Commonwealth of the Northern Mariana Islands: DHS Should Conclude Negotiations and Finalize Regulations to Implement Federal Immigration Law
Released: 2010-05-07T00:00:00

Letter

Background

CNMI Political History

The CNMI comprises a group of 14 islands in the western Pacific Ocean, lying just north of Guam and 5,500 miles from the U.S. mainland. Most of the CNMI population—58,629 in 2007—resides on the island of Saipan, with additional residents on the islands of Tinian and Rota. After World War II, the U.S. Congress approved the Trusteeship Agreement that made the United States responsible to the United Nations for the administration of the islands. Later, the Northern Mariana Islands sought self- government while maintaining permanent ties to the United States. In 1976, after almost 30 years as a trust territory, the District of the Mariana Islands entered into a Covenant with the United States establishing the island territory’s status as a self-governing commonwealth in political union with the United States. The Covenant grants the CNMI the right of self-governance over internal affairs and grants the United States complete responsibility and authority for matters relating to foreign affairs and defense affecting the CNMI. The Covenant initially made many federal laws applicable to the CNMI, including laws that provide federal services and financial assistance programs. The Covenant preserved the CNMI’s exemption from certain federal laws that had previously been inapplicable to the Trust Territory of the Pacific Islands, including federal immigration laws and certain federal minimum wage provisions. However, under the terms of the Covenant, the U.S. government has the right to apply federal law in these exempted areas without the consent of the CNMI government. The U.S. government enacted the recent federal immigration legislation under this authority.

Primary U.S. Agencies Involved in Immigration and Border Control

U.S. Department of Homeland Security

Three DHS components—CBP, ICE, and USCIS—have responsibility for federal immigration and border control.

Customs and Border Protection. CBP is the lead federal agency charged with keeping terrorists, criminals, and inadmissible aliens out of the country while facilitating the flow of legitimate travel and commerce at the nation’s borders. Prior to international passengers’ arrival in the United States, CBP officers are required to cross-check passenger information, which air and sea carriers submit electronically prior to departures from foreign ports, against law enforcement databases. On arrival, the passengers are subject to immigration inspections of visas, passports, and biometric data. Generally, international passengers must present a U.S. passport, permanent resident card, foreign passport, or foreign passport containing a State-issued visa. Federal regulations require that international airports provide facilities for the inspection of aliens and provide office and other space for the sole use of federal officials working at the airport.

Immigration and Customs Enforcement. ICE is responsible for enforcing immigration laws within the United States, including, but not limited to, identifying, apprehending, detaining, and removing aliens who commit crimes and aliens who are unlawfully present in the United States. ICE’s Office of Investigations investigates offenses, both criminal and administrative, such as human trafficking, human rights violations, human smuggling, narcotics, weapons, and other types of smuggling, and financial crimes. ICE’s Office of Detention and Removal Operations is the primary enforcement arm within ICE for the identification, apprehension, and removal of aliens unlawfully in the United States. The Office of Detention and Removal’s priority is to detain aliens that pose a risk to the community and those that may abscond and not appear for their immigration hearing. Consequently, the office uses detention space to hold certain aliens while processing them for removal or until their scheduled hearing date. ICE acquires detention space by negotiating intergovernmental service agreements with state and local detention facilities, using federal facilities, and contracting with private service contracting facilities.

U.S. Citizenship and Immigration Services. USCIS processes applications for immigration benefits—that is, the ability of aliens to live, and in some cases to work, in the United States permanently or temporarily or to apply for citizenship. Most applications for immigration benefits can be classified into three major categories: family-based, employment-based, and humanitarian-based. Family-based applications are filed by U.S. citizens or permanent resident aliens to establish their relationships to certain alien relatives, such as a spouse, parent, or minor child, who wish to immigrate to the United States. Employment-based applications include petitions filed by employers for aliens to enter the United States temporarily as nonimmigrant workers for temporary work or training or as immigrants for permanent work. USCIS reviews petitions for certain nonimmigrant workers against criteria such as whether the petition is accompanied by a certified determination from DOL, whether the employer is eligible to employ a nonimmigrant worker, whether the position is a specialty occupation, and whether the prospective nonimmigrant worker is qualified for the position. Humanitarian-based applications include applications for asylum or refugee status filed by aliens who fear persecution in their home countries. USCIS also processes applications for Temporary Protected Status by aliens affected by natural disasters or other temporary emergency conditions for employment authorization and applications for adjustment of status to lawful permanent residence by alien beneficiaries of family-or employment-based immigrant petitions who are lawfully present in the United States.

In addition, the Secretary of Homeland Security has delegated to all DHS components certain immigration authorities, such as authority to grant parole—that is, official permission for an otherwise inadmissible alien to be physically present in the United States temporarily. For example, CBP can grant visitors entry into the United States under the Secretary’s parole authority, and USCIS can issue advance parole to aliens in the United States who need to travel abroad and return and whose conditions of stay do not otherwise allow for readmission if they depart.

DHS also operates the U.S. Visa Waiver Program. Under this program, foreign nationals from 36 countries may qualify for temporary entry to the United States with a valid passport from their own country.

U.S. Department of Labor

DOL responsibilities under its labor certification programs include ensuring that U.S. workers are not adversely affected by the hiring of nonimmigrant and immigrant workers. Certain employers must attest to taking certain steps, depending on the particular labor certification program, such as notifying all employees of the intention to hire foreign workers and offering their foreign workers the same benefits as U.S. workers. For most labor certification programs, DOL certifies eligible foreign workers to work in the United States on a permanent or temporary basis if it determines that qualified U.S. workers are not available to perform the work and that the employment of the foreign worker will not adversely affect the wages and working conditions of U.S. workers similarly employed.

U.S. Department of State

State has responsibility for issuing visas to foreign nationals who wish to come to the United States on a temporary or permanent basis. State’s process for determining who will be issued or refused a visa comprises several steps, including documentation reviews, in-person interviews, collection of biometrics, and cross-referencing an applicant’s name against a database that U.S. embassies or consulates (posts) use to access critical information for visa adjudication. Each stage of the visa process varies in length depending on a post’s applicant pool and the number of visa applications that a post receives.

Figure 1 shows the responsibilities of the DHS components and of DOL and State related to U.S. immigration and border control.

Ste issu visas thllow lien to pply for dmission t the order.

ICE i reponle for the enforcement of immigrtion l within the interior of the United Ste, inclding the identifi- ction, pprehenion, detention, nd removl of criminlien.

USCIS process lien’ ppliction for immigrtion enefit (the ability to live, nd in ome cas work, in the United Ste permnently or temporrily).

Except where not reqired te, DOL reqire employer to flly tet the labor mrket for U.S. worker nd ensure tht U.S. worker re not dverely ffected y the hiring of nonimmigrnt nd immigrnt worker.

U.S. Entry Visas

Under U.S. immigration law, noncitizens may apply for U.S. entry visas either as nonimmigrants or as immigrants intending to reside permanently. The nonimmigrant categories for temporary admission include workers who meet certain requirements, visitors for business or pleasure, and treaty investors, among others. The immigrant categories include permanent immigrant investors, family-based, and various employment- based categories for admission to the United States as lawful permanent residents permitted to work in the United States.

Following are descriptions of the nonimmigrant categories for temporary admission.

Foreign workers. U.S. immigration law provides for several types of visas for nonimmigrant workers and their families—H visas and certain others—and sets caps for two types of H visas, H-1B and H-2B. In addition to providing for nonimmigrant visas, federal law provides for permanent employer-sponsored immigrant visas for individuals seeking to reside permanently in the United States.

Visitors. Under federal law, visitors may come to the United States for business on a B-1 visa, for pleasure on a B-2 visa, or for business or pleasure on a combined B-1/B-2 visa. Visitors with B visas are normally admitted for a minimum of 6 months and a maximum of 1 year. Eligible nationals of the 36 countries included in the general U.S. Visa Waiver Program may stay for up to 90 days for business or pleasure in the United States without obtaining a nonimmigrant visa.

Foreign investors. Federal law allows foreign investors to enter the United States as nonimmigrants under treaty investor status with an E-2 visa. Treaty investors must invest a substantial amount of capital in a bona fide enterprise in the United States, must be seeking entry solely to develop and direct the enterprise, and must intend to depart the United States when their treaty investor status ends. Treaty investors must be nationals of a country with which the United States has a treaty of friendship, commerce, or navigation and must be entering the United States pursuant to the provisions of the treaty. Federal law also allows foreign investors to seek permanent immigrant visas (EB-5) for employment-creation purposes.

CNRA Provisions Applying U.S. Immigration Law to the CNMI

CNRA applied federal immigration laws to the CNMI beginning on November 28, 2009, subject to a transition period that ends on December 31, 2014, and with key provisions affecting foreign workers, visitors, and foreign investors. CNRA includes several provisions that affect foreign workers and investors during the transition period but that may be extended indefinitely for foreign workers. During the transition period, the U.S. Secretary of Homeland Security, in consultation with the U.S. Secretaries of the Interior, Labor, and State and the U.S. Attorney General, has the responsibility to establish, administer, and enforce a transition program to regulate immigration in the CNMI. Agencies must implement agreements with the other agencies to identify and assign their respective duties for timely implementation of the transition program. The agreements must address procedures to ensure that CNMI employers have access to adequate labor and that tourists, students, retirees, and other visitors have access to the CNMI without unnecessary obstacles. In addition, CNRA requires, among other things, that the CNMI government provide the Secretary of Homeland Security all CNMI immigration records, or other information that the Secretary deems necessary to help implement the transition program.

