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The Department of Homeland Security (DHS) and the Department of Justice (DOJ) are implementing conforming amendments to their respective regulations to comply with the Consolidated Natural Resources Act of 2008 (CNRA). The CNRA extends the immigration laws of the United States to the Commonwealth of the Northern Mariana Islands (CNMI). This rule amends the regulations governing: asylum and credible fear of persecution determinations; references to the geographical ‘‘United States’’ and its territories and possessions; alien classifications authorized for employment; documentation acceptable for Employment Eligibility Verification; employment of unauthorized aliens; and adjustment of status of immediate relatives admitted under the Guam- CNMI Visa Waiver Program. Additionally, this rule makes a technical change to correct a citation error in the regulations governing the Visa Waiver Program and the regulations governing asylum and withholding of removal. The purpose of this rule is to ensure that the regulations apply to persons and entities arriving in or physically present in the CNMI to the extent authorized by the CNRA.Because the regulations under this rule are governed by both the DOJ and DHS, the rule is posted twice in the Federal Register, under both the Department of Homeland Security's USCIS and the Department of Justice's Executive Office for Immigration Review. According to the Saipan Tribune, Marie Thérèse Sebrechts, USCIS regional media manager, told CNMI legislators that DHS Secretary Janet Napolitano and Attorney General Eric Holder are jointly proposing conforming amendments to their respective regulations in this one rulemaking document.
While most U.S. immigration benefits will become available to aliens in the CNMI on the transition program effective date, the CNRA precludes the availability of asylum under section 208 of the INA, 8 U.S.C. 1158, on the transition program effective date and throughout the transition period to aliens physically present in or arriving in the CNMI. Sec. 6(a)(7) of Public Law 94–241, as added by sec. 702(a) of Public Law 110–229. Asylum is a discretionary benefit that may be granted to aliens who establish that they have been persecuted or have a well founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. INA sections 101(a)(42) and 208(b), 8 U.S.C. 1101(a)(42) and 1158(b). There are certain exceptions that limit the eligibility for aliens to apply for asylum, including a limitation stating that an alien must file his or her application for asylum within one year after the date of last arrival in the United States. INA sec. 208(a)(2)(B), 8 U.S.C. 1158(a)(2)(B). Aliens granted asylum can seek lawful permanent resident (LPR) status in the United States by applying for adjustment of status no earlier than one year after being granted asylum. INA sec. 209(b), 8 U.S.C. 1159(b).
The CNRA, however, does not preclude the granting of two related forms of protection from removal in the CNMI during the transition period: withholding of removal under section 241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), and withholding or deferral of removal under the regulations implementing Article 3 of the Convention Against Torture.
In addition, upon the transition program effective date, employers and other entities in the CNMI will be subject to the anti-discrimination provisions of the INA, which make itunlawful for a person or any other entity to discriminate on the basis of citizenship status or national origin in the hiring, employment eligibility verification process, firing, or recruitment or referral for a fee of an individual.Employment Authorization Documentation
Further, upon the transition program effective date, individuals in the CNMI will be subject to the civil document fraud provisions of the INA (in addition to criminal penalties for U.S. immigration related document fraud already applicable under title 18 of the U.S. Code), which generally make it unlawful for any person or entity to use fraudulent documents for various purposes under the INA.
On Form I–9, a newly-hired employee must attest that he or she is a U.S. citizen or national, LPR [Legal Permanent Resident], or an alien otherwise authorized to work in the United States. The employee then must present a document from List A or a combination of documents from List B and C designated by statute or regulation and listed on Form I–9 as acceptable for establishing identity and employment authorization to his or her employer. The employer must examine the documents, record the document information on Form I–9, and attest that the documents appear both to be genuine and to relate to the individual presenting them.The foreign contract workers who are presently working in the CNMI will be allowed to remain in the CNMI until the expiration of their employment contract or for as long as two years which ever is shorter. The rule states:
The Covenant Act amended by the CNRA contains a ‘‘grandfather clause’’ allowing alien workers in the CNMI lawfully present and authorized to be employed in the CNMI on the transition program effective date to be considered work authorized in the CNMI until their employment authorization expires under CNMI law, or for two years, whichever is shorter. Therefore, employers who employ such aliens in the CNMI will not be in violation of the prohibition against knowingly hiring or continuing to employ an unauthorized alien, so long as the employment is consistent with the CNMI authorization. This rule will allow aliens with unrestricted work authorization in the CNMI under the grandfather clause discussed above to present to their employers CNMI-specific documents in order to meet employment verification requirements.
