After months of waiting, the final rule for the Commonwealth of the Northern Mariana Islands Transitional Worker Classification was finally released today for inspection.
Foreign workers should remember that DHS has no authority under the CNRA (U.S. P.L. 110-229) to establish an immigration classification. Only the U.S. Congress can enact laws to upgrade the foreign workers to permanent residency status and a pathway to citizenship. That is why it is so important to have Congress introduce legislation that would provide all legal, long-term foreign workers with an immigration status under the existing Immigration and Nationality Act (INA). H.R. 1466 proposes to grant a new "CNMI-only status" to only one-quarter or 4,000 of the estimated 16,000 legal, long-term foreign workers, excluding 12,000 because they have no U.S. citizen immediate relative family member.
The document states: "The CW classification is intended to provide for an orderly transition from the CNMI permit system to the U.S. Federal immigration system under the immigration laws of the United States, including the Immigration and Nationality Act (INA). This final rule implements the CW classification and establishes that 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 during the five-year transition period. CNMI employers may now petition for such workers. The rule also establishes employment authorization incident to CW status."
The rules are basically the same ones that were published in October 2009, with some more discretion allowed for USCIS. Most changes are clarifications of terms.
The original rules were delayed as a result of a lawsuit filed by Governor Benigno Fitial in an attempt to block federalization of the CNMI's immigration laws, as noted in the text of the final rule: "DHS has complied with the injunction by declining to accept any petition for CW classification under the interim rule or otherwise to implement the interim rule."
Highlights of the changes from the interim to the final rule summarized in the final rule are:
- The final rule clarifies the authority and process by which applicants in the CNMI can be granted CW-1 or CW-2 status in the CNMI without having to travel abroad to obtain a nonimmigrant visa.
- The final rule describes how beneficiaries of approved employer petitions and their dependents (spouses and minor children) may obtain CW status. Principal beneficiaries and their dependents outside the CNMI will be instructed to apply for a visa. For principal beneficiaries within the CNMI, the petition itself (including the biometrics provided under new 8 CFR 214.2(w)(15)) serves as the application for CW-1 status.
- The interim rule provided that an alien with CW-1 or CW-2 status who enters or attempts to enter, travels or attempts to travel to any other part of the United States without the appropriate visa or visa waiver, or who violates the conditions of nonimmigrant stay applicable to any such authorized status in any other part of the United States, will be deemed to have violated CW-1 or CW-2 status.
- The interim final rule provided for attestations by petitioning employers and biometric collection from beneficiaries in the CNMI. This final rule strengthens the terms of the attestation that the employer must sign with respect to its compliance with the required terms and conditions of employment and compliance with applicable laws. It requires an employer to attest that it is an eligible employer and will continue to comply with the requirements for an eligible employer until such time as the employer no longer employs the worker.
- The interim final rule provided for need-based waivers of petition filing fees. The final rule also provides for a need-based waiver of the filing fee for dependent family members seeking CW-2 status in the CNMI. See new 8 CFR 103.7(c)(3)(iii). The fee provision is also technically revised to conform the rule to 8 CFR 103.7, as reorganized in the DHS final rule, U.S. Citizenship and Immigration Services Fee Schedule, 75 FR 58961 (Sept. 24, 2010).
- Consistent with the CNRA, the interim final rule provided for a maximum number of CW-1 visas of 22,417 for the time period between the rule’s effective date and September 30, 2010. The numerical limitation for that period of time is now moot, so the limitation is revised to extend the 22,417 number to fiscal year 2011 (beginning October 1, 2010). The final rule reduces the number of CW visas by one (to 22,416) for the subsequent fiscal year, fiscal year 2012 beginning October 1, 2011. Unused numbers will not carry over from one fiscal year to the next. See new 8 CFR 214.2(w)(1)(viii).
- The final rule clarifies the impact of a pending petition or application by providing that a foreign national with CW-1 status may under certain circumstances work for a prospective new employer after the prospective new employer files a Form I-129CW petition on the employee’s behalf. See new 8 CFR 214.2(w)(7)(iii) and 274a.12(b)(23). The final rule also provides that a lawfully present, work authorized and employed beneficiary of a CW-1 petition filed on or before November 27, 2011 applying for a grant of status in the CNMI may lawfully continue the employment in the CNMI until a decision is made on the petition. See new 8 CFR 274a.12(b)(23). The final rule makes a conforming clarification to the definition of “lawfully present in the CNMI” to ensure that aliens remain eligible for CW status after November 27, 2011 based upon an application for CW status filed before that date. See new 8 CFR 214.2(w)(1)(v)(A).
- The final rule clarifies petition validity and admission periods. A petition is valid for admission to the CNMI in CW status during its validity period, and up to ten days before the start of the validity period. See new 8 CFR 214.2(w)(16). Admission to the CNMI and authorized employment in CW status is limited to the petition validity period, not to exceed one year. See new 8 CFR 214.2(w)(13). CW status expires ten days after the end of the petition’s validity period, when the alien violates his or her status, or at the end of the transitional worker program, whichever is earlier. The transitional worker program will terminate either upon the end of the transition period or, if the transitional worker provisions of the CNRA are extended by the Secretary of Labor pursuant to 48 U.S.C. 1806(d)(5), at the end of that extended period, whichever is later. See new 8 CFR 214.2(w)(23)
- The final rule clarifies that a biometric services fee may be collected for each beneficiary of a CW-1 petition and or the spouse or children applying for extension or change of status, in addition to the biometrics fee paid at the time of the initial request. The final rule also specifies that a biometric services fee may be required for each beneficiary for which CW-1 status is being requested and for each CW-2 on the application. Further, a biometrics services fee will be required in order to cover the costs of conducting the necessary background checks and for identity verification even when the biometrics of the applicant of beneficiary is stored and reused and not collected again in connection with the new request. See new 8 CFR 214.2(w)(15). This change is consistent with biometrics collection policies in other programs managed by USCIS and does not represent a substantive change.
- The final rule makes a number of other minor clarifying and updating changes, such as removing references to petitions filed before the transition program effective date since no such petitions could have been filed, clarifying the definition of “transition period” to extend the time period of the CW program to conform to any extension by the U.S. Secretary of Labor, and updating the definition of “lawfully present in the CNMI.”
It is extremely important that the U.S. Congress move immediately to grant status to ALL 16,000 LEGAL, long-term, foreign resident workers. Not for only 4,000 who have a U.S. relative spouse or child, but for ALL 16,000 LEGAL, long-term foreign workers. The final rule states:
- The interim final rule proposed that denied petitions may be appealed to the USCIS Administrative Appeals Office. See new 8 CFR 214.2 (w)(21). The final rule adds the phrase “or any successor body” to the provision describing where a denial may be appealed.
After November 27, 2011, aliens previously covered by the grandfather provision who are inadmissible under section 212(a)(6)(A) of the INA (8 U.S.C. 1182(a)(6)(A)) may be removed regardless of whether they are the beneficiary of a pending petition, and all other INA grounds of removal remain applicable.The USCIS will be sending an outreach team to the CNMI to educate employees and employers. I urge all foreign workers to attend the meetings. The team will be made up of USCIS personnel from Washington DC, Hawaii, and California, including USCIS Regional Media Manager Marie Therese Sebrechts, District Director David Gulick; an officer from the California Service Center division that handles CNMI applications; and some staff members who are familiar with the CNMI regulations. The Saipan Chamber of Commerce is hosting District Director David Gulick as a guest speaker September 7, 2011 at their general meeting to be held at the Hyatt Hotel at 12:00 pm. (There is a fee to attend -see this article.)
Read the CNMI-Only Guest Worker Rule: