[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Rules and Regulations]
[Pages 55502-55539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22622]
[[Page 55501]]
Vol. 76
Wednesday,
No. 173
September 7, 2011
Part III
Department of Homeland Security
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8 CFR Parts 103, 214, 274a, et al.
Commonwealth of the Northern Mariana Islands Transitional Worker
Classification; Final Rule
Federal Register / Vol. 76 , No. 173 / Wednesday, September 7, 2011 /
Rules and Regulations
[[Page 55502]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 214, 274a, and 299
[CIS No. 2459-08; DHS Docket No. USCIS-2008-0038]
RIN 1615-AB76
Commonwealth of the Northern Mariana Islands Transitional Worker
Classification
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Final rule.
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SUMMARY: On October 27, 2009, the Department of Homeland Security
published an interim rule creating a new, temporary, Commonwealth of
the Northern Mariana Islands (CNMI)-only transitional worker
classification (CW classification) in accordance with title VII of the
Consolidated Natural Resources Act of 2008 (CNRA). The CW
classification is intended to provide for an orderly transition from
the CNMI permit system to the U.S. Federal immigration system under the
immigration laws of the United States, including the Immigration and
Nationality Act (INA). This final rule implements the CW classification
and establishes that a CW transitional worker is an alien worker who is
ineligible for another classification under the INA and who performs
services or labor for an employer in the CNMI during the five-year
transition period. CNMI employers may now petition for such workers.
The rule also establishes employment authorization incident to CW
status.
DATES: This final rule is effective on October 7, 2011.
FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 20
Massachusetts Avenue, NW., Washington, DC 20529-2060, telephone (202)
272-1470.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Interim Final Rule
III. Final Rule
IV. Public Comments Received on the Interim Final Rule
V. Other Changes
VI. Regulatory Analyses
I. Background
The Commonwealth of the Northern Mariana Islands (CNMI or
Commonwealth) is a U.S. territory located in the Western Pacific that
has been subject to most U.S. laws for many years. Before November
2009, the CNMI administered its own immigration system under the terms
of the 1976 Covenant with the United States. See A Joint Resolution to
Approve the Covenant To Establish a Commonwealth of the Northern
Mariana Islands in Political Union with the United States of America
(Covenant Act), Public Law 94-241, sec. 1, 90 Stat. 263, 48 U.S.C. 1801
note (1976). On May 8, 2008, President Bush signed into law the
Consolidated Natural Resources Act of 2008 (CNRA). See Public Law 110-
229, 122 Stat. 754, 853 (2008). Title VII of the CNRA extends U.S.
immigration laws to the CNMI. Id. The stated purpose of the CNRA is to
ensure effective border control procedures, to properly address
national security and homeland security concerns by extending U.S.
immigration law to the CNMI (phasing-out the CNMI's nonresident
contract worker program while minimizing to the greatest extent
practicable the potential adverse economic and fiscal effects of that
phase-out), to maximize the CNMI's potential for future economic and
business growth, and to assure worker protections from the potential
for abuse and exploitation. See sec. 701 of the CNRA, 48 U.S.C.A. 1806
note.
Section 702 of the CNRA stated that U.S. immigration laws would
apply to the CNMI starting approximately one year after the date of
enactment, subject to certain transition provisions unique to the CNMI.
See 48 U.S.C. 1806(a). On March 31, 2009, the Secretary of Homeland
Security postponed the effective date of the transition program from
June 1, 2009 (the first day of the first full month commencing one year
from the date of enactment of the CNRA) to November 28, 2009, using her
discretion provided by the CNRA.\1\ The transition period concludes on
December 31, 2014. See 48 U.S.C. 1806(a)(2).
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\1\ See DHS Press Release, ``DHS Delays the Transition to Full
Application of U.S. Immigration Laws in the Commonwealth of the
Northern Mariana Islands'' (Mar. 31, 2009), available at http://www.dhs.gov/ynews/releases/pr_1238533954343.shtm.
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Since 1978, the CNMI has admitted a substantial number of foreign
workers through an immigration system that provides a permit program
for foreigners entering the CNMI, such as visitors, investors, and
workers. Foreign workers under this program constitute a majority of
the CNMI labor force. Such workers outnumber U.S. citizens and other
local residents in most industries central to the CNMI's economy.\2\
The transitional worker program implemented under this rule is intended
to provide for an orderly transition for those workers from the CNMI
permit system to the U.S. Federal immigration system under the INA and
to mitigate potential harm to the CNMI economy as employers adjust
their hiring practices and as foreign workers obtain U.S. immigrant or
nonimmigrant status. See 48 U.S.C. 1806(d).
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\2\ See GAO, Commonwealth of the Northern Mariana Islands:
Pending Legislation Would Apply U.S. Immigration Law to the CNMI
with a Transition Period, GAO-08-466 (Mar. 18, 2008); GAO, U.S.
Insular Areas: Economic, Fiscal, and Accountability Challenges. GAO-
07-119 (Dec. 12, 2006); GAO, Commonwealth of the Northern Mariana
Islands: Serious Economic, Fiscal and Accountability Challenges,
GAO-07-746T (Apr. 19, 2007).
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The CNRA contains several CNMI-specific provisions affecting
foreign workers during the transition period. Section 702(a) of the
CNRA mandates that:
During the transition period, the Secretary of Homeland
Security must ``establish, administer, and enforce a system for
allocating and determining the number, terms, and conditions of permits
\3\ to be issued to prospective employers'' for the transitional
workers.
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\3\ The CNRA refers to a system of permits. Note that we have
retained this language when referencing the statute. In this
context, however, the use of the term ``permit'' is synonymous with
CW status, and the latter term is used more extensively in this
discussion.
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Foreign workers may qualify for the transitional worker
classification if not otherwise eligible for admission under the INA.
Transitional workers may apply to USCIS during the
transition period for a change of status to another nonimmigrant
classification or to adjust status to that of a lawful permanent
resident in accordance with the INA.
The transitional worker program will terminate at the end
of the transition period unless the program is extended by the U.S.
Secretary of Labor. Transitional workers must then adjust or change
status to an immigrant or another nonimmigrant status under the INA if
they want to remain legally in the CNMI. Otherwise, such transitional
workers must depart the CNMI or they will become subject to removal.
See 48 U.S.C. 1806(d).
II. Interim Final Rule
In accordance with the CNRA, on October 27, 2009, DHS published an
interim rule amending regulations at 8 CFR 214.2(w) to create a new
CNMI-only transitional worker classification (CW classification)
intended to be effective for the duration of the transition period. See
74 FR 55094. DHS provided a 30-day comment period in the interim rule,
which ended on November 27, 2009. Id. The interim rule
[[Page 55503]]
was to become effective on November 27, 2009. Id.
On November 25, 2009, the U.S. District Court for the District of
Columbia enjoined implementation of the interim rule.\4\ See CNMI v.
United States, 670 F. Supp. 2d 65 (D.D.C. 2009). On December 9, 2009,
DHS published a notice in the Federal Register reopening and extending
the public comment period for an additional 30 days. See 74 FR 64997.
The reopened comment period ended on January 8, 2010. Id. The comments
received during both comment periods were considered and are discussed
below.
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\4\ On September 12, 2008, the CNMI government filed a lawsuit
challenging the legality of certain provisions of the CNRA and a
motion requesting that those provisions be enjoined. On November 2,
2009, the CNMI government filed an amended complaint, alleging
violations of the Administrative Procedure Act, which generally
provide for notice and public comment before new rules can go into
effect, and seeking a preliminary injunction with regard to the
CNMI-only transitional worker classification (CW classification)
interim final rule. On November 25, 2009, the court issued several
rulings in that lawsuit. First, the court agreed with the United
States that the provisions of the CNRA extending U.S. immigration
law to the CNMI beginning on November 28, 2009 do not violate the
Covenant between the United States and the CNMI or the U.S.
Constitution. The court dismissed the two counts of the CNMI's
complaint alleging these violations. CNMI v. United States, 670 F.
Supp. 2d 65 (D.D.C. 2009). The transition to U.S. immigration law
took place on November 28, 2009 as scheduled. The court entered the
requested preliminary injunction and enjoined the CNMI-only
transitional worker interim final rule. Id. On June 21, 2010, the
district court entered a minute order staying proceedings pending
the promulgation of the CNMI-only transitional worker final rule.
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The interim rule set forth the requirements and procedures for
nonimmigrant status within the transitional worker classification.
Specifically, the interim rule included provisions to:
Classify transitional workers using an admission code of
CW-1 for principal transitional workers and CW-2 for dependents;
Allow aliens who were previously admitted to the CNMI
under the CNMI nonresident worker permit programs to be granted CW
status by USCIS;
Allow workers, who would not be eligible for any other
lawful status under the INA, to enter or remain in the CNMI as
transitional workers during the transition period; and
Establish eligibility criteria, limitations and parameters
for the CW-1 nonimmigrant program as required by or consistent with an
interpretation of the applicable provisions of section 702(a) of the
CNRA, and prescribe procedural requirements for petitioners.
See 74 FR 55094.
DHS has complied with the injunction by declining to accept any
petition for CW classification under the interim rule or otherwise to
implement the interim rule. The interim rule has been incorporated into
the Code of Federal Regulations. See 8 CFR 214.2(w).
III. Final Rule
This final rule provides the requirements to obtain status as a
transitional worker in the CNMI. The final rule adopts most of the
changes set forth in the interim rule. The rationale for the interim
rule and the reasoning provided in the preamble to the interim rule
remain valid with respect to these regulatory amendments, and DHS
adopts such reasoning in support of the promulgation of this final
rule.
In response to the public comments received on the interim final
rule, DHS has modified some provisions for the final rule. These
changes are explained in detail in the summary of comments and
responses and summarized below:
1. The final rule clarifies the authority and process by which
applicants in the CNMI can be granted CW-1 or CW-2 status in the CNMI
without having to travel abroad to obtain a nonimmigrant visa.
Specifically, it clarifies that DHS may grant a section
212(d)(3)(A)(ii) waiver to an alien who is physically present in the
CNMI and approved for an initial grant of CW-1 transitional worker
status or CW-2 dependent status in the CNMI. Such aliens will be
inadmissible under section 212(a)(7)(B)(i)(II) of the INA for lack of a
CW-1 or CW-2 transitional worker visa issued by the U.S. Department of
State (DOS) and also may (unless changing to CW-1 status from another
nonimmigrant status under the INA) be aliens present in the United
States without admission or parole and thus inadmissible under section
212(a)(6)(A)(i) of the INA. This final rule permits a waiver of those
two grounds of inadmissibility for aliens lawfully present in the CNMI
as defined by new 8 CFR 214.2(w)(1)(v) with appropriate documentation.
DHS will determine, on a case-by-case basis, whether an alien is
eligible for the waiver. The alien will not have to file a specific
form or fee in order to request a waiver of these two grounds of
inadmissibility. See new 8 CFR 214.2(w)(24).
2. The final rule describes how beneficiaries of approved employer
petitions and their dependents (spouses and minor children) may obtain
CW status. Principal beneficiaries and their dependents outside the
CNMI will be instructed to apply for a visa. For principal
beneficiaries within the CNMI, the petition itself (including the
biometrics provided under new 8 CFR 214.2(w)(15)) serves as the
application for CW-1 status. Dependents present in the CNMI may apply
for CW-2 dependent status on Form I-539 (or such alternative form as
USCIS may designate) in accordance with the form instructions. CW-2
status may not be approved until approval of the CW-1 petition. A
spouse or child applying for CW-2 status on Form I-539 (or such
alternative form as USCIS may designate) may apply for a waiver of the
filing fee based upon inability to pay as provided by 8 CFR 103.7(c).
See new 8 CFR 214.2(w)(14).
3. The interim rule provided that an alien with CW-1 or CW-2 status
who enters or attempts to enter, travels or attempts to travel to any
other part of the United States without the appropriate visa or visa
waiver, or who violates the conditions of nonimmigrant stay applicable
to any such authorized status in any other part of the United States,
will be deemed to have violated CW-1 or CW-2 status. This final rule
retains the travel restriction but provides a limited exception.
Philippine nationals who hold CW status or intend to apply for
admission to the CNMI in CW status may travel, if otherwise
permissible, between the CNMI and the Philippines through Guam so long
as the travel is on a direct Guam transit itinerary. Such direct Guam
transit will not be considered a violation of the conditions of the
Philippine national's CW status. See new 8 CFR 214.2(w)(22)(iii).
4. The interim final rule provided for attestations by petitioning
employers and biometric collection from beneficiaries in the CNMI. This
final rule strengthens the terms of the attestation that the employer
must sign with respect to its compliance with the required terms and
conditions of employment and compliance with applicable laws. It
requires an employer to attest that it is an eligible employer and will
continue to comply with the requirements for an eligible employer until
such time as the employer no longer employs the worker. See new 8 CFR
214.2(w)(6)(ii)(D). The final rule is also more specific as to the
information that may be required from beneficiaries regarding
immigration status and the need to pay a biometrics fee with each
application (unless the beneficiary is under 14 years of age, or is age
79 or older). See new 8 CFR 214.2(w)(6)(ii) and (15).
5. The interim final rule provided for need-based waivers of
petition filing fees. The final rule also provides for a need-based
waiver of the filing fee for dependent family members seeking CW-2
status in the CNMI. See new 8
[[Page 55504]]
CFR 103.7(c)(3)(iii). The fee provision is also technically revised to
conform the rule to 8 CFR 103.7, as reorganized in the DHS final rule,
U.S. Citizenship and Immigration Services Fee Schedule, 75 FR 58961
(Sept. 24, 2010).
6. Consistent with the CNRA, the interim final rule provided for a
maximum number of CW-1 visas of 22,417 for the time period between the
rule's effective date and September 30, 2010. The numerical limitation
for that period of time is now moot, so the limitation is revised to
extend the 22,417 number to fiscal year 2011 (beginning October 1,
2010). The final rule reduces the number of CW visas by one (to 22,416)
for the subsequent fiscal year, fiscal year 2012 beginning October 1,
2011. Unused numbers will not carry over from one fiscal year to the
next. See new 8 CFR 214.2(w)(1)(viii).
7. The final rule clarifies the impact of a pending petition or
application by providing that a foreign national with CW-1 status may
under certain circumstances work for a prospective new employer after
the prospective new employer files a Form I-129CW petition on the
employee's behalf. See new 8 CFR 214.2(w)(7)(iii) and 274a.12(b)(23).
The final rule also provides that a lawfully present, work authorized
and employed beneficiary of a CW-1 petition filed on or before November
27, 2011 applying for a grant of status in the CNMI may lawfully
continue the employment in the CNMI until a decision is made on the
petition. See new 8 CFR 274a.12(b)(23). The final rule makes a
conforming clarification to the definition of ``lawfully present in the
CNMI'' to ensure that aliens remain eligible for CW status after
November 27, 2011 based upon an application for CW status filed before
that date. See new 8 CFR 214.2(w)(1)(v)(A).
8. The final rule clarifies petition validity and admission
periods. A petition is valid for admission to the CNMI in CW status
during its validity period, and up to ten days before the start of the
validity period. See new 8 CFR 214.2(w)(16). Admission to the CNMI and
authorized employment in CW status is limited to the petition validity
period, not to exceed one year. See new 8 CFR 214.2(w)(13). CW status
expires ten days after the end of the petition's validity period, when
the alien violates his or her status (or, in the case of a status
violation caused solely by termination of employment, 30 days after the
date of termination if a new employer files a nonfrivolous petition
within that 30-day period), or at the end of the transitional worker
program, whichever is earlier. See new 8 CFR 214.2(w)(7)(v) and
(w)(23). The transitional worker program will terminate either upon the
end of the transition period or, if the transitional worker provisions
of the CNRA are extended by the Secretary of Labor pursuant to 48
U.S.C. 1806(d)(5), at the end of that extended period, whichever is
later. See new 8 CFR 214.2(w)(23).
9. The final rule clarifies that a biometric services fee may be
collected for each beneficiary of a CW-1 petition and or the spouse or
children applying for extension or change of status, in addition to the
biometrics fee paid at the time of the initial request. The final rule
also specifies that a biometric services fee may be required for each
beneficiary for which CW-1 status is being requested and for each CW-2
on the application. Further, a biometrics services fee will be required
in order to cover the costs of conducting the necessary background
checks and for identity verification even when the biometrics of the
applicant of beneficiary is stored and reused and not collected again
in connection with the new request. See new 8 CFR 214.2(w)(15). This
change is consistent with biometrics collection policies in other
programs managed by USCIS and does not represent a substantive change.
10. The final rule makes a number of other minor clarifying and
updating changes, such as removing references to petitions filed before
the transition program effective date since no such petitions could
have been filed, clarifying the definition of ``transition period'' to
extend the time period of the CW program to conform to any extension by
the U.S. Secretary of Labor, and updating the definition of ``lawfully
present in the CNMI.'' See, e.g., new 8 CFR 214.2(w)(1)(v) and (xi).
11. The interim final rule proposed that denied petitions may be
appealed to the USCIS Administrative Appeals Office. See new 8 CFR
214.2 (w)(21). The final rule adds the phrase ``or any successor body''
to the provision describing where a denial may be appealed.
IV. Public Comments Received on the Interim Final Rule
During the initial and extended comment periods, DHS received 146
comments from a broad spectrum of individuals and organizations,
including the CNMI Governor's Office, the Saipan Chamber of Commerce, a
former Senator of the CNMI, and other interested organizations and
individuals. DHS considered the comments received and all other
material contained in the docket in preparing this final rule. This
final rule does not address comments that were beyond the scope of the
interim final rule, including those seeking changes to United States
statutes, changes to regulations or petitions (outside the scope of the
interim rule), or changes to the procedures of other DHS components or
agencies. The final rule also does not address comments on the CNMI's
government functions. All comments and other docket material are
available for viewing at the Federal Docket Management System (FDMS) at
http://www.regulations.gov, docket number USCIS-2008-0038.
A. Summary of Comments
Of the 146 comments received, four comments supported the
provisions in the rule as a whole and welcomed the efforts of DHS to
minimize, to the greatest extent practicable, potential adverse
economic and fiscal effects of federalization and to maximize the
Commonwealth's potential for future economic and business growth.
Most commenters expressed concerns over specific provisions in the
interim final rule, such as: The transitional worker eligibility
requirements; the exclusion of certain occupational categories; the
transitional worker classification's allocation system; the petitioning
requirements; the ability to acquire transitional worker status in the
CNMI without a visa; the requirement to obtain a visa to re-enter the
CNMI; and the length of the transition period. Several commenters
suggested limiting the transitional worker classification to foreign
workers already in the CNMI. Some opposed the blanket exclusion of
certain occupational categories and stated that any exclusion would
negatively impact the CNMI economy. Other commenters stated that DHS
did not meet the requirement to establish and enforce a transitional
worker permit system that provides for the allocation and reduction of
workers. Many opposed the petitioning requirement and fees by
suggesting the automatic conversion of all CNMI permits into
transitional worker status. Others opposed the travel restrictions on
the transitional worker classification and the visa requirement to re-
enter the CNMI. Some suggested that DHS permit travel in the CW status,
on the CNMI permit, or issue a waiver of the visa requirement.
B. General Comments
The comments received and DHS responses are organized by subject
area and addressed below.
Sixty-one commenters expressed concern, supported, or offered
general suggestions regarding the transitional worker rule.
[[Page 55505]]
1. System of Permits Versus System of Status
Two commenters stated that the CNRA did not authorize DHS to create
a new status for workers. They argued that transitional worker status
is not necessary because DHS only needs to control worker permits. The
commenters suggested that the statute provides no basis for
transforming the system of ``permits'' for employers into a system of
``status'' for alien workers. They argued that the term ``permit''
applies only to an employer and is not synonymous with the term ``CW
status'' which applies only to a worker. The commenters added that DHS
created a ``status'' for workers instead of following Congressional
intent to create a ``permit'' for employers. The commenters wrote that,
by doing so, DHS intended to restrict workers from moving from
employment under Commonwealth-approved contracts to Federal permit-
approved employment and back again during the first two years of the
transition program. The commenters added that the statutory provision
allowing ``registration'' of aliens present in the Commonwealth did not
authorize DHS to create a separate ``status'' for persons so
registered. See 48 U.S.C. 1806(e)(3).
DHS interprets the CNRA to authorize DHS to administer the permit
system in a manner deemed most reasonable and efficient. See 48 U.S.C.
1806(d)(2). The CNRA also authorized DHS, in its discretion, to
implement a registration program to aid in the federalization process.
Id. at 1806(e)(3). The CNRA did not state that the Federal permit
system should mirror the current CNMI permit system under its prior
immigration laws. It is not reasonable for DHS to administer a permit
system outside of the immigration laws of the United States. DHS
interprets the CNRA to allow it to establish a classification within
its existing system. While the CNMI's formerly applicable immigration
law refers to a system of ``permits'' and Federal immigration law
refers to ``status,'' both terms apply to the alien's period of stay
and conditions of such stay. DHS believes it is reasonable to interpret
that the CNMI permit is comparable to the federal immigration status
because they both set conditions for the admission of the foreign
workers. As such, DHS implemented a transitional worker program to be
consistent with federal immigration laws, including all fees, petition
and application procedures. Therefore, the final rule requires that
employers petition for transitional workers and allows employees to
change employers under INA section 248 and obtain lawful permanent
status, if eligible, under INA section 245. See new 8 CFR 214.2(w)(5)
and (7). The CNMI permit system did not offer such flexibility. While
DHS did not use the CNRA's registration provision in developing the
rule, it provides a transitional program as mandated by the CNRA within
the parameters of the existing Federal system.
2. Immediate Implementation
Four out of 61 commenters suggested that the transitional worker
rule be immediately implemented to avoid adverse effects on the CNMI's
fragile economy. One of these commenters supported the rule as a whole
and welcomed the efforts of DHS to provide for an orderly transition by
addressing security, foreign labor, illegal activity, and the promotion
of U.S. citizen hiring. Another commenter requested that the rule be
finalized only after issuance of the congressionally mandated U.S.
Government Accountability Office (GAO) report.\5\
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\5\ The GAO report was released on May 7, 2010. See GAO,
Commonwealth of the Northern Mariana Islands, DHS Should Finalize
Regulations to Implement Federal Immigration Law, No. GAO-10-553
(May 7, 2010), available at http://www.go.gov/new.items/d10553.pdf.
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DHS appreciates the support of its efforts and the concerns
expressed about minimizing the effect of the transition on the CNMI
economy. Consistent with the statement of congressional intent in the
CNRA, this final rule attempts to avoid adverse effects to the CNMI
economy by providing as much flexibility as possible in administering
the CW classification. See 48 U.S.C. 1806 note. DHS continues to work
with other Federal agencies to coordinate implementation of the CNRA.
Such coordination will extend to the statutorily mandated reports to
Congress, including the GAO Report (GAO-10-553) released on May 7,
2010, and the recommendations contained therein. Accordingly, DHS has
not adopted the suggestions that the final rule be immediately
implemented or delayed, and this rule implements the CW classification.
3. Lawful Permanent Residence
Forty-one out of 61 commenters suggested that, to support a stable
work force, foreign workers in the CNMI should be given lawful
permanent residence, some other improved immigration status, or a
pathway to U.S. citizenship. Many of the commenters suggested such
status for guest workers who have worked in the CNMI for years. Others
suggested lawful permanent residence, some other improved immigration
status, or a pathway to U.S. citizenship for all foreign workers,
regardless of their time in the CNMI. Some suggested such status for
long-term guest workers with U.S.-born children or families within the
CNMI.
Three of the commenters suggested that DHS create and grant a
unique permanent status (Lawful Permanent Resident (LPR)-CNMI Only) to
foreign workers who have been living in the CNMI for 3 years on the
enactment date of the CNRA (May 8, 2008), and who are otherwise
admissible. One commenter suggested a scoring system to decide how to
grant permanent residence. One suggested a permanent CNMI-only H-2
program.
While these suggestions fall outside the scope of this regulation,
it is important to note that the CNRA authorizes the Secretary of
Homeland Security to create only a nonimmigrant classification in the
Commonwealth during the transition period. See 48 U.S.C. 1806(d). In
compliance with the CNRA, DHS is establishing a nonpermanent
classification, available only during the transition period (unless
extended by the Secretary of Labor), to provide a guest worker with
lawful nonimmigrant status. See new 8 CFR 214.2(w)(1)(xi). The CNRA
does not provide DHS with authority to create a permanent immigration
path specifically for the CNMI, nor does any other law. Under the CNRA,
a transitional worker may adjust to lawful permanent resident status
throughout the transition period, if eligible through another
immigrant-based petition or application under the provisions of the
INA. See 48 U.S.C. 1806(d)(1). For these reasons, DHS is unable to
accept the suggestions of these commenters.
4. Immigration Law
One commenter expressed concern regarding the complexity of the
immigration laws and the effect of such complex laws on small
businesses. DHS understands the concerns of the commenter and agrees
that immigration law is complex. Nonetheless, DHS has no power to
change the immigration laws and is unable to make any changes in the
rule to address this commenter's concerns. DHS understands that the
transition of the CNMI to the U.S. immigration system offers both
benefits and challenges to the CNMI population. This rule promulgates
provisions governing CW status consistent with other INA nonimmigrant
categories. The rule attempts to incorporate standard elements from
other nonimmigrant categories to maintain regulatory consistency.
Employers wishing to
[[Page 55506]]
employ foreign workers must abide by all rules set forth in the Code of
Federal Regulations. USCIS has conducted extensive outreach to explain
the complexities of U.S. immigration law to the community, private
sector employers, and CNMI governmental officials, including numerous
meetings and information sessions in Saipan, Tinian and Rota with
stakeholder groups and the general public, as well as posting
informational materials on the USCIS Web site on a variety of CNMI-
related topics. Among other things, in October 2009, USCIS conducted
outreach on DHS regulations initially implementing the CNRA. In
December 2009, USCIS again conducted outreach to employers and the
public, focusing on employment eligibility verification (Form I-9)
requirements. In January 2011, DHS conducted outreach on Saipan for the
December 20, 2010 final rule, E-2 Nonimmigrant Status for Aliens in the
Commonwealth of the Northern Mariana Islands With Long-Term Investor
Status, with community based organizations, CNMI government
representatives and local business leaders. USCIS plans to conduct
similar outreach efforts for this final rule. In addition to CNMI-
specific materials, USCIS also provides helpful explanations of U.S.
immigration law on its Web site and provides a dedicated employer
information telephone line. Thus DHS believes that it has taken
reasonable and substantial action to mitigate any adverse impacts that
implementation of the CNRA and the CW classification may entail with
respect to availability of information.
5. Labor Law
Five out of 61 commenters expressed concerns regarding the rule's
effect on labor laws and the CNMI permitting system. One of these
commenters stated that the rule violates the contract workers' rights.
Four of the commenters stated that the rule sets up a labor permitting
system that fails to address the many issues that have plagued the CNMI
nonimmigrant guest workers by eliminating all of the existing labor
protections under the previous CNMI immigration system. They added that
the rule subjects foreign workers to abuses that currently affect the
H-2 visa program and assert that such past abuses were eliminated from
the CNMI program. Two of these commenters believe that, given such
progress under CNMI law, DHS should support and not seek to eliminate
the Commonwealth's guest worker program. The commenters argued that the
interim rule failed to provide a reasonable mechanism to facilitate any
cooperation between the two systems or any practical means for
Commonwealth enforcement of its labor laws in connection with the
Federal system.
