48 USC 1806 - Immigration and transition

View all text of Subchapter I [§ 1801 - § 1808]

§ 1806. Immigration and transition

(a) Application of the Immigration and Nationality Act and establishment of a transition program

(1) In general

(2) Transition period

(3) Delay of commencement of transition period

(A) In general

(B) Congressional notification

(4) Requirement for regulations

(5) Interagency agreements

(6) Fees for training United States workers

(A) Supplemental fee

(i) In general

(ii) Inflation adjustment

(iii) Use of funds

(iv) Fraud prevention and detection feeIn addition to the fees described in clause (i), the Secretary—(I) shall impose, on each prospective employer filing a petition under this subsection for one or more nonimmigrant workers, a $50 fraud prevention and detection fee; and(II) shall deposit and use the fees collected under subclause (I) for the sole purpose of preventing and detecting immigration benefit fraud in the Northern Mariana Islands, in accordance with section 286(v)(2)(B) of the Immigration and Nationality Act (8 U.S.C. 1356(v)(2)(B)).

(B) Plan for the expenditure of fundsNot later than 120 days before the first day of fiscal year 2020, and annually thereafter, the Governor of the Commonwealth Government shall submit to the Secretary of Labor—

(i) a plan for the expenditures of amounts deposited under subparagraph (A)(iii);

(ii) a projection of the effectiveness of such expenditures in the placement of United States workers into jobs held by non-United States workers; and

(iii) a report on the changes in employment of United States workers attributable to expenditures of such amounts during the previous year.

(C) Determination and reportNot later than 120 days after receiving each expenditure plan under subparagraph (B)(i), the Secretary of Labor shall—

(i) issue a determination on the plan; and

(ii) submit a report to Congress that describes the effectiveness of the Commonwealth Government at meeting the goals set forth in such plan.

(D) Payment restriction

(7) Asylum

(b) Numerical limitations for nonimmigrant workers

(1) In general

(A) Nonimmigrant workers generally

(B) H-2B workersIn the case of an alien described in subparagraph (A) who seeks admission under section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)), the alien, if otherwise qualified, may, before December 31, 2029, be admitted under such section, notwithstanding the requirement of such section that the service or labor be temporary, for a period of up to 3 years—

(i) to perform service or labor on Guam or in the Commonwealth pursuant to any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contract or subcontract for construction, repairs, renovations, or facility services that is directly connected to, supporting, associated with, or adversely affected by the military realignment occurring on Guam and in the Commonwealth, with priority given to federally funded military projects; or

(ii) to perform service or labor as a health care worker (such as a nurse, physician assistant, or allied health professional) at a facility that jointly serves members of the Armed Forces, dependents, and civilians on Guam or in the Commonwealth, subject to the education, training, licensing, and other requirements of section 212(a)(5)(C) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5)(C)), as applicable, except that this clause shall not be construed to include graduates of medical schools coming to Guam or the Commonwealth to perform service or labor as members of the medical profession.

(2) Locations

(3) ReportNot later than December 1, 2027, the Secretary shall submit a report to the Committee on Energy and Natural Resources of the Senate, the Committee on the Judiciary of the Senate, the Committee on Natural Resources of the House of Representatives, and the Committee on the Judiciary of the House of Representatives that—

(A) projects the number of asylum claims the Secretary anticipates following the termination of the transition period; and

(B) describes the efforts of the Secretary to ensure appropriate interdiction efforts, provide for appropriate treatment of asylum seekers, and prepare to accept and adjudicate asylum claims in the Commonwealth.

(1) In generalNotwithstanding the treaty requirements in section 101(a)(15)(E) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(E)), during the transition period, the Secretary of Homeland Security may, upon the application of an alien, classify an alien as a CNMI-only nonimmigrant under section 101(a)(15)(E)(ii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(E)(ii)) if the alien—

(A) has been admitted to the Commonwealth in long-term investor status under the immigration laws of the Commonwealth before the transition program effective date;

(B) has continuously maintained residence in the Commonwealth under long-term investor status;

(D) maintains the investment or investments that formed the basis for such long-term investor status.

(2) Requirement for regulations

(d) Special provision to ensure adequate employment; Commonwealth only transitional workersAn alien who is seeking to enter the Commonwealth as a nonimmigrant worker may be admitted to perform work during the transition period subject to the following requirements:

(1) Such an alien shall be treated as a nonimmigrant described in section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), including the ability to apply, if otherwise eligible, for a change of nonimmigrant classification under section 248 of such Act (8 U.S.C. 1258) or adjustment of status under this section and section 245 of such Act (8 U.S.C. 1255).

