[Senate Report 107-28]
[From the U.S. Government Publishing Office]
Calendar No. 63
107th Congress Report
SENATE
1st Session 107-28
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NORTHERN MARIANA ISLANDS COVENANT IMPLEMENTATION ACT
_______
June 5, 2001.--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. 507]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 507) 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 without
amendment and recommends that the bill do pass.
Purpose of the Measure
S. 507 is identical to S. 1052 as passed by the Senate
during the 106th Congress. S. 507 amends the legislation
approving the Covenant for the Commonwealth of the Northern
Mariana Islands (CNMI) to--
(1) extend federal immigration law to the CNMI;
(2) provide a transition period ending December 31,
2009 with provisions during that period for issuance of
nonimmigrant temporary alien worker visas, imposition
of user fees, and applicable authorization for 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;
(3) permit the Attorney General to extend the
transition period for legitimate businesses in the
tourist industry for not more than two successive five
year periods and for one five year period for
legitimate businesses in other industries;
(4) provide a one-time grandfather provision for
individuals who have worked in legitimate businesses
for the past four years; and
(5) require 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 the early 1970's, when the
Committee was consulted on the issue during the negotiations
that led to the Covenant that would make the Northern Marianas
a territory of the United States. At the time, the Northern
Marianas was a district of the Trust Territory of the Pacific
Islands, a United Nations Trusteeship with the United States as
Administering Authority. Although originally Federal
immigration laws were to apply immediately upon approval of the
Covenant, that position changed when the United States decided
that it would not seek immediate termination of the United
Nations' Trusteeship for the Trust Territory of the Pacific
Islands solely for the Northern Mariana Islands. Immigration
and naturalization are an essential aspect of United States
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. Given the delay, the Covenant
provided that federal immigration laws would not apply until
after the Trusteeship terminated and formal US sovereignty was
extended over the area.
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 its 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-term
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 cannot participate in the community while
unemployment among United States citizen residents remains
about 15%. 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 United States 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 Mariana 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 Mariana islands,
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 Leagueof 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 in 1944 and the bases on
Tinian were used for the invasion of Okinawa and for raids on Japan,
including the nuclear missions on Hiroshima and Nagasaki. 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 districts (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. In general, and with few
exceptions, the Covenant provided for the application of
Federal laws to the CNMI as those laws applied to Guam.
Although the CNMI had sought an exemption from Federal
immigration law, the U.S. position that those laws would apply
prevailed and the CNMI negotiators agreed. However, when the
United States decided not to seek separate termination of the
Trusteeship for the CNMI only, the CNMI again raised the
question of the application of Federal immigration law since
application implicated U.S. sovereignty. The United States
would not agree to an exemption, but rather proposed deferral
of application. Termination finally 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 were consistent with the status
of the area were made applicable by the U.S. as Administering
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 FederalGovernment 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 for the CNMI in 1986,
the CNMI became a territory of the United States under US
sovereignty 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 estimated at 79,429. The rapid increase in population
coincides with the assumption of immigration control by the
CNMI. According to the most recent statistical survey by the
CNMI, 78% of the CNMI population were United States citizens in
1980. That figure had declined to less than 47% by 1990 and to
42% by 1991. In 1980, total non-US 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.
Shortly 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 or older including
temporary alien labor) grew from 9,599 in 1980 to 32,522 in
1990. Manufacturing grew from 1.9% of the workforce in 1980 to
21.9% in 1990, only slightly behind construction which grew
from 16.8% to 22.2% 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 3,00 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%, with CNMI born at 14.2% and Asia
born at 4.5%. The draft 1999 second quarter report from the
CNMI Central Statistics Division lists unemployment among CNMI-
born U.S. citizens at 15.3% with non-resident non-citizen
unemployment at 3.1%. Of the 15,251 United States 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% in 1973 to 37.8% in 1980 to 74.9% in 1990
with a decline to 73.3% in 1995. Recent statistics indicate
that non-US citizens represent 77.4% of the labor force on
Saipan in the first quarter of 1999. The comparable figure for
Saipan for 1995 was 74.9%. 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% were
non-U.S. citizens. For the private sector on Saipan during the
same period, 84% of the workforce were non-US 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 listed a variety of job offers, including: Plumber--
$3.25/hr; Accountant--$3.05/hr; Carpenter--$3.05/hr; and
Electrician--$4.15/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 United States
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 ofCommerce 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 to the 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 US
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 of 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 United States 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 to 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 United States 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
protestors, 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 United
States 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 US proper, such workers would be admitted for
residence and could become citizens. Worse, the children of
these workers are United States citizens. The children of
foreign mothers now account for 16% of United States 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 law unless Interior underwrote the cost.
