Commonwealth of the Northern Mariana Islands
DHS Needs to Conclude Negotiations and Finalize Regulations to Implement Federal Immigration Law Gao ID: GAO-10-671T May 18, 2010This testimony discusses our work on the status of efforts to establish federal border control in the Commonwealth of the Northern Mariana Islands (CNMI) and implement the Consolidated Natural Resources Act of 2008 (CNRA) with regard to foreign workers, visitors, and investors in the CNMI. In May 2008, the United States enacted CNRA, amending the U.S.-CNMI Covenant to establish federal control of CNMI immigration. CNRA contains several CNMI-specific provisions affecting foreign workers and investors during a transition period that began in November 2009 and ends in 2014. In addition, CNRA amends existing U.S. immigration law to establish a joint visa waiver program for the CNMI and Guam by replacing an existing visa waiver program for Guam visitors. During the transition period, the U.S. Secretary of Homeland Security, in consultation with the 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. This testimony summarizes findings from our recent report regarding (1) steps that the Department of Homeland Security (DHS) has taken to establish federal border control in the CNMI; (2) actions that DHS has taken to implement programs for workers, visitors, and investors; and (3) unresolved operational challenges that DHS has encountered.
DHS and its components have taken a number of steps to secure the border in the CNMI and to implement CNRA-required programs for foreign workers, visitors, and foreign investors. However, the components face certain operational challenges that they have been unable to resolve with the CNMI government. Steps taken to establish border control: DHS and its components have taken the following steps, among others, to establish federal border control in the CNMI. (1) Customs and Border Protection (CBP). Since November 2009, CBP has inspected arriving travelers in Saipan and Rota. (2) Immigration and Customs Enforcement (ICE). Also since November 2009, ICE has identified individuals who may be in violation of U.S. immigration laws and has begun processing some aliens for removal. (3) U.S. Citizenship and Immigration Services (USCIS). In March 2009, USCIS opened an application support center. For calendar year 2009, USCIS processed 515 CNMI applications for permanent residency and 50 CNMI applications for naturalization or citizenship. (4) DHS. DHS has taken several department-level actions to facilitate implementation of CNRA but has not finalized an interdepartmental agreement regarding implementation of CNRA and has not yet specified its resource requirements for this effort as directed by Congress. Actions taken to implement worker, visitor, and investor programs: DHS has begun to implement CNRA-required programs for foreign workers, visitors, and foreign investors but has not yet finalized key regulations. As a result, certain transition programs remain unavailable. (1) Foreign workers. On October 27, 2009, DHS issued an interim rule to implement a CNMI-only work permit program required by CNRA for foreign workers not otherwise admissible under federal law. However, a November 2009 U.S. District Court ruling, responding to an amended lawsuit by the CNMI government, prohibited implementation of the interim rule, stating that DHS must consider public comments before issuing a final rule. As a result, CNMI-only work permits are not currently available. (2) Visitors. DHS has established the Guam-CNMI visa waiver program. However, the program does not include China and Russia, two countries that provide significant economic benefit to the CNMI. (3) Foreign investors. DHS has proposed a rule to allow a large proportion of investors holding CNMI foreign investor permits to obtain U.S. CNMI-only nonimmigrant treaty investor status during the transition period. DHS plans to issue a final rule in July 2010; until then, the program is not available. Unresolved operational challenges: DHS components and the CNMI government have not yet negotiated solutions to operational challenges regarding access to CNMI airport space, detention facilities, and databases. (1) Airport space. Lacking long-term occupancy agreements and adequate space at CNMI airports, the agency is operating in facilities that do not meet its standards for holding cells and secondary inspections. (2) Detention facilities. Lacking an agreement with the CNMI government regarding detention space, ICE has released a number of aliens with criminal records into the community under orders of supervision and has paid to transport several detainees to Guam and Hawaii. (3) Databases. Lacking direct access to the 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 potentially compromising the security of ongoing operations.
