Commonwealth of the Northern Mariana Islands
Pending Legislation Would Apply U.S. Immigration Law to the CNMI with a Transition Period Gao ID: GAO-08-466 March 28, 2008The Commonwealth of the Northern Mariana Islands (CNMI) is subject to most U.S. laws but, under the terms of its 1976 covenant with the United States, administers its own immigration system. It has applied this flexibility to admit substantial numbers of foreign workers, in addition to admitting tourists and foreign investors. The covenant grants Congress the right to apply federal immigration law to the CNMI. On December 11, 2007, the House of Representatives passed legislation applying U.S. immigration law to the CNMI; as of report issuance, this legislation was pending in the Senate. If passed, it will amend the covenant and will apply federal immigration law to the CNMI 1 year after the legislation's enactment, subject to a transition period that begins 1 year after enactment but may be delayed 180 days. GAO was asked to review key provisions of the pending legislation, current U.S. immigration law, and current CNMI immigration law, particularly regarding (1) foreign workers, (2) tourists, and (3) foreign investors. The Departments of Homeland Security and the Interior generally agreed with the findings in this report, and the Department of Labor provided no comments. The CNMI government disagreed with some key findings related to GAO's interpretation of the legislation. GAO continues to interpret the legislation as stated in this report.
The pending legislation applies U.S. immigration law to the CNMI and provides federal agencies some flexibility in preserving the CNMI's access to workers, tourists, and foreign investors as it transitions to a federal system. However, without implementing regulations, key details remain unknown. During the transition period, foreign workers may be admitted to the CNMI through exemptions from caps that restrict the number of U.S. visas for nonimmigrant workers. Workers not otherwise eligible under federal law may be admitted through a CNMI-only permit program, which may be extended indefinitely for up to 5 years at a time. Current workers who do not obtain U.S. immigration status may continue to live and work in the CNMI for a limited time. During and after the transition period, CNMI employers also can petition for nonimmigrant and employment-based permanent immigration status for workers under the same procedures as other U.S. employers. However, access to foreign workers in low-skill jobs will be limited after the end of the transition period in 2013 or 2014 and after any extensions of the CNMI-only permit program, because the demand for certain U.S. nonimmigrant worker visas recently has exceeded the supply and because no nonimmigrant visas are available for workers in continuous low-skill positions. While fees for the CNMI-only work permit will be determined by federal regulations and are unknown, the current fees for U.S. foreign worker permits that would apply after the end of the transition period and any extensions range higher than the CNMI's current foreign worker permit fees. The pending legislation establishes a joint visa waiver program by adding the CNMI to an existing Guam visa waiver program. The program exempts tourism and business visitors from certain countries to the CNMI and Guam from the standard U.S. visa documentation requirements. Citizens of countries not included in the CNMI-Guam or other U.S. visa waiver programs may apply for U.S. visitor visas, which require in-person applications and higher fees than the CNMI currently assesses. Changes in tourists' access to the CNMI will depend on the countries included in the CNMI-Guam visa waiver program. Until the joint program's implementing regulations are established, GAO cannot determine whether the program will be more or less restrictive than the current CNMI and Guam waiver programs. After federal immigration law applies, new CNMI foreign investors must meet federal law's more stringent investment requirements to obtain immigrant investor status, which allows investors to petition for U.S. permanent resident status that is currently unavailable in the CNMI. New investors also could apply for nonimmigrant treaty investor status. In addition, the pending legislation allows current CNMI foreign investors to convert to CNMI-only nonimmigrant treaty investors during the transition period.
GAO-08-466, Commonwealth of the Northern Mariana Islands: Pending Legislation Would Apply U.S. Immigration Law to the CNMI with a Transition Period
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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
March 2008:
Commonwealth of the Northern Mariana Islands:
Pending Legislation Would Apply U.S. Immigration Law to the CNMI with a
Transition Period:
Commonwealth of the Northern Mariana Islands:
GAO-08-466:
GAO Highlights:
Highlights of GAO-08-466, a report to congressional committees.
Why GAO Did This Study:
The Commonwealth of the Northern Mariana Islands (CNMI) is subject to
most U.S. laws but, under the terms of its 1976 covenant with the
United States, administers its own immigration system. It has applied
this flexibility to admit substantial numbers of foreign workers, in
addition to admitting tourists and foreign investors.
The covenant grants Congress the right to apply federal immigration law
to the CNMI. On December 11, 2007, the House of Representatives passed
legislation applying U.S. immigration law to the CNMI; as of report
issuance, this legislation was pending in the Senate. If passed, it
will amend the covenant and will apply federal immigration law to the
CNMI 1 year after the legislation‘s enactment, subject to a transition
period that begins 1 year after enactment but may be delayed 180 days.
GAO was asked to review key provisions of the pending legislation,
current U.S. immigration law, and current CNMI immigration law,
particularly regarding (1) foreign workers, (2) tourists, and (3)
foreign investors.
The Departments of Homeland Security and the Interior generally agreed
with the findings in this report, and the Department of Labor provided
no comments. The CNMI government disagreed with some key findings
related to GAO‘s interpretation of the legislation. GAO continues to
interpret the legislation as stated in this report.
What GAO Found:
The pending legislation applies U.S. immigration law to the CNMI and
provides federal agencies some flexibility in preserving the CNMI‘s
access to workers, tourists, and foreign investors as it transitions to
a federal system. However, without implementing regulations, key
details remain unknown.
* Foreign workers. During the transition period, foreign workers may be
admitted to the CNMI through exemptions from caps that restrict the
number of U.S. visas for nonimmigrant workers. Workers not otherwise
eligible under federal law may be admitted through a CNMI-only permit
program, which may be extended indefinitely for up to 5 years at a
time. Current workers who do not obtain U.S. immigration status may
continue to live and work in the CNMI for a limited time. During and
after the transition period, CNMI employers also can petition for
nonimmigrant and employment-based permanent immigration status for
workers under the same procedures as other U.S. employers. However,
access to foreign workers in low-skill jobs will be limited after the
end of the transition period in 2013 or 2014 and after any extensions
of the CNMI-only permit program, because the demand for certain U.S.
nonimmigrant worker visas recently has exceeded the supply and because
no nonimmigrant visas are available for workers in continuous low-skill
positions. While fees for the CNMI-only work permit will be determined
by federal regulations and are unknown, the current fees for U.S.
foreign worker permits that would apply after the end of the transition
period and any extensions range higher than the CNMI‘s current foreign
worker permit fees.
* Tourists. The pending legislation establishes a joint visa waiver
program by adding the CNMI to an existing Guam visa waiver program. The
program exempts tourism and business visitors from certain countries to
the CNMI and Guam from the standard U.S. visa documentation
requirements. Citizens of countries not included in the CNMI-Guam or
other U.S. visa waiver programs may apply for U.S. visitor visas, which
require in-person applications and higher fees than the CNMI currently
assesses. Changes in tourists‘ access to the CNMI will depend on the
countries included in the CNMI-Guam visa waiver program. Until the
joint program‘s implementing regulations are established, GAO cannot
determine whether the program will be more or less restrictive than the
current CNMI and Guam waiver programs.
* Foreign investors. After federal immigration law applies, new CNMI
foreign investors must meet federal law‘s more stringent investment
requirements to obtain immigrant investor status, which allows
investors to petition for U.S. permanent resident status that is
currently unavailable in the CNMI. New investors also could apply for
nonimmigrant treaty investor status. In addition, the pending
legislation allows current CNMI foreign investors to convert to CNMI-
only nonimmigrant treaty investors during the transition period.
To view the full product, including the scope and methodology, click on
[hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-08-466]. For more
information, contact David Gootnick at (202) 512-3149 or
gootnickd@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Pending Legislation Provisions for Foreign Workers:
Pending Legislation Provisions for Tourists:
Pending Legislation Provisions for Foreign Investors:
Agency Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: U.S. Nonimmigrant Classes of Admission:
Appendix III: U.S. and CNMI Fees for Foreign Workers, Tourists, and
Foreign Investors:
Appendix IV: Country Participation in Current Waiver Programs in the
United States, the CNMI, and Guam:
Appendix V: Northern Mariana Islands Immigration, Security, and Labor
Act (H.R. 3079):
Appendix VI: Comments from the Commonwealth of the Northern Mariana
Islands:
Appendix VII: Comments from the U.S. Department of Homeland Security:
Appendix VIII: Comments from the U.S. Department of the Interior:
Appendix IX: GAO Contact and Staff Acknowledgments:
Abbreviations:
CNMI: Commonwealth of the Northern Mariana Islands DHSU.S. Department
of Homeland Security:
DOI: U.S. Department of the Interior:
DOL: U.S. Department of Labor:
INA: U.S. Immigration and Nationality Act:
United States Government Accountability Office:
Washington, DC 20548:
March 28, 2008:
The Honorable Jeff Bingaman:
Chairman:
The Honorable Pete V. Domenici:
Ranking Member:
Committee on Energy and Natural Resources:
United States Senate:
The Honorable Nick J. Rahall II:
Chairman:
The Honorable Don Young:
Ranking Member:
Committee on Natural Resources:
House of Representatives:
The Honorable Donna M. Christensen:
Chairwoman:
The Honorable Luis G. Fortuno:
Ranking Member:
Subcommittee on Insular Affairs:
Committee on Natural Resources:
House of Representatives:
The Commonwealth of the Northern Mariana Islands (CNMI) is subject to
most U.S. laws, and the United States has complete responsibility and
authority for CNMI defense and foreign affairs. However, under the
terms of its 1976 covenant with the United States,[Footnote 1] the CNMI
administers its own immigration system. Since 1978, it has applied this
flexibility to admit substantial numbers of foreign workers[Footnote 2]
from other countries, particularly China and the Philippines. In 2005,
foreign workers represented two-thirds of all CNMI workers and
outnumbered U.S. citizens in most industries, including the garment
manufacturing and tourism sectors, which have been central to the
CNMI's economy. The CNMI also admits tourists under its own entry
permit and entry permit waiver programs, and it provides various types
of admission to foreign investors.
Under the terms of the U.S.-CNMI covenant, Congress has the right to
apply federal immigration law without the consent of the CNMI
government. On December 11, 2007, the House of Representatives passed
legislation applying U.S. immigration law to the CNMI; as of report
issuance, this legislation was pending in the Senate.[Footnote 3] If
passed, the legislation will amend the covenant to establish federal
control of CNMI immigration, applying U.S. immigration law[Footnote 4]
to the CNMI 1 year after the date of enactment with several exceptions
affecting foreign workers and investors during a transition
period[Footnote 5] ending in 2013 under H.R. 3079, passed by the House,
or in 2014 under S. 2739, pending in the Senate. In addition, the U.S.
Secretary of Labor will have the authority to extend indefinitely, for
up to 5 years at a time, a transition period program providing CNMI-
only work permits. Further, the legislation amends U.S. immigration law
to add the CNMI to an existing visa waiver program for Guam
visitors.[Footnote 6] Any changes to U.S. immigration law enacted by
the Congress after the enactment of this legislation would also be
applicable to the CNMI.
The stated intent of the pending legislation is to ensure effective
border control procedures and protect national and homeland security,
while minimizing the potential adverse economic and fiscal effects of
phasing out the CNMI's own foreign worker program and maximizing the
potential for economic and business growth. You asked us to review key
provisions of the pending legislation, current U.S. immigration law,
and current CNMI immigration law, particularly regarding (1) foreign
workers, (2) tourists, and (3) foreign investors. We plan to issue a
separate report examining the potential impact of the pending
legislation on the CNMI's economy and labor market.
For this report, we reviewed relevant CNMI immigration and labor laws,
current U.S. immigration law, and pending legislation that would apply
U.S. immigration law to the CNMI. To examine CNMI immigration laws, we
reviewed portions of the following CNMI laws relevant to this report:
the Nonresident Workers Act, the Northern Mariana Islands
Administrative Code, the Commonwealth Employment Act of 2007, and
related immigration and labor laws and agreements. We also conducted a
site visit in the CNMI and interviewed officials in the CNMI Office of
the Governor, the CNMI Department of Immigration, the CNMI Department
of Labor, and the Marianas Visitors Authority. We conducted additional
interviews with CNMI officials in Washington, D.C. To examine U.S.
immigration law, we reviewed the U.S. Immigration and Nationality Act
(INA)[Footnote 7] and related regulations and interviewed officials
from the U.S. Departments of Homeland Security (DHS) and the Interior
(DOI). We did not review the extent to which CNMI or U.S. laws were
properly enforced or implemented. We also reviewed proposed legislation
applying U.S. immigration law to the CNMI, including H.R. 3079, passed
by the House of Representatives, and S. 2739, pending in the Senate. We
conducted this performance audit from December 2007 to March 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives. See appendix I for further
details about our methodology.
Results in Brief:
The pending legislation applies U.S. immigration law to the CNMI, and
exceptions to U.S. law provide federal agencies with some flexibility
in preserving the CNMI's access to workers, tourists, and foreign
investors as it transitions to the federal system. However, without
regulations implementing the pending legislation, key details related
to foreign workers, tourists, and foreign investors remain unknown.
* Foreign workers. During the pending legislation's transition period,
foreign workers may be admitted to the CNMI through exemptions from
caps that restrict the number of U.S. nonimmigrant visas available for
temporary workers. Workers not otherwise eligible under federal
immigration law may be admitted through a CNMI-only permit program,
which may be extended indefinitely for up to 5 years at a time by the
U.S. Secretary of Labor. In addition, current workers who do not obtain
U.S. immigration status may continue to live and work in the CNMI for a
limited time. During and after the transition period, CNMI employers
also can petition for nonimmigrant status and employment-based
permanent immigration status for workers under the same procedures as
other U.S. employers. However, access to foreign workers in low-skill
jobs will be limited after the end of the transition period in 2013 or
2014 and after any extensions of the CNMI-only permit program, because
the demand for certain U.S. nonimmigrant worker visas has exceeded the
capped supply in recent years and because there are no nonimmigrant
visas available for workers in continuous low-skill positions. The
pending legislation also preempts all CNMI laws related to the
admission[Footnote 8] or removal of aliens, which includes all CNMI
immigration laws and may include some CNMI labor laws. Fees for the
CNMI-only work permit will be determined by federal regulations and are
currently not available. However, the current fees for U.S. foreign
worker permits that would apply after the end of the transition period
and any extensions range higher than the CNMI's current permit fees for
foreign workers.
* Tourists. The pending legislation establishes a joint visa waiver
program by adding the CNMI to an existing Guam visa waiver program. The
program exempts tourism and business visitors from certain countries
who are traveling to the CNMI and Guam from the standard U.S. visa
documentation requirements. Citizens of countries who do not qualify
for entry under the CNMI-Guam or other U.S. visa waiver programs may
apply for U.S. visitor visas for business or pleasure, which require in-
person applications and higher fees than the CNMI currently assesses.
Changes in tourists' access to the CNMI will depend on the countries
included in the CNMI-Guam visa waiver program. Until the regulations
implementing the new visa waiver program are established, we cannot
determine whether the joint program will be more or less restrictive
than the current CNMI and Guam waiver programs.
* Foreign investors. After federal immigration law applies, new CNMI
foreign investors must meet federal law's more stringent investment
requirements to obtain immigrant investor status, which allows
investors to petition for U.S. permanent immigration status that is
currently unavailable in the CNMI. New investors also could apply for
nonimmigrant treaty investor status. In addition, the pending
legislation allows current CNMI foreign investors to convert to CNMI-
only nonimmigrant treaty investors during the transition period. It
also eliminates the CNMI's permit programs for retiree investors and
long-term business travelers and allows these and other business
travelers to apply to visit the CNMI under a visitor visa or other
categories available under federal immigration law.
We received written comments on the draft report from the Department of
Homeland Security, the Department of the Interior, and the CNMI
government, which are reprinted in appendixes VI, VII, and VIII. We
also received technical comments from the Department of Homeland
Security, the Department of the Interior, and the CNMI government. We
incorporated their comments as appropriate. The Department of Labor had
no comments. We also provided a draft for technical review to the U.S.
Department of State, and State had no comments. The Department of
Homeland Security generally agreed with our findings regarding the
pending legislation. The Department of the Interior generally agreed
with our findings, saying that the report presents a fair and objective
study on the effect of the pending legislation. The CNMI government
disagreed with our analysis of the legislation in three particular
areas. First, the CNMI government asserted that the legislation allows
the exemptions from the numerical limitation on H visas to be extended
beyond the end of the transition period in 2013. We continue to
interpret the legislation to allow for an extension of the CNMI-only
work permit program beyond 2013 at the discretion of the Secretary of
Labor but not to allow for an extension beyond 2013 of other provisions
of the transition program, including the exemptions from the numerical
limitations on H visas.[Footnote 9] Second, the CNMI disagreed with our
interpretation that the H visas issued under the cap exemptions are a
separate process from the CNMI-only work permit program. According to
the CNMI's interpretation, employers of workers admitted under H visas
would have to obtain a CNMI-only work permit. We continue to interpret
the H visa cap exemptions and the CNMI-only permit program as separate
processes. Third, the CNMI commented that we should not base any
further work regarding the impact of the legislation on the CNMI
economy on a single legal interpretation. While the legislation is
highly technical, we believe we have provided a reasonable, objective
interpretation of the legislation that is consistent with the
implementing agencies' views. As such, we believe our interpretation of
the legislation can be used appropriately as the basis of further work
on the potential economic impact of the legislation, while
acknowledging the range of possible federal decisions regarding
implementation of the legislation. Our detailed evaluation of the CNMI
government's comments is included in appendix VI.
Background:
The CNMI consists of 14 islands in the Pacific Ocean, 3 of which are
substantially inhabited, just north of Guam and about 5,500 miles from
the U.S. mainland. In 2005, more than two-thirds of the CNMI's workers
were non-U.S. citizens (noncitizens), who were predominantly Chinese or
Filipino. Foreign workers make up more than two-thirds of the workforce
for the CNMI's two major industries, garment manufacturing and tourism.
Noncitizens also invest in the CNMI, contributing entrepreneurial
skills and capital and owning businesses.
CNMI Economy:
In 2007, we reported that the CNMI's economic potential was
constrained, in part, by its lack of diversification and faced serious
challenges owing to declines in garment manufacturing and
tourism.[Footnote 10] Among factors affecting the garment industry,
liberalization in trade law in the early 2000s reduced the CNMI's trade
advantage relative to low-wage countries such as China, causing CNMI
exports to fall. The CNMI's tourism industry has been subject to
fluctuations due to Asian economic trends in the late 1990s, as well as
recent changes in airline practices. Until 2007, the CNMI's workforce
was subject to a minimum wage set by the CNMI government that was lower
than the U.S. mainland's; however, Congress enacted a law in 2007 that
applied the U.S. minimum wage to the CNMI and will gradually increase
the CNMI minimum wage until it meets federal minimum wage
requirements.[Footnote 11]
CNMI-U.S. Covenant:
In 1976, after almost 30 years as a trust territory of the United
States,[Footnote 12] the District of the Mariana Islands entered into a
covenant with the United States establishing the island territory's
status as a self-governing commonwealth in political union with the
United States.[Footnote 13] The covenant grants CNMI citizens the right
of self-governance over internal affairs and grants the United States
complete responsibility and authority for matters relating to foreign
affairs and defense affecting the CNMI. Under the covenant, the U.S.
government may enact legislation in accordance with its constitutional
processes that will be applicable to the CNMI.[Footnote 14] To respect
the CNMI's right of self-government under the covenant, certain
provisions of the covenant may be modified only with the consent of
both the federal government and the CNMI government. These provisions
include those relating to the political relationship between the United
States and the CNMI; the CNMI Constitution, citizenship, and
nationality; the application of the U.S. Constitution to the CNMI; and
the land ownership rights of CNMI citizens. Most other provisions of
the CNMI covenant may be modified by the federal government without the
consent of the CNMI government, and local CNMI laws that were not
inconsistent with federal laws or treaties of the United States when
the covenant was enacted remain in effect. In addition, international
treaty obligations between the United States and other countries apply
to the CNMI through the covenant.
The covenant initially made many federal laws applicable to the CNMI,
including laws that provide federal services and financial assistance
programs.[Footnote 15] The covenant preserved the CNMI's exemption from
certain federal laws that had previously been inapplicable to the Trust
Territory of the Pacific Islands, including federal immigration laws
with certain limited exceptions[Footnote 16] and certain federal
minimum wage provisions. However, under the terms of the covenant, the
federal government has the right to apply federal law in these exempted
areas without the consent of the CNMI government.
Current CNMI Immigration Law:
CNMI immigration law currently includes the following provisions for
foreign workers, tourists, and foreign investors:
* Foreign workers. The CNMI currently retains legislative authority
over most immigration laws. While it does not have embassies or issue
visas in other countries, it regulates entry to the CNMI through a
permit system. The CNMI recently passed a bill that establishes new
immigration and labor rules for foreign workers in the CNMI, as of
January 1, 2008. These rules continue to provide for, among other
things, a nonresident worker entry permit for noncitizens entering the
CNMI whom the CNMI Department of Labor has certified as eligible for
temporary work. Employers seeking work permits for their temporary
workers must be able to demonstrate that they advertised the position
and were unable to find a qualified CNMI resident, with some exemptions
available.[Footnote 17] CNMI law also contains an employment preference
for citizens and permanent residents, requiring that most employers in
the CNMI hire at least 20 percent of their employees from these groups,
increasing in phases to 30 percent by 2013. Employers with fewer than
five employees are exempt from this requirement, and the CNMI Secretary
of Labor may grant waivers for construction projects of limited
duration and for light manufacturing.[Footnote 18] CNMI law currently
includes a general moratorium on hiring foreign workers, under which
employers can renew contracts for foreign workers and can replace
current workers with transfers for certain occupations but cannot add
to the total number of foreign workers employed in the CNMI.[Footnote
19] Additional exemptions from the moratorium exist for visitor
industry supporting services, certain light manufacturing operations,
employers who have hired over 35 percent of their employees from CNMI
citizens, and major new developments that benefit the CNMI economy. The
moratorium for the tourism industry expired on January 1, 2008; after a
gradual phase-out applicable to other industries ends in 2011, all
employers will be able to hire foreign workers.
