Commonwealth of the Northern Mariana Islands
DHS Should Conclude Negotiations and Finalize Regulations to Implement Federal Immigration Law Gao ID: GAO-10-553 May 7, 2010In May 2008, the United States enacted the Consolidated Natural Resources Act (CNRA), amending the United States' Covenant with the Commonwealth of the Northern Mariana Islands (CNMI) to establish federal control of CNMI immigration in 2009, with several CNMI-specific provisions affecting foreign workers and investors during a transition. CNRA requires that GAO report on implementation of federal immigration law in the CNMI. This report describes the steps federal agencies have taken to (1) secure the border in the CNMI and (2) implement CNRA with regard to workers, visitors, and investors. GAO reviewed federal laws, regulations, and agency documents; met with U.S. and CNMI officials; and observed federal operations in the CNMI.
The Department of Homeland Security (DHS) components Customs and Border Protection (CBP), Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS) have each taken steps to secure the border in the CNMI in accordance with CNRA. From November 28, 2009, to March 1, 2010, CBP processed 103,565 arriving travelers at CNMI airports, and ICE processed 72 aliens for removal proceedings. In calendar year 2009, USCIS processed 515 CNMI applications for permanent U.S. residency and 50 CNMI applications for U.S. naturalization or citizenship. However, the DHS components face operational challenges and have been unable to negotiate solutions with the CNMI government. First, airport space available to CBP does not meet facility standards and CBP has not reached a long-term occupancy agreement with the CNMI. Second, ICE has not come to an agreement with the CNMI for access to detention space and as a result has transferred 3 of 30 aliens--convicted criminals under CNMI or U.S. law--to correctional facilities in Guam and Honolulu. Third, DHS efforts to gain direct access to the CNMI's immigration databases have been unsuccessful, hampering U.S. enforcement operations. DHS has begun to implement work permit and visa programs for foreign workers, visitors, and investors, but key regulations are not final and certain transition programs therefore remain unavailable. A lawsuit filed by the CNMI government challenging some provisions of the CNRA resulted in a court injunction delaying implementation of the CNMI-only transitional worker program until DHS considers public comments and issues a new rule. As a result this program is unavailable to employers as of May 1, 2010. DHS has established the Guam-CNMI visa waiver program. However, DHS did not include China and Russia, two countries that provide significant economic benefit to the CNMI. Currently, DHS allows nationals from these two countries into the CNMI temporarily without a visa under the DHS Secretary's parole authority. DHS is reconsidering whether to include these countries in the Guam-CNMI visa waiver program. Although DHS has proposed rules that apply temporary U.S. nonimmigrant treaty investor status to investors with CNMI foreign investor entry permits, the program is not yet available.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: David B. Gootnick Team: Government Accountability Office: International Affairs and Trade Phone: No phone on recordGAO-10-553, Commonwealth of the Northern Mariana Islands: DHS Should Conclude Negotiations and Finalize Regulations to Implement Federal Immigration Law
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Report to Congressional Committees:
United States Government Accountability Office:
GAO:
May 2010:
Commonwealth Of The Northern Mariana Islands:
DHS Should Conclude Negotiations and Finalize Regulations to Implement
Federal Immigration Law:
GAO-10-553:
GAO Highlights:
Highlights of GAO-10-553, a report to congressional committees.
Why GAO Did This Study:
In May 2008, the United States enacted the Consolidated Natural
Resources Act (CNRA), amending the United States‘ Covenant with the
Commonwealth of the Northern Mariana Islands (CNMI) to establish
federal control of CNMI immigration in 2009, with several CNMI-
specific provisions affecting foreign workers and investors during a
transition. CNRA requires that GAO report on implementation of federal
immigration law in the CNMI. This report describes the steps federal
agencies have taken to (1) secure the border in the CNMI and (2)
implement CNRA with regard to workers, visitors, and investors. GAO
reviewed federal laws, regulations, and agency documents; met with
U.S. and CNMI officials; and observed federal operations in the CNMI.
What GAO Found:
The Department of Homeland Security (DHS) components Customs and
Border Protection (CBP), Immigration and Customs Enforcement (ICE),
and U.S. Citizenship and Immigration Services (USCIS) have each taken
steps to secure the border in the CNMI in accordance with CNRA. From
November 28, 2009, to March 1, 2010, CBP processed 103,565 arriving
travelers at CNMI airports (see photo below), and ICE processed 72
aliens for removal proceedings. In calendar year 2009, USCIS processed
515 CNMI applications for permanent U.S. residency and 50 CNMI
applications for U.S. naturalization or citizenship. However, the DHS
components face operational challenges and have been unable to
negotiate solutions with the CNMI government. First, airport space
available to CBP does not meet facility standards and CBP has not
reached a long-term occupancy agreement with the CNMI. Second, ICE has
not come to an agreement with the CNMI for access to detention space
and as a result has transferred 3 of 30 aliens”convicted criminals
under CNMI or U.S. law”to correctional facilities in Guam and
Honolulu. Third, DHS efforts to gain direct access to the CNMI‘s
immigration databases have been unsuccessful, hampering U.S.
enforcement operations.
Figure: Saipan International Airport, CBP Primary Screening Area:
[Refer to PDF for image: photograph]
DHS has begun to implement work permit and visa programs for foreign
workers, visitors, and investors, but key regulations are not final
and certain transition programs therefore remain unavailable. A
lawsuit filed by the CNMI government challenging some provisions of
the CNRA resulted in a court injunction delaying implementation of the
CNMI-only transitional worker program until DHS considers public
comments and issues a new rule. As a result this program is
unavailable to employers as of May 1, 2010. DHS has established the
Guam-CNMI visa waiver program. However, DHS did not include China and
Russia, two countries that provide significant economic benefit to the
CNMI. Currently, DHS allows nationals from these two countries into
the CNMI temporarily without a visa under the DHS Secretary‘s parole
authority. DHS is reconsidering whether to include these countries in
the Guam-CNMI visa waiver program. Although DHS has proposed rules
that apply temporary U.S. nonimmigrant treaty investor status to
investors with CNMI foreign investor entry permits, the program is not
yet available.
What GAO Recommends:
To enable DHS to implement federal border control and immigration in
the CNMI, GAO recommends that the Secretary of Homeland Security work
with the heads of CBP, ICE, and USCIS to conclude negotiations with
the CNMI government regarding access to CNMI airport space, access to
detention facilities, and information about the status of aliens. DHS
agreed with the recommendation. The CNMI government raised concerns
about this report‘s scope and support for several findings. In
response, GAO modified the report as appropriate.
View [hyperlink, http://www.gao.gov/products/GAO-10-553] or key
components. For more information, contact David Gootnick at (202) 512-
3149 or gootnickd@gao.gov.
[End of section]
Contents:
Letter:
Background:
DHS Has Begun Implementing Border Control but Has Not Negotiated
Solutions to Operational Challenges:
U.S. Agencies' Implementation of CNRA Programs for Workers, Visitors,
and Investors Is Incomplete:
Conclusions:
Recommendation for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Objective, Scope, and Methodology:
Appendix II: Comments from the Department of Homeland Security:
Appendix III: Comments from the Department of the Interior:
Appendix IV: Comments from the Government of the Commonwealth of the
Northern Mariana Islands:
Appendix V: Comments from the Government of Guam:
Appendix VI: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Tables:
Table 1: CBP Processing of Arrivals in the CNMI, by Airport, November
28, 2009-March 1, 2010:
Table 2: Key Federal Implementation Decisions by U.S. Secretary of
Homeland Security Regarding CNMI-Only Foreign Work Permit Program:
Table 3: Federal Implementation Decision by U.S. Secretary of Labor
Regarding Extension of CNMI-only Work Permit Program:
Table 4: Key Federal Implementation Decision by U.S. Secretary of
Homeland Security Regarding Guam-CNMI Visa Waiver Program:
Table 5: Key Federal Decisions by U.S. Secretary of Homeland Security
Related to CNMI Foreign Investors:
Figures:
Figure 1: Departments of Homeland Security, Labor, and State
Responsibilities for Federal Immigration and Border Control:
Figure 2: Key Provisions for Foreign Workers, Visitors, and Foreign
Investors in Consolidated Natural Resources Act of 2008 and Other U.S.
Immigration Provisions:
Figure 3: Numbers and Percentages of Arrivals in the CNMI by
Citizenship, November 28, 2009-March 1, 2010:
Abbreviations:
BMS: Border Management System:
CBP: Customs and Border Protection:
CEU: Compliance Enforcement Unit:
CNMI: Commonwealth of the Northern Mariana Islands:
CNRA: Consolidated Natural Resources Act:
DHS: U.S. Department of Homeland Security:
DOI: U.S. Department of the Interior:
DOL: U.S. Department of Labor:
ICE: U.S. Immigration and Customs Enforcement:
ESTA: Electronic System for Travel Authorization:
FBI: Federal Bureau of Investigation:
LIDS: Labor Information Data System:
LIIDS: Labor and Immigration Identification and Documentation System:
State: U.S. Department of State:
USCIS: U.S. Citizenship and Immigration Services:
US-VISIT: U.S. Visitor and Immigrant Status Indicator Technology:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
May 7, 2010:
The Honorable Jeff Bingaman:
Chairman:
The Honorable Lisa Murkowski:
Ranking Member:
Committee on Energy and Natural Resources:
United States Senate:
The Honorable Nick J. Rahall, II:
Chairman:
The Honorable Doc Hastings:
Ranking Member:
Committee on Natural Resources:
House of Representatives:
Under the terms of its 1976 Covenant with the United States,[Footnote
1] the Commonwealth of the Northern Mariana Islands (CNMI)
administered its own immigration systems from 1978 to 2009. The CNMI
used its authority to admit substantial numbers of foreign workers
[Footnote 2] through a permit program for non-U.S. citizens
(noncitizens) entering the CNMI. In 2005, these workers represented a
majority of the CNMI labor force and outnumbered U.S. citizens in most
industries, including tourism and garment manufacturing, which, until
recently, was central to the CNMI's economy. The CNMI also admitted
visitors[Footnote 3] under its own entry permit program and entry
permit waiver program and provided various types of admission to
foreign investors.
In May 2008, the United States enacted the Consolidated Natural
Resources Act of 2008 (CNRA),[Footnote 4] amending the U.S.-CNMI
Covenant to establish federal control of CNMI immigration in 2009.
CNRA's stated intent is to ensure effective border control procedures
and protect national and homeland security, while minimizing any
potential adverse economic and fiscal effects of phasing out the
CNMI's foreign worker permit program and maximizing the CNMI's
potential for economic and business growth. CNRA establishes several
CNMI-specific provisions affecting foreign workers and investors
during a transition period that began on November 28, 2009, and ends
in 2014.[Footnote 5] CNRA also amends U.S. immigration law[Footnote 6]
to establish a joint visa waiver program for the CNMI and Guam by
replacing an existing visa waiver program for Guam visitors.[Footnote
7] During the transition period, the U.S. Secretary of Homeland
Security, in consultation with the U.S. Secretaries of the Interior,
Labor, and State and the U.S. Attorney General, has the responsibility
to establish, administer, and enforce a transition program to regulate
immigration in the CNMI.
CNRA requires that we report on the implementation of federal
immigration law in the CNMI and the implementation's impacts on the
CNMI economy.[Footnote 8] In February 2010, we reported on the status,
since the establishment of federal immigration control, of several
databases that the CNMI has used to record the permit status of
certain aliens and to track the arrivals and departures of travelers.
[Footnote 9] As agreed with your offices, in this report we describe
(1) the steps that have been taken to establish federal border control
in the CNMI and (2) the status of efforts to implement CNRA programs
with regard to workers, visitors, and investors. We further agreed to
issue a subsequent report regarding any impact on the CNMI economy
resulting from implementation of CNRA.
In preparing this report, we reviewed CNRA as well as regulations,
standard operating procedures, budget documents, and other documents
obtained from federal agencies. We visited Guam and the CNMI, where we
met with officials from the U.S. Departments of Homeland Security
(DHS), Labor (DOL), and the Interior (DOI). In Guam we met with the
governor and representatives of the private sector. In the CNMI we
observed immigration screening in Saipan and Rota and interviewed the
CNMI Attorney General and officials from the CNMI Department of Labor,
the Marianas Visitors Authority, the Workforce Investment Agency, and
representatives of the private sector. Additionally, we met with
officials from DHS, DOL, DOI, and the Department of State (State) in
Washington, D.C. We conducted this performance audit from September
2009 to May 2010 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 the audit
objectives. (See appendix I for a more detailed description of our
methodology.)
Background:
CNMI Political History:
The CNMI comprises a group of 14 islands in the western Pacific Ocean,
lying just north of Guam and 5,500 miles from the U.S. mainland. Most
of the CNMI population--58,629 in 2007--resides on the island of
Saipan, with additional residents on the islands of Tinian and Rota.
[Footnote 10] After World War II, the U.S. Congress approved the
Trusteeship Agreement that made the United States responsible to the
United Nations for the administration of the islands.[Footnote 11]
Later, the Northern Mariana Islands sought self-government while
maintaining permanent ties to the United States.[Footnote 12] In 1976,
after almost 30 years as a trust territory, 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. The Covenant
grants the CNMI 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.[Footnote 13] The Covenant initially made many federal laws
applicable to the CNMI, including laws that provide federal services
and financial assistance programs.[Footnote 14] 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 and certain federal minimum wage
provisions.[Footnote 15] However, under the terms of the Covenant, the
U.S. government has the right to apply federal law in these exempted
areas without the consent of the CNMI government. The U.S. government
enacted the recent federal immigration legislation under this
authority.[Footnote 16]
Primary U.S. Agencies Involved in Immigration and Border Control:
U.S. Department of Homeland Security:
Three DHS components--CBP, ICE, and USCIS--have responsibility for
federal immigration and border control.[Footnote 17]
* Customs and Border Protection. CBP is the lead federal agency
charged with keeping terrorists, criminals, and inadmissible aliens
out of the country while facilitating the flow of legitimate travel
and commerce at the nation's borders.[Footnote 18] Prior to
international passengers' arrival in the United States, CBP officers
are required to cross-check passenger information, which air and sea
carriers submit electronically prior to departures from foreign ports,
against law enforcement databases. On arrival, the passengers are
subject to immigration inspections of visas, passports, and biometric
data.[Footnote 19] Generally, international passengers must present a
U.S. passport, permanent resident card, foreign passport, or foreign
passport containing a State-issued visa. Federal regulations require
that international airports provide facilities for the inspection of
aliens and provide office and other space for the sole use of federal
officials working at the airport.[Footnote 20]
* Immigration and Customs Enforcement. ICE is responsible for
enforcing immigration laws within the United States, including, but
not limited to, identifying, apprehending, detaining, and removing
aliens who commit crimes and aliens who are unlawfully present in the
United States. ICE's Office of Investigations investigates offenses,
both criminal and administrative, such as human trafficking, human
rights violations, human smuggling, narcotics, weapons, and other
types of smuggling, and financial crimes.[Footnote 21] ICE's Office of
Detention and Removal Operations is the primary enforcement arm within
ICE for the identification, apprehension, and removal of aliens
unlawfully in the United States. The Office of Detention and Removal's
priority is to detain aliens that pose a risk to the community and
those that may abscond and not appear for their immigration hearing.
Consequently, the office uses detention space to hold certain aliens
while processing them for removal or until their scheduled hearing
date. ICE acquires detention space by negotiating intergovernmental
service agreements with state and local detention facilities, using
federal facilities, and contracting with private service contracting
facilities.[Footnote 22]
* U.S. Citizenship and Immigration Services. USCIS processes
applications for immigration benefits--that is, the ability of aliens
to live, and in some cases to work, in the United States permanently
or temporarily or to apply for citizenship. Most applications for
immigration benefits can be classified into three major categories:
family-based, employment-based, and humanitarian-based. Family-based
applications are filed by U.S. citizens or permanent resident aliens
to establish their relationships to certain alien relatives, such as a
spouse, parent, or minor child, who wish to immigrate to the United
States. Employment-based applications include petitions filed by
employers for aliens to enter the United States temporarily as
nonimmigrant workers for temporary work or training or as immigrants
for permanent work. USCIS reviews petitions for certain nonimmigrant
workers against criteria such as whether the petition is accompanied
by a certified determination from DOL, whether the employer is
eligible to employ a nonimmigrant worker, whether the position is a
specialty occupation, and whether the prospective nonimmigrant worker
is qualified for the position. Humanitarian-based applications include
applications for asylum or refugee status filed by aliens who fear
persecution in their home countries. USCIS also processes applications
for Temporary Protected Status by aliens affected by natural disasters
or other temporary emergency conditions for employment authorization
and applications for adjustment of status to lawful permanent
residence by alien beneficiaries of family-or employment-based
immigrant petitions who are lawfully present in the United States.
In addition, the Secretary of Homeland Security has delegated to all
DHS components certain immigration authorities, such as authority to
grant parole--that is, official permission for an otherwise
inadmissible alien to be physically present in the United States
temporarily. For example, CBP can grant visitors entry into the United
States under the Secretary's parole authority, and USCIS can issue
advance parole to aliens in the United States who need to travel
abroad and return and whose conditions of stay do not otherwise allow
for readmission if they depart.[Footnote 23]
DHS also operates the U.S. Visa Waiver Program. Under this program,
foreign nationals from 36 countries may qualify for temporary entry to
the United States with a valid passport from their own country.
[Footnote 24]
U.S. Department of Labor:
DOL responsibilities under its labor certification programs include
ensuring that U.S. workers are not adversely affected by the hiring of
nonimmigrant and immigrant workers. Certain employers must attest to
taking certain steps, depending on the particular labor certification
program, such as notifying all employees of the intention to hire
foreign workers and offering their foreign workers the same benefits
as U.S. workers. For most labor certification programs, DOL certifies
eligible foreign workers to work in the United States on a permanent
or temporary basis if it determines that qualified U.S. workers are
not available to perform the work and that the employment of the
foreign worker will not adversely affect the wages and working
conditions of U.S. workers similarly employed.
U.S. Department of State:
State has responsibility for issuing visas to foreign nationals who
wish to come to the United States on a temporary or permanent basis.
State's process for determining who will be issued or refused a visa
comprises several steps, including documentation reviews, in-person
interviews, collection of biometrics, and cross-referencing an
applicant's name against a database that U.S. embassies or consulates
(posts) use to access critical information for visa adjudication. Each
stage of the visa process varies in length depending on a post's
applicant pool and the number of visa applications that a post
receives.
Figure 1 shows the responsibilities of the DHS components and of DOL
and State related to U.S. immigration and border control.
Figure 1: Departments of Homeland Security, Labor, and State
Responsibilities for Federal Immigration and Border Control:
[Refer to PDF for image: illustrated table]
Entry:
Department of Homeland Security: CBP: CBP inspects travelers at the
border to determine whether to admit them into the United States;
Department of State: State issues visas that allow aliens to apply for
admission at the border.
Removal:
Department of Homeland Security: ICE: ICE is responsible for the
enforcement of immigration laws within the interior of the United
States, including the identification, apprehension, detention, and
removal of criminal aliens.
Benefits:
Department of Homeland Security: USCIS: USCIS processes aliens‘
applications for immigration benefits (the ability to live, and in
some cases work, in the United States permanently or temporarily);
Department of Labor: Except where not required by statute,DOL requires
employers to fully test the labor market for U.S. workers and ensures
that U.S. workers are not adversely affected by the hiring of
nonimmigrant and immigrant workers.
Source: GAO analysis of Department of Homeland Security, Department of
Labor, and Department of State documents.
[End of figure]
U.S. Entry Visas:
Under U.S. immigration law, noncitizens may apply for U.S. entry visas
either as nonimmigrants or as immigrants intending to reside
permanently. The nonimmigrant categories for temporary admission
include workers who meet certain requirements, visitors for business
or pleasure, and treaty investors, among others. The immigrant
categories include permanent immigrant investors, family-based, and
various employment-based categories for admission to the United States
as lawful permanent residents permitted to work in the United States.
Following are descriptions of the nonimmigrant categories for
temporary admission.
* Foreign workers. U.S. immigration law provides for several types of
visas for nonimmigrant workers and their families--H visas and certain
others--and sets caps for two types of H visas, H-1B and H-2B.
[Footnote 25] In addition to providing for nonimmigrant visas, federal
law provides for permanent employer-sponsored immigrant visas for
individuals seeking to reside permanently in the United States.
* Visitors. 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 and a maximum of 1
year. Eligible nationals of the 36 countries included in the general
U.S. Visa Waiver Program may stay for up to 90 days for business or
pleasure in the United States without obtaining a nonimmigrant visa.
[Footnote 26]
* Foreign investors. Federal law allows foreign investors to enter the
United States as nonimmigrants under treaty investor status with an E-
2 visa.[Footnote 27] Treaty investors must invest a substantial amount
of capital in a bona fide enterprise in the United States, 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.[Footnote 28] 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. Federal law also allows foreign investors to
seek permanent immigrant visas (EB-5) for employment-creation
purposes.[Footnote 29]
CNRA Provisions Applying U.S. Immigration Law to the CNMI:
CNRA applied federal immigration laws to the CNMI beginning on
November 28, 2009, subject to a transition period that ends on
December 31, 2014, and with key provisions affecting foreign workers,
visitors, and foreign investors. CNRA includes several provisions that
affect foreign workers and investors during the transition period but
that may be extended indefinitely for foreign workers. During the
transition period, the U.S. Secretary of Homeland Security, in
consultation with the U.S. Secretaries of the Interior,[Footnote 30]
Labor, and State and the U.S. Attorney General, has the responsibility
to establish, administer, and enforce a transition program to regulate
immigration in the CNMI. Agencies must implement agreements with the
other agencies to identify and assign their respective duties for
timely implementation of the transition program.[Footnote 31] 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.
In addition, CNRA requires, among other things, that the CNMI
government provide the Secretary of Homeland Security all CNMI
immigration records, or other information that the Secretary deems
necessary to help implement the transition program.