GAO-10-671T, Commonwealth of the Northern Mariana Islands: DHS Needs to Conclude Negotiations and Finalize Regulations to Implement Federal Immigration Law
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Testimony:
Before the Subcommittee on Insular Affairs, Oceans and Wildlife,
Committee on Natural Resources, House of Representatives:
United States Government Accountability Office:
GAO:
For Release on Delivery:
Expected at 3:00 p.m. EST:
May 18, 2010:
Commonwealth Of The Northern Mariana Islands:
DHS Needs to Conclude Negotiations and Finalize Regulations to
Implement Federal Immigration Law:
Statement of David Gootnick, Director:
International Affairs and Trade:
GAO-10-671T:
[End of section]
Madame Chairwoman and Members of the Subcommittee:
Thank you for the opportunity to discuss our work on the status of
efforts to establish federal border control in the Commonwealth of the
Northern Mariana Islands (CNMI) and implement the Consolidated Natural
Resources Act of 2008 (CNRA)[Footnote 1] with regard to foreign
workers, visitors, and investors in the CNMI.
In May 2008, the United States enacted CNRA, amending the U.S.-CNMI
Covenant[Footnote 2] to establish federal control of CNMI immigration.
[Footnote 3] CNRA contains several CNMI-specific provisions affecting
foreign workers and investors during a transition period that began in
November 2009 and ends in 2014.[Footnote 4] In addition, CNRA amends
existing U.S. immigration law to establish a joint visa waiver program
for the CNMI and Guam by replacing an existing visa waiver program for
Guam visitors. During the transition period, the U.S. Secretary of
Homeland Security, in consultation with the 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.
My remarks today will summarize findings from our recent report
[Footnote 5] regarding (1) steps that the Department of Homeland
Security (DHS) has taken to establish federal border control in the
CNMI; (2) actions that DHS has taken to implement programs for
workers, visitors, and investors; and (3) unresolved operational
challenges that DHS has encountered.[Footnote 6] We conducted this
performance audit from September 2009 to May 2010 in accordance with
generally accepted government auditing standards.[Footnote 7]
Summary:
DHS and its components have taken a number of steps to secure the
border in the CNMI and to implement CNRA-required programs for foreign
workers, visitors, and foreign investors. However, the components face
certain operational challenges that they have been unable to resolve
with the CNMI government.
Steps taken to establish border control. DHS and its components have
taken the following steps, among others, to establish federal border
control in the CNMI.
* Customs and Border Protection (CBP).[Footnote 8] Since November
2009, CBP has inspected arriving travelers in Saipan and Rota.
* Immigration and Customs Enforcement (ICE).[Footnote 9] Also since
November 2009, ICE has identified individuals who may be in violation
of U.S. immigration laws and has begun processing some aliens for
removal.
* U.S. Citizenship and Immigration Services (USCIS).[Footnote 10] In
March 2009, USCIS opened an application support center. For calendar
year 2009, USCIS processed 515 CNMI applications for permanent
residency and 50 CNMI applications for naturalization or citizenship.
* DHS. DHS has taken several department-level actions to facilitate
implementation of CNRA but has not finalized an interdepartmental
agreement regarding implementation of CNRA and has not yet specified
its resource requirements for this effort as directed by Congress.
[Footnote 11]
Actions taken to implement worker, visitor, and investor programs. DHS
has begun to implement CNRA-required programs for foreign workers,
visitors, and foreign investors but has not yet finalized key
regulations. As a result, certain transition programs remain
unavailable. (See appendix I for CNRA's key provisions for foreign
workers, visitors, and foreign investors.)
* Foreign workers. On October 27, 2009, DHS issued an interim rule to
implement a CNMI-only work permit program required by CNRA for foreign
workers not otherwise admissible under federal law. However, a
November 2009 U.S. District Court ruling, responding to an amended
lawsuit by the CNMI government, prohibited implementation of the
interim rule, stating that DHS must consider public comments before
issuing a final rule. As a result, CNMI-only work permits are not
currently available.
