Commonwealth of the Northern Mariana Islands Transitional Worker Classification
Federal RegisterSep 7, 2011
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 214, 274a, and 299
[CIS No. 2459-08; DHS Docket No. USCIS-2008-0038]
RIN 1615-AB76
Commonwealth of the Northern Mariana Islands Transitional Worker Classification
AGENCY:
U.S. Citizenship and Immigration Services, DHS.
ACTION:
Final rule.
SUMMARY:
On October 27, 2009, the Department of Homeland Security published an interim rule creating a new, temporary, Commonwealth of the Northern Mariana Islands (CNMI)-only transitional worker classification (CW classification) in accordance with title VII of the Consolidated Natural Resources Act of 2008 (CNRA). 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.
DATES:
This final rule is effective on October 7, 2011.
FOR FURTHER INFORMATION CONTACT:
Paola Rodriguez Hale, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529-2060, telephone (202) 272-1470.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Interim Final Rule
III. Final Rule
IV. Public Comments Received on the Interim Final Rule
V. Other Changes
VI. Regulatory Analyses
I. Background
The Commonwealth of the Northern Mariana Islands (CNMI or Commonwealth) is a U.S. territory located in the Western Pacific that has been subject to most U.S. laws for many years. Before November 2009, the CNMI administered its own immigration system under the terms of the 1976 Covenant with the United States.
See
A Joint Resolution to Approve the Covenant To Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (Covenant Act), Public Law 94-241, sec. 1, 90 Stat. 263, 48 U.S.C. 1801 note (1976). On May 8, 2008, President Bush signed into law the Consolidated Natural Resources Act of 2008 (CNRA).
See
Public Law 110-229, 122 Stat. 754, 853 (2008). Title VII of the CNRA extends U.S. immigration laws to the CNMI.
Id.
The stated purpose of the CNRA is to ensure effective border control procedures, to properly address national security and homeland security concerns by extending U.S. immigration law to the CNMI (phasing-out the CNMI's nonresident contract worker program while minimizing to the greatest extent practicable the potential adverse economic and fiscal effects of that phase-out), to maximize the CNMI's potential for future economic and business growth, and to assure worker protections from the potential for abuse and exploitation.
See
sec. 701 of the CNRA, 48 U.S.C.A. 1806 note.
Section 702 of the CNRA stated that U.S. immigration laws would apply to the CNMI starting approximately one year after the date of enactment, subject to certain transition provisions unique to the CNMI.
See
48 U.S.C. 1806(a). On March 31, 2009, the Secretary of Homeland Security postponed the effective date of the transition program from June 1, 2009 (the first day of the first full month commencing one year from the date of enactment of the CNRA) to November 28, 2009, using her discretion provided by the CNRA.
1
The transition period concludes on December 31, 2014.
See
48 U.S.C. 1806(a)(2).
1
See
DHS Press Release, “DHS Delays the Transition to Full Application of U.S. Immigration Laws in the Commonwealth of the Northern Mariana Islands” (Mar. 31, 2009),
available at http://www.dhs.gov/ynews/releases/pr_1238533954343.shtm.
Since 1978, the CNMI has admitted a substantial number of foreign workers through an immigration system that provides a permit program for foreigners entering the CNMI, such as visitors, investors, and workers. Foreign workers under this program constitute a majority of the CNMI labor force. Such workers outnumber U.S. citizens and other local residents in most industries central to the CNMI's economy.
2
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.
See
48 U.S.C. 1806(d).
2
See
GAO, Commonwealth of the Northern Mariana Islands: Pending Legislation Would Apply U.S. Immigration Law to the CNMI with a Transition Period, GAO-08-466 (Mar. 18, 2008); GAO, U.S. Insular Areas: Economic, Fiscal, and Accountability Challenges. GAO-07-119 (Dec. 12, 2006); GAO, Commonwealth of the Northern Mariana Islands: Serious Economic, Fiscal and Accountability Challenges, GAO-07-746T (Apr. 19, 2007).
The CNRA contains several CNMI-specific provisions affecting foreign workers during the transition period. Section 702(a) of the CNRA mandates that:
• During the transition period, the Secretary of Homeland Security must “establish, administer, and enforce a system for allocating and determining the number, terms, and conditions of permits
3
to be issued to prospective employers” for the transitional workers.
3
The CNRA refers to a system of permits. Note that we have retained this language when referencing the statute. In this context, however, the use of the term “permit” is synonymous with CW status, and the latter term is used more extensively in this discussion.
• Foreign workers may qualify for the transitional worker classification if not otherwise eligible for admission under the INA.
• Transitional workers may apply to USCIS during the transition period for a change of status to another nonimmigrant classification or to adjust status to that of a lawful permanent resident in accordance with the INA.
• The transitional worker program will terminate at the end of the transition period unless the program is extended by the U.S. Secretary of Labor. Transitional workers must then adjust or change status to an immigrant or another nonimmigrant status under the INA if they want to remain legally in the CNMI. Otherwise, such transitional workers must depart the CNMI or they will become subject to removal.
See
48 U.S.C. 1806(d).
II. Interim Final Rule
In accordance with the CNRA, on October 27, 2009, DHS published an interim rule amending regulations at 8 CFR 214.2(w) to create a new CNMI-only transitional worker classification (CW classification) intended to be effective for the duration of the transition period.
See
74 FR 55094. DHS provided a 30-day comment period in the interim rule, which ended on November 27, 2009.
Id.
The interim rule
was to become effective on November 27, 2009.
Id.
On November 25, 2009, the U.S. District Court for the District of Columbia enjoined implementation of the interim rule.
4
See CNMI
v.
United States,
670 F. Supp. 2d 65 (D.D.C. 2009). On December 9, 2009, DHS published a notice in the
Federal Register
reopening and extending the public comment period for an additional 30 days.
See
74 FR 64997. The reopened comment period ended on January 8, 2010.
Id.
The comments received during both comment periods were considered and are discussed below.
4
On September 12, 2008, the CNMI government filed a lawsuit challenging the legality of certain provisions of the CNRA and a motion requesting that those provisions be enjoined. On November 2, 2009, the CNMI government filed an amended complaint, alleging violations of the Administrative Procedure Act, which generally provide for notice and public comment before new rules can go into effect, and seeking a preliminary injunction with regard to the CNMI-only transitional worker classification (CW classification) interim final rule. On November 25, 2009, the court issued several rulings in that lawsuit. First, the court agreed with the United States that the provisions of the CNRA extending U.S. immigration law to the CNMI beginning on November 28, 2009 do not violate the Covenant between the United States and the CNMI or the U.S. Constitution. The court dismissed the two counts of the CNMI's complaint alleging these violations.
CNMI
v.
United States,
670 F. Supp. 2d 65 (D.D.C. 2009). The transition to U.S. immigration law took place on November 28, 2009 as scheduled. The court entered the requested preliminary injunction and enjoined the CNMI-only transitional worker interim final rule.
Id.
On June 21, 2010, the district court entered a minute order staying proceedings pending the promulgation of the CNMI-only transitional worker final rule.
The interim rule set forth the requirements and procedures for nonimmigrant status within the transitional worker classification. Specifically, the interim rule included provisions to:
• Classify transitional workers using an admission code of CW-1 for principal transitional workers and CW-2 for dependents;
• Allow aliens who were previously admitted to the CNMI under the CNMI nonresident worker permit programs to be granted CW status by USCIS;
• Allow workers, who would not be eligible for any other lawful status under the INA, to enter or remain in the CNMI as transitional workers during the transition period; and
• Establish eligibility criteria, limitations and parameters for the CW-1 nonimmigrant program as required by or consistent with an interpretation of the applicable provisions of section 702(a) of the CNRA, and prescribe procedural requirements for petitioners.
See
74 FR 55094.
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. The interim rule has been incorporated into the Code of Federal Regulations.
See
8 CFR 214.2(w).
III. Final Rule
This final rule provides the requirements to obtain status as a transitional worker in the CNMI. The final rule adopts most of the changes set forth in the interim rule. The rationale for the interim rule and the reasoning provided in the preamble to the interim rule remain valid with respect to these regulatory amendments, and DHS adopts such reasoning in support of the promulgation of this final rule.
In response to the public comments received on the interim final rule, DHS has modified some provisions for the final rule. These changes are explained in detail in the summary of comments and responses and summarized below:
1. 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. Specifically, it clarifies that DHS may grant a section 212(d)(3)(A)(ii) waiver to an alien who is physically present in the CNMI and approved for an initial grant of CW-1 transitional worker status or CW-2 dependent status in the CNMI. Such aliens will be inadmissible under section 212(a)(7)(B)(i)(II) of the INA for lack of a CW-1 or CW-2 transitional worker visa issued by the U.S. Department of State (DOS) and also may (unless changing to CW-1 status from another nonimmigrant status under the INA) be aliens present in the United States without admission or parole and thus inadmissible under section 212(a)(6)(A)(i) of the INA. This final rule permits a waiver of those two grounds of inadmissibility for aliens lawfully present in the CNMI as defined by new 8 CFR 214.2(w)(1)(v) with appropriate documentation. DHS will determine, on a case-by-case basis, whether an alien is eligible for the waiver. The alien will not have to file a specific form or fee in order to request a waiver of these two grounds of inadmissibility.
See
new 8 CFR 214.2(w)(24).
2. 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. Dependents present in the CNMI may apply for CW-2 dependent status on Form I-539 (or such alternative form as USCIS may designate) in accordance with the form instructions. CW-2 status may not be approved until approval of the CW-1 petition. A spouse or child applying for CW-2 status on Form I-539 (or such alternative form as USCIS may designate) may apply for a waiver of the filing fee based upon inability to pay as provided by 8 CFR 103.7(c).
See
new 8 CFR 214.2(w)(14).
3. 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. This final rule retains the travel restriction but provides a limited exception. Philippine nationals who hold CW status or intend to apply for admission to the CNMI in CW status may travel, if otherwise permissible, between the CNMI and the Philippines through Guam so long as the travel is on a direct Guam transit itinerary. Such direct Guam transit will not be considered a violation of the conditions of the Philippine national's CW status.
See
new 8 CFR 214.2(w)(22)(iii).
4. 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.
See
new 8 CFR 214.2(w)(6)(ii)(D). The final rule is also more specific as to the information that may be required from beneficiaries regarding immigration status and the need to pay a biometrics fee with each application (unless the beneficiary is under 14 years of age, or is age 79 or older).
See
new 8 CFR 214.2(w)(6)(ii) and (15).
5. 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).
6. 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).
7. 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).
8. 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, in the case of a status violation caused solely by termination of employment, 30 days after the date of termination if a new employer files a nonfrivolous petition within that 30-day period), or at the end of the transitional worker program, whichever is earlier.
See
new 8 CFR 214.2(w)(7)(v) and (w)(23). 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).
9. 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.
10. 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.”
See, e.g.,
new 8 CFR 214.2(w)(1)(v) and (xi).
11. 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.
IV. Public Comments Received on the Interim Final Rule
During the initial and extended comment periods, DHS received 146 comments from a broad spectrum of individuals and organizations, including the CNMI Governor's Office, the Saipan Chamber of Commerce, a former Senator of the CNMI, and other interested organizations and individuals. DHS considered the comments received and all other material contained in the docket in preparing this final rule. This final rule does not address comments that were beyond the scope of the interim final rule, including those seeking changes to United States statutes, changes to regulations or petitions (outside the scope of the interim rule), or changes to the procedures of other DHS components or agencies. The final rule also does not address comments on the CNMI's government functions. All comments and other docket material are available for viewing at the Federal Docket Management System (FDMS) at
http://www.regulations.gov,
docket number USCIS-2008-0038.
A. Summary of Comments
Of the 146 comments received, four comments supported the provisions in the rule as a whole and welcomed the efforts of DHS to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of federalization and to maximize the Commonwealth's potential for future economic and business growth.
Most commenters expressed concerns over specific provisions in the interim final rule, such as: The transitional worker eligibility requirements; the exclusion of certain occupational categories; the transitional worker classification's allocation system; the petitioning requirements; the ability to acquire transitional worker status in the CNMI without a visa; the requirement to obtain a visa to re-enter the CNMI; and the length of the transition period. Several commenters suggested limiting the transitional worker classification to foreign workers already in the CNMI. Some opposed the blanket exclusion of certain occupational categories and stated that any exclusion would negatively impact the CNMI economy. Other commenters stated that DHS did not meet the requirement to establish and enforce a transitional worker permit system that provides for the allocation and reduction of workers. Many opposed the petitioning requirement and fees by suggesting the automatic conversion of all CNMI permits into transitional worker status. Others opposed the travel restrictions on the transitional worker classification and the visa requirement to re-enter the CNMI. Some suggested that DHS permit travel in the CW status, on the CNMI permit, or issue a waiver of the visa requirement.
B. General Comments
The comments received and DHS responses are organized by subject area and addressed below.
Sixty-one commenters expressed concern, supported, or offered general suggestions regarding the transitional worker rule.
1. System of Permits Versus System of Status
Two commenters stated that the CNRA did not authorize DHS to create a new status for workers. They argued that transitional worker status is not necessary because DHS only needs to control worker permits. The commenters suggested that the statute provides no basis for transforming the system of “permits” for employers into a system of “status” for alien workers. They argued that the term “permit” applies only to an employer and is not synonymous with the term “CW status” which applies only to a worker. The commenters added that DHS created a “status” for workers instead of following Congressional intent to create a “permit” for employers. The commenters wrote that, by doing so, DHS intended to restrict workers from moving from employment under Commonwealth-approved contracts to Federal permit-approved employment and back again during the first two years of the transition program. The commenters added that the statutory provision allowing “registration” of aliens present in the Commonwealth did not authorize DHS to create a separate “status” for persons so registered.
See
48 U.S.C. 1806(e)(3).
DHS interprets the CNRA to authorize DHS to administer the permit system in a manner deemed most reasonable and efficient.
See
48 U.S.C. 1806(d)(2). The CNRA also authorized DHS, in its discretion, to implement a registration program to aid in the federalization process.
Id.
at 1806(e)(3). The CNRA did not state that the Federal permit system should mirror the current CNMI permit system under its prior immigration laws. It is not reasonable for DHS to administer a permit system outside of the immigration laws of the United States. DHS interprets the CNRA to allow it to establish a classification within its existing system. While the CNMI's formerly applicable immigration law refers to a system of “permits” and Federal immigration law refers to “status,” both terms apply to the alien's period of stay and conditions of such stay. DHS believes it is reasonable to interpret that the CNMI permit is comparable to the federal immigration status because they both set conditions for the admission of the foreign workers. As such, DHS implemented a transitional worker program to be consistent with federal immigration laws, including all fees, petition and application procedures. Therefore, the final rule requires that employers petition for transitional workers and allows employees to change employers under INA section 248 and obtain lawful permanent status, if eligible, under INA section 245.
See
new 8 CFR 214.2(w)(5) and (7). The CNMI permit system did not offer such flexibility. While DHS did not use the CNRA's registration provision in developing the rule, it provides a transitional program as mandated by the CNRA within the parameters of the existing Federal system.
