[Senate Report 106-204]
[From the U.S. Government Publishing Office]
Calendar No. 360
106th Congress Report
SENATE
1st Session 106-204
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NORTHERN MARIANA ISLANDS COVENANT IMPLEMENTATION ACT
_______
November 1, 1999.--Ordered to be printed
_______
Mr. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 1052]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 1052) to implement further the Act
(Public Law 94-241) approving the Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political Union
with the United States of America, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE AND PURPOSE.
(a) This Act may be cited as the ``Northern Mariana Islands
Covenant Implementation Act''.
(b) Statement of Purpose. In recognition of the need to ensure
uniform adherence to long-standing fundamental immigration policies of
the United States, it is the intention of Congress in enacting this
legislation:
(1) to ensure effective immigration control by extending the
Immigration and Nationality Act, as amended (8 U.S.C. 1101) et
seq.), in full to the Commonwealth of the Northern Mariana
Islands, with special provisions to allow for the orderly
phasing-out of the non-resident contract worker program of the
Commonwealth of the Northern Mariana Islands, and the orderly
phasing-in of Federal responsibilities over immigration in the
Commonwealth of the Northern Mariana Islands;
(2) to minimize, to the greatest extent possible, potential
adverse effects this orderly phase-out might have on the
economy of the Commonwealth of the Northern Mariana Islands by:
(A) encouraging diversification and growth of the
economy of the Commonwealth of the Northern Mariana
Islands consistent with fundamental values underlying
Federal immigration policy;
(B) recognizing local self-government, as provided
for in the Covenant to Establish a Commonwealth of the
Northern Mariana Islands in Political Union with the
United States of America through consultation with the
Governor and other elected officials of the government
of the Commonwealth of the Northern Mariana Islands by
federal agencies and by considering the views and
recommendations of such officials in the implementation
and enforcement of federal law by federal agencies;
(C) assisting the Commonwealth of the Northern
Mariana Islands to achieve a progressively higher
standard of living for its citizens through the
provision of technical and other assistance;
(D) providing opportunities for persons authorized to
work in the United States, including lawfully
admissible freely associated state citizen labor; and
(E) ensuring the ability of the locally elected
officials of the Commonwealth of the Northern Mariana
Islands to make fundamental policy decisions regarding
the direction and pace of the economic development and
growth of the Commonwealth of the Northern Mariana
Islands, consistent with the fundamental national
values underlying Federal immigration policy.
SEC. 2. IMMIGRATION REFORM FOR THE COMMONWEALTH OF THE NORTHERN MARIANA
ISLANDS.
(a) Amendments to Act Approving the Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political Union With
the United States of America.--Public Law 94-241 (90 Stat. 263), as
amended, is further amended by adding at the end thereof the following:
``SEC. 6. IMMIGRATION AND TRANSITION.
``(a) Application of the Immigration and Nationality Act and
Establishment of a Transition Program.--Effective on the first day of
the first full month commencing one year after the date of enactment of
the Northern Mariana Islands Covenant Implementation Act (hereafter the
``transition program effective date''), the provisions of the
Immigration and Nationality Act, as amended (8 U.S.C. 1101 et seq.)
shall apply to the Commonwealth of the Northern Mariana Islands:
Provided, That there shall be a transition period ending December 31,
2009 (except for subsection (d)(2)(I)) following the transition program
effective date, during which the Attorney General of the United States
(hereafter ``Attorney General''), in consultation with the United
States Secretaries of State, Labor, and the Interior, shall establish,
administer, and enforce a transition program for immigration to the
Commonwealth of the Northern Mariana Islands provided in subsections
(b), (c), (d), (e), (f), (g) and (j) of this section (hereafter the
``transition program''). The transition program shall be implemented
pursuant to regulations to be promulgated as appropriate by each agency
having responsibilities under the transition program.
``(b) Exemption from Numerical Limitations for H-2B Temporary
Workers.--An alien, if otherwise qualified, may seek admission to the
Commonwealth of the Northern Mariana Islands as a temporary worker
under section 101(a)(15)(H)(ii)(B) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(15)(H)(ii)(B)) without regard to the numerical
limitations set forth in section 214(g) of such Act (8 U.S.C. 1184(g)).
``(c) Temporary Alien Workers.--The transition program shall
conform to the following requirements with respect to temporary alien
workers who would otherwise not be eligible for nonimmigrant
classification under the Immigration and Nationality Act:
``(1) Aliens admitted under this subsection shall be treated
as nonimmigrants under section 101(a)(15) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)), including the
ability to apply, if otherwise eligible, for a change of
nonimmigrant classification under section 248 of such Act (8
U.S.C. 1258), or adjustment of status, if eligible therefor,
under this section and section 245 of such Act (8 U.S.C. 1255).
``(2)(A) The United States Secretary of Labor shall
establish, administer, and enforce a system for allocating and
determining the number, terms, and conditions of permits to be
issued to prospective employers for each temporary alien worker
who would not otherwise be eligible for admission under the
Immigration and Nationality Act. This system shall provide for
a reduction in the allocation of permits for such workers on an
annual basis, to zero, over a period not to extend beyond
December 31, 2009 and shall take into account the number of
petitions granted under subsection (j). In no event shall a
permit be valid beyond the expiration of the transition period.
This system may be based on any reasonable method and criteria
determined by the United States Secretary of Labor to promote
the maximum use of, and to prevent adverse effects on wages and
working conditions of, persons authorized to work in the United
States, including lawfully admissible freely associated state
citizen labor, taking into consideration the objective of
providing as smooth a transition as possible to the full
application of federal laws.
``(B) The United States Secretary of Labor is authorized to
establish and collect appropriate user fees for the purpose of
this section. Amounts collected pursuant to this section shall
be deposited in a special fund to the Treasury. Such amounts
shall be available, to the extent and in the amounts as
provided in advance in appropriations acts, for the purposes of
administering this section. Such amounts are authorized to be
appropriated to remain available until expended.
``(3) The Attorney General shall set the conditions for
admission of nonimmigrant temporary alien workers under the
transition program, and the United States Secretary of State
shall authorize the issuance of nonimmigrant visas for aliens
to engage in employment only as authorized in this subsection:
Provided, That such visas shall no be valid for admission to
the United States, as defined in section 101(a)(38) of the
Immigration and Nationality Act (8 U.S.C. 1101 (a)(38)), except
the Commonwealth of the Northern Mariana Islands. An alien
admitted to the Commonwealth of the Northern Mariana Islands on
the basis of such a nonimmigrant visa shall be permitted to
engage in employment only as authorized pursuant to the
transition program. No alien shall be granted nonimmigrant
classification or a visa under this subsection unless the
permit requirements established under paragraph (2) have been
met.
``(4) An alien admitted as a nonimmigrant pursuant to this
subsection shall be permitted to transfer between employers in
the Commonwealth of the Northern Mariana Islands during the
period of such alien's authorized stay therein, without advance
permission of the employee's current or prior employer, to the
extent that such transfer is authorized by the Attorney General
in accordance with criteria established by the Attorney General
and the United States Secretary of Labor.
``(d) Immigrants.--With the exception of immediate relatives (as
defined in section 201(b)(2) of the Immigration and Nationality Act (8
U.S.C. 1151(b)(2)) and persons granted an immigrant visa as provided in
paragraphs (1) and (2) of this subsection, no alien shall be granted
initial admission as a lawful permanent resident of the United States
at a port-of-entry in the Commonwealth of the Northern Mariana Islands
``(1) Family-Sponsored Immigrant Visas.--For any fiscal year
during which the transition program will be in effect, the
Attorney General, after consultation with the governor and the
leadership of the Legislature of the Commonwealth of the
Northern Mariana Islands, and in consultation with appropriate
federal agencies, may establish a specific number of additional
initial admissions as a family-sponsored immigrant at a port-
of-entry in the Commonwealth of the Northern Mariana Islands,
or at a port-of-entry in Guam for the purpose of immigrating to
the Commonwealth of the Northern Mariana Islands, pursuant to
sections 202 and 203(a) of the Immigration and Nationality Act
(8 U.S.C. 1152 and 1153(a)).
``(2) Employment-Based Immigrant Visas.--
``(A) If the Attorney General, after consultation
with the United States Secretary of Labor and the
governor and the leadership of the Legislature of the
Commonwealth of the Northern Mariana Islands, finds
that exceptional circumstances exist with respect to
the inability of employers in the Commonwealth of the
Northern Mariana Islands to obtain sufficient work-
authorized labor, the Attorney General may establish a
specific number of employment-based immigrant visas to
be made available during the following fiscal year
under section 203(b) of the Immigration and Nationality
Act, (8 U.S.C. 1153(b)). The labor certification
requirements of sections 212(a)(5) of the Immigration
and Nationality Act, as amended (8 U.S.C. 1182(a)(5))
shall not apply to an alien seeking immigration
benefits under this subsection.
``(B) Upon notification by the Attorney General that
a number has been established pursuant to subparagraph
(A), the United States Secretary of State may allocate
up to that number of visas without regard to the
numerical limitations set forth in sections 202 and
203(b)(3)(B) of the Immigration and Nationality Act (8
U.S.C. 1152 and 1153(b)(3)(B)). Visa numbers allocated
under this subparagraph shall be allocated first from
the number of visas available under section 203(b)(3)
of such Act (8 U.S.C. 1153(b)(3)) or, if such visa
numbers are not available, from the number of visas
available under section 203(b)(5) of such Act (8 U.S.C.
1153(b)(5).
``(C) Persons granted employment-based immigrant
visas under the transition program may be admitted
initially at a port-of-entry in the Commonwealth of the
Northern Mariana Islands, or at a port of entry in Guam
for the purpose of immigrating to the Commonwealth of
the Northern Mariana Islands, as lawfully permanent
residents of the United States. Persons who would
otherwise be eligible for lawful permanent residence
under the transition program, and who would otherwise
be eligible for an adjustment of status, may have their
status adjusted within the Commonwealth of the Northern
Mariana Islands to that of an alien lawfully admitted
for permanent residence.
``(D) Any immigrant visa issued pursuant to this
paragraph shall be valid only for application for
initial admission to the Commonwealth of the Northern
Mariana Islands. The admission of an alien pursuant to
such an immigrant visa shall be an admission for lawful
permanent residence and employment only in the
Commonwealth of the Northern Mariana Islands during the
first five years after such admission. Such admission
shall not authorize residence or employment in any
other part of the United States during such five-year
period. An alien admitted for permanent residence
pursuant to this paragraph shall be issued appropriate
documentation identifying the person as having been
admitted pursuant to the terms and conditions of this
transition program, and shall be required to comply
with a system for the registration and reporting of
aliens admitted for permanent residence under the
transition program, to be established by the Attorney
General, by regulation, consistent with the Attorney
General's authority under chapter 7 of Title II of the
Immigration and Nationality Act (8 U.S.C. 1301-1306).
``(E) Nothing in this paragraph shall preclude an
alien who has obtained lawful permanent resident status
pursuant to this paragraph from applying, if otherwise
eligible, under this section and under the Immigration
and Nationality Act for an immigrant visa or admission
as a lawful permanent resident under the Immigration
and Nationality Act.
``(F) Any alien admitted under this subsection, who
violates the provisions of this paragraph, or who is
found removable or inadmissible under the section
237(a) 8 U.S.C. 1227(a), or paragraphs (1), (2), (3),
(4)(A), (4)(B), (6), (7), (8), (9) or (10) of section
212(a) (8 U.S.C. 1182(a)), shall be removed from the
United States pursuant to sections 235, 238, 239, 240,
or 241 of the Immigration and Nationality Act, as
appropriate (8 U.S.C. 1225, 1228, 1229, 1230, and
1231).
``(G) The Attorney General may establish by
regulation a procedure by which an alien who has
obtained lawful permanent resident status pursuant to
this paragraph may apply for a waiver of the limiting
terms and conditions of such status. The Attorney
General may grant the application for waiver, in the
discretion of the Attorney General, if--
``(i) the alien is not in removal
proceedings;
``(ii) the alien has been a person of good
moral character for the preceding five years;
``(iii) the alien has not violated the terms
and conditions of the alien's permanent
resident status; and
``(iv) the alien would suffer exceptional and
extremely unusual hardship were such limiting
terms and conditions not waived.
``(H) The limiting terms and conditions of an alien's
permanent residence set forth in this paragraph shall
expire at the end of five years after the alien's
admission to the Commonwealth of the Northern Mariana
Islands as a permanent resident. Following the
expiration of such limiting terms and conditions, the
permanent resident alien may engage in any lawful
activity, including employment, anywhere in the United
States. Such an alien, if otherwise eligible for
naturalization, may count the five-year period in the
Commonwealth of the Northern Mariana Islands toward
time in the United States for purposes of meeting the
residence requirement of Title III of the Immigration
and Nationality Act.
``(I) Special provision to ensure adequate employment
in the tourism industry after the transition period
ends.--
``(i) During 2008, and in 2014 if a five year
extension was granted, the Attorney General and
the United States Secretary of Labor shall
consult with the Governor of the Commonwealth
of the Northern Mariana Islands and tourism
business in the Commonwealth of the Northern
Mariana Islands to ascertain the current and
future labor needs of the tourism industry in
the Commonwealth of the Northern Mariana
Islands, and to determine whether a five-year
extension of the provisions of this paragraph
(d)(2) would be necessary to ensure an adequate
number of workers for legitimate businesses in
the tourism industry. For the purpose of this
section, a business shall not be considered
legitimate if it engages directly or indirectly
in prostitution or any activity that is illegal
under federal or local law. The determination
of whether a business is legitimate and whether
it is sufficiently related to the tourism
industry shall be made by the Attorney General
in his sole discretion and shall not be
reviewable. If the Attorney General after
consultation with the United States Secretary
of Labor determines, in the Attorney General's
sole and unreviewable discretion, that such an
extension is necessary to ensure an adequate
number of workers for legitimate businesses in
the tourism industry, the Attorney General
shall provide notice by publication in the
Federal Register that the provisions of this
paragraph will be extended for a five-year
period with respect to the tourism industry
only. The Attorney General may authorize one
further extension of this paragraph with
respect to the tourism industry in the
Commonwealth of the Northern Mariana Islands
if, after the Attorney General consults with
the United States Secretary of Labor and the
Governor of the Commonwealth of the Northern
Mariana Islands, and local tourism businesses,
the Attorney General determines, in the
Attorney General's sole discretion, that a
further extension is required to ensure an
adequate number of workers for legitimate
businesses in the tourism industry in the
Commonwealth of the Northern Mariana Islands.
The determination as to whether a further
extension is required shall not be reviewable.
``(ii) The Attorney General, after
consultation with the Governor of the
Commonwealth of the Northern Mariana Islands
and the United States Secretary of Labor and
the United States Secretary of Commerce, may
extend the provisions of this paragraph (d)(2)
to legitimate businesses in industries outside
the tourism industry for a single five year
period if the Attorney General, in the Attorney
General's sole discretion, concludes that such
extension is necessary to ensure an adequate
number of workers in that industry and that the
industry is important to growth or
diversification of the local economy. The
decision by the Attorney General shall not be
reviewable.
``(iii) In making his determination for the
tourism industry or for industries outside the
tourism industry, the Attorney General shall
take into consideration the extent to which a
training and recruitment program has been
implemented to hire persons authorized to work
in the United States, including lawfully
admissible freely associated state citizen
labor to work in such industry. The
determination by the Attorney General shall not
be reviewable. No additional extension beyond
the initial five year period may be granted for
any industry outside the tourism industry or
for the tourism industry beyond a second
extension. If an extension is granted, the
Attorney General shall submit a report to the
Committee on Energy and Natural Resources of
the Senate and the Committee on Resources of
the House of Representatives setting forth the
reasons for the extension and whether he
believes authority for additional extensions
should be enacted.
``(e) Nonimmigrant Investor Visas.--
``(1) Notwithstanding the treaty requirements in section
101(a)(15)(E) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(E)), the Attorney General may, upon the application
of the alien, classify an alien as a nonimmigrant under section
101(a)(15)(E)(ii) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(E)(ii)) if the alien--
``(A) has been admitted to the Commonwealth of the
Northern Mariana Islands in long-term investor status
under the immigration laws of the Commonwealth of the
Northern Mariana Islands before the transition program
effective date;
``(B) has continuously maintained residence in the
Commonwealth of the Northern Mariana Islands under
long-term investor status;
``(C) is otherwise admissible; and
``(D) maintains the investment or investments that
formed the basis for such long-term investor status.
``(2) Within 180 days after the transition program effective
date, the Attorney General and the United States Secretary of
State shall jointly publish regulations in the Federal Register
to implement this subsection.
