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FSM Labor Temporarily Says No to Foreign Contract Workers

Category : Opinions





In a letter dated August 30, 2016, Mr. Glayne B. Franklin, Acting Chief of FSM Immigration and Labor, communicated to Mrs. Malpihna Nelper, Chief of Pohnpei State Labor Office, stating:

[e]ffective today August 30, 2016 all renewals and extensions of employment packages under the private sector will be returned to your office without my endorsement.”

In the letter 49 private companies–all seeking foreign worker renewals–are named ranging from engineering and construction companies to stores and auto shops.  Even the Ramp & Mida Law Firm is named in the letter.  (Click HERE for Letter).

On September 1, 2016, the Chuuk branch of the FSM Immigration and Labor office issued a letter to the private sector stating,

[a]ll renewal or extension applications of foreign contract workers in the private sectors submitted will be denied and returned for noncompliance of 51 FSMC §114 & § 152(2).”   (Click HERE for Letter).

…  

“[a]ll employers of the those foreign contract workers in the private sectors that are not in compliance of 51 FSMC §114 & § 152(2) are hereby instructed to make necessary arrangements for their foreign contract workers exit out of the FSM.” (Click HERE for FSM Labor Law).

ISSUE #1: Does the FSM National Government Have Jurisdiction Over Labor within the States?

Does the FSM national government have the power to regulate labor within the states?  We argue it does not.

A distinguishing point must be made between “immigration” and “labor”. Immigration is undoubtedly a national power but not the regulation of employment within the states.  The FSM constitution does not specifically mention employment within the states as a national power and, thus, it is arguably a state power.

Also, it is important to note that state officials generally have greater knowledge of state affairs and should handle activities such as employment.  As stated in a national court opinion (In re Nahnsen, 1 FSM Intrm. 97, 107, 109 (Pon. 1982)):

“State officials generally should have greater knowledge of use, local custom and expectations concerning land and personal property.  They should be better equipped than nat’l gov’t to control and regulate these matters.  Framers of Constitution specifically considered this issue and felt that powers of this sort should be state powers.”

We are of the opinion that each of the states have the exclusive power to deal with employment within state boundaries; therefore, we deem the national government’s action unconstitutional as an encroachment onto state powers.  Ultimately,however, the national court will have to decide this matter as we found no case law dealing with the issue.

ISSUE #2: Is the FSM National Government in Compliance with its Labor Laws?

Assuming a state does not challenge the FSM national government’s authority to regulate state employment, is the FSM national government in compliance with its own laws in taking these actions?

We argue that the FSM national government is not in compliance.  In fact, the law firm formally launched a petition on behalf of a client with the FSM Department of Justice, and FSM Immigration and Labor.  The client agreed to the petition being used for the blog so long as its name is redacted.  Click HERE for the Petition.

The arguments made in the petition are clear: the national government does not have the power to regulate employment within the states; even if it did, it has the duty to conduct surveys on manpower needs and has failed to do so.  Its failure should not be blamed on the private sector.

It must be noted that in response to the petition, the FSM DOJ notified the law firm on September 13, 2016 that the letter issued by Mr. Glayne B. Franklin, Acting Chief of FSM Immigration and Labor, would be rescinded.  It is not clear whether the letter was rescinded and/or whether the FSM government will continue to regulate employment within the states by refusing to renew foreign worker applications.

The FSM Government is Attempting to Ensure Local Workers Receive Preferential Treatment

In both letters issued by FSM Immigration and Labor, Title 51 section 114 of the FSM Code is cited which state:

“Resident workers [FSM Citizens] shall be given preference in employment in the Trust Territory in any industry or occupation for which such workers are qualified and available. Nonresident workers shall be employed only to supplement the labor force of available and qualified resident workers.”

On the face of the letters the concern is employers not giving local workers preferential treatment for jobs. The issue with the letters is FSM Immigration and Labor is assuming that by immediately pushing out foreign workers like engineers, plumbers, carpenters, electricians, masons, welders, doctors, nurses, teachers, and so forth, employers will give locals preference or will be forced to hire locals.

