[Federal Register Volume 85, Number 94 (Thursday, May 14, 2020)]
[Rules and Regulations]
[Pages 29264-29317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08524]



[[Page 29263]]

Vol. 85

Thursday,

No. 94

May 14, 2020

Part IV





 Department of Homeland Security





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8 CFR Parts 103, 208, 209, et al.





 Implementation of the Northern Mariana Islands U.S. Workforce Act of 
2018; Interim Final Rule

  Federal Register / Vol. 85 , No. 94 / Thursday, May 14, 2020 / Rules 
and Regulations  

[[Page 29264]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 208, 209, 212, 214, 235, and 274a

[CIS No. 2630-18; DHS Docket No. USCIS-2019-0003]
RIN 1615-AC28


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

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

ACTION: Interim final rule with request for comments.

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

DATES: 
    Effective date: This rule is effective June 18, 2020.
    Comment date: Written comments and related material must be 
submitted on or before July 13, 2020. Comments on the form, form 
instructions, and information collection revisions in this interim rule 
must be submitted on or before June 15, 2020.

ADDRESSES: You must submit comments, identified as DHS Docket No. 
USCIS-2019-0003, through one of the following methods:
    [middot] Federal eRulemaking Portal (preferred): http://www.regulations.gov. Follow the website instructions for submitting 
comments.
    [middot] Mail: Samantha Deshommes, Chief, Regulatory Coordination 
Division, Office of Policy and Strategy, U.S. Citizenship and 
Immigration Services, Department of Homeland Security, 20 Massachusetts 
Avenue NW, Washington, DC 20529-2140. To ensure proper handling, please 
reference DHS Docket No. USCIS-2019-0003 in your correspondence. Mail 
must be postmarked by the comment submission deadline.
    Comments submitted in a manner other than those listed above, 
including emails or letters sent to DHS or USCIS officials, will not be 
considered comments on the interim final rule. Please note that DHS and 
USCIS cannot accept any comments that are hand delivered or couriered. 
In addition, USCIS cannot accept mailed comments contained on any form 
of digital media storage devices, such as CDs/DVDs and USB drives.

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

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

Table of Contents

I. Public Participation
II. Executive Summary
    A. Purpose of the Regulatory Action
    1. Need for the Regulatory Action and How the Action Will Meet 
That Need
    B. Legal Authority
    C. Summary of the Major Provisions of This Regulatory Action
    1. Statutory Changes
    2. Technical Changes
    D. Summary of Costs and Benefits
III. Background
    A. Legal Framework
    B. Legislative Authority
    1. Legislation Prior to the Workforce Act
    2. The Workforce Act
IV. Changes to DHS Regulations
    A. Codifying the Provisions Effective Immediately Pursuant to 
the Workforce Act
    1. Extension of the Transition Period
    2. CW-1 Numerical Limitation
    3. CNMI Education Fee
    4. Fraud Prevention and Detection Fee
    B. CW-1 Numerical Reservation for Specific Occupational 
Categories
    C. U.S. Department of Labor, Temporary Labor Certification 
Requirement
    D. CW-1 Petition Filing Window
    E. Semiannual Report for CW-1 Employers
    F. Revocations
    G. Definition of Legitimate Business
    H. Long-Term Workers
    I. Bar on Certain Construction Worker Occupations
    J. Temporary Departure Requirement
    K. Transit Through Guam
    L. Other Technical Amendments to DHS Regulations
V. Statutory and Regulatory Requirements
    A. Administrative Procedure Act
    B. Executive Orders 12866 (Regulatory Planning and Review), 
13563 (Improving Regulation and Regulatory Review), and 13771 
(Reducing Regulation and Controlling Regulatory Costs)
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act of 1995
    E. Congressional Review Act
    F. Executive Order 13132 (Federalism)
    G. Executive Order 12988 (Civil Justice Reform)
    H. National Environmental Policy Act (NEPA)
    I. Paperwork Reduction Act
    J. Family Assessment
    K. Signature

I. Public Participation

    DHS invites all interested parties to participate in this 
rulemaking by submitting written data, views, comments, and arguments 
on all aspects of this interim final rule. DHS also invites comments 
that relate to the economic, environmental, or federalism effects that 
might result from this interim final rule. Comments must be submitted 
in English, or an English translation must be provided. Comments that 
will provide the most assistance to DHS in implementing these changes 
will reference a specific portion of the interim rule, explain the 
reason for any recommended change, and include data, information, or 
authority that support such recommended change.
    Instructions: If you submit a comment, you must include the agency 
name (U.S. Citizenship and Immigration Services) and the DHS Docket No. 
USCIS-2019-0003 for this rulemaking. Regardless of the method used for 
submitting comments or material, all submissions will be posted, 
without change, to the Federal eRulemaking Portal at http://www.regulations.gov, and will include any personal information you 
provide. Therefore, submitting this information makes it public. You 
may wish to consider limiting the amount of personal information that 
you provide in any voluntary public comment submission you make to DHS. 
DHS may withhold information provided in comments from public viewing 
that it determines may impact the privacy of an individual or is 
offensive. For additional information, please read the Privacy and 
Security Notice available at http://www.regulations.gov.
    Docket: For access to the docket and to read background documents 
or comments received, go to http://www.regulations.gov, referencing DHS 
Docket No. USCIS-2019-0003. You may also sign up for email alerts on 
the online docket to be notified when comments are posted or a final 
rule is published.

