Presentation to the Saipan Chamber of Commerce December 3, Presented by: Maya B. Kara and Bruce L. Mailman Mailman & Kara LLC

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1 Presentation to the Saipan Chamber of Commerce December 3, 2008 Presented by: Maya B. Kara and Bruce L. Mailman Mailman & Kara LLC

2 OVERVIEW I. Summary of Federal Legislation II. Application of Public Law to CNMI Employers and Employees III. Application of U.S. Immigration Law to CNMI Employers and Employees IV. Classes of Immigrants and Non-Immigrants 2

3 Summary of Federal legislation: P.L Federalization Law Application Of Immigration And Nationality Act To The CNMI 1. Signed into law on May 8, Enacted under authority of Covenant Section CNMI v. USA, filed September 12, 2008 in USDC DC Circuit, No

4 Summary of Federal Legislation: Major Objectives of P.L Extends US borders to include CNMI 2. DHS responsible for inspection and admission of aliens into CNMI 3. DHS responsible for deportation and removal of aliens from CNMI 4. DHS in charge of granting immigration benefits 5. DHS to administer US protection law 6. DHS to operate air and sea ports of entry and establish departure controls 4

5 Summary of Federal Legislation: Critical Provisions of P.L Transition program: June 1, 2009 to December 31, 2014 (5 ½ years) 2. June 1 commencement date may be delayed by up to 180 days 3. Regulations must be in place before implementation 5

6 Summary of Federal Legislation: Critical Provisions of P.L Interagency agreements must be in place 5. No cap on H-1 and H-2 visas to Guam or CNMI during Transition Period 6. Grandfathering of foreign investors (special CNMI-only treaty trader visas, will expire at end of first transition period) 6

7 Summary of Federal Legislation: Critical Provisions of P.L Commonwealth Only Transitional Worker Program co-existent with transition period, as extended 8. Aliens admitted under any CNMI visa category may stay in the CNMI after June 1, 2009 until expiration of visa, maximum of two years 7

8 Summary of Federal Legislation: Critical provisions of Public Law Registration of aliens requirement discretionary with Secretary of Homeland Security (DHS) 10. DHS may remove any alien from the CNMI who has been ordered deported by either US or CNMI immigration authorities 11. Pre-emption of all CNMI immigration laws on June 1,

9 Summary of Federal Legislation: Critical provisions of Public Law Establishment of a Guam-CNMI Visa Waiver Program 13. Additional visa types: Guam or CNMI may request special student, investor or retiree visas from federal authorities, but not for employment 14. Cap on the number of alien workers: 22,417 (Emergency Regulations issued by DOL on May 12, 2008, published in the Commonwealth Register on May 27, 2008) 9

10 TIMELINE FOR IMPLEMENTING P.L Source: GAO Commonwealth of the Northern Mariana Islands, Figure 5 (August 2008). 10

11 Summary of Federal Legislation: Phases of Application PHASES OF APPLICATION OF PUBLIC LAW Pre-Implementation Period: May 8, 2008 through June 1, 2009 (unless delayed) 2. Transition Period: June 1, 2009 through December 31, Full Implementation of U.S. Immigration Law: January 1, 2014 onward 1. 11

12 Summary of Federal Legislation: Phases of Application PRE-IMPLEMENTATION PERIOD Cap on total number of foreign national workers in the CNMI during Transition Period: 22,417 pursuant to Emergency Regulations issued by DOL on May 12, 2008 Current CNMI immigration and labor system continues Practice hint: amend alien worker contracts to spring 2009, then renew for two years 12

13 Summary of Federal Legislation: Phases of Application TRANSITION PERIOD Implementation of CNMI only Transitional Worker Program Phase-out of CNMI immigration laws Application of US immigration laws All US visa categories available for entry into CNMI H-visa exception: no cap for extent of Transition Period 13

14 Summary of Federal Legislation: Phases of Application FULL IMPLEMENTATION OF US IMMIGRATION LAWS AFTER END OF TRANSITION PERIOD Phase out of all transition program provisions including CNMI-only Transitional Worker Program and CNMI-only Investor Program Application of all US immigration laws All US visa categories available for entry into CNMI H-visa exception phased out 14