Employers continuing the employment of aliens with CNMI work authorization under the grandfather clause will not be required to complete a Form I–9 CNMI for these employees on the transition program effective date because the Form I–9 requirements apply only to hiring on or after the transition program effective date, and not continuing employment. Unless they are permitted to change employers under their CNMI work authorization, most aliens with employer-specific CNMI work authorization will need to continue their employment with the same employer on or after the transition program effective date to be deemed employment-authorized under the grandfather clause. As provided in 8 CFR 274a.12(b)(24), employees who are authorized by the CNMI as of the transition program effective date to change employers may do so, whether the approval to change is employer specific or in the form of unrestricted work authorization. For aliens with unrestricted CNMI work authorization or who are permitted to change employers, Forms I–9 CNMI will need to be completed for hires on or after the transition program effective date.
CNMI Public Law 15–108 Sec. 4925. It is DHS’ understanding that cards provided to immediate relatives, aliens given refugee protection, or others with unrestricted work authorization have red bands, and cards provided to aliens authorized to work with a specific employer have blue bands. For this reason, the rule specifies that only red-banded Alien Permit Cards would be acceptable.
CNMI Public Law 15–108 Sec. 4947(f) provides that a ‘‘* * * hearing officer may authorize a foreign national worker to be employed in the Commonwealth on a temporary basis pending a hearing with respect to a labor complaint. A temporary work authorization shall end two (2) business days after the hearing officer’s order is issued.’’
Under Northern Mariana Islands Public Law 5–11 Sec. 4, which became effective April 1, 1977, the Resident Commissioner (the highest executive authority of the Government of the Northern Mariana Islands at the time appointed by the Secretary of the Interior) was authorized to issue permanent identification cards to persons granted permanent residence status pursuant to the provisions of Northern Mariana Islands Public Law 5–11. Northern Mariana Islands Public Law 5–11,however, was repealed in 1981 by CNMI Public Law 2–17. Public Law 2–17, Sec. 2 preserved the rights and status of persons who were granted or applied for permanent residency status pursuant to prior Northern Mariana Islands Public Law 5–11.
Q. Can people with CW status travel outside the CNMI?
A. Once status is obtained, the CW-1 or CW-2 nonimmigrant may leave CNMI but they must have the appropriate visa to re-enter. If the CW-1 or CW-2 status is obtained in CNMI (not the Consular post abroad) the nonimmigrant will have the legal status, but this is not a visa valid for travel to and admission into CNMI. If the CW-1 or CW-2 nonimmigrant departs CNMI, he or she must obtain a visa from a U.S. embassy or consulate to return to CNMI, unless alternative arrangements have been specifically approved by the U.S. Department of Homeland Security.
Q. How does one obtain the visa for re-entry?
A. Someone who has obtained CW-1 or CW-2 status in CNMI (not at a Consular post abroad) who needs to leave CNMI for whatever reason will need to get a visa from the State Department to re-enter CNMI. Usually this is done at the U.S. Embassy or a U.S. Consulate via a locally managed appointment system. If, for example, someone with CW-1 status plans to visit family in the Philippines, he/she would need to make an appointment with the U.S. Embassy in Manila to get the CW visa while they are in the Philippines. They would need to travel with documents to show the State Department officer during their interview and be prepared to wait at least a few days for the visa to be issued. Each U.S. Embassy and Consulate abroad has a different appointment system. To learn more about the U.S. Embassy or Consulate you may need to visit, travelers should go to: http://www.usembassy.gov/. Visa wait times for each Consular post abroad are posted at: http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php.
October 28, 2009
October 28, 2009
In his testimony, Fitial categorically stated that guest workers should not be given a permanent status because they are just here to work.The umbrella permits will provide temporary security. Of course, if this administration was truly concerned about the guest workers and their families they would support a pathway to U.S. citizenship for all nonresidents.
Labor deputy secretary Cinta Kaipat, in her latest interim progress report submitted to the Fitial administration, admitted that Labor doesn't have factual data on the number of nonresident workers and immediate relatives in the CNMI.
A lawmaker is frustrated with the Department of Labor’s failure to provide basic data regarding the number of foreign workers in the CNMI.
Rep. Tina Sablan, Ind.-Saipan, said she wrote to Labor early this month and what the department sent her was a “non-reply” that only “raises more questions.”
Labor officials, she said, “told me that they do not track the number of people present in the CNMI, or even the number of active permits. They have repeatedly said they only count permit transactions, not people. They have also said that Labor does not have the manpower or the financial resources to track the numbers of people, despite the fact that they apparently have no trouble tracking transactions, and also despite the significant increases in fees. Now they are trying to claim that they are not even required by CNMI law to report on the actual numbers of foreign workers (or any other types of permit-holders, for that matter) and to shift attention and the burden of responsibility to the U.S. Census Bureau and to our U.S. delegate” in Congress.
