48 U.S.C. § 1806 (TERRITORIES AND INSULAR POSSESSIONS)
§ 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, 2014, except as provided in subsections (b) and (d), 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 $150 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.
(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
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)). This subsection does not apply to any employment to be performed outside of Guam or the Commonwealth. Not later than 3 years following the transition program effective date, the Secretary of Homeland Security shall issue a report to the Committee on Energy and Natural Resources and the Committee on the Judiciary of the Senate and the Committee on Natural Resources and the Committee on the Judiciary of the House of Representatives projecting the number of asylum claims the Secretary anticipates following the termination of the transition period, the efforts the Secretary has made 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) 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.). 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 not to extend beyond December 31, 2014, unless extended pursuant to paragraph 5 of this subsection. 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) 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. 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) 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.
(5)
(A) Not later than 180 days prior to the expiration of the transition period, or any extension thereof, the Secretary of Labor, in consultation with the Secretary of Homeland Security, the Secretary of Defense, the Secretary of the Interior, and the Governor of the Commonwealth, shall ascertain the current and anticipated labor needs of the Commonwealth and determine whether an extension of up to 5 years of the provisions of this subsection is necessary to ensure an adequate number of workers will be available for legitimate businesses in the Commonwealth. For the purpose of this subparagraph, a business shall not be considered legitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under Federal or local law. The determinations of whether a business is legitimate and to what extent, if any, it may require alien workers to supplement the resident workforce, shall be made by the Secretary of Homeland Security, in the Secretary’s sole discretion.
(B) If the Secretary of Labor determines that such an extension is necessary to ensure an adequate number of workers for legitimate businesses in the Commonwealth, the Secretary of Labor may, through notice published in the Federal Register, provide for an additional extension period of up to 5 years.
(C) In making the determination of whether alien workers are necessary to ensure an adequate number of workers for legitimate businesses in the Commonwealth, and if so, the number of such workers that are necessary, the Secretary of Labor may consider, among other relevant factors—
(i) government, industry, or independent workforce studies reporting on the need, or lack thereof, for alien workers in the Commonwealth’s businesses;
(ii) the unemployment rate of United States citizen workers residing in the Commonwealth;
(iii) the unemployment rate of aliens in the Commonwealth who have been lawfully admitted for permanent residence;
(iv) the number of unemployed alien workers in the Commonwealth;
(v) any good faith efforts to locate, educate, train, or otherwise prepare United States citizen residents, lawful permanent residents, and unemployed alien workers already within the Commonwealth, to assume those jobs;
(vi) any available evidence tending to show that United States citizen residents, lawful permanent residents, and unemployed alien workers already in the Commonwealth are not willing to accept jobs of the type offered;
(vii) the extent to which admittance of alien workers will affect the compensation, benefits, and living standards of existing workers within those industries and other industries authorized to employ alien workers; and
(viii) the prior use, if any, of alien workers to fill those industry jobs, and whether the industry requires alien workers to fill those jobs.
(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.
(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.
(Pub. L. 94–241, § 6, as added Pub. L. 110–229, title VII, § 702(a), May 8, 2008, 122 Stat. 854.)
heading: References in Text
text: The Immigration and Nationality Act, referred to in subsecs. (a), (d)(2), and (e)(3), (4), is act June 27, 1952, ch. 477, 66 Stat. 163, which is classified principally to chapter 12 (§ 1101 et seq.) of Title 8, Aliens and Nationality. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of Title 8 and Tables.
The Consolidated Natural Resources Act of 2008, referred to in subsec. (e)(1)(B), (3), is Pub. L. 110–229, May 8, 2008, 122 Stat. 754. Section 702(i) of the Act is set out as a note under this section. For complete classification of this Act to the Code, see Short Title of 2008 Amendment note set out under section 1 of Title 16, Conservation, and Tables.
heading: Effective Date
text: Pub. L. 110–229, title VII, § 705, May 8, 2008, 122 Stat. 867, as amended by Pub. L. 113–4, title VIII, § 809, Mar. 7, 2013, 127 Stat. 117, provided that:
“(a) In General.—
Except as specifically provided in this section or otherwise in this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, enacting this section and sections 1807 and 1808 of this title, amending section 1804 of this title and sections 1101, 1158, 1182, 1184, and 1225 of Title 8, Immigration and Nationality, enacting provisions set out as notes under this section, section 1801 of this title, and section 1182 of Title 8, and amending provisions set out as notes under section 1801 of this title], this subtitle and the amendments made by this subtitle shall take effect on the date of enactment of this Act [May 8, 2008].
“(b) Amendments to the Immigration and Nationality Act.—
The amendments to the Immigration and Nationality Act [8 U.S.C. 1101 et seq.] made by this subtitle [amending sections 1101, 1158, 1182, 1184, and 1225 of Title 8], and other provisions of this subtitle applying the immigration laws (as defined in section 101(a)(17) of Immigration and Nationality Act (8 U.S.C. 1101(a)(17))) to the Commonwealth, shall take effect on the transition program effective date described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by section 702(a)), unless specifically provided otherwise in this subtitle.
