# Implementation of the Northern Mariana Islands U.S. Workforce Act of 2018

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-08524

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** May 14, 2020
- **Citation:** 85 FR 29264

## Text

DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 208, 209, 212, 214, 235, and 274a
[CIS No. 2630-18; DHS Docket No. USCIS-2019-0003]
RIN 1615-AC28
Implementation of the Northern Mariana Islands U.S. Workforce Act of 2018

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Interim final rule with request for comments.

SUMMARY:

The Department of Homeland Security (DHS) is amending its regulations to implement provisions of the Northern Mariana Islands U.S. Workforce Act of 2018 (Workforce Act), which creates requirements to encourage the hiring of United States workers in the Commonwealth of the Northern Mariana Islands (CNMI) and to ensure that no U.S. worker is placed at a competitive disadvantage for employment compared to a non-U.S. worker or is displaced by a non-U.S. worker.

DATES:

Effective date:
This rule is effective June 18, 2020.

Comment date:
Written comments and related material must be submitted on or before July 13, 2020. Comments on the form, form instructions, and information collection revisions in this interim rule must be submitted on or before June 15, 2020.

ADDRESSES:

You must submit comments, identified as DHS Docket No. USCIS-2019-0003, through
one
of the following methods:

·
Federal eRulemaking Portal
(preferred):
http://www.regulations.gov
. Follow the website instructions for submitting comments.

·
Mail:
Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2019-0003 in your correspondence. Mail must be postmarked by the comment submission deadline.

Comments submitted in a manner other than those listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the interim final rule. Please note that DHS and USCIS cannot accept any comments that are hand delivered or couriered. In addition, USCIS cannot accept mailed comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives.

FOR FURTHER INFORMATION CONTACT:

Michael Graham, Adjudications (Policy) Officer, Office of Policy and Strategy, U.S. Citizenship and Immigration Services (USCIS), DHS, 20 Massachusetts Avenue NW, Washington, DC 20529-2140; telephone 202-272-8377 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

This supplementary information section is organized as follows:

Table of Contents

I. Public Participation

II. Executive Summary

A. Purpose of the Regulatory Action

1. Need for the Regulatory Action and How the Action Will Meet That Need

B. Legal Authority

C. Summary of the Major Provisions of This Regulatory Action

1. Statutory Changes

2. Technical Changes

D. Summary of Costs and Benefits

III. Background

A. Legal Framework

B. Legislative Authority

1. Legislation Prior to the Workforce Act

2. The Workforce Act

IV. Changes to DHS Regulations

A. Codifying the Provisions Effective Immediately Pursuant to the Workforce Act

1. Extension of the Transition Period

2. CW-1 Numerical Limitation

3. CNMI Education Fee

4. Fraud Prevention and Detection Fee

B. CW-1 Numerical Reservation for Specific Occupational Categories

C. U.S. Department of Labor, Temporary Labor Certification Requirement

D. CW-1 Petition Filing Window

E. Semiannual Report for CW-1 Employers

F. Revocations

G. Definition of Legitimate Business

H. Long-Term Workers

I. Bar on Certain Construction Worker Occupations

J. Temporary Departure Requirement

K. Transit Through Guam

L. Other Technical Amendments to DHS Regulations

V. Statutory and Regulatory Requirements

A. Administrative Procedure Act

B. Executive Orders 12866 (Regulatory Planning and Review), 13563 (Improving Regulation and Regulatory Review), and 13771 (Reducing Regulation and Controlling Regulatory Costs)

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995

E. Congressional Review Act

F. Executive Order 13132 (Federalism)

G. Executive Order 12988 (Civil Justice Reform)

H. National Environmental Policy Act (NEPA)

I. Paperwork Reduction Act

J. Family Assessment

K. Signature

I. Public Participation

DHS invites all interested parties to participate in this rulemaking by submitting written data, views, comments, and arguments on all aspects of this interim final rule. DHS also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim final rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to DHS in implementing these changes will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions:
If you submit a comment, you must include the agency name (U.S. Citizenship and Immigration Services) and the DHS Docket No. USCIS-2019-0003 for this rulemaking. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
http://www.regulations.gov,
and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy and Security Notice available at
http://www.regulations.gov
.

Docket: For access to the docket and to read background documents or comments received, go to
http://www.regulations.gov,
referencing DHS Docket No. USCIS-2019-0003. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

II. Executive Summary

A. Purpose of the Regulatory Action

The Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program allows employers within the CNMI to apply for permission to employ nonimmigrant workers who are otherwise ineligible to work in the CNMI under other nonimmigrant

worker categories.
See
Commonwealth of the Northern Mariana Islands Transitional Worker Classification, 76 FR 55502 (Sept. 7, 2011). This transitional worker program was intended to provide for an orderly transition for those workers from the CNMI permit system to the U.S. federal immigration system under the Immigration and Nationality Act (INA), and to mitigate potential harm to the CNMI economy as employers adjust their hiring practices and as foreign workers obtain U.S. immigrant or nonimmigrant status.

On July 24, 2018, President Donald J. Trump signed the Northern Mariana Islands U.S. Workforce Act of 2018 (the Workforce Act), Public Law 115-218, 132 Stat. 1547. The stated purposes of the Workforce Act are to increase the percentage of United States workers in the total workforce of the CNMI, while maintaining the minimum number of non-U.S. workers to meet the demands of the CNMI's economy; to encourage the hiring of United States workers into the CNMI workforce; and to ensure that no U.S. worker is at a competitive disadvantage compared to a non-U.S. worker or is displaced by a non-U.S. worker. Workforce Act sec. 2. For a summary of the statutory history of CNMI immigration provisions, see section III below.

1. Need for the Regulatory Action and How the Action Will Meet That Need

The Workforce Act makes a number of changes to the transitional provisions of Title VII of the Consolidated Natural Resources Act of 2008 (CNRA), Public Law. 110-229, 122 Stat. 754, 853-854—which extended the U.S. immigration laws, with limited exceptions, to the CNMI—and requires the Secretaries of Homeland Security and Labor to each promulgate an Interim Final Rule (IFR) implementing the related statutory changes no later than January 20, 2019, which is 180 days from the date of enactment.
1

(Pub. L. 115-218, sec. 3(b)(1), (2)). The Department of Labor (DOL) IFR was published on April 1, 2019, and went into effect on April 4, 2019.
2

The DHS IFR was delayed by a number of months. The Workforce Act provides the Secretary with the discretionary authority to delay statutory provisions relating to the CW-1 program, except for provisions providing annual numerical caps for such workers, until the effective date of the IFR. (Pub. L. 115-218, sec. 3(e)(2)). On July 25, 2018, DHS announced that it would exercise its discretion, as provided in the Workforce Act, to delay implementation of other statutory changes to the CW-1 program affecting CW-1 filers until DHS issued an IFR.
3

In accordance with the Workforce Act, DHS is amending its regulations. The amendments would:

1
The statutory deadline for rulemaking is 180 days after enactment, or January 20, 2019. However, under 1 CFR 18.17, when a date falls on a weekend or holiday, the next Federal business day is used for publication in the
Federal Register
. In this case, the next business day is January 22, 2019.

2
84 FR 12380 (Apr. 1, 2019).

3

See
USCIS, “New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, and Will Require E-Verify Participation,” available at
https://www.uscis.gov/news/alerts/new-law-extends-cnmi-cw-1-program-mandates-new-fraud-fee-and-will-require-e-verify-participation
(last visited May 28, 2019).

• Reflect the statutory extension of the transition period until December 31, 2029;

• Reflect the statutory CW-1 cap increase for fiscal year (FY) 2019 and codify the statutory CW-1 caps for subsequent fiscal years until the end of the transition period;

• Reflect the increase in the CNMI education funding fee to $200 per worker and the Secretary's discretionary authority to increase this fee in the future and the requirement to submit a new mandatory $50 fraud prevention and detection fee with each CW-1 petition filed;

• Specify the CW-1 numerical reservations for specific occupational categories;

• Require an approved temporary labor certification (TLC) from the DOL prior to filing a CW-1 petition;

• Reflect a minimum wage requirement;

• Impose a new CW-1 petition filing window;

• Require a CW-1 employer to file a semiannual reporting form to verify the CW-1 employment;

• Implement new revocation procedures;

• Revise the definitions of “legitimate business” (which includes participation in E-Verify as a condition of employing a CW-1 worker), “direct Guam transit,” “lawfully present in the CNMI,” and “United States worker,” as well as newly define “participant in good standing in the E-Verify program” and “successor in interest”;

• Establish a new long-term worker subcategory of CW-1;

• Continue the bar on eligibility of certain construction worker occupations under the CW-1 program;

• Make conforming amendments to DHS regulations regarding inadmissibility, deportability, and asylum;

• Extend the asylum bar in the CNMI until December 31, 2029; and

• Impose temporary departure requirements for certain CW-1 workers.

Certain provisions of the Workforce Act took effect immediately upon enactment. Specifically, the Workforce Act extended the CW-1 program through 2029, increased the CW-1 cap for FY 2019, provided new CW-1 caps for subsequent fiscal years, and mandated a new fraud prevention and detection fee with each petition. In addition to extending the CW-1 program, it also immediately extended the following Consolidated Natural Resources Act of 2008
4

provisions until December 31, 2029:

4

See
Public Law 110-229, 122 Stat. 754, 853-854.

• The exemption from national caps for H-1B and H-2B workers in the CNMI and on Guam;

• The bar on asylum applications in the CNMI; and

• The CNMI-Only Nonimmigrant Investor (E-2C) program.

B. Legal Authority

The Secretary of Homeland Security's authority for the regulatory amendments is found in various provisions of the Immigration and Nationality Act (INA), 8 U.S.C. 1101
et seq.,
and the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101
et seq.
General authority for issuing the rule is found in section 103(a) of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to administer and enforce the immigration and nationality laws, and to establish such regulations as the Secretary deems necessary. In addition, section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides the Secretary with authority to prescribe by regulation the terms and conditions of any alien's admission to the United States as a nonimmigrant. Further authority for the regulatory amendments in this interim final rule is found in:

• Title VII of the Consolidated Natural Resources Act of 2008 (CNRA), which extended U.S. immigration law, with limited exceptions, to the CNMI and provided CNMI-specific provisions affecting foreign workers.
See
Public Law 110-229, 122 Stat. 754, 853-854. The CNRA authorized the Secretary of Homeland Security to create a nonimmigrant classification that would ensure CNMI employers have access to adequate labor during the transition period.
See
section 702(a) of the CNRA; 48 U.S.C. 1806(d).

• The Workforce Act, Public Law 115-218, which, among other things, sets statutory caps, imposes a mandatory fraud fee, extends the transition period until December 31,

2029, and requires DHS to issue an interim final rule.

C. Summary of the Major Provisions of This Regulatory Action

1. Statutory Changes

This IFR amends DHS regulations at 8 CFR 214.2(w) to include the following major changes:

First, DHS will revise 8 CFR 214.2(w)(1)(xvi) to reflect the statutory extension of the transition period and the CW program through December 31, 2029. While the CW program was previously extended via the DOL's discretionary authority
5

and later via statute,
6

the related regulation was not revised to reflect any of the CW program extensions. This change will reflect the new sunset date in existing regulations.

5
On June 3, 2014, the Secretary of Labor extended the CW program for an additional 5 years, through December 31, 2019.
See
Secretary of Labor Extends the Transition Period of the Commonwealth of the Northern Mariana Islands-Only Transitional Worker Program, 79 FR 31988 (June 3, 2014).

6
On December 16, 2014, Congress amended the law to extend the transition period until December 31, 2019.
See
Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235, sec. 10, 128 Stat. 2130, 2134. Congress also eliminated the Secretary of Labor's authority to provide for future extensions of the CW-1 program, requiring the CW-1 program to sunset on December 31, 2019.

Second, the Workforce Act provided new CW-1 numerical limitations (caps) for subsequent fiscal years until the end of the transition period on December 31, 2029. To date, the CW-1 caps have been published via Notice in the
Federal Register
for each fiscal year, beginning with FY 2013, in accordance with 8 CFR 214.2 (w)(1)(x). The new CW-1 caps are now set by the Workforce Act for the remainder of the transition period. Consequently, a yearly
Federal Register
Notice is no longer necessary. The CW-1 caps are reflected in this IFR.