* Visitors. DHS has established the Guam-CNMI visa waiver program.
However, the program does 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 for up to 45
days without a visa under the Secretary of Homeland Security's parole
authority. DHS is reconsidering whether to include these countries in
the Guam-CNMI visa waiver program.
* Foreign investors. DHS has proposed a rule to allow a large
proportion of investors holding CNMI foreign investor permits to
obtain U.S. CNMI-only nonimmigrant treaty investor status during the
transition period. In comments on the proposed rule, the CNMI
government stated that it would exclude many current CNMI investors
from qualifying for CNMI-only nonimmigrant treaty investor status. DHS
plans to issue a final rule in July 2010; until then, the program is
not available.[Footnote 12]
Unresolved operational challenges. DHS components and the CNMI
government have not yet negotiated solutions to operational challenges
regarding access to CNMI airport space, detention facilities, and
databases.
* Airport space. Lacking long-term occupancy agreements and adequate
space at CNMI airports, the agency is operating in facilities that do
not meet its standards for holding cells and secondary inspections.
* Detention facilities. Lacking an agreement with the CNMI government
regarding detention space, ICE has released a number of aliens with
criminal records into the community under orders of supervision and
has paid to transport several detainees to Guam and Hawaii.
* Databases. Lacking direct access to the CNMI's immigration and
border control databases,[Footnote 13] 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 potentially
compromising the security of ongoing operations.
In our May 2010 report, we recommended 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 regarding access to CNMI airport space, detention
facilities, and information about the status of aliens. DHS agreed
with our recommendation. The Guam government made several observations
regarding the Guam-CNMI visa waiver program, whereas the CNMI
government raised concerns about the scope of our report and its
support for several findings. In responding to the CNMI's concerns,
and after considering technical comments from DHS and DOL, we modified
our report as appropriate.[Footnote 14]
DHS Has Begun Implementing Border Control:
Customs and Border Protection. From November 28, 2009, to March 1,
2010, CBP officers working at the Saipan and Rota airports processed
103,565 arriving travelers, granting 11,760 (11 percent) parole.
[Footnote 15] During this period, more than 80 percent of arriving
travelers came from Japan or South Korea. Of arriving travelers from
China and Russia, 86 percent (10,398 of 12,131) and 90 percent (1,027
of 1,146), respectively, were paroled into the CNMI only, under DHS
authority. In addition, CBP signed right-of-entry agreements with the
CNMI government that gave the agency access to the airports to prepare
for implementation of federal border control.
Immigration and Customs Enforcement. Since November 28, 2009, 10 ICE
officials detailed to Saipan have identified aliens in violation of
U.S. immigration laws and have processed or detained aliens for
removal proceedings. From December 7, 2009, to March 1, 2010, ICE
identified approximately 264 aliens subject to possible removal from
the CNMI--including approximately 214 referrals from the CNMI Attorney
General's office with pending CNMI deportation orders[Footnote 16] 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. As of March 1, 2010, ICE officials
had processed 72 of the 264 aliens for removal proceedings. As of
March 26, 2010, ICE officials told us 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.
U.S. Citizenship and Immigration Services. 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 such as fingerprints or photographs. 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. By March 17, 2010, USCIS had also
received 1,353 advance parole requests and approved 1,123 of them.
[Footnote 17] USCIS also granted parole-in-place status to 705
individuals for domestic travel and granted 24 group paroles.
Department of Homeland Security. To facilitate implementation of CNRA
in the CNMI, DHS led meetings with 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. However, DHS has not finalized an interdepartmental
agreement with other U.S. departments regarding implementation of CNRA
and has not specified changes in its resource requirements as directed
by Congress.