The proposed swift move by FSM Immigration and Labor make no sense.  As a local attorney and business owner in Chuuk (i.e. L5 Hotel), the companies I am associated with employ a total of 34 local workers (7 from the law firm and 27 at the L5 Hotel).  The L5 Hotel is composed of 100% local employees.  I believe, although I could be wrong, that many businesses already give preferential treatment to local employees.

The biggest issue is there are not enough “qualified” locals.  Perhaps our governments need to focus more on how to bring back qualified locals to our country.   Worth noting is that whether someone is qualified is a conclusion that I believe the private sector must make not the government–state or national.  The fact that a local meets the educational qualification does not mean that he/she has the work ethics, thus, would be deemed unqualified from the private sector point of view.

Conclusion

We feel the states have the exclusive power to deal with labor within state boundaries, therefore, the FSM national government’s action is unconstitutional as an encroachment onto state powers.  Furthermore, the FSM national government is obligated to conduct surveys on manpower needs and has failed to do so as required by law.

In the end, a word of caution.  Whether the FSM national government or the state government controls labor, both must be careful that they do not take any action that could undermine our already weak economy which depends heavily on foreign workers.






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Be Careful Before Attempting to Obtain FSM Citizenship Through Naturalization

Category : Opinions

As of March 2008, Public Law 15-28  was signed by  President Mori “in order to allow for citizenship through naturalization to FSM nationals and children of FSM citizens.”

Since the law was passed there have been four FSM nationals that have obtained citizenship through naturalization.  The Ramp & Mida Law firm assisted one of the  applicants who was able to obtain FSM citizenship roughly eight months after starting the process.  Be forewarned the process is time consuming and emotionally draining.  Let’s get started.

In order to qualify for naturalization, all of the following requirements must be fulfilled:

  1. Reside in the FSM for at least 5 years prior to applying;
  2. A child of a FSM citizen parent or is a FSM National;
  3. Provide proof of renunciation of previous citizenship;
  4. Take an oath of allegiance to the FSM;
  5. No felony conviction as defined by the law of the place where conviction took place; and,
  6. Competence in at least one of the indigenous languages of the FSM evidenced by passing a language examination prepared and administered by the President or his designee.

The biggest concern for many will be the renunciation of a foreign citizenship and running the risk of being denied FSM citizenship.  Assuming that happens, it may leave a person stateless and with no passport to travel.   A FSM national would be no better off having renounced foreign citizenship because, at the present time, even a FSM national has no right to a FSM passport.

In one of our previous blogs, we discussed the on-going case of Hartmann v.  FSM Department of Justice.   The court addressed this very issue opining:

The court can see the danger here.  The naturalization applicant must first renounce, and prove that he or she has renounced, his or her other citizenship, but apparently can still be denied FSM citizenship… Under the present circumstances, that would leave the applicant as a FSM national with no right to a passport or a passport from any other country either, effectively denying the FSM national of any ability to travel.

That raises the question whether it might be unconstitutional to deny a FSM passport to a FSM national.  Naturally, if any passports were issued to FSM nationals, those passports would need to be clearly marked as such so that the passport holder could not use tat passport to exercise rights reserved only to FSM citizens.”

The Hartmann court is clearly telling our government that FSM nationals have a right to travel and, thus, a right to a passport.  We can only hope that the FSM government is taking the necessary steps to ensure nationals can continue to travel albeit not enjoy the full rights of a FSM citizen–the most important being the right to own land.

The risk of being stateless and losing the right to travel was certainly the utmost concern in our representation of an applicant.  It was therefore crucial that the then president agreed in writing before the renunciation of the foreign citizenship that the applicant would essentially be guaranteed citizenship through naturalization if all the requirements were met.  A letter was issued from the President’s office with the assistance of the FSM Department of Justice ensuring citizenship through naturalization.  It must be noted that such a guarantee was obtained with the former administration and it is unclear whether the current administration would be willing to do the same.