The CNRA requires the discontinuation of the CNMI's previous
immigration system. As required by the CNRA, this final rule creates a
new transitional worker classification and recognizes CNMI-issued work
permits during the first two years of the transition period. See new 8
CFR 214.2(w)(1)(v). Foreign workers granted work authorization from the
CNMI government will continue to be work authorized under U.S.
immigration law for the duration of the permit's validity or up to two
years after the transition program effective date, whichever is
shorter. See 48 U.S.C. 1806(e)(2). This employment authorization under
Federal immigration law affects only the basic privilege to work in the
CNMI. Employers in the CNMI remain responsible for complying with other
applicable requirements of law, such as wage and hour and occupational
safety requirements. DHS assumes that the Commonwealth will continue to
enforce its local labor laws to the extent that they are not preempted
by Federal immigration law. Nevertheless, DHS cannot accept the
commenters' suggestion to replicate or rely on the authorities and
processes of the CNMI with respect to work authorization of aliens for
establishing and administering the CW classification. Though these
commenters indicate that the pre-November 28, 2009 system was a
preferable immigration and labor policy to federalization, Congress
eliminated that system and required that DHS implement federal
immigration law in the CNMI. See section 701(a) of the CNRA, 48 U.S.C.
1806 note. Perpetuating CNMI authorities, even if it were lawful to do
so under the CNRA, would be contrary to the letter and spirit of the
CNRA that Federal transition programs and authority be established as
promptly as possible in the CNMI. Id.
This final rule incorporates CNMI labor law protections in its
description of an eligible employer. See new 8 CFR 214.2(w)(4). The
rule provides that, in order to be eligible to petition for a
transitional worker, an employer must offer terms and conditions of
employment consistent with the nature of the occupation or industry in
the CNMI. Id. It also provides that employers must comply with all U.S.
Federal and Commonwealth requirements relating to employment, including
but not limited to nondiscrimination, occupational safety, and minimum
wage. Id. The reference to Commonwealth requirements is intended only
to include those aspects of Commonwealth law that are not immigration
law. CNMI law relating to employment authorization of aliens is
immigration law that has been superseded by the CNRA.
DHS understands the concern of commenters about the possible
revival of past worker abuses that occurred in the CNMI. Like workers
in other parts of the United States, all employees who work in the CNMI
are protected by a variety of Federal civil rights, labor, and
workplace safety laws that are enforced by the U.S. Department of
Justice (U.S. DOJ) and the U.S. Department of Labor (U.S. DOL).
6. Adverse Effects
Two commenters suggested revising the rule to minimize the serious
adverse effect and increased burdens. The commenters did not address
any specific actions to take or what effects needed mitigation. DHS
therefore has not changed the rule in response to this comment. The
interim final rule was drafted consistent with expressed Congressional
intent to minimize the potential adverse economic and fiscal effects of
the federalization of the CNMI's immigration program. DHS is aware that
the CNMI is experiencing a severe economic downturn during the current
decline in the world economy. DHS formulated this rule to be as
inclusive as it reasonably could within the parameters of the statute.
Moreover, DHS has made additional changes in the final rule to that
end. This final rule provides for an initial grant of CW-1 transitional
worker status or CW-2 dependent status in the CNMI without having to
travel abroad to obtain a nonimmigrant visa, for need-based waivers of
the filing fee for dependent family members seeking CW-2 status in the
CNMI, and, as discussed in more detail below, for a limited travel
exception, where appropriate, to the otherwise applicable bar on travel
elsewhere in the United States by aliens in CW status, for Philippine
nationals who hold CW status and travel between the CNMI and the
Philippines directly through Guam. Thus, DHS believes that it has
minimized adverse effects and burdens caused by this rule.
7. DOI Report
Five commenters offered suggestions regarding the Department of the
Interior's (DOI) Report on the Alien Worker Population in the
Commonwealth of the Northern Mariana Islands (the ``DOI Report'').\6\
They
[[Page 55507]]
suggested that the Report to Congress should contain a joint
recommendation (from DOI, DHS and the CNMI Governor) to allow guest
workers to apply for enhanced status. One of these commenters stated
such recommendations to improve immigration status for long-term alien
workers can be addressed during the transition period but no later than
the April 2010 report. The commenter was concerned that neither Federal
agencies nor the CNMI governor reached a decision.
---------------------------------------------------------------------------
\6\ See Secretary of the Interior, Report on the Alien Worker
Population in the CNMI (April 2010), available at http:/www.doi.gov/oia/reports/042810_FINAL_CNMI_Report_pdf.
---------------------------------------------------------------------------
The DOI Report was released in April 2010. DHS continues to work
together with other Federal agencies to coordinate the implementation
of the CNRA provisions in the Commonwealth. Such coordination extended
to the statutorily mandated reports to Congress and any recommendations
contained therein.
C. Specific Comments
The specific comments are organized by subject area and addressed
below.
1. CNMI-Only Transitional Workers: CW Eligibility Requirements
Twenty-six commenters expressed concern or offered suggestions
regarding the rule's eligibility requirements.
(a) Foreign Workers in the CNMI
Five out of 26 commenters suggested that transitional worker status
should be limited to guest workers present in the CNMI and should not
be available to those abroad. Two of these commenters suggested that
the rule intends to admit new foreign workers to the Commonwealth
without regard to economic impact or regulatory effect on the
Commonwealth. The commenters suggested that the likely effect will be
to encourage the entry of very low-wage, unskilled workers, who would
displace experienced on-island foreign workers, resulting in
unemployment and incentives to fall into illegal status.
Eighteen of 26 commenters suggested that the transitional worker
program provide a hiring preference for foreign workers currently in
the CNMI. Three of these commenters suggested that DHS place a
numerical limitation on transitional workers coming from abroad in
order to provide foreign workers in the CNMI with the hiring
preference. Six of these commenters suggested that DHS conduct a
registration, as mentioned in the CNRA, of alien workers present in the
CNMI to ensure that any jobs that need to be performed by the alien
workforce would first be offered to on-island workers. Another
commenter suggested that DHS conduct a registration to determine the
number of guest workers in the CNMI and their corresponding job
categories. The commenter wrote that the data on the available
workforce may deter employers from hiring abroad. One commenter
suggested a hiring preference for Filipino foreign workers in the CNMI.
Another suggested that the transitional worker program provide a hiring
preference for guest workers present in the CNMI for over 5 years.
The transitional worker program will be available to two groups of
aliens in general: (1) Those who are present in the CNMI and (2) those
who are abroad. See new 8 CFR 214.2(w)(2). In the CNRA, Congress
expressed its intent that the transitional worker program provide for
an orderly transition from the CNMI permit system to the U.S. Federal
system while minimizing potential adverse economic and fiscal effects.
See 48 U.S.C. 1806 note. Consistent with that intent, this rule does
not limit access to workers already present in the CNMI. It provides
CNMI employers with the ability and flexibility to maintain their
existing foreign workers for current business needs. It also preserves
employer access to new workers in order to accommodate new economic
opportunities. See new 8 CFR 214.2(w)(2).
While information on guest workers and their current job categories
may be helpful, DHS does not plan to limit the availability of
transitional workers to guest workers currently on the islands. The
CNRA requires that the allocation of transitional worker visas be
reduced to zero by the end of the transition period, but it does not
limit eligibility for the visa to foreign workers in the CNMI. See 48
U.S.C. 1806(d)(2). DHS believes that limiting CW-1 issuance to foreign
workers already present in the CNMI or to Filipino foreign workers in
the CNMI, would run counter to the CNRA's requirement to mitigate harm
to the Commonwealth's economy. This rule provides access to foreign
workers abroad to preserve the CNMI's ability to meet future demands
for labor. DHS, in consultation with other Federal agencies, will
consider registration as it continues to evaluate the CNMI's economic
needs. Accordingly, no changes were made to the final rule as a result
of these comments.
(b) Ineligibility for Another INA Classification
Three commenters expressed concern regarding the rule's requirement
that the transitional worker classification be limited to nonimmigrant
workers who would not otherwise be eligible for another INA
classification. Two of these commenters argued that such a requirement
is a misinterpretation of the law and will deprive the Commonwealth of
skilled workers. The commenters stated that the CNRA's intent is to
preserve a choice: Workers may choose either transitional worker status
or another nonimmigrant status. All three commenters were concerned
that certain aliens eligible for an INA-based status may only be
eligible for transitional worker status because employers would be
unable to petition for other INA classifications due to financial
difficulties. The commenters stated that they would be unable to meet
the income requirements for other INA classifications.
DHS disagrees with these comments. The CNRA requires that the
transitional worker classification be used only for foreign workers
``who would not otherwise be eligible for admission under the [INA].''
48 U.S.C. 1806(d)(2). This final rule states that guest workers
eligible for other INA classifications at the time of a petition for CW
status must apply for such status. See new 8 CFR 214.2(w)(2)(vi). This
requirement stems directly from the CNRA requirement. See 48 U.S.C.
1806(d)(2). CNMI employers may use the CW classification during the
five-year transition period while workers and employers seek to satisfy
requirements, such as any necessary professional licenses or
educational degrees, for other employment-based status under the INA.
DHS is implementing this provision in as flexible a manner as possible.
For example, this rule requires only an attestation that the employer
does not reasonably believe the position to qualify for another INA
nonimmigrant worker classification, as opposed to requiring the
employer to petition for other INA classifications before seeking CW
status. See new 8 CFR 214.2(w)(6)(ii)(G).
2. Employers
Fourteen commenters offered suggestions, or opposed the rule's
requirements, for employers and the proposed exclusion of certain
occupational categories.
(a) Terms, Conditions of Employment, and Transfers
Two commenters stated that the rule's provision with respect to
terms and conditions of employment and transfers will likely lead to
abuses. The commenters stated that the DHS rule requires only that an
employer ``[o]ffer terms and conditions of employment
[[Page 55508]]
which are consistent with the nature of the petitioner's business and
the nature of the occupation, activity, and industry in the CNMI.'' See
8 CFR 214.2(w)(4)(iii). They added that employers are not required to
attest that they have met this condition. Another commenter suggested
that all of the Commonwealth's requirements protecting workers could be
undone by contracts that comply fully with the DHS requirement. The
commenter then suggested that the DHS rule cannot ``prevent adverse
effects on wages and working conditions'' as required by 48 U.S.C.
1806(d)(2). The commenter added that the DHS interim rule provides no
protection for a nonimmigrant resident alien who is the subject of a
petition that is denied, perhaps due to the negligence of an employer.
The commenter further stated that the rule would be more restrictive
than the Commonwealth system for transfers.
DHS agrees with the comments that the rule would be strengthened by
further incorporating the terms and conditions of an employment
requirement into the attestation requirement for employers. DHS has
added a requirement that the employer attest that it will comply with
the requirements for an eligible employer, which include offering
appropriate terms and conditions for the intended CW-1 employment. See
new 8 CFR 214.2(w)(6)(ii)(D). With respect to the comments expressing a
preference for the Commonwealth's requirements protecting workers, a
previous discussion in this preamble addressed this subject and
explained why DHS cannot adopt these comments. Many of these comments
deal with employment, labor, and safety laws that exceed the scope of
this rule. By making the procedures for employers as clear and
transparent as reasonably possible in order to implement the
transitional worker provisions of the CNRA, including promulgation of a
specific form for this petition (the I-129CW Form), the final rule
provides protections to workers from employer negligence or error.
However, it must be understood that these CNRA provisions are employer-
based, and have been implemented accordingly. The employer, not the
employee, files the petition, and it is the employer's discretionary
choice whether or not to do so. This rule provides no steps for
employees to take in order to keep their status in the CNMI. See new 8
CFR 214.2(w)(5). Thus no additional changes are made in response to
these comments.
(b) Blanket Exclusion of Certain Occupational Categories
The interim final rule did not exclude any occupational categories
from eligibility for CW workers, but DHS indicated that it was
considering excluding dancing, domestic workers, and hospitality
workers based upon human trafficking concerns, and specifically invited
comment on this subject. Six out of 14 commenters opposed a potential
final rule excluding certain occupational categories in order to combat
human trafficking and sexual exploitation. These commenters stated that
prohibiting a particular occupation will not effectively combat human
trafficking. Some argued that the rule hurts the CNMI's successful
efforts to stop trafficking under its 2007 reform law. Others stated
that the exclusion of the proposed categories will not help deter the
worker exploitation problem because exploitation occurs in a wide range
of occupational categories and a foreign worker can technically enter
any of those occupational categories. The commenters added that a
blanket exclusion of any occupational category or legitimate business
that supports the CNMI economy runs counter to the CNRA's stated
purpose of providing flexibility to maintain existing businesses and
expanding tourism and economic development in the CNMI. They also
argued that the CNRA does not provide statutory authority for the
blanket exclusion and that a blanket exclusion is inappropriate and
will cause further economic harm.
Two other commenters added that the exclusion of occupations that
serve the tourist industry is not justified and will cause substantial
harm. They stated that the proposed exclusion is based on a concern
regarding abuse against women and, as such, is discriminatory because
it is not gender neutral. The commenters noted that such restrictions
are unnecessary because prostitution is a crime under CNMI law.
Commenters suggested that DHS offer protection from exploitation
through a system of employment regulation combined with enforcement of
the laws intended to protect guest workers regardless of occupational
category. The commenters suggested that DHS conduct site visits and
that any exclusion or employer debarment be based on a specific finding
indicating that a particular business is violating a law, not based on
evidence of past abuses. The commenters argued that the rule's
requirement that employers must be engaged in legitimate business is
not the appropriate regulatory means to address the DHS concern.
DHS agrees that exploitation can occur in any occupational
category. The proposed exclusions were supported by the findings of a
GAO report and Congressional hearings, which indicated that the
excluded occupational categories have been prone to widespread abuse.
U.S. Gov't Accountability Office, GAO-08-791, Commonwealth of the
Northern Mariana Islands, Managing Potential Impact of Applying U.S.
Immigration Law requires Coordinated Federal Decisions and Additional
Data (2008); see, e.g., Conditions in the Commonwealth of the Northern
Mariana Islands: Hearing before the S. Comm. on Energy and Natural
Resources, 110th Cong. 50 (2007) (testimony of Lauri Bennett Ogumoro
and Sister Mary Stella Mangona) (2007 Senate Hearing). In addition, DHS
notes that the proposed exclusion of certain tourist industry workers
was gender neutral and would be applied in a gender neutral manner.
Nevertheless, DHS agrees that a blanket exclusion of certain
occupations may negatively impact the CNMI's economy. This final rule
does not include a blanket exclusion of any specific occupational
category, but consistent with the CNRA's requirement for business
employers, retains the requirement that all employers must be engaged
in a legitimate business. See 48 U.S.C. 1806(d)(5)(A); new 8 CFR
214.2(w)(4).
(c) Exclusion of Domestic Workers
Five commenters suggested that the rule should allow domestic
workers as transitional workers. One of these commenters disagreed with
the requirement that only businesses will be allowed to petition for
domestic workers as CW workers. That commenter also argued that
individual households should be allowed to employ domestic workers
directly and the renewal of the contracts should be based on the proper
tax filings of the workers.
Two additional commenters argued that the definition of a
``legitimate business'' cannot be used to bar households from employing
caregivers. The commenters argued that the determination as to
``legitimate business'' only relates to the task of determining whether
an adequate number of workers are available. As such, they stated that
domestic workers are currently entitled to work until the transition
period ends. The commenters further stated that DHS may not
``disqualify an entire business on the basis of `illegal' activity,
except on the basis of conviction of a crime, and may not impute the
crime of an officer to the entire business without due process.''
[[Page 55509]]
They additionally asserted that since DHS seeks to disqualify a
business if it engages ``directly or indirectly in any activity that is
illegal under Federal or CNMI law,'' the regulations should be clear
that only a conviction of a crime can be the basis for this
disqualification.
The CNRA transitional worker provisions were intended to address
the needs of legitimate businesses. See 48 U.S.C. 1806(d)(5)(A). DHS
believes that the rule's provision regarding legitimate businesses
accords with the CNRA and is lawful and appropriate. While the rule
does not prohibit domestic workers from obtaining CW status, for their
protection and for the legitimacy of the petition process, the rule
reasonably requires that domestic workers be channeled through an
established, legitimate business operation. See new 8 CFR 214.2(w)(4).
The commenters who wrote that domestic workers are currently entitled
to work until the transition period ends are incorrect. Workers
authorized by the CNMI before November 28, 2009 are authorized to work
for up to two years or the date of expiration of their CNMI-issued
permit, whichever occurs first--not for the entire transition period.
With regard to the comment suggesting the level of criminal activity or
proof that should render a petitioning employer ineligible, the CNRA
does not require a conviction for the direct or indirect illegal
activity provision to be applied. Therefore, DHS has retained that
provision unchanged in the final rule.
For the purposes of the transitional worker program, the final rule
states that a legitimate business is a real, active, and operating
commercial or entrepreneurial undertaking which produces services or
goods for profit or is a governmental, charitable or other validly
recognized nonprofit entity and meets applicable legal requirements for
doing business in the CNMI. See new 8 CFR 214.2(w)(1)(vi). The rule is
also consistent with the definition of ``doing business'' in other
classifications under the INA. See 8 CFR 204.5(j)(2). As such, the
final rule states that a petitioner is ``doing business'' if engaged in
the regular, systematic, and continuous provision of goods or services.
See new 8 CFR 214.2(w)(1)(ii). An individual employing a household
worker is not engaged in the systematic provision of goods or services
and is not ``doing business'' for the purpose of the transitional
worker program. No change was made as a result of this comment.
Additionally, a stated purpose of the CNRA is to combat human
trafficking and other widespread abuse. See 48 U.S.C. 1806 note.
Congressional hearings held prior to passage of the CNRA focused on the
issue of domestic workers in the CNMI. See, e.g., 2007 Senate Hearing.
Congress was provided with evidence that directly employed domestic
workers have been subject to widespread abuse and have been victims of
human trafficking. Id. Allowing only domestic service companies to file
for CW workers is consistent with the decision to not exclude any
specific occupational categories and to consider petitions by
legitimate businesses on a case by case basis. Therefore, domestic
workers will be afforded the same sorts of employment protections as
other CW workers in the CNMI, whose employer petitioners must be
legitimate businesses under the terms of this final rule. Accordingly,
DHS will not change the final rule and will limit filings for CW
domestic workers to domestic service companies.
It is important to note that a household worker may still be
eligible for transitional worker status if a business petitions for the
worker. The occupational category itself is potentially eligible for
the transitional worker status. DHS is only limiting such filings for
CW workers to domestic service companies operating as legitimate
businesses. Therefore, it is possible that domestic workers qualify for
transitional worker status through employment by a business which
places domestic workers in individual households.
One commenter suggested that domestic workers should be offered
permanent immigration status. As previously discussed, the CNRA only
authorizes DHS to create a nonimmigrant classification to ensure
adequate employment in the Commonwealth during the transition period.
See 48 U.S.C. 1806(d). There is no authority under the CNRA for DHS to
establish an immigrant classification. Thus no change is made in the
final rule. The CW classification is a temporary classification,
available only during the transition period, to provide a guest worker
with lawful nonimmigrant status.
3. CNMI-Only Transitional Worker Allocation System
Thirty commenters offered suggestions for, or opposed, the
transitional worker allocation system.
(a) Allocation of Transitional Worker Classifications
Three commenters stated that DHS did not implement a transitional
work permit system as required by the CNRA. They stated that DHS was
required to establish and enforce a transitional work permit system in
the CNMI that provided the criteria for allocating transitional workers
to employers or industries during the transition period. See 48 U.S.C.
1806(d)(2). Specifically, two of these commenters argued that there
were no allocation criteria. One commenter stated that the rule did not
describe a system or criteria for allocating how the permits are to be
divided among employers. This commenter argued that DHS will be
required to allocate permits among CNMI employers whose collective
demand for foreign workers is greater than the available number of
permits during the following year. The commenter added that reliance on
the H visa system is not a substitution for establishing the system
required by the CNRA. The second commenter further argued that an
annual determination is not an adequate substitute for such a process.
A third commenter noted that any system will have to offer careful
consideration to the economies of all three islands to avoid the harm
that may result from the allocation of all slots to one island such as
Saipan.
The CNRA requires the Secretary of Homeland Security to establish a
permit system for prospective employers based on any reasonable method.
See 48 U.S.C. 1806(d)(2). DHS interprets this mandate to allow it to
establish a classification within its existing system, which it has
done. The Federal immigration system requires employers to submit
petitions for their employees. This final rule incorporates standard
elements of the Federal immigration system, including the DHS
petitioning and classification process, and thus it is consistent with
current law, reasonable, and consistent with the intent of the CNRA.
Additionally, the CNRA requires an annual reduction in the number
of permits and total elimination of the CW classification by the end of
the transition period. Id. The CNRA does not dictate how this will
occur. As indicated in the interim rule, DHS will publish a Federal
Register notice announcing the annual numerical limitation. DHS
believes that the number of workers provided in the first years in this
rule, coupled with the Federal Register notice, will be sufficient
notice and guidance to implement the required CW classification
drawdown.
(b) Numerical Limitation by Federal Register Notice
One commenter stated that the CNRA does not authorize the issuance
of regulations in piecemeal form over time that address various aspects
of the work
[[Page 55510]]
permitting system but rather requires one single document. The
commenter also opposed the issuance of a Federal Register notice
related to the numerical limitation. Another commenter suggested that
DHS apply a periodic reduction in foreign workers without providing
notice or comment.
As noted above, the CNRA provides that DHS may base the system on
any reasonable method. Id. DHS determined that it is reasonable to base
the transitional worker classification on the current nonimmigrant
system. As such, this rule promulgates provisions governing the
transitional worker classification and incorporates standard elements
from current nonimmigrant categories to maintain regulatory
consistency.
The CNRA also mandated that DHS provide the Commonwealth with
flexibility to maintain existing businesses and develop new economic
opportunities yet required an annual reduction in the number of permits
and total elimination of the CW classification by the end of the
transition period. See section 701(b) of the CNRA, 48 U.S.C. 1806 note;
48 U.S.C. 1806(d)(2). Consistent with this mandate, DHS has determined
that it is appropriate to publish the CW annual numerical limitation
rather than provide a permit reduction plan in this final rule due to
the uncertainty of the CNMI's future workforce needs and economic
conditions. The Secretary of Homeland Security has determined, in her
discretion, that the annual numerical limitation will be published in a
future Federal Register notice. See new 8 CFR 214.2(w)(1)(viii)(D). DHS
believes that this method will maximize the Commonwealth's potential
for future economic and business growth by providing a flexible
mechanism for the continued use of alien workers during the phasing-in
of Federal immigration law. DHS also believes that a Federal Register
notice will provide sufficient public notice of the annual numerical
limitation in accordance with the regulations established by this rule.
However, as further discussed below, DHS has provided in this final
rule the numerical limitation not just until September 30, 2010, as was
provided in the interim final rule, but through the end of fiscal year
2012 on September 30, 2012. Given uncertainty about demand for the
program, it would not be prudent to try to set numbers for time periods
on or after October 1, 2012 at this time. The 22,417 and 22,416 workers
provided for the first two years of the CW program in this rule,
coupled with the Federal Register notice, will be sufficient
information to implement the required CW classification drawdown. DHS
will need to make the announcement in a timely fashion from the time of
the decision to the issuance of the notice providing the new CW
classification numerical limit. As such, DHS believes that a Federal
Register notice is the most appropriate method to use to issue the
necessary information.
(c) Total Number of Foreign Workers in the Work Force
One commenter suggested that DHS adopt the CNMI's proposed revision
of the interim rule with regard to assessing the total alien work force
and total work force. The same commenter took issue with the figures
DHS used to project the number of CW grants of status. The commenter
stated that the DHS estimate of 13,543 foreign workers in-status and
1,000 workers out-of-status who may be brought into lawful status under
CNMI law was incorrect. The commenter stated that DHS incorrectly
estimated the number of immediate relatives of foreign workers who may
be eligible for CW-2 status. The commenter further stated that DHS's
2010 projections were also incorrect because most workers will be
working under CNMI-issued permits and most employers will be employing
workers under existing CNMI-approved contracts. As such, these workers
would not need to enter the Federal immigration system for at least two
years.
DHS disagrees with the commenter and believes that its estimate of
the number of foreign workers is reasonable. The final rule sets forth
the maximum number of persons who may be granted transitional worker
status based on the CNMI government estimate of the nonresident workers
as of May 8, 2008, the date of enactment of the CNRA. The 22,417 number
was the total number of foreign workers working in the Commonwealth,
according to the CNMI government, on that date.\7\ In addition to the
CNMI estimate,\8\ DHS used data compiled by GAO and other credible
resources in the development of this rule. See, e.g., GAO-08-791,
August 2008. DHS agrees with the commenter that the CNRA does not
require that an employer petition for an INA benefit. Instead,
employers have the option to retain the CNMI benefits during the
grandfathered period or petition for INA benefits. As such, the number
of CW petitions filed is directly connected to individual business
decisions made by each CNMI employer's business needs. Therefore, the
estimate is affected by a variety of factors that are not within DHS
control. Thus, DHS has not adopted this commenter's suggestions in the
final rule.
---------------------------------------------------------------------------
\7\ See Letter from Benigno Fitial, Governor of CNMI, to Richard
C. Barth, Assistant Sec'y for Policy Dev., and Stewart A. Baker,
Assistant Sec'y for Policy, Office of Policy, DHS (July 18, 2008)
(Fitial letter), available at http://www.regulations.gov under DHS
Docket No. USCIS-2008-0038.
\8\ See Fitial letter.
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The interim final rule set a numerical limitation for the first
year of the transition period (November 28, 2009 through September 30,
2010) at 22,417, with the limitation for fiscal year 2011 (beginning
October 1, 2010) and subsequent fiscal years to be published via
subsequent Notice in the Federal Register. Given the mootness at this
time of transitional worker numbers for the period before October 1,
2010, the need for employers to have current usable information about
the number of CW workers available for fiscal year 2011 and the
expected expiration of a large number of ``umbrella permits'' in late
2011, this final rule updates the limitation to set the maximum number
of CW-1 visas for fiscal year 2011 at 22,417. See new 8 CFR
214.2(w)(1)(viii)(A). In order to provide additional information and
certainty to CNMI employers, the final rule also establishes the
limitation for fiscal year 2012 (beginning October 1, 2011). New 8 CFR
214.2(w)(1)(viii)(B). As required by the CNRA, the number is reduced
for fiscal year 2012, compared to fiscal year 2011; however, the
reduction is only by one visa, in order to effectively maintain a
steady level of available visas for the first two years of the CW
program and accommodate potential demand caused by the expiration en
masse of umbrella permits early in fiscal year 2012. Thus, 22,417 is
the maximum number of CW-1 visas for fiscal year 2011, and 22,416 will
be the maximum CW-1 visas available in fiscal year 2012. See new 8 CFR
214.2(w)(1)(viii). DHS does not expect the full number of available
visas to be used, especially the fiscal year 2011 allocation, given the
effective date of the final rule within that fiscal year and the
continuing validity of umbrella permits. Nevertheless, setting the
maximum this high will easily meet the projected CW visas needed by
employers to transition umbrella permit holders to CW-1 status,
regardless of the actual number of workers currently present on the
island. Consistent with other classifications, if the numerical
limitation is not reached for a specified fiscal year, the unused
numbers do not carry over to the next fiscal year. This clarification
in the final rule is necessary because (unlike the interim final rule)
the final rule establishes the numerical limitation for more than one
[[Page 55511]]
fiscal year. While the umbrella permits do not expire until November
27, 2011, employers should apply well in advance of that date to ensure
that their petitions are adjudicated and CW status granted before
November 27, 2011. Although an employer cannot petition more than six
months before the employment is to begin, an employer who needs the
services of a worker with an umbrella permit need not wait until six
months before the expiration to apply for CW status to replace the
umbrella permit. The six-month time frame is based upon when the
employer needs the worker, not when the worker's current immigration
status expires. See new 8 CFR 214.2(w)(12)(ii).