2. Immediate Implementation
Four out of 61 commenters suggested that the transitional worker rule be immediately implemented to avoid adverse effects on the CNMI's fragile economy. One of these commenters supported the rule as a whole and welcomed the efforts of DHS to provide for an orderly transition by addressing security, foreign labor, illegal activity, and the promotion of U.S. citizen hiring. Another commenter requested that the rule be finalized only after issuance of the congressionally mandated U.S. Government Accountability Office (GAO) report.
5
5
The GAO report was released on May 7, 2010.
See
GAO,
Commonwealth of the Northern Mariana Islands, DHS Should Finalize Regulations to Implement Federal Immigration Law,
No. GAO-10-553 (May 7, 2010), available at
http://www.go.gov/new.items/d10553.pdf.
DHS appreciates the support of its efforts and the concerns expressed about minimizing the effect of the transition on the CNMI economy. Consistent with the statement of congressional intent in the CNRA, this final rule attempts to avoid adverse effects to the CNMI economy by providing as much flexibility as possible in administering the CW classification. See 48 U.S.C. 1806 note. DHS continues to work with other Federal agencies to coordinate implementation of the CNRA. Such coordination will extend to the statutorily mandated reports to Congress, including the GAO Report (GAO-10-553) released on May 7, 2010, and the recommendations contained therein. Accordingly, DHS has not adopted the suggestions that the final rule be immediately implemented or delayed, and this rule implements the CW classification.
3. Lawful Permanent Residence
Forty-one out of 61 commenters suggested that, to support a stable work force, foreign workers in the CNMI should be given lawful permanent residence, some other improved immigration status, or a pathway to U.S. citizenship. Many of the commenters suggested such status for guest workers who have worked in the CNMI for years. Others suggested lawful permanent residence, some other improved immigration status, or a pathway to U.S. citizenship for all foreign workers, regardless of their time in the CNMI. Some suggested such status for long-term guest workers with U.S.-born children or families within the CNMI.
Three of the commenters suggested that DHS create and grant a unique permanent status (Lawful Permanent Resident (LPR)-CNMI Only) to foreign workers who have been living in the CNMI for 3 years on the enactment date of the CNRA (May 8, 2008), and who are otherwise admissible. One commenter suggested a scoring system to decide how to grant permanent residence. One suggested a permanent CNMI-only H-2 program.
While these suggestions fall outside the scope of this regulation, it is important to note that the CNRA authorizes the Secretary of Homeland Security to create only a nonimmigrant classification in the Commonwealth during the transition period.
See
48 U.S.C. 1806(d). In compliance with the CNRA, DHS is establishing a nonpermanent classification, available only during the transition period (unless extended by the Secretary of Labor), to provide a guest worker with lawful nonimmigrant status.
See
new 8 CFR 214.2(w)(1)(xi). The CNRA does not provide DHS with authority to create a permanent immigration path specifically for the CNMI, nor does any other law. Under the CNRA, a transitional worker may adjust to lawful permanent resident status throughout the transition period, if eligible through another immigrant-based petition or application under the provisions of the INA.
See
48 U.S.C. 1806(d)(1). For these reasons, DHS is unable to accept the suggestions of these commenters.
4. Immigration Law
One commenter expressed concern regarding the complexity of the immigration laws and the effect of such complex laws on small businesses. DHS understands the concerns of the commenter and agrees that immigration law is complex. Nonetheless, DHS has no power to change the immigration laws and is unable to make any changes in the rule to address this commenter's concerns. DHS understands that the transition of the CNMI to the U.S. immigration system offers both benefits and challenges to the CNMI population. This rule promulgates provisions governing CW status consistent with other INA nonimmigrant categories. The rule attempts to incorporate standard elements from other nonimmigrant categories to maintain regulatory consistency. Employers wishing to
employ foreign workers must abide by all rules set forth in the Code of Federal Regulations. USCIS has conducted extensive outreach to explain the complexities of U.S. immigration law to the community, private sector employers, and CNMI governmental officials, including numerous meetings and information sessions in Saipan, Tinian and Rota with stakeholder groups and the general public, as well as posting informational materials on the USCIS Web site on a variety of CNMI-related topics. Among other things, in October 2009, USCIS conducted outreach on DHS regulations initially implementing the CNRA. In December 2009, USCIS again conducted outreach to employers and the public, focusing on employment eligibility verification (Form I-9) requirements. In January 2011, DHS conducted outreach on Saipan for the December 20, 2010 final rule, E-2 Nonimmigrant Status for Aliens in the Commonwealth of the Northern Mariana Islands With Long-Term Investor Status, with community based organizations, CNMI government representatives and local business leaders. USCIS plans to conduct similar outreach efforts for this final rule. In addition to CNMI-specific materials, USCIS also provides helpful explanations of U.S. immigration law on its Web site and provides a dedicated employer information telephone line. Thus DHS believes that it has taken reasonable and substantial action to mitigate any adverse impacts that implementation of the CNRA and the CW classification may entail with respect to availability of information.
5. Labor Law
Five out of 61 commenters expressed concerns regarding the rule's effect on labor laws and the CNMI permitting system. One of these commenters stated that the rule violates the contract workers' rights. Four of the commenters stated that the rule sets up a labor permitting system that fails to address the many issues that have plagued the CNMI nonimmigrant guest workers by eliminating all of the existing labor protections under the previous CNMI immigration system. They added that the rule subjects foreign workers to abuses that currently affect the H-2 visa program and assert that such past abuses were eliminated from the CNMI program. Two of these commenters believe that, given such progress under CNMI law, DHS should support and not seek to eliminate the Commonwealth's guest worker program. The commenters argued that the interim rule failed to provide a reasonable mechanism to facilitate any cooperation between the two systems or any practical means for Commonwealth enforcement of its labor laws in connection with the Federal system.
The CNRA requires the discontinuation of the CNMI's previous immigration system. As required by the CNRA, this final rule creates a new transitional worker classification and recognizes CNMI-issued work permits during the first two years of the transition period.
See
new 8 CFR 214.2(w)(1)(v). Foreign workers granted work authorization from the CNMI government will continue to be work authorized under U.S. immigration law for the duration of the permit's validity or up to two years after the transition program effective date, whichever is shorter.
See
48 U.S.C. 1806(e)(2). This employment authorization under Federal immigration law affects only the basic privilege to work in the CNMI. Employers in the CNMI remain responsible for complying with other applicable requirements of law, such as wage and hour and occupational safety requirements. DHS assumes that the Commonwealth will continue to enforce its local labor laws to the extent that they are not preempted by Federal immigration law. Nevertheless, DHS cannot accept the commenters' suggestion to replicate or rely on the authorities and processes of the CNMI with respect to work authorization of aliens for establishing and administering the CW classification. Though these commenters indicate that the pre-November 28, 2009 system was a preferable immigration and labor policy to federalization, Congress eliminated that system and required that DHS implement federal immigration law in the CNMI.
See
section 701(a) of the CNRA, 48 U.S.C. 1806 note. Perpetuating CNMI authorities, even if it were lawful to do so under the CNRA, would be contrary to the letter and spirit of the CNRA that Federal transition programs and authority be established as promptly as possible in the CNMI.
Id.
This final rule incorporates CNMI labor law protections in its description of an eligible employer.
See
new 8 CFR 214.2(w)(4). The rule provides that, in order to be eligible to petition for a transitional worker, an employer must offer terms and conditions of employment consistent with the nature of the occupation or industry in the CNMI.
Id.
It also provides that employers must comply with all U.S. Federal and Commonwealth requirements relating to employment, including but not limited to nondiscrimination, occupational safety, and minimum wage.
Id.
The reference to Commonwealth requirements is intended only to include those aspects of Commonwealth law that are not immigration law. CNMI law relating to employment authorization of aliens is immigration law that has been superseded by the CNRA.
DHS understands the concern of commenters about the possible revival of past worker abuses that occurred in the CNMI. Like workers in other parts of the United States, all employees who work in the CNMI are protected by a variety of Federal civil rights, labor, and workplace safety laws that are enforced by the U.S. Department of Justice (U.S. DOJ) and the U.S. Department of Labor (U.S. DOL).
6. Adverse Effects
Two commenters suggested revising the rule to minimize the serious adverse effect and increased burdens. The commenters did not address any specific actions to take or what effects needed mitigation. DHS therefore has not changed the rule in response to this comment. The interim final rule was drafted consistent with expressed Congressional intent to minimize the potential adverse economic and fiscal effects of the federalization of the CNMI's immigration program. DHS is aware that the CNMI is experiencing a severe economic downturn during the current decline in the world economy. DHS formulated this rule to be as inclusive as it reasonably could within the parameters of the statute. Moreover, DHS has made additional changes in the final rule to that end. This final rule provides for an initial grant of CW-1 transitional worker status or CW-2 dependent status in the CNMI without having to travel abroad to obtain a nonimmigrant visa, for need-based waivers of the filing fee for dependent family members seeking CW-2 status in the CNMI, and, as discussed in more detail below, for a limited travel exception, where appropriate, to the otherwise applicable bar on travel elsewhere in the United States by aliens in CW status, for Philippine nationals who hold CW status and travel between the CNMI and the Philippines directly through Guam. Thus, DHS believes that it has minimized adverse effects and burdens caused by this rule.
7. DOI Report
Five commenters offered suggestions regarding the Department of the Interior's (DOI) Report on the Alien Worker Population in the Commonwealth of the Northern Mariana Islands (the “DOI Report”).
6
They
suggested that the Report to Congress should contain a joint recommendation (from DOI, DHS and the CNMI Governor) to allow guest workers to apply for enhanced status. One of these commenters stated such recommendations to improve immigration status for long-term alien workers can be addressed during the transition period but no later than the April 2010 report. The commenter was concerned that neither Federal agencies nor the CNMI governor reached a decision.
6
See Secretary of the Interior, Report on the Alien Worker Population in the CNMI
(April 2010),
available at http:/www.doi.gov/oia/reports/042810_FINAL_CNMI_Report_pdf.
The DOI Report was released in April 2010. DHS continues to work together with other Federal agencies to coordinate the implementation of the CNRA provisions in the Commonwealth. Such coordination extended to the statutorily mandated reports to Congress and any recommendations contained therein.
C. Specific Comments
The specific comments are organized by subject area and addressed below.
1. CNMI-Only Transitional Workers: CW Eligibility Requirements
Twenty-six commenters expressed concern or offered suggestions regarding the rule's eligibility requirements.
(a) Foreign Workers in the CNMI
Five out of 26 commenters suggested that transitional worker status should be limited to guest workers present in the CNMI and should not be available to those abroad. Two of these commenters suggested that the rule intends to admit new foreign workers to the Commonwealth without regard to economic impact or regulatory effect on the Commonwealth. The commenters suggested that the likely effect will be to encourage the entry of very low-wage, unskilled workers, who would displace experienced on-island foreign workers, resulting in unemployment and incentives to fall into illegal status.
Eighteen of 26 commenters suggested that the transitional worker program provide a hiring preference for foreign workers currently in the CNMI. Three of these commenters suggested that DHS place a numerical limitation on transitional workers coming from abroad in order to provide foreign workers in the CNMI with the hiring preference. Six of these commenters suggested that DHS conduct a registration, as mentioned in the CNRA, of alien workers present in the CNMI to ensure that any jobs that need to be performed by the alien workforce would first be offered to on-island workers. Another commenter suggested that DHS conduct a registration to determine the number of guest workers in the CNMI and their corresponding job categories. The commenter wrote that the data on the available workforce may deter employers from hiring abroad. One commenter suggested a hiring preference for Filipino foreign workers in the CNMI. Another suggested that the transitional worker program provide a hiring preference for guest workers present in the CNMI for over 5 years.
The transitional worker program will be available to two groups of aliens in general: (1) Those who are present in the CNMI and (2) those who are abroad.
See
new 8 CFR 214.2(w)(2). In the CNRA, Congress expressed its intent that the transitional worker program provide for an orderly transition from the CNMI permit system to the U.S. Federal system while minimizing potential adverse economic and fiscal effects.
See
48 U.S.C. 1806 note. Consistent with that intent, this rule does not limit access to workers already present in the CNMI. It provides CNMI employers with the ability and flexibility to maintain their existing foreign workers for current business needs. It also preserves employer access to new workers in order to accommodate new economic opportunities.
See
new 8 CFR 214.2(w)(2).
While information on guest workers and their current job categories may be helpful, DHS does not plan to limit the availability of transitional workers to guest workers currently on the islands. The CNRA requires that the allocation of transitional worker visas be reduced to zero by the end of the transition period, but it does not limit eligibility for the visa to foreign workers in the CNMI.
See
48 U.S.C. 1806(d)(2). DHS believes that limiting CW-1 issuance to foreign workers already present in the CNMI or to Filipino foreign workers in the CNMI, would run counter to the CNRA's requirement to mitigate harm to the Commonwealth's economy. This rule provides access to foreign workers abroad to preserve the CNMI's ability to meet future demands for labor. DHS, in consultation with other Federal agencies, will consider registration as it continues to evaluate the CNMI's economic needs. Accordingly, no changes were made to the final rule as a result of these comments.
(b) Ineligibility for Another INA Classification
Three commenters expressed concern regarding the rule's requirement that the transitional worker classification be limited to nonimmigrant workers who would not otherwise be eligible for another INA classification. Two of these commenters argued that such a requirement is a misinterpretation of the law and will deprive the Commonwealth of skilled workers. The commenters stated that the CNRA's intent is to preserve a choice: Workers may choose either transitional worker status or another nonimmigrant status. All three commenters were concerned that certain aliens eligible for an INA-based status may only be eligible for transitional worker status because employers would be unable to petition for other INA classifications due to financial difficulties. The commenters stated that they would be unable to meet the income requirements for other INA classifications.
DHS disagrees with these comments. The CNRA requires that the transitional worker classification be used only for foreign workers “who would not otherwise be eligible for admission under the [INA].” 48 U.S.C. 1806(d)(2). This final rule states that guest workers eligible for other INA classifications at the time of a petition for CW status must apply for such status.
See
new 8 CFR 214.2(w)(2)(vi). This requirement stems directly from the CNRA requirement.
See
48 U.S.C. 1806(d)(2). CNMI employers may use the CW classification during the five-year transition period while workers and employers seek to satisfy requirements, such as any necessary professional licenses or educational degrees, for other employment-based status under the INA. DHS is implementing this provision in as flexible a manner as possible. For example, this rule requires only an attestation that the employer does not reasonably believe the position to qualify for another INA nonimmigrant worker classification, as opposed to requiring the employer to petition for other INA classifications before seeking CW status.
See
new 8 CFR 214.2(w)(6)(ii)(G).
2. Employers
Fourteen commenters offered suggestions, or opposed the rule's requirements, for employers and the proposed exclusion of certain occupational categories.