The CNMI has developed related regulations, effective February 1, 2008,
for hiring and admitting foreign workers and for their subsequent
employment. For entry into the CNMI, a foreign worker must provide
certain documents to the CNMI immigration authority and sign a form in
the worker's native language attesting to compliance with CNMI
immigration requirements. The CNMI Director of Labor must approve the
employment contract and the worker's right to be present in the CNMI.
Foreign workers must attend an orientation session upon admission into
the CNMI and must carry a valid entry permit with them at all times.
Under the standards for employment, employers in the CNMI are required
to provide foreign workers with medical insurance, and they may provide
additional benefits, such as housing, food, and transportation. CNMI
regulations also contain specific requirements for the renewal,
nonrenewal, and termination of employment contracts for foreign
workers.
Compared with previous CNMI law regarding foreign workers, the new law
reduces the time for filing labor complaints; requires that almost all
CNMI government employees be U.S. citizens or permanent residents; and
adds a requirement that most foreign workers leave the CNMI for at
least 6 consecutive months during every 3.5 year period, among other
changes. Immediate family members of foreign national workers may enter
the CNMI for the term of the approved employment contract after the
foreign worker has been in the CNMI for 90 days.
CNMI employers do not currently have the option to petition for
immigrant status of workers under CNMI law. While U.S. lawful permanent
residents may work in the CNMI, time spent in the CNMI generally does
not count toward the time in the United States required to attain U.S.
citizenship. Residence in the CNMI only counts as residence for
naturalization purposes for immediate relatives of U.S. citizens; other
lawful permanent residents residing in the CNMI currently do not accrue
time for naturalization purposes.
* Tourists. According to the CNMI government, tourists from certain
countries may enter the CNMI as part of its entry permit waiver
program. The program allows eligible participants to enter for tourism
or business for up to 90 days without a visitor entry permit.
Noncitizens who are ineligible for a waiver may apply for a visitor
entry permit, which is valid for a single entry for 30 days. Visitors
entering the CNMI with a visitor entry permit must have a valid
passport and a verified round-trip itinerary and must have either a
CNMI sponsor or acceptable proof of the financial means to support the
visit. According to the CNMI government, information on visitor permit
applicants from China is collected and reviewed by the CNMI under the
Electronic Visitor Entry Permit Program. No other countries have asked
to participate in the program. In addition, Japanese, Korean, and
certain other tourists ages 55 and above may enter for up to 90 days
under a comity entry permit for citizens of countries that provide a
comparable permit to CNMI residents.
* Foreign investors. The CNMI currently has a foreign investor permit
available for an indefinite period of time for individuals who submit
evidence of good moral character and who meet all of the requirements
of the foreign investment certificate. Foreign investors in the CNMI
must maintain an investment of at least $250,000 by an individual in a
single investment or $100,000 per person in an aggregate investment
exceeding $2 million.[Footnote 20] The CNMI also offers a retiree
investor entry permit requiring a minimum investment of $100,000 in
residential property (or $75,000 on the islands of Tinian or Rota) by
an applicant 55 years or older. In addition, the CNMI's long-term
business entry permit for holders of a long-term business certificate
is valid for 2 years and requires an investment of at least $150,000 in
a public organization or at least $250,000 in a private investment.
They also must provide a security deposit of $25,000. The CNMI also
offers a regular-term business entry permit. Immediate relatives of
aliens may obtain an entry permit if they satisfy other requirements of
CNMI law and can post a cash bond in an amount of twice the cost of
return travel.
Current U.S. Immigration Law:
Noncitizens may apply for entry into the United States as either
immigrants intending to reside permanently or as nonimmigrants. The
immigrant categories include various employment-based categories for
admission to the United States as lawful permanent residents, who are
permitted to work in the United States as part of their immigration
status. The nonimmigrant categories for temporary admission include
diplomats, visitors for business or pleasure, treaty investors,
students, journalists, teachers, fiancés or fiancées of U.S. citizens,
extraordinary artists or athletes, and workers who meet certain
requirements, among others.[Footnote 21] As a general rule,
nonimmigrants temporarily admitted for an employment-based purpose are
authorized to work only in the authorized position; lawful permanent
residents and other immigrants may work for any employer. See appendix
II for a list of U.S. nonimmigrant classes of admission. Standard U.S.
fees for visas and immigrant petitions include DHS petition fees,
Department of State visa fees, and for some foreign workers, Department
of Labor fees for labor certification.
* Foreign workers. The INA includes several types of visas for
nonimmigrant workers and their families (H visas) and sets caps for two
of these types of visas. In particular, the H-1 category includes high-
skill workers coming to the United States temporarily to perform in
specialty occupations.[Footnote 22] H-1B visa holders may be admitted
for an initial period of 3 years that can be renewed for a total of 6
years, and they can work in employment of varied duration, depending on
the terms of the visa.[Footnote 23] The H-2 category includes H-2A
visas for foreign workers providing temporary or seasonal agricultural
labor services,[Footnote 24] as well as H-2B visas for other temporary
workers who can perform short-term service or labor in a job for which
unemployed U.S. workers cannot be found.[Footnote 25] H-2B visa holders
may be admitted for an initial period of 1 year. The H-3 category
exists for workers with residence in a foreign country who are coming
to the United States temporarily as trainees in a program not designed
primarily to provide productive employment or as participants in a
special education exchange visitor program. H-4 visas provide entry,
but not work authorization, to spouses and children of H visa holders.
There is no H visa for workers performing continuous, rather than
temporary, work who do not meet the high-skill requirements of the H-1
visas. In addition, both H-1B and H-2B visas are capped--only 65,000 H-
1B visa holders and 66,000 H-2B first-time visa holders may be issued
visas in each fiscal year.[Footnote 26]
Other nonimmigrant visas available for foreign workers include, among
others, L visas for intracompany transfers; O visas for individuals of
extraordinary ability or achievement; P visas for artists, athletes,
and entertainers; and R visas for religious workers. In addition to
nonimmigrant visas, the INA contains permanent employer-sponsored
immigrant visas for individuals seeking to reside permanently in the
United States.
* Tourists. Under federal law, visitors may come to the United States
for business on a B-1 visa, for pleasure on a B-2 visa, or for business
or pleasure on a combined B-1-B-2 visa. Visitors with B visas are
normally admitted for a minimum of 6 months, but not more than 1 year.
B visa holders generally may not enroll in a course of study while in
the United States on a B visa. Citizens of 27 countries may participate
in the U.S. Visa Waiver Program, which allows stays of up to 90 days
for business or pleasure in the United States without obtaining a
nonimmigrant visa if they possess a valid passport, are determined by
DHS not to be a threat to the United States, have a round-trip ticket,
and execute the proper immigration forms, among other
requirements.[Footnote 27] In addition to the countries under the U.S.
Visa Waiver Program, federal law allows nationals of 9 additional
countries to visit Guam in B status for up to 15 days without obtaining
a visa.[Footnote 28]
* Foreign investors. The INA allows foreign investors to enter the
United States as nonimmigrants under treaty investor status with an E-
2 visa. Treaty investors must invest a substantial amount of capital in
a bona fide enterprise in the United States,[Footnote 29] must be
seeking entry solely to develop and direct the enterprise, and must
intend to depart the United States when their treaty investor status
ends. Treaty investors must be nationals of a country with which the
United States has a treaty of friendship, commerce, or navigation, and
must be entering the United States pursuant to the provisions of the
treaty. E-2 status is valid for up to 2 years and may be extended in 2-
year increments. Spouses or children may apply to join foreign
investors under the E-2 visa, and spouses are authorized to work under
an E-2 visa. The INA also allows foreign investors to seek permanent
immigrant visas for employment-creation purposes. Individuals seeking
immigrant visas have to meet higher thresholds than do E-2 visa
holders, including the general requirement to establish a business that
creates at least 10 full-time jobs and an investment of at least $1
million.
Pending U.S. Legislation:
The stated intent of the pending legislation is to ensure, through the
application of federal immigration law to the CNMI, that effective
border control procedures are implemented and observed and that
national and homeland security issues are properly addressed. The
legislation states that it includes special provisions to allow for the
orderly phasing out of the CNMI's foreign worker program and the
orderly phasing in of federal immigration responsibilities in the CNMI.
The legislation also states that it intends to minimize the potential
adverse economic and fiscal effects of phasing out the CNMI's own
foreign worker program and to maximize the CNMI's potential for future
economic and business growth.
In requiring the CNMI to be subject to federal immigration law, the
pending legislation replaces all CNMI laws related to the admission and
removal of aliens, including the CNMI's provisions of immigration law
regarding nonresident contract workers. Federal agencies will be
responsible for implementing and enforcing U.S. immigration law in the
CNMI, including establishing offices and staff. Other CNMI laws related
to admission and removal of aliens would also be preempted, which could
include some local CNMI labor laws. However, all local labor and other
laws not related to the admission or removal of aliens would remain in
effect.
H.R. 3079, passed by the House, and S. 2739, pending in the Senate,
include the same provisions applying U.S. immigration law to the CNMI
but contain several exceptions. First, the transition period ends in
2013 under the House bill and in 2014 under S. 2739. Second, S. 2739
adds the Secretary of Defense to those with whom the U.S. Secretary of
Labor must consult in determining whether to extend the CNMI-only work
permit program. In addition, S. 2739 contains the text of other bills
unrelated to immigration law in the CNMI.
The legislation also includes several provisions related to Guam, such
as the expansion of options for nonimmigrants to enter and work in
Guam. Guam is an unincorporated U.S. territory south of the CNMI in the
western Pacific. Under the legislation, the exemption for the CNMI from
the numerical limitations for H visas until 2013 or 2014 also applies
to Guam. The legislation also amends U.S. immigration law to add the
CNMI to Guam's current visa waiver program to create a combined CNMI
and Guam visa waiver program, under which DHS would promulgate a new
list of countries that would be eligible for a Guam or CNMI visa
waiver.
Transition Period in Pending U.S. Legislation:
The pending legislation applies provisions of federal immigration law
to the CNMI one year after the legislation's enactment, subject to a
transition period that begins 1 year after enactment and ends on
December 31, 2013, under H.R. 3079, passed by the House, and on
December 31, 2014, under S. 2739, pending in the Senate. The Secretary
of Homeland Security has sole discretion to delay the start of the
transition period for up to 180 days, and the Secretary of Labor has
the authority to extend indefinitely a provision related to the CNMI-
only work permit program for up to 5 years at a time. Among other
provisions, the legislation prohibits the CNMI government from allowing
an increase in the total number of foreign workers who are present in
the CNMI between the legislation's enactment and the effective date of
the transition period. Also, the legislation states that CNMI-only
visas are not valid for entry into other parts of the United States and
that aliens leaving the CNMI must be rescreened for entry into the
continental United States.
During the transition period, the Secretary of Homeland Security, in
consultation with the Secretaries of the Interior, Labor, and State,
has the responsibility to establish, administer, and enforce a
transition program to regulate immigration in the CNMI. Each agency
must issue regulations and implement agreements with the other agencies
to identify and assign their respective duties for timely
implementation of the transition program. The agreements must address
procedures to ensure that CNMI employers have access to adequate labor
and that tourists, students, retirees, and other visitors have access
to the CNMI without unnecessary obstacles. The agreements also may
allocate funding among the respective agencies tasked with related
responsibilities.
The Secretary of Homeland Security is granted significant discretion
and flexibility during the transition period, though DHS is required,
in some circumstances, to consult with other federal agencies or the
CNMI on its decisions. Implementation decisions by DHS will determine
the extent to which CNMI local laws and authority will be affected. Key
rules and other aspects of the transition program require further
development through regulation. In addition, federal agencies must
determine how to implement and enforce the application of federal
immigration law in the CNMI, including establishing offices, hiring
staff, and implementing screening and enforcement systems.
Other Key Provisions of Pending Legislation:
Other key provisions of the pending legislation establish the position
of a nonvoting CNMI delegate to the House of Representatives, require
several studies on the legislation's implementation, transfer
responsibility for refugee protection in the CNMI to the federal
government, and relate to lawful permanent resident status.
* The pending legislation establishes the position of a nonvoting CNMI
delegate in the House of Representatives, to be filled by the Resident
Representative to the United States, a position authorized by the CNMI
covenant. The delegate must be elected at large by a plurality of votes
at the federal general election of 2008 and at federal general
elections every second year thereafter.[Footnote 30] The delegate will
not be allowed to vote on legislation before the full House of
Representatives but may be able to participate in committee processes
at the discretion of Congress.
* The pending legislation also requires several studies on the
implementation of the legislation to be conducted by various federal
agencies and other entities and submitted to Congress. The required
reports include an administration report on the economic conditions in
the CNMI, a DHS study on federal personnel and resource requirements,
and a GAO assessment of the implementation of the legislation and its
economic impact to be delivered no later than 2 years after enactment.
DOI must also consult with DHS and the CNMI Governor and report to
Congress on the status of the nonresident guest-worker population in
the CNMI, including recommendations on whether Congress should consider
permitting lawfully admitted nonresident workers to apply for long-term
immigration status under the INA. Further, the CNMI Governor may
provide annual reports to the President on the implementation of this
legislation and any future recommendations, which will be forwarded to
Congress after internal review.
* The pending legislation federalizes the CNMI's responsibility for
refugee protection, authorizing funding by DOI and designating DHS as
the "protection consultant" for the CNMI.[Footnote 31] The CNMI is
currently responsible for implementing U.S. obligations under
international treaties that protect refugees from persecution and
torture, and the legislation would transfer these responsibilities
directly to the federal government.[Footnote 32] The legislation also
allows aliens present in the CNMI to apply for discretionary asylum at
the end of the transition period.
* In addition, other provisions of the bill would affect aspects of
immigrant status, including requirements that could affect a lawful
permanent resident's ability to stay in the United States. For
determinations of whether a lawful permanent resident has been absent
from the United States long enough to lose the right to remain in the
United States under federal law, presence in the CNMI will
retroactively be considered presence in the United States and will not
count against the resident.
Pending Legislation Provisions for Foreign Workers:
The pending legislation allows federal agencies to preserve access to
foreign workers in the CNMI during the transition period but limits
access to certain workers after the transition period ends. Under the
transition program, employers have four key options for obtaining
foreign workers in the CNMI. First, employers in the CNMI and Guam can
petition for foreign workers under federal nonimmigrant H visas without
counting against the established numerical limitations for H-1B and H-
2B visas. Second, during the transition period, employers of workers
not otherwise eligible for admission under federal law can apply for
temporary CNMI-only nonimmigrant work permits, and this program may be
extended indefinitely by the U.S. Secretary of Labor for up to 5 years
at a time. Third, during the transition period, existing CNMI-
government-approved foreign workers lacking U.S. immigration status can
continue to live and work in the CNMI for a limited time. Fourth,
during and after the transition period, CNMI employers can petition for
nonimmigrant status and employment-based permanent immigration status
for workers under the same procedures as other U.S. employers. However,
access to foreign workers in low-skill positions will be limited after
the end of the transition period in 2013 or 2014 and after any
extensions of the CNMI-only permit program. The CNMI's exemption from
the visa caps expires at the end of the transition period in 2013 or
2014, and the demand for U.S. nonimmigrant worker visas has exceeded
the capped supply in recent years. Furthermore, there are no
nonimmigrant visas available for workers in continuous low-skill
positions. In addition to superseding and replacing all CNMI
immigration laws, the pending legislation eliminates any other CNMI
laws that relate to the admission or removal of aliens, which could
include some CNMI labor laws. Fees for the CNMI-only work permit will
be determined by federal regulations and are not currently available.
However, the current fees for U.S. foreign worker permits that would
apply after the end of the transition period and after any extensions
range higher than the CNMI's current permit fees for foreign workers.
The pending legislation also requires a fee to be paid during the
transition period by employers of nonimmigrant workers with CNMI-only
permits to provide technical assistance and vocational education in the
CNMI.
Uncapped Nonimmigrant H Visas for Workers in the CNMI during the
Transition Period Ending in 2013 or 2014:
The pending legislation, in contrast to existing U.S. law, provides for
H nonimmigrant visas for temporary workers in the CNMI during the
transition period ending in 2013 or 2014.[Footnote 33] A qualified
alien can seek admission to the CNMI or Guam during the transition
period as a nonimmigrant temporary worker under the H visa process
established in the INA without counting against the existing numerical
caps defined by federal law.[Footnote 34] Visa holders are limited to
working in the CNMI or Guam. Spouses and minor children of H visa
holders can accompany the principal alien under federal law. The length
of admission and other terms and conditions for CNMI-only H
nonimmigrants will be determined by DHS in its implementation of the
transition program and, according to DHS officials, will adhere to
federal requirements currently in place for H visa holders. According
to the current federal requirements, (1) specialty workers who are
admitted under H-1B visas may not be authorized to stay any longer than
3 years initially, and up to 6 years with extensions, and may not seek
readmission for 1 year after leaving, and (2) foreign workers admitted
under H-2B visas are authorized to stay for up to 1 year initially, and
up to 3 years with extensions. Because the pending legislation
authorizes exemption from federal law's numerical caps for H-1B and H-
2B visas during the initial transition period only, the caps would
limit the availability of new visas after the transition period ends on
December 31, 2013, or on December 31, 2014. The numerical caps do not
apply to foreign workers' spouses or children.
CNMI-Only Nonimmigrant Work Permits during the Transition Period and
Possible Extensions:
In addition to allowing uncapped H visas during the transition period,
the pending legislation establishes a temporary CNMI-only nonimmigrant
work permit during the transition period to be issued to prospective
employers for aliens not eligible for admission under the H visas or
otherwise under federal immigration law.[Footnote 35] Temporary workers
with CNMI-only permits are to be treated as nonimmigrants under the INA
and, like other nonimmigrants or applicants for immigrant status from
outside the United States, may apply for a change of status, either to
another nonimmigrant status or to permanent residency. Workers admitted
under a CNMI-only permit may transfer freely between CNMI employers,
but they may not enter or work in the rest of the United
States.[Footnote 36]
Under the pending legislation, DHS determines the number, terms, and
conditions of CNMI-only permits needed to meet labor demands in the
CNMI and has full administration and enforcement authority over the
implementation process. DHS has the discretion to use any reasonable
method for implementing the permit system, provided that the department
attempts to promote the maximum use of workers authorized to be
employed in the United States and to prevent adverse effects of wages
and working conditions on such workers. DHS may also authorize the
admission of a spouse or minor child accompanying or following to join
a worker admitted under a CNMI-only permit.
The pending legislation specifies that the CNMI-only permits will not
be valid beyond the expiration date of the transition period and
requires that the number of permits allocated be reduced on an annual
basis to zero by the end of the transition period. However, the U.S.
Secretary of Labor, in consultation with DHS, DOI, and the Governor of
the CNMI, has the discretion to extend indefinitely the period for
issuing the permits for up to 5 years at a time, based on the labor
needs of legitimate businesses in the CNMI.[Footnote 37] The Secretary
could issue the extension as early as desired within the transition
period and up to 180 days before the end of the transition period or
any extension thereof. The determination of what constitutes a
legitimate business,[Footnote 38] and the extent to which such business
requires foreign workers to supplement its workforce, is at the sole
discretion of DHS. In deciding whether to extend the period in which
CNMI-only nonimmigrant work permits may be issued, the Secretary of
Labor may consider workforce studies on the need for foreign workers in
the CNMI; the unemployment rate of U.S. citizen workers residing in the
CNMI; the number of unemployed foreign workers in the CNMI; and any
other available evidence regarding U.S., CNMI, and foreign worker
trends in the CNMI.
Temporary Work and Residence for CNMI-Government-Approved Foreign
Workers Who Do Not Obtain U.S. Immigration Status:
Under the pending legislation, foreign workers legally present in the
CNMI as of the transition program effective date but who do not obtain
U.S. immigration status may continue residing and working in the CNMI
for a limited time. Foreign workers who are legally present in the CNMI
under CNMI immigration laws on the transition period's effective date
are temporarily protected from removal; they may not be immediately
removed from the country for violating the INA on the basis of being
present without having been admitted to the United States.[Footnote 39]
A foreign worker lawfully present under previous CNMI immigration laws
but who does not obtain U.S. immigration status becomes subject to
removal 2 years after the effective date of the transition program or
when the CNMI-issued permit expires, whichever is earlier. To track the
presence of aliens in the CNMI, the legislation allows DHS to require
CNMI aliens to register with DHS and subjects to removal anyone who
fails to comply with the registration requirement. The legislation also
prohibits the CNMI government from allowing an increase in the total
number of foreign workers who are present in the CNMI between the
legislation's enactment and the effective date of the transition
period. Since the 2-year clause applies to all aliens lawfully present
in the CNMI on the transition program effective date, not just to
foreign workers, it would cover family members of the foreign workers
to the extent of their previously authorized admission.
Access to Permanent Employment-Based Immigrant Visas for Foreign
Workers:
Under the pending legislation, when federal immigration law becomes
applicable to the CNMI on the transition program effective date, CNMI
employers will be able to petition to bring workers to the CNMI as
employment-based permanent immigrants under the same procedures as
other U.S. employers. Each fiscal year, about 140,000 employment-based
immigrant visas are available for workers to enter the United States on
a permanent basis. Up to 28.6 percent of these visas may be available
for skilled nontemporary and nonseasonal workers, for professionals
with baccalaureate degrees, and for qualified workers capable of
performing unskilled nontemporary and nonseasonal labor for which
qualified workers are not available in the United States. For the
unskilled laborers, up to 10,000 visas may be issued each fiscal year
to qualified immigrants after the Department of Labor certifies that
qualified workers are not available in the United States.
According to a CNMI official, CNMI employers do not currently have the
option to petition for immigrant status of workers under CNMI law.
While U.S. lawful permanent residents may work in the CNMI, time spent
in the CNMI generally does not count toward the time in the United
States required to attain U.S. citizenship. According to DHS, residence
in the CNMI only counts as residence for naturalization purposes for
immediate relatives of U.S. citizens; other lawful permanent residents
residing in the CNMI currently do not accrue time for naturalization
purposes.
Access to Foreign Workers after the End of the Transition Period and
after Any Extensions:
After the end of the transition period and after any extensions of the
CNMI-only work permit program, the pending legislation limits CNMI
employers' access to foreign workers, particularly low-skill workers in
continuous, nontemporary jobs. However, all INA immigrant and
nonimmigrant categories would be available to qualified foreign workers
attempting to enter the CNMI. After the transition period and after any
extensions, the CNMI-only work permits can no longer be issued and are
no longer in effect. In addition, the exemptions from the H visa caps
no longer apply after the initial transition period ending in 2013 or
2014. Foreign workers applying for H nonimmigrant status are then
subject to the numerical limitations set out in federal law, and demand
for the H-1B and H-2B visas has exceeded the capped supply in recent
years.[Footnote 40] H-2A visas are not capped and would be available
for agricultural workers. However, no nonimmigrant visa categories are
available for workers performing continuous, rather than temporary,
work who do not meet the high-skill requirements of the H-1 visas. Some
workers can apply for L visas for intracompany transfers, but these
visas are available only to managers and executives, workers with
specialized skills, and their spouses and children, and L visa holders
must have spent at least 1 continuous year abroad with a qualifying
organization prior to entering the United States. These options
contrast with the CNMI government's current authority to admit as many
foreign workers as its own laws and administrative procedures permit
and with the CNMI-only work permit that the pending legislation
establishes during the transition period and any extensions.
Changes in Worker Permit Fees during and after the Transition Period:
The pending legislation changes permit fees for foreign workers and may
increase annual fees for some employers and workers. Fees for the
transition period programs will be determined by federal regulations
and are currently not available. The CNMI-only work permit fee includes
$150 paid by employers annually to fund vocational education in the
CNMI, but we do not know how the full fee will compare to the current
CNMI foreign worker permit fee of $250 per year.[Footnote 41] In
addition, after the end of the transition period and after any
extensions of the CNMI-only work permit program, standard U.S. fees
would apply, including Department of Labor fees for labor
certification, DHS petition fees paid by the employer, and Department
of State visa fees paid by the worker. The current fees for U.S.
foreign worker permits that would apply after the end of the transition
period and any extensions range higher than the CNMI's current permit
fees for foreign workers. Existing U.S. fees for H visa petitions range
from $107 to $773 per year[Footnote 42] (see app. III).[Footnote 43]
Required bond costs for employers currently vary under CNMI law, but
one option is for employers to pay $75 per worker into a revolving
trust account. U.S. laws provide discretionary federal authority to
impose bonds of between $5 and $15 per worker on employers or $500 on
the alien.[Footnote 44] The legislation also authorizes DHS to charge
fees to recover the full cost of providing adjudication and
naturalization services, including any administrative costs. The U.S.-
CNMI covenant currently allows the CNMI government to collect fees
levied for quarantine, passport, and immigration and naturalization
services. The pending legislation would remove the CNMI's ability to
collect fees for immigration and naturalization.
Possible Elimination of Some CNMI Labor Laws:
Under the pending legislation, federal immigration law will supersede
all CNMI immigration law. In addition, federal law would preempt some
CNMI labor laws if the CNMI laws are determined to relate to the
admission or removal of aliens. Because the intent of the legislation
is to supersede all laws relating to the admission or removal of
aliens, if local labor laws relate to the admission or removal of
aliens, such laws will no longer be in effect. The CNMI's Office of the
Governor concluded that the proposed federal legislation would preempt
most of the CNMI laws establishing new immigration and labor rules that
took effect on January 1, 2008. For example, as referenced above, the
CNMI's bond requirement would presumably be preempted by any bond
requirements already present in federal immigration law. Additionally,
CNMI requirements to pay repatriation funds for foreign workers would
be preempted by federal law requirements to pay repatriation funds for
nonimmigrant workers. In the agricultural sector, CNMI laws that apply
to foreign agricultural workers would be replaced by federal
requirements for the admission and treatment of H-2A workers or other
relevant federal laws. Under federal law, employers of temporary
agricultural workers must provide housing for the workers that meet
certain federal requirements, insurance for the workers that covers
injury or disease related to employment, three meals a day, and all
necessary tools and equipment to perform the required labor. CNMI law
requires that employers provide medical insurance to foreign workers
and gives employers the option to provide additional benefits, such as
housing, food, and transportation.
Other CNMI laws that are administered as part of the CNMI's permit
program also might be affected because the CNMI's permit program will
be replaced with federal law, and it is unclear whether these CNMI
programs will continue to be administered. For example, a CNMI law
requiring notice and orientation procedures for nonresident workers
admitted to the CNMI, as well as laws requiring that employers of
nonresident workers provide mandatory medical insurance to their
employees and provide mediation procedures in the case of contract
disputes, have no counterpart in the pending federal legislation. It is
unknown whether these existing requirements would be administered after
federalization. In addition, existing CNMI agreements with China and
the Philippines regarding the treatment of those countries' workers in
the CNMI could be affected by the pending legislation. After federal
immigration law applies, it is unclear whether the agreements would be
adhered to or would be superseded.
In addition, local CNMI law contains specific provisions for the hiring
of local residents, while the federal legislation contains no set
requirements for hiring a certain percentage of citizens. Under CNMI
law, until January 2008, employers were required to hire 20 percent of
their employees from local residents; this percentage increased to 30
percent on January 1, 2008, under the new CNMI labor and immigration
law. CNMI law also stipulates that employers seeking work permits for
their temporary workers must be able to demonstrate that they
advertised the position and were unable to find a qualified CNMI
resident. Exemptions from this requirement can be granted for
businesses that employ fewer than 5 people, construction projects of
limited duration, light manufacturing, and for employers who fill other
full-time positions with substantially more than 30 percent of the
workforce from citizens and permanent residents. Under the federal
immigration system, no percentage requirement exists for the hiring of
local residents. However, federal immigration law requires that
employers seeking to fill jobs with applicants for H-2B visas must
demonstrate that they have been unable to identify a qualified U.S.
worker for the position. Similarly, employers of H-2A applicants must
certify through the Department of Labor that sufficient U.S. workers
cannot be found to perform the labor and that the employment of the
foreign worker will not adversely affect the wages and working
conditions of similarly employed U.S. workers. However, without
regulations implementing the pending legislation, it is unknown whether
the CNMI-only work permit program will include requirements related to
U.S. workers.
Vocational Education Funding and Technical Assistance for the CNMI:
The pending federal legislation requires the U.S. government to provide
funding for vocational education, as well as technical assistance for
the CNMI.
* Vocational education. The legislation requires DHS to charge
prospective employers $150 annually, in addition to other fees
collected under the INA, for each CNMI nonimmigrant worker who is
issued a CNMI-only permit during the transition period and any
extensions. The fee is to be paid into the Treasury of the CNMI and
used to fund ongoing vocational, educational curricula and program
development by CNMI educational entities.
* Technical assistance. The legislation requires the Secretary of the
Interior to provide technical assistance to the CNMI to promote
economic growth; to assist employers in recruiting, training, and
hiring U.S. citizens and lawful permanent residents in the CNMI; and to
develop CNMI job skills as needed. In providing the technical
assistance, the federal government should consult with the CNMI
government, local businesses, regional banks, and other CNMI economy
experts. The CNMI must contribute a nonfederal matching requirement of
10 percent for the provision of technical assistance.
* Hiring U.S. citizens in the CNMI. In addition to requiring the
technical assistance, the pending legislation states that the federal
government should, to the maximum extent practicable, hire citizens of
the CNMI as staff to implement the transition program and new federal
responsibilities.
Pending Legislation Provisions for Tourists:
The pending legislation establishes a joint visa waiver program by
adding the CNMI to an existing Guam visa waiver program. The program
exempts visitors from designated countries who travel for business or
pleasure to the CNMI from the standard federal visa documentation
requirements. Citizens of countries who do not qualify for entry under
the joint CNMI and Guam visa waiver program or other U.S. visa waiver
programs may apply for U.S. visitor visas valid for entry to any part
of the United States, which generally require in-person applications
and higher fees than the CNMI currently assesses. Changes in tourists'
access to the CNMI will depend on the countries that are included in
the CNMI-Guam visa waiver program. Until the regulations implementing
the joint visa waiver program are established, we cannot determine
whether the new visa waiver program will be more or less restrictive
than the current CNMI or Guam waiver programs.
Visa Waiver Program for Tourism or Business:
The pending federal legislation creates a joint visa waiver program for
business or pleasure for 45 days or less, exempting visitors from
participating countries who travel to the CNMI and Guam from the
standard federal visa documentation requirements for
nonimmigrants.[Footnote 45] Under the pending legislation, DHS may
waive the documentation requirements for nationals from designated
foreign countries applying to visit for business or pleasure for a
period of up to 45 days.[Footnote 46] Admission would be granted only
for entry into, and stay in, the CNMI or Guam, and visitors will be
able to travel between the CNMI and Guam. The pending legislation
allows DHS to waive the documentation requirements after consulting
with other federal agencies and the Governors of the CNMI and Guam;
determining that an adequate arrival and departure system has been
developed in both places; and determining that the waiver would not
represent a threat to the welfare, safety, or security of the United
States or its territories.
Apart from the CNMI-Guam visa waiver program proposed under the federal
legislation, the U.S. Visa Waiver Program, the current Guam visa waiver
program, and the current CNMI entry permit waiver program have the
following requirements:
* The current U.S. Visa Waiver Program under federal immigration law
allows nationals and citizens of 27 countries to travel to the United
States, including Guam, for business or tourism for 90 days or less
without obtaining a visa. Travelers admitted under the U.S. Visa Waiver
Program must be nationals of a participating country, each of which
must provide reciprocal privileges to U.S. nationals and citizens and
meet other requirements.[Footnote 47]
* Guam's federally-administered visa waiver program allows citizens of
an additional 9 countries to enter Guam for up to 15 days for business
or pleasure.[Footnote 48] In total, citizens of 36 countries may enter
Guam under its visa waiver program.
* The CNMI's entry permit waiver program exempts aliens seeking to
enter for tourism or business for up to 90 days from the required
visitor entry permit if the aliens are eligible for the U.S. Visa
Waiver Program or are nationals of a country listed by the CNMI as
exempt. The list of countries is revised periodically by the CNMI
Attorney General and contains all the countries in the U.S. Visa Waiver
Program.[Footnote 49]
See appendix IV for countries included in the current U.S., CNMI, and
Guam waiver programs.
To implement the CNMI-Guam visa waiver program, DHS must consult with
other appropriate federal agencies and promulgate regulations within
180 days of enactment of the proposed legislation. The regulations must
include a list of all countries whose nationals may obtain the visa
waiver. This list must include any country from which the CNMI has
received a significant economic benefit for the year prior to the
enactment of the legislation, unless DHS determines that the country's
inclusion on the list would represent a threat to the welfare, safety,
or security of the United States or its territories. The Governors of
the CNMI and Guam may petition DHS to have countries added to the visa
waiver program list. The regulations must also include any bonding
requirements for nationals of some or all of the countries who may
present an increased risk of overstays or other potential problems, if
those requirements are different from those generally applicable to
nonimmigrants under the INA. DHS is required to monitor the admission
of nonimmigrant visitors to the CNMI and Guam and has the authority to
suspend a particular country from the visa waiver program.[Footnote 50]
DHS's consideration of countries from which the CNMI has received a
significant economic benefit for the previous year could result in the
inclusion in the visa waiver program of key countries that have sent
tourists to the CNMI. However, without the regulations implementing the
CNMI-Guam visa waiver program, we cannot determine whether this program
will be more or less restrictive than the current CNMI entry permit
waiver program or the Guam visa waiver program, nor can we determine
which countries' citizens would be required to obtain visitor visas. In
addition, any changes to the U.S. Visa Waiver Program could also affect
tourists' access to the CNMI.
Visitor Visas Available outside the Visa Waiver Programs:
Under the pending legislation, citizens of countries who do not qualify
for entry under the proposed CNMI-Guam visa waiver program may apply
for a nonimmigrant visitor visa for either business or pleasure, known
as a B visa. B visas are valid for entry into any part of the United
States. The period of validity for B visas depends on federal
regulations specific to the applicant's home country, as well as the
reciprocal treatment that the home country provides to U.S. citizens
traveling to that country. The validity period for B visas varies.
Aliens may apply for admission at any time during the validity period
to be admitted for up to 1 year and are typically admitted for 6 months
at a time. Under the U.S. program, most visitor visa applicants must
apply in person at a U.S. embassy or consulate. In addition, applicants
for all nonimmigrant visas may be required to submit to a physical or
mental examination at the discretion of the consular officer reviewing
the application.
The CNMI has its own visitor entry permit process, which currently
allows noncitizens not eligible under its entry permit waiver program
to apply for a short-term entry permit valid for 30 days or a long-term
entry permit valid for up to 60 days. Most visitors coming to the CNMI
for business or pleasure with a visitor entry permit must have a CNMI
sponsor, such as an individual or a hotel, which is not required of
visitors entering the United States on a B visa. In addition, Japanese,
Korean, and certain other tourists ages 55 and above may enter for up
to 90 days under a comity entry permit.[Footnote 51] Currently,
citizens of 31 countries are excluded from entering the CNMI, but they
can be granted waivers on a case-by-case basis.[Footnote 52] This
program would be eliminated by the pending legislation, and visitors
seeking to enter the CNMI for business or pleasure could apply for a
U.S. nonimmigrant B visa or could enter under the CNMI-Guam visa waiver
program established by the legislation, if applicable.
Given the requirements for U.S. visitor visas, and depending on the
countries included in the CNMI-Guam visa waiver program, the pending
legislation could change access to the CNMI for visitors from some
countries. For example, some tourists currently come to the CNMI from
China[Footnote 53] and Russia. Tourists' access to the CNMI would
depend, in part, on whether their countries were included in the CNMI-
Guam visa waiver program under the pending legislation. While China and
Russia are not currently included in the CNMI's entry permit waiver
program, the CNMI allows applicants from these and other countries to
apply for a visitor entry permit by mail or fax. In addition, according
to the CNMI government, information on visitor permit applicants from
China is collected and reviewed by the CNMI under the Electronic
Visitor Entry Permit Program. Most applicants would now be required to
apply in person at a U.S. embassy or consulate, some of which have
interview appointment wait times of 30 days or longer. They also would
pay at least $131 for a U.S. visitor visa, while most CNMI visitor
entry permits are provided for free. In addition, visitors from the
Republic of Korea who are ages 55 and above and meet other requirements
currently may enter the CNMI for up to 90 days under a comity entry
permit. The Republic of Korea is not currently included in the U.S.
Visa Waiver Program,[Footnote 54] and citizens' access to the CNMI will
depend in part on whether the country is included in the joint CNMI-
Guam waiver program.
Pending Legislation Provisions for Foreign Investors:
After federal immigration law applies, new CNMI foreign investors must
meet more stringent investment requirements in order to obtain
immigrant investor status, which allows investors to petition for U.S.
permanent immigration status that is currently unavailable in the CNMI.
New foreign investors also could apply for nonimmigrant treaty investor
status. The pending legislation also allows current CNMI foreign
investors who meet certain requirements to convert from a CNMI investor
to a federal nonimmigrant treaty investor during the transition period.
However, key details regarding the transition period program remain
unknown. In addition, the pending legislation eliminates the CNMI's
retiree investor and long-term business entry permit programs. Instead,
it allows these and other business travelers to apply to visit the CNMI
under the terms for general visitors described above or under other
categories in federal immigration law.
More Stringent Investment Requirements for Immigrant Foreign Investors:
After federal immigration laws apply, new foreign investors in the CNMI
would have to meet the more stringent investment requirements imposed
by federal law in order to be awarded immigrant investor status (EB-5).
Under federal immigration law, foreign investor immigrant status
generally requires the establishment of a business creating at least 10
full-time jobs and an investment of at least $1 million.[Footnote 55]
However, U.S. investment requirements vary depending on the employment
level in the area of investment; if the CNMI were considered a targeted
employment area, the minimum investment required would be
$500,000.[Footnote 56] According to DHS, qualification under the EB-5
program provides U.S. lawful permanent resident status after a 2-year
period of conditional status and after demonstration of the required
job creation.
In contrast, current CNMI law grants foreign investor status to
qualified investors to engage in business in the CNMI for as long as
they maintain an investment of at least $250,000 by an individual in a
single investment or $100,000 per person in an aggregate investment
exceeding $2 million.[Footnote 57] An applicant must be present in the
CNMI to apply. The CNMI also considers the length of time the business
is expected to operate, the number and type of jobs it would create,
the extent to which it would employ nonresidents, its impact on power
and water resources, and other factors. While the CNMI status requires
a lower investment than the U.S. EB-5 program, it does not allow aliens
to petition for permanent immigration status in the United States, as
does the EB-5.
The U.S. immigrant investor petition has a fee of $1,435, plus a $131
visa application fee, and visa issuance fees that vary by country. The
CNMI long-term business entry permit fee is $1,000, and the permit is
valid for 2 years. The CNMI investor permit has a one-time fee ranging
from $500 to $2,500, in addition to a one-time investment certificate
fee of $10,000. (See app. III.)
As an alternative to applying for U.S. immigrant investor status, new
investors could apply for U.S. nonimmigrant treaty investor status (E-
2). Under this status, an alien may enter the United States to develop
and direct the operations of an enterprise in which he or she has
invested or is in the process of investing a substantial amount of
capital.[Footnote 58] This category requires that the investor be a
national of a country that has an appropriate treaty with the United
States.[Footnote 59] Though a specific financial threshold is not
required by law, the capital must be substantial in relation to either
the total purchase price or the cost of creation of the enterprise,
must be sufficient to ensure the investor's financial commitment to
successful operation of the enterprise, and must be of a magnitude to
support the likelihood that the investor will successfully develop and
direct the enterprise.[Footnote 60] However, this status does not
provide a path to apply for permanent resident status.
Grandfathered Status for Foreign Investors during the Transition
Period:
The pending legislation allows current CNMI foreign investors to remain
in the CNMI as investors after the start of the transition period by
authorizing DHS to provide CNMI-only nonimmigrant E-2 treaty investor
status to those who have been admitted to the CNMI in long-term
investor status under CNMI immigration laws before the start of the
transition program. These "grandfathered" foreign investors attaining
CNMI-only nonimmigrant status would not have to meet the federal treaty
requirements for E-2 nonimmigrant foreign investor status during the
transition period. In order to be grandfathered, the investor must have
continuously maintained residence in the CNMI under long-term investor
status, must be otherwise admissible, and must maintain the investment
that formed the basis for such long-term investor status.[Footnote 61]
It is not clear whether the grandfathered status would cover current
holders of the CNMI's long-term business permit, which requires an
investment of at least $150,000 in a public organization or at least
$250,000 in a private investment, in addition to current holders of the
CNMI foreign investment permit. The legislation is silent on the length
of time for which admission is authorized as a CNMI-only treaty
investor, and it requires DHS to promulgate implementing regulations 60
days before the start of the transition program. Currently, federal law
allows E admission for up to a 2-year period of initial stay and allows
the investor to apply for renewal. Under federal regulations for E-2
visas, spouses or children may apply to join foreign investors under
the E-2 visa, and spouses are authorized to work under an E-2 visa.
Though regulations must first be developed for implementation,
according to DHS, the regulations would likely create a new kind of E-
2 visa applicable only to these grandfathered foreign investors that
would include the CNMI financial threshold requirements for investment.
Elimination of CNMI Retiree Investor and Long-Term Business Permit
Programs:
Two other CNMI investor programs would be eliminated by the pending
legislation. One of these programs is the CNMI's current retiree
investor entry permit, which has no equivalent under U.S. law. To
qualify for the permit and corresponding certificate, an applicant must
be older than 55 years and must have a minimum investment of $100,000
(or $75,000 on the islands of Tinian or Rota) in residential property,
among other requirements. In addition, the CNMI's long-term business
entry permit, which allows individuals investing at least $150,000 in a
public organization or at least $250,000 in a private investment and
whose business activities have been approved and certified by the CNMI
Secretary of Commerce to enter and exit the CNMI for 2 years, would be
eliminated by the application of federal immigration laws. Nonimmigrant
investors would instead be able to apply for the U.S. E-2 treaty
investor visa.[Footnote 62] As noted above, it is not clear whether
current holders of the CNMI's long-term business permit would be
grandfathered as treaty investors. In addition, under federal law,
other business travelers could no longer enter under any CNMI permit
category but could seek admission under an appropriate federal
nonimmigrant visa or visa waiver.
DHS May Study the Creation of CNMI-Only Visas for Foreign Investors and
Other Nonworkers:
The pending federal legislation allows the Governors of the CNMI and
Guam to request that DHS study the feasibility of creating additional
CNMI-or Guam-only nonimmigrant visas to address needs not otherwise met
by the legislation. These visas may include special nonimmigrant visa
categories for investors and retirees. The visas also may include visa
categories for students;[Footnote 63] however, they may not include
nonimmigrant status for workers in the CNMI or Guam. If DHS found that
such additional visas were necessary, it would have to ask Congress to
authorize their creation.
Agency Comments and Our Evaluation:
We provided a draft of this report to officials within the U.S.
