A common search for that rising tide

[B]By TINA SABLAN[/B] [I]Special to the Saipan Tribune[/I]

Dear people of the Commonwealth:

At the House session on April 24, 2008, Representatives Edward Salas, Victor Hocog, Heinz Hofschneider, and I introduced House Bill 16-86, “The Resident Foreign National Act of 2008,” which proposes to establish a new five-year entry permit category within the Commonwealth immigration code.

If HB 16-86 is signed into law, qualified foreign nationals would be able to apply for an entry permit that would allow them the ability to be employed at will in the Commonwealth for the duration of their permits. This means that they would be responsible for negotiating the terms of their own employment contracts, including medical coverage, and for paying their own permit fees. They would also be able to operate businesses, and to accept, leave, and transfer jobs without having to obtain the approval of the Department of Labor. Foreign nationals who can show that they have maintained legal status in the Commonwealth for at least five consecutive years prior to the date of application; have a clean criminal record; have never been public charges of the Commonwealth; have sufficient potential for employment; and are not otherwise deportable, would be eligible to apply for resident foreign national entry permits.

In many ways public discourse about HB 16-86 has encapsulated the diversity of views, the social divisions, and the anxieties, struggles and hopes of our community at this pivotal time in our history. We strain now to pull ourselves out of a severe economic crisis, to improve local governance, to prepare ourselves for a new federalized immigration and labor system, and to understand and adapt to the social and economic changes that have already taken place in our community, and the changes that are still to come. For some of us, the instinctive reaction to this time of transition has been that of fear; we resist change at all costs, and seek to protect old habits and beliefs because they are familiar even if they are destructive, even if they hinder our ability to survive these difficult times. For others, the instinctive reaction has been that of steadfast courage and optimism, buoyed by the belief that we are going through a transformation that is both healthy and necessary, gradually moving away from the false and unsustainable economy that has disempowered citizens and guest workers alike, and moving toward a future of expanded economic and social opportunities for all.

With respect to HB 16-86, some, including local citizens, long-term guest workers, local and federal government officials, business owners, and workers’ rights advocates, have expressed their support. They have said that it is about time the Commonwealth began to positively acknowledge the value and contributions of long-term guest workers. They have said that if such a program had been enacted long ago, it could have helped curb the labor abuses which have significantly tarnished the Commonwealth’s reputation. Supporters of the bill have also said that if the resident foreign national program is enacted before the effective date of federalization (June 1, 2009, under U.S. Public Law 110-229), and if it is acceptable to the federal government, it could help ease the transition to the new federal immigration program.

Others, however, have expressed reservations with House Bill 16-86. There are those who worry that the new resident foreign national program might take away economic opportunities for citizens. There are those who dismiss the bill as being moot, believing that the federal government is unlikely to accommodate the resident foreign national program, even if it is enacted by law before June 1, 2009. There are also those who feel that the proposed program does not go far enough, and should be expanded to include all foreign nationals with U.S. citizen children or unpaid labor awards. Finally, there are those who have flatly opposed the bill in its entirety, and the rhetoric of some members of this group has been inflammatory, divisive, and sometimes bluntly racist.

I wrote this to clarify the purpose of HB 16-86, to address some of the common questions that surround the proposal, and to appeal to the people of the Commonwealth to read the bill for themselves, participate in the discussions taking place in the community, and search their own hearts and consciences before coming to a position on the proposed resident foreign national program.

[B]The purpose of HB 16-86[/B]

The primary purpose of HB 16-86 is to stabilize and strengthen the Commonwealth’s workforce during this time of economic vulnerability and transition. Law-abiding, competent, and reliable employees are critical to the survival and success of any business, and viable, resilient businesses are critical to the recovery of the local economy and the creation of jobs and wealth. Businesses need access to a labor pool that is large enough, adaptable enough, and qualified enough to meet their workforce requirements; workers, for their part, need jobs that pay decent wages, reward competence, and promote upward mobility. To these ends, HB 16-86 seeks to liberalize the Commonwealth’s labor market and thereby expand the ability of businesses to compete for, and hire, the workers they need, and the ability of all workers, citizens as well as noncitizens, to negotiate for better salaries and enhanced benefits for themselves and their families.