Third, this IFR updates the regulation, at 8 CFR 103.7(b)(1)(i)(J) and 8 CFR 214.2(w)(5), to reflect that in 2017 Congress raised the supplemental CNMI education funding fee from $150 to $200
7

per each beneficiary issued CW-1 status, per year. Consistent with the Workforce Act, the IFR also provides the Secretary of Homeland Security the discretion to annually adjust this supplemental fee via notice in the
Federal Register
. This IFR also updates existing regulations, at 8 CFR 103.7(b)(1)(i)(J) and 8 CFR 214.2(w)(5), to include the Workforce Act's requirement that CW-1 employers must pay a mandatory $50 fraud prevention and detection fee with each petition, in addition to other current fees. This new fraud prevention and detection fee does not apply to CW petitions already filed and pending with USCIS as of July 24, 2018.

7
In 2017, Congress enacted the Northern Mariana Islands Economic Expansion Act, Public Law 115-53, 131 Stat. 1091, which increased the supplemental fee paid for each CW permit to $200 and banned issuing new CW-1 permits to construction workers.

Fourth, this IFR updates regulations to include CW-1 cap reservations for certain occupational categories per fiscal year, as recommended by the Governor of the CNMI,
8

and indicates use of the DOL Standard Occupational Classification (SOC) system to specify which occupations are part of this cap reservation.
See
new 8 CFR 214.2(w)(1)(x)(D)(
1
) and (
2
). Accordingly, this IFR makes the following reservations of CW-1 numbers for specified occupational categories: (i) 200 for occupational categories 29-0000 (Healthcare Practitioners and Technical Occupations) and 31-0000 (Healthcare Support Occupations); and (ii) 60 for occupational categories related to the operations of the CNMI public utilities services, to include, but not limited to 17-2081 (Water/Waste Water Engineers), 17-2071 (Electrical Engineers), 17-2141(Mechanical Engineers), and Trades Technicians.
9

New 8 CFR 214.2(w)(1)(x)(D)(
1
). The reserved CW-1 numbers will be made available to eligible petitioners requesting such numbers for a fiscal year in order of filing until exhausted. Unused reserved numbers will not be available to other petitioners.

8

See
Letter from Rafael DLG Torres, Governor of the CNMI, to Kirstjen Nielsen, Secretary, DHS (Aug. 8, 2018), available at
http://www.regulations.gov
under DHS Docket No. USCIS-2019-0003. References in this IFR to “the Governor” are to the Governor of the CNMI.

9
A corresponding SOC code does not exist that would include all Trades Technicians occupations.

Fifth, this IFR revises petition procedures at 214.2(w)(6)(iv) to require that a CW-1 petition must be filed with an approved TLC
10

from DOL. The Workforce Act imposes this requirement for any CW-1 petition with an employment start date in FY 2020 and beyond. The Workforce Act requires a TLC approved by DOL to confirm that there are not sufficient United States workers in the CNMI who are able, willing, qualified, and available to fill the petitioning CW-1 employer's job opportunity. 48 U.S.C. 1806(d)(2)(A). The TLC also confirms that the foreign worker's employment in the job opportunity will not adversely affect the wages or working conditions of similarly employed United States workers.
Id.

10
To obtain a TLC, employers must submit a complete
Application for Prevailing Wage Determination
(Form ETA-9141C) with the OFLC National Prevailing Wage Center (NPWC) containing information about the job opportunity in which the nonimmigrant workers will be employed, as required by 20 CFR 655.410. Once the NPWC issues a prevailing wage determination, the employer may submit the
CW-1 Application for Temporary Employment Certification
and supporting documentation, as required by 20 CFR 655.420-423. Once all CW-1 regulatory requirements are met, the TLC is issued. Under the provisions at 20 CFR 655.452, if DOL issues a TLC, it will transmit a Final Determination notice and a copy of the certified
CW-1 Application for Temporary Employment Certification
(Form ETA-9142C) to the employer, with a copy to the employer's representative if it has one.

Sixth, this IFR revises 8 CFR 214.2(w)(6)(ii)(I) to include the statutory minimum wage requirements for a CW petitioner. It now specifies that the petitioner will pay the beneficiary a wage that is not less than the greater of (1) the CNMI minimum wage; (2) the Federal minimum wage; or (3) the prevailing wage in the CNMI for the occupation in which the beneficiary will be employed, as established by the DOL.

Seventh, this IFR establishes a new filing timeframe for CW-1 petitioners at 8 CFR 214.2(w)(12)(ii). The Workforce Act states that an employer seeking to extend the employment of a CW-1 worker may petition USCIS no earlier than 180 calendar days before the expiration of the CW-1 status. Employers filing an initial petition for CW-1 status may not petition earlier than 120 days before the date of actual need for the beneficiary's services.

Eighth, this IFR requires a CW-1 employer to file a semiannual reporting form to verify the continuing employment and payment of the CW-1 worker under the terms and conditions set forth in the CW-1 petition.
See
new 8 CFR 214.2(w)(26). DHS will implement this new statutory requirement via a new standalone form which will capture data to provide USCIS with the information necessary to help verify the continuing employment and payment of the CW-1 worker, and will contain an attestation confirming those elements. USCIS will not require submission of evidence at the time of filing, but employers must retain documents and records which support the attestation for three years after the ending date of the petition validity period. An employer must retain evidence that supports the semiannual report, including but not limited to: (a) Personnel records for each CW-1 worker including the name, address of current residence in the Commonwealth, age, domicile, citizenship, point of hire, and approved employment contract termination date; (b) payroll records for each CW-1 worker including the O*NET job classification, wage rate or salary,

number of hours worked each week, gross compensation, itemized deductions, and evidence of net payments made and received biweekly; and (c) direct evidence of payment of wages and overtime, such as receipts for cash payments, cancelled checks, or deposit records of payment of wages and overtime.

Ninth, this IFR establishes revocation procedures, at new 8 CFR 214.2(w)(27), for an employer's CW-1 petition using existing revocation grounds in place for other nonimmigrants programs (such as the H classification revocation procedures at 8 CFR 214.2(h)(11)), which include automatic revocation grounds if the petitioner either ceases operations or files a written withdrawal of the petition, or DOL revokes the TLC upon which the petition is based. This IFR also includes discretionary grounds for revocation on a notice of intent to revoke (NOIR) to incorporate the good cause grounds listed in the Workforce Act. In accordance with the Workforce Act, for each beneficiary of a petition revoked in a fiscal year, USCIS will add a CW-1 cap number to the next fiscal year.

Tenth, this IFR incorporates the definition of legitimate business as set forth in the Workforce Act. The new definition, at 8 CFR 214.2 (w)(1)(vii), mirrors current section 214.2(w)(1)(vi), but adds a provision to address human trafficking in general (the previous definition specified human trafficking in minors). It also requires E-Verify participation as a condition of filing CW-1 petitions. Additionally, it updates the definition with the statutory requirement for substantial current and past compliance with wage and hour laws, occupational safety and health requirements, nondiscrimination, and all other Federal, CNMI, and local requirements relating to employment during the five-year period immediately preceding the date of filing the petition. Finally, also consistent with the Workforce Act, it precludes participation by businesses (including successors in interest to businesses) with an owner, investor, manager, operator, or person meaningfully involved with the undertaking, if such individual has been an owner, investor, manager, operator, or person otherwise meaningfully involved with an undertaking that was not in compliance with certain employment-related legal requirements at any time during which such individual was involved with the undertaking, or is an agent of such individual.

Eleventh, this IFR creates a subcategory of CW-1 workers known as “long-term workers” at 8 CFR 214.2(w)(1)(viii). Under the Workforce Act, these are workers who were admitted or otherwise granted status as a CW-1 during FY 2015, and during every subsequent fiscal year through July 24, 2018.
11

This subcategory of CW-1 workers is eligible for a longer period of stay, in increments of up to 3-year periods, during the transition period. These periods are renewable and will be counted against the cap on a yearly basis.

11

See
48 U.S.C. 1806(d)(7)(B). President Trump signed the Workforce Act on July 24, 2018.

Twelfth, at 8 CFR 214.2(w)(2)(vii), this IFR amends the bar on certain construction worker occupations, which was enacted in 2017,
12

and prohibits the CW-1 classification from being available to workers who will be performing jobs classified as “construction and extraction occupations” as defined in the DOL's SOC system; this prohibition does not apply to “long-term workers” as defined by the Workforce Act.

12

See
Northern Mariana Islands Economic Expansion Act, Public Law 115-53 (amending Section 6 of Public Law 94-241, 48 U.S.C. 1806).

Thirteenth, this IFR imposes temporary departure requirements for certain CW-1 workers at 8 CFR 214.2 (w)(18)(v). Specifically, it requires CW-1 workers who have received a second extension to depart the CNMI for at least 30 continuous days prior to filing for CW-1 status again. However, consistent with the Workforce Act, it exempts the “long-term workers” from this departure requirement.

2. Technical Changes

This IFR also makes a number of conforming amendments to DHS regulations regarding the asylum provisions to extend the asylum bar in the CNMI until December 31, 2029.
13

13
The Department of Justice will be publishing a separate rule to make technical amendments to 8 CFR Chapter V to reflect that Congress has extended the statutory bar for asylum in the CNMI until December 31, 2029.
See
Workforce Act at sec. 3(a). 48 U.S.C. 1806(a)(2),(7).

D. Summary of Costs and Benefits

The costs associated with the revisions to the DHS regulations in this interim final rule (IFR) include costs of preparing and filing the Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-129CW), filing applications for extension of stay, participating in the E-Verify program, submitting semiannual reports and document retention, submitting notifications to USCIS, and filing revoked petitions. These costs are discussed in detail in the Executive Order 12866 and 13563 sections of this rule. Overall, the lower bound net total estimated cost of the rule is $73,578,345 undiscounted, $62,851,776 discounted at 3 percent, and $51,858,612 discounted at 7 percent from FY 2019 to 2030. Likewise, the upper bound net total estimated cost of the rule is $61,741,219 undiscounted, $52,693,918 discounted at 3 percent, and $43,433,060 discounted at 7 percent from FY 2019 to 2030. The total estimated lower bound transfers are $25,712 at 7 percent and $32,361 at 3%, while the total estimated upper bound transfers are $13,845,180 discounted at 7% and $16,806,753 discounted at 3%. The annualized cost of the rule discounted at 7 percent is $5,468,222 for the lower bound and $6,528,999 for the upper bound estimates.

A petitioner is required to file Form I-129CW to employ nonimmigrant workers who are otherwise ineligible to work in the CNMI under other nonimmigrant worker categories. DHS estimates the total petitioners' cost to file Form I-129CW petitions to be $57,047,877 undiscounted, $48,668,535 discounted at 3 percent, and $40,092,491 discounted at 7 percent from FY 2019 to 2030, which includes the opportunity cost of time to complete Form I-129CW, the postage cost to mail the completed form, and the costs associated with Form I-129CW filing fee, education funding fee, and fraud prevention and detection fee. Petitioners are also required to file a new petition to request an extension of stay for their currently approved CW-1 nonimmigrant employees. However, the cost of filing a petition for an extension of stay is already captured by the cost of filing Form I-129CW petitions.

The IFR requires that any employer petitioning for a CW-1 nonimmigrant worker must be an E-Verify program participant in good standing. Participating in the E-Verify program requires employers to enter information from their newly hired employee's Form I-9, Employment Eligibility Verification, to be electronically matched against records available to DHS and the Social Security Administration (SSA) to confirm the employee's identity and employment eligibility. This results in a cost burden to employers. Employers also incur additional cost burden for annual training in E-Verify as they continue to comply with E-Verify requirements. DHS estimates the total cost of participating in the E-Verify program to be $1,224,618 undiscounted, $1,061,385 discounted at 3 percent, and $894,425 discounted at 7 percent from FY 2019 to 2030.

An employer whose petition has been approved will be required to submit a

semiannual report every six months to DHS, using Form I-129CWR, after the petition validity start date to verify the continuing employment and payment of the beneficiary under the terms and conditions of the approved petition. Petitioners are also required to retain all documents and records in support of the petition, and the semiannual report, for 3 years after the petition validity period end date. DHS estimates the total cost of semiannual reporting and document retention will be $15,996,725 undiscounted, $13,647,084 discounted at 3 percent, and $11,242,286 discounted at 7 percent from FY 2019 to 2030.

DHS requires a petitioner to immediately notify USCIS of any changes in the terms and conditions of employment of a nonimmigrant worker which may affect eligibility under section 214.2(w) either by (1) filing an amended petition if the petitioner continues to employ the nonimmigrant worker, or (2) sending a letter to the USCIS office at which the CW-1 petition was filed explaining the basis on which the specific CW-1 nonimmigrant is no longer employed. DHS estimates the total cost of filing an amended petition to be $215,296 undiscounted, $183,673 discounted at 3 percent, and $151,307 discounted at 7 percent from FY 2019 to 2030. In the absence of data to estimate the total cost of submitting a notification letter, DHS estimates a unit cost of mailing a notification letter to USCIS. An affected petitioner on average will incur a unit cost of $43.65 to send a letter notifying USCIS that a CW-1 nonimmigrant is no longer working for him or her.

