Working in the CNMI after Nov. 28

Now that the dust has mostly settled after the near panic of getting CW applications in by the Nov. 28 mailing deadline, it is time to take stock. What options remain to employers with respect to employing foreign workers? What opportunities remain to foreign workers who wish to remain and work in the CNMI? To understand where we are today and where we are going, it is useful to review the timeline of the federal takeover of immigration.

A review of federal takeover of immigration

The federal takeover of immigration is proceeding in specific phases as dictated by the Consolidated Natural Resources Act (“CNRA”) (Public Law 110-229) as follows.

-Phase 1: From May 8, 2008, when President George W. Bush signed the CRNA, to Nov. 28, 2009, the effective date of CNRA. The CNMI’s existing immigration and labor scheme remained in place.

-Phase 2: From Nov. 28, 2009, through Nov. 27, 2011, unexpired CNMI-issued entry permits became evidence of lawful status but no longer acted as visas. Umbrella permits, introduced by the CNMI during the last days before the CNRA took effect, became recognized by USCIS as a legitimate form of proof of lawful presence and work authorization. All forms of U.S. visa categories became available. Special CNMI-only visa categories implemented: E-2C for existing investors and CW for foreign workers and their dependents, although the CW category was implemented uncomfortably close to the mailing deadline. On the closing date of this phase, all remaining vestiges of CNMI immigration authority ended.

-Phase 3: From Nov. 28, 2011, through Dec. 31, 2014, during which special CNMI-only forms of status, such as CW-1, CW-2 and E-2C, are available under U.S. immigration law. All forms of U.S. visa categories are available.

-Phase 4: Jan. 1, 2015, and onward, during which all aspects of U.S. immigration law will apply to the CNMI. Only U.S. visa categories will be available. CNMI-only categories will be eliminated.

Phase 1 began on May 8, 2008, and ended on Nov. 28, 2009. Not much happened during this period; both governments were getting ready for the handover of immigration authority from the CNMI to the federal government. The main event of this phase was the Umbrella Permit Program, which extended the life of most CNMI-issued permits for a maximum of two years. On Nov. 28, 2009, we entered Phase 2 of the transition. After that date, the CNMI no longer had any authority to issue entry permits or regulate the presence of aliens in the Commonwealth. However, umbrella permits were recognized as legitimate proof of lawful presence and of work authorization. All umbrella permits expired on Nov. 27, 2011, and we entered the next phase of the transition on Nov. 28, 2011.

With the passing of the Nov. 28, 2011, deadline, we are now in Phase 3 of the transition period that began when President Bush signed the CNRA on May 8, 2008. CNMI-issued entry permits and umbrella permits became ineffective, but remain useful as proof for some applicants for adjustment of status to lawful permanent residence, to show that they originally entered the CNMI lawfully, prior to the U.S. immigration takeover. All aliens in the CNMI must have some form of status under U.S. immigration law. This can be family-based status (“green card”) or employment-based status (e.g., CW, E-1, E-2, E-2C, L-1, H-1, EB-3, EB-5, F-1, or R-1). It may also be some form of parole issued by DHS.

In Phase 4, the E-2C category will be phased out. The CW category will also be phased out unless it is extended for up to a five-year period. Additional extensions, in five-year increments, may be authorized. With the possible exception of CW, the CNMI will be, for immigration purposes, exactly the same as the rest of the United States. An alien who wants to enter, live, or work in the CNMI will have to meet the same requirements and go through the same procedures as if he were entering the United States through New York, Los Angeles, or any other port of entry.

Where does this put employers?

The last few months have been a steep learning curve for all employers in the CNMI. They got a crash course in the various immigration categories available to their foreign employees. As anticipated, the largest number of applications was in the CW category, over 8,000 at the latest count. (We do not know if CW-2 dependents are included in this number.) There was a much smaller number of applications for highly skilled workers (H-1B) and senior executives and managers (L-1 and EB-1C), and treaty investors and traders (E-1 and E-2); we have no statistical information on the number of these applications. And there was a significant number of parole applications, well over 3,000 we are told. How many of these will be granted and how many of the grantees will go on to obtain work authorization is yet to be seen.

The CW category and the parole plus EAD are short term, unstable solutions. The CW category will be phased out in three years unless extended. The prospects for extension are uncertain and very political. Paroles are granted for one or two years and are discretionary. Will they be continued if there is an administrative change in Washington, D.C.? If a conservative president is elected, unlikely. If President Obama is re-elected to office, most likely.