Following are descriptions of key CNRA provisions related to foreign
workers, visitors, and foreign investors.[Footnote 32]
Foreign workers. CNRA allows federal agencies to preserve access to
foreign workers in the CNMI during the transition period, as well as
any extensions of the CNMI-only permit program, but limits subsequent
access to foreign workers to those generally available under U.S.
immigration law. Key provisions regarding foreign workers in the CNMI
include the following:
* 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--2 years after the effective
date of the transition program or when the CNMI-issued permit expires,
whichever is earlier. However, CNMI employers hiring workers on or
after the transition effective date must comply with U.S. employment
authorization verification procedures.
* During the transition period and any extensions of the CNMI-only
permit program, employers of workers not otherwise eligible for
admission under federal law can apply for temporary CNMI-only
nonimmigrant work permits. During this period, the Secretary of
Homeland Security has the authority to determine the number, terms,
and conditions of these permits, which must be reduced to zero by the
end of the transition period and any extensions of the CNMI-only work
permit program. This program may be extended indefinitely beyond
December 31, 2014, by the U.S. Secretary of Labor for up to 5 years at
a time.
* During the transition period, employers in the CNMI and Guam can
petition for foreign workers under the federal nonimmigrant H visa
process, without limitation by the established numerical caps, for two
types of H visas. This exemption from the visa caps expires when the
transition period ends in 2014.[Footnote 33]
* During and after the transition period, CNMI employers can petition
for nonimmigrant worker visas generally available under U.S. law.
During and after the transition period, CNMI employers can also
petition for employment-based permanent immigration status for workers
under the same procedures as other U.S. employers.
Visitors. CNRA amends U.S. immigration law to replace the existing
Guam visa waiver program with a joint Guam-CNMI program, in addition
to other changes.[Footnote 34] Under the Guam-CNMI visa waiver
program, eligible visitors from designated countries who travel for
business or pleasure to Guam or the CNMI are exempt from the standard
federal visa documentation requirements.[Footnote 35] The Secretary of
Homeland Security is to determine which countries and geographic areas
will be included in the Guam-CNMI visa waiver program. Citizens of
countries that do not qualify for entry under the Guam-CNMI 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,
including Guam and the CNMI.
Foreign investors. CNRA establishes that foreign investors in the CNMI
who meet certain requirements can convert from a CNMI long-term
investor to U.S. CNMI-only nonimmigrant treaty investor status during
the transition period. New foreign investors can apply for U.S.
nonimmigrant treaty investor status and also can petition for U.S.
permanent immigration status, which was previously unavailable in the
CNMI. The Secretary of Homeland Security is to decide which CNMI
foreign investor permit holders will receive status as U.S.
nonimmigrant treaty investors during the transition period.
Figure 2 shows key federal immigration provisions related to foreign
workers, visitors, and foreign investors.[Footnote 36]
Figure 2: Key Provisions for Foreign Workers, Visitors, and Foreign
Investors in Consolidated Natural Resources Act of 2008 and Other U.S.
Immigration Provisions:
[Refer to PDF for image: illustration]
Enactment of legislation: May 8, 2008.
Transition period start date: November 28, 2009.
End of initial transition period: December 31, 2014.
Foreign workers:
CNMI-only work permit program:
Begins with transition period start date and ends December 31, 2014,
under P.L. 110-229, enacted May 8, 2008. May be extended indefinitely
for up to 5 years at a time by the U.S. Secretary of Labor.
Exemptions from certain visa caps for nonimmigrant workers:
Begins with transition period start date and ends December 31, 2014,
under P.L. 110-229, enacted May 8, 2008.
Nonimmigrant worker visas generally available under U.S. law: Begins
with transition period start date and ends December 31, 2014, under
P.L. 110-229, enacted May 8, 2008.
Employment-based permanent immigration status generally available
under U.S. law: Begins with transition period start date and continues
permanently.
Visitors:
Joint Guam-CNMI visa waiver program:
Begins with transition period start date and continues permanently.
Visa Waiver Program:
Begins with transition period start date and continues permanently.
U.S. visitor visas for business or pleasure generally available under
U.S. law:
Begins with transition period start date and continues permanently.
Foreign investors:
Current CNMI foreign investors to convert to U.S. CNMI-only
nonimmigrant treaty investors: Begins with transition period start
date and ends December 31, 2014, under P.L. 110-229, enacted May 8,
2008.
Nonimmigrant treaty investor status generally available under U.S. law:
Begins with transition period start date and continues permanently.
U.S. immigrant foreign investor status generally available under U.S.
law:
Begins with transition period start date and continues permanently.
Source: GAO analysis of P.L. 110-229 and current U.S. immigration law.
[End of figure]
CNRA does not allow aliens present in the CNMI to apply for asylum
until 2015.[Footnote 37] In the interim, an alien present in the CNMI
can request not to be removed based on a claim of protection from
persecution or torture.[Footnote 38]
CNMI Actions Related to Implementation of Federal Immigration Law:
Since enactment of CNRA in 2008, the CNMI has taken several actions
related to the implementation of federal immigration law.
CNMI Lawsuit:
On September 12, 2008, the CNMI filed a lawsuit against the United
States in the U.S. District Court for the District of Columbia to have
specific provisions of Title VII of CNRA overturned on the grounds
that it constituted unnecessary intrusion into the CNMI's local
affairs, violating the terms of the CNMI Covenant and the U.S.
Constitution.[Footnote 39] The CNMI argued that provisions of CNRA
violated the CNMI's right of local self-government guaranteed by the
Covenant, denying it the right to regulate its local labor force and
economy as well as depriving it of revenue, all without its consent.
The CNMI argued that the Constitution limits the power of Congress to
impose a regulatory regimen upon a state without giving the local
government the opportunity to participate in the political process
that resulted in the legislation.[Footnote 40] The United States,
argued, in part, that the CNMI lacked standing to pursue its claims.
The federal government further argued that even if the CNMI had
standing, the commonwealth had failed to state a claim upon which
relief could be granted, because the legislation applying immigration
law to the CNMI was lawful. The U.S. District Court for the District
of Columbia has issued several rulings in the lawsuit. On November 25,
2009, the court agreed with the United States that the provisions of
CNRA extending U.S. immigration laws to the CNMI beginning on November
28, 2009, do not violate the U.S.-CNMI Covenant or the U.S.
Constitution. The court dismissed the two counts of the CNMI's
complaint alleging these violations.[Footnote 41] The court granted a
CNMI motion for a preliminary injunction prohibiting the
implementation of DHS regulations to implement the transitional worker
program.[Footnote 42]
CNMI Protocol for Implementing CNRA:
On September 15, 2009, the CNMI government issued "The Commonwealth's
Protocol for Implementing P.L. 110-229," covering the use of CNMI
facilities for U.S immigration purposes and U.S.-CNMI data exchange,
among other topics.[Footnote 43]
CNMI facilities. The protocol outlines the approach that the CNMI will
take regarding certain aspects of the transition program, including
those pertaining to facilities. Specifically, regarding airport
facilities, the protocol describes an intent to work with CBP, taking
account of the Commonwealth Port Authority's practical and financial
limitations. The protocol explains that the CNMI was prepared to
vacate its existing immigration space at the Saipan, Tinian, and Rota
airports but does not intend to remove any existing lessee currently
occupying space at the airport to accommodate CBP. The CNMI intends to
provide facility space on terms to be negotiated. Regarding detention
space in its prison, the CNMI noted that it was discussing this issue
with ICE.
Data exchange. The CNMI protocol proposes to allow the U.S. government
access to immigration-related data. The CNMI has used two databases,
the Labor Information Data System (LIDS)[Footnote 44] and the Border
Management System (BMS), respectively, to record the permit status of
certain aliens and to record the arrivals and departures of travelers.
Specifically, the CNMI protocol envisions the following:
* DHS and the CNMI will engage in a two-way data exchange, with DHS
providing flight entry data and the CNMI providing information from
its immigration records (LIDS and BMS).
* The CNMI will provide access to CNMI immigration records that DHS
formally requests via an appropriate document and within a reasonable
time frame.
* The CNMI will consider privacy protections in making information
available to the U.S. government.
* The CNMI expects to recover the cost of generating and producing any
information requested by DHS.
CNMI Umbrella Permits:
The CNMI issued temporary permits authorizing the holders to remain in
the commonwealth after the federalization transition date, November
28, 2009, for a maximum of 2 years consistent with the terms of the
permit. These "umbrella" permits also include provisions for
extending, transferring, and seeking employment. Between October 15
and November 27, 2009, the CNMI Department of Labor, Department of
Commerce, and Attorney General's office identified all aliens eligible
to receive umbrella permits, which they issued if an alien appeared
personally with adequate identification and signed the contractual
agreement contained in the umbrella permit. Permits were issued to
workers, students, and investors as well as to their immediate
relatives.
Since the injunction against DHS's regulations for the transitional
worker program, a disagreement has arisen between the U.S. and CNMI
governments regarding employment authorization for aliens who were
authorized to be present by the CNMI government as of November 28,
2009, and were issued an umbrella permit. The U.S. government
considers the employment authorization of aliens to be a matter of
federal law, while the CNMI government maintains that it is a shared
responsibility. As a result of the disagreement, the federal
government and CNMI government have issued conflicting guidance. For
example, according to USCIS, an employer in the commonwealth does not
need the approval of the CNMI Department of Labor to hire a holder of
a CNMI foreign worker permit (Foreign National Worker Permit).
[Footnote 45] In contrast, the CNMI government maintains that the
approval of the local Department of Labor is required.
DHS Has Begun Implementing Border Control but Has Not Negotiated
Solutions to Operational Challenges:
DHS components CBP, ICE, and USCIS have each taken steps to secure the
border in the CNMI in accordance with CNRA. In addition, DHS has taken
several steps to facilitate the implementation of CNRA. However, lack
of resolution of the components' negotiations with the CNMI government
contributes to operational challenges. CBP operational space at the
CNMI airports does not meet its facility standards for ports of entry,
and DHS and the CNMI government have not executed long-term occupancy
agreements that would allow DHS to upgrade the airport facilities. ICE
efforts to acquire detention space at the CNMI local correctional
facility also have been unsuccessful. As a result, as of March 2010,
ICE has transferred only 3 of 30 aliens with prior criminal records to
correctional facilities in Guam or Honolulu and released the other 27
on their own recognizance. Additionally, DHS has not succeeded in
negotiating with the CNMI for direct access to CNMI immigration data,
making it difficult for U.S. officials to verify the status of aliens
in the CNMI and hampering enforcement operations.
DHS Has Taken Steps to Secure Border in the CNMI:
CBP Has Begun Inspecting Arriving Travelers:
Prior to beginning inspection of arriving travelers in the CNMI, CBP
officials made numerous visits to the CNMI to determine resource
requirements and prepare for implementation of federal border control.
In June 2009, CBP officially notified the CNMI Port Authority of its
border control facility space, configurational, infrastructure, and
physical security requirements. In response, the CNMI Port Authority
sent a letter stating that it was unable to meet CBP requirements
owing to limited financial resources and expertise and asking CBP to
initiate efforts to meet the facility requirements. According to CBP,
it subsequently began preparations to reconfigure the facilities. CBP
officials told us that the Commonwealth Port Authority gave
information technology staff access to the Saipan and Rota airports to
install secure wireless networks on November 23, 2009, pursuant to
CBP's signing of right-of-entry agreements for the Saipan and Rota
airports on that date. According to CBP, these agreements allowed it
to prepare to begin operations in the airports by November 28, 2009,
while the agency sought to negotiate permanent occupancy agreements.
On November 28, 2009, 45 CBP officers moved into space previously
occupied by the CNMI Department of Immigration at the Saipan airport
and space previously occupied by the airport police at the Rota
airport and began inspecting travelers' immigration status on entry
into, and in some cases on exit from, the CNMI.[Footnote 46]
In January 2010, we observed CBP officers at the Saipan airport
following procedures consistent with those required at other U.S.
international airports. For example, we watched CPB officers screen
arriving visitors in the immigration inspection area. According to the
CBP officials in Guam and the CNMI, prior to visitors' arrival in the
CNMI, CBP officers screen 100 percent of the names that airlines
submit electronically through a passenger information system, which
the officers access through a database known as TECS.[Footnote 47] At
immigration booths, we observed CBP officers verifying arriving
passengers' admissibility by scanning passports, reviewing other
travel documents, and asking questions about the traveler's intent. We
also observed CBP officers taking photos and fingerprints and
enrolling travelers in an immigration database known as US-VISIT.
[Footnote 48] We further observed CBP officers escorting some
travelers to a temporary secondary screening area, where officers
asked additional questions to determine travelers' admissibility and
subsequently admitted or denied travelers entry into the CNMI.
[Footnote 49]
In addition, we observed CBP officers interviewing Chinese and Russian
visitors in the primary screening area[Footnote 50] who were eligible
for, and granted parole into, only the CNMI under the Secretary's
parole authority.[Footnote 51] Because China and Russia are not
currently included in the U.S. or Guam-CNMI visa waiver programs, CBP
inspectors complete several more administrative steps to parole
Chinese and Russian visitors into the CNMI than are required to admit
visitors from eligible countries.[Footnote 52] According to the CBP
shift supervisor, while a typical primary interview may take 2 to 3
minutes, an interview for parole may take 5 to 6 minutes.
From November 28, 2009, to March 1, 2010, CBP officers working at the
Saipan and Rota airports processed 103,565 arriving travelers,
granting parole to 11,760 (11 percent). Table 1 summarizes the number
of arrivals processed by CBP officers at the Saipan and Rota airports
from November 28, 2009, to March 1, 2010, including those admitted
from primary and secondary screening areas, those granted parole, and
those refused entry from the secondary screening area.
Table 1: CBP Processing of Arrivals in the CNMI, by Airport, November
28, 2009-March 1, 2010:
Admitted from primary;
Saipan: 90,156;
Rota: 492;
Total: 90,648.
Granted parole;
Saipan: 11,749;
Rota: 11;
Total: 11,760.
Admitted from secondary;
Saipan: 1,103;
Rota: 27;
Total: 1,130.
Refused from secondary;
Saipan: 27;
Rota: 0;
Total: 27.
Total arrivals;
Saipan: 103,035;
Rota: 530;
Total: 103,565.
Source: GAO analysis of CBP and TECS data.
[End of table]
During this period, more than 80 percent of the arriving travelers
came from Japan or South Korea (see figure 3). Of the arriving
travelers from China and Russia, 86 percent (10,398 of the 12,131) and
90 percent (1,027 of the 1,146), respectively, were paroled into the
CNMI only, under DHS authority.
Figure 3: Numbers and Percentages of Arrivals in the CNMI by
Citizenship, November 28, 2009-March 1, 2010:
[Refer to PDF for image: pie-chart]
Japan: 49% (50,876);
Republic of Korea: 34% (34,835);
China: 12% (12,131);
United States: 3% (3,304);
Russia: 1% (1,146);
Others: 1% (1,273).
Source: GAO analysis of CBP data.
[End of figure]
On March 28, 2010, CBP replaced the first group of officers
temporarily assigned to the Saipan and Rota airports with a new group,
according to CBP officials. On the basis of current flight schedules
and estimated number of travelers, CBP has reduced from 45 to 30 the
number of full-time officers required in Saipan and Rota. CBP posted
announcements for entry-level and supervisory officer positions in the
CNMI in November 2008 and April 2009 and received approximately 500
job applications from the CNMI community. Consistent with provisions
of CNRA that require DHS, among other agencies, to recruit and hire
staff for its operations from among qualified U.S. citizens and
nationals residing in the CNMI, CBP hired seven local CNMI citizens,
including two who had previously worked for the CNMI Department of
Immigration, and three residents of Guam.[Footnote 53] According to
CBP's Human Capital Office, permanent staff will start working at CNMI
airports in July 2010.
ICE Has Begun Identifying, Detaining, and Removing Illegal Aliens:
Since November 28, 2009, 10 ICE officials detailed to Saipan have
provided outreach to the CNMI community, assessed local security
risks, identified aliens in violation of U.S. immigration laws, and
processed or detained aliens for removal proceedings. During the first
month of operations in the CNMI, ICE officials met with local law
enforcement officials and provided information at local events to
educate the community on ICE's law enforcement role and
responsibilities. ICE officials also established a point of contact in
the CNMI Department of Labor and met with staff in the CNMI Attorney
General's office.
To protect national security, public safety, and the integrity of the
U.S. border in the CNMI, ICE assessed potential security risks that
may lead to future criminal and civil enforcement in the commonwealth.
First, ICE officials predicted that as CNMI labor permits expire,
aliens ineligible for immigration benefits may file fraudulent
immigration benefit applications. Second, ICE officials anticipate an
increase in alien smuggling to Guam as aliens ineligible for
immigration benefits try to reach Guam to apply for asylum. On January
5, 2010, ICE and the U.S. Coast Guard interdicted 24 Chinese nationals
attempting to enter Guam illegally by boat.
ICE has also identified individuals who may be in violation of U.S.
immigration laws and has begun processing some aliens for removal.
From December 7, 2009, to March 1, 2010, ICE identified 264 aliens
subject to possible removal from the CNMI--including 214 referrals
from the CNMI Attorney General's office with pending CNMI deportation
orders[Footnote 54] and 49 referrals from the ICE Office of
Investigations and the community--and requested immigration status
information about these individuals from the CNMI Department of Labor.
[Footnote 55] As of March 1, 2010, ICE officials had processed 72 of
the 264 aliens for removal proceedings, either for being present in
the United States without inspection or parole[Footnote 56] or for not
possessing a required valid entry document.[Footnote 57] Of these 72
aliens, 56 were convicted criminals under CNMI or U.S. law,[Footnote
58] including 30 who had completed their sentences at the local
correctional facility and had been released into the community under
CNMI authority. ICE also had transferred 3 of these 30 aliens
convicted of crimes under CNMI or U.S. law to correctional facilities
in either Guam or Honolulu and had released the other 27 on their own
recognizance.[Footnote 59]
On March 9, 2010, ICE officials told us that they had not deported any
of the 72 aliens being processed for removal but that 31 were
scheduled for immigration hearings by the end of March 2010 and 9 had
agreed to waive their right to a hearing and to be deported after
completing their criminal sentences. According to ICE officials,
immigration hearings take place during 1 week of every month, when a
judge from the U.S. Department of Justice[Footnote 60] Executive
Office of Immigration Review travels to Saipan.[Footnote 61]
USCIS Has Begun Adjusting Immigrants' and Nonimmigrants' Status:
Prior to November 28, 2009, USCIS representatives visited the CNMI to
establish contacts, prepare plans for outreach to the community on
forthcoming federal regulations and the transition to federal control
of immigration in the CNMI and identify issues to resolve subsequent
to the transition. Key USCIS activities included the following.
* In March 2009, USCIS opened an Application Support Center in Saipan
and stationed two full-time employees at the center to provide
information services, interview residents currently eligible to apply
for lawful permanent resident status or citizenship, and process
requests requiring biometric services. The center is also staffed by
three contract employees who provide biometric collection services.
* In early December 2009, USCIS officials met with CNMI employers,
business groups, representatives of community organizations, and the
general public by conducting 13 town hall or public forum meetings on
U.S. immigration law and procedures with a particular focus on
completion of the Form I-9, Employment Eligibility Verification.
[Footnote 62] Topics discussed included (1) the process for CNMI
nationals to apply for immigration benefits under U.S. law; (2) the
process for U.S. citizens to file petitions for alien relatives; and
(3) the requirements for aliens living in the CNMI to obtain the
advance parole needed to travel abroad and return to the CNMI.
[Footnote 63]
* For calendar year 2009, USCIS processed 515 CNMI applications for
permanent residency and 50 CNMI applications for naturalization or
citizenship, more than doubling the number of interviews conducted for
applications for residency or citizenship from calendar year 2008,
according to data provided by USCIS officials.[Footnote 64] By March
17, 2009, USCIS also received 1,353 advance parole requests and
approved 1,123 of them. USCIS also granted 705 paroles-in-place for
domestic travel and 24 group paroles.
DHS Has Taken Several Actions to Facilitate Implementation of CNRA:
To facilitate implementation of CNRA in the CNMI, DHS led meetings
with DOI, DOL, and State, the other departments charged with
implementing CNRA; reported to Congress on the budget and personnel
needed by the DHS components; and initiated outreach to the CNMI
government.
* Led interdepartmental meetings. From May 2008 through November 2009,
DHS led, jointly with DOI, several interdepartmental meetings to
discuss the implementation of CNRA, according to DHS, DOI, and DOL
officials.[Footnote 65] Discussion during the meetings focused on
operational and legal issues related to implementation of federal
immigration law in the CNMI and on developing an interdepartmental
memorandum of understanding of the departments' respective duties.
According to DHS and DOL officials, by the end of March 2010, the
memorandum had been finalized but not yet signed by the departments'
Secretaries' and was therefore not publicly available.[Footnote 66]
* Reported to Congress on needed budget and personnel. In January
2009, DHS submitted a report to Congress, as required by CNRA, on
current and planned federal personnel and resource requirements. The
report estimated that $97 million was necessary to fulfill all DHS
responsibilities in the CNMI for fiscal years 2009 and 2010. In June
2009, responding to questions for the record in conjunction with a May
2009 hearing on the implementation of CNRA, DHS presented a new
estimate of $148.5 million and described a phased approach to
distribute costs from fiscal years 2009 to 2011. As of April 2010, DHS
had not yet specified the changes in resources required for
administering immigration and travel laws for the CNMI and Guam, as
directed by Congress in its fiscal year 2009 appropriation.[Footnote
67]
* Initiated outreach to CNMI government. Although it has implemented
CNRA primarily through its components, DHS has also initiated
department-level outreach to the CNMI government. Prior to November
28, 2009, the DHS Office of Policy--charged with coordinating DHS
components and working with other federal departments involved in
implementing CNRA--contacted the CNMI government and led several
intercomponent DHS visits to the commonwealth to meet with CNMI
officials and gather information related to the DHS components'
efforts to establish federal border control in the CNMI. Additionally,
in September 2009, the Secretary of DHS met with the Governor of the
CNMI to discuss several aspects of CNRA implementation.
