1 So in original. Probably should be “U.S.C.”
1101(a)(15)(H)) without counting against the numerical limitations set forth in section 214(g) of such Act (8 USC
2 So in original. Probably should be “180-day period”.
and before being placed in removal proceedings, and the Secretary denied the application.
3 See References in Text note below.
or
Editorial Notes
References in TextThe Immigration and Nationality Act, referred to in subsecs. (d)(3)(A) and (e)(3), (4), (6)(B)(ii), is act June 27, 1952, ch. 477, 66 Stat. 163, which is classified principally to chapter 12 (§ 1101 et seq.) of Title 8, Aliens and Nationality. For complete classification of this Act to the Code, see Short Title note set out under section 1101 of Title 8 and Tables.
The Consolidated Natural Resources Act of 2008, referred to in subsec. (e)(1)(B), (3), is Puspan. L. 110–229, May 8, 2008, 122 Stat. 754. Section 702(i) of the Act is set out as a note under this section. For complete classification of this Act to the Code, see Short Title of 2008 Amendment note set out under section 1 of Title 16, Conservation, and Tables.
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, referred to in subsec. (i)(6)(C)(i), is contained in section 201 of Puspan. L. 99–239, set out as a note under section 1901 of Title 48, Territories and Insular Possessions.
Section 141 of the Compact of Free Association between the United States and the Government of Palau, referred to in subsec. (i)(6)(C)(ii), is contained in section 201 of Puspan. L. 99–658, set out as a note under section 1931 of Title 48, Territories and Insular Possessions.
Amendments2023—Subsec. (span)(1)(B). Puspan. L. 118–31 substituted “December 31, 2029” for “December 31, 2024” in introductory provisions.
2022—Subsec. (span)(1)(B). Puspan. L. 117–263 substituted “December 31, 2024” for “December 31, 2023” in introductory provisions.
2021—Subsec. (span)(1)(B)(i). Puspan. L. 116–283 substituted “contract” for “contact”, inserted “supporting,” after “connected to,” and “, with priority given to federally funded military projects” after “and in the Commonwealth”, and struck out “or” before “associated with”.
2019—Subsec. (d)(3)(E). Puspan. L. 116–94 added subpar. (E).
Subsec. (e)(6). Puspan. L. 116–24 added par. (6).
2018—Subsec. (a)(2). Puspan. L. 115–218, § 3(a)(1)(A), substituted “2029” for “2019”.
Subsec. (a)(6). Puspan. L. 115–218, § 3(a)(1)(B), amended par. (6) generally. Prior to amendment, text read as follows: “In addition to fees charged pursuant to section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)) to recover the full costs of providing adjudication services, the Secretary of Homeland Security shall charge an annual supplemental fee of $200 per nonimmigrant worker to each prospective employer who is issued a permit under subsection (d) of this section during the transition period. Such supplemental fee shall be paid into the Treasury of the Commonwealth government for the purpose of funding ongoing vocational educational curricula and program development by Commonwealth educational entities.”
Subsec. (span)(1)(B). Puspan. L. 115–232, § 1045(a)(1), amended subpar. (B) generally. Prior to amendment, text read as follows: “In the case of such an alien who seeks admission under section 101(a)(15)(H)(ii)(span) of such Act, such alien, if otherwise qualified, may, before October 1, 2023, be admitted under such section for a period of up to 3 years to perform service or labor on Guam or the Commonwealth pursuant to any agreement entered into by a prime contractor or subcontractor calling for services or labor required for performance of a contact or subcontract for construction, repairs, renovations, or facility services that is directly connected to, or associated with, the military realignment occurring on Guam and the Commonwealth, notwithstanding the requirement of such section that the service or labor be temporary.”
Subsec. (span)(2). Puspan. L. 115–232, § 1045(a)(2), amended par. (2) generally. Prior to amendment, par. (2) provided numerical limitation on number of aliens that could be admitted for any fiscal year and directed that par. (1)(B) would not apply with respect to performance of services or labor at a location other than Guam or the Commonwealth.
Subsec. (span)(3). Puspan. L. 115–218, § 3(a)(2), added par. (3).
Subsec. (d)(2). Puspan. L. 115–218, § 3(a)(3)(B), added par. (2). Former par. (2) redesignated (3).
