BREAKING NEWS: USCIS RELEASES FINAL CNMI-ONLY GUEST WORKER RULE FOR INSPECTION

September, 6, 2011

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.” 
  • 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.  
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:
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:

32 comments:

Anonymous said...

Thank you for posting this! Please let us know where the free forums will be.

Anonymous said...

Everyone needs a job to stay in the CNMI after November 28, 2011. Does this mean OCWs with US citizen immediate relatives and OCWS owed wages?

Anonymous said...

Being “owed wages” is not a basis for CW status.

With the calamitous decline in the CNMI economy caused by anticipation of and implementation of federalization, the number of Contract Workers now needed is nowhere close to 16,000.

It might not even be 4,000.

Congress would be well advised to see how many CW visas are actually applied for and granted before determining how many special political immigrant status adjustments the CNMI economy could afford.

Kilili seems to be on the mark, accellerating status for certain Contract Workers who otherwise would get it in a few years anyway. This minimizes further harm to the CNMI economy caused by an untenably excessive CW population.

Wendy Doromal said...

Thank you for your comment anonymous 7:18

Let me respond:

The U.S. failed the CNMI foreign workers over and over and over. That includes the failure to prosecute criminal employers who routinely and publicly stole wages from them. It may not be a basis for any status, but the U.S. has an obligation to ensure the protection and rights of EVERY person LEGALLY on U.S. soil. This includes their right to fair wages.

Do YOU know the number of workers needed? Please tell us if so. If the number of needed workers is more than the LEGAL, long-term foreign resident workers that are present and needed in the CNMI, then all (not some) legal, long-term foreign resident workers deserve to be given green cards so that they can move to another place in the U.S. where their valuable skills are needed. (And yes, there are places.) Foreign workers that work to build entire communities and live in one locality LEGALLY for years and decades are people and community members. They are not disposable labor units.

You said, “Kilili seems to be on the mark, accelerating status for certain Contract Workers who otherwise would get it in a few years anyway.” Yes, they will get it anyway so they are NOT the ones who need protecting the most. The ones who most need protection the most are the ones who are not on a path for permanent residency! These are the ones thrown under the bus!

Kilili is not “on the mark.” A discriminatory bill that excludes 12,000 legal, long-term workers is shameful. It goes against the very principles upon which our country was founded. It does not conform with the INA. It goes against the intent of P.L. 110-229. It is not fair to those workers without a U.S. citizen spouse or child who have worked LONGER in the CNMI than many who qualify based on marriage and procreation. I hope another just bill can be introduced!

I think people’s lives and their future should take precedent over political or the economic concerns. What do those who support H.R. 1466 have to say to the workers who lived and worked in the CNMI more years than the ones who have a U.S. citizen immediate relative and worked there five years? “Too bad you didn’t get married or have a child while in the CNMI. Sorry you’re gay. Sorry you’re single. Sorry you married another foreign worker and never had children. Sorry you worked here decades. Now leave.”

Anonymous said...

Wendy your right. May be there is another congressman to out in a good bill now.

Anonymous said...

Wendy, you just failed your own guest workers. They are also criminals in the CNMI who have violated local and federal laws, they also commit criminal acts amongst themselves, they have also molested girls, abuse their spouse, etc. So, please don't just point the finger on one side. Besides, its the truth and you know it!

Proud OCW said...

Noni 8:41 Wendy didn't fail anyone! She never stops fighting for us. Check out the papers. Most of the criminals are the locals beating wives and kids, selling ice and raping little girls. She isn't for criminals to get status any way.

Anonymous said...

Anonymous 7:18,

You seem to be proceeding from the assumption that unemployed guest workers are an overall drain on the economy. This is an overly simplistic assumption, and most likely an incorrect one. The mass departure of 12,000 people from an island already in economic turmoil will only worsen the situation. Despite the commonly held beliefs, unemployed and underemployed guest workers rely relatively little on CNMI government handouts and local social services. These workers still contribute to the economy by paying for their basic expenses of survival. What's more, they comprise almost the entire private sector economy. A departure of human capital on this scale would likely be the death knell of the CNMI economy.