Departments of Homeland Security, the Interior, and Labor and within
the CNMI government for review and comment. We received written
comments on the draft report from the Department of Homeland Security,
the Department of the Interior, and the CNMI government, which are
reprinted in appendixes VI, VII, and VIII. We also received technical
comments from the Department of Homeland Security, the Department of
the Interior, and the CNMI government. We incorporated their comments
as appropriate. The Department of Labor had no comments. We also
provided a draft for technical review to the U.S. Department of State,
and State had no comments. The Departments of Homeland Security and the
Interior generally agreed with our findings regarding the pending
legislation. The CNMI government disagreed with some key findings
related to the pending legislation.
The Department of Homeland Security commented that aliens in the CNMI
could seek protection from persecution or torture, saying that the
department is mindful of U.S. government treaty obligations during the
transition period. While we had included information on this topic in
the draft report, we further clarified the information in response to
the department's comments. The department also noted that the pending
legislation would have direct effects on U.S. Customs and Border
Protection facilities, staffing, and training requirements. This topic
was beyond the scope of our study.
The Department of the Interior generally agreed with our findings,
saying that the report presents a fair and objective study on the
effect of the pending legislation.
The CNMI government disagreed with our analysis of the legislation in
three particular areas. First, the CNMI government contended that the
legislation allows the exemptions from the numerical limitation on H
visas to be extended beyond the end of the transition period in 2013.
We continue to interpret the legislation to allow for an extension of
the CNMI-only work permit program beyond 2013 at the discretion of the
Secretary of Labor but not to allow for an extension beyond 2013 of
other provisions of the transition program, including the exemptions
from the numerical limitations on H visas.[Footnote 64] Because the
provision of the pending legislation authorizing exemptions from the H
visa caps for aliens entering the CNMI confers no specific authority
for extending this exemption beyond 2013, nor does any other related
provision confer this authority, the exemption could not be extended
beyond 2013 without further legislation. Second, the CNMI disagreed
with our interpretation that the H visas issued under the cap
exemptions are a separate process from the CNMI-only work permit
program. According to the CNMI's interpretation, employers of workers
admitted under H visas would have to obtain a CNMI-only work permit. We
continue to interpret the H visa cap exemptions and the CNMI-only
permit program as separate processes, because the CNMI-only work
permits are to be issued for workers who would not otherwise be
eligible for admission under U.S. immigration law. As H visas are
clearly a part of U.S. immigration law, workers entering the CNMI with
an H visa are necessarily excluded from the CNMI-only permit process,
as are workers entering under all other available immigrant and
nonimmigrant categories in U.S. immigration law. Third, the CNMI
contended that we should not base any further work regarding the impact
of the legislation on the CNMI economy on a single legal
interpretation. While the legislation is highly technical, we believe
we have provided a reasonable, objective interpretation of the
legislation that is consistent with the implementing agencies' views.
As such, we believe our interpretation of the legislation can be used
appropriately as the basis of further work on the potential economic
impact of the legislation, while acknowledging the range of possible
federal decisions regarding implementation of the legislation.
Officials from the Department of Homeland Security, the agency
responsible for implementing and administering the provisions of the
transition period under the pending legislation, agreed in interviews
with our interpretations of the above provisions. The CNMI government
also recommended that the draft report be provided to the U.S.
Department of Justice for comment. We did not provide the draft report
to the Department of Justice for review because the pending legislation
provides a limited role for the department.
As agreed with your offices, unless you publicly announce the contents
of this report earlier, we plan no further distribution of it until 30
days from the report date. We will then provide copies of this report
to the U.S. Secretaries of Homeland Security, the Interior, Labor, and
State, and to the Governor of the CNMI. We will make copies available
to others on request. In addition, the report will be available at no
charge on the GAO Web site at [hyperlink, http://www.gao.gov].
If you or your staffs have questions about this report, please contact
me at (202) 512-3149 or at gootnickd@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made key contributions to
this report are listed in appendix IX.
Signed by:
David Gootnick:
Director, International Affairs and Trade:
[End of section]
Appendix I: Scope and Methodology:
To complete our work, we reviewed current immigration laws of the
Commonwealth of the Northern Mariana Islands (CNMI), U.S. immigration
law, and pending legislation that would apply U.S. immigration law to
the CNMI. To examine CNMI immigration law, we reviewed relevant
portions of the Nonresident Workers Act, the Northern Mariana Islands
Administrative Code, the Commonwealth Employment Act of 2007, and
related regulations, as well as other immigration and labor laws and
agreements. We did not review all CNMI laws and regulations. Our
discussion of CNMI laws and regulations was based in part upon
secondary sources, including information provided by CNMI officials. We
also visited the CNMI, where we interviewed officials in the CNMI
Office of the Governor, the Department of Immigration, the Department
of Labor, the Department of Commerce, and the Marianas Visitors
Authority. We conducted additional interviews with CNMI officials in
Washington, D.C. In addition, we reviewed CNMI agreements with other
countries, including China and the Philippines, regarding foreign
workers. We also reviewed CNMI documents explaining immigration laws
and procedures to non-U.S. citizens.
To examine U.S. immigration law, we reviewed the U.S. Immigration and
Nationality Act (INA) and related regulations.[Footnote 65] We also
interviewed U.S. Department of Homeland Security officials, and we
reviewed information from the U.S. Department of State and U.S.
Citizenship and Immigration Services related to visa and petition
application fees and procedures. We did not review the extent to which
CNMI or U.S. laws were properly enforced or implemented.
To examine the relationship between the CNMI and the United States, we
reviewed the CNMI-U.S. Covenant[Footnote 66] and the law applying U.S.
minimum wage to the CNMI.[Footnote 67] We also reviewed proposed
legislation applying U.S. immigration law to the CNMI, including H.R.
3079, passed by the House of Representatives, and S. 2739, pending in
the Senate. In addition, we reviewed the House Committee on Natural
Resources Report for H.R. 3079.[Footnote 68] We interviewed officials
from the U.S. Department of Homeland Security and the U.S. Department
of the Interior. We also reviewed analyses of the pending legislation
and related studies by GAO, the Congressional Budget Office, and the
Congressional Research Service.
We conducted this performance audit from December 2007 to March 2008 in
accordance with generally accepted government auditing standards. Those
standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our
findings and conclusions based on our audit objectives. We believe that
the evidence obtained provides a reasonable basis for our findings and
conclusions based on our audit objectives.
[End of section]
Appendix II: U.S. Nonimmigrant Classes of Admission:
Foreign nationals seeking to enter the United States temporarily may
apply for entry under the following classes of admission:
Table:
Class: Transit aliens: C-1;
Description: Aliens in continuous and immediate transit through the
United States.
Class: Transit aliens: C-2;
Description: Aliens in transit to the United Nations Headquarters
District.
Class: Transit aliens: C-3;
Description: Foreign government officials, attendants, servants, and
personal employees, and spouses and children in transit.
Class: Temporary visitors for business: B-1;
Description: Temporary visitors for business.
Class: Temporary visitors for business: GB;
Description: Visa Waiver Program--temporary visitors for business to
Guam.
Class: Temporary visitors for business: WB;
Description: Visa Waiver Program--temporary visitors for business.
Class: Temporary visitors for pleasure: B-2;
Description: Temporary visitors for pleasure.
Class: Temporary visitors for pleasure: GT;
Description: Visa Waiver Program--temporary visitors for pleasure to
Guam.
Class: Temporary visitors for pleasure: WT;
Description: Visa Waiver Program--temporary visitors for pleasure.
Class: Temporary workers and trainees: H-1B1;
Description: Chile and Singapore Free Trade Agreement Aliens.
Class: Temporary workers and trainees: H-1C;
Description: Nurses under the Nursing Relief for Disadvantaged Areas
Act of 1999.
Class: Temporary workers and trainees: H-2A;
Description: Seasonal agricultural workers.
Class: Temporary workers and trainees: H-2B;
Description: Seasonal nonagricultural workers.
Class: Temporary workers and trainees: H-2R;
Description: Returning H-2B workers.
Class: Temporary workers and trainees: H-3;
Description: Trainees.
Class: Temporary workers and trainees: H-4;
Description: Spouses and children of H-1, H-2, or H-3 visa holders.
Class: Temporary workers and trainees: O-1;
Description: Temporary workers with extraordinary ability or
achievement in the sciences, arts, education, business, or athletics.
Class: Temporary workers and trainees: O-2;
Description: Temporary workers accompanying and assisting O-1 visa
holders.
Class: Temporary workers and trainees: O-3;
Description: Spouses and children of O-1 and O-2 visa holders.
Class: Temporary workers and trainees: P-1;
Description: Temporary workers--internationally recognized athletes or
entertainers for a specific competition or performance.
Class: Temporary workers and trainees: P-2;
Description: Temporary workers--artists or entertainers under
reciprocal exchange programs with a similar organization of a foreign
state.
Class: Temporary workers and trainees: P-3;
Description: Temporary workers--artists or entertainers under
culturally unique programs.
Class: Temporary workers and trainees: P-4;
Description: Spouses and children of P-1, P-2, or P-3 visa holders.
Class: Temporary workers and trainees: Q-1;
Description: Temporary workers in international cultural exchange
programs.
Class: Temporary workers and trainees: R-1;
Description: Temporary workers in religious occupations.
Class: Temporary workers and trainees: R-2;
Description: Spouses and children of R-1 visa holders.
Class: Temporary workers and trainees: TN;
Description: North American Free Trade Agreement (NAFTA) professional
workers.
Class: Temporary workers and trainees: TD;
Description: Spouses and children of TN visa holders.
Class: Treaty traders and investors: E-1;
Description: Treaty traders and spouses and children.
Class: Treaty traders and investors: E-2;
Description: Treaty investors and spouses and children.
Class: Treaty traders and investors: E-3;
Description: Australian Free Trade Agreement principals and spouses and
children.
Class: Intracompany transferees: L-1;
Description: Intracompany transferees.
Class: Intracompany transferees: L-2;
Description: Spouses and children of L-1 visa holders.
Class: Representatives of foreign information media: I-1;
Description: Representatives of foreign information media and spouses
and children.
Class: Representatives of foreign information media: Students;
Description: [Empty].
Class: F-1;
Description: Students--academic institutions.
Class: F-2;
Description: Spouses and children of F-1 visa holders.
Class: F-3;
Description: Canadian or Mexican national commuter students--academic
institutions.
Class: M-1;
Description: Students--vocational/nonacademic institutions.
Class: M-2;
Description: Spouses and children of M-1 visa holders.
Class: M-3;
Description: Canadian or Mexican national commuter students--
vocational/nonacademic institutions.
Class: Exchange visitors.
Class: J-1;
Description: Exchange visitors.
Class: J-2;
Description: Spouses and children of J-1 visa holders.
Class: Other categories.
Class: A-1;
Description: Ambassadors, public ministers, career diplomatic or
consular officers, and spouses and children.
Class: A-2;
Description: Other foreign government officials or employees and
spouses and children.
Class: A-3;
Description: Attendants, servants, or personal employees of A-1 and A-2
visa holders and spouses and children.
Class: FSM;
Description: Federated States of Micronesia nationals.
Class: G-1;
Description: Principal resident representatives of recognized foreign
member governments to international organizations, staff, and spouses
and children.
Class: G-2;
Description: Temporary representatives of recognized foreign member
governments to international organizations and spouses and children.
Class: G-3;
Description: Representatives of unrecognized or nonmember foreign
governments to international organizations and spouses and children.
Class: G-4;
Description: Officers or employees of unrecognized international
organizations and spouses and children.
Class: G-5;
Description: Attendants, servants, or personal employees of G-1, G-2, G-
3, or G-4 visa holders and spouses and children.
Class: K-1;
Description: Alien fiancés(ees) of U.S. citizens.
Class: K-2;
Description: Children of K-1 visa holders.
Class: K-3;
Description: Alien spouses of U.S. citizens.
Class: K-4;
Description: Children of K-3 visa holders.
Class: MIS;
Description: Republic of the Marshall Islands nationals.
Class: N-1 to N-7;
Description: North Atlantic Treaty Organization (NATO) aliens, spouses,
and children.
Class: N-8;
Description: Parents of international organization special immigrants.
Class: N-9;
Description: Children of N-8 visa holders or international organization
special immigrants.
Class: PAL;
Description: Republic of Palau nationals.
Class: Q-2;
Description: Irish Peace Process Cultural and Training Program aliens.
Class: Q-3;
Description: Spouses and children of Q-2 visa holders.
Class: T-1 to T-5;
Description: Victims of a severe form of trafficking and spouses,
children, parents, and siblings.
Class: U-1 to U-4;
Description: Aliens suffering physical or mental abuse as victims of
criminal activity and spouses, children, and parents.
Class: V-1 to V-3;
Description: Spouses and children of a lawful permanent resident who
has been waiting 3 years or more for immigrant visas and dependents.
[End of table]
Source: U.S. Department of Homeland Security.
[End of section]
Appendix III U.S. and CNMI Fees for Foreign Workers, Tourists, and
Foreign Investors:
Table 1: :
Foreign workers (fees paid by employers); U.S. fee: * Specialty workers
(H-1B): $320 to $2,320 for petition (range includes supplemental fees
of $750 or $1,500 and fraud prevention fee of $500 required for some
petitions); associated visa typically valid for up to 3 years; *
Agricultural (H-2A): $320 for petition and $100 plus $10 for each
additional worker for DOL labor certification (to a maximum of $1,000);
associated visa typically valid for 1 year; * Non-agricultural (H-2B):
$470 for petition ($320 plus $150 fraud prevention fee); associated
visa valid for up to 1 year; CNMI fee: * Foreign worker (706K): $250
per year; Transition period fee: * $150 fee paid annually by employers
under CNMI-only visa to fund vocational education in the CNMI; * Other
fees for CNMI-only permit to be determined by federal regulations; *
U.S. fees that apply to existing federal programs.
Tourists (fees paid by tourists); U.S. fee: * Temporary visitor for
business (B-1), pleasure (B-2), or combined (B1-B2): generally, $131
visa application fee, and visa issuance fees varying by country; valid
for periods ranging from 1 to 10 years; * Visa waiver: no fee or small
fee for arrivals at land borders; valid for up to 90 days; CNMI fee: *
Tourist (703A): no fee or $100 if submitted 7 days or less from
intended arrival; valid for up to 30 days; * Entry permit waiver: no
fee; valid for up to 90 days; Transition period fee: * U.S. fees that
apply to existing federal visas.
Foreign investors (fees paid by investors); U.S. fee: * Immigrant
investor status: fee of $1,435 for initial petition, plus $131 visa
application fee, and visa issuance fees varying by country; * Treaty
investor (E-2): $320 for up to 2 years, plus $131 visa application fee,
and visa issuance fees varying by country; CNMI fee: * Foreign investor
(706G): one-time permit fee ranging from $500 to $2,500, depending on
investment level, and one-time certificate fee of $10,000; * Long-term
business (706N): $1,000; valid for 2 years; Transition period fee: *
CNMI-only E-2 visa requirements to be determined by federal
regulations; * U.S. fees that apply to existing federal petitions and
visas.
[End of table]
Source: GAO analysis of pending legislation and information from the
U.S. Department of Homeland Security, U.S. Department of Labor, U.S.
Department of State, and the CNMI government.
Note: This table includes only petition fees and some visa or permit
application fees, as of January 2008. U.S. fees include Department of
Homeland Security petition fees, Department of State visa fees, and
Department of Labor fees for labor certification. Some fees may be
waived. The table omits renewal and status adjustment fees; biometric
fees; fees for expedited service; user fees, such as immigration
inspection fees included in the cost of airline tickets; and legal
costs. H-1B petition renewal fees are generally the same as the initial
petition fees; however, the $500 fraud prevention and detection fee is
required only the first time a petitioner files for a worker. The table
omits other costs that may be associated with hiring a foreign worker,
such as costs related to worker health examinations and care,
transportation, and benefits. It also omits nongovernment fees that may
be associated with tourist visas, such as those charged by travel
agencies. In addition to the employer fees listed above, foreign
workers may be responsible for U.S. visa fees. U.S. visa fees generally
include a $131 application fee and may include an issuance fee,
depending on the country. Foreign workers in the CNMI are responsible
for an annual alien registration fee of $25.
[End of section]
Appendix IV Country Participation in Current Waiver Programs in the
United States, the CNMI, and Guam:
Andora;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Australia;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Austria;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Belgium;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Brunei;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Denmark;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Finland;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
France;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Germany;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Hong Kong[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No;
Guam visa waiver program: Yes.
Iceland;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Indonesia[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No (limited for shipping);
Guam visa waiver program: Yes.
Ireland;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Italy;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Japan;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Liechtenstein;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Luxembourg;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Malaysia[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No (police clearance);
Guam visa waiver program: Yes.
Monaco;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Nauru[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No;
Guam visa waiver program: Yes.
Netherlands;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
New Zealand;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Norway;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Papua New Guinea[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No;
Guam visa waiver program: Yes.
Portugal;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Republic of Korea[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No;
Guam visa waiver program: Yes.
San Marino;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Singapore;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Slovenia;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Solomon Islands[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No;
Guam visa waiver program: Yes.
Spain;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Sweden;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Switzerland;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Taiwan[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No;
Guam visa waiver program: Yes.
United Kingdom;
U.S. Visa Waiver Program[A]: Yes;
CNMI entry permit waiver program[B]: Yes;
Guam visa waiver program: Yes.
Vanuatu[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No;
Guam visa waiver program: Yes.
Western Samoa[C];
U.S. Visa Waiver Program[A]: No;
CNMI entry permit waiver program[B]: No;
Guam visa waiver program: Yes.
Source: GAO analysis of U.S. and CNMI immigration laws.
[A] In July 2006, we reported that DHS and State were consulting with
13 countries, including the Republic of Korea, seeking admission into
the U.S. Visa Waiver Program. The other countries were Bulgaria,
Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania,
Malta, Poland, Romania, and Slovakia. As noted earlier, in August 2007,
Congress passed legislation that provides DHS with the authority to
admit countries with refusal rates between 3 and 10 percent under the
Visa Waiver Program if the countries meet certain conditions and if DHS
implements certain security measures. The Republic of Korea's refusal
rate in fiscal year 2007 was 4.4 percent. GAO, Process for Admitting
Additional Countries into the Visa Waiver Program, GAO-06-835R
(Washington, D.C.: July 28, 2006) and GAO, Visa Waiver Program:
Limitations with the Department of Homeland Security's Plan to Verify
Departure of Foreign Nationals, GAO-08-458T (Washington, D.C.: Feb. 28,
2008). While Canada is not included in the U.S. Visa Waiver Program,
nationals of Canada may also, in most circumstances, qualify for visa-
free travel to the United States, including Guam.
[B] An order of the CNMI Attorney General dated March 23, 2004 includes
the Republic of Korea, Hong Kong, and Canada in the CNMI's permit
waiver program, but CNMI officials said that this order was no longer
in effect. The officials said that the CNMI currently waives permit
requirements only for visitors from countries included in the U.S. Visa
Waiver Program. They could not identify any document specifically
revoking the 2004 order, and an official said the CNMI planned to issue
clarification to the policy in the near future.
[C] Indicates countries for which visa waiver participation for tourism
or business differs among the United States, the CNMI, and Guam. Under
U.S. visa waivers, visitors may enter for up to 90 days. Under CNMI
entry permit waivers, the length of admission is also up to 90 days.
Under Guam visa waivers, visitors may enter for up to 15 days, except
that citizens from countries eligible for the U.S. Visa Waiver Program
may enter for 90 days. This table does not include the Freely
Associated States--the Federated States of Micronesia, Republic of the
Marshall Islands, and Republic of Palau--whose citizens are permitted
to work in the CNMI and elsewhere in the United States under the
Compacts of Free Association.
[End of table]
[End of section]
Appendix V: Northern Mariana Islands Immigration, Security, and Labor
Act (H.R. 3079):
The Northern Mariana Islands Immigration, Security, and Labor Act (H.R.
3079) passed the House of Representatives on December 11, 2007, and was
placed on the Senate calendar as Title VII of S. 2483 on December 14,
2007. On January 30, 2008, the Senate Committee on Energy and Natural
Resources reported S. 1634, containing the text of H.R. 3079, as passed
by the House. The text of the bill was included in S. 2616, introduced
on February 8, 2008, and placed on the Senate calendar on February 11,
2008. The text of the bill with some revisions was also included in S.
2739, introduced on March 10, 2008, and placed on the Senate calendar
on March 11, 2008. As of our issuance date, S. 2739 was pending in the
Senate.
We re-printed the text of H.R. 3079, passed by the House, in this
appendix.
Title I-Northern Mariana Islands Immigration, Security, And Labor Act:
Section 101. Short Title.
This title may be cited as the "Northern Mariana Is- lands Immigration,
Security, and Labor Act".
Sec. 102. Statement Of Congressional Intent.
(a) Immigration And Growth.-In recognition of the need to ensure
uniform adherence to long-standing fundamental immigration policies of
the United States, it is the intention of the Congress in enacting this
title- (1) to ensure that effective border control procedures are
implemented and observed, and that national security and homeland
security issues are properly addressed, by extending the immigration
laws (as defined in section 101(a)(17) of the Immigration and
Nationality Act (8 U.S.C. 1101 (a)(17)), to apply to the Commonwealth
of the Northern Mariana Islands (referred to in this title as the
"Commonwealth"), with special provisions to allow for-
(A) the orderly phasing-out of the nonresident contract worker program
of the Commonwealth; and:
(B) the orderly phasing-in of Federal responsibilities over immigration
in the Commonwealth: and:
(2) to minimize, to the greatest extent practicable, potential adverse
economic and fiscal effects of phasing-out the Commonwealth's
nonresident contract worker program and to maximize the Common-
wealth's potential for future economic and business growth by-
(A) encouraging diversification and growth of the economy of the
Commonwealth in accordance with fundamental values underlying Federal
immigration policy;
(B) recognizing local self-government, as provided for in the Covenant
To Establish a Commonwealth of the Northern Mariana Is- lands in
Political Union With the United States of America through consultation
with the Governor of the Commonwealth;
(C) assisting the Commonwealth in achieving a progressively higher
standard of living for citizens of the Commonwealth through the pro-
vision of technical and other assistance;
(D) providing opportunities for individuals authorized to work in the
United States, including citizens of the freely associated states, and
(E) providing a mechanism for the continued use of alien workers, to
the extent those workers continue to be necessary to supplement the
Commonwealth's resident workforce, and to protect those workers from
the potential for abuse and exploitation.
