DHS DELAYS THE transition to full application of U.S. IMMIGRATION LAWS IN THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS
WASHINGTON – The U.S. Department of Homeland Security (DHS) Secretary Janet Napolitano today 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. Title VII extends U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI) which currently administers its own immigration system.
Under the CNRA, the Secretary of DHS has the sole authority to delay the June 1, 2009, transition date to U.S. immigration law up to 180 days, after consultation with the secretaries of Labor, Interior and State, the attorney general, and the governor of the CNMI. The Secretary has determined based upon those consultations that it is advisable to exercise that authority fully.
As a result of the Secretary’s decision the existing CNMI immigration laws will continue to apply until November 28, 2009. Additionally, the implementation of Customs and Border Protection’s (CBP) interim final rule establishing a joint Guam-CNMI Visa Waiver Program (VWP), that was scheduled to begin on June 1, 2009, also will be delayed until November 28, 2009 and the existing Guam VWP will continue to operate until that date. To effectuate this change CBP plans to issue a technical amendment to the Guam-CNMI interim final rule published on January 16, 2009.
This decision also delays the implementation of the exemption from the current statutorily imposed caps on the number of nonimmigrant H-1B and H-2B petitions granted yearly for employers filing H worker petitions in Guam.
Showing posts with label P.L. 110-229. Show all posts
Showing posts with label P.L. 110-229. Show all posts
Wednesday, April 1, 2009
Federalization Delayed.
It’s official. Here is the 3/31/09 USCIS press release:
Friday, January 30, 2009
What's Happening Again? Federalization and Aliens Living in the CNMI.
Part II
This year, the Immigration and Nationality Act (INA) will be replacing all CNMI laws and regulations that govern the admission and removal of aliens (except for local laws governing asylum protection, which will last through the transition period). As of now, the switchover is slated for June 1 but can be delayed for up to 180 days.
For aliens living in the CNMI solely based on a CNMI immigration permit, such status will end on the switchover date. Enforcement of the INA in the CNMI will be exclusively handled by the Department of Homeland Security (DHS).
In my last post, I used a recently-issued CNMI Immigration public service announcement as a departure point to outline the near-term effects of the switchover on aliens living here. I’ll now flesh out the outline a bit further, again based on the provisions under Pub. L. 110-229, Title VII, Sections 701 and 702.
Prohibition Against Removal from the CNMI
Aliens lawfully present in the CNMI solely on account of their CNMI status will be considered undocumented aliens beginning June 1 because, technically speaking, they have never been properly admitted into the U.S. This would seem a bit strange and unfair, as if the rug were being pulled from under their feet. Congress perhaps felt that way too and so expressly prohibited DHS from deporting them for the time being. In effect, DHS will honor valid CNMI permits for those aliens present here, at least until the permit expires or after 2 years passes from the effective date of the law, whichever happens first. This does not seem like much time but, at the very least, aliens who were legally present prior to the switchover date will not face an immediate threat of deportation. The window of protection may also provide additional time for these aliens to segue to the CNMI-only worker transition program or apply for the usual federal immigration opportunities (e.g., H visas) if they are eligible.
The Necessary Bureaucracy
The law provides for a registration system for aliens who formerly had CNMI status. This bureaucracy has not been set up yet. Presumably, the system will come with its own set of protocols, policies, forms, permits, procedures, etc., that will be used to track alien presence and provide some form of proof of lawful presence.
Segueing to the Segue
We’re all waiting with bated breath for the regulations that will define the transition program, especially with respect to who may qualify as a nonimmigrant worker under the program. Some aspects of the program are spelled out in the law. The transition period lasts through 2014 but may be extended indefinitely by the U.S. Dept. of Labor in increments of up to 5 years. Unlike the CNMI guest worker program, workers under the transition program will not have their status tied to one employer. The program, however, does not provide for admission to the rest of the United States.
The purpose of the program is also clear: to wean the CNMI from its guest worker program in a way that minimizes the inevitable economic disruption. Foreign workers not otherwise eligible for a federal visa or green card are expressly targeted under Pub. L. 110-229 for the transition program.
It does not take much thought to see that the primary candidates to assist in addressing the CNMI’s near-term labor needs are those already legally present here. At the same time, the federalization law is a solid reproach against the CNMI's self-imposed dependence on aliens from developing countries for its labor supply. We will see, hopefully very soon, how DHS will attempt to balance these concerns.
This year, the Immigration and Nationality Act (INA) will be replacing all CNMI laws and regulations that govern the admission and removal of aliens (except for local laws governing asylum protection, which will last through the transition period). As of now, the switchover is slated for June 1 but can be delayed for up to 180 days.
For aliens living in the CNMI solely based on a CNMI immigration permit, such status will end on the switchover date. Enforcement of the INA in the CNMI will be exclusively handled by the Department of Homeland Security (DHS).
In my last post, I used a recently-issued CNMI Immigration public service announcement as a departure point to outline the near-term effects of the switchover on aliens living here. I’ll now flesh out the outline a bit further, again based on the provisions under Pub. L. 110-229, Title VII, Sections 701 and 702.
Prohibition Against Removal from the CNMI
Aliens lawfully present in the CNMI solely on account of their CNMI status will be considered undocumented aliens beginning June 1 because, technically speaking, they have never been properly admitted into the U.S. This would seem a bit strange and unfair, as if the rug were being pulled from under their feet. Congress perhaps felt that way too and so expressly prohibited DHS from deporting them for the time being. In effect, DHS will honor valid CNMI permits for those aliens present here, at least until the permit expires or after 2 years passes from the effective date of the law, whichever happens first. This does not seem like much time but, at the very least, aliens who were legally present prior to the switchover date will not face an immediate threat of deportation. The window of protection may also provide additional time for these aliens to segue to the CNMI-only worker transition program or apply for the usual federal immigration opportunities (e.g., H visas) if they are eligible.