(d) Reduction of Transitional Workers
Four commenters stated that DHS did not implement the statutory
requirement that DHS establish and enforce a transitional work permit
system in the CNMI that provides for a reduction in the number of
transitional workers to zero by December 31, 2014. They stated that the
rule only established a numerical cap. Without a reduction plan,
employers cannot operate their businesses and plan for future access to
foreign labor. Similarly, two commenters requested clarification on
DHS' intent to draw down foreign workers to zero by the end of the
transition period. One of these commenters also argued that the rule
did not identify any criteria or methodology that will be used to
reduce the number of permits on an annual basis. Specifically, the
commenter disagreed with the DHS assertion that a permit reduction plan
was not established due to a lack of specific data on the foreign
worker population and due to the uncertainty of the CNMI's future
economic conditions. The commenter stated that the DHS claim that
specific data was unavailable was later impeached when DHS offered very
specific figures regarding the number of foreign workers in the CNMI
and suggested that DHS should have chosen an alternative set forth in
the 2008 GAO report. Those alternatives set forth a range of possible
outcomes in terms of impact on the Commonwealth's economy.
As discussed above, the final rule sets forth the maximum number of
workers who may be granted transitional worker status during fiscal
years 2011 and 2012. See new 8 CFR 214.2(w)(1)(viii). DHS based this
number on the CNMI government estimate of the nonresident workers as of
May 8, 2008, the enactment date of the CNRA.\9\ DHS believes that it is
prudent to consider this estimate as a baseline for the maximum number
of possible transitional workers in the CNMI.
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\9\ See Fitial letter.
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DHS did not establish a methodology for reducing the number of
transitional workers, ultimately to zero by the end of the transition
period. DHS believes that any methodology will require flexibility to
adjust to the future needs of the CNMI economy. A methodology or
formula set forth in a regulation does not provide such flexibility.
Additionally, the CNRA only requires that DHS reduce the number of
transitional workers on an annual basis. See 48 U.S.C. 1806(d)(2). It
does not mandate an actual specific reduction. The final rule retains
the interim rule's provision that the number of transitional workers
will be reduced by at least one transitional worker per year. See new 8
CFR 214.2(w)(1)(viii)(C). As described above, this rule provides that
the number of transitional workers will be reduced by one CW worker in
fiscal year 2012 compared to the previous year, setting the maximum
number of CW-1 visas at 22,416. This approach will ensure that there is
a fully adequate supply of CW visas that encourages transition from the
umbrella permit system to CW status for needed workers during fiscal
years 2011 and 2012. See new 8 CFR 214.2(w)(1)(viii). For the years
following fiscal year 2012, DHS will assess the CNMI's workforce needs
on a yearly basis. See new 8 CFR 214.2(w)(1)(viii)(C).
(e) Reduction Plan Suggestions: Limiting Access to Foreign Workers
Two commenters suggested that transitional worker status should be
limited to foreign workers present in the CNMI only, as opposed to any
workers abroad sought to be imported under the transitional worker
program. One of these commenters argued that the shortage of jobs in
the Commonwealth makes it unnecessary for employers to go abroad for
additional employees. One commenter suggested that such a limitation
will help curb the incidents of human trafficking and help in the
mandated reduction of transitional workers. Another commenter argued
that allowing workers to come to the CNMI conflicts with the statutory
goal of phasing-out all contract workers. The commenter added that the
goal to ultimately phase-out contract workers would be furthered by
preventing hiring from abroad and providing transitional worker status
only to the current foreign work force in the CNMI.
While the CNRA requires that the allocation of transitional worker
classifications be reduced to zero by the end of the transition period,
it does not limit eligibility for the visa to foreign workers in the
CNMI on or before the transition program effective date. See 48 U.S.C.
1806(d)(2). Instead, the CNRA establishes a transitional worker program
for ``aliens seeking to enter the Commonwealth as a nonimmigrant
worker.'' See 48 U.S.C. 1806(d). DHS believes that aliens seeking to
enter the Commonwealth must include individuals that are not currently
in the CNMI. Accordingly, DHS did not limit eligibility for CW-1 status
to foreign workers already present in the CNMI because that would have
placed strict limits on CNMI employers seeking to hire foreign workers.
Similarly, DHS did not adopt either in the interim or final rule an
opposite construction--that section 1806(d) means that only workers
seeking to enter the CNMI from abroad, rather than any workers already
present and working, may obtain transitional worker status--which is
arguably a more supportable construction than the commenters'
suggestions that the transitional program should include no workers
coming from abroad. Such limits would run counter to congressional
intent that DHS seek to minimize, to the greatest extent practicable,
the potential adverse economic and fiscal effects of phasing-out the
Commonwealth's system and to maximize the Commonwealth's potential for
future economic and business growth by providing a mechanism for the
continued use of alien workers. Therefore, the suggestions of the
commenters on this subject were not adopted. This rule provides access
to foreign workers abroad, as well as to those already present, to
preserve the CNMI's ability to meet the demands of its economy. See new
8 CFR 214.2(w)(2).
(f) Reduction Plan Suggestions: Granting Lawful Permanent Residence
Eleven commenters suggested that DHS grant lawful permanent
resident status, or some other immigration status, to guest workers.
The commenters indicated that such a measure would stabilize the work
force and help reduce the number of transitional workers to zero by the
end of the transition period as required by the CNRA. One of these
commenters suggested that DHS allow self-petitioning and make the CNMI-
only classification a permanent status.
As previously mentioned, the CNRA does not authorize DHS to create
a permanent CNMI classification. See 48 U.S.C. 1806(d). Lawful
permanent resident status is available to a CW worker, though; thus, a
CW worker may adjust to lawful permanent resident
[[Page 55512]]
status throughout the transition period, if eligible through an
immigrant petition or application under the INA. Id. Since the
commenters' suggestion cannot be adopted, no changes were made to the
final rule as a result of these comments.
(g) Reduction Plan Suggestions: Assessing Labor Needs
Two commenters expressed concern about the need to assess the CNMI
labor needs and use those needs to craft any reduction plan. One of
these commenters suggested that DHS accurately assess the CNMI's total
labor needs in order to avert a collapse of its economy. The commenter
asserted that guest workers are most essential to the economy because
other residents of the CNMI are reluctant to take the jobs that foreign
workers will accept. The commenters also suggested that phasing out the
transitional workers by 2014 may result in a chaotic situation for the
CNMI's economy.
DHS understands that the CNMI economy has been based on a workforce
made up mainly of workers from other countries. To address this
concern, Congress included a provision in the CNRA that allows for an
extension of the transitional worker classification for up to five
years upon a finding that the CNMI's labor needs are not fulfilled with
INA classifications or domestic sources. See 48 U.S.C. 1806(d)(5).
Under the CNRA, the Secretary of the U.S. Department of Labor will
ascertain the current and anticipated labor needs of the Commonwealth
and determine whether an extension of the Transitional Worker Program
is necessary to ensure an adequate number of workers are available for
legitimate businesses in the CNMI. Id.
The second commenter stated that the rule ignores the current labor
needs of the CNMI and creates uncertainty with respect to the
availability of an adequate labor force. The commenter emphasized that
it is extremely important to establish how DHS will phase out
transitional workers because the reduced labor pool directly affects
the CNMI's Gross Domestic Product. As previously mentioned, DHS did not
provide a reduction in an attempt to provide the CNMI economy with the
flexibility to grow or constrict its workforce according to market
forces. Still, according to data on the number of foreign workers
currently in the CNMI, the maximum number allowable under this rule
appears to be quite adequate to meet the needs of CNMI businesses.
Therefore, no changes to the final rule were made as a result of these
comments.
(h) Reduction Plan Suggestions: No Reduction for the First Two Years
Two commenters suggested that the CNMI-issued permits and CNMI-
approved employer contracts should be the foundation for the first two
years of the transition period. These commenters further suggested no
reduction in the number of foreign workers allowed legally in the CNMI
should occur during those two years. The commenters suggested that the
DHS rule state specifically that all CNMI-issued permits and contracts
in force prior to the transition date on November 28, 2009, remain
completely outside the Federal system until November 27, 2011, two
years after the transition date.
DHS notes that the CNRA contains a grandfather provision, which
grants work authorization to aliens in the CNMI with valid CNMI-issued
work permits. See 48 U.S.C. 1806(e)(2). Work authorization is valid for
the length of the work permit or until two years after the start of the
transition period, whichever is shorter. Id. DHS does not agree with
the commenter that all CNMI-issued permits and contracts in force prior
to the transition period should be deemed completely outside the
Federal system. It is true that to the extent workers have
``grandfathered'' work authorization (particularly those with
``umbrella permits''), their employers do not need to file CW
nonimmigrant petitions on behalf of such workers to continue to employ
them (so long as the grandfathered work authorization remains valid).
However, the grandfather provision is itself a provision of Federal law
(the CNRA). In response to concerns about permit allocation during the
first two years of transition, however, DHS has (as described above)
adjusted the rule to provide that a maximum annual number of 22,417 CW
workers will be available in fiscal year 2011 (beginning October 1,
2010), and 22,416 in fiscal year 2012. See new 8 CFR 214.2(w)(1)(viii).
This approach will help ensure that an adequate number of CW permits
are available to CNMI employers during the time of necessary transition
from grandfathered CNMI status to a Federal status before November 27,
2011, when umbrella permits will expire. Besides extending the 22,417
limitation from the first year of the transition period to fiscal year
2011 and reducing the maximum number of foreign workers by only one
worker for fiscal year 2012, no changes are made to the final rule to
address this comment.
(i) Reduction Plan Suggestions: No Reduction Pending U.S. DOL
Determination on the Extension of the Transition Period
Two commenters suggested the rule include a plan under which DHS
would collaborate with the U.S. Secretary of Labor to make the
necessary assessment with respect to a five-year extension of the
transition period no later than November 2011. The commenters also
suggested that no reductions in the Commonwealth's workforce be made
until the Secretary of Labor issues a determination on the extension.
Under the CNRA, only the Secretary of Labor has the authority to
extend the transitional worker provisions of the transition period up
to an additional five years. See 48 U.S.C. 1806(d)(5). DHS will
continue to consult with U.S. DOL on all CNMI transition policies and
issues; however, the requirements in the CNRA for extending the
transition period are sufficient to address the issue. DHS does not
believe that it is necessary, or appropriate, to include a deadline in
this rule for U.S. DOL to make a determination on extending the
transition period. Therefore, no changes are made as a result of these
comments.
4. Petitioning Procedures
Fifty-six commenters expressed concern or offered suggestions
regarding the rule's petitioning requirements.
(a) Grandfathering of CNMI Contract Workers
Eighteen commenters suggested that DHS issue an automatic
conversion of all valid CNMI entry permit holders to transitional
worker status. Some of these commenters opined that an automatic
conversion into CW status, for one or two years, would help facilitate
travel.
The commenters' suggestions to automatically convert valid CNMI
entry permit holders into transitional worker status cannot be adopted.
The CNRA requires DHS to recognize valid CNMI immigration status (and
prohibits removal of such aliens for being present in the CNMI without
admission or parole) until the expiration of such status up to a
maximum of two years after the transition date. See 48 U.S.C.
1806(e)(1). The CNRA also requires that DHS recognize employment
authorization until the expiration of such status up to a maximum of
two years after the transition date. See 48 U.S.C. 1806(e)(2).
Accordingly, DHS will recognize all CNMI permits within the stated
timeframe.
DHS cannot automatically convert all permit holders to transitional
worker status because the CNRA also requires
[[Page 55513]]
DHS to set conditions for admission under the transition program. See
48 U.S.C. 1806(d)(2). It directs that workers cannot be granted
nonimmigrant classification or a visa under the transition program
unless the permit requirements established have been met. Id. This
provision does not authorize an automatic conversion of CNMI permits to
transitional worker status. Consistent with other employment-based
nonimmigrant classifications, DHS requires an employer to file a
petition, Form I-129CW, for a CW-1 nonimmigrant worker in order to
determine eligibility and set parameters for the program. See new 8 CFR
214.2(w)(5). This petitioning process is necessary to grant such status
under the INA, as required by the CNRA. The CNRA requires the system
for allocating ``permits to be issued to prospective employers * * *.''
See 48 U.S.C. 1806(d)(2). DHS believes that it would be inconsistent
with this provision to grant CW status without an employer requesting
it for a worker.
DHS will recognize permits as required by the CNRA. Otherwise, DHS
will issue CW status in one-year increments in order to properly
administer the allocation and annual reduction mandated by the CNRA.
See new 8 CFR 214.2(w)(16). As discussed above, DHS cannot
automatically convert CNMI permit holders to CW status. However, DHS
has responded to the concerns of these commenters by providing in this
final rule that lawfully present, work authorized aliens (including
those with ``umbrella permits'') who are employed in the CNMI, and
whose employers file petitions on or before the November 27, 2011
expiration date of CNMI permits seeking to continue to employ the
aliens in CW-1 status via an application for a grant of status in the
CNMI, will be authorized to continue in their employment after November
27, 2011. This authorized employment will continue until DHS makes a
decision on the application. See new 8 CFR 274a.12(b)(23). This
provision will prevent potential widespread loss of work authorization
on November 27, 2011 by employees whose employers have filed CW
petitions on their behalf before that date that are pending
adjudication and the consequent potential disruptive effect on the CNMI
economy.
DHS has made this accommodation in the final rule to address the
unique circumstances in the CNMI, including the lack of familiarity in
the CNMI with Federal immigration processes and statuses relative to
other U.S. jurisdictions because Federal immigration law has only
applied since November 28, 2009 and most aliens in the CNMI remain and
work in the Commonwealth under umbrella permits or other authorization
issued by the CNMI government before that date; the expiration of those
permits on November 27, 2011; the adverse economic situation in the
CNMI; and the legislative direction in the CNRA to seek to minimize
adverse effects of the federalization of immigration authority.
Under new 8 CFR 274a.12(b)(23), the continuing work authorization
will continue until DHS makes a decision on the application seeking CW
status in the CNMI; that is, until either the application is granted
and CW status provided to the alien worker, or until it is denied.
Denial of an application for grant of CW status in the CNMI may not be
appealed. See 8 CFR 214.2(w)(21).
This continuing work authorization provision applies only to aliens
in the CNMI seeking CW-1 nonimmigrant status. It does not provide work
authorization to any spouses or children seeking CW-2 nonimmigrant
status, even if they are work authorized in the CNMI on or before
November 27, 2011, as the CW-2 status sought does not itself provide
any work authorization. If spouses or children wish to be work
authorized in CW status, an employer must petition for them as a CW-1
principal. In that case the continuing work authorization would apply
to them to the same extent as to other aliens applying for CW-1 status.
The continuing work authorization pending adjudication provided by
this provision is not a grant of CW nonimmigrant or other lawful
immigration status; CW status is only provided if and when a favorable
decision is made on the application. The final rule does, however, make
a conforming clarification to the definition of ``lawfully present in
the CNMI''. See new 8 CFR 214.2(w)(1)(v)(A). Under new 8 CFR
214.2(w)(2)(iv), an alien in the CNMI must be lawfully present in the
CNMI in order to be eligible for CW status. The final rule clarifies
that in the case of aliens who are within their ``grandfathered''
period of stay before November 27, 2011, lawful presence is determined
as of the date the application for CW status is filed (whether the
application is the Form I-129CW application for CW-1 status for the
principal, or the Form I-539 application for CW-2 status for a spouse
or minor child). Therefore, the petition, and CW status for the alien
may be granted after November 27, 2011. This accommodation does not
alter the statutory expiration of the grandfather provision under 48
U.S.C. 1806(e)(1)(A). After November 27, 2011, aliens previously
covered by the grandfather provision who are inadmissible under section
212(a)(6)(A) of the INA (8 U.S.C. 1182(a)(6)(A)) may be removed
regardless of whether they are the beneficiary of a pending petition,
and all other INA grounds of removal remain applicable.
(b) Petition Fees
Thirteen commenters suggested that DHS should automatically convert
all valid CNMI permits to transitional worker status to avoid the
economic impact caused by the duplication of fees. Two commenters
suggested that DHS not charge employers any additional fees to obtain
transitional worker status for their renewed contract workers. One
commenter requested that DHS not impose fees for employers as they will
retaliate against the employees for the fees. Two commenters stated
that DHS has no authority to require aliens to pay for filling out a
form, to pay for providing biometric data, or to pay any other fee of
any kind. These commenters also said that the rule's increased fees
will cause substantial harm to the foreign workers currently in the
Commonwealth.
The CNRA requires DHS to establish, administer and enforce a CNMI
transitional worker system under the INA. As discussed above, DHS does
not interpret the CNRA simply to permit automatic conversion of CNMI
statuses to transitional worker status without an individual employer
petition and adjudication of the employer's and worker's eligibility.
See 48 U.S.C. 1806(d)(3). DHS has general authority to recover the full
costs of immigration services it provides by collecting fees. See INA
sec. 286(m), 8 U.S.C. 1356(m). The CNRA specifically references this
authority with respect to the CW program, adding that DHS should
collect an annual supplemental fee of $150 per worker for CNMI
educational purposes. See 48 U.S.C. 1806(a)(6). DHS understands that
petition fees are a major concern for both employers and employees.
Nevertheless, USCIS must collect fees to fund the services that it
provides and the expenses incurred for processing CW petitions.
Employers also expressed concern about the payment of additional fees
to petition for their current workforce. While no changes have been
made to the rule as a result of these comments, DHS notes that this
rule allows employers to request a waiver of the petition fee and the
biometrics fee if they cannot afford them. While fee waivers generally
are not available in employment-based
[[Page 55514]]
cases, DHS has decided to treat the CNMI with more flexibility in this
regard; thus, this rule authorizes waiver of the fee in cases where the
need is demonstrated. See new 8 CFR 103.7(c)(3)(iii). There will
continue to be no allowance for waiver of fees for other employment-
based nonimmigrant petitions.
(c) Beneficiary Fees
One commenter expressed a concern regarding the guest worker's
ability to pay the fees for a transitional worker petition. The
commenter explained that the guest worker's earning capacity is based
on the Commonwealth's minimum wage, which is far below the U.S. minimum
wage, and this makes the petition fees unreasonable for the workers.
DHS understands this concern and reminds guest workers that the
petitioning employer will pay the applicable petition fees. The
employee is only responsible for paying the biometrics fee both at the
time of the initial grant of status, and as requested by USCIS for
renewals or extensions of status. An employer may pay the biometrics
fees and the CW-2 fees for their employees, but that is not required.
The biometrics services fee will be collected to cover the costs of the
background check and identify verification whether or not the previous
biometrics are stored and reused or if the employee or derivative
beneficiary must appear again at the Application Support Center (ASC)
for their collection. Nevertheless, the biometrics fee may be waived
upon proof of inability to pay on a case-by-case basis. See 8 CFR
103.7(c)(3)(i). DHS is also clarifying in the final rule that,
consistent with USCIS policy on collection of biometrics, the biometric
fee is not required for beneficiaries who are under the age of 14, or
who have attained the age of 79. See new 8 CFR 214.2(w)(15).
As with the fee for petitions for nonimmigrant workers, the fee for
the Application to Extend/Change Nonimmigrant Status is generally not
eligible for a waiver. However, DHS has clarified in this final rule
that it has authority to waive the Form I-539 fee based on inability to
pay in the case of an alien seeking CW-2 derivative nonimmigrant status
as the spouse or child in the CNMI of a CW-1 worker, as the interim
final rule referred only to the Form I-129CW in its reference to fee
waiver for aliens applying for CW-2 status. See new 8 CFR
103.7(c)(3)(iii). DHS has also revised the fee and fee waiver
provisions to correct the form name for the Petition for a CNMI-Only
Nonimmigrant Transitional Worker and conform technically to the format
of 8 CFR 103.7, as reorganized in the DHS final rule, U.S. Citizenship
and Immigration Services Fee Schedule, 75 FR 58962 (Sept. 24, 2010).
Currently, the fee for a Form I-129CW employer petition for a CW worker
is $325, plus the supplemental CNMI education funding fee of $150 per
beneficiary per year. 8 CFR 103.7(b)(1)(i)(J).
(d) Petition Requirements
One commenter stated that petitioners should be required to pay
petition fees and minimum wage for their employees. Another commenter
stated that the rule imposes severe limitations on the ability to
freely transfer jobs and hire from the existing labor pool.
DHS agrees with the commenter regarding payment of petition fees
and wages. Consistent with other INA classifications, CNMI CW
classification petitioners must pay petition fees unless eligible for
and granted a fee waiver. See new 8 CFR 214.2(w)(5). As with all
employment-based classifications, employers must abide by the local
employment laws governing the State or Commonwealth. The interim final
rule and this final rule provide that an employer is eligible to
petition for a transitional worker, if among other requirements, it
complies with Federal and Commonwealth requirements relating to
employment, including but not limited to nondiscrimination,
occupational safety, and minimum wage requirements. See 74 FR 55110;
new 8 CFR 214.2(w)(4)(iv). In response to the comment regarding minimum
wages, this final rule also requires the petitioning employer to attest
that the employer is an eligible employer and will continue to comply
with the requirements for an eligible employer until such time as the
employer no longer employs the worker. See new 8 CFR
214.2(w)(6)(ii)(D). The final rule strengthens the terms of the
attestation that the employer must sign with respect to its compliance
with the required terms and conditions of employment and compliance
with applicable laws. See new 8 CFR 214.2(w)(6)(ii).
DHS disagrees with the second commenter's assertion that this rule
imposes severe limitations on the ability to freely transfer jobs. This
final rule incorporates standard elements of the Federal immigration
system, including the requirement that an employer petition for an
employee. There is nothing to prevent that employee from transferring
freely to another job upon filing of a petition for their services by a
new employer. See new 8 CFR 214.2(w)(5) and (w)(7).
However, in light of this commenter's concern, DHS believes it is
important to include additional flexibility for a CW-1 worker seeking
to transfer to a new employer. The CNRA mandates that an alien ``shall
be permitted to transfer between employers in the Commonwealth during
the period of such alien's authorized stay therein, without permission
of the employee's current or prior employer, within the alien's
occupational category or another occupational category the Secretary of
Homeland Security has found requires alien workers to supplement the
resident workforce.'' See 48 U.S.C. 1806(d)(4). This final rule
includes a mechanism, within the existing federal system, for a CW-1 to
freely transfer employers as envisioned by the CNRA without approval
from prior or current employer. See new 8 CFR 214.2(w)(7).
DHS is able to address the general concern regarding transfer of
employment by clarifying that a foreign national with CW-1 status may
work for a prospective new employer after the prospective new employer
files a Form I-129CW petition on the employee's behalf. See new 8 CFR
214.2(w)(7). Such work may begin only if a nonfrivolous Form I-129CW
for new employment was filed before the date of expiration of the CW-
1's authorized period of stay and subsequent to the CW-1's lawful
admission, and the CW-1 has not been employed without authorization in
the United States since admission. See new 8 CFR 214.2(w)(7)(iii). If
these conditions are met, then employment authorization shall continue
for such alien until the new petition is adjudicated. See new 8 CFR
214.2(w)(7)(iv). However, if the new petition is denied, the work
authorization will also cease. Id. This benefit of new employment upon
filing of a petition (if all aforementioned requirements are met) is a
benefit that relates only to this specific class of nonimmigrants in
light of the unique provisions of and congressional intent expressed in
the CNRA.
DHS emphasizes that this provision for change of employer does not
intend to authorize extended continued presence in the CNMI for the
purpose of seeking employment after termination of CW-1 employment. In
general, a CW-1 worker loses CW-1 status upon any violation of CW-1
status (including termination of the qualifying CW-1 employment), and a
loss of CW status ends the period of authorized stay at that time. See
new 8 CFR 214.2(w)(23). A CW petition cannot be filed for an alien in
the CNMI who is not in lawful status, including a petition by a new
employer, which must be filed before
[[Page 55515]]
the date of expiration of authorized period of stay. See new 8 CFR
214.2(w)(2)(iv) and (w)(7)(iii)(A). However, DHS believes that it is
appropriate to provide a limited period of time after the termination
of employment for workers to obtain new qualifying employment.
Therefore, in response to the comments and the unique conditions in the
CNMI, and consistent with the direction in the CNRA that DHS provide
for transfer between employers (see 48 U.S.C. 1806(d)(4)), the final
rule provides that when a status violation results solely from
termination of CW-1 employment, the CW-1 status will expire 30 days
after the date of termination, rather than on that date itself, as long
as a new employer files a nonfrivolous petition within that 30-day
period and the alien does not otherwise violate the terms and
conditions of his or her status. See new 8 CFR 214.2(w)(7)(v) and
(w)(23). Thus, the alien will still be lawfully present in the CNMI for
the purpose of employer eligibility to file a CW-1 petition during that
30-day period, and the employee will be able to begin work pending
petition adjudication as provided by new 8 CFR 214.2(w)(7). The
employer will still need to comply with all petition requirements,
including attesting that no qualified U.S. worker is available to fill
the position. If the employer is not able to petition for the worker
within the 30-day period after termination, the employer is not
foreclosed from petitioning for that alien; however, the alien would
need to leave the CNMI before a petition could be filed, and would be
able to return to begin the employment only after petition approval and
issuance of a CW-1 visa by a consulate. Additionally, if the CW worker
cannot find an employer to petition on his or her behalf during the 30-
day period after the worker's CW-1 employment was terminated, then the
alien would be out of status as of the date the CW-1 employment was
terminated.
By allowing employer petitions for change of employment at any time
during the CW-1 alien's current employment, and providing a limited
opportunity for an employer to petition for an alien in the CNMI after
termination of employment, DHS believes that it is providing
opportunities that will improve the ability of employers to respond to
economic conditions in the CNMI and reduce unnecessary travel costs to
obtain visas abroad and other burdens on workers, without enabling
unemployed former CW-1 workers to remain long-term in the CNMI for the
purpose of seeking new employment.
DHS has made a conforming change to the CW-1 employment
authorization provision, since in a change of employer situation the
CW-1 employment will not necessarily be ``only [for] the petitioner
through whom the status was obtained.'' See new 8 CFR 274a.12(b)(23).
The provision adds a cross-reference to the scope of employment as
authorized by 8 CFR 214.2(w), in order also to cover changes of
employer within the scope of the final rule. Id.
DHS disagrees with the commenter's assertion that this rule imposes
severe limitations on the ability to hire from the existing labor pool.
This rule provides the flexibility for employers to petition for
employees from within the CNMI or from abroad. See new 8 CFR
214.2(w)(2)(i). It also retains the requirement that the employee in
the CNMI be lawfully present. See new 8 CFR 214.2(w)(2)(iv). This
provision should provide broad access to the existing labor pool in the
CNMI and a preference to the current CNMI permit holders. Those
provisions should serve to advance the goal of providing a smooth
transition between the CNMI and federally-based statuses.
