[Federal Register Volume 82, Number 224 (Wednesday, November 22, 2017)]
[Rules and Regulations]
[Pages 55493-55495]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-25306]



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 Rules and Regulations
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  Federal Register / Vol. 82, No. 224 / Wednesday, November 22, 2017 / 
Rules and Regulations  

[[Page 55493]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 214

[CIS No. 2606-17; DHS Docket No. USCIS-2012-0010]
RIN 1615-ZB43


Commonwealth of the Northern Mariana Islands (CNMI)-Only 
Transitional Worker Numerical Limitation for Fiscal Years 2018 Through 
2020

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

ACTION: Notification of numerical limitations.

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SUMMARY: The Secretary of Homeland Security announces the annual fiscal 
year numerical limitations for the Commonwealth of the Northern Mariana 
Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrant 
classification for the remainder of the transition period, which is 
scheduled to end on December 31, 2019. This document announces the 
mandated annual reduction of the CW-1 numerical limitation (also known 
as the CW-1 cap) and ensures that CNMI employers and employees have 
sufficient information regarding the maximum number of CW-1 
transitional workers who may be granted status during the remainder of 
the transition period, which includes Fiscal Years (FYs) 2018-2019 and 
the first 3 months of FY 2020. For FY 2018, the cap is set at 9,998. 
For FY 2019, the cap is set at 4,999. For FY 2020, the cap is set at 
2,499 and will be in effect until the end of the transition period on 
December 31, 2019.

DATES: Effective November 22, 2017.

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 202-272-8377.

SUPPLEMENTARY INFORMATION: 

I. Background

    Title VII of the Consolidated Natural Resources Act of 2008 (CNRA) 
extended U.S. immigration law, with limited exceptions, to the CNMI and 
provided CNMI-specific provisions affecting foreign workers. See Public 
Law 110-229, 122 Stat. 754, 853-854. The CNRA provided for a transition 
period to phase out the CNMI's nonresident contract worker program and 
phase in the U.S. Federal immigration system in a manner that minimizes 
adverse economic and fiscal effects and maximizes the CNMI's potential 
for future economic and business growth. See sections 701 and 702(a) of 
the CNRA.
    The CNRA authorized the Secretary of Homeland Security to create a 
nonimmigrant classification that would ensure adequate employment in 
the CNMI during the transition period. See section 702(a) of the CNRA; 
48 U.S.C. 1806(d). The Department of Homeland Security (DHS) published 
a final rule on September 7, 2011, amending the regulations at 8 CFR 
214.2(w) to implement a temporary, CNMI-only transitional worker 
nonimmigrant classification (CW classification, which includes CW-1 for 
principal workers and CW-2 for spouses and minor children). See 
Commonwealth of the Northern Mariana Islands Transitional Worker 
Classification, 76 FR 55502 (Sept. 7, 2011).
    The CNRA mandated an annual reduction in the number of permits 
issued per year and the total elimination of the CW nonimmigrant 
classification by the end of the transition period. See 48 U.S.C. 
1806(d)(2). At the outset of the transitional worker program, DHS set 
the CW-1 numerical limitation (also known as the CW-1 cap) for FY 2011 
at 22,417 and for FY 2012 at 22,416. DHS announced these annual caps in 
DHS regulations at 8 CFR 214.2(w)(1)(viii)(A) and (B). DHS subsequently 
published annual caps by Federal Register notice. See 8 CFR 
214.2(w)(1)(viii)(C).
    The CNRA directed the U.S. Secretary of Labor to determine whether 
an extension of the CW program for an additional period of up to 5 
years beyond the expiration of the initial transition period on 
December 31, 2014, was necessary to ensure that an adequate number of 
workers will be available for legitimate businesses in the CNMI. The 
CNRA further provided the Secretary of Labor with the authority to 
provide for such an extension through notice in the Federal Register. 
On June 3, 2014, the Secretary of Labor extended the CW program for an 
additional 5 years, through December 31, 2019. See Secretary of Labor 
Extends the Transition Period of the Commonwealth of the Northern 
Mariana Islands-Only Transitional Worker Program, 79 FR 31988 (June 3, 
2014). Since the Secretary of Labor extended the CW program at least 
until December 31, 2019, DHS decided to preserve the status quo, or 
current conditions, rather than aggressively reduce CW-1 numbers for FY 
2015. DHS therefore reduced the CW-1 cap nominally by one, resulting in 
an FY 2015 limit of 13,999. See Commonwealth of the Northern Mariana 
Islands Transitional Worker Classification (CNMI)-Only Transitional 
Worker Numerical Limitation for Fiscal Year 2015, 79 FR 58241 (Sept. 
29, 2014).
    On December 16, 2014, Congress amended the law to extend the 
transition period until December 31, 2019. See Consolidated and Further 
Continuing Appropriations Act, 2015, Public Law 113-235, sec. 10, 128 
Stat. 2130, 2134 (codified at 48 U.S.C. 1806(d)). Congress also 
eliminated the Secretary of Labor's authority to provide for future 
extensions of the CW-1 program, requiring the CW-1 program to end (or 
sunset) on December 31, 2019. See id.
    For FY 2016, DHS reduced the cap by 1,000 to a limit of 12,999. See 
Commonwealth of the Northern Mariana Islands Transitional Worker 
Classification (CNMI)-Only Transitional Worker Numerical Limitation for 
Fiscal Year 2016, 80 FR 63911 (Oct. 22, 2015). The CW-1 cap was met for 
the first time in FY 2016.\1\ As a result, DHS preserved the status quo 
and reduced the cap for FY 2017 by only one to 12,998. See Commonwealth 
of the Northern Mariana Islands Transitional Worker Classification 
(CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Year 
2017, 81 FR 60581 (Sept. 2, 2016). In the Federal Register notice 
announcing the CW-1 cap for FY 2017, DHS explained that the nominal