(2)Protection for united states workers.—

(A)Temporary labor certification.—

(i)In general.—Beginning with petitions filed with employment start dates in fiscal year 2020, a petition to import a nonimmigrant worker under this subsection may not be approved by the Secretary unless the petitioner has applied to the Secretary of Labor for a temporary labor certification confirming that—(I) there are not sufficient United States workers in the Commonwealth who are able, willing, qualified, and available at the time and place needed to perform the services or labor involved in the petition; and(II) employment of the nonimmigrant worker will not adversely affect the wages and working conditions of similarly employed United States workers.

(ii)Petition.—After receiving a temporary labor certification under clause (i), a prospective employer may submit a petition to the Secretary for a Commonwealth Only Transitional Worker permit on behalf of the nonimmigrant worker.

(B)Prevailing wage survey.—

(i)In general.—In order to effectuate the requirement for a temporary labor certification under subparagraph (A)(i), the Secretary of Labor shall use, or make available to employers, an occupational wage survey conducted by the Governor that the Secretary of Labor has determined meets the statistical standards for determining prevailing wages in the Commonwealth on an annual basis.

(ii)Alternative method for determining the prevailing wage.—In the absence of an occupational wage survey approved by the Secretary of Labor under clause (i), the prevailing wage for an occupation in the Commonwealth shall be the arithmetic mean of the wages of workers similarly employed in the territory of Guam according to the wage component of the Occupational Employment Statistics Survey conducted by the Bureau of Labor Statistics.

(C)Minimum wage.—An employer shall pay each Commonwealth Only Transitional Worker a wage that is not less than the greater of—

(i) the statutory minimum wage in the Commonwealth;

(ii) the Federal minimum wage; or

(iii) the prevailing wage in the Commonwealth for the occupation in which the worker is employed.

(3)Permits.—

(A)In general.—The Secretary shall establish, administer, and enforce a system for allocating and determining terms and conditions of permits to be issued to prospective employers for each nonimmigrant worker described in this subsection who would not otherwise be eligible for admission under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

(B)Numerical cap.—The number of permits issued under subparagraph (A) may not exceed—

(i) 13,000 for fiscal year 2019;

(ii) 12,500 for fiscal year 2020;

(iii) 12,000 for fiscal year 2021;

(iv) 11,500 for fiscal year 2022;

(v) 11,000 for fiscal year 2023;

(vi) 10,000 for fiscal year 2024;

(vii) 9,000 for fiscal year 2025;

(viii) 8,000 for fiscal year 2026;

(ix) 7,000 for fiscal year 2027;

(x) 6,000 for fiscal year 2028;

(xi) 5,000 for fiscal year 2029; and

(xii) 1,000 for the first quarter of fiscal year 2030.

(C)Reports regarding the percentage of united states workers.—

(i)By governor.—Not later than 60 days before the end of each calendar year, the Governor shall submit a report to the Secretary that identifies the ratio between United States workers and other workers in the Commonwealth’s workforce based on income tax filings with the Commonwealth for the tax year.

(ii)By gao.—Not later than December 31, 2019, and biennially thereafter, the Comptroller General of the United States shall submit a report to the Chair and Ranking Member of the Committee on Energy and Natural Resources of the Senate, the Chair and Ranking Member of the Committee on Natural Resources of the House of Representatives, the Chair and Ranking Member of the Committee on Health, Education, Labor, and Pensions of the Senate and the Chair and Ranking Member of the Committee on Education and the Workforce of the House of Representatives that identifies the ratio between United States workers and other workers in the Commonwealth’s workforce during each of the previous 5 calendar years.

(D)Petition; issuance of permits.—

(i)Submission.—A prospective employer may submit a petition for a permit under this paragraph not earlier than—(I) 120 days before the date on which the prospective employer needs the beneficiary’s services; or(II) if the petition is for the renewal of an existing permit, not earlier than 180 days before the expiration of such permit.

(ii)Employment verification.—The Secretary shall establish a system for each employer of a Commonwealth Only Transitional Worker to submit a semiannual report to the Secretary and the Secretary of Labor that provides evidence to verify the continuing employment and payment of such worker under the terms and conditions set forth in the permit petition that the employer filed on behalf of such worker.

