Tuesday, January 12, 2010

Things we can't do anymore

Special to the Saipan Tribune

People are coming to us to ask for help with immigration and labor problems, to do things that were standard operating procedure before Nov. 28, but which can't be done anymore. These people know that the CNMI's immigration world turned upside down in November, but it's taking awhile to realize just how deeply the changes reached. Of course, immigration and labor changes began well before Nov. 28, and not just on the federal level. For example, Public Law 15-108, which became effective two years ago, wiped out the prior consensual transfer system for alien guest workers, but substituted a procedure through the Department of Labor's Hearing Office that was just as effective. In 2008, the CNMI adopted new immigration regulations, which clarified the existing CNMI entry permit categories and made many changes in requirements for the different categories. For example, the new regulations erased the “missionary” category-although we know that the Division of Immigration continued to renew missionary permits-and substituted “minister of religion” and “religious worker” categories, which is more in keeping with the federal visas for the same job categories.

P.L. 15-108 also got rid of the term “nonresident worker,” substituting the more accurate designation of “foreign national worker.” A welcome change: each of us has on too many occasions heard people use “nonresident worker” to mean “worker who doesn't really live here.” Bruce once had a conversation in which someone curious about the CNMI asked how many people lived here. Another Saipan resident said, “About 25,000.” Bruce said, “What about all the guest workers?” “Oh, they're nonresidents.”

But we still hear “nonresident workers” used to mean our guest workers, and see it in print. The point is that although change may or may not be swift, adapting to it is slow. Today we will discuss some of the things we are being asked about that we can't do any more-and some that we can.

No New Umbrellas

That's right. No new umbrella permits. None. Even if they were approved and even printed, but not picked by the end of business on Nov. 27. DOL has determined that it cannot issue new permits, and “issuing” includes physically handing them over to the permittee. We have been consulted by a number of people, some of whom deliberately did not get umbrellas, for whatever reason, whose existing entry permits are expiring soon. We can help those who are qualified for a U.S. visa. For the others, we can only advise them not to overstay their lawful presence here. (Overstaying is bad, in terms of immigration consequences, and the longer the overstay the worse it gets. U.S. law bars overstayers from entering the U.S. for various numbers of years, depending on the length of the overstay; the bars are triggered once the overstay lasts six months, but we advise everyone not to accumulate any overstay time at all.)

No New Workers

No new workers can be admitted at this time except with a U.S. visa. The CW category, the U.S. visa that is likely to be most useful for workers in the CNMI is not yet available, and will not be available until USCIS issues its final CW1 regulations. This is likely to take 30 to 90 days. And even then we may not have new workers. Although the CNRA, the “federalization” statute, and the draft regulations themselves, indicate that new CW1 workers can be brought into the CNMI if all conditions are met, the proof will not come until the final regulations are out.

If and when we are allowed new CW1s, we should be able to bring in as many as needed, at least for the next couple of years. Pursuant to the CNRA, there is now a limit of 22,417 foreign workers permitted in the CNMI. Whether you follow DOL's estimate of 13-15,000, based on the number of umbrellas issued, or the Federal Ombudsman's figure of about 19,000 based on the recent registration of foreign workers, we have room to expand our foreign national worker population by between 3,500 and 8,000 people.

But any such expansion will be limited in time. The CNRA mandates that alien guest workers who do not have regular U.S. visas will be reduced to zero by the end of the transition period, Dec. 31, 2014. The CNRA also provides that if there is any additional transition period, the CW program will survive. We do not know what plan USCIS may have to reconcile the contradiction in these two mandates within the CNRA.

No New CNMI Entry Permits

The umbrella permits have been recognized as valid “work authorization” by USCIS. They allow DOL to renew existing “entry permits,” through Nov. 27, 2011, at the latest. Because these permits no longer allow entry into the CNMI without pre-arranged parole or advance parole, they should now just be called LIIDS cards, after the computerized tracking system for these cards, called “LIIDS.” They represent what software engineers call a “legacy” system, with a limited term. No LIIDS cards can be issued to new workers, although until Nov. 27, 2011, foreign national workers, and other aliens with currently valid CNMI immigration status will still be able to renew their LIIDS cards, or (in the case of workers) transfer employers and receive a revised LIIDS card, via the system in place under P.L. 15-108. But no worker new to the CNMI, and no new immediate relative, will receive a LIIDS card; those individuals must instead obtain a U.S. visa or other, temporary status.

No Conversion from Tourist Status

Under the CNMI immigration system, it was sometimes possible for a tourist holding a Visitor's Entry Permit (VEP) to become a worker, or an immediate relative, and get a new entry permit. Not anymore. We have been consulted by a number of people who have VEPs that were issued before Nov. 28 and are still valid; some have even had umbrellas. We have to tell them that there is no way to change their status while they remain in the CNMI, and that they must leave and obtain a U.S. visa to re-enter. Although it may be possible for someone with a U.S. B1/B2 visa (tourists and business visitors) to convert to a different status, under the U.S. system people with CNMI VEPs are no different from people who are present in the U.S. through the visa waiver system, and visa waiver visitors cannot change their immigration status.

No More Missionaries

We have had several inquiries from alien ministers of various CNMI congregations who have soon to be expiring missionary visas. CNMI missionary entry permits were eliminated effective Oct. 1, 2008. Permits existing at that time would be deemed valid until their expiration date but would not be renewed. It now appears that DOL did renew missionary permits past the 2008 deadline, because we are still encountering such valid permits. Nevertheless, this classification has now come to a close. We are advising clients with expiring missionary entry permits, who also hold umbrella permits, to do one of the following prior to their permit expiration date: (1) Go down to DOL and apply to convert to a 240L Minister of Religion permit. To qualify, the applicant has to be the leader of the congregation; “one who directs the religious affairs of a bona fide non-profit religious undertaking.” There is only one such permit allowed per congregation, although assistant pastors leading a related congregation in a different location may qualify. Spouses and minor children of Ministers of Religion are also entitled to permits, although they are not permitted to work. All others employed by a religious entity are deemed “religious workers”; they can convert to a 240K work permit, issued to foreign national workers. Please note that 240L and 240K permits, under the umbrella, are both finite: they expire by operation of law on Nov. 27, 2011. In order to legally remain in the Commonwealth, ministers of religion and religious workers must obtain a visa authorized by U.S. immigration laws. Both immigrant and non-immigrant visas are possible for both ministers and religious workers, although they are strictly scrutinized and subject to many limitations.

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.