Following are descriptions of key CNRA provisions related to foreign workers, visitors, and foreign investors.

Foreign workers. CNRA allows federal agencies to preserve access to foreign workers in the CNMI during the transition period, as well as any extensions of the CNMI-only permit program, but limits subsequent access to foreign workers to those generally available under U.S. immigration law. Key provisions regarding foreign workers in the CNMI include the following: During the transition period, existing CNMI-government-approved foreign workers lacking U.S. immigration status can continue to live and work in the CNMI for a limited time—2 years after the effective date of the transition program or when the CNMI-issued permit expires, whichever is earlier. However, CNMI employers hiring workers on or after the transition effective date must comply with U.S. employment authorization verification procedures.

During the transition period and any extensions of the CNMI-only permit program, employers of workers not otherwise eligible for admission under federal law can apply for temporary CNMI-only nonimmigrant work permits. During this period, the Secretary of Homeland Security has the authority to determine the number, terms, and conditions of these permits, which must be reduced to zero by the end of the transition period and any extensions of the CNMI-only work permit program. This program may be extended indefinitely beyond December 31, 2014, by the U.S. Secretary of Labor for up to 5 years at a time.

During the transition period, employers in the CNMI and Guam can petition for foreign workers under the federal nonimmigrant H visa process, without limitation by the established numerical caps, for two types of H visas. This exemption from the visa caps expires when the transition period ends in 2014.

During and after the transition period, CNMI employers can petition for nonimmigrant worker visas generally available under U.S. law. During and after the transition period, CNMI employers can also petition for employment-based permanent immigration status for workers under the same procedures as other U.S. employers.

Visitors. CNRA amends U.S. immigration law to replace the existing Guam visa waiver program with a joint Guam-CNMI program, in addition to other changes. Under the Guam-CNMI visa waiver program, eligible visitors from designated countries who travel for business or pleasure to Guam or the CNMI are exempt from the standard federal visa documentation requirements. The Secretary of Homeland Security is to determine which countries and geographic areas will be included in the Guam-CNMI visa waiver program. Citizens of countries that do not qualify for entry under the Guam-CNMI visa waiver program or other U.S. visa waiver programs may apply for U.S. visitor visas valid for entry to any part of the United States, including Guam and the CNMI.

Foreign investors. CNRA establishes that foreign investors in the CNMI who meet certain requirements can convert from a CNMI long-term investor to U.S. CNMI-only nonimmigrant treaty investor status during the transition period. New foreign investors can apply for U.S. nonimmigrant treaty investor status and also can petition for U.S. permanent immigration status, which was previously unavailable in the CNMI. The Secretary of Homeland Security is to decide which CNMI foreign investor permit holders will receive status as U.S. nonimmigrant treaty investors during the transition period.

Figure 2 shows key federal immigration provisions related to foreign workers, visitors, and foreign investors.

CNRA does not allow aliens present in the CNMI to apply for asylum until 2015. In the interim, an alien present in the CNMI can request not to be removed based on a claim of protection from persecution or torture.

CNMI Actions Related to Implementation of Federal Immigration Law

Since enactment of CNRA in 2008, the CNMI has taken several actions related to the implementation of federal immigration law.

CNMI Lawsuit

On September 12, 2008, the CNMI filed a lawsuit against the United States in the U.S. District Court for the District of Columbia to have specific provisions of Title VII of CNRA overturned on the grounds that it constituted unnecessary intrusion into the CNMI’s local affairs, violating the terms of the CNMI Covenant and the U.S. Constitution. The CNMI argued that provisions of CNRA violated the CNMI’s right of local self- government guaranteed by the Covenant, denying it the right to regulate its local labor force and economy as well as depriving it of revenue, all without its consent. The CNMI argued that the Constitution limits the power of Congress to impose a regulatory regimen upon a state without giving the local government the opportunity to participate in the political process that resulted in the legislation. The United States, argued, in part, that the CNMI lacked standing to pursue its claims. The federal government further argued that even if the CNMI had standing, the commonwealth had failed to state a claim upon which relief could be granted, because the legislation applying immigration law to the CNMI was lawful. The U.S. District Court for the District of Columbia has issued several rulings in the lawsuit. On November 25, 2009, the court agreed with the United States that the provisions of CNRA extending U.S. immigration laws to the CNMI beginning on November 28, 2009, do not violate the U.S.- CNMI Covenant or the U.S. Constitution. The court dismissed the two counts of the CNMI’s complaint alleging these violations. The court granted a CNMI motion for a preliminary injunction prohibiting the implementation of DHS regulations to implement the transitional worker program.

CNMI Protocol for Implementing CNRA

On September 15, 2009, the CNMI government issued “The Commonwealth’s Protocol for Implementing P.L. 110-229,” covering the use of CNMI facilities for U.S immigration purposes and U.S.-CNMI data exchange, among other topics.

CNMI facilities. The protocol outlines the approach that the CNMI will take regarding certain aspects of the transition program, including those pertaining to facilities. Specifically, regarding airport facilities, the protocol describes an intent to work with CBP, taking account of the Commonwealth Port Authority’s practical and financial limitations. The protocol explains that the CNMI was prepared to vacate its existing immigration space at the Saipan, Tinian, and Rota airports but does not intend to remove any existing lessee currently occupying space at the airport to accommodate CBP. The CNMI intends to provide facility space on terms to be negotiated. Regarding detention space in its prison, the CNMI noted that it was discussing this issue with ICE.

Data exchange. The CNMI protocol proposes to allow the U.S. government access to immigration-related data. The CNMI has used two databases, the Labor Information Data System (LIDS) and the Border Management System (BMS), respectively, to record the permit status of certain aliens and to record the arrivals and departures of travelers. Specifically, the CNMI protocol envisions the following: DHS and the CNMI will engage in a two-way data exchange, with DHS providing flight entry data and the CNMI providing information from its immigration records (LIDS and BMS).

The CNMI will provide access to CNMI immigration records that DHS formally requests via an appropriate document and within a reasonable time frame.

The CNMI will consider privacy protections in making information available to the U.S. government.

The CNMI expects to recover the cost of generating and producing any information requested by DHS.

CNMI Umbrella Permits

The CNMI issued temporary permits authorizing the holders to remain in the commonwealth after the federalization transition date, November 28, 2009, for a maximum of 2 years consistent with the terms of the permit. These “umbrella” permits also include provisions for extending, transferring, and seeking employment. Between October 15 and November 27, 2009, the CNMI Department of Labor, Department of Commerce, and Attorney General’s office identified all aliens eligible to receive umbrella permits, which they issued if an alien appeared personally with adequate identification and signed the contractual agreement contained in the umbrella permit. Permits were issued to workers, students, and investors as well as to their immediate relatives.

Since the injunction against DHS’s regulations for the transitional worker program, a disagreement has arisen between the U.S. and CNMI governments regarding employment authorization for aliens who were authorized to be present by the CNMI government as of November 28, 2009, and were issued an umbrella permit. The U.S. government considers the employment authorization of aliens to be a matter of federal law, while the CNMI government maintains that it is a shared responsibility. As a result of the disagreement, the federal government and CNMI government have issued conflicting guidance. For example, according to USCIS, an employer in the commonwealth does not need the approval of the CNMI Department of Labor to hire a holder of a CNMI foreign worker permit (Foreign National Worker Permit). In contrast, the CNMI government maintains that the approval of the local Department of Labor is required.

DHS Has Begun Implementing Border Control but Has Not Negotiated Solutions to Operational Challenges

DHS components CBP, ICE, and USCIS have each taken steps to secure the border in the CNMI in accordance with CNRA. In addition, DHS has taken several steps to facilitate the implementation of CNRA. However, lack of resolution of the components’ negotiations with the CNMI government contributes to operational challenges. CBP operational space at the CNMI airports does not meet its facility standards for ports of entry, and DHS and the CNMI government have not executed long-term occupancy agreements that would allow DHS to upgrade the airport facilities. ICE efforts to acquire detention space at the CNMI local correctional facility also have been unsuccessful. As a result, as of March 2010, ICE has transferred only 3 of 30 aliens with prior criminal records to correctional facilities in Guam or Honolulu and released the other 27 on their own recognizance. Additionally, DHS has not succeeded in negotiating with the CNMI for direct access to CNMI immigration data, making it difficult for U.S. officials to verify the status of aliens in the CNMI and hampering enforcement operations.