[B]Stabilizing the Commonwealth’s workforce[/B]

The business community and various local government officials have consistently stated that the Commonwealth needs a minimum workforce of 18,000, and that there are simply not enough U.S. citizens and permanent residents who are eligible to work and qualified to meet all the workforce needs of the private sector.

According to the Department of Labor’s Annual Report of 2007, of approximately 18,500 jobs in the private sector (excluding garment factory and domestic helper jobs), 10,900 are occupied by foreign national workers; the remaining 7,600 jobs are occupied by U.S. citizens and permanent residents. Even if a drastic 50% cut in government personnel were implemented today, and all 2,400 of those furloughed employees were to move into the private sector; even if all 2,200 of the currently-unemployed citizens and permanent residents were to land jobs in the private sector at the same time; and even if no citizens and residents were to leave the islands or retire this year — the total number of U.S. citizens and permanent residents available to work would still be insufficient to meet all the workforce needs of the private sector. Moreover, not all of these citizens and permanent residents would be immediately qualified to fill those private sector jobs without some degree of training and education, particularly for highly-skilled jobs. The transition of government workers and currently-unemployed citizens and permanent residents to the private sector would take time, great effort, and a significant investment of resources in vocational training and other forms of assistance.

Meanwhile, the hemorrhaging of the local citizen population continues, and with it, the shrinking of the local citizen workforce. Although there are presently no concrete data available on the number of local citizens who have left the island to date, the anecdotal evidence is grim. On an almost daily basis it seems, one more talented professional decides to leave for better career opportunities somewhere else; one more local family packs its bags; one more young person decides to join the military because of limited opportunities in our islands; one more long-time resident comes to sadly realize that a secure and comfortable retirement here may not be possible after all; one more university or trade school graduate decides not to return to the Commonwealth to work. This mass exodus of citizens represents a tremendous loss of the human resources of our community – and chances are, it will continue until the economy is stabilized and can begin to recover.

As the quality of life in the Commonwealth declines and as the exodus of citizens carries on, survival for foreign national workers, and for businesses as well, also becomes increasingly difficult. These economically stressful times demand greater workforce flexibility, but current local labor laws make it difficult for businesses to efficiently hire the workers they need, and for foreign national workers to fill those jobs, even when there are not enough qualified citizens or permanent residents to do so.

For example, entry permits for foreign national workers come up for renewal and processing every year, no matter how long the workers have lived here, or how productively and reliably they have been employed, or how long and how much their employers have depended on them. Their permits can and often do take months to be issued. Moreover, all employment contracts require the approval of the Department of Labor, and foreign workers seeking employment transfers must first go through an administrative hearing and obtain the approval of the Secretary of Labor. If foreign workers lose their jobs, and if they are granted transfer authorizations, they have 30 days to find new jobs. If they are unable to do so in the time allowed, they must return to their countries of origin if appeals and motions to reconsider are denied. Commonwealth law currently does not offer any additional considerations for long-term workers who have been in the Commonwealth legally and continuously for years and who seek transfers – not even if they have spent the better part of their lives and professional careers here, not even if they no longer have ties to their countries of origin, not even if their entire families are here.

The stark realities of our present economic situation underscore the need for a strong and stable workforce. The proposed resident foreign national program would ease hiring restrictions required under current labor law which hinder economic recovery, prove unduly cumbersome for already-struggling businesses, impose tremendous hardship and stress on long-term foreign workers and their families, and do little to restrain the exodus of citizens from the Commonwealth. Furthermore, because resident foreign national status would be available to long-term foreign workers who have proven themselves to be law-abiding, productive, and reliable employees and who therefore require less oversight, the proposed program would benefit the Department of Labor as well, by allowing the Department to focus and prioritize its limited resources on more urgent administrative and enforcement responsibilities.

[B]Would the proposed resident foreign national program hurt citizens?[/B]

Some members of the community have opposed HB 16-86 because they believe that the proposed resident foreign national program would negatively impact citizen-owned businesses and take away jobs from citizens. Though such protective instincts may be understandable in a shrinking economy such as ours, they can also be quite harmful to the goals of economic recovery and social stability. Granting qualified, law-abiding, and productive foreign national workers a greater measure of stability and freedom to negotiate the terms of their employment and to open their own businesses would promote the interests not only of long-term foreign nationals, and not only of businesses, but also the interests of citizens and the local government.