``(3) The Attorney General shall treat an alien who meets the
requirements of paragraph (1) as a nonimmigrant under section
(101(a)(15)(E)(ii)) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(E)(ii) until the regulations implementing
this subsection are published.
``(f) Persons Lawfully Admitted Under the Commonwealth of the
Northern Mariana Islands Immigration Law.--
``(1) No alien who is lawfully present in the Commonwealth of
the Northern Mariana Islands pursuant to the immigration laws
of the Commonwealth of the Northern Mariana Islands on the
transition program effective date shall be removed from the
United States on the ground that such alien's presence in the
Commonwealth of the Northern Mariana Islands is in violation of
subparagraph 212(a)(6)(A) of the Immigration and Nationality
Act, as amended, until completion of the period of the alien's
admission under the immigration laws of the Commonwealth of the
Northern Mariana Islands, or the second anniversary of the
transition program effective date, whichever comes fist.
Nothing in this subsection shall be construed to prevent or
limit the removal under subparagraph 212(a)(6)(A) of such an
alien at any time, if the alien entered the Commonwealth of the
Northern Mariana Islands after the date of enactment of the
Northern Mariana Islands Covenant Implementation Act, and the
Attorney General has determined that the Government of the
Commonwealth of the Northern Mariana Islands violated
subsection (f) of such Act.
``(2) Any alien who is lawfully present and authorized to be
employed in the Commonwealth of the Northern Mariana Islands
pursuant to the immigration laws of the Commonwealth of the
Northern Mariana Islands on the transition program effective
date shall be considered authorized by the Attorney General to
be employed in the Commonwealth of the Northern Mariana Islands
until the expiration of the alien's employment authorization
under the immigration laws of the Commonwealth of the Northern
Mariana Islands, or the second anniversary of the transition
program effective date, whichever comes first.
``(g) Travel Restrictions for Certain Applicants for Asylum.--Any
alien admitted to the Commonwealth of the Northern Mariana Islands
pursuant to the immigration laws of the Commonwealth of the Northern
Mariana Islands or pursuant to subsections (c) or (d) of this section
who files an application seeking asylum or withholding of removal in
the United States shall be required to remain in the Commonwealth of
the Northern Mariana Islands during the period of time the application
is being adjudicated or during any appeals filed subsequent to such
adjudication. An applicant for asylum or withholding of removal who,
during the time his application is being adjudicated or during any
appeals filed subsequent to such adjudication, leaves the Commonwealth
of the Northern Mariana Islands of his own will without prior
authorization by the Attorney General thereby abandons the application,
unless the Attorney General, in the exercise of the Attorney General's
sole discretion determines that the unauthorized departure was for
emergency reasons and prior authorization was not practicable.
``(h) Effect on Other Laws.--The provisions of this section and the
Immigration and Nationality Act, as amended by the Northern Mariana
Islands Covenant Implementation Act, shall, on the transition program
effective date, supersede and replace all laws, provisions, or programs
of the Commonwealth of the Northern Mariana Islands relating to the
admission of aliens and the removal of aliens from the Commonwealth of
the Northern Mariana Islands.
``(i) Accrual of Time for Purposes of Section 212(a)(9)(B) of the
Immigration and Nationality Act, as Amended.--No time that an alien is
present in violation of the immigration laws of the Commonwealth of the
Northern Mariana Islands shall by reason of such violation be counted
for purposes of the ground of inadmissibility in section 212(a)(9)(B)
of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(B)).
``(j) One-Time Grandfather Provision for Certain Long-Term
Employees.--
``(1) An alien may be granted an immigrant visa, or have his
or her status adjusted in the Commonwealth of the Northern
Mariana Islands to that of an alien lawfully admitted for
permanent residence, without regard to the numerical
limitations set forth in sections 202 and 203(b) of the
Immigration and Nationality Act, as amended, (8 U.S.C. 1152,
1153(b)) and subject to the limiting terms and conditions of an
alien's permanent residence set forth in paragraphs (C) through
(H) of subsection (d)(2), if:
``(A) the alien is employed directly by an employer
in a business that theAttorney General has determined
is legitimate;
``(B) the employer has filed a petition for
classification of the alien as an employment-based
immigrant with the Attorney General pursuant to section
204 of the Immigration and Nationality Act, as amended,
not later than 180 days following the transition
program effective date;
``(C) the alien has been lawfully present in the
Commonwealth of the Northern Mariana Islands and
authorized to be employed in the Commonwealth of the
Northern Mariana Islands for the five-year period
immediately preceding the filing of the petition;
``(D) the alien has been employed continuously in
that business by the petitioning employer for the 5-
year period immediately preceding the filing of the
petition;
``(E) the alien continues to be employed in that
business by the petitioning employer at the time the
immigrant visa is granted or the alien's status is
adjusted to permanent resident;
``(G) the petitioner's business has a reasonable
expectation of generating sufficient revenue to
continue to employ the alien in that business for the
succeeding five years, and
``(H) the alien is otherwise eligible for admission
to the United States under the provisions of the
Immigration and Nationality Act, as amended (8 U.S.C.
1101, et seq.).
``(2) Visa numbers allocated under this subsection shall be
allocated first from the number of visas available under
paragraph 203(b)(3) of the Immigration and Nationality Act, as
amended (8 U.S.C. 1153(b)(3)), or, if such visa numbers are not
available, from the number of visas available under paragraph
203(b)(5) of such Act (8 U.S.C. 1153(b)(5)).
``(3) The labor certification requirements of section
212(a)(5) of the Immigration and Nationality Act, as amended (8
U.S.C. 1182(a)(5)) shall not apply to an alien seeking
immigration benefits under this subsection.
``(4) The fact that an alien is the beneficiary of an
application for a preference status that was filed with the
Attorney General under section 204 of the Immigration and
Nationality Act, as amended (8 U.S.C. 1154) for the purpose of
obtaining benefits under this subsection, or has otherwise
sought permanent residence pursuant to this subsection, shall
not render the alien ineligible to obtain or maintain the
status of a nonimmigrant under this Act or the Immigration and
Nationality Act, as amended, if the alien is otherwise eligible
for such nonimmigrant status.''.
(b) Conforming Amendments.--(1) Section 101(a) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)) is amended:
(A) in paragraph (36), by deleting ``and the Virgin Islands
of the United States.'' and substituting ``the Virgin Islands
of the United States, and the Commonwealth of the Northern
Mariana Islands.'', and;
(B) in paragraph (38), by deleting ``and the Virgin Islands
of the United States'' and substituting ``the Virgin Islands of
the United States, and the Commonwealth of the Northern Mariana
Islands.''.
(2) Section 212(1) of the Immigration and Nationality Act (8 U.S.C.
1182(1)) is amended--
(A) in paragraph (1)--
(i) by striking ``stay on Guam'', and inserting
``stay on Guam or the Commonwealth of the Northern
Mariana Islands'',
(ii) by inserting ``a total of'' after ``exceed'',
and,
(iii) by striking the words ``after consultation with
the Governor of Guam,'' and inserting ``after
respective consultation with the Governor of Guam or
the Governor of the Commonwealth of the Northern
Mariana Islands,'';
(B) in paragraph (1)(A), by striking ``on Guam'', and
inserting ``on Guam or the Commonwealth of the Northern Mariana
Islands, respectively,'';
(C) in paragraph (2)(A), by striking ``into Guam'', and
inserting ``into Guam or the Commonwealth of the Northern
Mariana Islands, respectively,'';
(D) in paragraph (3), by striking ``Government of Guam'' and
inserting ``Government of Guam or the Government of the
Commonwealth of the Northern Mariana Islands''.
(3) The amendments to the Immigration and Nationality Act made by
this subsection shall take effect on the first day of the first full
month commencing one year after the date of enactment of the Northern
Mariana Islands Covenant Implementation Act.
(c) Technical Assistance Program.--The United States Secretaries of
Interior and Labor, in consultation with the Governor of the
Commonwealth of the Northern Mariana Islands, shall develop a program
of technical assistance, including recruitment and training, toaid
employers in the Commonwealth of the Northern Mariana Islands in
securing employees from among United States authorized labor, including
lawfully admissible freely associated state citizen labor. In addition,
for the first five fiscal years following the fiscal years when this
section is enacted, $500,000 shall be made available from funds
appropriated to the Secretary of the Interior pursuant to Public Law
104-134 for the Federal-CNMI Immigration, Labor and Law Enforcement
Initiative for the following activities:
(1) $200,000 shall be available to reimburse the United
States Secretary of Commerce for providing additional technical
assistance and other support to the Commonwealth of the
Northern Mariana Islands to identify opportunities for and
encourage diversification and growth of the Commonwealth
economy. The United States Secretary of Commerce shall consult
with the Government of the Commonwealth of the Northern Mariana
Islands, local businesses, the United States Secretary of the
Interior, regional banks, and other experts in the local
economy and shall assist in the development and implementation
of a process to identify opportunities for and encourage
diversification and growth of the Commonwealth economy. All
expenditures, other than for the costs of federal personnel,
shall require a non-federal matching contribution of 50 percent
and the United States Secretary of Commerce shall provide a
report on activities to the Committee on Energy and Natural
Resources and the Committee on Appropriations of the Senate and
the Committee on Resources and the Committee on Appropriations
of the House of Representatives by March 1 of each year. The
United States Secretary of Commerce may supplement the funds
provided under this section with other funds and resources
available to him and shall undertake such other activities,
pursuant to existing authorities of the Department, as he
decides will encourage diversification and growth of the
Commonwealth economy. If the United States Secretary of
Commerce concludes that additional workers may be needed to
achieve diversification and growth of the Commonwealth economy,
the Secretary shall promptly notify the Attorney General and
the United States Secretary of Labor and shall also notify the
Committee on Energy and Natural Resources of the Senate and the
Committee on Resources of the House of Representatives of his
conclusion with an explanation of how many workers may be
needed, over what period of time such workers will be needed,
and what efforts are being undertaken to train and actively
recruit and hire persons authorized to work in the United
States, including lawfully admissible freely associated state
citizen labor to work in such businesses.
(2) $300,000 shall be available to reimburse the United
States Secretary of Labor for providing additional technical
and other support to the Northern Mariana Islands to train and
actively recruit and hire persons authorized to work in the
United States, including lawfully admissible freely associated
state citizen labor, to fill employment vacancies in the
Northern Mariana Islands. The United States Secretary of Labor
shall consult with the Governor of the Northern Mariana
Islands, local businesses, the College of the Northern
Marianas, the United States Secretary of the Interior and the
United States Secretary of Commerce and shall assist in the
development and implementation of such a training program. All
expenditures, other than for the costs of federal personnel,
shall require a non-federal matching contribution of 50 percent
and the United States Secretary of Labor shall provide a report
on activities to the Committee on Energy and Natural Resources
and the Committee on Appropriations of the Senate and the
Committee on Resources and the Committee on Appropriations of
the House of Representatives by March 1 of each year. The
United States Secretary of Labor may supplement the funds
provided under this section with other funds and resources
available to him and shall undertake such other activities,
pursuant to existing authorities of the Department, as he
decides will assist in such a training program in the Northern
Mariana Islands.
(d) Department of Justice and Department of Labor Operations.--The
Attorney General and the United States Secretary of Labor are
authorized to establish and maintain Immigration and Naturalization
Service, Executive Office for Immigration Review, and United States
Department of Labor operations in the Northern Mariana Islands for the
purpose of performing their responsibilities under the Immigration and
Nationality Act, as amended, and under the transition program. To the
extent practicable consistent with the satisfactory performance of
their assigned responsibilities under applicable law, the United States
Departments of Justice and Labor shall recruit and hire from among
qualified applicant resident in the Northern Mariana Islands for
staffing such operations.
(e) Report to the Congress.--The President shall report to the
Senate Committee on Energy and Natural Resources, and the House
Committee on Resources, within six months after the fifth anniversary
of the enactment of this Act, evaluating the overall effect of the
transition program and the Immigration and Nationality Act on the
Northern Mariana Islands, and at other times as the President deems
appropriate. The report shall describe what efforts have been
undertaken to diversify and strengthen the local economy, including,
but not limited to, efforts to promote the Commonwealth of the Northern
Mariana Islands as a tourist destination.
(f) Limitation on Number of Alien Workers Prior to Application of
the Immigration and Nationality Act, as Amended, and Establishment of
the Transition Program.--During the period between enactment of this
Act and the effective date of the transition program established under
section 6 of Public Law 94-241, as amended by this Act, the Government
of the Commonwealth of the Northern Mariana Islands shall not permit an
increase in the total number of alien workers who are present in the
Northern Mariana Islands on the date of enactment of this Act.
(g) Appropriations.--There are authorized to be appropriated such
sums as may be necessary to carry out the purposes of this section and
of the Immigration and Nationality Act with respect to the Commonwealth
of the Northern Mariana Islands.
Purpose of the Measure
S. 1052, as introduced, amends the legislation approving
the Covenant for the Commonwealth of the Northern Mariana
Islands (CNMI) to extend Federal immigration laws to the CNMI
if the Attorney General finds either that the CNMI does not
have the institutional capability to administer an effective
system of immigration control or has not demonstrated a genuine
commitment to enforce such a system. The legislation includes a
transition period of not more than ten years with provisions
during that period for issuance of nonimmigrant temporary alien
worker visas and imposition of user fees and permits those
aliens previously admitted under the temporary worker program
of the CNMI to remain for the remainder of their contract or
two years, whichever is less. The legislation contains specific
provisions to ensure access to workers in construction and the
hotel industries. The legislation also prohibits the CNMI from
increasing the number of temporary alien workers between the
date of enactment and the date on which the Attorney General
makes the required findings.
The Committee amendment: (1) extends Federal immigration
law to the Marianas; (2) provides a transition period ending
December 31, 2009: (3) permits the Attorney General to extend
the transition period for legitimate businesses in the tourist
industry for not more than two successive five year period for
legitimate businesses in other industries; (4) provides a one-
time grandfather for individuals who have worked in legitimate
businesses for the past five years; and (5) requires the
Secretary of Commerce to provide technical and financial
assistance to encourage growth and diversification of the local
economy and the Secretary of Labor to provide technical and
financial assistance to recruit, train, and hire local
residents and residents of the freely associated states
(persons authorized to work in the United States).
Background and Need
summary and need
The issue of when and how to extend Federal immigration
laws to the Commonwealth of the Northern Mariana Islands has
been before the Committee since 1973, when the Committee was
consulted on the issue during the negotiations that led to the
Covenant. The Covenant provided that Federal immigration laws
would not apply until after the Trusteeship terminated and
formal U.S. sovereignty was extended over the area. Immigration
and naturalization are an essential aspect of U.S. sovereignty
and immediate extension of those laws upon approval of the
Covenant would have been inconsistent with the legal status of
the Marianas, which would remain a part of the United Nations
Trust Territory of the Pacific Islands until termination of the
Trusteeship.
In addition, there were concerns over how Federal
immigration laws would operate and whether changes to Federal
immigration laws might be needed to protect the islands from
being overrun and to ensure adequate access to workers. At the
time, a study on immigration was underway, and the Committee
noted in its report is expectation that ``[i]t may well be that
these problems will have been solved by the time of the
termination of the Trusteeship Agreement and that the
Immigration and Nationality Act containing adequate protective
provisions can then be introduced to the Northern Marianas
Islands.'' (S. Rept. 94-433, p. 78) At the time of termination
of the Trusteeship for the Commonwealth in 1986, however,
Congress did not take action to extend Federal immigration
laws. A result of that inaction was the development of an
economy based in large part on imported labor using short-them
contracts. Over the years increasing reports of worker abuse
and other problems led Congress in 1994 to earmark funds for
enhanced Federal agency presence, specifically from the
Departments of Justice, Labor, and Treasury, in the
Commonwealth.
While there has been a genuine commitment by the present
governor to deal with worker abuse problems of the past and the
problems associated with the limited local resources and
capabilities in running a full scale immigration system, the
economy of the Commonwealth remains dominated by an alien
workforce who can not participate in the community while
unemployment among U.S. citizen residents remains about 15
percent. Furthermore, the record demonstrates that even with
good faith and an honest commitment, there are substantive and
procedural problems that the local government simply cannot
handle. For example, procedurally, the Commonwealth cannot
replicate the resources of the Federal Government in issuing
visas, screening individuals, and applying a double-check on
persons seeking to enter the United States to prevent the entry
of criminals or others who should be excluded, such as persons
with communicable diseases. The Commonwealth also has problems
tracking individuals. The recent amnesty program produced about
3,000 persons who were on the island illegally.