15 Application of P.L to CNMI: Employers and Employees Statement of the problem: US citizen population about 30,000 Other permanent residents about 6,000 (includes FAS citizens, IRs, CNMI permanent residents) US citizen/permanent resident workforce about 11,000 (stable for many years) Needed to run economy minimum 30,000 Where to find the other 20,000 workers? 15

16 Application of P.L to CNMI Employers and Employees E. EFFECT ON CATEGORIES OF POTENTIAL WORK FORCE 1. Resident Workers a. US citizens and permanent residents: no change/available b. FAS citizens: no change/available c. IR s of US citizens: out of status/unavailable d. IR s of FAS citizens: out of status/unavailable e. CNMI Permanent Residents and their IRs: out of status/unavailable 16

17 Application of P.L to CNMI Employers and Employees 2. Non-Resident Workers/Foreign National Workers a. Available under CNMI permit until permit expiration or 2 years after June 1, 2009 b. Available under CNMI Only Transitional Worker Program at least until December 31, 2013 c. May be available under H-visas subject to conditions and restrictions 17

18 Application of P.L to CNMI Employers and Employees: New Proposed CNMI Immigration Regulations New proposed immigration regulations: will allow two-year permits for: Foreign national workers IRs of US citizens and permanent residents Foreign students Foreign investors CNMI permanent residents 18

19 Application of P.L to CNMI Employers and Employees: New Proposed CNMI Immigration Regulations What the new proposed regulations do not address: 1.extension of existing entry permits 2.longer permits for FAS IRs, CNMI Permanent Residents IRs, or aliens IRs (these categories still limited to one yr. entry permits) 3.widows and widowers of US citizens and permanent residents 19

20 Application of Us Immigration Law To CNMI Employers and Employees A. Nonimmigrants: H & E visas and miscellaneous categories B. Immigrants (lawful permanent residence aka green card ) 1. Family based 2. Employment based 3. Investors C. CNMI-only programs: 1. CNMI E-2 investors 2. CNMI transitional workers 20

21 Nonimmigrants: H visas and miscellaneous categories H-1 Professionals H-2B Skilled workers H-3 Trainees H-4 Dependents of other H-visa holders L1/L2 Intra-company transfer of high-level managers or executives (may also qualify as immigrant) 21

22 Nonimmigrants: H1B VISA Highly Skilled Professionals a) professional degree required (4 yrs. post secondary); b) certification that no US citizen is available; c) wage regulated by US DOL (must be paid national prevailing wage ) d) licensing issues (needs to be licensed if home country requires a license; may be flexibility re local licensing) e) can adjust status to permanent resident (PERM) (ER sponsored program, takes time, 2-3yrs for RP citizens) f) visa can be extended indefinitely 22

23 Nonimmigrants: H2 VISAS Skilled Temporary Workers a) skilled worker (2yrs experience on job) b) not available for low-skilled positions e.g. house workers, hotel maids, taxi drivers, gardeners, groundskeepers, janitors. c) temporary positions only (in Guam, Guam DOL issues Temporary Labor Certificate ) d) must be paid prevailing wage locally set in Guam e) will seek flexibility in regulations but uncertain 23

24 Nonimmigrants: L1 visa Intra company Transferees a) Must be employed by parent, subsidiary or affiliate foreign company at least 1 of past 3 years b) Must be bona fide high level manager or executive c) Sponsored by employer d) Five-year visa but same qualifications can be used to obtain immigrant status instead e) L-2 is for family members 24

25 Nonimmigants: E visas Treaty Investors and Traders E-1: Treaty Traders Primary purpose of carrying on trade with treaty country E-2: Treaty Investors Substantial investment May include employees Business cannot be marginal 25

26 Treaty Countries: E-1 (Traders) Argentina Brunei Denmark France Ireland Latvia Netherlands Paraguay Switzerland Kingdom Yugoslavia Australia Canada Egypt Germany Israel Liberia Norway Philippines Thailand Togo Austria China (Taiwan) Estonia Greece Italy Luxembourg Oman Spain Turkey Belgium Bolivia Colombia Costa Rica Ethiopia Finland Honduras Iran Japan Korea Mexico Moldova Pakistan Suriname Sweden United 26

