The Northern Mariana Islands Department of Homeland Security Implementation of US Immigration Laws

The 2008 Consolidated Natural Resources Act generally established federal control of Northern Mariana Islands immigration beginning in 2009, including the Immigration and Nationality Act of 1952 with a transitional period for foreign workers and investors. Provisions were made via the 2011 NMI-Only Transitional Worker program and the Northern Mariana Islands Economic Expansion Act passed on Aug. 22, 2017 to workers that met certain requirements for work, investment and parole — with limits as established by the Department of Homeland Security as well as the current and future numerical limits for permits specified in the Northern Mariana Islands U.S. Workforce Act of 2018.

A Jan. 15 proposed bill H.R. 560 includes several provisions, among others, that would provide NMI resident status to eligible individuals, such as certain length of residency.

The following is taken from the U.S. Government Accountability Office report on the implementation of immigration laws in the NMI and related testimony by David Gootnick, director of International Affairs and Trade, before the Committee on Natural Resources of the House of Representatives. The full report was first published on Feb. 27 and can be found at gao.gov.

DHS implementation of CNRA foreign worker and investor provisions

Foreign worker: CW-1 permits
As figure 1 shows, the number of CW-1 permits approved by the U.S. Citizenship and Immigration Services remained well under the annual numerical limits established by DHS for fiscals 2012 through 2015 and exceeded or neared the annual limits for fiscals 2016 and 2017.

According to USCIS data, most individuals with approved CW-1 permits for fiscal 2015 through fiscal 2018 were born in the Philippines or China. In addition, as Table 1 shows, four times more CW-1 permits were issued to Chinese nationals for fiscals 2016 and 2017 than for fiscal 2015. As reported in 2017, firms involved in building a new casino in Saipan have primarily employed Chinese workers.

About one-third of fiscal 2018 CW-1 permit holders had maintained continuous employment in the NMI since 2015 and could be eligible for NMI resident status under H.R. 560, if they had been admitted every year under CW-1 status and were otherwise eligible. USCIS CW-1 permit data for fiscals 2015 through 2018 show that of the 8,995 foreign workers with CW-1 permits approved by USCIS for fiscal 2018, 2,875 workers (about 32%) had maintained continuous employment in the NMI since fiscal 2015. (Of this group, 2,287 — 80% — were born in the Philippines.) Under H.R. 560, a foreign national who meets additional eligibility requirements, including having resided continuously and lawfully in the NMI from Nov. 28, 2009, through the date of enactment, may be admitted to the NMI under NMI resident status if that individual was admitted to the NMI as a CW-1 worker during fiscal 2015 and during every subsequent fiscal beginning before July 24, 2018. As a result, according to analysis of USCIS data, 2,875 workers could be eligible under H.R. 560 to apply for NMI resident status if they were admitted as CW-1 workers every fiscal until 2018 and met all other eligibility conditions. Table 2 shows the numbers of foreign workers who received CW-1 permits for fiscal 2018 and had maintained continuous employment in the NMI since fiscals 2012 through 2017.

Foreign workers: reduction in CW-1 permit holders and increase in H-2B beneficiaries
USCIS data show a reduction from fiscal 2017 to fiscal 2018 in the number of CW-1 permit holders and a significant increase in the number of H-2B beneficiaries. While the number of approved CW-1 permit holders declined from 12,889 in fiscal 2017 to 8,995 in fiscal 2018, the number of H-2B beneficiaries for those years increased from 0 to 3,058. In addition, our analysis of USCIS data found that the number of CW-1 permit holders for the construction trade declined from 2,981 to 545 — by 82% — from fiscal 2017 to fiscal 2018.

Meanwhile, the number of H-2B beneficiaries for the construction trade in the NMI increased from 0 for fiscal 2017 to 1,801 for fiscal 2018.

