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.

21. Examining the Law about the Proposed Marianas Trench Marine Monument

One of the current issues of interest in the CNMI relates to the possibility of a new national marine monument. Presently under consideration by the President of the United States is a proposal to designate the Exclusive Economic Zone (EEZ) around the three CNMI islands of Uracas (a/k/a Farallon de Pajaros), Maug, and Asuncion as a national marine monument.

Here is some information about the law that relates to this issue.

The CNMI CONSTITUTION, Article XIV: The CNMI Constitution requires strong protection for the environment. It specifically provides that the three northernmost islands of Uracas (a/k/a Farallon de Pajaros), Maug, and Asuncion be protected and maintained as uninhabited islands, to preserve the natural environment there.

Section 2: Uninhabited Islands. ... The islands of Maug, Uracas, Asuncion, ... and other islands specified by law shall be maintained as uninhabited places and used only for the preservation and protection of natural resources, including but not limited to bird, wildlife and plant species.

The CNMI Constitutional protection, however, does not extend to the waters and submerged lands around these islands.

Fish at Maug.
Photo by OceanBen, NOAA.



CNMI vs. UNITED STATES OF AMERICA: The CNMI claimed ownership of the submerged lands around all of the CNMI islands. It sought to quiet title to those submerged lands in a lawsuit it filed against the U.S. However, both the U.S. District Court and the Ninth Circuit Court of Appeals denied the CNMI's claim, and held that when the CNMI negotiated the Covenant, it failed to make any claim for the submerged lands; at that time, the doctrine of U.S. "paramountcy"--meaning U.S. control of submerged lands--was well established law. The Court held that the submerged lands adjacent to the CNMI belong to the U.S.

In essence this means that the U.S. controls all of the submerged lands in the Exclusive Economic Zone around the CNMI, from the high water mark on each island out to 200 miles.


The ANTIQUITIES ACT of 1906: This federal law allows the President of the U.S. to designate

historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments...

Any site under U.S. federal control that has historic, cultural, or scientific significance can be designated a "monument" and that designation provides protection from excavation, injury, and destruction. Removal of antiquities can only be done by permit, and must be collected in a reputable museum or educational institution.

The Antiquities Act has been used more than 100 times by Presidents to designate monuments. Although the Antiquities Act speaks of "land," it apparently applies to submerged lands and the waters above them: the most recent designation was the creation of the monument in the northwestern Hawaiian Islands-- the Papahanaumokuakea Monument.

Because the land must already be owned or controlled by the U.S. the Antiquities Act does not require approval or consent from inhabitants of the state or territory where the monument is located. However, it has been the practice that the President examines whether there is local support for the designation of a monument; this is what President Bush did before designation a monument in the northwestern Hawaiian Islands.

There have been no public hearings and there will be no vote on the proposal for a Marianas Trench national marine monument. The only way for the President to gauge public sentiment is through public comment, either in the newspapers and other media, or through letters and e-mails to the White House.

Corals at Maug.
Photo from Oregon State University.

In the CNMI, most elected officials have gone on record and notified the President of their opposition to designation of the proposed Marianas Trench national marine monument. However, a great many individuals and businesses have gone on record or notified the President of their support for the designation of the proposed Marianas Trench national marine monument.

If you want to be heard on the issue, you can sign a petition in favor of the monument (contact Angelo Villagomez). Or you can sign a petition against the monument. You can also write a letter to either or both CNMI Newspapers, the Marianas Variety and the Saipan Tribune. Or you can write directly to President George W. Bush at The White House, 1600 Pennsylvania Ave, Washington, D.C. 20500, or send an e-mail to comments@whitehouse.gov (text format only).

TIMEFRAME: There is no law that limits or defines the time frame for comments or for designation of the Marianas Trench national marine monument. It appears, however, that this is a proposal of the Bush Administration staff, and there is no indication that the proposal would be taken up by either candidate for President (McCain or Obama) in the next administration.