[[Page 55494]]

reduction would help preserve access to foreign labor in the CNMI, and 
emphasized the statutory requirement to reduce the annual cap to zero 
no later than the end of calendar year 2019. DHS also provided notice 
to CNMI employers and CW-1 workers warning of potential significant 
reductions in the number in the annual cap in the years ahead. Shortly 
thereafter, on October 14, 2016, the CW cap was met for FY 2017, only 2 
weeks into the fiscal year.\2\
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    \1\ See ``USCIS Reaches CW-1 Cap for Fiscal Year 2016,'' 
available at https://www.uscis.gov/news/alerts/uscis-reaches-cw-1-cap-fiscal-year-2016.
    \2\ See ``USCIS Reaches CW-1 Cap for Fiscal Year 2017,'' 
available at https://www.uscis.gov/news/alerts/uscis-reaches-cw-1-cap-fiscal-year-2017.
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II. Maximum Number of CW-1 Nonimmigrant Workers for Fiscal Years 2018 
Through 2020

    The CNRA requires an annual reduction in the number of transitional 
workers but does not mandate a specific numerical reduction. See 48 
U.S.C. 1806(d)(2). In addition, DHS regulations provide that the CW-1 
cap for any fiscal year will be less than the number established for 
the previous fiscal year, and that the adjusted number will be 
reasonably calculated in DHS's discretion to reduce the number of CW-1 
nonimmigrant workers to zero by the end of the program. 8 CFR 
214.2(w)(1)(viii)(C). DHS may adjust the cap for a fiscal year or any 
other period, at any time by publishing a document in the Federal 
Register, as long as the number is less than the cap for the previous 
fiscal year. See 8 CFR 214.2(w)(1)(viii)(D).
    As noted previously, Congress has mandated that the transition 
period end on December 31, 2019, without the possibility of an 
administrative extension. See Public Law 113-235, sec. 10 (codified at 
48 U.S.C. 1806(a)(2), (d)). Given this firm sunset date and the CNRA's 
requirement to reduce the number of transitional workers to zero by the 
end of the transition period, DHS believes it is now appropriate to 
publish a reduction plan to inform the public of the number of CW-1 
workers available during each of the fiscal years for the remainder of 
the transition period. See 48 U.S.C. 1806(d)(2). DHS believes that 
publishing a reduction plan of the CW-1 cap over the remaining two and 
one-quarter fiscal years will provide employers with knowledge of the 
availability of CW workers and help them adjust their workforce needs 
before the transition period ends.
    DHS has set the CW-1 cap for FY 2018 at 9,998. For FY 2019, the cap 
is set at 4,999. For FY 2020, the cap is set at 2,499 and will be in 
effect until the transition period ends on December 31, 2019. DHS 
considered an approach similar to FY 2017 of a nominal reduction only 
for the next fiscal year, consistent with DHS's prior goal of best 
ensuring that there are enough CW-1 workers for future fiscal years 
until the end of the program. However, at this point in time, with 
little over two years remaining in the transition period, DHS has 
decided that an orderly reduction over the remaining years of the 
transition period is the most appropriate course of action. DHS made 
this decision based on the need to reduce the number of CW-1 
nonimmigrant workers to zero by the end of the transition period, and 
consistent with the warning DHS provided in the September 2016 Federal 
Register document that CNMI employers and CW-1 workers should plan for 
more significant reductions in the annual numerical limitation in the 
years ahead. DHS believes that this approach will further encourage the 
recruitment of U.S. workers and the transition into the U.S. 
immigration system, consistent with the goals of the CNRA and the 
general policy in Executive Order 13,788, Buy American and Hire 
American, 82 FR 18837, 18838 (Apr. 21, 2017), ``to protect the 
interests of United States workers in the administration of our 
immigration system.''
    DHS also notes that Congress recently revised the CW-1 statute 
without extending the transition period. The Northern Mariana Islands 
Economic Expansion Act \3\ (the NMIEEA), which was enacted into law on 
August 22, 2017, revised the CW-1 visa classification to, among other 
things, (1) add 350 CW-1 visas to the fiscal year (FY) 2017 CW-1 cap 
for purposes of extending certain existing CW-1 permits, thus raising 
the total number of visas that may be issued from 12,998 to 13,348; \4\ 
and (2) prohibit the CW-1 classification from being available to 