Sablan said this is yet another sign that “yeah, absolutely we cannot monitor our borders effectively — we don’t even know how many people are here; that’s pretty basic.”
She wants to know “how Labor was able to establish the total number of alien workers present in the CNMI when U.S. Public Law 110-229 [the federalization law] was signed last year. How did officials establish the cap on the number of foreign workers, which was required by that federal law? How are they now able to ensure that the CNMI does not exceed that cap? And how were they able to prepare their 2007 Annual Report, which actually does appear to document the numbers of people in each of the different permit categories in 2007?”
The Fitial administration estimates that the CNMI still has 16,000 guest workers.
Sablan said she was told that the Labor Information Data System, or LIDS, was transferred from the Division of Immigration’s control to the Department of Labor a few months ago.
“Could that change have anything to do with this sudden inability to provide basic data on the number of people holding permits in the commonwealth?” she asked.
“Either we are not keeping the data at all, or the data have been inaccurate all this time, or the Department of Labor is simply withholding the data. The bottom-line is this: our lack of basic data and Labor’s continuing evasiveness are cause for serious concern.”
Department of Labor deputy secretary Barry Hirshbein and special counsel Deanne Siemer said yesterday that the Commerce Department will separately issue the “umbrella permit” to foreign students, foreign investors and long-term businesses as well as permits for ministers and missionaries-all categories excluded from the 240K permits for foreign workers.The Department of Labor that previously claimed it had no clue how to determine data on aliens, now has the capability of printing umbrella permits for all foreigners based on their data.
Although Labor will print the umbrella permits for Commerce, Hirshbein said this is separate from the initial 13,000 permits Labor will print.
He said another 3,000 permits may be printed for 240K holders.
October 27, 2009
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today posted an interim final rule in the Federal Register that creates a Transitional Worker visa classification in the Commonwealth of the Northern Mariana Islands (CNMI). The CNMI-Only Transitional Worker Program is one of several initiatives that implements the Consolidated Natural Resources Act of 2008 (CNRA), which expands U.S. immigration law in the CNMI.
Although U.S. immigration law applies to the CNMI beginning on November 28, a transition period will begin on that date during which time temporary measures will be carried out to allow for an orderly transition from the CNMI’s permit system to U.S. immigration law. This will give foreign workers time to identify an appropriate visa classification according to the Immigration and Nationality Act (INA).
A “transitional worker” under CNRA is defined as an alien worker who is currently ineligible for another classification under INA and who performs services or labor for an employer in CNMI. The Transitional Worker Visa category is a new nonimmigrant visa classification under INA using the admission code CW-1 for the principal transitional worker and CW-2 for dependents.
The CNMI-Only Transitional Worker Program will be available to two groups of nonresidents: (1) those who are lawfully present in the CNMI and (2) those who are abroad.
Non-residents living in CNMI may be classified as CW-1 nonimmigrants if, during the transition period, they:
1. Will enter or stay in CNMI to work in an occupational category that needs alien workers to supplement the resident workforce;
2. Are petitioned for by an employer;
3. Live in CNMI;
4. Are lawfully present in CNMI; and
5. Are not otherwise inadmissible to the United States.
CNMI employers may also use the CW-1 program to obtain eligible workers coming to CNMI from abroad.
The transition period begins on November 28, 2009 and ends on December 31, 2014. The CW classification is valid for the duration of the transition period. At the end of the transition period, the CNMI-Only Transitional Worker Program will cease to exist and the transitional workers who held this status must change to another nonimmigrant or immigrant status under INA to stay in CNMI lawfully.
Under the CNMI-Only Transitional Worker program, employers may file a petition for a transitional worker with USCIS using Form I-129CW, Petition for a Nonimmigrant Worker in CNMI. This new form was modeled after the existing Form I-129. The fee for Form I-129CW would be $320, the same amount charged for the I-129 and an $80 biometrics fee. In addition, the CNRA mandates a “CNMI education funding fee” of $150 per beneficiary per year which cannot be waived.
Due to unique circumstances in CNMI, the I-129CW fee may be waived in extraordinary situations where an employer can demonstrate an inability to pay the fee and still pay the employee’s wage. With some restrictions, employers may file for multiple beneficiaries on the same I-129CW. Employers must conduct legitimate business and may not engage directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under federal or CNMI law.
