PAROLE RENEWAL WORKSHOP

The Marianas Office of Micronesian Legal Services Corporation has scheduled parole renewal workshops for those non-citizens who already have parole-in-place, but whose status may be ending soon.

There will be two back-to-back sessions at the American Memorial Park auditorium.

SUNDAY, October 28 1 PM

SUNDAY, October 28 3 PM

Each workshop will be conducted in English. Seating is on a first-come, first-served basis. Please do not bring children. 

The purpose of workshop is to review the process and information needed to successfully renew  parole status.  Individual legal advice will not be given.

Parole-In-Place Workshops

The Marianas Office of Micronesian Legal Services Corporation will be hosting a series of workshops to help people prepare Parole-In-Place applications. These workshops are aimed at those foreign nationals / aliens who have no other options for their status. Each workshop targets a specific category of foreign nationals who are likely to have success or may have a good chance at success in getting Parole-In-Place from the USCIS.

The first workshop is scheduled for Sunday, September 18, 2011 at American Memorial Park at 1 PM. It is for ONLY those foreign nationals who are spouses or widows/widowers of citizens of Palau, the Federated States of Micronesia (FSM), or the Republic of the Marshall Islands (RepMar), collectively called the Freely Associated States (FAS).

Parole-In-Place is an option of last-resort. Generally speaking, where other options are available, like the CW permit for those employed, those options should be exhausted first. Although MLSC will conduct the workshop to help people understand the process and put together their applications, no individual legal advice will be given. MLSC will not be accepting cases or filing on behalf of those who attend the workshops. The purpose of the session is simply to help get information out and help people utilize the process as successfully as they can.

Each workshop will be conducted in English. Each workshop is limited by the capacity of the auditorium at American Memorial Park. If there are no auditorium seats available, the sessions will be closed. For more information, contact the Marianas Office at 234-6243.

2010 Immigration Conference

Micronesian Legal Services Corporation once again hosted a training conference, providing 13 hours of CLE to attorneys in the CNMI. The Conference, which was held on December 8 and 9, 2010, focused on immigration matters, the impact of crimes on admissibility and removal. There were also brief sessions on VAWA, T Visas and U Visas, and the most popular session on ethics.


Joe Hill signs in while Polly Anne and Lolita man the registration table.

Our trainers were Evangeline Abriel from Santa Clara University Law School and Lauren Gilbert from Saint Thomas University Law School. They did an amazing job!


Vangie talks about aggravated felonies.




USCIS Honolulu District Director David Gulick attended some sessions and gave a lunchtime presentation on the 8th.


Lauren walked us through some basics before getting to the more difficult stuff.


We also made available the materials that Vangie and Lauren provided--copies of their power point presentations and sample problems.

Additionally, Vangie brought flashdrives loaded with 2 CLINIC manuals on crimes and removal proceedings and these were distributed to the conference participants. These were a donation! Thanks to CLINIC who allowed the materials to be copied. Thanks to Karen Bernosky at Santa Clara University who arranged the donation. And thanks to Steve Rebliagati, Manuel Valerio and James Chavez of Fry's Electronic's for making this happen. All we can say is THANKS! What great resources these nifty little flashdrives are!





Keen attention!


MLSC staff attorney Dimitri Varmazis.


MLSLC staff attorney Linda (in pink).


In the back--MLSC Deputy Director Ben Weber and support staff.


After the conference--Dimitri, Linda, Vangie, Lauren and Juanette.

Immigration Forum Links

I have updated the table of articles by Maya Kara and Bruce Mailman on immigration matters. Their first articles were published in the Marianas Variety and those links no longer work. I've left them on the list, though, in case you want to track down the articles in hard copy.
The later articles are in the Saipan Tribune and those links are now up-to-date.

There is a lot of good information here and I encourage readers interested in the immigration topic in the CNMI to read these articles. I don't always agree with the opinions of Maya and Bruce, but their information on the law is reliable.

New Case, New Duty

The U.S. Supreme Court issued a decision dated March 31, 2010 that recognizes for the first time a constitutional duty of criminal defense counsel to advise their clients of possible immigration consequences of plea agreements. Padilla v. Kentucky involved a situation where the attorney misinformed the criminal defendant, advising him not to worry about immigration consequences of a plea agreement because he had been in the US for a long time (40 years).