“(c) Construction.—
Nothing in this subtitle or the amendments made by this subtitle shall be construed to make any residence or presence in the Commonwealth before the transition program effective date described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by section 702(a)) residence or presence in the United States, except that—
“(1) for the purpose of determining whether an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)) has abandoned or lost such status by reason of absence from the United States, such alien’s presence in the Commonwealth, before, on or after November 28, 2009, shall be considered to be presence in the United States; and
“(2) for the purpose of determining whether an alien whose application for status under subparagraph (T) or (U) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) was granted is subsequently eligible for adjustment under subsection (l) or (m) of section 245 of such Act (8 U.S.C. 1255), such alien’s physical presence in the Commonwealth before, on, or after November 28, 2009, and subsequent to the grant of the application, shall be considered as equivalent to presence in the United States pursuant to a nonimmigrant admission in such status.”
heading: Congressional Intent
text: Pub. L. 110–229, title VII, § 701, May 8, 2008, 122 Stat. 853, provided that:
“(a) Immigration and Growth.—
In recognition of the need to ensure uniform adherence to long-standing fundamental immigration policies of the United States, it is the intention of the Congress in enacting this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see Effective Date note set out above]—
“(1) to ensure that effective border control procedures are implemented and observed, and that national security and homeland security issues are properly addressed, by extending the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)), to apply to the Commonwealth of the Northern Mariana Islands (referred to in this subtitle as the ‘Commonwealth’), with special provisions to allow for—
“(A) the orderly phasing-out of the nonresident contract worker program of the Commonwealth; and
“(B) the orderly phasing-in of Federal responsibilities over immigration in the Commonwealth; and
“(2) to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out the Commonwealth’s nonresident contract worker program and to maximize the Commonwealth’s potential for future economic and business growth by—
“(A) encouraging diversification and growth of the economy of the Commonwealth in accordance with fundamental values underlying Federal immigration policy;
“(B) recognizing local self-government, as provided for in the Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union With the United States of America through consultation with the Governor of the Commonwealth;
“(C) assisting the Commonwealth in achieving a progressively higher standard of living for citizens of the Commonwealth through the provision of technical and other assistance;
“(D) providing opportunities for individuals authorized to work in the United States, including citizens of the freely associated states; and
“(E) providing a mechanism for the continued use of alien workers, to the extent those workers continue to be necessary to supplement the Commonwealth’s resident workforce, and to protect those workers from the potential for abuse and exploitation.
“(b) Avoiding Adverse Effects.—
In recognition of the Commonwealth’s unique economic circumstances, history, and geographical location, it is the intent of the Congress that the Commonwealth be given as much flexibility as possible in maintaining existing businesses and other revenue sources, and developing new economic opportunities, consistent with the mandates of this subtitle. This subtitle, and the amendments made by this subtitle, should be implemented wherever possible to expand tourism and economic development in the Commonwealth, including aiding prospective tourists in gaining access to the Commonwealth’s memorials, beaches, parks, dive sites, and other points of interest.”
heading: Reports
text: Pub. L. 110–229, title VII, § 702(h)(1), (2), May 8, 2008, 122 Stat. 864, provided that:
“(1) In general.—
Not later than March 1 of the first year that is at least 2 full years after the date of enactment of this subtitle [May 8, 2008], and annually thereafter, the President shall submit to the Committee on Energy and Natural Resources and the Committee on the Judiciary of the Senate and the Committee on Natural Resources and the Committee on the Judiciary of the House of Representatives a report that evaluates the overall effect of the transition program established under section 6 [48 U.S.C. 1806] 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’, approved March 24, 1976 (Public Law 94–241), as added by subsection (a), and the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) on the Commonwealth.
“(2) Contents.—
In addition to other topics otherwise required to be included under this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see Effective Date note set out above] or the amendments made by this subtitle, each report submitted under paragraph (1) shall include a description of the efforts that have been undertaken during the period covered by the report to diversify and strengthen the local economy of the Commonwealth, including efforts to promote the Commonwealth as a tourist destination. The report by the President shall include an estimate for the numbers of nonimmigrant workers described under section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) necessary to avoid adverse economic effects in Guam and the Commonwealth.”
Pub. L. 110–229, title VII, § 702(h)(4), May 8, 2008, 122 Stat. 865, provided that:
“(4) Reports by the local government.—
The Governor of the Commonwealth may submit an annual report to the President on the implementation of this subtitle [subtitle A (§§ 701–705) of title VII of Pub. L. 110–229, see Effective Date note set out above], and the amendments made by this subtitle, with recommendations for future changes. The President shall forward the Governor’s report to the Congress with any Administration comment after an appropriate period of time for internal review, provided that nothing in this paragraph shall be construed to require the President to provide any legislative recommendation to the Congress.”
heading: Required Actions Prior to Transition Program Effective Date
text: Pub. L. 110–229, title VII, § 702(i), May 8, 2008, 122 Stat. 866, provided that:
“During the period beginning on the date of enactment of this Act [May 8, 2008] and ending on the transition program effective date described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by subsection (a)), the Government of the Commonwealth shall—
“(1) not permit an increase in the total number of alien workers who are present in the Commonwealth as of the date of enactment of this Act [May 8, 2008]; and
“(2) administer its nonrefoulement protection program—
“(A) according to the terms and procedures set forth in the Memorandum of Agreement entered into between the Commonwealth of the Northern Mariana Islands and the United States Department of Interior, Office of Insular Affairs, executed on September 12, 2003 (which terms and procedures, including but not limited to funding by the Secretary of the Interior and performance by the Secretary of Homeland Security of the duties of ‘Protection Consultant’ to the Commonwealth, shall have effect on and after the date of enactment of this Act [May 8, 2008]), as well as CNMI Public Law 13–61 and the Immigration Regulations Establishing a Procedural Mechanism for Persons Requesting Protection from Refoulement; and
“(B) so as not to remove or otherwise effect the involuntary return of any alien whom the Protection Consultant has determined to be eligible for protection from persecution or torture.”