[Federal Register Volume 79, Number 188 (Monday, September 29, 2014)]
[Rules and Regulations]
[Pages 58241-58242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23024]



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  Federal Register / Vol. 79, No. 188 / Monday, September 29, 2014 / 
Rules and Regulations  

[[Page 58241]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2545-14; DHS Docket No. USCIS-2012-0010]
RIN 1615-ZB30


Commonwealth of the Northern Mariana Islands (CNMI)-Only 
Transitional Worker Numerical Limitation for Fiscal Year 2015

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 annual 
fiscal year numerical limitation for the Commonwealth of the Northern 
Mariana Islands (CNMI)-only Transitional Worker (CW-1) nonimmigrant 
classification for fiscal year (FY) 2015 is set at 13,999. 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 
additional 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 CW-1 transitional 
workers who may be granted status during FY 2015.

DATES: Effective Date: September 29, 2014.

FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, 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 CNRA extended U.S. immigration law to the CNMI and 
provides CNMI-specific provisions affecting foreign workers. See Public 
Law 110-229, 122 Stat. 754, 853. 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. The CNRA authorized the Department of 
Homeland Security (DHS) to create a nonimmigrant classification that 
would ensure adequate employment in the CNMI during the transition 
period. 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 
December 31, 2014, or by the end of any extension of the transition 
period for the CW program. See 48 U.S.C. 1806(d)(2).
    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 Commonwealth of 
the Northern Mariana Islands Transitional Worker Classification, 76 FR 
55502 (Sept. 7, 2011). DHS established the CW-1 numerical limitation 
for FY 2011 at 22,417 and for FY 2012 at 22,416. See 8 CFR 
214.2(w)(1)(viii)(A) and (B). DHS opted to publish any future annual 
numerical limitations by Federal Register notice. See 8 CFR 
214.2(w)(1)(viii)(C). Instead of developing a numerical limit reduction 
plan, DHS determined that it would be best to instead assess the CNMI's 
workforce needs on a yearly basis. Id. This initial approach to the 
allocation system ensured that employers had an adequate supply of 
workers to provide a smooth transition into the federal immigration 
system. It also provided DHS with the flexibility to adjust to the 
future needs of the CNMI economy and to assess the total foreign 
workforce needs based on the number of requests for transitional worker 
nonimmigrant classification received following implementation of the 
CW-1 program.
    DHS followed this same rationale for the FY 2013 and FY 2014 annual 
fiscal year numerical limitations. After assessing all workforce needs, 
including the opportunity for economic growth, DHS set the CW-1 
numerical limitation at 15,000 and 14,000, respectively. CNMI-Only 
Transitional Worker Numerical Limitation for Fiscal Year 2013, 77 FR 
71287 (Nov. 30, 2012); CNMI-Only Transitional Worker Numerical 
Limitation for Fiscal Year 2014, 78 FR 58867 (Sept. 25, 2013). The FY 
2013 and FY 2014 numerical limitations were based on the actual 
demonstrated need for foreign workers within the CNMI during FY 2012. 
See id.
    The CNRA directed the U.S. Secretary of Labor to determine, not 
later than 180 days before the end of the transition period, whether an 
extension of the CW program for an additional period of up to five 
years is necessary to ensure an adequate number of workers will be 
available for legitimate businesses in the CNMI, and further provided 
the Secretary of Labor with the authority to provide for such an 
extension through notice in the Federal Register. See 48 U.S.C. 
1806(d)(5). On June 3, 2014, the Secretary of Labor exercised this 
statutory responsibility and authority by extending the CW program for 
an additional five years, through December 31, 2019. See Secretary of 
Labor Extends the Transition Period of the Commonwealth of the Northern 
Mariana Islands-Only Transitional Worker Program, 79 FR 31988 (June 3, 
2014).

II. Maximum Number of CW-1 Nonimmigrant Workers for Fiscal Year 2015

    The CNRA requires an annual reduction in the number of transitional 
workers 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 
established for the previous fiscal year, and it will be reasonably

[[Page 58242]]