Anonymous said...

Wendy I thought you liked Kilili!

Wendy Doromal said...

Anonymous 9:12

Disagreeing with Kilili doesn't mean I don't like him! In this case, I disagree with the bill.

Anonymous said...

9:04 SPOT ON!

Anonymous said...

Pretty much the same as the rule published 2 years ago. Wendy, any news on the Fitial lawsuit since this is out?

Anonymous said...

The law being discussed pertains to employed contract workers status and transitioning them out. From a national standpoint of a 9.1% unemployment rate amongst US citizens in July, the law makes sense and justified. Its citizens must come first when it comes to filling jobs.

Getting US citizens to come to Saipan for work seems to be a matter of supply and demand. Once the excess supply of workers are gone, the companies will be forced to raise wages to attract US citizen to work for them. Only then can the full wage potential be realized here in the CNMI.

Anonymous said...

A guest worker is a person who works temporarily. A resident worker is someone renewed enough to be in the NMI half their life. What U.S. citizen will go to the NMI in its current state? Corrupt officials leeching off the feds, falling apart buildings and racism.

TAGLISH said...

Anon 10:41AM

"Getting US citizens to come to Saipan for work seems to be a matter of supply and demand."

I'm working for a not-for-profit org. We hire US citizens only, I am the only CW here handling the finances and documents. We (the company) give competitive salary perhaps the highest here in this field. We give free housing, health and life insurance, contract signing-bonus, repatriation benefits etc.etc. We're trying hard to keep the US standard in every aspect. Mind you, EVERY year we face the hardship of recruitment. Maybe, just maybe you could help us figure this out. Looking forward to that. Goodluck!

Wendy Doromal said...

Anonymous 10:16

The lawsuit against PL 110-229? Nothing new has been filed since May 2011. The SS lawsuit was dismissed, the DOI lawsuit, has no new filings.

What happened to the ARRA contract that violated ethics and procurement law? Will this be just another case of corruption excused?

Anonymous said...

Only improved status can save long-term foreign workers, who should unite as one to push US congress to make a right bill for long-term disfranchised workers in a remote area of modern society. Only fighting can make hope real. Waiting can make you die soon because of power corruption.

Anonymous said...

To TAGLISH:

If you are only doing what other US companies are already doing, trying to keep US standard as you put it, what would make someone want to move and work for your company? Isn't it easier to just stay where you are? You need add a motivating factor above and beyond what others are offering. Answer these and it should help you with your recruiting.

Anonymous said...

I hope all Foreign workers will unite and call for a day of enlightenment, a day for the government and congress to see the real feelings of workers. we should call for a day off, all should fight to be given a just status. we should take away our fear, our fear to loose our family,our earnings,our work, we should take stand and help those who stand and fight for us.....CALL FOR A DAY OFF.

Anonymous said...

corrupted federal official are improved to discriminate/abuse alien workers in the CNMI usa soil,its so shameful for all american who say human rights/discrimination/abuse/violation/justice, words in their country.how can i trust american ? where is the human rights in USA its word of mouth to show another nation.thank you for your help to give pain to all aliens in the CNMI we are so upset with your justice less regulation.i dont need your greencard/status keep it with you i dont want to stay this kind of abusing country.may lord bless your country.

Anonymous said...

USCIS releases final CNMI requirements in the USA.
They are to be obeyed.
A man builds a beautiful house
and invites foreign vvorkers and give them jobs...their money they
send back home to their familys.
because they are very poor.
Soon the Ovvner says, my family
is large and they need the jobs
I have given to the foreigner
but the vvorkers say
no vve are not leaving this
is our house, vve like it here...
Then the ovvner of the house says
"this is my house", but the foreigner says
if I leave,
vvho vvill take care if it....the
ovvner finally says, My family vvill I promise you because this
is their house...

