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Reasserts local control over non-resident workers

By Haidee V. Eugenio

SAIPAN, CNMI (Saipan Tribune, March 22, 2010)–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."

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