U.S. Agencies' Implementation of CNRA Programs for Workers, Visitors,
and Investors Is Incomplete:
DHS Has Taken Steps to Create CNMI-Only Work Permit Program, but
Program Is Not Yet Available:
DHS issued an interim rule for the CNMI-only work permit program on
October 27, 2009, but a court injunction has prevented implementation
of the rule.[Footnote 18] The interim rule establishes (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. In issuing the interim rule, which was scheduled to take
effect on November 27, 2009, 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.
In its November 2, 2009, amendment to its ongoing lawsuit to overturn
portions of CNRA, the CNMI filed a motion for a preliminary injunction
to prevent the operation of the DHS interim rule.[Footnote 19] The
CNMI argued in part 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 federal 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 20] In response to this preliminary injunction,
DHS reopened the comment period from December 9, 2009, until January
8, 2010. As of May 18, 2010, DHS had not yet issued a final rule, and
as a result, CNMI-only work permits are not available.
DHS received numerous comments on the interim rule from the CNMI
government, a private sector group, and interested businesses and
individuals.[Footnote 21] The CNMI government commented that the rule
was incomplete and would damage CNMI workers, employers, and
community. 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.
DHS plans to issue a final rule for the CNMI-only work permit program
in September 2010.
DHS Has Implemented the Guam-CNMI Visa Waiver Program but Is
Reconsidering Inclusion of China and Russia:
On January 16, 2009, DHS issued an interim final rule for the Guam-
CNMI joint visa waiver program, which went into effect November 28,
2009. The program 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 22] as eligible for participation in the program.[Footnote
23] 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.
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
May 2009, DHS officials informed Congress that the department is
reconsidering whether to include China and Russia in the Guam-CNMI
visa waiver program.
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.
Public comments on the regulations from the Guam and CNMI governments
and private sectors 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
access to the China tourism market 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.
The regulations became effective on November 28, 2009. DHS plans to
issue a final rule for the program in November 2010.
Proposed DHS Rule to Provide CNMI-Treaty Investor Status to Foreign
Investors Is Not Yet Final:
In September 2009, DHS proposed a rule to allow a large proportion of
CNMI foreign investor permit holders to obtain U.S. CNMI-only
nonimmigrant investor treaty status during the transition period.
[Footnote 24] According to the proposed rule, eligibility criteria for
this status during the transition period include, among others, having
been physically present in the CNMI for at least half the time since
obtaining CNMI investor status. Additionally, investors must provide
evidence of maintaining financial investments in the CNMI, with long-
term business investors showing an investment of at least $150,000.
In commenting on the proposed rule, the CNMI government stated that
about 85 of 514 long-term business entry permit holders could not
qualify if an investment level of $150,000 is required. The 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. The CNMI projected that
after the end of the transition period, 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.
DHS accepted comments on the proposed rule until October 14, 2009, and
intends to issue a final rule in July 2010.
DHS Components Have Been Unable to Negotiate Solutions to Certain
Operational Challenges with the CNMI Government:
Long-Term Occupancy Agreements for Airport Space:
CBP and the CNMI government have not yet signed long-term occupancy
agreements that would allow CBP to reconfigure space that the CNMI
government has provided in CNMI airports.[Footnote 25] As a result,
the agency is operating in facilities that do not meet its standards
for holding cells and secondary inspections.[Footnote 26]
The current configuration of CBP's space at the Saipan airport does
not include holding cells that meet federal standards.[Footnote 27] As
a result, CBP lacks space to temporarily detain individuals who may
present a risk to public safety and to its officers. In addition,
owing to a lack of adequate space for secondary inspections, CBP
officers process parole applications at the airport in primary
inspection booths, resulting in increased wait times for arriving
visitors who are not applying for parole.[Footnote 28]
U.S. law requires international airports to provide, without charge,
adequate space to the U.S. government to perform its duties.[Footnote
29] However, the CNMI government stated that the port authority is not
in a financial position to provide space to CBP without charge. In
commenting on a draft of our report, the CNMI stated 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.
