Transition to U.S. Immigration Law in the Commonwealth of the Northern Mariana Islands

Background

Secretary Janet Napolitano announced the delayed transition to full application of the U.S. immigration provisions of Title VII of the Consolidated Natural Resources Act of 2008 (CNRA) until November 28, 2009.

Public Law 110-229, the CNRA, was enacted by the U.S. Congress and signed into law by President George W. Bush on May 8, 2008.  Title VII of the CNRA amended the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (“the Covenant”).   Title VII of the CNRA extends the Immigration and Nationality Act (INA) and other provisions of U.S. immigration law to the Commonwealth of the Northern Mariana Islands (the CNMI), with some special provisions for the CNMI that are effective over a transition period of at least five years.

Currently, limited provisions of the INA relating to U.S. citizenship and to lawful permanent resident status for immediate relatives of U.S. citizens residing in the CNMI do apply.  However, unlike all other parts of the United States (except American Samoa), the INA does not currently apply to the CNMI in general and will not apply before the transition period. 

In sections 105 and 503 of the Covenant, the people of the CNMI expressly agreed that the U.S. Congress has the authority to extend U.S. immigration laws to the CNMI.  Congress exercised this authority by enacting the CNRA.  In section 701 of the CNRA, Congress stated that it was acting in recognition of the need to ensure uniform adherence to long-standing fundamental immigration policies of the United States, and to ensure that effective border control procedures are implemented and observed, and that national security and homeland security issues are properly addressed.  Congress also stated its intention to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out the CNMI’s nonresident contract worker program, and to maximize the CNMI’s potential for future economic and business growth.

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Implementation

The CNRA provides for U.S. immigration laws to apply in the CNMI beginning on November 28, 2009 (the transition program effective date) as Secretary Napolitano decided, in consultation with other affected agencies, to delay the start of the transition period.  The Secretary may delay the transition program effective date for no more than 180 days.  In general, U.S. immigration laws will fully apply in the CNMI, but the CNRA contains a number of special exceptions and provisions relating to the CNMI that are more fully described below.  

After the beginning of the transition period the U.S. Department of Homeland Security and other federal agencies with immigration responsibilities will begin administering federal immigration laws in the CNMI.  CNMI immigration laws will no longer apply.  Under the amended Covenant and after the transition period begins, the Department of Homeland Security will become responsible for the inspection and admission of aliens into the CNMI, deportation and removal of aliens from the CNMI, the granting of U.S. immigration benefits to aliens residing or seeking to reside in the CNMI, and administering U.S. protection law as provided in the INA and in U.S. law implementing protection from torture, with the exception of the benefit of asylum under section 208 of the INA. 

Specific immigration benefits that will be granted by the Department of Homeland Security to eligible aliens will include employment authorization, change of nonimmigrant status, extension of stay, and adjustment to lawful permanent resident status.  Aliens who seek to enter the CNMI from outside the United States will be required to meet the same visa requirements required for any alien seeking to enter the United States.  In short, the CNMI will be governed by the same immigration laws as other U.S. communities, except as specifically set forth in the CNRA.

Protection Law

The CNRA provides that the Department of Homeland Security will resume its advisory role to the CNMI government on the protection for aliens from removal to a country where they would be persecuted or tortured, and prohibits the CNMI from involuntarily returning any alien determined to be eligible for protection from persecution or torture.

However, the CNMI government will remain responsible for this area of immigration law, as others, until the transition program effective date.  On and after that date, U.S. law will apply, with one significant exception.  The benefit of asylum under section 208 of the INA, which permits application for lawful permanent residence after one year as an asylee, will not be available during the transition period to persons present in the CNMI.  An alien present in the CNMI will, however, be able to request withholding of removal based on a claim of protection from persecution or torture and the claim will be heard by an immigration judge or other authorized official under U.S. law.

The CNRA does not create any preference for aliens present in the CNMI when the transition program begins for either lawful permanent resident (“green card”) status or U.S. citizenship.

U.S. Citizenship of Residents of the CNMI

All persons who are U.S. citizens by reason of the Covenant or other U.S. laws remain U.S. citizens.  Persons born in the CNMI in the future will continue to be U.S. citizens at birth.  Naturalization services for persons in the CNMI who are eligible to become U.S. citizens will be provided by the Department through U.S. Citizenship and Immigration Services (USCIS), and by eligible courts under the INA to the extent they exercise authority to administer the oath of allegiance.