(a) Terms, Conditions of Employment, and Transfers
Two commenters stated that the rule's provision with respect to terms and conditions of employment and transfers will likely lead to abuses. The commenters stated that the DHS rule requires only that an employer “[o]ffer terms and conditions of employment
which are consistent with the nature of the petitioner's business and the nature of the occupation, activity, and industry in the CNMI.”
See
8 CFR 214.2(w)(4)(iii). They added that employers are not required to attest that they have met this condition. Another commenter suggested that all of the Commonwealth's requirements protecting workers could be undone by contracts that comply fully with the DHS requirement. The commenter then suggested that the DHS rule cannot “prevent adverse effects on wages and working conditions” as required by 48 U.S.C. 1806(d)(2). The commenter added that the DHS interim rule provides no protection for a nonimmigrant resident alien who is the subject of a petition that is denied, perhaps due to the negligence of an employer. The commenter further stated that the rule would be more restrictive than the Commonwealth system for transfers.
DHS agrees with the comments that the rule would be strengthened by further incorporating the terms and conditions of an employment requirement into the attestation requirement for employers. DHS has added a requirement that the employer attest that it will comply with the requirements for an eligible employer, which include offering appropriate terms and conditions for the intended CW-1 employment.
See
new 8 CFR 214.2(w)(6)(ii)(D). With respect to the comments expressing a preference for the Commonwealth's requirements protecting workers, a previous discussion in this preamble addressed this subject and explained why DHS cannot adopt these comments. Many of these comments deal with employment, labor, and safety laws that exceed the scope of this rule. By making the procedures for employers as clear and transparent as reasonably possible in order to implement the transitional worker provisions of the CNRA, including promulgation of a specific form for this petition (the I-129CW Form), the final rule provides protections to workers from employer negligence or error. However, it must be understood that these CNRA provisions are employer-based, and have been implemented accordingly. The employer, not the employee, files the petition, and it is the employer's discretionary choice whether or not to do so. This rule provides no steps for employees to take in order to keep their status in the CNMI.
See
new 8 CFR 214.2(w)(5). Thus no additional changes are made in response to these comments.
(b) Blanket Exclusion of Certain Occupational Categories
The interim final rule did not exclude any occupational categories from eligibility for CW workers, but DHS indicated that it was considering excluding dancing, domestic workers, and hospitality workers based upon human trafficking concerns, and specifically invited comment on this subject. Six out of 14 commenters opposed a potential final rule excluding certain occupational categories in order to combat human trafficking and sexual exploitation. These commenters stated that prohibiting a particular occupation will not effectively combat human trafficking. Some argued that the rule hurts the CNMI's successful efforts to stop trafficking under its 2007 reform law. Others stated that the exclusion of the proposed categories will not help deter the worker exploitation problem because exploitation occurs in a wide range of occupational categories and a foreign worker can technically enter any of those occupational categories. The commenters added that a blanket exclusion of any occupational category or legitimate business that supports the CNMI economy runs counter to the CNRA's stated purpose of providing flexibility to maintain existing businesses and expanding tourism and economic development in the CNMI. They also argued that the CNRA does not provide statutory authority for the blanket exclusion and that a blanket exclusion is inappropriate and will cause further economic harm.
Two other commenters added that the exclusion of occupations that serve the tourist industry is not justified and will cause substantial harm. They stated that the proposed exclusion is based on a concern regarding abuse against women and, as such, is discriminatory because it is not gender neutral. The commenters noted that such restrictions are unnecessary because prostitution is a crime under CNMI law.
Commenters suggested that DHS offer protection from exploitation through a system of employment regulation combined with enforcement of the laws intended to protect guest workers regardless of occupational category. The commenters suggested that DHS conduct site visits and that any exclusion or employer debarment be based on a specific finding indicating that a particular business is violating a law, not based on evidence of past abuses. The commenters argued that the rule's requirement that employers must be engaged in legitimate business is not the appropriate regulatory means to address the DHS concern.
DHS agrees that exploitation can occur in any occupational category. The proposed exclusions were supported by the findings of a GAO report and Congressional hearings, which indicated that the excluded occupational categories have been prone to widespread abuse. U.S. Gov't Accountability Office, GAO-08-791,
Commonwealth of the Northern Mariana Islands, Managing Potential Impact of Applying U.S. Immigration Law requires Coordinated Federal Decisions and Additional Data
(2008);
see, e.g.
,
Conditions in the Commonwealth of the Northern Mariana Islands: Hearing before the S. Comm. on Energy and Natural Resources,
110th Cong. 50 (2007) (testimony of Lauri Bennett Ogumoro and Sister Mary Stella Mangona) (
2007 Senate Hearing
). In addition, DHS notes that the proposed exclusion of certain tourist industry workers was gender neutral and would be applied in a gender neutral manner. Nevertheless, DHS agrees that a blanket exclusion of certain occupations may negatively impact the CNMI's economy. This final rule does not include a blanket exclusion of any specific occupational category, but consistent with the CNRA's requirement for business employers, retains the requirement that all employers must be engaged in a legitimate business.
See
48 U.S.C. 1806(d)(5)(A); new 8 CFR 214.2(w)(4).
(c) Exclusion of Domestic Workers
Five commenters suggested that the rule should allow domestic workers as transitional workers. One of these commenters disagreed with the requirement that only businesses will be allowed to petition for domestic workers as CW workers. That commenter also argued that individual households should be allowed to employ domestic workers directly and the renewal of the contracts should be based on the proper tax filings of the workers.
Two additional commenters argued that the definition of a “legitimate business” cannot be used to bar households from employing caregivers. The commenters argued that the determination as to “legitimate business” only relates to the task of determining whether an adequate number of workers are available. As such, they stated that domestic workers are currently entitled to work until the transition period ends. The commenters further stated that DHS may not “disqualify an entire business on the basis of `illegal' activity, except on the basis of conviction of a crime, and may not impute the crime of an officer to the entire business without due process.”
They additionally asserted that since DHS seeks to disqualify a business if it engages “directly or indirectly in any activity that is illegal under Federal or CNMI law,” the regulations should be clear that only a conviction of a crime can be the basis for this disqualification.
The CNRA transitional worker provisions were intended to address the needs of legitimate businesses.
See
48 U.S.C. 1806(d)(5)(A). DHS believes that the rule's provision regarding legitimate businesses accords with the CNRA and is lawful and appropriate. While the rule does not prohibit domestic workers from obtaining CW status, for their protection and for the legitimacy of the petition process, the rule reasonably requires that domestic workers be channeled through an established, legitimate business operation.
See
new 8 CFR 214.2(w)(4). The commenters who wrote that domestic workers are currently entitled to work until the transition period ends are incorrect. Workers authorized by the CNMI before November 28, 2009 are authorized to work for up to two years or the date of expiration of their CNMI-issued permit, whichever occurs first—not for the entire transition period. With regard to the comment suggesting the level of criminal activity or proof that should render a petitioning employer ineligible, the CNRA does not require a conviction for the direct or indirect illegal activity provision to be applied. Therefore, DHS has retained that provision unchanged in the final rule.
For the purposes of the transitional worker program, the final rule states that a legitimate business is 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 and meets applicable legal requirements for doing business in the CNMI.
See
new 8 CFR 214.2(w)(1)(vi). The rule is also consistent with the definition of “doing business” in other classifications under the INA.
See
8 CFR 204.5(j)(2). As such, the final rule states that a petitioner is “doing business” if engaged in the regular, systematic, and continuous provision of goods or services.
See
new 8 CFR 214.2(w)(1)(ii). An individual employing a household worker is not engaged in the systematic provision of goods or services and is not “doing business” for the purpose of the transitional worker program. No change was made as a result of this comment.
Additionally, a stated purpose of the CNRA is to combat human trafficking and other widespread abuse.
See
48 U.S.C. 1806 note. Congressional hearings held prior to passage of the CNRA focused on the issue of domestic workers in the CNMI.
See, e.g.,
2007 Senate Hearing.
Congress was provided with evidence that directly employed domestic workers have been subject to widespread abuse and have been victims of human trafficking.
Id.
Allowing only domestic service companies to file for CW workers is consistent with the decision to not exclude any specific occupational categories and to consider petitions by legitimate businesses on a case by case basis. Therefore, domestic workers will be afforded the same sorts of employment protections as other CW workers in the CNMI, whose employer petitioners must be legitimate businesses under the terms of this final rule. Accordingly, DHS will not change the final rule and will limit filings for CW domestic workers to domestic service companies.
It is important to note that a household worker may still be eligible for transitional worker status if a business petitions for the worker. The occupational category itself is potentially eligible for the transitional worker status. DHS is only limiting such filings for CW workers to domestic service companies operating as legitimate businesses. Therefore, it is possible that domestic workers qualify for transitional worker status through employment by a business which places domestic workers in individual households.
One commenter suggested that domestic workers should be offered permanent immigration status. As previously discussed, the CNRA only authorizes DHS to create a nonimmigrant classification to ensure adequate employment in the Commonwealth during the transition period.
See
48 U.S.C. 1806(d). There is no authority under the CNRA for DHS to establish an immigrant classification. Thus no change is made in the final rule. The CW classification is a temporary classification, available only during the transition period, to provide a guest worker with lawful nonimmigrant status.
3. CNMI-Only Transitional Worker Allocation System
Thirty commenters offered suggestions for, or opposed, the transitional worker allocation system.
(a) Allocation of Transitional Worker Classifications
Three commenters stated that DHS did not implement a transitional work permit system as required by the CNRA. They stated that DHS was required to establish and enforce a transitional work permit system in the CNMI that provided the criteria for allocating transitional workers to employers or industries during the transition period.
See
48 U.S.C. 1806(d)(2). Specifically, two of these commenters argued that there were no allocation criteria. One commenter stated that the rule did not describe a system or criteria for allocating how the permits are to be divided among employers. This commenter argued that DHS will be required to allocate permits among CNMI employers whose collective demand for foreign workers is greater than the available number of permits during the following year. The commenter added that reliance on the H visa system is not a substitution for establishing the system required by the CNRA. The second commenter further argued that an annual determination is not an adequate substitute for such a process. A third commenter noted that any system will have to offer careful consideration to the economies of all three islands to avoid the harm that may result from the allocation of all slots to one island such as Saipan.
The CNRA requires the Secretary of Homeland Security to establish a permit system for prospective employers based on any reasonable method.
See
48 U.S.C. 1806(d)(2). DHS interprets this mandate to allow it to establish a classification within its existing system, which it has done. The Federal immigration system requires employers to submit petitions for their employees. This final rule incorporates standard elements of the Federal immigration system, including the DHS petitioning and classification process, and thus it is consistent with current law, reasonable, and consistent with the intent of the CNRA.
Additionally, the CNRA requires an annual reduction in the number of permits and total elimination of the CW classification by the end of the transition period.
Id.
The CNRA does not dictate how this will occur. As indicated in the interim rule, DHS will publish a
Federal Register
notice announcing the annual numerical limitation. DHS believes that the number of workers provided in the first years in this rule, coupled with the
Federal Register
notice, will be sufficient notice and guidance to implement the required CW classification drawdown.
(b) Numerical Limitation by
Federal Register
Notice
One commenter stated that the CNRA does not authorize the issuance of regulations in piecemeal form over time that address various aspects of the work
permitting system but rather requires one single document. The commenter also opposed the issuance of a
Federal Register
notice related to the numerical limitation. Another commenter suggested that DHS apply a periodic reduction in foreign workers without providing notice or comment.
As noted above, the CNRA provides that DHS may base the system on any reasonable method.
Id.
DHS determined that it is reasonable to base the transitional worker classification on the current nonimmigrant system. As such, this rule promulgates provisions governing the transitional worker classification and incorporates standard elements from current nonimmigrant categories to maintain regulatory consistency.
The CNRA also mandated that DHS provide the Commonwealth with flexibility to maintain existing businesses and develop new economic opportunities yet required an annual reduction in the number of permits and total elimination of the CW classification by the end of the transition period.
See
section 701(b) of the CNRA, 48 U.S.C. 1806 note; 48 U.S.C. 1806(d)(2). Consistent with this mandate, DHS has determined that it is appropriate to publish the CW annual numerical limitation rather than provide a permit reduction plan in this final rule due to the uncertainty of the CNMI's future workforce needs and economic conditions. The Secretary of Homeland Security has determined, in her discretion, that the annual numerical limitation will be published in a future
Federal Register
notice.
See
new 8 CFR 214.2(w)(1)(viii)(D). DHS believes that this method will maximize the Commonwealth's potential for future economic and business growth by providing a flexible mechanism for the continued use of alien workers during the phasing-in of Federal immigration law. DHS also believes that a
Federal Register
notice will provide sufficient public notice of the annual numerical limitation in accordance with the regulations established by this rule. However, as further discussed below, DHS has provided in this final rule the numerical limitation not just until September 30, 2010, as was provided in the interim final rule, but through the end of fiscal year 2012 on September 30, 2012. Given uncertainty about demand for the program, it would not be prudent to try to set numbers for time periods on or after October 1, 2012 at this time. The 22,417 and 22,416 workers provided for the first two years of the CW program in this rule, coupled with the
Federal Register
notice, will be sufficient information to implement the required CW classification drawdown. DHS will need to make the announcement in a timely fashion from the time of the decision to the issuance of the notice providing the new CW classification numerical limit. As such, DHS believes that a
Federal Register
notice is the most appropriate method to use to issue the necessary information.
(c) Total Number of Foreign Workers in the Work Force
One commenter suggested that DHS adopt the CNMI's proposed revision of the interim rule with regard to assessing the total alien work force and total work force. The same commenter took issue with the figures DHS used to project the number of CW grants of status. The commenter stated that the DHS estimate of 13,543 foreign workers in-status and 1,000 workers out-of-status who may be brought into lawful status under CNMI law was incorrect. The commenter stated that DHS incorrectly estimated the number of immediate relatives of foreign workers who may be eligible for CW-2 status. The commenter further stated that DHS's 2010 projections were also incorrect because most workers will be working under CNMI-issued permits and most employers will be employing workers under existing CNMI-approved contracts. As such, these workers would not need to enter the Federal immigration system for at least two years.
DHS disagrees with the commenter and believes that its estimate of the number of foreign workers is reasonable. The final rule sets forth the maximum number of persons who may be granted transitional worker status based on the CNMI government estimate of the nonresident workers as of May 8, 2008, the date of enactment of the CNRA. The 22,417 number was the total number of foreign workers working in the Commonwealth, according to the CNMI government, on that date.
7
In addition to the CNMI estimate,
8
DHS used data compiled by GAO and other credible resources in the development of this rule.
See, e.g.,
GAO-08-791, August 2008. DHS agrees with the commenter that the CNRA does not require that an employer petition for an INA benefit. Instead, employers have the option to retain the CNMI benefits during the grandfathered period or petition for INA benefits. As such, the number of CW petitions filed is directly connected to individual business decisions made by each CNMI employer's business needs. Therefore, the estimate is affected by a variety of factors that are not within DHS control. Thus, DHS has not adopted this commenter's suggestions in the final rule.