Rather than taking away jobs from citizens, or giving long-term foreign nationals any unfair advantages, the resident foreign national program would help expand the economy and reshape the job market by creating a larger, more mobile, and more stable workforce of citizens as well as noncitizens. Allowing resident foreign nationals to operate businesses would promote entrepreneurship and healthy competition, which in turn would help expand the tax base, generate revenue for public services, create jobs, and lower prices on consumer goods and services. Furthermore, the resident foreign national program would encourage employers to compete vigorously for productive and reliable workers by offering higher wages and attractive benefits. Businesses that pay artificially-depressed wages and treat their workers poorly would lose their competitive advantage over businesses that are willing and able to offer decent wages and exceptional working environments in order to recruit and retain high-quality workers.

The resident foreign national program would also help level the playing field for citizen employment. Citizens would be encouraged by improved wages and better working conditions to seek employment in the Commonwealth; would not be unjustly out-competed by low-wage labor; and would have greater incentives to seek the training, education, and experience they need to enhance their qualifications. Given a fair playing field, including wages that are commensurate with skills and experience, our local citizens are more than capable of competing brilliantly and on their own merits for jobs, and proving themselves to be diligent and capable workers.

[B]Does HB 16-86 offer permanent residency and citizenship?[/B]

House Bill 16-86 does not propose to grant permanent residency or citizenship to long-term foreign nationals – the Commonwealth does not even have the authority to do so, and the Constitution of the Northern Marianas prohibits the Legislature from passing any laws that increase the class of nonaliens in the Commonwealth. Accordingly, the Findings of HB 16-86 declare that “resident foreign nationals shall not be considered non-aliens for any purpose, including but not limited to the application of Article II, section 5(d) of the Constitution of the Northern Mariana Islands”. Further, Section 3(b) and Section 4 of HB 16-86 explicitly state that resident foreign national status shall not be “a grant of permanent residency, resident status, citizenship, or nationality to a resident foreign national entry permit holder, nor shall it entitle resident foreign national entry permit holders to the privileges and immunities of citizenship.” Section 4 of HB 16-86 also provides that resident foreign nationals may be deported as other aliens for violating conditions of entry.

[B]Would the resident foreign national program result in a new population boom?[/B]

Some have expressed the fear that the proposed resident foreign national program would result in a huge population boom of ever-increasing numbers of resident foreign nationals and their immediate relatives, which would in turn impose additional and untenable burdens on the Commonwealth’s already-strained infrastructure and resources. First, U.S. Public Law 110-229 imposed a cap on the number of alien workers in the Commonwealth, and while workers can be replaced if they are repatriated or deported, any population “boom” in excess of the cap would be a violation of federal law. Second, the resident foreign national program is being proposed for people who are already here, who have been here legally and continuously for at least five years, and who can meet other permit requirements established by law. The program would stabilize the presence of those workers, and discourage the importation of new replacement workers who are likely to be far less familiar with Commonwealth laws and far less vested in the community.

With respect to petitions to bring in immediate relatives (defined by law as legally recognized spouses and children), House Bill 16-86 proposes to apply to resident foreign nationals the same requirements that currently apply to foreign national workers. These requirements include proof that the resident foreign national earns an annual wage equal to or greater than 150% of the U.S. Department of Health and Human Services Poverty Guidelines for the State of Hawaii (approximately $25,000 per annum for a household of two); that the resident foreign national has obtained medical insurance coverage for each immediate family member; and that the resident foreign national has made educational arrangements for each minor child. Furthermore, House Bill 16-86 authorizes the Division of Immigration to set numerical caps on the number of resident foreign national permits that may be issued if necessary, a provision that was modeled on numerical caps on visas issued under federal immigration law.