The Necessary Bureaucracy
The law provides for a registration system for aliens who formerly had CNMI status. This bureaucracy has not been set up yet. Presumably, the system will come with its own set of protocols, policies, forms, permits, procedures, etc., that will be used to track alien presence and provide some form of proof of lawful presence.
Segueing to the Segue
We’re all waiting with bated breath for the regulations that will define the transition program, especially with respect to who may qualify as a nonimmigrant worker under the program. Some aspects of the program are spelled out in the law. The transition period lasts through 2014 but may be extended indefinitely by the U.S. Dept. of Labor in increments of up to 5 years. Unlike the CNMI guest worker program, workers under the transition program will not have their status tied to one employer. The program, however, does not provide for admission to the rest of the United States.
The purpose of the program is also clear: to wean the CNMI from its guest worker program in a way that minimizes the inevitable economic disruption. Foreign workers not otherwise eligible for a federal visa or green card are expressly targeted under Pub. L. 110-229 for the transition program.
It does not take much thought to see that the primary candidates to assist in addressing the CNMI’s near-term labor needs are those already legally present here. At the same time, the federalization law is a solid reproach against the CNMI's self-imposed dependence on aliens from developing countries for its labor supply. We will see, hopefully very soon, how DHS will attempt to balance these concerns.
Thursday, January 29, 2009
What’s Happening Again? Federalization and Aliens Living in the CNMI.
Part I
Some confusion seems to be swirling around a recent CNMI Immigration public service announcement regarding documentation and status when June 1 arrives. Let’s first turn to the main source. The Jan. 20 PSA states that aliens will lose CNMI status if outside the CNMI after June 1. The PSA goes on to explain that CNMI-issued documents relating to admission or immigration status will not be recognized by the Dept. of Homeland Security (DHS) for purposes of entering the CNMI. The PSA apparently was based on DHS advice.
These pronouncements appear consistent with Public Law 110-229. When federalization goes into effect on June 1 (with a possible delay of up to 180 days), the Immigration and Nationality Act will replace CNMI immigration law (except for those relating to asylum protection, which will continue through the transition period). All local laws and regulations on the admission of aliens will end, and with it, any benefits or status conferred by those laws. For those aliens traveling outside the CNMI during the switchover date, CNMI-issued documents that would normally provide for admission to the CNMI will not be honored by DHS.
Therefore, in one sense, the PSA is inaccurate, because CNMI-conferred immigration status will end, wherever you are.
Of course, that’s not the end of the inquiry. What else will happen in the wake of the switchover that will affect the tens of thousands of aliens living here? Here’s a summary of what we know, which is taken from the only source of law on the matter, which is Section 702 of Pub. L. 110-229 (see also the GAO report , which has been around for a while but is still an excellent source):
• Aliens lawfully present in the CNMI on June 1 will be allowed to remain here for the duration of their permit or 2 years, whichever is shorter.
• DHS will most likely set up a registration system to track their presence.
• For these aliens, they may apply for the standard suite of federal immigration benefits, such as an H visa or family-based green card.
• For aliens who aren’t eligible for federal immigration benefits, the CNMI-only worker transition program might provide an opportunity for these aliens to continue to live and work in the CNMI for the next several years.
The critical picture that seems to form from this is the repositioning of CNMI permit holders to the federal transition program. As opposed to what conclusions people may be drawing from the recent PSA, it’s this segue that I suspect will define the situation of the majority of aliens living here under a CNMI work permit, due to the difficulties in qualifying for a federal visa.
I’ll explain all of this in further detail in an upcoming post.
Some confusion seems to be swirling around a recent CNMI Immigration public service announcement regarding documentation and status when June 1 arrives. Let’s first turn to the main source. The Jan. 20 PSA states that aliens will lose CNMI status if outside the CNMI after June 1. The PSA goes on to explain that CNMI-issued documents relating to admission or immigration status will not be recognized by the Dept. of Homeland Security (DHS) for purposes of entering the CNMI. The PSA apparently was based on DHS advice.
These pronouncements appear consistent with Public Law 110-229. When federalization goes into effect on June 1 (with a possible delay of up to 180 days), the Immigration and Nationality Act will replace CNMI immigration law (except for those relating to asylum protection, which will continue through the transition period). All local laws and regulations on the admission of aliens will end, and with it, any benefits or status conferred by those laws. For those aliens traveling outside the CNMI during the switchover date, CNMI-issued documents that would normally provide for admission to the CNMI will not be honored by DHS.
Therefore, in one sense, the PSA is inaccurate, because CNMI-conferred immigration status will end, wherever you are.
Of course, that’s not the end of the inquiry. What else will happen in the wake of the switchover that will affect the tens of thousands of aliens living here? Here’s a summary of what we know, which is taken from the only source of law on the matter, which is Section 702 of Pub. L. 110-229 (see also the GAO report , which has been around for a while but is still an excellent source):
• Aliens lawfully present in the CNMI on June 1 will be allowed to remain here for the duration of their permit or 2 years, whichever is shorter.
• DHS will most likely set up a registration system to track their presence.
• For these aliens, they may apply for the standard suite of federal immigration benefits, such as an H visa or family-based green card.
• For aliens who aren’t eligible for federal immigration benefits, the CNMI-only worker transition program might provide an opportunity for these aliens to continue to live and work in the CNMI for the next several years.
The critical picture that seems to form from this is the repositioning of CNMI permit holders to the federal transition program. As opposed to what conclusions people may be drawing from the recent PSA, it’s this segue that I suspect will define the situation of the majority of aliens living here under a CNMI work permit, due to the difficulties in qualifying for a federal visa.
I’ll explain all of this in further detail in an upcoming post.
Wednesday, September 17, 2008
Commonwealth vs. United States, Case 1:08-cv-01572
In the news this week was a report that the CNMI Governor, on behalf of the CNMI, sued the United States of America to stop federalization of immigration here. The lawsuit was filed on Friday, September 12, 2008 and assigned to Judge Paul L. Friedman.