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Significant Provisions of the CNRA

• Includes the CNMI in the definition of “United States” under the Immigration and Nationality Act.
• Establishes a transition period that will last initially until December 31, 2014.  The law allows for extensions of certain provisions of the transition period.  Extensions will be determined by the Secretary of Labor.
• Provides for the Department of Homeland Security, through U.S. Citizenship and Immigration Services (USCIS), to immediately resume its role as a protection consultant with regard to asylee and refugee protection, followed by full federal assumption of responsibility for these functions on the transition program effective date. The INA section on asylum, however, continues to be inapplicable to the CNMI during the transition period.
• Amends the Guam Visa Waiver Program statute to create a Guam-CNMI Visa Waiver Program and extends the authorized period of stay from 15 days to 45 days, as of the beginning of the transition period. 
• Creates a nonimmigrant transitional worker immigration status during the transition period.
• Continues lawful presence and employment authorization (if applicable) for aliens lawfully admitted by the CNMI as of the transition program effective date.  Such lawful presence and employment authorization will remain valid until the end of the CNMI authorization or at the end of two years – whichever is first. 
• Provides for treaty investor nonimmigrant status for aliens with certain CNMI authorized long-term investor status. 
• Exempts the CNMI and Guam from the statutory caps on the number of H nonimmigrant temporary workers during the transition period. 
• Limits the removal of aliens lawfully present in the CNMI as of the start of the transition period on the basis of presence without admission or parole during the initial two years of the transition period or until that lawful status expires, whichever occurs first.
• Eliminates the provision in the Covenant specifying that immigration-related fees are paid to the CNMI government, given that the Federal Government is to assume immigration responsibilities in the CNMI.
• Imposes an annual supplemental fee of $150 per nonimmigrant transitional worker to fund vocational educational curricula and program development by CNMI educational entities.
• Specifies that prior residence in the CNMI will count as residence in the United States for a permanent resident alien who may otherwise have been considered to have abandoned residence in the United States by residing in the CNMI.
• Authorizes the Department of Homeland Security to establish operations in the CNMI prior to the beginning of the transition period.
• Limits the number of temporary foreign workers in the CNMI during the period between enactment of the CNRA and the start of the transition period.  Specifically, the number of temporary workers is capped at the number present in the CNMI as of the date of enactment (May 8, 2008).
• Requires the Departments of Homeland Security, Labor, and Justice to recruit and hire personnel from among qualified local applicants, to the maximum extent practicable.

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CNMI Immigration Law Until Transition Period Starts

The only immigration services currently available in the CNMI are those provided by the government of the CNMI.  The Department of Homeland Security does not, at this time, have an immigration presence in the CNMI and will not assume responsibility for enforcement of the U.S. immigration laws until the start of the transition period. 

U.S. Citizenship and Immigration Services (USCIS) plans to open an Application Support Center (ASC) in the CNMI in early-2009. The ASC initially will provide biometric services to those applicants who currently qualify for lawful permanent resident status as an immediate relative of a U.S. citizen.  USCIS will provide more information on the ASC when the opening date is determined.

The CNMI government remains in control of its immigration system and the hiring of immigration personnel until the beginning of the transition program, on November 28, 2009. 

Once the Department of Homeland Security becomes responsible for administering U.S. immigration law in the CNMI, the CNRA requires that the Department of Homeland Security recruit and hire personnel from among qualified U.S. citizen and national applicants residing in the CNMI for Department operations there, to the maximum extent practicable.  Note that some Department of Homeland Security positions, including U.S. Customs and Border Protection Officer, require U.S. citizenship as a condition of employment.

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Federal Responsibilities

The Department of Homeland Security plans to promulgate regulations to implement the transitional worker program, the CNMI investor program, the Guam-CNMI Visa Waiver Program, and also to apply the INA generally to the CNMI.   More information on the regulatory process can be found on Regulations.gov and the Federal Register.

As of the beginning of the transition program (November 28, 2009), the Department of Homeland Security and its component agencies (in particular, U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE)) will be responsible for:

• Operation of ports of entry in the CNMI for immigration inspection of arriving aliens.
• Establishment of departure control for certain flights leaving the CNMI.
• Immigration detention and removal of aliens in the CNMI.
• Enforcement of federal laws governing the unlawful employment of aliens, including the requirement for CNMI employers to complete the Form I-9, Employment Eligibility Verification.
• Acceptance and adjudication of petitions and applications for immigration status and benefits.