The majority opinion (Justices Stevens, Kennedy, Ginsburg, Breyer, and Sotomayor) places on criminal defense counsel a duty to not only refrain from giving misinformation, but to actively provide a warning that is accurate about the possible immigration consequences of a guilty plea (or conviction). The majority held that

"counsel must advise her client regarding the risk of deportation...

We too have previously recognized that "preserving the client's right to remain in the United States may be more important to the client than any potential jail sentence."

In reaching the decision, the majority found that informed consideration of possible deportation can be helpful to both prosecution and defense, as it will give leverage to the prosecution to convince a defendant to avoid the risk of deportation by pleading guilty to non-deportable crimes, and aid the defense counsel by giving them the opportunity to provide a real benefit to their clients if they can come up with a deal that avoids deportation.

The concurring opinion (Justices Alito and Roberts) enumerates some of the very real difficulties counsel will have in living up to such obligation. It also notes how this is a "dramatic departure from precedent" and cites a Cornell Law Review article by Chin and Holmes that found that "virtually all jurisdictions--including eleven federal circuits, more than thirty states, and the District of Columbia--hold that defense counsel need not discuss with their clients the collateral consequences of a conviction, including deportation."

The CNMI Supreme Court was one such court that had considered the issue in the case CNMI v. Shaunglan Chen and ruled against the alien defendant who sought to withdraw her guilty plea for ineffective assistance of counsel when counsel had not provided information about the deportation consequences of her plea agreement.

Obviously, this case will mean some changes by criminal defense counsel are necessary when representing alien defendants. Because the CNMI is under US immigration now, (although in the transition stage), the consequences for aliens pleading guilty or being found guilty of crimes here will be the same as for aliens in the rest of the US. No doubt there will be useful resources (like books, magazine articles, and online articles) to aid criminal lawyers with their duty.

Keeping up-to-date will be the real challenge.


And just to be complete, there was a dissent (Justices Scalia and Thomas).

The Power Struggle over Alien Labor

The CNMI has been struggling to hold on to power throughout the transition to U.S. control of immigration.

A BIT OF HISTORY
For years the CNMI has opposed federal immigration and clung to its own control of immigration through many tactics. The most notorious action included hiring the lobbyist Jack Abramoff.

It opposed all attempts to extend U.S. immigration control to the CNMI for decades, but it finally lost the battle when the U.S. Congress passed the Consolidated Natural Resources Act of 2008. This became P.L. 110-229. Title VII of this act addresses "immigration, security and labor" in the Northern Mariana Islands.

THE CNRA
The CNRA extends U.S. immigration to the CNMI, but it first provides for a transition period. This started on November 28, 2009.

The CNRA provides for the federal immigration authorities to take over CNMI immigration on the effective date of the transition period (11/28/2009). It also provides for the end of CNMI immigration on that date.

During the first two years of the transition period, aliens who had lawful status on the effective date of the transition period under the CNMI immigration laws are not subject to deportation for violation of INA sec. 212 (a)(6)(A), 8 USC 1182 (a)(6)(A); that protection lasts until "completion of the period of the alien's admission under the immigration laws of the Commonwealth", or 11/27/2011, whichever is first.

During the first two years of the transition period, aliens who were permitted to work on the effective date of the transition period under the CNMI laws are deemed to have US authority to work during their protected period of presence in the CNMI.

Although the CNRA states that its purpose is to provide a phase-out of the "nonresident contract worker program of the Commonwealth" and a phase-in of US immigration, the law actually cuts off CNMI authority over immigration on the transition effective date (11/28/2009) and puts the entire management of the transition program regarding alien admission and labor under the U.S. authorities. The CNRA phase-out relates only to presence and ability to work of aliens admitted under the prior CNMI laws. The US transition program also, in some ways, mimics the CNMI alien worker program, and so it, too, is an element of the phase-out of a nonresident contract worker program, even though it is a new and separate program.

THE FITIAL LAWSUIT
The CNMI administration, led by Governor Fitial, challenged the CNRA law in federal court. It claimed that the law would ruin the CNMI by depriving the CNMI of foreign labor needed for the economy. It also claimed that the CNMI administration strongly wanted to stabilize the labor market in the CNMI, and had authority over labor; and that the US authority was limited to immigration.