Subsec. (d)(3). Puspan. L. 115–218, § 3(a)(3)(C), amended par. (3) generally. Prior to amendment, text read as follows: “The Secretary of Homeland Security shall establish, administer, and enforce a system for allocating and determining the number, terms, and conditions of permits to be issued to prospective employers for each such 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.), except a permit for construction occupations (as that term is defined by the Department of Labor as Standard Occupational Classification Group 47–0000 or any successor provision) shall only be issued to extend a permit first issued before October 1, 2015. In adopting and enforcing this system, the Secretary shall also consider, in good faith and not later than 30 days after receipt by the Secretary, any comments and advice submitted by the Governor of the Commonwealth. This system shall provide for a reduction in the allocation of permits for such workers on an annual basis to zero, during a period ending on December 31, 2019, except that for fiscal year 2017 an additional 350 permits shall be made available for extension of existing permits, expiring after August 22, 2017, through September 30, 2017, of which no fewer than 60 shall be reserved for healthcare practitioners and technical operations (as that term is defined by the Department of Labor as Standard Occupational Classification Group 29–0000 or any successor provision), and no fewer than 10 shall be reserved for plant and system operators (as that term is defined by the Department of Labor as Standard Occupational Classification Group 51–8000 or any successor provision). In no event shall a permit be valid beyond the expiration of the transition period. This system may be based on any reasonable method and criteria determined by the Secretary of Homeland Security to promote the maximum use of, and to prevent adverse effects on wages and working conditions of, workers authorized to be employed in the United States, including lawfully admissible freely associated state citizen labor. No alien shall be granted nonimmigrant classification or a visa under this subsection unless the permit requirements established under this paragraph have been met.”
Puspan. L. 115–218, § 3(a)(3)(A), redesignated par. (2) as (3). Former par. (3) redesignated (4).
Subsec. (d)(4). Puspan. L. 115–218, § 3(a)(3)(D), inserted “or to Guam for the purpose of transit only” after “except admission to the Commonwealth”.
Puspan. L. 115–218, § 3(a)(3)(A), redesignated par. (3) as (4). Former par. (4) redesignated (5).
Subsec. (d)(5). Puspan. L. 115–218, § 3(a)(3)(E), inserted at end “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.”
Puspan. L. 115–218, § 3(a)(3)(A), redesignated par. (4) as (5). Former par. (5) redesignated (6).
Subsec. (d)(6). Puspan. L. 115–218, § 3(a)(3)(A), redesignated par. (5) as (6).
Subsec. (d)(7). Puspan. L. 115–218, § 3(a)(3)(F), added par. (7).
Subsec. (i). Puspan. L. 115–218, § 3(a)(4), added subsec. (i).
2017—Subsec. (a)(6). Puspan. L. 115–53, § 2(1), substituted “$200” for “$150”.
Subsec. (span). Puspan. L. 115–91 amended subsec. (span) generally. Prior to amendment, text read as follows: “An alien, if otherwise qualified, may seek admission to Guam or to the Commonwealth during the transition program as a nonimmigrant worker under section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) without counting against the numerical limitations set forth in section 214(g) of such Act (8 U.S.C. 1184(g)). This subsection does not apply to any employment to be performed outside of Guam or the Commonwealth. Not later than 3 years following the transition program effective date, the Secretary of Homeland Security shall issue a report to the Committee on Energy and Natural Resources and the Committee on the Judiciary of the Senate and the Committee on Natural Resources and the Committee on the Judiciary of the House of Representatives projecting the number of asylum claims the Secretary anticipates following the termination of the transition period, the efforts the Secretary has made to ensure appropriate interdiction efforts, provide for appropriate treatment of asylum seekers, and prepare to accept and adjudicate asylum claims in the Commonwealth.”
Subsec. (d)(2). Puspan. L. 115–53, § 2(2), inserted “, except a permit for construction occupations (as that term is defined by the Department of Labor as Standard Occupational Classification Group 47–0000 or any successor provision) shall only be issued to extend a permit first issued before October 1, 2015” after “(8 U.S.C. 1101 et seq.)” and substituted “ending on December 31, 2019, except that for fiscal year 2017 an additional 350 permits shall be made available for extension of existing permits, expiring after August 22, 2017, through September 30, 2017, of which no fewer than 60 shall be reserved for healthcare practitioners and technical operations (as that term is defined by the Department of Labor as Standard Occupational Classification Group 29–0000 or any successor provision), and no fewer than 10 shall be reserved for plant and system operators (as that term is defined by the Department of Labor as Standard Occupational Classification Group 51–8000 or any successor provision)” for “ ‘ending on December 31, 2019’ ”.
