A visa is a travel document issued to a national of another country indicating that the bearer has permission to enter the country (or, in the case of the CNMI, the commonwealth) that issued it. Therefore to enter China, unless you carry a Chinese passport, you need a visa from the Chinese authorities. To enter the United States, unless you carry a U.S. passport, you need a visa issued by the U.S. authorities. At this time, and until Nov. 28, 2009, the implementation date of the “federalization” law (“Consolidated Natural Resources Act” or “CNRA”), the CNMI retains the immigration authority that it was granted under the Covenant. Under that immigration authority, the CNMI has issued a variety if visas, called “entry permits” in CNMI law, for various categories of persons entering the CNMI: tourists, investors, foreign workers, students and multiple classes of immediate relatives or “IRs.” All visas have terms and conditions such as restrictions on time (indicated by an expiration date) and restrictions on activity (e.g., a tourist or student cannot work, foreign worker cannot own a business or be an employer, and so forth). Under CNMI law, entry permits also functioned as evidence of status.
Status, specifically immigration status, designates the legal basis of a foreigner’s presence in a country other than that of his citizenship. So, in terms we all know and use, a foreigner’s status in the CNMI could be that of tourist, foreign investor, foreign worker, immediate relative and so forth. If a foreigner violates the conditions of his visa, for example by overstaying his tourist visa or not renewing his foreign national worker entry permit or IR permit, the foreigner is deemed to be “out of status.” Unless there is a mechanism to bring the foreigner back into status, the foreigner is subject to deportation proceedings; these are called “removal proceedings” in the U.S. Deportation or removal has very serious adverse effects on the individual’s future ability to re-enter the country from which he was removed.
Under the terms of the CNRA, as of Nov. 28, 2009, entry permits issued by the CNMI will no longer function as visas for purposes of re-entering the CNMI. They will be “honored” by the United States only for specific purposes:
1. Limitation on Removal: DHS cannot remove any alien from the commonwealth if that alien has a valid CNMI entry permit; this limitation is in effect while the CNMI entry permit remains valid, up to a maximum of two years after November 28.
2. Work Authorization: any alien lawfully present and authorized to work in the CNMI will be deemed authorized to work by DHS; this authorization is in effect up to a maximum two years after Nov. 28, after which most aliens not eligible for U.S. visas will be allowed to become “CNMI-Only Transitional Workers.” Regulations to implement this provision have not yet been published.
3. Grandfathering of Foreign Investors: aliens who have CNMI long term investor status will be converted by DHS to CNMI-Only Nonimmigrant Investor status. Regulations to implement this provision have not yet been published.
Please note that none of these provisions address visas. The prohibition on removal simply states that for a period of time, the removal authority of the U.S. will be suspended as to persons who are “lawfully present in the CNMI.” The work authorization simply confirms and continues an alien worker’s status as a foreigner authorized to work in the CNMI. The investor provision continues the investor’s ability to remain in that status by converting him to a new and unique category under the U.S. immigration system. All of these provisions beg the question of whether these foreigners will be able to exit the CNMI and re-enter to continue that same status.
The current interpretation of DHS, as we understand it, is that although the CNRA acknowledges and continues the status of qualified foreigners in the CNMI, no CNMI-issued entry permit will operate as a visa for re-entry after Nov. 28. If a foreigner who has an ongoing valid status in the CNMI exits the CNMI, he must obtain a U.S. visa in order to re-enter. This means applying for and obtaining a U.S. visa, issued by the State Department, at a U.S. consulate, located in the foreigner’s home country.
This imposes a rather significant burden on our foreign residents. Some, such as Japanese and Koreans, are citizens of visa waiver countries and can travel at will as tourists, but cannot resume their status as investors, workers or students if they re-enter on a tourist visa. They, as well as nationals of all other countries, must obtain a U.S. visa. We have been assured that there will be special CNMI-only visas created by the Department of State for both CNMI-only investors and CNMI-only transitional workers, and that consular processing of these visas will be done quickly and efficiently. We will see how that works out. We have also been assured that for those who must exit for emergency purposes, there will be a parole mechanism to allow them to re-enter without a visa. We will see how that works out also. In the absence of published regulations, we simply do not know how these matters will be implemented.
In the meantime, our advice to our foreign clients residing in the CNMI is as follows: try to get your travel done before Nov. 28, do not make plans to travel after Nov. 28. Too much is uncertain and too much is at risk. We will report further on this once we know more about the U.S. government’s plans for our workers and investors.
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 [email protected]. Readers may also e-mail written questions through the Marianas Variety at [email protected].