(iii)Revocation.—(I)In general.—The Secretary, in the Secretary’s discretion, may revoke a permit approved under this paragraph for good cause, including if—(aa) the employer fails to maintain the continuous employment of the subject worker, fails to pay the subject worker, fails to timely file a semiannual report required under this paragraph, commits any other violation of the terms and conditions of employment, or otherwise ceases to operate as a legitimate business (as defined in clause (iv)(II));(bb) the beneficiary of such petition does not apply for admission to the Commonwealth by the date that is 10 days after the period of petition validity begins, if the employer has requested consular processing; or(cc) the employer fails to provide a former, current, or prospective Commonwealth Only Transitional Worker, not later than 21 business days after receiving a written request from such worker, with the original (or a certified copy of the original) of all petitions, notices, and other written communication related to the worker (other than sensitive financial or proprietary information of the employer, which may be redacted) that has been exchanged between the employer and the Department of Labor, the Department of Homeland Security, or any other Federal agency or department.(II)Reallocation of revoked petition.—Notwithstanding subparagraph (C), for each permit revoked under subclause (I) in a fiscal year, an additional permit shall be made available for use in the subsequent fiscal year.

(iv)Legitimate business.—(I)In general.—A permit may not be approved for a prospective employer that is not a legitimate business.(II)Defined term.—In this clause, the term “legitimate business” means a real, active, and operating commercial or entrepreneurial undertaking that the Secretary, in the Secretary’s sole discretion, determines—(aa) produces services or goods for profit, or is a governmental, charitable, or other validly recognized nonprofit entity;(bb) meets applicable legal requirements for doing business in the Commonwealth;(cc) has substantially complied with wage and hour laws, occupational safety and health requirements, and all other Federal, Commonwealth, and local requirements related to employment during the preceding 5 years;(dd) does not directly or indirectly engage in, or knowingly benefit from, prostitution, human trafficking, or any other activity that is illegal under Federal, Commonwealth, or local law;(ee) is a participant in good standing in the E-Verify program;(ff) does not have, as an owner, investor, manager, operator, or person meaningfully involved with the undertaking, any individual who has been the owner, investor, manager, operator, or otherwise meaningfully involved with an undertaking that does not comply with item (cc) or (dd), or is the agent of such an individual; and(gg) is not a successor in interest to an undertaking that does not comply with item (cc) or (dd).

(v)Construction occupations.—A permit for Construction and Extraction Occupations (as defined by the Department of Labor as Standard Occupational Classification Group 47–0000) may not be issued for any worker other than a worker described in paragraph (7)(B).

(E)Typhoon recovery.—

(i)Permits for construction workers.—Notwithstanding any numerical cap set forth in subparagraph (B) for each of fiscal years 2020, 2021, and 2022, the Secretary of Homeland Security shall increase by 3,000, for each such fiscal year, the total number of permits available under this subsection for Construction and Extraction Occupations (as defined by the Department of Labor as Standard Occupational Classification Group 47–0000).

(ii)Permit requirements.—The Secretary may only issue a permit made available under clause (i) to a prospective employer if the permit is for an alien who—(I) is a national of a country designated eligible to participate in the program under section 101(a)(15)(H)(ii)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)(ii)(b)) during calendar year 2018; and(II) is performing service or labor pursuant to a contract or subcontract for construction, repairs, renovations, or facility services directly connected to, or associated with recovery from a presidentially declared major disaster or emergency (as those terms are defined in section 5122 of title 42), or for preparation for a future disaster or emergency.

(iii)Exception for construction workers.—Subparagraph (D)(v) shall not apply to a permit made available under clause (i) for any fiscal year described in such clause.

(4) The Secretary of Homeland Security shall set the conditions for admission of such an alien under the transition program, and the Secretary of State shall authorize the issuance of nonimmigrant visas for such an alien. Such a visa shall not be valid for admission to the United States, as defined in section 101(a)(38) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(38)), except admission to the Commonwealth or to Guam for the purpose of transit only. An alien admitted to the Commonwealth on the basis of such a visa shall be permitted to engage in employment only as authorized pursuant to the transition program.

(5) Such an alien shall be permitted to transfer between employers in the Commonwealth during the period of such alien’s authorized stay therein, without permission of the employee’s current or prior employer, within the alien’s occupational category or another occupational category the Secretary of Homeland Security has found requires alien workers to supplement the resident workforce. Approval of a petition filed by the new employer with a start date within the same fiscal year as the current permit shall not count against the numerical limitation for that period.

(6) The Secretary of Homeland Security may authorize the admission of a spouse or minor child accompanying or following to join a worker admitted pursuant to this subsection.