On a substantive basis, aspects of the Commonwealth
immigration system are also simply inconsistent with federal
policy. Among those is the policy that persons admitted into
the United States to fill permanent jobs do so as immigrants
with the ability to become U.S. citizens. Also, the
Commonwealth cannot enforce federal requirements under
international agreements, such as the treatment of persons
seeking amnesty. As a general matter, federal laws should apply
and be enforced in the territories as in the rest of the United
States with such changes and modifications as are justified to
take into account the individual situation of each of the
territories. That was the Committee expectation when it first
considered the Covenant, as stated in its report to accompany
the Joint Resolution, approving the Covenant. The Commonwealth
is not a foreign country and should not be treated as such.
Federal immigration laws should apply to the Commonwealth but
should be extended in an orderly manner with a commitment by
Federal agencies to mitigate any potential adverse effects and
encourage diversification and growth of the local economy.
background
The Commonwealth of the Northern Marianas Islands is a
three hundred mile archipelago consisting of fourteen islands
stretching north of Guam. The largest inhabited islands are
Saipan, Rota, and Tinian. Magellan landed at Saipan in 1521 and
the area was controlled by Spain until the end of the Spanish-
American War. Guam, the southernmost of the Marianas, was ceded
to the United States following the Spanish-American War and the
balance sold to Germany together with the remainder of
Germany's possessions in the Caroline and Marshall Islands.
Japan seized the area during World War I and became the
mandatory power under a League of Nations Mandate for Germany's
possessions north of the equator on December 17, 1920. By the
1930's Japan had developed major portions of the area and began
to fortify the islands. Guam was invaded by Japanese forces
from Saipan in 1941. The Marianas were secured after heavy
fighting in1994 and the bases on Tinian were used for the
invasion of Okinawa and for raids on Japan, including the nuclear
missions on Hiroshima and Nagaski. In 1947, the Mandated islands were
placed under the United Nations trusteeship system as the Trust
Territory of the Pacific Islands (TTPI) and the United States was
appointed as the Administering Authority. The area was divided into six
administrative districts with the headquarters located in Hawaii and
then in Guam. The TTPI was the only ``strategic'' trusteeship with
review by the Security Council rather than the General Assembly of the
United Nations. The Navy administered the Trusteeship, together with
Guam, until 1951, when administrative jurisdiction was transferred to
the Department of the Interior. The Northern Marianas, however, were
returned to Navy jurisdiction from 1952-1962. In 1963, administrative
headquarters were moved to Saipan.
With the establishment of the Congress of Micronesia in
1965, efforts to reach an agreement on the future political
status of the area began. Attempts to maintain a political
unity within the TTPI were unsuccessful, and each of the
administrative district (Kosrae eventually separated from
Pohnpei District in the Carolines) sought to retain its
separate identity. Four of the districts became the Federated
States of Micronesia, the Marshalls became the Republic of the
Marshall Islands, and Palau became the Republic of Palau, all
sovereign countries in free association with the United States
under Compacts of Free Association. The Marianas had sought
reunification with Guam and United States territorial status
from the beginning of the Trusteeship. Separate negotiations
with the Marianas began in December 1972 and concluded in 1975.
In 1976, Congress approved a Covenant to Establish a
Commonwealth of the Northern Mariana Islands in Political Union
with the United States (PL 94-241). The Covenant had been
approved in a United Nations observed plebiscite in the
Northern Mariana Islands and formed the basis for the
termination of the United Nations Trusteeship with respect to
the Northern Mariana Islands. Termination occurred in 1986 for
the CNMI and for the Republic of the Marshall Islands and the
Federated States of Micronesia. Prior to termination, those
provisions of the Covenant that Authority. Other provisions
(such as the extension of U.S. sovereignty) were not made
applicable. Section 503 of the covenant provides in pertinent
part that:
The following laws of the United States, presently
inapplicable to the Trust Territory of the Pacific
Islands, will not apply to the Northern Mariana Islands
except in the manner and to the extent made applicable
to them by the Congress by law after termination of the
Trusteeship Agreement:
(a) except as otherwise provided in Section 506
[which dealt with certain children born abroad and
immediate relatives], the immigration and
naturalization laws of the United States; * * *
(c) the minimum wage provisions of Section 6, Act of
June 25, 1938, 52 Stat. 1062, as amended.
The Covenant permitted a unique system in the CNMI under
which the local government controlled immigration and minimum
wage levels until Congress decided to extend federal
legislation and also had the benefit of duty and quota free
entry of manufactured goods under the provisions of General
Note 3(a) of the Harmonized Tariff Schedules. Although certain
provisions of the Covenant, such as the provisions on
citizenship, are explicitly made subject to mutual consent,
these provisions can be modified or repealed by the Congress.
The Section by Section analysis of the Committee Report on the
Covenant provides in part:
Section 503.--This section deals with certain laws of
the United States which are not now applicable to the
Northern Mariana Islands and provides that they will
remain inapplicable except in the manner and to the
extent that they are made applicable by specific
legislation enacted after the termination of the
Trusteeship. These laws are:
The Immigration and Naturalization Laws (subsection
(a)). The reason this provision is included is to cope
with the problems which unrestricted immigration may
impose upon small island communities. Congress is aware
of those problems. * * * It may well be that these
problems will have been solved by the time of the
termination of the Trusteeship Agreement and that the
Immigration and Nationality Act containing adequate
protective provisions can then be introduced to the
Northern Mariana Islands. * * *
The same consideration applies to the introduction of
the Minimum Wage Laws. (Subsection (c)). Congress
realizes that the special conditions prevailing in the
various territories require different treatment. * * *
In these circumstances, it would be inappropriate to
introduce the Act to the Northern Mariana Islands
without preliminary studies. There is nothing which
would prevent the Northern Mariana Islands from
enacting their own Minimum Wage Legislation. Moreover,
as set forth in section 502(b), the activities of the
United States and its contractors in the Northern
Mariana Islands will be subject to existing pertinent
Federal Wages and Hours Legislation. (S. Rept. 94-433,
pp. 77-78)
The Committee anticipated that by the termination of the
Trusteeship, the Federal Government would have addressed the
potential problems, and that Federal legislation would then be
extended. The primary need for alien workers was likely to be
in construction, temporary jobs that could be accommodated
under Federal immigration laws. At the time the Covenant was
negotiated, prospects for economic development focused on
tourism and anticipated Department of Defense use of Tinian.
Upon termination of the Trusteeship, the CNMI became a
territory of the United States and its residents became United
States citizens. Although the population of the CNMI was only
15,000 people in 1976 when the Covenant was approved, the
population (as of July 1999) is now estimated at 79,429. The
rapid increase in population coincides with the assumption
ofimmigration control by the CNMI. According to the most recent
statistical survey by the CNMI, 78 percent of the CNMI population were
United States citizens in 1980. That figure had declined to less than
47 percent by 1990 and to 42 percent by 1991. In 1980, total non-U.S.
citizen residents totaled only 3,753 of whom 1,593 were citizens of the
freely associated states and only 2,160 came from outside Micronesia.
Short after the Covenant went into effect, the CNMI began
to experience a growth in tourism and a need for workers in
both the tourist and construction industries. Interest also
began to grow in the possibility of textile production in both
the CNMI and Guam. Initial interest was in production of
sweaters made of cotton, wool and synthetic fibers. The CNMI,
like the other territories except for Puerto Rico, is outside
the U.S. customs territory but can import products manufactured
in the territory duty free provided that the products meet a
certain value added amount under General Note 3(a) of the
Tariff Schedules (then called Headnote 3(a)). The first company
began operation in October, 1983 and within a year was joined
by two other companies. Total employment for the three firms
was 250 of which 100 were local residents. At the time, Guam
had a single firm, Sigallo-Pac, also engaged in sweater
manufacture with 275 workers, all of whom, however, were U.S.
citizens.
Attempts by territories to develop textile or apparel
industries have traditionally met resistance from Stateside
industries. The use of alien labor in the CNMI intensified that
concern, and efforts began in 1984 to sharply cut back or
eliminate the availability of duty free treatment for the
territories. The concerns also complicated Senate consideration
of the Compacts of Free Association in 1985 and led to a delay
of several months in floor consideration when some Members
sought to attach textile legislation to the Compact
legislation. The response from the CNMI was that they would
look to limitations on immigration and increased requirements
for use of local labor.
The labor force (all persons 16+ years including temporary
alien labor) grew from 9,599 in 1980 to 32,522 in 1990.
Manufacturing grew from 1.9 percent of the workforce in 1980 to
21.9 percent in 1990, only slightly behind construction which
goes from 16.8 percent to 22.2 percent in the same time frame.
The construction numbers track a major increase in hotel
construction. At the same time, increases in the local minimum
wage were halted, as the CNMI began to increasingly rely on
imported temporary workers.
The majority of the population resides on Saipan, which is
the economic and government center of the CNMI. The most recent
statistics (March 1999) from the CNMI estimate the population
of Saipan at 71,790. U.S. citizens are estimated at 30,154 of
whom 24,710 are CNMI born. There are 41,636 aliens of whom
about 4,000 are from the freely associated states.
There is also a significant population of illegal aliens
with estimates ranging from 3,000 to as high as 7,000 persons.
The April 1999 CNMI report on the joint Federal-CNMI initiative
on Labor, Immigration, and Law Enforcement noted that a limited
immunity program enacted in September 1998 had resulted in
almost 2,000 illegal aliens registering by March of 1999. The
CNMI relies on its Central Statistics Division to estimate the
illegal alien population at less than 3,000. The 1998 report
from the Administration on the law enforcement initiative
(fourth report) estimated the number of unauthorized aliens at
7,000.
The 1995 census statistics from the Commonwealth lists
total unemployment at 7.1 percent with CNMI born at 14.2
percent and Asia born at 4.5 percent. The draft 1999 second
quarter report from the CNMI Central Statistics Division lists
unemployment among CNMI-born U.S. citizens at 15.3 percent with
nonresident non-citizen unemployment at 3.1 percent. Of the
15,251 U.S. residents above 16 years in the CNMI, 10,438 are in
the labor force with employment of 9,039. The local U.S.
citizen unemployment rate suggests that guest workers are
taking jobs from local residents.
The percentage of non-U.S. citizens in the labor force has
increased from 27.5 percent in 1973 to 37.8 percent in 1980 to
74.9 percent in 1990 with a decline to 73.3 percent in 1995.
Recent statics indicate that non-U.S. citizens represent 77.4
percent of the labor force on Saipan in the first quarter of
1999. The comparable figure for Saipan for 1995 was 74.9
percent. The figures, however, are more striking when the
composition of the public versus private sector is examined.
For the first quarter of 1999, the public sector on Saipan had
a workforce of 2,463 of whom only 9 percent were non-U.S.
citizens. For the private sector on Saipan during the same
period, 84 percent of the workforce were non-U.S. citizens.
While jobs in the garment industry are unattractive to
local residents, local businesses are using the guest worker
program and the willingness of alien workers to work for lower
wages to fill skilled managerial and professional positions
(including plumbers and electricians, as well as accountants)
with foreign workers. For example, the June 14, 1999 Marianas
Variety lists a variety of job offers, including: Plumber--
$3.25/hr; Accountant--$3.05/hr; Carpenter--$3.05/hr; and
Electrician--$4.14/hr.
One result of this situation is that the public sector,
where average wages exceed both the local and Federal minimum
wage, has become a primary employer for local residents. What
job creation exists in the private sector goes to foreign
workers. The ability to obtain skilled foreign workers at low
wages effectively forecloses opportunities for U.S. residents
in both entry and skilled positions. The private sector job
market for recent CNMI graduates is better in Guam than in the
CNMI. Another consequence is that there is little incentive for
specialized or graduate training since companies can readily
obtain experienced workers from foreign countries at wage
levels that are unattractive to CNMI residents. A by-product of
this situation has been increased pressure on the public sector
to expand solely to provide jobs. The average wage rate for the
public sector for the first quarter of 1999 was reported by the
CNMI Department of Commerce as $12.89/hr. For the CNMI, the
lack of private sector jobs for local residents has frustrated
efforts to trim the public sector budget. As the CNMI becomes
more dependent on local revenues to pay the wages of public
sector employees, it also becomes more dependent on a system of
imported labor at the expense of local jobs in the private
sector. This situation was neither intended nor contemplated by
either side in the negotiations that led to the Covenant.
Repeated allegations of violations of applicable federal
laws relating to worker health and safety, concerns with
respect to immigration problems, including the admission of
undesirable aliens, and reports of worker abuse, especially in
the domestic and garment worker sectors, led tothe inclusion of
a $7 million set aside in appropriations in 1994 to the Department of
the Interior to support Federal agency presence in the CNMI. The
Department of the Interior reported to the Committee on April 24, 1995
that:
(1) $3 million would be used by the CNMI for a
computerized immigration identification and tracking
system and for local projects;
(2) $2.2 million would be used by the Department of
Justice to strengthen law enforcement, including the
hiring of an additional FBI agent and Assistant U.S.
Attorney;
(3) $1.6 million would be used by Labor for two
senior investigators as well as training; and
(4) $200,000 would be used by Treasury for assistance
in investigating violations of Federal law with respect
to firearms, organized crime, and counterfeiting.
In addition, the report recommended that Federal law be
enacted to phase in the current CNMI minimum wage rates to the
Federal minimum wage level in 30 cent increments as then
provided by CNMI legislation, end mandatory assistance to the
CNMI when the current agreement was fulfilled, continue annual
support of Federal agencies at a $3 million/year level (which
would include funding for a detention facility that meets
Federal standards), and possible extension of Federal
immigration laws.
During the 104th Congress, the Senate passed S. 638,
legislation supported by the Administration. Concern over the
effectiveness of the CNMI immigration laws and reports of the
entry of organized criminal elements from Japan and China led
the Committee to include a provision to require the
Commonwealth ``to cooperate in the identification and, if
necessary, exclusion or deportation from the Commonwealth of
the Northern Mariana Islands of persons who represent security
or law enforcement risks to the Commonwealth of the Northern
Mariana Islands or the United States.'' (Sec. 4 of S. 638) No
action was taken by the House.
In February, 1996, Members of the Committee visited the
CNMI and met with local and federal officials. In addition, the
Members inspected a garment factory and met with Bangladesh
security guards who had not been paid and who were living in
substandard conditions. As a result of the meetings and
continued expressions of concern over conditions, the Committee
held an oversight hearing on June 26, 1996, to review the
situation in the CNMI. At the hearing, the acting Attorney
General of the Commonwealth requested that the Committee delay
any action on legislation until the Commonwealth completed a
study on minimum wage and promised that the study would be
completed by January. That timing would have enabled the
Committee to revisit the issue in the April-May 1997 period
after the Administration had transmitted its annual report on
the law enforcement initiative. While the CNMI Study was not
finally transmitted until April, the Administration did not
transmit its annual report, which was due in April, until July.
On May 30, 1997, the President wrote the Governor of the
Northern Marianas that he was concerned over activities in the
Commonwealth and had concluded that federal immigration,
naturalization, and minimum wage laws should apply.
Given the reaction that followed the President's letter,
the Chairman of the Committee asked the Administration to
provide a drafting service to the language needed to implement
the recommendations in the annual report and informed the
Governor of the Commonwealth of the request and that the
Committee intended to consider the legislation after the
Commonwealth had an opportunity to review it. The drafting
service was not provided until October 6, 1997 and was
introduced on October 8, 1997, as S. 1275, shortly before the
elections in the CNMI. The Committee deferred hearings so as
not to intrude unnecessarily into local politics and to allow
the CNMI an opportunity to review and comment on the
legislation after the local elections.
The U.S. Commission on Immigration Reform conducted a site
visit to the Northern Marianas in July 1997 and issued a report
which in general supported extension of immigration laws. The
report, however, also raised some concerns with the extension
of U.S. immigration laws. The report found problems in the CNMI
``ranging from bureaucratic inefficiencies to labor abuses to
an unsustainable economic, social and political system that is
antithetical to most American values'' but ``a willingness on
the part of some CNMI officials and business leaders to address
the various problems''.
The Report found that:
--The CNMI Department of Labor and Immigration ``does not
have the capacity, nor is it likely to develop one, to
prescreen applicants for entry prior to their arrival on CNMI
territory.'' This leads to the situation of the Bangladesh
workers who arrive and find there is no work as well as the
entry of those with criminal or other disqualifying records.
Federal law enforcement officials are mentioned as not
providing information to the CNMI due to concerns over security
and corruption.
--The levels of immigration led to dependence on government
employment or benefits for U.S. residents unable to find work
and younger residents having to leave to find work. The Report
also noted that those on welfare could still hire domestics.