DHS Components Face Operational Challenges in the CNMI and Have Been
Unable to Negotiate Solutions with the CNMI Government:
CBP Has Not Yet Finalized Long-Term Occupancy Agreements with the CNMI
Government for Required Airport Space:
The space that the CNMI government has provided for CBP operations at
the Saipan and Rota airports is inadequate to meet CBP's basic
facility requirements, and the two parties have not yet concluded
negotiations for long-term occupancy agreements that would allow CBP
to begin upgrading the facilities.[Footnote 68] The CBP Airport
Technical Design Standards describes basic CBP facility requirements
for international airports and reflects U.S. policy, procedures, and
minimum development standards for the design and construction of CBP
facilities at airports. These standards specify space requirements for
CBP's primary, secondary, and administrative areas, among others,
based on the size of the airport and the number of passengers
processed per hour. In addition, U.S. law requires that airports
designated as international airports must provide the U.S. government,
without charge, adequate space for inspection and temporary detention
of aliens as well as for offices.[Footnote 69]
CBP has estimated that it will process between 800 and 1,400
passengers per hour at peak hours at the Saipan International Airport
and has designated the airport as a low-volume and midsize airport,
requiring at least 15,000 square feet for primary and secondary
screening and other space. CBP currently occupies approximately 9,390
square feet of airport space previously used by CNMI Immigration.
CBP's current configuration at the airport does not include holding
cells that meet federal standards;[Footnote 70] as a result, CBP lacks
space to temporarily detain individuals who present a risk to public
safety and to its officers. According to CBP officials, as of April
2010, CBP continued to seek access to approximately 7,200 additional
square feet of space at the Saipan airport. CBP officials told us that
they were considering three alternatives:
* reconfigure part of a 15,390 square-foot space as of January 2010,
leased for storage by a tenant but, according to CBP, not in use;
* identify other space in the airport for reconfiguration, in close
proximity to the current immigration processing area; or:
* build an additional facility on airport land adjacent to CBP's
immigration processing area at the Saipan airport.
As of April 2010, CBP and the Commonwealth Port Authority had not
concluded negotiations regarding long-term occupancy agreements for
space at the Saipan and Rota airports or resolved key differences.
CBP: In technical comments on a draft of this report, CBP stated that,
given the CNMI's economic and financial conditions, the agency will
initially fund any construction or reconfiguration required to bring
CNMI existing airport facilities into compliance with CBP's
operational requirements.[Footnote 71] CBP also stated that it was
working to define its space needs and to complete facility design
plans. However, CBP said that it would not rent airport space that the
CNMI is obligated to provide at no cost. CBP stated that it agreed
with the CNMI regarding the need for discussion of identified options
to meet CBP space needs and for negotiation of certain key points. As
of May 2010, CBP officials reported that they had not requested that
the DHS Office of Policy intervene in conversations with the CNMI
government regarding long-term occupancy agreements for airport space.
CNMI: According to CNMI officials, the Commonwealth Port Authority is
aware that the airport space does not meet CBP operational
requirements. However, the officials told us that the port authority
is not in a financial position to provide space to CBP without charge,
including space that is currently generating revenue from a
tenant.[Footnote 72] In January 2010, CNMI port authority officials
told us that CPB had not consulted with them regarding any
construction plans, which would require their approval. Additionally,
in commenting on a draft of this report in April 2010, the CNMI said
that CBP had not officially communicated a request regarding its space
needs. The CNMI further commented that the commonwealth is not
prepared to enter into negotiations with CBP unless it is assured that
the request for space has been cleared at least at the assistant
secretary level at DHS and that the department has received the
necessary assurance from Congress that the funds necessary to fulfill
CBP's space needs will be available.[Footnote 73]
ICE Efforts to Negotiate for Detention Space in CNMI Correctional
Facility Have Been Unsuccessful:
ICE has been unable to conclude negotiations with the CNMI government
to arrange access to detention space in the CNMI correctional
facility. In March 2010, ICE estimated that it required 50 detention
beds for its CNMI operations.[Footnote 74] Under a 2007
intergovernmental service agreement between the U.S. Marshals Service
and the CNMI Department of Corrections, the CNMI adult correctional
facility in Saipan provides the U.S. government 25 detention beds at a
rate of $77 per bed per day.[Footnote 75] As of September 2008, less
than 30 percent of the facility's beds (134 of 513) were filled.
To obtain needed detention space, ICE proposed to either amend the
2007 U.S. Marshals Service agreement before it expired on April 1,
2010, or establish a new agreement with the CNMI government.[Footnote
76] As of March 2010, after a year of negotiation, ICE had not
finalized an agreement with the CNMI government owing to unresolved
cost documentation issues, according to a senior ICE official.
* In March 2009, ICE officials initiated discussion with the CNMI
government regarding needed detention space and requested that CNMI
representatives complete a jail service cost statement.[Footnote 77]
* In October 2009, representatives from the CNMI provided an
incomplete jail service cost statement. The statement did not include
capital construction costs, and CNMI representatives informed ICE
officials that all estimates were preliminary and that the statement
would require additional review.
* In November 2009, a CNMI official provided ICE with an e-mail
containing top-level cost estimates, including capital and operating
costs totaling approximately $107 per day.[Footnote 78]
* In December 2009, ICE requested additional documentation for the
construction costs, and the CNMI Attorney General provided a second
jail service cost statement with a further breakdown of the CNMI rate
of $107 per day.[Footnote 79] An ICE assessment of the CNMI statement
deemed that the CNMI had miscalculated certain costs and, after
recalculating these costs, proposed a bed rate of approximately $89
per day.[Footnote 80]
* In January 2010, according to ICE officials, the CNMI acknowledged
calculation errors but did not agree to a bed rate lower than $105.
[Footnote 81]
Since January 2010, negotiations between ICE and the CNMI regarding
detention space have been on hold. According to the ICE contracting
official, the CNMI has not provided any additional information
supporting its $105 rate. Before contracting for beds, ICE requires
documentation that establishes a fair and reasonable cost. According
to the CNMI Attorney General, further documentation for the $105 rate
is not necessary because the commonwealth is negotiating as an equal
partner rather than as an applicant submitting cost proposals to DHS.
ICE officials noted that although they had briefed the DHS Office of
Policy on this operational challenge, ICE had remained responsible for
the negotiations because of its expertise.[Footnote 82] ICE officials
also observed that the CNMI had rebuffed all ICE efforts to acquire
detention space.
According to ICE officials, ICE prefers to detain aliens with prior
criminal records while they await their immigration removal hearings,
owing to possible flight risk and danger to the community. Given the
current lack of needed detention space, ICE has identified three
alternatives regarding detainees it seeks to remove from the CNMI
while removal proceedings are under way:
1. Issue orders of supervision. Since November 28, 2009, ICE has
released 43 detainees into the CNMI community, including 27 with prior
criminal records, under orders of supervision. According to ICE
officials, orders of supervision are appropriate for detainees who do
not present a danger to the community or a possible flight risk.
[Footnote 83]
2. Pay to transport detainees to other U.S. locations. ICE can
transport detainees to another detention facility, such as in Guam or
Honolulu. Guam's correctional facility charges $77 per day.[Footnote
84] As of March 1, 2010, ICE had paid approximately $5,000 to
transport two detainees to Guam and one to Honolulu.[Footnote 85]
3. Pay CNMI's daily rate at Saipan correctional facility. ICE may pay
the CNMI's $105 daily rate for each detainee, if the CNMI provides
appropriate documentation justifying its proposed rate.
In addition, because ICE has been unable to conclude its negotiations
with the CNMI Department of Corrections, ICE cannot conduct
immigration removal hearings for persons currently serving time in the
CNMI corrections facility. As of March 1, 2010, ICE identified 26 CNMI
prisoners serving criminal sentences in the local CNMI correctional
facility for removal proceedings. In general, ICE attempts to conclude
removal proceedings before inmates are released, in order to expedite
removals and avoid additional detention costs, according to ICE
officials. However, the CNMI Department of Corrections will not permit
ICE to conduct immigration hearings at the facility unless ICE agrees
to pay utility and access fees to establish video conferencing
services in the CNMI prison. Officials with the CNMI correctional
facility proposed a fee of $84 per day for utilities and to allow
video conferencing hookups. According to an ICE official, ICE has
agreements with other federal and state prisons in other U.S.
locations to hold immigration hearings while inmates are incarcerated
and has installed video-conferencing equipment, free of charge, to
allow inmates to participate in their immigration proceedings while in
custody.[Footnote 86]
DHS Has Been Unable to Negotiate Direct Access to CNMI Immigration and
Border Control Data to Support Ongoing Operations:
As of April 1, 2010, DHS components lacked direct access to CNMI
immigration and border control data contained in two CNMI databases,
LIDS and BMS.[Footnote 87] The CNMI government assigned a single point
of contact in the CNMI Department of Labor to respond to CBP, ICE, and
USCIS queries from the databases, most commonly for verification of an
individual's immigration status.[Footnote 88] However, DHS component
officials have expressed concerns about the reliance on the CNMI point
of contact and stressed that it is imperative for the department to
have direct access to the CNMI data systems to perform the
department's mission with maximum efficiency.
ICE officials expressed the following concerns regarding DHS's
reliance on a single CNMI point of contact for requests for CNMI
immigration data:
* ICE may lack information needed to support decisions regarding
aliens' status or eligibility to remain in the CNMI. For example, ICE
must rely on the CNMI point of contact for information to determine
the status of a given individual with an umbrella permit.
* Relying on one CNMI point of contact to verify immigration status
for individuals subject to ICE investigations could compromise
security for ongoing operations.
* Because the CNMI point of contact is an indirect source, basing ICE
detention and removal decisions on data provided by the point of
contact could lead to those decisions' eventual reversal in court.
* Given that ICE operates 24 hours per day, 7 days per week, the CNMI
point of contact cannot respond to all of ICE's needs in a timely
manner.
USCIS officials also expressed concerns regarding lack of direct
access to LIDS:
* Direct access to LIDS would allow USCIS to verify information
provided by applicants for immigration benefits such as advance
parole. For example, when an applicant for advance parole presents the
required CNMI-issued entry permit or umbrella permit, direct access to
LIDS would let USICS officials verify the authenticity of the permit.
* Direct access to the data will facilitate the processing of
applications for CNMI-only work permits and for CNMI-only nonimmigrant
treaty investor status.
* Direct access to CNMI immigration status information would assist
USCIS in responding to interagency requests for immigration status
verification through its SAVE program[Footnote 89] and in implementing
the E-Verify program in the CNMI.[Footnote 90]
In February 2010, CNMI officials reported that the point of contact
assigned to work with the U.S. government had promptly supplied
information on individual cases to U.S. officials from immigration and
border control databases. Moreover, a senior CNMI official stated that
if the point of contact is unable to respond to future DHS inquiries
in a timely manner, CNMI officials would be willing to engage in
additional discussions regarding more direct access to LIDS and BMS.
According to ICE officials, the CNMI responses to ICE inquiries have
not been timely and have not always provided sufficient information.
Documentation that ICE provided shows that from late December 2009
through March 2010, ICE's Office of Detention and Removal made 68
inquiries to CNMI's Department of Labor to determine aliens'
immigration status. We examined ICE's record of these inquiries and
found that CNMI response times ranged from 16 minutes to around 23
hours, averaging roughly 4 and a half hours. ICE officials reported
that the responses contained first and last names and LIDS numbers but
rarely included biographical or identifying information, such as date-
of birth, nationality, or photographs, that could be used to further
ICE investigations. An ICE official also told us that in late February
2010, he sent an inquiry regarding whether 214 aliens with pending
deportation orders, referred to ICE by the CNMI Attorney General, had
been granted valid work permits prior to November 28, 2009. According
to ICE officials, by the end of March 2010, the CNMI Department of
Labor had provided a blanket response that was insufficient to answer
the inquiry.
DHS has communicated, at the department and component levels, with the
CNMI government regarding access to CNMI immigration data.
* In a July 2008 letter to the Governor of the CNMI, the DHS Office of
Policy requested information on the current CNMI system for recording
and documenting the entry, exit, work authorization, and authorized
conditions of individuals staying in the CNMI. DHS also requested any
repositories of fingerprints, photographs, or other biometric
information included in the system.
* On August 19, 2008, the office of the Governor of the CNMI responded
to the DHS letter by providing an overview of the BMS system but
stated that the CNMI does not maintain any repositories of
fingerprints or other biometric information to share with DHS.
According to a CNMI official, the commonwealth requested fingerprint
scanners from DHS but did not receive them.
* During the September 2009 meeting between the Governor of the CNMI
and the Secretary of DHS, the Governor proposed, through the CNMI
protocol for implementing CNRA, providing restricted access to
information contained in LIDS and BMS, for a fee and in exchange for
airline flight entry data.
* On February 18, 2010, the Governor sent a letter to CBP indicating
that he had been preliminarily advised that CBP would not share with
the CNMI advanced passenger information provided by airlines and he
reiterated the CNMI's request for this information.[Footnote 91] The
letter indicated that access to the airline flight data would
facilitate CNMI efforts to prevent an increase in the number of aliens
remaining in the commonwealth beyond their authorized stay.
* On March 31, 2010, CBP Office of Field Operations responded to the
CNMI letter, denying the CNMI access to advanced passenger information
provided by the airlines. The CBP letter stated that the CNMI's
intended use of the data did not justify their release to CNMI
authorities. The CBP letter further indicated that, given DHS's
responsibility for removing aliens present in the CNMI beyond their
authorized stay, it would be in the CNMI's and DHS's mutual interest
for DHS to have access to CNMI immigration records or any other
information that the Secretary deems necessary.[Footnote 92]
In March 2010, CNMI officials told us that the commonwealth would not
provide DHS increased access to immigration and border control data
because DHS was unwilling to share airline flight data. In written
comments on a draft of this report, the CNMI government stated its
intention to appeal to the Secretary of Homeland Security the DHS
decision not to share these data.
U.S. Agencies' Implementation of CNRA Programs for Workers, Visitors,
and Investors Is Incomplete:
U.S. agencies have begun to implement CNRA for workers, visitors, and
investors, but key regulations are not final and, as a result,
transition programs to preserve access to foreign workers and for
investors are not yet available. In August 2008, we reported on key
decisions that the agencies must make to implement the legislation. On
November 25, 2009, the U.S. District Court for the District of
Columbia issued a preliminary injunction prohibiting implementation of
the DHS interim rule for the CNMI-only transitional worker program. As
a result, although federal immigration laws now apply to the CNMI, the
regulatory framework for the CNMI-only transitional work program is
not yet in place and the permit program is not yet available. DHS has
established the Guam-CNMI visa waiver program but did not include two
countries, China and Russia, that the CNMI and Guam consider key to
their tourist industries. According to DHS officials, a policy review
is under way to determine whether the program should be revised to
include these countries, and visitors from both nations meanwhile may
enter the CNMI on the Secretary of Homeland Security's discretionary
authority to grant parole on a case-by-case basis. The DHS rule for
investors currently exists in a proposed form, and as a result, the
regulatory framework for the CNMI-only investor status is not yet
available.
U.S. Agencies Have Taken Steps to Create CNMI-Only Work Permit
Program, but Program Is Not Yet Available:
DHS Issued Interim Rule for CNMI-Only Work Permit Program, but Court
Injunction Has Prevented Implementation:
On October 27, 2009, DHS issued an interim rule comprising regulations
to implement the CNMI-only work permit program for foreign workers not
otherwise admissible under federal law that was established in CNRA.
[Footnote 93] These regulations address (1) the number of permits to
be issued, (2) the way the permits will be distributed, (3) the terms
and conditions for the permits, and (4) the fees for the permits. The
rule was scheduled to take effect in its current form on November 27,
2009. In issuing the interim rule, DHS announced that it would accept
comments in the development of the final rule but was not following
notice-and-comment rulemaking procedures, asserting that it had good
cause not to do so.
Table 2 shows the key decisions that CNRA calls for the Secretary of
Homeland Security to make in implementing the CNMI-only work permit
program.
Table 2: Key Federal Implementation Decisions by U.S. Secretary of
Homeland Security Regarding CNMI-Only Foreign Work Permit Program:
Key federal implementation decisions: Determine the number of permits
to provide under the CNMI-only work permit program. Determine the way
the permits are distributed. Determine the terms and conditions for
the permits;
Legislative requirements and authorizations: Reduce annual allocation
of CNMI-only permits to zero by the end of the transition period or
any extensions of CNMI-only permit program. Attempt to promote the
maximum use of U.S. citizens and, if needed, lawful permanent
residents and citizens of the Freely Associated States, and to prevent
adverse effects on the wages and working conditions of those workers.
Key federal implementation decisions: Determine fees to charge
employers and workers for CNMI-only work permits;
Legislative requirements and authorizations: Set fees for the permits
so as to recover the full cost of providing services, including
administrative costs. Charge employers an annual supplemental fee of
$150 per permit to fund CNMI vocational education.
Source: GAO analysis of P.L. 110-229, Consolidated Natural Resources
Act of 2008, May 8, 2008.
[End of table]
DHS's interim rule establishes the following:
* Number of permits. DHS will grant up to 22,417 CNMI-only work
permits between November 28, 2009, and September 30, 2010, based on
the CNMI government's estimate of the maximum number of foreign
workers in the commonwealth on May 8, 2008. The interim rule notes
that DHS will publish annually in the Federal Register its
determination of the number of permits to be granted each year of the
transition period.[Footnote 94]
* Distribution of permits. Under the CNMI-only work permit program,
employers must petition for nonimmigrant workers to obtain status, so
that DHS can administer the work permit program in a manner consistent
with other nonimmigrant categories for temporary admission, such as H-
1B visas. Accordingly, DHS created the CW-1 status, which it deemed to
be synonymous with the term "permit" referenced in the legislation.
DHS will determine whether an occupational category requires alien
workers to supplement the resident work force. The DHS interim rule
does not exclude any specific occupations from the program. However,
the rule notes concerns that three occupational categories--dancing
(such as exotic dancing), domestic workers, and hospitality workers--
are subject to exploitation and abuse, and it invites comments on
whether DHS should exclude these occupations in a final rule.
* Terms and conditions of the permit program. Employers must attest to
their eligibility to petition for a CNMI-only work permit, and foreign
workers must meet qualifications for positions.[Footnote 95] If a
foreign worker is in the CNMI, the employer must attest that the
worker is there lawfully. Additionally, the employer must attest that
the position is nontemporary or nonseasonal and is in an occupational
category as designated by the Secretary and that qualified U.S.
workers are not available to fill the position.
* Permit fee. The fee for the CNMI-only work permit is $470. This fee
includes an annual supplemental fee of $150 per worker per year to
fund CNMI vocational education, with the remaining $320 charged per
Petition for a Nonimmigrant Worker in the CNMI (I-29CW). To reduce
costs, an employer may name more than one foreign worker on each
petition, provided that the workers are in the same occupational
category, for the same period of time, and in the same location.
In issuing the interim rule, DHS claimed that it qualified for an
exemption from a requirement that federal agencies publish a notice of
proposed rulemaking in the Federal Register and give the public 30
days to comment.[Footnote 96] DHS raised several points to support its
finding that it had good cause to dispense with the notice-and-comment
period for the CNMI-only work permit rule. For example, DHS asserted
that 18 months is a short time frame in which to review the CNMI's
immigration system and develop the regulatory scheme necessary to
transition the CNMI to the U.S. federal immigration system. DHS noted
in the interim rule it would accept comments through November 27,
2009, and would consider those comments in developing a final rule.
DHS stated that the interim rule would go into effect in its current
form on November 27, 2009. The D.C. District Court found these
arguments unpersuasive in its decision to issue a preliminary
injunction for this rule.
DHS received numerous comments on the interim rule from the CNMI
government, a private sector group, and interested businesses and
individuals.[Footnote 97] The CNMI government asserted that the rule
was incomplete and would damage CNMI workers, employers, and community
and commented that the rule violated procedural requirements for
agency rulemaking. In addition, the Saipan Chamber of Commerce raised
concerns regarding the economic impact of the regulations and made a
proposal to make it easier for workers with the CNMI-only work permit
to return from travel outside the commonwealth. (See text box.)
[Text box: Comments from the CNMI Government and Private Sector on DHS
Interim Rule for CNMI-Only Work Permit Program:
CNMI Government:
The CNMI government commented on the DHS interim rule stating that, in
addition to disregarding the notice and comment provisions of the
Administrative Procedure Act, the rule was deficient for the following
reasons, among others:
* The interim rule fails to implement the transitional work program
mandated by CNRA. It does not establish how permits are to be
allocated among competing employers, and it does not establish a
procedure for reducing the number of permits to zero by the end of the
transition period;
* DHS failed to conduct a required economic impact analysis of the
proposed rule;
* The interim rule will harm the Commonwealth's U.S. workers, foreign
workers, employers, and community:
- The regulations do not provide preferences for U.S. workers and
require only that employers attest that qualified U.S. workers are not
available to fill the position. Based on CNMI experience with such an
"attestation" system, the CNMI Department of Labor believes it will
invite widespread abuse and decrease the job opportunities available
to U.S. workers;
- The regulations would cause substantial harm to foreign workers in
the CNMI by subjecting them to increased fees and abuses. For example,
the CNMI Department of Labor finds that the federal system does not
bar employers with records of prior labor abuse from hiring foreign
workers and does not assure that employers have sufficient resources
to pay wages;
- The regulations hurt employers by defining "legitimate business" to
exclude the direct employment of housekeepers or caregivers by
households. The CNMI Department of Labor also notes the importance of
male and female waiters, hosts, and entertainers to the tourist
industry and states that prostitution and other forms of exploitation
occur in the CNMI at a rate far lower than the U.S. national average;
- The regulation will hurt the community by greatly increasing the
number of illegal aliens, with no concomitant federal enforcement
capability to remove them.
CNMI Private Sector:
Comments from the Saipan Chamber of Commerce cite several concerns:
the lack of a DHS schedule for allocating and reducing the number of
worker permits and the possibility that DHS might restrict access to
certain job categories for law enforcement purposes instead of
directly targeting businesses that engage in illegal activity.