The Department of State will be responsible for:

• Issuance of nonimmigrant visas to aliens seeking to enter the CNMI as nonimmigrants.
• Issuance of immigrant visas to aliens seeking to reside in the CNMI as lawful permanent residents.

The Department of Justice (DOJ) will be responsible for:

• Administering removal proceedings in immigration court and other adjudicative functions of DOJ’s Executive Office for Immigration Review (EOIR).
• Enforcing INA provisions relating to unlawful immigration-related discrimination.

The Department of Labor will be responsible for:

• Determining whether extensions of the transitional worker program are necessary and appropriate.
• Administering certain certification functions relating to employment-based immigration categories under the INA.

The Department of the Interior will be responsible for:

• Administering a technical assistance program authorized by the CNRA to encourage economic growth in the CNMI.

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Visa Information

Aliens who previously were present in the CNMI under a CNMI-only visa status, who subsequently depart and desire to return in the same status, must obtain a CNMI-only visa from the Department of State in order to be admitted after the transition program effective date.

Generally, a citizen of a foreign country who wishes to enter the United States temporarily for business or pleasure would seek admission under the B-1/B-2 temporary visitor classification.  The tourist or business visitor would be required to have a nonimmigrant B-1/B-2 visa, unless the individual is eligible for admission under the U.S. Visa Waiver Program or the Guam-CNMI Visa Waiver Program.  

Additional information on U.S. visa classifications and requirements and the U.S. Visa Waiver Program is available on Department of State and CBP.

Guam-CNMI Visa Waiver Program

U.S. immigration law currently provides that visitors from certain specified countries may be admitted to Guam only as visitors for up to 15 days without a visa. This program is different from the general U.S. Visa Waiver Program under section 217 of the INA, which authorizes the admission of visitors from approved countries for up to 90 days without a visa to any part of the United States (including Guam).  The CNRA amended the Guam Visa Waiver Program provisions to create a Guam-CNMI Visa Waiver Program, and to authorize a stay of up to 45 days in Guam and/or the CNMI. 

As of the transition date, now extended to November 28, 2009, both the U.S. Visa Waiver Program under INA section 217 and the new Guam-CNMI Visa Waiver Program under INA section 212(l) will apply to the CNMI and Guam. Learn more:

• Guam-CNMI Visa Waiver Program
• Differences between Guam Visa Waiver Program and Guam-CNMI Visa Waiver Program
• Visa Waiver Program and Guam-CNMI Visa Waiver Program

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Employment and Immigration in the CNMI

The CNRA does not directly modify the terms of any employment contracts, and it is not the intention of Department of Homeland Security to seek to do so.  However, all contracts involving the employment of aliens may be affected by U.S. immigration laws and regulations relating to the immigration status of the aliens after the transition period effective date, as they may be affected now by immigration provisions of CNMI law.

Foreign Investors

The CNRA specifically provides that lawful presence of foreign investors and employment authorization previously granted by the CNMI continues until that authorization expires or until two years after the beginning of the transition period, whichever is earlier.  

The CNMI-only investor status will terminate at the end of the initial transition period on December 31, 2014.  Any extension of the transition period will apply only to the CNMI transitional worker category (see below).

The requirements to qualify for a CNMI-only investor visa under U.S. immigration law are currently under development by the Department of Homeland Security.

Transitional Worker Program

The CNRA authorized a program to grant nonimmigrant status to workers needed by CNMI employers who are not otherwise eligible for an employment-based status under the INA during the transition period.  This program may be extended beyond the five-year duration of the transition program by the Secretary of Labor, but ultimately the number of transitional workers must be reduced to zero.  The CNRA provides that the program should promote the maximum use of, and prevent adverse effects on wages and working conditions of, workers authorized to be employed in the United States.

The regulations specifying the requirements of the transitional worker program are currently under development by the Department of Homeland Security.

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Freely Associated States

Under the Compacts of Free Association between the United States and the Republic of the Marshall Islands (RMI), the Federated States of Micronesia (FSM), and the Republic of Palau, eligible citizens of these three Freely Associated States (FAS) may enter, reside, study and work in the CNMI and other parts of the United States.  The CNRA does not modify this privilege, but FAS citizens coming to the CNMI will be inspected, admitted and documented by the Department of Homeland Security rather than by CNMI authorities on and after the transition program effective date.

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