[Senate Report 115-214]
[From the U.S. Government Publishing Office]
Calendar No. 354
115th Congress } { Report
SENATE
2d Session ] { 115-214
======================================================================
NORTHERN MARIANA ISLANDS U.S. WORKFORCE ACT
_______
March 20, 2018.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 2325]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2325) to incentivize the hiring of United
States workers in the Commonwealth of the Northern Mariana
Islands, and for other purposes, having considered the same,
reports favorably thereon with an amendment in the nature of a
substitute and recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Northern Mariana Islands U.S.
Workforce Act''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to increase the percentage of United States workers (as
defined in section 6(i) of the Joint Resolution entitled ``A
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''
(48 U.S.C. 1806)) in the total workforce of the Commonwealth of
the Northern Mariana Islands, while maintaining the minimum
number of workers who are not United States workers to meet the
changing demands of the Northern Mariana Islands' economy;
(2) to encourage the hiring of United States workers into
such workforce; and
(3) to ensure that no United States worker--
(A) is at a competitive disadvantage for employment
compared to a worker who is not a United States worker;
or
(B) is displaced by a worker who is not a United
States worker.
SEC. 3. TRANSITIONAL PROVISIONS.
(a) In General.--Section 6 of the Joint Resolution entitled ``A
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''
(48 U.S.C. 1806) is amended--
(1) in subsection (a)--
(A) in paragraph (2), by striking ``2019'' and
inserting ``2029''; and
(B) by amending paragraph (6) to read as follows:
``(6) Fees for training united states workers.--
``(A) Supplemental fee.--
``(i) In general.--In addition to fees
imposed pursuant to section 286(m) of the
Immigration and Nationality Act (8 U.S.C.
1356(m)) to recover the full costs of
adjudication services, the Secretary shall
impose an annual supplemental fee of $200 per
nonimmigrant worker on each prospective
employer who is issued a permit under
subsection (d)(3) during the transition
program. A prospective employer that is issued
a permit with a validity period of longer than
1 year shall pay the fee for each year of
requested validity at the time the permit is
issued.
``(ii) Inflation adjustment.--Beginning in
fiscal year 2020, the Secretary, through notice
in the Federal Register, may annually adjust
the supplemental fee imposed under clause (i)
by a percentage equal to the annual change in
the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor
Statistics.
``(iii) Use of funds.--Amounts collected
pursuant to clause (i) shall be deposited into
the Treasury of the Commonwealth Government for
the sole and exclusive purpose of funding
vocational education, apprenticeships, or other
training programs for United States workers.
``(iv) Fraud prevention and detection fee.--
In addition to the fees described in clause
(i), the Secretary--
``(I) shall impose, on each
prospective employer filing a petition
under this subsection for 1 or more
nonimmigrant workers, a $50 fraud
prevention and detection fee; and
``(II) shall deposit and use the fees
collected under subclause (I) in
accordance with section 286(v)(2)(B) of
the Immigration and Nationality Act (8
U.S.C. 1356(v)(2)(B)).
``(B) Plan for the expenditure of funds.--Not later
than 120 days before the first day of fiscal year 2020,
and annually thereafter, the Governor of the
Commonwealth Government shall submit to the Secretary
of Labor--
``(i) a plan for the expenditures of amounts
deposited under subparagraph (A)(iii);
``(ii) a projection of the effectiveness of
such expenditures in the placement of United
States workers into jobs held by non-United
States workers; and
``(iii) a report on the changes in employment
of United States workers attributable to
expenditures of such amounts during the
previous year.
``(C) Determination and report.--Not later than 120
days after receiving each expenditure plan under
subparagraph (B)(i), the Secretary of Labor shall--
``(i) issue a determination on the plan; and
``(ii) submit a report to Congress that
describes the effectiveness of the Commonwealth
Government at meeting the goals set forth in
such plan.
``(D) Payment restriction.--Payments may not be made
in a fiscal year from amounts deposited under
subparagraph (A)(iii) before the Secretary of Labor has
approved the expenditure plan submitted under
subparagraph (B)(i) for that fiscal year.'';
(2) in subsection (b), by adding at the end the following:
``(3) Report.--Not later than December 1, 2027, the Secretary
shall submit a report to the Committee on Energy and Natural
Resources of the Senate, the Committee on the Judiciary of the
Senate, the Committee on Natural Resources of the House of
Representatives, and the Committee on the Judiciary of the
House of Representatives that--
``(A) projects the number of asylum claims the
Secretary anticipates following the termination of the
transition period; and
``(B) describes the efforts of the Secretary to
ensure appropriate interdiction efforts, provide for
appropriate treatment of asylum seekers, and prepare to
accept and adjudicate asylum claims in the
Commonwealth.'';
(3) in subsection (d)--
(A) by redesignating paragraphs (2) through (5) as
paragraphs (3) through (6), respectively;
(B) by inserting after paragraph (1) the following:
``(2) Protection for united states workers.--
``(A) Temporary labor certification.--
``(i) In general.--Beginning in fiscal year
2020, a petition to import a nonimmigrant
worker under this subsection may not be
approved by the Secretary unless the petitioner
has applied to the Secretary of Labor for a
temporary labor certification confirming that--
``(I) there are not sufficient United
States workers in the Commonwealth who
are able, willing, qualified, and
available at the time and place needed
to perform the services or labor
involved in the petition; and
``(II) employment of the nonimmigrant
worker will not adversely affect the
wages and working conditions of
similarly employed United States
workers.
``(ii) Petition.--After receiving a temporary
labor certification under clause (i), a
prospective employer may submit a petition to
the Secretary for a Commonwealth Only
Transitional Worker permit on behalf of the
nonimmigrant worker.
``(B) Prevailing wage survey.--
``(i) In general.--In order to effectuate the
requirement for a temporary labor certification
under subparagraph (A)(i), the Secretary of
Labor shall use, or make available to
employers, an occupational wage survey
conducted by the Governor that the Secretary of
Labor has determined meets the statistical
standards for determining prevailing wages in
the Commonwealth on an annual basis.
``(ii) Alternative method for determining the
prevailing wage.--In the absence of an
occupational wage survey approved by the
Secretary of Labor under clause (i), the
prevailing wage for an occupation in the
Commonwealth shall be the arithmetic mean of
the wages of workers similarly employed in the
territory of Guam according to the wage
component of the Occupational Employment
Statistics Survey conducted by the Bureau of
Labor Statistics.
``(C) Minimum wage.--An employer shall pay each
Commonwealth Only Transitional Worker a wage that is
not less than the greater of--
``(i) the statutory minimum wage in the
Commonwealth;
``(ii) the Federal minimum wage; or
``(iii) the prevailing wage in the
Commonwealth for the occupation in which the
worker is employed.'';
(C) by amending paragraph (3), as redesignated, to
read as follows:
``(3) Permits.--
``(A) In general.--The Secretary shall establish,
administer, and enforce a system for allocating and
determining terms and conditions of permits to be
issued to prospective employers for each nonimmigrant
worker described in this subsection who would not
otherwise be eligible for admission under the
Immigration and Nationality Act (8 U.S.C. 1101 et
seq.).
``(B) Numerical cap.--The number of permits issued
under subparagraph (A) may not exceed--
``(i) 13,000 for fiscal year 2019;
``(ii) 12,500 for fiscal year 2020;
``(iii) 12,000 for fiscal year 2021;
``(iv) 11,500 for fiscal year 2022;
``(v) 11,000 for fiscal year 2023;
``(vi) 10,000 for fiscal year 2024;
``(vii) 9,000 for fiscal year 2025;
``(viii) 8,000 for fiscal year 2026;
``(ix) 7,000 for fiscal year 2027;
``(x) 6,000 for fiscal year 2028;
``(xi) 5,000 for fiscal year 2029; and
``(xii) 1,000 for the first quarter of fiscal
year 2030.