The federal court finally determined that there was no basis for the challenge and dismissed the CNMI's complaint as to the CNRA. CNMI v. U.S., #08-1572 (U.S. Dist. Ct. D.C., 2009). (Opinion available here.)

The only portion of the CNMI lawsuit that garnered success was the challenge to the late "adoption" of regulations for the US-administered transitional worker program. This had the effect of derailing the availability of new transitional workers being admitted. Until final regs are adopted, no new workers under a transitional CW permit can be hired.

UMBRELLA PERMITS
However, there remain in the CNMI many alien workers who actually have jobs or who had authority to seek transfers to new employers under the CNMI regime. In the final days of CNMI control of immigration, the CNMI issued "umbrella permits" which were a last-ditch measure, ostensibly to stabilize the labor force and provide the maximum allowable time under the CNRA to alien workers here. These were handed out in a mad rush, while aliens lined up for hours, day and night. The "umbrella permits" provided the maximum allowable time for admission to the CNMI under CNRA law--through 11/27/2011.

But the permits also had "revocation" dates stamped on them.

It was clear even at the time that the CNMI government was issuing the "umbrella permits" that it had an ulterior motive. It wanted to extend its control over alien labor through the two year period.

THE MOST RECENT POWER STRUGGLE
And so the struggle for power over alien labor continues in the CNMI.

After 11/28/2009, the CNMI Department of Labor started scheduling appointments for , charging fees about, and "revoking" some of the newly issued umbrella permits.

The U.S. Ombudsman, Pam Brown, went on record saying that the USCIS would honor all umbrella permits as authority to stay until 11/27/2011 and would not honor any "revocation."

The CNMI DOL, through Jacinta Kaipat, lambasted Pam Brown, calling her reckless and accusing her of creating confusion, and insisting that she did not speak for the U.S. government. Kaipat told the CNMI Legislature that CNMI DOL can maintain control over umbrella permits. She had the backing of the CNMI AG, Ed Buckingham.

The Assistant Secretary for the Interior, Tony Babauta then joined the fray, supporting Pam Brown's position as that of the U.S.

On March 15, 2010, according to the CNMI newspapers, the USCIS released information on umbrella permits and other alien labor matters in a question and answer format. This official US government information fully corroborated the information provided by the Ombudsman--that the US will honor umbrella permits as permission to stay and to work and that it will not recognize CNMI revocations done after 11/27/2009.

And on March 16, 2010, the newspapers carried Governor Fitial's very different answers to the questions, re-asserting the CNMI's power to revoke umbrella permits (and significantly, charge fees in connection with their non-revocation). The CNMI Attorney General issued an opinion that the CNMI retained legal authority and could revoke alien labor permits.

You can read much more detail about the entire history of the struggle at Unheard No More. You can read the CNMI Department of Labor's press releases at their blog, CNMI Labor Forum.

THE BASIC AREA OF CONTENTION
It is clear that the U.S. and the CNMI government authorities do not agree on the meaning of the CNRA. They do not agree on the scope of authority to the US and the limitations of authority on the CNMI.

I am not sure, but it appears that this disagreement may be limited to the transition period issues. For example, it seems beyond debate that after the transition, the CNMI will have the same limitations on its immigration/labor powers as every state does. It will have the same powers as every state, too.

It is not clear whether the disagreement about control and authority will extend beyond the first two years of transition. At present, the debate centers around the umbrella permit, which at best ends 11/27/2011.

The transition presents unique questions because it has not occurred before, so there is no guidance from any state or federal authority on how to interpret the CNMI's role under the CNRA for now.

SOME LEGAL ANALYSIS
Nothing in the CNRA can be read as authority for the CNMI's continued enforcement of its former alien labor program.

The umbrella permits are immigration permits to be present in the CNMI on the effective date of the transition. They expressly state that they are effective until 11/27/2011. The USCIS is recognizing them for that period of time.