2014—Subsec. (a)(2). Puspan. L. 113–235, § 10(1), substituted “December 31, 2019” for “December 31, 2014, except as provided in subsections (span) and (d)”.
Subsec. (d)(2). Puspan. L. 113–235, § 10(2)(A), substituted “ ‘ending on December 31, 2019’ ” for “not to extend beyond December 31, 2014, unless extended pursuant to paragraph 5 of this subsection”.
Subsec. (d)(5), (6). Puspan. L. 113–235, § 10(2)(B), (C), redesignated par. (6) as (5), and struck out former par. (5), which related to ascertaining current and anticipated labor needs of the Commonwealth, determination whether an extension of up to 5 years of provisions of subsection is necessary, publication of notice of such extension, and factors in determining whether alien workers are necessary to ensure adequate number of workers.
Statutory Notes and Related Subsidiaries
Effective Date of 2018 AmendmentPuspan. L. 115–232, div. A, title X, § 1045(span), Aug. 13, 2018, 132 Stat. 1959, provided that: “The amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Aug. 13, 2018].”
Puspan. L. 115–218, § 3(e), July 24, 2018, 132 Stat. 1554, provided that:“(1)In general.—Except as specifically otherwise provided, this Act [see Short Title of 2018 Amendment note set out under section 1801 of this title] and the amendments made by this Act—“(A) shall take effect on the date of the enactment of this Act [July 24, 2018]; and
“(B) shall apply to petitions for Commonwealth Only Transitional Workers filed on or after such date.
“(2)Authority of secretary of homeland security.—The Secretary of Homeland Security, in the Secretary’s discretion, may delay the effective date of any provision of this Act relating to Commonwealth Only Transition Workers until the effective date of the interim final rule described in subsection (span) [set out as a Rulemaking note below], except for provisions providing annual numerical caps for such workers.”
Effective Date of 2017 AmendmentPuspan. L. 115–91, div. A, title X, § 1049(c), Dec. 12, 2017, 131 Stat. 1559, provided that: “The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Dec. 12, 2017] and shall apply as follows:“(1) In the case of services or labor to be performed on Guam, such amendment shall apply beginning on the date that is 120 days after the date of the enactment of this Act.
“(2) In the case of services or labor to be performed on the Common Wealth [sic] of the Northern Mariana Islands, such amendment shall apply beginning on the later of—“(A) the date that is 120 days after the date of the submittal of the certification and report required under subsection (span) [131 Stat. 1559]; or
“(B) the date on which the transition program ends under section 6(a)(2) of the Joint Resolution entitled ‘A Joint Resolution to approve the “Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union With the United States of America”, and for other purposes’, approved March 24, 1976 (48 U.S.C. 1806(a)(2)).”
Effective DatePuspan. L. 110–229, title VII, § 705, May 8, 2008, 122 Stat. 867, as amended by Puspan. L. 113–4, title VIII, § 809, Mar. 7, 2013, 127 Stat. 117, provided that:“(a)In General.—Except as specifically provided in this section or otherwise in this subtitle [subtitle A (§§ 701–705) of title VII of Puspan. L. 110–229, enacting this section and sections 1807 and 1808 of this title, amending section 1804 of this title and sections 1101, 1158, 1182, 1184, and 1225 of Title 8, Aliens and Nationality, enacting provisions set out as notes under this section, section 1801 of this title, and section 1182 of Title 8, and amending provisions set out as notes under section 1801 of this title], this subtitle and the amendments made by this subtitle shall take effect on the date of enactment of this Act [May 8, 2008].
“(span)Amendments to the Immigration and Nationality Act.—The amendments to the Immigration and Nationality Act [8 U.S.C. 1101 et seq.] made by this subtitle [amending sections 1101, 1158, 1182, 1184, and 1225 of Title 8], and other provisions of this subtitle applying the immigration laws (as defined in section 101(a)(17) of Immigration and Nationality Act (8 U.S.C. 1101(a)(17))) to the Commonwealth, shall take effect on the transition program effective date described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by section 702(a)), unless specifically provided otherwise in this subtitle. “(c)Construction.—Nothing in this subtitle or the amendments made by this subtitle shall be construed to make any residence or presence in the Commonwealth before the transition program effective date described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by section 702(a)) residence or presence in the United States, except that—“(1) for the purpose of determining whether an alien lawfully admitted for permanent residence (as defined in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20))[)] has abandoned or lost such status by reason of absence from the United States, such alien’s presence in the Commonwealth, before, on or after November 28, 2009, shall be considered to be presence in the United States; and “(2) for the purpose of determining whether an alien whose application for status under subparagraph (T) or (U) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) was granted is subsequently eligible for adjustment under subsection (l) or (m) of section 245 of such Act (8 U.S.C. 1255), such alien’s physical presence in the Commonwealth before, on, or after November 28, 2009, and subsequent to the grant of the application, shall be considered as equivalent to presence in the United States pursuant to a nonimmigrant admission in such status.”
