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Takeover of immigration complicated by regulatory challenge

By Haidee V. Eugenio

SAIPAN, CNMI (Saipan Tribune, Nov. 30, 2009) – The U.S. Department of Homeland Security has yet to decide whether to come up with emergency regulations to allow foreign workers to travel in and out of the Commonwealth of the Northern Mariana Islands as a federal judge suggested last week, or to issue a new set of rules for the transitional worker program, even as DHS officially took over CNMI immigration at 12:01am on Saturday.

In the interim, alien workers who need to exit and re-enter the CNMI will be dealt with by the U.S. Citizenship and Immigration Services on a case-by-case basis, including those traveling for emergency reason, or an "advanced parole" for others.

Securing a CW-1 visa is not yet an option for re-entry, due to a court ruling preventing DHS from implementing its CNMI transitional worker program rule.

At least 14 U.S. Customs and Border Protection officers took over the immigration booths at the Saipan International Airport to process the first flight to arrive in the CNMI under federal immigration law.

Among them was CBP officer James Collett, from Buffalo, New York.

"I've been with CBP since 2007 and this is my first time here on Saipan," he said, while preparing his immigration booth to process passengers.

Jeff Guerrero, a CBP officer from Guam, was also among those who manned the first shift at the Saipan airport under federal immigration control.

He's been with CBP for four years, and expects the processing on Saipan to be "a little bit different" from that in Guam where there are more passengers arriving at any given day.

Each immigration booth at the Saipan airport is equipped with a passport reader, a camera, and a fingerprint scanner, said Edward Low, public affairs liaison at the CBP-San Francisco office.

Low said there were 37 CBP officers and CBP managers on Saipan for the takeover, along with four others assigned to Rota on a temporary basis. CBP will be recruiting officers to be permanently assigned to the CNMI.

Jerry Aevermann, interim port director of CBP for the CNMI, and CBP port director for Hawaii Bruce Murley were also at the airport to oversee the federal operations.

At 1:11am on Saturday, passengers of a Northwest Airlines flight from Japan began lining up in front of fully equipped immigration counters manned by CBP officers from all parts of the United States.

Tourists from Japan, which is included in the visa waiver program, are not required to have a U.S. visa to enter the CNMI.

At least one passenger from the Philippines with no U.S. travel or work visa had to be directed to a secondary immigration check. DHS or CBP officials declined to comment on the status of the passenger, including whether she will be allowed in or sent back to the Philippines.

DHS invited CNMI officials including U.S. Rep. Gregorio Kilili C. Sablan (D-MP), Senate President Pete P. Reyes and other lawmakers, along with members of the media, inside the airport to witness the first passengers to be processed by CBP officers.

Also at the airport were Rep. Ralph Torres (R-Saipan), Rep. Tina Sablan (Ind-Saipan), Rep. Ray Tebuteb (R-Saipan), Rep. Diego Benavente (R-Saipan), Marianas Visitors Authority managing director Perry Tenorio, and MVA board member Marian Aldan-Pierce.

"This is very interesting. The operation looks fairly clean and smooth," said Tebuteb when asked for comment on his observation of CBP's takeover of immigration processing at the airport.

Alexander Y. Hartman, immigration policy advisor at DHS' Office of Policy Development, said CBP officers have a number of options they can look at whether they can parole someone in on a case-by-case basis, including an advanced parole to travel, or a U.S. B1 or B2 visa.

Hartman said DHS has not made a decision yet whether to issue emergency regulations to allow foreign workers to exit and re-enter the CNMI as suggested by Judge Paul Friedman last week or come up with a new set of rules.

"Actually the judge gave a bit more latitude in his decision. He said the current rule can't go into effect and that DHS needs to find a way to go through the notice and comment process and issue a rule, and so one option is to do an emergency rule. We're still considering whether we want to go that route," Hartman told reporters in an interview at the Saipan airport while CBP officers were processing passengers of a Northwest Airline flight.

He said another option is to issue a new proposed rule and start the process from scratch.