``(C) Reports regarding the percentage of united
states workers.--
``(i) By governor.--Not later than 60 days
before the end of each calendar year, the
Governor shall submit a report to the Secretary
that identifies the ratio between United States
workers and other workers in the Commonwealth's
workforce based on income tax filings with the
Commonwealth for the tax year.
``(ii) By gao.--Not later than December 31,
2019, and biennially thereafter, the
Comptroller General of the United States shall
submit a report to the Chair and Ranking Member
of the Committee on Energy and Natural
Resources of the Senate, the Chair and Ranking
Member of the Committee on Natural Resources of
the House of Representatives, the Chair and
Ranking Member of the Committee on Health,
Education, Labor, and Pensions of the Senate
and the Chair and Ranking Member of the
Committee on Education and the Workforce of the
House of Representatives that identifies the
ratio between United States workers and other
workers in the Commonwealth's workforce during
each of the previous 5 calendar years.
``(D) Petition; issuance of permits.--
``(i) Submission.--A prospective employer may
submit a petition for a permit under this
paragraph not earlier than--
``(I) 120 days before the date on
which the prospective employer needs
the beneficiary's services; or
``(II) if the petition is for the
renewal of an existing permit, not
earlier than 180 days before the
expiration of such permit.
``(ii) Employment verification.--The
Secretary shall establish a system for each
employer of a Commonwealth Only Transitional
Worker to submit a semiannual report to the
Secretary and the Secretary of Labor that
provides evidence to verify the continuing
employment and payment of such worker under the
terms and conditions set forth in the permit
petition that the employer filed on behalf of
such worker.
``(iii) Revocation.--
``(I) In general.--The Secretary, in
the Secretary's discretion, may revoke
a permit approved under this paragraph
for good cause, including if--
``(aa) the employer fails to
maintain the continuous
employment of the subject
worker, fails to pay the
subject worker, fails to timely
file a semiannual report
required under this paragraph,
or commits any other violation
of the terms and conditions of
employment;
``(bb) the beneficiary of
such petition does not apply
for admission to the
Commonwealth by the date that
is 10 days after the period of
petition validity begins, if
the employer has requested
consular processing; or
``(cc) the employer fails to
provide a former, current, or
prospective Commonwealth Only
Transitional Worker, not later
than 21 business days after
receiving a written request
from such worker, with the
original (or a certified copy
of the original) of all
petitions, notices, and other
written communication related
to the worker (other than
sensitive financial or
proprietary information of the
employer, which may be
redacted) that has been
exchanged between the employer
and the Department of Labor,
the Department of Homeland
Security, or any other Federal
agency or department.
``(II) Reallocation of revoked
petition.--Notwithstanding subparagraph
(C), for each permit revoked under
subclause (I) in a fiscal year, an
additional permit shall be made
available for use in the subsequent
fiscal year.
``(iv) Legitimate business.--
``(I) In general.--A permit may not
be approved for a prospective employer
that is not a legitimate business.
``(II) Defined term.--In this clause,
the term `legitimate business' means a
real, active, and operating commercial
or entrepreneurial undertaking that the
Secretary, in the Secretary's sole
discretion, determines--
``(aa) produces services or
goods for profit, or is a
governmental, charitable, or
other validly recognized
nonprofit entity;
``(bb) meets applicable legal
requirements for doing business
in the Commonwealth;
``(cc) has substantially
complied with wage and hour
laws, occupational safety and
health requirements, and all
other Federal and Commonwealth
requirements related to
employment during the preceding
5 years;
``(dd) does not directly or
indirectly engage in
prostitution, human
trafficking, or any other
activity that is illegal under
Federal or Commonwealth law;
and
``(ee) is a participant in
good standing in the E Verify
program.
``(v) Construction occupations.--A permit for
Construction and Extraction Occupations (as
defined by the Department of Labor as Standard
Occupational Classification Group 47-0000) may
not be issued for any worker other than a
worker described in paragraph (7)(B).'';
(D) in paragraph (4), as redesignated, by inserting
``or to Guam for the purpose of transit only'' after
``except admission to the Commonwealth'';
(E) in paragraph (5), as redesignated, by adding at
the end the following: ``Approval of a petition filed
by the new employer with a start date within the same
fiscal year as the current permit shall not count
against the numerical limitation for that period.'';
and
(F) by adding at the end the following:
``(7) Requirement to remain outside of the united states.--
``(A) In general.--Except as provided in subparagraph
(B)--
``(i) a permit for a Commonwealth Only
Transitional Worker--
``(I) shall remain valid for a period
that may not exceed 1 year; and
``(II) may be renewed for not more
than 2 consecutive, 1-year periods; and
``(ii) at the expiration of the second
renewal period, an alien may not again be
eligible for such a permit until after the
alien has remained outside of the United States
for a continuous period of at least 30 days.
``(B) Long-term workers.--An alien who was admitted
to the Commonwealth as a Commonwealth Only Transitional
Worker during fiscal year 2015, and during every
subsequent fiscal year beginning before the date of the
enactment of the Northern Mariana Islands U.S.
Workforce Act, may receive a permit for a Commonwealth
Only Transitional Worker that is valid for a period
that may not exceed 3 years and may be renewed for
additional 3-year periods during the transition period.
A permit issued under this subparagraph shall be
counted toward the numerical cap for each fiscal year
within the period of petition validity.''; and
(4) by adding at the end the following:
``(i) Definitions.--In this section:
``(1) Commonwealth.--The term `Commonwealth' means the
Commonwealth of the Northern Mariana Islands.
``(2) Commonwealth only transition worker.--The term
`Commonwealth Only Transition Worker' means an alien who has
been admitted into the Commonwealth under the transition
program and is eligible for a permit under subsection (d)(3).
``(3) Governor.--The term `Governor' means the Governor of
the Commonwealth of the Northern Mariana Islands.
``(4) Secretary.--The term `Secretary' means the Secretary of
Homeland Security.
``(5) Tax year.--The term `tax year' means the fiscal year
immediately preceding the current fiscal year.
``(6) United states worker.--The term `United States worker'
means any worker who is--
``(A) a citizen or national of the United States;
``(B) an alien who has been lawfully admitted for
permanent residence; or
``(C) a citizen of the Republic of the Marshall
Islands, the Federated States of Micronesia, or the
Republic of Palau (known collectively as the `Freely
Associated States') who has been lawfully admitted to
the United States pursuant to--
``(i) section 141 of the Compact of Free
Association between the Government of the
United States and the Governments of the
Marshall Islands and the Federated States of
Micronesia (48 U.S.C. 1921 note); or
``(ii) section 141 of the Compact of Free
Association between the United States and the
Government of Palau (48 U.S.C. 1931 note).''.
(b) Rulemaking.--
(1) Secretary of homeland security.--Notwithstanding the
requirements under section 553(b) of title 5, United States
Code, the Secretary of Homeland Security shall publish in the
Federal Register, not later than 180 days after the date of the
enactment of this Act, an interim final rule that specifies how
the Secretary intends to implement the amendments made by
subsection (a) that relate to the responsibilities of the
Secretary.
(2) Secretary of labor.--Notwithstanding the requirements
under section 553(b) of title 5, United States Code, the
Secretary of Labor shall publish in the Federal Register, not
later than 180 days after the date of the enactment of this
Act, an interim final rule that specifies how the Secretary
intends to implement the amendments made by subsection (a) that
relate to the responsibilities of the Secretary.