RulemakingPuspan. L. 115–218, § 3(span), July 24, 2018, 132 Stat. 1554, provided that:“(1)Secretary of homeland security.—Notwithstanding the requirements under section 553(span) of title 5, United States Code, the Secretary of Homeland Security shall publish in the Federal Register, not later than 180 days after the date of the enactment of this Act [July 24, 2018], an interim final rule that specifies how the Secretary intends to implement the amendments made by subsection (a) [amending this section] that relate to the responsibilities of the Secretary.
“(2)Secretary of labor.—Notwithstanding the requirements under section 553(span) of title 5, United States Code, the Secretary of Labor shall publish in the Federal Register, not later than 180 days after the date of the enactment of this Act, an interim final rule that specifies how the Secretary intends to implement the amendments made by subsection (a) that relate to the responsibilities of the Secretary.
“(3)Recommendations of the governor.—In developing the interim final rules under paragraphs (1) and (2), the Secretary of Homeland Security and the Secretary of Labor—“(A) shall each consider, in good faith, any written public recommendations regarding the implementation of this Act [see Short Title of 2018 Amendment note set out under section 1801 of this title] that are submitted by the Governor of the Commonwealth not later than 60 days after the date of the enactment of this Act; and
“(B) may include provisions in such rule that are responsive to any recommendation of the Governor that is not inconsistent with this Act, including a recommendation to reserve a number of permits each year for occupational categories necessary to maintain public health or safety in the Commonwealth.”
Purposes of Puspan. L. 115–218Puspan. L. 115–218, § 2, July 24, 2018, 132 Stat. 1547, provided that: “The purposes of this Act [see Short Title of 2018 Amendment note set out under section 1801 of this title] are—“(1) to increase the percentage of United States workers (as defined in section 6(i) of the Joint Resolution entitled ‘A Joint Resolution to approve the “Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America”, and for other purposes’ (48 U.S.C. 1806[(i)])) in the total workforce of the Commonwealth of the Northern Mariana Islands, while maintaining the minimum number of workers who are not United States workers to meet the changing demands of the Northern Mariana Islands’ economy; “(2) to encourage the hiring of United States workers into such workforce; and
“(3) to ensure that no United States worker—“(A) is at a competitive disadvantage for employment compared to a worker who is not a United States worker; or
“(B) is displaced by a worker who is not a United States worker.”
Outreach and TrainingPuspan. L. 115–218, § 3(d), July 24, 2018, 132 Stat. 1554, provided that: “Not later than 120 days after the date on which the Secretary of Labor publishes an interim final rule in the Federal Register in accordance with subsection (span)(2) [set out as a Rulemaking note above], the Secretary shall conduct outreach and training in the Commonwealth of the Northern Mariana Islands for employers and workers on the foreign labor certification process set forth in section 6 of the Joint Resolution entitled ‘A Joint Resolution to approve the “Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America”, and for other purposes’ [48 U.S.C. 1806], as amended by subsection (span) [probably should be “(a)”], including the minimum wage requirement set forth in subsection (d)(2)(C) of such section.”
Congressional IntentPuspan. L. 110–229, title VII, § 701, May 8, 2008, 122 Stat. 853, provided that:“(a)Immigration and Growth.—In recognition of the need to ensure uniform adherence to long-standing fundamental immigration policies of the United States, it is the intention of the Congress in enacting this subtitle [subtitle A (§§ 701–705) of title VII of Puspan. L. 110–229, see Effective Date note set out above]—“(1) to ensure that effective border control procedures are implemented and observed, and that national security and homeland security issues are properly addressed, by extending the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)), to apply to the Commonwealth of the Northern Mariana Islands (referred to in this subtitle as the ‘Commonwealth’), with special provisions to allow for—“(A) the orderly phasing-out of the nonresident contract worker program of the Commonwealth; and
“(B) the orderly phasing-in of Federal responsibilities over immigration in the Commonwealth; and
“(2) to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of phasing-out the Commonwealth’s nonresident contract worker program and to maximize the Commonwealth’s potential for future economic and business growth by—“(A) encouraging diversification and growth of the economy of the Commonwealth in accordance with fundamental values underlying Federal immigration policy;
“(B) recognizing local self-government, as provided for in the Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union With the United States of America through consultation with the Governor of the Commonwealth;
“(C) assisting the Commonwealth in achieving a progressively higher standard of living for citizens of the Commonwealth through the provision of technical and other assistance;
“(D) providing opportunities for individuals authorized to work in the United States, including citizens of the freely associated states; and
“(E) providing a mechanism for the continued use of alien workers, to the extent those workers continue to be necessary to supplement the Commonwealth’s resident workforce, and to protect those workers from the potential for abuse and exploitation.