27 Treaty Countries: E-2 (Investors) Albania Bangladesh China (Taiwan) Congo, Republic of Equador Germany Ireland Kazakhstan Luxembourg Morocco Pakistan Romania Sri Lanka Thailand Tunisia Turkey Yugoslavia Armenia Belgium Colombia Costa Rica Estonia Grenada Italy Korea Mexico Netherlands Panama Senegal Suriname Togo Argentina Australia Bulgaria Cameroon Congo, Democratic Republic Czech Republic Egypt Ethiopia France Haiti Honduras Jamaica Japan Kyrgyzstan Latvia Moldova Mongolia Norway Oman Paraguay Philippines Slovakia Spain Sweden Switzerland Trinidad and Tobago Ukraine Zaire United Kingdom Austria Canada Georgia Iran Liberia Poland 27

28 Immigrants (lawful permanent residence aka green card ) - Employment-based immigrants I-140 EB-1 Priority workers 40,000 visas per year EB-2 Advanced degree professionals and aliens of exceptional ability 40,000 visas per year EB-3 Skilled workers, professionals and other workers - 40,000 visas per year EB-4 Special immigrants religious workers 10,000 visas per year EB-5 Immigrant investors 10,000 visas per year must directly create minimum 10 U.S. jobs Intracompany transfer of high-level managers or executives (same qualifications as L1/L2) 28

29 Immigrants (lawful permanent residence aka green card ) - Investors $1 million minimum investment but may be reduced to $500,000 in rural area with high unemployment (CNMI may qualify) Must create at least 10 jobs for US citizens, LPRs or other immigrants authorized to work in the US NOT including investor s family Maximum 10,000 visas per year Conditional status for first two years 29

30 Immigrants (lawful permanent residence aka green card ) - Family-based immigrants I-485 (adjustment of status) (from within CNMI) 1. Immediate relatives visa immediately available 2. Non-immediate relatives in most cases, a long wait; not practical for HR purposes 3. Income requirements may be waived if sufficient Social Security payment history 4. Special immigrants self-petitioning widows/widowers, battered spouses & children 30

31 CNMI E-2 Program Transitional nonimmigrant investor classification. DHL chose the broadest interpretation possible, whereby long-term business investors, perpetual foreign investors and foreign retiree investors would be eligible for CNMI E-2 investor status, because it believes such an interpretation is most in keeping with the mandate to limit adverse economic impact. 31

32 CNMI-Only Transitional Workers Transitional workers classification. The effect of this rule is uncertain at this point. The Senate Report of Public Law states that there are risks to the homeland security as a result of the lack of integrity in the CNMI immigration system that resulted in the passage of the legislation requiring this rule s promulgation. 32

33 U.S. VISA CATEGORIES Class Transit aliens C-1 C-2 C-3 Description Aliens in continuous and immediate transit through the United States Aliens in transit to the United Nations Headquarters District Foreign government officials, attendants, servants, and personal employees, and spouses and children in transit Temporary visitors for business B-1 GB WB Temporary visitors for business Visa Waiver Program temporary visitors for business to Guam Visa Waiver Program temporary visitors for business B1 GB WB Temporary visitors for business Visa Waiver Program temporary visitors for business to Guam Visa Waiver Program temporary visitors for business B2 GT WT Temporary visitors for pleasure Visa Waiver Program temporary visitors for pleasure to Guam Visa Waiver Program temporary visitors for pleasure Temporary visitors for business Temporary visitors for pleasure 33

34 U.S. VISA CATEGORIES (cont d) Class Description Transit aliens C-1 C-2 C-3 transit Aliens in continuous and immediate transit through the United States Aliens in transit to the United Nations Headquarters District Foreign government officials, attendants, servants, and personal employees, and spouses and children in Temporary visitors for business B-1 GB WB Temporary visitors for business Visa Waiver Program temporary visitors for business to Guam Visa Waiver Program temporary visitors for business Temporary visitors for pleasure B2 GT Temporary visitors for pleasure Visa Waiver Program temporary visitors for pleasure to Guam WT Visa Waiver Program temporary visitors for pleasure 34