Two additional commenters stated that the employer attestation
requirement will invite widespread abuse, will actually decrease the
job opportunities available to U.S. workers, and will remove any means
for enforcing workforce participation requirements designed to maximize
those jobs for U.S. workers.
DHS disagrees with the commenters. DHS has effectively instituted
similar attestations in other employment-based categories such as those
for temporary agricultural workers (H-2A visas) and temporary
nonagricultural workers (H-2B visas). We think the attestation issued
with this rule will serve to effectively enforce the necessary
requirements and prevent fraud and abuse within the immigration system.
Coordinated efforts between agencies within and outside DHS ensure the
protection of U.S. citizen and lawful permanent resident workers.
Additionally, CNMI employers will be able to reasonably convert their
foreign worker dominated workforce to a work force of U.S. citizens or
lawful permanent residents by phasing out the use of the transitional
worker classification by the end of the transition period. DHS will
work with other Federal agencies to review the CNMI's workforce
requirements and Federal law compliance. Therefore, this rule retains
the provision on employer attestations from the interim final rule. In
addition, DHS has strengthened the attestation requirements with
respect to terms and conditions of employment. See new 8 CFR
214.2(w)(6)(ii).
One commenter supported the requirement that the petitioning
employer pay the alien's reasonable cost of return transportation to
the alien's last place of foreign residence if the alien is dismissed
from employment for any reason by the employer before the end of the
period of authorized admission. The commenter added that this
requirement was deleted from the CNMI Government's umbrella permit
system.
Two other commenters stated that the repatriation clause was very
limited and will place the burden on foreign workers to pay their own
way back home. These commenters suggested that the Commonwealth's
system is superior to that in the interim final rule. That system
required the final employer of record to pay for a return ticket when
the worker became unemployed for any reason. The CNMI also required the
posting of a bond to help ensure that this obligation would be met.
While DHS understands these concerns, DHS does not believe it
necessary to modify or make the repatriation provision in the final
rule more stringent. The interim final rule required employers to pay
the reasonable cost of return transportation of the alien to the
alien's last place of foreign residence if the alien is dismissed from
employment for any reason by the employer before the end of the
authorized admission. See new 8 CFR 214.2(w)(11). If the complete terms
of the contract are met, the employee may have to find his or her own
transportation home. This requirement is consistent with other
nonimmigrant visa categories. DHS believes that administration of a
bond posting requirement would add unnecessary complexity and expense
for CW petitioners. The requirement in this rule provides sufficient
safeguards for a beneficiary's safe return home in case of early
termination. Thus, no changes are made as a result of this comment.
(e) Employer as Petitioner
Four commenters expressed concern that the rule only empowers the
employer to petition for guest workers. Two of these commenters stated
that employees should be able to apply for their own status. They
suggested that the petition requirement should only be imposed on
individuals who have not resided in the CNMI for a minimum number of
years. Another commenter stated that the employer's petition
[[Page 55516]]
requirement may help perpetuate an employer's abuse against a foreign
worker. The commenter argued that an employee might not report abuse
for fear that the employer will not file a petition for the employee.
Another commenter requested clarification on the process for replacing
a transitional worker once the worker leaves employment.
DHS has not adopted the commenters' suggestion that employees be
allowed to self-petition. The purpose behind employment-based visa
programs is to ensure an adequate number of qualified employees to
effectively operate the businesses. Such programs permit U.S. employers
to hire foreign workers on a temporary or permanent basis to fill jobs
essential to the U.S. economy. See 20 CFR part 655. Employment-based
visas are not intended to allow individuals to petition for the
opportunity to seek employment in the United States irrespective of an
available employer. Thus, consistent with other employment-based
nonimmigrant classifications, DHS will require employers to file a
petition for all CW-1 workers. See new 8 CFR 214.2(w)(5). This
requirement will allow DHS to conduct the review necessary to determine
eligibility and that the parameters set for the program are followed.
This final rule requires that employers submit evidence showing the
legitimacy of their business, their recruitment practices, the terms
and conditions of employment offered, and their compliance with Federal
and Commonwealth law. See new 8 CFR 214.2(w)(6). DHS believes that
these parameters are necessary to comply with congressional intent that
the CW category ``promote the maximum use of, prevent adverse effect on
wages and working conditions of, workers authorized to be employed in
the United States * * *.'' See 48 U.S.C. 1806(d)(2). This employer-
focused petitioning process will ensure that CW status follows U.S.
immigration law as required by the CNRA. Therefore, this final rule
requires employers to file a petition for all CW-1 nonimmigrant
workers, both for initial status and renewal. See new 8 CFR 214.2(w)(5)
and (w)(17).
There are various Federal laws enforced by the U.S. Departments of
Justice and Labor, and other agencies that prohibit workplace
discrimination and regulate issues such as wages, benefits, safety, and
health care. Those protections also apply to foreign workers in the
United States. U.S. citizens may report employer abuses to the
appropriate state and Federal agencies for enforcement action. Thus, no
changes have been made to the final rule as a result of these comments.
(f) Multiple Beneficiaries
One commenter stated that DHS should allow employers to petition
for multiple beneficiaries regardless of occupational category, as long
as the beneficiaries are already in the CNMI. The commenter stated that
this process would help employers transfer all the CNMI permit holders
to an INA status and, in turn, result in a more orderly transition and
phasing-out of the CNMI's nonresident contract worker program. Another
commenter also suggested a multiple beneficiary process.
DHS encourages all CNMI permit holders to convert to a Federal
immigration status as soon as possible. That is the intent of the final
rule's provisions allowing multiple beneficiaries on the same CW
petition if the beneficiaries will be performing the same service, for
the same period of time, and in the same location. See new 8 CFR
214.2(w)(9). Unfortunately, DHS can not adopt the commenter's
suggestion to allow employers to petition for multiple beneficiaries
regardless of occupational category. DHS can only streamline the
petitioning process for multiple beneficiaries in such cases when the
beneficiaries share the same occupational category, validity period,
and location. Because of differing adjudication and evidentiary
requirements, DHS can not efficiently adjudicate petitions for multiple
beneficiaries on one form where these elements are not identical.
Therefore, the final rule was not changed as a result of these
comments.
(g) Multiple Employers
Two commenters stated that the rule's provision that allows
employment by more than one employer is not a viable way to control
subcontracting and may lead to large-scale fraud as previously
experienced in the CNMI. DHS understands this concern regarding a
foreign worker's ability to work for more than one employer. However,
Congress clearly expressed its intent that the transition to the INA be
eased as much as possible and included provision for the continued use
of alien workers. See 48 U.S.C. 1806 note. As such, this final rule
permits a beneficiary to work for more than one employer as long as
each employer files a separate Form I-129CW petition with DHS. See new
8 CFR 214.2(w)(5). Biometrics and other security checks will be used to
confirm identity and status in order to help prevent any fraud
resulting from this provision. Therefore, no changes are necessary or
made in the final rule as a result of this comment.
(h) Validity Period
Two commenters opposed the validity period of the CW classification
provided in the interim rule. They stated that limiting workers to only
ten days in the CNMI after their employment is completed is
unrealistically short and unfair to those with pending disputes or
skills that can be used in the CNMI. As a result of this limited
validity period, nonimmigrant resident aliens can be deported even if
they have a claim pending against an employer. The commenters further
asserted that this result is contrary to opinions issued by the CNMI
federal district court which require both an extension of stay in the
Commonwealth to prosecute claims and temporary work opportunities while
awaiting the completion of the case or claim.
The commenters did not cite specific cases, but DHS is aware of
decisions from the CNMI courts relating to the removal of aliens with
pending labor cases and of case law from the U.S. District Court for
the Northern Mariana Islands relating to the employment privileges of
aliens under former CNMI immigration law. See, e.g., Office of Att'y
Gen. v. Paran, 1994 WL 725954 (N. Mar. I. 1994); Office of Att'y Gen.
v. Rivera, 1993 WL 307651 (N. Mar. I. 1993); cf. Tran v. CNMI, 780 F.
Supp. 709 (D.N.M.I. 1991) (no right of alien employment in CNMI under
U.S. Constitution). DHS notes that case law applying former CNMI law to
the removal of aliens is not applicable to Federal immigration law.
Pending labor cases before CNMI authorities may involve claims for
unpaid wages or other labor law issues, but no longer involve the
authority to provide or revoke work authorization, as those are now
matters of Federal immigration law.
Another DHS component, U.S. Immigration and Customs Enforcement
(ICE), has the authority to institute removal proceedings for
unauthorized aliens. DHS respects the importance of labor claims, and
ICE may exercise its prosecutorial discretion as appropriate when
considering the possible removal of aliens who are pursuing such
claims. As with other employment-based statuses under U.S. immigration
law, court actions and removal proceedings are independent of what
regulations may provide regarding the validity of CW status. It is not
necessary to spell out in regulations the effects of such claims on a
nonimmigrant's status.
This final rule retains the substance of the interim final rule's
provision stating
[[Page 55517]]
that the beneficiary may be admitted to the CNMI up to ten days before
the validity period begins and may remain no later than ten days after
the validity period ends. This validity period is consistent with other
nonimmigrant categories (see 8 CFR 214.2(h)(13)(i)(A), pertaining to H
nonimmigrants), and DHS believes it permits the necessary flexibility
for travel and living arrangements to be made both before and after a
period of authorized employment. However, further review of the
provision in light of the comment has led to some technical
reorganization in the final rule in order to state the relevant time
periods more consistently and clearly. A petition is valid for
admission to the CNMI in CW status during its validity period, and up
to ten days before the start of the validity period. See new 8 CFR
214.2(w)(16). Admission to the CNMI and authorized employment in CW
status is for the petition validity period, not to exceed one year. See
new 8 CFR 214.2(w)(13). CW status expires ten days after the end of the
petition's validity period. See new 8 CFR 214.2(w)(23).
(i) Filing Location
Two commenters suggested that transitional worker petitions be
processed at the Saipan Application Support Center instead of the
California Service Center. Petitions not typically requiring an
interview as part of the adjudication process, including employment-
based petitions such as CW petitions, are normally processed at USCIS
Service Centers. USCIS has found this to be the most efficient and
cost-effective approach. Due to the CNMI's geographic location, DHS has
determined that CW petitions will be processed by the California
Service Center (CSC) in Laguna Niguel, California. Such centralization
ensures that one specialized unit processes all the CNMI filings in
order to ensure more consistent adjudications. The comment has not been
adopted.
(j) Paper-Based System
Two commenters criticized the rule's reliance on a paper-based
system and categorized it as wasteful and time consuming. DHS agrees
that direct, electronic or online interactions and information
transmittal is the most efficient method to use when possible. DHS uses
electronic procedures whenever that option is available. Nevertheless,
for most filings, a combination of electronic and paper-based filing
must still be utilized. DHS continues to strive for efficiency and the
transformation of its systems; however, DHS is not able to accept this
petition via electronic filing at this time. Nonetheless, this rule
does not mandate a paper-based system and a transition to electronic
submission could be effectuated when that becomes a viable option.
5. Obtaining CW Status
Three commenters offered suggestions or requested clarification on
the process for conferring transitional worker status to individuals
currently in the CNMI.
(a) Obtaining CW Status in the CNMI
Two commenters pointed out that the rule does not specifically
indicate how CNMI permit holders will be able to obtain a Federal
immigration status while in the CNMI. The commenters noted that these
aliens have not been admitted by a U.S. immigration officer and thus
are not technically eligible to change their status under current
regulations. The commenters proposed an amendment to 8 CFR part 248 to
provide DHS with the authority to change their CNMI status to Federal
immigration status. They stated that this change would alleviate the
need for all aliens to depart the CNMI in order to obtain the CW-1
status abroad through the consular process. One of the commenters also
proposed an amendment to 8 CFR part 245 to provide DHS with the
authority to adjust the CNMI status of such aliens to immigrant
categories under the INA.
As noted, all aliens present in the CNMI on the transition date
(other than U.S. lawful permanent residents) became present in the
United States without admission or parole by operation of law. See 48
U.S.C. 1806(d)(1), (2). DHS acknowledges that the interim rule did not
specifically state the DHS authority to grant a federally-based
immigration status. The INA authorizes USCIS to change an alien's
status from one nonimmigrant status to another, but there is no
provision specifically providing for a grant of nonimmigrant status to
an alien present in the United States who is not already in a
nonimmigrant status. See INA sec. 248, 8 U.S.C. 1258. As the commenter
points out, the primary impediment to direct grants of nonimmigrant
status to aliens present in the CNMI is inadmissibility under section
212(a)(6)(A)(i) of the INA for presence in the United States without
admission or parole. This ground of inadmissibility may be overcome,
however, through exercise of waiver authority under section
212(d)(3)(A)(ii) of the INA. See INA sec. 212(d)(3)(A)(ii), 8 U.S.C.
1182(d)(3)(A)(ii).
The Supplementary Information to the interim rule discussed the
fact that CW status could be granted directly to aliens present in the
CNMI, unlike aliens abroad seeking that status who first must be issued
an CW nonimmigrant visa by the Department of State at a consular post
abroad and thereafter seek admission in CW status. See 74 FR 55099. The
regulatory language, however, was not explicit about how that would be
done consistent with the requirement that the alien be admissible to
the United States. Thus, in order to give additional assurance and
direction on this point to the affected public and to USCIS
adjudicators, the final rule clarifies that a waiver of inadmissibility
under section 212(d)(3)(A)(ii) of the INA may be granted to an eligible
alien seeking an initial grant of CW status from DHS while in the CNMI.
See new 8 CFR 214.2(w)(24). Such aliens will necessarily lack a CW
nonimmigrant visa issued by the Department of State, and are thus
inadmissible under section 212(a)(7)(B)(i)(II) of the INA; they also by
definition will (unless changing to CW status from another nonimmigrant
status under the INA, or the recipient of a DHS grant of parole) be
aliens present in the United States without admission or parole, and
thus inadmissible under section 212(a)(6)(A) of the INA. Therefore, the
rule allows for a waiver of those two grounds of inadmissibility for
aliens with appropriate documentation.
This waiver provision is based upon the specific language in
section 212(d)(3)(A)(ii) that in the case of an alien ``in possession
of appropriate documents'' who is seeking admission as a nonimmigrant,
most grounds of inadmissibility may be discretionarily waived. See INA
sec. 212(d)(3)(A)(ii), 8 U.S.C. 1182(d)(3)(A)(ii). In the unique
situation of the CNMI and considering the broad discretion provided to
DHS in the CNRA to set the terms and conditions of the transitional
worker program for aliens not otherwise eligible for admission under
the INA, and the stated goal of the CNRA to mitigate potential adverse
consequences of transition to the extent possible, DHS considers that
the ``appropriate documentation'' requirement for the waiver may be met
by aliens who possess documentation that they are lawfully present in
the CNMI, as defined in new 8 CFR 214.2(w)(1)(v) (see further
discussion below on lawful presence).
In the case of spouses and children present in the CNMI who are
seeking a derivative grant of CW-2 nonimmigrant status based upon a
principal CW-1 approved petition, to satisfy the ``appropriate
documents'' requirement
[[Page 55518]]
for a section 212(d)(3)(A)(ii) waiver of inadmissibility under INA
sections 212(a)(6)(A)(i) and 212(a)(7)(B)(i)(II) as described in 8 CFR
214.2(w)(24), the applicant must also possess documentation that he or
she is lawfully present in the CNMI. See new 8 CFR 214.2(w)(1)(v).
Therefore, the final rule clarifies that DHS may, without
additional application or fee, grant a section 212(d)(3)(A)(ii) waiver
to an alien approved for an initial grant of CW-1 transitional worker
status or CW-2 dependent status in the CNMI and in possession of
appropriate documents. See new 8 CFR 214.2(w)(24). It provides that
appropriate documentation for purposes of granting this waiver to
aliens in the CNMI includes a valid, unexpired passport and other
documentary evidence that the alien is lawfully present as defined by
the rule, such as a CNMI-issued ``umbrella permit'' or a DHS-issued
Form I-94. Id. Evidence that the alien possesses this documentation may
accompany the employer's petition that includes the employer's
attestation as to the alien's lawful presence; may in the case of a
derivative spouse or minor child accompany the Form I-539 application
for derivative status; or may be provided in such other manner as USCIS
may designate. Id. Based upon this waiver, an alien lawfully present in
the CNMI will be eligible for a grant of CW-1 or CW-2 status in the
CNMI without first obtaining a CW visa abroad, provided that the
applicant is otherwise admissible and eligible for CW status.
DHS also has revised 8 CFR 214.2(w)(14) to describe more clearly
how beneficiaries of approved employer petitions and their dependents
(spouses and minor children) may obtain CW status. Principal
beneficiaries and their dependents outside the CNMI will be instructed
to apply for a visa. For principal beneficiaries within the CNMI, the
petition itself (including the biometrics provided under new 8 CFR
214.2(w)(15)) also serves as the application for CW-1 status.
Dependents present in the CNMI may apply for CW-2 dependent status on
Form I-539 (or such alternative form as USCIS may designate) in
accordance with the form instructions. The CW-2 status may not be
approved until the CW-1 petition is approved. A spouse or child
applying for CW-2 status on Form I-539 is eligible to apply for a
waiver of the fee based upon inability to pay as provided by 8 CFR
103.7(c). See new 8 CFR 214.2 (w)(14). Currently, the fee for a Form I-
539 is $290, and the biometrics fee is $85 (unless the alien is under
the age of 14 or is at least 79 years of age). See 8 CFR
103.7(b)(1)(i)(C); 8 CFR 103.7(b)(1)(i)(X); new 8 CFR 214.2(w)(15).
The final rule also makes conforming changes to the description of
eligible principal and derivative aliens with respect to
inadmissibility, to confirm that the alien must not be inadmissible,
except to the extent that any applicable ground of inadmissibility is
overcome with the appropriate waiver. See new 8 CFR 214.2(w)(2)(v) and
214.2(w)(3)(iii).
(b) Biometric Fee for Obtaining Status
One commenter requested clarification on the biometric fee
requirement and the availability of a fee waiver. Aliens present in the
CNMI generally will not have previously supplied biometric information
to the Federal government. As a result, the Federal government will not
have conducted the necessary background checks required for most
immigration benefits under the immigration laws of the United States.
DHS will require applicants for CW status to provide biometrics. See
new 8 CFR 214.2(w)(15). Without biometrics, a CW petition cannot be
approved. This requirement will ensure that CW status is not granted to
anyone who is inadmissible and not granted a waiver of such ground of
inadmissibility. See INA sec. 212(a), 8 U.S.C. 1182(a). A fee waiver is
available based upon a showing of inability to pay the Form I-129CW
and/or biometrics fees. See 8 CFR 103.7(c)(3)(i); new 8 CFR
103.7(c)(3)(iii).
6. Lawful Presence and Travel
Seventy-nine commenters expressed concern about, or offered
suggestions regarding, the rule's lawful presence and travel
requirements.
(a) Lawful Presence
DHS received five comments regarding the rule's lawful presence
requirement. One commenter suggested that transitional worker status
should be afforded to all alien workers with legal CNMI status. Four
commenters expressed concern regarding the requirement that an employer
petition for a guest worker while she or he is in lawful CNMI status.
Three of these commenters stated that this requirement will negatively
impact guest workers with expiring or expired umbrella permits who do
not have a sponsoring employer. In order to alleviate this problem, one
commenter suggested that DHS allow all umbrella permit holders to self-
petition when a sponsoring employer is not available. Another stated
that the requirement does not take into account the need for new
foreign workers necessary to support new projects.
DHS is aware of the interest of employers in the CNMI to bring in
new hires. The interim rule accordingly provided that the CW
classification would be available to aliens coming from abroad. See 74
FR at 55096; 74 FR at 55109 (new 8 CFR 214.2(w)(2)). Additionally, DHS
is aware of the public's concern regarding the lawful presence
requirement and how the requirement affects the ability to obtain new
hires from within the CNMI. In the interim rule, DHS posited that
requiring lawful presence was the most efficient means to begin the
congressionally-mandated reduction in the number of transitional
workers to zero by the end of the transition period. Id. Furthermore,
DHS believed that allowing workers without lawful status in the CNMI to
obtain CW-1 status would encourage noncompliance with CNMI immigration
law before the transition program effective date by removing the
incentive for workers with lawful status to maintain or reacquire such
lawful status under CNMI law prior to the transition. Id.
The interim rule's intent to encourage legal compliance before the
transition program effective date is now moot, as that date has passed.
Nonetheless, DHS has decided to maintain a lawful presence requirement
to remove the incentive for a person to enter the CNMI illegally or
overstay his or her visa or status expiration date to seek employment
in the CNMI through the CW program. See new 8 CFR 214.2(w)(2)(iv). The
worker must either be lawfully present under the grandfather provision
applicable until November 27, 2011, or have been admitted or paroled by
DHS on or after the transition program effective date other than for a
short visit for business or pleasure. See 48 U.S.C. 1806(e)(1), (2);
new 8 CFR 214.2(w)(1)(v). This lawful presence requirement will smooth
the transition between these statuses. The final rule removes language
relating to lawful presence requirements for CW petitions filed before
the transition program effective date since that date has already
passed, updates the reference to lawful presence under 48 U.S.C.
1806(e) to reflect statutory codification of this CNRA provision,
clarifies reference to visitors for business or pleasure to
specifically include (as ineligible for CW status) aliens from the
People's Republic of China or the Russian Federation paroled as
visitors into the CNMI, and clarifies that the alien must still be
within the period of admission or parole referred to in the definition.
See new 8 CFR
[[Page 55519]]
214.2(w)(1)(v). However, as previously discussed in section 4(a) of
Part IV of this Supplementary Information, DHS has revised the
definition of ``lawful presence'' in this final rule to clarify that in
the case of aliens lawfully present under the grandfather provision,
lawful presence is determined as of the petition filing date. This
accommodation ensures that applications for CW status filed before
November 27, 2011 for aliens lawfully present in the CNMI may be
adjudicated and granted after that date.
DHS is unable to adopt the commenter's suggestion that DHS allow
all umbrella permit holders to self-petition when a sponsoring employer
is not available. The CNRA requires that DHS establish a system for
allocating ``permits to be issued to prospective employers * * *.'' See
48 U.S.C. 1806(d)(2). Allowing for a grant of CW status without a
petitioning employer would be contrary to that provision. As such, DHS
retains the requirement for an employer to file a petition for a CW-1
nonimmigrant worker. See new 8 CFR 214.2(w)(5). This petitioning
process is necessary to grant such status under the INA, as required by
the CNRA.
(b) Umbrella Permits
Six commenters out of 79 expressed concern regarding the umbrella
permit issued by the CNMI government and its effect during the
transition period. Five commenters expressed concern regarding the
validity of the umbrella permit under U.S. immigration law. One
commenter stated that the DHS recognition of the umbrella permit should
be accompanied by provisions that address an employer's responsibility
for a former foreign worker with an expired CNMI labor contract.
Another commenter expressed concern that the rule did not contain a
mechanism to ensure that U.S. workers are not displaced by the foreign
worker pool created through the recognition by DHS of the CNMI umbrella
permit. The commenter suggested that foreign workers with a valid CNMI
work permit be allowed to remain in the CNMI until November 2011
without additional limitations, even if they are not employed. A sixth
commenter suggested that DHS provide aliens with pending cases before
the CNMI Department of Labor with work authorization.
DHS fully considered these comments regarding the validity of the
umbrella permits, how they relate to unemployed workers, the protection
of U.S. workers, and how they relate the objectives of the CNRA. DHS
believes that the existence of umbrella permits does not frustrate
implementation of the CNRA or other U.S. immigration laws in the CNMI
or present problems with the implementation of the transitional worker
program. As provided in the CNRA and this rule, work authorization is
allowed with a valid CNMI immigration status until such status expires,
or for two years after the transition date. See 48 U.S.C. 1806(e). DHS
has decided that umbrella permits issued by the CNMI government are
valid as evidence of authorized stay and work authorization. This
decision should assuage the commenter's concerns as to their continued
validity.
DHS cannot make amendments to the rule in response to commenters'
suggested methods for dealing with individuals with work permits but no
employment (due to, for example, an expired contract or a labor
dispute). The transitional worker program provides the ``number, terms,
and conditions of permits to be issued to prospective employers for
each such nonimmigrant worker,'' and was not intended to protect
residents with CNMI permits but no employment. See 48 U.S.C.
1806(d)(2). This rule does not prohibit someone currently with legal
status (lawful presence) but no employment from receiving CW status if
an employer petitions for him or her. Thus no change is necessary as a
result of this suggestion.
As for the comment suggesting additional provisions to ensure that
U.S. workers are not displaced by CNMI umbrella permit holders, no
changes to the regulation have been made. The number of available U.S.
workers relative to aliens will be considered when deciding on the
level of transitional workers that may be required in each successive
year of the transition period. Such consideration will address whether
sufficient U.S. workers are available to meet the labor needs of the
CNMI. USCIS has issued information that clarifies regulations and
policies and their application in the CNMI.\10\ That document provides
additional information on the legal treatment of umbrella permits.
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\10\See USCIS, Questions & Answers: Employment Authorization and
Verification in the Commonwealth of the Northern Mariana Islands
(CNMI) (Mar. 12, 2010), available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3621788503457210VgnVCM100000082ca60aRCRD&vgnextchannel=14cb86c5b741f110VgnVCM1000004718190aRCRD.
---------------------------------------------------------------------------
(c) Travel Restrictions
Fifteen out of 79 commenters stated that the inability of DHS to
offer concrete options for guest workers has led to a fear of traveling
abroad due to the uncertainty of re-entry into the CNMI. Five of these
commenters expressed concern regarding the rule's visa requirement to
re-enter the CNMI after travel abroad given what they characterized as
the probability of visa denial by the U.S. Embassy. Some commenters
suggested that DHS issue the transitional worker status without a
travel restriction.
DHS is aware of the public's concern regarding the burden of
obtaining a visa to re-enter the CNMI. The CNRA provides for the
creation of a geographically limited nonimmigrant classification and
expressly states that such classification ``shall not be valid for
admission to the United States * * * except admission to the
Commonwealth.'' See 48 U.S.C. 1806(d)(3). DHS must follow those
statutory restrictions for the CW classification.
As previously noted, the transitional worker does not require a CW
visa to legally remain and work in the CNMI. This final rule clarifies
that such status may be granted to the beneficiary directly in the
CNMI. See new 8 CFR 214.2(w)(14). The CNRA intended the transitional
worker program to be a mechanism for transitioning the current alien
workforce in the CNMI to an INA classification first, then, if not
eligible for an INA-based classification, to a transitional worker
under this rule until such classification could be attained. Although
the CNRA states that the transitional worker program was intended for
aliens seeking to enter the Commonwealth (48 U.S.C. 1806(d)), DHS does
not interpret that language to require that transitional workers under
this program only be outside the CNMI. The CNRA also provides that DHS
will set the conditions for admission and authorize the issuance of
nonimmigrant visas for aliens who will be permitted to engage in
employment pursuant to the transition program. See 48 U.S.C.