--The economy is unsustainable because there will be no
advantage for the garment industry when the multi-fibre
agreement comes into force in 2005. Others also share the view
that the garment industry presence in the CNMI is temporary. In
September 1997, the Bank of Hawaii concluded that the presence
of the garment industry was a result of ``a unique and
temporary comparative economic advantage'' and that the CNMI
should begin to plan for a ``transition to an exclusively
tourism-driven economy''.
--Foreign workers are exploited with retaliation against
protesters, failure of the CNMI government to prosecute,
unreliable bonding companies, exorbitant recruitment fees,
suppression of basic freedoms, and flagrant abuses of household
workers, agricultural workers, and bar girls.
--The CNMI has entered into agreements dealing with trade
and immigration with the Philippines and China over U.S. State
Department objections.
--The CNMI has no asylum policy or procedure placing the
United States in violation of international obligations.
--The temporary guest worker for permanent jobs creates
major policy problems as well as creating a two class system
where the majority of workers are denied political and social
rights. In the U.S. proper, such workers would be admitted for
residence and could become citizens. Worse, the children of
these workers are U.S. citizens. The children of foreign
mothers now account for 16 percent of U.S. citizens.
The Report, however, also raised some concerns over an
immediate imposition of U.S. immigration laws:
--Absent a transition, few workers would be eligible for a
visa and there would be an impact on the economy.
--The Federal Government is not positioned to take over and
enforce immigration laws. The Report cited INS officials
indicating a need for 60 positions and the general disinterest
of Federal agencies such as INS, OSHA, and Labor in enforcing
Federal laws unless Interior underwrote the cost.
--The relationship between INS and the local Department was
very bad and the U.S. Department of State has no operational
relations with CNMI immigration. Without local cooperation,
federal enforcement would be more difficult.
The Report noted that the CNMI was not likely to take any
corrective action absent a threat of Federal takeover. The
Report recommended that the United States and CNMI negotiate an
agreement to eliminate abuses, backed by the threat of U.S.
takeover. Specifically, the Report recommended:
--phase out (3-5 years) foreign contract workers in
exploitive industries (garment workers, domestics, bar
girls);
--adopt specific provisions for professionals and
executives (mainly wages);
--limited provisions for temporary workers in
permanent construction, hotel, and restaurant jobs with
phase in of wages to Guam levels and decreasing slots
for foreign workers;
--guaranteed access to asylum procedures;
--legal permanent resident status to contract workers
who would be eligible for such status elsewhere in the
U.S.;
--effective prescreening of foreign contract workers
as is done elsewhere in the U.S.;
--control of recruitment fees;
--vigorous enforcement of local laws, especially on
payment of wages and working conditions;
--increase inspections; and
--increased Federal training.
The Committee conducted a hearing on March 31, 1998, on S.
1275 and S. 1100, similar legislation introduced by Senator
Akaka and others. The Committee heard from the Administration,
the government of the CNMI, workers and representatives of the
local industry, as well as public witnesses.
On May 20, 1998, the Committee ordered S. 1275 favorably
reported with amendments. The Committee amendments deleted
provisions altering General Note 3(a) of the tariff schedules
and provisions dealing with the ``Made in the USA'' label. The
Committee also deleted the provision that directly phased in
minimum wage rates to the Federal rate in favor of an industry
committee as had been the practice in other territories. The
Committee adopted the provisions for extension of Federal
immigration laws with several changes. In response to the
Governor's request that he be given an opportunity to prove
that the CNMI could implement an effective immigration program,
the Committee made extension contingent upon a finding by the
Attorney General that the CNMI had either not adopted an
effective immigration system or had not demonstrated a
commitment to enforce it.
On October 6, 1998, the Secretaries of Labor, Commerce, the
Interior, and the Attorney General wrote a letter to the
Committee urging action on the Administration's proposal, but
the Senate was not able to consider the legislation prior to
adjournment. On May 13, 1999, Senator Murkowski, for himself
and Senators Akaka and Bingaman, introduced S. 1052,
incorporating the Committee reported immigration provisions
from last Congress, with a minor amendment.
The presence of a large alien population in the CNMI is not
simply a matter or local concern. Although temporary workers
admitted into the CNMI may not enter elsewhere in the United
States and their presence in the CNMI does not constitute
residence for the purpose of obtaining U.S. citizenship, that
limitation does not apply to their children. Persons born in
the CNMI obtain U.S. citizenship by birth and eventually will
be able to bring their immediate families into the United
States. There is an increasing number of births to non-citizen
mothers, In 1985, of 675 births, 260 were to non-citizen
mothers. While the number of U.S. citizen mothers remained
relatively constant, the number of non-citizen mothers
increased to 581 by 1990, 701 in 1991, 859 in 1992, and
continued around 900-1000 with the exception of 1,409 in 1996.
For that year, total births, 1,890 with the percentage of U.S.
citizen mothers at 25 percent. While some of the presumed non-
citizen mothers are likely to be married toCNMI resident,
others are not, and all entered outside of Federal immigration laws.
The result is that there is an increasing number of persons obtaining
U.S. citizenship outside the boundaries of U.S. immigration and
naturalization laws. There are also incidental effects on various
Federal programs, such as education, that the children and their
immediate relatives will be eligible for. To the extent that the
current CNMI immigration and wage system results in structural
unemployment among resident U.S. citizens, there are also effects on
Federal programs providing assistance to the poor.
The Commission on Immigration Reform noted most of the
elements that have been mentioned in various reports. The use
of temporary workers to fill permanent jobs is a direct policy
issue for the Federal Government. The CNMI does not have an
asylum policy, which is a Federal obligation. Earlier this
year, an organized operation from China attempted to smuggle
individuals into Guam. Eventually, the Federal Government
adopted a policy of intercepting boats at sea and diverting
them to the Northern Marianas prior to repatriating the
individuals and prosecuting the smugglers. Although Federal
immigration laws did not apply, federal agencies did consider
any requests for asylum, but the absence of Federal law
complicated consideration.
Concerns have also arisen over the use of the Northern
Marianas for importation and transshipment of drugs. The June
17 Marianas Variety reported the Finance Department's Division
of Customs to have confiscated over $2.5 million of crystal
metamphetamine in 1998 with an increasing number of drug
arrests. A related concern raised by the Administration has
been the ability of the CNMI to exclude individuals, especially
members of organized crime from Japan and China. The CNMI does
not have a data base to screen immigrants, and accomplishes
most of its screening on arrival. The Federal Government,
however, for those countries that require visas, does its
screening in the foreign country. Federal law enforcement
agencies have cited security concerns as a major impediment to
sharing information with the CNMI government.
Another concern has been the increase in the level of
communicable diseases, especially tuberculosis. The April 1999
CNMI report on Law Enforcement noted that the CNMI has
committed to require screening of all workers and that under
current regulations, ``if a worker is diagnosed with a
communicable disease within ninety days of entry into the CNMI,
they are deported back to their country of origin.'' The report
did note that they were attempting to deal with individuals who
``once diagnosed would become illegal and disappear rather than
come in for treatment.'' The report also states that most cases
are reactivation disease. ``That is they are infected with TB
but have no signs of TB upon entry into the CNMI. After being
in the CNMI for 2-5 years, their TB reactivates and they become
contagious.'' (p.49) Both Guam and the CNMI have rates of
active TB well in excess of the North American average of 9
cases per 100,000. The 1995 Division of Public Health assessed
the mean for the CNMI from 1991-1995 at 77.9 cases per 100,000
population, the majority among the non-resident contract
workers.
conclusion
As a result of these concerns, the Committee has concluded
that Federal immigration laws should be extended to the
Commonwealth at this time. The Covenant contemplated that the
laws would be extended at some point after termination of the
Trusteeship, and further delay can only serve to exacerbate
current problems and the burden on local government in trying
to replicate Federal capacities and conform to Federal
policies. The Committee is sensitive to the concerns raised by
the government of the Commonwealth and from various individuals
and firms in the Commonwealth over the potential effects of
this extension. The amendment addresses those concerns and
significantly expands the provisions contained in the measure
reported during the last Congress. The amendment also
specifically addresses the need for Federal agencies, notably
the Departments of Commerce and Labor, to take a more active
and aggressive role in helping the local government diversity
and strengthen the local economy and recruit, train, and hire
local residents and residents of the freely associated states.
A transition to full application of federal immigration laws
can be accomplished in an orderly manner with limited
disruption to the local economy, especially if Federal agencies
consult closely with local elected officials in the
implementation and enforcement of federal laws.
Legislative History
S. 1052 was introduced on May 13, 1999. The legislation is
similar to sections 1 and 2 of S. 1275 as reported by the
Committee during the 105th Congress. A hearing was held on the
legislation on September 14, 1999.
At the business meeting on October 20, 1999, the Committee
on Energy and Natural Resources ordered S. 1052, as amended,
favorably reported.
Committee Recommendations and Tabulation of Votes
The Committee on Energy and Natural Resources, in open
business session on October 20, 1999, by a unanimous voice vote
of a quorum present, recommends that the Senate pass S. 1052,
if amended as described herein.
Committee Amendments
During the consideration of S. 1052, the Committee adopted
an amendment in the nature of a substitute.
The Committee amendment makes several changes to the
legislation as introduced. The most significant is the
elimination of provisions recommended by the Committee last
Congress that would have conditioned extension of federal
immigrant laws on a finding by the Attorney General that the
Commonwealth of the Northern Mariana Islands (CNMI) did not
have the institutional capability to meet immigration standards
or had not demonstrated a genuinecommitment to do so. The
Representatives of the CNMI testified that they did not trust the
Administration to promulgate reasonable standards or do a fair
evaluation. The CNMI believed that since the Administration supported
extension of Federal law, the Attorney General's conclusion was
predetermined. On the other side, the Administration opposed the
provision because they believed that the CNMI would only use the
promulgation of standards and the finding as excuses to litigate and
delay extension of Federal law. While here is a limited possibility
that a local immigration system could be implemented in a manner
consistent with federal policies there does not appear to be a way to
reach that result. As a result, the Committee amendment deletes the
contingency and provides that Federal immigration laws will apply to
the CNMI.
The Committee has adopted a series of additional amendments
to provide for a smooth transition to address some of the
concerns expressed by the CNMI. The Committee has adopted a
Statement of Purpose to guide federal agencies in implementing
the legislation. The Statement makes clear that the Committee
expects the transition to be orderly and that federal agencies
should seek to minimize potential adverse effects. Some impact
is unavoidable, but the CNMI has a considerable economic
potential. A commitment by Federal agencies to support local
legitimate businesses in tourism and encourage diversification
will not only limit adverse effects but may also serve to bring
more of the local residents into the work-force.
The legislation as introduced provided for transition
period of not more than ten years. The CNMI expressed concern
that Federal agencies would use the flexibility to sacrifice
the local economy to a precipitous implementation. The
Committee amendment eliminates that uncertainty by specifying
that the transition period will extend to December 31, 2009.
The amendment provides that each agency having responsibilities
during the transition shall promulgate regulation. In adopting
such regulations, the agency should be guided by the Statement
of Purpose and not solely by administrative convenience.
During the transition period, the Secretary of Labor will
provide for a system to allocate permits for temporary labor
that will be reduced to zero by the end of the transition
period. The amendment does not require the Secretary to adopt
any particular system, but the Secretary should adopt a system
that in the Secretary's estimation is most consistent with the
Statement of Purpose. The Secretary is not required to use the
entire transaction period nor to adopt an even percentage
reduction over the period, however the Secretary should work
closely with other Federal agencies and the CNMI to coordinate
the annual allocation with efforts to recruit, train, and hire
persons authorize to work in the United States. To the extent
the Secretary of Labor is successful in using the technical
assistance language in the Committee amendment (sec. 2(c)) and
other authorities to obtain such workers, the Secretary will be
able to reduce the need for temporary alien workers. The
objective remains an orderly and smooth transition to the full
application of Federal laws.
The legislation, as introduced, contained a provision that
would extend the transition provisions for the hotel industry
for five year periods if the Attorney General determined that
there was a continuing need for such workers. The
Administration requested that the provision be limited to a
single period of five years or less. The CNMI, on the other
hand, noted that if the Committee intended to protect the
tourism industry, that industry was broader than just hotels.
The CNMI also expressed concern that such a provision might be
necessary for any new industries that might be developed. The
Committee amendment broadens the provision to include
legitimate businesses in the tourism industry and provides that
no more than two five years extensions may be granted. The
Attorney General should provide an expansive definition to the
term ``tourism'' to include not only those businesses
exclusively engaged in tourist activities, but also those
businesses that support or depend or such activities such as
laundries. The Attorney General should construe the term
``legitimate'' narrowly and exclude any business that engages
``directly or indirectly'' in prostitution or any activity that
is illegal under Federal or local law. Operations that are
merely fronts for other activities should also be excluded. The
determination by the Attorney General is within the Attorney
General's sole discretion and is not reviewable. This provision
provides a safety net for those firms and employers who are
engaged in legitimate businesses in tourism. The Committee
amendment also provides for a one-time five year extension for
other industries if the Secretary of Commerce concludes that
such an extension is necessary for growth or diversification.
Effective implementation of federal local agency authority
during the transition should obviate the need for any
extension. The Committee amendment also requires the Attorney
General to report to the Committee if any extension is granted
on the reasons for the extension, and whether further authority
should be enacted for an additional extension. At this time the
Committee cannot estimate that the needs will be for workers in
the CNMI by 2015, but hopes that both Federal and local
authorities will use the transition period wisely.
On criticism of the CNMI was that certain aliens were hired
and remained in the CNMI for extended periods with the
political and civic rights normally extended to aliens admitted
into the United States under Federal laws. The CNMI sought to
deal with that concern by enacting legislation to limit the
time an alien could remain in the CNMI to three years. That
provision, however, frustrates legitimate businesses who seek
to retain workers who they have hired and trained. While the
overall objective of the legislation is to eventually replace
the present temporary contract workers with persons admitted on
a permanent basis under Federal law, there are equities for
both workers and employers where individuals have been working
continuously in legitimate businesses in the CNMI. Accordingly,
the Committee amendment provides a one-time grandfather
provision that would allow an employer to petition for any
employee who has been employed in that business for the past
five years to have the employee classified as an employment-
based immigrant under federal law. The Committee amendment
provides for certain checks on the authority. The businesses
must be legitimate, using the same narrow definition applicable
for the transition extension provisions. The employee must have
been employed by that business for five years and the business
must have a reasonable expectation of making sufficient
revenues to continue to employ the alien. This provision
applies only to individuals employed in a business, and would
therefore exclude individuals employed as domestics by a family
or individual (unless the individual were an employee of a
business that provided cleaning or domestics and have been
employed directly by that business for the prior five years and
not by individuals). The provision also excludes individuals
who may be on the payroll of a business, but who in fact do not
work in the business, such as a domestic whose salary is paid
from a business owned or operated by the family with the
domestic. This provision will assist legitimate businesses in
the transition. To the extent that legitimatebusinesses can
retain current workers, the need for additional alien temporary workers
during the transition period will be reduced.
The Committee has expanded the technical assistance
provisions contained in the legislation to specifically charge
the Secretary of Commerce to provide assistance to encourage
growth and diversification of the local economy and the
Secretary of Labor to provide assistance to recruit, train, and
hire persons authorized to work in the United States. There is
concern over the level of unemployment among local residents in
the CNMI. Specific action should be taken to provide employment
opportunities. The transition period also offers a chance to
provide employment opportunities for residents of the freely
associated states. The CNMI also expressed concern that the
United States was not promoting the CNMI as a tourist
destination. The Committee amendment requires the
Administration to submit a report to Congress within five years
after the date of enactment of the Act to review progress in
implementing this legislation and state what efforts have been
made to diversify and strengthen the local economy, including
promoting the CNMI as a tourist destination.
There are important reasons that require that the United
States control entry into its territory in the CNMI. If Federal
agencies charged with responsibilities under this legislation
for extending those laws do so with sensitivity to local
economic needs, a commitment to diversifying the local economy,
and with dedication to recruiting, training, and hiring local
residents and citizens of the freely associated states, the end
result will be a stronger local economy and local government.
Section-by-Section Analysis
Section 1. Short title and purpose
This section is self-explanatory. The statement of purpose,
while not referenced directly in the amendments to Public Law
94-241, is intended to guide and direct Federal agencies in
implementing the provisions of this Act.
Section 2. Immigration reform for the commonwealth of the Northern
Mariana Islands
Subsection (a) amends Public Law 94-241 (90 Stat. 263, 48
U.S.C. 1801) (the ``Covenant Act'') which approved the Covenant
to Establish a Commonwealth of the Northern Mariana Islands in
Political Union with the United States of America (the
``Covenant'') by adding a new section 6 at the end.