This recognition by the USCIS provides the stability of an alien labor pool that the CNMI claimed to want. Aliens holding umbrella permits have the CNRA protections-they can't be deported for violation of INA sec. 212 (a)(6)(A), 8 USC 1182 (a)(6)(A) until the completion of the period of their admission or 11/27/2011, whichever is first. They can work during that time period.

The US reads the CNRA as authority that the CNMI can't retroactively effect the period of admission. And that seems most consistent with the text and the purpose of the CNRA law.

The CNMI tries to bootstrap its way into a two-year extension of its labor policies and programs. The CNMI's struggle seems more about getting fees and making alien workers jump through hoops, keeping them hostage, than it does about providing a stable pool of labor.

THE CNRA AGAIN
At present, we have only the language of the CNRA to consider when it comes to the issue of foreign workers in the CNMI. None of the federal agencies tasked with its enforcement have issued final regulations regarding its implementation.

This is significant. If the USCIS were to issue regulations, the CNMI may recognize their pre-emptive authority. The AG's opinion at footnote 2, acknowledges the pre-emptive power of regulations, citing Fidelity Federal Sav. and Loan Ass'n v. de la Cuesta, 485 U.S. 141, 153 (1982). However the footnote also gives some clue that the CNMI would likely argue that any regs that differed significantly from its own interpretation of the CNRA would be challenged as an impermissible construction of the statute.

The central issue between the US and the CNMI seems to focus on the effect of the CNMI status for aliens who remain for the two year period. The CNMI reads the CNRA as impliedly giving it authority to continue to effectuate its alien labor laws as long as there are aliens in the CNMI who were admitted pursuant to those laws.

"The Commonwealth retains authority over certain immigration status issues regarding aliens lawfully in the Commonwealth as of the CNRA's effective date, November 28, 2009. This is because the CNRA provides a two-year transition period, during which Commonwealth immigration status must be respected and, by implication, the Commonwealth maintains jurisdiction to administer, and in a proper case, revoke that status."

The footnote to this claim says that the power extends to "Commonwealth immigration status of aliens legally present on November 28, 2009 ...including compliance with the express provisions set forth in the permits issued by the Commonwealth."

This interpretation takes several huge leaps in logic. It also blurs the distinction between immigration and labor.

The CNRA explicitly pre-empted admissibility and removal of aliens from the CNMI. Thus, there is no longer any "Commonwealth immigration status of aliens."

The Attorney General's opinion states that the CNRA expressly provides that the Commonwealth immigration status may continue during the transition period, but that statement is inaccurate. The CNRA provides protection from removal and authority to work, but it does not "continue" the CNMI alien status. No such status now exists. There can be no CNMI administration of such status.

The CNRA protects those who had such status on the transition effective date from removal for the period of time for which they were granted lawful admission by the CNMI prior to the effective date of the CNRA. If they were authorized to work on the transition effective date, they shall be considered authorized "by the Secretary of Homeland Security" to be employed until "the expiration of the alien's employment authorization under the immigration laws of the Commonwealth" or 11/27/2011, whichever is earlier. Everything is determined at the transition effective date. No where in the CNRA does it say that the CNMI can retroactively change the period of time for which aliens were granted admission or authorized to work.

The CNMI argues that aliens with umbrella permits might not have been able to stay for the full two years if they didn't comply with certain CNMI labor requirements; so the CNMI should continue to be allowed to enforce those requirements.

The CNRA does not say this. It does not suggest this. The clarity of the "transition effective date" as the date upon which rights and privileges are determined contradicts this interpretation. Furthermore, the CNRA expressly gives the US control over the transitional worker program, making it clear that it is the US that is to administer labor and immigration issues during the transition, not the CNMI. It would conflict with the CNRA's transitional worker program administered by the US to allow the CNMI to continue to administer its own alien worker program during the transition. Even more clearly, the CNRA expressly states that the Secretary of Homeland Security is deemed to have authorized employement for those present and authorized by the CNMI on the transition program effective date; how can the CNMI now revoke the Secretary of Homeland Security's authorization to work?

PRE-EMPTION
The CNMI Attorney General's Opinion does a good job of laying out the basics of pre-emption. Quoting from the opinion, in part...

" "Where a state statue conflicts with, or frustrates, federal law, the former must give way." U.S. Const. Art. VI, cl.2; Maryland v. Louisiana, 451 u.s. 726, 746 ...(1981). ... Evidence of pre-emptive purpose is sought in the text and structure of the statute at issue...