What about the language exam, some may ask.  It is administered by an immigration officer.  There is no standardized test.  The applicant is basically asked to write and speak in one of the four indigenous languages.  Fluency, based on the the test given, is not a requirement so long as the basics are there.   The test is subjective.

What about the residency requirement?  The applicant has the burden to show the five-year residency immediately prior to applying for naturalization.  But what about the thousands and thousands of Micronesians/FSM nationals that live abroad?  That’s a touchy subject we realize, but does physically living in the FSM really make one more Micronesian? Is it fair to penalize FSM nationals or their children that have moved abroad to find a better life yet own lands back home?  Worth mentioning is that Article III, section 3 of our constitution in talking about citizenship and nationals make no mention of a residency requirement.    Let’s just say that the law can always be amended.

In the end, naturalization is available for those of you that are a FSM national, a foreign citizen, and over the age of 21.  But you must have resided in the FSM for five years prior to applying, have basic knowledge in the language, aren’t a convicted felon, and will renounce your foreign citizenship.

Be careful!  There is a lot at risk, and it’s a life changing decision.  Make sure you know for sure what you want to do before taking the plunge and be sure to have legal advise.




 


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FSM Department of Justice Guidance on Public Law 19-91

Category : Opinions




In this article, we explore the FSM Department of Justice’s (DOJ) position, and how it affects Public Law 19-91 if at all.

Based on a July 19, 2016 Memorandum from the FSM DOJ to the Chief of Immigration and Labor, the rebuttable presumption of renunciation of another foreign citizenship will be granted to FSM citizens and FSM nationals that have renewed their FSM Passport twice in a row after the age of 21.    But for FSM nationals over the age of 21 applying for a FSM passport for the first time, they must naturalize.  (Our next blog we will discuss naturalization.    We have interviewed one of the three naturalized citizen that have been granted naturalization since the law was amended in 2007).

DOJ’s Memorandum states that a FSM passport will be cancelled immediately if a FSM citizen or FSM national obtains a FSM passport under Public Law 19-91 and it is later discovered that the person:

  1.  Joined the armed forces of a foreign state;
  2. Possesses a foreign passport;
  3. Voted in a political election of another country;
  4. Took an oath of a foreign state or political subdivision; or,
  5. Concealed material fact or made a willful misrepresentation in applying for the passport.

What is probably most concerning to FSM citizens and FSM nationals is item number 1, given many of our citizens/nationals are in the U.S. military.    It is our position that item number 1 is a mistake, and it is likely meant to say those that reach officer status in the military or a similar position which requires becoming a citizen of that foreign country.    We will work to confirm #1 from above and will amend the article if necessary.

In the end, DOJ’s position on Public Law 19-91 actually strengthens the law’s effectiveness in that immigration officers are directed to provide the rebuttable presumption for those who qualify for it (i.e. over 21 and renewed FSM passports two times in a row).




 


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Analyzing the Legislative History of Public Law 19-91’s Rebuttable Presumption of Renunciation of Dual Citizenship

Category : Opinions




Legislative History of Public Law 19-91

In the last blog, we discussed Public Law 19-91 in general. Here we take a step back and analyze the legislative history of this law.   “Legislative history is a term that refers to the documents that are produced by Congress as a bill is introduced, studied and debated.   These legislative documents are often used in an attempt to determine Congressional intent.”   (See http://guides.ll.georgetown.edu/legislative_history)

On February 11, 2016, the Standing Committee of the Judiciary and Governmental Operations issued Standing Committee Report No. 19-116.  Report No. 19-116 states, “[e]ssentially, the bill was intended to apply to those FSM passport holders older than 21 who want to renew their passports without having to scramble at the last minute to create evidence of having previously renounced foreign citizenship.”

Committee members, however, questioned witnesses from the Department of Justice, Division of Immigration, and the Office of the President as to “whether they thought this bill would operate as a back door to dual citizenship given that there are numerous individuals over 21 who currently hold two passports.”

“The witnesses explained that at present there is no way for FSM Immigration to obtain information from the U.S. to confirm that an individual is a U.S. citizen.    However, if FSM Immigration does discover this, they will cancel that individual’s FSM passport.”

