Howard P. Willens, Gov.Benigno R. Fitial’s special legal counsel, said the E-2 regulations are based on an incorrect interpretation of U.S. Public Law 110-229 or the Consolidated Natural Resources Act of 2008 where the statute mandating the U.S. Department of Homeland Security to run the islands’ immigration system starting this Nov. 28 is embodied.
“The regulations do not reflect the fair and complete assessment of the adverse economic effects of the proposed regulations on the commonwealth’s economy, small businesses, and residents required by Executive Order 12866 and the Regulatory Flexibility Act of 1980; and USCIS has failed to consider alternative provisions for the proposed regulations that would lessen the adverse effects of the proposed regulations on the commonwealth,” reads a portion of the CNMI’s official request for amendments.
During a press briefing yesterday afternoon, Willens said the proposed regulations interpreted the law as authorizing the issuance of CNMI-only investor visas during a transition period ending on Dec. 31, 2014, which cannot be extended by action of the U.S. secretary of labor.
He said the law covers all programs, including the E-2, which is tailored for foreign investors.
Willens, the lawyer who helped the NMI negotiate with the United States the Covenant that made the islands part of America, said DHS erred in the interpretation of the law with respect to the extension of the transition period which conflicts with the language of the legislation in three important aspects.
He said a subsection specifies that the permit system for nonimmigrant workers applies only “during the transitional period.”
Another subsection further compounded the confusion.
“Indeed, if the interpretation advanced by DHS were accepted, there would be no statutory authority whatsoever in the legislation for any extension of the transition period, notwithstanding the bill’s provisions and the legislation history to the contrary,” said Willens.
Third, Willens said the U.S. Congress used Dec. 31, 2014 in only two subsections to establish the end of the transition period in the absence of extension to fix the date at which all employer permits authorizing the use of foreign workers would be reduced to zero.
“This was not an accident: The goal of the legislation is to reduce the number of foreign workers in the commonwealth to zero, after which the federal immigration laws would apply in the full force, and the transition period was designed to provide special conditions to ease the burdens on the commonwealth’s economy until the statutory objective of zero was achieved,” said Willens.
About 514 long-term foreign investors in the CNMI will be affected by the E-2 regulations set to be implemented late this year.
Commerce Secretary Michael Ada said the federal government should also consider eliminating the $150,000 requirement for their existence on the islands to keep their businesses afloat.
“The commonwealth contends that the requirement of $150,000 will operate to exclude many long-term business permit holders whose initial investment was set at a minimum of $50,000 but were allowed to retain their legal entitlement to invest and live in the CNMI under legislation enacted in 1997,” the CNMI’s paper submitted to DHS reads.
Data from the economic study that economists Richard S. Conway and Malcolm D. McPhee did for the CNMI in 2008 described the islands’ economy as in state of depression.
With the demise of the garment industry, the two said the CNMI lost one-third of its economy that was built over two decades.
A portion of their study entitled “Federalization Scenario” stated that the “mandated reduction in the number of foreign workers in the CNMI economy will result in only 1,120 foreign workers being available in the commonwealth in 2015.”