--The relationship between INS and the local Department was
very bad and the United States 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 United
States takeover. Specifically, the Report recommended:
--phase out (3-5 years) foreign contract workers in
explotive industries (garment workers, domestic, 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
US;
--effective prescreening of foreign contract workers
as is done elsewhere in the US;
--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 provisions 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 the previous Congress, with a minor amendment.
The presence of a large alien population in the CNMI is not
simply a matter of localconcern. Althoughe 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 United States
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 United States 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 were 1,890 with the percentage of United States citizen
mothers at 25%. While some of the presumed non-citizen mothers are
likely to be married to CNMI residents, others are not and all entered
outside of Federal immigration laws. The result is that there is an
increasing number of persons obtaining United States citizenship
outside the boundaries of United States immigration and naturalization
law. 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 United
States 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 transhipment of drugs. The June
17, 1999 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 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 not 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.
The Committee held a hearing on S. 1052 on September 14,
1999. After considering the testimony from the Governor and
others from the CNMI and from the Administration, the Committee
considered S. 1052 at a business meeting on October 20, 1999.
The Committee responded to the concerns raised by both the
representatives from the CNMI and the Administration by
adopting an amendment in the nature of a substitute. The
Committee described its action as follows:
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
immigration 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 genuine commitment 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
laws. While there 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 a 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 regulations. 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 transition period not 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 authorized 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 year 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 on 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 and local agency authority
during the transition should obviate the need for any
extension. The Committee amendment also require 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 what 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.
One criticism of the CNMI was that certain aliens were
hired and remained in the CNMI for extended periods without 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 business 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 had 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 legitimate businesses 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 actions 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.
(S. Rept. 106-204, pp.20-23)
During consideration by the Senate, several minor changes
were made to the legislation. Most notably, the grandfather
provision was expanded to require that an employee needed to
have been employed only for four rather than five years;
provisions for borrowing from other categories of visas that
are not completely used so as not to increase the overall
authorized total of immigrants were deleted and a provision
inserted that visas issued under this act would simply not
count against any numerical limitation; provisions making
certain determinations non-reviewable were deleted although the
language providing that a decision was within the sole
discretion of the Attorney General was retained; certain
limiting terms and conditions attached to visas restricting
permanent residency and ability to work only to the CNMI were
deleted as were travel restrictions on aliens applying for
asylum under federal law.
Conclusion
The Committee continues to believe that Federal immigration
laws should be extended to the Commonwealth at this time. The
Covenant provided only for a deferral of the application of
federal immigration laws as a result of the decision to
postpone termination of the Trusteeship. The Covenant
contemplated that the laws would be extended at some point
after termination, and further delay can only serve to
exacerbate current problems and the burden on local government
in trying to replicate federal capabilities 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 legislation, as passed by the
Senate during the last Congress, addresses those concerns and
significantly expands the provisions contained in the measure
reported during the previous Congress. This legislation 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 diversify
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 and limited disruption
to the local economy, especially if federal agencies consult
closely with the local elected officials in the implementation
and enforcement of Federal laws.
Legislative History
S. 507 is identical to S. 1052 of the 106th Congress as
passed by the Senate. S. 1052 was introduced on May 13, 1999
and was similar to sections 1 and 2 of S. 1275 as reported by
the Committee during the 105th Congress. A hearing was held on
S. 1052 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. On February 7,
2000, the Senate debated the measure (CR S355-367, S369-373),
and unanimously passed the legislation and minor amendments to
the Committee amendment. On February 15, 2000, the legislation
was referred to the Committee on Resources of the House of
Representatives. The House took no further action on S. 1052.
S. 507 was introduced by Senators Murkowski, Akaka, and
Bingaman on March 8, 2001. At the business meeting on May 23,
2001, the Committee on Energy and Natural Resources ordered S.
507 favorably reported without amendment.
Committee Recommendations and Tabulation of Votes
The Committee on Energy and Natural Resources, in open
business session on May 23, 2001, by a majority vote of a
quorum present, recommends that the Senate pass S. 507, if
amended as described herein.
The rollcall vote on reporting the measure was 18 yeas, 4
nays, as follows:
YEAS NAYS
Mr. Murkowski Mr. Nickles*
Mr. Domenici* Mr. Thomas
Mr. Craig Mr. Burns
Mr. Campbell Mr. Kyl
Mr. Shelby*
Mr. Hagel
Mr. Smith
Mr. Bingaman
Mr. Akaka
Mr. Dorgan
Mr. Graham
Mr. Wyden
Mr. Johnson
Ms. Landrieu
Mr. Bayh
Mrs. Feinstein*
Mr. Shumer*
Ms. Cantwell
*Indicates voted by proxy.
