Why Guam is exempt from H-1B cap

While lawmakers push for an H-1B cap increase, Guam has received an exemption from the visa's cap to ensure it has enough workers for the island's military build-up. But this move, which also includes the islands that make up the Commonwealth of Northern Mariana Islands (CNMI), may turn these Pacific islands into an alternative business location for U.S. companies that can’t get an H-1B visa in the mainland. CNMI includes Saipan, Tinian and Rota.

Guam is a U.S. territory and a major beneficiary of a law approved last month by President Bush, the Consolidated Natural Resources Act of 2008. The visa provision is a Cinderella exemption to the 85,000 visa cap: It expires at the end of 2014. (The 85,000 figure includes 20,000 visas set aside for advanced degree holders)

Guam will need foreign help when the U.S. Marine Corp. begin transferring some 8,000 Marines from Okinawa to the island. As many as 15,000 workers will be needed to prepare facilities for the Marines and their families. Work is expected to begin in 2010. The island's population is about 175,000.

The Consolidated Natural Resources Act visa lifts the cap for foreign construction workers as well as skilled worker under the H-1B visa cap, according to David Cohen, a former deputy assistant secretary of the interior from 2002 until 2008, who is now an attorney at Davis Wright Tremaine LLP, in an article he wrote for the lawfirm.

But Cohen wrote that this law may appeal to multinational firms a number of reasons.

... 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 ...

The U.S. Government Accountability Office, in a report last March, also described the impact of the law. [pdf download]

Although Cohen sees potential for Guam and CNMI as an alternative location for H-1B visas, it’s a difficult to imagine how Guam and CMNI will take off as an alternative location for foreign workers because of the distance. Guam is a seven hour flight from Hawaii. If you can work remotely from Guam, you can work remotely from anywhere.

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