workers who will be performing jobs classified as ``construction and 
extraction occupations'' as defined in the U.S. Department of Labor's 
Standard Occupational Classification (SOC) system other than to extend 
CW-1 permits of such workers first issued before October 1, 2015.
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    \3\ See Northern Mariana Islands Economic Expansion Act, H.R. 
339, 115th Cong. (1st Sess. 2017) (amending Section 6 of Public Law 
94-241, 48 U.S.C. 1806) (Aug. 22, 2017).
    \4\ The additional 350 visas are immediately and exclusively 
available to current CW-1 workers who are applying to extend their 
status and whose petition validity period expires between August 23 
and September 30, 2017. Of these additional visas, 60 are reserved 
for ``healthcare practitioners and technical occupations'' and 10 
are reserved for ``plant and system operators'' as those terms are 
defined in the SOC system.
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    DHS reviewed this new legislation to consider its effect, if any, 
on the CW-1 FY 2018 cap. Congress added CW-1 visas to the FY 2017 cap, 
creating a new baseline of 13,448, yet it did not extend the transition 
period beyond the current sunset of December 31, 2019. Although the 
increase in the FY 2017 cap meant that DHS could have set the FY 2018 
cap as high as 13,347, DHS did not do so for the reasons set forth 
above.
    Notably, Congress also banned employers of new construction and 
extraction occupation workers from using the CW-1 classification. As 
described by the NMIEEA's sponsor in the Congressional Record, the bar 
on construction and extraction workers intends to require construction 
companies to fill new positions (including those filled by CW-1 workers 
after October 1, 2015) with non-CW-1 workers.\5\ As the construction 
worker bar will significantly reduce demand for the program compared to 
what it would be absent enactment of the NMIEEA, the new law will help 
mitigate potential harmful effects on CNMI employers resulting from the 
cap reductions for FY 2018 and subsequent years provided in this 
document. In setting the FY 2018 at 9,998, DHS is reducing the CW-1 cap 
by 3,000, which represents a reduction of about a quarter of the number 
for FY 2017. The FY 2019 cap, set to 4,999, reduces the FY 2018 cap by 
half. The final allocation for the first quarter of FY 2020 reduces the 
FY 2019 cap by half and is set to 2,499. A cap reduction in this manner 
complies with the regulatory requirement that the number in each fiscal 
year be reasonably calculated in DHS's discretion to reduce the number 
of CW-1 nonimmigrants to zero by the end of the transition period.
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    \5\ 163 Cong. Rec. E1132 (daily ed. Aug. 15, 2017) (statement of 
Delegate Sablan).
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    The FY 2018 cap for CW-1 nonimmigrant workers will be in effect 
beginning on October 1, 2017. DHS retains the ability to use its 
discretion to adjust the cap for a fiscal year or other period at any 
time by notice in the Federal Register, as long as the new cap is less 
than the one established for the previous fiscal year, and is a number 
reasonably calculated to reduce the number of CW-1 nonimmigrants to 
zero by the end of the transition period. See 8 CFR 
214.2(w)(1)(viii)(C) and (D). Consistent with the rules that apply to 
other nonimmigrant worker visa classifications, if the cap 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).
    Generally, each CW-1 nonimmigrant worker with an approved 
employment

[[Page 55495]]

start date that falls within FY 2018 (October 1, 2017-September 30, 
2018) will be counted against the new cap of 9,998. Counting each CW-1 
nonimmigrant worker in this manner will help ensure that USCIS does not 
approve requests that would exceed the cap of 9,998 CW-1 nonimmigrant 
workers granted such status in FY 2018.
    This document does not affect the current immigration status of 
foreign workers who have CW-1 nonimmigrant status. Such foreign 
workers, 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 cap applies to CW-1 principals only. This document, 
however, may indirectly affect individuals seeking CW-2 status since 
their status depends on the CW-1 principal's ability to obtain or 
retain CW-1 status.

Elaine C. Duke,
Acting Secretary of Homeland Security.
[FR Doc. 2017-25306 Filed 11-21-17; 8:45 am]
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