(3) Recommendations of the governor.--In developing the
interim final rules under paragraphs (1) and (2), the Secretary
of Homeland Security and the Secretary of Labor--
(A) shall each consider, in good faith, any written
public recommendations regarding the implementation of
this Act that are submitted by the Governor of the
Commonwealth not later than 60 days after the date of
the enactment of this Act; and
(B) may include provisions in such rule that are
responsive to any recommendation of the Governor that
is not inconsistent with this Act, including a
recommendation to reserve a number of permits each year
for occupational categories necessary to maintain
public health or safety in the Commonwealth.
(c) Department of the Interior Technical Assistance.--Not later
than October 1, 2019, and biennially thereafter, the Secretary of the
Interior shall submit a report to Congress that describes the
fulfillment of the Department of the Interior's responsibilities to the
Commonwealth of the Northern Mariana Islands--
(1) to identify opportunities for economic growth and
diversification;
(2) to provide assistance in recruiting, training, and hiring
United States workers; and
(3) to provide such other technical assistance and
consultation as outlined in section 702(e) of the Consolidated
Natural Resources Act of 2008 (48 U.S.C. 1807).
(d) Outreach and Training.--Not later than 120 days after the date
on which the Secretary of Labor publishes an interim final rule in the
Federal Register in accordance with subsection (b)(2), the Secretary
shall conduct outreach and training in the Commonwealth of the Northern
Mariana Islands for employers and workers on the foreign labor
certification process set forth in section 6 of the Joint Resolution
entitled ``A 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'', as amended by
subsection (b), including the minimum wage requirement set forth in
subsection (d)(2)(C) of such section.
Purpose
The purpose of S. 2325 is to increase the percentage of
United States workers in the total workforce of the
Commonwealth of the Northern Mariana Islands (CNMI), while
maintaining the minimum number of non-U.S. workers to meet the
demands of the CNMI's economy; to encourage the hiring of U.S.
workers into the CNMI workforce; and to ensure that no U.S.
worker is at a competitive disadvantage compared to a non-U.S.
worker or is displaced by a non-U.S. worker.
Background and Need
The CNMI is a self-governing commonwealth in political
union with, and under the sovereignty of, the United States. As
such, the CNMI remains an unincorporated territory of the
United States, subject to Congress's plenary authority under
the Territory Clause, article IV, section 3, clause 2, of the
Constitution. Pursuant to the Territory Clause, Congress has
the responsibility to ``make all needful Rules and Regulations
respecting'' the insular areas under its jurisdiction.
In 1976, Congress approved the Covenant to Establish the
CNMI in Political Union with the United States of America
(Public Law 94-241). The Covenant was fully implemented on
November 3, 1986, and conferred U.S. citizenship on qualified
CNMI residents. The Covenant also exempted the CNMI from most
of the provisions of U.S. immigration law so that the CNMI
controlled immigration locally. Under this local immigration
authority, the CNMI established programs to permit aliens to
enter into the CNMI as workers and investors.
Section 503 of the Covenant allows Congress to unilaterally
extend U.S. immigration and naturalization laws to the CNMI and
this was done under the Consolidated Natural Resources Act of
2008 (CNRA, Public Law 110-229). The CNRA provided for: (1) a
five-year transition period until Federal immigration laws
would fully apply; (2) a Commonwealth Only Transitional Worker
(CW) classification to meet the CNMI's need for foreign workers
who would not otherwise be eligible to enter the CNMI under
Federal law; (3) a vocational training fund to support the
training of U.S. citizens and legal residents to fill jobs held
by foreign workers; and (4) a $150 fee to be charged to
employers for each foreign worker visa to fund vocational
training efforts. In 2014, Congress extended the transition
period to December 31, 2019 (Public Law 113-235). In 2017,
Congress enacted Public Law 115-53, which increased the fee
paid for each CW permit to $200 and banned issuing new CW
permits to construction workers.
The CNRA required the U.S. Department of Homeland Security
(DHS) to establish a temporary work permit program for foreign
workers and to reduce annually the number of permits issued,
reaching zero by the end of the transition period. In September
2011, DHS, through the U.S. Citizenship and Immigration
Services (USCIS), established the CW permit program. Under the
CW program, employers of nonimmigrant workers who are
ineligible for other employment-based nonimmigrant visa
classifications can apply for temporary permission to employ
workers in the CNMI. A CW permit is normally granted for a
period of one year. The employer may request an extension of
status by filing a new petition. Employers may file a new
petition, or renewal petition, up to six months in advance of
the employee start date, or up to six months in advance of the
previous petition's expiration. In accordance with the CNRA,
the USCIS must annually reduce the number of CW permits to
reach zero by the end of calendar year 2019.
A May 2017 report by the Government Accountability Office
(GAO), entitled Commonwealth of the Northern Mariana Islands;
Implementation of Federal Minimum Wage and Immigration Laws,
notes that since fiscal year 2013, demand for CW permits has
doubled, and in fiscal year 2016, demand exceeded the numerical
cap for the first time. Approved CW permits grew from 6,325 in
fiscal year 2013 to 13,299 in fiscal year 2016. In 2016, DHS
received enough petitions to approve 13,299 CW permits by May
6, 2016, reaching the cap five months prior to the end of the
fiscal year. Increased demand for CW permits has resulted from
a recent economic expansion due to the construction of casinos
and hotels.
On April 11, 2017, USCIS received a sufficient number of
petitions to reach the fiscal year 2018 cap of 9,998. As shown
in the below chart, the USCIS also announced the cap for the
remaining fiscal years of the CW program.
------------------------------------------------------------------------
Fiscal Year (FY) Cap
------------------------------------------------------------------------
FY 2018....................................................... 9,998
FY 2019....................................................... 4,999
FY 2020 (until Dec. 31, 2019)................................. 2,499
------------------------------------------------------------------------
The CNMI business community expressed concern that the
reduced levels of available CW permits would have a negative
impact on the CNMI's economy. The GAO report found that in
2015, foreign workers (totaling 12,784) made up more than half
of the CNMI's workforce and filled 80 percent of all
hospitality and construction jobs. The GAO also found that in
2015, if all CW workers were removed from the CNMI's labor
market, the CNMI's gross domestic product would be reduced by
between 26 and 62 percent. The GAO report noted that the
unemployed domestic workforce, estimated at 2,386 in 2016,
would be well below the CNMI's demand for labor.
In response to labor abuses by certain employers in the
CNMI, some have called for additional labor protections,
including higher minimum wage requirements, the potential for
revocation, legitimate business requirements, as well as the
prohibition on the use of CW permits for construction workers.
Legislative History
S. 2325 was introduced by Senator Lisa Murkowski on January
19, 2018. The Senate Energy and Natural Resources Committee
conducted a hearing on S. 2325 on February 6, 2018.
The Committee met in open business session on March 8,
2018, and ordered S. 2325 favorably reported, as amended.
Similar legislation, H.R. 4869, was introduced in the House
of Representatives by Rep. Sablan, the Delegate from the CNMI,
on January 23, 2018.
Committee Recommendation
The Committee on Energy and Natural Resources, in open
business session on March 8, 2018, by a majority voice vote of
a quorum present, recommends that the Senate pass S. 2325, if
amended as described herein. Senator Lee asked to be recorded
as voting no.
Committee Amendment
During its consideration of S. 2325, the Committee adopted
an amendment in the nature of a substitute. The substitute
amendment includes authority for the DHS to impose an antifraud
fee for fraud detection and prevention purposes. It refines the
foreign labor certification process with the Secretary of
Labor, as well as the CNMI Governor's plan for the expenditure
of education fee funds to train U.S. workers. The substitute
amendment also provides for the specific number of CW permits
that would be available for each fiscal year through the end of
the transition period, and requires employers to be part of the
E-Verify program to be eligible to petition for a CW permit.
The amendment also revises the CW-3 permit for long-term
workers provided for in the bill as introduced to be part of
the existing CW-1 permit. The amendment is further described in
the section-by-section analysis.