Additionally, the chamber asks that multiple-entry visas be made
available within the CNMI to workers who qualify for status under the
interim rule. This would allow workers who travel abroad for a visit
to return to the CNMI without undergoing the time-consuming and
expensive federal visa process at a U.S. consulate.
Source: GAO analysis of comments on DHS interim rule.
[End of text box]
Because of the injunction issued in response to the CNMI's amended
lawsuit against the U.S. government, the CNMI-only foreign work
permits are not yet available.[Footnote 98] In its November 2, 2009,
amendment to its ongoing lawsuit to overturn portions of CNRA, the
CNMI filed a motion for preliminary injunction to prevent the
operation of the DHS interim rule until a procedural violation is
remedied. The CNMI argued that DHS had violated procedural
requirements of the Administrative Procedure Act, which requires
notice and the opportunity for public comment before regulations can
go into effect. On November 25, 2009, the U.S. District Court for the
District of Columbia issued an order prohibiting implementation of the
interim rule, stating that DHS must consider public comments before
issuing a final rule.[Footnote 99] In granting the preliminary
injunction, the court found, among other things, that DHS had had a
lengthy period in which to develop regulations and had not
demonstrated that it had used that time to complete implementation as
efficiently as possible. The court also noted that the commonwealth's
residents and government had meaningful concerns about the
regulations. In response to this preliminary injunction, DHS reopened
the comment period from December 9, 2010, until January 8, 2010. As of
May 2010, DHS had not yet issued a final rule and, as a result, CNMI-
only work permits are not available. DHS plans to issue a final rule
for the CNMI-only work permit program in September 2010.
DOL Has Not Made Extension Decision for CNMI-Only Work Permit Program:
DOL officials informed us that they had not yet obtained sufficient
experiential data to make a decision to extend the CNMI-only work
permit program. DOL officials further indicated that a determination
to extend the transition period well in advance of the expiration of
the transition period may raise concerns about the validity of the
Secretary's determination, in light of the factors that CNRA
authorizes the Secretary to consider in making the determination (see
table 3). DOL officials also told us that they still lacked key data
on which to base an extension decision.
Table 3: Federal Implementation Decision by U.S. Secretary of Labor
Regarding Extension of CNMI-only Work Permit Program:
Key federal implementation decision: Decide whether and when to extend
the CNMI-only work permit program past 2014 (indefinitely, for up to 5
years at a time);
Legislative requirements and authorizations: Base decision on the
labor needs of legitimate businesses in the CNMI. May consider (1)
workforce studies on the need for foreign workers, (2) the
unemployment rate of U.S. citizen workers in the CNMI, and (3) the
number of unemployed foreign workers in the CNMI, as well as other
information related to foreign worker trends. Consult with U.S.
Departments of Homeland Security, the Interior, and Defense and the
Governor of the CNMI.
Source: GAO analysis of P.L. 110-229, Consolidated Natural Resources
Act of 2008, May 8, 2008.
Note: The federal sources generally used to generate data on wages,
occupations, and employment status for the United States, including
the Current Population Survey and the Current Employment Statistics
program, do not cover the CNMI.
[End of table]
DHS Has Implemented Guam-CNMI Visa Waiver Program but Is Reconsidering
Inclusion of Certain Countries:
On January 16, 2009, DHS issued an interim final rule for the Guam-
CNMI joint visa waiver program, which is intended to allow visitors
for business or pleasure to enter the CNMI and Guam without obtaining
a nonimmigrant visa for a stay of no longer than 45 days. DHS's rule
designates 12 countries or geographic areas, including Japan and South
Korea,[Footnote 100] as eligible for participation in the program but
excludes several countries that had been part of the previous Guam
visa waiver program.[Footnote 101] DHS considered designating Russia
and China as eligible for participation, because visitors from those
countries provide significant economic benefits to the CNMI. However,
because of political, security, and law enforcement concerns,
including high nonimmigrant visa refusal rates, DHS deemed China and
Russia as not eligible to participate in the program.
Table 4 shows the key decision that, under CNRA, the Secretary of
Homeland Security is to make regarding countries to be included in the
Guam-CNMI visa waiver program.
Table 4: Key Federal Implementation Decision by U.S. Secretary of
Homeland Security Regarding Guam-CNMI Visa Waiver Program:
Key federal implementation decision: Determine countries to include in
the Guam-CNMI visa waiver program, in consultation with the Department
of State, DOI, and the Governors of the CNMI and Guam;
Legislative requirement and authorization: Shall include any country
from which the CNMI has received a significant economic benefit from
the number of visitors for pleasure for the prior year, unless the
country's inclusion would pose a security threat. Governors of the
CNMI and Guam may petition to have countries added.
Source: GAO analysis of P.L. 110-229, Consolidated Natural Resources
Act of 2008, May 8, 2008.
[End of table]
In developing the Guam-CNMI visa waiver program, DHS officials
consulted with representatives of the CNMI and Guam governments, both
of which sought the inclusion of China and Russia in the program. In
the regulations, DHS states that after additional layered security
measures are in place, DHS will make a determination as to whether
nationals of China and Russia can participate in the visa waiver
program. These security measures may include, among others, electronic
travel authorization to screen and approve potential visitors prior to
arrival in Guam and the CNMI. In May 2009, DHS officials informed
Congress that the department is reconsidering whether to include China
and Russia in the Guam-CNMI visa waiver program. DHS plans to issue a
final rule for the Guam-CNMI visa waiver program in November 2010.
Public comments on the proposed regulations from the Guam and CNMI
governments and private sectors asked DHS to delay the Guam-CNMI visa
waiver program implementation date, as allowed for in CNRA, from June
1, to November 28, 2009. The comments emphasized the economic
significance of including China and Russia in the program. Guam
officials argued that tourist arrivals in Guam from traditional
markets were declining and that having access to China presented an
important economic benefit. CNMI officials noted that the CNMI economy
would be seriously damaged unless the CNMI retained access to the
China and Russia tourism markets. (See text box.)
[Text box: Comments from CNMI and Guam Governments and Organized
Private Sector on Interim Final Rule for Guam-CNMI Visa Waiver Program:
CNMI Government and Private Sector:
CNMI government comments on the interim final rule stressed the
serious economic losses that would occur if China and Russia visitors
were excluded from the visa waiver program and sought a delay in the
program's implementation until additional security measures are in
place and DHS has amended the regulation to allow visitors from China
and Russia under the program.
The Saipan Chamber of Commerce sought to delay the implementation of
the rule and asked that DHS identify the specific additional layered
security measures that would allow it to reconsider its exclusion of
China and Russia from the visa waiver program. Further, the chamber
commented that the economic analysis used by DHS was substantially
flawed, including an underestimate of the declines in tourists coming
to the CNMI under standard U.S. visa requirements.
Guam Governor and Private Sector:
The Guam Governor's comments noted the economic benefit from the new
provision allowing longer stays but identified the need to include
visitors from China in the visa waiver program and the need for a
formal mechanism to add countries to the program. The Governor
supported the CNMI recommendation that implementation be delayed. The
Guam Visitor Bureau also sought a delay in implementation so that
additional layered security could be put in place, such that DHS could
reach a determination to allow visitors from China and Russia.
Guam private sector groups emphasized the economic benefits to Guam if
DHS were to include China in the program. The private sector groups
also identified China as a future growth market that could offset
declines in visitors from Japan.
Source: GAO analysis of comments to interim final rule.
[End of text box]
On October 21, 2009, the Secretary of Homeland Security announced to
Congress and the Governors of the CNMI and Guam the decision to parole
tourists from China and Russia into the CNMI on a case-by-case basis
for a maximum of 45 days, in recognition of their significant economic
benefit to the commonwealth. CBP issued procedures for administering
the parole in a bulletin to members of its Carrier Liaison Program and
internal guidance to staff. According to a State official, information
regarding the decision to parole visitors did not reach Chinese
officials working at the airports in that country and, as a result,
the Chinese authorities suspended charter flight service between China
and the CNMI between November 28, 2009, and December 18, 2009.
According to CNMI officials, the suspension of charter flight service
resulted in the loss of approximately $7.8 million in visitor revenue.
Proposed DHS Rule to Provide CNMI-Only Treaty Investor Status to
Foreign Investors Is Not Yet Final:
DHS has proposed a rule to allow a large proportion of holders of CNMI
foreign investor permits to obtain U.S. CNMI-only nonimmigrant
investor treaty status during the transition period.[Footnote 102]
Table 5 shows the decision, with its federal requirements and
authorizations, that CNRA calls for the Secretary of Homeland Security
to make regarding CNMI foreign investors.
Table 5: Key Federal Decisions by U.S. Secretary of Homeland Security
Related to CNMI Foreign Investors:
Key federal implementation decisions: Determine which current CNMI
foreign investors will be eligible to be "grandfathered" as U.S. E-2
treaty investors when the transition period begins;
Legislative requirements and authorizations: May provide grandfathered
status to those who were admitted to the CNMI in long-term investor
status under CNMI immigration laws before the transition program start
date, who maintain the investment(s) that formed the basis for such
status, and who meet other requirements.
Key federal implementation decisions: Decide the validity period for
the grandfathered treaty investor status;
Legislative requirements and authorizations: [Empty].
Source: GAO analysis of P.L. 110-229, Consolidated Natural Resources
Act of 2008, May 8, 2008.
[End of table]
* Eligibility for CNMI-only treaty investor status. In proposing to
allow CNMI foreign investor permit holders to obtain U.S. CNMI-only
nonimmigrant treaty investor status, DHS included three types of CNMI
permits: the long-term business investor entry permit, the foreign
investor entry permit, and the retiree investor entry permit. As we
reported in 2008, long-term business entry permits accounted for a
large proportion of CNMI foreign investor entry permits that were
active and valid in July 2008.[Footnote 103] According to the DHS
proposed rule, eligibility criteria for CNMI-only nonimmigrant
investor treaty status during the transition period include, among
others, having been physically present in the CNMI for at least half
the time since the investor obtained CNMI investor status.
Additionally, investors must provide evidence of maintaining financial
investments in the CNMI, with long-term business investors showing an
improved investment of at least $150,000.
* Validity period for CNMI-only treaty investor status. DHS proposed
terminating the validity period for the CNMI-only nonimmigrant treaty
investor status on December 31, 2014. Under the proposed rule, the
status would terminate regardless of whether the temporary worker
provisions are extended.
DHS proposed the rule on September 14, 2009, and accepted comments
until October 14, 2009. According to DHS's April 2010 Semiannual
Regulatory Agenda, the department intends to issue a final rule for
the investor program in July 2010. CNMI-only nonimmigrant treaty
investor status will not be available until the final rule is issued
with an effective date.
DHS received several comments on the proposed rule from the CNMI
government, Saipan Chamber of Commerce, and individuals (see text box).
[Text box: Comments from CNMI Government and Organized Private Sector
on Proposed DHS Rule for CNMI-only Nonimmigrant Investor Treaty Status:
CNMI Government:
In its comments on the proposed regulations, the CNMI government
disagreed with DHS's conclusion that the CNMI-only investor status
must end in 2014, stating that the status would instead be extended if
the U.S. Secretary of Labor extends the transition period for the CNMI-
only worker program. Further, the CNMI noted that the proposed
regulations would exclude many current CNMI investors from qualifying
for the E-2 CNMI investor status. For example, the CNMI reported that
about 85 of 514 long-term business entry permit holders could not
qualify if an investment level of $150,000 is required. CNMI also
reported that 251 of the 514 permit holders were granted at a $50,000
required investment level and were "grandfathered" in 1997 when the
minimum investment requirement was increased. Further, the CNMI noted
that the requirement of continuous residence is unnecessarily
restrictive and would operate to exclude some of the CNMI's current
investors. For the period beyond the end of the transition period, the
CNMI government projected that only 42 of 514 long-term business entry
permit holders may be able to meet the minimum investment level to
qualify for federal investor status.
CNMI Private Sector:
The Saipan Chamber of Commerce also provided several comments on the
proposed regulations:
* The transition period for investors would be extended if the U.S.
Secretary of Labor extends the transition period for the CNMI worker
program;
* DHS has the option to extend grandfathered treaty investor status
beyond the end of the transition period and should take this step to
benefit the economy;
* All holders of CNMI Long-Term Business Certificates should be
grandfathered, as the proposed regulations would exclude those who had
received CNMI permits with less than a $150,000 investment and those
who are not nationals of nations with which the United States
maintains a treaty of friendship, commerce, or navigation;
* Multiple-entry visas should be made available to E-2 CNMI investors
within the CNMI, to allow investors who travel abroad to return to the
CNMI without undergoing the time-consuming and expensive federal visa
process at a U.S. consulate.
Source: GAO analysis of comment to proposed rule.
[End of text box]
Conclusions:
Responding to CNRA's extension of federal immigration law to the CNMI,
DHS components have taken a number of steps since November 28, 2009,
to ensure effective border control procedures in the commonwealth and
to protect national and homeland security. In 2008 and 2009, DHS also
initiated department-level outreach to the CNMI government to
facilitate the components' implementation of CNRA. Additionally, DHS
and other agencies have taken steps to implement CNRA provisions for
workers, visitors, and investors, although the programs for workers
and investors are not yet available to eligible individuals in the
CNMI.
Despite the DHS components' progress in establishing federal border
control in the CNMI, however, their inability to conclude negotiations
with the CNMI government regarding access to airport space, detention
facilities, and CNMI databases has resulted in continuing operational
challenges. First, lacking occupancy agreements with the CNMI, CBP
officers have continued to operate in CNMI airport space that does not
meet the agency's facility standards. Second, lacking an agreement
with the CNMI government regarding detention space, ICE has released a
number of aliens with criminal records into the CNMI community under
orders of supervision and has paid to transport several detainees to
Guam and Hawaii. Third, lacking direct access to CNMI's immigration
and border control databases, ICE officials have instead directed data
requests to a single CNMI point of contact, limiting their ability to
quickly verify the status of aliens and compromising the security of
ongoing operations. Although the DHS components have made continued
efforts to overcome these operational challenges without department-
level intervention, in each case, their efforts have encountered
obstacles. Negotiations with the CNMI government for long-term access
to the CNMI airports have not been concluded, and key differences
remain unresolved; meanwhile, negotiations for access to CNMI
detention facilities and databases have reached impasse. Without
department-level leadership, as well as strategic approaches and time
frames for concluding its components' negotiations with the CNMI,
DHS's prospects for resolving these issues is uncertain.
Recommendation for Executive Action:
To enable DHS to carry out its statutory obligation to implement
federal border control and immigration in the CNMI, we recommend that
the Secretary of Homeland Security work with the heads of CBP, ICE,
and USCIS to establish strategic approaches and time frames for
concluding negotiations with the CNMI government to resolve the
operational challenges related to access to CNMI airport space,
detention facilities, and information about the status of aliens.
Agency Comments and Our Evaluation:
We provided a draft of this report to officials in DHS, DOI, DOL,
State, and the governments of the CNMI and Guam for review and
comment. We received written comments from DHS, DOI, the CNMI
government, and the Guam government, which are reprinted in appendixes
II, III, IV, and V, respectively. We also received technical comments
from DHS and DOL, which we incorporated as appropriate. State did not
provide comments.
Following are summaries of the written comments from DHS, DOI, the
CNMI government, and the Guam government and of our responses where
appropriate.
* DHS. DHS agreed with our recommendation that the Secretary of
Homeland Security work with the heads of CBP, ICE, and USCIS to
establish strategic approaches and time frames for concluding
negotiations with the CNMI to resolve the operational challenges
related to CBP's access to airport space, ICE's contract negotiations
regarding detention facilities, and the ability for DHS and its
component agencies to obtain information about the status of aliens
from databases under the control of the CNMI government.
* DOI. DOI stated that the report clearly sets out the problems of
implementing the extension of U.S. immigration law to the CNMI and
that the information contained in the report corresponds to the
observations and analyses of the department's Office of Insular
Affairs.
* CNMI government. The CNMI government raised concerns about the scope
of our report and its support for several findings. The CNMI
government expressed particular concern that we did not address
certain issues that CNRA directed GAO to assess. As stated in the
objectives of this report, we describe the steps taken by federal
agencies to establish federal border control in the CNMI and the
status of efforts to implement CNRA programs specific to the CNMI for
workers, visitors, and investors. Recognizing that the regulations
establishing the CNMI-only programs for workers and investors are not
yet available, we reached agreement with the offices of the addressees
of this report to examine the likely economic impact of federalization
after regulations are in place. The CNMI also expressed concerns
regarding the timeliness and content of federal agencies' regulations
to implement the CNRA programs for workers, visitors, and investors
and regarding DHS efforts to identify overstayers and remove aliens.
In our report, we discuss the CNMI's concerns regarding each
regulation. Additionally, the CNMI raised concerns regarding the
adequacy of our evidence in some cases. In responding to CNMI's
comments and after considering technical comments from DHS, we
modified our discussion of CBP's effort to acquire operational space
at the Saipan airport. In addition, we added information from ICE
tracking logs to our discussion of DHS's interest in obtaining direct
access to the CNMI's immigration-related databases, and we clarified
other sections as appropriate. (See appendix IV for more details of
our responses to the CNMI's comments.)
* Guam government. The government of Guam made several observations
about the interim final rule for the Guam-CNMI visa waiver program.
First, Guam stated that the DHS Secretary's decision to use her
authority to parole tourists from China and Russia into the CNMI, but
not to use her authority similarly for such tourists seeking to enter
Guam, contravenes Congress's intent that a unified visa waiver program
operate in Guam and the CNMI. Second, Guam stated that CNRA was
designed to expand tourism to the islands and that China and Russia
must be added to the Guam-CNMI Visa Waiver Program to achieve that
result. Third, Guam concluded that the interim final rule makes the
eligibility requirements for the Guam-CNMI program more stringent than
those of the U.S. visa waiver program. The Governor's office asked for
the immediate issuance of a final rule for the Guam-CNMI visa waiver
program that is consistent with congressional intent, unifies the
program, and provides both Guam and the CNMI with access to China's
and Russia's tourist markets.
We are sending copies of this report to interested congressional
committees. We also will provide copies of this report to the U.S.
Secretaries of Homeland Security, the Interior, Labor, and State and
to the Governors of Guam and the CNMI. 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 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 VII.
Signed by:
David Gootnick:
Director, International Affairs and Trade:
[End of section]
Appendix I: Objective, Scope, and Methodology:
In this report we describe (1) the steps that have been taken to
establish federal border control in the Commonwealth of the Northern
Mariana Islands (CNMI) and (2) the status of efforts to implement the
Consolidated Natural Resources Act of 2008 (CNRA) provisions with
regard to workers, visitors, and investors. We plan to issue a
subsequent report regarding the impact of implementation of the CNRA
on foreign workers, the tourism sector, and foreign investors in the
CNMI.
In conducting our work, we reviewed legislation that applies U.S.
immigration laws to the CNMI, namely, CNRA,[Footnote 104] the U.S.
Immigration and Nationality Act (INA), and related regulations.
[Footnote 105] To examine the relationship between the CNMI and the
United States, we reviewed the CNMI-U.S. Covenant,[Footnote 106] the
lawsuit between the CNMI and the United States to overturn specific
provisions of the CNRA, and the CNMI protocol for implementing U.S.
immigration law.[Footnote 107] We also reviewed related studies by GAO
[Footnote 108] and the Congressional Research Service.[Footnote 109]
We interviewed officials in Washington, D.C., from U.S. Department of
Homeland Security (DHS) components Customs and Border Protection
(CBP), U.S. Citizenship and Immigration Services (USCIS), and
Immigration and Customs Enforcement (ICE), as well as officials from
the U.S. Departments of the Interior (DOI), Labor (DOL), and State.
To describe the steps that have been taken to secure the border in the
CNMI, we visited the commonwealth, where we interviewed officials in
the CNMI Office of the Governor, Department of Labor, and the Marianas
Visitors Authority. We also interviewed representatives of the CNMI
private sector, including the Saipan Chamber of Commerce. In addition,
we observed CBP operations at the Saipan and Rota airport facilities.
We reviewed U.S. agreements with the CNMI regarding airport occupancy
and detention space at the local correctional facility. In addition,
we reviewed formal letters between DHS and the CNMI government, as
well as the CNMI Department of Labor's 2008 and 2009 Annual Report to
the Legislature. In general, to establish the reliability of the data
that CBP uses to document arrivals, that ICE uses to document aliens,
and that USCIS uses to document benefits in the CNMI, we
systematically obtained information about the ways that the components
collect and tabulate the data. When possible, we checked for
consistency across data sources. Although the data provided by CBP,
ICE, and USCIS have some limitations, we determined that the available
data were adequate and sufficiently reliable for the purposes of our
review. We did not include the U.S. Department of Justice in our
review, because the department has a limited role in implementing
CNRA. We also did not assess the validity of federal agencies'
expected costs or operational needs in implementing the legislation.
We did not review the extent to which U.S. laws were properly enforced.
To describe the steps that DHS has taken to implement the CNRA
provisions with regard to workers, visitors, and investors, we
reviewed comments provided by the CNMI and Guam governments and
organized private sectors regarding federal regulations. Specifically,
we reviewed DHS's interim rule for CNMI-only worker permits, the
interim final rule for the Guam-CNMI visa waiver program, and the
proposed rule for CNMI-only nonimmigrant treaty investor status. We
also reviewed documents provided by agency officials that describe the
operation of the parole authority used to allow Chinese and Russian
nationals to visit the CNMI for pleasure on a case-by-case basis. We
interviewed the Governor of Guam and representatives of the private
sector regarding the differences between the Guam visa waiver program
and the Guam-CNMI visa waiver program.