“(span)Avoiding Adverse Effects.—In recognition of the Commonwealth’s unique economic circumstances, history, and geographical location, it is the intent of the Congress that the Commonwealth be given as much flexibility as possible in maintaining existing businesses and other revenue sources, and developing new economic opportunities, consistent with the mandates of this subtitle. This subtitle, and the amendments made by this subtitle, should be implemented wherever possible to expand tourism and economic development in the Commonwealth, including aiding prospective tourists in gaining access to the Commonwealth’s memorials, beaches, parks, dive sites, and other points of interest.”
ReportsPuspan. L. 110–229, title VII, § 702(h)(1), (2), May 8, 2008, 122 Stat. 864, provided that:“(1)In general.—Not later than March 1 of the first year that is at least 2 full years after the date of enactment of this subtitle [May 8, 2008], and annually thereafter, the President shall submit to the Committee on Energy and Natural Resources and the Committee on the Judiciary of the Senate and the Committee on Natural Resources and the Committee on the Judiciary of the House of Representatives a report that evaluates the overall effect of the transition program established under section 6 [48 U.S.C. 1806] of the Joint Resolution entitled ‘A Joint Resolution to approve the “Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America”, and for other purposes’, approved March 24, 1976 (Public Law 94–241), as added by subsection (a), and the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) on the Commonwealth. “(2)Contents.—In addition to other topics otherwise required to be included under this subtitle [subtitle A (§§ 701–705) of title VII of Puspan. L. 110–229, see Effective Date note set out above] or the amendments made by this subtitle, each report submitted under paragraph (1) shall include a description of the efforts that have been undertaken during the period covered by the report to diversify and strengthen the local economy of the Commonwealth, including efforts to promote the Commonwealth as a tourist destination. The report by the President shall include an estimate for the numbers of nonimmigrant workers described under section 101(a)(15)(H) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(H)) necessary to avoid adverse economic effects in Guam and the Commonwealth.”
Puspan. L. 110–229, title VII, § 702(h)(4), May 8, 2008, 122 Stat. 865, provided that:“(4)Reports by the local government.—The Governor of the Commonwealth may submit an annual report to the President on the implementation of this subtitle [subtitle A (§§ 701–705) of title VII of Puspan. L. 110–229, see Effective Date note set out above], and the amendments made by this subtitle, with recommendations for future changes. The President shall forward the Governor’s report to the Congress with any Administration comment after an appropriate period of time for internal review, provided that nothing in this paragraph shall be construed to require the President to provide any legislative recommendation to the Congress.”
Required Actions Prior to Transition Program Effective DatePuspan. L. 110–229, title VII, § 702(i), May 8, 2008, 122 Stat. 866, provided that:“During the period beginning on the date of enactment of this Act [May 8, 2008] and ending on the transition program effective date described in section 6 of Public Law 94–241 [48 U.S.C. 1806] (as added by subsection (a)), the Government of the Commonwealth shall—
“(1) not permit an increase in the total number of alien workers who are present in the Commonwealth as of the date of enactment of this Act [May 8, 2008]; and
“(2) administer its nonrefoulement protection program—“(A) according to the terms and procedures set forth in the Memorandum of Agreement entered into between the Commonwealth of the Northern Mariana Islands and the United States Department of Interior, Office of Insular Affairs, executed on September 12, 2003 (which terms and procedures, including but not limited to funding by the Secretary of the Interior and performance by the Secretary of Homeland Security of the duties of ‘Protection Consultant’ to the Commonwealth, shall have effect on and after the date of enactment of this Act [May 8, 2008]), as well as CNMI Public Law 13–61 and the Immigration Regulations Establishing a Procedural Mechanism for Persons Requesting Protection from Refoulement; and
“(B) so as not to remove or otherwise effect the involuntary return of any alien whom the Protection Consultant has determined to be eligible for protection from persecution or torture.”