[B]Would resident foreign national status be available to people who have broken the law?[/B]

The intent of House Bill 16-86 is that resident foreign national status should be offered, not to criminals or scam artists, but to long-term, law-abiding and responsible foreign nationals for the purposes of stabilizing the Commonwealth’s workforce. House Bill 16-86 would require, among other permit conditions, proof that applicants for resident foreign national status have maintained legal and continuous status in the Commonwealth, and that they have clean criminal records (no felony convictions, not more than one misdemeanor, no crimes of moral turpitude, and no convictions of crimes outside of the Commonwealth that carry a penalty of imprisonment of one year or more). Conditions of entry and the screening process could be strengthened in several ways; one possibility would be to require proof of actual and lawful employment in the Commonwealth, including, but not limited to, W-2s, pay stubs, tax returns, and other forms of evidence.

As previously stated, House Bill 16-86 provides that resident foreign nationals could still be deported as other aliens pursuant to Article 5 of the Commonwealth Entry and Deportation Act (Deportation and Departure). Grounds for deportation under Article 5 include: 1) knowingly and for gain encouraging, inducing, assisting, abetting, or aiding, in any way, any other alien to enter or attempt to enter the Commonwealth in violation of law; and 2) becoming, by reason of conduct, behavior, or activity at any time after entry an “excludable alien.” Foreign nationals become excludable aliens if they are convicted of a crime carrying a penalty of one year or more in prison or a crime of moral turpitude, or if they seek to enter the Commonwealth or to aid the entry of another foreign national by fraud, deceit, bribery, or willful misrepresentation of a material fact or other unlawful act.

[B]What if resident foreign nationals lose their jobs?[/B]

Some members of the community worry that HB 16-86, if signed into law, may result in resident foreign nationals becoming public burdens if they fall into unemployment, become unable to support themselves and their families, and would still be allowed to remain in the Commonwealth for at least the duration of their entry permits. House Bill 16-86 provides several safeguards to address this concern, including: 1) requiring, as conditions of entry, that the applicant demonstrate sufficient proof of employability as well as proof that he or she has never been a public charge of the Commonwealth; 2) easing restrictions on employment transfers so that resident foreign nationals have more time to secure new jobs and do not have to first go through an administrative hearing and obtain the approval of the Secretary of Labor; 3) granting employment preference to resident foreign nationals in the same manner as permanent residents; and 4) allowing resident foreign nationals to open up their own businesses, and thereby support themselves and their families. Further, HB 16-86 provides that, pursuant to Article 5 of the Commonwealth Entry and Deportation Act (Deportation and Departure), resident foreign nationals with no demonstrable means of support, who have become public charges, or who have been institutionalized in any type of facility at public expense, would be deportable as other aliens.

[B]Is HB 16-86 moot as a result of federalization?[/B]

The passage of U.S. Public Law 110-229 does not render HB 16-86 moot. Federal regulations implementing the new immigration program are not expected to be promulgated until June 1, 2009, and possibly as late as December 1, 2009. At a minimum, the resident foreign national program proposed under HB 16-86 would help stabilize the Commonwealth’s workforce in this period of uncertainty before the effective date of U.S. Public Law 110-229.

The resident foreign national program could also be offered as a starting point for discussion and negotiation with the federal agencies as the regulations are drafted. At a recent House presentation on federalization, a number of lawmakers, including the Speaker of the House and the Federal Relations chair, expressed their hope that the Commonwealth government would have a seat at the table with federal officials during the development of the new immigration regulations, to ensure that the economic needs of the Commonwealth are fully considered, including the need for a stable workforce. The Federal Ombudsman, Mr. Jim Benedetto, who is currently involved in the drafting of the new regulations, was present at this meeting. Mr. Benedetto affirmed his support for the involvement of local government officials in the process of developing the regulations, and also said that it might be possible to accommodate the resident foreign national program in the Commonwealth-only transitional guest worker program that is mandated under U.S. Public Law 110-229.

[B]Learning from history: reexamining the guest worker program[/B]

In many ways, our discussions about HB 16-86 are not, and should not only be, about whether or not we should establish a new five-year entry permit category in the immigration code. We should also thoughtfully and honestly scrutinize the very nature of the Commonwealth’s guest worker program, and how it has impacted the economic, social, and moral character of our community in the last twenty years. To these ends, it is useful and eye-opening to compare the Commonwealth’s guest worker program to guest worker programs that have developed throughout history and throughout the world.