Section-by-Section Analysis
Section 1. Short title
Section 1 provides a short title, the ``Northern Mariana
Islands U.S. Workforce Act.''
Section 2. Purposes
Section 2 provides that the purposes of the bill are to
increase the percentage of United States workers in the total
workforce of the CNMI while maintaining the minimum number of
non-U.S. workers to meet the demands of the CNMI's economy; to
encourage the hiring of U.S. workers into the CNMI workforce;
and to ensure that no U.S. worker is at a competitive
disadvantage compared to a non-U.S. worker or is displaced by a
non-U.S. worker.
Section 3. Transitional provisions
Section 3(a) amends section 6 of the Joint Resolution to
approve the ``Covenant To Establish a Commonwealth of the
Northern Mariana Islands in Political Union with the United
States of America'' (48 U.S.C. 1806) to make a number of
changes to the transitional provisions.
Section (3)(a)(1)(A) extends the transition period in
section 6(a) of the Joint Resolution to December 31, 2029.
Section (3)(a)(1)(B) amends paragraph (6) of section 6(a)
of the Joint Resolution. As amended, paragraph (6) will contain
four new subparagraphs (A) through (D).
The new subparagraph (A) contains four clauses (i) through
(iv).
Clause (i) directs the Secretary of Homeland Security to
impose an annual supplemental fee of $200 per nonimmigrant
worker on each prospective employer who is issued a permit
during the transition program.
New clauses (ii) and (iii) allow the supplemental education
fee established by section 286(m) of the Immigration and
Nationality Act (8 U.S.C. 1356(m)) to be adjusted annually for
inflation and require that the monies collected be used for
funding vocational education, apprenticeships, or other
training programs for U.S. workers.
New clause (iv) establishes a $50 fraud prevention and
detection user fee for each employer filing a petition for a
CW.
The new subparagraphs (B) through (D) require the CNMI
Governor to submit an annual plan to the U.S. Secretary of
Labor for the expenditure of the supplemental education fee and
condition the availability of funds on the Labor Secretary's
approval of the plan. The Secretary of Labor is further
directed to report to Congress on the effectiveness of the CNMI
Government in meeting the plan's goals.
Section 3(a)(2) of the bill adds a new paragraph (3) to
section 6(b) of the Joint Resolution to direct the Secretary of
Homeland Security to submit a report to Congress by December 1,
2027, on the projected number of asylum seekers the Secretary
anticipates following the end of the transition period, and
efforts made by the Secretary to prepare for those asylum
seekers.
Section 3(a)(3) of the bill adds a new paragraph (2) to
section 6(d) of the Joint Resolution, and reorders the existing
paragraphs accordingly. The new paragraph (2) contains three
new subparagraphs (A) through (C).
The new subparagraph (A) requires employers to obtain a
temporary labor certification from the U.S. Secretary of Labor
that a qualified U.S. worker is not available before filing a
petition for a CW permit.
The new subparagraph (B) requires the U.S. Secretary of
Labor to make available to employers the prevailing wage level
for employment of a CW worker.
The new subparagraph (C) requires the employer to pay a CW
worker not less than the greater of the CNMI minimum wage, the
federal minimum wage, or the prevailing wage as provided by the
Secretary of Labor.
Section 3(a)(3)(C) of the bill amends paragraph (3) of
section 6(d) of the Joint Resolution, as redesignated. As
amended, section 6(d)(3) will contain four new subparagraphs
(A) through (D).
The new subparagraph (A) directs the Secretary of Homeland
Security to establish, administer and enforce a permit system
for prospective employers for each nonimmigrant worker.
The new subparagraph (B) provides for a numerical cap on
the number of CW permits that are to be made available for each
of the fiscal years from 2019 through the first quarter of
2030.
The new subparagraph (C) requires reports from the Governor
of the CNMI and from GAO on the ratio of U.S. workers to non-
U.S. workers in the CNMI.
The new subparagraph (D) contains five new clauses (i)
through (v) pertaining to permits.
New clause (i) allows an employer to petition for renewal
of a CW permit 180 days before the expiration of the permit,
and to petition for a new permit 120 days prior to the need of
such permit.
New clause (ii) requires the Secretary of Homeland Security
to establish a system for each employer of a CW permit holder
to submit semiannual reports for employment verification.
New clause (iii) authorizes the Secretary of Homeland
Security to revoke a permit for good cause and reallocate a
revoked permit to the following fiscal year. It further
authorizes the Secretary to determine what constitutes a
legitimate business.
New clause (iv) specifies that only legitimate businesses
may apply for a CW permit.
New clause (v) specifies that only workers who meet the
qualifications of a long-term worker under paragraph 7(B) may
be issued a CW permit for construction occupations.
Section 3(a)(3)(D) of the bill amends paragraph (4) of
section 6(d) of the Joint Resolution, as redesignated, to
authorize CW permit holders to transit through Guam.
Section 3(a)(3)(E) of the bill amends paragraph (5) of
section 6(d) of Joint Resolution, as redesignated, to authorize
the portability of CW permit holders between employers in the
CNMI in a specific fiscal year without further counting against
that fiscal year's numerical cap.
Section 3(a)(3)(F) adds a new paragraph (7) to section 6(d)
of the Joint Resolution, as redesignated. The new paragraph (7)
contains two subparagraphs.
Subparagraph (A) specifies that except as provided for
long-term workers, a CW permit may not exceed one year and may
be renewed for an additional year. After two consecutive years,
an alien must remain outside of the United States for a
continuous period of 30 days before being eligible again for
another CW permit.
Subparagraph (B) authorizes long-term workers, including
construction workers, who have held a CW permit since fiscal
year 2015 to obtain a three-year CW permit that may be renewed
for additional three-year periods during the transition period.
Section 3(a)(4) of the bill adds a new subsection (i) to
section 6 of the Joint Resolution to define terms used in
section 6.
Section 3(b) of the bill directs the Secretaries of
Homeland Security and Labor to publish separate interim final
rules specifying how they will implement the amendments set
forth in subsection (a) relating to their respective
responsibilities.
Section 3(c) of the bill requires the Secretary of the
Interior to report to Congress on the Department's
responsibilities to the CNMI to identify opportunities for
economic growth; provide assistance in recruiting, training,
and hiring U.S. workers; and provide other technical assistance
to the CNMI.
Section 3(d) requires the U.S. Secretary of Labor to
conduct outreach and training in the CNMI for employers and
workers on the foreign labor certification process.
Cost and Budgetary Considerations
The Congressional Budget Estimate of the costs of this
measure has been requested but was not received at the time the
report was filed. When the Congressional Budget Office
completes its cost estimate, it will be posted on the internet
at www.cbo.gov.
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. 2325. The bill requires the Secretary of
Homeland Security to carry out a system for allocating and
determining terms and conditions of CW permits to be issued to
prospective employers. Those employers who petition for a CW
permit, and the beneficiaries of such permit, would be impacted
by regulations the Secretary of Homeland Security promulgates
to carry out this authority. The estimated number of
individuals impacted by these regulations is tied to the number
of CW permits made available for each fiscal year as provided
in section (a)(3)(C) of the substitute amendment. Based on
prior year data of employers who successfully petitioned for a
CW permit, the estimated number of businesses who would be
regulated is 1,350.
Congressionally Directed Spending
S. 2325, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
Executive Communications
The testimony provided by the Department of the Interior at
the January 19, 2018, hearing on S. 2325 follows:
Statement of Douglas Domenech, Assistant Secretary for Insular Areas--
Department of the Interior
Chairman Murkowski, Ranking Member Cantwell, and Members of
the Committee, I am Doug Domenech, Assistant Secretary for
Insular Areas at the Department of the Interior (Department).
