law 11-69 in its entirety.

TAOTAO TANO states that instead of correcting the alleged INFLUX of nonresident workers in our homeland, a serious concern with U.S. congressional members, the individuals involved had sought making our own U.S. local residents JOBLESS and a MINORITY in their own homeland, the Commonwealth of the Northern Mariana Islands.

Since then our immigration and labor control has gotten worst. Major problems with human smuggling, human exploitation, labor abuse, sham marriages, illegal document processing and so forth were rampant. But again, TAOTAO TANO still maintains that it is beyond comparison to that of third world tortures and atrocities. Still, this is a huge failure on the part of our leaders for not rectifying a long problematic immigration and labor local control and prioritizing the need for foreign labor.

To all of you my fellow voters, I ask that you seek deep in your heart and think hard this upcoming election and let us not make the same mistakes over and over again. We must change these veteran elected officials who have led us to such uncertainties and mayhem and make that change this coming November once and for all in order to fix what is broken. Vote those that are willing to take on the challenge for Change, for the betterment of our people, our community and our homeland as a whole in the pursuit of a higher standard of living as intended in the spirit of our Covenant with the United States.

Taotao Tano






Tuesday, February 12, 2008

The plain meaning of H.R. 3079

Tuesday February 12, 2008
Tuesday, February 05, 2008

By Howard P. Willens
Special to the Saipan Tribune

For more than a decade Commonwealth residents have debated the pros and cons of federalization of the CNMI immigration and labor laws. Today this debate is focused on the provisions of H.R. 3079, currently before the U.S. Senate for final approval. Although the debate on the merits of the bill undoubtedly will continue, it is desirable to strive for a common understanding of what the bill means.

The Issue

Recent media reports originating from an unnamed source at the Senate Committee on Energy and Natural Resources, plus numerous letters in support of H.R. 3079, have proposed an interpretation of the legislation's transition program that I find to be clearly wrong. The question at issue may be simply stated: Does the transition period under H.R 3079 involve one or two special programs for guest workers in the CNMI?

In Support of the Two Guest Worker Programs Theory

The anonymous Committee staffer (quoted in the Marianas Variety of Jan. 30, 2008) and the letter writers contend that there are two separate guest worker programs provided by H.R. 3079 under which employers may hire nonimmigrant foreign workers during the transition period.

First, they state that “current guest workers would be eligible for the new CNMI-only temporary guest worker program.” They go on to say that this will give these workers “the chance to remain in the CNMI as long as that program is operating and it will certainly last at least six years beyond the date” of the bill's enactment and “probably longer, given the CNMI's very large dependence on guest workers.” (This description is misleading. It fails to acknowledge that during this transition period federal officials are required to reduce annually the number of workers covered by the permit system in order to achieve eventually the goal of zero. It offers small comfort to the 19,000 guest workers in the CNMI to know that a few of them will have the “chance” to be the last to be repatriated.)

Second, they state that “guest workers would be eligible for the non-immigrant worker program under existing federal law on H visas, and allows the CNMI to participate in it without numerical caps.” Conceding that the goal of the legislation is to eventually reduce the number of the guest workers under the CNMI-only temporary guest worker to zero, the proponents of the two-programs interpretation state that “guest workers would continue [to] be able to enter the CNMI indefinitely under the existing federal non-immigrant worker program or [sic] H visas.”

In Support of Only a Single Guest Worker Program

I find that there is a single transition program defined by H.R. 3079, which imposes a permit system on all employers seeking to use nonimmigrant foreign workers, whether that worker is presently in the CNMI or comes in on an H visa. Furthermore, the law requires reductions in the number of permits on an annual basis to zero by the end of 2013, subject to the granting of an extension. After the transition period ends, nonimmigrant workers could enter the CNMI only with an H visa and the Commonwealth would be subject to the national caps (unlike Guam). Because it would have to compete with all other U.S. jurisdictions for H visas under the national caps (after the transition program ends), the Commonwealth would get few, if any, of these visas.

I find that the two-program theory is unsupportable for these reasons.

First, there is nothing in either the language of H.R. 3079 or its legislative history that refers to two separate guest worker programs during the transition period. All preceding versions of this bill have defined only a single such program to help bridge the gap between the CNMI's current situation and the full application of the federal immigration laws. This is true of the original versions of H.R. 3079 and S. 1634 as introduced in Congress in 2007, as well as S.1052 passes by the Senate in 2000 and S. 507, approved by the Senate Committee on Energy and Natural Resources in 2001. Each of these bills defined a single special transition program lasting ten years (or possibly longer) during which the number of nonimmigrant guest workers in the Commonwealth would be reduced to zero.

