[Federal Register Volume 77, Number 231 (Friday, November 30, 2012)]
[Rules and Regulations]
[Pages 71287-71288]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29025]



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  Federal Register / Vol. 77, No. 231 / Friday, November 30, 2012 / 
Rules and Regulations  

[[Page 71287]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2525-12; DHS Docket No. USCIS-2012-0010]
RIN 1615-ZB15


CNMI-Only Transitional Worker Numerical Limitation for Fiscal 
Year 2013

AGENCY: U.S. Citizenship and Immigration Services, DHS.

ACTION: Notification of numerical limitation.

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SUMMARY: The Secretary of Homeland Security announces that the 
numerical limitation for the annual fiscal year numerical limitation 
for CNMI-only Transitional Worker (CW-1) nonimmigrant classification 
for fiscal year 2013 is set at 15,000. In accordance with Title VII of 
the Consolidated Natural Resources Act of 2008 (CNRA) (codified, in 
relevant part, at 48 U.S.C. 1806(d)) and 8 CFR 214.2(w)(1)(viii)(C), 
this document announces the mandated annual reduction of the CW-1 
numerical limit and provides the public with information regarding the 
new CW-1 numerical limit. This document is intended to ensure that CNMI 
employers and employees have sufficient notice regarding the maximum 
number of workers who may be granted transitional worker status during 
the upcoming fiscal year.

DATES: Effective Date: November 30, 2012.

FOR FURTHER INFORMATION CONTACT: Steven W. Viger, Adjudications Officer 
(Policy), Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW., Washington, DC 20529-2060. Contact telephone (202) 272-
1470.

SUPPLEMENTARY INFORMATION: 

I. Background

    Title VII of the Consolidated Natural Resources Act of 2008 (CNRA) 
extends U.S. immigration law to the CNMI and provides CNMI-specific 
provisions affecting foreign workers. See Public Law 110-229, 122 Stat. 
754, 853 (2008). The CNRA included provisions for a ``transition 
period'' to phase-out the CNMI's nonresident contract worker program 
and phase-in the U.S. federal immigration system in a manner that 
minimizes the adverse economic and fiscal effects and maximizes the 
CNMI's potential for future economic and business growth. See sec. 
701(b) of the CNRA, 48 U.S.C. 1806 note. The CNRA authorized DHS to 
create a nonimmigrant classification that would ensure adequate 
employment in the CNMI during the transition period, which ends 
December 31, 2014.\1\ See id.; 48 U.S.C. 1806(d)(2). The CNRA also 
mandated an annual reduction in the allocation of the number of permits 
issued per year and the total elimination of the CW nonimmigrant 
classification by the end of the transition period. 48 U.S.C. 
1806(d)(2).
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    \1\ The Secretary of Labor is authorized to extend the 
transitional worker program beyond December 31, 2014 for additional 
periods of up to five years each. See 48 U.S.C. 1806(d)(5).
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    Consistent with this mandate under the CNRA, DHS published a final 
rule on September 7, 2011 amending the regulations at 8 CFR 214.2(w) to 
implement a temporary, CNMI-only transitional worker nonimmigrant 
classification (CW classification, which includes CW-1 for principal 
workers and CW-2 for spouses and minor children). See 76 FR 55502 
(Sept. 7, 2011). DHS established the CW-1 numerical limitation for 
fiscal year 2011 at 22,417 and for fiscal year 2012 at 22,416. See 8 
CFR 214.2(w)(1)(viii)(A) and (B). In the final rule, DHS did not 
provide a numerical limit reduction plan for the remainder of the 
transition period. DHS instead delayed development of a numerical limit 
reduction plan due to the uncertainty of the CNMI's future workforce 
needs and economic conditions. See 76 FR at 55510. As such, DHS opted 
to publish any future annual numerical limitation in a Federal Register 
notice. See 8 CFR 214.2(w)(1)(viii)(C). This method maximizes the 
CNMI's potential for future economic growth by providing flexibility 
for the continued use of workers during this phase-in of Federal 
immigration law. See 76 FR at 55510.
    The numerical limitations set forth in the final rule for the first 
two years of the CW classification provided a baseline for the maximum 
number of transitional workers in the CNMI.\2\ This initial approach to 
the allocation system ensured that employers had an adequate supply of 
workers for the projected CW nonimmigrant visas needed to transition 
umbrella permit holders to CW-1 status. This approach also provided DHS 
with the flexibility to adjust to the future needs of the CNMI economy 
and to assess the total alien workforce needs based on the number of 
requests for transitional worker nonimmigrant classification received 
following implementation of the final rule. Based on these factors, DHS 
determined that it would assess the CNMI's workforce needs on a yearly 
basis. See 8 CFR 214.2(w)(1)(viii)(C).
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    \2\ The 22,417 number was the total number of foreign workers 
working in the Commonwealth, according to the CNMI government 
estimate of the nonresident workers present as of May 8, 2008, the 
date of enactment of the CNRA. DHS established this limit based on 
the CNMI government estimate. See Letter from Benigno Fitial, 
Governor of the Commonwealth of the Northern Mariana Islands to 
Richard C. Barth, Assistant Secretary for Policy Development, and 
Stewart A. Baker, Assistant Secretary for Policy, Office of Policy, 
Department of Homeland Security (July 18, 2008) (available at 
www.regulations.gov under DHS Docket No. USCIS-2008-0038).
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II. Maximum CW-1 Workers for Fiscal Year 2013