"A federal statute's express preemption clause indicates Congress' purpose....However, "[t]he fact that an express definition of the pre-emptive reach of a statue "implies-i.e. supports a reasonable inference-that Congress did not intend to pre-empt other matters does not mean that the express clause entirely forecloses any possibility of implied pre-emption."

...Implied preemption may occur via field preemption of conflict preemption.

Field prempetion may be found when states regulate a subject area that federal law also regulates...

Conflict preemption may be found when state statutes conflict with federal statutes.

State statutes regulating aliens may be constitutionally permissible. "Power to regulate immigration is unquestionably exclusively a federal power. But the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-empted by this constitutional power, whether latent or exercised."...

All of this is accurate and helpful.

It also helps clarify why the CNMI's interpretation of the CNRA is twisted and illogical.

The CNRA deals with immigration. The US federal court, in the challenge by the Fitial administration, clearly recognized that the alien labor portions of the CNRA are immigration matters. Employment authorization is a condition of admission and working without it may lead to removal; these are directly within the zone of the statute's pre-emption--admission and removal.

This law preempts the CNMI's attempt to regulate alien labor, both by field pre-emption and conflict pre-emption.

The CNMI wants to do something different than what the US is doing in the very field that the CNRA deals with--alien labor. The US transition program for alien labor clearly puts this power with the US government. The Secretary of Homeland Security is deemed to have authorized the employment of aliens as of the effective date of the transition period (11/28/2009). The CNMI can't reovke the Secretary of Homeland Security's authorization for employment. It can't pass laws now that effect status of any alien or add burdens not contemplated by Congress.

The real shame in all of this is the harm caused by the CNMI's unwillingness to be fair and rational in the transition to US immigration. Its refusal to turn over data, the verbal attacks on US officials, the waste of limited CNMI resources by litigating and continuing to press untenable positions is all very seriously harmful. And for alien workers and employers caught in the midst of this kerfuffle, the harm is not just lost wages and lost profits, but also stress and worry and uncertainty.

EDIT: For another take on this power struggle, see the Saipan Tribune column by Maya Kara and Bruce Mailman.

Alien Registration

The Federal Ombudsman's Office is conducting an "alien registration."

Why? The purpose of the registration is to get numbers and information about aliens here, so the U.S. Department of Interior can report to the U.S. Congress as required by P.L. 110-229 (the Consolidated Natural Resources Act).

Who counts? The registration counts all people who do not have a U.S. passport or a U.S. permanent residency card, and couldn't get one by applying--including citizens of the freely associated states--Palau, FSM, and the Marshall Islands.

How? There is a simple form.


All non-U.S. citizens fill one out, and turn it in to the Ombudsman's Office (Suite 203, Marina Heights II, Puerto Rico, Saipan). When you turn it in, you need photo identification (passport or other similar document).

When? NOW!!! Data is being gathered between December 14 and December 30, 2009. The time is short.

For more information, call the Ombudsman's Office at 322-8030.

If you want legal advice about your individual situation, talk to a lawyer.

Foreign Students in CNMI Schools

Recently, I have been hearing from various people who report a campaign of misinformation relating to the rights of foreign students in the public schools.

I have no idea whether there are rumors floating about or whether the concern is justified. However, it's always a good idea to know what the law is and what rights people have.

So this blog post is about the rights of foreign students to attend the CNMI public schools.


A mix of foreign and citizen students and teachers from the CNMI.

The basic rule is fairly simple: States (and territories, including the CNMI) cannot discriminate on the basis of immigration status in providing free, appropriate, public education for children. Basically, children have a right to such education. As applied here, any and all children (ages 6 to 16) in the CNMI are entitled to attend public schools.

The leading court case on the subject comes from the United States Supreme Court. Plyler vs. Doe, 457 U.S. 202 (1982) held that even undocumented alien children were entitled to attend public schools and a Texas law that allowed otherwise was unconstitutional.