35 U.S. VISA CATEGORIES (cont d) Class Description Temporary workers and trainees H-1B H-1B1 H-1C H-2A H-2B H-2R H-3 H-4 O-1 in O-2 holders O-3 Temporary workers with specialty occupation Chile and Singapore Free Trade Agreement Aliens Nurses under the Nursing Relief for Disadvantaged Areas Act of 1999 Seasonal agricultural workers Seasonal nonagricultural workers Returning H-2B workers Trainees Spouses and children of H-1, H-2, or H-3 visa holders Temporary workers with extraordinary ability or achievement the sciences, arts, education, business, or athletics Temporary workers accompanying and assisting O-1 visa Spouses and children of O-1 and O-2 visa holders 35

36 U.S. VISA CATEGORIES (cont d) Class Description Temporary workers and trainees P-1 Temporary workers internationally recognized athletes or entertainers for a specific competition or performance P-2 Temporary workers artists or entertainers under reciprocal exchange programs with a similar organization of a foreign state P-3 Temporary workers artists or entertainers under culturally unique programs P-4 Spouses and children of P-1, P-2, or P-3 visa holders Q-1 Temporary workers in international cultural exchange programs R-1 Temporary workers in religious occupations R-2 Spouses and children of R-1 visa holders TN North American Free Trade Agreement (NAFTA) professional workers TD Spouses and children of TN visa holders 36

37 U.S. VISA CATEGORIES (cont d) Class Description Treaty traders and investors E-1 E-2 E-3 Treaty traders and spouses and children Treaty investors and spouses and children Australian Free Trade Agreement principals and spouses and children L-1 L-2 Intracompany transferees Spouses and children of L-1 visa holders I-1 Representatives of foreign information media and spouses and children F-1 F-2 F-3 M-1 M-2 M-3 Students academic institutions Spouses and children of F-1 visa holders Canadian or Mexican national commuter students academic institutions Students vocational/nonacademic institutions Spouses and children of M-1 visa holders Canadian or Mexican national commuter students vocational/nonacademic institutions Intracompany transferees Representatives of foreign information media Students 37

38 U.S. VISA CATEGORIES (cont d) Class Description Exchange visitors J-1 Exchange visitors J-2 Spouses and children of J-1 visa holders Other categories A-1 A-2 A-3 BE FSM G-1 Ambassadors, public ministers, career diplomatic or consular officers, and spouses and children Other foreign government officials or employees and spouses and children Attendants, servants, or personal employees of A-1 and A-2 visa holders and spouses and children Bering Strait Agreement aliens Federated States of Micronesia nationals Principal resident representatives of recognized foreign member governments to international organizations, staff, and spouses and children 38

39 Class U.S. VISA CATEGORIES (cont d) Other categories N-1 to N-7 N-8 N-9 PAL Q-2 Q-3 T-1 to T-5 U-1 to U-4 V-1 to V-3 has and Description North Atlantic Treaty Organization (NATO) aliens, spouses, and children Parents of international organization special immigrants Children of N-8 visa holders or international organization special immigrants Republic of Palau nationals Irish Peace Process Cultural and Training Program aliens Spouses and children of Q-2 visa holders Victims of a severe form of trafficking and spouses, children, parents, and siblings Aliens suffering physical or mental abuse as victims of criminal activity and spouses, children, and parents Spouses and children of a lawful permanent resident who been waiting 3 years or more for immigrant visas dependents 39

40 Class U.S. VISA CATEGORIES (cont d) Description Other categories G-2 Temporary representatives of recognized foreign member governments to international organizations and spouses and children G-3 Representatives of unrecognized or nonmember foreign governments to international organizations and spouses and children G-4 Officers or employees of unrecognized international organizations and spouses and children G-5 Attendants, servants, or personal employees of G-1, G-2, G-3, or G-4 visa holders and spouses and children K-1 Alien fiancés(ees) of U.S. citizens K-2 Children of K-1 visa holders K-3 Alien spouses of U.S. citizens K-4 Children of K-3 visa holders MIS Republic of the Marshall Islands nationals 40

Annual Flow Report. Temporary Admissions of Nonimmigrants to the United States: Office of Immigration Statistics POLICY DIRECTORATE

Annual Flow Report. Temporary Admissions of Nonimmigrants to the United States: Office of Immigration Statistics POLICY DIRECTORATE Annual Flow Report JULY 2006 Temporary Admissions of Nonimmigrants to the United States: 2005 ELIZABETH M. GRIECO Each year, millions of foreign nationals are admitted into the United States. Those who