The lawsuit alleges that the new federalization law, P.L. 110-229, goes beyond implementing a federal system of immigration and instead imposes a federal labor scheme on the CNMI, in violation of several laws.
The first count alleges that P.L. 110-229 violates the right of the CNMI to local self-government of internal affairs, as guaranteed by the Covenant, section 102. The U.S. may not over-ride the CNMI's local self-government of internal affairs unless the CNMI consents. (Covenant, section 105). The complaint alleges that implementation of the new system interferes with the CNMI's regulation of internal labor and economic affairs, and will cause economic harm that violates the U.S.'s guarantee to assist the CNMI in becoming part of the American economic community and able to meet its financial responsibilities of self-government.
The second count alleges that P.L. 110-229 was enacted in violation of the U.S. Constitution because the CNMI had no vote in Congress. The complaint alleges that the CNMI had no ability to participate in the political process, and that this defective political process violates the constitutional limits placed on Congress to enact laws.
The complaint asks the U.S. District Court for the District of Columbia to enter a permanent injunction prohibiting implementation and enforcement of P.L. 110-229.
The Defendants include the U.S., Michael Chertoff (Secretary of the U.S. Department of Homeland Security), the U.S. Department of Homeland Security, Elaine Chao (Secretary of the U.S. Department of Labor), and the U.S. Department of Labor. Because the defendant are all U.S. government offices or agents, they have 60 days after the U.S. Attorney is served with the summons and complaint to file their answer.
It's always risky to predict what will happen in litigation. CNMI Senator Maria Pangelinan was reported as saying that a stipulated settlement / consent decree declaring parts of the law inapplicable in the CNMI could be entered into. However, the same article reports that a spokesman for the U.S. Senate Committee on Energy and Natural Resource believes the law will be upheld.
On the merits of the claim of the first count: it's difficult to see how "local self-government of internal affairs" can be stretched to encompass employment of foreign nationals. The extension of U.S. immigration here was expressly envisioned by the Covenant--and is expressly allowed. U.S. immigration, where ever it applies, effects the availability of foreign workers for certain job categories. It seems that the U.S., by extending U.S. immigration here, is specifically trying to bring the CNMI closer into the U.S. American economic community.
On the merits of the claim of the second count: the Covenant implicitly acknowledged that U.S. citizens living in the CNMI would not have a vote in U.S. Congressional elections. The Covenant designed our participation in the political processes of the U.S.: a resident representative; and 902 talks between governments. The claim that the political procedure used by the U.S. Congress to enact P.L. 110-229 violates the U.S. Constitution is really a claim that our Covenant violates the U.S. Constitution. This seems a very risky tact to take, but also one not likely to succeed.
Right now, P.L. 110-229 is scheduled to go into effect in the CNMI on June 1, 2009. The most likely effect of the lawsuit, unfortunately, will be a delay in the CNMI's cooperation with the U.S. in formulating regulations that must be in place in order for the law to be implemented on time. Undoubtedly, Governor Fitial will use this excuse to seek a delay in the start of federalization. The alternative, which even the U.S. doesn't want, would be the implementation of federalization without CNMI government input.
Although the complaint alleges that the federalization of immigration will cause uncertainty for our foreign investors and our populace in the CNMI, this lawsuit will only add to that uncertainty.
The lawsuit alleges that the new federalization law, P.L. 110-229, goes beyond implementing a federal system of immigration and instead imposes a federal labor scheme on the CNMI, in violation of several laws.
The first count alleges that P.L. 110-229 violates the right of the CNMI to local self-government of internal affairs, as guaranteed by the Covenant, section 102. The U.S. may not over-ride the CNMI's local self-government of internal affairs unless the CNMI consents. (Covenant, section 105). The complaint alleges that implementation of the new system interferes with the CNMI's regulation of internal labor and economic affairs, and will cause economic harm that violates the U.S.'s guarantee to assist the CNMI in becoming part of the American economic community and able to meet its financial responsibilities of self-government.
The second count alleges that P.L. 110-229 was enacted in violation of the U.S. Constitution because the CNMI had no vote in Congress. The complaint alleges that the CNMI had no ability to participate in the political process, and that this defective political process violates the constitutional limits placed on Congress to enact laws.
The complaint asks the U.S. District Court for the District of Columbia to enter a permanent injunction prohibiting implementation and enforcement of P.L. 110-229.
The Defendants include the U.S., Michael Chertoff (Secretary of the U.S. Department of Homeland Security), the U.S. Department of Homeland Security, Elaine Chao (Secretary of the U.S. Department of Labor), and the U.S. Department of Labor. Because the defendant are all U.S. government offices or agents, they have 60 days after the U.S. Attorney is served with the summons and complaint to file their answer.
It's always risky to predict what will happen in litigation. CNMI Senator Maria Pangelinan was reported as saying that a stipulated settlement / consent decree declaring parts of the law inapplicable in the CNMI could be entered into. However, the same article reports that a spokesman for the U.S. Senate Committee on Energy and Natural Resource believes the law will be upheld.
On the merits of the claim of the first count: it's difficult to see how "local self-government of internal affairs" can be stretched to encompass employment of foreign nationals. The extension of U.S. immigration here was expressly envisioned by the Covenant--and is expressly allowed. U.S. immigration, where ever it applies, effects the availability of foreign workers for certain job categories. It seems that the U.S., by extending U.S. immigration here, is specifically trying to bring the CNMI closer into the U.S. American economic community.
On the merits of the claim of the second count: the Covenant implicitly acknowledged that U.S. citizens living in the CNMI would not have a vote in U.S. Congressional elections. The Covenant designed our participation in the political processes of the U.S.: a resident representative; and 902 talks between governments. The claim that the political procedure used by the U.S. Congress to enact P.L. 110-229 violates the U.S. Constitution is really a claim that our Covenant violates the U.S. Constitution. This seems a very risky tact to take, but also one not likely to succeed.