The new section 6 provides for the orderly extension of
Federal immigration laws to the CNMI under a transition program
designed to minimize adverse effects on the economy. Specific
provisions are made to ensure access to workers in legitimate
businesses after the end of the transition and for the
adjustment of those foreign workers who are presently in the
CNMI and who have been continuously employed in a legitimate
business for the past five years.
Subsection (a) provides, except for any extensions that may
be provided by the Attorney General to specific industries in
accordance with the provisions of subsection (d), for a
transition program ending on December 31, 2009 to provide for
the issuance of: nonimmigrant temporary alien worker; family-
sponsored, and employment-based immigrant visas.
Subsection (b) addresses the special problems faced by
employers in the CNMI due to the Commonwealth's unique
geographic and labor circumstances by providing an exemption
from the normal numerical limitations on the admission of H-2B
temporary workers found in the INA. This subsection enables
CNMI employers to obtain sufficient temporary workers, if
United States labor and lawfully admissible freely associated
state citizen labor are unavailable, for labor sensitive
industries such as the construction industry.
Subsection (c) sets forth several requirements during the
transition program which must be met with respect to temporary
alien workers who would otherwise not be eligible for
nonimmigrant classification under the INA. The intent of this
subsection is to provide a smooth transition from the CNMI's
current system. The Secretary of Labor will be guided by the
Act, including the Statement of Purpose and the explanation in
the Committee Amendments section of this Report in establishing
the system for the allocating and determining the number of
permits. Subsection (j) provides for petitions to adjust the
status of certain long-term employees. If any petitions are
granted under subsection (j), the number of permits are to be
reduced accordingly to the extent that the system adopted by
the Secretary of Labor assumed an allocation of permits for the
positions held by persons whose status is adjusted under
subsection (j).
Subsection (d) provides general limitations on the initial
admission of most family-sponsored and employment-based
immigrants to the CNMI, as well as a mechanism for exemptions
to these general limitations. This subsection is intended to
address the concerns expressed by this Committee, in approving
the Covenant in 1976, regarding the effect that uncontrolled
immigration may have on small island communities. This
subsection further provides for a ``fail-safe'' mechanism to
permit, in cases of labor shortages, that certain unskilled
immigrant worker visas intended for the CNMI be exempted from
the normal worldwide and per-country limitations found in the
INA for such unskilled workers. This subsection does not
increase the overall number of aliens who may immigrate to the
United States each year.
Paragraph (1) of this subsection authorizes the Attorney
General, after consultation with the governor and the
leadership of the Legislature of the CNMI and in consultation
with other Federal Government agencies, to exempt certain
family-sponsored immigrants who intend to reside in the CNMI
from the general limitations on initial admission at a port-of-
entry in the CNMI or in Guam. For example, unless the CNMI
recommends otherwise, most aliens seeking to immigrate to the
CNMI on the basis of a family-relationship with a United States
citizen or lawful permanent resident would be required to be
admitted as a lawful permanent resident at a port-of-entry
other than the CNMI or in Guam, such as Honolulu.
Paragraph (2) generally provides the Attorney General with
the authority to admit, under certain exceptional circumstances
and after consultation with federal and local officials, a
limited number of employment-based immigrants without regard to
the normal numerical limitationsunder the INA. The purpose of
this provision is to provide a ``fail-safe'' mechanism during the
transition program in the event the CNMI is unable to obtain sufficient
workers who are otherwise authorized to work under U.S. law. This
paragraph would also provide a mechanism for extending the ``fail-
safe'' mechanism beyond the end of the transition program, for a
specified period of time, with respect to legitimate businesses in the
CNMI.
Subparagraph (A) provides that the Attorney General, after
consultation with the Secretary of Labor and the Governor and
leadership of the Legislature of the CNMI, may find that
exceptional circumstances exist which preclude employers in the
CNMI from obtaining sufficient work-authorized labor. If such a
finding is made, the Attorney General may establish a specific
number of employment-based immigrant visas to be made available
under section 203(b) of the INA during the following fiscal
year. The labor certification requirements of section 212(a)(5)
will not apply to an alien seeking benefits under this
subsection.
Subparagraph (B) permits the Secretary of State to allocate
up to the number of visas requested by the Attorney General
without regard to the normal per-country or ``other worker''
employment-based third preference numerical limitations on visa
issuance. These visas would be allocated first from unused
employment-based third preference visa numbers, and then, if
necessary, from unused alien entrepreneur visa numbers.
Subparagraph (C) deals with entry of persons with
employment-based immigrant visas and is self-explanatory.
Persons who are otherwise eligible for lawful permanent
residence under the transition program may have their status
adjusted in the CNMI.
Subparagraph (D) provides that any immigrant visa issued
pursuant to this paragraph shall be valid only to apply for
initial admission to the CNMI. Any employment-based immigrant
visas issued on the basis of a finding of ``exceptional
circumstances'' as described in subparagraph (A) above, would
be valid for admission for lawful permanent residence and
employment only in the CNMI during the first five years after
initial admission. Such visas would not authorize permanent
residence or employment in any other part of the United States
during this five-year period. The subparagraph also provides
for the issuance of appropriate documentation of such
admission, and, consistent with the INA, requires an alien to
register and report to the Attorney General during the five-
year period. This five-year condition is intended to prevent an
alien from using the CNMI-only transition program as a loophole
to gain employment in another part of the United States.
Without this condition, such an alien, as a lawful permanent
resident, would be eligible to work anywhere in the United
States, thereby avoiding the lengthy (seven years or longer)
waiting period currently faced by other aliens seeking
unskilled immigrant worker visas.
Subparagraph (E) provides that an alien who is subject to
the five-year limitation under this paragraph may, if he or she
is otherwise eligible, apply for an immigrant visa or admission
as a lawful permanent resident on another basis under the INA.
Subparagraph (F) provides for the removal from the United
States, of any alien subject to the five-year limitation if the
alien violates the provisions of this paragraph, or if the
alien is found to be removable or inadmissible under applicable
provisions of the INA.
Subparagraph (G) provides the Attorney General with the
authority to grant a waiver of the five-year limitation in
certain extraordinary situations where the Attorney General
finds that the alien would suffer exceptional and extremely
unusual hardship were such conditions not waived. The benefits
of this provision would be unavailable to a person who has
violated the terms and conditions of his or her permanent
resident status, such as an alien who has engaged in the
unauthorized employment.
Subparagraph (H) provides for the expiration of limitations
after five years.
Subparagraph (I) provides for not more than two five-year
extensions, as necessary, of the employment-based immigrant
visa programs of this paragraph, with respect to workers in
legitimate businesses in the tourism industry. This provision
is designed to ensure that there be a sufficient number of
workers available to fill positions in the tourism industry
after the transition period ends. The subparagraph also permits
a single five-year extension for legitimate businesses in other
industries. The provisions are explained more fully under the
discussion of Committee Amendments.
Subsection (e) deals with nonimmigrant investor visas and
is self-explanatory.
Subsection (f) deals with persons lawfully admitted into
the CNMI under local law and is self-explanatory.
Subsection (g) provides travel restrictions for certain
applicants for asylum and is self-explanatory.
Subsection (h) deals with the effect of these provisions on
other law and is self-explanatory.
Subsection (i) provides that no time spent by an alien in
the CNMI in violation of CNMI law would count toward admission
and is self-explanatory.
Subsection (j) provides a one-time grandfather for certain
long-term employees and is more fully discussed in the section
of the Report describing the Committee Amendment.
Section 2, subsection (b) provides for three conforming
amendments to the INA.
Section 2, subsection (c) provides for technical assistance
and is discussed more fully in the section of the Report
describing the Committee Amendment.
Section 2, subsection (d) provides administrative authority
for the Departments of Justice and Labor to implement the
statute and is self-explanatory. The requirement that all
expenditures require a non-federal matching contribution of 50
percent applies only to expenditures involving the additional
incremental funding and is to be read to require that those
expenditures be at least 50 percent non-federal. The provision
should not be read to cap non-federal contributions, but to
require that, at a minimum, each federal dollar of the
additional funding be matched by a dollar of non-federal funds.
Section 2, subsection (e) provides for a report to
Congress, is discussed in the section of the Report on
Committee Amendments and is self-explanatory.
Section 2, subsection (f) limits the number of alien
workers present in the CNMI prior to the transition program
effective date and is self-explanatory.
Section 2, subsection (g) authorizes appropriations and is
self-explanatory.
Cost and Budgetary Considerations
The Congressional Budget Office cost estimate report had
not been received at the time the report was filed. When the
report becomes available, the Chairman will request that it be
printed in the Congressional Record for the advice of the
Senate. During the 105th Congress, CBO estimated that the costs
of similar provisions of S. 1275 would be less than $500,000 in
the first year and between $7 million and $8 million over a
five year period. CBO also determined that the provisions
contained both intergovernmental and private sector mandates.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 1052. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
The legislation contemplates the possibility of extension
of the Federal immigration laws. To the extent that personal
information is obtained as part of the normal administration of
the program elsewhere in the United States, the same provisions
would apply in the Northern Mariana Islands. If the
Commonwealth administers and enforces an effective immigration
system under current law and Federal law is not extended, it is
likely that the same information would be obtained. Therefore,
there would be no additional impact on personal privacy.
Some additional paperwork would result from the enactment
of S. 1052, as ordered reported, but the Committee does not
believe that it would be significant.
Executive Communications
On June 28, 1999, the Committee on Energy and Natural
Resources requested legislative reports from the Department of
S. 1052 and the Office of Management and Budget setting forth
Executive agency recommendations on S. 1052. These reports had
not been received at the time the report on S. 1052 was filed.
When the reports become available, the Chairman will request
that they be printed in the Congressional Record for the advice
of the Senate. The testimony provided by the Immigration and
Naturalization Service as the Committee hearing follows:
Statement of Bo Cooper, General Counsel, Immigration and Naturalization
Service, Department of Justice
Mr. Chairman and Members of the Committee, good morning. My
name is Bo Cooper and I am the General Counsel of the
Immigration and Naturalization Service of the Department of
Justice (INS). I am appearing on behalf of the Administration.
Thank you for the opportunity to appear before you today to
discuss immigration reform for the Commonwealth of the Northern
Mariana Islands (CNMI). We appreciate the Committee's interest
in our views.
Through its favorable report in the last Congress of S.
1275, the introduction by Chairman Murkowski and Senators
Bingaman and Akaka of S. 1052 (the Northern Mariana Islands
Covenant Implementation Act) in the 106th Congress, and its
hearings on the urgent immigration, labor and other problems
that exist in the CNMI, this Committee has demonstrated a
strong bipartisan commitment to improving conditions in this
United States territory. The Administration shares this goal,
and is committed to working with Congress for the enactment of
federal immigration law for the newest member of the American
political family.
As you know, S. 1052 is essentially the same bill as the
CNMI legislation reported by this Committee in the last
Congress as S. 1275, with respect to immigration. A significant
difference, of course, is that S. 1052 does not include S.
1275's provision regarding the minimum wage. Although
immigration issues are the subject of my testimony today, I
should note that the Administration continues to believe that
federal minimum wage law needs to be enacted for this new part
of our country. The Administration also supports provisions
that would condition duty free access to the United States for
apparel produced in the islands, and use of the ``Made in the
USA'' label, on the employment of a specified amount of U.S.
citizen labor, consistent with the original purposes of the
underlying policies.
The Administration expects soon to submit to the Congress
its comprehensive legislative proposal addressing the important
non-immigration issues not included in S. 1052, as well as
immigration reform. We do not expect the immigration provisions
in this forthcoming proposal to be substantially different from
S. 1052, except for the necessary modifications to S. 1052
discussed in my statement today.
As former S. 1275 was originally drafted by the
Administration at the request of Senator Murkowski, that
legislation as introduced was entirely consistent with
Administration policy toward the CNMI. There is one important
difference between the Administration's original immigration
proposal for the CNMI and the current S. 1052--the preliminary
requirements of standards, findings, and provision for judicial
review before the INA may take effect--that causes us serious
concern. With the exception of those preliminary requirements,
and several other necessary modifications to S. 1052 that the
passage of time since 1997 and continued Administration review
have revealed, I am pleased on behalf of the Administration
today to support S. 1052 if amended, and urge its rapid
approval by the Congress.
The CNMI's immigration policy is not consistent with American
principles
The very serious problems I am here to discuss are not new.
They have been worsening for some years. They were not,
however, envisioned when the Covenant which united the islands
and the United States was negotiated, and went into effect
through the free choice of the people of the CNMI, as well as
federal approval. In approving the Covenant, the people of the
CNMI firmly stated their desire to assume membership in the
community of shared values represented by the American flag,
including the fundamental values of respect for law, equality,
democracy and human rights. Among many other benefits, they
were accorded the privilege of U.S. citizenship. With that
privilege come responsibilities to uphold the values the
American people hold dear.
The Covenant under which the islands became part of the
United States provided for the application of U.S. law in the
CNMI. Some laws were to take effect immediately, others later,
and yet others as determined by subsequent federal law. The
immigration and nationality laws of the United States come
within the last category.
To not apply immediately the sovereign power of the United
States to control its borders to a local jurisdiction within
the United States was an extraordinary step. Congress has
established a federal immigration system to serve the interests
of the Nation as a whole. The States, territories and other
non-federal authorities within the United States normally enjoy
no power with respect to the classification of aliens. Federal
authority over immigration serves vital national interests,
including uniformity of treatment of nonresident foreign
visitors, establishing one national policy on immigration to
this country, protecting the national security, and ensuring
that the Nation speaks with one voice in matters of foreign
policy.
Federal immigration authority was not immediately extended
to the islands for several reasons. First, the islands were
still to be of a territory that the United States administered
as trustee for the United Nations until the trusteeship ended,
and the Covenant entered into full force, in November, 1986.
Extending U.S. immigration and nationality law before the
trusteeship over the islands ended, and the termination
accepted by the United Nations, could have given rise to
charges from adversary nations that we had divided the
territory and annexed part of it.
Second, the CNMI negotiators wished to ensure that their
small islands would not be overwhelmed by large-scale
immigration from nearby Asian nations, and feared that this
would happen if the Immigration and Nationality Act (INA) were
immediately extended to the CNMI. The Ford Administration and
Congress agreed to accommodate this concern, for the time
being, reserving the right to enact immigration and nationality
laws after the end of the U.N. trusteeship at the sole
discretion of the national government.
A third reason for nor immediately applying the INA was the
possibility that a national immigration policy review being
conducted at the time might lead to special provisions in
federal immigration law to address unique needs of our
territories. This did not occur.
It is our strong view, Mr. Chairman, that the time has come
to enact Federal immigration law for the CNMI. The CNMI has
used the lack of such law for exactly the opposite purpose than
it originally intended for having the INA not apply, at least
temporarily, to the CNMI. Rather than limit immigration, the
CNMI has engaged in the massive importation of low-paid
temporary alien workers. Alien workers now comprise a majority
of the population. The CNMI has attempted to fulfill its
original purpose in not having the INA apply, however, by not
letting individual workers stay more than a few years, then
replacing them with new workers, and not letting most of its
labor force become permanent members of the community. Under
this system, a majority of the population never have the
ability to help determine the public policies under which they
live. Moreover, these workers are admitted into the CNMI under
indenture contracts that give their employers virtually total
control over the terms and conditions of their stay. This in
turn makes them unacceptably vulnerable to exploitation and
abuse.
A few statistics from the most recent annual report on the
Federal-CNMI Initiative on Labor, Immigration and Law
Enforcement in the Commonwealth of the Northern Mariana
Islands, issued late in 1998, and from other recent sources,
illustrate the magnitude of the problem. The CNMI has
experienced explosive, self-imposed population growth during
this decade. The population, which was 14,000 in 1975, grew to
about 17,000 by 1990, but then exploded to nearly 60,000 by
1995. More than half of the current population are foreign
workers. In addition to the large population of indentured
alien workers present under authority of CNMI immigration law,
an estimated 7,000 undocumented aliens reside in the CNMI.
Nor do the figures for aliens alone suffice to show the
impact of the CNMI's immigration policies not just on the
archipelago's population, but on the rest of the United States.
An increasing percentage of the U.S. citizen population
consists of children born in the CNMI to female aliens who
would likely be inadmissible to the United States under the
INA, but who have been able freely to enter the CNMI. These
children are U.S. citizens by birth. They have, of course, all
rights pertaining to U.S. citizenship, including the right to
live in any part of the United States and, when they come of
age, to sponsor their parents for immigration to the United
States under the INA. They are also eligible for welfare and
other government benefits on the same terms as other citizens.