    The maximum number of CW-1 workers announced in this document 
(15,000) is appropriate based on the actual demonstrated need for 
foreign workers within the CNMI. In the final rule, DHS provided for an 
accurate assessment of the actual labor needs within the CNMI by 
setting a limit in the final rule that ensured an adequate supply of CW 
visas to test the labor market. Although DHS set the numerical 
limitation for fiscal year 2012 at 22,416, employers in the CNMI have 
filed only 5,985 Petitions for CNMI-Only Nonimmigrant Transitional 
Workers (Form I-129 CW), requesting a total of 12,247 transitional 
workers.\3\ Therefore, DHS believes the numerical limitation provided 
for fiscal year 2012 greatly

[[Page 71288]]

outweighed the demand for labor and the number of requests received for 
CW classification in fiscal year 2012 to date provides a more 
appropriate baseline for the maximum number of transitional workers in 
the CNMI.
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    \3\ USCIS Office of Performance and Quality (OPQ), Data Analysis 
and Reporting Branch (DARB), figures provided as of September 4, 
2012. Of the petitions adjudicated to date, 239 petitions for a 
total of 320 beneficiaries have been denied.
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    All requests received to date were submitted during fiscal year 
2012, as the final rule took effect shortly after the beginning of that 
fiscal year. USCIS has not completed adjudication of these requests but 
anticipates doing so before the end of the current calendar year. These 
requests, to the extent they are granted, will be counted under the 
fiscal year 2012 cap of 22,416. The vast majority of CW petitions were 
filed by CNMI employers in November 2011, shortly before the expiration 
of ``grandfathered'' CNMI work authorization on November 27, 2011. See 
48 U.S.C. 1806(e)(2). For these reasons, DHS believes that the number 
of requested CW-1 workers to date in fiscal year 2012 is an accurate 
baseline to use in determining the likely demand in fiscal year 2013.
    The CNRA requires an annual reduction in the number of transitional 
workers (and complete elimination of the CW nonimmigrant classification 
by the end of the transition period) but does not mandate a specific 
reduction. See 48 U.S.C. 1806(d)(2). In addition, 8 CFR 
214.2(w)(1)(viii)(C) provides that the numerical limitation for any 
fiscal year will be less than the number for the previous fiscal year, 
and it will be reasonably calculated to reduce the number of CW-1 
nonimmigrant workers to zero by the end of the transition period.
    To comply with these requirements, meet the CNMI's labor market's 
needs, and provide opportunity for growth, DHS has set the numerical 
limitation for fiscal year 2013 at 15,000. DHS calculated this figure 
by first taking the number of CW-1 nonimmigrant workers needed based on 
fiscal year 2012 filings to date of 12,247 (or 11,927, taking into 
account 320 denials to date), which rounded to the nearest thousand is 
12,000. DHS then added an additional 25 percent to the 12,000 to 
accommodate possible economic growth that might lead to a need for 
additional CW workers, for a total of 15,000. Accordingly, DHS reduces 
the number of transitional workers from the current fiscal year 
numerical limitation of 22,416, and establishes the maximum number of 
CW-1 visas available for fiscal year 2013 at 15,000.
    This number of CW-1 workers will be available beginning on October 
1, 2012. 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. See 8 CFR 214.2(w)(1)(viii)(D). Consistent with the rules 
applicable to other nonimmigrant worker visa classifications, if the 
numerical limitation for the fiscal year is not reached, the unused 
numbers do not carry over to the next fiscal year. See 8 CFR 
214.2(w)(1)(viii)(E).
    Petitions requesting a validity start date within fiscal year 2013 
will be counted against the 15,000 limit. As such, each CW-1 worker who 
is listed on a Form I-129CW is counted against the numerical limitation 
at the time USCIS receives the petition. Counting the petitions in this 
manner will help ensure that USCIS does not approve requests for more 
than 15,000 CW-1 workers. If the number of CW-1 workers approaches the 
15,000 limit, USCIS will hold any subsequently-filed petition until a 
final determination is made on the petitions that are already included 
in the numerical count. Subsequently-filed petitions will be forwarded 
for adjudication in the order in which they were received until USCIS 
has approved petitions for the maximum number of CW workers; any 
remaining petitions that were held or that are newly received will be 
rejected.
    This document does not affect the status of aliens who hold CW-1 
nonimmigrant status. Aliens currently holding such status, however, 
will be affected by this document when they apply for an extension of 
their CW-1 classification, or a change of status from another 
nonimmigrant status to CW-1 status.
    This document does not affect the status of any alien currently 
holding CW-2 status as the spouse or minor child of a CW-1 
nonimmigrant. This document also does not directly affect the ability 
of any alien to extend or otherwise obtain CW-2 status, as the 
numerical limitation applies to CW-1 principals only. Aliens seeking 
CW-2 status may be affected indirectly by the applicability of the cap 
to the CW-1 principals from whom their status is derived.

Janet Napolitano,
Secretary.
[FR Doc. 2012-29025 Filed 11-29-12; 8:45 am]
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