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 of 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 workers; 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
geographical 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 excerpt from
pages 20-23 of Senate Report 106-204 set forth in the
Background and Need portion 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.
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 limitations under 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 United States 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) 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 (C) provides that an alien who has obtained
lawful permanent resident status 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 (D) provides for not more than two five-year
extensions, as necessary, of the employment-based immigrant
visa provisions 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 in the
excerpt from last Congress'
Report discussing the amendment adopted by the Committee.
Subsection (e) deals with nonimmigrant investor visas and
self-explanatory.
Subsection (f) deals with persons lawfully admitted into
the CNMI under local law and is self-explanatory.
Subsection (g) deals with the effect of these provisions on
other law and is self-explanatory.
Subsection (h) provides that no time spent by an alien in
the CNMI in violation of CNMI law would count towards admission
and is self-explanatory.
Subsection (i) provides a one-time grandfather for certain
long-term employees and is more fully discussed in the excerpt
from the Report from last Congress describing the Committee
amendment.
Subsection (j) provides that any visa issued under this
section shall not count against any numerical limitation under
the Immigration and Nationality Act.
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 excerpt from pages 20-23 of
the Committee's Report from the last Congress on S. 1052 (S.
Rept, 106-204) set forth in the Background and Need section of
this Report. 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 (d) provides administrative authority
for the Departments of Justice and Labor to implement the
statute and is self-explanatory.
Section 2, subsection (e) provides for a report to Congress
and is discussed more fully in the excerpt from pages 20-23 of
the Committee's Report from the last Congress on S. 1052 (S.
Rept. 106-204) set forth in the Background and Need section of
this Report.
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. On November 19, 1999, the Congressional Budget Office
submitted a cost estimate for S. 1052, legislation that is
virtually identical to S. 507. At that time, CBO estimated that
enactment of S. 1052 would, assuming appropriations, increase
costs, mostly at the Immigration and Naturalization Service by
about $6 million over the 2000-2004 period. It also found that
there would be direct spending as a result of INS being able to
spend fees that it collected although there would be no
significant net budgetary impact. CBO also concluded that S.
1052 contained insignificant intergovernmental mandates 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. 507. 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 Marina Islands. If the Commonwealth
administers and enforces and 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. 507, as ordered reported, but the Committee does not
believe that it would be significant.
Executive Communications
The pertinent legislative report received by the Committee
from the Department of Justice setting forth Executive agency
recommendations relating to S. 507 is set forth below:
Department of Justice,
Office of Legislative Affairs,
Washington, DC, May 15, 2001.
Hon. Frank H. Murkowski,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Department of Justice on S. 507, the ``Northern Mariana Islands
Covenant Act.'' We strongly support S. 507.
S. 507 would extend the Immigration and Nationality Act to
the Commonwealth of the Northern Mariana Islands (``CNMI''). It
contains special provisions to allow for the orderly
application of national immigration law, taking into account
the local economy in this newest United States territory. S.
507 is identical to S. 1052 from the 106th Congress.\1\
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\1\ The Senate passed S. 1052, but the House of Representatives did
not act on the bill.
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We believe that S. 507 would improve immigration policy by
guarding against the exploitation and abuse of individuals, by
helping to ensure that the United States adheres to its
international treaty obligation to protect refugees, and by
further hindering the entry into United States territory of
aliens engaged in international organized crime, terrorism, or
other such activities. Consequently, we support S. 507 and urge
its passage.
This bill has resource implications for the Executive
branch. If it passes, we look forward to working with the
appropriate committees to ensure that the necessary resources
are dedicated to achieve the purpose of the bill.
Thank you for the opportunity to present our views. Please
do not hesitate to call upon us if we may be of further
assistance. The Office of Management and Budget has advised us
that, from the standpoint of the Administration's program,
there is no objection to the submission of this letter.
Sincerely,
Daniel J. Bryant,
Assistant Attorney General.
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. 507, 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 92-241]
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.
* * * * * * *
Sec. 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. 110 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)(D)) 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), and (i) 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 counting against 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 (i). 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
ofproviding 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 Untied 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 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 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) 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.
(C) 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.
(D) 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
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
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.
(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.
(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. 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
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) Effect on Other Laws.--The provisions of this section
and the Immigration and Nationality Act, as amended by the
Northern Mariana Islands CovenantImplementation 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.
(h) 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)).
(i) 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 (B)
and (C) 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 4-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 four 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) 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.
(3) 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.
(j) Statutory Construction.--Nothing in this section may be
construed to count the issuance of any visa to an alien, or the
grant of any admission of an alien, under this section toward
any numerical limitation contained in the Immigration and
Nationality Act.
----------
[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.
* * * * * * *
(1) 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 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 as
may be tendered to cover all or any part of the cost of
administration and enforcement of this subsection.