HR 1466: Relief for some

The air is thick is with accusations against Congressman Kilili Sablan’s H.R. 1466 which, if passed, will provide CNMI-only status to four groups who are currently waiting in limbo for some resolution to their precarious immigration situation. A prominent rights activist, quoted in the Saipan Tribune, says that if passed, H.R. 1466 will create a “separatist, apartheid-type status,” continue into the federal immigration system the “persistent exploitation of foreign workers” that existed under CNMI law, and provide incentive to xenophobic state legislatures to follow suit. Both the rights activist and a well-known workers’ movement representative criticize H.R. 1466 for not providing relief to those long-time, lawfully present workers who do not have U.S. citizen children. On the other end of the spectrum, the CNMI administration’s representatives say that H.R. 1466 will provide “amnesty,” and that it encourages tourists to overstay in hopes that an amnesty will be put into place.
We agree with the activists, and with Senate President Paul Mangloña (who otherwise supports the bill), that H.R. 1466 should be wider in scope, and provide relief to a larger group. We wish it were so. But the reality of politics is that sometimes you have to take what you can get, and hope to get closer to your goal in the future. The rising tide of anti-immigration sentiment in the United States has made any comprehensive immigration legislation unlikely.

This bill actually has a chance of getting through Congress, especially after Hazel Doctor’s strong testimony at last week’s House subcommittee hearing. Kudos to Ms. Doctor, whom we have watched in Bar Association-sponsored mock trial competitions, and marked out as a young lady of considerable intelligence and talent. She illustrates exactly why we believe so strongly that access to immigration is one of America’s basic strengths.
The other arguments against H.R. 1466 are most politely characterized as stuff and nonsense. It’s time we start talking about this subject, which is critical to everyone in the Commonwealth, rationally—no rabble-rousing, no politicking, just straight talk. Today we’ll try—first by talking about what H.R. 1466 won’t do, then about its actual effect if passed, and then about what we think those people directly affected by H.R. 1466 actually want.

[B]What H.R. 1466 won’t do[/B]

H.R. 1466 won’t create an apartheid. Apartheid in South Africa was a truly evil system that subjugated millions of people within their own country, and subjected them to violence, unlawful imprisonment, and police state-sponsored terrorism and murder. Like segregation in the U.S. before the successes of the Civil Rights Movement, apartheid systematically separated people from one another right where they lived.

By contrast, H.R. 1466 merely continues the travel restrictions already in place prior to federalization of CNMI immigration. It also provides mechanisms by which those restrictions eventually will be removed by adjustment of status to U.S. permanent residents.

H.R. 1466 won’t perpetuate persistent abuse of foreign workers. The CNMI has had more than its share of abuses of foreign labor, but we hope and believe that the people of the CNMI will no longer tolerate mistreatment of workers, whether foreign or local. It is true that until they qualify for adjustment of status, foreign workers in the CNMI will have no more privilege to live and work in the rest of the U.S. than any other foreigner who does not otherwise qualify for a U.S. visa, but H.R. 1466 does provide a path for those who seek that goal.

The critics’ argument breaks down to a statement that foreign workers’ presence in the CNMI inevitably equals their abuse; if that were the case, a ban on foreign workers would be the obvious cure. The critics cannot really want that, to uproot the same people they seek to protect. We believe that the proper response to labor abuse is not to eliminate the victims from the scene, but rather to better enforce the laws that exist to prevent and punish labor abuse. Even if the administrative agencies fall short, our courts, both CNMI and federal, have shown both ability and willingness to redress wrongs brought before them.

H.R. 1466 won’t create an amnesty. As Congressman Kilili himself stated last week, amnesty is for illegals. The people who will be protected by H.R. 1466 are, with very few exceptions, lawfully present in the CNMI. The overstaying tourists who wait for amnesty and in the meantime worry the Administration are largely a figment of the administrative imagination.

H.R. 1466 won’t lead to copycat abuses by the states. Despite the efforts of Fortress Arizona and the misguided legislatures of some other states, states simply do not have the power either to admit an alien to the United States or, once an alien is admitted by the U.S. government, to restrict that alien’s travel within the United States.