The representative of the Department of Justice, when asked whether the bill should be amended to make it retroactive stated it would be problematic but further consideration would be given.

Another issue raised at the public hearing “concern[ed] the fact that many foreign born FSM citizens currently living abroad have no idea that they must take any action to retain or ultimately restore their FSM citizenship.”    It was “recommended that the Department of Justice consider undertaking a public information campaign to educate these young FSM citizens to minimize the chance that Division of Immigration may be faced with many more frustrated FSM citizens/or nationals in the future.”

Our Thoughts

What we learn from the legislative history contained in Report No. 19-116 is that FSM Immigration will cancel an individual’s FSM passport if it finds proof that an individual older than 21 is a U.S. citizen or citizen of another foreign country.    That doesn’t seem to be anything new.   But in terms of Public Law 19-91’s rebuttable presumption, the presumption is essentially wiped out if and when FSM Immigration is able to confirm from another country that a FSM citizen who is over the age of 21 is also a citizen of that country.    Therefore, it is fair to ask what if any benefit is there to Public Law 19-91’s rebuttal presumption.    Let’s continue and see.

On a practical level what is likely happening is that immigration officers flag an application when someone that is clearly FSM by blood was born in a foreign country.   The immigration officer probably on a case-by-case basis decides whether to simply renew the FSM passport (those folks should consider themselves lucky…for now) or to question the applicant regarding whether he/she is a citizen of that foreign country and if so has renounced.

The applicant could at that point argue with a big hopeful smile that because he/she has obtained a FSM passport two times in a row since turning 21, he/she is entitled to a renewed passport based on Public Law 19-91.    The immigration officer could renew the FSM passport or seek to overcome the presumption that the applicant renounced.    If the immigration officer is able to obtain evidence to overcome the presumption (e.g. officer in the military), a renewed FSM passport will not be issued and the applicant would likely be labeled a FSM national.

It is certainly important to note that despite the rebuttable presumption that Public law 19-91 attempts to provide, our Constitution makes it clear that dual citizenship is not allowed particularly after the age of 21.    Therefore, the immigration officer in the above scenario should be able to tell an applicant that despite the presumption of Public Law 19-91, the applicant must provide proof of renunciation—effectively destroying the presumption—based on the FSM Constitution.    We all know our Constitution is the highest law of the land.

In the end, amending our Constitution is probably the best route to dealing with the dual citizenship issue considering it would be difficult if not outright impossible to pass any sort of law that attempts to distort the clear mandate of our Constitution.

The only likely option for those over the age of 21 that have missed the train and cannot afford to wait for our Constitution to be amended for whatever reason is to consider naturalization.  We will explore naturalization in future blogs.

Thank you.




 


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Public Law 19-91’s Rebuttable Presumption of Renouncing FSM Dual Citizenship

Category : Opinions



On June 14, 2016, FSM Vice President Yosiwo P. George on behalf of President Peter Christian signed Public Law 19-91 into law. The purpose of this law is to create a way to renounce dual citizenship for those persons that hold FSM citizenship in addition to citizenship of another country. Can the law do such a thing? The answer isn’t so clear. We realize that this is the typical lawyer answer. Let’s explore further.

FSM Constitution/FSM Code 

Article III, section 3 of the FSM Constitution states that, in order to remain a FSM citizen, a person who is a FSM citizen and also a citizen of another country must:

  1. Register her intent to remain a FSM Citizen;
  2. Renounce her citizenship of another nation;
  3. Do #1 and #2 from the above by the age of 21.

Many people have asked if the FSM Constitution allows dual citizenship for FSM citizens under the age of 21. It does appear that dual citizenship is allowed before the age of 21. However, if the above three elements are not met by the age of 21, a FSM citizen becomes a FSM national. What’s the difference between a FSM citizen and FSM national? A future blog will explain.

The FSM Code, Title 7, section 203 states that a FSM citizen must register her intent with the President or his designee to remain a FSM citizen by the age of 21. How does one register her intent to remain a FSM citizen through the President’s office?  What happens if someone fails to renounce her citizenship of another nation by the age of 21?