Wherever and whenever guest worker programs have been established, labor abuse, illegal immigration, economic inequality, social discord, depressed wages, and xenophobia have arisen — from the gold mines of southern Africa in the 19th century, to the agricultural fields of the United States in the early 20th century, Guam and the Virgin Islands in the 1950s, Western Europe beginning in the 1960s, and our own Northern Mariana Islands from the 1980s to the present day. Indeed, economic and social injustice seem to be inherent in the guest worker system, and these problems only begin to diminish when the workers are given greater economic stability and freedom, and a pathway to permanent residency and citizenship.

The Commonwealth cannot offer permanent residency or citizenship to long-term guest workers; only U.S. Congress can do that. But we can offer greater stability and freedom. In so doing, we would, of our own accord, begin to close this dishonorable chapter in our history of labor abuse and exploitation, and open a new chapter of fair treatment and expanded economic opportunities for all workers in the Commonwealth.

[B]The rising tide, and the need for healing[/B]

This is, to be sure, a time of great anxiety and uncertainty for the Commonwealth. But it is also a time of great opportunity – for social healing and stability, and for economic recovery. And we do have choices in the way we respond to the changing times. We can resist, and we can complain. We can continue with the schizophrenic view of wanting foreign national workers here but fearing that they might stay, of enjoying the fruits of their labor, but also resenting them for the same. We can give in to our misdirected frustrations and seek to have foreign workers and their families more tightly controlled or removed from the islands altogether. And we can raise our children to be fearful, intolerant, and woefully unprepared for the rapidly changing world into which they will come of age. We can do all these things, and our Commonwealth will continue to deteriorate.

I continue to believe that we can and should do better than that. These trying times can bring out the best in us, and our capacity for empathy, tolerance, compassion, and reason will determine our capacity to adapt successfully to the challenges before us. We can choose to acknowledge the uncomfortable truths about the Commonwealth’s guest worker program, and embrace the urgent need to develop a freer, more stable and more flexible workforce. We can choose to lay the foundations for a new and more sustainable economy by teaching all our children the value of honest work and entrepreneurship, and raising them to take pride in competing and succeeding on their own merits in a level playing field. We can choose to recognize that the lives of citizens and foreign workers are intertwined in the Commonwealth, and have been for years – and as such, the ability of one group of people to survive and prosper cannot be separated from the ability of all to do the same.

Right now, there are local citizens and foreign workers who are afraid of losing their jobs or who cannot find jobs. Right now, there are local citizens and foreign workers living without electricity and running water. Right now, there are local citizens and foreign workers who are in desperate need of healthcare, who have been victims of crime, who are frustrated by bad governance, and whose children are learning in unsafe and dilapidated schools. Right now, there are local citizens and foreign workers who simply want better lives for themselves and their families, and who have had to say goodbye to loved ones who have left the islands. Whether we are citizens or foreign workers in the Commonwealth, we live, work, and suffer together, and if we hope to recover from our collective suffering we must begin to think and act as one undivided community, in the best interests of all the people who live here. Like the rising tide that floats all boats, we help ourselves and lift up our entire community when we help anyone among us to live and work more freely and comfortably.

[B]Call for dialogue and participation in public hearings[/B]

The House Standing Committee on Judiciary and Governmental Operations has scheduled a series of public hearings on HB 16-86. The first one was held on Rota on June 7; the next public hearing will be on Saipan today, June 12, beginning at 6pm in the House Chamber, followed by a hearing on Tinian on Friday, June 13, from 8am to 2pm at the Tinian Junior/Senior High School. I appeal to all interested members of the community to take the time to review House Bill 16-86, participate in the upcoming public hearings and any other public meetings, and submit comments. Copies of the bill may be downloaded at the Commonwealth Legislature’s website, www.cnmileg.gov.mp , at the Floor Leader’s website, www.camachocnmi.com, or requested from the Office of Representative Rosemond Santos, JGO Committee Chair, at 664-8965.

I would also be more than happy to provide copies for anyone who requests them, or to meet with anyone who wishes to discuss this bill. I can be reached at 664-8931 or 483-3935, or by email at tinasablan@gmail.com or rep.sablanc@cnmileg.gov.mp.

[I]Tina Sablan is a Precinct 1 member of the House of Representatives in the 16th Legislature.[/I]