In August 2017, Congress amended the CNRA to, among other things, restrict CW-1 permits for workers in construction and extraction occupations (as defined in the U.S. Department of Labor’s Standard Occupational Classification system) by allowing only extensions of CW-1 permits first issued before Oct. 1, 2015. The CNRA allows NMI employers to petition for H-2 visas to bring temporary workers, such as construction workers, to the NMI without counting against the numerical restriction for such visas. According to a senior USCIS official, the new casino employer in Saipan began petitioning in 2018 for foreign workers under the H-2B program instead of petitioning for CW-1 permits for its construction workers. The official noted that Public Law No. 115-53’s restriction on the use of CW-1 permits for construction trade workers may account for the decrease in petitions for CW-1 permit holders and increase in petitions for H-2B beneficiaries from fiscal 2017 to fiscal 2018.

Table 3 shows the numbers of approved CW-1 permit holders and H-2B beneficiaries for the construction trade in fiscals 2016 through 2018.

In October 2016, DHS announced the list of countries whose citizens were eligible to participate in the H-2 program from Jan. 18, 2017, to Jan. 18, 2018. Asian countries on the list included the Philippines, South Korea, Taiwan and Thailand, among others, but did not include China. In January 2019, because of concerns about overstays and human trafficking, DHS removed the Philippines from the list of countries eligible for the H-2B program. NMI government and Chamber of Commerce officials have voiced concerns that the removal of the Philippines from the list will make it difficult to hire construction workers in the aftermath of two recent typhoons.

Investors
USCIS began approving 2-year E-2C status for eligible foreign long-term investors and their dependents in the territory in fiscal 2011. According to USCIS, as of Feb. 5, 2019, 56 investors who had previously resided in the NMI as investors under NMI immigration law were residing in the NMI with E-2C status. Under H.R. 560, foreign nationals who otherwise meet additional eligibility requirements may be granted NMI residents status if they resided in the NMI as investors under NMI immigration law and are presently residents under E-2C status. As a result, under H.R. 560, these 56 investors could be eligible to apply for NMI resident status if they met all other eligibility conditions.

DHS implementation of parole authority under the INA

According to USCIS testimony, after the CNRA was passed in 2008, USCIS implemented DHS’s discretionary parole authority by making parole available to groups of individuals residing in the NMI who would not be covered by INA classifications and for whom the classifications established in the CNRA did not appear to be appropriate. These individuals previously had immigration status under NMI immigration law that allowed them to potentially remain in the NMI indefinitely, according to USCIS. Without USCIS action, these individuals would have been deemed unlawfully present in the United States, according to USCIS documents.

To provide such individuals with a means to remain temporarily in the NMI during the transition period, USCIS announced several discretionary parole policies to cover the following groups, among others, which were potentially eligible for parole:

NMI permanent residents, immediate relatives of NMI permanent residents, spouses and children of deceased NMI permanent residents, and immediate relatives of citizens of the freely associated states (November 2009)
Certain in-home foreign national caregivers of NMI residents (October 2011)
Immediate relatives of U.S. citizens, especially parents of U.S. citizen children, and stateless individuals in the NMI46 (November 2011)

In response to Executive Order 13767, on Dec. 27, 2018, USCIS announced the termination of parole for immediate relatives of U.S. citizens and certain stateless individuals; NMI permanent residents, immediate relatives of NMI permanent residents and immediate relatives of citizens of the freely associated states; and certain in-home foreign worker caregivers of NMI residents. To provide an opportunity for individuals in these categories to prepare to depart or seek a different lawful status, USCIS announced that the affected individuals were allowed to remain in the NMI with a transitional parole status for up to 180 days, not to extend beyond June 29, 2019. According to a senior USCIS official, from Dec. 2, 2016 through Dec. 14, 2018, USCIS had granted parole until Dec. 31, 2018, to 1,039 individuals in the terminated parole categories. Under H.R. 560, some of these individuals could be eligible to apply for NMI resident status if they met all other eligibility conditions.

Editor’s note: Meetings on Feb. 26 and April 2 — Section 902 Consultations, as formally requested by Gov. Ralph DLG. Torres in October 2018 as part of the covenant between the United States and the NMI to consider issues reflecting the relationship — have opened further discussions toward a resolution that addresses the NMI’s unique needs and challenges.