Under the interim final rule, the CNMI-Only Transitional Worker program includes all occupational categories being used in CNMI now. Also, for the first year, the numerical limits for CW-1 status are based on the CNMI government’s own estimate of the nonresident worker population, which is 22,417. After the first year, the numerical limit will decrease, as determined by the Secretary of Homeland Security.
The CW visa classification is valid only in the CNMI and provides no basis for travel to any other part of the United States, including Guam. Once status is obtained, the CW-1 or CW-2 nonimmigrant may leave the CNMI and return, but must have the appropriate visa for readmission.
The public is encouraged to submit comments on this rulemaking by Nov. 29, 2009. Comments should be identified by DHS Docket No. USCIS-2008-0038 and submitted one of the following ways:
• Federal eRulemaking Portal: http://www.regulations.gov.
• E-mail: rfs.regs@dhs.gov. Include DHS Docket No. USCIS-2008-0038 in the subject line.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0038 on your correspondence.
October 27, 2009
Questions and Answers on Transitional Worker Program for the Commonwealth of the Northern Mariana Islands (CNMI)
Q. Who qualifies for the CNMI-only Transitional Worker status in CNMI?
A. USCIS has established a transitional worker program for foreign nationals to live and work in CNMI. Foreign nationals who are eligible for an INA-based nonimmigrant status would not be eligible. Short term visitors for business or pleasure are not eligible to obtain CW classification because such individuals are not part of the foreign work force that is the subject of this interim rule.
Q. What is the legal basis for the CNMI-only Transition Worker program?
A. Section 6(d) of Pub. L. 94-241, as amended by CNRA, directed the Secretary of Homeland Security to establish a transition program to assist CNMI employers to obtain necessary workers who are not otherwise eligible under U.S. immigration laws during the transition period.
Q. What is the purpose of the CNMI-Only Transitional Worker Program?
A. The CNMI-only Transitional Worker Program will allow foreign nationals who are not eligible for another INA-based employment authorized nonimmigrant status to perform work in CNMI during the transition period. Thus, the purpose of the CNMI-Only Transitional Worker visa is to offer a lawful U.S. immigration status to those foreign nationals who are not currently eligible for any other kind of immigrant or nonimmigrant visa. During the transition period, it is expected that these transitional workers will find a suitable, long-term alternative to their CNMI-Only Transitional Worker status by obtaining status under an INA-based visa category, or departing CNMI.
Q. What happens to foreign workers in CNMI on November 28, 2009?
A. When Federal immigration law takes effect in CNMI on November 28, 2009, foreign workers who have a valid CNMI employment authorization may remain, live and work in CNMI for up to two years, or for the duration of their CNMI-based status, whichever occurs first. Before the expiration of that limited time period, they must obtain either CNMI-Only Transitional Worker status, or some other lawful U.S. immigration status to lawfully work and reside in CNMI and to travel between CNMI and another U.S. or foreign destination. If they leave CNMI for any reason, they must have a valid U.S. immigration visa to re-enter. Foreign workers who do NOT have a CNMI work contract could risk becoming “unlawful” if another U.S. immigration status is not obtained.
Q. What is the admission code for this visa classification be?
A. This new nonimmigrant visa classification will use the admission code CW-1 for the principal transitional worker and CW-2 for dependents.
Q. What does this mean for foreign residents who have been living and working in CNMI?
A. For those foreign workers who are not eligible for another kind of U.S. immigration status, the transitional worker visa is a critically important alternative. It could potentially give thousands of foreign workers a temporary status while they determine an appropriate long-term immigration status for themselves and their families.
Q. What are the timeframes of the transition period?
A. Although U.S. immigration laws apply fully to CNMI, there will be a transition period during which temporary measures will be carried out to allow for an orderly transition from CNMI’s permit system to Federal immigration law and give foreign non-resident workers time to identify an appropriate long-term INA-based visa classification. The transition period begins on November 28, 2009 and will end on December 31, 2014. The Secretary of Labor, in consultation with appropriate federal agencies and the Governor of CNMI, may extend the CNMI-Only Transitional Worker program for additional periods of up to five years. No decision on any extension has been made at this time.
Q. What are the requirements for the new CNMI Transitional Worker visa or status?
A. Under the CNMI-Only Transitional Worker program, there are requirements for both employers and workers.
Requirements for Employers—Employers must be engaged in legitimate business and may not engage directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under Federal or CNMI law. The employer also bears the responsibility of filing the necessary petition and paying the requisite fees to employ transitional workers.