Rules and Regulations: It appears that if a Monument is designated, then rules and regulations are adopted. These would likely require co-management of the national marine monument, between the CNMI and the U.S., as was done in the Hawaii monument. It appears that co-management agreements are negotiated between the governments, but not subject to any particular process.

We could likely expect to see rules and regulations published in the Federal Register (and then the Code of Federal Regulations). The regulations for the Papahanaumokuakea Monument suggest that there would not likely be a comment period, except for certain limited topics; EDIT--the recent information from University of Hawaii, William S. Richardson School of Law Professor Jon Van Dyke indicates that there is a short time period (75 days in the case of the Hawaiian monument) for public input after the President's designation.

The designation of monument status guarantees the most conservation protection available under law, and that protection is then further detailed in the regulations, worked out by the co-managers with public involvement.

20. MLSC's Budget Woes

If you're interested, you can read about our situation here in the Saipan Tribune.

Applying for a Family-Based Green Card in the CNMI: Fees, Costs, Time

Family-Based Green Cards in the CNMI
Generally, aliens can be present in the US with either non-immigrant (temporary) status or a green card (permanent resident status). Permanent residency is primarily obtained through a family member or employment. Many aliens in the CNMI have gotten their green card through a sponsoring immediate relative, like a U.S. citizen spouse. This is because the Covenant, despite broadly excluding the CNMI from federal immigration law, has always recognized the CNMI to be a part of the US when considering aliens who are immediate relatives of US citizens living here. With the enactment of Public Law 110-229 on May 8, 2008, the Covenant will be amended to recognize the CNMI as part of the US for all immigration purposes. As mentioned in our previous post, this will have a direct impact on a variety of aliens who do not have federal immigration status, including those with CNMI IR status but who do not have green cards.

This post covers some of the practical issues with applying for a family-based green card. For an overview of the process and eligibility requirements, go to the United States Citizenship and Immigration Services (USCIS) webpage here.

Fees & Costs
USCIS fees associated with a green card application can be quite expensive. In July 2007, the USCIS revised its fee schedule, which resulted in many filing fees doubling and even tripling. USCIS does allow for some fee waivers based on an inability to pay. However, proving an inability to pay might run you the risk of being denied admissibility based on being considered a public charge, which means being dependent on public benefits like Medicaid or food stamps. Being a public charge is one ground for a green card denial.

Besides the USCIS fees, there are at least two substantial costs: the medical exam and the airfare to Guam for the green card interview. An I-693 medical report form needs to be completed by an authorized health care provider. The examination required for this report is different from the check-up for the CNMI work permit. There are at least two authorized health care providers for the I-693 medical exam in the CNMI: Pacific Medical Center and Marianas Medical Center. Both are located in Saipan. Contact the health provider directly to verify the current fee range.

Another cost may be for an attorney if you choose to have one assist you with the process.

The following table breaks down what might come out of your pocket for a green card:

Processing Time
It can take several months or up to a year to process a green card application. You can track general processing times for each USCIS center/office on the USCIS website here. The time it takes depends in large part on the backload of applications at any given USCIS center/office, and whether there are any special issues presented by an applicant’s situation. Before, the average range of time to process a green card was 6-8 months. USCIS is now saying to expect a much longer time frame. This is because of the surge in applications that were submitted last year to avoid the scheduled fee increases.

It usually has taken a month or so to receive the USCIS notice of receipt of the initial application package. If there are no initial problems with the application, USCIS next schedules a green card interview in Guam. This may happen around 2-3 months later. Again, this could take longer now due to an unusually large backload of applications. You and your sponsor will need to attend the interview together. USCIS does not cover the airfare to Guam. After the interview, USCIS may have additional requests for evidence. If an approval is granted, you will receive a notice and your permanent resident card by mail.



Top image entitled “Liberty for immigrants' rights” by philocrites . Middle image entitled “Got this in the mail today” by lacylouwho . Bottom image entitled “Permanent resident card” by nh7a . Top and middle images published under an Attribution NonCommercial Creative Commons license. Bottom image published under an Attribution NonCommercial Share Alike Creative Commons license.

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.