7
See
Letter from Benigno Fitial, Governor of CNMI, to Richard C. Barth, Assistant Sec'y for Policy Dev., and Stewart A. Baker, Assistant Sec'y for Policy, Office of Policy, DHS (July 18, 2008) (Fitial letter),
available at http://www.regulations.gov
under DHS Docket No. USCIS-2008-0038.
8
See
Fitial letter.
The interim final rule set a numerical limitation for the first year of the transition period (November 28, 2009 through September 30, 2010) at 22,417, with the limitation for fiscal year 2011 (beginning October 1, 2010) and subsequent fiscal years to be published via subsequent Notice in the
Federal Register
. Given the mootness at this time of transitional worker numbers for the period before October 1, 2010, the need for employers to have current usable information about the number of CW workers available for fiscal year 2011 and the expected expiration of a large number of “umbrella permits” in late 2011, this final rule updates the limitation to set the maximum number of CW-1 visas for fiscal year 2011 at 22,417.
See
new 8 CFR 214.2(w)(1)(viii)(A). In order to provide additional information and certainty to CNMI employers, the final rule also establishes the limitation for fiscal year 2012 (beginning October 1, 2011). New 8 CFR 214.2(w)(1)(viii)(B). As required by the CNRA, the number is reduced for fiscal year 2012, compared to fiscal year 2011; however, the reduction is only by one visa, in order to effectively maintain a steady level of available visas for the first two years of the CW program and accommodate potential demand caused by the expiration en masse of umbrella permits early in fiscal year 2012. Thus, 22,417 is the maximum number of CW-1 visas for fiscal year 2011, and 22,416 will be the maximum CW-1 visas available in fiscal year 2012.
See
new 8 CFR 214.2(w)(1)(viii). DHS does not expect the full number of available visas to be used, especially the fiscal year 2011 allocation, given the effective date of the final rule within that fiscal year and the continuing validity of umbrella permits. Nevertheless, setting the maximum this high will easily meet the projected CW visas needed by employers to transition umbrella permit holders to CW-1 status, regardless of the actual number of workers currently present on the island. Consistent with other classifications, if the numerical limitation is not reached for a specified fiscal year, the unused numbers do not carry over to the next fiscal year. This clarification in the final rule is necessary because (unlike the interim final rule) the final rule establishes the numerical limitation for more than one
fiscal year. While the umbrella permits do not expire until November 27, 2011, employers should apply well in advance of that date to ensure that their petitions are adjudicated and CW status granted before November 27, 2011. Although an employer cannot petition more than six months before the employment is to begin, an employer who needs the services of a worker with an umbrella permit need not wait until six months before the expiration to apply for CW status to replace the umbrella permit. The six-month time frame is based upon when the employer needs the worker, not when the worker's current immigration status expires.
See
new 8 CFR 214.2(w)(12)(ii).
(d) Reduction of Transitional Workers
Four commenters stated that DHS did not implement the statutory requirement that DHS establish and enforce a transitional work permit system in the CNMI that provides for a reduction in the number of transitional workers to zero by December 31, 2014. They stated that the rule only established a numerical cap. Without a reduction plan, employers cannot operate their businesses and plan for future access to foreign labor. Similarly, two commenters requested clarification on DHS' intent to draw down foreign workers to zero by the end of the transition period. One of these commenters also argued that the rule did not identify any criteria or methodology that will be used to reduce the number of permits on an annual basis. Specifically, the commenter disagreed with the DHS assertion that a permit reduction plan was not established due to a lack of specific data on the foreign worker population and due to the uncertainty of the CNMI's future economic conditions. The commenter stated that the DHS claim that specific data was unavailable was later impeached when DHS offered very specific figures regarding the number of foreign workers in the CNMI and suggested that DHS should have chosen an alternative set forth in the 2008 GAO report. Those alternatives set forth a range of possible outcomes in terms of impact on the Commonwealth's economy.
As discussed above, the final rule sets forth the maximum number of workers who may be granted transitional worker status during fiscal years 2011 and 2012.
See
new 8 CFR 214.2(w)(1)(viii). DHS based this number on the CNMI government estimate of the nonresident workers as of May 8, 2008, the enactment date of the CNRA.
9
DHS believes that it is prudent to consider this estimate as a baseline for the maximum number of possible transitional workers in the CNMI.
9
See
Fitial letter.
DHS did not establish a methodology for reducing the number of transitional workers, ultimately to zero by the end of the transition period. DHS believes that any methodology will require flexibility to adjust to the future needs of the CNMI economy. A methodology or formula set forth in a regulation does not provide such flexibility. Additionally, the CNRA only requires that DHS reduce the number of transitional workers on an annual basis.
See
48 U.S.C. 1806(d)(2). It does not mandate an actual specific reduction. The final rule retains the interim rule's provision that the number of transitional workers will be reduced by at least one transitional worker per year.
See
new 8 CFR 214.2(w)(1)(viii)(C). As described above, this rule provides that the number of transitional workers will be reduced by one CW worker in fiscal year 2012 compared to the previous year, setting the maximum number of CW-1 visas at 22,416. This approach will ensure that there is a fully adequate supply of CW visas that encourages transition from the umbrella permit system to CW status for needed workers during fiscal years 2011 and 2012.
See
new 8 CFR 214.2(w)(1)(viii). For the years following fiscal year 2012, DHS will assess the CNMI's workforce needs on a yearly basis.
See
new 8 CFR 214.2(w)(1)(viii)(C).
(e) Reduction Plan Suggestions: Limiting Access to Foreign Workers
Two commenters suggested that transitional worker status should be limited to foreign workers present in the CNMI only, as opposed to any workers abroad sought to be imported under the transitional worker program. One of these commenters argued that the shortage of jobs in the Commonwealth makes it unnecessary for employers to go abroad for additional employees. One commenter suggested that such a limitation will help curb the incidents of human trafficking and help in the mandated reduction of transitional workers. Another commenter argued that allowing workers to come to the CNMI conflicts with the statutory goal of phasing-out all contract workers. The commenter added that the goal to ultimately phase-out contract workers would be furthered by preventing hiring from abroad and providing transitional worker status only to the current foreign work force in the CNMI.
While the CNRA requires that the allocation of transitional worker classifications be reduced to zero by the end of the transition period, it does not limit eligibility for the visa to foreign workers in the CNMI on or before the transition program effective date.
See
48 U.S.C. 1806(d)(2). Instead, the CNRA establishes a transitional worker program for “aliens seeking to enter the Commonwealth as a nonimmigrant worker.”
See
48 U.S.C. 1806(d). DHS believes that aliens seeking to enter the Commonwealth must include individuals that are not currently in the CNMI. Accordingly, DHS did not limit eligibility for CW-1 status to foreign workers already present in the CNMI because that would have placed strict limits on CNMI employers seeking to hire foreign workers. Similarly, DHS did not adopt either in the interim or final rule an opposite construction—that section 1806(d) means that only workers seeking to enter the CNMI from abroad, rather than any workers already present and working, may obtain transitional worker status—which is arguably a more supportable construction than the commenters' suggestions that the transitional program should include no workers coming from abroad. Such limits would run counter to congressional intent that DHS seek to minimize, to the greatest extent practicable, the potential adverse economic and fiscal effects of phasing-out the Commonwealth's system and to maximize the Commonwealth's potential for future economic and business growth by providing a mechanism for the continued use of alien workers. Therefore, the suggestions of the commenters on this subject were not adopted. This rule provides access to foreign workers abroad, as well as to those already present, to preserve the CNMI's ability to meet the demands of its economy.
See
new 8 CFR 214.2(w)(2).
(f) Reduction Plan Suggestions: Granting Lawful Permanent Residence
Eleven commenters suggested that DHS grant lawful permanent resident status, or some other immigration status, to guest workers. The commenters indicated that such a measure would stabilize the work force and help reduce the number of transitional workers to zero by the end of the transition period as required by the CNRA. One of these commenters suggested that DHS allow self-petitioning and make the CNMI-only classification a permanent status.
As previously mentioned, the CNRA does not authorize DHS to create a permanent CNMI classification.
See
48 U.S.C. 1806(d). Lawful permanent resident status is available to a CW worker, though; thus, a CW worker may adjust to lawful permanent resident
status throughout the transition period, if eligible through an immigrant petition or application under the INA.
Id.
Since the commenters' suggestion cannot be adopted, no changes were made to the final rule as a result of these comments.
(g) Reduction Plan Suggestions: Assessing Labor Needs
Two commenters expressed concern about the need to assess the CNMI labor needs and use those needs to craft any reduction plan. One of these commenters suggested that DHS accurately assess the CNMI's total labor needs in order to avert a collapse of its economy. The commenter asserted that guest workers are most essential to the economy because other residents of the CNMI are reluctant to take the jobs that foreign workers will accept. The commenters also suggested that phasing out the transitional workers by 2014 may result in a chaotic situation for the CNMI's economy.
DHS understands that the CNMI economy has been based on a workforce made up mainly of workers from other countries. To address this concern, Congress included a provision in the CNRA that allows for an extension of the transitional worker classification for up to five years upon a finding that the CNMI's labor needs are not fulfilled with INA classifications or domestic sources.
See
48 U.S.C. 1806(d)(5). Under the CNRA, the Secretary of the U.S. Department of Labor will ascertain the current and anticipated labor needs of the Commonwealth and determine whether an extension of the Transitional Worker Program is necessary to ensure an adequate number of workers are available for legitimate businesses in the CNMI.
Id.
The second commenter stated that the rule ignores the current labor needs of the CNMI and creates uncertainty with respect to the availability of an adequate labor force. The commenter emphasized that it is extremely important to establish how DHS will phase out transitional workers because the reduced labor pool directly affects the CNMI's Gross Domestic Product. As previously mentioned, DHS did not provide a reduction in an attempt to provide the CNMI economy with the flexibility to grow or constrict its workforce according to market forces. Still, according to data on the number of foreign workers currently in the CNMI, the maximum number allowable under this rule appears to be quite adequate to meet the needs of CNMI businesses. Therefore, no changes to the final rule were made as a result of these comments.
(h) Reduction Plan Suggestions: No Reduction for the First Two Years
Two commenters suggested that the CNMI-issued permits and CNMI-approved employer contracts should be the foundation for the first two years of the transition period. These commenters further suggested no reduction in the number of foreign workers allowed legally in the CNMI should occur during those two years. The commenters suggested that the DHS rule state specifically that all CNMI-issued permits and contracts in force prior to the transition date on November 28, 2009, remain completely outside the Federal system until November 27, 2011, two years after the transition date.
DHS notes that the CNRA contains a grandfather provision, which grants work authorization to aliens in the CNMI with valid CNMI-issued work permits. See 48 U.S.C. 1806(e)(2). Work authorization is valid for the length of the work permit or until two years after the start of the transition period, whichever is shorter.
Id.
DHS does not agree with the commenter that all CNMI-issued permits and contracts in force prior to the transition period should be deemed completely outside the Federal system. It is true that to the extent workers have “grandfathered” work authorization (particularly those with “umbrella permits”), their employers do not need to file CW nonimmigrant petitions on behalf of such workers to continue to employ them (so long as the grandfathered work authorization remains valid). However, the grandfather provision is itself a provision of Federal law (the CNRA). In response to concerns about permit allocation during the first two years of transition, however, DHS has (as described above) adjusted the rule to provide that a maximum annual number of 22,417 CW workers will be available in fiscal year 2011 (beginning October 1, 2010), and 22,416 in fiscal year 2012. See new 8 CFR 214.2(w)(1)(viii). This approach will help ensure that an adequate number of CW permits are available to CNMI employers during the time of necessary transition from grandfathered CNMI status to a Federal status before November 27, 2011, when umbrella permits will expire. Besides extending the 22,417 limitation from the first year of the transition period to fiscal year 2011 and reducing the maximum number of foreign workers by only one worker for fiscal year 2012, no changes are made to the final rule to address this comment.
(i) Reduction Plan Suggestions: No Reduction Pending U.S. DOL Determination on the Extension of the Transition Period
Two commenters suggested the rule include a plan under which DHS would collaborate with the U.S. Secretary of Labor to make the necessary assessment with respect to a five-year extension of the transition period no later than November 2011. The commenters also suggested that no reductions in the Commonwealth's workforce be made until the Secretary of Labor issues a determination on the extension.
Under the CNRA, only the Secretary of Labor has the authority to extend the transitional worker provisions of the transition period up to an additional five years. See 48 U.S.C. 1806(d)(5). DHS will continue to consult with U.S. DOL on all CNMI transition policies and issues; however, the requirements in the CNRA for extending the transition period are sufficient to address the issue. DHS does not believe that it is necessary, or appropriate, to include a deadline in this rule for U.S. DOL to make a determination on extending the transition period. Therefore, no changes are made as a result of these comments.
4. Petitioning Procedures
Fifty-six commenters expressed concern or offered suggestions regarding the rule's petitioning requirements.
(a) Grandfathering of CNMI Contract Workers
Eighteen commenters suggested that DHS issue an automatic conversion of all valid CNMI entry permit holders to transitional worker status. Some of these commenters opined that an automatic conversion into CW status, for one or two years, would help facilitate travel.
The commenters' suggestions to automatically convert valid CNMI entry permit holders into transitional worker status cannot be adopted. The CNRA requires DHS to recognize valid CNMI immigration status (and prohibits removal of such aliens for being present in the CNMI without admission or parole) until the expiration of such status up to a maximum of two years after the transition date.
See
48 U.S.C. 1806(e)(1). The CNRA also requires that DHS recognize employment authorization until the expiration of such status up to a maximum of two years after the transition date.
See
48 U.S.C. 1806(e)(2). Accordingly, DHS will recognize all CNMI permits within the stated timeframe.
DHS cannot automatically convert all permit holders to transitional worker status because the CNRA also requires
DHS to set conditions for admission under the transition program.
See
48 U.S.C. 1806(d)(2). It directs that workers cannot be granted nonimmigrant classification or a visa under the transition program unless the permit requirements established have been met.
Id.
This provision does not authorize an automatic conversion of CNMI permits to transitional worker status. Consistent with other employment-based nonimmigrant classifications, DHS requires an employer to file a petition, Form I-129CW, for a CW-1 nonimmigrant worker in order to determine eligibility and set parameters for the program.
See
new 8 CFR 214.2(w)(5). This petitioning process is necessary to grant such status under the INA, as required by the CNRA. The CNRA requires the system for allocating “permits to be issued to prospective employers * * *.”
See
48 U.S.C. 1806(d)(2). DHS believes that it would be inconsistent with this provision to grant CW status without an employer requesting it for a worker.
DHS will recognize permits as required by the CNRA. Otherwise, DHS will issue CW status in one-year increments in order to properly administer the allocation and annual reduction mandated by the CNRA.