As of April 2010, CBP continued to seek access to approximately 7,200
additional square feet of space at the Saipan airport, and the two
parties had not concluded negotiations regarding long-term occupancy
agreements for space at the Saipan and Rota airports. Key differences
related to cost have not yet been resolved.
Detention Space in CNMI Correctional Facility:
ICE has been unable to conclude negotiations with the CNMI government
for access to detention space in the CNMI correctional facility. In
March 2010, ICE estimated that it required 50 detention beds for its
CNMI operations. Under a 2007 agreement between the U.S. Marshals
Service and the CNMI Department of Corrections, the CNMI adult
correctional facility in Saipan provided the U.S. government 25
detention beds at $77 per bed per day.[Footnote 30] 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. 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.
Since January 2010, negotiations between ICE and the CNMI regarding
detention space have been on hold. 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) release detainees into the CNMI community, under
orders of supervision; (2) transport detainees to other U.S.
locations; or (3) pay the CNMI's daily rate for each detainee, if the
CNMI provides appropriate documentation justifying its proposed rate.
According to ICE officials, because of flight risk and danger to the
community, ICE prefers to detain aliens with prior criminal records
while they await their immigration removal hearings. However, since
November 2009, ICE has released 43 detainees into the CNMI community
under orders of supervision, including 27 with prior criminal records.
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. In addition, as of March 2010, ICE had paid a total of
approximately $5,000 to transport two detainees to Guam and one to
Honolulu.
Since January 2010, negotiations between ICE and the CNMI government
regarding access to detention space have been at an impasse.
Direct Access to CNMI Immigration and Border Control Data:
As of March 1, 2010, DHS components lacked direct access to CNMI
immigration and border control data contained in two CNMI databases,
the Labor Information Data System (LIDS) and the Border Management
System (BMS).[Footnote 31] 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 database, most commonly for verification of an
individual's immigration status. DHS component officials have
expressed concerns about the reliance on a single CNMI point of
contact.
ICE officials expressed the following concerns, among others:
* 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.
USCIS officials' concerns included the following:
* Direct access to LIDS would allow USCIS to verify information
provided by applicants for immigration benefits such as advance parole.
* Direct access to the data would facilitate the processing of
applications for CNMI-only work permits and for CNMI-only nonimmigrant
treaty investor status.
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. A senior CNMI official also 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. However,
according to ICE officials, the CNMI responses to ICE inquiries have
not been timely and have not always provided sufficient information.
We examined ICE records of 68 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 other identifying information.
DHS has communicated, at the department and component levels, with the
CNMI government regarding access to CNMI immigration data.
* During a September 2009 meeting between the Governor of the CNMI and
the Secretary of Homeland Security, the Governor proposed 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 reiterating
the CNMI's request that DHS share advance passenger information
provided by the airlines.
* On March 31, 2010, CBP responded to the CNMI letter, stating that
the CNMI's intended use of the advance passenger information did not
justify the data's release to CNMI authorities.
As of March 2010, DHS and the CNMI government were at an impasse
regarding any exchange of passenger information for CNMI immigration
and border control data.
Concluding Remarks and Prior Recommendation:
DHS components have taken a number of steps since November 28, 2009,
to ensure effective border control procedures in the CNMI.
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,
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.
Although the DHS components have made continued efforts to overcome
these 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 timeframes for concluding its components'
negotiations with the CNMI, DHS's prospects for resolving these issues
is uncertain.
To enable DHS to carry out its statutory obligation to implement
federal border control and immigration in the CNMI, we recommended
that the Secretary of Homeland Security work with the heads of CBP,
ICE, and USCIS to establish strategic approaches and timeframes 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. DHS
agreed with our recommendation.
Madame Chairwoman, this completes my prepared statement. I would be
happy to respond to any questions you or other Members of the
Subcommittee may have at this time.
[End of section]
Appendix I: 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]
[End of section]
Appendix II: 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; Julia A. Roberts,
Analyst-in-Charge; Gifford Howland, Senior Analyst; Ashley Alley,
Senior Attorney; and Reid Lowe, Senior Communications Analyst, 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]
Footnotes:
[1] Pub. L. No. 110-229, Title VII, 122 Stat. 754, 853 (May 8, 2008).