On Saipan (by far the most populous island), there were,
according to CNMI statistics, 32,822 Asian-born aliens in the
labor force in February 1999--an increase of nearly 10,000 from
the 1995 census, demonstrating continuing growth in the alien
worker population. These indentured alien workers account for
over 90 percent of the private sector workforce. With a
virtually unrestricted supply of alien labor, and a resulting
de facto wage ceiling at or near the CNMI's low minimum wage of
$3.05 per hour, economic growth in the CNMI has not resulted in
good private sector jobs for the vast majority of the islands'
citizens.
In the CNMI's upside-down economy built on unrestricted
importation of low-skilled alien workers to fill permanent
positions, few U.S. citizens will work for the CNMI's low
minimum wage. It is far below what is required for a living
wage, or what would be the prevailing market wage absent the
CNMI's immigration policies. Poverty and unemployment rates
among locally-born U.S. citizens are high. As last tabulated by
the CNMI, the poverty rate for this group was 35 percent and
unemployment rate 16 percent. The exception is U.S. citizens
who have obtained positions in the public sector. The public
sector employs 56 percent of locally-born U.S. citizen workers
at wages several times higher than those available in private
industry.
Despite the large CNMI bureaucracy and substantial federal
financial assistance, CNMI infrastructure and services such as
public health care, water, sewers, electricity and garbage
disposal are increasingly inadequate to deal with the
consequences of such massive immigration. Although the CNMI
government has attempted to improve health screening of
documented alien guest workers present in the CNMI,
communicable diseases, particularly tuberculosis, remain a
serious threat.
Symptomatic of this economic and social system is the
domestic service situation. According to the 1995 census, the
5,337 households headed by U.S. citizens employed 2,089 alien
domestic workers, a rate of domestic service unheard of in the
United States, at least in modern times. This domestic service
situation did not develop because U.S. citizens in the CNMI
were wealthy, but because of their nearly unrestricted access
to exploitable low-wage alien labor. In fact, the U.S.
Commission on Immigration Reform reported in 1997 that the CNMI
government had found it necessary to enact a rule barring Food
Stamp recipients from importing guest workers to work as their
domestic servants. Needless to say, we are aware of no other
U.S. jurisdiction that has had to address such a problem.
I want to emphasize that the Administration does not
contend that the clock in the CNMI should be turned back to the
1970s, or that economic or population growth should not occur
there. However, economic growth cannot justify abuse. The CNMI
has gone down the wrong road with respect to its immigration
policy, and that policy must change.
The developments I have outlined are the result of a CNMI
immigration system that is inconsistent with the American
values that underlie the INA. Our immigration system favors the
controlled and responsible immigration of aliens for permanent
residence, leading to eventual full and complete inclusion in
the American community through the granting of U.S.
citizenship. A central principle of the INA also is the
unification of families.
The INA reflects the American tradition of employing U.S.
workers in private sector jobs that promote the growth of a
middle class, rather than importing and exploiting a rolling
stream of alien workers, without permanent immigrant status or
family ties, in low-paid permanent positions, most to be kept
almost all the time on their employers' premises. The INA's
provisions authorizing the employment of nonimmigrant aliens
under certain circumstances are designed to ensure that such
employment will not adversely affect the wages and working
conditions of similarly situated U.S. workers.
The INA also incorporates our obligations under
international law--consistent with the value we place upon
human rights--to give aliens arriving in, or present in the
United States the opportunity to obtain protection from
torture, or persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.
The CNMI immigration system is fundamentally at odds with
all of these features of U.S. immigration law. The CNMI has no
procedure in place under which aliens physically present may
make a claim for asylum or withholding of removal on the ground
of persecution. Nor does the CNMI have any procedure under
which an alien may make a claim under the U.N. Convention
against Torture that the alien should not be returned to a
place where he or she will be tortured. The lack of refugee and
torture protection means that nothing prevents an alien from
being removed from the CNMI to a place where he or she will
face persecution or torture. This situation in a place that
flies the U.S. flag places us at serious risk of violating our
international law obligations under the 1967 Refugee Protocol
and the Convention against Torture--obligations which extend to
the territory of the CNMI.
In contrast to the INA's prohibition of the importation of
temporary nonprofessional alien workers to fill permanent jobs,
the CNMI policy has led to the creation of a large, exploitable
underclass of aliens (both documented and undocumented) present
without family ties, and with no prospect of lawful social and
political integration into the community in which they reside.
These fundamental inconsistencies between the CNMI's
immigration policy and U.S. interests are further exacerbated
by the practical problems faced by a group of small islands
that is not a sovereign nation when it tries to exercise the
sovereign power to control its borders. First, since the CNMI
as a United States territory of course maintains no embassies
or consulates abroad, and does not have the interaction a
sovereign nation may have with others, it cannot screen
applicants prior to their entry. The INS' experience over many
years of immigration enforcement has convinced us that a
``double-check'' system is essential. A double-check system is
one in which (except for temporary visitors from certain
nations that the light of experience has shown present a low
risk of violation) arriving aliens are screened twice, first by
a consular officer overseas and then by an immigration
inspector at a port of entry.
The CNMI cannot operate a double-check system. As a result
of this structural deficiency, the CNMI is especially
vulnerable to the operations of international organized crime,
particularly since the CNMI does not have a law enforcement
agency that federal authorities have deemed sufficiently secure
to be granted access to federal ``lookout'' information. The
vulnerability is not just speculative. The CNMI has been
entered by organized crime rings from several countries.
Second, when a local jurisdiction within the United States
such as the CNMI attempts to operate its own immigration
system, it is virtually impossible for it to avoid entangling
itself in foreign relations, since immigration is an
international matter that requires frequent consultations and
cooperation between national governments. Moreover, the CNMI's
negotiation, or attempted negotiation, of ``Memoranda of
Understanding'' with the Philippines and China has intruded
into the responsibility of the United States government to
conduct the foreign affairs of the Nation. Additionally, the
treatment of alien workers in the CNMI has caused irritations
in the foreign relations of the United States with Nepal,
Bangladesh, Sri Lanka, and the Philippines.
Third, the CNMI does not adequately document the entry of
aliens. Despite substantial federal assistance devoted to
helping the CNMI try to develop an immigration tracking system
(the Labor and Immigration Identification and Document System
(LIIDS)) compatible with federal systems, that goal seems as
far away as ever. All that has been achieved is the issuance of
labor identity cards, without any tie-in to immigration entry
and exit.
The response of the CNMI government has been to concede
that serious problems and abuses exist while making repeated
promises of improvement. These promises have not resulted in
meaningful reform, but only a few largely cosmetic changes that
address symptoms rather than the underlying problem, and which
are underfunded or contains loopholes and exceptions. The
persistent and increasingly severe problems caused by the
CNMI's economic and immigration policies, and the lack of any
meaningful CNMI response to address then, led President Clinton
to conclude in May of 1997 that federal immigration,
naturalization and minimum wage laws should be applied to the
CNMI, on a reasonable and appropriate phase-in schedule, and
with special provisions necessary to avoid disruption to the
islands.
Nothing has happened since then that warrants any change in
the President's conclusion. The CNMI's indentured alien labor
force has continued to increase, despite an ineffectual
``moratorium'' on their recruitment and importation. No
significant improvements have been made in CNMI entry and exit
tracking and processing. Mistreatment of indentured alien
workers has continued. The system of relying on a large pool of
exploited alien labor comprising more than half the population
has not changed for the better. As Chairman Murkowski aptly
said in his statement introducing S. 1052, the additional year
gained by the CNMI as a result of S. 1275 not having been
enacted into law in 1998 has expired. It is time for action
now.
S. 1052, with improvements would bring the CNMI into conformity with
U.S. immigration policy while providing safeguards against
economic or social disruption
Enacting S. 1052--with the few changes we believe are
needed to the bill--would be real immigration reform. It would
begin the essential process of returning the CNMI to an
immigration system that reflects American values and
principles. The bill, with the changes we recommend, provides a
generous implementation and transition period in which to phase
out the CNMI's alien worker program. The Administration's
original 1997 proposal, and S. 1052, provide up to a ten-year
transition period following the one-year implementation period,
but we recommend in light of the passage of time since the
original proposal--time that the CNMI has not used to improve
this urgent situation--that an eight-year transition period
would be more appropriate and entirely adequate.
Once the preliminary requirements of S. 1052 involving
standards and findings regarding the immigration situation in
the CNMI are satisfied, the INA can apply, with special
modifications, in the CNMI. Under this bill, the preliminary
requirements would take a minimum of 18 months, and (dependent
on the findings) could lead to continued local control of
immigration rather than the application of federal immigration
law. If and when the INA applies, immigrant and nonimmigrant
aliens generally will be visaed, inspected and admitted to the
CNMI in the manner applicable in the rest of the United States.
CNMI employers will be able to sponsor immigrants in the same
way a mainland employer may do. The available nonimmigrant
categories include--among others--business visitors and
tourists, intracompany transferees in managerial positions,
persons of exceptional professional or artistic merit and
ability, and H-2B temporary workers (especially important for
construction and other industries).
The transition provisions include numerous special
provisions designed to ease, during the transition period
following application of the INA, any potential burden on the
CNMI that might result from this change. The INS and the U.S.
Department of Labor would administer a reasonable system for
the annual allocation of permits to employers who wish to
employ temporary alien workers who would not otherwise be
eligible for admission under the INA, and for the entrance of
those workers into the CNMI only. This system would ensure that
CNMI employers are able to fill their positions, but with much
less risk of the exploitation and mistreatment of indentured
labor that is characteristic of the current CNMI immigration
system.
Other provisions designed to ensure reasonable access by
CNMI employers to needed labor include exemption of H-2B
temporary workers coming to the CNMI from the overall numerical
limitations applicable to H-2B admissions, and authority
granted to the Secretary of State and the Attorney General to
grant visas to, and to admit into the CNMI, a limited number of
employment-based immigrants without regard to normal numerical
limitations. This exception for employment-based immigrants
would be triggered by a finding by the Secretary of Labor, upon
receipt of a recommendation from the CNMI government, that
exceptional circumstances exist with respect to the inability
of CNMI employers to obtain sufficient work-authorized labor.
In order to ensure the continued health of the CNMI hotel
industry, this provision may be extended even beyond the end of
the transition period for that industry. To prevent abuse of
the CNMI immigrant exception by those who have no bona fide
intention to reside and work in the CNMI, admissions under this
provision will not be valid for permanent residence and
employment in the United States, other than the CNMI, for a
period of five years.
S. 1052 contains other transition provisions designed to
protect the CNMI from potentially adverse consequences that
might occur absent such provisions. Aliens lawfully present in
the CNMI under authority of CNMI law may remain in the CNMI for
their period of admission, or for 2 years, whichever is less.
An alien present in the CNMI under authority of CMNI law, or
admitted to the CNMI under the transition program's provisions
for special admission of employment-based immigrants or
temporary workers, who files an application for asylum will
have his or her application deemed abandoned if the alien
leaves the CNMI at any time during which it is pending. Except
for immediate relatives and the immigrants who may be admitted
into the CNMI under the special transition period employment
provisions, aliens may not be granted initial admission as a
lawful permanent resident of the United States at a port-of-
entry in the CNMI, or at a port-of-entry in Guam for the
purpose of immigrating to the CNMI.
In short, we believe that S. 1052 in most respects is a
fair bill that appropriately addresses the urgent need for
immigration reform in the CNMI with the proper flexibility to
ensure that the economy and society of the CNMI are not
disrupted by the necessary reform. There are, however, several
improvements that need to be made to the bill, in addition to
adjusting the transition period from ten to eight years.
S. 1052 can be made even better
As I previously mentioned, the Department of Justice is
very concerned about S. 1052's complex, multistep process for
extending the INA to the CNMI. First, the Attorney General
would, within 90 days after enactment of S. 1052, publish the
minimum standards that she deemed necessary to ensure an
effective system of immigration control for the CNMI. The
determination of the minimum standards would rest within the
sole discretion of the Attorney General, and would not be
subject to the rulemaking requirements of the Administrative
Procedure Act. The Attorney General's determination of
standards would, however, be subject to review by the U.S.
Court of Appeals for the D.C. Circuit upon the filing of a
timely complaint by the government of the CNMI in that court,
with subsequent opportunity to petition the U.S. Supreme Court
for its discretionary review. The defendant in the CNMI's
lawsuit presumably would be the Attorney General of the United
States.
One year after the date of enactment of S. 1052, or 90 days
after the resolution of litigation over the minimum standards
(whichever is later), the Attorney General, after consultation
with the government of the CNMI, would make findings whether
the CNMI possesses the institutional capability to administer
an effective system of immigration control consistent with the
minimum standards, and whether, if so, the CNMI government has
demonstrated a genuine commitment to enforce such a system.
Once again, the U.S. Court of Appeals for the D.C. Circuit,
followed by the U.S. Supreme Court, is designated as the forum
for a lawsuit by the CNMI government seeking review of the
findings. Once that litigation is finally resolved, up to a
ten-year transition program to full INA application would take
effect 180 days after the final resolution, if the Attorney
General determined that the CNMI government does not have the
requisite institutional capability and genuine commitment.
The CNMI government has consistently demonstrated over a
period of many years that it has neither the institutional
capability nor a genuine commitment to ensure an effective
system of immigration control. The INS made detailed findings
of fact in the July 1997 Third Annual Report of the Federal-
CNMI Initiative on Labor, Immigration & Law Enforcement
supporting its conclusion that the CNMI's immigration control
system is ineffective, and that conclusion is as accurate today
as it was two years ago. The Department of Justice therefore
believes that the provisions of S. 1052 that require first the
promulgation of standards, and then a delay of at least one
year before findings even can be made that could lead to
extension of the INA to the CNMI, are unnecessary, and would
lead to unwarranted delay and uncertainty. Congress should
resolve this issue now, based on the CNMI's proven record over
the last decade.
The judicial review provision within the unnecessary
preliminary requirements in S. 1052 would allow the CNMI
government to tie up in litigation the application of
reasonable federal immigration provisions not only once, but
twice, first when the Attorney General issues the minimum
standards, and second, when the Attorney General issues her
findings. Although S. 1052 urges expedited judicial review, the
fact remains that two federal court lawsuits over the
appropriate standards for CNMI immigration, with the
opportunity to petition the Supreme Court for review each time,
would be likely to consume several years during which no
progress toward CNMI immigration reform could be made. Given
the firm opposition of the CNMI government to extending the INA
to the CNMI, its use litigation as a delay tactic would not be
unexpected, no matter how reasonable, appropriate, and correct
are the Attorney General's standards and findings.
The Department of Justice also seriously questions
appropriateness of judicial review of the CNMI immigration
system not just as a source of delay, but as a fundamental
matter of the proper scope of the judicial function. The
minimum standards for an effective immigration system for the
CNMI, and the ability and willingness of the CNMI government to
implement them, are policy questions that are not susceptible
to judicial determination. Absent any judicially discoverable
and manageable standards for deciding them, a reviewing court
would be in the position of having either to substitute its
immigration policy opinions for those of the political branches
of government, or simply to defer to the Attorney General's
findings. In neither scenario would there be any useful purpose
to such a lawsuit. Alternatively, the court could, despite S.
1052's invitation to involve itself in a dispute between the
CNMI government and the United States over the appropriate
immigration policy for the islands, properly dismiss the case
as a nonjusticiable political question; a correct resolution,
but again not a productive use of time or judicial resources.
The Administration strongly urges the Committee to remove
the unnecessary and counterproductive preliminary requirements
to promulgate standards and findings, including the judicial
review provision that would allow the CNMI government to use
litigation as a tactic to delay even further long overdue
reforms, and potentially could lead to a court second-guessing
and overturning national immigration policy decisions.
Our continued review of proposed legislation also has
revealed several ways in which S. 1052 can be improved with
minor changes. I will not take up the Committee's time with
these now, but we would be glad to work with Committee staff on
them, and they also will be included in the Administration's
forthcoming proposal.
Recent developments in the Pacific, and prospects for successful INA
enforcement in the CNMI
In his statement in the Congressional Record introducing S.
1052, Chairman Murkowski raised several questions about the INS
position toward the CNMI. They are fair questions, and I want
to take this opportunity to address them. The statement
questioned the INS' commitment to deploy the necessary
resources to the CNMI to ensure adequate enforcement and
administration of the INA after S. 1052 is enacted into law.
The resources available to the INS are, of course, dependent on
the appropriations provided by Congress and the INS' statutory
authorization to collect fees from users of certain immigration
services. The INS is very appreciative of the generous support
Congress has provided to its operations, particularly in the
last few years, and our agency strives every day to live up to
that trust.