1806(d)(3). To interpret those provisions together to require departure
prior to the grant of status and return to the CNMI would be
unreasonable in light of the intent of Congress in passing the CNRA to
``maximize the Commonwealth's potential for future economic and
business growth'' in the CNMI. See 48 U.S.C. 1806 note. Therefore, as
previously discussed, this final rule clarifies the authority and
process by which applicants who are already within the CNMI may be
determined to be admissible to the United States and granted CW status
without requiring that they first depart the CNMI in order to obtain a
visa. An alien in the CNMI who is eligible for a grant of CW status
will not have to make a trip abroad
[[Page 55520]]
solely for the purpose of obtaining a visa. If DHS approves a CW
petition for such alien, the CW worker will receive an approval notice
with an attached Form I-94, Arrival-Departure Record, which serves as
evidence of lawful immigration status.
While the I-94 is evidence of lawful immigration status, Federal
regulations require that a nonimmigrant return the I-94 departure
record to U.S. officials upon exiting the United States. See 8 CFR
231.2. Therefore, if the CW worker travels abroad, he or she will need
to relinquish the I-94 upon departure. The CW worker will then possess
only the USCIS Form I-797, Notice of Approval, as evidence of his or
her CW status. The alien will need to present that document to a U.S.
embassy abroad in order to obtain a CW visa. Upon return to the CNMI
from foreign travel and an application for admission, he or she will
receive a new Form I-94. As with most other aliens with INA-based
nonimmigrant statuses, a CW-1 nonimmigrant will need a visa to be
admitted to the CNMI upon return from foreign travel. See new 8 CFR
214.2(w)(22). DHS is maintaining the visa requirement for CW
nonimmigrants who leave the CNMI and seek to return. A primary purpose
of the CNRA is ``to ensure that effective border control procedures are
implemented and observed, and that national security and homeland
security issues are properly addressed.'' See CNRA sec. 701(a), 48
U.S.C.A. 1806 note. The visa issuance process is an important aspect of
effective border control. Therefore, DHS does not consider it
appropriate as a matter of travel security and immigration policy to
waive visa-related grounds of inadmissibility for CW nonimmigrants who
leave the CNMI and seek to return.
However, as discussed further below, DHS is providing in this final
rule an exception to limitations on travel to Guam in CW status that
will permit nationals of the Philippines to transit Guam when
travelling to or from the Philippines. Those CW nonimmigrants may
travel to the Philippines through Guam without violating their CW
status. CW nonimmigrants still must obtain a visa to return from the
Philippines through Guam to the CNMI, but may apply to CBP upon arrival
in Guam for a discretionary exercise of parole authority to enable
their onward travel and admission to the CNMI in CW status. DHS hopes
that this will alleviate to some degree travel problems arising from
the general limitation of CW status to the CNMI.
(d) Travel With CW Status
Eleven commenters stated that transitional worker status holders
should be permitted to leave and re-enter the CNMI on CW status alone,
without first obtaining U.S. visas in their countries of origin. DHS
notes that there is a distinct difference between a visa and a status.
All nonimmigrants \11\ must have a visa, issued by DOS, in order to
apply for admission to the United States. While CW status will be
issued by DHS, such status only sets the parameters for the
transitional worker's authorized stay within the Commonwealth. However,
all nonimmigrants must have a visa, issued by the Department of State,
in order to request permission to apply for admission to the United
States. Therefore, a CW worker must obtain a visa before returning to
the CNMI after foreign travel and no changes are made as a result of
these comments.
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\11\ Except those covered by visa waiver programs for temporary
visitors for business or pleasure or specific statutory or
regulatory provisions authorizing such travel.
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Fourteen commenters suggested that an automatic CW-1 visa should
accompany the issuance of CW-1 nonimmigrant status in order to give
nonimmigrant workers and their dependents the freedom to exit and re-
enter in the CNMI without unnecessary delay and uncertainty on re-
admittance. DHS notes again that there is a distinct difference between
a visa and a status. DOS issues a visa at a U.S. Embassy or consulate
office abroad. A visa, placed in the alien's passport, allows an alien
to travel to a port of entry and request permission to enter the United
States. While having a visa does not guarantee entry to the United
States, it does indicate that a consular officer has determined that
the alien is eligible to seek entry for the specific purpose covered by
that visa.
DHS is responsible for all admissions into the United States. If
admissible, DHS admits an alien and grants his or her status in the
United States. The specified status controls the period of stay and
conditions of such stay. In most cases, DHS grants status at the port
of entry. For CW workers, DHS may exercise its discretionary waiver
authority to allow beneficiaries of a CW petition in the CNMI to seek a
grant of transitional worker status without requiring that they depart
the Commonwealth. See new 8 CFR 214.2(w)(14)(ii) and new 8 CFR
214.2(w)(24). The grant of such status is within DHS's purview. Visa
issuance is handled by DOS. As such, an automatic CW-1 visa cannot
accompany the issuance of CW-1 nonimmigrant status because DHS does not
issue visas. Nor does DHS consider it appropriate as a matter of travel
security and immigration policy to waive visa-based grounds of
inadmissibility for those CW nonimmigrants who travel abroad. Thus no
change is made as a result of these comments.
(e) Travel With the CNMI Permit
Eleven commenters suggested that DHS should allow travel and re-
entry on current CNMI permits. The commenters stated that the
grandfather provision \12\ allows the CNMI foreign workers to work and
stay in the CNMI as long as their permits are valid. The previous CNMI
permit system allowed foreign workers to travel outside the CNMI and
return on a valid CNMI entry permit. As such, the commenters argue that
any recognition of the permit should include the ability to leave and
re-enter the CNMI on the CNMI permit. In the alternative, the
commenters request that DHS use parole or a visa waiver to allow travel
on the CNMI permit. Although these comments are not directly relevant
to the final rule, which pertains to the specific CW nonimmigrant
status rather than to ``grandfathered'' aliens, DHS is able to respond
to the comments by providing information about its current policies
with respect to travel on CNMI permits.
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\12\ The CNRA contains two provisions (commonly referred to as
the ``grandfather provisions'') related to the continuation of
presence and work authorization in the CNMI after the transition
effective date. The CNRA requires DHS to recognize valid CNMI
immigration status (and prohibits removal of such aliens for being
present in the CNMI without admission or parole) until the
expiration of such status up to a maximum of two years after the
transition date. 48 U.S.C. 1806(e)(1). The CNRA also requires that
DHS recognize employment authorization until the expiration of such
status up to a maximum of two years after the transition date. 48
U.S.C. 1806(e)(2).
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Consistent with the CNRA, DHS is recognizing valid CNMI immigration
status and work authorization until the expiration of such status up to
a maximum of two years after the transition date. See 48 U.S.C.
1806(e). As previously discussed, additional regulations regarding
treatment of the CNMI work permit with regard to exit and re-entry to
the CNMI are outside the scope of the CW classification and this rule.
The CNRA does not permit travel on the CNMI permit. See 48 U.S.C.
1806(d)(3). Nevertheless, to alleviate concern about the inability to
travel on the CNMI permit, DHS may use its parole authority under the
INA for significant public benefit and/or humanitarian grounds, to
facilitate travel when necessary. See INA sec. 212(d)(5)(A), 8 U.S.C.
1182(d)(5)(A).
[[Page 55521]]
DHS has established two separate parole procedures for CNMI permit
holders to facilitate their travel to the rest of the United States or
abroad. Under the parole procedure for domestic travel, CNMI permit
holders must submit a written parole request (and documentation) to the
USCIS Application Support Center (ASC) in Saipan, before departing the
CNMI.\13\ Approval of the parole request will allow bearers to travel
within the United States and maintain the validity of their CNMI
permits.
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\13\ See USCIS, Update: USCIS Announces Parole Procedures for
Travel within the U.S.A. (Dec. 16, 2009), available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6a71f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=14cb86c5b741f110VgnVCM1000004718190aRCRD.
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Under the parole procedures for foreign travel, CNMI permit holders
must obtain advance parole before departing the CNMI, if they are not
lawful permanent residents or do not have an appropriate U.S. visa.\14\
Advance parole represents permission to seek admission into the United
States, in this instance the CNMI, or be paroled into the CNMI after
traveling outside the United States. Advance parole does not provide
any status within the United States while traveling abroad and may be
revoked at any time. However, advance parole in this context will allow
individuals lawfully living and working in the CNMI during the period
ending November 27, 2011, to continue to do so when they return from
foreign travel, if paroled into the CNMI by CBP. Aliens may request
advance parole by filing an Application for Travel Document (Form I-
131) with fee to the Guam office in accordance with the form
instructions. Aliens with urgent travel plans (within 72 hours) may
make an InfoPass appointment at the Saipan ASC and submit Form I-131
with the necessary supporting documentation in person. Without a grant
of advance parole or other travel documentation that is acceptable
under U.S. immigration law, such aliens may not seek to be admitted
into the CNMI. These parole procedures should alleviate some of the
commenters' concerns about the inability of CNMI permit holders to
travel.
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\14\ See USCIS, Update: USCIS Announces Advance Parole
Procedures for the CNMI (Dec. 16, 2009), available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=44c2f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=14cb86c5b741f110VgnVCM1000004718190aRCRD.
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(f) Work-Related Travel to Guam and the Rest of the United States
Three commenters stated that the rule's travel restriction prevents
them from working in Guam or the U.S. mainland. One of these commenters
stated that the rule had the unintended consequence of also prohibiting
work-related travel to Guam or the U.S. mainland. This commenter
suggested an automatic authorization of the beneficiary's work-related
travel and ability to work in Guam or on the U.S. mainland.
While DHS understands this concern, the CNRA expressly limits the
transitional worker visa to admission to the CNMI only. See 48 U.S.C.
1806(d)(3). The statute provides for the creation of a geographically-
limited nonimmigrant classification and expressly states that such
classification will not be valid for admission to or employment in the
United States, except the Commonwealth. Id. This rule is limited to the
CNMI by the CNRA and it cannot provide more than prescribed by that
law. The purpose of CW classification is to allow CNMI employers to
utilize foreign workers during the transition period. The transition
period also enables employers to make long-range plans as to their
staffing needs and their eligibility under other, unrestricted INA
classifications. Employment of aliens in Guam is governed by the INA
and is not affected by this rule.
(g) Travel to Guam and the Rest of the United States
Two commenters expressed concern that travel and re-entry on the
CNMI permit is not allowed to and from Guam or the U.S. mainland. One
commenter was specifically concerned about the inability to re-enter
the CNMI on the permit or a B1/B2 visa after travel to Guam or the U.S.
mainland. Another commenter requested clarification on whether DHS will
allow long-term alien workers to travel freely to the U.S. mainland for
further education, training, or medical purposes after the transition
period.
While these comments appeared to be specifically directed at travel
with the CNMI permits previously issued by the CNMI government and
valid for CNMI work authorization until November 27, 2011, which is a
subject this final rule does not address, DHS notes that CNMI permit
holders may apply for travel documents using the procedures for
obtaining parole approval as mentioned above. See 8 CFR 223.2. Parole
will allow permit holders to travel within the United States and
maintain the validity of their CNMI permits. CNMI permit holders may no
longer use the Visa Waiver Program (VWP) or a B visa (tourist or
business) for domestic travel. The ``B'' nonimmigrant status is
intended solely for individuals residing outside the United States who
are making a short visit to the United States for business or pleasure
and not for the purpose of employment or study. As the CNMI is now
within the United States for purposes of U.S. immigration law, B status
is inappropriate for anyone residing, working, or studying in the CNMI,
unless that person establishes that he or she has a foreign residence
which he or she has no intention to abandon.
Even if the specific comments focused on current documentation
rather than travel with the new CW nonimmigrant status, the concern
also applies to that travel and DHS has considered it further in light
of the interim final rule's general prohibition on travel in CW status
elsewhere in the United States. DHS has responded in this final rule to
concerns about inability to travel to Guam by providing a specific,
limited exception to the general provision in the interim final rule
(which is retained in the final rule) that a CW alien who travels, or
attempts to travel to another part of the United States will put
himself or herself out of status. See new 8 CFR 214.2(w)(22).
While some foreign workers, particularly those from Japan and South
Korea, may board a direct flight from the CNMI to their countries of
nationality, Philippine nationals, in particular, may not, based on
current flight routes, easily travel to or return from their country of
nationality without transiting through Guam. Their only other options
are to travel through Japan or South Korea. Compared to the short
commuter air flight between Saipan and Guam and the three and one-half
hour nonstop flight from Guam to Manila, an itinerary from Saipan to
Manila through Japan typically would require a three hour and forty-
five minute flight from Saipan to Tokyo, connecting to a five-hour
flight from Tokyo to Manila. Itineraries through Seoul, Korea are no
shorter. Although airline pricing is of course not necessarily directly
reflective of distance, and airline schedules and pricing are subject
to frequent change, as a general matter DHS understands that
foreclosing the option of travel between the CNMI and the Philippines
through Guam in CW status is likely to add significant time and expense
to this travel in many cases. Providing some accommodation for this
need will help ameliorate potential negative effects of the CNRA,
including (but not
[[Page 55522]]
necessarily limited to) economic burden on CW workers and their
families, and some possible reduced appeal of the CW program to
employers and workers otherwise.
Before the transition period, these foreign workers were able to
apply for and be granted visitor visas to transit Guam or, in medical
emergencies, received authorization to travel through Guam. The CNMI is
now part of the United States under the INA and foreign workers
residing in the CNMI can no longer use a nonimmigrant visitor visa to
transit through Guam to a foreign destination, as the ``B'' category
for nonimmigrant visitors for business or pleasure requires that the
alien have a foreign residence.
After careful consideration, DHS has determined to exercise its
authority under section 212(d)(7) and 214(a)(1) of the INA (8 U.S.C.
1182(d)(7) and 1184(a)(1)) to enable aliens who are CW status holders
who are Philippine nationals to maintain their status and depart the
CNMI en route to the Philippines, and return to the CNMI from the
Philippines through Guam, as long as the travel is on a direct Guam
transit itinerary, without violating that status while in Guam or the
CNMI. See new 8 CFR 214.2(w)(22)(iii). Although such travel will not
violate CW status, the availability of such travel is subject to all
other grounds of inadmissibility and inspection at the port of entry. A
direct Guam transit itinerary must be from the CNMI to Guam to a
Philippine port or from a Philippine port to Guam to the CNMI and
involve no more than an 8 hour scheduled flight stopover or connection
between flights in Guam, without leaving the Guam airport. Id. Although
such travel will be subject to all other requirements of admissibility
at a port of entry, it will not violate the conditions of the CW
status. Id.
If arriving from the Philippines, the alien may be paroled upon
arrival in Guam if the immigration officer determines that such parole
is appropriate, including examining whether the alien would be
admissible to the CNMI. Id. Upon a determination by an immigration
officer that a favorable exercise of discretionary parole authority is
warranted, the CW nonimmigrant will be paroled into Guam and be
required to remain at the Guam Airport while awaiting onward travel to
the CNMI. Id. Prior to departure from Guam for the CNMI, an immigration
officer may conduct a preinspection, pursuant to 8 CFR 235.5(a), to
determine admissibility in CW status in the CNMI. Alternatively, the CW
nonimmigrant will depart Guam and proceed for inspection upon arrival
in the CNMI. To the extent that admission is appropriate, the alien
will be admitted into the appropriate CW status as provided for by 8
CFR 235.5(a). It is important to note that the final rule's provision
for direct transit through Guam for Filipinos in CW status does not
waive visa requirements for admission in CW status upon returning from
the Philippines. A CW nonimmigrant will not violate CW status by
transiting Guam in these circumstances, but will need a visa to return
to the CNMI (either directly or through Guam) to resume CW status. Id.
DHS believes these changes address in significant part the commenters'
suggestions to reduce the travel restrictions placed on CW workers.
DHS has limited the travel exception permitting CW aliens to
transit through the Guam airport to nationals of the Philippines--in
addition to the particular reasons of relative travel convenience
discussed above--because focusing on Philippine nationals addresses
what is by far the largest national group of foreign workers in the
CNMI. As described in the DOI Report at 11 Table 1-B, the number of
permits issued by the CNMI to alien workers in 2008 by nationality was:
Philippines, 15,769; China, 4,569; South Korea, 729; Thailand, 574;
Bangladesh, 333; and others, 598. While the pattern of CW application
and issuance likely will not track this pattern exactly, DHS believes
that a substantial majority of likely CW nonimmigrants also will be
nationals of the Philippines. It also has been USCIS's experience to
date during the transition period that the vast majority of
applications for advance parole for travel purposes from aliens in the
CNMI have come from Philippine nationals.
(h) Visa Waiver in Lieu of Visa Requirement
Eight commenters suggested that DHS issue a visa waiver in lieu of
requiring a visa. Seven of these commenters suggested that DHS waive
the visa requirement for guest workers in the same manner in which
nationals of Russia and China were provided with a waiver. Another
suggested that DHS issue a visa waiver for those with a valid reason
for leaving and returning to the CNMI.
DHS does not exercise visa waiver authority to allow admission into
the CNMI without a visa for nationals of the People's Republic of China
(PRC) and the Russian Federation (Russia). Rather, DHS may, in its
discretion on a case by case basis, exercise parole authority to allow
eligible nationals of the PRC and Russia to enter the CNMI temporarily.
See INA sec. 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). This use of parole
authority for short-term visitors is inapplicable to aliens seeking to
be admitted in a nonimmigrant status, such as transitional worker
status. As previously discussed, DHS has considered the potential
applicability of waivers of nonimmigrant visa requirements and use of
parole authority in this context, and the travel security and
immigration policy issues surrounding the decision to provide any such
waivers to aliens in CW status who choose to leave the CNMI and seek to
return. DHS has decided that travel of CW workers must be monitored and
controlled in a more systematic fashion than a program for short-term
visitors. The visa issuance procedures required in this rule provide
the necessary level of documentation and review to address such
concerns. DHS has not made any changes to the final rule as a result of
these comments.
(i) Re-Entry Permit or Parole in Lieu of Visa Requirement
Eight commenters suggested that DHS issue a re-entry permit or
advance parole. Specifically, four commenters suggested that DHS allow
CW status holders, who must depart for emergent reasons, to apply for a
re-entry permit at the Saipan office. One suggested that DHS issue a
visa waiver for any foreign worker who wishes to travel with a CNMI
Entry Permit as long as they notify the Saipan office in advance about
their travel. Another suggested that DHS should allow CW status holders
to travel and re-enter the CNMI upon presentation of the CNMI Entry
Permit, evidence of CW-1/CW-2 status, and evidence that they notified
the USCIS Saipan office of their intention to leave and re-enter the
CNMI. Another two commenters suggested that DHS use its parole
authority to allow workers to enter and exit the Commonwealth during
the term of the CW status.
A re-entry permit is not an appropriate means for CW status holders
to request re-entry after a trip abroad. A re-entry permit is a travel
document issued to lawful permanent residents and conditional residents
to re-enter the U.S. after travel of one year or more abroad. See 8 CFR
223.1(a). With respect to parole, parole of aliens seeking to resume CW
status is legally incompatible with CW status.\15\ Aliens paroled into
the United States are affirmatively authorized to remain in
[[Page 55523]]
the United States, but do not have nonimmigrant status, and remain
applicants for admission. In other words, if DHS paroled a CW alien
into the CNMI, that alien would not be a CW alien. Such parole is not
to be used to circumvent the visa issuance process. All CW
nonimmigrants must have a CW visa to be readmitted in CW status. See
new 8 CFR 214.2(w)(22). This visa will allow them to apply for
admission to resume their CW status and the work authorization incident
to that status. Such a visa requirement at the time of admission is
consistent with current INA requirements. See INA sec. 212(a)(7)(B), 8
U.S.C. 1182(a)(7)(B). DHS has not made any changes to the final rule as
a result of these comments.
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\15\ The INA provides DHS with discretion to parole an
individual into the United States temporarily under certain
conditions for urgent humanitarian reasons or significant public
benefit on a case-by-case basis. INA sec. 212(d)(5)(A), 8 U.S.C.
1182(d)(5)(A).
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(j) Change of Status in Lieu of Visa Requirement
Two commenters suggested that USCIS process a ``change of status''
in the CNMI in order to alleviate concerns regarding the rule's visa
requirement. Commenters suggested that all CNMI guest workers who are
in lawful status and lawfully authorized to work should be able to
apply for a ``change of status'' using a Form that is similar to USCIS
Form I-539.
DHS is aware of the public's concern regarding the burden of
obtaining a visa to re-enter the CNMI. A transitional worker does not
require a CW visa to legally remain and work in the CNMI. As previously
discussed, this final rule clarifies that such status may be granted to
the beneficiary in the CNMI. See new 8 CFR 214.2(w)(14)(ii) and new 8
CFR 214.2(w)(24). If DHS approves the CW petition and the grant of CW
nonimmigrant status, the CW worker will receive an approval notice with
an attached Form I-94, Arrival-Departure Record, which serves as
evidence of lawful immigration status.
However, as with other nonimmigrant statuses under the Act, this
in-country grant of status does not permit the status holder to reenter
after foreign travel. Moreover, while the I-94 is evidence of lawful
immigration status, Federal law requires that a nonimmigrant return the
I-94 departure record to U.S. officials upon exiting the United States.
Therefore, if the CW worker wants to travel abroad, he or she will not
have evidence of the status and will need to obtain a CW visa at a U.S.
Embassy or consulate abroad in order to apply for re-admission and
receive a new I-94. As with other INA categories, a CW nonimmigrant
will need a visa to be admitted to the CNMI upon return from foreign
travel. See new 8 CFR 214.2(w)(22). The CNRA does not provide for
return travel without such a visa. See 48 U.S.C. 1806(d)(3).
(k) Visa Issuance
Four commenters expressed concern regarding visa issuance abroad
and offered suggestions regarding alternative procedures for such
issuance. Specifically, two commenters suggested that DHS issue the
visa in the United States through an agency to be set-up by DHS.
Another suggested that a multiple entry CW visa should be made
available within the CNMI to individuals who qualify for CW status.
This commenter argued that it is contrary to stated intent of the CNRA
for DHS to require CW-1 nonimmigrants to undergo the Federal visa
process in a foreign country in order to return to the CNMI.
Alternatively, the commenter suggested that an expedited process be
established at foreign consular offices for transitional worker
nonimmigrants to obtain multiple-entry visas. Another commenter
requested clarification regarding whether a CW visa can be obtained
within the CNMI and on the effect of such a visa refusal.
Visa issuance is a function of DOS. Thus any changes in visa
issuance policies are beyond the scope of this DHS rule. However, DHS
has been informed that DOS plans to issue multiple-entry CW visas,
which should ease some of the commenters' concerns.
7. Reconsideration of Denied Petitions
Two commenters opposed the rule because it does not contain a fact
dispute resolution mechanism. These commenters stated that while
employers and employees may appeal denials as to the issuance of
permits to the USCIS Administrative Appeals Office, the process is
notoriously slow, bureaucratic, and expensive. The commenters also
stated that appeals at higher levels are equally inaccessible for
foreign workers of modest means. The commenters suggested that foreign
workers have no way to pursue claims with respect to unpaid wages and
overtime or other violations of the terms and conditions of employment
other than bringing a contract action in court.
First, DHS notes that this rule includes an administrative appeal
process which is consistent with other nonimmigrant classifications
under the INA. The rule provides that the decision to grant or deny a
petition for CW-1 status may be appealed to the USCIS Administrative
Appeals Office, but denial of an application for change or extension of
status filed under this section may not be appealed. See new 8 CFR
214.2(w)(21). The USCIS denial of a CW petition is not reviewable in
removal proceedings before the Executive Office for Immigration Review.
Consistent with Federal immigration law, this rule provides no appeal
or conflict resolution procedure for the beneficiary of a visa
petition, in this case, the alien worker. See 8 CFR
103.3(a)(1)(iii)(B), 8 CFR 1103.3(a)(1)(iii)(B). The CNRA requires DHS
to ``establish, administer, and enforce a system for * * * permits to
be issued to prospective employers'' not employees. See 48 U.S.C.
1806(d)(2). Thus the right to petition for a CW worker rests with
employers in need of workers, and it is the employer who has standing
to appeal the denial. Further, intended beneficiaries have no appeal
rights. See 8 CFR 103.3(a)(1)(iii)(B) (affected party does not include
the beneficiary of a visa petition). DHS believes that this appeal
process adequately addresses the needs of the CW program, complies with
the CNRA, and no alternative procedure is necessary. Thus no changes
are made to the final rule as a result of these comments.
8. Change or Adjustment of Status
One commenter requested clarification on a CW holder's ability to
change status into another INA classification such as an H
classification. DHS notes that, during the transition period, CW
workers will be able to change or adjust to another immigration status
under the INA if eligible. See new 8 CFR 214.2(w)(18).
9. Period of Admission and Extension of Stay
Three commenters expressed concerns or offered suggestions
regarding the period of admission and extension of stay for
transitional workers. One commenter suggested that transitional worker
status be valid for either one or two years.
CW status cannot be issued in two-year increments because the CNRA
requires an annual reduction in the number of transitional workers. See
48 U.S.C. 1806(d)(2). DHS will issue CW status in one-year increments
in order to properly administer the allocation and annual reduction
mandated by the CNRA. See new 8 CFR 214.2(w)(16).
Two additional commenters stated that the rule allows employers to
extend their contracts with foreign workers for the entire transition
period. According to the commenters, this fact will exclude U.S.
workers from jobs for five years. DHS disagrees with the commenters.
While an employer may request extensions for foreign workers it
currently employs, the employer must justify a continued need for the
workers
[[Page 55524]]
and verify that the requirements of the regulations have been met. See
new 8 CFR 214.2(w)(17). In addition, the reduction in the number of
allocated worker permits as required under the CNRA will ensure that
U.S. citizens and lawful permanent residents have access to job
opportunities in the CNMI. No changes have been made to the final rule
as a result of these comments.
10. Transition Period
Eleven commenters expressed concern or offered suggestions
regarding the rule's transition period.
(a) During the Transition Period
Five commenters stated that there is a continued need for foreign
workers to fill the jobs that the locals will not take. They contend
that, as a result, the transitional worker classification will need to
be in effect beyond the transition period. One of these commenters
suggested that the transition period be extended beyond 2014 as long as
employers are willing to renew the employment.
The CNRA authorizes DHS to create a nonimmigrant classification to
ensure adequate employment in the Commonwealth during the transition
period. See 48 U.S.C. 1806(d)(2). As such, the transitional worker
classification is a temporary classification, available only during the
transition period, to provide a foreign national worker with a lawful
nonimmigrant status. Id. During the transition period, workers should
seek to obtain skills, professional licenses, or educational degrees
necessary to qualify for other employment-based status under the INA.
The CNRA does not allow DHS to extend CW status beyond the transition
period. See 48 U.S.C. 1806(d)(2). Thus, DHS is unable to adopt the
suggestion to extend the transition period beyond 2014. The CW
classification provision of the transition period may only be extended
by the Secretary of the U.S. Department of Labor upon a determination
that current and anticipated labor needs justify extending the
transitional worker program to ensure adequate employment in the CNMI.
See 48 U.S.C. 1806(d)(5). DHS has added additional language to the
definition of ``transition period'' to further confirm that if the U.S.
Secretary of Labor extends the transitional worker program, references
to transition period in the final rule will include the length of any
such extension. See new 8 CFR 214.2(w)(1)(xi).
(b) Post-Transition Period
Five commenters requested clarification on how transitional workers
could transition out of CW status if ineligible for an INA-based
status. One commenter suggested that transitional workers with U.S.
citizen children should be provided additional immigration options when
the transition period expires in order to ensure family unity. Another
commenter suggested that DHS implement a post-transition mechanism to
bring new replacement workers as market conditions change.