See
new 8 CFR 214.2(w)(16). As discussed above, DHS cannot automatically convert CNMI permit holders to CW status. However, DHS has responded to the concerns of these commenters by providing in this final rule that lawfully present, work authorized aliens (including those with “umbrella permits”) who are employed in the CNMI, and whose employers file petitions on or before the November 27, 2011 expiration date of CNMI permits seeking to continue to employ the aliens in CW-1 status via an application for a grant of status in the CNMI, will be authorized to continue in their employment after November 27, 2011. This authorized employment will continue until DHS makes a decision on the application.
See
new 8 CFR 274a.12(b)(23). This provision will prevent potential widespread loss of work authorization on November 27, 2011 by employees whose employers have filed CW petitions on their behalf before that date that are pending adjudication and the consequent potential disruptive effect on the CNMI economy.
DHS has made this accommodation in the final rule to address the unique circumstances in the CNMI, including the lack of familiarity in the CNMI with Federal immigration processes and statuses relative to other U.S. jurisdictions because Federal immigration law has only applied since November 28, 2009 and most aliens in the CNMI remain and work in the Commonwealth under umbrella permits or other authorization issued by the CNMI government before that date; the expiration of those permits on November 27, 2011; the adverse economic situation in the CNMI; and the legislative direction in the CNRA to seek to minimize adverse effects of the federalization of immigration authority.
Under new 8 CFR 274a.12(b)(23), the continuing work authorization will continue until DHS makes a decision on the application seeking CW status in the CNMI; that is, until either the application is granted and CW status provided to the alien worker, or until it is denied. Denial of an application for grant of CW status in the CNMI may not be appealed.
See
8 CFR 214.2(w)(21).
This continuing work authorization provision applies only to aliens in the CNMI seeking CW-1 nonimmigrant status. It does not provide work authorization to any spouses or children seeking CW-2 nonimmigrant status, even if they are work authorized in the CNMI on or before November 27, 2011, as the CW-2 status sought does not itself provide any work authorization. If spouses or children wish to be work authorized in CW status, an employer must petition for them as a CW-1 principal. In that case the continuing work authorization would apply to them to the same extent as to other aliens applying for CW-1 status.
The continuing work authorization pending adjudication provided by this provision is not a grant of CW nonimmigrant or other lawful immigration status; CW status is only provided if and when a favorable decision is made on the application. The final rule does, however, make a conforming clarification to the definition of “lawfully present in the CNMI”.
See
new 8 CFR 214.2(w)(1)(v)(A). Under new 8 CFR 214.2(w)(2)(iv), an alien in the CNMI must be lawfully present in the CNMI in order to be eligible for CW status. The final rule clarifies that in the case of aliens who are within their “grandfathered” period of stay before November 27, 2011, lawful presence is determined as of the date the application for CW status is filed (whether the application is the Form I-129CW application for CW-1 status for the principal, or the Form I-539 application for CW-2 status for a spouse or minor child). Therefore, the petition, and CW status for the alien may be granted after November 27, 2011. This accommodation does not alter the statutory expiration of the grandfather provision under 48 U.S.C. 1806(e)(1)(A). 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.
(b) Petition Fees
Thirteen commenters suggested that DHS should automatically convert all valid CNMI permits to transitional worker status to avoid the economic impact caused by the duplication of fees. Two commenters suggested that DHS not charge employers any additional fees to obtain transitional worker status for their renewed contract workers. One commenter requested that DHS not impose fees for employers as they will retaliate against the employees for the fees. Two commenters stated that DHS has no authority to require aliens to pay for filling out a form, to pay for providing biometric data, or to pay any other fee of any kind. These commenters also said that the rule's increased fees will cause substantial harm to the foreign workers currently in the Commonwealth.
The CNRA requires DHS to establish, administer and enforce a CNMI transitional worker system under the INA. As discussed above, DHS does not interpret the CNRA simply to permit automatic conversion of CNMI statuses to transitional worker status without an individual employer petition and adjudication of the employer's and worker's eligibility.
See
48 U.S.C. 1806(d)(3). DHS has general authority to recover the full costs of immigration services it provides by collecting fees.
See
INA sec. 286(m), 8 U.S.C. 1356(m). The CNRA specifically references this authority with respect to the CW program, adding that DHS should collect an annual supplemental fee of $150 per worker for CNMI educational purposes.
See
48 U.S.C. 1806(a)(6). DHS understands that petition fees are a major concern for both employers and employees. Nevertheless, USCIS must collect fees to fund the services that it provides and the expenses incurred for processing CW petitions. Employers also expressed concern about the payment of additional fees to petition for their current workforce. While no changes have been made to the rule as a result of these comments, DHS notes that this rule allows employers to request a waiver of the petition fee and the biometrics fee if they cannot afford them. While fee waivers generally are not available in employment-based
cases, DHS has decided to treat the CNMI with more flexibility in this regard; thus, this rule authorizes waiver of the fee in cases where the need is demonstrated.
See
new 8 CFR 103.7(c)(3)(iii). There will continue to be no allowance for waiver of fees for other employment-based nonimmigrant petitions.
(c) Beneficiary Fees
One commenter expressed a concern regarding the guest worker's ability to pay the fees for a transitional worker petition. The commenter explained that the guest worker's earning capacity is based on the Commonwealth's minimum wage, which is far below the U.S. minimum wage, and this makes the petition fees unreasonable for the workers. DHS understands this concern and reminds guest workers that the petitioning employer will pay the applicable petition fees. The employee is only responsible for paying the biometrics fee both at the time of the initial grant of status, and as requested by USCIS for renewals or extensions of status. An employer may pay the biometrics fees and the CW-2 fees for their employees, but that is not required. The biometrics services fee will be collected to cover the costs of the background check and identify verification whether or not the previous biometrics are stored and reused or if the employee or derivative beneficiary must appear again at the Application Support Center (ASC) for their collection. Nevertheless, the biometrics fee may be waived upon proof of inability to pay on a case-by-case basis.
See
8 CFR 103.7(c)(3)(i). DHS is also clarifying in the final rule that, consistent with USCIS policy on collection of biometrics, the biometric fee is not required for beneficiaries who are under the age of 14, or who have attained the age of 79.
See
new 8 CFR 214.2(w)(15).
As with the fee for petitions for nonimmigrant workers, the fee for the Application to Extend/Change Nonimmigrant Status is generally not eligible for a waiver. However, DHS has clarified in this final rule that it has authority to waive the Form I-539 fee based on inability to pay in the case of an alien seeking CW-2 derivative nonimmigrant status as the spouse or child in the CNMI of a CW-1 worker, as the interim final rule referred only to the Form I-129CW in its reference to fee waiver for aliens applying for CW-2 status.
See
new 8 CFR 103.7(c)(3)(iii). DHS has also revised the fee and fee waiver provisions to correct the form name for the Petition for a CNMI-Only Nonimmigrant Transitional Worker and conform technically to the format of 8 CFR 103.7, as reorganized in the DHS final rule, U.S. Citizenship and Immigration Services Fee Schedule, 75 FR 58962 (Sept. 24, 2010). Currently, the fee for a Form I-129CW employer petition for a CW worker is $325, plus the supplemental CNMI education funding fee of $150 per beneficiary per year. 8 CFR 103.7(b)(1)(i)(J).
(d) Petition Requirements
One commenter stated that petitioners should be required to pay petition fees and minimum wage for their employees. Another commenter stated that the rule imposes severe limitations on the ability to freely transfer jobs and hire from the existing labor pool.
DHS agrees with the commenter regarding payment of petition fees and wages. Consistent with other INA classifications, CNMI CW classification petitioners must pay petition fees unless eligible for and granted a fee waiver.
See
new 8 CFR 214.2(w)(5). As with all employment-based classifications, employers must abide by the local employment laws governing the State or Commonwealth. The interim final rule and this final rule provide that an employer is eligible to petition for a transitional worker, if among other requirements, it complies with Federal and Commonwealth requirements relating to employment, including but not limited to nondiscrimination, occupational safety, and minimum wage requirements.
See
74 FR 55110; new 8 CFR 214.2(w)(4)(iv). In response to the comment regarding minimum wages, this final rule also requires the petitioning employer to attest that the employer 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.
See
new 8 CFR 214.2(w)(6)(ii)(D). The 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.
See
new 8 CFR 214.2(w)(6)(ii).
DHS disagrees with the second commenter's assertion that this rule imposes severe limitations on the ability to freely transfer jobs. This final rule incorporates standard elements of the Federal immigration system, including the requirement that an employer petition for an employee. There is nothing to prevent that employee from transferring freely to another job upon filing of a petition for their services by a new employer.
See
new 8 CFR 214.2(w)(5) and (w)(7).
However, in light of this commenter's concern, DHS believes it is important to include additional flexibility for a CW-1 worker seeking to transfer to a new employer. The CNRA mandates that an alien “shall be permitted to transfer between employers in the Commonwealth during the period of such alien's authorized stay therein, without permission of the employee's current or prior employer, within the alien's occupational category or another occupational category the Secretary of Homeland Security has found requires alien workers to supplement the resident workforce.”
See
48 U.S.C. 1806(d)(4). This final rule includes a mechanism, within the existing federal system, for a CW-1 to freely transfer employers as envisioned by the CNRA without approval from prior or current employer.
See
new 8 CFR 214.2(w)(7).
DHS is able to address the general concern regarding transfer of employment by clarifying that a foreign national with CW-1 status may 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). Such work may begin only if a nonfrivolous Form I-129CW for new employment was filed before the date of expiration of the CW-1's authorized period of stay and subsequent to the CW-1's lawful admission, and the CW-1 has not been employed without authorization in the United States since admission.
See
new 8 CFR 214.2(w)(7)(iii). If these conditions are met, then employment authorization shall continue for such alien until the new petition is adjudicated.
See
new 8 CFR 214.2(w)(7)(iv). However, if the new petition is denied, the work authorization will also cease.
Id.
This benefit of new employment upon filing of a petition (if all aforementioned requirements are met) is a benefit that relates only to this specific class of nonimmigrants in light of the unique provisions of and congressional intent expressed in the CNRA.
DHS emphasizes that this provision for change of employer does not intend to authorize extended continued presence in the CNMI for the purpose of seeking employment after termination of CW-1 employment. In general, a CW-1 worker loses CW-1 status upon any violation of CW-1 status (including termination of the qualifying CW-1 employment), and a loss of CW status ends the period of authorized stay at that time.
See
new 8 CFR 214.2(w)(23). A CW petition cannot be filed for an alien in the CNMI who is not in lawful status, including a petition by a new employer, which must be filed before
the date of expiration of authorized period of stay.
See
new 8 CFR 214.2(w)(2)(iv) and (w)(7)(iii)(A). However, DHS believes that it is appropriate to provide a limited period of time after the termination of employment for workers to obtain new qualifying employment. Therefore, in response to the comments and the unique conditions in the CNMI, and consistent with the direction in the CNRA that DHS provide for transfer between employers (
see
48 U.S.C. 1806(d)(4)), the final rule provides that when a status violation results solely from termination of CW-1 employment, the CW-1 status will expire 30 days after the date of termination, rather than on that date itself, as long as a new employer files a nonfrivolous petition within that 30-day period and the alien does not otherwise violate the terms and conditions of his or her status.
See
new 8 CFR 214.2(w)(7)(v) and (w)(23). Thus, the alien will still be lawfully present in the CNMI for the purpose of employer eligibility to file a CW-1 petition during that 30-day period, and the employee will be able to begin work pending petition adjudication as provided by new 8 CFR 214.2(w)(7). The employer will still need to comply with all petition requirements, including attesting that no qualified U.S. worker is available to fill the position. If the employer is not able to petition for the worker within the 30-day period after termination, the employer is not foreclosed from petitioning for that alien; however, the alien would need to leave the CNMI before a petition could be filed, and would be able to return to begin the employment only after petition approval and issuance of a CW-1 visa by a consulate. Additionally, if the CW worker cannot find an employer to petition on his or her behalf during the 30-day period after the worker's CW-1 employment was terminated, then the alien would be out of status as of the date the CW-1 employment was terminated.
By allowing employer petitions for change of employment at any time during the CW-1 alien's current employment, and providing a limited opportunity for an employer to petition for an alien in the CNMI after termination of employment, DHS believes that it is providing opportunities that will improve the ability of employers to respond to economic conditions in the CNMI and reduce unnecessary travel costs to obtain visas abroad and other burdens on workers, without enabling unemployed former CW-1 workers to remain long-term in the CNMI for the purpose of seeking new employment.
DHS has made a conforming change to the CW-1 employment authorization provision, since in a change of employer situation the CW-1 employment will not necessarily be “only [for] the petitioner through whom the status was obtained.”
See
new 8 CFR 274a.12(b)(23). The provision adds a cross-reference to the scope of employment as authorized by 8 CFR 214.2(w), in order also to cover changes of employer within the scope of the final rule.
Id.
DHS disagrees with the commenter's assertion that this rule imposes severe limitations on the ability to hire from the existing labor pool. This rule provides the flexibility for employers to petition for employees from within the CNMI or from abroad.
See
new 8 CFR 214.2(w)(2)(i). It also retains the requirement that the employee in the CNMI be lawfully present.
See
new 8 CFR 214.2(w)(2)(iv). This provision should provide broad access to the existing labor pool in the CNMI and a preference to the current CNMI permit holders. Those provisions should serve to advance the goal of providing a smooth transition between the CNMI and federally-based statuses.
Two additional commenters stated that the employer attestation requirement will invite widespread abuse, will actually decrease the job opportunities available to U.S. workers, and will remove any means for enforcing workforce participation requirements designed to maximize those jobs for U.S. workers.
DHS disagrees with the commenters. DHS has effectively instituted similar attestations in other employment-based categories such as those for temporary agricultural workers (H-2A visas) and temporary nonagricultural workers (H-2B visas). We think the attestation issued with this rule will serve to effectively enforce the necessary requirements and prevent fraud and abuse within the immigration system. Coordinated efforts between agencies within and outside DHS ensure the protection of U.S. citizen and lawful permanent resident workers. Additionally, CNMI employers will be able to reasonably convert their foreign worker dominated workforce to a work force of U.S. citizens or lawful permanent residents by phasing out the use of the transitional worker classification by the end of the transition period. DHS will work with other Federal agencies to review the CNMI's workforce requirements and Federal law compliance. Therefore, this rule retains the provision on employer attestations from the interim final rule. In addition, DHS has strengthened the attestation requirements with respect to terms and conditions of employment.
See
new 8 CFR 214.2(w)(6)(ii).
One commenter supported the requirement that the petitioning employer pay the alien's reasonable cost of return transportation to the alien's last place of foreign residence if the alien is dismissed from employment for any reason by the employer before the end of the period of authorized admission. The commenter added that this requirement was deleted from the CNMI Government's umbrella permit system.
Two other commenters stated that the repatriation clause was very limited and will place the burden on foreign workers to pay their own way back home. These commenters suggested that the Commonwealth's system is superior to that in the interim final rule. That system required the final employer of record to pay for a return ticket when the worker became unemployed for any reason. The CNMI also required the posting of a bond to help ensure that this obligation would be met.