USCIS reserves the authority to fully or partially revoke petitions at any time under specified conditions. The conditions for immediate and automatic revocations and the discretionary grounds for revocation on notice are discussed in the preamble of this IFR. For each beneficiary of a petition revoked in a fiscal year, USCIS will add it to a CW-1 numerical cap of the next fiscal year. DHS estimates employers' total cost to file Form I-129CW petitions for such additions to the numerical cap to be $108,957 undiscounted, $90,410 discounted at 3 percent, and $71,834 discounted at 7 percent from FY 2019 to 2030. The IFR also provides the conditions for appealing revoked petitions. DHS is unable to estimate the cost employers will incur appealing petitions that have been revoked on notice in the implementation period (FY 2019 to 2030); however, DHS estimates a unit cost to show the minimum cost petitioners are likely to incur appealing petitions revoked on notice. DHS estimates that an affected employer on average incurs a cost of $782.95 appealing a petition revoked on notice.

Qualifying dependents (
i.e.,
an eligible spouse or child) of nonimmigrant workers with a CW-1 status may file applications requesting a grant of a CW-2 status using Form I-539, Application to Extend/Change Nonimmigrant Status. DHS estimates the total cost of filing applications for CW-2 status to be $7,826,181 undiscounted, $6,676,651 discounted at 3 percent, and $5,500,136 discounted at 7 percent for nonimmigrant in FYs 2019 to 2030.

The IFR states that an extension of stay may be granted for a period of up to three years if the CW-1 worker is a long-term worker. DHS estimates the cost savings for petitioners who will request a three-year extension of stay for their long-term workers using the lower and upper bound estimates for the net number of beneficiaries for whom a three-year extension of stay will be requested. Accordingly, the total cost savings to petitioners resulting from filing a three-year extension of stay for long-term nonimmigrant workers range from $978,034 to $8,802,309 undiscounted ($827,067 to $7,443,600 discounted at 3 percent, and $674,239 to $6,068,155 discounted at 7 percent) from FY 2019 to 2030.

III. Background

A. Legal Framework

Under the INA, as amended by the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135 (codified at 6 U.S.C. 101
et seq.
), the Secretary of Homeland Security is charged with the administration and enforcement of the INA, and all other laws relating to the immigration and naturalization of aliens, except as such laws relate to the powers, functions, or duties conferred upon the President, the Attorney General, the Secretary of State, or consular officers.
See
INA 103(a)(1), 8 U.S.C. 1103(a)(1). The Homeland Security Act, however, preserved the functions of the Executive Office for Immigration Review (EOIR) (including the immigration judges, the Board of Immigration Appeals (BIA), and the Office of the Chief Administrative Hearing Officer (OCAHO)) within the Department of Justice (DOJ) under the authority of the Attorney General.
See
6 U.S.C. 521; INA 103(g), 8 U.S.C. 1103(g). In addition, DOJ's Civil Rights Division, Immigrant and Employee Rights Section (IER) continues to have authority to enforce the INA's employment anti-discrimination provisions.
See
INA 274B, 8 U.S.C. 1324b.

The changes implemented under the Workforce Act affect existing regulations governing DHS immigration policy and procedures, and these revisions to the DHS regulations are described in Part IV below.

However, given the authority of the immigration judges and the BIA to adjudicate asylum claims for aliens who are placed in proceedings before the immigration judges and the BIA, the Attorney General is publishing a separate rule to make technical amendments to the EOIR regulations (
i.e.,
a change of date) to reflect that Congress has provided that the statutory bar to applying for asylum in the CNMI will continue prior to January 1, 2030.

B. Legislative Authority

1. Legislation Prior to the Workforce Act

The CNMI, located in the Western Pacific, is a self-governing commonwealth in political union with, and under the sovereignty of, the United States. In 1976, Congress approved the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America (the 1976 Covenant), which defined the political relationship between the CNMI and the United States, provided U.S. citizenship to certain CNMI residents, and exempted the CNMI from certain federal minimum wage provisions and immigration laws but reserved the right of the federal government to apply federal law in these exempted areas without the consent of the CNMI government.
14

As a result, the CNMI administered its own immigration system under the terms of the 1976 Covenant with the United States for many years.

14

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, Public Law 94-241, 90 Stat. 263 (1976), 48 U.S.C.1801 note.

In 2008, Title VII of the Consolidated Natural Resources Act (CNRA) amended the 1976 Covenant, by extending U.S. immigration law, with limited exceptions, to the CNMI and providing CNMI-specific provisions affecting foreign workers.
See
Public Law 110-229, 122 Stat. 754, 853-854; 48 U.S.C. 1806(d). Since 1978, the CNMI had admitted a substantial number of foreign workers who constituted a majority of the CNMI labor force. The CNRA provided for a transition period to phase out the CNMI's nonresident contract worker program and phase in the U.S. federal immigration system in a manner that minimized adverse economic and fiscal effects and maximized the CNMI's potential for future economic and

business growth.
See
sections 701 and 702(a) of the CNRA.

The CNRA authorized the Secretary of Homeland Security to create a nonimmigrant classification that would ensure adequate employment in the CNMI during the transition period.
See
section 702(a) of the CNRA; 48 U.S.C. 1806(d). DHS published a final rule on September 7, 2011, amending the regulations at 8 CFR 214.2(w) to implement a temporary, CNMI-only transitional worker nonimmigrant classification (CW classification, which includes CW-1 for principal workers and CW-2 for spouses and minor children).
See
Commonwealth of the Northern Mariana Islands Transitional Worker Classification, 76 FR 55502 (Sept. 7, 2011).

The CNRA mandated an annual reduction in the number of permits issued per year and the total elimination of the CW nonimmigrant classification by the end of the transition period.
See
section 702(a) of the CNRA. At the outset of the transitional worker program, DHS set the CW-1 numerical limitation (also known as the CW-1 cap) for FY 2011 at 22,417 and for FY 2012 at 22,416. DHS announced these annual caps in DHS regulations at 8 CFR 214.2(w)(1)(viii)(A) and (B). DHS published subsequent annual caps by
Federal Register
notice.
See
8 CFR 214.2(w)(1)(viii)(C).

The CNRA directed the U.S. Secretary of Labor to determine whether an extension of the CW program for an additional period of up to five years beyond the expiration of the initial transition period on December 31, 2014, was necessary to ensure that an adequate number of workers would be available for legitimate businesses in the CNMI.
See
section 702(a) of the CNRA. The CNRA further provided the Secretary of Labor with the authority to provide for such an extension through notice in the
Federal Register
.
See id.

On June 3, 2014, the Secretary of Labor extended the CW program for an additional five years, through December 31, 2019.
See
Secretary of Labor Extends the Transition Period of the Commonwealth of the Northern Mariana Islands-Only Transitional Worker Program, 79 FR 31988 (June 3, 2014). Since the Secretary of Labor extended the CW program at least until December 31, 2019, DHS decided to generally preserve the then current conditions relating to CW-1 workers, rather than aggressively reduce CW-1 permit numbers for FY 2015. DHS therefore reduced the CW-1 cap nominally by one, resulting in an FY 2015 limit of 13,999.
15

See
Commonwealth of the Northern Mariana Islands Transitional Worker Classification (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 2015, 79 FR 58241 (Sept. 29, 2014).

15
This section only discusses legislation prior to the enactment of the Workforce Act. It is important to note that after establishing the transitional worker program, DHS published
Federal Register
Notices to reduce the CW-1 cap. DHS set the CW-1 numerical limitation at 15,000 and 14,000 respectively for FY 2013 and FY 2014.
See
CNMI-Only Transitional Worker Numerical Limitation for Fiscal Year 2013, 77 FR 71287 (Nov. 30, 2012); CNMI-Only Transitional Worker Numerical Limitation for Fiscal Year 2014, 78 FR 58867 (Sept. 25, 2013). DHS reduced the CW-1 cap for FY 2015 nominally in response to the Secretary of Labor's extension of the transition period (explained above). For FY 2016, DHS reduced the cap by 1,000 to a limit of 12,999.
See
Commonwealth of the Northern Mariana Islands Transitional Worker Classification (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 2016, 80 FR 63911 (Oct. 22, 2015). DHS reduced the cap for FY 2017 by only one to 12,998.
See
Commonwealth of the Northern Mariana Islands Transitional Worker Classification (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 2017, 81 FR 60581 (Sept. 2, 2016). In 2017, DHS published a reduction plan to inform the public of the number of CW-1 workers available during each of the fiscal years for the remainder of the transition period.
See
Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Years 2018 Through 2020, 82 FR 55493 (Nov. 22, 2017).

On December 16, 2014, Congress amended the law to extend the transition period until December 31, 2019.
See
Consolidated and Further Continuing Appropriations Act, 2015, Public Law 113-235, sec. 10, 128 Stat. 2130, 2134. Congress also eliminated the Secretary of Labor's authority to provide for future extensions of the CW-1 program, requiring the CW-1 program to end (or sunset) on December 31, 2019.
See id.

The Northern Mariana Islands Economic Expansion Act (NMIEEA), Public Law 115-53, 131 Stat. 1091 (2017), which was enacted into law on August 22, 2017, revised the CW-1 visa classification to, among other things, (1) add 350 CW-1 visas to the FY 2017 CW-1 cap for purposes of extending certain existing CW-1 permits, raising the total number of visas that may be issued in that fiscal year from 12,998 to 13,348; and (2) prohibit the CW-1 classification from being available to workers who will be performing jobs classified as “construction and extraction occupations” as defined in the DOL's SOC system, other than to extend CW-1 permits of such workers first issued before October 1, 2015. This latter provision effectively barred employers of new construction and extraction occupation workers from using the CW-1 classification. As described by the NMIEEA's sponsor in the Congressional Record, the bar on construction and extraction workers is intended to require construction companies to fill new positions (including those filled by CW-1 workers after October 1, 2015) with non-CW-1 workers.
16

16

See
163 Cong. Rec. E1132 (daily ed. Aug. 15, 2017) (statement of Delegate Sablan).

2. The Workforce Act

On July 24, 2018, President Trump signed the Workforce Act, Public Law 115-218, 132 Stat. 1547. The stated purposes of the Workforce Act are to increase the percentage of United States workers in the total workforce of the CNMI while maintaining the minimum number of non-U.S. workers to meet the demands of the CNMI's economy; encourage the hiring of United States workers into the CNMI workforce; and ensure that no U.S. worker is at a competitive disadvantage compared to a non-U.S. worker or is displaced by a non-U.S. worker.

In discussing the background and need for the Workforce Act, the accompanying Senate Report notes the CNMI's continuing dependence on foreign labor.
17

The Senate Report cites the May 2017 report by the Government Accountability Office (GAO), entitled
Commonwealth of the Northern Mariana Islands; Implementation of Federal Minimum Wage and Immigration Laws,
noting that since FY 2013, demand for CW-1 permits had doubled, and in FY 2016, demand exceeded the numerical cap for the first time.
18

In 2016, USCIS received enough petitions to approve 12,999 CW-1 permits by May 5, 2016, reaching the cap five months prior to the end of the fiscal year.
19

For the 2017 fiscal year cap, USCIS received a sufficient number of petitions to reach the CW-1 cap of 12,998 by October 14, 2016.
20

On April 11, 2017, USCIS received a sufficient number of petitions to reach the FY 2018 cap of 9,998.
21

The GAO report

attributes the increased demand for CW-1 permits to the CNMI's recent economic expansion, specifically, the construction of casinos and hotels.

17

See
S. Rep. No. 115-214, at 7 (2018), available at
https://www.congress.gov/115/crpt/srpt214/CRPT-115srpt214.pdf
(last visited May 28, 2019).

18

See
U.S. Govt. Accountability Office, Commonwealth of the Northern Mariana Islands: Implementation of Federal Minimum Wage and Immigration Laws, GAO-17-437 (May 2017),
https://www.gao.gov/products/GAO-17-437
(last visited May 28, 2019).

19

See
“USCIS Reaches CW-1 Cap for Fiscal Year 2016,” available at
https://www.uscis.gov/archive/archive-news/uscis-reaches-cw-1-cap-fiscal-year-2016
(last visited May 28, 2019).