Right now, P.L. 110-229 is scheduled to go into effect in the CNMI on June 1, 2009. The most likely effect of the lawsuit, unfortunately, will be a delay in the CNMI's cooperation with the U.S. in formulating regulations that must be in place in order for the law to be implemented on time. Undoubtedly, Governor Fitial will use this excuse to seek a delay in the start of federalization. The alternative, which even the U.S. doesn't want, would be the implementation of federalization without CNMI government input.
Although the complaint alleges that the federalization of immigration will cause uncertainty for our foreign investors and our populace in the CNMI, this lawsuit will only add to that uncertainty.
Wednesday, May 14, 2008
18. Some questions about P.L. 110-229.
There are many unanswered questions about how P.L. 110-229 will affect various people in the CNMI.
Here are some that may apply to MLSC clients:
What will happen to alien spouses?
The CNMI IR card will provide legal status only until its renewal date. The U.S. citizen spouse will likely have to apply for U.S. green card /immediate relative status for the alien spouse.
The fees for these applications are stiff, including costs for health certifications, etc. The U.S. citizen spouse will need to promise to financially support the alien spouse for 10 years or until the alien becomes a U.S. citizen (which first occurs). If the U.S. citizen spouse does not have sufficient income to be a financial guarantor, another additional sponsor for financial support will be needed.
What will happen to an alien spouse getting divorced from her/his U.S. citizen spouse?
The CNMI immigration does not require U.S. citizen spouses to get U.S. green cards for their alien spouses. So alien spouses in the CNMI have not had any way to gain permanent residency when their U.S. citizen spouses did not get them green cards. Sometimes they haven't gotten green cards because the U.S. citizen spouse intentionally wanted to use the lack of permanent status as a means for control over the alien spouse. But sometimes, the married couple just couldn't afford the cost of the green card processing.
So now, in the CNMI, under current CNMI law, divorce means you lose your local "immediate relative" status.
This can be especially difficult for those who have been married for a long time and who have U.S. citizen children. A U.S. citizen spouse in the U.S. will almost always get a green card for his or her alien spouse because the alien spouse needs some legal status to reside in the U.S. In the CNMI, that "legal status" has been the less permanent, no-road-to-citizenship local immediate relative status for alien spouses.
So once the divorce is finalized, an alien spouse here will lose "local IR" status and be deportable. We are seeing spouses, after many years of marriage and children, in the process of divorce at this moment who appear to be unprotected by anything in P.L. 110-229.
What about widows and widowers here who were married to U.S. citizens?
At present, widows and widowers who were married to U.S. citizen spouses have been granted by the Commonwealth Superior Court recognition that they have a right to remain in the CNMI, that the death of the U.S. spouse does not extinguish their "immediate relative" status under CNMI law. The CNMI Supreme Court has never ruled on the issue.
So on June 1, 2009, when U.S. immigration takes over, these widows and widowers will probably be considered legal, but their CNMI legal status will be extinguished on the transition date, and they will have no corresponding legal status under U.S. law. There is no clear category that they'll fit into under the new U.S. immigration system.
If they had been living in the U.S. during their marriage, the U.S. citizen-spouse would likely have applied for a green card for the alien spouse, as a means of providing legal residence in the U.S. And upon the U.S. citizen-spouse's death, the alien might have been entitled to continued permanent residence and eventual citizenship. Widows and widowers here were locked out of that protection by the CNMI IR status that did not provide for permanency. The Superior court decision tried to provide for what was lacking in the CNMI IR set-up, but there is nothing in the new federal law to address the issue.
What will happen to those with CNMI Permanent Residency?
In the late 1970's and early 1980's, the CNMI had a "permanent residency" law that allowed aliens to become permanent residents of the CNMI. Something like 200+ permits were issued under this law. When the law was repealed, these "permanent residents" retained their status.
On June 1, 2009, when U.S. immigration takes over, these "CNMI permanent residents" will be legal. It is unclear whether their status is extinguished by the U.S. law, or whether they are entitled to some more due process. At the very most, their situation will be problematic and they will have uncertain protection under U.S. law, and no clear category that they'll fit into under the new immigration system.
What protection will U.S. citizen minor children have for their alien parents?
Right now these U.S. citizen children are in jeopardy. They have a right to be here in the CNMI. But their parents don't, unless the parents have separate status. As the economy continues to plummet downward, these parents are not only losing the economic security of having a job, but with job loss these parents face deportation as no longer having a legal status. It's the kids who will suffer. They will either be left here with others to care for them--breaking up the family, or they'll move with their parents back to the parents' home country--suffering disruption and other problems.
Under U.S. law, which will apply as of June 1, 2009, they may be able, in some special hardship cases, to have the U.S. withhold deportation of their parents. This may be most helpful to children who are disabled and handicapped. [See, INA sec. 240 (A)(b)(1)(D)] In the meantime, there seems little protection under current CNMI law.
Note, once children reach the age of 21, they can petition their alien parents in for immediate relative/green card status, even now.
What protection will be given to alien workers who have lived and worked a long time in the CNMI?
We have a lot of aliens who have lived in the CNMI for five, ten, twenty, and more years. For those who have decades of employment behind them, but now find themselves without jobs in our dwindling economy, they're just missing the boat by a fraction of an inch. It seems unfair. If anyone should get status, it should be those who have worked and contributed to the CNMI for the longest time period, even if they've lost their most recent job in the economy.
Nothing in P.L. 110-229 addresses this concern immediately. It does provide for study of the possibility of providing permanent legal status to some.
What will happen to alien spouses of citizens from the Freely Associate States-FSM, Palau, Republic of the Marshall Islands?
Years ago, Judge Munson ruled in a case filed by V.K. Sawhney that the CNMI couldn't just start re-classifying these alien spouses as "aliens" when they are married to people who were former TT citizens with a full right to live here (especially for those who had legal status as spouses when the Covenant went into effect). So the CNMI continued to give them IR status.