We conducted this performance audit from September 2009 to May 2010 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: Comments from the Department of Homeland Security:
U.S. Department of Homeland Security:
Washington, DC 20528:
April 23, 2010:
Mr. David Gootnick:
Director:
International Affairs and Trade:
441 G Street, NW:
U.S. Government Accountability Office:
Washington, DC 20548:
Dear Mr. Gootnick:
RE: Draft Report GA040-553, Commonwealth of the Northern Mariana
Islands: DI-IS Needs to Conclude Negotiations with the CNMI and
Finalize Regulations to Fully Implement Federal Immigration Law
(Engagement 320711):
The Department of Homeland Security appreciates the opportunity to
review and comment on the draft report referenced above. The
Government Accountability Office (GAO) recommends that the Secretary
of Homeland Security work with the heads of Customs and Border
Protection (CBP), Immigration and Customs Enforcement (ICE), and the
United States Citizenship and Immigration Services (USCIS) to
establish strategic approaches and timeframes for concluding
negotiations with the Commonwealth of the Northern Mariana Islands
(CNMI) government to resolve the operational challenges related to
CRP's access to CNMI airport space, ICE's contract negotiations
regarding detention facilities, and the ability for DHS and its
component agencies to obtain information about the status of aliens
from databases under the control of the CNMI government.
The Department agrees with the recommendation and will continue to
provide strategic guidance and assistance to CBP, ICE and USCIS as
they work to resolve the challenges regarding airport space for
immigration inspection services, access to detention facilities, and
streamlining the access to information in CNMI databases.
Sincerely,
Signed by:
Michael McPoland, for:
Jerald E. Levine:
Director:
Departmental GAO/OIG Liaison Office:
[End of section]
Appendix III: Comments from the Department of the Interior:
United States Department of the Interior:
Office Of Insular Affairs:
1849 C Street, NW:
Washington, DC 20240:
April 12, 2010:
Emil Friberg:
Assistant Director:
U.S. Government Accountability Office:
441 G Street, NW:
Washington, D.C. 20548:
Dear Mr. Friberg:
Thank you for the opportunity to comment on the U.S. Government
Accountability Office's Report Draft No. GAO-10-553 entitled,
Commonwealth Of The Northern Mariana Islands: DHS Needs to Conclude
Negotiations with the CNMI and Finalize Regulations to Fully Implement
Federal Immigration Law. It is apparent from the Report Draft that GAO
completed a thorough review of the efforts of the Department of
Homeland Security to implement the Consolidated Natural Resources Act
of 2008.
The Report Draft clearly sets out the problems of implementing fully
the United Stales Congress' mandates for extension of the U.S.
Immigration and Nationality Act to the CNMI. i note that the
information contained in the Report Draft corresponds to the results
of observations and analyses of the Office of Insular Affairs.
Therefore, I have no suggested changes or additions to the Report
Draft.
If you have any questions, please feel free to communicate with me
directly at (202) 208-4736, or Pam Brown, Federal Ombudsman in the
CNMI at (670) 322-8030.
Sincerely,
Signed by:
Nikolao Pula:
Director of the Office of Insular Affairs:
[End of section]
Appendix IV: Comments from the Government of 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:
Benigno R. Fitial, Governor:
Eloy S. Inos, Lt. Governor:
Caller Box 10007 Saipan, MP 96950:
Telephone: (670) 664-2200/2201:
Facsimile: (670) 664-2211:
April 21, 2010:
Comments Of The Commonwealth Of The Northern Mariana Islands Regarding
Gao Report No. 10-553 Concerning The Implementation Of The
Consolidated Natural Resources Act Of 2008:
These Comments are submitted by the Commonwealth of the Northern
Mariana Islands ("Commonwealth" or "CNMT') with respect to GAO Report
10-553 entitled "Commonwealth of the Northern Mariana Islands: MIS
Needs to Conclude Negotiations with the CNMI and Finalize Regulations
to Fully Implement Federal Immigration Laws."
The Government Accountability Office ("GAO") was directed to submit
this report no later than May 8, 2010 ” two years after the enactment
of the Consolidated Natural Resources Act of 2008 ("CNRA") applying
the federal immigration laws to the Commonwealth. Congress specifically
requested that GAO include, at a minimum, its "assessment" on four
critical aspects of the legislation: (1) "an assessment of the
implementation [of the law], including an assessment of the
performance of Federal agencies and the Government of the Commonwealth
in meeting congressional intent," (2) "an assessment of the short-term
and long-term impacts of implementation [of the law] 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...."; (3) "an assessment of the economic
benefit of the investors "grandfathered" under [the law]... and the
Commonwealth's ability to attract new investors after the date of
enactment of this Act;" and (4) "an assessment of the number of
illegal aliens in the Commonwealth, including any Federal and
Commonwealth effects to locate and repatriate them."
GAO completely failed to address any of these very important issues.
Instead, it engaged in an exercise of "describing" certain steps taken
by the Department of Homeland Security ("DHS") in implementing the
law. GAO promised a future report or reports "regarding any impact on
the CNMI economy resulting from implementation of the CNRA" (p. 3) and
"the impact of implementation of the CNRA on foreign workers, the
tourism sector, and foreign investors in the CNMI." (p. 49) We believe
that Congress ” and the Commonwealth ” deserved the critical
"assessment' of these and other issues on the schedule mandated by
Congress, not at some unspecified time in the future, so that Congress
could fairly evaluate the extent to which the law was serving the
objectives which motivated its enactment, GAO has harmed the
Commonwealth by its refusal to comply with the law. [See comment 1]
Having undertaken only to "describe" actions taken by the relevant
federal agencies, GAO completely avoided any criticism of these
agencies. As discussed in these Comments, the Commonwealth believes a
more objective and informed report might well have concluded that the
performance of DHS to date in implementing the law has been seriously
defective and injurious to the Commonwealth. In particular:
* The Department's failure to promulgate the required regulations
within the statutory timetable resulted in unnecessary injury to the
Commonwealth's economy and residents.
* The Department's regulations fail to comply with the Congressional
intent in many important respects and adversely affect the
Commonwealth's ability to maintain access to its tourists and
investors.
* The Department's refusal to cooperate with and support the
Commonwealth's Border Management System ("BMS") has resulted in an
increase in the number of illegal aliens in the CNMI since the federal
immigration laws became effective on November 28, 2009.
* The Department's removal/deportation efforts have been insufficient
to date and have resulted in the continued residence in the
Commonwealth of hundreds of foreign workers who are not presently
employed and are a substantial burden on the Commonwealth's limited
public services.
GAO's timidity in addressing the performance of the Department of
Homeland Security contrasts sharply with its enthusiasm for
criticizing the Commonwealth with respect to three operational
concerns identified by DHS ”space needs at the Saipan Airport, the use
of CNMI detention facilities by DHS, and access to certain data bases
maintained by the Commonwealth. In each of these areas, GAO fails to
comply with its own investigatory standard, which obligates the agency
to "obtain sufficient, appropriate evidence to provide a reasonable
basis for our findings and conclusions." Rather than conduct a
thorough and documented investigation, GAO relied on informal oral
statements made by unidentified DHS officials, failed to seek
documentation to support the facts, and elected not to seek
appropriate responses from CNMI officials. The end result is clear:
GAO accepts without challenge the facts provided by the DHS officials
involved, holds the Commonwealth solely responsible for any
disappointments experienced by DHS employees, and misses the
opportunity to be useful by suggesting how some of these issues might
be reasonably resolved. Curiously, GAO's only recommendation in this
report is that these three issues be escalated to the Secretary's
level at the Department of Homeland Security. [See comment 2]
The Commonwealth respectfully suggests that this GAO report ignores
the statutory directive authorizing the report, fails to meet its own
internal investigatory standards, and displays a bias against the
Commonwealth ” all of which are damaging to the relationship between
the CNMI and the federal government.
Discussion:
I.The Department's Failure to Promulgate the Required Regulations
within the Statutory Timetable Resulted in Unnecessary Injury to the
Commonwealth's Economy and Residents:
In its August 2008 report (GAO-08-791) regarding the potential
economic impact of implementing the CNRA, GAO stressed that the
concerned federal agencies needed to work together, to consult
regularly with respect to their different responsibilities under the
law, and to prepare appropriate memoranda of agreement as to bow best
to implement the law. In addition, GAO concluded that it was
impossible to assess the likely economic effects of the new law on the
Commonwealth's economy because of the broad discretionary authority
assigned by Congress to the implementing agencies, in particular the
Department of Homeland Security and the Department of Labor.
Accordingly, GAO two years ago concluded that it could usefully
assist the agencies by identifying the substantive decisions that the
agencies needed to embody in their regulations, in the absence of
which it would be virtually impossible to implement the law. [See
comment 3]
In its current draft report, GAO describes the respects in which the
federal agencies have failed to comply with the law's requirements
(and GAO's earlier exhortations) to develop a meaningful inter-agency
approach to implementation of the law. It reports that an unspecified
(and presumably very low) number of interdepartmental meetings were
held by unspecified agencies from May 2008 through November 2009, but
that the draft Memorandum of Understanding that was supposed to emerge
from these discussions has not yet been finalized and signed by the
various agencies and was therefore not available for GAO's review.
(Report, p. 25) GAO has no criticism of this failure. [See comment 4]
With respect to the issuance of final regulations before the effective
date of the law on November 28, 2009, the GAO report fails to comment
on the fact that not one set of regulations in final form was issued
by DHS before the effective date notwithstanding the 180-day deferral
of the effective date of the law. The Visa Waiver Program for Guam and
the CNMI was issued as an Interim Final Rule only, with vague
suggestions by DHS (repeated without criticism in this draft report)
that it is deliberating whether to amend the current rule. The
proposed regulations regarding CNMI-only investor visas were not
proposed until September 2009 and have not been issued in final form
despite the closing of the comment period on October 14, 2009. The
Department's proposed rules regarding transitional workers in the CNMI
were published without compliance with the notice and comment
provisions of the Administrative Procedures Act and were enjoined by a
federal district court at the Commonwealth's request. The extended
period for comment on these rules ended on January 8, 2010.
In light of GAO's earlier stress on the need for such implementing
regulations, its current silence on the Department's failure to comply
with the law's schedule is inexplicable and disappointing. GAO points
out in a footnote (Report, p. 11) that "Key rules and other aspects of
the transition program require further development through
regulation." Later in the Report (p. 34), GAO comments that "key
regulations are not final and, as a result, transition programs to
preserve access of foreign workers and for investors are not yet
available." GAO relies on the absence of final regulations to justify
its decision not to "assess" the Department's efforts to implement the
law as it had been directed to do by the statute. [See comment 5]
To the extent that GAO looked for some explanation for the delay in
issuing these essential regulations, the Commonwealth's lawsuit
provided a most convenient excuse. GAO carefully identifies most of
DHS's excuses for bypassing the notice-and-comment period for the
CNMI. only work permit rule (Report, pp. 37-38), but chooses to ignore
the Court's decision rejecting these arguments. In the interest of
fairness, the GAO report should include the Court's conclusions that
OHS had ample time over the past 18 months to develop and issue these
regulations, that it had made no showing of diligent efforts during
the period to do so, that "the Commonwealth's residents and government
have meaningful concerns about the Rule," and that "the damage done by
DHS's violation of the APA cannot be fully cured by later remedial
action." Commonwealth of the Northern Mariana Islands v. United States
of America, et al, Civil Action No. 08-1572 (Opinion, November 25,
2009), pp. 10, 14, 15. [See comment 6]
Quite apart from the substance of these regulations, the Department's
delay in issuing them in final form has contributed to the increased
uncertainty and instability in the Commonwealth's economy over the
last year. Many current CNMI foreign investors have left the community
and others face an uncertain future in light of proposed investor
rules that fail to comply with the CNRA. The lack of a federal work-
permitting program has contributed to uncertainty among employers and
workers alike with respect to the status of foreign workers who have,
or do not have, an umbrella permit from the CNMI Department of Labor.
The lack of clear resolution to these issues is being exploited by
some federal employees, who are encouraging foreign workers to violate
local law during the two year period ending November 27, 2011. The
Department's temporary use of parole authority with respect to
enabling workers and others to leave the CNMI (and to return without a
US visa) has added a new level of uncertainty and apprehension within
the foreign worker community on which the CNMI economy so heavily
depends.
GAO is well aware of the depressed condition of the CNMI economy. It
continues to ignore the McPhee/Conway report of November 2008 which
provides the only professional economic assessment in recent years of
the CNMI economy and the impact of federal immigration and minimum
wage laws on that economy. The study concluded as follows: [See
comment 7]
"As a result of the demise of the apparel industry and the expected
decline of the visitor industry, the CNMI economy stands to lose
approximately 44 percent of its real Gross Domestic Product, 60
percent of its jobs, and 45 percent of its real personal income by
2015, according to the 'federalization' scenario. Unequivocally, this
is a depression of great magnitude. It is equivalent to turning back
the clock for the CNMI economy to 1985." McPhee/Conway Report, p. 42.
In fact, the decline in the Commonwealth's economic situation has
proceeded more rapidly than projected by this study. The CNMI has
already lost 40 percent of its jobs and the revenues available for
appropriation have fallen from over $240 million in fiscal 2005 to an
estimated $137 million for fiscal 2010 and an estimated $132 million
for fiscal 2011. With these figures in mind, the GAO might have been
more forthright and constructive if it had seriously "assessed" the
further economic consequences of the Department of Homeland Security's
failure to produce its final regulations in a timely manner consistent
with the Congressional intent. [See comment 8]
II. The Department's Regulations Fail to Comply with the Congressional
Intent in Important Respects and Adversely Affect the Commonwealth's
Ability to Maintain Access to its Tourists, Investors, and Customers:
Visa Waiver Regulations: The Interim Final Rule issued on January 16,
2009, for the Guam-CNMI joint visa waiver program failed to comply
with the Congressional intent in authorizing such a program. The
authors of the act were well aware of the importance of tourism to the
Commonwealth and Guam and the growing significance of tourists from
China and Russia. Congress plainly stated in the CNRA that its purpose
was to expand tourism ” currently the only industry of significance
within the CNMI. The Department's exclusion of China and Russia from
the program reversed longstanding practice with respect to visa waiver
programs, applied criteria not authorized by the CNRA that have never
been used previously regarding a visa waiver program, and failed to
acknowledge the law's intent to expand tourism with specific reference
to those countries of "significant economic benefit" to Guam and the
CNMI. The promulgation of the Interim Final Rule in this form, which
replaces the previously existing Guam Visa Waiver program, has
seriously prejudiced Guam's access to tourists by making inclusion in
the new Guam-CNMI program more onerous than the mainland program ”
contrary to the previously widely accepted concept and practice of the
previous Guam waiver program being a "broad application" of the
mainland program. GAO made no comment in these regards and had no
criticism of the Department's Interim Final Rule. [See comment 9]
The Department of Homeland Security has been "reviewing" this Interim
Final Rule now for more than a year with respect to changing its
position regarding the inclusion of China and Russia. If the GAO were
in fact producing the report requested by Congress, it might well
conclude that the Department's actions with respect to the Interim
Final Rule were contrary to the Congressional intent and injurious to
the Commonwealth's and Guam's tourism industries. [See comment 10]
The Secretary's October 2009 decision to utilize the Department's
parole policy authority to admit tourists from China and Russia was
welcomed in the Commonwealth as an effort to compensate for the
exclusion of China and Russia from the Interim Final Rule. However, the
delay in the announcement of the policy and the failure of Customs and
Border Protection ("CBP") officials to implement the policy by the
effective date of November M, 2009, resulted in substantial economic
damage to the Commonwealth. The CNMI Marianas Visitors Authority
estimates that the 15-day delay in the implementation of the parole
policy cost the CNMI $5.4 million and $2.4 million in lost revenue
from China and Russia respectively. Since 73% of the charter seats are
allocated to the Tinian Dynasty Hotel and Casino and the balance to
Century Tours, the lost economic opportunity was felt most on the
island of Tinian. The GAO had no comment on these failures or the
adverse impact on the Commonwealth. [See comment 11]
Continuation of the parole program in place of amendment of the
Interim Final Rule to include China and Russia will not allow the CNME
to expand its tourism market, and is therefore not consistent with the
Congressional intent underlying the CNRA Implementation of this parole
authority falls far short of the needs of the islands. In its present
form, the parole authority is applicable only to the CNMI and
therefore fails to implement the directive of the CNRA for a unified
and harmonized Visa Waiver Program for the CNMI and Guam. In addition,
exercise of parole authority with respect to such an important element
of the Commonwealth's tourism business is necessarily viewed as a
"stopgap" measure that at best seeks to preserve the status quo in the
CNMI. But it does not provide the needed basis for the expansion of
the tourism industry in both insular areas. The uncertainly as to its
consistent application by CBP officials and investor perceptions have
prevented tourism officials in Guam and the CNMI from attracting
further investors in the area of airlift capacity, attractions,
services, and accommodations. Investors in both Guam and the CNMI are
prepared to commit to the development of Chinese and Russian tourists
(our only growth opportunity markets) with the inclusion of these
countries in the full Visa Waiver Program for both insular areas, but
not under the current uncertainty and perceived temporary nature of
parole authority.
In light of the importance of visiting tourists to the Commonwealth,
we believe that CBP should be moving more quickly to hire experienced
Commonwealth personnel and to assign permanent staff to the CNMI,
rather than depend almost exclusively on TDY assignments. In addition,
CBP needs to be more responsive to the complaints that have been
received, and forwarded to them, with respect to the "unwelcoming
attitude" of CBP officials assigned to Saipan. CBP has failed to
respond in any way to these complaints. We understand that CBP
conducted special training for their airport officers on the Mainland
at the main ports of entry for visitors in order to encourage tourism
in the United States. The CNMI recommends that such training is even
more necessary in the Commonwealth.
CNMI-Only Investor Visa Regulations: The Department's proposed rules
regarding CNMI-only investor visas fails to implement the relevant
provisions of the CNRA. First, the rules reject the law's provisions
to the effect that the three separate components of the transition
program (relating to caps on H-visas, investor visas, and foreign
worker permits) can all be extended if the Secretary of Labor
exercises the discretion granted her by the law to extend the
transition period beyond December 31, 2014. Second, the regulations
impose a minimum. investment of $150,000 on current CNMI investors
eligible for "grandfathering" that is not authorized by the CNRA.
Third, the Department's economic impact analysis of the proposed
regulations fails to acknowledge the substantial adverse effects on
the Commonwealth's economy and people that will result from the
regulations. The GAO report fails to assess these shortcomings. [See
comment 12]
First: Although it normally eschews taking a position on any
substantive issue described in its reports about the CNMI, GAO in its
draft report (pp. 12, 45) has again endorsed the Department of
Homeland Security's position to the effect that the extension of the
transition period covers only the extension of the foreign worker
permitting system and does not permit any extension of the CNMI-only
investor visas authorized by the CNRA. Neither agency has ever made
available a legal opinion in support of its interpretation; and DHS,
after receiving a legal opinion from the Commonwealth, declined to
respond or agree to a meeting at which the different legal views might
be considered by the Department's senior officials. What is surprising
is that GAO persists in this interpretation even after the Senate
Energy Committee in April 2008 expressly rejected this DHS/GAO reading
of the law. With respect to the waiver of the numerical caps on H-
visas, the Committee report stated that "the Committee intends that
this waiver of the numerical limitations for Guam and the CNMI is
extended along with any extension of the five-year transition period."
Two paragraphs later, the Committee report discusses the power of the
Secretary of Labor to extend the transition period and points out: "It
is important to note that the transition period covers several
policies and programs and is not limited to the Commonwealth Only
Transitional Workers Program. For example, the transitional program
also covers the Guam/CNMI waiver on numerical limitations on the INA H-
visa program." (Senate Report 110224, 110 Cong.2d Sess., pp. 6-7) Even
at this late date, GAO should at least acknowledge the conflicting
legal interpretations and perhaps use its good offices to suggest that
DHS and the CNMI should make every effort to reach agreement on this
issue so as to avoid the litigation that will otherwise result. [See
comment 13]
Second: the proposed investor visa regulations impose a financial
requirement on some current CNMI foreign investors that is not
authorized by the CNRA. As the GAO report (p. 44) accurately
summarizes, the CNRA authorizes grandfather status to a person with
long-term investor status under former CNMI laws... who "maintains the
investment or investments that formed the basis for such long-term
investor status." By superimposing a requirement of $150,000 minimum
investment, the proposed DHS regulations would deny the new CNMI-only
investor status to an estimated 87 investors in the CNMI who
originally qualified at the $50,000 level but were permitted to
continue living and investing in the CNM1 after the Commonwealth
increased the minimum requirement to $150,000 in 1997. The CNRA does
not authorize DHS to draw such distinctions among those investors
otherwise qualified under CNMI law, and the GAO report should have
"assessed" the Department's failure to implement the CNRA properly in
this regard. [See comment 14]
Third: the Department's examination of the likely economic effects of
the proposed regulations in compliance with Executive Order 12866 and
the Regulatory Flexibility Act falls short in very important respects.
It fails to recognize that the Commonwealth has been in a serious
economic depression over the past four years. It fails to assess
accurately the likely impacts of the proposed regulations on the
foreign businesses critical to a productive CNMI economy. In this
draft report, as in its earlier reports on the Commonwealth, GAO
conspicuously avoids any assessment of the impact that the CNRA has
had on the CNMI economy or in critiquing any other agency's
assessment. [See comment 15] The Commonwealth recognizes that GAO may
not have the appropriate tools (such as the input-output model used by
Dr. Conway) for assessing the economy in a manner that would survive
peer review and little practical experience in economic forecasting.
In light of these shortcomings, the Commonwealth would have
anticipated that, at the very least, GAO would have acknowledged the
McPhee/Conway report's analysis of the CNMI economy based on the most
relevant and current economic data, even if GAO elects to ignore its
very dire conclusions regarding the economy's likely future course.
[See comment 16]
Transitional Foreign Worker Permitting Program: The draft GAO report
(pp. 35-38) "describes" the proposed regulations issued by DHS with
respect to the permitting system for foreign workers authorized by the
CNRA. It states that the DHS rule addresses the following subjects:
the number of work permits available, the distribution of permits, the
terms and conditions of the permit program, and the permit fee. What
GAO chooses to overlook is that the proposed regulations fail to
specify any basis for "allocating" work permits among employers
seeking to hire foreign workers and any methodology for reducing the
number of work permits to zero by the end of the transition period on
December 31, 2014, in the absence of an extension by the Secretary of
Labor. [See comment 17]
The relevant provisions of the CNRA require the Department of Homeland
Security to address these two issues in its regulations. The law
provides:
"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 who would not otherwise be eligible for
admission under the [INA]...The 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, 2014, unless
extended pursuant to paragraph 5 of this subsection." Section 6(d)(2).