II. Executive Summary

A. Purpose of the Regulatory Action

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

[[Page 29265]]

worker categories. See Commonwealth of the Northern Mariana Islands 
Transitional Worker Classification, 76 FR 55502 (Sept. 7, 2011). This 
transitional worker program was intended to provide for an orderly 
transition for those workers from the CNMI permit system to the U.S. 
federal immigration system under the Immigration and Nationality Act 
(INA), and to mitigate potential harm to the CNMI economy as employers 
adjust their hiring practices and as foreign workers obtain U.S. 
immigrant or nonimmigrant status.
    On July 24, 2018, President Donald J. Trump signed the Northern 
Mariana Islands U.S. Workforce Act of 2018 (the Workforce Act), Public 
Law 115-218, 132 Stat. 1547. The stated purposes of the Workforce Act 
are to increase the percentage of United States workers in the total 
workforce of the CNMI, while maintaining the minimum number of non-U.S. 
workers to meet the demands of the CNMI's economy; to encourage the 
hiring of United States workers into the CNMI workforce; and to ensure 
that no U.S. worker is at a competitive disadvantage compared to a non-
U.S. worker or is displaced by a non-U.S. worker. Workforce Act sec. 2. 
For a summary of the statutory history of CNMI immigration provisions, 
see section III below.
1. Need for the Regulatory Action and How the Action Will Meet That 
Need
    The Workforce Act makes a number of changes to the transitional 
provisions of Title VII of the Consolidated Natural Resources Act of 
2008 (CNRA), Public Law. 110-229, 122 Stat. 754, 853-854--which 
extended the U.S. immigration laws, with limited exceptions, to the 
CNMI--and requires the Secretaries of Homeland Security and Labor to 
each promulgate an Interim Final Rule (IFR) implementing the related 
statutory changes no later than January 20, 2019, which is 180 days 
from the date of enactment.\1\ (Pub. L. 115-218, sec. 3(b)(1), (2)). 
The Department of Labor (DOL) IFR was published on April 1, 2019, and 
went into effect on April 4, 2019.\2\ The DHS IFR was delayed by a 
number of months. The Workforce Act provides the Secretary with the 
discretionary authority to delay statutory provisions relating to the 
CW-1 program, except for provisions providing annual numerical caps for 
such workers, until the effective date of the IFR. (Pub. L. 115-218, 
sec. 3(e)(2)). On July 25, 2018, DHS announced that it would exercise 
its discretion, as provided in the Workforce Act, to delay 
implementation of other statutory changes to the CW-1 program affecting 
CW-1 filers until DHS issued an IFR.\3\ In accordance with the 
Workforce Act, DHS is amending its regulations. The amendments would:
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    \1\ The statutory deadline for rulemaking is 180 days after 
enactment, or January 20, 2019. However, under 1 CFR 18.17, when a 
date falls on a weekend or holiday, the next Federal business day is 
used for publication in the Federal Register. In this case, the next 
business day is January 22, 2019.
    \2\ 84 FR 12380 (Apr. 1, 2019).
    \3\ See USCIS, ``New Law Extends CNMI CW-1 Program, Mandates New 
Fraud Fee, and Will Require E-Verify Participation,'' available at 
https://www.uscis.gov/news/alerts/new-law-extends-cnmi-cw-1-program-mandates-new-fraud-fee-and-will-require-e-verify-participation (last 
visited May 28, 2019).
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     Reflect the statutory extension of the transition period 
until December 31, 2029;
     Reflect the statutory CW-1 cap increase for fiscal year 
(FY) 2019 and codify the statutory CW-1 caps for subsequent fiscal 
years until the end of the transition period;
     Reflect the increase in the CNMI education funding fee to 
$200 per worker and the Secretary's discretionary authority to increase 
this fee in the future and the requirement to submit a new mandatory 
$50 fraud prevention and detection fee with each CW-1 petition filed;
     Specify the CW-1 numerical reservations for specific 
occupational categories;
     Require an approved temporary labor certification (TLC) 
from the DOL prior to filing a CW-1 petition;
     Reflect a minimum wage requirement;
     Impose a new CW-1 petition filing window;
     Require a CW-1 employer to file a semiannual reporting 
form to verify the CW-1 employment;
     Implement new revocation procedures;
     Revise the definitions of ``legitimate business'' (which 
includes participation in E-Verify as a condition of employing a CW-1 
worker), ``direct Guam transit,'' ``lawfully present in the CNMI,'' and 
``United States worker,'' as well as newly define ``participant in good 
standing in the E-Verify program'' and ``successor in interest'';
     Establish a new long-term worker subcategory of CW-1;
     Continue the bar on eligibility of certain construction 
worker occupations under the CW-1 program;
     Make conforming amendments to DHS regulations regarding 
inadmissibility, deportability, and asylum;
     Extend the asylum bar in the CNMI until December 31, 2029; 
and
     Impose temporary departure requirements for certain CW-1 
workers.
    Certain provisions of the Workforce Act took effect immediately 
upon enactment. Specifically, the Workforce Act extended the CW-1 
program through 2029, increased the CW-1 cap for FY 2019, provided new 
CW-1 caps for subsequent fiscal years, and mandated a new fraud 
prevention and detection fee with each petition. In addition to 
extending the CW-1 program, it also immediately extended the following 
Consolidated Natural Resources Act of 2008 \4\ provisions until 
December 31, 2029:
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    \4\ See Public Law 110-229, 122 Stat. 754, 853-854.
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     The exemption from national caps for H-1B and H-2B workers 
in the CNMI and on Guam;
     The bar on asylum applications in the CNMI; and
     The CNMI-Only Nonimmigrant Investor (E-2C) program.