Requirements for Workers — Under the interim final rule, foreign workers may be classified as CW-1 nonimmigrants if, during the transition period, they:
1. will enter or stay in CNMI to work in an occupational category that needs alien workers to supplement the resident workforce;
2. are petitioned for by an employer;
3. live in CNMI;
4. are lawfully present in CNMI; and
5. are not otherwise inadmissible to the United States.
Q. What does a worker need to do to get this visa or status?
A. The foreign national worker must meet the criteria noted in the answer above and find an employer willing to sponsor him/her. The responsibility for applying rests with the employer. Employers may file a petition for a transitional worker with USCIS using Form I-129CW, Petition for a Nonimmigrant Worker in the CNMI. (This new form was modeled after the existing Form I-129.)
Q. What does the worker’s spouse and/or child need to get CW-2 status?
A. To accompany or follow to join, the derivative CW-2 nonimmigrant may file an application for extension of nonimmigrant stay on Form I-539 in accordance with the form instructions. The CW-2 status extension may not be approved until approval of the CW-1 extension petition. The filing fee is $300.
Q. How does someone obtain CW status?
A. Once the I-129CW petition is approved, the beneficiary and eligible family members may apply for CW-1, or CW-2 status. Since foreign nationals present in CNMI will not have given biometric information to the Federal government before, and thus not have had required security checks conducted, biometrics will be required. The fee to collect biometrics is $80. A fee waiver is available if applicants can show inability to pay for both the Form I-129CW and biometric fees.
Aliens who are abroad will need to apply for a CW-1 or CW-2 visa at a U.S. consulate. When applicants apply overseas, USCIS will not require biometrics, however biometrics may be required by the Department of State.
Q. Which groups can apply for the Transitional Worker Program?
A. The transitional worker program will be available to two groups of foreign workers: (1) those who are lawfully present in the CNMI and (2) those who are abroad.
Q. Can people with CW status travel outside the CNMI?
A. Once status is obtained, the CW-1 or CW-2 nonimmigrant may leave CNMI but they must have the appropriate visa to re-enter. If the CW-1 or CW-2 status is obtained in CNMI (not the Consular post abroad) the nonimmigrant will have the legal status, but this is not a visa valid for travel to and admission into CNMI. If the CW-1 or CW-2 nonimmigrant departs CNMI, he or she must obtain a visa from a U.S. embassy or consulate to return to CNMI, unless alternative arrangements have been specifically approved by the U.S. Department of Homeland Security.
Q. How does one obtain the visa for re-entry?
A. Someone who has obtained CW-1 or CW-2 status in CNMI (not at a Consular post abroad) who needs to leave CNMI for whatever reason will need to get a visa from the State Department to re-enter CNMI. Usually this is done at the U.S. Embassy or a U.S. Consulate via a locally managed appointment system. If, for example, someone with CW-1 status plans to visit family in the Philippines, he/she would need to make an appointment with the U.S. Embassy in Manila to get the CW visa while they are in the Philippines. They would need to travel with documents to show the State Department officer during their interview and be prepared to wait at least a few days for the visa to be issued. Each U.S. Embassy and Consulate abroad has a different appointment system. To learn more about the U.S. Embassy or Consulate you may need to visit, travelers should go to: http://www.usembassy.gov/. Visa wait times for each Consular post abroad are posted at: http://travel.state.gov/visa/temp/wait/tempvisitors_wait.php.
Q. Can people with CW status travel elsewhere within the United States?
A. No. The CW visa classification is valid only in CNMI and does not permit travel to any other part of the United States, including Guam. However, if someone with CW status qualifies for another kind of nonimmigrant or immigrant visa, or a visa waiver program, he or she may travel elsewhere in the United States and the CW status would not prevent that.
Q. How much does it cost to apply for this visa?
A. The fee for Form I-129CW will be $320, the same amount charged for the I-129. In addition, Public Law 110-229 mandates a “CNMI education funding fee” of $150 per beneficiary per year which is mandatory and cannot be waived. Lastly, there would be a fee of $80 to collect biometrics (fingerprints and photos) and run necessary background checks. This expense could be borne by the applicant or the employer.
Q. Are fee waivers available?
A. Normally there is no fee waiver in employment-based cases. However, due to unique circumstances in CNMI, the I-129CW fee may be waived in extraordinary situations where an employer can demonstrate an inability to pay the fee. However, given the inherent inconsistency between sponsoring an alien for work and being unable to pay the fee required for that sponsorship, the situations warranting a fee waiver are expected to be extremely limited. There is a fee waiver for the $80 biometrics fee if applicants can show an inability to pay.
Q. Can an employer petition for more than one worker on the same form?
A. Yes, with some restrictions, employers may file for multiple beneficiaries on the same I-129CW. If the employees are all working in the same occupational category, for the same time period and in the same location, the employer may name as many employees on the petition as he/she wants. Unnamed beneficiaries are not allowed under this program.
