OTOMS brief: Part 2

[I]“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin, but by the content of their character.”[/I]—Martin Luther King, Jr.

The condition in the CW Final Rule that an employer must attest the unavailability of a qualified U.S. worker to petition a foreign worker or to cancel an approved contract between an employer and employee in view of an available U.S. worker is discriminatory and violates Title VII of the Civil Rights Act of 1964 and the Guidelines on Discrimination Because of National Origin, 29 CFR 1606, which prohibits discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex or national origin.

What CNMI employers did was advertise jobs that are currently occupied by foreign workers in view of available U.S workers. Poor foreign workers were terminated right at the end date of umbrella permit expiration without prior notice because a U.S. citizen emerged from behind, giving no chance of looking for another employer before the closing date of Nov. 28, 2011. The poor foreign workers were now accumulating days of being out of status due to CW adverse rule. Is it the intent of Public Law 110-229? With what is going on, the fate and destiny of all foreign workers on the islands under CW Rule are at the mercy of their employers. Sad to say, foreign workers who dedicated themselves to their jobs for a decade vanished in just an hour, in a minute, or so.

“The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents. Willowbrook v. Olech, 528 U.S. 1073 (2000), 120 S. Ct. 1073, 1074-75 (2000) (per curiam) (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441,445 (1923)).”

The requirement under the CW Final Rule to consider the availability of qualified U.S. workers before filing petitions for foreign workers violates the equal protection clause. Suspect classifications such as those based on national origin are subject to the strict scrutiny test, which is deemed applicable in this case.

The lack of action or inaction by DHS, DOL, and other agencies in charge of the transition period with respect to clarifying and clearing up the existing confusion regarding immigration status of foreign workers with pending claims, unresolved cases, unpaid awarded monetary claims and those granted conditional umbrella permits by the CNMI Attorney General’s Office violates due process as workers are given no alternative or protection to resolve their claims or cases.

The rationale for limiting or restricting travel for CW workers does not provide a compelling state interest as respondents failed to provide the basis or evidence regarding violations by foreign workers. Foreign workers under the CW rule are limited to CNMI only travel and travel abroad is also unduly restricted by the mandatory requirement of obtaining a CW visa at the embassy or consulate where a foreign worker is located abroad before entering or being admitted to the CNMI. The prevailing requirement for travel as practiced using separate parole procedures, i.e. advance parole or parole, should be continued in the transition period instead of the CW visa requirement since the CW grants immigration status limited only to the CNMI.

The CW rule violates Regulatory Flexibility Act as its final regulatory flexibility analysis does not contain a description of the projected reporting, recordkeeping and other compliance requirements of the rule. The final rule does not prescribe a schedule for allocating CW status throughout the transition period as required by the CNRA. The Initial Regulatory Flexibility Analysis done by the agencies charged under the CW rule has been haphazard and is not based on current economic data. The agencies charged under the CNRA for an orderly transition of federal immigration laws has the full burden to comply, given that their rulemaking authority affects existing rights, the CNMI economy or in a large scale, the lives of the people inhabiting the CNMI.

Petitioners in this case seek to inhibit the respondents from implementing the CW Final Rule in view of the foregoing violations of due process, equal protection clause of the U.S. Constitution and other laws. A party seeking the entry of a preliminary injunction carries the burden of persuasion and must demonstrate: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; Irreparable harm such as: A professional foreign workers being processed with CW1 petition instead of H1 visa, a technical foreign workers being processed with CW1 instead of H2 visa. Who are those professional foreign workers? Teachers, engineers, accountants, nurses, and other foreign professionals who are currently holding managerial position were petitioned with CW1, those are irreparable harm; (2) a substantial likelihood of success is denied because Commonwealth-only worker, or CW, status do not meet the eligibility criteria for a U.S. H-1 status and therefore, can no longer file for adjustment of status after three years; (3) that the threatened injury to the petitioner outweighs possible harm to the respondent; and (4) that the granting of a temporary injunction will not disserve the public interest.

Foreign workers will bear irreparable harm if the CW Final Rule is imposed given the very brief time frame set for compliance and given the poor state of the economy in the CNMI. Irreparable harm will result to foreign workers who will be adjudged out-of-status after the expiration of their CNMI umbrella permits. Petitioners and those similarly situated will bear irreparable harm if the implementation of the CW Final Rule without regard for the provisions violating due process, equal protection clause and other laws, is carried out. Irreparable harm will result if the CW Final Rule is carried out without regard for those adversely affected by the cited provisions, violating the U.S. Constitution and other laws. The CW Final Rule provides no remedy for redress that may be considered fair and equitable.

A preliminary injunction should be immediately issued to stay the implementation of the CW Rule pending full determination of the merits of this petition and until provisions violating the U.S. Constitution and other laws are duly amended, modified and improved.

“Human progress is neither automatic nor inevitable… Every step toward the goal of justice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals”—Martin Luther King, Jr.

[B]Carlito J. Marquez
Gerardo de Guzman
Hector Sevilla
Bonifacio Sagan
Eduardo Elenzano
Manuel Vilaga
Lee, Jong Ho[/B] [I]October Twenty One Movement, Saipan (OTOMS)[/I]