Thank you for the opportunity to testify regarding S. 2325, the
Northern Mariana Islands U.S. Workforce Act. The Department
looks forward to working with Congress and the Committee to
assist the Commonwealth of the Northern Mariana Islands (CNMI)
to provide a long-term solution to the CNMI's labor needs and
economic challenges, to protect and provide Americans and other
U.S.-eligible workers job opportunities, and to identify new
opportunities for growth and diversification.
provisions of s. 2325
S. 2325 would (1) extend the termination date of the
transition period for the full application of federal
immigration laws by 10 years, (2) allow for the annual
adjustment of the supplemental fee of $200 per nonimmigrant
worker on each prospective employer issued a permit to employ
such workers, (3) clarify the eligible uses and distribution
requirements of supplemental fee funds, (4) raise the annual
number of authorized CNMI-only transitional worker (CW-1) visas
to 13,000 during fiscal year 2019, (5) seek to increase the
percentage of United States workers by creating incentives for
the hiring, protection or retention of United States workers,
(6) establish new application procedures for the issuance of
CW-1 visas, and (7) authorize certain eligible aliens (CW-3
workers) to receive work permits for three years, subject to
three year renewal periods during the duration of the
transitional period.
Extending the transition period until December 31, 2029
would, in addition to its effects on the CW-1 program, extend:
(1) the exception to the otherwise applicable annual caps on H-
1B and H-2B nonimmigrant workers for employment in the CNMI or
Guam; (2) the E-2C CNMI nonimmigrant category for certain
investors in the CNMI; and (3) the bar on asylum applications
under section 208 of the Immigration and Nationality Act in the
CNMI.
recent economic history
The Northern Mariana Islands (NMI) began to be governed
under the Covenant to Establish a Commonwealth of the Northern
Mariana Islands in Political Union with the United States of
America (the Covenant) and the CNMI Constitution in 1978, with
the Covenant fully taking effect in 1986. It was expected that
tourism was going to be part of the foundation on which CNMI's
economy would be built. In the early 1980s, a garment industry
was introduced and, thereafter, expanded rapidly. The garment
industry peaked in 1998, with a $1.1 billion business built on
imported foreign labor. By 2009, all the garment factories were
closed causing a significant negative impact on CNMI's economy.
CNMI's annual budgets dropped from a high of $247 million in
1997 to $102 million in 2012.
Faced with drastic revenue reduction and increasing
liabilities, the CNMI government struggled to meet its mandated
obligations. With impending financial ruin for CNMI government
retirees, CNMI political leaders charted a new economic course
for their islands. A contract was signed on August 8, 2014,
that made the CNMI an international gambling destination. It
was an option which the CNMI leaders found to have greater
potential to improve the CNMI's economy quickly and to enable
the local government to afford paying its financial
obligations.
A new casino broke ground in July 2015. Since then, casino-
based revenue has already started to bolster the territory's
economy and provide security for its retirees.
Plans from substantially more private and public investment
in CNMI were shattered when Typhoon Soudelor made landfall on
the island of Saipan in August 2015. The devastation from the
typhoon brought extreme competition for supplies and labor and
delays in casino and hotel construction.
In addition, the CNMI economy has become increasingly
dependent on CW-1 visas, which were authorized by the
Consolidated Natural Resources Act of 2008 (CNRA), Public Law
110-229. The statute's mandate for the numerical reduction on
CW-1 visas became an issue, considering that for fiscal year
2016 the entire number of available CW-1 visas was fully
subscribed in May 2016, and was fully subscribed within two
weeks for fiscal year 2017. CNMI's economy remains, admittedly,
substantially dependent on what was supposed to be a temporary
visa category that has been around for less than 10 years.
CNMI continues to experience labor difficulties. We look
forward to working with Congress to fulfill Congress's intent
to ensure a gradual, responsible CW-1 visa wind-down, while
ensuring policies are in place that allow CNMI to continue its
nascent economic progress. The Department looks forward to
discussing opportunities to provide a long-term solution and S.
2325 is an important step in that ongoing dialogue.
Billions of dollars are being invested in casino and hotel
facilities, increasing the number of civilian construction
projects. Without some effort to provide legal labor relief to
CNMI, it is anticipated that projected investments in the CNMI
will be lost. When slated casinos and hotels finally open, the
Marianas Visitors Authority estimates that they will need
18,500 additional employees to run them. A recent report by the
U.S. Government Accountability Office projects that without
sufficient foreign labor the economy of the NMI would contract
by an estimated 26 to 62 percent.
On August 22, 2017, in recognition of the need to address
the short-term labor needs of the CNMI, the President signed
into law P.L. 115-53, which took the pressure off of the annual
limit of 15,000 on CW-1 visas by requiring that the recent
sudden increase in demand for construction be accommodated by
issuing H-2B visas.
administration position
The Administration is committed to working with the
leadership and people of CNMI to ensure robust and healthy
economic growth, and appreciates that appropriate access to
labor is key to such growth. The Administration is also
committed to doing all it can to not only follow the laws of
our nation, but also to help employ American citizens wherever
possible.
The Administration remains open to working with Congress
and the Committee to help develop the best legislation for
addressing all of the economic and labor needs of the United
States and CNMI. The Administration would be open to supporting
legislation that facilitates the hiring of Americans and
reduces CNMI's overall reliance on foreign labor by requiring a
responsible, explicit wind-down of CW-1 visas to zero.
The Department of the Interior, through the Office of
Insular Affairs (OIA), has been providing technical assistance
to the CNMI as called for under the Consolidated Natural
Resources Act of 2008, Public Law 110-229. Under the proposed
legislation, the Department would be responsible to compile the
aforementioned biennial report. The Department supports the
intent and content of this report, but acknowledges that much
of the content and work would be done by or in conjunction with
the Departments of Homeland Security, Labor and Commerce.
I appreciate the opportunity to speak on behalf of the
Department today, and look forward to helping develop a
solution that supports the economic growth that we all seek.
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. 2325, 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):
UNITED STATES CODE
Public Law 94-241, as Amended
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.
* * * * * * *
TITLE 48--TERRITORIES AND INSULAR POSSESSIONS
* * * * * * *
SEC. 6. Sec. 1806. IMMIGRATION AND TRANSITION.
(a) Application of the Immigration and Nationality Act and
Establishment of A Transition Program.--
(1) In general.--Subject to paragraphs (2) and (3),
effective on the first day of the first full month
commencing 1 year after May 8, 2008 (hereafter referred
to as the ``transition program effective date''), the
provisions of the ``immigration laws'' (as defined in
section 101(a)(17) of the Immigration and Nationality
Act (8 U.S.C. 1101(a)(17))) shall apply to the
Commonwealth of the Northern Mariana Islands (referred
to in this section as the ``Commonwealth''), except as
otherwise provided in this section.
(2) Transition period.--There shall be a transition
period beginning on the transition program effective
date and ending on December 31, [2019] 2029, during
which the Secretary of Homeland Security, in
consultation with the Secretary of State, the Attorney
General, the Secretary of Labor, and the Secretary of
the Interior, shall establish, administer, and enforce
a transition program to regulate immigration to the
Commonwealth, as provided in this section (hereafter
referred to as the ``transition program'').
(3) Delay of commencement of transition period.--
(A) In general.--The Secretary of Homeland
Security, in the Secretary's sole discretion,
in consultation with the Secretary of the
Interior, the Secretary of Labor, the Secretary
of State, the Attorney General, and the
Governor of the Commonwealth, may determine
that the transition program effective date be
delayed for a period not to exceed more than
180 days after such date.
(B) Congressional notification.-- The
Secretary of Homeland Security shall notify the
Congress of a determination under subparagraph
(A) not later than 30 days prior to the
transition program effective date.