Justice Powell, in his concurring opinion, summarized the basic logic of the decision:

"...the interests relied upon by the State would seem to be insubstantial in view of the consequences to the State itself of wholly uneducated persons living indefinitely within its borders. By contrast, access to the public schools is made available to the children of lawful residents without regard to the temporary [457 U.S. 202, 240] nature of their residency in the particular Texas school district. The Court of Appeals and the District Courts that addressed these cases concluded that the classification could not satisfy even the bare requirements of rationality. "

The decision held the day with a slim majority of five to four. But it has not been overturned. It is still the law.

Public schools do not police immigration. Immigration is a matter for concern for the U.S. Department of Homeland Security (U.S. Citizenship and Immigration Service), not for the CNMI Public School System.

Nor will public schools be reporting the immigration status of its students to the federal authorities. Student records are, for nearly all purposes, confidential. In most instances, the PSS should not even have the information about a student's immigration status.

Plyler vs. Doe created issues that are still being discussed, as shown in this 2007 University of Berkeley seminar. Issues about what happens to undocumented students after graduation; issues about English-proficiency classes; and continuing debate about the use of resources for non-citizens.

One interesting aspect of the debate is a finding that the percentage of illegal alien children in public schools today is about the same as it was when Plyler vs. Doe was decided. Another is the finding that the majority of teachers and administrators do not want to be concerned about a student's immigration status. Both of these findings (from the Berkeley seminar) support the continuing viability of Plyler vs. Doe.

And the courts continue to uphold the impact of Plyler vs. Doe. See, e.g. League of United Latin American Citizens vs. Wilson, 908 F. Supp. 755, 774, 785-786 (C.D. Cal. 1997).

Plyler vs. Doe was determined on the basis of the U.S. equal protection clause. That law applies in the CNMI. So foreign students, whether temporarily present with legal status, or residing indefinitely/permanently here with or without documented status, are entitled to free, appropriate, public education in the CNMI elementary, middle/junior, and high schools.

Undoubtedly as the U.S. continues to consider issues of immigration reform, the on-going vitality of Plyler vs. Doe will be considered; it highlights some of the core issues around immigration.

The change of CNMI's immigration from CNMI control to U.S. control does not change the equal protection clause of the U.S. Constitution; it does not change the rights of a foreign child to a free public education.

Family-Based Immigration Workshop

Karidat and MLSC co-sponsored a two-day workshop May 5 and May 6, 2009 about US immigration, focusing on "family-based" issues.

Lauri Ogumoro of Karidat, and Juanette Sablan and Polly Anne Sablan of MLSC man the registration table.

Evangeline Abriel from Santa Clara University School of Law and Peggy Gleason from the Catholic Legal Immigration Network presented detailed information on US immigration law about immigrant and non-immigrant admissions for immediate relatives and other other family members, including immediate relative petitions, petitions under the preference/quota system, self-petitioning for victims of domestic violence, and visa procedures for victims of crime and human trafficking.

Peggy Gleason and Evangeline Abriel.

The workshop, hosted at PIC's Napu Room, included an e-file of information and a hard-copy folder with sample problems and a copy of the power point presentation.

Approximately 70 people attended, including attorneys, social workers, legislators, law enforcement officers, and interested members from the business and professional community.

On Tuesday, David Gulick from DHS also gave a short presentation specifically related to federalization of the CNMI's immigration.

David Gulick, DHS

The Marianas Variety gave two reports on the training--one referencing the promise of DHS to promulgate two regulations under the CNRA related to federalizing CNMI's immigration, and one focusing more on the impact of change on families in the CNMI.

The level of attendance at the conference, the diversity of the participants, and the press coverage are all good indicators that there is great interest about the up-coming transition to federal immigration here.

Attorneys Rob Torres and Mark Hanson goof off.

USCIS to Conduct “Green Card” Interviews in Saipan.

Green card applicants may now have their interviews handled in the CNMI at the new Application Support Center in Saipan. Before, an applicant would need to fly to Guam for the interview. Now, both the interview and biometrics (fingerprinting and other ID gathering) can be done here. This will save many aliens the expense of two roundtrip tickets to Guam (one for the visa applicant and the other for the sponsor/petitioner). The savings are crucial, given the high filing fees and other expenses, such as the medical exam.