calculated to reduce the number of CW-1 nonimmigrant workers to zero by 
the end of the program. DHS may adjust the numerical limitation at any 
time via notice in the Federal Register, but may only reduce the 
figure, not raise it. See 8 CFR 214.2(w)(viii)(D).
    To comply with these requirements, meet the CNMI's labor market's 
needs, provide opportunity for growth, and preserve access to foreign 
labor, DHS has set the numerical limitation for FY 2015 at 13,999. DHS 
arrived at this figure by taking the number of CW-1 nonimmigrant 
workers needed based on the FY 2014 limitation of 14,000, and then 
nominally reducing it by one.
    In setting this new numerical limitation for FY 2015, DHS 
considered its effect in conjunction with the Secretary of Labor's 
five-year extension of the transitional worker program. The Department 
of Labor's (DOL's) Federal Register notice indicated that DOL examined 
a number of factors, including but not limited to, studies on the need 
for foreign workers, unemployment rates, and prior use of foreign 
workers in certain industries, in reaching its decision to extend the 
program.\1\ See 79 FR at 31989. In reviewing workforce studies that 
examined the economic impact of alien workers on the CNMI economy and 
on the labor market, DOL found that the majority of the CNMI's current 
labor supply is provided by foreign workers. Id. DOL indicated that the 
studies unanimously concluded that restrictions on the foreign labor 
supply will exacerbate the CNMI's current economic problems and 
restrain current economic growth. Id. In examining the unemployment 
rate, the labor force, and the number of jobs available in the CNMI, 
DOL also determined that even if all the U.S. workers in the labor 
force were employed, a significant number of jobs would still need to 
be filled by foreign workers. Id. On the need for foreign workers to 
fill specific industry jobs, CNMI government officials reported to DOL 
that legitimate businesses in the CNMI have difficulty finding 
qualified applicants for skilled jobs who are U.S. citizens and lawful 
permanent residents. Id. DOL thus concluded that there are an 
insufficient number of U.S. workers available to meet CNMI's 
businesses' current needs, and that a five-year extension of the CW-1 
program is warranted. Id.
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    \1\ The CNRA stipulates that in making the determination of 
whether foreign workers are necessary to ensure an adequate number 
of workers in the CNMI, the Secretary of Labor may consider eight 
factors: (1) Government, industry, or independent workforce studies 
reporting on the need, or lack thereof, for alien workers in the 
Commonwealth's businesses; (2) the unemployment rate of U.S. citizen 
workers residing in the Commonwealth; (3) the unemployment rate of 
aliens in the Commonwealth who have been lawfully admitted for 
permanent residence; (4) the number of unemployed alien workers in 
the Commonwealth; (5) any good faith efforts to locate, educate, 
train, or otherwise prepare U.S. citizen residents, lawful permanent 
residents, and unemployed alien workers already within the 
Commonwealth, to assume those jobs; (6) any available evidence 
tending to show that U.S. citizen residents, lawful permanent 
residents, and unemployed alien workers already in the Commonwealth 
are not willing to accept jobs of the type offered; (7) the extent 
to which admittance of alien workers will affect the compensation, 
benefits, and living standards of existing workers within those 
industries and other industries authorized to employ alien workers; 
and, (8) the prior use, if any, of alien workers to fill those jobs, 
and whether the industry requires alien workers to fill those jobs. 
48 U.S.C. 1806(d)(5)(C).
---------------------------------------------------------------------------

    For the aforementioned reasons, DHS recognizes that any numerical 
limitation must account for the fact that the CNMI economy continues to 
be based on a workforce comprised primarily of foreign workers. 
Therefore, any new fiscal year numerical limit must allow for economic 
growth until the end of the transitional worker program, which is now 
December 31, 2019. DHS must reduce the annual numerical limitation as 
statutorily mandated, but also must ensure that there are enough CW-1 
workers for future fiscal years until the end of the program. DHS 
believes that a conservative reduction of only one worker is 
appropriate for FY 2015 because the new baseline must preserve access 
to foreign labor, as well as accommodate future reductions to the 
numerical limitation until the end of the transitional worker program. 
Accordingly, DHS is reducing the number of transitional workers from 
the current fiscal year numerical limitation of 14,000, and 
establishing the maximum number of CW-1 nonimmigrant visas available 
for FY 2015 at 13,999. Given the significantly extended time horizon 
for the CW program until December 31, 2019, DHS believes that the 
prudent approach to the numerical limit for the next fiscal year is to 
essentially preserve the status quo rather than implement a more 
aggressive reduction of CW-1 numbers at this time.
    This number of CW-1 nonimmigrant workers will be available 
beginning on October 1, 2014. 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).
    Each CW-1 nonimmigrant worker with an approved employment start 
date that falls within FY 2015 will be counted against the new 
numerical limitation of 13,999. Counting each CW-1 nonimmigrant worker 
in this manner will help ensure that USCIS does not approve requests 
for more than 13,999 CW-1 nonimmigrant workers. If USCIS determines 
that sufficient petitions have been filed to reach the 13,999 limit for 
CW-1 nonimmigrant workers, USCIS will hold any subsequently-received 
petitions until a final determination is made on the petitions already 
pending before USCIS. Any approved CW-1 workers from those pending 
petitions will be counted against the new numerical limitation of 
13,999. Subsequently-received petitions on hold will be accepted for 
processing and forwarded for adjudication in the order in which they 
were received until USCIS has approved petitions for the maximum number 
of CW-1 nonimmigrant workers. Any remaining petitions that were held or 
that are newly received will be rejected once the numerical limitation 
for CW-1 nonimmigrant workers has been reached.
    This document does not affect the immigration status of foreign 
workers who already have CW-1 nonimmigrant status. Foreign workers 
currently holding such status, however, will be affected by this 
document when their CNMI employers file for an extension of their CW-1 
nonimmigrant classification, or a change of status from another 
nonimmigrant status to that of CW-1 nonimmigrant status.
    This document does not affect the status of any individual 
currently holding CW-2 nonimmigrant status as the spouse or minor child 
of a CW-1 nonimmigrant worker. This document also does not directly 
affect the ability of any individual to extend or otherwise obtain CW-2 
status, as the numerical limitation applies to CW-1 principals only. 
Individuals seeking CW-2 status may, however, be indirectly affected by 
the applicability of the cap to the CW-1 principals from whom their 
status is derived.

Jeh Charles Johnson,
Secretary.
[FR Doc. 2014-23024 Filed 9-26-14; 8:45 am]
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