(C) Congressional review.-- A delay of the
transition program effective date shall not
take effect until 30 days after the date on
which the notification under subparagraph (B)
is made.
(4) Requirement for regulations.--The transition
program shall be implemented pursuant to regulations to
be promulgated, as appropriate, by the head of each
agency or department of the United States having
responsibilities under the transition program.
(5) Interagency agreements.-- The Secretary of
Homeland Security, the Secretary of State, the
Secretary of Labor, and the Secretary of the Interior
shall negotiate and implement agreements among their
agencies to identify and assign their respective duties
so as to ensure timely and proper implementation of the
provisions of this section. The agreements should
address, at a minimum, procedures to ensure that
Commonwealth employers have access to adequate labor,
and that tourists, students, retirees, and other
visitors have access to the Commonwealth without
unnecessary delay or impediment. The agreements may
also allocate funding between the respective agencies
tasked with various responsibilities under this
section.
[(6) Certain education funding.--In addition to fees
charged pursuant to section 286(m) of the Immigration
and Nationality Act (8 U.S.C. 1356(m)) to recover the
full costs of providing adjudication services, the
Secretary of Homeland Security shall charge an annual
supplemental fee of $200 per nonimmigrant worker to
each prospective employer who is issued a permit under
subsection (d) of this section during the transition
period. Such supplemental fee shall be paid into the
Treasury of the Commonwealth government for the purpose
of funding ongoing vocational educational curricula and
program development by Commonwealth educational
entities.]
(6) Fees for training united states workers.--
(A) Supplemental fee.--
(i) In general.--In addition to fees
imposed pursuant to section 286(m) of
the Immigration and Nationality Act (8
U.S.C. 1356(m)) to recover the full
costs of adjudication services, the
Secretary shall impose an annual
supplemental fee of $200 per
nonimmigrant worker on each prospective
employer who is issued a permit under
subsection (d)(3) during the transition
program. A prospective employer that is
issued a permit with a validity period
of longer than 1 year shall pay the fee
for each year of requested validity at
the time the permit is issued.
(ii) Inflation adjustment.--Beginning
in fiscal year 2020, the Secretary,
through notice in the Federal Register,
may annually adjust the supplemental
fee imposed under clause (i) by a
percentage equal to the annual change
in the Consumer Price Index for All
Urban Consumers published by the Bureau
of Labor Statistics.
(iii) Use of funds.--Amounts
collected pursuant to clause (i) shall
be deposited into the Treasury of the
Commonwealth Government for the sole
and exclusive purpose of funding
vocational education, apprenticeships,
or other training programs for United
States workers.
(iv) Fraud prevention and detection
fee.--In addition to the fees described
in clause (i), the Secretary--
(I) shall impose, on each
prospective employer filing a
petition under this subsection
for 1 or more nonimmigrant
workers, a $50 fraud prevention
and detection fee; and
(II) shall deposit and use
the fees collected under
subclause (I) in accordance
with section 286(v)(2)(B) of
the Immigration and Nationality
Act (8 U.S.C. 1356(v)(2)(B)).
(B) Plan for the expenditure of funds.--Not
later than 120 days before the first day of
fiscal year 2020, and annually thereafter, the
Governor of the Commonwealth Government shall
submit to the Secretary of Labor--
(i) a plan for the expenditures of
amounts deposited under subparagraph
(A)(iii);
(ii) a projection of the
effectiveness of such expenditures in
the placement of United States workers
into jobs held by non-United States
workers; and
(iii) a report on the changes in
employment of United States workers
attributable to expenditures of such
amounts during the previous year.
(C) Determination and report.--Not later than
120 days after receiving each expenditure plan
under subparagraph (B)(i), the Secretary of
Labor shall--
(i) issue a determination on the
plan; and
(ii) submit a report to Congress that
describes the effectiveness of the
Commonwealth Government at meeting the
goals set forth in such plan.
(D) Payment restriction.--Payments may not be
made in a fiscal year from amounts deposited
under subparagraph (A)(iii) before the
Secretary of Labor has approved the expenditure
plan submitted under subparagraph (B)(i) for
that fiscal year.''
(7) Asylum.--Section 208 of the Immigration and
Nationality Act (8 U.S.C. 1158) shall not apply during
the transition period to persons physically present in
the Commonwealth or arriving in the Commonwealth
(whether or not at a designated port of arrival),
including persons brought to the Commonwealth after
having been interdicted in international or United
States waters.
(b) Numerical Limitations for Nonimmigrant Workers.--
(1) In general.--
(A) Nonimmigrant workers generally.--An
alien, if otherwise qualified, may seek
admission to Guam or to the Commonwealth during
the transition program as a nonimmigrant worker
under section 101(a)(15)(H) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(H))
without counting against the numerical
limitations set forth in section 214(g) of such
Act (8 U.S.C. 1184(g)).
(B) H-2B workers.--In the case of such an
alien who seeks admission under section
101(a)(15)(H)(ii)(b) of such Act (8 U.S.C.
1101(a)(15)(H)(ii)(b)), such alien, if
otherwise qualified, may, before October 1,
2023, be admitted under such section for a
period of up to 3 years to perform service or
labor on Guam or the Commonwealth pursuant to
any agreement entered into by a prime
contractor or subcontractor calling for
services or labor required for performance of a
contact or subcontract for construction,
repairs, renovations, or facility services that
is directly connected to, or associated with,
the military realignment occurring on Guam and
the Commonwealth, notwithstanding the
requirement of such section that the service or
labor be temporary.
(2) Limitations.--
(A) Numerical limitation.--For any fiscal
year, not more 4,000 aliens may be admitted to
Guam and the Commonwealth pursuant to paragraph
(1)(B).
(B) Location.--Paragraph (1)(B) does not
apply with respect to the performance of
services or labor at a location other than Guam
or the Commonwealth.
(3) Report.--Not later than December 1, 2027, the
Secretary shall submit a report to the Committee on
Energy and Natural Resources of the Senate, the
Committee on the Judiciary of the Senate, the Committee
on Natural Resources of the House of Representatives,
and the Committee on the Judiciary of the House of
Representatives that--
(A) projects the number of asylum claims the
Secretary anticipates following the termination
of the transition period; and
(B) describes the efforts of the Secretary to
ensure appropriate interdiction efforts,
provide for appropriate treatment of asylum
seekers, and prepare to accept and adjudicate
asylum claims in the Commonwealth.
(c) Nonimmigrant Investor Visas.--
(1) In general.--Notwithstanding the treaty
requirements in section 101(a)(15)(E) of the
Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(E)), during the transition period, the
Secretary of Homeland Security may, upon the
application of an alien, classify an alien as a CNMI-
only 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 in
long-term investor status under the immigration
laws of the Commonwealth before the transition
program effective date;
(B) has continuously maintained residence in
the Commonwealth 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) Requirement for regulations.--Not later than 60
days before the transition program effective date, the
Secretary of Homeland Security shall publish
regulations in the Federal Register to implement this
subsection.
(d) Special Provision To Ensure Adequate Employment;
Commonwealth Only Transitional Workers.--An alien who is
seeking to enter the Commonwealth as a nonimmigrant worker may
be admitted to perform work during the transition period
subject to the following requirements:
(1) Such an alien shall be treated as a nonimmigrant
described in 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 under
this section and section 245 of such Act (8 U.S.C.
1255).
(2) Protection for united states workers.--
(A) Temporary labor certification.--
(i) In general.--Beginning in fiscal
year 2020, a petition to import a
nonimmigrant worker under this
subsection may not be approved by the
Secretary unless the petitioner has
applied to the Secretary of Labor for a
temporary labor certification
confirming that--
(I) there are not sufficient
United States workers in the
Commonwealth who are able,
willing, qualified, and
available at the time and place
needed to perform the services
or labor involved in the
petition; and
(II) employment of the
nonimmigrant worker will not
adversely affect the wages and
working conditions of similarly
employed United States workers.