Q. When can employers begin filing for workers?
A. The interim final rule stipulates that employers may not file for a worker more than six months before the date the employer needs that employee’s services (i.e. if an employer needs a worker’s services on January 1, the employer may submit a petition for the worker no earlier than July 1). The rule states that petitions may be filed before November 28, 2009, but USCIS will not grant CW-1 status before that date.
Q. What forms are needed to apply for this visa?
A. Employers may file a petition for a transitional worker with USCIS using Form I-129CW, Petition for a Nonimmigrant Worker in CNMI. (This new form was modeled after the existing Form I-129.)
Q. How does the employer file the Form I-129CW Petition?
A. By mail to the USCIS California Service Center. Please follow the instructions on the form.
Q. What happens to CW-1 transitional workers at the end of the transition period?
A. The transition period ends on December 31, 2014. The CW classification will exist for the duration of the transition period. CNMI-Only Transitional Worker status will be granted initially for 1 year and is renewable throughout the transition period in 1-year increments. At the end of the transition period, the Transitional Worker Program will cease to exist and the transitional workers who held this status must change to another nonimmigrant or immigrant status under the INA if they wish to stay in CNMI lawfully. The U.S. Department of Labor may extend the availability of the CNMI Transitional Worker Program beyond 2014, but no decision on any extension has been made at this time.
Q. What occupational categories would be allowed?
A. Under the rule, the Transitional Worker program includes MOST occupational categories being used in CNMI now. Domestic household workers employed directly by private residents will not be eligible for CW-1 status. However, domestic workers employed through a “legitimate business” for placement in individual households could be eligible.
Q. Which CNMI employers are eligible to petition for transitional workers?
A. To be eligible to petition for a CW-1 nonimmigrant worker, an employer must: be engaged in legitimate business; consider all available United States workers for the positions being filled by the CW-1 worker; offer terms and conditions of employment which are consistent with the nature of the occupation, activity, and industry in CNMI; and comply with all Federal and Commonwealth requirements relating to employment, including nondiscrimination, occupational safety, and minimum wage requirements. Legitimate business means a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit, or is a governmental, charitable or other validly recognized nonprofit entity. The business must meet applicable legal requirements for doing business in CNMI. A business will not be considered legitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under Federal or CNMI law.
Q. Can domestic workers receive CW-1 transitional worker status under this program?
A. Yes, but they must be sponsored by an eligible employer doing business in CNMI as described above.
Q. What does a CNMI employer need to demonstrate in its petition for a transitional worker?
A. A petition must be accompanied by evidence demonstrating the petitioner meets the definition of eligible employer, and must attest that: qualified United States workers are not available to fill the position; the employer is doing business as defined in the rule; the employer is a legitimate business as defined in the rule; the worker has the qualifications for the position (including an occupational license, if required for the occupation); the worker, if present in CNMI, is lawfully present in CNMI; the position is not temporary or seasonal employment, and the petitioner does not reasonably believe it to qualify for any other nonimmigrant worker classification; and the position falls within the list of acceptable occupational categories
Q. How many transitional worker visas will be available?
A. For the first year, the numerical limit for CW-1 status will be based on CNMI government’s own estimate of the foreign worker population, which is 22,417. The CNRA requires that the number be reduced on an annual basis to zero by the end of the transition period. Therefore, after the first year, the numerical limit will drop, but that number has not yet been determined.
Q. What about spouses and dependents? Can they travel and work?
A. The law allows spouses and minor children of someone in CW-1 nonimmigrant status admission into CNMI as accompanying or following to join the principal CW worker. The rule would adopt the INA’s definition of “child” for immigration purposes (other than naturalization in section 101(b)) adding a requirement that the child be under 18 years of age since the statute refers to “minor children” rather than “children.” Employment is not authorized for spouses and children of CW-1 nonimmigrants.
Q. Can CW-1 nonimmigrants change status or adjust status?
A. The law allows workers in the CW classification to change to another nonimmigrant status or to adjust status to lawful permanent resident (get a green card) throughout the transition period if they are eligible. The rule allows an alien to be present in, or come to, CNMI for a temporary period as a CW-1 or CW-2 nonimmigrant and, at the same time, seek to become a lawful permanent resident of the United States, as long as the alien intends to depart voluntarily at the end of the alien’s authorized nonimmigrant stay. For purposes of qualifying for CW-1 or CW-2 classification, the alien is not required to maintain a residence abroad, and dual immigrant and nonimmigrant intent is allowed.