Now they will face the same challenge as we transition from CNMI immigration to U.S. immigration, only against U.S. law.. They have marriages, children, lives in the CNMI. But they're married to FAS citizens who have the right to live here by virtue of the Compact of Free Association, but no known legal means for providing status to alien spouses.
Other gaps from the transition? Solutions?
From this short list of potential problems, it appears that we need additional U.S. laws to protect these vulnerable people from falling between the cracks of the two systems-the out-going CNMI immigration system, and the in-coming U.S. immigration system. We also need some sympathetic local action that does not push people out to create slots for others, but tries to help as many aliens currently in the CNMI as possible.
Undoubtedly there are other aliens with tricky situations. If you have a specific problem, feel free to post about it in the comments section. It may be useful to those who are working on these issues.
Here are some that may apply to MLSC clients:
What will happen to alien spouses?
The CNMI IR card will provide legal status only until its renewal date. The U.S. citizen spouse will likely have to apply for U.S. green card /immediate relative status for the alien spouse.
The fees for these applications are stiff, including costs for health certifications, etc. The U.S. citizen spouse will need to promise to financially support the alien spouse for 10 years or until the alien becomes a U.S. citizen (which first occurs). If the U.S. citizen spouse does not have sufficient income to be a financial guarantor, another additional sponsor for financial support will be needed.
What will happen to an alien spouse getting divorced from her/his U.S. citizen spouse?
The CNMI immigration does not require U.S. citizen spouses to get U.S. green cards for their alien spouses. So alien spouses in the CNMI have not had any way to gain permanent residency when their U.S. citizen spouses did not get them green cards. Sometimes they haven't gotten green cards because the U.S. citizen spouse intentionally wanted to use the lack of permanent status as a means for control over the alien spouse. But sometimes, the married couple just couldn't afford the cost of the green card processing.
So now, in the CNMI, under current CNMI law, divorce means you lose your local "immediate relative" status.
This can be especially difficult for those who have been married for a long time and who have U.S. citizen children. A U.S. citizen spouse in the U.S. will almost always get a green card for his or her alien spouse because the alien spouse needs some legal status to reside in the U.S. In the CNMI, that "legal status" has been the less permanent, no-road-to-citizenship local immediate relative status for alien spouses.
So once the divorce is finalized, an alien spouse here will lose "local IR" status and be deportable. We are seeing spouses, after many years of marriage and children, in the process of divorce at this moment who appear to be unprotected by anything in P.L. 110-229.
What about widows and widowers here who were married to U.S. citizens?
At present, widows and widowers who were married to U.S. citizen spouses have been granted by the Commonwealth Superior Court recognition that they have a right to remain in the CNMI, that the death of the U.S. spouse does not extinguish their "immediate relative" status under CNMI law. The CNMI Supreme Court has never ruled on the issue.
So on June 1, 2009, when U.S. immigration takes over, these widows and widowers will probably be considered legal, but their CNMI legal status will be extinguished on the transition date, and they will have no corresponding legal status under U.S. law. There is no clear category that they'll fit into under the new U.S. immigration system.
If they had been living in the U.S. during their marriage, the U.S. citizen-spouse would likely have applied for a green card for the alien spouse, as a means of providing legal residence in the U.S. And upon the U.S. citizen-spouse's death, the alien might have been entitled to continued permanent residence and eventual citizenship. Widows and widowers here were locked out of that protection by the CNMI IR status that did not provide for permanency. The Superior court decision tried to provide for what was lacking in the CNMI IR set-up, but there is nothing in the new federal law to address the issue.
What will happen to those with CNMI Permanent Residency?
In the late 1970's and early 1980's, the CNMI had a "permanent residency" law that allowed aliens to become permanent residents of the CNMI. Something like 200+ permits were issued under this law. When the law was repealed, these "permanent residents" retained their status.
On June 1, 2009, when U.S. immigration takes over, these "CNMI permanent residents" will be legal. It is unclear whether their status is extinguished by the U.S. law, or whether they are entitled to some more due process. At the very most, their situation will be problematic and they will have uncertain protection under U.S. law, and no clear category that they'll fit into under the new immigration system.
What protection will U.S. citizen minor children have for their alien parents?
Right now these U.S. citizen children are in jeopardy. They have a right to be here in the CNMI. But their parents don't, unless the parents have separate status. As the economy continues to plummet downward, these parents are not only losing the economic security of having a job, but with job loss these parents face deportation as no longer having a legal status. It's the kids who will suffer. They will either be left here with others to care for them--breaking up the family, or they'll move with their parents back to the parents' home country--suffering disruption and other problems.
Under U.S. law, which will apply as of June 1, 2009, they may be able, in some special hardship cases, to have the U.S. withhold deportation of their parents. This may be most helpful to children who are disabled and handicapped. [See, INA sec. 240 (A)(b)(1)(D)] In the meantime, there seems little protection under current CNMI law.
Note, once children reach the age of 21, they can petition their alien parents in for immediate relative/green card status, even now.
What protection will be given to alien workers who have lived and worked a long time in the CNMI?
We have a lot of aliens who have lived in the CNMI for five, ten, twenty, and more years. For those who have decades of employment behind them, but now find themselves without jobs in our dwindling economy, they're just missing the boat by a fraction of an inch. It seems unfair. If anyone should get status, it should be those who have worked and contributed to the CNMI for the longest time period, even if they've lost their most recent job in the economy.
Nothing in P.L. 110-229 addresses this concern immediately. It does provide for study of the possibility of providing permanent legal status to some.
What will happen to alien spouses of citizens from the Freely Associate States-FSM, Palau, Republic of the Marshall Islands?
Years ago, Judge Munson ruled in a case filed by V.K. Sawhney that the CNMI couldn't just start re-classifying these alien spouses as "aliens" when they are married to people who were former TT citizens with a full right to live here (especially for those who had legal status as spouses when the Covenant went into effect). So the CNMI continued to give them IR status.