DHS Has Taken Steps to Secure Border in the CNMI

CBP Has Begun Inspecting Arriving Travelers

Prior to beginning inspection of arriving travelers in the CNMI, CBP officials made numerous visits to the CNMI to determine resource requirements and prepare for implementation of federal border control. In June 2009, CBP officially notified the CNMI Port Authority of its border control facility space, configurational, infrastructure, and physical security requirements. In response, the CNMI Port Authority sent a letter stating that it was unable to meet CBP requirements owing to limited financial resources and expertise and asking CBP to initiate efforts to meet the facility requirements. According to CBP, it subsequently began preparations to reconfigure the facilities. CBP officials told us that the Commonwealth Port Authority gave information technology staff access to the Saipan and Rota airports to install secure wireless networks on November 23, 2009, pursuant to CBP’s signing of right-of-entry agreements for the Saipan and Rota airports on that date. According to CBP, these agreements allowed it to prepare to begin operations in the airports by November 28, 2009, while the agency sought to negotiate permanent occupancy agreements. On November 28, 2009, 45 CBP officers moved into space previously occupied by the CNMI Department of Immigration at the Saipan airport and space previously occupied by the airport police at the Rota airport and began inspecting travelers’ immigration status on entry into, and in some cases on exit from, the CNMI.

In January 2010, we observed CBP officers at the Saipan airport following procedures consistent with those required at other U.S. international airports. For example, we watched CPB officers screen arriving visitors in the immigration inspection area. According to the CBP officials in Guam and the CNMI, prior to visitors’ arrival in the CNMI, CBP officers screen 100 percent of the names that airlines submit electronically through a passenger information system, which the officers access through a database known as TECS. At immigration booths, we observed CBP officers verifying arriving passengers’ admissibility by scanning passports, reviewing other travel documents, and asking questions about the traveler’s intent. We also observed CBP officers taking photos and fingerprints and enrolling travelers in an immigration database known as US-VISIT. We further observed CBP officers escorting some travelers to a temporary secondary screening area, where officers asked additional questions to determine travelers’ admissibility and subsequently admitted or denied travelers entry into the CNMI.

In addition, we observed CBP officers interviewing Chinese and Russian visitors in the primary screening area who were eligible for, and granted parole into, only the CNMI under the Secretary’s parole authority. Because China and Russia are not currently included in the U.S. or Guam- CNMI visa waiver programs, CBP inspectors complete several more administrative steps to parole Chinese and Russian visitors into the CNMI than are required to admit visitors from eligible countries. According to the CBP shift supervisor, while a typical primary interview may take 2 to 3 minutes, an interview for parole may take 5 to 6 minutes.

From November 28, 2009, to March 1, 2010, CBP officers working at the Saipan and Rota airports processed 103,565 arriving travelers, granting parole to 11,760 (11 percent). Table 1 summarizes the number of arrivals processed by CBP officers at the Saipan and Rota airports from November 28, 2009, to March 1, 2010, including those admitted from primary and secondary screening areas, those granted parole, and those refused entry from the secondary screening area.

During this period, more than 80 percent of the arriving travelers came from Japan or South Korea (see fig. 3). Of the arriving travelers from China and Russia, 86 percent (10,398 of the 12,131) and 90 percent (1,027 of the 1,146), respectively, were paroled into the CNMI only, under DHS authority.

On March 28, 2010, CBP replaced the first group of officers temporarily assigned to the Saipan and Rota airports with a new group, according to CBP officials. On the basis of current flight schedules and estimated number of travelers, CBP has reduced from 45 to 30 the number of full- time officers required in Saipan and Rota. CBP posted announcements for entry-level and supervisory officer positions in the CNMI in November 2008 and April 2009 and received approximately 500 job applications from the CNMI community. Consistent with provisions of CNRA that require DHS, among other agencies, to recruit and hire staff for its operations from among qualified U.S. citizens and nationals residing in the CNMI, CBP hired seven local CNMI citizens, including two who had previously worked for the CNMI Department of Immigration, and three residents of Guam. According to CBP’s Human Capital Office, permanent staff will start working at CNMI airports in July 2010.

ICE Has Begun Identifying, Detaining, and Removing Illegal Aliens

Since November 28, 2009, 10 ICE officials detailed to Saipan have provided outreach to the CNMI community, assessed local security risks, identified aliens in violation of U.S. immigration laws, and processed or detained aliens for removal proceedings. During the first month of operations in the CNMI, ICE officials met with local law enforcement officials and provided information at local events to educate the community on ICE’s law enforcement role and responsibilities. ICE officials also established a point of contact in the CNMI Department of Labor and met with staff in the CNMI Attorney General’s office.

To protect national security, public safety, and the integrity of the U.S. border in the CNMI, ICE assessed potential security risks that may lead to future criminal and civil enforcement in the commonwealth. First, ICE officials predicted that as CNMI labor permits expire, aliens ineligible for immigration benefits may file fraudulent immigration benefit applications. Second, ICE officials anticipate an increase in alien smuggling to Guam as aliens ineligible for immigration benefits try to reach Guam to apply for asylum. On January 5, 2010, ICE and the U.S. Coast Guard interdicted 24 Chinese nationals attempting to enter Guam illegally by boat.

ICE has also identified individuals who may be in violation of U.S. immigration laws and has begun processing some aliens for removal. From December 7, 2009, to March 1, 2010, ICE identified 264 aliens subject to possible removal from the CNMI—including 214 referrals from the CNMI Attorney General’s office with pending CNMI deportation orders and 49 referrals from the ICE Office of Investigations and the community—and requested immigration status information about these individuals from the CNMI Department of Labor. As of March 1, 2010, ICE officials had processed 72 of the 264 aliens for removal proceedings, either for being present in the United States without inspection or parole or for not possessing a required valid entry document. Of these 72 aliens, 56 were convicted criminals under CNMI or U.S. law, including 30 who had completed their sentences at the local correctional facility and had been released into the community under CNMI authority. ICE also had transferred 3 of these 30 aliens convicted of crimes under CNMI or U.S. law to correctional facilities in either Guam or Honolulu and had released the other 27 on their own recognizance.

On March 9, 2010, ICE officials told us that they had not deported any of the 72 aliens being processed for removal but that 31 were scheduled for immigration hearings by the end of March 2010 and 9 had agreed to waive their right to a hearing and to be deported after completing their criminal sentences. According to ICE officials, immigration hearings take place during 1 week of every month, when a judge from the U.S. Department of Justice Executive Office of Immigration Review travels to Saipan.

USCIS Has Begun Adjusting Immigrants’ and Nonimmigrants’ Status

Prior to November 28, 2009, USCIS representatives visited the CNMI to establish contacts, prepare plans for outreach to the community on forthcoming federal regulations and the transition to federal control of immigration in the CNMI and identify issues to resolve subsequent to the transition. Key USCIS activities included the following.

In March 2009, USCIS opened an Application Support Center in Saipan and stationed two full-time employees at the center to provide information services, interview residents currently eligible to apply for lawful permanent resident status or citizenship, and process requests requiring biometric services. The center is also staffed by three contract employees who provide biometric collection services.

In early December 2009, USCIS officials met with CNMI employers, business groups, representatives of community organizations, and the general public by conducting 13 town hall or public forum meetings on U.S. immigration law and procedures with a particular focus on completion of the Form I-9, Employment Eligibility Verification. Topics discussed included (1) the process for CNMI nationals to apply for immigration benefits under U.S. law; (2) the process for U.S. citizens to file petitions for alien relatives; and (3) the requirements for aliens living in the CNMI to obtain the advance parole needed to travel abroad and return to the CNMI.

For calendar year 2009, USCIS processed 515 CNMI applications for permanent residency and 50 CNMI applications for naturalization or citizenship, more than doubling the number of interviews conducted for applications for residency or citizenship from calendar year 2008, according to data provided by USCIS officials. By March 17, 2009, USCIS also received 1,353 advance parole requests and approved 1,123 of them. USCIS also granted 705 paroles-in-place for domestic travel and 24 group paroles.

DHS Has Taken Several Actions to Facilitate Implementation of CNRA

To facilitate implementation of CNRA in the CNMI, DHS led meetings with DOI, DOL, and State, the other departments charged with implementing CNRA; reported to Congress on the budget and personnel needed by the DHS components; and initiated outreach to the CNMI government.

Led interdepartmental meetings. From May 2008 through November 2009, DHS led, jointly with DOI, several interdepartmental meetings to discuss the implementation of CNRA, according to DHS, DOI, and DOL officials. Discussion during the meetings focused on operational and legal issues related to implementation of federal immigration law in the CNMI and on developing an interdepartmental memorandum of understanding of the departments’ respective duties. According to DHS and DOL officials, by the end of March 2010, the memorandum had been finalized but not yet signed by the departments’ Secretaries’ and was therefore not publicly available.

Reported to Congress on needed budget and personnel. In January 2009, DHS submitted a report to Congress, as required by CNRA, on current and planned federal personnel and resource requirements. The report estimated that $97 million was necessary to fulfill all DHS responsibilities in the CNMI for fiscal years 2009 and 2010. In June 2009, responding to questions for the record in conjunction with a May 2009 hearing on the implementation of CNRA, DHS presented a new estimate of $148.5 million and described a phased approach to distribute costs from fiscal years 2009 to 2011. As of April 2010, DHS had not yet specified the changes in resources required for administering immigration and travel laws for the CNMI and Guam, as directed by Congress in its fiscal year 2009 appropriation.