The higher level visas are both expensive and require extensive qualifications. Employers will continue to take advantage of them for highly educated and qualified executives, managers, and professionals. What about rank and file positions that are mostly filled by foreign workers? The CW program put pressure on employers to hire local workers. They had to attest, under penalty of perjury, that no qualified U.S. worker was available for the position. But because the preference requirement under the CRNA is mostly an honor system, it is unclear how many foreign workers were actually replaced by U.S. workers. It is also unclear of just how many qualified local workers are available to replace foreign workers. All of this will become clearer once statistical evidence becomes available.

Once the CW category is phased out, CNMI employers will have no choice; they will have to hire U.S. citizens, FSM citizens, green card holders, or individuals with any of the regular employment-based nonimmigrant visas. They will have to hire CNMI local workers and recruit from Guam and US. employers, if they plan to continue to do business in the CNMI after Dec. 31, 2014, now need to concentrate on two goals: (1) training U.S. workers and (2) gathering the political support to extend the CW program.

Where does this put foreign workers?

The position of foreign workers is the flip side of the position of employers. If you already have a U.S. immigrant status, such as a green card, you are secure. You are considered a U.S. worker for purposes of hiring the CNMI, and in the rest of the USA. If you are eligible for a green card, or other immigrant status, such as special immigrant religious worker, you should waste no time in getting one. It really is a priority if you wish to remain in the CNMI. If you have a non-immigrant status, such as E-1, E-2, L-1, H-1, F-1, or R-1, you can renew it in accordance with the rules governing the specific category.

If you have a CW status pending, and no other U.S. status is available to you, you should make alternate plans for after Dec. 31, 2014. CW may or not continue; you should explore your options in your home countries and in other places.

If you have parole, your stay is governed by the terms of your parole. You need work authorization, in addition to parole, to legally work in the CNMI. But be careful not to file your application for a work authorization (“EAD”) before your parole is granted (or, in some cases, with your parole application). You cannot apply for EAD unless you already have some form of status; no status, no EAD. We have now seen many people who have filed for EADs without having any parole or other application pending. Please be aware that USCIS will accept your filing fee of $380 and even take your biometrics and still deny the EAD application because there is no acceptable basis to justify the grant of parole. And remember: no refunds.

We understand that there are large numbers of people who do have parole applications pending. There are more people for whom parole has recently become available (IRs of U.S. citizens and “stateless”). USCIS posted instructions regarding this class of parole on its website on Dec. 9, 2011. See, http://tinyurl.com/d79xcxn. People who have pending parole applications based on these same criteria do not have to refile. Those who are eligible and have not yet filed are encouraged by USCIS to file before Jan. 31, 2012. People who file by that date will have their parole backdated to Nov. 28, 2011. People who file after that date will not and will therefore accrue unlawful presence. We will address the specifics of this form of parole in our next column.

So, for people in parole or pending parole status, our advice is the same as for CW: apply for long term U.S. immigration status if you are eligible; explore options away from the CNMI if you are not.

We anticipate an increase in enforcement actions by ICE. The removal procedure is not a pleasant prospect. It is emotionally draining on you and your family. If you hire a lawyer, it is financially draining. Although the Obama administration has spearheaded, and DHS has officially adopted, the policy of prosecutorial discretion (aka the “Morton memo”), which encourages prosecutors to limit removal to criminals and terrorists, you cannot rely on this as a defense. The policy is not binding on any given prosecutor or ICE field office. With some significant exceptions, field offices do not seem to abide by the policy. Time will tell how the Saipan Field Office will respond. None of the local lawyers I have spoken to who have raised this defense were successful in getting a removal dismissed on this ground. Another immigration lawyer has told us that this was true even in a case which the immigration judge suggested a favorable exercise of prosecutorial discretion; the prosecutor simply refused to discuss it. We have all seen numerous cases where ICE put in removal people whose only crime was being out of status.

DISCLAIMER: The name of this column is, and always has been, “Immigration Forum.” We are not in any way connected with, and have had no communications with, visiting attorney Laguatan or his sponsors. We therefore were concerned to see the name of our column on a large banner behind the attorney visiting from San Francisco, in a photo of the public meeting he conducted last week. We have always heard that imitation is the sincerest form of flattery but in this case we are not flattered, given the comments attorney Laguatan has made about CNMI-based attorneys without, so far as we know, meeting any of us. We strongly support public education-that’s why we write this column-but we think our visitor should make up a name of his own.

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 HYPERLINK “mailto:editor@saipantribune.com.” editor@saipantribune.com.