By Troy Torres
The future of tourism to Guam and the Commonwealth of the Northern Mariana Islands is under attack. Among the consequences of a presidential order affecting tourism from Hong Kong may be the legitimate existence of the company operating the casino in Saipan.
On July 14, President Trump used his power under the United States-Hong Kong Policy Act of 1992 to suspend the application of the Guam and CNMI Visa Waiver Program to Hong Kong. That means tourists from Hong Kong can no longer travel to Guam and the CNMI using their passports alone, significantly constricting tourism and commerce from Hong Kong whenever the global travel market reopens.
Earlier today in the House of Representatives, a Wisconsin congressman tried to kill the Guam and CNMI Visa Waiver Program to all our major markets (Japan, Korea, and Taiwan) by cutting funding. Congressman Michael San Nicolas stepped in, and stopped the amendment to the Homeland Security appropriations bill from passing.
The Guam and CNMI Visa Waiver Program is an exemption under the Immigration and Nationality Act of 1952, as amended, that allows immigration from designated countries into Guam and the CNMI, and no where else in the nation. This allows tourists from Japan, Korea, Taiwan, and Hong Kong to buy round trip tickets to Guam and the CNMI for stays not longer than 45 days. Chinese tourists are allowed parole authority under the program to vacation in the CNMI only.
This program is the heart of the economies of the Mariana Islands.
Congressman Tom Tiffany (R-WI) today tried to kill the funding of this program through an amendment he introduced to the bill funding the U.S. Department of Homeland Security, which administers the program.
"The Tiffany Amendment would have cut off funding for the Guam and CNMI Visa Waiver Programs, effectively cutting off our tourism markets," Congressman San Nicolas said. "Without the funding, visitors especially from our Korea, Japan, and Taiwan markets would have had much greater difficulty traveling to Guam, reducing our visitor volumes indefinitely and permanizing the current economic destruction we are enduring. Recovery would have been impossible."
In order for the amendment to be considered, it needed to clear the Committee on Rules, where Mr. San Nicolas successfully objected and killed the amendment.
"We made a clear case that funding the Visa Waivers for Guam and the CNMI was non-negotiable, as they are a critical lifeline to maintaining our primary industry in our economy, and equally critical to our recovery from the economic damage of COVID-19," said Mr. San Nicolas. "I would like to thank our colleagues for recognizing the serious consequences of the amendment, and for their support to protect the ability for Guam's economy to recover. We continue the work in the Congress to ensure that not only is Guam included in positive federal policy, but also protected from detrimental actions that would harm our community."
While the crisis was averted in Congress thanks to Mr. San Nicolas's actions, it seems the Leon Guerrero and Torres administrations were asleep at the wheel and completely unaware of presidential action that yanked Hong Kong from the Visa Waiver Program.
In the middle of this past month, Mr. Trump suspended "the application of section 201(a) of the United States-Hong Kong Policy Act of 1992, as amended (22 U.S.C. 5721(a)), to ... section... 212(l)... of the Immigration and Nationality Act of 1952, as amended (8 USC... 1182(l)." - Executive Order 13936
Section 201(a) of the United States-Hong Kong Policy Act of 1992, as amended, is codified at 22 U.S.C. 5721(a). This is what Section 5721(a) says:
"Notwithstanding any change in the exercise of sovereignty over Hong Kong, the laws of the United States shall continue to apply with respect to Hong Kong, on and after July 1, 1997, in the same manner as the laws of the United States were applied with respect to Hong Kong before such date unless otherwise expressly provided by law or by Executive order under section 5722 of this title."
This is what Section 5722 says, in part:
"(a) On or after July 1, 1997, whenever the President determines that Hong Kong is not sufficiently autonomous to justify treatment under a particular law of the United States, or any provision thereof, different from that accorded the People's Republic of China, the President may issue an Executive order suspending the application of section 5721(a) of this title to such law or provision of law.... (c) Any Executive order issued under subsection (a) shall be published in the Federal Register and shall specify the law or provision of law affected by the order."
The July 14 executive order applied to, among others, section 212(l) of the Immigration and Nationality Act of 1952, as amended, codified at 8 U.S.C. 1182(l). Here is what Section 1182(l) says, in part:
"Guam and Northern Mariana Islands visa waiver program
"(1) In general "The requirement of subsection (a)(7)(B)(i) may be waived by the Secretary of Homeland Security, in the case of an alien applying for admission as a nonimmigrant visitor for business or pleasure and solely for entry into and stay in Guam or the Commonwealth of the Northern Mariana Islands for a period not to exceed 45 days, if the Secretary of Homeland Security, after consultation with the Secretary of the Interior, the Secretary of State, the Governor of Guam and the Governor of the Commonwealth of the Northern Mariana Islands, determines that-- "(A) an adequate arrival and departure control system has been developed in Guam and the Commonwealth of the Northern Mariana Islands; and "(B) such a waiver does not represent a threat to the welfare, safety, or security of the United States or its territories and commonwealths."
What about the Saipan casino owned by a Hong Kong-based company?
Imperial Pacific International Holdings Limited, which wholly owns its subsidiary, IPI (CNMI), LLC, is a Hong Kong-based and -founded company incorporated in Bermuda, that has been trading on the Hong Kong Stock Exchange since 2002.
Mr. Trump's executive order does not end at the suspension of tourism from Hong Kong. The section following the one affecting the Visa Waiver Program, may have a direct impact on the ability for IPI to continue operating its casino in Saipan, and for money to shift between Saipan and Hong Kong.
Section 3 of the executive order says, in part:
"Within 15 days of the date of this order, the heads of agencies shall commence all appropriate actions to further the purposes of this order, consistent with applicable law, including, to:
"(a) amend any regulations implementing those provisions specified in section 2 of this order, and consistent with applicable law and executive orders, under IEEPA, which provide different treatment for Hong Kong as compared to China."
The IEEPA is the International Emergency Economic Powers Act. The law allows the President to place restrictions on trade and relationships with people and companies from countries, where the President decides an emergency exists against the security of the United States.
This law says:
"The President may, under such regulations as he may prescribe, by means of instructions, licenses, or otherwise--
"(A) investigate, regulate, or prohibit--
"(i) any transactions in foreign exchange,
"(ii) transfers of credit or payments between, by, through, or to any banking institution, to the extent that such transfers or payments involve any interest of any foreign country or a national thereof,
"(iii) the importing or exporting of currency or securities."
Mr. Trump has declared an unusual and extraordinary threat with regard to the devolving situation with Hong Kong and China, and has prescribed, through his July 14 executive order, the amendment of regulations that will restrict commerce with Hong Kong-based companies.
It is unclear what those regulations will say, but it is clear that business conducted with IPI will be affected in whatever way the new regulations will set forth.