In order to position themselves to transition out of CW status if
ineligible for another INA status, workers should use the transition
period to satisfy requirements, such as any necessary professional
licenses or educational degrees, in order to obtain other employment-
based status under the INA. The CNRA does not provide for a mechanism
to offer any other immigration relief once the transition period
expires. See 48 U.S.C. 1806(d)(2)(5).
An additional commenter suggested that the transitional worker
classification should terminate when the CNMI labor permit expires.
This rule provides for transitional worker visas for foreign workers in
the CNMI for the entire transition period. See new 8 CFR 214.2(w)(23).
That period is not relevant to the expiration of CNMI labor permits.
When the transition period ends, such workers need to obtain another
INA status to legally remain in the CNMI or they will be subject to
removal. Id. No changes have been made to the regulation as a result of
these comments.
V. Other Changes
The final rule modifies the interim final rule's reference to
appeals of denials of CW-1 petitions. See new 8 CFR 214.2(w)(21).
Rather than refer solely to the ``USCIS Administrative Appeals Office''
(AAO), the provision now refers to the AAO ``or any successor body.''
This change is not substantive, but provides flexibility in case of a
future USCIS administrative reorganization or the renaming of an office
with respect to administrative appeals. DHS has found that overly
specific references to particular officials or offices in regulations
can lead either to unnecessary future conforming rulemakings, or
obsolete regulations, if and when names and responsibilities are
reorganized or otherwise modified.
VI. Regulatory Analyses
A. Executive Order 12866 and Executive Order 13563
This rulemaking is not considered ``economically significant''
under Executive Order 12866, as supplemented by Executive Order 13563,
because it will not result in an annual effect on the economy of $100
million or more in any one year. However, because this rule raises
novel policy issues, it is considered significant and has been reviewed
by the Office of Management and Budget (OMB) under this Order. A
summary of the economic impacts of this rule are presented below. For
further details regarding this analysis, please refer to the complete
Regulatory Assessment and Final Regulatory Flexibility Analysis that
has been placed in the public docket for this rulemaking.
1. Public Comments Received on the Interim Final Rule That Address the
Regulatory Assessment
DHS invited the public to comment on any potential economic impacts
of this rule and the data and methodologies employed in conducting the
Regulatory Assessment. We received approximately 25 comments on the
Regulatory Assessment. These comments are addressed below.
One commenter stated that the interim final rule is deficient
because DHS failed to conduct an economic impact analysis of the
regulation as required by Executive Order 12866 and the Regulatory
Flexibility Act of 1980.
DHS prepared a regulatory assessment in support of the interim
final rule, titled ``Regulatory Assessment for the Interim Final Rule:
Commonwealth of the Northern Mariana Islands (CNMI) Transitional Worker
Classification,'' prepared by Industrial Economics, Incorporated, and
dated May 22, 2009. The regulatory assessment was summarized in the
preamble to the interim final rule and made available for public
comment. Chapter 6 of that report provided all the information required
for an Initial Regulatory Flexibility Analysis (IRFA) under the
Regulatory Flexibility Act of 1980 (RFA). The analysis has been updated
based on new information received during the public comment period, and
DHS has prepared a Final Regulatory Flexibility Analysis (FRFA) per the
RFA. The complete updated report and FRFA are part of the
administrative record for this final rule and can be found in the
public docket for this rulemaking.
One commenter stated that by failing to define a specific plan for
allocating
[[Page 55525]]
permits among employers and reducing the overall number of permits to
zero by the end of the transition period, DHS imposes additional
burdens and uncertainty on the CNMI. Current employers, and existing
and new investors, have no guarantees with respect to how their
businesses will be treated by Federal officials or whether certain
industries will be favored over others.
DHS agrees that costs associated with regulatory uncertainty may
occur. However, estimation of these costs in the Regulatory Assessment
is not possible at this time. Several factors prevent any estimation of
economy-wide impacts resulting from this rule, including: (1) The
highly uncertain future demand for foreign workers given the demise of
the garment industry, newly imposed minimum wage requirements, and
challenges faced by the tourism industry and (2) the fact that economic
data and models with which to estimate impacts to the broader economy
are largely absent or difficult to develop given the general lack of
CNMI economic and production data and the changing conditions of the
CNMI economy. Furthermore, DHS believes that maintaining flexibility
with respect to the allocation system allows the Department to respond
more quickly to changing economic conditions and demand for labor in
the CNMI.
One commenter stated that DHS cannot justify its refusal to
estimate the broader economic impacts of the rule based on its refusal
to develop a schedule for allocating and reducing the number of grants
of CW status. By giving the Secretary discretion each year to set the
number of available grants of status for the next year, the commenter
stated that DHS can avoid forever any economic impact analysis.
While the absence of a defined schedule prohibits the assessment of
economic impacts, it is not the only factor preventing such analysis.
Decisions by the U.S. Department of Labor (U.S. DOL) regarding whether
to extend the CW classification, when combined with decisions by DHS,
could significantly affect the number of grants of CW status available
during the transition period. The economic analysis cannot predict the
timing or outcome of U.S. DOL's decisions. As stated previously,
economic analysis is further hampered by significant uncertainty
regarding future demand for foreign workers and economic data and
models with which to estimate impacts to the broader economy are
largely absent or difficult to develop given the general lack of CNMI
economic and production data and the changing conditions of the CNMI
economy.
One commenter stated that DHS did not make enough use of a report
issued by the U.S. Government Accountability Office (GAO) titled,
``Commonwealth of the Northern Mariana Islands: Managing Potential
Economic Impact of Applying U.S. Immigration Law Requires Coordinated
Federal Decisions and Additional Data'' (GAO-08-791, August 2008). In
this report, GAO illustrates the potential effects of changes in the
availability of foreign labor on the gross domestic product (GDP) of
the CNMI. Its model relies on a study published in 2005 that found,
under certain assumptions, that a 10 percent reduction in the number of
all workers might be expected to cause a 7 percent decline in GDP. The
commenter stated that DHS refused to recognize this fundamental
economic rule and made no more than a passing reference to GAO's study.
DHS disagrees with the commenter. Both the May 2009 Regulatory
Assessment and the Regulatory Assessment for this final rule provide a
detailed summary and discussion of GAO's analysis (see Appendix A of
both reports). In its report, GAO also states that its simulations of
the impact of reduced workforce on GDP are intended to illustrate a
range of potential impacts. The simulations do not account for other
changes in the CNMI over the coming years, and, therefore, should not
be considered predictive of future Gross Domestic Product (GDP). GAO
stresses that, without knowing the future demand for foreign workers,
the impact of joint DHS and U.S. DOL decisions regarding the size of
the transitional workforce cannot be predicted.\16\
---------------------------------------------------------------------------
\16\See GAO, Commonwealth of the Northern Mariana Islands:
Managing Economic Impact of Applying U.S. Immigration Law Requires
Coordinated Federal Decisions and Additional Data, No. GAO-08-791
(August 2008) at pp. 36-40, available at http://www.gao.gov/new.items/d08791.pdf.
---------------------------------------------------------------------------
Two commenters noted that, in the development of the interim final
rule, DHS failed to consider the report titled ``Economic Impact of
Federal Laws on the Commonwealth of the Northern Mariana Islands.''
\17\ Specifically, the commenters stated that this report provides the
best possible prediction of future economic conditions in the CNMI as
well as the economic impact of reducing the foreign worker population.
---------------------------------------------------------------------------
\17\See McPhee, Malcolm and Richard Conway, Economic Impact of
Federal Laws on the Commonwealth of the Northern Mariana Islands,
study funded by the U.S. Department of the Interior (October 2008)
available at http://www.doi.gov/oia/reports/reportsCNMI/EconomicImpact_Oct2008.pdf.
---------------------------------------------------------------------------
DHS has carefully reviewed this report, but is unable to use any
information from the report in the Regulatory Assessment for this final
rule (see Appendix B of the Regulatory Assessment for a detailed
discussion of the report's data, methodology, and conclusions). The
report appears to be oriented primarily towards members of Congress,
who have the ability to amend minimum wage and immigration laws.
However, several limitations of this report prevent us from
incorporating the results into the Regulatory Assessment.
When preparing benefit-cost analyses of proposed regulations,
Federal agencies must measure the impact of each regulatory alternative
against a baseline, defined as ``the best assessment of the way the
world would look absent the proposed action'' (see OMB Circular A-4,
2003, p. 15). In this case, the action under consideration is the
replacement of the CNMI work permit system with a Federal system that
includes the granting of CW status and the issuance of INA visas. The
impacts of this action should be measured relative to a scenario that
projects the likely demand for foreign workers, given the pre-existing
demise of the garment industry, the struggles of the tourism industry
(visitor arrivals have generally decreased since 2004 and are roughly
45 percent of their peak in 1996), and the imposition of the minimum
wage. The baseline demand for foreign workers in the CNMI is impossible
to predict given all the other factors affecting the island economy.
The GAO report (GAO-08-791, August 2008) highlights the importance
of comparing the impacts of the regulation to an accurate baseline
scenario. The report states ``* * * continuing declines in the garment
industry, challenges to the tourism industry, and the scheduled
increases in the minimum wage may reduce the demand for foreign
workers, lessening any potential adverse impact of the legislation on
the economy'' (pp. 24-25). For example, if the baseline demand for
foreign workers does not exceed the number of available grants of CW
status, the impact of the rule will be zero or negligible. If demand is
higher than the number of available grants of CW status, cost would be
positive, but the magnitude will depend on the size of the gap between
worker demand and availability.
McPhee et al. (2008) do not provide new or improved information
regarding the likely future demand for foreign workers. Rather, the two
scenarios modeled by the authors should be
[[Page 55526]]
viewed as demonstrating the sensitivity of the economy to the number of
foreign workers employed without comment on likely future demand for
these workers. In the scenario where CNMI employers have access to as
many foreign workers as needed, the authors assume demand is driven by
the doubling of the number of CNMI visitors by 2015. This increase in
tourism is an assumption, rather than a prediction based on existing
data.
The authors' alternative scenario designed to demonstrate the
effect of Federal actions in the CNMI implicitly assumes that the only
restriction on the future growth of the visitor industry is the amount
of available foreign labor, without consideration of the other economic
events influencing the growth of this sector. This scenario also
combines the effects of Federal oversight of immigration and
implementation of the Federal minimum wage, adding to the difficulty of
isolating the effect of just this immigration rule.
As a result of these limitations, we cannot incorporate the results
of McPhee et al. (2008) directly into our regulatory assessment. The
assertion that the CNRA will preclude any meaningful recovery by the
CNMI, as argued by the authors, is also difficult to confirm without
better information about the feasibility of expansion of the tourist or
other, new industries on the islands. Repealing the law, the solution
recommended by McPhee et al., is beyond the scope of DHS authority.
In the interim final rule and the supporting Regulatory Assessment,
DHS argued that the economic models and data necessary to estimate the
impacts of the rule are not available. Two commenters asserted that
this statement is incorrect and reference McPhee et al. (2008) as
providing the necessary information.
As noted previously, the results of McPhee et al. (2008) cannot be
incorporated directly into the Regulatory Assessment for this final
rule. The major limitations of the study are that it does not provide
new information or data allowing for predictions of the likely future
demand for foreign workers in the CNMI and it includes the potential
impacts of events well outside the scope of this rulemaking (minimum
wage increases). The potential for and magnitude of adverse impacts
resulting from this final rule are highly sensitive to future demand
for foreign workers. Furthermore, even if the use or development of
other economic models were feasible, the problem of defining future
baseline demand would not be resolved.
In addition, assuming that the likely baseline demand for foreign
workers could be projected, this final rule presents unique challenges
with regard to defining the types of costs that should be assessed and
choosing the appropriate tools for the assessment. OMB's Circular A-4
directs Federal agencies to estimate the costs of a regulation to
society in terms of the ``opportunity costs.'' Generally, opportunity
costs are measured as changes in producer and consumer surpluses. In
addition, best practices suggest that where the distributional effects
are significant, they should also be discussed. Distributional effects
might be measured in terms of changes in production (e.g., GDP),
expenditures, or employment. In the Regulatory Assessment for this
final rule, we attempt to report both net costs to society as a whole,
as well as the disproportionate effects on the CNMI economy and discuss
limitations preventing us from quantifying such costs.
Where a regulation has the potential to affect a large number of
sectors, computable general equilibrium models are employed to capture
the interactions among markets, measured as changes in surpluses, GDP,
or employment. No such computable general equilibrium model of the CNMI
economy exists and the data used to construct such models are
incomplete for the CNMI. For example, GAO (GAO-08-791, August 2008) was
unable to identify recent estimates of CNMI's GDP for use in its
simulations (p. 84). U.S. DOL notes, ``CNMI does not yet have in place
macroeconomic data collection and accounting systems technology capable
of generating information on total output and its components on a
monthly or quarterly basis. As a result, there is no way to provide
objective measures of productive capacity, capacity utilization,
employment, wages or unemployment rates * * * Among the factors that
make * * * data gathering and analysis work challenging is that the
CNMI * * * is not included in the U.S. Census Bureau's American
Community Survey (ACS) or other surveys that generate current detailed
data on the 50 states and most areas of populations of 65,000 or more.
Nor is the CNMI included in surveys that generate current data on
industries, production and household income and expenditures.'' (U.S.
DOL, Impact of Increased Minimum Wages on the Economies of American
Samoa and the Commonwealth of the Northern Mariana Islands, prepared by
the Office of the Assistant Secretary for Policy 35-36 (January 2008)).
In their report, McPhee et al. present numerous tables of data on
employment, population, visitors, wages and salaries, personal income,
GDP, business gross revenue, general fund revenue, bank loans,
residential telephone lines, auto sales, and residential building
permits for a variety of time periods and intervals depending on the
data type. Additional tables of economic data are provided in Appendix
A of the McPhee et al. report. The report text suggests that the
authors compared the multiplier relationships derived from the 1995
input-output table to economic data collected from surveys or other
sources to verify the stability of the multipliers through time.
However, we are unclear about the methods and data used to conduct
these checks, in part because none of the tables presented in the
report include source information. We had difficulty discerning which
presentations of historical information are based on actual data
collected by government sources in the relevant year, versus
information calculated or derived by the authors using population or
general employment information and their 1995 input-output tables.
A separate letter from the co-author of the report to the CNMI
government responds to concerns DHS expressed about the quality of the
data used in the McPhee et al. report (this letter was included as
Appendix B of the comment submitted by the CNMI Office of the Governor,
``Comments on the Interim Final Rule entitled `Commonwealth of the
Northern Mariana Islands Transitional Worker Classification,' '' DHS
Docket No. USCIS-2008-0038-0091, November 17, 2009). This letter
clarifies that ``most of the data used in the study are shown in
Appendix A of the [McPhee et al.] report. To the extent possible, the
information was drawn from published sources. For example, estimates of
Gross Domestic Product and personal income came from the CNMI income
and products accounts (Marc Rubin, ``Annual Nominal and Constant Dollar
Estimates of Gross Domestic Product in the Commonwealth of the Northern
Mariana Islands, 2000-2005,'' 2007). Other major sources of information
included the population census (U.S. Bureau of the Census), the
household survey (U.S. Bureau of the Census), the economic census (U.S.
Bureau of the Census), economic indicators (CNMI Department of
Commerce), W-2 returns and wages (CNMI Department of Finance), and
government employment (CNMI Department of Finance)'' (p. 1).
[[Page 55527]]
Regarding employment data, the letter states, ``[t]here was no
single publication that produced the required employment data.
Consequently, I had to make employment estimates [for four categories--
apparel, hotels, other industries, and government] by reconciling
information from five different sources: the economic census, W-2
reports, the census of population and housing, the household, income,
and expenditures survey, and various industry and government
tabulations'' (p. 2). Other variables, such as population, are
extrapolated for years where no data are available.
From this comment, it appears that certain conclusions in the
report regarding the size and composition of the CNMI economy between
2004 and 2007 are based on estimates derived from the input-output
model rather than retrospective data collected through surveys or other
means. The authors state that their results for this period are roughly
consistent with data published through the second quarter of 2008 by
the CNMI Department of Commerce. Those data include W-2 returns,
business gross revenue, general fund revenue, imports, bank loans,
residential telephone lines, and auto sales. Thus, we conclude that
this co-author of the McPhee et al. (2008) report encountered data
limitations similar to those described by GAO and U.S. DOL and attempts
to overcome them by combining limited available data with the
multipliers developed in 1995. Given this conclusion, and in
combination with the problem of forecasting baseline demand, and the
problem with the study including impacts from events outside the scope
of this rule (the increase in minimum wage), we did not attempt to
recreate the model developed in McPhee et al.
One commenter stated that in its proposed regulation addressing
foreign investor visas in the CNMI, DHS favorably cited a 1999 study by
the Northern Marianas College that applies the same input-output model
used as the basis for the work by McPhee et al. (2008).
Comments regarding other DHS rules, such as the Notice of Proposed
Rulemaking for the E-2 Nonimmigrant Status for Aliens in the
Commonwealth of the Northern Mariana Islands with Long-term Investor
Status, are outside the scope of this rulemaking. However, it is
important to note that the E-2 rule cited historical information
provided in the Northern Marianas College study regarding the economic
expansion that occurred between 1980 and 1995. We have no reason to
believe that the historical information is inaccurate. Of concern for
this final rule is whether the model, which relies on information
collected in 1995, is descriptive of the future CNMI economy, and
whether data exist for making predictions about the impact of the rule
on the future economy. As noted in a previous response, McPhee et al.
provide no new evidence regarding the probable future demand for
foreign workers. Their analysis demonstrates the sensitivity of the
CNMI economy to the size of its labor force, assuming certain 1995
conditions still stand, without consideration of other factors
encouraging or discouraging economic growth and the need for foreign
labor.
One commenter argued that several statements and tables in the
section of the preamble of the interim final rule summarizing the
results of the Regulatory Assessment were incorrect because DHS did not
factor in the issuance of CNMI's umbrella permits. Specifically, (1)
The size of the cap in 2009 is no longer relevant because foreign
workers with umbrella permits will be able to stay in the CNMI without
CW status until November 28, 2011, (2) efforts to bring out-of-status
workers into compliance with CNMI law prior to November 28, 2009, are
incorrectly described, and (3) businesses are unlikely to experience
cost savings under the Federal program in 2009 and 2010 because most
have already paid CNMI fees for 2-year CNMI-approved employment
contracts.
DHS agrees and has revised the Regulatory Assessment to reflect
that employers and employees will start applying for status in 2011 in
anticipation of the expiration of their umbrella permits on November
27, 2011. The size of the cap in 2009 and assumed costs of efforts to
achieve legal status for out-of-status workers prior to November 28,
2009, are no longer relevant to our economic analysis. The final part
of this comment seems to reflect a misunderstanding of our comparison
of each regulatory alternative to a baseline scenario, defined as the
way the world would look absent the regulation. Absent the CNRA, CNMI
employers would pay to renew CNMI work permits each year. In the
Regulatory Assessment, DHS analyzes the economic impact of employers
not having to obtain any new permits or status for workers in 2010 as a
result of the umbrella permits and the costs of obtaining CW status in
2011 in anticipation of the expiration of the umbrella permits.
Businesses would experience cost savings relative to the baseline in
2010 because no costs are incurred under the final rule. These cost
savings are estimated to be $5.2 million. The costs of obtaining CW
status or INA visas for in-status workers in 2011, net of fees that
would have been paid to obtain CNMI work permits, is $3.2 million. Over
the 2-year period, the net savings is $2.0 million. We note in the
analysis, however, that to the extent employers took the unusual step
of paying 2 years of CNMI work permit fees in 2009, some of these cost
savings may not be realized. We think this circumstance is unlikely in
most cases because reported revenues for the CNMI Department of Labor
(CNMI DOL) in 2009 ($5.4 million) are less than we would have
anticipated in that year ($5.6 million including domestic household
workers) absent implementation of the CNRA.
Two commenters stated that the interim final rule and supporting
Regulatory Assessment do not take into account more recent data
regarding the number of foreign workers in the CNMI provided by the
CNMI government to DHS in 2009. These data were provided by Governor
Fitial as a follow-up to his July 18, 2008, letter.
Regrettably, DHS has no record of such follow-up information
provided by Governor Fitial or the government of the CNMI. However, the
final rule and Regulatory Assessment incorporated the results of a
count of foreign workers in the CNMI conducted by the DOI in December
2009 (U.S. Department of the Interior, The Secretary of the Interior, A
Report on the Alien Worker Population in the Commonwealth of the
Northern Mariana Islands, Washington, DC, March 2010; referred to as
the DOI 2010 Report to Congress).
One commenter stated that the CNMI Department of Commerce Report on
the 2005 CNMI Household, Income, and Expenditures Survey (HIES) from
April 2008, a source for some of the data for the economic analysis
accompanying the final regulation, is incomplete and out-of-date. The
commenter believed that DHS should rely instead on the 2002 and 2007
economic census of business reports.
DHS partially agrees. Our economic analysis relies on both the 2005
HIES and the U.S. Census Bureau's 2007 economic census of the CNMI
(released in 2009), and we supplemented these sources with newer data
provided in the DOI 2010 Report to Congress. We rely on the U.S. Census
Bureau's report for the number and size distribution of business
establishments on the CNMI. The DOI report provides the most current
counts of in-status and out-of-status workers in the CNMI. The DOI
report also provides information about each worker's occupation, but
not in sufficient detail to identify workers
[[Page 55528]]
employed in private households or managerial or specialty occupations.
This detail is necessary for determining the number of foreign workers
eligible for CW status or visas currently available under the INA, and
the 2005 HIES provides the most recent available data to make that
determination. DHS notes that the economic consultants hired by the
CNMI government (Malcolm D. McPhee & Associates and Dick Conway) also
cite the 2005 HIES in their analysis completed in 2008.
One commenter stated that the DHS prediction that 2,090 foreign
workers will be eligible for traditional INA visa classifications is
incorrect. This comment stated that random samples analyzed by the CNMI
DOL suggest only 300 workers will be eligible.
In the Regulatory Assessment for this final rule, DHS estimates
that approximately 1,909 foreign workers will be eligible for
traditional INA visas. This estimate is based on an extensive effort to
``crosswalk'' CNMI's work permit categories with comparable INA visa
categories (the details of which can be found in Chapter 4 and Appendix
C of the 2010 Regulatory Assessment, available in the docket for this
rulemaking). The reduction from 2,090 to 1,909 results from the overall
decrease in the foreign worker population documented in the DOI 2010
Report to Congress. DHS continues to use a higher estimate for three
reasons.
First, the documented number of CNMI government employees,
religious workers, and diplomatic and consular staff who will be
eligible for an existing classification under the INA is 236 workers,
close to the estimate provided by the commenter even before adding in
eligible skilled and managerial workers in the private sector.
Therefore, we believe the estimate of 300 is too low.
Second, a review of the worker occupations reported in the DOI
count suggests that at least 1,540 workers may be eligible. This review
is imprecise. While we are able to easily identify diplomats, doctors,
dentists, pharmacists, or other highly specialized occupations, we
cannot determine whether some individuals in other job categories hold
eligible managerial positions (e.g., 288 individuals report their
occupations as ``supervisor''). Therefore, while our assessment of the
DOI data gives us confidence that an estimate of 300 eligible
individuals is too low, we continue to rely on our crosswalk and
information from the 2005 HIES that specifically identifies the number
of foreign workers employed in ``managerial and professional
specialty'' positions.
Finally, the commenter did not provide any supporting data or
documentation describing the CNMI DOL sampling procedure or methods for
evaluating INA visa eligibility. Thus, we are unable to determine
whether the sample is representative of the foreign worker population
or their understanding of the criteria for eligibility is consistent
with INA regulations.
One commenter stated that DHS has no statutory basis for making
household or other workers ineligible for CW status. Furthermore, the
commenter stated that the number of household workers estimated by DHS
(950) is incorrect.
As previously mentioned, the CNRA authorizes DHS to set conditions
for the admission of transitional workers. See 48 U.S.C. 1806(d)(3).
The CNRA also mandates that such provisions must address the needs of
legitimate businesses. See 48 U.S.C. 1806(d)(5)(A). As such, this rule
does not include a blanket exclusion of any specific occupational
category from the CW status. The rule only requires that beneficiaries
be petitioned by a legitimate business which produces services or
goods. DHS believes that the rule's provision regarding legitimate
businesses is entirely lawful and appropriate.
The commenter provided no information correcting the estimate of
950 household workers, nor did the commenter explain if the figure is
over- or understated. The DOI 2010 Report to Congress identifies the
number of foreign workers employed as ``houseworkers'' (1,415 holding
706D, 706K, and 706P CNMI work permits); however, the report does not
differentiate between workers employed by legitimate businesses, like
hotels or maid service companies, and private households. Therefore,
DHS relies on the best, publicly-available data provided by the CNMI
DOL in its 2005 HIES.
Two commenters stated that our estimate of approximately 2,100
spouses and dependent children of foreign workers is too high because
it includes other categories of non-working foreign residents (e.g.,
immediate relatives of U.S. citizens, alien investors, alien business
permit holders, alien retirees, alien students, and alien diplomats).
Unfortunately, the commenter did not provide better data. However,
we were able to revise this estimate to 1,557 based on the number of
respondents in the DOI 2010 Report to Congress who currently hold 706E
permits.
The Regulatory Assessment for the interim final rule estimated
compliance costs occurring between May 2008 and December 2009 as
employers obtain CW work permits for out-of-status foreign workers. One
commenter stated that no direct costs were incurred during this period
because the rule had not gone into effect, and employers who are found
to employ out-of-status workers are barred from employing foreign
workers in the future.
The costs during that time period (May 2008 and December 2009)
reflect actions DHS assumed the regulated community would take in
anticipation of the rule. Specifically, we assumed employers would
incur costs to obtain CNMI work permits for out-of-status workers to
ensure those employees would be eligible for CW status after November
28, 2009. However, based on CNMI's issuance of umbrella permits and
efforts to deport out-of-status workers prior to November 28, 2009, and
the fact that employers have a disincentive to making the CNMI DOL
aware of their out-of-status workers, DHS agrees with the commenter
that this assumption is no longer valid. These costs have been removed
from the Regulatory Assessment for this final rule.
One commenter stated that the number of out-of-status foreign
workers is now 650, which is lower than the 1,000 estimated in the
report.
The Regulatory Assessment for this final rule incorporates a newer
estimate of 183 out-of-status foreign workers obtained from the DOI
2010 Report to Congress.
One commenter disagreed with the DHS statement that one benefit of
the rule will be to protect foreign workers from abuses such as human
trafficking and other illicit activity.
The CNRA's stated purposes include ensuring effective border
control and addressing national security and homeland security
concerns, as well as protecting workers from the potential for abuse
and exploitation. Section 701(a) of the CNRA. There is evidence that
directly-employed workers have been subject to widespread abuse and
have been victims of human trafficking. See, e.g., Senate Hearing 110-
50, Conditions in the Commonwealth of the Northern Mariana Islands
(Feb. 8, 2007) (testimony of Lauri Bennett Ogumoro and Sister Mary
Stella Mangona). DHS believes that the CNRA transitional worker
provisions were intended to address the needs of legitimate businesses
and to combat such abuses. As such, this final rule limits eligibility
to petition for a CW worker to a legitimate business that is an
operating or commercial undertaking that produces services or goods for
profit
[[Page 55529]]
and meets applicable legal requirements for doing business in the CNMI.