Initiated outreach to CNMI government. Although it has implemented CNRA primarily through its components, DHS has also initiated department-level outreach to the CNMI government. Prior to November 28, 2009, the DHS Office of Policy—charged with coordinating DHS components and working with other federal departments involved in implementing CNRA—contacted the CNMI government and led several intercomponent DHS visits to the commonwealth to meet with CNMI officials and gather information related to the DHS components’ efforts to establish federal border control in the CNMI. Additionally, in September 2009, the Secretary of DHS met with the Governor of the CNMI to discuss several aspects of CNRA implementation.

DHS Components Face Operational Challenges in the CNMI and Have Been Unable to Negotiate Solutions with the CNMI Government

CBP Has Not Yet Finalized Long-Term Occupancy Agreements with the CNMI Government for Required Airport Space

The space that the CNMI government has provided for CBP operations at the Saipan and Rota airports is inadequate to meet CBP’s basic facility requirements, and the two parties have not yet concluded negotiations for long-term occupancy agreements that would allow CBP to begin upgrading the facilities. The CBP Airport Technical Design Standards describes basic CBP facility requirements for international airports and reflects U.S. policy, procedures, and minimum development standards for the design and construction of CBP facilities at airports. These standards specify space requirements for CBP’s primary, secondary, and administrative areas, among others, based on the size of the airport and the number of passengers processed per hour. In addition, U.S. law requires that airports designated as international airports must provide the U.S. government, without charge, adequate space for inspection and temporary detention of aliens as well as for offices.

CBP has estimated that it will process between 800 and 1,400 passengers per hour at peak hours at the Saipan International Airport and has designated the airport as a low-volume and midsize airport, requiring at least 15,000 square feet for primary and secondary screening and other space. CBP currently occupies approximately 9,390 square feet of airport space previously used by CNMI Immigration. CBP’s current configuration at the airport does not include holding cells that meet federal standards; as a result, CBP lacks space to temporarily detain individuals who present a risk to public safety and to its officers. According to CBP officials, as of April 2010, CBP continued to seek access to approximately 7,200 additional square feet of space at the Saipan airport. CBP officials told us that they were considering three alternatives: reconfigure part of a 15,390 square-foot space as of January 2010, leased for storage by a tenant but, according to CBP, not in use; identify other space in the airport for reconfiguration, in close proximity to the current immigration processing area; or build an additional facility on airport land adjacent to CBP’s immigration processing area at the Saipan airport.

As of April 2010, CBP and the Commonwealth Port Authority had not concluded negotiations regarding long-term occupancy agreements for space at the Saipan and Rota airports or resolved key differences.

CBP: In technical comments on a draft of this report, CBP stated that, given the CNMI’s economic and financial conditions, the agency will initially fund any construction or reconfiguration required to bring CNMI existing airport facilities into compliance with CBP’s operational requirements. CBP also stated that it was working to define its space needs and to complete facility design plans. However, CBP said that it would not rent airport space that the CNMI is obligated to provide at no cost. CBP stated that it agreed with the CNMI regarding the need for discussion of identified options to meet CBP space needs and for negotiation of certain key points. As of May 2010, CBP officials reported that they had not requested that the DHS Office of Policy intervene in conversations with the CNMI government regarding long-term occupancy agreements for airport space.

CNMI: According to CNMI officials, the Commonwealth Port Authority is aware that the airport space does not meet CBP operational requirements. However, the officials told us that the port authority is not in a financial position to provide space to CBP without charge, including space that is currently generating revenue from a tenant. In January 2010, CNMI port authority officials told us that CPB had not consulted with them regarding any construction plans, which would require their approval. Additionally, in commenting on a draft of this report in April 2010, the CNMI said that CBP had not officially communicated a request regarding its space needs. The CNMI further commented that the commonwealth is not prepared to enter into negotiations with CBP unless it is assured that the request for space has been cleared at least at the assistant secretary level at DHS and that the department has received the necessary assurance from Congress that the funds necessary to fulfill CBP’s space needs will be available.

ICE Efforts to Negotiate for Detention Space in CNMI Correctional Facility Have Been Unsuccessful

ICE has been unable to conclude negotiations with the CNMI government to arrange access to detention space in the CNMI correctional facility. In March 2010, ICE estimated that it required 50 detention beds for its CNMI operations. Under a 2007 intergovernmental service agreement between the U.S. Marshals Service and the CNMI Department of Corrections, the CNMI adult correctional facility in Saipan provides the U.S. government 25 detention beds at a rate of $77 per bed per day. As of September 2008, less than 30 percent of the facility’s beds (134 of 513) were filled.

To obtain needed detention space, ICE proposed to either amend the 2007 U.S. Marshals Service agreement before it expired on April 1, 2010, or establish a new agreement with the CNMI government. As of March 2010, after a year of negotiation, ICE had not finalized an agreement with the CNMI government owing to unresolved cost documentation issues, according to a senior ICE official.

In March 2009, ICE officials initiated discussion with the CNMI government regarding needed detention space and requested that CNMI representatives complete a jail service cost statement.

In October 2009, representatives from the CNMI provided an incomplete jail service cost statement. The statement did not include capital construction costs, and CNMI representatives informed ICE officials that all estimates were preliminary and that the statement would require additional review.

In November 2009, a CNMI official provided ICE with an e-mail containing top-level cost estimates, including capital and operating costs totaling approximately $107 per day.

In December 2009, ICE requested additional documentation for the construction costs, and the CNMI Attorney General provided a second jail service cost statement with a further breakdown of the CNMI rate of $107 per day. An ICE assessment of the CNMI statement deemed that the CNMI had miscalculated certain costs and, after recalculating these costs, proposed a bed rate of approximately $89 per day.

In January 2010, according to ICE officials, the CNMI acknowledged calculation errors but did not agree to a bed rate lower than $105.

Since January 2010, negotiations between ICE and the CNMI regarding detention space have been on hold. According to the ICE contracting official, the CNMI has not provided any additional information supporting its $105 rate. Before contracting for beds, ICE requires documentation that establishes a fair and reasonable cost. According to the CNMI Attorney General, further documentation for the $105 rate is not necessary because the commonwealth is negotiating as an equal partner rather than as an applicant submitting cost proposals to DHS. ICE officials noted that although they had briefed the DHS Office of Policy on this operational challenge, ICE had remained responsible for the negotiations because of its expertise. ICE officials also observed that the CNMI had rebuffed all ICE efforts to acquire detention space.

According to ICE officials, ICE prefers to detain aliens with prior criminal records while they await their immigration removal hearings, owing to possible flight risk and danger to the community. Given the current lack of needed detention space, ICE has identified three alternatives regarding detainees it seeks to remove from the CNMI while removal proceedings are under way: 1. Issue orders of supervision. Since November 28, 2009, ICE has released 43 detainees into the CNMI community, including 27 with prior criminal records, under orders of supervision. According to ICE officials, orders of supervision are appropriate for detainees who do not present a danger to the community or a possible flight risk. 2. Pay to transport detainees to other U.S. locations. ICE can transport detainees to another detention facility, such as in Guam or Honolulu. Guam’s correctional facility charges $77 per day. As of March 1, 2010, ICE had paid approximately $5,000 to transport two detainees to Guam and one to Honolulu. 3. Pay CNMI’s daily rate at Saipan correctional facility. ICE may pay the CNMI’s $105 daily rate for each detainee, if the CNMI provides appropriate documentation justifying its proposed rate.

In addition, because ICE has been unable to conclude its negotiations with the CNMI Department of Corrections, ICE cannot conduct immigration removal hearings for persons currently serving time in the CNMI corrections facility. As of March 1, 2010, ICE identified 26 CNMI prisoners serving criminal sentences in the local CNMI correctional facility for removal proceedings. In general, ICE attempts to conclude removal proceedings before inmates are released, in order to expedite removals and avoid additional detention costs, according to ICE officials. However, the CNMI Department of Corrections will not permit ICE to conduct immigration hearings at the facility unless ICE agrees to pay utility and access fees to establish video conferencing services in the CNMI prison. Officials with the CNMI correctional facility proposed a fee of $84 per day for utilities and to allow video conferencing hookups. According to an ICE official, ICE has agreements with other federal and state prisons in other U.S. locations to hold immigration hearings while inmates are incarcerated and has installed video-conferencing equipment, free of charge, to allow inmates to participate in their immigration proceedings while in custody.

DHS Has Been Unable to Negotiate Direct Access to CNMI Immigration and Border Control Data to Support Ongoing Operations

As of April 1, 2010, DHS components lacked direct access to CNMI immigration and border control data contained in two CNMI databases, LIDS and BMS. The CNMI government assigned a single point of contact in the CNMI Department of Labor to respond to CBP, ICE, and USCIS queries from the databases, most commonly for verification of an individual’s immigration status. However, DHS component officials have expressed concerns about the reliance on the CNMI point of contact and stressed that it is imperative for the department to have direct access to the CNMI data systems to perform the department’s mission with maximum efficiency.

ICE officials expressed the following concerns regarding DHS’s reliance on a single CNMI point of contact for requests for CNMI immigration data: ICE may lack information needed to support decisions regarding aliens’ status or eligibility to remain in the CNMI. For example, ICE must rely on the CNMI point of contact for information to determine the status of a given individual with an umbrella permit.