Q. I am a foreign worker in CNMI. Can I apply directly for CW status without my employer’s approval?
A. No, CW status is based upon an employer in CNMI needing your services. Your current or prospective employer must sponsor you by filing a Form I-129CW petition. After that petition is approved, you and your eligible family members can obtain CW status based on the approved petition.
Q. If I obtain CW status, will that lead to U.S. lawful permanent resident (“green card”) status?
A. No, not directly. However, as a CW nonimmigrant you are not barred from obtaining lawful permanent residence if otherwise eligible as a family- or employment-based immigrant.
Q. How long does a grant of CW-1 status last?
A. One year. A CW-1 nonimmigrant in good standing may obtain additional one-year extensions if his or her employer files a petition asking for the extension, subject to availability under the numerical cap.
Q. How long does a grant of CW-2 status for a derivative family member last?
A. The same length of stay as the CW-1 principal, except that a CW-2 child’s length of stay ends on his or her 18th birthday, if sooner.
Q. Can a CW-1 worker change jobs in CNMI and keep the CW-1 status?
A. Yes, but the new employer would have to file the Form I-129CW petition for the worker’s new position before the worker can be employed there. CW-1 transitional workers are only authorized to work for the employer that has petitioned for them.
Q. I am a CW nonimmigrant who obtained status in CNMI. I need to travel abroad and return on very short notice because of a sudden family emergency. Can I do that without a visa?
A. Normally a visa will be expected for the readmission of a CW nonimmigrant returning to CNMI. In emergency situations, however, it may be possible for DHS to give prior permission to travel and return without a visa. Please consult with the USCIS office in Saipan.
Q. As a CW nonimmigrant, may I travel to or from the CNMI using flight arrangements that transit through the Guam airport?
A. No. CW visas and status are authorized for travel to, and presence in CNMI only. You may not travel to any other U.S. place, even in brief transit, without an appropriate other visa or documentation authorizing that visit.
Q. How can I or my company submit comments on the rule?
A. USCIS encourages public comment on this rulemaking. Comments must be received by Nov. 25, 2009. Comments should be identified by DHS Docket No. USCIS-2008-0038 and submitted one of the following ways:
• Federal eRulemaking Portal: http://www.regulations.gov.
• E-mail: rfs.regs@dhs.gov. Include DHS Docket No. USCIS-2008-0038 in the subject line.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0038 on your correspondence.
– USCIS –
October 26, 2009
A CW transitional worker is an alien worker who is ineligible for another classification under the INA and who performs services or labor for an employer in the CNMI. The CNRA imposes a five-year transition period before the INA requirements become fully applicable in the CNMI. The new CW classification will be in effect for the duration of that transition period, unless extended by the Secretary of Labor. The rule also establishes employment authorization incident to CW status.The local CNMI labor system will continue until this program will go into effect at 12:01 a.m. on November 28, 2009 (CNMI time).
As of November 28, 2009, the beginning of the transition period and the implementation date for this regulation, we estimate that 17,583 foreign workers and 1,176 businesses in the CNMI will be subject to the rule. Based on the available data, we estimate that approximately 2,090 of these workers may qualify for a nonimmigrant work visa available under the INA, and at least 950 private domestic household and other ineligible workers will not be eligible for CW status, leaving 14,543 foreign workers eligible for CW status. In addition, we estimate that approximately 2,100 spouses and dependent children of foreign workers will apply for admission under a second CW status category.
The current number of out-of-status foreign workers is 1,000. The CNMI government estimates that 1,000 out-of-status foreign workers were present in the CNMI as of August 2008. The CNMI government’s established cap of 22,417 CNMI foreign work permits is sufficient to allow employers to bring all of these workers into lawful status prior to the beginning of the transition period.The regulations show four alternatives to the program and state that "alternative one" was the chosen alternative. It reads:
Only aliens lawfully present in the CNMI may qualify for CW status. An employer petitioner can name more than one worker or “beneficiary” on a single Form I-129CW petition if the beneficiaries will be working in the same eligible occupational category, for the same period of time, and in the same location. CW status is valid for a period of 1 year.Transitional workers can change or adjust their categories under the rules, and qualifications for CW-1 permits are liberal:
DHS envisions scenarios wherein certain professionals may not initially be eligible for H-1B status due to Federal licensing or other requirements, and believes that it is an appropriate use of the transitional worker program to allow such aliens time during the transition period to seek to satisfy such requirements. This rule does not exempt such aliens in occupations requiring licensure from complying with existing local licensure requirements.Permits are obtained from the USCIS Office.