DHS believes that this provision regarding legitimate businesses will
combat such abuse by providing workers protection from such direct
employment.
In the preamble to the interim final rule, DHS stated that it can
more cost-effectively administer the immigration program while also
providing improved security benefits. One commenter responded that this
statement is untrue, arguing that the CNMI system provides better
security because, unlike the United States, it collects exit
information on a timely basis. The commenter also stated that the U.S.
system is not more cost-effective because it does not consider the
negative economic impacts of limiting access to foreign workers.
DHS disagrees with the commenter. This final rule contains
provisions to ensure that the admission of nonimmigrants to the CNMI is
consistent with existing Federal laws and practices that are intended
to secure and control the borders of the United States and its
territories. The DHS statement on cost-effectiveness refers only to a
comparison of the fees paid to the CNMI government to permit foreign
workers (old system) relative to fees paid to the U.S. government under
the final rule (new system) for the same workers. Because employers may
include more than one worker on a single petition, total present value
fees paid by employers to the U.S. government under the preferred
alternative are less than they would have paid to the CNMI government
over the time period of this analysis.
One commenter stated that the current population of the CNMI is
52,000, rather than 66,000 as specified in the section examining
economic impacts to small entities.
DHS appreciates this new information and has used it in the section
examining economic impacts to small entities (see Final Regulatory
Flexibility Analysis below). We note, however, that this new
information does not change our conclusion that the CNMI does not meet
the definition of a small government under the Regulatory Flexibility
Act.
One commenter stated that the assertion in the section examining
economic impacts to small entities that data on non-profit
organizations do not exist is incorrect, arguing that the CNMI
maintains information on the number of such organizations with
employees.
Regrettably, the commenter did not provide a reference or citation
for such information. DHS has clarified in the Final Regulatory
Flexibility Analysis that our source for the business size data that we
rely on for our estimate of the number of small businesses in the CNMI
does not explicitly break out non-profit organizations.
One commenter stated that the DHS calculation of the incremental
direct costs of the interim final rule is based on faulty assumptions
and reaches flawed and useless conclusions. The commenter argued the
following: first, assuming that the number of available grants of CW
status will remain constant through the time frame for the analysis is
incorrect because DHS is required to reduce the number annually.
Second, the number of individuals requesting status in 2009 is
incorrect because the number of foreign workers in the CNMI has
declined since the development of the Regulatory Assessment. Third,
assuming the number of jobs currently held by foreign workers
represents the future demand for such workers is incorrect because the
CNMI is currently in a serious economic depression (in past years, the
number of foreign workers has been much higher). Finally, the
assumption that there are 1,000 out-of-status workers is incorrect
because the CNMI DOL estimates that the figure had fallen to 600 as of
August 2008.
This comment refers to the DHS estimate of the incremental
administrative costs of the rule. Incremental costs are the difference
between the cost of obtaining a CNMI work permit under the former legal
system and the cost of obtaining CW status or an INA visa after the
regulation takes effect. Our assumption that the maximum number of
grants of CW status is available was intended to estimate the maximum
potential administrative costs resulting from the rule. As the analysis
reveals, the final rule is anticipated to result in cost savings
because employers may name more than one employee on a petition;
conversely, separate petitions and fees were required for each employee
under the CNMI system. Thus, assuming future growth in the number of
foreign workers during the transition period up to the cap on grants of
CW status would only increase the cost savings, or benefits,
attributable to the final rule. DHS has updated the analysis to include
revised estimates of the number of workers present in the CNMI at the
start of the transition period based on data collected in December 2009
by the U.S. Department of the Interior on in-status and out-of-status
workers.
One commenter stated that excluding the $150 fee per beneficiary to
fund vocational education programs in the CNMI and the $1,000 American
Competitiveness and Worker Improvement Act (ACWIA) training fee
accompanying H-1B visas from the calculation of the net administrative
cost to society is not appropriate and would not be endorsed by
professional economists.
In its guidance to Federal agencies describing best practices for
preparing economic analyses required by Executive Order 12866, OMB
includes a section discussing the difference between costs and transfer
payments. It states, ``Benefit and cost estimates should reflect real
resource use. Transfer payments are monetary payments from one group to
another that do not affect total resources available to society * * *
You should not include transfers in the estimates of the benefits and
costs of a regulation [emphasis added]. Instead, address them in a
separate discussion of the regulation's distributional effects'' (OMB,
Circular A-4, 2003, p. 38). Taxes and fees are the classic example of
transfer payments, where revenues collected from citizens are
redeployed to government programs providing benefits to the population.
We have followed OMB's guidance precisely, providing estimates of real
resource losses that omit the training fees, which take money from
employers to fund public vocational programs. We do, however, include
these training fees in our discussion of the distributional impacts of
the final rule on individual CNMI employers in the Final Regulatory
Flexibility Analysis.
2. Summary of the Regulatory Assessment
In this analysis, we consider the incremental costs and benefits to
society, in both the CNMI and the United States, of the final rule.
Given the requisite reduction in the number of potential grants of CW
status (to zero) by the end of the transition period or by the end of
any extensions to the program, the most significant economic impact of
the rule may result from a decrease in available foreign labor.
However, we cannot measure the social costs of this drawdown for
several reasons. First, DHS has yet to develop a schedule for
allocating and reducing the number of potential grants of CW status,
and the likelihood that the U.S. Department of Labor will exercise its
authority to extend the transition period beyond 2014 is unknown. The
combined effect of these two decisions on the size of the transitional
worker population during the transition period is significant, ranging
from minimal reduction in this population to removal of nearly all such
workers by the end of 2014. Furthermore, future demand for foreign
workers in the CNMI is highly uncertain
[[Page 55530]]
given the demise of the garment industry, newly imposed minimum wage
requirements, and challenges faced by the tourism industry. Finally,
economic data and models with which to estimate impacts to the broader
economy are largely absent or difficult to develop given the general
lack of CNMI economic and production data and the changing conditions
of the CNMI economy.
In this analysis, we calculate the incremental administrative costs
(i.e., direct compliance costs) resulting from changes in the fees
imposed for the CW status grants and INA visas required by the final
rule. Our analysis assumes essentially no reduction in the number of
potential grants of CW status throughout the transition period and
assumes the highest possible number of grants of CW status will be
issued each year (i.e., USCIS will issue as many CW status grants as
needed to meet the estimated demand for foreign workers). Because of
data limitations, we qualitatively discuss the incremental effect of
these costs on overall production, expenditures, and government revenue
in the CNMI. Our analysis focuses solely on economic impacts likely to
be incurred while the rule is in effect. For this analysis, we assume
this is the beginning of 2011 until the end of the transition period on
December 31, 2014). We make five key assumptions:
(1) CNMI businesses will wait until 2011 to apply for grants of CW
status or INA visas in anticipation of the expiration of permits issued
by the CNMI DOL (known as ``umbrella'' permits). In 2009, the CNMI DOL
issued umbrella permits to foreign workers, thus authorizing their
continued presence and employment in the CNMI until November 27, 2011.
DHS will recognize these permits as granting employment authorization
to transitional workers during this period.
(2) The number of grants of CW status available during the
transition period ending December 31, 2014, will remain essentially
constant at 22,417 visas per year. We make this assumption because DHS
and U.S. DOL have not yet: (1) Established a system and schedule for
allocating and reducing the number of grants of CW status and (2)
decided whether or not to extend the transition period beyond 2014.
(3) The starting cap of 22,417 grants of CW status is sufficient to
accommodate the number of foreign workers likely to require such status
in 2011. We estimate that approximately 13,216 in-status workers will
be granted CW status in 2011. This number is based on the total number
of foreign workers present in the CNMI as of December 31, 2009
(16,258), as reported by the DOI, after subtracting the number of
foreign workers likely to be eligible for visa classifications under
the INA (1,909), the number of foreign workers ineligible for a grant
of CW status (950 private domestic household workers), and the
estimated number of out-of-status workers (183). We assume that the 183
out-of-status workers are gainfully employed in the CNMI and will be
replaced with new foreign workers who can legally obtain CW status. As
a result, a total of 13,399 foreign workers are potentially eligible
for CW status.
(4) The number of jobs currently held by foreign workers will not
change during the transition period. We assume that the number of jobs
currently held by foreign workers represents the future demand for
foreign workers through 2014, or the number of jobs available for such
workers. We make this assumption because the CNMI's economic conditions
are changing, and we lack the data to predict the future state of the
CNMI economy and its resulting impact on the labor market for foreign
workers. We also do not know the rate at which resident workers would
replace foreign workers.
(5) The current number of out-of-status foreign workers is 183, as
estimated by DOI as of December 31, 2009.
Collectively, these assumptions result in a scenario where no
shortage of labor is anticipated. Therefore, this analysis focuses on
estimating the change in administrative costs associated with obtaining
status for foreign workers from USCIS as opposed to from the CNMI
government. We also qualitatively consider the effect of this
difference in administrative cost on labor prices and related impacts
to economy-wide production. The distributional impact on CNMI
government revenues is also discussed.
These assumptions are uncertain. Depending on how DHS reduces the
number of grants of CW status during the transition period, the rule
could have negative impacts, perhaps significant, on the CNMI if the
CNMI economy experiences a surge in the demand for the type of foreign
labor that is ineligible for visa classifications under the INA and
exceeds the CNMI status cap (22,417), or if the number of out-of-status
foreign workers has been greatly underestimated by DOI. The absence of
a defined system and schedule for reducing the CW status cap, combined
with the general lack of CNMI economic and production data and changing
conditions of the CNMI economy, preclude a quantitative analysis of
alternative scenarios exploring these impacts in depth.
In our analysis, we first estimate the current and future baseline
demand for foreign workers in the absence of the final rule. In this
baseline analysis, we consider the prevailing economic conditions in
the CNMI to estimate the future demand for foreign workers and the
total number of foreign work permits that would be issued under CNMI
labor law absent the final rule. Next, we characterize the number and
type of CW status grants and nonimmigrant worker visas available under
the INA that would be issued as a result of the final rule. We consider
the number of affected businesses and foreign workers as well as the
foreign workers' jobs and professional qualifications, eligibility
based on employer or occupation, and current immigration status in the
CNMI. We then estimate the component costs that CNMI employers would
incur to apply for and obtain the requisite CNMI work permits (baseline
regulatory environment) and CW status grants and INA visas for foreign
workers (final rule). We combine this cost information with our
estimates of the number of visas that would be issued to calculate the
incremental administrative costs of the rule. Finally, we discuss
qualitatively the potential impact of changes in labor costs on the
CNMI economy and the distributive effect of the rule on the revenues of
the CNMI government.
We estimate that 16,258 foreign workers and 1,176 businesses in the
CNMI will be subject to the final rule. Based on the available data, we
estimate that approximately 1,909 of these workers may qualify for a
nonimmigrant work visa available under the INA, at least 950 private
domestic household workers will not be eligible for CW status, and 183
out-of-status workers will be replaced with new foreign workers who can
legally obtain CW status. This calculation leaves 13,399 foreign
workers potentially eligible for CW status. In addition, we estimate
that approximately 1,557 spouses and dependent children of foreign
workers will apply for admission under a second CW status category.
In accordance with Executive Order 12866, we consider and evaluate
the following four alternatives:
Alternative 1 (the chosen alternative): Aliens, if present in the
CNMI, then lawfully present, may qualify for CW status. An employer
petitioner can name more than one worker, or ``beneficiary,'' on a
single Form I-129CW petition if the beneficiaries will be working in
the same eligible occupational category, for
[[Page 55531]]
the same period of time, and in the same location. The CW status is
valid for a period of 1 year.
Alternative 2: Same as Alternative 1, except an employer petitioner
can name only one eligible beneficiary on each petition.
Alternative 3: Same as Alternative 1, except CW status is valid for
a period of 2 years.
Alternative 4: Same as Alternative 1, except aliens lawfully
present as well as aliens who are out of status in the CNMI as of the
beginning of the transition period (November 28, 2009) may qualify for
CW status.
We estimate the incremental costs on an annual basis over the same
period of time as the transition period, beginning with the year 2011
(to simplify our cost analysis by estimating the incremental costs on a
calendar basis) and ending with the year 2014, in the absence of any
extension made by U.S. DOL.
The incremental costs represent the change in the cost of obtaining
the necessary CW status and INA visas under the final rule from the
baseline cost of obtaining foreign work permits under the CNMI system.
We estimate that the baseline cost for issuing CNMI work permits to the
16,075 in-status foreign workers presently in the CNMI is about $5.6
million annually. Table 1 summarizes the results of the Regulatory
Assessment. The negative values in Table 1 estimated for Alternatives
1, 3, and 4 indicate that society will experience a net cost savings as
a result of implementing one of these alternatives instead of
continuing the baseline condition (the CNMI permit system).
Table 1--Summary of the Incremental Administrative Costs of the Rule, Undiscounted and Discounted
[2010 $Ms]
----------------------------------------------------------------------------------------------------------------
Alternative 2011 2012 2013 2014 Total
----------------------------------------------------------------------------------------------------------------
Undiscounted:
----------------------------------------------------------------------------------------------------------------
1........................... -$0.85 -$2.7 -$2.8 -$1.8 ..............
2........................... 3.8 1.9 1.9 2.8 ..............
3........................... -0.85 -5.2 -2.8 -4.3 ..............
4........................... -1.2 -2.7 -2.8 -1.8 ..............
----------------------------------------------------------------------------------------------------------------
3% discount rate:
----------------------------------------------------------------------------------------------------------------
1........................... -0.82 -2.6 -2.5 -1.6 -7.5
2........................... 3.6 1.8 1.7 2.5 9.6
3........................... -0.82 -4.9 -2.5 -3.8 -12.0
4........................... -1.2 -2.6 -2.5 -1.6 -7.9
----------------------------------------------------------------------------------------------------------------
7% discount rate:
----------------------------------------------------------------------------------------------------------------
1........................... -0.79 -2.4 -2.2 -1.4 -6.8
2........................... 3.5 1.6 1.5 2.1 8.7
3........................... -0.79 -4.6 -2.2 -3.3 -10.9
4........................... -1.1 -2.4 -2.2 -1.4 -7.1
----------------------------------------------------------------------------------------------------------------
The total present value costs are projected to range from -$12
million to $9.6 million depending on the validity period of CW status
(1 or 2 years), whether the estimated 183 out-of-status aliens present
in the CNMI are eligible for CW status, and the discount rate applied.
Savings achieved under Alternatives 1, 3, and 4 are attributable to the
flexibility of allowing multiple beneficiaries to be included in a
single Form I-129CW petition, which is in contrast to the CNMI permit
system that required an application and fee paid for each employee. The
additional costs of applying for and obtaining CW status for spouses
and children and INA visas for certain qualified foreign workers do not
outweigh the benefits of submitting a single petition for multiple
beneficiaries seeking CW status. In comparison to the chosen
alternative (Alternative 1), increasing the CW status validity period
from 1 year to 2 years (Alternative 3) results in additional cost
savings of about 60 percent. Allowing out-of-status workers eligibility
for CW status (Alternative 4) would result in cost savings of 4 to 5
percent relative to Alternative 1 because CNMI employers will not have
to pay to recruit new or replacement workers from overseas.
The total present value costs of Alternative 2 are projected to
range from $8.7 million to $9.6 million depending on the discount rate
applied. These costs are substantially higher than the costs estimated
for the other three alternatives. The positive values represent a net
cost to society, which are expected given that this alternative
requires a petition for each beneficiary.
Because Table 1 presents net impacts to society, it does not
include the statutory fee of $150 per beneficiary per year to fund
vocational education programs in the CNMI. This fee is to be paid for
each beneficiary seeking CW status. The costs also do not include the
American Competitiveness and Worker Improvement Act (ACWIA) fee
required for H-1B visa applicants. Although these fees represent a cost
to businesses or employer petitioners in the CNMI, these fees are a
transfer or redistribution of funds within the CNMI and U.S. economies
and are not a component of the net impacts of the final rule to
society. We note that from the perspective of the employers, when these
fees are included, Alternatives 1 (chosen alternative), 3, and 4
continue to result in cost savings over the baseline.
Ideally, we would quantify and monetize the benefits of the
regulation and compare them to the costs. The intended benefits of the
rule include improvements in national and homeland security and
protection of human rights. Implementation of the rule assures that the
admission of nonimmigrants to the CNMI is consistent with existing
Federal laws and practices intended to secure and control the borders
of the United States and its territories. Additionally, the rule would
help protect foreign workers in the CNMI from abuses such as human
trafficking and other illicit activity.
Due to limitations in data and the difficulty associated with
quantifying national and homeland security
[[Page 55532]]
improvements, we have described the intended benefits of the regulation
qualitatively. Moreover, because three of the four alternatives
analyzed, including the chosen alternative (Alternative 1), are
projected to result in net cost savings to society, the rule may
produce a net overall benefit to society.
Notwithstanding the potentially broader impacts of this regulation
on the CNMI economy that would ensue if the availability of foreign
labor is affected, the results of our analysis on the incremental
societal costs of the associated visa fees indicate that Alternative 1
provides the most favorable combination of cost and stringency. While
Alternative 2 might be considered more stringent because it requires a
petition for each beneficiary, the costs are substantially higher than
the other three alternatives. Alternative 3 is expected to achieve more
cost savings than Alternative 1, but the 1-year status validity period
under Alternative 1 facilitates USCIS's effective management of the
number of potential grants of CW status issued at any given time and
DHS's determination regarding the statutory reduction of the number of
annual CW status grants to zero by the end of the transition period.
Alternative 4 may provide less security because out-of-status workers
would be eligible for CW status.
We qualitatively discuss the distributive effect of the final rule
on the revenues of the CNMI government. Absent the rule, we estimate
that the CNMI government would have collected approximately $5.6
million annually in fees associated with the issuance of permits for
foreign workers. Because it will no longer be responsible for
administering this permit program, the CNMI government staff resources
devoted to this function, and funded by these permit fees, will be
available for other government business. As recently as 2008, the CNMI
government operated at a deficit; the government's total expenditures
in that year of $329.3 million exceeded revenues by approximately $48.1
million. However, the CNMI government may collect revenue under CNMI
Public Law No. 17-1, enacted in March 2010, which requires all foreign
workers to apply to the CNMI DOL for an identification card and pay
associated fees (specifics unknown as of the writing of this analysis).
Given the current state of the economy and holding all other factors
constant, the effect of removing the burden of CNMI's immigration
functions on the government's fiscal condition is uncertain. CNMI
government jobs associated with administering the current permit
program may be lost, increasing unemployment within the CNMI citizen
population.
B. Regulatory Flexibility Act--Final Regulatory Flexibility Analysis
Under the requirements of the RFA, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, agencies must consider the
potential impact of regulations on small businesses, small governmental
jurisdictions, and small organizations during the development of their
rules. A small entity may be a small business (defined as any
independently owned and operated business not dominant in its field
that qualifies as a small business per the Small Business Act); a small
not-for-profit organization; or a small governmental jurisdiction
(locality with fewer than 50,000 people).
The types of entities subject to the rule's requirements include
all businesses employing foreign workers in the CNMI. As an insular
area, the CNMI government does not meet the RFA's definition of a small
government, which includes only ``governments of cities, counties,
towns, townships, villages, school districts, or special districts with
a population of less than 50,000'' (emphasis added). If the results of
a ``screening analysis'' indicate that a rule may significantly impact
a substantial number of small businesses, DHS is required to conduct an
Initial Regulatory Flexibility Analysis (IRFA) to further assess these
impacts. In this case, all information required for a screening
analysis and an IRFA was provided in the ``Regulatory Assessment for
the Interim Final Rule'' dated May 22, 2009. This document was
summarized in the preamble of the interim final rule and was made
available for public comment. Because DHS did not certify that this
rule will not have a significant economic impact on a substantial
number of small entities, it has prepared a Final Regulatory
Flexibility Analysis (FRFA).
The RFA requires DHS to ``describe the impact of the proposed rule
on small entities'' in an Initial Regulatory Flexibility Analysis. 5
U.S.C. 603(a) (emphasis added). The Act also states that a Final
Regulatory Flexibility Analysis ``shall contain * * * a description of
the projected reporting, recordkeeping and other compliance
requirements of the rule.'' 5 U.S.C. 604(a)(4) (emphasis added). As DHS
has explained, this final rule does not prescribe a schedule for
allocating CW status throughout the transition period and the Secretary
of the U.S. Department of Labor may choose to extend the transition
period. Consequently, DHS has estimated the incremental administrative
costs (i.e., direct compliance costs) resulting from changes in the
fees imposed for the CW status grants and INA visas required by the
final rule.
The results of this FRFA are summarized below.
1. A Succinct Statement of the Need for, and Objectives of, the Rule
On May 8, 2008, the President signed the CNRA into law. Congress'
intent in enacting this legislation is ``to ensure that effective
border control procedures are implemented and observed, and that
national security and homeland security issues are properly
addressed.'' Title VII, Subtitle A of the CNRA calls for the extension
of U.S. immigration laws to the CNMI, with special provisions to allow
for the orderly phasing-out of CNMI's nonresident contract worker
program and the orderly phasing-in of Federal responsibilities over
immigration in the CNMI.
The objective of the CNMI-only CW status program is to provide for
an orderly transition from the existing CNMI foreign worker permit
system to the U.S. immigration system. It is also intended to mitigate
potential harm to the CNMI economy as employers adjust their hiring
practices and foreign workers obtain nonimmigrant and immigrant visa
classifications available under the INA. Please refer to previous
sections of this preamble for further details.
2. A Summary of the Significant Issues Raised by the Public Comments in
Response to the IRFA, a Summary of the Assessment of the Agency of Such
Issues, and a Statement of Any Changes Made in the Proposed Rule as a
Result of Such Comments
One commenter to the interim final rule stated that DHS and USCIS
did not conduct a regulatory impact analysis or a small business
analysis and were thus not in compliance with the law; however, this
commenter was mistaken. A regulatory assessment, which included a
chapter on impact to small entities (with all the elements of an IRFA),
was placed in the public docket with the interim final rule and was
made available for public comment. DHS did not make changes to the rule
based on any comments to the IRFA.
3. A Description and an Estimate of the Number of Small Entities to
Which the Rule Will Apply or an Explanation of Why no Such Estimate is
Available
To measure the economic impact experienced by entities, we compare
the per-business estimated costs of the
[[Page 55533]]
regulations to the annual revenues and annual payroll of affected
businesses. We note that we were unable to find revenue information on
small not-for-profit organizations located in the CNMI. Thus, the
following analysis focuses on small businesses, which were included in
the 2007 economic census of the CNMI.
We assume all businesses in the CNMI employ foreign workers, except
those businesses with no paid employees. The data on businesses by size
show that over 80 percent of businesses in the CNMI have between 1 and
19 employees. The 2007 economic census of the CNMI shows that
businesses with 10 to 19 employees had average revenues of just over $1
million that year (smaller businesses had even lower average revenues).
According to the SBA's ``Table of Small Business Size Standards Matched
to North American Industry Classification System Codes,'' other than in
crop production, businesses in the vast majority of industries are
considered small if they have revenues less than $7 million or fewer
than 50 employees. In many industries the threshold is higher. Thus, in
its screening analysis, DHS concludes that a substantial number of
small entities will be affected by this rule.
For the sake of brevity, we present the economic impacts to small
entities for Alternative 1, the chosen alternative, here. For estimated
impacts to small entities for all alternatives, please refer to the
Regulatory Assessment and Final Regulatory Flexibility Analysis that is
available in the docket for this rulemaking.
Businesses will experience costs beginning in 2011 to obtain visas
issued under the INA for eligible workers, and they will obtain CW
status for the remaining workers. We assume the INA-eligible workers
will all qualify for H-1B visas. The H-1B visas will be renewed in
2014, while CW status will be renewed annually. Table 2 lists the
annual administrative costs (i.e., the costs of CW status and INA visas
minus the costs of CNMI permits had the rule not come into effect) for
businesses of complying with the rule under Alternative 1 (chosen
alternative).
Table 2--Distribution of Net Permit and Visa Costs By Business Size, Alternative 1
[Undiscounted 2010 $Ms]
----------------------------------------------------------------------------------------------------------------
Business size 2011 2012 2013 2014
----------------------------------------------------------------------------------------------------------------
No paid employees............................... $0 $0 $0 $0
1 to 4 employees................................ 0.27 0.02 0.02 0.18
5 to 9 employees................................ 0.23 -0.15 -0.16 0.08
10 to 19 employees.............................. 0.40 -0.27 -0.29 0.14
20 or more employees............................ 1.45 -0.94 -0.98 0.76
All businesses.................................. 2.3 -1.3 -1.4 1.2
----------------------------------------------------------------------------------------------------------------
Note: Net permit and visa costs include the CW status educational fee and H-1B visa ACWIA fee.
Businesses experience the highest net positive costs in 2011.
Therefore, we compare these costs to the annual revenues and payrolls
for businesses of each size category based on U.S. Census data for 2007
(released in 2009). Table 3 lists the number of businesses in each size
category along with the average payroll and average revenue of
businesses in those size categories in 2011 dollars.
Table 3--Average Payroll and Revenue of Businesses
----------------------------------------------------------------------------------------------------------------
Average payroll Average revenue
Business size Businesses ($M) ($M)
----------------------------------------------------------------------------------------------------------------
No paid employees......................................... 61 $0.02 $0.10
1 to 4 employees.......................................... 476 0.03 0.17
5 to 9 employees.......................................... 244 0.10 0.68
10 to 19 employees........................................ 210 0.18 1.1
20 or more employees...................................... 200 1.0 4.9
All businesses............................................ 1,191 0.24 1.2
----------------------------------------------------------------------------------------------------------------
Average payrolls range from $30,000 per business (one to four
employees) to $1.0 million per business (20 or more employees). Average
revenue also scales with the size of the business, from $100,000 for
sole proprietorships to $4.9 million for businesses with 20 or more
employees. Table 4 presents the per-business incremental costs for
Alternative 4 and the ratio of these costs to the average payroll and
revenue.
Table 4--Estimated 2010 Permit and Visa Costs per Business as a Percentage of Payroll and Revenue
[Alternative 1, Chosen Alternative]
----------------------------------------------------------------------------------------------------------------
Cost per
Business size business ($) % Payroll % Revenue
----------------------------------------------------------------------------------------------------------------
No paid employees......................................... $0 0 0
1 to 4 employees.......................................... 570 1.6 0.33
5 to 9 employees.......................................... 929 0.9 0.14
10 to 19 employees........................................ 1,891 1.1 0.18
20 or more employees...................................... 7,243 0.7 0.15
All businesses............................................ 1,968 0.8 0.16
----------------------------------------------------------------------------------------------------------------
[[Page 55534]]
Under Alternative 1, the additional costs imposed by the rule in
2011 represent 0.33 percent or less of annual revenues. Compared to
payroll, however, the impacts are about 5 to 6 times higher. Under
Alternative 1, businesses of all sizes experience increased labor costs
of about 1 percent on average, depending on their size. Considering
that the payroll costs presented in Table 4 do not include benefits,
the actual percentage increase in labor costs for 2011 is smaller than
reported in the table.
The analysis to this point has focused on the impact of replacing
the CNMI foreign worker visas with INA visas and CW status. In
addition, the ineligibility of certain workers (e.g., domestic
household workers employed directly by private residents) may have a
negative, although likely indirect effect. For the reasons described
above in the section on Executive Order 12866, we are unable to
quantify these potential effects.