Relying on one CNMI point of contact to verify immigration status for individuals subject to ICE investigations could compromise security for ongoing operations.

Because the CNMI point of contact is an indirect source, basing ICE detention and removal decisions on data provided by the point of contact could lead to those decisions’ eventual reversal in court.

Given that ICE operates 24 hours per day, 7 days per week, the CNMI point of contact cannot respond to all of ICE’s needs in a timely manner.

USCIS officials also expressed concerns regarding lack of direct access to LIDS: Direct access to LIDS would allow USCIS to verify information provided by applicants for immigration benefits such as advance parole. For example, when an applicant for advance parole presents the required CNMI-issued entry permit or umbrella permit, direct access to LIDS would let USICS officials verify the authenticity of the permit.

Direct access to the data will facilitate the processing of applications for CNMI-only work permits and for CNMI-only nonimmigrant treaty investor status.

Direct access to CNMI immigration status information would assist USCIS in responding to interagency requests for immigration status verification through its SAVE program and in implementing the E-Verify program in the CNMI.

In February 2010, CNMI officials reported that the point of contact assigned to work with the U.S. government had promptly supplied information on individual cases to U.S. officials from immigration and border control databases. Moreover, a senior CNMI official stated that if the point of contact is unable to respond to future DHS inquiries in a timely manner, CNMI officials would be willing to engage in additional discussions regarding more direct access to LIDS and BMS.

According to ICE officials, the CNMI responses to ICE inquiries have not been timely and have not always provided sufficient information. Documentation that ICE provided shows that from late December 2009 through March 2010, ICE’s Office of Detention and Removal made 68 inquiries to CNMI’s Department of Labor to determine aliens’ immigration status. We examined ICE’s record of these inquiries and found that CNMI response times ranged from 16 minutes to around 23 hours, averaging roughly 4 and a half hours. ICE officials reported that the responses contained first and last names and LIDS numbers but rarely included biographical or identifying information, such as date-of birth, nationality, or photographs, that could be used to further ICE investigations. An ICE official also told us that in late February 2010, he sent an inquiry regarding whether 214 aliens with pending deportation orders, referred to ICE by the CNMI Attorney General, had been granted valid work permits prior to November 28, 2009. According to ICE officials, by the end of March 2010, the CNMI Department of Labor had provided a blanket response that was insufficient to answer the inquiry.

DHS has communicated, at the department and component levels, with the CNMI government regarding access to CNMI immigration data.

In a July 2008 letter to the Governor of the CNMI, the DHS Office of Policy requested information on the current CNMI system for recording and documenting the entry, exit, work authorization, and authorized conditions of individuals staying in the CNMl. DHS also requested any repositories of fingerprints, photographs, or other biometric information included in the system.

On August 19, 2008, the office of the Governor of the CNMI responded to the DHS letter by providing an overview of the BMS system but stated that the CNMI does not maintain any repositories of fingerprints or other biometric information to share with DHS. According to a CNMI official, the commonwealth requested fingerprint scanners from DHS but did not receive them.

During the September 2009 meeting between the Governor of the CNMI and the Secretary of DHS, the Governor proposed, through the CNMI protocol for implementing CNRA, providing restricted access to information contained in LIDS and BMS, for a fee and in exchange for airline flight entry data.

On February 18, 2010, the Governor sent a letter to CBP indicating that he had been preliminarily advised that CBP would not share with the CNMI advanced passenger information provided by airlines and he reiterated the CNMI’s request for this information. The letter indicated that access to the airline flight data would facilitate CNMI efforts to prevent an increase in the number of aliens remaining in the commonwealth beyond their authorized stay.

On March 31, 2010, CBP Office of Field Operations responded to the CNMI letter, denying the CNMI access to advanced passenger information provided by the airlines. The CBP letter stated that the CNMI’s intended use of the data did not justify their release to CNMI authorities. The CBP letter further indicated that, given DHS’s responsibility for removing aliens present in the CNMI beyond their authorized stay, it would be in the CNMI’s and DHS’s mutual interest for DHS to have access to CNMI immigration records or any other information that the Secretary deems necessary.

In March 2010, CNMI officials told us that the commonwealth would not provide DHS increased access to immigration and border control data because DHS was unwilling to share airline flight data. In written comments on a draft of this report, the CNMI government stated its intention to appeal to the Secretary of Homeland Security the DHS decision not to share these data.

U.S. Agencies’ Implementation of CNRA Programs for Workers, Visitors, and Investors Is Incomplete

U.S. agencies have begun to implement CNRA for workers, visitors, and investors, but key regulations are not final and, as a result, transition programs to preserve access to foreign workers and for investors are not yet available. In August 2008, we reported on key decisions that the agencies must make to implement the legislation. On November 25, 2009, the U.S. District Court for the District of Columbia issued a preliminary injunction prohibiting implementation of the DHS interim rule for the CNMI-only transitional worker program. As a result, although federal immigration laws now apply to the CNMI, the regulatory framework for the CNMI-only transitional work program is not yet in place and the permit program is not yet available. DHS has established the Guam-CNMI visa waiver program but did not include two countries, China and Russia, that the CNMI and Guam consider key to their tourist industries. According to DHS officials, a policy review is under way to determine whether the program should be revised to include these countries, and visitors from both nations meanwhile may enter the CNMI on the Secretary of Homeland Security’s discretionary authority to grant parole on a case-by-case basis. The DHS rule for investors currently exists in a proposed form, and as a result, the regulatory framework for the CNMI-only investor status is not yet available.

U.S. Agencies Have Taken Steps to Create CNMI-Only Work Permit Program, but Program Is Not Yet Available

DHS Issued Interim Rule for CNMI-Only Work Permit Program, but Court Injunction Has Prevented Implementation

On October 27, 2009, DHS issued an interim rule comprising regulations to implement the CNMI-only work permit program for foreign workers not otherwise admissible under federal law that was established in CNRA. These regulations address (1) the number of permits to be issued, (2) the way the permits will be distributed, (3) the terms and conditions for the permits, and (4) the fees for the permits. The rule was scheduled to take effect in its current form on November 27, 2009. In issuing the interim rule, DHS announced that it would accept comments in the development of the final rule but was not following notice-and-comment rulemaking procedures, asserting that it had good cause not to do so.

Table 2 shows the key decisions that CNRA calls for the Secretary of Homeland Security to make in implementing the CNMI-only work permit program.

DHS’s interim rule establishes the following: Number of permits. DHS will grant up to 22,417 CNMI-only work permits between November 28, 2009, and September 30, 2010, based on the CNMI government’s estimate of the maximum number of foreign workers in the commonwealth on May 8, 2008. The interim rule notes that DHS will publish annually in the Federal Register its determination of the number of permits to be granted each year of the transition period.

Distribution of permits. Under the CNMI-only work permit program, employers must petition for nonimmigrant workers to obtain status, so that DHS can administer the work permit program in a manner consistent with other nonimmigrant categories for temporary admission, such as H- 1B visas. Accordingly, DHS created the CW-1 status, which it deemed to be synonymous with the term “permit” referenced in the legislation. DHS will determine whether an occupational category requires alien workers to supplement the resident work force. The DHS interim rule does not exclude any specific occupations from the program. However, the rule notes concerns that three occupational categories—dancing (such as exotic dancing), domestic workers, and hospitality workers—are subject to exploitation and abuse, and it invites comments on whether DHS should exclude these occupations in a final rule.

Terms and conditions of the permit program. Employers must attest to their eligibility to petition for a CNMI-only work permit, and foreign workers must meet qualifications for positions. If a foreign worker is in the CNMI, the employer must attest that the worker is there lawfully. Additionally, the employer must attest that the position is nontemporary or nonseasonal and is in an occupational category as designated by the Secretary and that qualified U.S. workers are not available to fill the position.

Permit fee. The fee for the CNMI-only work permit is $470. This fee includes an annual supplemental fee of $150 per worker per year to fund CNMI vocational education, with the remaining $320 charged per Petition for a Nonimmigrant Worker in the CNMI (I-29CW). To reduce costs, an employer may name more than one foreign worker on each petition, provided that the workers are in the same occupational category, for the same period of time, and in the same location.

In issuing the interim rule, DHS claimed that it qualified for an exemption from a requirement that federal agencies publish a notice of proposed rulemaking in the Federal Register and give the public 30 days to comment. DHS raised several points to support its finding that it had good cause to dispense with the notice-and-comment period for the CNMI- only work permit rule. For example, DHS asserted that 18 months is a short time frame in which to review the CNMI’s immigration system and develop the regulatory scheme necessary to transition the CNMI to the U.S. federal immigration system. DHS noted in the interim rule it would accept comments through November 27, 2009, and would consider those comments in developing a final rule. DHS stated that the interim rule would go into effect in its current form on November 27, 2009. The D.C. District Court found these arguments unpersuasive in its decision to issue a preliminary injunction for this rule.

DHS received numerous comments on the interim rule from the CNMI government, a private sector group, and interested businesses and individuals. The CNMI government asserted that the rule was incomplete and would damage CNMI workers, employers, and community and commented that the rule violated procedural requirements for agency rulemaking. In addition, the Saipan Chamber of Commerce raised concerns regarding the economic impact of the regulations and made a proposal to make it easier for workers with the CNMI-only work permit to return from travel outside the commonwealth. (See text box.)