While DHS understands these concerns, DHS does not believe it necessary to modify or make the repatriation provision in the final rule more stringent. The interim final rule required employers to pay the reasonable cost of return transportation of the alien to the alien's last place of foreign residence if the alien is dismissed from employment for any reason by the employer before the end of the authorized admission.
See
new 8 CFR 214.2(w)(11). If the complete terms of the contract are met, the employee may have to find his or her own transportation home. This requirement is consistent with other nonimmigrant visa categories. DHS believes that administration of a bond posting requirement would add unnecessary complexity and expense for CW petitioners. The requirement in this rule provides sufficient safeguards for a beneficiary's safe return home in case of early termination. Thus, no changes are made as a result of this comment.
(e) Employer as Petitioner
Four commenters expressed concern that the rule only empowers the employer to petition for guest workers. Two of these commenters stated that employees should be able to apply for their own status. They suggested that the petition requirement should only be imposed on individuals who have not resided in the CNMI for a minimum number of years. Another commenter stated that the employer's petition
requirement may help perpetuate an employer's abuse against a foreign worker. The commenter argued that an employee might not report abuse for fear that the employer will not file a petition for the employee. Another commenter requested clarification on the process for replacing a transitional worker once the worker leaves employment.
DHS has not adopted the commenters' suggestion that employees be allowed to self-petition. The purpose behind employment-based visa programs is to ensure an adequate number of qualified employees to effectively operate the businesses. Such programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy.
See
20 CFR part 655. Employment-based visas are not intended to allow individuals to petition for the opportunity to seek employment in the United States irrespective of an available employer. Thus, consistent with other employment-based nonimmigrant classifications, DHS will require employers to file a petition for all CW-1 workers.
See
new 8 CFR 214.2(w)(5). This requirement will allow DHS to conduct the review necessary to determine eligibility and that the parameters set for the program are followed. This final rule requires that employers submit evidence showing the legitimacy of their business, their recruitment practices, the terms and conditions of employment offered, and their compliance with Federal and Commonwealth law.
See
new 8 CFR 214.2(w)(6). DHS believes that these parameters are necessary to comply with congressional intent that the CW category “promote the maximum use of, prevent adverse effect on wages and working conditions of, workers authorized to be employed in the United States * * *.”
See
48 U.S.C. 1806(d)(2). This employer-focused petitioning process will ensure that CW status follows U.S. immigration law as required by the CNRA. Therefore, this final rule requires employers to file a petition for all CW-1 nonimmigrant workers, both for initial status and renewal.
See
new 8 CFR 214.2(w)(5) and (w)(17).
There are various Federal laws enforced by the U.S. Departments of Justice and Labor, and other agencies that prohibit workplace discrimination and regulate issues such as wages, benefits, safety, and health care. Those protections also apply to foreign workers in the United States. U.S. citizens may report employer abuses to the appropriate state and Federal agencies for enforcement action. Thus, no changes have been made to the final rule as a result of these comments.
(f) Multiple Beneficiaries
One commenter stated that DHS should allow employers to petition for multiple beneficiaries regardless of occupational category, as long as the beneficiaries are already in the CNMI. The commenter stated that this process would help employers transfer all the CNMI permit holders to an INA status and, in turn, result in a more orderly transition and phasing-out of the CNMI's nonresident contract worker program. Another commenter also suggested a multiple beneficiary process.
DHS encourages all CNMI permit holders to convert to a Federal immigration status as soon as possible. That is the intent of the final rule's provisions allowing multiple beneficiaries on the same CW petition if the beneficiaries will be performing the same service, for the same period of time, and in the same location.
See
new 8 CFR 214.2(w)(9). Unfortunately, DHS can not adopt the commenter's suggestion to allow employers to petition for multiple beneficiaries regardless of occupational category. DHS can only streamline the petitioning process for multiple beneficiaries in such cases when the beneficiaries share the same occupational category, validity period, and location. Because of differing adjudication and evidentiary requirements, DHS can not efficiently adjudicate petitions for multiple beneficiaries on one form where these elements are not identical. Therefore, the final rule was not changed as a result of these comments.
(g) Multiple Employers
Two commenters stated that the rule's provision that allows employment by more than one employer is not a viable way to control subcontracting and may lead to large-scale fraud as previously experienced in the CNMI. DHS understands this concern regarding a foreign worker's ability to work for more than one employer. However, Congress clearly expressed its intent that the transition to the INA be eased as much as possible and included provision for the continued use of alien workers.
See
48 U.S.C. 1806 note. As such, this final rule permits a beneficiary to work for more than one employer as long as each employer files a separate Form I-129CW petition with DHS.
See
new 8 CFR 214.2(w)(5). Biometrics and other security checks will be used to confirm identity and status in order to help prevent any fraud resulting from this provision. Therefore, no changes are necessary or made in the final rule as a result of this comment.
(h) Validity Period
Two commenters opposed the validity period of the CW classification provided in the interim rule. They stated that limiting workers to only ten days in the CNMI after their employment is completed is unrealistically short and unfair to those with pending disputes or skills that can be used in the CNMI. As a result of this limited validity period, nonimmigrant resident aliens can be deported even if they have a claim pending against an employer. The commenters further asserted that this result is contrary to opinions issued by the CNMI federal district court which require both an extension of stay in the Commonwealth to prosecute claims and temporary work opportunities while awaiting the completion of the case or claim.
The commenters did not cite specific cases, but DHS is aware of decisions from the CNMI courts relating to the removal of aliens with pending labor cases and of case law from the U.S. District Court for the Northern Mariana Islands relating to the employment privileges of aliens under former CNMI immigration law.
See, e.g.,
Office of Att'y Gen.
v.
Paran,
1994 WL 725954 (N. Mar. I. 1994);
Office of Att'y Gen.
v.
Rivera,
1993 WL 307651 (N. Mar. I. 1993);
cf. Tran
v.
CNMI,
780 F. Supp. 709 (D.N.M.I. 1991) (no right of alien employment in CNMI under U.S. Constitution). DHS notes that case law applying former CNMI law to the removal of aliens is not applicable to Federal immigration law. Pending labor cases before CNMI authorities may involve claims for unpaid wages or other labor law issues, but no longer involve the authority to provide or revoke work authorization, as those are now matters of Federal immigration law.
Another DHS component, U.S. Immigration and Customs Enforcement (ICE), has the authority to institute removal proceedings for unauthorized aliens. DHS respects the importance of labor claims, and ICE may exercise its prosecutorial discretion as appropriate when considering the possible removal of aliens who are pursuing such claims. As with other employment-based statuses under U.S. immigration law, court actions and removal proceedings are independent of what regulations may provide regarding the validity of CW status. It is not necessary to spell out in regulations the effects of such claims on a nonimmigrant's status.
This final rule retains the substance of the interim final rule's provision stating
that the beneficiary may be admitted to the CNMI up to ten days before the validity period begins and may remain no later than ten days after the validity period ends. This validity period is consistent with other nonimmigrant categories (
see
8 CFR 214.2(h)(13)(i)(A), pertaining to H nonimmigrants), and DHS believes it permits the necessary flexibility for travel and living arrangements to be made both before and after a period of authorized employment. However, further review of the provision in light of the comment has led to some technical reorganization in the final rule in order to state the relevant time periods more consistently and clearly. 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 for 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.
See
new 8 CFR 214.2(w)(23).
(i) Filing Location
Two commenters suggested that transitional worker petitions be processed at the Saipan Application Support Center instead of the California Service Center. Petitions not typically requiring an interview as part of the adjudication process, including employment-based petitions such as CW petitions, are normally processed at USCIS Service Centers. USCIS has found this to be the most efficient and cost-effective approach. Due to the CNMI's geographic location, DHS has determined that CW petitions will be processed by the California Service Center (CSC) in Laguna Niguel, California. Such centralization ensures that one specialized unit processes all the CNMI filings in order to ensure more consistent adjudications. The comment has not been adopted.
(j) Paper-Based System
Two commenters criticized the rule's reliance on a paper-based system and categorized it as wasteful and time consuming. DHS agrees that direct, electronic or online interactions and information transmittal is the most efficient method to use when possible. DHS uses electronic procedures whenever that option is available. Nevertheless, for most filings, a combination of electronic and paper-based filing must still be utilized. DHS continues to strive for efficiency and the transformation of its systems; however, DHS is not able to accept this petition via electronic filing at this time. Nonetheless, this rule does not mandate a paper-based system and a transition to electronic submission could be effectuated when that becomes a viable option.
5. Obtaining CW Status
Three commenters offered suggestions or requested clarification on the process for conferring transitional worker status to individuals currently in the CNMI.
(a) Obtaining CW Status in the CNMI
Two commenters pointed out that the rule does not specifically indicate how CNMI permit holders will be able to obtain a Federal immigration status while in the CNMI. The commenters noted that these aliens have not been admitted by a U.S. immigration officer and thus are not technically eligible to change their status under current regulations. The commenters proposed an amendment to 8 CFR part 248 to provide DHS with the authority to change their CNMI status to Federal immigration status. They stated that this change would alleviate the need for all aliens to depart the CNMI in order to obtain the CW-1 status abroad through the consular process. One of the commenters also proposed an amendment to 8 CFR part 245 to provide DHS with the authority to adjust the CNMI status of such aliens to immigrant categories under the INA.
As noted, all aliens present in the CNMI on the transition date (other than U.S. lawful permanent residents) became present in the United States without admission or parole by operation of law.
See
48 U.S.C. 1806(d)(1), (2). DHS acknowledges that the interim rule did not specifically state the DHS authority to grant a federally-based immigration status. The INA authorizes USCIS to change an alien's status from one nonimmigrant status to another, but there is no provision specifically providing for a grant of nonimmigrant status to an alien present in the United States who is not already in a nonimmigrant status.
See
INA sec. 248, 8 U.S.C. 1258. As the commenter points out, the primary impediment to direct grants of nonimmigrant status to aliens present in the CNMI is inadmissibility under section 212(a)(6)(A)(i) of the INA for presence in the United States without admission or parole. This ground of inadmissibility may be overcome, however, through exercise of waiver authority under section 212(d)(3)(A)(ii) of the INA.
See
INA sec. 212(d)(3)(A)(ii), 8 U.S.C. 1182(d)(3)(A)(ii).
The
Supplementary Information
to the interim rule discussed the fact that CW status could be granted directly to aliens present in the CNMI, unlike aliens abroad seeking that status who first must be issued an CW nonimmigrant visa by the Department of State at a consular post abroad and thereafter seek admission in CW status.
See
74 FR 55099. The regulatory language, however, was not explicit about how that would be done consistent with the requirement that the alien be admissible to the United States. Thus, in order to give additional assurance and direction on this point to the affected public and to USCIS adjudicators, the final rule clarifies that a waiver of inadmissibility under section 212(d)(3)(A)(ii) of the INA may be granted to an eligible alien seeking an initial grant of CW status from DHS while in the CNMI.
See
new 8 CFR 214.2(w)(24). Such aliens will necessarily lack a CW nonimmigrant visa issued by the Department of State, and are thus inadmissible under section 212(a)(7)(B)(i)(II) of the INA; they also by definition will (unless changing to CW status from another nonimmigrant status under the INA, or the recipient of a DHS grant of parole) be aliens present in the United States without admission or parole, and thus inadmissible under section 212(a)(6)(A) of the INA. Therefore, the rule allows for a waiver of those two grounds of inadmissibility for aliens with appropriate documentation.
This waiver provision is based upon the specific language in section 212(d)(3)(A)(ii) that in the case of an alien “in possession of appropriate documents” who is seeking admission as a nonimmigrant, most grounds of inadmissibility may be discretionarily waived.
See
INA sec. 212(d)(3)(A)(ii), 8 U.S.C. 1182(d)(3)(A)(ii). In the unique situation of the CNMI and considering the broad discretion provided to DHS in the CNRA to set the terms and conditions of the transitional worker program for aliens not otherwise eligible for admission under the INA, and the stated goal of the CNRA to mitigate potential adverse consequences of transition to the extent possible, DHS considers that the “appropriate documentation” requirement for the waiver may be met by aliens who possess documentation that they are lawfully present in the CNMI, as defined in new 8 CFR 214.2(w)(1)(v) (see further discussion below on lawful presence).
In the case of spouses and children present in the CNMI who are seeking a derivative grant of CW-2 nonimmigrant status based upon a principal CW-1 approved petition, to satisfy the “appropriate documents” requirement
for a section 212(d)(3)(A)(ii) waiver of inadmissibility under INA sections 212(a)(6)(A)(i) and 212(a)(7)(B)(i)(II) as described in 8 CFR 214.2(w)(24), the applicant must also possess documentation that he or she is lawfully present in the CNMI.
See
new 8 CFR 214.2(w)(1)(v).
Therefore, the final rule clarifies that DHS may, without additional application or fee, grant a section 212(d)(3)(A)(ii) waiver to an alien approved for an initial grant of CW-1 transitional worker status or CW-2 dependent status in the CNMI and in possession of appropriate documents.
See
new 8 CFR 214.2(w)(24). It provides that appropriate documentation for purposes of granting this waiver to aliens in the CNMI includes a valid, unexpired passport and other documentary evidence that the alien is lawfully present as defined by the rule, such as a CNMI-issued “umbrella permit” or a DHS-issued Form I-94.
Id.
Evidence that the alien possesses this documentation may accompany the employer's petition that includes the employer's attestation as to the alien's lawful presence; may in the case of a derivative spouse or minor child accompany the Form I-539 application for derivative status; or may be provided in such other manner as USCIS may designate.
Id.
Based upon this waiver, an alien lawfully present in the CNMI will be eligible for a grant of CW-1 or CW-2 status in the CNMI without first obtaining a CW visa abroad, provided that the applicant is otherwise admissible and eligible for CW status.
DHS also has revised 8 CFR 214.2(w)(14) to describe more clearly 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)) also serves as the application for CW-1 status. Dependents present in the CNMI may apply for CW-2 dependent status on Form I-539 (or such alternative form as USCIS may designate) in accordance with the form instructions. The CW-2 status may not be approved until the CW-1 petition is approved. A spouse or child applying for CW-2 status on Form I-539 is eligible to apply for a waiver of the fee based upon inability to pay as provided by 8 CFR 103.7(c).
See
new 8 CFR 214.2 (w)(14). Currently, the fee for a Form I-539 is $290, and the biometrics fee is $85 (unless the alien is under the age of 14 or is at least 79 years of age).
See
8 CFR 103.7(b)(1)(i)(C); 8 CFR 103.7(b)(1)(i)(X); new 8 CFR 214.2(w)(15).
The final rule also makes conforming changes to the description of eligible principal and derivative aliens with respect to inadmissibility, to confirm that the alien must not be inadmissible, except to the extent that any applicable ground of inadmissibility is overcome with the appropriate waiver.
See
new 8 CFR 214.2(w)(2)(v) and 214.2(w)(3)(iii).