(7)Requirement to remain outside of the united states.—

(A)In general.—Except as provided in subparagraph (B)—

(i) a permit for a Commonwealth Only Transitional Worker—(I) shall remain valid for a period that may not exceed 1 year; and(II) may be renewed for not more than two consecutive, 1-year periods; and

(ii) at the expiration of the second renewal period, an alien may not again be eligible for such a permit until after the alien has remained outside of the United States for a continuous period of at least 30 days prior to the submission of a renewal petition on their behalf.

(B)Long-term workers.—An alien who was admitted to the Commonwealth as a Commonwealth Only Transitional Worker during fiscal year 2015, and during every subsequent fiscal year beginning before July 24, 2018, may receive a permit for a Commonwealth Only Transitional Worker that is valid for a period that may not exceed 3 years and may be renewed for additional 3-year periods during the transition period. A permit issued under this subparagraph shall be counted toward the numerical cap for each fiscal year within the period of petition validity.

(e) Persons lawfully admitted under the Commonwealth immigration law

(1) Prohibition on removal

(A) In generalSubject to subparagraph (B), no alien who is lawfully present in the Commonwealth pursuant to the immigration laws of the Commonwealth on the transition program effective date shall be removed from the United States on the grounds that such alien’s presence in the Commonwealth is in violation of section 212(a)(6)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(6)(A)), until the earlier of the date—

(i) of the completion of the period of the alien’s admission under the immigration laws of the Commonwealth; or

(ii) that is 2 years after the transition program effective date.

(B) Limitations

(2) Employment authorizationAn alien who is lawfully present and authorized to be employed in the Commonwealth pursuant to the immigration laws of the Commonwealth on the transition program effective date shall be considered authorized by the Secretary of Homeland Security to be employed in the Commonwealth until the earlier of the date—

(A) of expiration of the alien’s employment authorization under the immigration laws of the Commonwealth; or

(B) that is 2 years after the transition program effective date.

(3) Registration

(4) Removable aliens

(5) Prior orders of removal

(6) Special provision regarding long-term residents of the Commonwealth

(A) CNMI Resident statusAn alien described in subparagraph (B) may, upon the application of the alien, be admitted in CNMI Resident status to the Commonwealth subject to the following rules:

(i) The alien shall be treated as an alien lawfully admitted to the Commonwealth only, including permitting entry to and exit from the Commonwealth, until the earlier of the date on which—(I) the alien ceases to reside in the Commonwealth; or(II) the alien’s status is adjusted under section 245 of the Immigration and Nationality Act (8 U.S.C. 1255) to that of an alien lawfully admitted for permanent residence in accordance with all applicable eligibility requirements.

(ii) The Secretary of Homeland Security—(I) shall establish a process for such alien to apply for CNMI Resident status during the 180-day period beginning on a date determined by the Secretary but not later than the first day of the sixth month after (II) may, in the Secretary’s discretion, authorize deferred action or parole, as appropriate, with work authorization, for such alien beginning on June 25, 2019, and continuing through the end of such 180-day period or the date of adjudication of the alien’s application for CNMI Resident status, whichever is later.

(iii) Nothing in this subparagraph may be construed to provide any alien granted status under this subparagraph with public assistance to which the alien is not otherwise entitled.

(iv) An alien granted status under this paragraph—(I) is subject to all grounds of deportability under section 237 of the Immigration and Nationality Act (8 U.S.C. 1227);(II) is subject to all grounds of inadmissibility under section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) if seeking admission to the United States at a port of entry in the Commonwealth;(III) is inadmissible to the United States at any port of entry outside the Commonwealth, except that the Secretary of Homeland Security may in the Secretary’s discretion authorize admission of such alien at a port of entry in Guam for the purpose of direct transit to the Commonwealth, which admission shall be considered an admission to the Commonwealth;(IV) automatically shall lose such status if the alien travels from the Commonwealth to any other place in the United States, except that the Secretary of Homeland Security may in the Secretary’s discretion establish procedures for the advance approval on a case-by-case basis of such travel for a temporary and legitimate purpose, and the Secretary may in the Secretary’s discretion authorize the direct transit of aliens with CNMI Resident status through Guam to a foreign place;(V) shall be authorized to work in the Commonwealth incident to status; and(VI) shall be issued appropriate travel documentation and evidence of work authorization by the Secretary.