(b) Avoiding Adverse Effects.--In recognition of the Commonwealth's
unique economic circumstances, history, and geographical location, it
is the intent of the Congress that the Commonwealth be given as much
flexibility as possible in maintaining existing businesses and other
revenue sources, and developing new economic opportunities, consistent
with the mandates of this title. This title, and the amendments made by
this title, should be implemented wherever possible to expand tourism
and economic development in the Commonwealth, including aiding
prospective tourists in gaining access to the Commonwealth's memorials,
beaches, parks, dive sites, and other points of interest.
Sec. 103. Immigration Reform For The Common- Wealth.
(A) Amendment To Joint Resolution Approving Covenant Establishing
Commonwealth Of The Northern Mariana Islands.-The Joint Resolution
entitled "A Joint Resolution to approve the 'Covenant To Establish a
Commonwealth of the Northern Mariana Is- lands in Political Union with
the United States of America', and for other purposes", approved March
24, 1976 (Public Law 94-241; 90 Stat. 263), is amended by adding at the
end the following new section:
"Sec. 6. Immigration And Transition. "(A) Application Of The
Immigration And Nationality Act And Establishment Of A Transition
Program.-
"(1) In General. Subject to paragraphs (2) and (3), effective on the
first day of the first full month commencing 1 year after the date of
the enactment of the Northern Mariana Islands Immigration, Security,
and Labor Act (hereafter referred to as the `transition program
effective date'), the provisions of the 'immigration laws' (as defined
in section 101(a) (17) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(17))) shall apply to the Common- wealth of the Northern Mariana
Islands (referred to in this section as the `Commonwealth'), except as
otherwise provided in this section.
"(2) Transition Period.-There shall be a transition period beginning on
the transition pro- gram effective date and ending on December 31,
2013, except as provided in subsections (b) and (d), during which the
Secretary of Homeland Security, in consultation with the Secretary of
State, the Attorney General, the Secretary of Labor, and the Secretary
of the Interior, shall establish, administer, and enforce a transition
program to regulate immigration to the Commonwealth, as provided in
this section (hereafter referred to as the `transition pro- gram').
"(3) Delay Of Commencement Of Transition Period.-
"(A) In General.-The Secretary of Homeland Security, in the Secretary's
sole discretion, in consultation with the Secretary of the Interior,
the Secretary of Labor, the Secretary of State, the Attorney General,
and the Governor of the Commonwealth, may determine that the transition
program effective date be delayed for a period not to exceed more than
180 days after such date.
"(B) Congressional Notification.-The Secretary of Homeland Security
shall notify the Congress of a determination under sub- paragraph (A)
not later than 30 days prior to the transition program effective date.
"(C) (Congressional Review-A delay of the transition program effective
date shall not take effect until 30 days after the (late on which the
notification under subparagraph (B) is made.
"(4) Requirement For Regulations.-The transition program shall be
implemented pursuant to regulations to be promulgated, as appropriate,
by the head of each agency or department of the United States having
responsibilities under the transition program.
"(5) Interagency Agreements.-The Secretary of Homeland Security, the
Secretary of State, the Secretary of Labor, and the Secretary of the
Interior shall negotiate and implement agreements among their agencies
to identify and assign their respective duties so as to ensure timely
and proper implementation of the provisions of this section. The
agreements should address, at a minimum, procedures to ensure that
Commonwealth employers have access to adequate labor, and that
tourists, students, retirees, and other visitors have access to the Com
monwealth without unnecessary delay or impediment. The agreements may
also allocate funding be- tween the respective agencies tasked with
various responsibilities under this section.
"(6) Certain Education Funding.-In addition to fees charged pursuant to
section 286(m) of the Immigration and Nationality Act (8 U.S.C.
1356(m)) to recover the full costs of providing adjudication services,
the Secretary of' Homeland Security shall charge an annual supplemental
fee of $150 per nonimmigrant worker to each prospective employer who is
issued a permit under subsection (d) of this section during the
transition period. Such supplemental fee shall be paid into the
Treasury of the Commonwealth government for the purpose of funding
ongoing vocational educational curricula and program development by
Commonwealth educational entities.
"(7) Asylum.-Section 208 of the Immigration and Nationality Act (8
U.S.C. 1158) shall not apply during the transition period to persons
physically present in the Commonwealth or arriving in the Commonwealth
(whether or not at a designated port of arrival), including persons
brought to the Commonwealth after having been interdicted in inter-
national or United States waters.
"(b) Numerical Limitations For Nonimmigrant Workers.-An alien, if
otherwise qualified, may seek ad- mission to Guam or to the
Commonwealth during the transition program as a nonimmigrant worker
under section 101(a)(15)(II) of the Immigration and Nationality Act (8
U.S.C. 11O1(a)(15)(H)) without counting' against the numerical
limitations set forth in section 214(g) of' such Act (8 U.S.C.
1184(g)). This subsection does not apply to any employment to be
performed outside of Guam or the Commonwealth. Not later than 3 years
following the transition program effective date, the Secretary of
Homeland Security shall issue a report to the Committee on Energy and
Natural Resources and the Committee on the Judiciary of the Senate and
the Committee on Natural Resources and the Committee on the Judiciary
of the House of Representatives projecting the number of asylum claims
the Secretary anticipates following the termination of the transition
period, the efforts the Secretary has made to ensure appropriate
interdiction efforts, provide for appropriate treatment of asylum
seekers, and prepare to accept and adjudicate asylum claims in the
Common- wealth.
"(c) Nonimmigrant Investor Visas.- "(1) In General.-Notwithstanding the
treaty requirements in section 101(a)(15)(E) of the Immigration and
Nationality Act, (8 U.S.C. 1101(a)(1 5)(E)), during the transition
period, the Secretary of Homeland Security may, upon the application of
an alien, classify an alien as a CNMT- only nonimmigrant under section
101(a)(15)(E)(ii) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(E)(ii)) if the alien-
"(A) has been admitted to the Common- wealth in long-term investor
status under the immigration laws of the Commonwealth before the
transition program effective date; "(B) has continuously maintained
residence in the Commonwealth under long-term investor status;
"(C) is otherwise admissible; and "(I)) maintains the investment or
investments that formed the basis for such long-term investor status.
"(2) Requirement For Regulations.-Not later than 60 days before the
transition program effective date, the Secretary of Homeland Security
shall publish regulations in the Federal Register to implement this
subsection.
"(d) Special Provision To Ensure Adequate Employment; Commonwealth Only
Transitional Workers.---An alien who is seeking to enter the Com-
monwealth as a nonimmigrant worker may be admitted to perform work
during the transition period subject to the following requirements.
"(1) Such an alien shall be treated as a non- immigrant described in
section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)), including the ability to apply, if other- wise eligible,
for a change of nonimmigrant classification under section 248 of such
Act (8 U.S.C. 1258) or adjustment of status under this section and
section 245 of' such Act (8 U.S.C. 1255).
"(2) The Secretary of Homeland Security shall establish, administer,
and enforce a system for allocating and determining the number, terms,
and conditions of permits to be issued to prospective employers for
each such nonimmigrant worker de- scribed in this subsection who would
not otherwise be eligible for admission under the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.) In adopting and enforcing this
system, the Secretary shall also consider, in good faith and not later
than 30 days after receipt by the Secretary, any comments and advice
submitted by the Governor of the Commonwealth. This system shall
provide for a reduction in the allocation of permits for such workers
on an annual basis, to zero, during a period not to extend beyond
December 31, 2013, unless extended pursuant to paragraph 5 of this
subsection, and shall take into account the number of petitions granted
under subsection (i). In no event shall a permit be valid beyond the
expiration of the transition period. This system may be based on any
reasonable method and criteria determined by the Secretary of Homeland
Security to promote the maximum use of, and to prevent adverse effects
on wages and working conditions of, workers authorized to be employed
in the United States, including lawfully admissible freely associated
state citizen labor. No alien shall be granted nonimmigrant
classification or a visa under this subsection unless the permit,
requirements established under this paragraph have been met.
"(3) The Secretary of Homeland Security shall set the conditions for
admission of such an alien under the transition program, and the
Secretary of State shall authorize the issuance of nonimmigrant visas
for such an alien. Such a visa. shall not lie valid for admission to
the United States, as defined in section 101(a)(38) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(38)), except admission to the
Commonwealth. An alien admitted to the Commonwealth on the basis of
such a visa shall be permitted to engage in employment only as
authorized pursuant to the transition program.
"(4) Such an alien shall be permitted to transfer between employers in
the Commonwealth during the period of such alien's authorized stay
therein, without permission of the employee's current or prior
employer, within the alien's occupational category or another
occupational category the Secretary of Homeland Security has found
requires alien workers to supplement the resident workforce.
"(5)(A) Not later than 180 days prior to the expiration of the
transition period, or any extension thereof, the Secretary of Labor, in
consultation with the Secretary of Homeland Security, the Secretary of
the Interior, and the Governor of the Commonwealth, shall ascertain the
current and anticipated labor needs of the Commonwealth and determine
whether an extension of up to 5 years of the provisions of this
subsection is necessary to ensure an adequate number of workers will be
available for legitimate businesses in the Commonwealth. For the
purpose of this subparagraph, a business shall not be considered
legitimate if it engages directly or indirectly in prostitution,
trafficking in minors, or any other activity that is illegal under
Federal or local law. The determinations of whether a. business is
legitimate and to what extent, if any, it may require alien workers to
supplement the resident workforce, shall be made by the Secretary of
Homeland Security, in the Secretary's sole discretion.
"(B) If the Secretary of Labor determines that such an extension is
necessary to ensure an adequate number of workers for legitimate
businesses in the Commonwealth, the Secretary of Labor may, through
notice published in the Federal Register, provide for an additional
extension period of up to 5 years.
"(C) In making the determination of whether alien workers are necessary
to ensure an adequate number of workers for legitimate businesses in
the Commonwealth, and if so, the number of such workers that are
necessary, the Secretary of Labor may consider, among other relevant
factors-
"(i) government, industry, or independent workforce studies reporting
on the need, or lack thereof, for alien workers in the Commonwealth's
businesses; "(ii) the unemployment rate of United States citizen
workers residing in the Common- wealth;
"(iii) the unemployment rate of aliens in the Commonwealth who have
been lawfully admitted for permanent residence;
"(iv) the number of unemployed alien workers in the Commonwealth;
"(v) any good faith efforts to locate, educate, train, or otherwise
prepare United States citizen residents, lawful permanent residents,
and unemployed alien workers already within the Commonwealth, to assume
those jobs;
"(vi) any available evidence tending to show that United States citizen
residents, lawful permanent residents, and unemployed alien workers
already in the Commonwealth are not willing to accept jobs of the type
offered;
"(vii) the extent to which admittance of alien workers will affect the
compensation, benefits, and living standards of existing workers within
those industries and other industries authorized to employ alien
workers; and:
"(viii) the prior use, if any, of alien workers to fill those industry
jobs, and whether the industry requires alien workers to fill those
jobs.
"(6) The Secretary of Homeland Security may authorize the admission of
a spouse or minor child accompanying or following to join a worker
admitted pursuant to this subsection.
"(c) Persons Lawfully Admitted Under The Commonwealth Immigration Law.
"(I) Prohibition On Removal.
"(A) In General.-Subject to subparagraph (B), no alien who is lawfully
present in the Commonwealth pursuant to the immigration laws of the
Commonwealth on the transition program effective date shall be removed
from the United States on the grounds that such alien's presence in the
Commonwealth is in violation of section 212(a)(6)(A) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(6)(A)), until the earlier of the
date-
"(i) of the completion of the period of the alien's admission under the
immigration laws of the Commonwealth; or "(ii) that is 2 years after
the transition program effective date.
"(B) Limitations.-Nothing in this subsection shall be construed to
prevent or limit the removal under subparagraph 212(a)(6)(A) of the
Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(A)) of such an
alien at any time, if the alien entered the Commonwealth after the date
of the enactment of the Northern Mariana Islands Immigration, Security,
and Labor Act, and the Secretary of Homeland Security has determined
that the Government of the Commonwealth has violated section 103(i) of
the Northern Mariana Islands Immigration, Security, and Labor Act.
"(2) Employment Authorization.-An alien who is lawfully present and
authorized to be employed in the Commonwealth pursuant to the
immigration laws of the Commonwealth on the transition program
effective date shall be considered authorized by the Secretary of
Homeland Security to be employed in the Commonwealth until the earlier
of the date-
"(A) of expiration of the alien's employment authorization under the
immigration laws of the Commonwealth or:
"(R) that is 2 years after the transition program effective date.
"(3) Registration.-The Secretary of Homeland Security may require any
alien present in the Commonwealth on or after the transition period
effective date to register with the Secretary in such a manner, and
according to such schedule. as he may in his discretion require.
Paragraphs (1) and (2) of this subsection shall not apply to any alien
who fails to comply with such registration requirement. Notwithstanding
any other law, the Government of the Commonwealth shall provide to the
Secretary all Commonwealth immigration records or other information
that the Secretary deems necessary to assist the implementation of'
this paragraph or other provisions of' the Northern Mariana Islands
Immigration, Security, and Labor Act. Nothing in this paragraph shall
modify or limit section 262 of' the Immigration and Nationality Act (8
U.S.C. 1302) or' other provision of the Immigration and Nationality Act
relating to the registration of aliens.
"(4) Removable Aliens.-Except as specifically provided in paragraph
(1)(A) of this subsection, nothing in this subsection shall prohibit or
limit the removal of any alien who is removable under the immigration
and Nationality Act.
"(5) Prior Orders Of Removal. The Secretary of Homeland Security may
execute any administratively final order of exclusion, deportation or
removal issued under authority of the immigration laws of the United
States before, on, or after the transition period effective date, or
under authority of the immigration laws of the Commonwealth before the
transition period effective date, upon any subject of such order found
in the Commonwealth on or after the transition period effective date,
regardless whether the alien has previously been removed from the
United States or the Commonwealth pursuant to such order.
"(f) Effect On Other Laws-The provisions of this section and of the
immigration laws, as defined in section 101(a)(17) of' the immigration
and Nationality Act (8 U.S.C. 1101(a)(17)), shall, on the transition
program effective date, supersede and replace all laws, provisions,
or programs of the Commonwealth relating to the admission of aliens and
the removal or aliens from the Commonwealth.
"(G) Accrual Of Time For Purposes Of Section 212(A)(9)(B) Of The
Immigration And Nationality Act.-No time that an alien is present in
the Common- wealth in violation of the immigration laws of the Com-
monwealth shall he counted for purposes of inadmissibility under
section 212(a)(9)(B) of the Immigration and Nationality Act (8 U.S.C.
1182(a)(9)(B)).
"(h) Report On Nonresident Guestworker Population. The Secretary of the
Interior, in consultation with the Secretary of Homeland Security, and
the Governor of the Commonwealth, shall report to the Congress not
later than 2 years after the date of the enactment of the Northern
Mariana Islands Immigration, Security, and Labor Act. The report shall
include- "(1) the number of aliens residing in the Com- monwealth;
"(2) a description of the legal status (under Federal law) of such
aliens;
"(3) the number of years each alien has been residing in the
Commonwealth;
"(4) the current and future requirements of the Commonwealth economy
for an alien workforce; and:
"(5) such recommendations to the Congress, as the Secretary may deem
appropriate, related to whether or not the Congress should consider
permit- ting lawfully admitted guest workers lawfully residing in the
Commonwealth on such enactment (late to apply for long-term status
under the immigration and nationality laws of the United States.".
(b) Waiver Of Requirements For Nonimmigrant Visitors.-The Immigration
and Nationality Act (8 U.S.C. 1101 et seq.) is amended-
(1) in section 214(a)(1) (8 U.S.C. 1184(a)(1))
(A) by striking "Guam" each place such term appears and inserting "Guam
or the Com- monwealth of the Northern Mariana Islands"; and:
(B) by striking "fifteen" and inserting "45";
(2) in section 212(a)(7)(B) (8 U.S.C. 1182(a)(7)(B)), by amending
clause (iii) to read as follows:
"(iii) Guam And Northern Mariana Islands Visa Waiver.-For provision
authorizing waiver of clause (i) in the ease of visitors to Guam or the
Commonwealth of the Northern Mariana Islands, see sub- section (1).";
and:
(3) by amending section 212(1) (S U.S.C. 1182(1)) to read as follows:
"(1) Guam And Northern Mariana Islands Visa Waiver Program.-
"(1) In General.-The requirement of sub- section (a)(7)(B)(i) may be
waived by the Secretary of Homeland Security, in the case of an alien
applying for admission as a nonimmigrant visitor for business or
pleasure and solely for entry into and stay in Guam or the Commonwealth
of the Northern Mariana Islands for a period not to exceed 45 days, if
the Secretary of Homeland Security, after consultation with the
Secretary of the Interior, the Secretary of State, the Governor of Guam
and the Governor of the Commonwealth of the Northern Mariana Islands,
determines that-
"(A) an adequate arrival and departure control system has been
developed in Guam and the Commonwealth of the Northern Mariana Is-
lands; and:
"(B) such a waiver does not represent a threat to the welfare, safety,
or security of the United States or its territories and commonwealths.
"(2) Alien Waiver Of Rights.-An alien may not be provided a waiver
under this subsection unless the alien has waived any right-
"(A) to review or appeal under this Act an immigration officer's
determination as to the admissibility of the alien at the port of entry
into Guam or the Commonwealth of the Northern Mariana. Islands; or:
"(B) to contest, other than on the basis of an application for
withholding of removal under section 241(b)(3) of this Act or under the
Convention Against Torture, or an application for asylum if permitted
under section 208, any action for removal of the alien.
"(3) Regulations.- All necessary regulations to implement this
subsection shall be promulgated by the Secretary of Homeland Security,
in consultation with the Secretary of the Interior and the Secretary of
State, on or before the 180th day after the date of the enactment of
the Northern Mariana Islands Immigration, Security, and Labor Act. The
promulgation of such regulations shall be considered a foreign affairs
function for purposes of section 553(a) of title 5, United States Code.
At a minimum, such regulations should include, but not necessarily be
limited to-
"(A) a listing of all countries whose nationals may obtain the waiver
also provided by this subsection, except that such regulations shall
provide for a listing of any country from which the Commonwealth has
received a significant economic benefit from the number of visitors for
pleasure within the one-year period preceding the date of the enactment
of the Northern Mariana Islands Immigration, Security, and Labor Act,
unless the Secretary of Homeland Security determines that such
country's inclusion on such list would represent a threat to the
welfare, safety, or security of the United Slates or its territories;
and:
"(B) any bonding requirements for nationals of some or all of those
countries who may present an increased risk of overstays or other
potential problems, if different from such requirements otherwise
provided by Law For Nonimmigrant Visitors.
"(4) Factors-In determining whether to grant or continue providing the
waiver under this subsection to nationals of any country, the Secretary
of Homeland Security, in consultation with the Secretary of the
Interior and the Secretary of State, shall consider all factors that
the Secretary deems relevant, including electronic travel
authorizations, procedures for reporting lost and stolen passports,
repatriation of aliens, rates of refusal for nonimmigrant visitor
visas, overstays, exit systems, and information exchange.
"(5) Suspension.-The Secretary of Homeland Security shall monitor the
admission of non- immigrant visitors to Guani and the Commonwealth of
the Northern Mariana Islands under this subsection. If the Secretary
determines that such admissions have resulted in an unacceptable number
of visitors from a country remaining unlawfully in Guam or the
Commonwealth of the Northern Mariana Islands, unlawfully obtaining
entry to other parts of the United States, or seeking withholding of
removal or asylum, or that visitors from a country pose a risk to law
enforcement or security interests of Guam or the Commonwealth of the
Northern Mariana. Islands or of the United States (including the
interest in the enforcement of the immigration laws of the United
States), the Secretary shall suspend the admission of nationals of such
country under this subsection. The Secretary of Homeland Security may
in the Secretary's discretion suspend the Guam and Northern Mariana
Islands visa waiver program at any time, on a country-by-country-
basis, for other good cause.
"(6) Addition Of Countries.-The Governor of Guam and the Governor of
the Commonwealth of the Northern Mariana Islands may request the
Secretary of the Interior and the Secretary of Homeland Security to add
a particular country to the list of countries whose nationals may
obtain the waiver provided by this subsection, and the Secretary of
Homeland Security may grant such request after consultation with the
Secretary of the Interior and the Secretary of State, and may
promulgate regulations with respect to the inclusion of that country
and any special requirements the Secretary of Homeland Security, in the
Secretary's sole discretion, may impose prior to allowing nationals of
that country to obtain the waiver provided by this subsection.".
(C) Special Nonimmigrant Categories For Guam And The Commonwealth Of
The Northern Mariana Islands-The Governor of Guam and the Governor of
the Commonwealth of the Northern Mariana Islands (referred to in this
subsection as "CNMI") may request that the Secretary of Homeland
Security study the feasibility of creating additional Guam or CNMI only
nonimmigrant visas to the extent that existing nonimmigrant visa
categories under the Immigration and Nationality Act do not provide for
the type of visitor, the duration of allowable visit, or other
circumstance. The Secretary of Homeland Security may review such a
request, and, after consultation with the Secretary of State and the
Secretary of the Interior, shall issue a report to the Committee on
Energy and Natural Resources and the Committee on the Judiciary of the
Senate and the Committee on Natural Resources and the Committee on the
Judiciary of the House of Representatives with respect to the
feasibility of creating those additional Guani or CNMT-only visa
categories. Consideration of such additional Guam or CNMI only visa
categories may include, but are not limited to, special nonimmigrant
statuses for investors, students, and retirees, but shall not include
nonimmigrant status for the purpose of employment in Guam or the CNMI.