As is commonly understood, the use of the mandatory "shall" does not
allow DHS to use its discretion to pursue a different regulatory
approach. This CNRA provision does not authorize the issuance of
regulations in piecemeal form over time that address one aspect or
another of the worker permitting system mandated by the law. It
requires a single coherent (and defensible) system "for allocating and
determining" all aspects of the proposed work permits and providing
"for a reduction in the allocation of permits for such workers on an
annual basis to zero."
GAO's refusal to even "describe" ” much less "assess" -- these
deficiencies in the proposed regulations is especially surprising in
view of its discussion of these issues in its August 2008
report (GAO-08-791) with respect to the implementation of the CNRA in
the Commonwealth. [See comment 18] In that report (p. 24), GAO
emphasized that the decisions to be made by DHS (and DOL) "in
implementing the CNMI-only work permit program will largely determine
the legislation's potential impact on the availability of foreign
workers and, as a result, on the CNMI labor market and economy."
According to this earlier GAO report (p. 26), two of the four "key
federal implementation decisions" assigned by the law to the
Department of Homeland Security were (1) to determine the way in which
"the permits are distributed" and (2) to determine the "number of
permits to provide" under the program so as to achieve the statutory
goal of zero by the end of the transition period. Indeed, GAO back in
2008 discussed these two issues in some detail. It spent considerable
effort to portray alternative mechanisms available to DHS in
decreasing the yearly allocation of these work permits ” for example,
a linear reduction at a constant rate to zero, an increasing rate of
reduction, or a slight decline until a sharp drop in the last month to
zero. (Report, pp. 27-29) It also suggested four different methods
that the Department might elect to use in deciding how to allocate
permits among competing employers. (Report, pp. 29-30) But GAO in 2008
made clear that these were decisions which the Department was required
to make under the law. Now GAO fails even to point out these obvious
shortcomings in the Department's proposed worker permit regulations or
to hold the agency accountable for ignoring prior GAO recommendations.
[See comment 19]
The Department's failure to comply with the law imposes additional
burdens and uncertainty on the Commonwealth's citizens. As DHS
recognizes, the CNMI economy is composed almost entirely of small
businesses, many with less than five employees and only a handful with
more than 50 employees. Without some clear indication of DHS's
intentions with respect to the allocation and reduction of the
available permits for foreign workers, all participants in the
economy suffer. Investors, especially potential new investors, have no
guarantees with respect to how their businesses will be treated by
federal officials. Perhaps, for example, businesses which
participate in some phase of the tourism industry will be favored over
a more speculative project in another industry. Current employers need
to make investment and other decisions looking into the future and,
without some clear indication of their continued access to foreign
workers, this planning becomes even more difficult and problematical.
Individual foreign workers, whose fears have mounted in recent months,
seek guidance about how they can continue to work, and live, in the
Commonwealth if they cannot qualify for a standard INA visa. GAO's
refusal to address the substantive issues raised by the Department's
failure to comply with the law calls into question GAO's capacity and
willingness to provide the professional and unbiased services
anticipated by the CNRA.
III. The GAO Report's Conclusions with respect to Certain "Operational
Challenges" Facing DHS are not Supported by the Evidence:
The GAO report (pp. 26-34) identifies three "operational challenges"
facing DHS in implementing the provisions of the CNRA in the
Commonwealth. The three subjects addressed are: (1) DHS requirements
for space at the Saipan Airport; (2) DHS interest in using space at
the Commonwealth's detention facilities; and (3) DHS interest in
acquiring access to certain data bases developed and used by the CNMI.
With respect to each of these issues, the GAO report misstates the
relevant facts, relies on allegations from unnamed federal officials,
and wrongly accuses the Commonwealth of refusing to negotiate in good
faith. The GAO report does not meet the agency's internal requirement
of obtaining "sufficient, appropriate evidence to provide a reasonable
basis for [its] findings and conclusions." [See comment 20]
Saipan Airport Space Requirements: Contrary to the GAO report, there
have been no negotiations between the CBP and the Commonwealth with
respect to space at the Saipan Airport since the signing and
implementation of the Right of Entry ("ROE") agreements with respect
to both the Saipan and Rota airports in November 2009. Therefore, the
statement (p. 26) that "10 months of CBP negotiations with the CNMI
government for additional airport space have been unsuccessful" is
false. So also are the statements (p. 27) that as of March 1, 2009,
such negotiations "remained at an impasse" and that CEP "continues to
negotiate with the CNMI government for access to approximately 7,200
additional square feet of space at the Saipan airport." [See comment
21]
These are the facts.
The CBP office in charge of leasing space for CBP operations is the
Field Operations Facilities Program Management Office, Facilities
Management & Engineering, Office of Administration, US CBP, based in
Indianapolis, IN. This is the office that submitted proposed lease
agreements to the CNMI in October 2009 and negotiated the ROE
agreements regarding the Saipan and Rota airports in November 2009.
This office is well aware that all such space issues are to be raised
with the Commonwealth Ports Authority and the Governor's Special
Counsel. The Contracting Officer assigned to this matter (Ms. Susan S.
Hansen) agrees that there was no communication between her office and
the CNMI until March 25, 2010, when she forwarded for consideration
the same proposed leases for the two airports that had been sent in
October 2009, which identify for possible CBP use certain space at the
Saipan Commuter Terminal and 7,200 square feet of space on vacant land
adjacent to the Saipan Main Terminal. Ms. Hansen suggested that these
documents "would be a good starting point in our negotiations."
CBP has not presented to the Commonwealth a specific proposal for
additional space at the Saipan Airport. During his visit to Saipan in
October 2009, CBP Assistant Commissioner Winkowski expressed lack of
any interest in space at the Commuter Terminal, the basement space
currently rented by CPA to a private party, or the 7,200 feet of
vacant land. Contrary to the GAO report, CBP has not presented any of
the specific requests set forth in the draft report (p. 27) to the
responsible CNMI officials. It seems that the different offices within
CBP have not consulted appropriately with the Indianapolis officials
responsible for negotiating any leases designed to meet the agency's
needs. [See comment 22]
Until CBP makes a decision as to its space needs and communicates that
request officially to the Commonwealth, there is nothing to negotiate
about. The various alternatives presented by the Corp of Engineers,
and summarized in the GAO report, are not the basis on which any
decisions can be made by the Commonwealth. Furthermore, the CNMI is
not prepared to enter into negotiations unless it is assured that the
request for space has been cleared at least at the assistant secretary
level at DHS and that the Department has received the necessary
assurances from Congress that the funds necessary to fulfill CBP's
space needs will be available. We note that the GAO observes in its
draft report (p. 25) that "[a]s of April 2010, DHS had not yet
specified the changes in resources required for administering
immigration and travel laws for the CNMI and Guam, as directed by
Congress in its fiscal year 2009 appropriation." [See comment 23]
CNMI officials cannot responsibly give away public land to a federal
agency without a specific and demonstrated need and the availability
of federal funds to achieve the agency's objectives in seeking the
land. Indeed, Section 806(b) of the Covenant imposes certain
restraints on the ability of the federal government to acquire land
for public purposes in the Commonwealth and expressly provides that
"No interest in real property will be acquired unless duly authorized
by the Congress of the United States and appropriations are available
therefor." [See comment 24]
Space in the CNMI's Detention Facilities: As the GAO report (pp. 28-
31) indicates, CNIVII and ICE officials have been negotiating for
several months with respect to the use by ICE of detention space at
the CNMI Correctional Facility. This facility was constructed at a
cost of $24 million during the period when the Commonwealth's
correctional programs and policies were subject to a Federal Consent
Decree adopted in February 1999. The Commonwealth created a separate
Department of Corrections and took other actions required by the
Consent Decree, which has now been terminated. The new Correctional
Facility was opened after multiple inspections ” all of which found
the Facility appropriate for housing federal detainees.
In part because of this history, the relationship with federal
officials with respect to the use of the Facility has not been as
professional and collegial as desired by Commonwealth officials. The
2007 intergovernmental service agreement between the U.S. Marshals
Service and the CNMI Department of Corrections on occasion gave rise
to threats by federal officials of contempt or criminal proceedings if
CNMI officials did not accede to federal wishes.
The Commonwealth has urged that agreement is possible if both parties
agree to negotiate in good faith as two equal parties. As pointed out
by the GAO report (pp.30-31), ICE has options for dealing with
detainees other than securing space at the Commonwealth's Correctional
Facility. On the other hand, the Commonwealth has a Facility that is
not fully utilized. Based on recent discussions between federal
officials and the CNMI Commissioner of Corrections, it appears
possible that a negotiated rate between the current positions of the
parties may be adopted as a compromise that resolves this operational
concern. However, the burden of reaching an acceptable agreement is a
shared burden of both parties, and the Commonwealth is not required
for any rational reason now on the table to provide a more attractive
proposal. The Commonwealth's very serious depression means that its
government must avoid contracts that end up with the federal
government paying less than a fair rate.
Access to CNMI Data Bases: The GAO report (pp. 31-34) summarizes the
complaints of unnamed DHS officials with respect to their inability to
obtain direct access to CNMI immigration and border control data
contained in two CNMI databases, BMS and LIDS. [See comment 25]
Several of the specific allegations simply are not true: for example,
no CNME official could have stated in March 2010 that DHS was
unwilling to share airline flight data with the Commonwealth because
the March 31, 2010, letter from CBP described in the report was not
received in the Commonwealth until about April 10, 2010. More
fundamentally, however, the GAO's discussion of the issues related to
BMS and LIDS reflects a serious lack of understanding of the
characteristics of both data bases and their limitations with respect
to meeting the needs of CNMI and federal officials. It is important to
distinguish between the BMS and the LIDS systems. [See comment 26]
The BMS System: As acknowledged by the GAO report (p. 31,n.78), "BMS
is an automated arrivals and departures database containing data from
passports, visas, alerts, and permissions (extensions of stay, changes
of status, or other modifications of entry conditions) as applicable
for all persons entering the CNMI." Its history and capabilities have
been the subject of numerous communications between GAO and CNMI
officials over the past two years. The system was obtained from an
Australian supplier several years ago and was updated in 2008. It is
used in several countries to provide reliable information regarding
the entrance and exit of persons into the jurisdiction. In recent
years the Commonwealth has substantially reduced the number of illegal
aliens in the community by reliance on the data generated by the BMS
system.
The Commonwealth has continued to implement the BMS program after the
effective date of November 28, 2009. Contrary to the suggestion in
Assistant Commissioner Winkowski's letter of March 31, 2010, the
Commonwealth recognizes that the federal government (and not the CNMI)
now exclusively controls the admission and removal of unauthorized
aliens from the Commonwealth. However, the Commonwealth has an ongoing
responsibility for enforcing its local labor laws which have not been
preempted by the CNRA. This is especially necessary during the
remainder of the period until November 27, 2011, during which the CNRA
expressly recognizes the validity of permits issued by the
Commonwealth under its laws before November 28, 2009. That is why the
Commonwealth has continued to operate the BMS system since November
28, 2009, and why it requested the APIS data from the federal
government in order to facilitate the collection and timely processing
of the data and eliminate the need for collecting duplicative passport
information from arriving travelers.
GAO is well aware that the Department of Homeland Security does not
have an effective digital exit data system. Numerous reports by GAO
and others have pointed this out and GAO's effort to ignore this
reality (p. 34, n. 81) cannot evade the fundamental issue. [See
comment 27] GAO fails to acknowledge that DHS cannot, for example,
identify any overstayer from among the tourists that they admitted for
90 days in December 2009 after they had taken over the immigration
function. They do not know whether any or all of these persons
departed the Commonwealth. For the Commonwealth, this is an
unacceptable situation. The failings of the U.S. immigration data
system have burdened the country with overstaying tourists and others
for years, culminating in the enormous population of illegal aliens
currently in the United States. The failings of the U.S. system will
similarly burden the Commonwealth with illegal aliens. It was for that
reason that the Commonwealth requested cooperation from CBP in sharing
data so that the Commonwealth, using and sharing its BMS system with
CBP, might identify overstayers promptly and refer them to DHS's
enforcement component (ICE) for institution of removal proceedings.
The CNMI intends to continue relying on its BMS system and will be
submitting regular reports to ICE regarding overstayers in the
Commonwealth who should be the subject of removal proceedings.
The Department's refusal to supply the APIS data to the Commonwealth
so that both agencies might more effectively deal with illegal aliens
in the CNMI is unacceptable. The Commonwealth will appeal this
decision to the Secretary of Homeland Security. The Commonwealth
realizes that no federal official wishes to admit ” and certainly not
in public ” that the CNM1 government was (and is) capable of
implementing a more effective system for controlling illegal aliens
than the federal government possesses. A little less bureaucratic
ego ” and a little more common sense ” should have led to a more
affirmative response by Assistant Commissioner Winkowski. It is
regrettable that here, too, GAO's approach to its assignment prevented
it from commenting more constructively on this issue. [See comment 28]
The LIDS System: Without any investigation or documentation, the GAO
report appears to endorse several complaints voiced by unnamed DHS
officials regarding the Commonwealth's management of its LIDS system.
There seem to be three complaints: (1) federal officials need direct
access to the system; (2) they do not wish to rely on a single CNMI
point of contact, and (3) they have not received the requested
information in a timely manner.
CNMI and ICE officials met in Saipan during the first week after the
transition date of November 28, 2009, to discuss operational measures
to ensure that ICE could verify the status of any alien in the
Commonwealth. The CNMI officials discussed the Commonwealth-issued 11)
cards, which ICE welcomed, and the CNMI officials described how the ID
card system would be continued by the Commonwealth. Picture ID cards
are issued when a worker is employed (renewed or transferred) or when
an alien registers (IRs, students, investors, et al.). CNMI and ICE
officials also discussed how ICE would verify status. Because status
is affected by many labor operations not reflected in the LIDS
database (deficiencies pending, hearings scheduled, interim orders
issued, motions for reconsideration pending, extension requests
pending, Secretarial appeals pending, court appeals pending, etc), it
was agreed that CNN Labor would designate a single point of contact
(the Chief of Labor Enforcement, Jeff Camacho, a veteran of 18 years
in law enforcement), and ICE inquiries would be forwarded to him. He
would check not only the LIDS database, but all other sources
necessary to give a definitive answer as to status.
With respect to the first DHS/GAO complaint, direct access by ICE to
LIDS would not provide ICE with the definitive information it needs.
Because LIDS is not completely an online operation yet, it does not
automatically receive all the information generated in the CNMI
Department of Labor that can affect status. Access by ICE to Jeff
Camacho's ability to connect with all Labor operations affecting
status is critical. ICE has that access. If GAO personnel had checked
with the operational people on the ground in Saipan, they would have
learned this. [See comment 29]
With respect to the second DHS/GAO complaint, the ICE officials during
the initial discussions referred to above specifically requested a
single point of contact so that multiple CNMI Labor officials would
not know about their investigations. [See comment 30] Jeff Camacho's
credentials were presented to ICE in detail (18 years in law
enforcement) and accepted. If ICE did not work with a single point of
contact, then ICE would need to check with the Guest Worker Section,
the Hearing Office, the Enforcement Section, and the Secretary's
Office to determine status with certainty. Each of those offices would
probably consult multiple people ” all of whom would thereby become
aware of the pending ICE investigation. Mr. Camacho knows which people
to contact and, because he contacts them every day with respect to the
Labor Department's internal investigations, they do not know that any
particular inquiry is an ICE investigation. This explanation was
readily available to GAO investigators if they had pursued the facts.
With respect to the third DHS/GAO complaint, GAO reports an oral
statement by an unnamed ICE official to the effect that CNMI responses
to ICE inquiries have not been timely. That is wrong. GAO did not
examine any ICE records as to the time an inquiry was sent and the
time the response was received. It did not examine CNMI Labor's
records which show the time that each inquiry from ICE was received
and the time that the response went out. (As of April 15, 2010, CNMI
Labor records reflect 84 inquiries from ICE officials that were
responded to promptly, within 24 hours or less, without any follow-up
requests for additional information.) There are no documented
complaints from ICE that CNMI officials were taking too long to
respond. CNMI Labor has no record of any ICE request emanating from an
after-hours operation. Calls to the ICE office at 5:05 PM go
unanswered because the office is closed.
IV. The Department's Enforcement Efforts to Remove Illegal Aliens from
the Commonwealth Have Been Insufficient and Will Increase the Number
of Illegal Aliens in the CNMI:
The GAO report fails to address critically one operational concern of
great importance to the CNMI community ” namely, the identification
and removal from the Commonwealth of aliens who are no longer entitled
to stay in the CNMI. Although ICE has been provided with detailed
information regarding hundreds of "overstayers" in the Commonwealth,
very few removal proceedings in fact have been initiated and as of
March 26, 2010, the GAO report (p. 23) notes that not a single illegal
alien has been deported by federal authorities. Unless DHS assigns
more personnel and resources and changes its methods for the removal
of illegal aliens from the Commonwealth, the national security
interests which motivated the enactment of the CNRA cannot be achieved
and the CNMI community will suffer accordingly.
Contrary to the GAO report (pp. 22-23), DHS enforcement officials have
not proceeded expeditiously to remove illegal aliens from the CNMI.
[See comment 31] The GAO report comments on one group of 264 aliens
referred to ICE, 215 by the Commonwealth and 49 by others. The
unsubstantiated report that CNMI Labor had failed to provide necessary
information about persons in this group is wrong. The 215 referrals
were from the CNMI Attorney General's office with pending deportation
orders, which meant that a CNMI Superior Court judge had already held
an evidentiary hearing, found the individual deportable, and issued an
order to that effect There was no need to obtain any further
immigration status information from the CNMI Department of Labor with
respect to these individuals. Furthermore, the deportation orders
issued by the Commonwealth can be enforced summarily by federal
officials, because there has already been a due process hearing, and
there is no reason why any of these 215 illegal aliens with
outstanding deportation orders still remain in the Commonwealth. And
ICE has received timely information from CNMI Labor with respect to
those of the remaining 49 about whom ICE inquired.
The backlog of pending cases involving illegal aliens is going to
expand rapidly over the next several months. As pointed out by the GAO
report (p. 22, n.51), the CNMI Department of Labor on March 9, 2010,
provided ICE with 364 additional names of aliens who have been
designated by the CNMI as overstayers.[Footnote 1] In addition, the
CNMI Department of Labor on April 16, 2010, transmitted information to
ICE with respect to an additional 1008 aliens who have fallen into
illegal status in the Commonwealth.[Footnote 2] The Commonwealth in
the future will be submitting on a regular basis the names of those
foreign workers, for example, who have had their permits revoked and
therefore are subject to removal by federal authorities under the CNRA.
The resources and procedures used by ICE in processing removal cases
are insufficient to deal with the number of illegal aliens in the
Commonwealth. Although the number of illegals in the Commonwealth is
insignificant by U.S. standards, every illegal poses a financial
burden to the Commonwealth. ICE needs to increase its capacity to
schedule and complete immigration hearings in order to make any
significant impact on the growing backlog of cases. A single judge
coming out to Saipan for one week every month cannot handle this
volume of cases. Two alternatives are readily available: (1) ICE and
the Department of Justice should use videoconferencing facilities in
order to handle more cases; and (2) CNMI judges and lawyers
experienced in the handling of deportation cases can be designated by
the U.S. Department of Justice to assist ICE officials in the handling
of these immigration hearings. Unless such steps are taken, it is
virtually certain that the Commonwealth's backlog will simply be added
to the estimated 228,421 pending immigration cases nationwide as of
October 1, 2009, up 23% since the end of fiscal 2008. In Los Angeles,
the office with responsibility for the CNMI, the average wait for a
hearing in the federal immigration courts is 713 days, compared with
the national average of 439 days. (Transactional Records Access
Clearinghouse, University of Syracuse)
Officials of the Department of Homeland Security do not appreciate the
importance of this issue to the people of the Commonwealth. ICE has a
stated objective of initiating removal proceedings first and foremost
against aliens who have engaged in criminal activity. We do not
quarrel with this priority, although locating aliens who have served
their sentences and are productively employed seems less useful than
locating visitors who never intended to leave. But the Commonwealth
requires a higher priority with respect to illegal aliens who no
longer are entitled to live in the CNMI. The number of illegal aliens
in the CNMI has increased since the effective date of the CNRA on
November 28, 2009. These aliens are not entitled to work in the
Commonwealth and either disappear into the underground economy, or
take jobs that should be held by US citizens or legal foreign workers.
They impose an enormous burden on the Commonwealth's public services ”
law enforcement, public health, and education ” which the CNMI' s
depressed financial resources cannot support. The CNRA was enacted in
large measure because of the conviction that federal control was
necessary to deal with, among other issues, the number of illegal
aliens in the CNMI. Sooner or later, GAO and Congress will have to
address seriously whether in fact the implementation of the CNRA by
the Department of Homeland Security has aggravated, rather than
improved, the security situation in the Commonwealth.
Edward T. Buckingham:
Attorney General:
Commonwealth of the Northern Mariana Islands:
Howard P. Willens:
Governor's Special Legal Counsel:
Footnotes:
[1] This is the list published by the Attorney General of the CNMI in
November 2009, updated to remove the names of those who ultimately
received umbrella permits.
[2] This number includes those persons whose permits were revoked by
the hearing office usually after temporary issue (62); overstayers for
the first two quarters of 2009 (156); overstayers for 2448 (336); and
overstayers for the years 2003-2007 (454).
[End of footnotes]
The following are GAO's comments to the CNMI government's letter,
dated April 21, 2010.
GAO Comments:
1. The CNMI government states that we failed to address several
issues, specified in CNRA, related to implementation of CNRA in the
CNMI. As agreed with the offices of the congressional addressees of
our report, the report's objectives were to describe the steps the
federal government has taken to establish border control in the CNMI
and the status of U.S. agencies' implementation of CNRA provisions
with regard to workers, visitors, and investors. We agreed with the
addressees that, because more complete federal regulations need to be
in place prior to an assessment of their likely economic impact, we
will examine the likely impact of federalization on the economy after
federal regulations are finalized and subsequently issue a report.