(B) Aliens describedAn alien is described in this subparagraph if the alien—

(i) was lawfully present on June 25, 2019, or on December 31, 2018, in the Commonwealth under the immigration laws of the United States, including pursuant to a grant of parole under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)) or deferred action;

(ii) is admissible as an immigrant to the United States under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), except that no immigrant visa is required;

(iii) resided continuously and lawfully in the Commonwealth from November 28, 2009, through June 25, 2019;

(iv) is not a citizen of the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau; and

(v) in addition—(I) was born in the Northern Mariana Islands between January 1, 1974, and January 9, 1978;(II) was, on November 27, 2009, a permanent resident of the Commonwealth (as defined in section 4303 of title 3 of the Northern Mariana Islands Commonwealth Code, in effect on May 8, 2008);(III) is the spouse or child (as defined in section 101(b)(1) of the Immigration and Nationality Act (8 U.S.C. 1101(b)(1))) of an alien described in subclause (I) or (II);(IV) was, on November 27, 2011, a spouse, child, or parent of a United States citizen, notwithstanding the age of the United States citizen, and continues to have such family relationship with the citizen on the date of the application described in subparagraph (A); or(V) had a grant of parole under section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)) on December 31, 2018, under the former parole program for certain in-home caregivers administered by United States Citizenship and Immigration Services.

(C) Authority of Attorney GeneralBeginning on the first day of the 180-day period established by the Secretary of Homeland Security under subparagraph (A)(ii)(I), the Attorney General may accept and adjudicate an application for CNMI Resident status under this paragraph by an alien who is in removal proceedings before the Attorney General if the alien—

(i) makes an initial application to the Attorney General within such 180-day period; or

(ii) applied to the Secretary of Homeland Security during such 180-period 2

2 So in original. Probably should be “180-day period”.

and before being placed in removal proceedings, and the Secretary denied the application.

(D) Judicial review

(E) Procedure

(f) Effect on other laws

(g) Accrual of time for purposes of section 212(a)(9)(B) of the Immigration and Nationality Act

(h) Report on nonresident guestworker populationThe Secretary of the Interior, in consultation with the Secretary of Homeland Security, and the Governor of the Commonwealth, shall report to the Congress not later than 2 years after May 8, 2008. The report shall include—

(1) the number of aliens residing in the Commonwealth;

(2) a description of the legal status (under Federal law) of such aliens;

(3) the number of years each alien has been residing in the Commonwealth;

(4) the current and future requirements of the Commonwealth economy for an alien workforce; and

(5) such recommendations to the Congress, as the Secretary may deem appropriate, related to whether or not the Congress should consider permitting lawfully admitted guest workers lawfully residing in the Commonwealth on May 8, 2008, to apply for long-term status under the immigration and nationality laws of the United States.

(i) DefinitionsIn this section:

(1) Commonwealth

(2) Commonwealth Only Transition Worker

(3) Governor

(4) Secretary

(5) Tax year

(6) United States workerThe term “United States worker” means any worker who is—

(A) a citizen or national of the United States;

(B) an alien who has been lawfully admitted for permanent residence; or

(C) a citizen of the Republic of the Marshall Islands, the Federated States of Micronesia, or the Republic of Palau (known collectively as the “Freely Associated States”) who has been lawfully admitted to the United States pursuant to—

(i) section 141 of the Compact of Free Association between the Government of the United States and the Governments of the Marshall Islands and the Federated States of Micronesia (48 U.S.C. 1921 note); 3

3 See References in Text note below.

(ii) section 141 of the Compact of Free Association between the United States and the Government of Palau (48 U.S.C. 1931 note).

(Pub. L. 94–241, § 6, as added Pub. L. 110–229, title VII, § 702(a), May 8, 2008, 122 Stat. 854; amended Pub. L. 113–235, § 10, Dec. 16, 2014, 128 Stat. 2134; Pub. L. 115–53, § 2, Aug. 22, 2017, 131 Stat. 1091; Pub. L. 115–91, div. A, title X, § 1049(a), Dec. 12, 2017, 131 Stat. 1558; Pub. L. 115–218, § 3(a), July 24, 2018, 132 Stat. 1547; Pub. L. 115–232, div. A, title X, § 1045(a), Aug. 13, 2018, 132 Stat. 1959; Pub. L. 116–24, § 2, June 25, 2019, 133 Stat. 977; Pub. L. 116–94, div. P, title IX, § 902, Dec. 20, 2019, 133 Stat. 3197; Pub. L. 116–283, div. H, title XCV, § 9502, Jan. 1, 2021, 134 Stat. 4822; Pub. L. 117–263, div. E, title LIX, § 5901, Dec. 23, 2022, 136 Stat. 3440; Pub. L. 118–31, div. A, title XVIII, § 1807, Dec. 22, 2023, 137 Stat. 688.)