[B]What H.R. 1466 will do—who actually benefits?[/B]

Who will benefit? We think the entire Commonwealth will benefit, for a number of reasons ranging from humanitarian considerations to preservation of the Commonwealth’s workforce, and therefore its economy. (Don’t forget that “commonwealth” comes from two words that mean the well-being of all.) There are four classes of identified beneficiaries of H.R. 1466, all of whom must have resided in the CNMI on May 8, 2008 (the day the CNRA was signed into law) and Nov. 28, 2009 (the “federalization” date):

* People born in what is now the CNMI between Jan. 1, 1974 and Jan. 9, 1978. These are people who are truly in limbo. We have talked to quite a few of them, and occasionally written about them in this column. They were born here, raised here and, typically, have lived all their lives here. But they are too old for the relief provided the “stateless” children under the Sabangan decision several years ago. Why stop, going backward, at Jan. 1, 1974? Most likely because it is the cutoff date in the citizenship sections of the Covenant.
* CNMI permanent residents on May 8, 2008, the date the CNRA (the “federalization” statute) was signed into law. These people are already able to obtain humanitarian parole (aka “parole in place”) from DHS, but H.R. 1466 stabilizes their situation.
* The spouses and children (unmarried and under 21) of the two groups identified above.
* The immediate relatives, on May 8, 2008, of U.S. citizens, regardless of the age of the U.S. citizen. Why the cutoff on the CNRA’s effective date? For the same reason, we think, that U.S. courts in the mid-1950s the mere fact that an alien has a U.S. citizen child will not prevent the alien’s deportation—however sympathetic the courts might have been, judges were not going to set a policy that encouraged people to have children for immigration benefits.

We need to say something more about a subset of this group: over the past few years we have spoken with a number of parents of disabled children. We have a small stack of interview notes with these parents, and have been seeking some form of relief for them. Some of these children are gravely disabled, some less; a surprising number are autistic.

Section 504 of the Rehabilitation Act of 1973, and the Individuals with Disabilities Education Act (IDEA), provide that every child in the United States is guaranteed the right to a “free, appropriate public education” (usually abbreviated “FAPE”), at least until age 22. FAPE is “the provision of regular or special education and related aids and services that are designed to meet individual needs of handicapped persons as well as the needs of non-handicapped persons are met and based on adherence to procedural safeguards outlined in the law.”

These children will not get these services outside the United States, and the concern of these parents has not been “how can I stay here?” but, rather, “can I stay here so that my child can get help?” H.R. 1466 will do that.

[B]What benefits will they get? [/B]

U.S.-issued CNMI Permanent Residence. The holders of this U.S.-issued status will be able to live and work in the CNMI, and to leave and enter the CNMI freely, as CNMI entry permit holders were able to do before Nov. 28, 2009. They will not be able to travel to or reside in any other part of the United States “unless otherwise authorized”—that is, unless they obtain visa or parole to do so. They can keep the status until they no longer permanently reside in the CNMI, or become U.S. permanent residents, whichever comes first. The status will become available during a 90-day period beginning six months after H.R. 1466 becomes law.

Possible Full U.S. Permanent Residence. Of course, the U.S. citizen children of foreign parents can apply for the parents to receive permanent residence, once the children reach the age of 21. H.R. 1466 provides another path to U.S. permanent residence for the other three groups (those born here between Jan. 1, 1974 and Jan. 9, 1978; those who were CNMI permanent residents on May 8, 2008; and the spouses and children of these two groups). If passed, H.R. 1466 will allow members of these three groups to apply for green cards between Jan. 1, 2015 and before Jan. 1, 2016.

Who gets left out? As we said at the beginning of this column, we wish H.R. 1466 were wider in scope. Anyone who does not fit into the four groups identified above, however, will still be able to fall back on the CW-1 program (if and when the final regulations are published) or, if qualified, to seek one of the regular U.S. visas such as H-1B or L-1A.

What do people want? More specifically, what do we think the foreign workers and their families who will be subject to H.R. 1466 want? Will they welcome or reject it?

Obviously, we are not foreign workers, nor are we at risk of removal from the CNMI. But we each have always been involved in immigration work, and over the past three years, since passage of the CNRA, we have been involved in intensive interviews with many hundreds, perhaps more properly thousands, of people. We have made at least 30 public presentations—to business and workers’ groups, to church and school groups, and a couple of radio shows (most recently on KWAW 100.3 last week)—and we regularly respond to questions from readers of this column. We think we have a pretty good idea what most concerns foreign workers and their families. In the context of H.R. 1466, it all boils down to one overriding concern: Maintain employment stability and family unity—who will take care of my children?

This is the single most important theme we hear. People are not so much concerned about travel restrictions, or even minimum wage raises. Rather, they want to remain with their families in this community. The most heart-rending part of our interviews are the large numbers of parents—usually mothers—who believe they will have to leave their U.S. citizen children behind and who have come to us, over and over, and ask, “who will take care of my children?” while tears stream down their faces.

Until now, for parents not otherwise qualified for visas, the only answer we could give was, “You will—we just don’t know where.” If H.R. 1466 passes, we will have a better answer for them.

[B]prevailing wage survey revisited[/B]

In our last column, we discussed the Saipan Chamber of Commerce’s prevailing wage survey for the CNMI, to be conducted through the Guam Employers Council. The survey has begun, and we encourage every employer to contact the Chamber of Commerce and get involved. Everyone will benefit, even companies with no foreign workers.

[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com.[/I]