That report will also examine coordination among federal agencies in
implementing the legislation after implementing regulations are
finalized.
2. The CNMI government states that we did not follow our evidentiary
standard and that we relied instead on informal oral statements made
by unidentified DHS officials, failed to seek documentation to support
the facts, and elected not to seek appropriate responses from CNMI
officials. In response to the CNMI government's comments, we reviewed
our methodology, analysis, and documentation. We maintain that we
followed Generally Accepted Government Auditing Standards in
conducting this engagement and that our findings represent a balanced
summation of the facts. For example, in the course of this engagement,
we heard testimony from DHS officials in formal interviews and sought
extensive documentation including, but not limited to, agency
correspondence, Federal Register notices of rulemaking, comments
submitted in response to those notices of rulemaking, and
documentation of agency procedures and standards. We also received
information from CMNI officials, including the Attorney General of the
CNMI; the Director of Foreign Relations, CNMI Department of Labor; and
officials from the Commonwealth Ports Authority and Marianas Visitors
Authority. Additionally, we sought and obtained comments from the CNMI
government on a draft of this report. Further, we reviewed documentary
evidence obtained from the CNMI, including annual reports submitted by
the CNMI Department of Labor and the "Commonwealth's Protocol for the
Implementation of P.L. 110-229."
3. See comment 1.
4. The CNMI government states that our report fails to comment on the
fact that the DHS regulations were not issued in final form before the
law's effective date. Our report states that key regulations are not
final and that transition programs to preserve access to foreign
workers and for investors are not yet available.
5. See comment 1. We did not comment on the substance of proposed
regulations because they were not yet finalized. We plan to review the
substance and effect of the regulations in our follow-on work.
6. The CNMI government suggests that our report should include a
discussion of the U.S. District Court's conclusions that DHS had
sufficient time to develop the rule for the CNMI-only work permit
program while adhering to the Administrative Procedure Act's notice
and comment provisions; that DHS provided no evidence that it had
worked diligently; and that the commonwealth's government and
residents had meaningful concerns about the rule. We modified the
report to reflect the court's conclusions in these regards.
7. The CNMI government observes that our report does not include the
findings of a November 2008 assessment of the CNMI economy produced by
economic consultants. The cited assessment is not directly relevant to
the scope of this report but is relevant to our continuing work on
implementation of federal immigration in the CNMI. Our April 2010
report on minimum wage increases in American Samoa and the CNMI
provides a summary of the referenced report findings with respect to
increases in the minimum wage in the CNMI.[Footnote 110]
8. See comment 1.
9. See comment 1.
10. See comment 1.
11. The CNMI government states that the delay in announcing the DHS
Secretary's decision to parole nationals from China and the Russian
Federation and in implementing the parole policy cost the CNMI $7.8
million in lost visitor revenue. CNMI officials informed us during a
March 2010 meeting that the suspension in charter flight service from
China cost approximately $10 million in lost visitor revenue. We
modified the report to reflect the updated figures provided by the
CNMI in its comments on a draft of this report.
12. See comment 1.
13. The CNMI government suggests that our report should acknowledge
the conflicting legal interpretations regarding extension of the H cap
exemptions for the CNMI and Guam along with any extension of the 5-
year transition period. Two prior reports, issued in March and August
2008, respectively, reflect our interpretation of the legislation as
allowing for an extension of the CNMI-only work permit program beyond
the transition period at the discretion of the Secretary of Labor but
not allowing for an extension beyond the transition period of other
provisions of the transition program, including the exemptions from
the numerical limitations on H visas.[Footnote 111] In its comments on
our March 2008 report, the CNMI also contended that the legislation
allows the exemption from the numerical H visas to be extended beyond
the end of the transition period (then 2013). In responding to those
comments, we reported that the federal agencies implementing the
legislation had the same interpretation. In our August 2008 report, we
note that according to the Senate report, the Committee on Energy and
Natural Resources intended that the H exemptions for the CNMI and Guam
be extended along with any extension of the 5-year transition period.
Our August 2008 report also notes that the CNMI agreed with the
committee's interpretation and that the Department of the Interior, in
its comments on a draft of that report, stated that it would ask DHS
for a clarification of the provision. Our August 2008 report further
notes that few CNMI foreign workers are likely to meet the
requirements for the uncapped H visas. We have added a citation to
this report to note this issue.
14. See comment 1.
15. See comment 1.
16. See comment 6. Recent GAO reports contain detailed information on
the state of the CNMI economy.[Footnote 112]
17. See comment 1.
18. See comment 1.
19. See comment 1.
20. See comment 2.
21. The CNMI government disagrees with our statement that negotiations
between CBP and CNMI regarding space at the airports had been under
way for 10 months. On the basis of the CNMI's comments as well as DHS
technical comments, we revised our description of DHS's effort to
acquire space at the airports, focusing on the current lack of space
rather than describing DHS's process for seeking space.
22. The CNMI government states that CBP has not presented any specific
requests for airport space to the responsible CNMI official. We
followed up with CBP officials to discuss this point. CBP officials
stated that the agency was working to define its space requirements
and that it agreed with the CNMI regarding the need for discussion of
identified options. We modified the report as appropriate.
23. The CNMI government states that it is not prepared to enter into
negotiations unless it is assured that the request for space has been
cleared at least at the assistant secretary level at DHS and that the
department has received the necessary assurances from Congress that
the funds necessary to fulfill CBP's space needs will be available. We
modified the report as appropriate.
24. The CNMI government notes that the CNMI cannot responsibly give
away public lands to a federal agency without a specific and
demonstrated need and the availability of federal funds to achieve the
agency's objectives in seeking the land. The CNMI further observes
that the Covenant imposes certain restraints on the ability of the
federal government to acquire land for public purposes in the
commonwealth. We modified the text in our report to convey more
clearly that CBP is seeking an agreement with the CNMI to provide
space for CBP operations but is not seeking to acquire land.
25. The CNMI government comments that no CNMI government official
could have stated in March 2010 that DHS was unwilling to share
airline flight data, because CBP's letter of March 31, 2010, was not
received in the commonwealth until about April 10, 2010. We modified
the text in our report to state that the CBP's letter reiterated
information that DHS officials had previously provided to CNMI
officials. We also modified the text in our report to state that the
Governor of the CNMI's letter to the Secretary of Homeland Security on
February 18, 2010, as well as the Governor's Special Legal Counsel in
an interview in March 2010, said that DHS was unwilling to share
airline flight data with the CNMI.
26. The CNMI government states that our discussion of the issues
related to BMS and LIDS reflects a lack of understanding of the
characteristics and limitations of both databases. In February 2010,
we issued a report on the two databases that incorporated information
from prior work and relevant documents from the CNMI government, DHS,
and DOI. Our February 2010 report also incorporated technical comments
that the CNMI provided on a draft of the report; however, the report
notes that the CNMI did not provide certain requested information
owing to insufficient staff resources. Subsequent to publication of
the February 2010 report, the CNMI sent us additional technical
commentary, which we incorporated in this report's descriptions of the
databases.
27. The CNMI government observes that we have reported elsewhere that
DHS does not have an effective digital exit control system. We have
added references to several prior GAO reports that highlight our
concerns regarding the capacity of DHS to identify overstaying
visitors.
28. The CNMI government describes as unacceptable the CBP decision to
not supply airline passenger data to the CNMI and states that it
intends to appeal the CBP decision to the Secretary of Homeland
Security. The report notes that CNRA requires, among other things,
that the CNMI government provide DHS with all commonwealth immigration
records. CNRA does not require DHS to share data with the CNMI and
also does not preclude such data sharing. We modified the text of our
report to reflect the CNMI's stated intention to appeal the CBP
decision.
29. The CNMI government states that access to the CNMI point of
contact gives ICE access to more definitive information than would
direct access to LIDS, because LIDS is not yet completely an online
operation. The CNMI adds that we would have learned this if we had
spoken with operational personnel in Saipan. While conducting field
work in Saipan in January we attempted to speak with the individual
designated as ICE's point of contact; however, he said that he was not
allowed to speak with us unless authorized by the CNMI Department of
Labor. We sought interviews through the CNMI Department of Labor and
were granted one interview with a senior official. Although that
official agreed to provide answers to our questions regarding the LIDS
system, we were later told that additional information could not be
provided owing to insufficient staff resources.
30. The CNMI government states that we did not examine ICE's records
of its transmission of inquiries to, and receipt of replies from, the
CNMI. We examined one ICE unit's log of e-mail requests for CNMI
immigration data, covering late December 2009 through March 2010, and
found that CNMI response times ranged from 16 minutes to 23 hours and
19 minutes, averaging 4 hours and 24 minutes. The CNMI government also
notes that its Department of Labor has no record of any ICE request
emanating from an after-hours operation. ICE officials told us that
they recognize that the CNMI official responsible for answering their
inquiries works normal business hours and that they limit their
inquiries to that time period. However, the ICE unit's log shows one
inquiry sent at 10:54 PM and the CNMI response received in 16 minutes.
31. The CNMI government infers that our report claims that DHS has
proceeded expeditiously to remove illegal aliens from the CNMI. The
CNMI's inference is not accurate; our report neither states nor
implies that DHS has proceeded expeditiously in this regard. Our
report states that none of the 72 aliens being processed for removal
has been deported and that federal immigration hearings take place
during 1 week of every month.
[End of section]
Appendix V: Comments from the Government of Guam:
Office of the Governor of Guam:
Felix P. Camacho, Governor:
Michael W. Cruz, Lieutenant Governor:
P.O. Box 2950:
Hagatna, Guam 96932:
Tel: 671-472-8931:
Fax: 671-477-4826:
Email: governor@mail.gov.gu:
April 22, 2010:
Emil Friberg:
Assistant Director:
International Affairs and Trade:
U.S Government Accountability Office:
441 G Street NW:
Washington DC, 20548:
Dear Mr. Friberg:
Hafa Adai! Thank you for giving the Office of the Governor of Guahan
the opportunity to comment on the Government Accountability Office
Report GAO-10-553: Commonwealth of the Northern Mariana Islands: DHS
Needs to Conclude Negotiations with the CNMI and Finalize Regulations
to Fully Implement Federal Immigration Law.
Full implementation of Public Law 110-229 or the Consolidated Natural
Resources Act (CNRA) will result in increases to Guahan's key industry
to $1.5 billion by 2013 within the framework of a favorable Visa
Waiver Program (VWP).
Tourism expenditures currently represent $1.2 billion in our local
economy or an estimated 40% of Guahan's Gross Island Product (GIP).
Visitor spending alone accounts for 95% of this total. Based on
historical trends, Japan (80%) and Korea (10%) today comprise 90% of
the 1.2 million annual visitors to the island. These are mature
markets that forecast to decline in the future due to their aging
demographics and heightened regional competition from lower cost Asian
resort destinations.
It was the intent of the U.S. Congress that there would be a unified
Visa Waiver Program for Guam and the Commonwealth of the Northern
Mariana Islands (CNMI). In January of 2009, the U.S. Department of
Homeland Security (DHS) issued an Interim Final Rule on the VWP that
was in complete contravention of Congressional Intent and has taken
the islands backwards. In November 2009, the Secretary of the U.S.
Department of Homeland Security granted parole authority to tourists
from China and Russia seeking to enter the CNMJ in advance of full
implementation of Public Law 110-229.
The application of Parole Authority to the CNMI only is anything but
unified. The CNRA was also designed to expand tourism to the islands.
As noted many times, the addition of Hong Kong, while appreciated, is
not a significant enough market to impact the overall Tourism
industry. China and Russia are required for this which is why they
were deemed countries of "Significant Economic Benefit". Additionally,
the expansion of tourism requires that these countries be added to the
VWP. Parole Authority, by virtue of its discretionary application and
it being perceived by investors as "temporary in nature" makes
attracting investment in the area of accommodations, airlift,
attractions and other key elements, very difficult.
Parole Authority has allowed the CNMI to maintain status quo, it has
not allowed them to expand. In discussions GVB has had with many key
potential investors in tourism, having access to China and Russia
under Parole Authority is not nearly as attractive as VWP.
Also, the Guam CNMI Visa Waiver under the CNRA was set to replace the
existing Guam Visa Waiver program. Several problems have emerged with
this process. When the U.S. Congress created the Guam Visa Waiver
program, it was noted at the time that the unique conditions prevalent
in the islands justified a "broad application" of the visa waiver
program. Therefore the Guam VWP has always listed countries that were
not eligible to participate in the Mainland program. The regulatory
requirement of a US visa refusal rate of 16.990 or below for countries
to be eligible for the Guam program was a reflection of this "broad
application". The Interim Final Rule (IFR) that established the
eligibility requirements for the Guam-CNMI program completely omitted
any reference to Visa refusal rates for eligibility - they were
completely thrown out as a basis for inclusion and included
eligibility requirements related to Humanitarian concerns that are
not, nor have they ever been, part of the U.S. Visa Waiver program.
Such inclusion in the new Guam-CNMI program makes the program more
stringent than the U.S. Visa Waiver program.
It is the position of the Office of the Governor of Guahan that
efforts must be undertaken immediately to issue a Final Rule on Visa
Waiver that is consistent with Congressional Intent that unifies the
program and provides both markets access to tourist markets that have
the ability to expand our tourism business and have carryover benefits
to the rest of the islands in the Northern Pacific including the
Republic of the Marshall Islands, the Republic of Palau and the
Federated States of Micronesia.
Sinseru yan Magahet,
Signed by:
Eulogio S. "Shawn" Gumataotao:
Deputy Chief of Staff:
Office of the Governor of Guhan:
[End of section]
Appendix VI GAO Contact and Staff Acknowledgments:
GAO Contact:
David Gootnick, (202) 512-3149 or gootnickd@gao.gov:
Staff Acknowledgments:
In addition to the person named above, Emil Friberg, Assistant
Director; Michael P. Dino, Assistant Director; R. Gifford Howland;
Julia A. Roberts; Ashley Alley; and Reid Lowe made key contributions
to this report. Technical assistance was provided by Martin De
Alteriis, Ben Bolitzer, Etana Finkler, Marissa Jones, and Eddie
Uyekawa.
[End of section]
Related GAO Products:
American Samoa and Commonwealth of the Northern Mariana Islands:
Wages, Employment, Employer Actions, Earnings, and Worker Views Since
Minimum Wage Increases Began. [hyperlink,
http://www.gao.gov/products/GAO-10-333]. Washington, D.C.: April 08,
2010.
U.S. Insular Areas: Opportunities Exist to Improve Interior's Grant
Oversight and Reduce the Potential for Mismanagement. [hyperlink,
http://www.gao.gov/products/GAO-10-347]. Washington, D.C.: March 16,
2010.
CNMI Immigration and Border Control Databases. [hyperlink,
http://www.gao.gov/products/GAO-10-345R]. Washington, D.C.: February
16, 2010.
Poverty Determination in U.S. Insular Areas. [hyperlink,
http://www.gao.gov/products/GAO-10-240R]. Washington, D.C.: November
10, 2009.
Medicaid and CHIP: Opportunities Exist to Improve U.S. Insular Area
Demographic Data That Could Be Used to Help Determine Federal Funding.
[hyperlink, http://www.gao.gov/products/GAO-09-558R]. Washington,
D.C.: June 30, 2009.
Commonwealth of the Northern Mariana Islands: Coordinated Federal
Decisions and Additional Data Are Needed to Manage Potential Economic
Impact of Applying U.S. Immigration Law. [hyperlink,
http://www.gao.gov/products/GAO-09-426T]. Washington, D.C.: May 19,
2009.
Commonwealth of the Northern Mariana Islands: Coordinated Federal
Decisions and Additional Data Are Needed to Manage Potential Economic
Impact of Applying U.S. Immigration Law. [hyperlink,
http://www.gao.gov/products/GAO-08-791]. Washington, D.C.: August 4,
2008.
Commonwealth of the Northern Mariana Islands: Pending Legislation
Would Apply U.S. Immigration Law to the CNMI with a Transition Period.
[hyperlink, http://www.gao.gov/products/GAO-08-466]. Washington, D.C.:
March 28, 2008.
Commonwealth of the Northern Mariana Islands: Serious Economic,
Fiscal, and Accountability Challenges. [hyperlink,
http://www.gao.gov/products/GAO-07-746T]. Washington, D.C.: April 19,
2007.
U.S. Insular Areas: Economic, Fiscal, and Financial Accountability
Challenges. [hyperlink, http://www.gao.gov/products/GAO-07-119].
Washington, D.C.: December 12, 2006.
U.S. Insular Areas: Multiple Factors Affect Federal Health Care
Funding. [hyperlink, http://www.gao.gov/products/GAO-06-75].
Washington, D.C.: October 14, 2005.
[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, as
amended).
[2] In this report, "foreign workers" refers to workers in the CNMI
who are not U.S. citizens or U.S. lawful permanent residents. Other
sources sometimes call these workers "nonresident workers," "guest
workers," "noncitizen workers," "alien workers," or "nonimmigrant
workers." "Foreign workers" does not refer to workers from the Freely
Associated States--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. § 1901 note, 1921 note, and 1931 note). In this
report, foreign workers may include aliens who are immediate relatives
of U.S. citizens or U.S. permanent residents; however, according to a
CNMI government official, this use of the term differs from its usage
under local CNMI law.
[3] In this report, "visitors" refers to tourists and other persons
seeking to enter the CNMI for purposes besides work or investment.
[4] Pub. L. No. 110-229, Title VII, 122 Stat. 754, 853 (May 8, 2008).
48 U.S.C.§ 1806 note.
[5] CNRA established federal control of immigration on June 1, 2009,
but granted the Secretary of Homeland Security the authority to delay
the start of the transition period for up to 180 days, in consultation
with the Secretaries of the Interior, Labor, and State, the Attorney
General, and the CNMI Governor. The Secretary of Homeland Security
elected to delay the transition period start from June 1, 2009, to
November 28, 2009, when federal control of CNMI immigration extended
U.S. immigration laws to the CNMI. The transition period ends on
December 31, 2014, although certain provisions related to CNMI-only
transitional workers may be extended by the Secretary of Labor, in
consultation with the Secretary of Homeland Security, the Secretary of
Defense, the Secretary of the Interior, and the Governor of the CNMI.
For more information about the transition period as called for in the
then pending legislation, see GAO, Commonwealth of the Northern
Mariana Islands: Pending Legislation Would Apply U.S. Immigration Law
to the CNMI with a Transition Period, [hyperlink,
http://www.gao.gov/products/GAO-08-466] (Washington, D.C.: Mar. 28,
2008).
[6] The law includes the Immigration and Nationality Act and all laws,
conventions, and treaties of the United States relating to the
immigration, exclusion, deportation, expulsion, or removal of aliens.
The act defines an alien as any person who is not a citizen or
national of the United States. Any changes to U.S. immigration law
subsequent to the legislation's enactment will also be applicable to
the CNMI.
[7] The law includes a second provision related to Guam--an
unincorporated U.S. territory south of the CNMI in the western Pacific-
-including the ability for certain categories of nonimmigrant workers
to seek admission in the territory without being subject to numerical
limitations in the law.
[8] We reported in August 2008 on factors that would affect the
legislation's impact in the CNMI. GAO, Commonwealth of the Northern
Mariana Islands: Managing Potential Economic Impact of Applying U.S.
Immigration Law Requires Coordinated Federal Decisions and Additional
Data, [hyperlink, http://www.gao.gov/products/GAO-08-791] (Washington,
D.C.: Aug. 4, 2008). Our August 2008 report focused particularly on
the law's potential impact on the CNMI's labor market, including
foreign workers; the tourism sector; and foreign investment. For
additional information on the CNMI economy, see American Samoa and
Commonwealth of the Northern Mariana Islands: Wages, Employment,
Employer Actions, Earnings, and Worker Views since Minimum Wage
Increases Began, [hyperlink, http://www.gao.gov/products/GAO-10-333]
(Washington, D.C.: Apr. 8, 2010). This report responds to a separate
congressional mandate [(Pub. L. No. 111-5, §802 (Feb. 17, 2009)]
regarding several aspects of the CNMI and American Samoa economies
relative to the incremental application of the U.S. minimum wage.
[9] GAO, Commonwealth of the Northern Mariana Islands: Immigration and
Border Control Databases, [hyperlink,
http://www.gao.gov/products/GAO-10-345R] (Washington, D.C.: Feb. 16,
2010).
[10] A 2005 population estimate reported 60,608 residents of Saipan;
2,829 residents of Tinian; and 2,490 residents of Rota. See
Commonwealth of the Northern Mariana Islands, Department of Commerce,
Report on the 2005 Household, Income, and Expenditures Survey (2008).
The CNMI government estimates the 2009 population to be 52,000, with
foreign workers accounting for 16,500 (59 percent) of the CNMI
workforce of 28,000 persons.
[11] 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.
[12] Howard P. Willens and Deanne C. Siemer, An Honorable Accord: The
Covenant between the Northern Mariana Islands and the United States
(Honolulu, Hawaii: University of Hawaii Press, 2002).
[13] Under the Covenant, the U.S. government may enact legislation in
accordance with its constitutional processes that will be applicable
to the CNMI. 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.
[14] 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.
[15] Prior to November 28, 2009, Section 506 of the Covenant applied
certain provisions of the INA relating to citizenship and family-based
permanent immigration to the CNMI. Certain other nonimmigrant
provisions of the INA related to victims of human trafficking and
other crimes also applied to the CNMI before the transition to federal
immigration law. See 8 U.S.C. § 1101(a)(15)(T)-(U). In addition, the
Covenant provided U.S. citizenship to legally qualified CNMI residents.
[16] Additionally, in 2007, the United States enacted legislation that
incrementally applies the U.S. minimum wage to the CNMI by increasing
the wage $.50 per hour each year until the minimum wage reaches the
U.S. minimum wage.
[17] In addition, the Department of Justice Executive Office for
Immigration Review conducts immigration court proceedings and
administrative hearings.