20

See
“USCIS Reaches CW-1 Cap for Fiscal Year 2017,” available at
https://www.uscis.gov/news/alerts/uscis-reaches-cw-1-cap-fiscal-year-2017
(last visited May 28, 2019).

21

See
“As CNMI Transitional Worker Program Draws Down, USCIS Announces Cap for Final Three Fiscal Years,” available at

https://

www.uscis.gov/news/news-releases/cnmi-transitional-worker-program-draws-down-uscis-announces-cap-final-three-fiscal-years
(last visited May 28, 2019).

The CNMI business community expressed concern that the reduced levels of available CW-1 permits would have a negative impact on the CNMI's economy. The GAO report found that in 2015, foreign workers (totaling 12,784) made up more than half of the CNMI's workforce and filled 80 percent of all hospitality and construction jobs. The GAO also found that in 2015, if all CW-1 workers were removed from the CNMI's labor market, the CNMI's gross domestic product would be reduced by between 26 and 62 percent. The GAO report noted that the unemployed domestic workforce, estimated at 2,386 in 2016, would be well below the CNMI's demand for labor.

The Senate Report notes that, in response to labor abuses by certain employers in the CNMI, there is a call for additional labor protections, including higher minimum wage requirements, the potential for revocation, legitimate business requirements, and the prohibition on the use of CW-1 permits for construction workers.
22

22

See
S. Rep. No. 115-214, at 8 (2018), available at
https://www.congress.gov/115/crpt/srpt214/CRPT-115srpt214.pdf
(last visited May 28, 2019).

Certain provisions of the Workforce Act took effect immediately. Specifically, it extended the CNMI-Only Transitional Worker program (the CW-1 program) through 2029, increased the CW-1 cap for FY 2019, provided new CW-1 caps for subsequent fiscal years, and mandated a new fraud prevention and detection fee with each petition. In addition to extending the CW-1 program, it also extended the following CNRA provisions until December 31, 2029:

• The exemption from national caps for H-1B and H-2B workers in the CNMI and on Guam;

• The bar on asylum applications in the CNMI; and

• The CNMI-Only Nonimmigrant Investor (E-2C) program.

The Workforce Act's section 3(a) also amends the 1976 Covenant to make a number of changes to the transitional provisions and, as noted above, requires the Secretaries of Homeland Security and Labor to each promulgate an IFR implementing the related statutory changes no later than January 20, 2019, which is 180 days from the date of enactment.
23

(Pub. L. 115-218, sec. 3(b)(1), (2)). The Department of Labor (DOL) IFR was published on April 1, 2019, and went into effect on April 4, 2019.
24

The DHS IFR was delayed by a number of months.

23
The statutory deadline for rulemaking is 180 days after enactment, or January 20, 2019. However, under 1 CFR 18.17, when a date falls on a weekend or holiday, the next Federal business day is used for publication in the
Federal Register
. In this case, as January 20 was a Sunday and January 21 was a Federal holiday, the next business day is January 22, 2019.

24
84 FR 12380 (Apr. 1, 2019).

The Workforce Act provides the Secretary with the discretionary authority to delay statutory provisions relating to the CW-1 program, except for provisions providing annual numerical caps for such workers, until the effective date of the IFR. (Pub. L. 115-218, sec. 3(e)(2)). On July 25, 2018, DHS announced that it would exercise its discretion, as provided in the Workforce Act, to delay implementation of other statutory changes to the CW-1 program affecting CW-1 filers until DHS issued an IFR.
25

25

See
USCIS, “New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, and Will Require E-Verify Participation,” available at
https://www.uscis.gov/news/alerts/new-law-extends-cnmi-cw-1-program-mandates-new-fraud-fee-and-will-require-e-verify-participation
(last visited May 28, 2019).

IV. Changes to DHS Regulations

A. Codifying the Provisions Effective Immediately Pursuant to the Workforce Act

1. Extension of the Transition Period

DHS is revising 8 CFR 214.2(w)(1)(xvi) to update the extension of the transition period, and thus the CW-1 program, through December 31, 2029. While the transition period has been previously extended, the related regulation was not revised to reflect any of the CW-1 program extensions. This change will reflect the new sunset date within existing regulations.

This IFR also revises 8 CFR 214.2(e)(23) to extend the E-2C program until December 31, 2029. The E-2C visa classification allows foreign, long-term investors to remain lawfully present in the CNMI through the transition period and is extendable in 2 year increments.
26

See
8 CFR 214.2(e)(23)(xii), (xiv). The E-2 CNMI Investor program was intended to provide a smooth transition for existing CNMI investors and to mitigate potential adverse consequences to the CNMI economy if the current investments could not otherwise be maintained as a basis for immigration status during the transition period. As with the CW-1 classification, the E-2C classification also ceases to exist at the end of the transition period.
See
8 CFR 214.2(e)(23)(xiv).

26
While E-2C status can be extended, the filing period for initial requests for the E-2C classification ended on January 18, 2013.
See
8 CFR 214.2(e)(23)(i).

This IFR also updates DHS regulations to make a number of conforming amendments to extend the asylum bar in the CNMI,
see
INA sec. 208(e), 8 U.S.C. 1158(e), until December 31, 2029.

2. CW-1 Numerical Limitation

As previously noted, the CNRA mandated an annual reduction (not a specific numerical reduction) in the number of permits issued per year and the total elimination of the CW nonimmigrant classification by the end of the transition period.
See
48 U.S.C. 1806(d)(2). DHS regulations provided that the CW-1 cap for any fiscal year would be less than the number established for the previous fiscal year, and that the adjusted number would be reasonably calculated in DHS's discretion to reduce the number of CW-1 nonimmigrant workers to zero by the end of the program. 8 CFR 214.2(w)(1)(viii)(C). DHS could adjust the cap for a fiscal year or any other period, at any time by publishing a Notice in the
Federal Register
, as long as the number was less than the cap for the previous fiscal year.
See
8 CFR 214.2(w)(1)(viii)(D).

At the outset of the transitional worker program, DHS set the CW-1 numerical limitation (also known as the CW-1 cap) for FY 2011 at 22,417 and for FY 2012 at 22,416. DHS announced these annual caps in DHS regulations at 8 CFR 214.2(w)(1)(viii)(A) and (B). DHS subsequently published annual caps by
Federal Register
notice.
See
8 CFR 214.2(w)(1)(viii)(C). DHS set the CW-1 numerical limitation at 15,000 and 14,000 respectively for FY 2013 and FY 2014.
See
CNMI-Only Transitional Worker Numerical Limitation for Fiscal Year 2013, 77 FR 71287 (Nov. 30, 2012); CNMI-Only Transitional Worker Numerical Limitation for Fiscal Year 2014, 78 FR 58867 (Sept. 25, 2013). For FY 2015, DHS reduced the numerical limitation nominally by one, resulting in an FY 2015 limit of 13,999.
See
CNMI-Only Transitional Worker Numerical Limitation for Fiscal Year 2015, 79 FR 58241 (Sept. 29, 2014). For FY 2016, DHS reduced the cap by 1,000 to a limit of 12,999.
See
Commonwealth of the Northern Mariana Islands Transitional Worker Classification (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 2016, 80 FR 63911 (Oct. 22, 2015). DHS

reduced the cap for FY 2017 by only one to 12,998.
See
Commonwealth of the Northern Mariana Islands Transitional Worker Classification (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 2017, 81 FR 60581 (Sept. 2, 2016). Finally, in 2017, DHS published a reduction plan to inform the public of the number of CW-1 workers available during each of the fiscal years for the remainder of the then-existing transition period.
See
Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Years 2018 through 2020, 82 FR 55493 (Nov. 22, 2017). DHS set the CW-1 cap for FY 2018 at 9,998. For FY 2019, the cap was set at 4,999. For FY 2020, the cap was set at 2,499 and was to be in effect until the previous end of the transition period on December 31, 2019.
See id.
DHS believed that this approach would further encourage the recruitment of United States workers and the transition into the U.S. immigration system, consistent with the goals of the CNRA and the general policy direction provided by Executive Order 13,788, Buy American and Hire American, 82 FR 18837, 18838 (Apr. 21, 2017) “to protect the interests of United States workers in the administration of our immigration system.”

The Workforce Act did not make any changes to the CW-1 cap for FY 2018. However, it immediately raises the CW-1 cap for FY 2019 and then provides gradually diminishing CW-1 caps for subsequent fiscal years until the end of the transition period on December 31, 2029. It starts with a cap of 13,000 for FY 2019, then reduces each fiscal year by 500 through FY 2023; that number then declines by 1,000 for each fiscal year through 2029. By FY 2029 it drops to 5,000 and then to 1,000 for FY 2030 (until December 31, 2029).

The new caps took effect immediately and are reflected in this interim final rule as follows:

(1) 9,998 for fiscal year 2018;

(2) 13,000 for fiscal year 2019;

(3) 12,500 for fiscal year 2020;

(4) 12,000 for fiscal year 2021;

(5) 11,500 for fiscal year 2022;

(6) 11,000 for fiscal year 2023;

(7) 10,000 for fiscal year 2024;

(8) 9,000 for fiscal year 2025;

(9) 8,000 for fiscal year 2026;

(10) 7,000 for fiscal year 2027;

(11) 6,000 for fiscal year 2028;

(12) 5,000 for fiscal year 2029; and

(13) 1,000 for the first quarter of fiscal year 2030.

3. CNMI Education Fee

The Workforce Act implements the raise in the supplemental CNMI education funding fee from $150 to $200 (per each beneficiary issued CW-1 status, per year).
See
48 U.S.C. 1806(a)(6)(A)(i). It also provides the Secretary of Homeland Security the discretion to annually adjust this supplemental fee.
See
48 U.S.C. 1806(a)(6)(A)(ii). Beginning in FY 2020, the Secretary, through notice in the
Federal Register
, may annually adjust the supplemental fee by a percentage equal to the annual change in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics.
See
48 U.S.C. 1806(a)(6)(A)(ii). This IFR updates the regulation at 8 CFR 103.7(b)(1)(i)(J) and 8 CFR 214.2(w)(5) to include the new fee and the Secretary's discretionary authority for inflation adjustment.

4. Fraud Prevention and Detection Fee

The Workforce Act requires DHS to impose a $50 fee for fraud prevention and detection purposes on each CW-1 petitioner.
See
48 U.S.C. 1806(a)(6)(A)(iv)(I). This fee is for the sole purpose of preventing and detecting immigration benefit fraud in the Northern Mariana Islands.
See
48 U.S.C. 1806(a)(6)(A)(iv)(II). USCIS implemented the antifraud fee as soon as it began accepting new petitions under the revised FY 2019 CW-1 cap.
27

This new fraud prevention and detection fee did not apply to CW-1 petitions already filed and pending with USCIS as of July 24, 2018, but was imposed on any petitions received after July 24, 2018. USCIS rejects petitions with incorrect or insufficient fees. This IFR updates the regulation at 8 CFR 103.7(b)(1)(i)(J) and 8 CFR 214.2(w)(5) to include the new fraud prevention and detection fee.

27

See
USCIS, “New Law Extends CNMI CW-1 Program, Mandates New Fraud Fee, and Will Require E-Verify Participation,” available at
https://www.uscis.gov/news/alerts/new-law-extends-cnmi-cw-1-program-mandates-new-fraud-fee-and-will-require-e-verify-participation
(last visited May 28, 2019).

B. CW-1 Numerical Reservation for Specific Occupational Categories

Section 3(b)(3) of the Workforce Act requires the Secretary of Homeland Security to consider the Governor's recommendations in developing the interim final rule implementing the law. The Workforce Act specifically states that DHS shall consider in good faith any written public recommendations regarding Workforce Act implementation that are submitted by the Governor of the Commonwealth not later than 60 days after the date of the Workforce Act's enactment. The Workforce Act further provides that DHS may include provisions in its IFR that are responsive to any recommendation of the Governor and not inconsistent with the Workforce Act, including a recommendation to reserve a number of permits each year for occupational categories necessary to maintain public health or safety in the Commonwealth.

In an August 8, 2018 letter,
28

Governor Torres requested that DHS reserve 200 CW-1 permits in FY 2019 for “occupational categories” 29-0000 (Healthcare Practitioners and Technical Occupations) and 31-0000 (Healthcare Support Occupations). For FY 2019, Governor Torres also requested that DHS reserve 60 CW-1 permits for occupational categories related to the operations of the CNMI public utilities services, to include Water/Waste Water Engineers, Electrical Engineers, Mechanical Engineers, and Trades Technicians. Governor Torres stressed the importance of reserving these cap numbers in order to maintain labor access and, therefore, adequate staffing of the CNMI's healthcare system and public utilities services. Additionally, Governor Torres recommended that the CW-1 cap reservations should be changed based on labor demands within these sectors. Finally, Governor Torres requested the ability to recommend changes to these CW-1 cap reservations throughout the duration of the transition period as this would help the CNMI's goals of truly transitioning occupations toward U.S. citizens, or alternative visa classifications when United States workers are not available.