(d) Inspection Of Persons Arriving From The Commonwealth Of The
Northern Mariana Islands; Guam And Northern Mariana Islands-Only Visas
Not Valid For Entry Into Other Parts Of The United States.--Section
212(d)(7) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(7))
is amended by inserting "the Commonwealth of the Northern Mariana
Islands," after "Guam.".
(e) Technical Assistance Program.-
(1) In General.-The Secretary of the Interior, in consultation with the
Governor of the Com- monwealth, the Secretary of Labor, and the
Secretary of Commerce, and as provided in the Interagency Agreements
required to he negotiated under section 6(a)(4) of the Joint Resolution
entitled "A Joint Resolution to approve the `Covenant To Establish a
Commonwealth of the Northern Mariana Islands in Political Union with
the United States of America', and for other purposes", approved March
24, 1976 (Public Law 94-241), as added by sub section (a), shall
provide-
(A) technical assistance and other support to the Commonwealth to
identify opportunities for, and encourage diversification and growth
of, the economy or the Commonwealth;
(B) technical assistance, including assistance in recruiting, training,
and hiring of workers, to assist employers in the Commonwealth in
securing employees first from among United States citizens and
nationals resident in the Commonwealth and if an adequate number of
such workers are not available, from among legal permanent residents,
including lawfully admissible citizens of the freely associated states;
and:
(C) technical assistance, including assistance to identify types of
jobs needed, identify skills needed to fulfill such jobs, and
assistance to Commonwealth educational entities to develop curricula
for such job skills to include 1 raining teachers and students for such
skills.
(2) Consultation. -In providing such technical assistance under
paragraph (1), the Secretaries shall-
(A) consult with the Government of the Commonwealth, local businesses,
regional banks, educational institutions, and other ex- perts in the
economy of the Commonwealth; and:
(B) assist in the development and implementation of a process to
identify opportunities for and encourage diversification and growth of
the economy of the Commonwealth and to identify and encourage
opportunities to meet the labor needs of the Commonwealth.
(3) Cost-Sharing.-For the provision of technical assistance or support
under this paragraph (other than that required to pay the salaries and
expenses of Federal personnel), the Secretary of the Interior shall
require a non-Federal matching contribution of 10 percent.
(f) Operations.
(1) Establishment.-At any time on and after the date of the enactment
of this Act, the Attorney General, Secretary of Homeland Security, and
the Secretary of Labor may establish and main- tain offices and other
operations in the Common- wealth for the purpose of carrying out duties
under-
(A) the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); and:
(B) the transition program established under section 6 of the Joint
Resolution entitled "A Joint Resolution to approve the `Covenant to
Establish a Commonwealth of the Northern Mariana Islands in Political
Union with the United States of America', and for other purposes",
approved March 24, 1976 (Public Law 94-241), as added by subsection (a)
of this section.
(2) Personnel.-To the maximum extent practicable and consistent with
the satisfactory performance of assigned duties under applicable law,
the Attorney General, Secretary of Homeland Security, and the Secretary
of Labor shall recruit and hire personnel from among qualified United
States citizens and national applicants residing in the Commonwealth to
serve as staff in carrying out operations described in paragraph (1).
(g) Conforming Amendments To Public is LAW 94-
(1) Amendments.----Public Law 94-241 is amended as follows:
(A) In section 503 of the covenant set forth in section 1, by striking
subsection (a) and redesignating subsections (b) and (c) as subsections
(a) and (b), respectively. (B) By striking section 506 of the covenant
set forth in section 1.
(C) In section 703(b) of the covenant set forth in section 1, by
striking. "quarantine, passport, immigration and naturalization" and
inserting "quarantine and passport".
(2) Effective Date.-The amendments made by paragraph (1) shall take
effect on the transition program effective date described in section 6
of Pub- lie Law 94-241 (as added by subsection (a)).
(h) Reports TO Congress.-
(1) In General-Not later than March 1 of the first year that is at
least 2 full years after the date of the enactment of this title, and
annually thereafter, the President shall submit to the Committee on
Energy and Natural Resources and the Committee on the Judiciary of the
Senate and the Committee on Natural Resources and the Committee on the
Judiciary of the House of Representatives a report that evaluates the
overall effect of the transition program established under section 6 of
the Joint Resolution entitled "A Joint Resolution to approve the
`Covenant To Establish a Commonwealth of the Northern Mariana Islands
in Political Union with the United States of America', and for other
purposes, approved March 24, 1976 (Public Law 94-241), as added by
subsection (a) of this section, and the Immigration and Nationality Act
(S U.S.C. 1101 et seq.) on the Commonwealth.
(2) Contents.--In addition to other topics otherwise required to be
included under this title or the amendments made by this title, each
report submitted under paragraph (1) shall include a description of the
efforts that have been undertaken during the period covered by the
report to diversify and strengthen the local economy of the
Commonwealth, including efforts to promote the Commonwealth as a
tourist destination. The report by the President shall include an
estimate for the numbers of non- immigrant workers described under
section 101(a)(15)(II) of the Immigration and Nationality Act (8 U.S.C.
101(a)(15)(II)) necessary to avoid adverse economic effects in Guam and
the Common- wealth.
(3) Gao Report.-The Government Accountability Office shall submit a
report to the Congress not later than 2 years after the date of the
enactment of this title, to include, at a minimum, the following'
items:
(A) An assessment of the implementation of this title and the
amendments made by this title, including an assessment of the
performance of Federal agencies and the Government of the Commonwealth
in meeting congressional intent.
(R) An assessment of the short-term and long-term impacts of
implementation of this title and the amendments made by this title on
the economy of the Commonwealth, including. its ability to obtain
workers to supplement its resident workforce and to maintain access to
its tourists and customers, and any effect on compliance with United
States treaty obligations mandating non-refoulement for refugees.
(C) An assessment of the economic benefit of the investors
"grandfathered" under subsection (c) of section 6 of the Joint
Resolution entitled "A Joint Resolution to approve the `Covenant To
Establish a Commonwealth of the Northern Mariana Islands in Political
Union with the United States of America', and for other purposes",
approved March 24, 1976 (Public Law 94-241), as added by subsection (a)
of this section, and the Commonwealth's ability to attract new
investors after the date of the enactment of this title.
(D) An assessment of the number of illegal aliens in the Commonwealth,
including any Federal and Commonwealth efforts to locate and repatriate
them.
(4) Reports By The Local Government.- The Governor of the Commonwealth
may submit an annual report to the President on the implementation of
this title, and the amendments made by this title, with recommendations
for future changes. The President shall forward the Governor's report
to the Congress with any Administration comment after an appropriate
period of time for internal review, provided that nothing in this
paragraph shall be construed to require the President to provide any
legislative recommendation to the Congress.
(5) Report On Federal Personnel And Re- Source Requirements.-Not later
than 180 days after the date of the enactment of this Act, the
Secretary of Homeland Security, after consulting with the Secretary of
the Interior and other departments and agencies as may be deemed
necessary, shall submit a report to the Committee on Natural Resources,
the Committee on Homeland Security, and the Committee on the Judiciary
of the House of Representatives, and to the Committee on Energy and
Natural Resources, the Committee on Homeland Security and Governmental
Affairs, and the Committee on the Judiciary of the Senate, on the
current and planned levels of Transportation Security Administration,
United States Customs and Border Protection, United States Immigration
and Customs Enforcement, United States Citizenship and Immigration
Services, and United States Coast Guard personnel and resources
necessary for fulfilling mission requirements on Guam and the
Commonwealth in a manner comparable to the level provided at other
similar ports of entry in the United States. In fulfilling this
reporting requirement, the Secretary shall consider and anticipate the
increased requirements due to the proposed realignment of military
forces on Guam and in the Commonwealth and growth in the tourism
sector.
(i) Required Actions Prior '10 Transition Program Effective Date.-
During the period beginning on the (late of the enactment of this Act
and ending on the transition program effective (late described in
section 6 of Public Law 94-241 (as added by subsection (a)), the
Government of the Commonwealth shall-
(1) not permit, an increase in the total number of alien workers who
are present in the Common- wealth as of the date of the enactment of
this Act; and:
(2) administer its Refoulement protection program-
(A) according to the terms and procedures set forth in the Memorandum
of Agreement entered into between the Commonwealth of the Northern
Mariana Islands and the United States Department of Interior, Office of
Insular Affairs, executed on September 12, 2003 (which terms and
procedures, including but not limited to funding by the Secretary of
the Interior and performance by the Secretary of Homeland Security of
the duties of "Protection Consultant" to the Commonwealth, shall have
effect on and after the date of the enactment of this Act), as well as
CNMI Public Law 13-61 and the Immigration Regulations Establishing a
Procedural Mechanism for Persons Requesting Protection from
Refoulement; and:
(B) so as not to remove or otherwise effect the involuntary return of'
any alien whom the Protection Consultant has determined to be eligible
for protection from persecution or torture.
(J) Conforming Amendments To The Immigration And Nationality Act.-The
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) is amended-
(1) in section 101(a)(15)(D)(ii), by inserting "or the Commonwealth of
the Northern Mariana Is- lands" after "Guam" each time such term
appears;
(2) in section 101(a)(36), by striking "and the Virgin Islands of the
United States" and inserting "the Virgin Islands of the United States,
and the Commonwealth of the Northern Mariana Islands";
(3) in section 101(a)(38), by striking "and the Virgin Islands of the
United States" and inserting "the Virgin Islands of the United States,
and the Commonwealth of the Northern Mariana Islands"; (4) in section
208, by adding at the end the following: "
(e) Commonwealth Of The Northern Mariana Islands.-The provisions of
this section and section 209(b) of this Act shall apply to persons
physically present in the Commonwealth of the Northern Mariana Islands
or arriving in the Commonwealth (whether or not at a designated port of
arrival and including persons who are brought to the Commonwealth after
having been inter- dieted in international or United States waters)
only on or after January 1, 2014."; and:
(5) in section 235(b)(1), by adding at the end the following:
"(G) Commonwealth Of The Northern Mariana Islands.--Nothing in this
subsection shall be construed to authorize or require any person
described in section 208(c) of this Act to be permitted to apply for
asylum under section 208 of this Act at an time before January 1,
2014.".
(k) Availability Of Other Nonimmigrant Professionals.-The requirements
of section 212(m)(6)(B) of the Immigration and Nationality Act, (8
U.S.C. 1182(m)(6)(B)) shall not apply to a facility in Guam, the
Commonwealth of the Northern Mariana Islands, or the Virgin Islands.
Sec. 104. Further Amendments To Public Law 94-241.
Public Law 94-241, as amended, is further amended in section 4(e)(3) by
striking the colon after "Marshall Islands" and inserting the
following: ", except that $200,000 in fiscal year 2009 and $225,000
annually for fiscal years 2010 through 2018 are hereby rescinded;
Provided, That the amount rescinded shall be increased by the same
percentage as that of the annual salary and benefit adjustments for
Members of Congress".
Sec. 105. Authorization Of Appropriations.
There are authorized to be appropriated such sums as may be necessary
to carry out this title.
Sec. 106. Effective Date.
(a) In General-Except as specifically provided in this section or
otherwise in this Act, this title and the amendments made by this title
shall take effect on the date of the enactment of this title.
(b) Amendments To The Immigration And Nationality Act.-The amendments
to the Immigration and Nationality Act made by this Act, and other
provisions of this Act applying the immigration laws (as defined in
section 101(0)(17) of Immigration and Nationality Act (8 U.S.C.
1101(a)(17))) to the Commonwealth, shall take effect on the transition
program effective date described in section 6 of Public Law 94-241 (as
added by section 103(a) of this Act), unless specifically provided
otherwise in this Act.
(c) Construction.-Nothing in this Act or the amendments made by this
Act shall be construed to make any residence or presence in the
Commonwealth before the transition program effective date described in
section 6 or Public Law 94-241 (as added by section 103(a) of this Act)
residence or presence in the United States, except that, for the
purpose only of determining whether an alien lawfully admitted for
permanent residence (as defined in section 101(a)(20) of the
Immigration and Nationality Act (8 U.S.C. 101(a)(20))) has abandoned or
lost such status by reason of absence from the United States, such
alien's presence in the Commonwealth before, on, or after the date of
the enactment of this Act shall be considered to be presence in the
United States.
Title Ii-Northern Mariana Islands Delegate Act:
Sec. 201. Short Title.
This title may be cited as the "Northern Mariana. Is- lands Delegate
Act".
Sec. 202. Delegate To House Of Representatives From Commonwealth Of The
Northern Mariana Islands.
The Commonwealth of the Northern Mariana Islands shall be represented
in the United States Congress by the Resident Representative to the
United States authorized by section 901 of the Covenant To Establish a
Common- wealth of the Northern Mariana Islands in Political Union With
the United States of America, (approved by Public Law 94-241 (48 U.S.C.
1801 et seq.)). The Resident Representative shall be a nonvoting
Delegate to the House of Representatives, elected as provided in this
title.
Sec. 203. Election Of Delegate.
(a) Electors And Time Of Election.-The Dele- gate shall be elected-
(1) by the people qualified to vote for the popularly elected officials
of the Commonwealth of the Northern Mariana Islands; and
(2) at the Federal general election of 2008 and at such Federal general
election every 2d year there- after.
(b) Manner Of Election.-
(1) In General.-The Delegate shall be elect- ed at large and by a
plurality of the votes east for the office of Delegate.
(2) Effect Of Establishment Of Primary Elections.-Notwithstanding
paragraph (1), if the Government of the Commonwealth of the Northern
Mariana Islands, acting pursuant to legislation enacted in accordance
with the Constitution of the Commonwealth of the Northern Mariana
Islands, provides for primary elections for the election of the
Delegate, the Delegate shall be elected by a majority of the votes east
in any general election for the office of Delegate for which such
primary elections were held.
(e) Vacancy.-In ease of a permanent vacancy in the office of Delegate,
the office of Delegate shall remain vacant until a successor is elected
and qualified.
((I) Commencement Of Term.-The term of the Delegate shall commence on
the 3d day of' January following the date of' the election.
Sec. 204. Qualifications For Office Of Delegate.
o be eligible for the office of' Delegate a candidate shall-
(1) be at least 25 years of age on the date of the election;
(2) have been a citizen of the United States for at least 7 years prior
to the date of the election; (3) be a resident and domiciliary of the
Commonwealth of the Northern Mariana Islands for at least 7 years prior
to the date of the election; (4) be qualified to vote in the
Commonwealth of the Northern Mariana Islands on the date of the
election; and:
(5) not be, on the date of the election, a. candidate for any other
office.
Sec. 205. Determination Of Election Procedure. Acting pursuant to
legislation enacted in accordance with the Constitution of the
Commonwealth of the Northern Mariana Islands, the Government of the
Common- wealth of the Northern Mariana Islands may determine the order
of names on the ballot for election of Delegate, the method by which a
special election to fill a permanent vacancy in the office of Delegate
shall be conducted, the method by which ties between candidates for the
office of Delegate shall be resolved, and all other matters of local
application pertaining to the election and the office of Delegate not
otherwise expressly provided for in this title.
Sec. 206. Compensation, Privileges, And Immunities.
Until the Rules of the House of Representatives are amended to provide
otherwise, the Delegate from the Com- monwealth of the Northern Mariana
Islands shall receive the same compensation, allowances, and benefits
as a Member of the House of Representatives, and shall be entitled to
whatever privileges and immunities are, or herein- after may be,
granted to any other nonvoting Delegate to the House of
Representatives.
Sec. 207. Lack Of Effect On Covenant. No provision of this title shall
be construed to alter, amend, or abrogate any provision of the covenant
referred to in section 202 except section 901 of the covenant.
Sec. 208. Definition.
For purposes of this title, the term "Delegate" moans the Resident
Representative referred to in section 202.
Sec. 209. Conforming Amendments Regarding Appointments To Military
Service Academies By Delegate From The Commonwealth Of The Northern
Mariana Islands.
(a) United States Military Academy.-Section 4342(a)(10) of title 10,
United States Code, is amended by striking "resident representative"
and inserting "Dele- gate in Congress".
(b) United States Naval Academy. Section 6954(a)(10) of such title is
amended by striking "resident representative" and inserting "Delegate
in Congress".
(e) United States Air Force Academy.-Section 9342(a)(10) of such title
is amended by striking "resident representative" and inserting
"Delegate in Congress". Passed the House of Representatives December
11, 2007.
Attest:
Clerk.
[End of section]
Appendix VI: Comments from the Commonwealth of the Northern Mariana
Islands:
Note: GAO comments supplementing those in the report text appear at the
end of this appendix.
Commonwealth Of The Northern Mariana Islands:
Caller Box 10007:
Saipan, MP 96950:
Telephone: (670) 664-2200/2300:
Facsimile: (670) 664-2211/2311:
Benigno R. Fitial:
Governor:
Timothy P. Villagomez:
Lieutenant Governor:
March 14, 2008:
David Gootnick:
Director, International Affairs and Trade:
Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Re: Comments Regarding Draft GAO Report:
Dear Mr. Gootnick:
At the request of Governor Benigno R. Fitial, I am providing the
comments of the Commonwealth of the Northern Mariana Islands regarding
the draft report of the Government Accountability Office ("GAO") dated
March 2008 entitled "Northern Mariana Islands: Pending Legislation
Would Apply U.S. Immigration Law to the CNMI With a Transition Period."
We address three issues of particular concern to the Commonwealth: (1)
the duration of the transition period during which the exemption from
the statutory caps on H visas will remain in effect; (2) the
relationship between the exemption from the statutory caps on H visas
and the CNMI-only permitting system; and (3) the relationship between
GAO's analysis of the legislation and its proposed study of the
legislation's economic impact on the Commonwealth. In an attachment to
this letter, we re submitting certain technical and stylistic comments
regarding the draft report.
(See comment 1.):
I. The Duration of the Legislation's Exemption from the Caps on H Visas
GAO asserts that the legislation's exemption for Guam and the
Commonwealth from the numerical limitations for nonimmigrant workers
seeking to enter the United States under either H-1B or H-2B visas
expires on December 31, 2013. The agency's conclusion is based on its
view that the transition period provided by the legislation cannot be
extended beyond this date. Such an interpretation ignores the relevant
language of the bill: subsections 6(a)(2) and 6(d)(5) both contemplate
an extension of the transition period. The GAO contention also
contradicts the only legislative history directly on point: the Report
of the House Committee on Natural Resources regarding H.R. 3079 (page
16) states: "The Secretaries of Labor, Homeland Security, and State
would be able to extend the transition period for an additional five
years; Congressional notification is required."
(See comment 2.):
The Commonwealth contends that the transition period does not end on
December 31, 2013, but can be extended for an indefinite number of
years by action of the Secretary of Labor pursuant to subsection
6(d)(5) of the legislation. We believe that this is the only reasonable
reading of the bill's provisions.
(See comment 1.):
Section 6 of the legislation amends the Covenant between the United
States and the Northern Mariana Islands. It is entitled "Immigration
and Transition" and has eight sections ” (a) through (h). Subsection
(a)(1) provides that the immigration laws will apply to the Northern
Mariana Islands "except as otherwise provided in this section" on the
"transition program effective date," which is established as "the first
day of the first full month commencing 1 year after the date" on which
the legislation was enacted.[Footnote 70]
Subsection (a)(2) is entitled "Transition Period" and provides:
"There shall be a transition period beginning on the transition program
effective date and ending on December 31, 2013, except as provided in
subsections (b) and (d), during which the Secretary of Homeland
Security [in consultation with other federal officials] shall
establish, administer, and enforce a transition program to regulate
immigration in the Commonwealth, as provided in this section (hereafter
referred to as the `transition program')."
Subsection (b), authorizing the exemption from the numerical caps on H
visas, contains no provision on the basis of which the transition
period (or the exception from the numerical caps) could be extended. It
provides: "An alien, if otherwise qualified, may seek admission to Guam
or to the Commonwealth during the transition program as a nonimmigrant
worker under section 101(a)(15)(H) of the Immigration and Nationality
Act (8 U.S.C.1101(a)(15) (H) without counting against the numerical
limitations set forth in section 214(g) of such Act (8 U.S.C.1184(g))."
In the absence of a specific date in this subsection, the exemption
from the numerical limitations exists so long as the transition program
defined in the proposed legislation continues in effect.[Footnote 71]
The only basis for an extension of the transition period is found in
subsection (d)(5) of the legislation. Subsection (d) is entitled
"Special Provision to Ensure Adequate Employment: Commonwealth Only
Transitional Workers." The first sentence of subsection (d) provides:
"An alien seeking to enter the Commonwealth as a nonimmigrant worker
may be admitted to perform work during the transition period subject to
the following requirements."
The subsequent numbered paragraphs of subsection (d) authorize a system
whereby nonimmigrant foreign workers may be employed in the
Commonwealth during the transition period so long as the Commonwealth
employer seeking to employ any such worker has a permit issued by
federal officials authorizing the employment of a foreign worker.
Subsection (d)(2) provides "for a reduction in the allocation of
permits for such workers on an annual basis, to zero, during a period
not to extend beyond December 31, 2013, unless extended pursuant to
paragraph 5 of this subsection." The paragraph referred to, subsection
(d)(5)(A), authorizes the Secretary of Labor, in consultation with
other federal officials and the Commonwealth, to "determine whether an
extension of up to 5 years of the provisions of this subsection is
necessary to ensure an adequate number of workers will be available for
legitimate businesses in the Commonwealth."
