At least 95 individuals, mostly nonresident workers, submitted comments on the U.S. Department of Homeland Security's interim final rule on the CNMI transitional worker program, which was originally set for implementation on Nov. 28 but was postponed due to a federal court ruling.
There are at least 142 postings about the received comments on the Federal Register Web site, but many of them are just duplicates.
DHS published the interim final rule in the Oct. 27 Federal Register and comments were due on Nov. 27.
But two days before the end of the comment period, Judge Paul Friedman issued a ruling temporarily stopping DHS from implementing the transitional worker interim final rule because no ample public comment period was given.
DHS has yet to decide whether to issue emergency regulations as Friedman suggested, or come up with a new set of regulations and start the comment process from scratch.
Some submitted handwritten comments, which were scanned and posted on the federal Web site, including that of a nonresident worker who has been in the CNMI for 21 years and asks for “improved status.”
Another handwritten comment was submitted by Rosemarie Ann Liangco, a U.S. citizen child of foreign workers who have been in the CNMI for 18 years.
“I believe that with my parents' existing permits, they will be able to go to their home place but yet they may not enter the island again. This situation worries me,” said the child.
She also said that all contract workers should be given a CW-1 status if the federal government wants to have zero contract workers by the end of 2014.
Many of the foreign workers asked DHS to automatically convert all valid CNMI work/entry permits to CW-1 visa.
One of them, Christopher M. Monsanto, said any additional or duplication of fees that businesses have to pay for the same purpose of retaining their workforce would further hurt their ailing businesses amid an unstable economy.
“CW1 visa should be packaged into the issuance of CW1, CW2 permits to give nonimmigrant workers and their dependents the freedom to exit and re-enter the CNMI without unnecessary delay and uncertainty on re-admittance,” he said.
Still, a lot more who commented pressed for improved immigration status such as “green card” to long-time foreign workers in the CNMI.
CNMI-only H-2 visa
Among those who submitted comments on DHS' interim final rule was Saipan Chamber of Commerce president James “Jim” T. Arenovski, who offered alternative solutions to structure the mandated reduction in CNMI-only transitional workers.
The Chamber has repeatedly suggested what it believes to be a potential solution to this issue that it deems would be “effective and efficient and, we believe address the concerns and needs of both the federal government and the Commonwealth.”
“Our proposal is for a federally-administered CNMI-only H-2 visa program exempt from the numerical limitations applied in the United States,” Arenovski said.
In his seven-page comment, Arenovski said such a program would be otherwise largely identical to the existing federal H-2 visa program, but would “not” allow egress from the CNMI to Guam or other areas of the United States.
“This could achieve, almost immediately, the stated congressional intent of an orderly phasing out of the nonresident contract worker program and the orderly phasing in of federal responsibilities over immigration in the Commonwealth, and minimizing, to the greatest extent practicable, potential adverse and fiscal effects of phasing out the Commonwealth's nonresident contract worker program and to maximize the Commonwealth's potential for future economic and business growth,” he said.
He added that this would be entirely practical from a security standpoint, given the easy control of exit and entry at the CNMI's six air and sea ports.
The Saipan Chamber of Commerce is the largest business organization in the CNMI with approximately 150 members.
It said DHS' interim final rule establishing the CNMI-only transitional worker classification, as published, “will cause significant economic harm to the [CNMI].”
First comment
A certain Maria Isabel D. Estanislao was the first one to comment or pose a question on DHS' interim final rule, on Oct. 29.
She asked about the “umbrella permit” that the CNMI Department of Labor was about to distribute at the time. She asked whether such permit will be recognized, honored, or will be valid when the U.S. immigration law applies to the CNMI, or whether the CW-1 and CW-2 visas will supersede all existing permits.
On Nov. 25, a federal judge temporarily stopped DHS from implementing its transitional worker program rule that would have grant a CW status to eligible nonresident workers, because comments were not considered before the publication of the rule
Gov. Benigno R. Fitial, through his special legal counsel Howard P. Willens, also submitted a comment, saying that DHS should not implement the interim rule as it is “deficient for many reasons.”
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.
He also 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.
Willens said DHS has an obligation under the Administrative Procedure Act to review all the comments submitted in the rule-making proceeding and amend its proposed regulations so that they comply with the requirements of Public Law 110-229, or the federalization law, and will not cause the serious injury to the CNMI.
Among other things, 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 using their valid CNMI entry permit, based on DHS' interim final rule.
A “transitional worker” under PL 110-229 is defined as an alien worker who is currently ineligible for another classification under the Immigration and Nationality Act and who performs services or labor for an employer in the CNMI.
The Transitional Worker Visa category is a new nonimmigrant visa classification under INA using the admission code CW-1 for the principal transitional worker and CW-2 for dependents. “CW” stands for “Commonwealth transitional worker.”
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