28

See
Letter from Rafael DLG Torres, Governor of the CNMI, to Kirstjen Nielsen, Secretary, DHS (Aug. 8, 2018), available at
http://www.regulations.gov
under DHS Docket No. USCIS--2019-0003.

As directed by the Workforce Act, DHS considered the Governor's recommendations in developing this IFR. As mentioned above, the Governor requested that DHS reserve 200 CW-1 permits for health occupations and 60 CW-1 permits for public utilities occupations for FY 2019. In an October 29, 2018 response to Governor Torres,
29

DHS explained that it did not have the authority to reserve permits for occupational categories prior to the IFR taking effect and that the ability to make any such reservations for FY 2019, as opposed to future fiscal years, would depend upon when the IFR takes effect and whether FY 2019 CW-1 permits are still available at that time.

29

See
Letter from L. Francis Cissna, Director, USCIS to Rafael DLG Torres, Governor of CNMI (October 29, 2018), available at
http://www.regulations.gov
under DHS Docket No. USCIS--2019-0003.

DHS understands the Governor's concerns regarding the availability of CW-1 cap numbers for these critical occupations. After careful consideration, DHS will include a CW-1 cap reservation for all critical occupations, as recommended by the Governor.

With respect to the occupational categories identified by the Governor regarding the operations of the CNMI public utilities services, DHS is concerned that the Governor's recommendation refers to these occupations in general terms rather than providing a specific definition or offering a more precise way to identify them. DHS can better implement and operationally manage a CW-1 cap reservation by defining the occupational categories that will be considered as part of that cap reservation.

After careful consideration, DHS has determined that, consistent with the Governor's use of the occupational categories to refer to health occupations, DHS will generally use the DOL SOC
30

system to specify which occupations are part of this cap reservation. The SOC system is a federal statistical standard used by federal agencies to classify workers into occupational categories for the purpose of collecting, calculating, or disseminating data.
31

DOL uses the SOC system to group and classify jobs and occupations. The purpose of the SOC system is to organize occupational data and classify workers into distinct occupational categories. It covers all occupations where work is performed for pay or for profit. Occupations are generally categorized based on the type of work performed. Additionally, certain occupations are also classified based on the skills, education and training required to perform the job. The SOC system is organized using codes, which generally consist of six numerical digits. In sum, the SOC code provides an objective approach to define affected groups.

30

See
U.S. Department Labor, Bureau of Labor Statistics, Standard Occupational Classification, available at
https://www.bls.gov/soc/
(last visited May 28, 2019).

31
The Office of Management and Budget is charged by statute with coordinating the U.S. Federal statistical system. All workers are classified into one of 867 detailed occupations according to their occupational definition. To facilitate classification, detailed occupations are combined to form 459 broad occupations, 98 minor groups, and 23 major groups. Detailed occupations in the SOC with similar job duties, and in some cases skills, education, and/or training, are grouped together. For an overview,
see
“Office of Management and Budget, Statistical Programs & Standards,” available at
https://www.whitehouse.gov/omb/information-regulatory-affairs/statistical-programs-standards/
(last visited May 28, 2019).

Currently, USCIS uses these SOC codes as one basis for determining whether the beneficiary's proposed employment qualifies for CW-1 classification.
32

For purposes of adjudicating the Form I-129CW, USCIS reviews the totality of the record, including the listed SOC code and any additional evidence submitted by the CW-1 petitioner. If all information found in the Form I-129CW is consistent with the TLC, and provided all other eligibility requirements are met, then USCIS may approve the Form I-129CW and use the SOC code listed on the petition to identify the petitions set aside for the cap reservation. If the SOC code is blank or if the evidence submitted with the Form I-129CW does not establish that the proposed employment matches the SOC code listed on the petition, USCIS may request additional information. In determining whether the proposed employment matches the listed SOC code, USCIS considers factors including but not limited to the job duties and responsibilities of the proposed employment, and any educational, experience, and/or training requirements. If USCIS finds a mismatch between the SOC code on the Form I-129CW and the TLC, or finds conflicting information in the Form I-129CW and TLC, then USCIS may consider such information to deny or revoke the Form I-129CW.
33

32

See
Instructions for Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, available at
https://www.uscis.gov/i-129cw
(last visited May 28, 2019).

33
USCIS generally defers to DOL to determine the correct SOC code for purposes of the TLC. Nevertheless, USCIS maintains the authority to consider the SOC code as one basis for purposes of adjudicating the Form I-129CW.

USCIS already collects the SOC code on the Form I-129CW to help administer the statutory prohibition of construction occupations.
34

This IFR adopts this same approach of using the SOC code to help USCIS properly identify the occupations for which a portion of the CW-1 numerical limitation is reserved. However, it is noted that the occupational categories related to the operations of the CNMI public utilities may not be able to be properly limited or defined to specific corresponding SOC codes. For example, there is not a specific SOC code for “Trades Technicians.” Rather, there are a large number of SOC codes which could potentially be used to describe a number of different technicians. For this occupation, it is not practical to include every possible code that would be eligible for the CW-1 cap reservation. As a result, this IFR includes a single SOC code for the specific occupational category related to the operations of the CNMI public utilities services, if known, but does not limit this CW-1 cap reservation only to the included SOC codes.

34
In fiscal year 2017, DHS also used the SOC codes to identify CW-1 health care workers to manage the statutory sub-cap for healthcare workers.

Accordingly, this IFR makes the following reservations of CW-1 numbers for specified occupational categories: (i) 200 total for occupational categories 29-0000 (Healthcare Practitioners and Technical Occupations) and 31-0000 (Healthcare Support Occupations); and (ii) 60 for occupational categories related to the operations of the CNMI public utilities services, to include, but not limited to, 17-2081 (Water/Waste Water Engineers), 17-2071 (Electrical Engineers), 17-2141 (Mechanical Engineers), and Trades Technicians.
35

New 8 CFR 214.2(w)(1)(x)(D)(
1
). The reserved CW-1 numbers will be made available to eligible petitioners requesting such numbers for a fiscal year in order of filing until exhausted. New 8 CFR 214.2(w)(1)(x)(D)(
2
). DHS will not impose an arbitrary deadline for petitioners to exhaust this cap reservation as it would be contrary to the CNMI government's request to preserve access to labor in these critical occupations. As a result, unused reserved numbers for these occupational categories will not be available to other petitioners.
Id.
Accordingly, DHS is also updating the Form I-129CW to include a new data field on the Form I-129CW requesting whether the petitioner would like to be considered under one of the occupational category reservations. This approach is consistent with the Governor's request to reserve CW-1 numbers for specified occupations.

35
A corresponding SOC code does not exist that would include all Trades Technicians occupations.

This new CW-1 cap reservation will not apply to any fiscal year cap that has been reached prior to the effective date of this IFR. For any fiscal year cap that has not been reached as of the date this IFR takes effect, the CW-1 cap reservation will be considered completely unsubscribed at that time and will only be filled by petitions received on or after such date that specifically request consideration under the Governor's recommendations in the corresponding data field on the Form I-129CW.

As noted above, the Governor also recommended that any CW-1 cap reservation should be subject to change based on labor demand and requested the ability to recommend changes to

these CW-1 cap reservations throughout the duration of the transition period. DHS agrees with the Governor's recommendation that any CW-1 cap reservation should be adjustable to future labor market needs, in light of the declining number of CW-1 visas available in future years. As such, this IFR, per new 8 CFR 214.2(w)(1)(x)(D)(
3
), provides that DHS may adjust the reservation of numbers for specified occupational categories for a fiscal year or other period via notice in the
Federal Register
, as long as such adjustment is consistent with the numerical limitations set forth by statute and as updated in new 8 CFR 214.2(w)(1)(x)(A) for FY 2018 through the first quarter of FY 2030. DHS may adjust this CW-1 cap reservation in future years following consideration of a range of factors, including, but not limited to, demand for the reservation of numbers and if any reservation resulted in unused permits, the overall numerical decreases in permits in future years, and any recommendation received from the Governor of the CNMI relating to CNMI labor market needs, consistent with the Workforce Act and this IFR. This will provide DHS with the flexibility to make future adjustments to the CW-1 cap reservation in response to the CNMI's labor workforce needs and to the decreasing yearly caps.

C. U.S. Department of Labor, Temporary Labor Certification Requirement

The current DHS CW-1 regulations do not require that an employer obtain any documentation from DOL as a prerequisite to filing a CW-1 petition with USCIS. The Workforce Act changed petition procedures by imposing a temporary labor certification requirement beginning with CW-1 petitions filed with USCIS with employment start dates in FY 2020.
36

See
48 U.S.C. 1806(d)(2)(A)(i). Now, as a prerequisite to filing a CW-1 petition with USCIS, an employer must first obtain an approved TLC from DOL confirming that: (1) There are not sufficient United States workers in the CNMI who are able, willing, qualified, and available at the time and place needed to perform the services or labor involved in the petition; and (2) the employment of a nonimmigrant worker who is the subject of a petition will not adversely affect the wages and working conditions of similarly employed United States workers.
See
48 U.S.C. 1806(d)(2)(A).

36
On September 24, 2019, USCIS announced it was providing a one-time, limited accommodation to facilitate the initial implementation of the new requirement that CW-1 petitions with employment start dates on or after October 1, 2019 include a TLC approved by DOL. USCIS would consider certain FY 2020 CW-1 petitions seeking an extension of status for temporary workers present in the CNMI to be filed on time, even if USCIS received them after the worker's current period of CW-1 petition validity expires, under the following limited circumstances: (1) The petition was otherwise properly filed, and included an approved TLC with a start date on or after October 1, 2019; (2) USCIS received the petition no later than 30 days after the date of TLC approval, or by November 1, 2019, whichever was earliest; and (3) the expiration date of the currently approved petition was on or after September 1, 2019. If an employer filed an extension petition meeting these requirements, the CW-1 worker could continue employment with the same employer for up to 240 days beginning on the expiration of the authorized period of stay, pending adjudication of the petition (or, in the case of a non-frivolous petition for extension of stay with change of employer, until USCIS adjudicates the petition).
See
USCIS, Filing Guidance for CW-1 Petitions Seeking to Extend Status for Fiscal Year 2020,
https://www.uscis.gov/news/alerts/filing-guidance-cw-1-petitions-seeking-extend-status-fiscal-year-2020
(Last Reviewed/Updated Sept. 24, 2019).

To ensure that the CW-1 employment will not adversely affect similarly employed United States workers' wages and working conditions, the Workforce Act also mandates minimum wage requirements. Specifically, it requires the employer to pay a CW-1 worker the greater of the CNMI minimum wage, the federal minimum wage, or the prevailing wage as determined by DOL. 48 U.S.C. 1806(d)(2)(C). It requires DOL to make a prevailing wage determination, by allowing DOL to meet this requirement in a number of ways. 48 U.S.C. 1806(d)(2)(B). DOL will use or make available to employers annual occupational wage surveys conducted by the Governor meeting the statistical standards established by DOL for determining prevailing wages in the CNMI. 48 U.S.C. 1806(d)(2)(B)(i). In the absence of a DOL-approved Governor's survey, the Workforce Act sets forth that the prevailing wage for an occupation in the CNMI is the arithmetic mean of the wages of workers similarly employed in the territory of Guam according to the Occupational Employment Statistics Survey conducted by DOL's Bureau of Labor Statistics. 48 U.S.C. 1806(d)(2)(B)(ii).

Consistent with the Workforce Act, DOL administers these additional labor protections and has issued a separate regulation
37

governing the TLC process, but this IFR updates DHS regulations to include the new TLC requirement at 8 CFR 214.2(w)(6)(iv) as a prerequisite to filing a CW-1 petition with USCIS. Any CW-1 petition requesting an employment start date on or after October 1, 2019 must be filed with a DOL approved TLC. The certified TLC confirms that there are not sufficient United States workers in the CNMI who are able, willing, qualified, and available at the time and place needed to perform the services or labor involved in the petition, and that the employment of the CW-1 nonimmigrant will not adversely affect the wages and working conditions of similarly employed United States workers. Any petition filed without the approved DOL TLC will be rejected. If the TLC approves certain education, training, experience, or special requirements, USCIS will further require sufficient evidence to determine whether the CW-1 worker qualifies for the job offer. The IFR also updates 8 CFR 214.2(w)(6)(ii)(I) to include the related minimum wage statutory requirements.