Now they will face the same challenge as we transition from CNMI immigration to U.S. immigration, only against U.S. law.. They have marriages, children, lives in the CNMI. But they're married to FAS citizens who have the right to live here by virtue of the Compact of Free Association, but no known legal means for providing status to alien spouses.
Other gaps from the transition? Solutions?
From this short list of potential problems, it appears that we need additional U.S. laws to protect these vulnerable people from falling between the cracks of the two systems-the out-going CNMI immigration system, and the in-coming U.S. immigration system. We also need some sympathetic local action that does not push people out to create slots for others, but tries to help as many aliens currently in the CNMI as possible.
Undoubtedly there are other aliens with tricky situations. If you have a specific problem, feel free to post about it in the comments section. It may be useful to those who are working on these issues.
Thursday, May 1, 2008
S. 2739. ISLA, n/k/a P.L. 110-229
ISLA—Immigration, Security, and Labor Act (originally H.R. 3079, included as Title VII in S. 2739) Passed the Senate on 4/10/2008; Passed the House on 4/29/2008; Signed by President Bush on 5/8/2008.
some key phrases in the intent section:
“effective border control”
“extending” U.S. immigration laws to the CNMI
“the orderly phasing-out of the nonresident contract worker program”
“the orderly phasing-in of Federal responsibilities...”
“providing a mechanism for continuous use of alien workers, to the extent those workers continue to be necessary to supplement the Commonwealth’s resident workforce”
“to protect those workers from the potential for abuse and exploitation.”
effective date: 1st day of the 1st full month commencing one year after enacted.
Thus, if this bill is signed promptly by President Bush (in May 2008), the effective date would be JUNE 1, 2009.
what happens? This law amends P.L. 94-241 (the Covenant), which had previously exempted the CNMI from the scope of U.S. immigration law, and allowed the CNMI to control its own immigration..
U.S. immigration laws, as defined in 8 U.S.C. § 1101 (a)(17)[1] go into effect in the CNMI on the start date of the transition period and subject to some exceptions/limitations:
(1) there will be a transition period where U.S. immigration laws apply, allowing entry of aliens under U.S. immigration categories, and operating in tandem with a program operated by U.S. immigration authorities that permits alien workers in the CNMI similar to the current CNMI immigration program under a special CNMI-only/special H Visa program.
(2) only the CNMI asylum/non-refoulement program will be in operation during the transition period; U.S. asylum / non-refoulement is not in operation in the CNMI during the transition period.
On the transition program effective date, all CNMI laws, provisions, and programs relating to the admission of aliens and their removal are superseded and replaced by U.S. law.
when is the transition period? start date[2] likely 6/1/2009 to end date 12/31/2013[3].
who’s in charge of immigration? The Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Interior.
what happens now--in the pre-transition period? The federal agencies promulgate regulations to deal with the transition. Regarding the tourist visa-waiver program, the regulations must be promulgated within 180 days after enactment of ISLA.
The CNMI may not increase the number of aliens present in the CNMI after the date ISLA is enacted
delays? Possible. If there will be a delay, notice of delay must be published 30 days in advance of start date (i.e. 5/1/2009). The Secretary of Homeland Security (after consulting with the Secretary of State, Attorney General, Secretary of Labor, Secretary of Interior AND the CNMI Governor) may, in his sole discretion, delay the effective date of the transition program for a period up to 180 days. SO START COULD BE AS LATE AS 1/1/2010.
End of transition period can also be delayed as to the section d--CNMI-only/special H Visa program. See reports section, infra.
what happens to the aliens here under CNMI immigration laws? For any alien lawfully present on the start date of the transition period, that alien may not be deported until his CNMI entry permit expires or 2 years elapse, whichever FIRST occurs.
what about entry by aliens during the transition period?
1) Anyone eligible under any U.S. immigration law (including all of the H Visa categories, investor categories, etc.), may enter the CNMI as they would the U.S.
2) Workers under 8 U.S.C. § 1101 (1)(15)(H), without restriction of numerical quota limit. (H Visa)
3) Workers under special provision ISLA sec. 6d, in a CNMI-only/special H Visa[4] system where Secretary of Homeland Security allocates and determines numbers, terms, conditions to employers, and reduces yearly number allowed, eventually down to zero by 12/31/2013.[5] (sec. d CNMI only/special H Visa). Spouses and minor children admissible, too, under this special program.
investors?
1) Long-term investors on the start date under the current CNMI law may obtain “CNMI-only nonimmigrant investor” status under 8 U.S.C. §101(a)(15), provided they maintain the investment that formed the basis of their status.
tourists? The Secretary of Homeland Security may institute a visa waiver program for 45 day visits for business or pleasure, after consultation with Secretary of Interior, Secretary of State, Guam Governor and CNMI Governor. Tourists must sign certain waiver of rights.
asylum seekers? The CNMI asylum/non-refoulement program continues in effect. Aliens may not seek asylum under U.S. law until 1/1/2014.
alien spouses of FSM/Palau/RepMar citizens? There is no special provision for these persons. They will likely be considered as aliens with legal status until their permits expire or two years elapse, under the general provision about aliens in the CNMI.
what about transfers? There is a special provision that aliens who are admitted to the CNMI under section d (CNMI-only/special H Visas) may transfer between employers during the period of their lawful stay, without permission of the current or prior employer, but within authorized categories for CNMI-special H Visas.
what are the new fees for entry? whatever is usually charged for immigration matters, PLUS
1. $150 per non-immigrant worker; paid by §d (CNMI only/CNMI special H Visa program) employer during transition period. This money is remitted to the CNMI for vocational training and education.
what about permanent residency? For those aliens who have green cards (U.S. permanent residency) already, the CNMI is specifically deemed to be part of the U.S. and presence in the CNMI is “considered to be presence in the United States.”
For those aliens who have CNMI permanent residency (under laws that were eventually repealed in the 1980's), there is no clear answer in this new law about ability to adjust status or what status will be recognized.
