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FAS citizens must act now to preserve status
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Posted on Oct 24 2011
Just when we thought we had a pretty good handle on how federalization of immigration is affecting various members of the CNMI community, we discovered a new twist. As a result of several email exchanges with federal immigration officials over the course of the last week, we now understand that citizens of the Freely Associated States, or FAS, are not immune from the effects of the CRNA and will need to act affirmatively to preserve their status. The FAS includes the Federated States of Micronesia (Pohnpei, Yap, Chuuk and Kosrae), the Republic of the Marshall Islands, and the Republic of Palau.
[B]FAS citizens and the Compacts of Free Association[/B]It is common knowledge that the FAS countries have close ties with the United States as reflected in their respective Compacts of Free Association, which spell out the terms of the relationship. Although FAS citizens are deemed “aliens” because they are not citizens of the United States, they are able to freely travel to and work in the United States and its territories without the need for a visa. This privileged status was recognized under former CNMI labor and immigration law: FAS citizens were freely admitted into the CNMI, worked in the CNMI without the need for a work permit, and were counted as “local hire” for purposes of local preference. So were their immediate relatives, after a successful federal lawsuit in the 1990s. How could the CRNA, which transferred the immigration authority of the CNMI to the United States, affect FAS citizens who had the same status under both CNMI and federal immigration law? Especially since USCIS has offered parole in place to FAS IRs?
What really happened when the CRNA became effective on Nov. 28, 2009? We find it useful to think of this event in visual terms: prior to that date, the borders of the United States stopped at Guam; on that date the borders stretched to include the CNMI. On Nov. 27, 2009, we were outside of the U.S. for immigration purposes; beginning on Nov. 28, we were inside. We didn’t go anywhere, the border simply rolled over us. It is easy to understand why a person who crosses the U.S. border in the desert far from a border crossing, or who lands on the shores of the U.S. on a secluded beach far from a port of entry should be deemed “illegal.” It is more difficult to understand how people, who stayed in one place just living their lives, could become illegal—or potentially so—from one day to the next, without going anywhere. Yet that is exactly what happened in the CNMI.
The legal terminology for all aliens present in the CNMI on the effective day of the CRNA is “present without admission or parole.” Generally, aliens “present without admission or parole” are subject to removal (i.e. deportation). The CRNA provided protection for aliens who had CNMI permits issued prior to that date for a period of up to two years, ending on Nov. 28, 2011. Thus aliens with umbrella permits or other classes of valid CNMI permits were shielded, for two years, from the effects of being present without admission or parole.
How does this apply to FAS citizens? FAS citizens were not issued umbrella permits or any other CNMI permits because, under CNMI law, they didn’t need one. Accordingly, they, like every other alien present in the CNMI on Nov. 28, 2009, became “present without admission or parole” but without the protection of umbrella or any other CNMI permit to protect them.
Well, this presents a problem, doesn’t it? The Compacts of Free Association say that citizens of FAS countries can freely travel to and work in the United States and its territories. The CRNA, on the other hand, would dictate that FAS citizens present in the CNMI on or after Nov. 28, 2009, are “present without admission or parole” and, therefore, at least theoretically removable. To solve this dilemma, the Department of Homeland Security has come up with a neat solution.
[B]What FAS citizens must do to preserve status[/B]All FAS citizens, who have not left and re-entered the CNMI since Nov. 28, 2009, will need to obtain a Form I-94, (Nonimmigrant Arrival-Departure Record), a document that is normally issued to aliens upon entering the United States at an official port of entry. The Form I-94 is issued by a Customs and Border Protection officer upon a determination that the alien is admissible to the United States. In order to be admitted, the alien must show an appropriate visa, visa waiver, or parole. The Form I-94 is usually stapled into the alien’s passport with a stamp showing the expiration date. An alien who does not depart the United States by the expiration date, or who does not obtain an extension of the period of lawful admission, is subject to removal. FAS citizens will not need to exit the CNMI just to obtain an I-94 upon their return. Rather, they can obtain an I-94 by simply visiting CBP at the Francisco C. Ada International Airport on Saipan. Call ahead to get an appointment. Appointments will be scheduled between 10am and 2pm, and again between 5pm and 7pm. According to CBP, these hours should be available seven days a week depending on flights, staffing, and previously scheduled appointments. All processing is conducted at the airport. The CBP number to call is 288-0025.
Because one of our staff is a citizen of Palau, we have had an opportunity to observe how this process works. She called CBP, got an appointment for the same day, went to the airport, and had an I-94 stapled into her passport. The stamp has the date of issue, “Class CFA/P” (Compact of Free Association/Palau) and “Until: D/S” (Duration of Status). So it appears there is no expiration date, although if she leaves the CNMI, she is likely to be issued a new I-94 upon her return. All in all a pretty painless process. Note: All FAS citizens who have left the CNMI and then re-entered since Nov. 28, 2009, should look at the Form I-94 stapled into their passports when they re-entered. Kudos to CBP.
[B]Do FAS citizens need work authorization?[/B]An issue related to admission is authorization to work. Generally, all nonimmigrant aliens to the U.S. are required to have a valid Employment Authorization Document, or EAD, in order to be legally employed. Formerly, this requirement was of no concern to FAS citizens in the CNMI because, prior to Nov. 28, 2009, the CNMI was not part of the U.S. for immigration purposes and, therefore, no EAD was required.
What about now? We are informed by USCIS, that pursuant to renegotiated Compacts and case law, citizens of FAS countries are no longer required to have EAD to legally work.
USCIS explains it thus: FAS Compact nonimmigrants from any of the three Compact nations are work authorized incident to status under 8 CFR 274a.12(a)(8), and therefore, are not required to obtain EADs in order to work lawfully. However, in order to be lawfully hired by an employer anywhere in the U.S., including the CNMI, the alien will need to be able to present documentation satisfying Form I-9 requirements. An EAD is a Form I-9 “List A” secure document meeting these requirements, and is also useful for other identification purposes; thus, Compact nonimmigrants are encouraged, but are not required, to obtain an EAD. At the present time USCIS is providing four-year EADs, with no fee, to Compact nonimmigrants who file Form I-765 applications as directed in the form’s instructions. Form I-765 and instructions are available for free from USCIS, online at http://tinyurl.com/yaw8mf.
If the Compact national has other acceptable Form I-9 documentation, he or she may use that. In the case of RMI and FSM nationals under their amended Compacts—but not Palauans—the valid passport and I-94 showing Compact admission is acceptable. Compact nationals, including Palauans, are also likely to be able to obtain valid driver’s licenses and unrestricted Social Security cards, which also are an acceptable I-9 document combination.
In summary, if you are an FAS citizen, and you have not entered the CNMI since Nov. 28, 2009, you will need to go to the airport and get CBP to issue you an I-94. Make sure to have a valid passport and some other form of ID. It is essential that you do this before Nov. 28, 2012.
[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com. [/I]