Second, the proponents of two programs infer the existence of the second guest worker program from the exemption from the numerical caps for H visas that H.R. 3079 provides to the CNMI during the transition program. Such an inference is not supportable and the subsection authorizing the exemption does not permit federal officials implementing H.R. 3079 to admit nonimmigrant workers under an H visa who are not covered by the permit system established by the CNMI-only transition program.

1) The language of the exemption provision, subsection 6(b) of H.R. 3079, imposes no duties whatsoever on federal officials implementing the legislation. It provides only that “An alien, if otherwise qualified, may seek admission to Guam or to the Commonwealth during the transition program as a nonimmigrant worker” under the H visa programs “without counting against the numerical limitations” contained in the Immigration and Nationality Act.

2) The exemption from the national caps was necessary to permit the federal officials to issue one or more H visas to meet particular employment requests in the Commonwealth without the need to take such visas away from other jurisdictions in the United States. Such exemptions were contained in all previous bills addressing the CNMI situation, with no reference whatsoever in any of these bills to a “second” guest worker program.

3) In earlier versions of the law, the subsection dealing with the exemption from the caps on H visas was contained within the description of the CNMI-only guest worker program. It was almost certainly moved out from this description once it was decided to extend the exemption to Guam as well as the CNMI. It would have been inappropriate, and perhaps misleading, to have this provision relating to Guam contained in the subsection dealing with the CNMI-only guest worker program.

4) The subsections dealing with the CNMI-only guest worker program (with its permit system and objective of annual reductions) indicate that their provisions apply to workers entering the CNMI on H visas, as well as those workers currently in the CNMI who would be entitled to a nonimmigrant classification.

--Subsection 6(d) begins with this statement: “An alien who is seeking to enter the Commonwealth as a nonimmigrant worker may be admitted to perform work during the transition period subject to the following requirements [of the permit system]”

--Subsection 6(d)(2) states: “No alien shall be granted nonimmigrant classification or a visa under this subsection unless the permit requirements established under this paragraph have been met.”

-- Subsection 6(d)(3) provides that the Secretaries of Homeland Security and State shall establish the conditions for admitting such nonimmigrant workers during the transition period and states: “An alien admitted to the Commonwealth on the basis of such a visa shall be permitted to engage in employment only as authorized pursuant to the transition program.”

Third, if the drafters of H.R. 3079 as approved by the House of Representatives had intended to exempt the workers coming in under the H visa program from the CNMI-only transition program, they knew how to do so. In the version of H.R. 3079 that was the subject of hearings in August 2007, there was a provision for the use of employment-based immigrant visas, if necessary, to supplement the available CNMI workforce. Before such visas could be used, the Secretary of Labor under Subsection 6(c)(3) of the bill had to conclude “that exceptional circumstances exist with respect to the inability of employers in the Commonwealth to obtain sufficient work-authorized labor, in addition to the Commonwealth-only transitional workers authorized under section 103(d)..” (emphasis supplied) As the United States Supreme Court has observed, “where Congress includes particular language in one section of a statute but omits it in another., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting Russello v. United States, 464 U.S.16, 23 (1983)).

Fourth, the contention that the bill provides for two, very different, guest worker programs during the transition period simply makes no sense. In the first place, why would any guest worker choose to participate in the so-called temporary program, with the chance of having the available permits being reduced to zero, if such an easy and non-threatening alternative were available under this hypothetical H visa program. Secondly, the argument assumes that the very same federal officials required to apply the harsh provisions of the CNMI-only guest worker program would conclude that Congress intended them to admit all H visa applicants seeking to work in the CNMI without regard to the permit system imposed by the CNMI-only program. This proposition cannot withstand rational analysis. .

The fact is, H.R. 3079 mandates the reduction of guest workers in the Commonwealth to zero within five years, or perhaps longer if an extension is granted. There are no exceptions, and there is no alternative for guest workers or CNMI employers, who will have to compete for the permits remaining after the required annual reductions. Those who drafted the bill intended this result. There is absolutely no legislative history indicating anything to the contrary. The Congressional drafters of this bill (and the Senate bill) and their collaborators at the Department of the Interior declined to provide to the Commonwealth any draft of the proposed bill that they ultimately sent to the House of Representatives for passage. If we had been given this opportunity, we could easily have pointed out these and other deficiencies in the proposed legislation and the inevitable and serious adverse effects on the Commonwealth and its guest workers that will result from its enactment.

(Howard P. Willens is the Special Legal Counsel to Gov. Benigno R. Fitial.)

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