For those who do not have permanent residency yet, but wish to apply, no grant of status is provided for in this law; however see “reports.”
what about removal/deportation? The Secretary of Homeland Security is the authority for issuing exclusion, deportation, and removal orders, starting on the transition date. He applies whatever U.S. or CNMI law is appropriate to the case.
what happens to employees of CNMI immigration? There is no specific provision for them. The CNMI immigration department will cease to exist when the transition period starts. TSA and other homeland security departments will take-over immigration operations, and will need qualified personnel.
future reports:
1) Secretary of Homeland Security, (consultation with Secretary of Interior and other departments) to Senate Committee on Energy and Natural Resources, Senate Committee on Homeland Security and Governmental Affairs, the Senate Committee on the Judiciary, and House Committee on Natural Resources, House Committee on Homeland Security, and House Committee on Judiciary by 12/1/2008. Report is about current and planned levels of TSA, Customs & Border Protection, Immigration & Customs Enforcement, USCIS, and Coast Guard personnel and resources necessary for fulfilling mission requirements in Guam and CNMI comparable to level provided at other similar ports of entry. Consider military build-up and anticipated growth in tourism.
2) Permissive/not required: annual report from CNMI Governor to President on implementation, with recommendations.
3) Secretary of Interior, in consultation with the Secretary of Homeland Security and the CNMI Governor, to Congress, by 5/2010, on the number of aliens residing in the CNMI, their legal status, the number of years each has been in the CNMI, prediction of need by CNMI economy for future alien workforce, and recommendation about long-term status of workers.
4) GAO to Congress by 6/2010, assessing performance of federal agencies and CNMI Government in meeting congressional intent, short-term & long-term impacts of implementation on economy; and economic benefit of investors grandfathered in; and assessment of number of illegal aliens in CNMI.
5) President to Senate Committee on Energy and Natural Resources, Committee on the Judiciary of the Senate, and House Committee on Natural Resources, and House Committee on Judiciary by 3/1/2011, and every 3/1/ thereafter. Evaluating overall effect of transition program.
6) Secretary of Homeland Security to Senate Committee on Energy and Natural Resources, Committee on the Judiciary of the Senate, and House Committee on Natural Resources, and House Committee on Judiciary, by end of 3 years after start date (6/2012), on projected number of asylum claims
7) Secretary of Labor, after consultation with Secretary of Homeland Security, Secretary of Interior and Governor of CNMI, on current and anticipated labor needs in the CNMI, and shall publish notice in Federal Register, 180 days before end of transition period (6/30/2013), if determines need for CNMI-only/special H Visa workers warrants extension of transition period. Delay of end of transition for this special workers-entry program only—5 years at a time.
8) Permissive, not required. Secretary of Homeland Security (after consultation with Secretary of State and Secretary of Interior) to Senate Committee on Energy and Natural Resources, Senate Committee on Judiciary, House Committee on Natural Resources, and House Committee on Judiciary, about feasibility of creating additional Guam or CNMI-only visa categories.(non-immigrant statuses for investors, students, and retirees, but not for employment) [any time].
Footnotes:
[1] 8 USC §1101 (a)(17) The term "immigration laws" includes this Act and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens.
[2] But see “delays” infra.
[3] But see “delays” and “reports” infra.
[4] Note that this special type of entry permit is not given a name in the ISLA; I call it a CNMI-only/special H Visa because of its characteristics. It will be up to regulations to give it an actual name.
[5] But see “delays” and “reports”.
some key phrases in the intent section:
“effective border control”
“extending” U.S. immigration laws to the CNMI
“the orderly phasing-out of the nonresident contract worker program”
“the orderly phasing-in of Federal responsibilities...”
“providing a mechanism for continuous use of alien workers, to the extent those workers continue to be necessary to supplement the Commonwealth’s resident workforce”
“to protect those workers from the potential for abuse and exploitation.”
effective date: 1st day of the 1st full month commencing one year after enacted.
Thus, if this bill is signed promptly by President Bush (in May 2008), the effective date would be JUNE 1, 2009.
what happens? This law amends P.L. 94-241 (the Covenant), which had previously exempted the CNMI from the scope of U.S. immigration law, and allowed the CNMI to control its own immigration..
U.S. immigration laws, as defined in 8 U.S.C. § 1101 (a)(17)[1] go into effect in the CNMI on the start date of the transition period and subject to some exceptions/limitations:
(1) there will be a transition period where U.S. immigration laws apply, allowing entry of aliens under U.S. immigration categories, and operating in tandem with a program operated by U.S. immigration authorities that permits alien workers in the CNMI similar to the current CNMI immigration program under a special CNMI-only/special H Visa program.
(2) only the CNMI asylum/non-refoulement program will be in operation during the transition period; U.S. asylum / non-refoulement is not in operation in the CNMI during the transition period.
On the transition program effective date, all CNMI laws, provisions, and programs relating to the admission of aliens and their removal are superseded and replaced by U.S. law.
when is the transition period? start date[2] likely 6/1/2009 to end date 12/31/2013[3].
who’s in charge of immigration? The Secretary of Homeland Security, in consultation with the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Interior.
what happens now--in the pre-transition period? The federal agencies promulgate regulations to deal with the transition. Regarding the tourist visa-waiver program, the regulations must be promulgated within 180 days after enactment of ISLA.
The CNMI may not increase the number of aliens present in the CNMI after the date ISLA is enacted
delays? Possible. If there will be a delay, notice of delay must be published 30 days in advance of start date (i.e. 5/1/2009). The Secretary of Homeland Security (after consulting with the Secretary of State, Attorney General, Secretary of Labor, Secretary of Interior AND the CNMI Governor) may, in his sole discretion, delay the effective date of the transition program for a period up to 180 days. SO START COULD BE AS LATE AS 1/1/2010.
End of transition period can also be delayed as to the section d--CNMI-only/special H Visa program. See reports section, infra.
what happens to the aliens here under CNMI immigration laws? For any alien lawfully present on the start date of the transition period, that alien may not be deported until his CNMI entry permit expires or 2 years elapse, whichever FIRST occurs.
what about entry by aliens during the transition period?