Some of our clients who have had green card applications pending for quite a while are now having their interviews rescheduled from Guam to Saipan. I have not tried to schedule an appointment online yet, but apparently this is possible. Here is the official press release from USCIS for more details:

USCIS to Conduct “Green Card” Interviews in Saipan
CNMI Customers Will Save Time and Money

SAIPAN, CNMI —U.S. Citizenship and Immigration Services (USCIS) announced today it will begin conducting "green card" interviews on March 23 at its new Application Support Center (ASC) in the Commonwealth of the Northern Marianas Islands (CNMI) .

Applicants from Tinian, Rota and Saipan seeking U.S. Lawful Permanent Residence or "green cards" will be now be scheduled for interviews at USCIS' new facility in Garapan.

“We are very pleased that legal counsel gave us the go-ahead to provide this essential service to our CNMI customers,” said USCIS District Director David Gulick, who is based in Honolulu. "It makes sense for us to do as much as we can to serve the community through this local office. Now customers will save the time, effort and expense of traveling to Guam for their interviews.”

In addition to the traditional ASC biometric services such as fingerprinting, the Saipan office already offers expanded services including general immigration information and naturalization interviews. Now “green card” interviews will be added to those services.

Customers interested in speaking to an Immigration Services Officer should make an “InfoPass” appointment online at www.uscis.gov. Customers with appointments will receive priority.

People can call the toll-free USCIS customer service line at (800) 375-5283. In addition, the most current information about federal immigration in relation to the CNMI can be accessed via the USCIS Press Room at www.uscis.gov.

USCIS is the agency within the U.S. Department of Homeland Security (DHS) that provides immigration benefits.

Currently U.S. immigration law only applies to immediate relatives of U.S. Citizens as defined within the Immigration and Nationality Act (INA). U.S. immigration law in general will be applied to the CNMI, with the Transition Period currently scheduled to begin on June 1, 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.

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.

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.

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”.

TWA's and Tax Season

Many foreign workers in the CNMI are concerned about preserving some legal status during the transition from CNMI-controlled immigration to the federalized, U.S. immigration system. No one is exactly sure how long the implementation of the U.S. immigration will take, but the plan does have delays built into it, and it takes time to write and adopt regulations.

In the meantime, more and more foreign workers are facing loss of status.

2007 Unity March, photo by W. L. Doromal

The following information is my understanding based on a conversation with private attorney Alexis Fallon. As noted in our sidebar, nothing in this column is intended to be legal advice. With that said, this might be worth checking out for those foreign workers who have lost or face losing their legal status before the full benefits of U.S. immigration are realized.

1. TWA's, that is temporary work authorizations, are available to those who have legitimate pending legal cases. A manufactured claim isn't going to work.

But you may already be part of one of two on-going class actions, and thus eligible for a TWA, even if you have already lost employment or other basis for legal status. Both legal cases relate to taxes, the bane of most workers. This time, the tax system, and its problems, may help and give you foreign workers a right to a TWA.

2. Basically, in the CNMI we have chapter 2 tax (which is a local tax) and chapter 7 tax (which is our federal tax). We get rebates on chapter 2.

Did you earn more than $5,800 in any year from about 2002 on? If the answer is yes, did you file a tax return? If yes, you should have gotten some rebate, even a small one. Did the CNMI pay it to you on time. If the answer to this last question is no (either you didn't get it, or you didn't get it on time), you are part of one of the class action cases pending in court right now. You may be eligible for a TWA.

3. In the CNMI, permanent residents and U.S. citizens pay FICA, which is tax for Social Security and Medicare. Foreign workers generally are exempt from FICA.

Did you have FICA (sometimes noted as social security or medicare) deducted from your check? If you did, you are part of a different class action case pending in court right now. You may be eligible for a TWA.

How do you claim the benefit of being part of these class actions? One way (not necessarily the only way) is to contact the attorney, Alexis Fallon, who is handling them. Even if you are part of the class, she charges $150 to help get the TWA.

The benefit of having a legal status as the CNMI transitions from local control to federal immigration is that you have a better chance of securing some long-term U.S. benefit (like residency). Right now, there are no guarantees and no permanent residency built into the law. But there is a requirement for a study during the transition. And hope.

As always, if you have questions about anything you read on this blog, or have legal issues of your own, consult an attorney.