48 U.S.C.§ 1806 note.
[2] 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).
[3] From 1978 to 2009, the CNMI administered its own immigration
systems.
[4] CNRA authorizes a CNMI-only transitional worker program that may
be extended indefinitely past 2014 at the discretion of the Secretary
of Labor.
[5] GAO, Commonwealth of the Northern Mariana Islands: DHS Should
Conclude Negotiations and Finalize Regulations to Implement Federal
Immigration Law, [hyperlink, http://www.gao.gov/products/GAO-10-553]
(Washington, D.C.: May 7, 2010).
[6] CNRA additionally requires that we report on the impact of
implementation of CNRA on the CNMI economy, among other topics. As
agreed with your offices, we will issue a subsequent report addressing
these topics.
[7] See [hyperlink, http://www.gao.gov/products/GAO-10-553] for a full
description of our report's scope and methodology and a list of
related products.
[8] 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.
[9] 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.
[10] 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.
[11] H.R. Rep. No. 111-298, at 59 (2009) (Conf. Rep).
[12] CNRA establishes that current CNMI foreign investors who meet
certain requirements can convert from a CNMI long-term investor to a
U.S. CNMI-only nonimmigrant treaty investor status during the
transition period.
[13] In February 2010, we reported on the status, during the
transition of CNMI immigration to federal control, of several
databases that the commonwealth has used to record the permit status
of certain aliens and to track the arrivals and departures of
travelers. For more information , see 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).
[14] See [hyperlink, http://www.gao.gov/products/GAO-10-553] for a
fuller description of DHS's and the CNMI's written comments and our
response.
[15] 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 Peoples Republic of China. Parole is determined on a case-by-
case basis and all applicants for admission are subject to inspection
and removal if determined to be inadmissible for reasons other than
lack of visa. See [hyperlink, http://www.gao.gov/products/GAO-10-553]
for a summary 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, granted parole,
and refused entry from the secondary screening area.
[16] With the implementation of the INA, the CNMI courts no longer
have the authority to issue deportation orders.
[17] A grant of parole is official permission for an otherwise
inadmissible alien to be physically present in the United States
temporarily. 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.
[18] The interim rule comprises regulations to implement the CNMI-only
work permit program, established in CNRA, for foreign workers not
otherwise admissible under federal law. 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).
[19] 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.
[20] Commonwealth of the Northern Mariana Islands v. United States,
No. 08-1572 § 2009 WL 4070877 (D.D.C. Nov. 25, 2009).
[21] In addition, the CNMI government proposed text for the rule that
would implement the commonwealth's comments.
[22] Japan and Korea are the two largest tourism markets for the CNMI
and Guam.
[23] DHS included Australia, Brunei, Hong Kong, Japan, Malaysia,
Nauru, New Zealand, Papua New Guinea, Republic of Korea, Singapore,
Taiwan, and the United Kingdom.
[24] E-2 Nonimmigrant Status for Aliens in the Commonwealth of the
Northern Mariana Islands with Long-Term Investor Status. 74 Fed. Reg.
46,938 (Sep. 14, 2009).
[25] 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.
[26] The CBP Airport Technical Design Standards describe basic CBP
facility requirements for international airports and reflect U.S.
policy, procedures, and minimum development standards for design and
construction of CBP facilities at airports. These standards specify
space requirements for CBP operations based on the size of the airport
and the number of passengers processed per hour.
[27] CBP facility standards require separate holding cells for men,
women, and juveniles.
[28] 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. After our visit to the CNMI, CBP officials told us that they
were considering establishing a separate line in the primary screening
area at the Saipan airport for visitors applying for parole.
[29] 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.
[30] 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.
[31] 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, an automated arrivals and departures
database, contains 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].
[End of section]
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