The INS commits itself to enforce the INA adequately and
fairly in the CNMI just as in any other part of the United
States if that responsibility is entrusted to us, to the
fullest extent of the resources available for that task. In
planning for the necessary level of immigration services, we
would of course be mindful of the difficult challenges posed by
extending federal immigration law for the first time to this
farflung archipelago beset with immigration and labor problems.
I am not here to tell this Committee that extending the INA
to the CNMI is a panacea that will instantly solve the islands'
immigration problems. The best efforts of the INS to enforce
the INA in the United States have not eliminated the problems
of illegal immigration and alien worker exploitation we face
here on the mainland, and neither is the INS likely to be able
to eliminate them entirely in the CNMI. The INS officers and
employees who will be charged with implementing S. 1052 will
not have an easy job. However, I am confident that, with the
support of Congress and the Administration, their essential
task of introducing and enforcing an immigration system that is
consistent with U.S. values can be successfully accomplished.
Although bringing the INA for the first time to any
jurisdiction is a challenge, the CNMI offers several advantages
that would facilitate INS immigration enforcement. The CNMI
archipelago is farflung, but the islands are small and only
three of them (Saipan, Tinian and Rota) have any substantial
population. The CNMI's proximity to Guam would mean that INS
operations in the two jurisdictions could complement each
other, rather than the current situation in which the CNMI is a
source of alien smuggling into Guam. And, although recent
developments in the Pacific have shown that the CNMI's relative
geographical isolation from major population centers is no
barrier to maritime alien smuggling, the CNMI lacks the land
borders and short maritime passages (such as the Straits of
Florida, or the Mona Passage between the Dominican Republic and
Puerto Rico), or the levels of international commerce, that
make border control particularly difficult in other parts of
the United States. I note also that S. 1052 appropriately calls
for the INS and other agencies charged with INA administration
in the CNMI to recruit and hire from among qualified applicants
resident in the CNMI, to the extent practicable and consistent
with the satisfactory performance of assigned responsibilities.
Our efforts in the CNMI would also build upon the work we
have already done there. Although an INS presence in the CNMI
under current legal authorities is an entirely inadequate
substitute for direct application of the INA, the INS has
worked with other agencies, other components of the Department
of Justice, and the CNMI government to increase the federal law
enforcement presence in the CNMI. Since 1996, the INS has
stationed an immigration officer in the CNMI. In addition to
technical assistance and liaison in the CNMI, we have provided
briefings and training in Guam and Hawaii for CNMI immigration
officers on basic inspection techniques, investigative
procedures, and the detection of fraudulent documents. We are
continuing these efforts. For example, this week we are
conducting three days of additional training for CNMI
immigration officers in Saipan, and one day in Rota. These and
other measures to assist the CNMI will not, however, overcome
the fundamental problems of a system incompatible with American
values, a local government incapable of handling this
responsibility, and the lack of federal authority.
Chairman Murkowski, in his statement in the Congressional
Record, also expressed concern about the INS' commitment to
devote the necessary resources to immigration enforcement in
the CNMI in light of the recent influx of Chinese migrants into
Guam. In short, the opinion has been expressed that the
Administration's response to the Guam situation, where federal
immigration law already applies, has been inadequate, and that
that response does not bode well for extension of federal
immigration enforcement obligations to other Pacific islands
where those obligations are not currently present.
I would like to respond first by noting that the sudden
influx of a large number of aliens into Guam by sea was an
unforeseen circumstance that required the emergency deployment
of INS resources at very short notice to a place where that
level of resources had not previously been needed. As the INS
has no office anywhere that is over-staffed or over-budgeted
compared to the demands placed upon it to provide law
enforcement or immigration services, I can assure you that the
officers, attorneys and other personnel and resources detailed
to Guam have been very sorely missed in their regular duty
stations. I am sure that that is equally true of the Department
of Justice Executive Office for Immigration Review's personnel
detailed to Guam, and of the Coast Guard crews manning the
patrol vessels and aircraft operating in Guam waters.
Clearly, the INS needs to be prepared to deal with
unexpected immigration situations wherever in the United States
they occur--whether in Guam, South Florida, the Southwest
Border, or (should S. 1052 become law) the CNMI--and we do our
best to plan for them. That is a different situation, however,
than the introduction, on a schedule that is know in advance,
of INS services and enforcement to a territory of the United
States not previously served. That is a situation that can be
anticipated and addressed with appropriate planning and
budgeting with--if sufficient lead time and resources are
provided to the INS--no need to cut back immigration services
in other areas of the United States in order to serve the CNMI
properly. In short, the fact that the recent emergency in Guam,
and the proposal to extend the INA to the CNMI, both involve
nearby islands in the Pacific should not obscure the fact that
they really are not comparable.
Second, I want to address any perception that the
Administration's response to the Guam immigration situation has
not been adequate. In response to the Guam influx, the INS
worked closely with the White House, the National Security
Council, the Departments of State and Defense, the Coast Guard,
other components of the Department of Justice, and Guam
authorities to devise and implement an effective interdiction
and repatriation strategy. That strategy included the Coast
Guard's deployment of several cutters and a C-130 search and
rescue airplane. On land, the INS and the Executive Office of
Immigration Review deployed substantial resources in Guam, and
the U.S. Attorney for Guam and the Northern Mariana Islands has
pursued numerous prosecutions of smugglers responsible for the
influx.
As a result, the worst appears to be over and the situation
has stabilized. Much work remains to be done in Guam, however,
and we must remain vigilant against new attempts to target Guam
for alien smuggling. An outstanding responsibility is to
provide the funding necessary for the operation, including
reimbursing the government of Guam. The President has proposed
$19.4 million for this purpose. We hope the Congress provides
this funding.
It also has been said that the INS' use of a facility on
the island of Tinian in the CNMI to process Chinese aliens
interdicted at sea near Guam is inconsistent with the
Administration's support of extending the INA to the CNMI.
Since May 1998, numerous boats, primarily stateless fishing
vessels, attempting to reach Guam carrying Chinese nationals as
cargo have either landed on that island or have been
intercepted at sea by the Coast Guard. Most of the migrants
were found amid deplorable conditions, overcrowded in rusting,
dangerous vessels without lifeboats, sanitation facilities and
sufficient food and water.
In April of this year, after available detention space on
Guam was filled by the sudden influx of seaborne migrants, the
U.S. Department of Defense erected a camp on former World War
II airfields on Tinian, and island that is only 90 miles from
Guam. Approximately 500 migrants interdicted at sea were housed
temporarily in the Tinian facility, where they were processed
for repatriation to China. Each alien held on Tinian was
screened to determine whether the alien had a credible fear of
persecution if he or she were returned home. Those aliens who
established a credible fear were transported to the U.S.
mainland, placed in removal proceedings, and allowed to apply
for asylum. the rest of the aliens were returned to China. We
used Tinian again within the last month to process a boat with
about 140 Chinese national aboard.
Although it is evident from my testimony and the previous
record on this matter that the Administration and the CNMI
government have serious differences of opinion with respect to
the CNMI's immigration system, I want to take this opportunity
to inform the Committee that the CNMI government was extremely
cooperative and helpful with respect to the Tinian operation.
The Department of Justice thanks them for their assistance.
More tangibly, on September 7 the INS entered into a
reimbursement agreement with the U.S. Department of the
Interior enabling the INS to reimburse the CNMI government for
costs, primarily personnel expenses, it incurred in support of
the Tinian operation in the amount of approximately $750,000.
The INS has begun expeditious processing of the initial
billings received from the CNMI, and we expect payments to
begin very soon.
Mass alien smuggling by sea is a major immigration and
national security threat to the United States. The phenomenon
has the capability to create emergency situations that can
seriously harm and disrupt American communities, particularly
those as Guam that are especially vulnerable due to their small
size location or limited law enforcement resources. A vigorous
program of Coast Guard interdiction at sea, with diversion of
the aliens to locations where they can be more expeditiously
processed for repatriation than otherwise might be the case,
has proven to be an effective weapon that deters this type of
illegal migration. Possible interdiction sites that could
provide rapid repatriation capabilities are very few and far
between in the Western Pacific. In the Guam crisis, the INS was
able to use the nearby island of Tinian.
The Tinian operation was a short-term, emergency response
to an emergency situation. The purpose was to process for rapid
repatriation to their homeland an influx of exploited migrants
who arrived amid dangerous conditions. The INS sought to do
this in the most expeditious and humane way available, and in a
way that did not further worsen the difficult situation already
existing on Guam or encourage further smuggling voyages of this
type. The treatment of the migrants, including giving them an
opportunity to seek protection from persecution, was completely
consistent with the obligations of the United States under
international law.
Important as our interdiction concerns are, however, they
are substantially outweighed by the urgent need to bring a
workable, fair and just immigration system to an American
commonwealth that lacks one. The usefulness of having a site
for repatriation is not an argument in favor of not extending
federal immigration law to the CNMI, any more than it would be
an argument for exempting other border areas of the United
States from the INA. Of all the facts I have described, there
is one overarching fact that dictates our course: The CNMI is
American soil, and we must treat it as such. The Administration
firmly believes that the values and interests of the United
States, including the U.S. citizens of the CNMI, are best
served by extending the rights, protections, and obligations
the INA provides for aliens in other parts of the United States
to those in the CNMI, with appropriate transition provisions.
Conclusion: S. 1052, with certain improvements, should be enacted into
law
In conclusion, the Administration urges this Committee
favorably to report, and the Congress promptly to enact, S.
1052 with the needed improvements. Again, we appreciate the
invitation by the Committee to offer the views of the
Administration on this bill. I will be pleased to answer any
questions.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 1052, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
[Public Law 94-241]
JOINT RESOLUTION To approve the ``Covenant To Establish a Commonwealth
of the Northern Mariana Islands in Political Union with the United
States of America'', and for other purposes
* * * * * * *
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, That the
Covenant to Establish a Commonwealth of the Northern Mariana
Islands in Political Union with the United States of America,
the text of which is as follows, is hereby approved.
* * * * * * *
``Section 503. The following laws of the United States,
presently inapplicable to the Trust Territory of the Pacific
Islands, will not apply to the Northern Mariana Islands except
in the manner and to the extent made applicable to them by the
Congress by law after termination of the Trusteeship Agreement:
``(a) except as otherwise provided in Section 506,
the immigration and naturalization laws of the United
States;
``(b) except as otherwise provided in Subsection (b)
of Section 502, the coastwise laws of the United States
and any prohibition in the laws of the United States
against foreign vessels landing fish or unfinished fish
products in the United States; and
``(c) the minimum wage provisions of Section 6, Act
of June 25, 1938, 52 Stat. 1062, as amended
* * * * * * *
SEC. 6. IMMIGRATION AND TRANSITION.
(a) Application of the Immigration and Nationality Act and
Establishment of a Transition Program.--Effective on the first
day of the first full month commencing one year after the date
of enactment of the Northern Mariana Islands Covenant
Implementation Act (hereafter the ``transition program
effective date''), the provisions of the Immigration and
Nationality Act, as amended (8 U.S.C. 1101 et seq.) shall apply
to the Commonwealth of the Northern Mariana Islands: Provided,
That there shall be a transition period ending December 31,
2009 (except for subsection (d)(2)(I)) following the transition
program effective date, during which the Attorney General of
the United States (hereafter ``Attorney General''), in
consultation with the United States Secretaries of State,
Labor, and the Interior, shall establish, administer, and
enforce a transition program for immigration to the
Commonwealth of the Northern Mariana Islands provided in
subsections (b), (c), (d), (e), (f), (g) and (j) of this
section (hereafter the ``transition program''). The transition
program shall be implemented pursuant to regulations to be
promulgated as appropriate by each agency having
responsibilities under the transition program.
(b) Exemption From Numerical Limitations for H-2B Temporary
Workers.--An alien, if otherwise qualified, may seek admission
to the Commonwealth of the Northern Mariana Islands as a
temporary worker under section 101(a)(15)(H)(ii)(B) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(H)(ii)(B)) without regard to the numerical
limitations set forth in section 214(g) of such Act (8 U.S.C.
1184(g)).
(c) Temporary Alien Workers.--The transition program shall
conform to the following requirements with respect to temporary
alien workers who would otherwise not be eligible for
nonimmigrant classification under the Immigration and
Nationality Act:
(1) Aliens admitted under this subsection shall be
treated as nonimmigrants under section 101(a)(15) of
the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)), including the ability to apply, if
otherwise eligible, for a change of nonimmigrant
classification under section 248 of such Act (8 U.S.C.
1258), or adjustment of status, if eligible therefore,
under this section and section 245 of such Act (8
U.S.C. 1255).
(2)(A) The United States Secretary of the Labor shall
establish, administer, and enforce a system for
allocating and determining the number, terms, and
conditions of permits to be issued to prospective
employers for each temporary alien worker who would not
otherwise be eligible for admission under the
Immigration and Nationality Act. This system shall
provide for a reduction in the allocation of permits
for such workers on an annual basis, to zero, over a
period not to extend beyond December 31, 2009 and shall
take into account the number of petitions granted under
subsection (j). In no event shall a permit be valid
beyond the expiration of the transition period. This
system may be based on any reasonable method and
criteria determined by the United States Secretary of
Labor to promote the maximum use of, and to prevent
adverse effects on wages and working conditions of,
persons authorized to work in the United States,
including lawfully admissible freely associated state
citizen labor, taking into consideration the objective
of providing as smooth a transition as possible to the
full application of federal laws.
(B) The United States Secretary of Labor is
authorized to establish and collect appropriate user
fees for the purpose of this section. Amounts collected
pursuant to this section shall be deposited in a
special fund of the Treasury. Such amounts shall be
available, to the extent and in the amounts as provided
in advance in, appropriations acts, for the purposes of
administering this section. Such amounts are authorized
to be appropriated to remain available until expended.
(3) The Attorney General shall set the conditions for
admission of nonimmigrant temporary alien workers under
the transition program, and the United States Secretary
of State shall authorize the issuance of nonimmigrant
visas for aliens to engage in employment only as
authorized in this subsection: Provided, That such
visas shall not be valid for admission to the United
States, as defined in section 101(a)(38) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(38)),
except the Commonwealth of the Northern Mariana
Islands. An alien admitted to the Commonwealth of the
Northern Mariana Islands on the basis of such a
nonimmigrant visa shall be permitted to engage in
employment only as authorized pursuant to the
transition program. No alien shall be granted
nonimmigrant classification or a visa under this
subsection unless the permit requirements established
under paragraph (2) have been met.
(4) An alien admitted as a nonimmigrant pursuant to
this subsection shall be permitted to transfer between
employers in the Commonwealth of the Northern Mariana
Islands during the period of such alien's authorized
stay therein, without advance permission of the
employee's current or prior employer, to the extent
that such transfer is authorized by the Attorney
General in accordance with criteria established by the
Attorney General and the United States Secretary of
Labor.
(d) Immigrants.--With the exception of immediate relatives
(as defined in section 201(b)(2) of the Immigration and
Nationality Act (8 U.S.C. 1151(b)(2)) and persons granted an
immigrant visa as provided in paragraphs (1) and (2) of this
subsection, no alien shall be granted initial admission as a
lawful permanent resident of the United States at a port-of-
entry in the Commonwealth of the Northern Mariana Islands, or
at a port-of-entry in Guam for the purpose of immigrating to
the Commonwealth of the Northern Mariana Islands.
(1) Family-sponsored immigrants visas.--For any
fiscal year during which the transition program will be
in effect, the Attorney General, after consultation
with the Governor and the leadership of the Legislature
of the Commonwealth of the Northern Mariana Islands,
and in consultation with appropriate federal agencies,
may establish a specific number of additional initial
admissions as a family-sponsored immigrant at a port-
of-entry in the Commonwealth of the Northern Mariana
Islands, or at a port-of-entry in Guam for the purpose
of immigrating to the Commonwealth of the Northern
Mariana Islands, pursuant to sections 202 and 203(a) of
the Immigration and Nationality Act (8 U.S.C. 1152 and
1153(a)).
(2) Employment-based immigrant visas.--
(A) If the Attorney General, after
consultation with the United States Secretary
of Labor and the Governor and the leadership of
the Legislature of the Commonwealth of the
Northern Mariana Islands, finds that
exceptional circumstances exist with respect to
the inability of employers in the Commonwealth
of the Northern Mariana Islands to obtain
sufficient work-authorized labor, the Attorney
General may establish a specific number of
employment-based immigrant visas to be made
available during the following fiscal year
under section 203(b) of the Immigration and
Nationality Act (8 U.S.C. 1153(b)). The labor
certification requirements of section 212(a)(5)
of the Immigration and Nationality Act, as
amended (8 U.S.C. 1182(a)(5)) shall not apply
to an alien seeking immigration benefits under
this subsection.