Comments from the CNMI Government and Private Sector on DHS Interim Rule for CNMI-Only Work Permit Program The CNMI government commented on the DHS interim rule stating that, in addition to disregarding the notice and comment provisions of the Administrative Procedure Act, the rule was deficient for the following reasons, among others: The interim rule fails to implement the transitional work program mandated by CNRA.

It does not establish how permits are to be allocated among competing employers, and it does not establish a procedure for reducing the number of permits to zero by the end of the transition period.

DHS failed to conduct a required economic impact analysis of the proposed rule.

The interim rule will harm the Commonwealth’s U.S. workers, foreign workers, employers, and community: The regulations do not provide preferences for U.S. workers and require only that employers attest that qualified U.S. workers are not available to fill the position. Based on CNMI experience with such an “attestation” system, the CNMI Department of Labor believes it will invite widespread abuse and decrease the job opportunities available to U.S. workers.

The regulations would cause substantial harm to foreign workers in the CNMI by subjecting them to increased fees and abuses. For example, the CNMI Department of Labor finds that the federal system does not bar employers with records of prior labor abuse from hiring foreign workers and does not assure that employers have sufficient resources to pay wages.

The regulations hurt employers by defining “legitimate business” to exclude the direct employment of housekeepers or caregivers by households. The CNMI Department of Labor also notes the importance of male and female waiters, hosts, and entertainers to the tourist industry and states that prostitution and other forms of exploitation occur in the CNMI at a rate far lower than the U.S. national average.

The regulation will hurt the community by greatly increasing the number of illegal aliens, with no concomitant federal enforcement capability to remove them.

Comments from the Saipan Chamber of Commerce cite several concerns: the lack of a DHS schedule for allocating and reducing the number of worker permits and the possibility that DHS might restrict access to certain job categories for law enforcement purposes instead of directly targeting businesses that engage in illegal activity. Additionally, the chamber asks that multiple-entry visas be made available within the CNMI to workers who qualify for status under the interim rule. This would allow workers who travel abroad for a visit to return to the CNMI without undergoing the time- consuming and expensive federal visa process at a U.S. consulate.

Because of the injunction issued in response to the CNMI’s amended lawsuit against the U.S. government, the CNMI-only foreign work permits are not yet available. In its November 2, 2009, amendment to its ongoing lawsuit to overturn portions of CNRA, the CNMI filed a motion for preliminary injunction to prevent the operation of the DHS interim rule until a procedural violation is remedied. The CNMI argued that DHS had violated procedural requirements of the Administrative Procedure Act, which requires notice and the opportunity for public comment before regulations can go into effect. On November 25, 2009, the U.S. District Court for the District of Columbia issued an order prohibiting implementation of the interim rule, stating that DHS must consider public comments before issuing a final rule. In granting the preliminary injunction, the court found, among other things, that DHS had had a lengthy period in which to develop regulations and had not demonstrated that it had used that time to complete implementation as efficiently as possible. The court also noted that the commonwealth’s residents and government had meaningful concerns about the regulations. In response to this preliminary injunction, DHS reopened the comment period from December 9, 2010, until January 8, 2010. As of May 2010, DHS had not yet issued a final rule and, as a result, CNMI-only work permits are not available. DHS plans to issue a final rule for the CNMI-only work permit program in September 2010.

DOL Has Not Made Extension Decision for CNMI-Only Work Permit Program

DOL officials informed us that they had not yet obtained sufficient experiential data to make a decision to extend the CNMI-only work permit program. DOL officials further indicated that a determination to extend the transition period well in advance of the expiration of the transition period may raise concerns about the validity of the Secretary’s determination, in light of the factors that CNRA authorizes the Secretary to consider in making the determination (see table 3). DOL officials also told us that they still lacked key data on which to base an extension decision.

DHS Has Implemented Guam-CNMI Visa Waiver Program but Is Reconsidering Inclusion of Certain Countries

On January 16, 2009, DHS issued an interim final rule for the Guam-CNMI joint visa waiver program, which is intended to allow visitors for business or pleasure to enter the CNMI and Guam without obtaining a nonimmigrant visa for a stay of no longer than 45 days. DHS’s rule designates 12 countries or geographic areas, including Japan and South Korea, as eligible for participation in the program but excludes several countries that had been part of the previous Guam visa waiver program. DHS considered designating Russia and China as eligible for participation, because visitors from those countries provide significant economic benefits to the CNMI. However, because of political, security, and law enforcement concerns, including high nonimmigrant visa refusal rates, DHS deemed China and Russia as not eligible to participate in the program.

Table 4 shows the key decision that, under CNRA, the Secretary of Homeland Security is to make regarding countries to be included in the Guam-CNMI visa waiver program.

In developing the Guam-CNMI visa waiver program, DHS officials consulted with representatives of the CNMI and Guam governments, both of which sought the inclusion of China and Russia in the program. In the regulations, DHS states that after additional layered security measures are in place, DHS will make a determination as to whether nationals of China and Russia can participate in the visa waiver program. These security measures may include, among others, electronic travel authorization to screen and approve potential visitors prior to arrival in Guam and the CNMI. In May 2009, DHS officials informed Congress that the department is reconsidering whether to include China and Russia in the Guam-CNMI visa waiver program. DHS plans to issue a final rule for the Guam-CNMI visa waiver program in November 2010.

Public comments on the proposed regulations from the Guam and CNMI governments and private sectors asked DHS to delay the Guam-CNMI visa waiver program implementation date, as allowed for in CNRA, from June 1, to November 28, 2009. The comments emphasized the economic significance of including China and Russia in the program. Guam officials argued that tourist arrivals in Guam from traditional markets were declining and that having access to China presented an important economic benefit. CNMI officials noted that the CNMI economy would be seriously damaged unless the CNMI retained access to the China and Russia tourism markets. (See text box.)

Comments from CNMI and Guam Governments and Organized Private Sector on Interim Final Rule for Guam-CNMI Visa Waiver Program CNMI Government and Private Sector CNMI government comments on the interim final rule stressed the serious economic losses that would occur if China and Russia visitors were excluded from the visa waiver program and sought a delay in the program’s implementation until additional security measures are in place and DHS has amended the regulation to allow visitors from China and Russia under the program.

The Saipan Chamber of Commerce sought to delay the implementation of the rule and asked that DHS identify the specific additional layered security measures that would allow it to reconsider its exclusion of China and Russia from the visa waiver program. Further, the chamber commented that the economic analysis used by DHS was substantially flawed, including an underestimate of the declines in tourists coming to the CNMI under standard U.S. visa requirements.

Guam Governor and Private Sector The Guam Governor’s comments noted the economic benefit from the new provision allowing longer stays but identified the need to include visitors from China in the visa waiver program and the need for a formal mechanism to add countries to the program. The Governor supported the CNMI recommendation that implementation be delayed. The Guam Visitor Bureau also sought a delay in implementation so that additional layered security could be put in place, such that DHS could reach a determination to allow visitors from China and Russia.

Guam private sector groups emphasized the economic benefits to Guam if DHS were to include China in the program. The private sector groups also identified China as a future growth market that could offset declines in visitors from Japan.

On October 21, 2009, the Secretary of Homeland Security announced to Congress and the Governors of the CNMI and Guam the decision to parole tourists from China and Russia into the CNMI on a case-by-case basis for a maximum of 45 days, in recognition of their significant economic benefit to the commonwealth. CBP issued procedures for administering the parole in a bulletin to members of its Carrier Liaison Program and internal guidance to staff. According to a State official, information regarding the decision to parole visitors did not reach Chinese officials working at the airports in that country and, as a result, the Chinese authorities suspended charter flight service between China and the CNMI between November 28, 2009, and December 18, 2009. According to CNMI officials, the suspension of charter flight service resulted in the loss of approximately $7.8 million in visitor revenue.

Proposed DHS Rule to Provide CNMI-Only Treaty Investor Status to Foreign Investors Is Not Yet Final

DHS has proposed a rule to allow a large proportion of holders of CNMI foreign investor permits to obtain U.S. CNMI-only nonimmigrant investor treaty status during the transition period. Table 5 shows the decision, with its federal requirements and authorizations, that CNRA calls for the Secretary of Homeland Security to make regarding CNMI foreign investors.

Eligibility for CNMI-only treaty investor status. In proposing to allow CNMI foreign investor permit holders to obtain U.S. CNMI-only nonimmigrant treaty investor status, DHS included three types of CNMI permits: the long-term business investor entry permit, the foreign investor entry permit, and the retiree investor entry permit. As we reported in 2008, long-term business entry permits accounted for a large proportion of CNMI foreign investor entry permits that were active and valid in July 2008. According to the DHS proposed rule, eligibility criteria for CNMI- only nonimmigrant investor treaty status during the transition period include, among others, having been physically present in the CNMI for at least half the time since the investor obtained CNMI investor status. Additionally, investors must provide evidence of maintaining financial investments in the CNMI, with long-term business investors showing an improved investment of at least $150,000.

Validity period for CNMI-only treaty investor status. DHS proposed terminating the validity period for the CNMI-only nonimmigrant treaty investor status on December 31, 2014. Under the proposed rule, the status would terminate regardless of whether the temporary worker provisions are extended.