37
The DOL IFR was published on April 1, 2019, and went into effect on April 4,
See
Labor Certification Process for Temporary Employment in the Commonwealth of the Northern Mariana Islands (CW-1 Workers), 84 FR 12380 (Apr. 1, 2019).

D. CW-1 Petition Filing Window

The Workforce Act sets forth new CW-1 petition filing windows for employers renewing the permits of their CW-1 workers and for those requesting new CW-1 workers. It provides that employers renewing the permits of their CW-1 employees can file 180 days before the expiration of current CW-1 status. Employers filing for new CW-1 employment authorization may file no more than 120 days prior to the need for such employment. 48 U.S.C. 1806(d)(3)(D)(i).

To adhere to this filing window, it is important to note again that, a CW-1 petition for temporary employment filed with USCIS must be accompanied by an approved TLC from DOL. 48 U.S.C. 1806(d)(2). This prerequisite does not change the statutory filing window. Under DOL regulations at 20 CFR 655.420 (b)(1), an employer seeking to hire a CW-1 worker must first apply for a TLC with DOL, no more than 120 calendar days before the employer's date of need. However, where the employer is seeking a TLC to support a petition to renew a visa (extending the employment of a CW-1 worker), 20 CFR 655.420(b)(2) requires that the employer file the TLC application no more than 180 calendar days before the date on which the CW-1 status expires. Once DOL approves the TLC, the employer can file the CW-1 petition with USCIS.

E. Semiannual Report for CW-1 Employers

The Workforce Act prescribes that DHS shall establish a system for each CW-1 employer to submit a semiannual report to the Secretary of Homeland Security and the Secretary of Labor that provides evidence to verify the continuing employment and payment of such worker under the terms and

conditions set forth in the CW-1 petition that the employer filed on behalf of such worker. 48 U.S.C. 1806(d)(3)(D)(ii). In order to implement the semiannual reporting requirement, USCIS created a standalone form, the Form I-129CWR, Semiannual Report for CW-1 Employers (semiannual report). USCIS is requiring petitioners to file the semiannual report, with a required attestation, in order to capture data to verify the continued employment and payments to their CW-1 workers.
See
new 8 CFR 214.2(w)(26)(i) and (ii).

In accordance with the Workforce Act's reporting requirement, all approved CW-1 petitioners must file a semiannual report. USCIS interprets this as a filing requirement for all approved CW-1 petitioners, whose petitions have been approved for a validity period of six months or more, to be submitted during the petition's validity period. An approved CW-1 petition may be approved for a period of up to one year, unless the beneficiary is a long-term worker, in which case an approved petition will be valid for a period of up to three years. As a result, CW-1 petitions have varying validity periods, as petitioners can request the entire validity period available or any shortened period of time necessary for the employment opportunity. USCIS will use the semiannual report to verify the continuing employment and payment of such workers, on a semiannual basis, whether the CW-1 petitioner is requesting a validity period of up to 1 year or up to 3 years. Under 8 CFR 214.2(w)(26)(i)(A), an employer whose CW-1 petition has been approved for an employment start date on or after October 1, 2019 and for a validity period of six months or more, must file a semiannual report every six months after the petition validity start date up to and including the sixth month preceding the petition's validity end date. As such, a CW-1 petition approved for a validity period of 1 year requires the filing of a single semiannual report while a CW-1 petition approved for a validity period of 3 years requires the filing of 5 semiannual reports. The semiannual report must be filed within a 60 day window surrounding each six-month anniversary of the petition validity start date, with the filing window opening 30 days before and closing 30 days after the six-month anniversary of the petition validity start date.

This form creates a streamlined approach for easy USCIS intake while creating targeted data requests to ensure that USCIS captures the information necessary for verification of the CW-1 employment. Data fields include information to verify what was approved on the petition versus the actual terms under which the CW-1 is employed. For example, the form requests information on how many CW-1 beneficiaries were approved on the original petition; how many of the approved beneficiaries remain in CW-1 status and are still working for the petitioner; the wage offered, per week or year, on the approved Form I-129CW versus the actual wage, per week or per year, currently paid to the CW-1 workers; and the hours per week, offered on the approved Form I-129CW versus the actual hours worked per week. Petitioners can file one form to report the information on multiple beneficiaries as long as they were approved on the same petition.

Although this IFR does not require submission of evidence at the time of filing the semiannual report, it does contain an attestation of compliance for the petitioner to affirm, under penalty of perjury, the continuing employment and payment of the CW-1 worker under the terms and conditions set forth in the petition. The attestation serves as initial evidence to USCIS regarding the petitioner's continued eligibility as a CW-1 petitioner.

In addition, although there is no requirement to submit evidence, the regulations are revised to add a new document retention requirement at 8 CFR 214.2(w)(26)(iii). In accordance with these requirements, the petitioner must retain documents and records meeting their burden to demonstrate compliance with this rule, and must provide the documents and records upon the request of DHS or DOL, such as in the event of an audit or investigation. An employer must retain evidence that supports the approved petition and semiannual report including, but not limited to: (a) Personnel records for each CW-1 worker including the name, current residence address in the Commonwealth, age, domicile, citizenship, point of hire, and approved employment contract termination date; (b) Payroll records for each CW-1 worker, including the O*NET job classification wage rate or salary, number of hours worked each week, gross compensation, itemized deductions, and evidence of net payments made and received biweekly; and (c) Direct evidence of payment of wages and overtime, such as receipts for cash payments, cancelled checks or deposit records of payment of wages and overtime. Petitioners must retain all documents and records in support of an approved petition and any semiannual report(s) for a period of three years after the ending date of the petition validity period. If requested, petitioners must provide the documents and records supporting the information in the approved petition and the semiannual report to DHS and DOL at any time during the aforementioned retention period. The document retention is necessary from an investigative perspective as the information collected may be used in conjunction with any site visits conducted by DHS or requests for additional evidence to verify compliance. Per 8 CFR 214.2(w)(26)(ii), DHS may provide such semiannual reports to other federal partners, including DOL for investigative or other use as DOL may deem appropriate. Failure to comply with the semiannual report requirement may be a basis for revocation of an approved petition as provided below or for denial of subsequent petitions filed by the employer.

To ensure fairness and equal footing among CW-1 petitioners in the application of this statutory requirement, this IFR establishes that the semiannual report shall be required beginning with all CW-1 petitions approved by USCIS with employment start dates in FY 2020 for a validity period of six months or more. The semiannual reporting requirement will apply to CW-1 petitions with such employment start dates approved by USCIS before the effective date of this IFR and before the requirement was stated in the instructions for the CW-1 petition. Completion of the report will rely on readily attainable facts by the petitioner that are based on the terms and conditions previously set forth in the CW-1 petition. Requiring the semiannual report for all CW-1 petitions approved by USCIS with employment start dates in FY 2020 for a validity period of six months or more ensures uniform compliance with the statutory requirement by requiring the submission of the same information across the same period of time, and will avoid data gaps and incomplete information collections for the initial FY 2020 reporting period.

F. Revocations

The Workforce Act provides the Secretary discretionary authority to revoke a petition approval for good cause and provides a non-exhaustive list of examples that may serve as a basis for revocation, such as: The employer failing to maintain the continuous employment of the CW-1 worker, failing to pay the CW-1 worker, or failing to timely file a semiannual report; if the employer commits any other violation of the terms and

conditions of employment, or otherwise ceases to operate as a legitimate business; if the beneficiary of such petition does not apply for admission to the CNMI by the date that is 10 days after the period of petition validity begins, if the employer has requested consular processing; or if the employer fails to provide a former, current, or prospective CW-1 worker with the original (or a certified copy of the original) of all petitions, notices, and other written communication related to the worker (other than sensitive financial or proprietary information of the employer, which may be redacted) that has been exchanged between the employer and the DOL, DHS, or any other Federal agency or department.
See
48 U.S.C. 1806(d)(3)(D)(iii)(I).

The Workforce Act also authorizes the Secretary to reallocate a revoked permit to the following fiscal year.
See
48 U.S.C. 1806(d)(3)(D)(iii)(II). Pursuant to section 3(b)(3) of the Workforce Act,
38

Governor Torres submitted comments and recommendations to DHS on the implementation of this revocation provision.
39

On the statutory revocation provision, the Governor expressed concern with a specific statutory provision, allowing for revocation of a permit if the petition was approved for consular processing and the beneficiary does not apply for admission to the CNMI during the ten day period after the start date of petition validity. He requested that DHS delay the implementation of the statutory revocation provision until the U.S. Department of State's role in this process is established or alternatively, that the provision be interpreted and implemented so that it does not immediately disqualify admission into the CNMI if all other petition criteria are met. The Governor stated that consular processing delays, which are outside the control of employers, may lead to petition revocations and this would be detrimental to the CNMI business community.
40

38
As stated in sec. 3(b)(3), the Secretary shall consider, in good faith, any written public recommendations regarding the implementation of this Act that are submitted by the CNMI Governor and may include provisions in the IFR that are responsive to any recommendation of the Governor that is not inconsistent with the Workforce Act.

39

See
Letter from Rafael DLG Torres, Governor of the CNMI, to Kirstjen Nielsen, Secretary, DHS (Sept. 18, 2018), available at
http://www.regulations.gov
under DHS Docket No. USCIS-2019-0003.

40
While the Governor's letter does not mention concerns regarding admission, it is important to note that the statutory basis for revocation is tied to admission, and therefore to U.S. Customs and Border Protection's (CBP) role, rather than to visa issuance. That said, delays in consular processing of visas with DOS would inherently delay any admission by CBP.

In accordance with the Workforce Act, DHS has considered the Governor's recommendations in the development of this regulation. The Workforce Act is clear that petition revocation is within the Secretary's discretionary authority and therefore does not mandate automatic revocation pursuant to any of the listed grounds. However, in considering how to implement the revocation authority based on “good cause,” including for any of the examples specified in the Workforce Act, DHS examined the revocation procedures already in place for other nonimmigrant classifications. For example, the H classification revocation procedures at 8 CFR 214.2(h)(11)(ii) include immediate and automatic revocation if the petitioner goes out of business or files a written withdrawal of the petition, or DOL revokes the temporary labor certification upon which the petition is based. Similarly, the provisions relating to the H classification at 8 CFR 214.2(h)(11)(iii) provide for revocation on notice and issuance of a NOIR on certain grounds, which are tied to elements specified in the petition. These procedures provide for a NOIR if the beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or the beneficiary is no longer receiving training as specified in the petition; the statement of facts contained in the petition or on the application for a temporary labor certification was not true and correct, inaccurate, fraudulent, or misrepresented a material fact; the petitioner violated terms and conditions of the approved petition; the petitioner violated requirements of section 101(a)(15)(H) of the INA or 8 CFR 214.2(h); or the approval of the petition violated related regulations or involved gross error.
Id.

The Workforce Act does not provide specific procedural requirements for implementation but DHS is closely mirroring existing revocation procedures already in place for other nonimmigrant classifications.
41

Under new 8 CFR 214.2(w)(27)(i), the petitioner must immediately notify USCIS of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility. If the petitioner continues to employ the beneficiary, it must notify USCIS of these changes on an amended Form I-129CW petition. If the petitioner no longer employs the beneficiary, the petitioner shall send a letter to the office at which the CW-1 petition was filed explaining the basis on which the specific CW-1 nonimmigrant is no longer employed.

41
For example, provisions related to the O and P classifications also provide for immediate and automatic revocation if the petitioner or employer goes out of business, or files a written withdrawal of the petition, or notifies USCIS that the beneficiary is no longer employed by the petitioner.
See
8 CFR 214.2(o)(8)(ii) and 8 CFR 214.2(p)(10)(ii). The R classification regulations include immediate and automatic revocation if the petitioner ceases to exist or files a written withdrawal of the petition.
See
8 CFR 214.2(r)(18)(ii). As with the H classifications, the O, P, and R regulations also provide for revocation on notice and issuance of a NOIR on certain elements specified in the petition.
See
8 CFR 214.2(o)(8)(iii), 8 CFR 214.2(p)(10)(iii), and 8 CFR 214.2(r)(18)(iii). However, these classifications do not require an approved TLC as a prerequisite to filing the petition with USCIS.