(ii) Petition.--After receiving a
temporary labor certification under
clause (i), a prospective employer may
submit a petition to the Secretary for
a Commonwealth Only Transitional Worker
permit on behalf of the nonimmigrant
worker.
(B) Prevailing wage survey.--
(i) In general.--In order to
effectuate the requirement for a
temporary labor certification under
subparagraph (A)(i), the Secretary of
Labor shall use, or make available to
employers, an occupational wage survey
conducted by the Governor that the
Secretary of Labor has determined meets
the statistical standards for
determining prevailing wages in the
Commonwealth on an annual basis.
(ii) Alternative method for
determining the prevailing wage.--In
the absence of an occupational wage
survey approved by the Secretary of
Labor under clause (i), the prevailing
wage for an occupation in the
Commonwealth shall be the arithmetic
mean of the wages of workers similarly
employed in the territory of Guam
according to the wage component of the
Occupational Employment Statistics
Survey conducted by the Bureau of Labor
Statistics.
(C) Minimum wage.--An employer shall pay each
Commonwealth Only Transitional Worker a wage
that is not less than the greater of--
(i) the statutory minimum wage in the
Commonwealth;
(ii) the Federal minimum wage; or
(iii) the prevailing wage in the
Commonwealth for the occupation in
which the worker is employed.
[(2) The Secretary of Homeland Security 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 such nonimmigrant worker described
in this subsection who would not otherwise be eligible
for admission under the Immigration and Nationality Act
(8 U.S.C. 1101 et seq.), except a permit for
construction occupations (as that term is defined by
the Department of Labor as Standard Occupational
Classification Group 47-0000 or any successor
provision) shall only be issued to extend a permit
first issued before October 1, 2015. In adopting and
enforcing this system, the Secretary shall also
consider, in good faith and not later than 30 days
after receipt by the Secretary, any comments and advice
submitted by the Governor of the Commonwealth. This
system shall provide for a reduction in the allocation
of permits for such workers on an annual basis to zero,
during a period ending on December 31, 2019, except
that for fiscal year 2017 an additional 350 permits
shall be made available for extension of existing
permits, expiring after August 22, 2017, through
September 30, 2017, of which no fewer than 60 shall be
reserved for healthcare practitioners and technical
operations (as that term is defined by the Department
of Labor as Standard Occupational Classification Group
29-0000 or any successor provision), and no fewer than
10 shall be reserved for plant and system operators (as
that term is defined by the Department of Labor as
Standard Occupational Classification Group 51-8000 or
any successor provision). 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 Secretary of Homeland
Security to promote the maximum use of, and to prevent
adverse effects on wages and working conditions of,
workers authorized to be employed in the United States,
including lawfully admissible freely associated state
citizen labor. No alien shall be granted nonimmigrant
classification or a visa under this subsection unless
the permit requirements established under this
paragraph have been met.]
(3) Permits.--
(A) In general.--The Secretary shall
establish, administer, and enforce a system for
allocating and determining terms and conditions
of permits to be issued to prospective
employers for each nonimmigrant worker
described in this subsection who would not
otherwise be eligible for admission under the
Immigration and Nationality Act (8 U.S.C. 1101
et seq.).
(B) Numerical cap.--The number of permits
issued under subparagraph (A) may not exceed--
(i) 13,000 for fiscal year 2019;
(ii) 12,500 for fiscal year 2020;
(iii) 12,000 for fiscal year 2021;
(iv) 11,500 for fiscal year 2022;
(v) 11,000 for fiscal year 2023;
(vi) 10,000 for fiscal year 2024;
(vii) 9,000 for fiscal year 2025;
(viii) 8,000 for fiscal year 2026;
(ix) 7,000 for fiscal year 2027;
(x) 6,000 for fiscal year 2028;
(xi) 5,000 for fiscal year 2029; and
(xii) 1,000 for the first quarter of
fiscal year 2030.
(C) Reports regarding the percentage of
united states workers.--
(i) By governor.--Not later than 60
days before the end of each calendar
year, the Governor shall submit a
report to the Secretary that identifies
the ratio between United States workers
and other workers in the Commonwealth's
workforce based on income tax filings
with the Commonwealth for the tax year.
(ii) By gao.--Not later than December
31, 2019, and biennially thereafter,
the Comptroller General of the United
States shall submit a report to the
Chair and Ranking Member of the
Committee on Energy and Natural
Resources of the Senate, the Chair and
Ranking Member of the Committee on
Natural Resources of the House of
Representatives, the Chair and Ranking
Member of the Committee on Health,
Education, Labor, and Pensions of the
Senate and the Chair and Ranking Member
of the Committee on Education and the
Workforce of the House of
Representatives that identifies the
ratio between United States workers and
other workers in the Commonwealth's
workforce during each of the previous 5
calendar years.
(D) Petition; issuance of permits.--
(i) Submission.--A prospective
employer may submit a petition for a
permit under this paragraph not earlier
than--
(I) 120 days before the date
on which the prospective
employer needs the
beneficiary's services; or
(II) if the petition is for
the renewal of an existing
permit, not earlier than 180
days before the expiration of
such permit.
(ii) Employment verification.--The
Secretary shall establish a system for
each employer of a Commonwealth Only
Transitional Worker to submit a
semiannual report to the Secretary and
the Secretary of Labor that provides
evidence to verify the continuing
employment and payment of such worker
under the terms and conditions set
forth in the permit petition that the
employer filed on behalf of such
worker.
(iii) Revocation.--
(I) In general.--The
Secretary, in the Secretary's
discretion, may revoke a permit
approved under this paragraph
for good cause, including if--
(aa) the employer
fails to maintain the
continuous employment
of the subject worker,
fails to pay the
subject worker, fails
to timely file a
semiannual report
required under this
paragraph, or commits
any other violation of
the terms and
conditions of
employment;
(bb) the beneficiary
of such petition does
not apply for admission
to the Commonwealth by
the date that is 10
days after the period
of petition validity
begins, if the employer
has requested consular
processing; or
(cc) the employer
fails to provide a
former, current, or
prospective
Commonwealth Only
Transitional Worker,
not later than 21
business days after
receiving a written
request from such
worker, with the
original (or a
certified copy of the
original) of all
petitions, notices, and
other written
communication related
to the worker (other
than sensitive
financial or
proprietary information
of the employer, which
may be redacted) that
has been exchanged
between the employer
and the Department of
Labor, the Department
of Homeland Security,
or any other Federal
agency or department.
(II) Reallocation of revoked
petition.--Notwithstanding
subparagraph (C), for each
permit revoked under subclause
(I) in a fiscal year, an
additional permit shall be made
available for use in the
subsequent fiscal year.
(iv) Legitimate business.--
(I) In general.--A permit may
not be approved for a
prospective employer that is
not a legitimate business.
(II) Defined term.--In this
clause, the term `legitimate
business' means a real, active,
and operating commercial or
entrepreneurial undertaking
that the Secretary, in the
Secretary's sole discretion,
determines--
(aa) produces
services or goods for
profit, or is a
governmental,
charitable, or other
validly recognized
nonprofit entity;
(bb) meets applicable
legal requirements for
doing business in the
Commonwealth;
(cc) has
substantially complied
with wage and hour
laws, occupational
safety and health
requirements, and all
other Federal and
Commonwealth
requirements related to
employment during the
preceding 5 years;
(dd) does not
directly or indirectly
engage in prostitution,
human trafficking, or
any other activity that
is illegal under
Federal or Commonwealth
law; and
(ee) is a participant
in good standing in the
E Verify program.