DHS proposed the rule on September 14, 2009, and accepted comments until October 14, 2009. According to DHS’s April 2010 Semiannual Regulatory Agenda, the department intends to issue a final rule for the investor program in July 2010. CNMI-only nonimmigrant treaty investor status will not be available until the final rule is issued with an effective date.

DHS received several comments on the proposed rule from the CNMI government, Saipan Chamber of Commerce, and individuals (see text box).

Comments from CNMI Government and Organized Private Sector on Proposed DHS Rule for CNMI-only Nonimmigrant Investor Treaty Status In its comments on the proposed regulations, the CNMI government disagreed with DHS’s conclusion that the CNMI-only investor status must end in 2014, stating that the status would instead be extended if the U.S. Secretary of Labor extends the transition period for the CNMI-only worker program. Further, the CNMI noted that the proposed regulations would exclude many current CNMI investors from qualifying for the E-2 CNMI investor status. For example, the CNMI reported that about 85 of 514 long-term business entry permit holders could not qualify if an investment level of $150,000 is required. CNMI also reported that 251 of the 514 permit holders were granted at a $50,000 required investment level and were “grandfathered” in 1997 when the minimum investment requirement was increased. Further, the CNMI noted that the requirement of continuous residence is unnecessarily restrictive and would operate to exclude some of the CNMI’s current investors. For the period beyond the end of the transition period, the CNMI government projected that only 42 of 514 long-term business entry permit holders may be able to meet the minimum investment level to qualify for federal investor status.

The Saipan Chamber of Commerce also provided several comments on the proposed regulations: The transition period for investors would be extended if the U.S. Secretary of Labor extends the transition period for the CNMI worker program.

DHS has the option to extend grandfathered treaty investor status beyond the end of the transition period and should take this step to benefit the economy.

All holders of CNMI Long-Term Business Certificates should be grandfathered, as the proposed regulations would exclude those who had received CNMI permits with less than a $150,000 investment and those who are not nationals of nations with which the United States maintains a treaty of friendship, commerce, or navigation.

Multiple-entry visas should be made available to E-2 CNMI investors within the CNMI, to allow investors who travel abroad to return to the CNMI without undergoing the time-consuming and expensive federal visa process at a U.S. consulate.

Conclusions

Responding to CNRA’s extension of federal immigration law to the CNMI, DHS components have taken a number of steps since November 28, 2009, to ensure effective border control procedures in the commonwealth and to protect national and homeland security. In 2008 and 2009, DHS also initiated department-level outreach to the CNMI government to facilitate the components’ implementation of CNRA. Additionally, DHS and other agencies have taken steps to implement CNRA provisions for workers, visitors, and investors, although the programs for workers and investors are not yet available to eligible individuals in the CNMI.

Despite the DHS components’ progress in establishing federal border control in the CNMI, however, their inability to conclude negotiations with the CNMI government regarding access to airport space, detention facilities, and CNMI databases has resulted in continuing operational challenges. First, lacking occupancy agreements with the CNMI, CBP officers have continued to operate in CNMI airport space that does not meet the agency’s facility standards. Second, lacking an agreement with the CNMI government regarding detention space, ICE has released a number of aliens with criminal records into the CNMI community under orders of supervision and has paid to transport several detainees to Guam and Hawaii. Third, lacking direct access to CNMI’s immigration and border control databases, ICE officials have instead directed data requests to a single CNMI point of contact, limiting their ability to quickly verify the status of aliens and compromising the security of ongoing operations. Although the DHS components have made continued efforts to overcome these operational challenges without department-level intervention, in each case, their efforts have encountered obstacles. Negotiations with the CNMI government for long-term access to the CNMI airports have not been concluded, and key differences remain unresolved; meanwhile, negotiations for access to CNMI detention facilities and databases have reached impasse. Without department-level leadership, as well as strategic approaches and time frames for concluding its components’ negotiations with the CNMI, DHS’s prospects for resolving these issues is uncertain.

Recommendation for Executive Action

To enable DHS to carry out its statutory obligation to implement federal border control and immigration in the CNMI, we recommend that the Secretary of Homeland Security work with the heads of CBP, ICE, and USCIS to establish strategic approaches and time frames for concluding negotiations with the CNMI government to resolve the operational challenges related to access to CNMI airport space, detention facilities, and information about the status of aliens.

Agency Comments and Our Evaluation

We provided a draft of this report to officials in DHS, DOI, DOL, State, and the governments of the CNMI and Guam for review and comment. We received written comments from DHS, DOI, the CNMI government, and the Guam government, which are reprinted in appendixes II, III, IV, and V, respectively. We also received technical comments from DHS and DOL, which we incorporated as appropriate. State did not provide comments.

Following are summaries of the written comments from DHS, DOI, the CNMI government, and the Guam government and of our responses where appropriate.

DHS. DHS agreed with our recommendation that the Secretary of Homeland Security work with the heads of CBP, ICE, and USCIS to establish strategic approaches and time frames for concluding negotiations with the CNMI to resolve the operational challenges related to CBP’s access to airport space, ICE’s contract negotiations regarding detention facilities, and the ability for DHS and its component agencies to obtain information about the status of aliens from databases under the control of the CNMI government.

DOI. DOI stated that the report clearly sets out the problems of implementing the extension of U.S. immigration law to the CNMI and that the information contained in the report corresponds to the observations and analyses of the department’s Office of Insular Affairs.

CNMI government. The CNMI government raised concerns about the scope of our report and its support for several findings. The CNMI government expressed particular concern that we did not address certain issues that CNRA directed GAO to assess. As stated in the objectives of this report, we describe the steps taken by federal agencies to establish federal border control in the CNMI and the status of efforts to implement CNRA programs specific to the CNMI for workers, visitors, and investors. Recognizing that the regulations establishing the CNMI-only programs for workers and investors are not yet available, we reached agreement with the offices of the addressees of this report to examine the likely economic impact of federalization after regulations are in place. The CNMI also expressed concerns regarding the timeliness and content of federal agencies’ regulations to implement the CNRA programs for workers, visitors, and investors and regarding DHS efforts to identify overstayers and remove aliens. In our report, we discuss the CNMI’s concerns regarding each regulation. Additionally, the CNMI raised concerns regarding the adequacy of our evidence in some cases. In responding to CNMI’s comments and after considering technical comments from DHS, we modified our discussion of CBP’s effort to acquire operational space at the Saipan airport. In addition, we added information from ICE tracking logs to our discussion of DHS’s interest in obtaining direct access to the CNMI’s immigration-related databases, and we clarified other sections as appropriate. (See app. IV for more details of our responses to the CNMI’s comments.)

Guam government. The government of Guam made several observations about the interim final rule for the Guam-CNMI visa waiver program. First, Guam stated that the DHS Secretary's decision to use her authority to parole tourists from China and Russia into the CNMI, but not to use her authority similarly for such tourists seeking to enter Guam, contravenes Congress's intent that a unified visa waiver program operate in Guam and the CNMI. Second, Guam stated that CNRA was designed to expand tourism to the islands and that China and Russia must be added to the Guam-CNMI Visa Waiver Program to achieve that result. Third, Guam concluded that the interim final rule makes the eligibility requirements for the Guam-CNMI program more stringent than those of the U.S. visa waiver program. The Governor’s office asked for the immediate issuance of a final rule for the Guam-CNMI visa waiver program that is consistent with congressional intent, unifies the program, and provides both Guam and the CNMI with access to China’s and Russia’s tourist markets.

We are sending copies of this report to interested congressional committees. We also will provide copies of this report to the U.S. Secretaries of Homeland Security, the Interior, Labor, and State and to the Governors of Guam and the CNMI. In addition, the report will be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staffs have questions about this report, please contact me at (202) 512-3149 or gootnickd@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made key contributions to this report are listed in appendix VII.

Appendix I: Objective, Scope, and Methodology

In this report we describe (1) the steps that have been taken to establish federal border control in the Commonwealth of the Northern Mariana Islands (CNMI) and (2) the status of efforts to implement the Consolidated Natural Resources Act of 2008 (CNRA) provisions with regard to workers, visitors, and investors. We plan to issue a subsequent report regarding the impact of implementation of the CNRA on foreign workers, the tourism sector, and foreign investors in the CNMI.

In conducting our work, we reviewed legislation that applies U.S. immigration laws to the CNMI, namely, CNRA, the U.S. Immigration and Nationality Act (INA), and related regulations. To examine the relationship between the CNMI and the United States, we reviewed the CNMI-U.S. Covenant, the lawsuit between the CNMI and the United States to overturn specific provisions of the CNRA, and the CNMI protocol for implementing U.S. immigration law. We also reviewed related studies by GAO and the Congressional Research Service. We interviewed officials in Washington, D.C., from U.S. Department of Homeland Security (DHS) components Customs and Border Protection (CBP), U.S. Citizenship and Immigration Services (USCIS), and Immigration and Customs Enforcement (ICE), as well as officials from the U.S. Departments of the Interior (DOI), Labor (DOL), and State.