Under 8 CFR 214.2(w)(27)(ii), a petition will be immediately and automatically revoked if the petitioner ceases operations or files a written withdrawal of the petition, or if DOL revokes the temporary labor certification upon which the petition is based. Under 8 CFR 214.2(w)(27)(iii), USCIS will also pursue discretionary NOIRs in a manner that mirrors the existing H classification grounds for revocation on notice and for additional elements listed in the Workforce Act. Specifically, under 8 CFR 214.2(w)(27)(iii)(A), USCIS may, in its discretion, send the petitioner a NOIR for good cause, including if it finds that:

(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;

(2) The petition or the application for a temporary labor certification was not true and correct, inaccurate, fraudulent, or misrepresented a material fact;

(3) The petitioner violated terms and conditions of the approved petition;

(4) The petitioner violated a requirement of 8 CFR 214.2(w);

(5) The approval of the petition violated 8 CFR 214.2(w) or involved gross error;

(6) The petitioner failed to maintain the continuous employment of the CW-1 nonimmigrant, failed to pay the nonimmigrant, failed to timely file a semiannual report, committed any other violation of the terms and conditions of employment, or otherwise ceased to operate as a legitimate business;

(7) The beneficiary did not apply for admission to the CNMI within 10 days after the beginning of the petition validity period if the petition has been approved for consular processing; or

(8) The employer failed to provide a former, current, or prospective CW-1 nonimmigrant, not later than 21 business days after a written request from such individual, with the original (or a certified copy of the original) of all petitions, notices, and other written communication related to the worker (other than sensitive financial or proprietary information of the employer

which may be redacted) that has been exchanged between the employer and DOL, DHS, or any other Federal agency or department.

Under 8 CFR 214.2(w)(27)(iii)(B), the NOIR will state the grounds for the revocation. The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. USCIS may revoke the petition in whole or in part. There is no appeal of an automatic revocation. Under 8 CFR 214.2(w)(28), revocations on notice may be appealed under existing appeal procedures in 8 CFR 103.

The grounds listed in 8 CFR 214.2(w)(27)(iii) provide clear guidelines for the program consistent with the Workforce Act. The new 8 CFR 214.2(w)(27) creates automatic revocation grounds for clear-cut scenarios, consistent with other nonimmigrant classifications, allows for revocation for good cause, and specifies the statutory grounds for instituting revocation-on-notice proceedings while providing petitioners with notice and an opportunity to cure any deficiencies. For each beneficiary of a petition revoked, entirely or in part in a fiscal year, USCIS will add a CW-1 cap number to the next fiscal year and inform the public as appropriate.
See
new 8 CFR 214.2(w)(1)(x)(C). These new revocation provisions shall apply to all CW-1 petitions approved by USCIS or that otherwise remain valid as of the effective date of this IFR.

G. Definition of Legitimate Business

The Workforce Act retains the regulatory definition of a “legitimate business”
42

as set forth in 8 CFR 214.2(w)(1)(vi), and adds an E-Verify requirement. 48 U.S.C. 1806(d)(3)(D)(iv). Further, it states that a CW-1 petition may not be approved for a CW-1 employer that is not a legitimate business.
Id.
While The Workforce Act authorizes the Secretary to determine what constitutes a legitimate business, it also specifically defines the term “legitimate business” as a real, active, and operating commercial or entrepreneurial undertaking that the Secretary determines, in the Secretary's sole discretion: Produces services or goods for profit, or is a governmental, charitable, or other validly recognized nonprofit entity; meets applicable legal requirements for doing business in the CNMI; has substantially complied with wage and hour laws, occupational safety and health requirements, and all other Federal, CNMI, and local requirements related to employment during the preceding 5 years; does not directly or indirectly engage in, or knowingly benefit from, prostitution, human trafficking, or any other activity that is illegal under Federal, CNMI, or local law; and is a participant in good standing in the E-Verify program.
Id.
Further pursuant to The Workforce Act, a “legitimate business” must not have, as a current or former owner, investor, manager, operator, or person meaningfully involved with the undertaking, who has not substantially complied with wage and hour laws, occupational safety and health requirements, and all other Federal, Commonwealth, and local requirements related to employment during the preceding 5 years; or who directly or indirectly engages in, or knowingly benefits from, prostitution, human trafficking, or any other activity that is illegal under Federal, Commonwealth, or local law.
Id.
Also under the Workforce Act, a “legitimate business” must not be the agent of such an individual, or a successor in interest to an undertaking that does not comply with such requirements.
Id.

42
The “legitimate business” definition set forth in the CNRA was incorporated into DHS CW transitional worker regulations via the final rule, published on September 7, 2011. 76 FR 55502 (Sept. 7, 2011). On December 16, 2014, Congress amended the law to extend the transition period until December 31, 2019.
See
Consolidated and Further Continuing Appropriations Act, 2015.

Public Law 113-235, sec. 10, 128 Stat. 2130, 2134 (codified at 48 U.S.C. 1806(d)). Congress also eliminated the Secretary of Labor's authority to provide for future extensions of the CW-1 program, requiring the CW-1 program to end (or sunset) on December 31, 2019. Public Law 113-235 removed section (d)(5), the DOL extension provision, which is where the definition of legitimate business was contained in the original Act.

This IFR incorporates the revised definition of legitimate business into 8 CFR 214.2(w)(1)(vii) to include the new E-Verify requirement and successor in interest prohibitions. Pursuant to 48 U.S.C. 1806(d)(3)(D)(iv), only legitimate businesses may petition for a CW-1 employer. The statutory definition of a legitimate business, among other things, requires CW-1 employers to be a participant in good standing in the E-Verify program as a prerequisite for filing for a CW-1 worker. This IFR implements the Workforce Act's E-Verify requirement for CW-1 employers at 8 CFR 214.2(w)(1)(vii)(E) and provides a definition of a participant in good standing for E-Verify purposes at 8 CFR 214.2(w)(1)(xii).

The E-Verify program is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States.
43

E-Verify employers verify the identity and employment eligibility of newly hired employees by electronically matching information provided by employees on the Form I-9, Employment Eligibility Verification, against records available to DHS and SSA. While E-Verify is a voluntary program, some employers are required to enroll in it as a condition of federal contracting, or a result of state legislation or other applicable law.

43

See
E-Verify, available at
https://www.e-verify.gov/
(last visited May 28, 2019).

Before an employer can participate in the E-Verify program, the employer must enter into a Memorandum of Understanding (MOU) with DHS. By executing the MOU, employers agree to abide by lawful hiring requirements and to follow the E-Verify process to prevent unauthorized disclosure of personal information and unlawful discriminatory practices based on national origin or citizenship status. Specifically, in the MOU, the employer agrees not to use E-Verify for pre-employment screening of job applicants or in support of any unlawful employment practice. The employer further agrees to comply with Title VII of the Civil Rights Act of 1964 and section 274B of the INA, 8 U.S.C. 1324b, by not discriminating unlawfully against any individual in hiring, firing, employment eligibility verification, or recruitment or referral practices because of his or her national origin or citizenship status, or by committing discriminatory documentary practices. Illegal practices can include selective verification, improper use of E-Verify, or discharging or refusing to hire employees because they appear or sound “foreign” or have received tentative non-confirmations. The MOU also makes clear that USCIS may suspend or terminate an employer's access to E-Verify if the employer violates Title VII or section 274B of the INA, 8 U.S.C. 1324b, fails to follow required verification procedures, or otherwise fails to comply with E-Verify requirements. Any employer who violates the immigration-related unfair employment practices provisions in section 274B of the INA could face civil penalties, including back pay awards. Employers who violate Title VII face potential back pay awards, as well as compensatory and punitive damages. Under the MOU, employers who violate either section 274B of the INA or Title VII may have their participation in E-Verify terminated. DHS may also immediately suspend or terminate the MOU, and thereby the employer's participation in E-Verify, if DHS or the SSA determines that the employer failed to comply with established E-Verify procedures or requirements. In sum, violation of the terms of this agreement

by the employer is grounds for immediate termination of its participation in the program.
44

44

See
E-Verify, Employers, Enrolling in E-Verify: The E-Verify Memorandum of Understanding for Employers, available at
https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf
(last visited May 28, 2019).

Employers participating in E-Verify must still complete a Form I-9 for each newly hired employee, as required under current law.
45

Following completion of Form I-9, the employer must enter the newly hired worker's information into E-Verify, which then checks that information against information contained in government databases.
46

It is important to note that once an employer enrolls in E-Verify, that employer is responsible for verifying all new hires in E-Verify, at the hiring site(s) identified in the MOU executed between the employer and DHS.
47

The earliest an employer may use E-Verify with respect to an individual is after the individual accepts an offer of employment and the employee and employer complete the Form I-9.
48

Verification of the employee's identity and employment eligibility and creating the E-Verify case must be done no later than the end of three business days after the new hire's first day of employment. E-Verify applies to new hires only and cannot be used to verify expiring work authorization of a current employee (including CW-1 employees).

45

See
E-Verify, Employers, Monitoring and Compliance available at
https://www.e-verify.gov/employers/monitoring-and-compliance
(last visited May 28, 2019).

46

See id.
For example, E-Verify compares employee information against records in the SSA database and those available to DHS. Most employees are automatically confirmed as work authorized. In Fiscal Year Q3 2018 (Oct. 2017-June 2018), the E-Verify program processed a total of 27,357,051 cases. During this same time period, 98.88 percent of employees were automatically confirmed as authorized to work (“work authorized”) either instantly or within 24 hours, requiring no employee or employer action.
See
E-Verify, About E-Verify, E-Verify Data, E-Verify Performance available at
https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance
(last visited May 28, 2019).

47

Id.

48

Id.

While participation in E-Verify is a new requirement for CW-1 employers, it is not a new requirement for certain employers that are required to enroll in it as a condition of federal contracting, or a result of state legislation or other applicable law. It is also a requirement for employers of certain nonimmigrants. For example, employers of certain F-1 students with science, technology, engineering, or mathematics (STEM)
49

degrees are subject to E-Verify requirements. Employers of these nonimmigrants must remain participants in good standing in the E-Verify program, as determined by USCIS in its discretion.
50

While the requirements of the program are clearly defined in the MOU and related guidance, DHS has not expressly defined “participant in good standing” in the regulations applicable to that program.
51

49

See
8 CFR 214.2(f)(10)(ii)(C)(5).

50

See
8 CFR 214.2(f)(10)(ii)(C)(5) and 8 CFR 274a.12(b)(21).

51

But see
81 FR 13039, 13082 (Mar. 11, 2016) (interpreting the participant in good standing requirement to apply to a specific hiring site or work site).

An explicit definition of this term, applicable exclusively to the context of CW-1 adjudication, will provide greater transparency for CW-1 employers as to their responsibilities as E-Verify participants. Defining “participant in good standing” will also help USCIS more closely monitor employer compliance with E-Verify requirements for CW-1 employers throughout the period of participation with E-Verify. Under new 8 CFR 214.2(w)(1)(xii), which is limited to CW-1 petitioners, a participant in good standing in the E-Verify program means an employer that has enrolled in E-Verify with respect to all hiring sites in the United States as of the time of filing a petition; is in compliance with all requirements of the E-Verify program as identified in the MOU and program guidance, including but not limited to verifying the employment eligibility of newly hired employees in the United States; and continues to be a participant in good standing in E-Verify at any time during which the employer employs any CW-1 nonimmigrant. Accordingly, the Form I-129CW is updated to include a new data field on the Form I-129CW to capture the employer's E-Verify information (employer's name as listed in E-Verify, along with the E-Verify Company Identification Number).

This rule requires participating employers to have enrolled in E-Verify with respect to all hiring sites in the United States. DHS had other options for implementing the E-Verify requirement. DHS could require enrollment only for work at the specific worksite, could require E-Verify across hiring sites in the CNMI only, or could require that the employer enroll in E-Verify for all its worksites. Under current procedures, applicable to voluntary E-Verify participation, an employer can choose which hiring sites will participate in E-Verify, and each employer has the ability to organize or incorporate itself as it chooses and enroll as that chosen entity in E-Verify.
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While the Workforce Act was silent on this issue, and while any of the above interpretations are reasonable, Congress could have specified the reach of the E-Verify requirement or could have simply limited such participation in statute, but it did not provide any limits on the requirement.

