H Visa Cap Exemption Would Boost Guam Military Buildup

The author, as Deputy Assistant Secretary of the Interior from 2002 until 2008, headed the office that administers the U.S. relationship with its territories. He was also the founding Co-Chair of the Federal Interagency Task Force on the Guam Military Buildup.

The U.S. Senate recently passed legislation that would exempt Guam and the Commonwealth of the Northern Mariana Islands from immigration law caps on temporary workers through 2014. The legislation, which is expected to be signed by the president after receiving the concurrence of the U.S. House of Representatives, would help ensure that sufficient skilled and unskilled labor is available for Guam's planned military buildup and could open up numerous business opportunities in both Guam and the Northern Marianas.

Legislation would facilitate major military buildup on Guam, other projects

For those who were wondering how the Department of Defense would be able to find the 12,000 to 20,000 workers estimated to be required for the planned military buildup in Guam, a large part of the answer is being provided through the unlikely vehicle of the Consolidated Natural Resources Act of 2008. Tucked away in Title VII of that Act, which was passed by the U.S. Senate on April 10, 2008, is a provision that would exempt the U.S. territory of Guam and the U.S. Commonwealth of the Northern Mariana Islands (CNMI) from caps on all H visas through the end of 2014. That would open the door for military contractors to pull both skilled and unskilled labor from the Philippines and other nations to help implement what has been called the largest U.S. military project of its kind since the end of the Cold War. It would also open up unique opportunities for companies that are not participating in the buildup.

Last year, when I was still heading the federal office that administers the U.S. relationship with Guam and the other territories and co-chairing the federal Interagency Task Force on the Guam Military Buildup, my staff and I drafted the original version of the Act's immigration provisions. The Act, which is an amalgamation of bills that have already passed the U.S. House of Representatives, will now return to the House for concurrence before being forwarded to President Bush for signature.

The military buildup will completely transform Guam, a U.S. territory in the Western Pacific with a current population of approximately 170,000. That population is projected to jump to 225,000 in a few short years, thanks to the relocation of 8,000 U.S. Marines and 9,000 of their dependents from Okinawa, the arrival of thousands of workers, and a sharp increase in the level of economic activity on the island.

The centerpiece of the military buildup will be the US$10.3 billion relocation of the Marines from Okinawa, which will require the construction of a new military base, military housing and utilities. This massive project is scheduled to occur during a very compressed time frame from 2010 through 2014. An additional US$4 billion or more is expected to be spent on Navy, Air Force and Army facilities on Guam.

In addition to the billions of dollars of military expenditures planned for Guam, a great deal of capital will likely be attracted to the civilian economy. In order to cope with a large, rapid spike in its population, Guam's civilian infrastructure will have to be significantly upgraded and expanded. This should create opportunities for companies involved in the development, construction and operation of critical infrastructure such as ports, power, water, wastewater and solid waste. The 55,000 additional people who are expected to arrive on Guam's shores in a few years, mostly civilians, will all need, in addition to utilities, places to live, places to shop, places to dine, products to buy, services to consume, etc. This is likely to have a significant impact on Guam's economy.

What the Act would do

The Act would exempt both Guam and its neighbor, the CNMI, from national caps on all H visas through Dec. 31, 2014. Most of the construction workers required for the buildup are expected to be brought in on H-2B visas for temporary nonagricultural workers. Importing large numbers of workers will be necessary because of the very limited number of qualified workers on Guam, and because of the practical difficulties of attracting large numbers of U.S. workers cost-effectively to a territory that is over 6,000 miles away from the closest point on the U.S. mainland. Guam, which bills itself as “America in Asia,” is approximately three hours from Manila by plane, and is expected to draw most of the workers needed for the buildup from the Philippines because of its large, well trained, English-speaking work force.

The nationwide annual cap on H-2B visas is currently set at 66,000, and demand for these visas far outstrips supply. Without the cap exemption, it would be impossible for a small territory such as Guam to utilize such a large share of the entire nation's allocation of temporary nonagricultural workers. It should be noted that H-2B visas should be issued for jobs that are temporary and for which the need is either a one-time, seasonal, peak or intermittent one. It may require further analysis to determine whether most of the construction jobs that will be generated by the buildup will fit comfortably within these requirements.

While the cap exemption for H-2B visas has been the principal focus of Department of Defense planners, the exemption would also apply to H-1B visas for professional or specialty workers. That would enable engineers, architects, computer professionals, health care professionals, professors and teachers, scientists, accountants, financial analysts and many other types of professionals to enter Guam or the CNMI without regard to the current nationwide cap of 65,000 for H-1B visas, which is supplemented with an additional 20,000 visas for applicants with a U.S. master's degree or higher.

Unique business opportunities

By allowing both skilled and unskilled workers to enter the CNMI and Guam without regard to the stringent limits applicable to the rest of the country, the Act would create opportunities that go well beyond the military buildup. For one thing, the Act could help ensure a sufficient supply of labor for all of the civilian infrastructure improvements and commercial development expected for Guam. Also, companies frustrated by their inability to secure needed skilled or unskilled employees might consider establishing operations in the CNMI or Guam as an alternative to assuming the risks associated with operating outside of the U.S. As one example, software companies might bring foreign software engineers to work in the CNMI as a way to get them “in the door” while they await the adjudication of their visa applications for work on the mainland.

While the H cap exemption would almost certainly result in an influx of workers from the Philippines, it would also likely attract talent from other countries. Japan, for example, will provide about 60 percent of the funding for the relocation of the Marines to Guam, and Japanese companies are expected to get a significant amount of business from this project. The exemption would enable these Japanese companies to bring in more of their own professionals and other workers than would otherwise have been possible. The exemption would also enable professionals and other employees from Korea, Taiwan, Australia, New Zealand and many other countries to participate in the buildup and other activities in Guam and the CNMI.

Duration of exemption

The H cap exemption would likely have generated even more opportunities in Guam and the CNMI had it been permanent rather than temporary. Under the Act, the exemption is scheduled to apply to H visa applications submitted during a period of approximately six and a half years, and perhaps less. The exemption would go into effect on the first day of the first month beginning one full year after the date of enactment, although the effective date can be delayed by up to 180 days at the discretion of the Secretary of Homeland Security. For example, if President Bush signs the Act into law on May 15, 2008, the H cap exemption would go into effect on June 1, 2009, unless the Secretary of Homeland Security decided to delay it for up to 180 days. The exemption would initially be scheduled to expire on Dec. 31, 2014. However, the statute indicates that the exemption would be in effect during a transition program designed to incorporate the CNMI's existing guest worker program into the federal system. That transition program would originally be scheduled to terminate on Dec.31, 2014, but could be extended indefinitely as necessary by the Secretary of Labor in increments of up to five years.¹

Assuming, as is likely, that the Act will be enacted, questions about the potential duration of the H cap exemption will be clarified in due course. Whether the exemption is in effect for six and half years or longer, it is likely to have a very significant impact on Guam and the CNMI and on companies searching for opportunities there.

FOOTNOTES

1 The Government Accountability Office, in a recent review of the immigration provisions of the Act, interpreted the H visa cap exemption as not being extendable beyond Dec. 31, 2014. When we drafted the Act, however, it was our intention and the intention of the Congressional staff that we were working with that the H visa cap exemption could be extended. We believe that the plain language of the Act supports the conclusion that the H visa cap exemption can indeed be extended.