27 Feb 2012 Editor’s Interview with Atty Ladd Baumann
Editor’s Interview with Atty Ladd Baumann about U.S. Immigration Issues
Reprinted as courtesy of Marianas Business Journal
February 27 – March 11, 2012
Pages 9 and 12
Editor’s Note: Ladd A. Baumann is senior partner at Baumann, Kondas and XU LLC, a law specializing in the practice of immigration law. Prior to February 2010, his firm had been LA Baumann and Associates. Baumann has been in private practice on Guam since 1977. Prior to that, he spent three years working for the Guam Pacific Defenders Office after moving to Guam from Oregon in 1974.
Baumann has a bachelor’s in education and a juris doctorate from the University of Michigan. He also has a master’s degree in criminal justice studies from the University of Portsmouth in the United Kingdom.
Q: From a legal perspective, what is your assessment of the immigration situation on Guam right now?
A: The current immigration situation on Guam is in a period of transition due to the uncertainty of the military buildup and to the changes in the H-2B law. As a result, there are number of workers in Guam who will be forced to return to their home countries. This answer has to do with H-2B workers.
As to the many consequences of the slowdown, may business were bringing in labor expecting to have contracts on which to employ them. These contracts are now delayed or cancelled. Therefore, the workers are underemployed. Two things typcically happen, the employer begins to be squeezed financially because he is overextended and sometimes this results in the underemployment of the workers (who should be full time) and in some cases the nonpayment or underpayment of the workers wages. From the workers’ point of view they have planned and budgeted for U.S. employment and so an early return home is financially disruptive for them and therefore, they are inclined to hold on in the hope that business will pick up for their employer.
The second issue is the fact that the U.S. Government has created an H-2B visa country eligible list, which does not include China and other countries that had H-2B workers in Guam. THe result of this change is that the worker’s visa cannot be renewed. In Guam there are many workers and business in this category such as Thai and Indonesian spa workers and Chinese and Indian construction workers. Therefore, the employer must find substitute labor, give up workers that have been trained and go to the expense of sending them home. This causes a disruption in business and for the workers. SOme workers, typically the Chinese, may choose to claim asylum rather than go home.
As was reported in the news there are also claims of the workers, typically Chinese, being tricked into coming to Guam with false promises. This may give rise to a claim that they were ‘trafficked’ through fraud and misrepresentation. The problem of trafficking of foreigners into the U.S. Congress and the Guam legislature to pass law to protect the workers. These laws include a remedy called a T visa, which allows the workers to remain in the U.S. to assist the government in the prosecution of offending employers. We have represented and still represent many workers in this situation both from Guam and the Northern Mariana Islands.
Q: In relation to Guam, what is the single change in the U.S. Immigration law or policy that you would most like to see?
A: The single change for Guam at this time would be transparency for the H-2B country eligible list and, since many Asian countries are not on the list, to restore those countries for work on Guam. And I am strong believer in protecting the immigration system through strong enforcement of the laws. Therefore, the Guam Departent of Labor should be properly funded to perform its oversight duties as to H-2B workers.
As an island, Guam must depend on imported labor in many cases but to be sure that the system of imported labor fan remain a community asset for economic growth, it is equally important that the laws and regulations be followed. That requires supervision and enforcement by the appropriate governmen agencies.
Q: Immigration – enforcement and reform – is a hot topic across the U.S. mainland right now. What are our thoughts on the controversy there?
A: The controversy in the U.S. is cause by poor management of the immigration issues by the government of the U.S. As I just mentioned, it is my opinion that vigorous enforcement of the laws and regulations is essential to a successfully immigration system. Since the U.S. failed to enforce the laws in the 1990s, there is now a large illegal population in the U.S. and there is lack of trust that the government will enforce the law. It is the essence of nationality that a country can control its borders and while there are many good aspects to immigration and makes it impossible to rationally discuss immigration policy. As a result, the U.S. Immigration system is deadlocked with no prospect for a solution in the near future.
Q: What are your thoughts on the federalization of immigration in the NMI? Was it warranted? Has it been implemented correctly? What new problems has it created, if any?
A: The federalization of the NMI, somewaht like the problems in the U.S., mainland, is a consequence of poor policies and failed enforcement. The result is, and will be, an economic problem and a humanitarian problem for years to come. I do not see the current system as workable. For example, in Guam a hotel will have less than 5% foreign work force while in the NMI many hotels have more than 90% foreign work force. Most of these positions will not qualify for U.S. visa. And the NMI is the process of coming into compliance with U.S. labor laws and wages, the implementation of which is inconsistent with the way business has been done there before federalization. I would expect that some time in the future the U.S. government will change the law to remedy some of the harsher aspects of federalization. But again, the deadlock in Washington makes a rational discussion difficult.
Q: During the last decade, concerns about terrorism have impacted immigration policy. In the U.S. striking the right balance between keeping out the people we don’t want and letting in the ones we do?
A: In immigration, there is a general rule – the less immigration, the more security; the more immigration, the greater the business and economic benefits. Therefore, the two are in conflict. With the attack of 9/11, the trend shifted to security and therefore the benefits from immigration decreased as tourists, business visitors and students found it difficult to enter the U.S. Businesses such as hotels and airlines suffered. This problem has been compounded by the economic downturn of 2008 which empowered anti-immigrant groups who were concerned about the loss of jobs although local dislocation may occur. I believe that Bill Gates of Microsoft testified before the Congress that for every foreign engineer he hired, he added seven U.S. workers. In a recent Harvard Business School study, one of the three reasons by businesses left the U.S. and outsourced production to other countries was that they could not get the talent they needed in the U.S. due to restrictive immigration policies.
Q: Most of your training was in criminal law, though your practice seems to focus on immigration law. Does that reflect a decision that you made about your practice? If so, why did you make it?
A: My background is actually quite varied. I started in business litigation, then got into legal services, both criminal defense and representing the poor. My background made it easy to move into immigration in the 1980s because family-based immigration, like legal services work, involves working with families, which I like very much. And immigration is a well-defined are of the law arising from specific laws and regulations and the same is true of criminal law. So in the past I tried to master the Guam criminal codes and now I spend my time with the Immigration and Nationality Act. I got into immigration because my old partner, Clifford Lau, was an immigration specialist. When he left for the U.S., my next partner was Larry Gallagher who was so good at immigration that the U.S. government hired him and made him an immigration judge. After Larry left, I decided it would be best that I took over the part of the practice and that has been that way it has been since, although I still try and do other areas of the law as well.
Q: Two years ago, you restructured your firm. Please tell us about that and how it is working out?
A: We continue to be very busy and we have added another lawyer, Shane Black.
Q: What changes in Guam’s legal profession have you seen during the nearly four decades you’ve been practicing law here?
A: Guam has been a great place to practice law. It is small enough so that you know most of the other attorneys. I am getting to be one of the older members of the bar and when I started there were very few lawyers. But the younger attorneys bring new energy and ideas to the practice of law. Back in pre-Internet days, it was a different world. When I came in 1974 I asked for a copy of the Guam Code and there were none to be found. I heard of person who a copy and I went to her office immediately and bought her set. When I was public defender I defended a person who was convicted under a law that had been repealed, but since there were no updates to the Guam code, no one knew of the change. I happened to be in the Attorney General’s office talking about the case and the law clerk told me that law been repealed.