Anonymous said...

for 4:23 No logic here. There is no home or family to go back to since the CNMI is our home. If we leave we will leave with dignity knowing we can offer our skills to a place that wants and deserves us.

Anonymous said...

When do employers need to get the CW status for their employees? Is it before Nov. 28, 2011?

Anonymous said...

Correction and clarification needed:

1. I understand that we can now start processing the "CW status for our employees (on or before Nov. 27, 2011).
2. The validity of the permit is only for one year.

Question: Before the CW1status expires (1 yr validity), can it be renewed by the employer? If yes, how many times can an employer renew his/her employee? Is it up to 3 years only then the employee needs to exit for a year?

Wendy Doromal said...

Anonymous 10:12

I believe the answer is yes to both questions. I have to read (not skim) this to figure out the exit question. I am sure these will be answered by USCIS.

Anonymous said...

Is it good to write down questions about these new rules in this blog and good if there are some experts to response the right answer. I suggest that there should be one staff from USCIS that could be invited in this blog to response questions posted, that I believed won't be that too many and frequent. I understand that Wendy has no obligation to answer, she's just a messenger.

Kelvin Rodeo said...

Anonymous 2:30 PM:

You hit the nail right on the head. That is something that I have been secretly suggesting to many foreign workers on island for the past few months, but I have yet to hear of anything being organized. You all need to show the CNMI just how important you all are; that you aren't just worthless, easily replaceable labor units. You need to unite the entire foreign worker population on island and have everyone skip work one day and gather at the AMP Visitor's Center (fitting rally point, in my opinion), then when everyone is there, begin your protest march all the way up to Capital Hill (think Gandhi's Salt March here). THIS is what you all need to do in order to get something done to help you all out. Considering the large amount of foreign workers that comprise the private sector on Saipan, this would put a HUGE dent in the system, and the CNMI will see just how really important you all are. Everyone thinks that contract workers can all just go back home and be easily replaced, eh? Go and prove them wrong! Remember that YOU are the majority on island. DO NOT FEAR. Fear is your worst enemy. Succumb to fear and you WILL NOT get anything done for your cause. YOU CAN DO THIS.

Wendy Doromal said...

Hi Kelvin

I also have suggested this and as recently as yesterday have been met with the response that because employers do not want to pay the U.S. fees for the CW permit, the workers are even more reluctant to stand up for their rights. The employers have ridiculous power over the foreign employees because they are not FREE, have no RIGHTS and have no prospect for any because the U.S. Congress has FAILED to act on the DOI recommendations.

Kelvin Rodeo said...

Wendy, if that is the case, then it's just going to be a never-ending cycle and nothing is ever going to happen. They NEED to overcome the fear of retaliation from their employers. If all of them come together and do this, they WILL succeed! What, are their employers seriously going to fire 12,000 people? Where on earth will they get the qualified people to replace 12,000 people on island? They don't realize but need to real quick, that the CWs are the ones that have the power, if they just knew how to use it correctly they could shift things in their favor. But it has to be done on a work day and during working hours so that the CNMI will FEEL the loss of a very much needed workforce. They need to send a strong message to the people of the CNMI that they are PEOPLE, they are NEEDED, and they deserve the same RIGHTS afforded to every other long term resident in the CNMI.

Wendy Doromal said...

Kelvin
I totally agree with you, but we can't make people do something that they refuse to do. It's like banging your head against the wall. The trouble with a strike is that you have to have the majority for it to make an impact and they just aren't behind it. It would send a powerful message.

Anonymous said...

@wendy: how can you help them if they are not even helping themselves? OCW will be the one to benefit in case congress will hear the sentiments you brought in, not you. So it is time for them to at least prove to you that they are worth fighting for. they have to stand up with you and fight with you on this journey....All they need is someone who will organized them a week or two i think is enough to spread the word.

anniebee said...

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This is a public in protest. Please join the youth with your friends and family to this event at multipurpose, september 28, 2011 at 5:30 pm