The GAO contention that such an extension by the Secretary of Labor
does not extend the transition period conflicts with the language of
the legislation in three important respects:
First, the Secretary of Labor under subsection (d)(5)(A) has the
authority to extend "the provisions of this subsection." The
"subsection" to which "this" refers is obviously subsection (d) in its
entirety. The first sentence of subsection (d) specifies that the
permit system for nonimmigrant workers applies only "during the
transition period." GAO contends that the Secretary can extend the
permit system under subsection (d)(5) without extending the transition
period. This interpretation conflicts squarely with the introductory
sentence in subsection (d).
(See comment 1.):
Second, subsection (a)(2) expressly provides that the transition period
could be extended under the provisions of subsection (d). The only
authority granted in subsection (d) to any federal official regarding
the applicable time limits of any aspect of the transition program is
the Secretary's authority under subsection (d)(5). Unless this
authority is interpreted as permitting extension of the transition
period, it renders the language Congress used in subsection (a)(2)
meaningless. Indeed, if GAO's interpretation were accepted, there would
be no statutory authority whatsoever in the legislation for any
extension of the transition period, notwithstanding the bill's
provisions and the legislative history to the contrary.
Third, Congress used the date of December 31, 2013, in only two
subsections of Section 6 ” in subsection (a)(2) to establish the end of
the transition period in the absence of an extension and in subsection
(d)(2) to fix the date at which all employer permits authorizing the
use of foreign workers would be reduced to zero. This was not an
accident: the goal of the legislation is to reduce the number of
foreign workers in the Commonwealth to zero, after which the federal
immigration laws would apply in full force, and the transition period
was designed to provide special conditions to ease the burdens on the
Commonwealth's economy until the statutory objective of zero was
achieved. Congress could have fixed different deadlines for the
transition period and the permit system, but chose not to do so. The
legislative history of this bill provides no support for the fixing of
different expiration dates for the various components of the transition
program.
Accordingly, affirmative action by the Secretary under subsection
(d)(5) will extend the transition period and the exemption from the
numerical limitations regarding H visas "during the transitional
program" will remain in effect under subsection (b) of the legislation.
(See comment 1.):
II. The Permitting System Mandated by the Legislation Applies to All
Nonimmigrant Workers in the Commonwealth:
The draft GAO report interprets the proposed legislation as enabling
CNMI employers to sponsor an unlimited number of nonimmigrant foreign
workers under the H visa program during the transition period to meet
their labor needs without complying with the CNMI-only permit system
established under subsection 6(d). GAO bases this assertion on two
provisions of the legislation: (1) the exemption from the numerical
caps on H visas provided by subsection 6(b); and (2) the provision in
subsection 6(d)(2) to the effect that the permit system applies to
"each such nonimmigrant worker described in this subsection who would
not otherwise be eligible for admission under [the INA]." The
Commonwealth disagrees with this reading of the legislation.
(See comment 3.):
A. The Cited Statutory Provisions Do Not Support GAO's Conclusions:
Neither subsection 6(b) nor the exclusionary clause in subsection
6(d)(2) supports GAO's contention that nonimmigrant foreign workers can
enter the Commonwealth during the transition period with H visas and
work for employers who do not have the necessary permits under the
system for transitional workers provided by subsection 6(d).
(See comment 3.):
As discussed above, subsection 6(b) permits foreign workers to seek an
H-1B or H-2B visa authorizing them to work in the Commonwealth without
regard to the numerical limitations that would otherwise apply. In the
absence of this exemption, the decision of the federal officials to
grant such visas to Guam or the Commonwealth would reduce the number
available to employers in other parts of the United States. All the
other requirements of the H visa program, however, would have to be met
” in particular the need to have a sponsoring employer who makes the
necessary labor certification with respect to its inability to find a
qualified United States citizen to fill the particular job. Subsection
6(b) does not require federal officials to grant any H visas. It
certainly does not specify that employers can obtain H visas for
nonimmigrant foreign workers outside of the permit system set forth in
subsection 6(d).
(See comment 1.):
If the drafters of H.R. 3079 as approved by the House of
Representatives had intended to exempt the workers coming in under the
H visa program from the Commonwealth-only transition program, they knew
how to do so. In the version of H.R. 3079 that was the subject of
hearings in August 2007, there was a provision for the use of
employment-based immigrant visas. Before such visas could be used, the
Secretary of Labor under subsection 6(c)(3) of the bill had to conclude
"that exceptional circumstances exist with respect to the inability of
employers in the Commonwealth to obtain sufficient work-authorized
labor, in addition to the Commonwealth-only transitional workers
authorized under section 103(d)." (emphasis supplied) As the United
States Supreme Court has observed, "where Congress includes particular
language in one section of a statute but omits it in another., it is
generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion." Keene Corp. v. United States,
508 U.S.200, 208 (1993) (quoting Russello v. United States, 464 U.S.16,
23 (1983).
The application of the permit system only to those nonimmigrant foreign
workers "who would not otherwise be eligible for admission [under the
INA]" cannot reasonably be interpreted to exclude all nonimmigrant
foreign workers who would be eligible for H visas as GAO maintains.
There was an obvious purpose for such an exemption – to make clear that
the permit system would not apply to nonimmigrant workers who are
entitled to enter the United States under treaties with foreign
countries; under the compacts of free association with Palau, the
Marshalls, and the Federated States of Micronesia; or under one of the
many specialized visa programs referenced by GAO in its draft report.
The GAO interpretation would potentially exclude from the permit system
many of the foreign workers that it is intended to reach. Such an
interpretation might exclude from the permit system some foreign
workers currently employed lawfully in the Commonwealth, who might be
eligible for H visas. It also suggests that employers would be
entitled, without numerical limitations of any kind, to bring workers
into the Commonwealth under H visas at the same time that the number of
workers subject to the permit system was being reduced on an annual
basis toward the eventual objective of eliminating all such permits.
(See comment 3.):
B. The Permit System Necessarily Applies to All Foreign Workers in the
Commonwealth:
The provisions of the legislation dealing with the CNMI-only foreign
worker program (with its permit system and annual reductions) indicate
that they apply to workers entering the Commonwealth on H visas, as
well as those workers currently in the Commonwealth who would be
entitled to a nonimmigrant classification.
Subsection 6(d) begins with this statement: "An alien who is seeking to
enter the Commonwealth as a nonimmigrant worker may be admitted to
perform work during the transition period subject to the following
requirements [of the permit system]" This certainly covers foreign
workers seeking to enter on an H-1B or H-2B visa.
Subsection 6(d)(2) states: "No alien shall be granted nonimmigrant
classification or a visa under this subsection unless the permit
requirements established under this paragraph have been met." This
subsection indicates that the permit system will cover both those
foreign workers entering the Commonwealth with a visa and those workers
already in the Commonwealth who could seek a nonimmigrant
classification which would enable the worker to be employed by an
employer with the necessary permit.
Subsection 6(d)(3) provides that the Secretaries of Homeland Security
and State shall establish the conditions for admitting such
nonimmigrant workers during the transition period and states: "An alien
admitted to the Commonwealth on the basis of such a visa shall be
permitted to engage in employment only as authorized pursuant to the
transition program."
These subsections make clear that all foreign workers are covered by
the permit system and will be allowed to work in the Commonwealth only
so long as their employer has a permit entitling the company to hire a
nonimmigrant foreign worker.
C. The GAO Interpretation Fails to Reflect the Purpose of the
Legislation:
The GAO interpretation is inconsistent with the principal objective of
the legislation – to reduce the number of nonimmigrant foreign workers
in the Commonwealth (19,824 as of December 31, 2007) to zero by
December 31, 2013, unless the transition period is extended until some
later date.
The legislation directs that the Commonwealth cannot increase the
number of foreign workers present in the Commonwealth on the date of
enactment of the legislation. It also provides that foreign workers
currently employed lawfully in the Commonwealth may continue to be
employed under their existing contracts after the transition program
effective date, but no longer than two years after that date. The draft
report's assertion that foreign workers will be available under the H
visa program during the transitional period outside of the restrictions
of the permit system cannot be squared with these provisions. As
discussed earlier, the GAO draft report concludes also that all such H
visas granted during the period up to December 31, 2013, must terminate
no later than that date.
(See comment 4.):
The cap on foreign workers in the Commonwealth after the legislation
becomes effective will necessarily limit the access of employers to
foreign workers outside the Commonwealth who would qualify to come in
under the H visa program. In the absence of new development ventures
requiring skills not presently available within the existing workforce,
it can be reasonably expected that employers will resort to the H visa
alternative principally to replace foreign workers currently employed
in the Commonwealth who, for one reason or another, leave their current
job.
Under these circumstances, it is difficult to reconcile the limitations
of the permit system, where the number of permits must be reduced to
zero, with the hypothetical H visa program under GAO's interpretation
of the bill providing employers with access to an unlimited number of
foreign workers entering on H visas, at least until December 31, 2013.
Such dual, and conflicting, programs are inconsistent with the overall
objectives of the legislation. The GAO report appears to assume that
the same federal officials required to enforce the stringent provisions
of the Commonwealth-only foreign worker permit system would conclude
that Congress intended them to admit all qualified H visa applicants
seeking to work in the Commonwealth (subject to the overall cap on
foreign workers) without regard to the permit system. Most federal
officials charged with implementing a new program would prefer
attributing to Congress a more consistent and plausible approach to
achieving its legislative objectives.
III. The GAO Economic Analysis Should Not be Based on Any Single Legal
Interpretation of the Legislation:
The legislation currently awaiting action by the Senate is poorly
drafted in two important respects. First, it is ambiguous and
insufficiently clear in its meaning, which results in the different
legal interpretations set forth in the GAO draft report and this
letter. Second, the legislation grants the implementing federal
agencies excessively broad discretion with respect to their shaping of
the transition program for nonimmigrant foreign workers in the
Commonwealth and the implementation of the visa waiver program for
nonimmigrant visitors to Guam and the Commonwealth. The GAO draft
report states repeatedly that it is unable to assess the likely impact
of some of the bill's most important provisions in the absence of the
future regulations to be drafted by the implementing agencies.
(See comment 5.):
Under these circumstances, we believe that GAO should not limit its
economic impact analysis to any single legal interpretation of the
legislation's most important provisions. We recommend instead that GAO
identify the principal alternative interpretations of the legislation
that might be adopted by the implementing agencies and discuss
separately, and clearly, the different economic consequences that would
result under each such interpretation. A thoughtful and careful
analytical effort along these lines would best serve the requesting
Members of Congress, the Commonwealth, and the implementing agencies.
We are not suggesting that GAO has an obligation to address each and
every possible interpretation of the legislation advanced by one or
more imaginative commentators. We believe that the two substantive
issues addressed in this letter provide examples of interpretations
different from those advanced in the GAO draft report which might be
the subject of separate economic analysis. Certainly the questions of
when the transition period ends under the Iegislation, and whether
workers entering the Commonwealth under H visas are exempt from the
permit system, raise important issues that need to be acknowledged and
analyzed by GAO in its economic impact report.
The Commonwealth has been assured that GAO intends to prepare a
"neutral" report based on the legislation, which we take to mean that
the agency's economic analysis will be presently on a purely factual
basis and not reflect any bias regarding the need for, or the merits
of, the legislation. Such an analysis should, in our opinion, look at
some of the critical issues raised by the bill with a clear
understanding of the relevant facts and the alternative consequences of
different agency decisions. A good example is provided by the question
of whether, and when, the transition program (in the Commonwealth's
view) or the permit system (in GAO's view) is extended for a period of
up to five years. The GAO draft report states (page 20) that "The
Secretary could issue the extension as early as desired within the
transition period and up to 180 days before the extension of the
transition period or any extension thereof." That is an accurate
statement of the relevant statutory provision. But we believe it is
very unrealistic to assume that the Secretary would seek an extension
early in the transition period, in light of the fact that the House of
Representatives shortened the transition period by four years (from
December 31, 2017 to December 31, 2013) without any stated reason for
so doing. It would be fair to conclude from this action that the House
of Representatives concluded that it was feasible and desirable to
remove all nonimmigrant foreign workers from the Commonwealth in less
than five years after the transition program effective date. A very
early decision by the Secretary to extend the period would appear to
conflict with that legislative judgment.
Because the extension decision is such a critical one in the
administration of the transition program defined by the legislation, we
suggest that the GAO analysis examine the economic impact of a decision
not to grant an extension, a decision to grant in the last year of the
period, and a decision to grant an extension at an earlier (but
realistic) date. Such an analysis would be of valuable assistance to
the implementing federal agencies, which are charged with the duty of
enforcing the law with the least possible adverse effects on the
Commonwealth, its citizens, and its foreign workers.
We continue to believe that a copy of the legislation should be
included in the GAO legal report so that readers of the report and the
attached comments may more conveniently examine the exact text of the
bill under discussion. We have also recommended that the Department of
Justice be requested to submit its views regarding the draft GAO
report.
(See comment 6.):
(See comment 7.):
Thank you for your consideration of these comments.
Sincerely,
Signed by:
Howard P. Willens, Special Legal Counsel to the Governor:
The following are GAO's comments on the Commonwealth of the Northern
Mariana Islands' letter dated March 14, 2008.
GAO Comments:
1. The CNMI government contended that the legislation allows the
exemptions from the numerical limitation on H visas to be extended
beyond the end of the transition period in 2013. We continue to
interpret the legislation to allow for an extension of the CNMI-only
work permit program beyond 2013 at the discretion of the Secretary of
Labor, but not to allow for an extension beyond 2013 of other
provisions of the transition program, including the exemptions from the
numerical limitations on H visas.[Footnote 69] As shown in appendix V,
subsection 6(a)(2) of H.R. 3079 establishes a transition period
"beginning on the transition program effective date and ending on
December 31, 2013, except as provided in subsections (b) and (d)."
Subsection 6(b) authorizes aliens to enter the CNMI with H visas
without counting against the numerical caps established by law for H
visas but confers no specific authority for extending this exemption
beyond 2013. Subsection 6(d) authorizes CNMI-only work permits to be
issued to employers for nonimmigrant workers who are not otherwise
admissible under federal law. Subsection 6(d)(5) allows the Secretary
of Labor to ascertain the labor needs of the CNMI and "determine
whether an extension of up to 5 years of the provisions of this
subsection is necessary to ensure an adequate number of workers" are
available in the CNMI. The "provisions of this subsection" refers only
to the provisions of subsection 6(d), the authorization for the CNMI-
only work permit, and not to other programs available during the
transition period. As the exemption from the numerical limitation on H
visas is contained in subsection 6(b), the exemption could not be
extended beyond 2013 without further legislation. Officials from the
Department of Homeland Security, the agency responsible for
implementing and administering the provisions of the transition period
under the pending legislation, agreed in interviews with our
interpretations of these provisions. The Department of Labor, which
will have the authority to extend the CNMI-only work permit beyond
2013, reviewed the draft report and provided no comments. The
Department of the Interior generally agreed with our findings.
2. The CNMI government relied in part on legislative history to support
its assertion that the H cap extensions can be extended past 2013. We
reviewed the House Report on which the CNMI relied and found nothing
inconsistent with our interpretation as stated in this report.
3. The CNMI government disagreed with our interpretation that the H
visas authorized in subsection 6(b) are a separate process from the
CNMI-only work permits authorized in subsection 6(d). According to the
CNMI's interpretation, employers of workers admitted under H visas
would have to obtain a CNMI-only work permit. However, the legislation
does not state that H visas are to be provided under the CNMI-only
permit work program. Also, subsection 6(d)(2) states that CNMI-only
work permits are to be issued for workers "who would not otherwise be
eligible for admission under the Immigration and Nationality Act (8
U.S.C. § 1101 et seq.)" The CNMI's contention that foreign workers who
enter the CNMI with an H visa must also obtain the CNMI-only work
permit directly conflicts with the language of the legislation. As H
visas are clearly a part of the Immigration and Nationality Act,
workers entering the CNMI with an H visa are necessarily excluded from
the CNMI-only permit process. Presumably, the federally-administered
permitting process for employers of H visa holders that is already in
place in the United States would apply to H visa holders in the CNMI
once federalization occurs, though the specifics of implementation will
be at the discretion of the Department of Homeland Security. Officials
from the Department of Homeland Security, which has responsibility for
implementing the legislation, agreed in interviews with our
interpretation of this provision. The Department of the Interior
generally agreed with our findings.
4. The CNMI incorrectly stated that "the GAO draft report concludes
also that all such H visas granted during the period up to December 31,
2013, must terminate no later than that date." While the caps would
limit the availability of new H visas for CNMI workers after the
transition period ends on December 31, 2013 or on December 31, 2014, we
note that the length of admission and other terms and conditions for
CNMI-only H nonimmigrants will be determined by DHS in its
implementation of the transition program and, according to DHS
officials, will adhere to federal requirements currently in place for H
visa holders the federal requirements. According to the current federal
requirements, (1) specialty workers who are admitted under H-1B visas
may not be authorized to stay any longer than 3 years initially, and up
to 6 years with extensions, and may not seek readmission for 1 year
after leaving, and (2) foreign workers admitted under H-2B visas are
authorized to stay for up to 1 year initially, and up to 3 years with
extensions.
5. The CNMI government contended that we should not base any further
work regarding the impact of the legislation on the CNMI economy on a
single legal interpretation. While the legislation is highly technical,
we believe we have provided a reasonable, objective interpretation of
the legislation that is consistent with the implementing agencies'
views. Officials from the Department of Homeland Security, the primary
implementing agency for the legislation, agreed in interviews with our
interpretation of this legislation. The Department of Labor, the agency
with the ability to extend the CNMI-only work permit program, reviewed
the draft report and provided no comments. As such, we believe our
interpretation of the legislation can be used appropriately as the
basis of further work on the potential economic impact of the
legislation. However, we agree such work should acknowledge the range
of possible federal decisions regarding implementation of the
legislation and regarding any extensions of the CNMI-only permit
program.
6. The CNMI government suggested that we include the text of the
pending legislation in this report. We have included the text of H.R.
3079, passed by the House, in appendix V.
7. The CNMI government also recommended that the draft report be
provided to the U.S. Department of Justice for comment. We did not
provide the draft report to the Department of Justice for review
because the pending legislation provides a limited role for the
department.
[End of section]
Appendix VII: Comments from the U.S. Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
US GAO:
March 12, 2008:
Mr. David Gootnick:
Director, International Affairs and Trade:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, DC 20548:
Dear Mr. Gootnick:
RE: Draft Report GAO-08-466, Northern Mariana Islands: Pending
Legislation Would Apply U.S. Immigration Law to the CNMI with a
Transition Period (GAO Job Code 320567).
The Department of Homeland Security (DHS) appreciates the opportunity
to review and comment on the draft report referenced above that
addresses the expected impact of pending legislation that would apply
U.S. immigration law to the Commonwealth of the Northern Mariana
Islands (CNMI) with a transition period.
In previous comments provided to GAO before issuance of the draft
report, DHS noted that aliens in the CNMI could seek protection from
persecution or torture. We ask that language to this effect be included
in the final report, so as to ensure readers understand that DHS is
mindful of U.S. Government treaty obligations during this transition
period.
In addition, DHS notes that the pending legislation would have direct
effects on U.S. Customs and Border Protection (CBP) facilities,
staffing and training requirements. Application of U.S. immigration law
to the CNMI would require CBP, for example, to procure sufficient
funding and human resources to establish CNMI ports of entry and/or
expand existing facilities. Other DHS component agencies with a
presence in the region also likely would be affected by the pending
legislation in terms of staffing and resource requirements.
Technical comments have been provided under separate cover.
Sincerely,
Signed by:
Steven J. Pecinovsky:
Director:
Departmental GAO/OIG Liaison Office:
[hyperlink, http://www.dhs.gov]:
[End of section]
Appendix VIII: Comments from the U.S. Department of the Interior:
The Associate Deputy Secretary Of The Interior:
Washington, DC 20240:
March 24, 2008:
Mr. David Gootnik:
Director, International Affairs and Trade:
United States Government Accountability Office:
Washington, DC 20548:
Dear Mr. Gootnik:
Thank you for the opportunity to review and comment on the Government
Accountability Office Draft Report No. GAO-08-466, entitled Northern
Mariana Islands, Pending Legislation Would Apply U.S. Immigration Law
to the CNMI with a Transition Period. In general, the Department of the
Interior finds that the Report presents a fair and objective study on
the effect of the new (pending) legislation. In addition, the
Department's Office of Insular Affairs has provided the following
information to your staff for consideration in the final report.
* Page 17 (the second bullet point regarding lawful permanent
residence): The Report's footnote actually expresses the issue more
thoroughly. Aliens in the United States who have Lawful Permanent
Residence, i.e., green cards, must not be absent from the United States
for a specified number of years, or they lose their LPR status.
Immediate relatives who have this status and who have come to live in
the CNMI were in danger of losing their LPR status because they were
technically outside the United States. The pending legislation would
fix that problem by specifying that any time in the CNMI should be
considered time in the United States for the purpose of determining
someone's continued presence in the United States.
* Page 25: The statement that the CNMI "law also stipulates that all
employers seeking worker permits for their temporary workers must be
able to demonstrate that they advertised the position and were unable
to find a qualified CNMI resident." The Report fails to note Section
4526's litany of exemptions (included in Public Law 15-108). For
example:
* 4526(c) provides an incentive exemption to any employer who
demonstrates that the local hire percentage for its management,
professional, human resources or other specified high paying, skilled
positions exceeds 30 percent of the employer's full-time workforce.
* 4526(d) provides discretion to continue the waivers granted to the
garment industry prior to January 1, 2007, regarding hiring of local
employees.
* As applicable in the Report, CNMI worker permit fees are annual.
Thank you again for the opportunity to comment on the Draft Report. If
you have any questions concerning the response, please communicate with
Nikolao Pula, Acting Deputy Assistant Secretary of the Interior for
Insular Affairs, at (202) 208-4736.