[18] CBP does not have customs authority in the CNMI.
[19] Biometric data may include digital fingerscans and photographs.
[20] 8 C.F.R. § 234.4, 19 C.F.R. § 122.11(c).
[21] Within the United States, ICE has authority to investigate all
immigration and customs violations. Because the CNMI operates its own
customs authority, ICE Office of Investigation's authority is
generally limited to those violations under the Immigration and
Nationality Act. In addition to INA violations, the Office of
Investigations can investigate violations related to bulk cash
smuggling, intellectual property destined for the United States,
cybercrime, and child pornography.
[22] According to ICE officials, in an intergovernmental service
agreement, ICE enters into a cooperative agreement with a state,
territory, or political subdivision for the construction, renovation,
or acquisition of equipment, supplies, or materials required to
establish acceptable conditions of confinement and detention services.
ICE may enter into such an agreement with any such unit of government
guaranteeing to provide bed space for ICE detainees and to provide the
clothing, medical care, food and drink, security, and other
necessities specified in the ICE Detention Standards.
[23] The Report to Congress: Use of the Attorney General's Parole
Authority under the Immigration and Nationality Act Fiscal Years 1998-
1999 specifies several categories of parole: advance parole, port of
entry parole, deferred inspection parole, overseas parole, public
interest parole, and humanitarian parole. Prior to the creation of
DHS, the Attorney General had responsibility for enforcing immigration
law.
[24] The 36 countries participating in the U.S. Visa Waiver Program
include Andorra, Australia, Austria, Belgium, Brunei, the Czech
Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary,
Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania,
Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway,
Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea,
Spain, Sweden, Switzerland, and the United Kingdom. For more
information, see GAO, Visa Waiver Program: Actions Are Needed to
Improve Management of the Expansion Process, and to Assess and
Mitigate Program Risk, [hyperlink,
http://www.gao.gov/products/GAO-08-967] (Washington, D.C.: Sept. 15,
2008).
[25] 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. The H-1B category includes high-skill workers coming to
the United States temporarily to perform in specialty occupations. The
H-2 category includes H-2A visas for foreign workers providing
temporary or seasonal agricultural labor services, 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.
[26] Visitors from countries in the U.S. Visa Waiver Program must,
among other requirements, possess a valid passport and a return-trip
ticket; have been determined by DHS not to be a threat to the United
States; and execute the proper immigration forms, including a
completed and signed form I-94W. As of January 12, 2009, a valid
Electronic System for Travel Authorization (ESTA) approval is required
for all VWP travelers to the United States. ESTA is a free, internet-
based, automated system used to determine the eligibility of visitors
to travel to the United States under the U.S. Visa Waiver Program. See
8 C.F.R. Part 217.
[27] Currently, federal law allows E admission for up to a 2-year
period of initial stay and allows investors 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.
[28] 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.
[29] Individuals seeking permanent immigrant visas must 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, or $500,000 in a rural or high-
unemployment area.
[30] 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.
[31] 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.
[32] See [hyperlink, http://www.gao.gov/products/GAO-08-791].
[33] The legislation provides the CNMI and Guam exemptions from the H
visa caps only through the end of the initial transition period in
2014. See [hyperlink, http://www.gao.gov/products/GAO-08-466]. The
subsequent report of the Senate Committee on Energy and Natural
Resources on H.R. 3079 states that the committee intends that the H
exemptions for the CNMI and Guam be extended along with any extension
of the 5-year transition period. See S. Rep. 110- 324, Northern
Mariana Islands Covenant Implementation Act (Apr. 10, 2008).
[34] In replacing the Guam visa waiver program with the joint Guam-
CNMI program, CNRA extended the period of admission from 15 to 45
days. Unlike the U.S. Visa Waiver Program, admittance under the Guam-
CNMI visa waiver program does not require advance approval through
ESTA.
[35] The Guam-CNMI visa waiver program waives the visa requirement for
certain nonimmigrants, allowing them visa-free travel privileges to
Guam or the CNMI only, not other parts of the United States.
[36] Other key provisions of CNRA 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. See GAO-08-
466.
[37] U.S. immigration law provides that noncitizens who are in this
country--regardless of whether they entered legally or illegally--may
be granted humanitarian protection in the form of asylum if they
demonstrate that they cannot return to their home country because they
have a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.
[38] Aliens in the CNMI may not apply for asylum during the transition
period. However, 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. International treaty
obligations are implemented as a matter of federal law 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.
[39] See decision at Commonwealth of the Northern Mariana Islands v.
United States, No. 08-1572 § (D.D.C. Nov. 25, 2009).
[40] Public Law 110-229 created a nonvoting delegate seat in the U.S.
House of Representatives for the CNMI. In January 2009, the CNMI
elected its first representative to the United States Congress. The
Delegate from the CNMI has many of the same congressional privileges
as other representatives, including a vote in committee and when the
House convenes as the Committee of the Whole, but cannot vote when the
House convenes as the House of Representatives.
[41] 670 F. Supp. 2d 65 (D.D.C. 2009).
[42] CNMI v. United States, No 08-1572, 2009 WL 4070877 (D.D.C. Nov.
25, 2009).
[43] The protocol was posted as a public service notice on the CNMI
Department of Labor Web site [hyperlink,
http://www.marianaslabor.net/pubntc.asp].
[44] LIDS replaced the Labor and Immigration Identification and
Documentation System (LIIDS), a database developed by the CNMI in
1995, using funded provided primarily by the U.S. Department of the
Interior. For more information, see GAO-10-345R.
[45] On April 21, 2010, USCIS announced that it will grant parole-in-
place to eligible foreign nationals without umbrella permits whose
CNMI work permits or CNMI investor permits expire before the CNMI-only
transitional worker program and CNMI investor status are available.
[46] CBP officers in the CNMI conduct departure control only for
flights to other U.S. destinations, currently limited to Guam.
[47] Airlines and vessel operators submit pre-arrival and departure
manifest data into the Advanced Passenger Information System. TECS,
also known as the Traveler Enforcement Communication System,
interfaces with that system and other databases used to screen
arriving visitors.
[48] US-VISIT is designed to collect, maintain, and share biometric
data on selected aliens entering and exiting the United States at air,
sea, and land ports of entry. See [hyperlink,
http://www.gao.gov/products/GAO-10-345R].
[49] CBP may deny entry if the traveler is deemed inadmissible for any
reason, including traveling without sufficient travel documents or
having a prior criminal history.
[50] At other U.S. airports, applications for parole are generally
completed in the secondary inspection area because the parole process
may require additional questions, verification in databases not
immediately available in the primary inspection area, and manager
approval. However, in the CNMI, owing to the lack of adequate space
for secondary inspections, parole applications are completed in
primary inspection booths.
[51] On October 21, 2009, the Secretary of Homeland Security announced
to Congress and the Governors of the CNMI and Guam that she will
exercise her discretionary authority to parole into the CNMI visitors
for business or pleasure who are nationals of the Russian Federation
and the People's Republic of China. Parole is determined on a case-by-
case basis and all applicants for parole are subject to inspection and
removal if determined to be inadmissible for reasons other than lack
of visa.
[52] To grant parole to Chinese and Russian visitors in the CNMI, CBP
officers complete the following administrative steps, among others:
stamping the arrival form twice, writing the outbound flight number on
the arrival form, stamping the individual's passport, writing "CNMI-
Only" on the stamp, and dating the stamp 7 days after the departure
date. In this report, "China" refers to the People's Republic of China
and "Russia" refers to the Russian Federation.
[53] CBP also transferred four CBP officers from other locations to
fill permanent positions in the CNMI.
[54] With the implementation of the INA, the CNMI courts no longer
have the authority to issue deportation orders.
[55] On March 10, 2010, the CNMI Department of Labor also provided ICE
with 300 names of aliens designated by the CNMI government as
overstays. An ICE official told us that ICE is in the process of
reconciling the names of overstays with the names of the 264 aliens in
possible violation of U.S. immigration laws.
[56] 8 U.S.C. § 1182(a)(6)(A)(i).
[57] 8 U.S.C. § 1182 (a)(7)(A)(i)(1).
[58] 8 U.S.C. § 1182(a)(2)(A).
[59] According to an ICE official, the three individuals transferred
did not file for asylum after arriving in Guam or Honolulu.
[60] We did not include the Department of Justice in our review,
because the department has a limited role in implementing CNRA.
[61] Generally, the INA grants aliens the right to a hearing before an
immigration judge to determine whether they will be allowed to remain
in the country. However, certain aliens arriving in the United States
and deemed inadmissible are subject to expedited removal and are not
entitled to a hearing before an immigration judge. 8 C.F.R. §
1235.3(b).
[62] All U.S. employers must complete and retain Form I-9 for each
individual they hire for employment in the United States. This
includes citizens and noncitizens. On the form, the employer must
examine the employment eligibility and identity documents an employee
presents to determine whether the documents reasonably appear to be
genuine and relate to the individual and record the document
information on Form I-9. USCIS created an I-9 form specific to the
CNMI.
[63] According to USCIS officials, advance parole is issued to aliens
residing in the United States in other than lawful permanent resident
status who have an unexpected need to travel and return and whose
conditions of stay do not otherwise allow for readmission to the
United States if they depart.
[64] By March 1, 2010, USCIS reported having processed 132 CNMI
applications for permanent residency and 6 CNMI applications for
naturalization or citizenship for calendar year 2010.
[65] Representatives of the Department of Justice also participated in
these meetings.
[66] Under CNRA, each department must implement agreements with the
other departments 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.
[67] H.R. Rep. No. 111-298, at 59 (2009) (Conf. Rep.).
[68] In technical comments on a draft of this report, CBP noted that
although its right-of-entry agreements with the CNMI give the agency
access to the airports, CBP must negotiate and finalize a long-term
lease, or similar legal document, with the CNMI government before
proceeding with facility configurations.
[69] 8 C.F.R. § 234.4. Moreover, designation as an international
airport may be withdrawn if proper facilities are not provided or
maintained by the airport. International airports are also required to
provide, without cost to the federal government, proper office and
other space for the sole use of federal officials working at the
airport. 19 C.F.R. § 122.11.
[70] CBP facility standards require separate holding cells for men,
women, and juveniles.
[71] In technical comments on a draft of this report, CBP said that it
had allocated funds for reconfiguration of CNMI airport space in
anticipation of finalizing long-term occupancy agreements with the
CNMI government.
[72] In its written comments regarding a draft of this report, the
CNMI government stated that section 806(b) of the U.S.-CNMI Covenant
imposes certain restraints on the ability of the federal government to
acquire land for public purposes in the Commonwealth and expressly
provides that "No interest in real property will be acquired unless
duly authorized by the Congress of the United States and
appropriations are available therefore." However, according to CBP,
the agency is not seeking to acquire land in the CNMI.
[73] In addition, "The Commonwealth's Protocol for Implementing P.L.
110-229" outlines the approach that the CNMI will take regarding
certain aspects of the transition program, including those pertaining
to facilities. In technical comments on a draft of this report, CBP
officials noted that the agency believes that the CNMI protocol
conflicts with the CNMI's obligations pursuant to federal law to
provide inspectional space and related office space at no cost to the
government.
[74] According to ICE officials, the agency used CBP's original
estimate of passenger arrivals in the CNMI to determine that it would
need approximately 100 detention beds in Saipan for fiscal year 2010;
however, based on current operations, ICE reduced its number of
required beds to 50 beds for fiscal year 2011.
[75] The agreement allows ICE and the Department of Justice's U.S.
Marshals Service and Bureau of Prisons to house federal detainees with
the CNMI Department of Corrections. ICE officials reported that as of
March 1, 2010, the 25 beds provided for in the contract were filled,
in part with the aliens that ICE arrested during their attempt to
enter Guam on January 5, 2010.
[76] According to ICE officials, the agency would consider using the
CNMI detention facility to detain aliens from other parts of the
United States if the CNMI government and ICE could agree to a fair and
reasonable daily rate. OMB Circular No. A-87, as amended May 10, 2004,
sets forth the principles and standards for determining allowable
costs for Federal agreements with state and local governments. A copy
of OMB Circular A-87 can be obtained online at [hyperlink,
http://www.whitehouse.gov/omb/circulars/a087/a087-all.html].
[77] The jail service cost statement is used to establish the cost and
effective start date of detention services.
[78] The CNMI reported that prison construction cost $125 million.
[79] The CNMI reduced the cost of prison construction from $125
million to $24 million.
[80] According to the ICE contracting official, ICE's assessment of
the CNMI cost statement found several errors, the most significant
being a clerical error that overstated the bed rate by $23.04 per day.
Adjusting for this and several smaller errors, ICE recomputed a bed
day rate of $89.61. We reviewed the documentation submitted by the
CNMI to DHS and found several other misstated costs. First, personnel
costs were increased by 7.65 percent to account for Social Security
tax (Schedule B, Part I)--a federal program in which CNMI government
workers do not participate. Second, the employer contribution to the
CNMI government retirement program was reported as 36.7727 percent of
the salary base (Schedule B, Part II), although CNMI Public Law 16-2
had reduced the government contribution to 11 percent in fiscal year
2008. The employer contribution to the CNMI retirement program is
currently set at 20 percent in fiscal year 2010. Third, building
depreciation for the acquisition cost of the prison in 2002 was not
reduced to account for federal grants paying about $9.4 million of the
total cost of $25.4 million to build the facility (Schedule G). Taking
into account these additional misstated costs further reduces the
calculated bed rate per day.
[81] The CNMI Attorney General provided option pricing that included
$84 per day, covering space and utilities but no other services, or
$105 per day for full detention services, including guards and medical
care for detainees within the facility.
[82] Although officials at the DHS departmental level have been
briefed on the detention space issues, ICE has been the negotiating
party with the CNMI; DHS has not. Generally, these negotiations are
handled at an ICE level since they require ICE expertise.
[83] Federal law allows detainees to be released under orders of
supervision if they satisfy certain criteria, including (1) travel
documents are not available, (2) the detainee is nonviolent and likely
to remain nonviolent if released, (3) does not pose a threat to the
community, (4) is not likely to violate the conditions of release, and
(5) does not pose a significant flight risk. 8 C.F.R. § 241.4(e).
[84] According to an analysis by ICE Office of Acquisitions, after
approximately 26 days of detaining an alien in Guam at $77 per day
rather than in the CNMI at $105 per day, the federal government would
recoup the cost of transporting the alien to Guam and would save
approximately $29 per day thereafter. However, if a detainee's removal
can be processed in 26 days or less, keeping the detainee in the CNMI
is more cost-efficient.
[85] Although federal law does not allow aliens in the CNMI to apply
for asylum during the transition period, any detainees that ICE
transports from the CNMI to Guam, Honolulu, or other U.S. locations
can apply for asylum.
[86] According to an ICE official, access to establish video-
conferencing hookups is usually provided to ICE free of charge,
because the technology is also available to correctional facility
staff.
[87] The LIDS database is used to record the permit status of certain
aliens who are required to have current work or equivalent permits in
order to remain in the CNMI. BMS is an automated arrivals and
departures database containing data from passports, visas, alerts, and
permissions (extensions of stay, changes of status, or other
modifications of entry conditions) as applicable for all persons
entering the CNMI. See [hyperlink,
http://www.gao.gov/products/GAO-10-345R].
[88] According to several Federal Bureau of Investigation (FBI) agents
and a previous CNMI Attorney General, from 2005 to 2007, a liaison
from the CNMI Department of Labor worked within the FBI's Saipan
office with direct access to LIIDS--the predecessor of LIDS--and BMS
to assist the FBI with all ongoing investigations. In 2007, the
liaison was released and no replacement was assigned. To access the
databases, FBI agents must rely on the same CNMI individual as the
rest of the U.S. government.
[89] SAVE is USCIS's intergovernmental initiative designed to aid
benefit-granting agencies in determining an applicant's immigration
status, thereby ensuring that only entitled applicants receive
federal, state, or local public benefits and licenses.
[90] E-Verify is an Internet-based system that allows businesses to
determine the eligibility of their employees to work in the United
States.
[91] The CNMI's February 2010 letter stated that access to DHS's
Advanced Passenger Information System would allow the CNMI customs
officer to discontinue collecting from arriving travelers the
passenger information to update BMS and noted that the Marianas
Visitors Authority had found that many visitors had been
inconvenienced by the delay associated with this effort. The letter
further noted that the commonwealth maintains exit data in BMS because
DHS lacks a digital exit control system that can provide immediate
information regarding visitors who have departed. In the absence of
access to the airline flight data, CNMI Customs Division officers have
continued recording in BMS passport information from all arriving and
departing passengers since the transition period began on November 28,
2009.
[92] The ICE Compliance Enforcement Unit (CEU) uses U.S. immigration
systems to monitor students, tourists, and temporary workers present
in the United States at any one time and to identify those that
violate the status or overstay their visa. DHS's US-VISIT Program
sends regular reports to ICE CEU on potential overstays, and ICE
officials have reported to us in the past that they use these data
regularly during investigations. According to an ICE official, to
date, ICE CEU has not referred any individuals to ICE officials in
Saipan for investigation. We have issued several prior reports
regarding DHS capacity to identify overstaying visitors. For example,
see GAO, Homeland Security: Prospects For Biometric US-VISIT Exit
Capability Remain Unclear, [hyperlink,
http://www.gao.gov/products/GAO-07-1044T] (Washington, D.C.: Jun. 28,
2007) and Homeland Security: Key US-VISIT Initiatives at Varying
Stages of Completion, but Integrated and Reliable Schedule Needed,
[hyperlink, http://www.gao.gov/products/GAO-10-13] (Washington, D.C.:
Nov. 19, 2009).
[93] DHS created a new transitional worker classification to implement
the CNMI-only worker permit provision of the legislation. Commonwealth
of Northern Mariana Islands Transitional Worker Classification, 74
Fed. Reg. 55094 (Oct. 27, 2009). DHS and the Department of Justice
issued an interim final rule that amended several existing federal
regulations, so that these regulations would be in conformity with the
CNRA and would apply to persons arriving in or physically present in
the CNMI. The rule amended regulations for asylum, alien
classifications eligible for employment, documentation acceptable for
employment eligibility verification, and adjustment of status of
immediate relatives under the CNMI-Guam Visa Waiver Program, among
other things. See Application of Immigration Regulations to the
Commonwealth of the Northern Mariana Islands, 74 Fed. Reg. 55726 (Oct.
28, 2009).
[94] CNRA 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. See [hyperlink,
http://www.gao.gov/products/GAO-08-791].
[95] DHS's interim rule specifies that, to be eligible to petition for
a CNMI-only work permit, an employer must be engaged in a legitimate
business; consider all available United States workers for the
position being filed by the CNMI-only work permit holder; offer terms
and conditions of employment that are consistent with the nature of
the occupation, activity, and industry in the CNMI; and comply with
all federal and CNMI requirements relating to employment. The interim
rule states that a business is not legitimate if it engages directly
or indirectly in prostitution, trafficking in minors, or any other
activity that is illegal under federal or CNMI law. In the interim
rule, DHS notes that individual households employing individual
domestic workers would not qualify as a business and that domestic
workers would likely be employed through a legitimate business for
placement in individual households.
[96] Administrative Procedure Act, P.L. 79-404, as amended, 5 U.S.C. §
553. Federal courts have determined that notice-and-comment provisions
of the act are designed (1) to ensure that agency regulations are
tested via exposure to diverse public comment, (2) to ensure fairness
to affected parties, and (3) to give affected parties an opportunity
to develop evidence in the record to support their objections to the
rule and thereby enhance the quality of judicial review. After giving
interested persons an opportunity to comment on the proposed rule, and
after considering the public comments, the agency may then publish the
final rule. Under the Administrative Procedure Act, an agency is
authorized to forego notice and comment when an agency for "good
cause" finds that those procedures are "impracticable, unnecessary, or
contrary to the public interest." In these situations, the agency may
issue an interim rule without providing an opportunity for notice and
comment.
[97] In addition, the CNMI government proposed text for the rule that
would implement the commonwealth's comments.
[98] This court order only addresses the specific transitional worker
program that was the subject of the interim rule and does not enjoin
any provision of CNRA or other related regulations from taking effect.
[99] CNMI v. United States, No 08-1572, 2009 WL 4070877 (D.D.C. Nov.
25, 2009).
[100] Japan and Korea are the two largest tourism markets for the CNMI
and Guam.
[101] DHS included Australia, Brunei, Hong Kong, Japan, Malaysia,
Nauru, New Zealand, Papua New Guinea, Republic of Korea, Singapore,
Taiwan, and the United Kingdom. DHS excluded Indonesia, the Solomon
Islands, Vanuatu and Western Samoa from the CNMI-Guam visa waiver
program.
[102] E-2 nonimmigrant status for aliens in the CNMI with long-term
investor status. 74 Fed. Reg. 46938 (Sep. 14, 2009).
[103] [hyperlink, http://www.gao.gov/products/GAO-08-791].
[104] Consolidated Natural Resources Act of 2008, Pub. L. No. 110-229,
Title VII, 122 Stat. 754, 853 (May 8, 2008).
[105] 8 U.S.C. §1101 et. seq.
[106] 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, as
amended).
[107] The protocol was posted as a public service notice on the CNMI
Department of Labor Web site [hyperlink,
http://www.marianaslabor.net/pubntc.asp].
[108] [hyperlink, http://www.gao.gov/products/GAO-08-466], [hyperlink,
http://www.gao.gov/products/GAO-08-791], and [hyperlink,
http://www.gao.gov/products/GAO-10-345R].
[109] CRS Report: 98-206, Appropriations for Fiscal Year 1999:
Interior and Related Agencies.
[110] [hyperlink, http://www.gao.gov/products/GAO-10-333].
[111] [hyperlink, http://www.gao.gov/products/GAO-08-466] and
[hyperlink, http://www.gao.gov/products/GAO-08-791].
[112] For example, see [hyperlink,
http://www.gao.gov/products/GAO-08-791] and [hyperlink,
http://www.gao.gov/products/GAO-10-333].
[113] [hyperlink, http://www.gao.gov/products/GAO-10-345R].
[End of section]
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