52
See the Benefit Analysis Issues discussion in the E-Verify FAR Case 2007-013 at 73 FR 67651, 67689 (Nov. 14, 2008). The “E-Verify User Manual for Corporate Administrators” defines hiring sites as follows: “2.1.1 HIRING SITES A hiring site is the location where the employer hires employees and they complete Form I-9. If your company creates cases in E-Verify at the same location, it is a verification location and a hiring site. Employers select which sites participate in E-Verify on a hiring site by hiring site basis. This means that if you decide to have a hiring site participate in E-Verify, you must verify all newly hired employees for that hiring site. If you decide not to have a hiring site participate, you are not permitted to verify any employees at that location.” Available at
https://www.e-verify.gov/e-verify-user-manual-for-corporate-administrators-20-company-location-administration-21
(last visited June 26, 2019).

The Workforce Act's definition of “legitimate business” states that determinations regarding whether an employer is a “legitimate business” are “in the Secretary's sole discretion,” thus demonstrating Congressional intent that this authority would be exercised flexibly, as deemed appropriate by DHS. The definition of “legitimate business,” which contains the E-Verify participation requirement, also contains multiple elements that relate to an employer's operations in the CNMI, as well as activities in the United States outside of the CNMI. In particular, the business must have substantially complied with all Federal laws relating to employment, and not to have engaged in or benefited from activities such as human trafficking or any other activity that is illegal under Federal law. If, for example, a business complied with laws related to its CNMI operations, but was engaged in human trafficking in Guam or elsewhere in the United States, the employer would not be a legitimate business under this definition.

With respect to the E-Verify requirement, if it were limited to new hires at hiring sites in the CNMI only, the rule would be impractical for DHS to manage and too easy for an employer to undermine because an employer could avoid enrolling a non-CNMI work site in E-Verify. Not all hires of an employer are hired through the location where they work. It is very common for an employer to hire through a central site that has no connection to various work sites. In addition, there are few employers who have segregated their workforces to have no interaction with other worksites. Modern technology, most notably electronic messaging, has

broadened and facilitated doing work in multiple dispersed locations through a national and even international network of collaborators. For example, an employer could hire an employee through a hiring site in Guam and then station that person in the CNMI, thereby circumventing the E-Verify requirement. Thus, narrowly defining the verification requirement would be too unwieldy for an effective rule, making enforcement of this aspect of the rule too difficult and making the rule too easy to misinterpret or undermine, such as in situations as the above example illustrated, the employer can merely hire an employee at one hiring site and then transfer him/her to a worksite in the CNMI. Consequently, DHS believes it is reasonable to take a more expansive interpretation to fully support increased participation.

DHS's more expansive interpretation is also consistent with Executive Order (E.O.) 13788, “Buy American Hire American”,
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which among other elements, directs the Secretary of Homeland Security, “to protect the interests of U.S. workers in the administration of our immigration system, including through the prevention of fraud or abuse.” See E.O. 13788 Section 5(a). A main purpose of E-Verify is to ensure that U.S. employers hire only people who are legally permitted to work. This interpretation directly supports the E.O. by requiring that CW-1 employers use E-Verify to confirm the employment eligibility of their new employees at all hiring sites in the United States to ensure the integrity of the immigration system and preserve jobs for U.S. workers.

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On April 18, 2017, the President issued Executive Order (E.O.) 13788, “Buy American and Hire American” available at
https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/,
(last visited June 26, 2019).

Under this IFR, a CW-1 employer will need to enroll and participate in E-Verify with respect to all of its hiring sites, to include the CNMI and other locations in the rest of the United States, as of the time of filing a petition. A hiring site is the location where the employer hires employees and they complete Form I-9.
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This means that the CW-1 employer must select all hiring sites to participate in E-Verify so that the employer can verify all newly hired employees for all hiring sites. The Workforce Act further bars petitioners that have not substantially complied with wage and hour laws, occupational safety and health requirements, and all other Federal, Commonwealth, and local requirements related to employment during the preceding 5 years and that have directly or indirectly engaged in, or knowingly benefitted from, prostitution, human trafficking, or any other activity that is illegal under Federal, Commonwealth, or local law. Notably, the current regulatory definition mentioning trafficking in minors will be amended to the more expansive term, human trafficking. These statutory changes to the legitimate business definition also cast a wider net by expanding the population it covers by extending these prohibitions to any “successor in interest.” This IFR, consistent with DOL's implementing interim regulation for the Workforce Act,
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defines successor in interest at 8 CFR 214.2(w)(1)(xiv) as an employer that is controlling and carrying on the business of a previous employer. The following factors may be considered in determining whether an employer is a successor in interest; no one factor is dispositive, but all of the circumstances will be considered as a whole to have:

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See
“The E-Verify User Manual for Corporate Administrators”, available at
https://www.e-verify.gov/e-verify-user-manual-for-corporate-administrators-20-company-location-administration-21
(last visited June 26, 2019).

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See
20 CFR 655.402(rr). DHS has not previously defined this concept by regulation and finds the DOL definition relating to TLCs for CW-1 petitions applicable here.

• Substantial continuity of the same business operations;

• Use of the same facilities;

• Continuity of the work force;

• Similarity of jobs and working conditions;

• Similarity of supervisory personnel;

• Whether the former management or owner retains a direct or indirect interest in the new enterprise;

• Similarity in machinery, equipment, and production methods;

• Similarity of products and services; and

• The ability of the predecessor to provide relief.

H. Long-Term Workers

The Workforce Act creates a new subcategory of CW-1 workers. Per statute, a long-term worker is one who was admitted to the CNMI as a CW-1 nonimmigrant during FY 2015, and who was granted CW-1 nonimmigrant status, as defined by DHS, during each of FYs 2016 through 2018. 48 U.S.C. 1806(d)(7)(B). As provided by the Workforce Act, long-term workers are exempt from the prohibition on Construction and Extraction Occupations (under DOL's SOC Group 47-0000). 48 U.S.C. 1806(d)(3)(D)(v). Extensions for long-term workers may be granted for a period of up to three years until the end of the transition period, subject to the numerical limitation. 48 U.S.C. 1806(d)(7)(B) and new 8 CFR 214.2(w)(13). Long-term workers are not subject to the temporary departure requirement. 48 U.S.C. 1806(d)(7)(A) and new 8 CFR 214.2(w)(18)(v).

Current regulations do not differentiate between a beneficiary with initial CW-1 status and a beneficiary that has been in status for a number of years. CW-1 status currently may be granted for a period of up to one year only. An employer may request an extension of status by filing a new I-129CW petition. Extensions are also granted in periods that are not to exceed one year. However, the Workforce Act now distinguishes between certain CW-1 beneficiaries, based on their previous status as a CW-1, and provides this new subcategory of CW-1 beneficiaries, the long-term workers, with up to a three year validity period. This IFR incorporates the statutory definition of “long-term workers” at 8 CFR 214.2(w)(1)(viii); the exemption from the construction prohibition at 8 CFR 214.2(w)(2)(vii); the exemption from the temporary departure requirement at 8 CFR 214.2(w)(18)(v) and the longer extension period at 8 CFR 214.2(w)(18)(iii).

USCIS will begin accepting CW-1 petitions requesting long-term workers as of the effective date of this IFR. Accordingly, the Form I-129CW is updated to specifically identify a request for such long-term workers.

I. Bar on Certain Construction Worker Occupations

The Workforce Act amends the ban on certain construction worker occupations first enacted in 2017
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and prohibits the CW-1 classification from being available to workers who will be performing jobs classified as “construction and extraction occupations,” as defined in DOL's SOC system, other than long-term workers (CW-1 workers first issued such status before October 1, 2015). 48 U.S.C. 1806(d)(3)(D)(v). It bans employers of new construction and extraction occupation workers from using the CW-1 classification.

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The Northern Mariana Islands Economic Expansion Act (the NMIEEA), Public Law 115-53, which was enacted into law on August 22, 2017, revised the CW-1 visa classification to, among other things, prohibit the CW-1 classification from being available to workers who will be performing jobs classified as “construction and extraction occupations” as defined in the U.S. Department of Labor's SOC system other than to extend CW-1 permits of such workers first issued before October 1, 2015.

As noted above, the original construction ban was imposed in 2017, but DHS did not update its regulations at that time. USCIS interpreted the 2017 exemption to the ban as applying to extensions from the same petitioner and same qualifying beneficiary. This new exemption broadly allows any CW-1 petitioner to request a CW-1 beneficiary for “construction and extraction occupations” as long as that beneficiary qualifies as a long-term worker. Accordingly, this IFR updates DHS regulations to include this amended bar on construction workers (and an exemption for long-term workers) at 8 CFR 214.2(w)(2)(vii), but does not change any other petitioning procedures.

Petitioners are required to comply with all U.S. Federal and CNMI labor laws including the requirements to submit a DOL-approved TLC. While USCIS will consider the job classification identified on these documents, USCIS is not bound by this determination and may make a separate and independent judgment on the CW-1 petition based on a preponderance of the evidence in each case. USCIS will deny CW-1 petitions for construction and extraction occupations if it is not established that the beneficiary is eligible for the long-term worker subcategory.

J. Temporary Departure Requirement

The Workforce Act contains a requirement for CW-1 transitional workers (other than “long-term workers” who have had CW-1 status continuously since FY 2015) to remain outside the United States after a second renewal period (
i.e.,
extending up to a total of three years of CW-1 status) before another petition for CW-1 classification may be filed. 48 U.S.C. 1806(d)(7). Specifically, the language states, “at the expiration of the second renewal period, an alien may not again be eligible for such a permit until after the alien has remained outside of the United States for a continuous period of at least 30 days prior to the submission of a renewal petition on their behalf.” 48 U.S.C. 1806(d)(7)(A)(ii).

In a September 18, 2018 letter to Secretary Nielsen, Governor Torres requested that DHS interpret the requirement for a CW-1 permit holder to remain outside of the United States for 30 continuous days prior to the submission of a [third] renewal petition by their employer such that the first relevant renewal petition would be filed for employment in FY 2020.
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Governor Torres stated that this approach would provide clarity to employers on the mandates of the Workforce Act and allow them to make the necessary adjustments to their internal processes to plan for the departure of their CW-1 employees following the end of the second renewal.

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As previously stated, the Workforce Act states that DHS should consider in good faith the implementation recommendations of the Governor submitted within 60 days after enactment.

In accordance with the Workforce Act, DHS has considered the Governor's recommendations in the development of this regulation. The Governor's request is inconsistent with the best reading of the statute. The Workforce Act exempts long-term workers from the departure requirement. Eligibility for the long-term worker subcategory is specifically based on their CW-1 status before the date of enactment (
i.e.,
in CW-1 status since FY 2015). DHS therefore believes the Workforce Act is best read as indicating that pre-enactment renewals will be taken into consideration in applying the departure bar to other workers. Otherwise, DHS is arguably (at least for the first two years) creating an exception for all workers that Congress did not intend. The Workforce Act specifically exempts long-term workers from the departure requirement and ensures that they receive preferential consideration under the cap. As a result, this provision limits the stay of CW-1 workers, other than long-term workers, by imposing a new 30-day departure before the third petition to renew CW-1 classification.

USCIS will count renewals issued before the interim final rule effective date, so that the 30-day departure requirement is implemented immediately. As such, it shall apply to all CW-1 petitions filed with USCIS on or after the effective date of this IFR. This reading of the Workforce Act is more in line with Congressional intent (given the express carve-out for the long-term workers from the 30-day departure requirement). New 8 CFR 214.2(w)(18)(v).

K. Transit Through Guam

The Workforce Act also authorizes CW-1 and CW-2 status holders to transit through Guam. Existing regulations allow direct Guam transit under limited conditions only. This IFR updates regulations at 8 CFR 214.2(w)(1)(ii) and (w)(23)(iii) to incorporate the statutory language.

Under the current 8 CFR 214.2(w)(22), CW-1 and CW-2 status is only applicable in the CNMI. It does not authorize entry to Guam or to any other part of the United States. Entry, employment, and residence in the rest of the United States (including Guam) require the appropriate visa or visa waiver eligibility. An alien with CW-1 or CW-2 status who enters or attempts to enter, who travels or attempts to travel to any other part of the United States without the appropriate visa or visa waiver eligibility, or who violates conditions of nonimmigrant stay applicable to any such authorized status in any other part of the United States is deemed to have violated CW-1 or CW-2 status. However, the regulations provide an exception to this limitation on travel to Guam. Currently, under 8 CFR 214.2(w)(22)(iii), USCIS allows a CW-1 or CW-2 who is a national of the Philippines, to travel from the CNMI to the Philippines (and back) via a direct Guam transit without being deemed to violate that status. Under 8 CFR 214.2(w)(1)(ii), such direct transit can only be on a direct itinerary involving a flight stopover or connection in Guam (and no other place) within 8 hours of arrival in Guam, without the alien leaving the Guam airport. Under this

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-08524. Public record. Not legal advice.