Sincerely,
Signed by:
James E. Cason:
[End of section]
Appendix IX: GAO Contact and Staff Acknowledgments:
GAO Contact:
David Gootnick, (202) 512-3149 or gootnickd@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Emil Friberg, Assistant
Director; Mark Speight, Assistant General Counsel; Marissa Jones,
Analyst-in-Charge; Ashley Alley, Senior Attorney; and Reid Lowe, Senior
Communications Analyst, made key contributions to this report. Diana
Blumenfeld, Ben Bolitzer, Ming Chen, and Eddie Uyekawa also contributed
to the report. Technical assistance was provided by George Taylor.
[End of section]
Footnotes:
[1] Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America (Pub. L.
No. 94- 241, § 1, 90 Stat. 263 (Mar. 24, 1976), 48 U.S.C. § 1801 note).
The covenant was approved by the U.S. and CNMI governments, as well as
by the CNMI people in a voting plebiscite. Under the covenant, the CNMI
is a self-governing commonwealth in political union with, and under the
sovereignty of, the United States.
[2] In this report, we use the term foreign workers to refer to workers
in the CNMI who are not U.S. citizens or lawful permanent residents.
These workers are also sometimes called nonresident workers, guest
workers, noncitizen workers, alien workers, or nonimmigrant workers. We
do not use the term to refer to workers from the Freely Associated
States of the Federated States of Micronesia, Republic of the Marshall
Islands, and Republic of Palau, who are permitted to work in the United
States, including the CNMI, under the Compacts of Free Association (48
U.S.C. § 1921 note).
[3] The Northern Mariana Islands Immigration, Security, and Labor Act
(H.R. 3079) passed the House of Representatives on December 11, 2007,
and was placed on the Senate calendar as Title VII of S. 2483 on
December 14, 2007. On January 30, 2008, the Senate Committee on Energy
and Natural Resources reported S. 1634, containing the text of H.R.
3079 as passed by the House. The text of the bill was included in S.
2616, introduced on February 8, 2008, and placed on the Senate calendar
on February 11, 2008. The text of the bill with some revisions was also
included in S. 2739, introduced on March 10, 2008, and placed on the
Senate calendar on March 11, 2008. The Senate Committee on Energy and
Natural Resources held related hearings on February 8 and July 19,
2007. The House Committee on Natural Resources, Subcommittee on Insular
Affairs, held related hearings on April 19 and August 15, 2007.
[4] Immigration laws include the Immigration and Nationality Act (INA)
and all laws, conventions, and treaties of the United States relating
to the immigration, exclusion, deportation, expulsion, or removal of
aliens (8 U.S.C. § 1101(a)(17)). The INA defines an alien as any person
who is not a citizen or national of the United States.
[5] Unless otherwise noted, transition period refers to the period
ending in 2013 under H.R. 3079, passed by the House, or in 2014 under
S. 2739, pending in the Senate.
[6] The legislation includes several provisions related to Guam,
including the expansion of options for nonimmigrants to enter and work
in Guam.
[7] 8 U.S.C. §1101 et. seq.
[8] Federal immigration law defines admission as "the lawful entry of
the alien into the United States after inspection and authorization by
an immigration officer" (8 U.S.C. §1101(a)(13)(A)).
[9] Both the CNMI's comments and the GAO response rely on H.R. 3079,
passed by the House, as the basis for interpretation. Under S. 2739,
pending in the Senate, the transition period would end December 31,
2014.
[10] GAO, U.S. Insular Areas: Economic, Fiscal, and Accountability
Challenges, GAO-07-119 (Washington, D.C.: Dec. 12, 2006); and GAO,
Commonwealth of the Northern Mariana Islands: Serious Economic, Fiscal,
and Accountability Challenges, GAO-07-746T (Washington, D.C.: Apr. 19,
2007).
[11] U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq
Accountability Appropriations Act, 2007 (Pub. L. No. 110-28, § 8103,
121 Stat. 188 (May 25, 2007)).
[12] In 1947, the United Nations gave the United States authority to
administer the Trust Territory of the Pacific Islands, which included
the Northern Mariana Islands. The trusteeship over the Northern Mariana
Islands was formally dissolved in 1986.
[13] Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America (Pub. L.
No. 94-241, § 1, 90 Stat. 263 (Mar. 24, 1976), 48 U.S.C. § 1801 note).
[14] If such legislation does not apply generally to all states, it
must specifically name the CNMI to become effective there.
[15] The covenant also made certain provisions of the Social Security
Act, the Public Health Service Act, and the Micronesian Claims Act
applicable to the CNMI.
[16] Section 506 of the Covenant applies certain provisions of the INA
relating to citizenship and family-based permanent immigration to the
CNMI. The T and U nonimmigrant provisions of the INA also apply to
CNMI. See 8 U.S.C. § 1101(a)(15)(T)-(U). In addition, the Covenant
provided U.S. citizenship to legally qualified CNMI residents.
[17] Exemptions from this requirement can be granted for businesses
that employ fewer than five people, construction projects of limited
duration, light manufacturing, and for employers who fill other full-
time positions with substantially more than 30 percent of the workforce
from citizens and permanent residents.
[18] We did not review the extent to which the resident hiring
requirements were enforced or implemented.
[19] If a foreign worker's contract expires or terminates without
renewal, the worker must be replaced with a citizen or permanent
resident, unless the worker falls into an exempted job category. We did
not review the extent to which the moratorium was enforced or
implemented.
[20] CNMI regulations for foreign investors also require a $100,000
security deposit; however, CNMI officials were unable to verify this
requirement.
[21] 8 U.S.C. § 1101(a)(15).
[22] For purposes of the H-1B visa, "specialty occupation" is defined
as one that requires a theoretical and practical application of a body
of highly specialized knowledge, and attainment of a bachelor's or
higher degree in that specific specialty as a minimum for entry into
the United States (8 U.S.C. § 1184(i)). H-1B(1) visas apply to
specialty workers admitted under the U.S.-Chile Free Trade Agreement or
the U.S.- Singapore Free Trade Agreement, and H-1C visas are available
for temporary registered nurses. Unlike other nonimmigrant categories,
H-1B and H-1C visa holders may lawfully seek to become a permanent
resident of the United States at the end of the authorized nonimmigrant
stay.
[23] Under certain circumstances, workers are permitted to stay in H-1B
status longer than six years. Under federal law, H-1Bs who have had a
labor certification application or an employment-based immigrant
petition pending for more than one year may be granted one-year
extensions of their H-1B status until a decision is made on their
request for permanent residency (American Competitiveness in the Twenty-
first Century Act of 2000, Pub. L. No. 106-313, §106(a) (Oct. 17,
2000)). In addition, an alien is eligible for an extension of H-1B
status if he or she is the beneficiary of an I-140 petition and would
be eligible to be granted immigrant status but for the application of
per country limitations applicable to immigrants under INA §§
203(b)(1), (2) or (3), (AC-21, Pub. L. No. 106-313, §104(c)).
[24] H-2A employers must comply with the federal labor certification
process, which determines whether the employment is agricultural in
nature, whether it is open to U.S. workers and if qualified U.S.
workers are available, the adverse impact of employment of a qualified
alien, and whether employment conditions (e.g., housing) meet
applicable requirements (8 C.F.R. § 214.2(h)(5)(ii)).
[25] The H-2B category applies to residents of foreign countries who
are coming to the United States temporarily to perform nonagricultural
temporary labor or service if unemployed persons capable of performing
such labor or service are unable to be found in the United States (8
U.S.C. § 1101(a)(15)(H)(ii)(B)).
[26] In the past, Congress has revised the numerical limitations
applicable to some nonimmigrant categories. For example, the limitation
for H-1B visas was 115,000 workers in fiscal years 1999 and 2000 and
was 195,000 workers in fiscal years 2001 to 2003 (8 U.S.C. §
1184(g)(1)(A)). In addition, numerical limitations exist for other H
categories, including H-1B DOD project workers, which may not exceed
100 at any time; H-1C nurses, which may not exceed 500 in a fiscal
year; and H-3 special education visitor exchange program participants,
which may not exceed 50 (8 C.F.R. §214.2(h)(8)).
[27] In August 2007, Congress passed legislation that provides DHS with
the authority to admit countries with refusal rates for business and
tourism visas that are between 3 and 10 percent under the Visa Waiver
Program if the countries meet certain conditions. For example,
countries must meet all mandated Visa Waiver Program security
requirements and cooperate with the United States on counterterrorism
initiatives. Before DHS can exercise this new authority, the
legislation requires that the department complete certain actions aimed
at enhancing the security of the Visa Waiver Program. These include
establishing a biometric air exit system that can verify the departure
of at least 97 percent of foreign nationals departing through U.S.
airports and certifying that an electronic travel authorization system
is fully operational. See Implementing Regulations of the 9/11
Commission Act of 2007 (Pub.L. No. 110-53, §711, 121 Stat. 338 (Aug. 3,
2007)).
[28] Federal law also waives visa requirements for B admissions of
nationals from Canada and some other Western Hemisphere countries,
including Bermuda.
[29] Federal regulations distinguish investing "a substantial amount of
capital in a bona fide enterprise" from a relatively small amount of
capital in a marginal enterprise solely for the purpose of earning a
living (8 C.F.R. § 214.2(e)(2)(iii)).
[30] The Governor of the CNMI retains the authority to provide for
primary elections for the delegate, in which case the delegate will be
elected by a majority of the votes cast in any general election for
which primaries are held. The delegate must be at least 25 years old,
have been a citizen of the United States and a resident of the CNMI for
at least 7 years prior to the election, be qualified to vote in the
CNMI, and not be a candidate for any other office.
[31] Upon the date of enactment of the legislation, the CNMI is
required to implement a refugee protection program under the terms of
its 2003 memorandum of understanding with DOI regarding the protection
of refugees and cannot remove any alien whom the DHS protection
consultant has deemed to be eligible for protection from persecution or
torture. On the transition program effective date, the U.S. government
will begin direct implementation of its treaty obligations with respect
to aliens in the CNMI.
[32] Aliens physically present in the CNMI are protected by the
provisions of the 1967 Protocol Relating to the Status of Refugees,
which generally prohibits removal of an alien to a country where he or
she would likely be persecuted on account of race, religion,
nationality, membership in a particular social group, or political
opinion. Aliens are also protected by the provisions of the Convention
Against Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, which prohibits removal of an alien to a country where he
or she would likely be tortured. In addition to international treaty
obligations, federal law requires protecting these aliens by
withholding removal pursuant to INA § 241(b)(3), withholding removal
under the Convention Against Torture pursuant to 8 C.F.R. § 208.16, and
deferring removal under the Convention Against Torture pursuant to 8
C.F.R. § 208.17.
[33] Previous versions of similar legislation included different
authorities for extending provisions of the transition period. The
current legislation grants the Secretary of Labor the discretion to
extend the issuance of CNMI-only permits beyond the end of the
transition period. We do not interpret this provision to allow for
uncapped H visas beyond 2013 or 2014. The CNMI government, however,
interprets the current legislation to allow for extensions of the H
visa cap exemptions, the CNMI-only permit, and other provisions of the
transition period program beyond 2013 (2014 under S. 2739). In
addition, the CNMI government interprets the H visa cap exemptions as
being part of the CNMI-only permit program.
[34] In any fiscal year, H-1B visas for certain specialty workers are
limited to 65,000, and H-2B visas for other temporary workers are
limited to 66,000 (8 U.S.C. § 1184(g)(1)(A)(vii) and 8 U.S.C. §
1184(g)(1)(B)). Exemptions from the cap for H-1B visas exist for
certain individuals, including those who hold a master's degree or
higher from a U.S. institution and those who are employed with a
nonprofit research or government research organization (8 U.S.C. §
1184(g)(5)).
[35] These ineligible workers include those who do not meet the skill
or education requirements of the H-1B visa but who are performing
continuous work and, thus, do not meet the seasonal or temporary
requirements of the H-2 visas or other specific requirements in H visa
categories.
[36] The pending legislation also includes a provision stating that
people present in the CNMI or arriving in the CNMI during the
transition period are not eligible to apply for asylum under federal
law before January 1, 2014. According to DHS, they could apply for
other forms of protection from persecution or torture in defense to
removal. Under federal law, aliens present in the United States may
generally apply for asylum if certain conditions are met. Aliens can be
provided asylum under federal law if they can demonstrate that they
meet the requirements for refugee status and are not otherwise
disqualified (8 U.S.C. § 1158).
[37] Under S. 2739 pending in the Senate, the U.S. Secretary of Labor
also must consult with the U.S. Secretary of Defense.
[38] Illegitimate businesses include those that engage in prostitution,
trafficking in minors, or any other activity that is illegal under
federal or local law.
[39] However, any alien who would be subject to removal under the INA
for not having been properly admitted (i.e., not being legally present
in the CNMI under CNMI or U.S. laws) would still be subject to removal
under the proposed legislation.
[40] In fiscal year 2005, the limit was reached on the first day, and
the limit for fiscal year 2006 was reached before the fiscal year
began. The fiscal year 2008 H-1B cap was reached within the first 2
days petitions were accepted in April 2007. In addition, for H-2B
visas, the cap for the first half of the visas available for fiscal
year 2008 was reached in September 2007, and the cap for the second
half was reached in January 2008.
[41] In addition to the annual fee of $250 paid by employers, foreign
workers in the CNMI are responsible for paying an annual alien
registration fee of $25.
[42] For our analysis, we converted the U.S. H visa range of fees to an
annual range. H-1B visas are typically valid for up to 3 years, and
petition fees range from $320 to $2,320, depending on whether fraud
prevention and other supplemental fees are required. H-1B visas may be
renewed for an additional 3 years, and the petition renewal fees are
the same as the initial petition fees; however, the $500 fraud
prevention and detection fee is required only the first time a
petitioner files for a worker. H-2A visa fees are $320, in addition to
$100 plus $10 for each additional worker for labor certification by
DOL. H-2B visa fees are $470. See appendix III.
[43] We did not analyze the full cost of obtaining a foreign worker in
either the United States or the CNMI. Costs other than petition and
visa fees and bonds may include renewal and status adjustment fees;
biometric fees; fees for expedited service; user fees, such as
immigration inspection fees included in the cost of airline tickets;
legal costs; worker health examinations and care; transportation;
benefits; and other costs.
[44] U.S. immigration law provides authority to require nonimmigrant
bonds on a case-by-case basis, but according to DHS, it is rarely used
in practice. See 8 U.S.C. § 1184(a), 8 C.F.R. § 103.6(d)(2), and 8
C.F.R. § 214.1(a)(3)(iii).
[45] Subject to waivers, federal law requires nonimmigrants to have a
passport valid for at least 6 months from the date of expiration of
their admission or contemplated initial period of stay authorizing them
to go to another country and to have a valid nonimmigrant visa or
border crossing identification card (8 U.S.C. § 1182(a)(7)(B)(i)).
[46] Aliens admitted under the visa waiver program for tourism or
business must waive all rights to appeal their admissibility under the
INA or to contest removal, unless they are seeking asylum or protection
from torture.
[47] 8 U.S.C. §1187. In addition, applicants to the U.S. Visa Waiver
Program must have machine-readable biometric passports if issued after
October 26, 2006, execute proper immigration forms, follow proper
procedures for entry into the United States, have been determined not
to represent a threat to the United States, have no previous
immigration violation, possess a round-trip transportation ticket, and
have successfully passed an automated background check. Nationals of
countries not on the general Visa Waiver Program list may apply for
visitor visas at U.S. consulates around the world.
[48] For countries to qualify for participation in the Guam visa waiver
program, they must have a business and tourism visa refusal rate of
16.9 percent or less or a preclearance program pursuant to a bilateral
agreement with the United States. Eligible countries must be in
geographical proximity to Guam or have a substantial volume of
nonimmigrants traveling to Guam and extend reciprocal privileges to
U.S. citizens, cannot be designated by the Department of State as being
of special humanitarian concern, and must pose no threat to the safety
and security of the United States.
[49] In order of the CNMI Attorney General dated March 23, 2004
includes the Republic of Korea, Hong Kong, and Canada in the CNMI's
permit waiver program, but CNMI officials said that this order was no
longer in effect. The officials said that the CNMI currently waives
permit requirements only for visitors from countries included in the
U.S. Visa Waiver Program. They could not identify any document
specifically revoking the 2004 order, and an official said the CNMI
planned to issue clarification to the policy in the near future. While
Canada is not included in the U.S. Visa Waiver Program, nationals of
Canada may also, in most circumstances, qualify for visa-free travel to
the United States.
[50] DHS may suspend a country from the visa waiver program if DHS
determines that an unacceptable number of visitors from that country
are remaining unlawfully in either the CNMI or Guam, unlawfully
obtaining entry into other parts of the United States, seeking asylum,
or contesting removal. In addition, DHS may suspend a country from the
program if it determines that the country poses a risk to the law
enforcement or security interests of the United States, the CNMI, or
Guam. DHS can also suspend the visa waiver program on a country-by-
country basis for other good cause.
[51] Countries currently included in the CNMI's comity entry permit
program include Australia, Canada, Ireland, Japan, New Zealand,
Singapore, Republic of Korea, and the United Kingdom.
[52] Nationals of 31 designated countries and regions, including Iran,
China's Fujian Province, and Indonesia, require waivers in order to
enter the CNMI. The CNMI Attorney General has the authority to
discontinue issuance of entry permits to residents of any country or
subdivision thereof upon determining that the government of the country
is unable to provide adequate information on backgrounds of persons
embarking from that location; that the CNMI cannot promptly and
accurately assess the backgrounds of such persons; or that the
admission of such persons poses an unacceptable risk to the security,
health, and welfare of the CNMI.
[53] The CNMI and China currently have a memorandum of understanding
that facilitates tourist travel to the CNMI. Under the pending
legislation, this would likely be replaced by a U.S.-China memorandum
of understanding that will be implemented in spring 2008 for Chinese
tourists seeking to enter the United States. The U.S. memorandum
facilitates Chinese leisure group travel to the United States by
complying with Chinese regulatory requirements for Chinese tourists
traveling abroad, but it has no effect on U.S. visa requirements.
[54] In July 2006, we reported that DHS and State were consulting with
13 countries, including the Republic of Korea, seeking admission into
the U.S. Visa Waiver Program. The other countries were Bulgaria,
Cyprus, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania,
Malta, Poland, Romania, and Slovakia. As noted earlier, in August 2007,
Congress passed legislation that provides DHS with the authority to
admit countries with refusal rates between 3 and 10 percent under the
Visa Waiver Program if the countries meet certain conditions and if DHS
implements certain security measures. The Republic of Korea's refusal
rate in fiscal year 2007 was 4.4 percent. GAO, Process for Admitting
Additional Countries into the Visa Waiver Program, GAO-06-835R
(Washington, D.C.: July 28, 2006) and GAO, Visa Waiver Program:
Limitations with the Department of Homeland Security's Plan to Verify
Departure of Foreign Nationals, GAO-08-458T (Washington, D.C.: Feb. 28,
2008).
[55] The new business must be established after 1990.
[56] Federal law requires investments of between $1 million and $3
million in a high-employment area.
[57] CNMI regulations for foreign investors also require a $100,000
security deposit; however, CNMI officials were unable to verify this
requirement.
[58] Aliens may also enter under E-1 treaty trader status to carry on
international trade of a substantial nature.
[59] Treaty countries are defined as foreign states with which a
qualifying treaty of friendship, commerce, or navigation, or its
equivalent, exists with the United States.
[60] Generally, the lower the cost of the enterprise, the higher,
proportionately, the investment must be to be considered a substantial
amount of capital. In addition, for an E-2 visa, investment is defined
as the placing of capital at commercial risk with the objective of
generating a profit, and the investor must be in possession of and have
total control over the capital being invested. The capital must be
subject to loss if investment fortunes reverse, must be the investor's
unsecured personal business capital or capital secured by personal
assets, and must be irrevocably committed to the enterprise.
[61] Other requirements must be developed by DHS and published as
regulations at least 60 days before the start of the transition period.
[62] As noted above, during the transition period, CNMI foreign
investors converting to E-2 status do not have to meet the treaty
requirements for E-2 visa holders.
[63] CNMI and federal immigration laws currently provide for the
admission of students. To qualify for a U.S. F visa under federal law,
students must demonstrate appropriate financial support and must show
proof of admission by an approved school, among other requirements. F
visas are issued for the duration of the period in which the student is
pursuing a full course of study, and spouses and minor children are
allowed to accompany the F-visa holder in some circumstances. Related
nonimmigrant categories available for study purposes include J exchange
visitors and M vocational students.
[64] Both the CNMI's comments and the GAO response rely on H.R. 3079,
passed by the House, as the basis for interpretation. Under S. 2739,
pending in the Senate, the transition period would end December 31,
2014.
[65] 8 U.S.C. §1101 et. seq.
[66] Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America (Pub. L.
No. 94-241, § 1, 90 Stat. 263 (Mar. 24, 1976) and 48 U.S.C. § 1801).
[67] U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq
Accountability Appropriations Act, 2007 (Pub. L. No. 110-28, §8103, 121
Stat. 188 (May 25, 2007)).
[68] H.R. Rep. 110-469, Amending the Joint Resolution Approving the
Covenant to Establish a Commonwealth of the Northern Mariana Islands,
and for Other Purposes (Dec. 4, 2007).
[69] Subsections (a)(3)(A)-(C) provide for a delay of the transition
program effective date by 180 days if the Secretary of Homeland
Security, after consultation with the other federal agencies and the
Commonwealth, so determines, subject to notification of Congress of the
proposed delay and a deferral of such extension for 30 days after the
notification of Congress.
[70] As originally introduced in the House of Representatives, H.R.3079
made no reference to subsection 6(b) in subsection 6(a)(2) as providing
any basis for a modification of the December 31, 2013 date terminating
the transition period. No explanation is found in the House Committee
report for the addition of this subsection in the version of the bill
reported out by the Committee.
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