1) Anyone eligible under any U.S. immigration law (including all of the H Visa categories, investor categories, etc.), may enter the CNMI as they would the U.S.
2) Workers under 8 U.S.C. § 1101 (1)(15)(H), without restriction of numerical quota limit. (H Visa)
3) Workers under special provision ISLA sec. 6d, in a CNMI-only/special H Visa[4] system where Secretary of Homeland Security allocates and determines numbers, terms, conditions to employers, and reduces yearly number allowed, eventually down to zero by 12/31/2013.[5] (sec. d CNMI only/special H Visa). Spouses and minor children admissible, too, under this special program.
investors?
1) Long-term investors on the start date under the current CNMI law may obtain “CNMI-only nonimmigrant investor” status under 8 U.S.C. §101(a)(15), provided they maintain the investment that formed the basis of their status.
tourists? The Secretary of Homeland Security may institute a visa waiver program for 45 day visits for business or pleasure, after consultation with Secretary of Interior, Secretary of State, Guam Governor and CNMI Governor. Tourists must sign certain waiver of rights.
asylum seekers? The CNMI asylum/non-refoulement program continues in effect. Aliens may not seek asylum under U.S. law until 1/1/2014.
alien spouses of FSM/Palau/RepMar citizens? There is no special provision for these persons. They will likely be considered as aliens with legal status until their permits expire or two years elapse, under the general provision about aliens in the CNMI.
what about transfers? There is a special provision that aliens who are admitted to the CNMI under section d (CNMI-only/special H Visas) may transfer between employers during the period of their lawful stay, without permission of the current or prior employer, but within authorized categories for CNMI-special H Visas.
what are the new fees for entry? whatever is usually charged for immigration matters, PLUS
1. $150 per non-immigrant worker; paid by §d (CNMI only/CNMI special H Visa program) employer during transition period. This money is remitted to the CNMI for vocational training and education.
what about permanent residency? For those aliens who have green cards (U.S. permanent residency) already, the CNMI is specifically deemed to be part of the U.S. and presence in the CNMI is “considered to be presence in the United States.”
For those aliens who have CNMI permanent residency (under laws that were eventually repealed in the 1980's), there is no clear answer in this new law about ability to adjust status or what status will be recognized.
For those who do not have permanent residency yet, but wish to apply, no grant of status is provided for in this law; however see “reports.”
what about removal/deportation? The Secretary of Homeland Security is the authority for issuing exclusion, deportation, and removal orders, starting on the transition date. He applies whatever U.S. or CNMI law is appropriate to the case.
what happens to employees of CNMI immigration? There is no specific provision for them. The CNMI immigration department will cease to exist when the transition period starts. TSA and other homeland security departments will take-over immigration operations, and will need qualified personnel.
future reports:
1) Secretary of Homeland Security, (consultation with Secretary of Interior and other departments) to Senate Committee on Energy and Natural Resources, Senate Committee on Homeland Security and Governmental Affairs, the Senate Committee on the Judiciary, and House Committee on Natural Resources, House Committee on Homeland Security, and House Committee on Judiciary by 12/1/2008. Report is about current and planned levels of TSA, Customs & Border Protection, Immigration & Customs Enforcement, USCIS, and Coast Guard personnel and resources necessary for fulfilling mission requirements in Guam and CNMI comparable to level provided at other similar ports of entry. Consider military build-up and anticipated growth in tourism.
2) Permissive/not required: annual report from CNMI Governor to President on implementation, with recommendations.
3) Secretary of Interior, in consultation with the Secretary of Homeland Security and the CNMI Governor, to Congress, by 5/2010, on the number of aliens residing in the CNMI, their legal status, the number of years each has been in the CNMI, prediction of need by CNMI economy for future alien workforce, and recommendation about long-term status of workers.
4) GAO to Congress by 6/2010, assessing performance of federal agencies and CNMI Government in meeting congressional intent, short-term & long-term impacts of implementation on economy; and economic benefit of investors grandfathered in; and assessment of number of illegal aliens in CNMI.
5) President to Senate Committee on Energy and Natural Resources, Committee on the Judiciary of the Senate, and House Committee on Natural Resources, and House Committee on Judiciary by 3/1/2011, and every 3/1/ thereafter. Evaluating overall effect of transition program.
6) Secretary of Homeland Security to Senate Committee on Energy and Natural Resources, Committee on the Judiciary of the Senate, and House Committee on Natural Resources, and House Committee on Judiciary, by end of 3 years after start date (6/2012), on projected number of asylum claims
7) Secretary of Labor, after consultation with Secretary of Homeland Security, Secretary of Interior and Governor of CNMI, on current and anticipated labor needs in the CNMI, and shall publish notice in Federal Register, 180 days before end of transition period (6/30/2013), if determines need for CNMI-only/special H Visa workers warrants extension of transition period. Delay of end of transition for this special workers-entry program only—5 years at a time.
8) Permissive, not required. Secretary of Homeland Security (after consultation with Secretary of State and Secretary of Interior) to Senate Committee on Energy and Natural Resources, Senate Committee on Judiciary, House Committee on Natural Resources, and House Committee on Judiciary, about feasibility of creating additional Guam or CNMI-only visa categories.(non-immigrant statuses for investors, students, and retirees, but not for employment) [any time].
Footnotes:
[1] 8 USC §1101 (a)(17) The term "immigration laws" includes this Act and all laws, conventions, and treaties of the United States relating to the immigration, exclusion, deportation, expulsion, or removal of aliens.
[2] But see “delays” infra.
[3] But see “delays” and “reports” infra.
[4] Note that this special type of entry permit is not given a name in the ISLA; I call it a CNMI-only/special H Visa because of its characteristics. It will be up to regulations to give it an actual name.
[5] But see “delays” and “reports”.
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