(v) Construction occupations.--A
permit for Construction and Extraction
Occupations (as defined by the
Department of Labor as Standard
Occupational Classification Group 47-
0000) may not be issued for any worker
other than a worker described in
paragraph (7)(B).
[(3)] (4) The Secretary of Homeland Security shall
set the conditions for admission of such an alien under
the transition program, and the Secretary of State
shall authorize the issuance of nonimmigrant visas for
such an alien. Such a visa 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 admission to the
Commonwealth or to Guam for the purpose of transit
only. An alien admitted to the Commonwealth on the
basis of such a visa shall be permitted to engage in
employment only as authorized pursuant to the
transition program.
[(4)] (5) Such an alien shall be permitted to
transfer between employers in the Commonwealth during
the period of such alien's authorized stay therein,
without permission of the employee's current or prior
employer, within the alien's occupational category or
another occupational category the Secretary of Homeland
Security has found requires alien workers to supplement
the resident workforce. Approval of a petition filed by
the new employer with a start date within the same
fiscal year as the current permit shall not count
against the numerical limitation for that period.
[(5)] (6) The Secretary of Homeland Security may
authorize the admission of a spouse or minor child
accompanying or following to join a worker admitted
pursuant to this subsection.
(7) Requirement to remain outside of the united
states.--
(A) In general.--Except as provided in
subparagraph (B)--
(i) a permit for a Commonwealth Only
Transitional Worker--
(I) shall remain valid for a
period that may not exceed 1
year; and
(II) may be renewed for not
more than 2 consecutive, 1-year
periods; and
(ii) at the expiration of the second
renewal period, an alien may not again
be eligible for such a permit until
after the alien has remained outside of
the United States for a continuous
period of at least 30 days.
(B) Long-term workers.--An alien who was
admitted to the Commonwealth as a Commonwealth
Only Transitional Worker during fiscal year
2015, and during every subsequent fiscal year
beginning before the date of the enactment of
the Northern Mariana Islands U.S. Workforce
Act, may receive a permit for a Commonwealth
Only Transitional Worker that is valid for a
period that may not exceed 3 years and may be
renewed for additional 3-year periods during
the transition period. A permit issued under
this subparagraph shall be counted toward the
numerical cap for each fiscal year within the
period of petition validity.
(e) Persons Lawfully Admitted Under the Commonwealth
Immigration Law.--
(1) Prohibition on removal.--
(A) In General.--Subject to subparagraph (B),
no alien who is lawfully present in the
Commonwealth pursuant to the immigration laws
of the Commonwealth on the transition program
effective date shall be removed from the United
States on the grounds that such alien's
presence in the Commonwealth is in violation of
section 212(a)(6)(A) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(6)(A)), until
the earlier of the date--
(i) of the completion of the period
of the alien's admission under the
immigration laws of the Commonwealth;
or
(ii) that is 2 years after the
transition program effective date.
(B) Limitations.-- Nothing in this subsection
shall be construed to prevent or limit the
removal under subparagraph 212(a)(6)(A) of the
Immigration and Nationality Act (8 U.S.C.
1182(a)(6)(A)) of such an alien at any time, if
the alien entered the Commonwealth after May 8,
2008, and the Secretary of Homeland Security
has determined that the Government of the
Commonwealth has violated section 702(i) of the
Consolidated Natural Resources Act of 2008.
(2) Employment authorization.--An alien who is
lawfully present and authorized to be employed in the
Commonwealth pursuant to the immigration laws of the
Commonwealth on the transition program effective date
shall be considered authorized by the Secretary of
Homeland Security to be employed in the Commonwealth
until the earlier of the date--
(A) of expiration of the alien's employment
authorization under the immigration laws of the
Commonwealth; or
(B) that is 2 years after the transition
program effective date.
(3) Registration.--The Secretary of Homeland Security
may require any alien present in the Commonwealth on or
after the transition period effective date to register
with the Secretary in such a manner, and according to
such schedule, as he may in his discretion require.
Paragraphs (1) and (2) of this subsection shall not
apply to any alien who fails to comply with such
registration requirement. Notwithstanding any other
law, the Government of the Commonwealth shall provide
to the Secretary all Commonwealth immigration records
or other information that the Secretary deems necessary
to assist the implementation of this paragraph or other
provisions of the Consolidated Natural Resources Act of
2008. Nothing in this paragraph shall modify or limit
section 262 of the Immigration and Nationality Act (8
U.S.C. 1302) or other provision of the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.) relating to the
registration of aliens.
(4) Removable aliens.--Except as specifically
provided in paragraph (1)(A) of this subsection,
nothing in this subsection shall prohibit or limit the
removal of any alien who is removable under the
Immigration and Nationality Act.
(5) Prior orders of removal.--The Secretary of
Homeland Security may execute any administratively
final order of exclusion, deportation or removal issued
under authority of the immigration laws of the United
States before, on, or after the transition period
effective date, or under authority of the immigration
laws of the Commonwealth before the transition period
effective date, upon any subject of such order found in
the Commonwealth on or after the transition period
effective date, regardless whether the alien has
previously been removed from the United States or the
Commonwealth pursuant to such order.
(f) Effect on Other Laws.--The provisions of this section
and of the immigration laws, as defined in section 101(a)(17)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)),
shall, on the transition program effective date, supersede and
replace all laws, provisions, or programs of the Commonwealth
relating to the admission of aliens and the removal of aliens
from the Commonwealth.
(g) Accrual of Time for Purposes of Section 212(A)(9)(B) of
the Immigration and Nationality Act.-- No time that an alien is
present in the Commonwealth in violation of the immigration
laws of the Commonwealth shall be counted for purposes of
inadmissibility under section 212(a)(9)(B) of the Immigration
and Nationality Act (8 U.S.C. 1182(a)(9)(B)).
(h) Report on Nonresident Guestworker Population.--The
Secretary of the Interior, in consultation with the Secretary
of Homeland Security, and the Governor of the Commonwealth,
shall report to the Congress not later than 2 years after May
8, 2008. The report shall include--
(1) the number of aliens residing in the
Commonwealth;
(2) a description of the legal status (under Federal
law) of such aliens;
(3) the number of years each alien has been residing
in the Commonwealth;
(4) the current and future requirements of the
Commonwealth economy for an alien workforce; and (5)
such recommendations to the Congress, as the Secretary
may deem appropriate, related to whether or not the
Congress should consider permitting lawfully admitted
guest workers lawfully residing in the Commonwealth on
May 8, 2008, to apply for long-term status under the
immigration and nationality laws of the United States.
(i) Definitions.--In this section:
(1) Commonwealth.--The term `Commonwealth' means the
Commonwealth of the Northern Mariana Islands.
(2) Commonwealth Only Transition Worker.--The term
`Commonwealth Only Transition Worker' means an alien
who has been admitted into the Commonwealth under the
transition program and is eligible for a permit under
subsection (d)(3).
(3) Governor.--The term `Governor' means the Governor
of the Commonwealth of the Northern Mariana Islands.
(4) Secretary.--The term `Secretary' means the
Secretary of Homeland Security.
(5) Tax year.--The term `tax year' means the fiscal
year immediately preceding the current fiscal year.
(6) United states worker.--The term `United States
worker' means any worker who is--
(A) a citizen or national of the United
States;
(B) an alien who has been lawfully admitted
for permanent residence; or
(C) a citizen of the Republic of the Marshall
Islands, the Federated States of Micronesia, or
the Republic of Palau (known collectively as
the `Freely Associated States') who has been
lawfully admitted to the United States pursuant
to--
(i) section 141 of the Compact of
Free Association between the Government
of the United States and the
Governments of the Marshall Islands and
the Federated States of Micronesia (48
U.S.C. 1921 note); or
(ii) section 141 of the Compact of
Free Association between the United
States and the Government of Palau (48
U.S.C. 1931 note).
* * * * * * *