The transitional worker program implemented under this rule is intended to provide for an orderly transition for those workers from the CNMI permit system to the U.S. federal immigration system under the INA, and to mitigate potential harm to the CNMI economy as employers adjust their hiring practices and as foreign workers obtain U.S. immigrant or nonimmigrant status.On page 22, the rules say this about changing status:
Section 702(a) of the CNRA further states that transitional workers may apply to USCIS during the transition period for a change of status to another nonimmigrant classification or to adjust status to an immigrant classification in accordance with the INA.
Change or Adjustment of Status.Legitimate businesses and categories of businesses:
Section 702(a) of the CNRA allows workers in the CW classification to change to another nonimmigrant status or to adjust to lawful permanent resident status throughout the transition period, if eligible. Section 6(d)(1) of Public Law 94-241, as added by sec. 702(a) of Public Law 110-229. The rule provides that an alien may legitimately be present in, or come to, the CNMI for a temporary period as a CW-1 or CW-2 nonimmigrant and, at the same time, lawfully seek to become a permanent resident of the United States provided the alien intends to depart voluntarily at the end of the alien’s authorized nonimmigrant stay. See 8 CFR 214.2(w)(19). For purposes of qualifying for CW-1 or CW-2 classification, the alien is not required to maintain a residence abroad, and dual immigrant and nonimmigrant intent is allowed. See 8 CFR 214.2(w)(19).
As required under section 702(a) of the CNRA, DHS will not consider a business legitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under Federal or local CNMI law. Section 6(d)(5)(A) of Public Law 94-241, as added by sec. 702(a) of Public Law 110-229. The CNRA provides that the determination of whether a business is legitimate will be made by the Secretary of Homeland Security in the Secretary’s sole discretion.
Accordingly, this rule defines legitimate business to mean “a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit, or is a governmental, charitable or other validly recognized nonprofit entity.” See 8 CFR 214.2(w)(1)(v). The business must meet applicable legal requirements for doing business in the CNMI and will not be considered legitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under Federal or CNMI law.
In addition to requiring eligible employers to be engaged in legitimate business, this rule further establishes that eligible employers must consider all available U.S. workers for positions being filled by CW-1 workers; offer terms and conditions of employment which are consistent with the nature of the occupation, activity, and industry in the CNMI; and comply with all Federal and CNMI requirements relating to employment; including, but not limited to, nondiscrimination, occupational safety, and minimum wage requirements.
"Once the Form I-129CW petition is approved, the beneficiary will receive CW-1 status, and eligible family members may apply for CW-2 status for the spouse and dependents, as appropriate.Biometrics
Aliens present in the CNMI will not have previously supplied biometric information to the Federal government; therefore, because the federal government will not have conducted the attendant security checks on those aliens, USCIS will require aliens in the CNMI to provide biometrics. The applicable biometrics fee is $80.
The rule does not exclude any specific type of employment from the occupational
categories permissible for CW-1 workers. However, there are three occupational categories – dancing, domestic workers, and hospitality workers – about which DHS has particular concern.
DHS notes that women seeking employment as exotic dancers in the CNMI have been particularly prone to sexual exploitation and other abuse. See, e.g., Senate Hearing 110-50, Conditions in the Commonwealth of the Northern Mariana Islands (Feb. 8, 2007) (testimony of Lauri Bennett Ogumoro and Sister Mary Stella Mangona). In a discussion between DHS officials and advocates for exploited women in Saipan in July 2008, the advocates identified so called “cultural dancing” as a common front occupation used to import women into the CNMI for the purposes of prostitution, in addition to the category of domestic work.Additionally, waitressing and other club and restaurant hospitality work also are known paths for exploitation and abuse. See, e.g., United States v. Liu, 538 F.3d 1078 (9th Cir. 2008). DHS is considering excluding some or all of these occupations from eligibility for CW status. DHS also is concerned about the economic effects of blanket exclusions of all dancers, domestic workers or hospitality service workers.
The intended benefits of the rule include improvements in national and homeland security and protection of human rights. First, implementation of the rule assures that the admission of nonimmigrants to the CNMI is consistent with existing Federal laws and practices intended to secure and control the borders of the United States and its territories. Second, the rule would help protect foreign workers in the CNMI from abuses such as human trafficking and other illicit activity.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-2008-0038 by one of the following methods:
• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: You may submit comments directly to USCIS by e-mail at rfs.regs@dhs.gov. Include DHS Docket No. USCIS-2008-0038 in the subject line of the message.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0038 on your correspondence. This mailing address may be used for paper, disk, or CD-ROM submissions.
• Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210. Contact Telephone Number is (202) 272 8377.