4. A Description of the Projected Reporting, Recordkeeping, and Other
Compliance Requirements of the Rule, Including an Estimate of the
Classes of Small Entities That Will Be Subject to the Requirement and
the Types of Professional Skills Necessary for Preparation of the
Report or Record
The forms required by this rule are expected to be submitted on
paper by employers. In our analysis, we assume employees in the job
category ``Management of companies and enterprises'' will complete and
file these forms, which require basic administrative and record-keeping
skills. The skills required to complete Form I-129 and supplements
(filed for other nonimmigrant workers), or the new Form I-129CW (filed
for CNMI transitional workers), are essentially the same as the skills
required to complete the necessary paperwork under the CNMI permit
system. Additionally, the spouse or minor child of a CW-1 nonimmigrant
who wishes to accompany or follow the alien as a CW-2 nonimmigrant will
have to complete Form I-539, Application to Extend/Change Status.
Professional skills are not required for the preparation of this form.
5. A Description of the Steps the Agency has Taken to Minimize the
Significant Adverse Economic Impact on Small Entities Consistent With
the Stated Objectives of Applicable Statutes, Including a Statement of
the Factual, Policy, and Legal Reasons for Selecting the Alternative
Adopted in the Final Rule and Why Each of the Other Significant
Alternatives to the Rule Considered by the Agency Was Rejected
DHS did not identify any significant alternatives to the rule that
specifically address small entities while also meeting the requirements
of the CNRA. We evaluated four regulatory alternatives to consider
changes in the admission and filing requirements, including those that
minimize the incremental cost burden to CNMI employers and businesses,
including small entities.
Alternative 1 (chosen alternative) provides the most favorable
combination of cost and stringency. While Alternative 2 might be
considered more stringent because it requires a petition for each
beneficiary, the costs are substantially higher than the other three
alternatives. Alternative 3 is expected to achieve more cost savings
than Alternative 1, but the 1-year status validity period under
Alternative 1 facilitates DHS's effective management of the number of
potential grants of CW status issued at any given time and the
statutory reduction on an annual basis to zero by the end of the
transition period. Alternative 1 may provide more security because DHS
would require lawful status in the CNMI as a prerequisite for CW
eligibility.
In addition, we emphasize that it is the reduction in the number of
available grants of CW status that will have a potentially substantial
impact on small entities; however, the rule does not prescribe a
schedule for allocating CW status throughout the transition period. DHS
believes any methodology for allocating CW status will require
flexibility to adjust to the prospering or declining needs of the CNMI
economy. A methodology or formula set forth in a regulation does not
provide such flexibility.
6. Conclusion
In summary, because the rule affects all businesses employing
foreign workers, it likely affects a large number of small entities in
every industry. Based on the analysis in the preceding sections, we do
not believe the requirement that businesses obtain CW status or INA
visas will have a substantial impact on a per-business basis because it
will coincide with the end of the more expensive CNMI permit system.
However, DHS did not certify this rule as not having a significant
economic impact on a substantial number of small entities and has
instead prepared a FRFA.
C. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA) requires
agencies to assess the effects of their regulatory actions on State,
local, and tribal governments and the private sector if the rule will
result in expenditures exceeding $100 million (adjusted for inflation)
in any one year. We estimate that this rule will not result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year. The
CNRA will cause some changes for the CNMI government since they will no
longer be implementing their own immigration, foreign worker, and
border security program. However, the costs of administering that
program will no longer be incurred by the CNMI government. Therefore,
no actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995. Please refer to the section above on
Executive Order 12866 for further details on the potential economic
impacts of this rule.
D. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
E. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988.
F. Paperwork Reduction Act (PRA)
The Paperwork Reduction Act of 1995 requires all Departments to
submit to the Office of Management and Budget (OMB), for review and
approval, any reporting or recordkeeping requirements inherent in a
regulatory action. 44 U.S.C. 3501 et seq.; 5 CFR part 1320. The
information collection requirements contained in this rule, Form I-
129CW, Petition for CNMI-Only Nonimmigrant
[[Page 55535]]
Transitional Worker, and Form I-539, Application to Extend/Change
Nonimmigrant Status, have been previously approved for use by OMB under
the Paperwork Reduction Act (PRA). The OMB control numbers for these
collections are 1615-0111 and 1615-0003, respectively.
The termination of the CNMI permit program will result in employers
petitioning for status under the INA for those employees. Termination
of the CNMI worker program will increase the number of respondents
submitting Form I-129, Petition for a Nonimmigrant Worker, OMB Control
Number 1615-0009, and Form I-539. This increase is already included in
the OMB inventory and no further action is required. However, DHS will
be making non-substantive changes to the instructions to the Form I-
129CW. Accordingly, DHS submitted Form OMB 83-C, Correction Worksheet,
to OMB to reflect these non-substantive changes.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
officials, Health professions, Reporting and recordkeeping
requirements, Students.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 8 CFR parts 103, 214, 274a,
and 299, which was published in the Federal Register at 74 FR 55094 on
October 27, 2009, is adopted as final with the following changes:
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; 48 U.S.C. 1806; Pub. L. 107-296, 116 Stat.
2135 (6 U.S.C. 1 et seq.), E.O. 12356, 47 FR 14874, 15557, 3 CFR,
1982 Comp., p. 166; 8 CFR part 2.
0
2. Section 103.7 is amended by revising paragraphs (b)(1)(i)(J) and
(c)(3)(iii) to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
(i) * * *
(J) Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form
I-129CW). * * *
* * * * *
(c) * * *
(3) * * *
(iii) A Petition for a CNMI-Only Nonimmigrant Transitional Worker,
or an Application to Extend/Change Nonimmigrant Status only in the case
of an alien applying for CW-2 nonimmigrant status,
* * * * *
PART 214--NONIMMIGRANT CLASSES
0
3. The authority citation for part 214 continues to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305, and 1372; sec. 643, Pub. L. 104-208,
110 Stat. 3009-708; Pub. L. 106-386, 114 Stat. 1477-1480; section
141 of the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901 note, and 1931 note,
respectively; 48 U.S.C. 1806; 8 CFR part 2.
0
4. Section 214.2 is amended by revising paragraph (w) to read as
follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(w) CNMI-Only Transitional Worker (CW-1). (1) Definitions. The
following definitions apply to petitions for and maintenance of CW
status in the Commonwealth of the Northern Mariana Islands (the CNMI or
the Commonwealth):
(i) Direct Guam transit means travel from the CNMI to the
Philippines by an alien in CW status, or from the Philippines to the
CNMI by an alien with a valid CW visa, 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.
(ii) Doing business means the regular, systematic, and continuous
provision of goods or services by an employer as defined in this
paragraph and does not include the mere presence of an agent or office
of the employer in the CNMI.
(iii) Employer means a person, firm, corporation, contractor, or
other association, or organization which:
(A) Engages a person to work within the CNMI; and
(B) Has or will have an employer-employee relationship with the CW-
1 nonimmigrant being petitioned for.
(iv) Employer-employee relationship means that the employer will
hire, pay, fire, supervise, and control the work of the employee.
(v) Lawfully present in the CNMI means that the alien:
(A) At the time the application for CW status is filed, is an alien
lawfully present in the CNMI under 48 U.S.C. 1806(e); or
(B) Was lawfully admitted or paroled into the CNMI under the
immigration laws on or after the transition program effective date,
other than an alien admitted or paroled as a visitor for business or
pleasure (B-1 or B-2, under any visa-free travel provision or parole of
certain visitors from Russia and the People's Republic of China), and
remains in a lawful immigration status.
(vi) Legitimate business means a real, active, and operating
commercial or entrepreneurial undertaking which produces services or
goods for profit, or is a governmental, charitable or other validly
recognized nonprofit entity. The business must meet applicable legal
requirements for doing business in the CNMI. A business will not be
considered legitimate if it engages directly or indirectly in
prostitution, trafficking in minors, or any other activity that is
illegal under Federal or CNMI law. DHS will determine whether a
business is legitimate.
(vii) Minor child means a child as defined in section 101(b)(1) of
the Act who is under 18 years of age.
(viii) Numerical limitation means the maximum number of persons who
may be granted CW-1 status in a given fiscal year or other period as
determined by DHS, as follows:
(A) For fiscal year 2011, the numerical limitation is 22,417 per
fiscal year.
(B) For fiscal year 2012, the numerical limitation is 22,416 per
fiscal year.
(C) For each fiscal year beginning on October 1, 2012 until the end
of the transition period, the numerical limitation will be a number
less than 22,416 that is determined by DHS and published via Notice in
the Federal Register. The numerical limitation for any fiscal year will
be less than the number for the previous fiscal year, and will be a
number reasonably calculated in DHS's discretion to reduce the number
of CW-1 nonimmigrants to zero by the end of the transition period.
[[Page 55536]]
(D) DHS may adjust the numerical limitation for a fiscal year or
other period in its discretion at any time via Notice in the Federal
Register, as long as such adjustment is consistent with paragraph
(w)(1)(viii)(C) of this section.
(E) If the numerical limitation is not reached for a specified
fiscal year, unused numbers do not carry over to the next fiscal year.
(ix) Occupational category means those employment activities that
DHS has determined require alien workers to supplement the resident
workforce and includes:
(A) Professional, technical, or management occupations;
(B) Clerical and sales occupations;
(C) Service occupations;
(D) Agricultural, fisheries, forestry, and related occupations;
(E) Processing occupations;
(F) Machine trade occupations;
(G) Benchwork occupations;
(H) Structural work occupations; and
(I) Miscellaneous occupations.
(x) Petition means USCIS Form I-129CW, Petition for a CNMI-Only
Nonimmigrant Transitional Worker, a successor form, other form, or
electronic equivalent, any supplemental information requested by USCIS,
and additional evidence as may be prescribed or requested by USCIS.
(xi) Transition period means the period beginning on the transition
program effective date and ending on December 31, 2014, unless the
CNMI-only transitional worker program is extended by the Secretary of
Labor, in which case the transition period will end for purposes of the
CW transitional worker program on the date designated by the Secretary
of Labor.
(xii) United States worker means a national of the United States,
an alien lawfully admitted for permanent residence, or a national of
the Federated States of Micronesia, the Republic of the Marshall
Islands, or the Republic of Palau who is eligible for nonimmigrant
admission and is employment-authorized under the Compacts of Free
Association between the United States and those nations.
(2) Eligible aliens. Subject to the numerical limitation, an alien
may be classified as a CW-1 nonimmigrant if, during the transition
period, the alien:
(i) Will enter or remain in the CNMI for the purpose of employment
in the transition period in an occupational category that DHS has
designated as requiring alien workers to supplement the resident
workforce;
(ii) Is petitioned for by an employer;
(iii) Is not present in the United States, other than the CNMI;
(iv) If present in the CNMI, is lawfully present in the CNMI;
(v) Is not inadmissible to the United States as a nonimmigrant or
has been granted a waiver of each applicable ground of inadmissibility;
and
(vi) Is ineligible for status in a nonimmigrant worker
classification under section 101(a)(15) of the Act.
(3) Derivative beneficiaries--CW-2 nonimmigrant classification. The
spouse or minor child of a CW-1 nonimmigrant may accompany or follow
the alien as a CW-2 nonimmigrant if the alien:
(i) Is not present in the United States, other than the CNMI;
(ii) If present in the CNMI, is lawfully present in the CNMI; and
(iii) Is not inadmissible to the United States as a nonimmigrant or
has been granted a waiver of each applicable ground of inadmissibility.
(4) Eligible employers. To be eligible to petition for a CW-1
nonimmigrant worker, an employer must:
(i) Be engaged in legitimate business;
(ii) Consider all available United States workers for the position
being filled by the CW-1 worker;
(iii) Offer terms and conditions of employment which are consistent
with the nature of the petitioner's business and the nature of the
occupation, activity, and industry in the CNMI; and
(iv) Comply with all Federal and Commonwealth requirements relating
to employment, including but not limited to nondiscrimination,
occupational safety, and minimum wage requirements.
(5) Petition requirements. An employer who seeks to classify an
alien as a CW-1 worker must file a petition with USCIS and pay the
requisite petition fee plus the CNMI education fee of $150 per
beneficiary per year. An employer filing a petition is eligible to
apply for a waiver of the fee based upon inability to pay as provided
by 8 CFR 103.7(c). If the beneficiary will perform services for more
than one employer, each employer must file a separate petition with
fees with USCIS.
(6) Appropriate documents. Documentary evidence establishing
eligibility for CW status is required. A petition must be accompanied
by:
(i) Evidence demonstrating the petitioner meets the definition of
eligible employer in this section;
(ii) An attestation by the petitioner certified as true and
accurate by an appropriate official of the petitioner, of the
following:
(A) No qualified United States worker is available to fill the
position;
(B) The employer is doing business as defined in paragraph
(w)(1)(ii) of this section;
(C) The employer is a legitimate business as defined in paragraph
(w)(1)(vi) of this section;
(D) The employer is an eligible employer as described in paragraph
(w)(4) of this section and will continue to comply with the
requirements for an eligible employer until such time as the employer
no longer employs the CW-1 nonimmigrant worker;
(E) The beneficiary meets the qualifications for the position;
(F) The beneficiary, if present in the CNMI, is lawfully present in
the CNMI;
(G) The position is not temporary or seasonal employment, and the
petitioner does not reasonably believe it to qualify for any other
nonimmigrant worker classification; and
(H) The position falls within the list of occupational categories
designated by DHS.
(iii) Evidence of licensure if an occupation requires a
Commonwealth or local license for an individual to fully perform the
duties of the occupation. Categories of valid licensure for CW-1
classification are:
(A) Licensure. An alien seeking CW-1 classification in that
occupation must have that license prior to approval of the petition to
be found qualified to enter the CNMI and immediately engage in
employment in the occupation.
(B) Temporary licensure. If a temporary license is available and
allowed for the occupation with a temporary license, USCIS may grant
the petition at its discretion after considering the duties performed,
the degree of supervision received, and any limitations placed on the
alien by the employer and/or pursuant to the temporary license.
(C) Duties without licensure. If the CNMI allows an individual to
fully practice the occupation that usually requires a license without a
license under the supervision of licensed senior or supervisory
personnel in that occupation, USCIS may grant CW-1 status at its
discretion after considering the duties performed, the degree of
supervision received, and any limitations placed on the alien if the
facts demonstrate that the alien under supervision could fully perform
the duties of the occupation.
(7) Change of employers. A change of employment to a new employer
inconsistent with paragraphs (w)(7)(i) and (ii) of this section will
constitute a failure to maintain status within the meaning of section
237(a)(1)(C)(i) of the Act. A CW-1 nonimmigrant may change employers
if:
(i) The prospective new employer files a petition to classify the
alien as a
[[Page 55537]]
CW-1 worker in accordance with paragraph (w)(5) of this section, and
(ii) An extension of the alien's stay is requested if necessary for
the validity period of the petition.
(iii) A CW-1 may work for a prospective new employer after the
prospective new employer files a Form I-129CW petition on the
employee's behalf if:
(A) The prospective employer has filed a nonfrivolous petition for
new employment before the date of expiration of the CW-1's authorized
period of stay; and
(B) Subsequent to his or her lawful admission, the CW-1 has not
been employed without authorization in the United States.
(iv) Employment authorization shall continue for such alien until
the new petition is adjudicated. If the new petition is denied, such
authorization shall cease.
(v) If a CW-1's employment has been terminated prior to the filing
of a petition by a prospective new employer consistent with paragraphs
(w)(7)(i) and (ii), the CW-1 will not be considered to be in violation
of his or her CW-1 status during the 30-day period immediately
following the date on which the CW-1's employment terminated if a
nonfrivolous petition for new employment is filed consistent with this
paragraph within that 30-day period and the CW-1 does not otherwise
violate the terms and conditions of his or her status during that 30-
day period.
(8) Amended or new petition. If there are any material changes in
the terms and conditions of employment, the petitioner must file an
amended or new petition to reflect the changes.
(9) Multiple beneficiaries. A petitioning employer may include more
than one beneficiary in a CW-1 petition if the beneficiaries will be
working in the same occupational category, for the same period of time,
and in the same location.
(10) Named beneficiaries. The petition must include the name of the
beneficiary and other required information, as indicated in the form
instructions, at the time of filing. Unnamed beneficiaries will not be
permitted.
(11) Early termination. The petitioning employer must pay the
reasonable cost of return transportation of the alien to the alien's
last place of foreign residence if the alien is dismissed from
employment for any reason by the employer before the end of the period
of authorized admission.
(12) Approval. USCIS will consider all the evidence submitted and
such other evidence required in the form instructions to adjudicate the
petition. USCIS will notify the petitioner of the approval of the
petition on Form I-797, Notice of Action, or in another form as USCIS
may prescribe:
(i) The approval notice will include the classification and name of
the beneficiary or beneficiaries and the petition's period of validity.
A petition for more than one beneficiary may be approved in whole or in
part.
(ii) The petition may not be filed or approved earlier than six
months before the date of actual need for the beneficiary's services.
(13) Petition validity. An approved petition will be valid for a
period of up to one year.
(14) How to apply for CW-1 or CW-2 status. (i) Upon approval of the
petition, a beneficiary, his or her eligible spouse, and or his or her
minor child(ren) outside the CNMI will be informed in the approval
notice of where they may apply for a visa authorizing admission in CW-1
or CW-2 status.
(ii) If the beneficiary is present in the CNMI, the petition also
serves as the application for a grant of status as a CW-1.
(iii) If the eligible spouse and/or minor child(ren) are present in
the CNMI, the spouse or child(ren) may apply for CW-2 dependent status
on Form I-539 (or such alternative form as USCIS may designate) in
accordance with the form instructions. The CW-2 status may not be
approved until approval of the CW-1 petition. A spouse or child
applying for CW-2 status on Form I-539 is eligible to apply for a
waiver of the fee based upon inability to pay as provided by 8 CFR
103.7(c).
(15) Biometrics and other information. The beneficiary of a CW-1
petition or the spouse or child applying for a grant or, extension of
CW-2 status, or a change of status to CW-2 status, must submit
biometric information as requested by USCIS. For a Form I-129CW
petition where the beneficiary is present in the CNMI, the employer
must submit the biometric service fee described in 8 CFR 103.7(b)(1)
with the petition for each beneficiary for which CW-1 status is being
requested or request a fee waiver for any biometric services provided,
including but not limited to reuse of previously provided biometric
information for background checks. For a Form I-539 application where
the applicant is present in the CNMI, the applicant must submit a
biometric service fee for each CW-2 nonimmigrant on the application
with the application or obtain a waiver of the biometric service fee
described in 8 CFR 103.7(b)(1) for any biometric services provided,
including but not limited to reuse of previously provided biometric
information for background checks. A biometric service fee is not
required for beneficiaries under the age of 14, or who are at least 79
years of age.
(16) Period of admission. (i) A CW-1 nonimmigrant will be admitted
for the period of petition validity, plus up to 10 days before the
validity period begins and 10 days after the validity period ends. The
CW-1 nonimmigrant may not work except during the validity period of the
petition. A CW-2 spouse will be admitted for the same period as the
principal alien. A CW-2 minor child will be admitted for the same
period as the principal alien, but such admission will not extend
beyond the child's 18th birthday.
(ii) The temporary departure from the CNMI of the CW-1 nonimmigrant
will not affect the derivative status of the CW-2 spouse and minor
children, provided the familial relationship continues to exist and the
principal remains eligible for admission as a CW-1 nonimmigrant.
(17) Extension of petition validity and extension of stay. (i) The
petitioner may request an extension of an employee's CW-1 nonimmigrant
status by filing a new petition.
(ii) A request for a petition extension may be filed only if the
validity of the original petition has not expired.
(iii) Extensions of CW-1 status may be granted for a period of up
to 1 year until the end of the transition period, subject to the
numerical limitation.
(iv) To qualify for an extension of stay, the petitioner must
demonstrate that the beneficiary or beneficiaries:
(A) Continuously maintained the terms and conditions of CW-1
status;
(B) Remains admissible to the United States; and
(C) Remains eligible for CW-1 classification.
(v) The derivative CW-2 nonimmigrant may file an application for
extension of nonimmigrant stay on Form I-539 (or such alternative form
as USCIS may designate) in accordance with the form instructions. The
CW-2 status extension may not be approved until approval of the CW-1
extension petition.
(18) Change or adjustment of status. A CW-1 or CW-2 nonimmigrant
can apply to change nonimmigrant status under section 248 of the Act or
apply for adjustment of status under section 245 of the Act, if
otherwise eligible. During the transition period, CW-1 or CW-2
nonimmigrants may be the beneficiary of a petition for or may apply for
any nonimmigrant or immigrant visa
[[Page 55538]]
classification for which they may qualify.
(19) Effect of filing an application for or approval of a permanent
labor certification, preference petition, or filing of an application
for adjustment of status on CW-1 or CW-2 classification. An alien may
be granted, be admitted in and maintain lawful CW-1 or CW-2
nonimmigrant status while, at the same time, lawfully seeking to become
a lawful permanent resident of the United States, provided he or she
intends to depart the CNMI voluntarily at the end of the period of
authorized stay. The filing of an application for or approval of a
permanent labor certification or an immigrant visa preference petition,
the filing of an application for adjustment of status, or the lack of
residence abroad will not be the basis for denying:
(i) A CW-1 petition filed on behalf of the alien;
(ii) A request to extend a CW-1 status pursuant to a petition
previously filed on behalf of the alien;
(iii) An application for CW-2 classification filed by an alien;
(iv) A request to extend CW-2 status pursuant to the extension of a
related CW-1 alien's extension; or
(v) An application for admission as a CW-1 or CW-2 nonimmigrant.
(20) Rejection. USCIS may reject an employer's petition for new or
extended CW-1 status if the numerical limitation has been met. In that
case, the petition and accompanying fee will be rejected and returned
with the notice that numbers are unavailable for the CW nonimmigrant
classification. The beneficiary's application for admission based upon
an approved petition will not be rejected based upon the numerical
limitation.
(21) Denial. The ultimate decision to grant or deny CW-1 or CW-2
classification or status is a discretionary determination, and the
petition or the application may be denied for failure of the petitioner
or the applicant to demonstrate eligibility or for other good cause.
The denial of a petition to classify an alien as a CW-1 may be appealed
to the USCIS Administrative Appeals Office or any successor body. The
denial of a grant of CW-1 or CW-2 status within the CNMI, or of an
application for change or extension of status filed under this section,
may not be appealed.
(22) Terms and conditions of CW Nonimmigrant status. (i)
Geographical limitations. CW-1 and CW-2 statuses are only applicable in
the CNMI. Entry, employment and residence in the rest of the United
States (including Guam) require the appropriate visa or visa waiver.
Except as provided in paragraph (w)(22)(iii) of this section, an alien
with CW-1 or CW-2 status who enters or attempts to enter, or travels or
attempts to travel to any other part of the United States without an
appropriate visa or visa waiver, or who violates conditions of
nonimmigrant stay applicable to any such authorized status in any other
part of the United States, will be deemed to have violated CW-1 or CW-2
status.
(ii) Re-entry. An alien with CW-1 or CW-2 status who travels abroad
from the CNMI will require a CW-1 or CW-2 or other appropriate visa to
be re-admitted to the CNMI.
(iii) Direct Guam transit.
(A) Travel from the CNMI to the Philippines. An alien with CW-1 or
CW-2 status who is a national of the Philippines may travel to the
Philippines via a direct Guam transit without being deemed to violate
that status.
(B) Travel from the Philippines to the CNMI. An alien who is a
national of the Philippines may travel to the CNMI via a direct Guam
transit under the following conditions: If an immigration officer
determines that the alien warrants a discretionary exercise of parole
authority, the alien may be paroled into Guam via direct Guam transit
to undergo preinspection outbound from Guam for admission to the CNMI
pursuant to 8 CFR 235.5(a) or to proceed for inspection upon arrival in
the CNMI. During any such preinspection, the alien will be admitted in
CW-1 or CW-2 status if the immigration officer in Guam determines that
the alien is admissible to the CNMI. A condition of the admission is
that the alien must complete the direct Guam transit. DHS, in its
discretion, may exempt such alien from the provisions of 8 CFR 235.5(a)
relating to separation and boarding of passengers after inspection.
(iv) Employment authorization. An alien with CW-1 nonimmigrant
status is only authorized employment in the CNMI for the petitioning
employer. An alien with CW-2 status is not authorized to be employed.
(23) Expiration of status. CW-1 status expires when the alien
violates his or her CW-1 status (or in the case of a CW-1 status
violation caused solely by termination of the alien's employment, at
the end of the 30 day period described in section 214.2(w)(7)(v)), 10
days after the end of the petition's validity period, or at the end of
the transitional worker program, whichever is earlier. CW-2
nonimmigrant status expires when the status of the related CW-1 alien
expires, on a CW-2 minor child's 18th birthday, when the alien violates
his or her status, or at the end of the transitional worker program,
whichever is earlier. No alien will be eligible for admission to the
CNMI in CW-1 or CW-2 status, and no CW-1 or CW-2 visa will be valid for
travel to the CNMI, after the transitional worker program ends.
(24) Waivers of inadmissibility for applicants lawfully present in
the CNMI. An applicant for CW-1 or CW-2 nonimmigrant status, who is
otherwise eligible for such status and otherwise admissible to the
United States, and who possesses appropriate documents demonstrating
that the applicant is lawfully present in the CNMI, may be granted a
waiver of inadmissibility under section 212(d)(3)(A)(ii) of the Act,
including the grounds of inadmissibility described in sections
212(a)(6)(A)(i) and 212(a)(7)(B)(i)(II) of the Act, as a matter of
discretion for the purpose of granting the CW-1 or CW-2 nonimmigrant
status. Such waiver may be granted without additional form or fee.
Appropriate documents required for such a waiver include a valid
unexpired passport and other documentary evidence demonstrating that
the applicant is lawfully present in the CNMI, such as an ``umbrella
permit'' or a DHS-issued Form I-94. Evidence that the applicant
possesses appropriate documents may be provided by an employer to
accompany a petition, by an eligible spouse or minor child to accompany
the Form I-539 (or such alternative form as USCIS may designate), or in
such other manner as USCIS may designate.
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
5. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR
part 2.
0
6. Section 274a.12 is amended by revising paragraph (b)(23) to read as
follows:
Sec. 274a.12 Classes of alien authorized to accept employment.
* * * * *
(b) * * *
(23) A Commonwealth of the Northern Mariana Islands transitional
worker (CW-1) pursuant to 8 CFR 214.2(w). An alien in this status may
be employed only in the CNMI during the transition period, and only by
the petitioner through whom the status was obtained, or as otherwise
authorized by 8 CFR 214.2(w). An alien who is lawfully present in the
CNMI (as defined by 8 CFR 214.2(w)(1)(v)) on or before November 27,
2011, is authorized
[[Page 55539]]
to be employed in the CNMI, and is so employed in the CNMI by an
employer properly filing an application under 8 CFR 214.2(w)(14)(ii) on
or before such date for a grant of CW-1 status to its employee in the
CNMI for the purpose of the alien continuing the employment, is
authorized to continue such employment on or after November 27, 2011,
until a decision is made on the application; or
* * * * *
Janet Napolitano,
Secretary.
[FR Doc. 2011-22622 Filed 9-6-11; 8:45 am]
BILLING CODE 9111-97-P