It is not clear how to register one’s intent to remain a FSM Citizen. There is no regulation that identifies the procedures.

As for renunciation it is clear that one must do so by the age of 21. What is not clear is what exactly is required to renounce.   If formal renunciation is required, then how many FSM citizens that are also citizens of another country can afford to pay the often exorbitant fees associated with doing so? Currently, the fee for renouncing U.S. citizenship is $2,350.00! What about the many FSM citizens born in another country but have always used a FSM passport all of their lives or adult lives? Is the act of obtaining only a FSM passport considered “renouncing?”

That is where Public Law 19-91 comes in. It adds in Title 7 of the code, section 203, the following language, “[a] citizen who holds a FSM passport that has been renewed twice in a row is entitled to a rebuttable presumption that he has renounced the citizenship of another nation and that he is solely a FSM citizen.”

Our interpretation is that the FSM Government may provide renewal of a FSM passport if one has had two FSM passports in a row; however, the FSM Government may rebut the presumption by asking someone who notes in the passport application having been born outside of the FSM to show proof of renunciation. If proof cannot be provided, a passport will not be issued even having had two FSM passports in a row.

FSM Supreme Court on Public Law 19-91

In a recent case, the court dealt with Public Law 19-91. In Fritz Edward Hartmann v. Department of Justice, FSM Government, Civil Action 2016, 1001, the FSM Supreme Court issued an order on September 19, 2016, stating, “[a]fter hearing the parties’ presentations, the court requested further briefing on the effect of FSM Public Law No. 19-91….”

The facts of this case are simple. Mr. Hartmann’s father is a FSM citizen but he was born in U.S. He is 32 years old and has never had a U.S. passport. His last issued FSM passport was October 30, 2007 and expired on October 29, 2012.   On January 12, 2016, Hartmann filed an application for a new FSM passport. FSM Department of Justice rejected his application on the grounds that he was born in Guam and failed to register his intent to remain a FSM citizen by the age of 21.   He was considered a FSM national by FSM Immigration.   Hartmann sought a declaration by the court that he is a FSM citizen.

Ultimately, the FSM Supreme Court ruled that Hartmann is not entitled to the presumption in Public Law 19-91 because he has only applied for a FSM Passport once since turning 21, not twice as required by the law. The court also ruled that since Hartmann admitted that he had not “formally renounced” his U.S. citizenship, any presumption he may have been entitled to under the law would be rebutted.   The FSM Department of Justice recommended that Hartmann go through the naturalization process. This process allows for one to become a FSM citizen even after the age of 21 after meeting certain elements like showing proof of renunciation. Naturalization will also be a part of future blog.

Interestingly, the court noted the danger in Hartmann (or anyone else) renouncing U.S. citizenship, applying for naturalization, and being rejected by the FSM Government to become a naturalized citizen. If that were to happen, Hartmann would be a FSM national with no passport to travel. That would interfere with his right to travel. The court suggested that if passports are issued to FSM nationals to allow for travel, it should clearly be marked that it is only for travel purposes so that FSM nationals do not use the passport to exercise rights reserved only to FSM citizens (e.g. right to own land).

This case is still ongoing. The remaining issue is whether a FSM national has a right to a FSM passport.

Conclusion

Our leaders are aware that our nation needs to deal with the issues surrounding dual citizenship. The difficulty, or some would say blessing, is that dual citizenship can only be accomplished through a constitutional amendment. The FSM Constitution, Article XIV, section 1, states in part that, “[a]n amendment to this Constitution may be proposed by a constitutional convention, popular initiative, or Congress in a manner provided by law. A proposed amendment shall become a part of the Constitution when approved by 3/4 of the votes cast on that amendment in each of 3/4 of the states.”

There is information coming out of Palikir that dual citizenship will be on the referendum during the next Congressional session in March.

In the end, Public Law 19-91’s attempt to create a way to renounce dual citizenship remains unclear and likely will complicate this issue as we move forward.