(b) Biometric Fee for Obtaining Status
One commenter requested clarification on the biometric fee requirement and the availability of a fee waiver. Aliens present in the CNMI generally will not have previously supplied biometric information to the Federal government. As a result, the Federal government will not have conducted the necessary background checks required for most immigration benefits under the immigration laws of the United States. DHS will require applicants for CW status to provide biometrics.
See
new 8 CFR 214.2(w)(15). Without biometrics, a CW petition cannot be approved. This requirement will ensure that CW status is not granted to anyone who is inadmissible and not granted a waiver of such ground of inadmissibility.
See
INA sec. 212(a), 8 U.S.C. 1182(a). A fee waiver is available based upon a showing of inability to pay the Form I-129CW and/or biometrics fees.
See
8 CFR 103.7(c)(3)(i); new 8 CFR 103.7(c)(3)(iii).
6. Lawful Presence and Travel
Seventy-nine commenters expressed concern about, or offered suggestions regarding, the rule's lawful presence and travel requirements.
(a) Lawful Presence
DHS received five comments regarding the rule's lawful presence requirement. One commenter suggested that transitional worker status should be afforded to all alien workers with legal CNMI status. Four commenters expressed concern regarding the requirement that an employer petition for a guest worker while she or he is in lawful CNMI status. Three of these commenters stated that this requirement will negatively impact guest workers with expiring or expired umbrella permits who do not have a sponsoring employer. In order to alleviate this problem, one commenter suggested that DHS allow all umbrella permit holders to self-petition when a sponsoring employer is not available. Another stated that the requirement does not take into account the need for new foreign workers necessary to support new projects.
DHS is aware of the interest of employers in the CNMI to bring in new hires. The interim rule accordingly provided that the CW classification would be available to aliens coming from abroad.
See
74 FR at 55096; 74 FR at 55109 (new 8 CFR 214.2(w)(2)). Additionally, DHS is aware of the public's concern regarding the lawful presence requirement and how the requirement affects the ability to obtain new hires from within the CNMI. In the interim rule, DHS posited that requiring lawful presence was the most efficient means to begin the congressionally-mandated reduction in the number of transitional workers to zero by the end of the transition period.
Id.
Furthermore, DHS believed that allowing workers without lawful status in the CNMI to obtain CW-1 status would encourage noncompliance with CNMI immigration law before the transition program effective date by removing the incentive for workers with lawful status to maintain or reacquire such lawful status under CNMI law prior to the transition.
Id.
The interim rule's intent to encourage legal compliance before the transition program effective date is now moot, as that date has passed. Nonetheless, DHS has decided to maintain a lawful presence requirement to remove the incentive for a person to enter the CNMI illegally or overstay his or her visa or status expiration date to seek employment in the CNMI through the CW program.
See
new 8 CFR 214.2(w)(2)(iv). The worker must either be lawfully present under the grandfather provision applicable until November 27, 2011, or have been admitted or paroled by DHS on or after the transition program effective date other than for a short visit for business or pleasure.
See
48 U.S.C. 1806(e)(1), (2); new 8 CFR 214.2(w)(1)(v). This lawful presence requirement will smooth the transition between these statuses. The final rule removes language relating to lawful presence requirements for CW petitions filed before the transition program effective date since that date has already passed, updates the reference to lawful presence under 48 U.S.C. 1806(e) to reflect statutory codification of this CNRA provision, clarifies reference to visitors for business or pleasure to specifically include (as ineligible for CW status) aliens from the People's Republic of China or the Russian Federation paroled as visitors into the CNMI, and clarifies that the alien must still be within the period of admission or parole referred to in the definition.
See
new 8 CFR
214.2(w)(1)(v). However, as previously discussed in section 4(a) of Part IV of this Supplementary Information, DHS has revised the definition of “lawful presence” in this final rule to clarify that in the case of aliens lawfully present under the grandfather provision, lawful presence is determined as of the petition filing date. This accommodation ensures that applications for CW status filed before November 27, 2011 for aliens lawfully present in the CNMI may be adjudicated and granted after that date.
DHS is unable to adopt the commenter's suggestion that DHS allow all umbrella permit holders to self-petition when a sponsoring employer is not available. The CNRA requires that DHS establish a system for allocating “permits to be issued to prospective employers * * *.”
See
48 U.S.C. 1806(d)(2). Allowing for a grant of CW status without a petitioning employer would be contrary to that provision. As such, DHS retains the requirement for an employer to file a petition for a CW-1 nonimmigrant worker.
See
new 8 CFR 214.2(w)(5). This petitioning process is necessary to grant such status under the INA, as required by the CNRA.
(b) Umbrella Permits
Six commenters out of 79 expressed concern regarding the umbrella permit issued by the CNMI government and its effect during the transition period. Five commenters expressed concern regarding the validity of the umbrella permit under U.S. immigration law. One commenter stated that the DHS recognition of the umbrella permit should be accompanied by provisions that address an employer's responsibility for a former foreign worker with an expired CNMI labor contract. Another commenter expressed concern that the rule did not contain a mechanism to ensure that U.S. workers are not displaced by the foreign worker pool created through the recognition by DHS of the CNMI umbrella permit. The commenter suggested that foreign workers with a valid CNMI work permit be allowed to remain in the CNMI until November 2011 without additional limitations, even if they are not employed. A sixth commenter suggested that DHS provide aliens with pending cases before the CNMI Department of Labor with work authorization.
DHS fully considered these comments regarding the validity of the umbrella permits, how they relate to unemployed workers, the protection of U.S. workers, and how they relate the objectives of the CNRA. DHS believes that the existence of umbrella permits does not frustrate implementation of the CNRA or other U.S. immigration laws in the CNMI or present problems with the implementation of the transitional worker program. As provided in the CNRA and this rule, work authorization is allowed with a valid CNMI immigration status until such status expires, or for two years after the transition date.
See
48 U.S.C. 1806(e). DHS has decided that umbrella permits issued by the CNMI government are valid as evidence of authorized stay and work authorization. This decision should assuage the commenter's concerns as to their continued validity.
DHS cannot make amendments to the rule in response to commenters' suggested methods for dealing with individuals with work permits but no employment (due to, for example, an expired contract or a labor dispute). The transitional worker program provides the “number, terms, and conditions of permits to be issued to prospective employers for each such nonimmigrant worker,” and was not intended to protect residents with CNMI permits but no employment.
See
48 U.S.C. 1806(d)(2). This rule does not prohibit someone currently with legal status (lawful presence) but no employment from receiving CW status if an employer petitions for him or her. Thus no change is necessary as a result of this suggestion.
As for the comment suggesting additional provisions to ensure that U.S. workers are not displaced by CNMI umbrella permit holders, no changes to the regulation have been made. The number of available U.S. workers relative to aliens will be considered when deciding on the level of transitional workers that may be required in each successive year of the transition period. Such consideration will address whether sufficient U.S. workers are available to meet the labor needs of the CNMI. USCIS has issued information that clarifies regulations and policies and their application in the CNMI.
10
That document provides additional information on the legal treatment of umbrella permits.
10
See
USCIS, Questions & Answers: Employment Authorization and Verification in the Commonwealth of the Northern Mariana Islands (CNMI) (Mar. 12, 2010), available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3621788503457210VgnVCM100000082ca60aRCRD&vgnextchannel=14cb86c5b741f110VgnVCM1000004718190aRCRD.
(c) Travel Restrictions
Fifteen out of 79 commenters stated that the inability of DHS to offer concrete options for guest workers has led to a fear of traveling abroad due to the uncertainty of re-entry into the CNMI. Five of these commenters expressed concern regarding the rule's visa requirement to re-enter the CNMI after travel abroad given what they characterized as the probability of visa denial by the U.S. Embassy. Some commenters suggested that DHS issue the transitional worker status without a travel restriction.
DHS is aware of the public's concern regarding the burden of obtaining a visa to re-enter the CNMI. The CNRA provides for the creation of a geographically limited nonimmigrant classification and expressly states that such classification “shall not be valid for admission to the United States * * * except admission to the Commonwealth.”
See
48 U.S.C. 1806(d)(3). DHS must follow those statutory restrictions for the CW classification.
As previously noted, the transitional worker does not require a CW visa to legally remain and work in the CNMI. This final rule clarifies that such status may be granted to the beneficiary directly in the CNMI.
See
new 8 CFR 214.2(w)(14). The CNRA intended the transitional worker program to be a mechanism for transitioning the current alien workforce in the CNMI to an INA classification first, then, if not eligible for an INA-based classification, to a transitional worker under this rule until such classification could be attained. Although the CNRA states that the transitional worker program was intended for aliens seeking to enter the Commonwealth (48 U.S.C. 1806(d)), DHS does not interpret that language to require that transitional workers under this program only be outside the CNMI. The CNRA also provides that DHS will set the conditions for admission and authorize the issuance of nonimmigrant visas for aliens who will be permitted to engage in employment pursuant to the transition program.
See
48 U.S.C. 1806(d)(3). To interpret those provisions together to require departure prior to the grant of status and return to the CNMI would be unreasonable in light of the intent of Congress in passing the CNRA to “maximize the Commonwealth's potential for future economic and business growth” in the CNMI.
See
48 U.S.C. 1806 note. Therefore, as previously discussed, this final rule clarifies the authority and process by which applicants who are already within the CNMI may be determined to be admissible to the United States and granted CW status without requiring that they first depart the CNMI in order to obtain a visa. An alien in the CNMI who is eligible for a grant of CW status will not have to make a trip abroad
solely for the purpose of obtaining a visa. If DHS approves a CW petition for such alien, the CW worker will receive an approval notice with an attached Form I-94, Arrival-Departure Record, which serves as evidence of lawful immigration status.
While the I-94 is evidence of lawful immigration status, Federal regulations require that a nonimmigrant return the I-94 departure record to U.S. officials upon exiting the United States.
See
8 CFR 231.2. Therefore, if the CW worker travels abroad, he or she will need to relinquish the I-94 upon departure. The CW worker will then possess only the USCIS Form I-797, Notice of Approval, as evidence of his or her CW status. The alien will need to present that document to a U.S. embassy abroad in order to obtain a CW visa. Upon return to the CNMI from foreign travel and an application for admission, he or she will receive a new Form I-94. As with most other aliens with INA-based nonimmigrant statuses, a CW-1 nonimmigrant will need a visa to be admitted to the CNMI upon return from foreign travel.
See
new 8 CFR 214.2(w)(22). DHS is maintaining the visa requirement for CW nonimmigrants who leave the CNMI and seek to return. A primary purpose of the CNRA is “to ensure that effective border control procedures are implemented and observed, and that national security and homeland security issues are properly addressed.”
See
CNRA sec. 701(a), 48 U.S.C.A. 1806 note. The visa issuance process is an important aspect of effective border control. Therefore, DHS does not consider it appropriate as a matter of travel security and immigration policy to waive visa-related grounds of inadmissibility for CW nonimmigrants who leave the CNMI and seek to return.
However, as discussed further below, DHS is providing in this final rule an exception to limitations on travel to Guam in CW status that will permit nationals of the Philippines to transit Guam when travelling to or from the Philippines. Those CW nonimmigrants may travel to the Philippines through Guam without violating their CW status. CW nonimmigrants still must obtain a visa to return from the Philippines through Guam to the CNMI, but may apply to CBP upon arrival in Guam for a discretionary exercise of parole authority to enable their onward travel and admission to the CNMI in CW status. DHS hopes that this will alleviate to some degree travel problems arising from the general limitation of CW status to the CNMI.
(d) Travel With CW Status
Eleven commenters stated that transitional worker status holders should be permitted to leave and re-enter the CNMI on CW status alone, without first obtaining U.S. visas in their countries of origin. DHS notes that there is a distinct difference between a visa and a status. All nonimmigrants
11
must have a visa, issued by DOS, in order to apply for admission to the United States. While CW status will be issued by DHS, such status only sets the parameters for the transitional worker's authorized stay within the Commonwealth. However, all nonimmigrants must have a visa, issued by the Department of State, in order to request permission to apply for admission to the United States. Therefore, a CW worker must obtain a visa before returning to the CNMI after foreign travel and no changes are made as a result of these comments.
11
Except those covered by visa waiver programs for temporary visitors for business or pleasure or specific statutory or regulatory provisions authorizing such travel.
Fourteen commenters suggested that an automatic CW-1 visa should accompany the issuance of CW-1 nonimmigrant status in order to give nonimmigrant workers and their dependents the freedom to exit and re-enter in the CNMI without unnecessary delay and uncertainty on re-admittance. DHS notes again that there is a distinct difference between a visa and a status. DOS issues a visa at a U.S. Embassy or consulate office abroad. A visa, placed in the alien's passport, allows an alien to travel to a port of entry and request permission to enter the United States. While having a visa does not guarantee entry to the United States, it does indicate that a consular officer has determined that the alien is eligible to seek entry for the specific purpose covered by that visa.
DHS is responsible for all admissions into the United States. If admissible, DHS admits an alien and grants his or her status in the United States. The specified status controls the period of stay and conditions of such stay. In most cases, DHS grants status at the port of entry. For CW workers, DHS may exercise its discretionary waiver authority to allow beneficiaries of a CW petition in the CNMI to seek a grant of transitional worker status without requiring that they depart the Commonwealth.
See
new 8 CFR 214.2(w)(14)(ii) and new 8 CFR 214.2(w)(24). The grant of such status is within DHS's purview. Visa issuance is handled by DOS. As such, an automatic CW-1 visa cannot accompany the issuance of CW-1 nonimmigrant status because DHS does not issue visas. Nor does DHS consider it appropriate as a matter of travel security and immigration policy to waive visa-based grounds of inadmissibility for those CW nonimmigrants who travel abroad. Thus no change is made as a result of these comments.
(e) Travel With the CNMI Permit
Eleven commenters suggested that DHS should allow travel and re-entry on current CNMI permits. The commenters stated that the grandfather provision
12
allows the CNMI foreign workers to work and stay in the CNMI as long as their permits are valid. The previous CNMI permit system allowed foreign workers to travel outside the CNMI and return on a valid CNMI entry permit. As such, the commenters argue that any recognition of the permit should include the ability to leave and re-enter the CNMI on the CNMI permit. In the alternative, the commenters request that DHS use parole or a visa waiver to allow travel on the CNMI permit. Although these comments are not directly relevant to the final rule, which pertains to the specific CW nonimmigrant status rather than to “grandfathered” aliens, DHS is able to respond to the comments by providing information about its current policies with respect to travel on CNMI permits.
12
The CNRA contains two provisions (commonly referred to as the “grandfather provisions”) related to the continuation of presence and work authorization in the CNMI after the transition effective date. The CNRA requires DHS to recognize valid CNMI immigration status (and prohibits removal of such aliens for being present in the CNMI without admission or parole) until the expiration of such status up to a maximum of two years after the transition date. 48 U.S.C. 1806(e)(1). The CNRA also requires that DHS recognize employment authorization until the expiration of such status up to a maximum of two years after the transition date. 48 U.S.C. 1806(e)(2).