To describe the steps that have been taken to secure the border in the CNMI, we visited the commonwealth, where we interviewed officials in the CNMI Office of the Governor, Department of Labor, and the Marianas Visitors Authority. We also interviewed representatives of the CNMI private sector, including the Saipan Chamber of Commerce. In addition, we observed CBP operations at the Saipan and Rota airport facilities. We reviewed U.S. agreements with the CNMI regarding airport occupancy and detention space at the local correctional facility. In addition, we reviewed formal letters between DHS and the CNMI government, as well as the CNMI Department of Labor’s 2008 and 2009 Annual Report to the Legislature. In general, to establish the reliability of the data that CBP uses to document arrivals, that ICE uses to document aliens, and that USCIS uses to document benefits in the CNMI, we systematically obtained information about the ways that the components collect and tabulate the data. When possible, we checked for consistency across data sources. Although the data provided by CBP, ICE, and USCIS have some limitations, we determined that the available data were adequate and sufficiently reliable for the purposes of our review. We did not include the U.S. Department of Justice in our review, because the department has a limited role in implementing CNRA. We also did not assess the validity of federal agencies’ expected costs or operational needs in implementing the legislation. We did not review the extent to which U.S. laws were properly enforced.

To describe the steps that DHS has taken to implement the CNRA provisions with regard to workers, visitors, and investors, we reviewed comments provided by the CNMI and Guam governments and organized private sectors regarding federal regulations. Specifically, we reviewed DHS’s interim rule for CNMI-only worker permits, the interim final rule for the Guam-CNMI visa waiver program, and the proposed rule for CNMI- only nonimmigrant treaty investor status. We also reviewed documents provided by agency officials that describe the operation of the parole authority used to allow Chinese and Russian nationals to visit the CNMI for pleasure on a case-by-case basis. We interviewed the Governor of Guam and representatives of the private sector regarding the differences between the Guam visa waiver program and the Guam-CNMI visa waiver program.

Appendix II: Comments from the Department of Homeland Security

Appendix III: Comments from the Department of the Interior

Appendix IV: Comments from the Government of the Commonwealth of the Northern Mariana Islands

The following are GAO’s comments to the CNMI government’s letter, dated April 21, 2010.

GAO Comments

see GAO-08-791 and GAO-10-333. under way for 10 months. On the basis of the CNMI’s comments as well as DHS technical comments, we revised our description of DHS’s effort to acquire space at the airports, focusing on the current lack of space rather than describing DHS’s process for seeking space. 22. The CNMI government states that CBP has not presented any spec requests for airport space to the responsible CNMI official. We followed up with CBP officials to discuss this point. CBP officials stated that the agency was working to define its space requirements and that it agreed with the CNMI regarding the need for discussion of identified options. We modified the report as appropriate. 23. The CNMI government states that it is not prepared to enter into negotiations unless it is assured that the request for space has been cleared at least at the assistant secretary level at DHS and that the department has received the necessary assurances from Congres the funds necessary to fulfill CBP’s space needs will be available. We modified the report as appropriate. 24. The CNMI government notes that the CNMI cannot responsibly give away public lands to a federal agency without a specific and demonstrated need and the availability of federal funds to achieve the agency’s objectives in seeking the land. The CNMI further observes that the Covenant imposes certain restraints on the ability of the federal government to acquire land for public purposes in the commonwealth. We modified the text in our report to convey more CBP is seeking an agreement with the CNMI to provide clearly that space for CBP operations but is not seeking to acquire land. 25. The CNMI govern ment comments that no CNMI government official could have stated in March 2010 that DHS was unwilling to share airline flight data, because CBP’s letter of March 31, 2010, was not received in the commonwealth un the text in our re information that officials. We also Governor of the CNMI’s letter to the Secretary of Homeland Security on February 18, in an interview in March 2010, said that DHS was unwilling to share airline flight data with the CNMI. til about April 10, 2010. We modified port to state that the CBP’s letter reiterated DHS officials had previously provided to CNMI modified the text in our report to state that the 2010, as well as the Governor’s Special Legal Counsel 26. The CNMI government states that our discussion of the issues rela to BMS and LIDS reflects a lack of understanding of the characteristics and limitations of both databases. In February 2010, we issued a report on the two databases that incorporated information from prior work and relevant documents from the CNMI government, DHS, and DOI . Our February 2010 report also incorporated technical comments that the CNMI provided on a draft of the report; however, the report notes ing to that the CNMI did not provide certain requested information ow insufficient staff resources. Subsequent to publication of the February 2010 report, the CNMI sent us additional technical commentary, which we incorporated in this report’s descriptions of the databases. 27. The CNMI government observes that we have reported elsewhere tha DHS does not have an effective digital exit control system. We have added references to several prior GAO reports that highligh concerns regarding the capacity of DHS to identify overstaying visitors. 28. The CNMI government describes as unacceptable the CBP decision not supply airline passenger data to the CNMI and states that it intends e to appeal the CBP decision to the Secretary of Homeland Security. Th report notes that CNRA requires, am government provide DHS with all commonwealth immigration record CNRA does not require DHS to share data with the CNMI and also do not preclude such data sharing. We modified the text of our report to reflect the CNMI’s stated intention to appeal the CBP decision. ong other things, that the CNMI 29. The CNMI government states that access to the CNMI point of con ect gives ICE access to more definitive information than would dir access to LIDS, because LIDS is not yet completely an online operation. The CNMI adds that we would have learned this if we had ng field spoken with operational personnel in Saipan. While conducti work in Saipan in January we attempted to speak with the individual designated as ICE’s point of contact; however, he said that he was no t allowed to speak with us unless authorized by the CNMI Departmen of Labor. We sought interviews through the CNMI Department of Labor and were granted one interview with a senior official. Although the that official agreed to provide answers to our questions regarding not LIDS system, we were later told that additional information could be provided owing to insufficient staff resources. 30. The CNMI government states that we did not examine ICE’s records of its transmission of inquiries to, and receipt of replies from, the CNMI We examined one ICE unit’s log of e-mail requests for CNMI immigration data, covering late December 2009 through March 2010, and found that CNMI response times ranged from 16 minutes to 23 hours and 19 minutes, averaging 4 hours and 24 minutes. The CNMI . government also notes that its Department of Labor has no record of any ICE request emanating from an after-hours operation. ICE officials told us that they recognize that the CNMI official responsible for answering their inquiries works normal business hours and that they limit their inquiries to that time period. However, the ICE unit’s log shows one inquiry sent at 10:54 PM and the CNMI response received in 16 minutes. 31. The CNMI government infers that our report claims that DHS has proceeded expeditiously to remove illegal aliens from the CNMI. The CNMI’s inference is not accurate; our report neither states nor im that DHS has proceeded expeditiously in this regard. Our report of the 72 aliens being processed for removal has been that none deported and that federal immigration hearings take place during 1 week of every month.

Appendix V: Comments from the Government of Guam

Appendix VI: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the person named above, Emil Friberg, Assistant Director; Michael P. Dino, Assistant Director; R. Gifford Howland; Julia A. Roberts; Ashley Alley; and Reid Lowe made key contributions to this report. Technical assistance was provided by Martin De Alteriis, Ben Bolitzer, Etana Finkler, Marissa Jones, and Eddie Uyekawa.

Related GAO Products

American Samoa and Commonwealth of the Northern Mariana Islands: Wages, Employment, Employer Actions, Earnings, and Worker Views Since Minimum Wage Increases Began. GAO-10-333. Washington, D.C.: April 08, 2010.

U.S. Insular Areas: Opportunities Exist to Improve Interior’s Grant Oversight and Reduce the Potential for Mismanagement. GAO-10-347. Washington, D.C.: March 16, 2010.

CNMI Immigration and Border Control Databases. GAO-10-345R Washington, D.C.: February 16, 2010.

Poverty Determination in U.S. Insular Areas. GAO-10-240R. Washington, D.C.: November 10, 2009.

Medicaid and CHIP: Opportunities Exist to Improve U.S. Insular Area Demographic Data That Could Be Used to Help Determine Federal Funding. GAO-09-558R. Washington, D.C.: June 30, 2009.

Commonwealth of the Northern Mariana Islands: Coordinated Federal Decisions and Additional Data Are Needed to Manage Potential Economic Impact of Applying U.S. Immigration Law. GAO-09-426T. Washington, D.C.: May 19, 2009.

Commonwealth of the Northern Mariana Islands: Coordinated Federal Decisions and Additional Data Are Needed to Manage Potential Economic Impact of Applying U.S. Immigration Law. GAO-08-791. Washington, D.C.: August 4, 2008.

Commonwealth of the Northern Mariana Islands: Pending Legislation Would Apply U.S. Immigration Law to the CNMI with a Transition Period. GAO-08-466. Washington, D.C.: March 28, 2008.

Commonwealth of the Northern Mariana Islands: Serious Economic, Fiscal, and Accountability Challenges. GAO-07-746T. Washington, D.C.: April 19, 2007.

U.S. Insular Areas: Economic, Fiscal, and Financial Accountability Challenges. GAO-07-119. Washington, D.C.: December 12, 2006.

U.S. Insular Areas: Multiple Factors Affect Federal Health Care Funding. GAO-06-75. Washington, D.C.: October 14, 2005.