"We haven't decided either way which option we'll do. In the intervening time, we will be looking at people's need to travel on a case-by-case basis," he said.

Nonresident workers who are in the CNMI now and who would have been eligible for a transitional worker visa are allowed under the Consolidated Natural Resources Act to stay on the island for the time their permit is valid or up to two years, whichever is shorter. As long as they're on island, they still have work authorization if their permit is valid under CNMI law.

Hartman said legitimate foreign workers who need DHS authorization to exit and re-enter the CNMI for emergency reason will be dealt with on a case-by-case basis.

For non-emergency travel, nonresident workers may apply for a so-called "advanced parole" with USCIS.

Advanced parole is different from the parole authority for Chinese and Russian tourists visiting the CNMI.

"Advanced parole is like advancing permission to travel. So you file an application with USCIS and they issue you a document that says you are authorized to leave and return, subject to inspection at the airport when you come back. Parole is when somebody arrives at the airport and that Customs and Border Protection officer makes a determination whether to allow them to come in even if they don't have a visa," Hartman said.

Those wanting to apply for advanced parole would need to schedule an appointment or go online to obtain and file an application with USCIS.

DHS, in a statement issued on Saturday, said immigration laws of the CNMI will be replaced by the Immigration and Nationality Act and other U.S. immigration laws effective Nov. 28 pursuant to a law signed by President Bush on May 8, 2008.

The definition of "United States" in the INA will simultaneously be amended to include the CNMI-providing new privileges and easing restrictions to CNMI residents wishing to live and work in the United States.

Although U.S. immigration law applies to the CNMI beginning Nov. 28, the CNMI will undergo a transition period with temporary measures ending Dec. 31, 2014, to allow for an orderly transition and give individuals time to identify an appropriate visa classification under the INA.

Marie Thérèse Sebrechts, USCIS regional media manager, said the takeover on Saturday marked a major step in a series of DHS initiatives undertaken since the Consolidated Natural Resources Act's signing to address the legal and operational needs for a smooth transition.

Five important rules to facilitate the transition were published in the Federal Register in 2009 to address key changes under the CNRA, including a CNMI-Guam Visa Waiver Program interim rule on Jan. 16; an E-2 Nonimmigrant Status for Aliens in the CNMI with Long-Term Investor Status proposed rule on Sept. 14; a CNMI Transitional Worker Classification interim rule on Oct. 27; and an Application of Immigration Regulations to the CNMI "conforming amendments" interim rule, also on Oct. 27.

On March 10, USCIS also opened its Application Support Center at TSL Plaza on Saipan to provide biometric services-including fingerprint capture, photos and signatures-along with additional services, including naturalization and adjustment of status interviews, as well as opportunities for the public to obtain answers to immigration questions.

Homeland Security Secretary Janet Napolitano, in recognizing that some unique situations would result as the CNMI transitions to U.S. immigration laws, announced the granting of parole to applicants for admission on a case-by-case basis for urgent humanitarian reasons or significant public benefit.

Parole authority will be used in two specific situations in the CNMI.

One is for eligible Chinese and Russian nationals visiting for business or pleasure will be eligible for CBP-administered parole into the CNMI on a case-by-case basis.

The second one is for certain impacted aliens-notably CNMI permanent residents and various categories of immediate relatives-will be eligible for USCIS-administered parole on a case-by-case basis.

The CNRA also contains two provisions that specifically impact Guam, including the elimination of the current Guam Visa Waiver Program and the creation of a new Guam-CNMI Visa Waiver Program, under which eligible nationals of program countries and geographic areas may be authorized to visit Guam and/or the CNMI for up to 45 days.

The second one is for the elimination of the statutory cap on the number of H nonimmigrant worker petitions that can be filed by employers in Guam and the CNMI.

The federal takeover on Saturday marked another chapter in the CNMI's 34-year relationship with the United States. The so-called federalization of local immigration took decades of political, social and economic wrangling between Washington, D.C. and the CNMI.

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