Consistent with the CNRA, DHS is recognizing valid CNMI immigration status and work authorization until the expiration of such status up to a maximum of two years after the transition date.
See
48 U.S.C. 1806(e). As previously discussed, additional regulations regarding treatment of the CNMI work permit with regard to exit and re-entry to the CNMI are outside the scope of the CW classification and this rule. The CNRA does not permit travel on the CNMI permit.
See
48 U.S.C. 1806(d)(3). Nevertheless, to alleviate concern about the inability to travel on the CNMI permit, DHS may use its parole authority under the INA for significant public benefit and/or humanitarian grounds, to facilitate travel when necessary.
See
INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
DHS has established two separate parole procedures for CNMI permit holders to facilitate their travel to the rest of the United States or abroad. Under the parole procedure for domestic travel, CNMI permit holders must submit a written parole request (and documentation) to the USCIS Application Support Center (ASC) in Saipan, before departing the CNMI.
13
Approval of the parole request will allow bearers to travel within the United States and maintain the validity of their CNMI permits.
13
See
USCIS, Update: USCIS Announces Parole Procedures for Travel within the U.S.A. (Dec. 16, 2009),
available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6a71f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=14cb86c5b741f110VgnVCM1000004718190aRCRD.
Under the parole procedures for foreign travel, CNMI permit holders must obtain advance parole before departing the CNMI, if they are not lawful permanent residents or do not have an appropriate U.S. visa.
14
Advance parole represents permission to seek admission into the United States, in this instance the CNMI, or be paroled into the CNMI after traveling outside the United States. Advance parole does not provide any status within the United States while traveling abroad and may be revoked at any time. However, advance parole in this context will allow individuals lawfully living and working in the CNMI during the period ending November 27, 2011, to continue to do so when they return from foreign travel, if paroled into the CNMI by CBP. Aliens may request advance parole by filing an Application for Travel Document (Form I-131) with fee to the Guam office in accordance with the form instructions. Aliens with urgent travel plans (within 72 hours) may make an InfoPass appointment at the Saipan ASC and submit Form I-131 with the necessary supporting documentation in person. Without a grant of advance parole or other travel documentation that is acceptable under U.S. immigration law, such aliens may not seek to be admitted into the CNMI. These parole procedures should alleviate some of the commenters' concerns about the inability of CNMI permit holders to travel.
14
See
USCIS, Update: USCIS Announces Advance Parole Procedures for the CNMI (Dec. 16, 2009),
available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=44c2f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=14cb86c5b741f110VgnVCM1000004718190aRCRD.
(f) Work-Related Travel to Guam and the Rest of the United States
Three commenters stated that the rule's travel restriction prevents them from working in Guam or the U.S. mainland. One of these commenters stated that the rule had the unintended consequence of also prohibiting work-related travel to Guam or the U.S. mainland. This commenter suggested an automatic authorization of the beneficiary's work-related travel and ability to work in Guam or on the U.S. mainland.
While DHS understands this concern, the CNRA expressly limits the transitional worker visa to admission to the CNMI only.
See
48 U.S.C. 1806(d)(3). The statute provides for the creation of a geographically-limited nonimmigrant classification and expressly states that such classification will not be valid for admission to or employment in the United States, except the Commonwealth.
Id.
This rule is limited to the CNMI by the CNRA and it cannot provide more than prescribed by that law. The purpose of CW classification is to allow CNMI employers to utilize foreign workers during the transition period. The transition period also enables employers to make long-range plans as to their staffing needs and their eligibility under other, unrestricted INA classifications. Employment of aliens in Guam is governed by the INA and is not affected by this rule.
(g) Travel to Guam and the Rest of the United States
Two commenters expressed concern that travel and re-entry on the CNMI permit is not allowed to and from Guam or the U.S. mainland. One commenter was specifically concerned about the inability to re-enter the CNMI on the permit or a B1/B2 visa after travel to Guam or the U.S. mainland. Another commenter requested clarification on whether DHS will allow long-term alien workers to travel freely to the U.S. mainland for further education, training, or medical purposes after the transition period.
While these comments appeared to be specifically directed at travel with the CNMI permits previously issued by the CNMI government and valid for CNMI work authorization until November 27, 2011, which is a subject this final rule does not address, DHS notes that CNMI permit holders may apply for travel documents using the procedures for obtaining parole approval as mentioned above.
See
8 CFR 223.2. Parole will allow permit holders to travel within the United States and maintain the validity of their CNMI permits. CNMI permit holders may no longer use the Visa Waiver Program (VWP) or a B visa (tourist or business) for domestic travel. The “B” nonimmigrant status is intended solely for individuals residing outside the United States who are making a short visit to the United States for business or pleasure and not for the purpose of employment or study. As the CNMI is now within the United States for purposes of U.S. immigration law, B status is inappropriate for anyone residing, working, or studying in the CNMI, unless that person establishes that he or she has a foreign residence which he or she has no intention to abandon.
Even if the specific comments focused on current documentation rather than travel with the new CW nonimmigrant status, the concern also applies to that travel and DHS has considered it further in light of the interim final rule's general prohibition on travel in CW status elsewhere in the United States. DHS has responded in this final rule to concerns about inability to travel to Guam by providing a specific, limited exception to the general provision in the interim final rule (which is retained in the final rule) that a CW alien who travels, or attempts to travel to another part of the United States will put himself or herself out of status.
See
new 8 CFR 214.2(w)(22).
While some foreign workers, particularly those from Japan and South Korea, may board a direct flight from the CNMI to their countries of nationality, Philippine nationals, in particular, may not, based on current flight routes, easily travel to or return from their country of nationality without transiting through Guam. Their only other options are to travel through Japan or South Korea. Compared to the short commuter air flight between Saipan and Guam and the three and one-half hour nonstop flight from Guam to Manila, an itinerary from Saipan to Manila through Japan typically would require a three hour and forty-five minute flight from Saipan to Tokyo, connecting to a five-hour flight from Tokyo to Manila. Itineraries through Seoul, Korea are no shorter. Although airline pricing is of course not necessarily directly reflective of distance, and airline schedules and pricing are subject to frequent change, as a general matter DHS understands that foreclosing the option of travel between the CNMI and the Philippines through Guam in CW status is likely to add significant time and expense to this travel in many cases. Providing some accommodation for this need will help ameliorate potential negative effects of the CNRA, including (but not
necessarily limited to) economic burden on CW workers and their families, and some possible reduced appeal of the CW program to employers and workers otherwise.
Before the transition period, these foreign workers were able to apply for and be granted visitor visas to transit Guam or, in medical emergencies, received authorization to travel through Guam. The CNMI is now part of the United States under the INA and foreign workers residing in the CNMI can no longer use a nonimmigrant visitor visa to transit through Guam to a foreign destination, as the “B” category for nonimmigrant visitors for business or pleasure requires that the alien have a foreign residence.
After careful consideration, DHS has determined to exercise its authority under section 212(d)(7) and 214(a)(1) of the INA (8 U.S.C. 1182(d)(7) and 1184(a)(1)) to enable aliens who are CW status holders who are Philippine nationals to maintain their status and depart the CNMI en route to the Philippines, and return to the CNMI from the Philippines through Guam, as long as the travel is on a direct Guam transit itinerary, without violating that status while in Guam or the CNMI.
See
new 8 CFR 214.2(w)(22)(iii). Although such travel will not violate CW status, the availability of such travel is subject to all other grounds of inadmissibility and inspection at the port of entry. A direct Guam transit itinerary must be from the CNMI to Guam to a Philippine port or from a Philippine port to Guam to the CNMI and involve no more than an 8 hour scheduled flight stopover or connection between flights in Guam, without leaving the Guam airport.
Id.
Although such travel will be subject to all other requirements of admissibility at a port of entry, it will not violate the conditions of the CW status.
Id.
If arriving from the Philippines, the alien may be paroled upon arrival in Guam if the immigration officer determines that such parole is appropriate, including examining whether the alien would be admissible to the CNMI.
Id.
Upon a determination by an immigration officer that a favorable exercise of discretionary parole authority is warranted, the CW nonimmigrant will be paroled into Guam and be required to remain at the Guam Airport while awaiting onward travel to the CNMI.
Id.
Prior to departure from Guam for the CNMI, an immigration officer may conduct a preinspection, pursuant to 8 CFR 235.5(a), to determine admissibility in CW status in the CNMI. Alternatively, the CW nonimmigrant will depart Guam and proceed for inspection upon arrival in the CNMI. To the extent that admission is appropriate, the alien will be admitted into the appropriate CW status as provided for by 8 CFR 235.5(a). It is important to note that the final rule's provision for direct transit through Guam for Filipinos in CW status does not waive visa requirements for admission in CW status upon returning from the Philippines. A CW nonimmigrant will not violate CW status by transiting Guam in these circumstances, but will need a visa to return to the CNMI (either directly or through Guam) to resume CW status.
Id.
DHS believes these changes address in significant part the commenters' suggestions to reduce the travel restrictions placed on CW workers.
DHS has limited the travel exception permitting CW aliens to transit through the Guam airport to nationals of the Philippines—in addition to the particular reasons of relative travel convenience discussed above—because focusing on Philippine nationals addresses what is by far the largest national group of foreign workers in the CNMI. As described in the DOI Report at 11 Table 1-B, the number of permits issued by the CNMI to alien workers in 2008 by nationality was: Philippines, 15,769; China, 4,569; South Korea, 729; Thailand, 574; Bangladesh, 333; and others, 598. While the pattern of CW application and issuance likely will not track this pattern exactly, DHS believes that a substantial majority of likely CW nonimmigrants also will be nationals of the Philippines. It also has been USCIS's experience to date during the transition period that the vast majority of applications for advance parole for travel purposes from aliens in the CNMI have come from Philippine nationals.
(h) Visa Waiver in Lieu of Visa Requirement
Eight commenters suggested that DHS issue a visa waiver in lieu of requiring a visa. Seven of these commenters suggested that DHS waive the visa requirement for guest workers in the same manner in which nationals of Russia and China were provided with a waiver. Another suggested that DHS issue a visa waiver for those with a valid reason for leaving and returning to the CNMI.
DHS does not exercise visa waiver authority to allow admission into the CNMI without a visa for nationals of the People's Republic of China (PRC) and the Russian Federation (Russia). Rather, DHS may, in its discretion on a case by case basis, exercise parole authority to allow eligible nationals of the PRC and Russia to enter the CNMI temporarily.
See
INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). This use of parole authority for short-term visitors is inapplicable to aliens seeking to be admitted in a nonimmigrant status, such as transitional worker status. As previously discussed, DHS has considered the potential applicability of waivers of nonimmigrant visa requirements and use of parole authority in this context, and the travel security and immigration policy issues surrounding the decision to provide any such waivers to aliens in CW status who choose to leave the CNMI and seek to return. DHS has decided that travel of CW workers must be monitored and controlled in a more systematic fashion than a program for short-term visitors. The visa issuance procedures required in this rule provide the necessary level of documentation and review to address such concerns. DHS has not made any changes to the final rule as a result of these comments.
(i) Re-Entry Permit or Parole in Lieu of Visa Requirement
Eight commenters suggested that DHS issue a re-entry permit or advance parole. Specifically, four commenters suggested that DHS allow CW status holders, who must depart for emergent reasons, to apply for a re-entry permit at the Saipan office. One suggested that DHS issue a visa waiver for any foreign worker who wishes to travel with a CNMI Entry Permit as long as they notify the Saipan office in advance about their travel. Another suggested that DHS should allow CW status holders to travel and re-enter the CNMI upon presentation of the CNMI Entry Permit, evidence of CW-1/CW-2 status, and evidence that they notified the USCIS Saipan office of their intention to leave and re-enter the CNMI. Another two commenters suggested that DHS use its parole authority to allow workers to enter and exit the Commonwealth during the term of the CW status.
A re-entry permit is not an appropriate means for CW status holders to request re-entry after a trip abroad. A re-entry permit is a travel document issued to lawful permanent residents and conditional residents to re-enter the U.S. after travel of one year or more abroad.
See
8 CFR 223.1(a). With respect to parole, parole of aliens seeking to resume CW status is legally incompatible with CW status.
15
Aliens paroled into the United States are affirmatively authorized to remain in
the United States, but do not have nonimmigrant status, and remain applicants for admission. In other words, if DHS paroled a CW alien into the CNMI, that alien would not be a CW alien. Such parole is not to be used to circumvent the visa issuance process. All CW nonimmigrants must have a CW visa to be readmitted in CW status.
See
new 8 CFR 214.2(w)(22). This visa will allow them to apply for admission to resume their CW status and the work authorization incident to that status. Such a visa requirement at the time of admission is consistent with current INA requirements.
See
INA sec. 212(a)(7)(B), 8 U.S.C. 1182(a)(7)(B). DHS has not made any changes to the final rule as a result of these comments.
15
The INA provides DHS with discretion to parole an individual into the United States temporarily under certain conditions for urgent humanitarian reasons or significant public benefit on a case-by-case basis. INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A).
(j) Change of Status in Lieu of Visa Requirement
Two commenters suggested that USCIS process a “change of status” in the CNMI in order to alleviate concerns regarding the rule's visa requirement. Commenters suggested that all CNMI guest workers who are in lawful status and lawfully authorized to work should be able to apply for a “change of status” using a Form that is similar to USCIS Form I-539.
DHS is aware of the public's concern regarding the burden of obtaining a visa to re-enter the CNMI. A transitional worker does not require a CW visa to legally remain and work in the CNMI. As previously discussed, this final rule clarifies that such status may be granted to the beneficiary in the CNMI.
See
new 8 CFR 214.2(w)(14)(ii) and new 8 CFR 214.2(w)(24). If DHS approves the CW petition and the grant of CW nonimmigrant status, the CW worker will receive an approval notice with an attached Form I-94, Arrival-Departure Record, which serves as evidence of lawful immigration status.
However, as with other nonimmigrant statuses under the Act, this in-country grant of status does not permit the status holder to reenter after foreign travel. Moreover, while the I-94 is evidence of lawful immigration status, Federal law requires that a nonimmigrant return the I-94 departure record to U.S. officials upon exiting the United States. Therefore, if the CW worker wants to travel abroad, he or she will not have evidence of the status and will need to obtain a CW visa at a U.S. Embassy or consulate abroad in order to apply for re-admission and receive a new I-94. As with other INA categories, a CW nonimmigrant will need a visa to be admitted to the CNMI upon return from foreign travel.
See
new 8 CFR 214.2(w)(22). The CNRA does not provide for return travel without such a visa.
See
48 U.S.C. 1806(d)(3).
(k) Visa Issuance
Four commenters expressed concern regarding visa issuance abroad and offered suggestions regarding alternative procedures for such issuance. Specifically, two commenters suggested that DHS issue the visa in the United States through an agency to be set-up by DHS. Another suggested that a multiple entry CW visa should be made available within the CNMI to individuals who qualify for CW status. This commenter argued that it is contrary to
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