(B) Upon notification by the Attorney General
that a number has been established pursuant to
subparagraph (A), the United States Secretary
of State may allocate up to that number of
visas without regard to the numerical
limitations set forth in sections 202 and
203(b)(3)(B) of the Immigration and Nationality
Act (8 U.S.C. 1152 and 1153(b)(3)(B)). Visa
numbers allocated under this subparagraph shall
be allocated first from the number of visas
available under section 203(b)(3) of such Act
(8 U.S.C. 1153(b)(3)), or, if such visa numbers
are not available, from the number of visas
available under section 203(b)(5) of such Act
(8 U.S.C. 1153(b)(5)).
(C) Persons granted employment-based
immigrant visas under the transition program
may be admitted initially at a port-of-entry in
the Commonwealth of the Northern Mariana
Islands, or at a port-of-entry in Guam for the
purpose of immigrating to the Commonwealth of
the Northern Mariana Islands, as lawful
permanent residents of the United States.
Persons who would otherwise be eligible for
lawful permanent residence under the transition
program, and who would otherwise be eligible
for an adjustment of status, may have their
status adjusted within the Commonwealth of the
Northern Mariana Islands to that of an alien
lawfully admitted for permanent residence.
(D) Any immigrant visa issued pursuant to
this paragraph shall be valid only for
application for initial admission to the
Commonwealth of the Northern Mariana Islands.
The admission of any alien pursuant to such an
immigrant visa shall be an admission for lawful
permanent residence and employment only in the
Commonwealth of the Northern Mariana Islands
during the first five years after such
admission. Such admission shall not authorize
residence or employment in any other part of
the United States during such five-year period.
An alien admitted for permanent residence
pursuant to this paragraph shall be issued
appropriate documentation identifying the
person as having been admitted pursuant to the
terms and conditions of this transition
program, and shall be required to comply with a
system for the registration and reporting of
aliens admitted for permanent residence under
the transition program, to be established by
the Attorney General, by regulation, consistent
with the Attorney General's authority under
Chapter 7 of Title II of the Immigration and
Nationality Act (8 U.S.C. 1301-1306).
(E) Nothing in this paragraph shall preclude
an alien who has obtained lawful permanent
resident status pursuant to this paragraph from
applying, if otherwise eligible, under this
section and under the Immigration and
Nationality Act for an immigrant visa or
admission as a lawful permanent resident under
the Immigration and Nationality Act.
(F) Any alien admitted under this subsection,
who violates the provisions of this paragraph,
or who is found removable or inadmissible under
section 237(a) (8 U.S.C. 1227(a)), or
paragraphs (1), (2), (3), (4)(A), (4)(B), (6),
(7), (8), (9) or (10) of section 212(a) (8
U.S.C. 1182(a)), shall be removed from the
United States pursuant to sections 235, 238,
239, 240, or 241 of the Immigration and
Nationality Act, as appropriate (8 U.S.C. 1225,
1228, 1229, 1230, and 1231).
(G) The Attorney General may establish by
regulation a procedure by which an alien who
has obtained lawful permanent resident status
pursuant to this paragraph may apply for a
waiver of the limiting terms and conditions of
such status. The Attorney General may grant the
application for waiver, in the discretion of
the Attorney General, if--
(i) the alien is not in removal
proceedings;
(ii) the alien has been a person of
good moral character for the preceding
five years;
(iii) the alien has not violated the
terms and conditions of the alien's
permanent resident status; and
(iv) the alien would suffer
exceptional and extremely unusual
hardship were such limiting terms and
conditions not waived.
(H) The limiting terms and conditions of an
alien's permanent residence set forth in this
paragraph shall expire at the end of five years
after the alien's admission to the Commonwealth
of the Northern Mariana Islands as a permanent
resident. Following the expiration of such
limiting terms and conditions, the permanent
resident alien may engage in any lawful
activity, including employment, anywhere in the
United States. Such an alien, if otherwise
eligible for naturalization, may count the
five-year period in the Commonwealth of the
Northern Mariana Islands towards time in the
United States for purposes of meeting the
residence requirements of Title III of the
Immigration and Nationality Act.
(I) Special provision to ensure adequate
employment in the tourism industry after the
transition period ends.--
(i) During 2008, and in 2014 if a
five year extension was granted, the
Attorney General and the United States
Secretary of Labor shall consult with
the Governor of the Commonwealth of the
Northern Mariana Islands and tourism
businesses in the Commonwealth of the
Northern Mariana Islands to ascertain the
current and future labor needs of the
tourism industry in the Commonwealth of
the Northern Mariana Islands, and to
determine whether a 5-year extension of
the provisions of this paragraph (d)(2)
would be necessary to ensure an adequate
number of workers for legitimate businesses
in the tourism industry. For the purpose of
this section, a business shall not be
considered legitimate if it engages directly
or indirectly in prostitution or any activity
that is illegal under federal or local law.
The determination of whether a business is
legitimate and whether it is sufficiently
related to the tourism industry shall be made
by the Attorney General in his sole discretion
and shall not be reviewable. If the Attorney
General after consultation with the United
States Secretary of Labor determines, in the
Attorney General's sole and unreviewable
discretion, that such an extension is necessary
to ensure an adequate number of workers for
legitimate businesses in the tourism industry,
the Attorney General shall provide notice by
publication in the Federal Register that the
provisions of this paragraph will be extended
for a 5-year period with respect to the tourism
industry only. the Attorney General may
authorize one further extension of this
paragraph with respect to the tourism industry
in the Commonwealth of the Northern Mariana
Islands if, after the Attorney General consults
with the United States Secretary of Labor and
the Governor of the Commonwealth of the Northern
Mariana Islands, and local tourism businesses,
the Attorney General determines, in the Attorney
General's sole discretion, that a further
extension is required to ensure an adequate
number of workers for legitimate businesses in
the tourism industry in the Commonwealth of the
Northern Mariana Islands. The determination as
to whether a further extension is required
shall not be reviewable.
(ii) The Attorney General, after
consultation with the Governor of the
Commonwealth of the North Mariana
Islands and the United States Secretary
of Labor and the United States
Secretary of Commerce, may extend the
provisions of this paragraph (d)(2) to
legitimate businesses in industries
outside the tourism industry for a
single 5 year period if the Attorney
General, in the Attorney General's sole
discretion, concludes that such
extension is necessary to ensure an
adequate number of workers in that
industry and that the industry is
important to growth or diversification
of the local economy. The decision by
the Attorney General shall not be
reviewable.
(iii) in making his determination for
the tourism industry or for industries
outside the tourism industry, the
Attorney General shall take into
consideration the extent to which a
training and recruitment program has
been implemented to hire persons
authorized to work in the United
States, including lawfully admissible
freely associated state citizen labor
to work in such industry. The
determination by the Attorney General
shall not be reviewable. No additional
extension beyond the initial 5 year
period may be granted, for any industry
outside the tourism industry or for the
tourism industry beyond a second
extension. If an extension is granted,
the Attorney General shall submit a
report to the Committee on Energy and
Natural Resources of the Senate and the
Committee on Resources of the House of
Representatives setting forth the
reasons for the extension and whether
he believes authority for additional
extensions shall be enacted.
(e) Nonimmigrant Investor Visas.--
(1) Notwithstanding the treaty requirements in
section 101(a)(15)(E) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(E)), the Attorney
General may, upon the application of the alien,
classify an alien as a nonimmigrant under section
101(a)(15)(E)(ii) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(15)(E)(ii) if the alien--
(A) has been admitted to the Commonwealth of
the Northern Mariana Islands in long-term
investor status under the immigration laws of
the Commonwealth of the Northern Mariana
Islands before the transition program effective
date;
(B) has continuously maintained residence in
the Commonwealth of the Northern Mariana
Islands under long-term investor status;
(C) is otherwise admissible; and
(D) maintains the investment or investments
that formed the basis for such long-term
investor status.
(2) Within 180 days after the transition program
effective date, the Attorney General and the United
States Secretary of State shall jointly publish
regulations in the Federal Register to implement this
subsection.
(3) The Attorney general shall treat an alien who
meets the requirements of paragraph (1) as a
nonimmigrant under section (101(a)(15)(E)(ii)) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(E)(ii) until the regulations implementing
this subsection are published.
(f) Persons Lawfully Admitted Under the Commonwealth of the
Northern Mariana Islands Immigration Law.--
(1) No alien who is lawfully present in the
Commonwealth of the Northern Mariana Islands pursuant
to the Immigration laws of the Commonwealth of the
Northern Mariana Islands on the transition program
effective date shall be removed from the United States
on the ground that such alien's presence in the
Commonwealth of the Northern Mariana Islands is in
violation of subparagraph 212(a)(6)(A) of the
Immigration and Nationality Act, as amended, until
completion of the period of the alien's admission under
the immigration laws of the Commonwealth of the
Northern Mariana Islands, or the second anniversary of
the transition program effective date, whichever comes
first. Nothing in this subsection shall be construed to
prevent or limit the removal under subparagraph
212(a)(6)(A) of such an alien at any time, if the alien
entered the Commonwealth of the Northern Mariana Islands
after the date of enactment of the Northern Mariana Islands
Covenant Implementation Act, and the Attorney General has
determined that the Government of the Commonwealth of the
Northern Mariana Islands violated subsection (f) of such Act.
(2) Any alien who is lawfully present and authorized
to be employed in the Commonwealth of the Northern
Mariana Islands pursuant to the immigration laws of the
Commonwealth of the Northern Mariana Islands on the
transition program effective date shall be considered
authorized by the Attorney General to be employed in
the Commonwealth of the Northern Mariana Islands until
the expiration of the alien's employment authorization
under the immigration laws of the Commonwealth of the
Northern Mariana Islands, or the second anniversary of
the transition program effective date, whichever comes
first.
(g) Travel Restrictions for Certain Applicants for
Asylum.--Any alien admitted to the Commonwealth of the Northern
Mariana Islands pursuant to the immigration laws of the
Commonwealth of the Northern Mariana Islands or pursuant to
subsections (c) or (d) of this section who files an application
seeking asylum or withholding of removal in the United States
shall be required to remain in the Commonwealth of the Northern
Mariana Islands during the period of time the application is
being adjudicated or during any appeals filed subsequent to
such adjudication. An applicant for asylum or withholding of
removal who, during the time his application is being
adjudicated or during any appeals filed subsequent to such
adjudication, leaves the Commonwealth of the Northern Mariana
Islands of his own will without prior authorization by the
Attorney General thereby abandons the application, unless the
Attorney General, in the exercise of the Attorney General's
sole discretion determines that the unauthorized departure was
for emergency reasons and prior authorization was not
practicable.
(h) Effect on Other Laws.--The provisions of this section
and the Immigration and Nationality Act, as amended by the
Northern Mariana Islands Covenant Implementation Act, shall, on
the transition program effective date, supersede and replace
all laws, provisions, or programs of the Commonwealth of the
Northern Mariana Islands relating to the admission of aliens
and the removal of aliens from the Commonwealth of the Northern
Mariana Islands.
(i) Accrual of Time for Purposes of Section 212(a)(9)(B) of
the Immigration and Nationality Act, as amended.--No time that
an alien is present in violation of the immigration laws of the
Commonwealth of the Northern Mariana Islands shall by reason of
such violation be counted for purposes of the ground of
inadmissibility in section 212(a)(9)(B) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(9)(B)).
(j) One-time Grandfather Provision for Certain Long-Term
Employees.--
(1) An alien may be granted an immigration visa, or
have his or her status adjusted in the Commonwealth of
the Northern Mariana Islands to that of an alien
lawfully admitted for permanent residence, without
regard to the numerical limitations set forth in
sections 202 and 203(b) of the Immigration and
Nationality Act, as amended (8 U.S.C. 1152, 1153(b))
and subject to the limiting terms and conditions of an
alien's permanent residence set forth in paragraphs (C)
through (H) of subsection (d)(2), if:
(A) the alien is employed directly by an
employer in a business that the Attorney
General has determined is legitimate;
(B) the employer has filed a petition for
classification of the alien as an employment-
based immigrant with the Attorney General
pursuant to section 204 of the Immigration and
Nationality Act, as amended, not later than 180
days following the transition program effective
date;
(C) the alien has been lawfully present in
the Commonwealth of the Northern Mariana
Islands and authorized to be employed in the
Commonwealth of the Northern Mariana Islands
for the five-year period immediately preceding
the filing of the petition;
(D) the alien has been employed continuously
in that business by the petitioning employer
for the 5-year period immediately preceding the
filing of the petition;
(E) the alien continues to be employed in
that business by the petitioning employer at
the time the immigrant visa is granted or the
alien's status is adjusted to permanent
resident;
(F) the petitioner's business has a
reasonable expectation of generating sufficient
revenue to continue to employ the alien in that
business for the succeeding five years, and
(G) the alien is otherwise eligible for
admission to the United States under the
provisions of the Immigration and Nationality
Act, as amended (8 U.S.C. 1101, et seq.).
(2) Visa numbers allocated under this subsection
shall be allocated first from the number of visas
available under paragraph 203(b)3) of the Immigration
and Nationality Act, as amended (8 U.S.C. 1153(b)(3)),
or, if such visa numbers are not available, from the
number of visas available under paragraph 203(b)(5) of
such Act (8 U.S.C. 1153(b)(5)).
(3) The labor certification requirements of section
212 (a)(5) of the Immigration and Nationality Act, as
amended (8 U.S.C. 1182(a)(5)) shall not apply to an
alien seeking immigration benefits under this
subsection.
(4) The fact that an alien is the beneficiary of an
application for a preference status that was filed with
the Attorney General under section 204 of the Immigration and
Nationality Act, as amended (8 U.S.C. 1154) for the purpose of
obtaining benefits under this subsection, or has otherwise
sought permanent residence pursuant to this subsection, shall
not render the alien ineligible to obtain or maintain the
status of a nonimmigrant under this Act or the Immigration and
Nationality Act, as amended, if the alien is otherwise
eligible for such nonimmigrant status.
----------
[Public Law 414--June 27, 1952]
AN ACT To revise the laws relating to immigration, naturalization, and
nationality; and for other purposes.
* * * * * * *
Sec. 101. (a) * * *
* * * * * * *
(36) The term ``State'' includes the District of Columbia,
Puerto Rico, Guam, [and the Virgin Islands of the United
States.] the Virgin Islands of the United States, and the
Commonwealth of the Northern Mariana Islands.
* * * * * * *
(38) The term ``United States'', except as otherwise
specifically herein provided, when used in a geographical
sense, means the continental United States, Alaska, Hawaii,
Puerto Rico, Guam, [and the Virgin Islands of the United
States.] the Virgin Islands of the United States, and the
Commonwealth of the Northern Mariana Islands.
* * * * * * *
(l) Guam; Waiver of Requirements for Nonimmigrant Visitors;
Conditions of Waiver; Acceptance of Funds From Guam.--
(1) The requirement of paragraph (7)(B)(i) of
subsection (a) of this section may be waived by the
Attorney General, the Secretary of State, and the
Secretary of the Interior, acting jointly, in the case
of an alien applying for admission as a non-immigrant
visitor for business or pleasure and solely for entry
into and [stay on Guam] stay on Guam and the
Commonwealth of the Northern Mariana Islands for a
period not to exceed a total of fifteen days, if the
Attorney General, the Secretary of the State and the
Secretary of the Interior, [after consultation with the
Governor of Guam,] after respective consultation with
the Governor of Guam or the Governor of the
Commonwealth of the Northern Mariana Islands, jointly
determine that--
(A) an adequate arrival and departure control
system has been developed [on Guam,] on Guam or
the Commonwealth of the Northern Mariana
Islands, respectively, and
(B) such as waiver does not represent a
threat to the welfare, safety, or security of
the United States or its territories and
commonwealths.
(2) an alien may not be provided a waiver under this
subsection unless the alien has waived any right--
(A) to review or appeal under this Act of an
immigration officer's determination as to the
admissibility of the alien at the port of entry
[into Guam,] into Guam or the Commonwealth of
the Northern Mariana Islands, respectively, or
(B) to contest, other than on the basis of an
application for asylum, any action for removal
of the alien.
(3) If adequate appropriated funds to carry out this
subsection are not otherwise available, the Attorney
General is authorized to accept from the [Government of
Guam] Government of Guam or the Government of the
Commonwealth of the Northern Mariana Islands such funds
as may be tendered to cover all or any part of the cost
of administration and enforcement of this subsection.