B. Legal Authority

    The Secretary of Homeland Security's authority for the regulatory 
amendments is found in various provisions of the Immigration and 
Nationality Act (INA), 8 U.S.C. 1101 et seq., and the Homeland Security 
Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et 
seq. General authority for issuing the rule is found in section 103(a) 
of the INA, 8 U.S.C. 1103(a), which authorizes the Secretary to 
administer and enforce the immigration and nationality laws, and to 
establish such regulations as the Secretary deems necessary. In 
addition, section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides 
the Secretary with authority to prescribe by regulation the terms and 
conditions of any alien's admission to the United States as a 
nonimmigrant. Further authority for the regulatory amendments in this 
interim final rule is found in:
     Title VII of the Consolidated Natural Resources Act of 
2008 (CNRA), which extended U.S. immigration law, with limited 
exceptions, to the CNMI and provided CNMI-specific provisions affecting 
foreign workers. See Public Law 110-229, 122 Stat. 754, 853-854. The 
CNRA authorized the Secretary of Homeland Security to create a 
nonimmigrant classification that would ensure CNMI employers have 
access to adequate labor during the transition period. See section 
702(a) of the CNRA; 48 U.S.C. 1806(d).
     The Workforce Act, Public Law 115-218, which, among other 
things, sets statutory caps, imposes a mandatory fraud fee, extends the 
transition period until December 31,

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

C. Summary of the Major Provisions of This Regulatory Action

1. Statutory Changes
    This IFR amends DHS regulations at 8 CFR 214.2(w) to include the 
following major changes:
    First, DHS will revise 8 CFR 214.2(w)(1)(xvi) to reflect the 
statutory extension of the transition period and the CW program through 
December 31, 2029. While the CW program was previously extended via the 
DOL's discretionary authority \5\ and later via statute,\6\ the related 
regulation was not revised to reflect any of the CW program extensions. 
This change will reflect the new sunset date in existing regulations.
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    \5\ On June 3, 2014, the Secretary of Labor extended the CW 
program for an additional 5 years, through December 31, 2019. See 
Secretary of Labor Extends the Transition Period of the Commonwealth 
of the Northern Mariana Islands-Only Transitional Worker Program, 79 
FR 31988 (June 3, 2014).
    \6\ On December 16, 2014, Congress amended the law to extend the 
transition period until December 31, 2019. See Consolidated and 
Further Continuing Appropriations Act, 2015, Public Law 113-235, 
sec. 10, 128 Stat. 2130, 2134. Congress also eliminated the 
Secretary of Labor's authority to provide for future extensions of 
the CW-1 program, requiring the CW-1 program to sunset on December 
31, 2019.
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    Second, the Workforce Act provided new CW-1 numerical limitations 
(caps) for subsequent fiscal years until the end of the transition 
period on December 31, 2029. To date, the CW-1 caps have been published 
via Notice in the Federal Register for each fiscal year, beginning with 
FY 2013, in accordance with 8 CFR 214.2 (w)(1)(x). The new CW-1 caps 
are now set by the Workforce Act for the remainder of the transition 
period. Consequently, a yearly Federal Register Notice is no longer 
necessary. The CW-1 caps are reflected in this IFR.
    Third, this IFR updates the regulation, at 8 CFR 103.7(b)(1)(i)(J) 
and 8 CFR 214.2(w)(5), to reflect that in 2017 Congress raised the 
supplemental CNMI education funding fee from $150 to $200 \7\ per each 
beneficiary issued CW-1 status, per year. Consistent with the Workforce 
Act, the IFR also provides the Secretary of Homeland Security the 
discretion to annually adjust this supplemental fee via notice in the 
Federal Register. This IFR also updates existing regulations, at 8 CFR 
103.7(b)(1)(i)(J) and 8 CFR 214.2(w)(5), to include the Workforce Act's 
requirement that CW-1 employers must pay a mandatory $50 fraud 
prevention and detection fee with each petition, in addition to other 
current fees. This new fraud prevention and detection fee does not 
apply to CW petitions already filed and pending with USCIS as of July 
24, 2018.
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    \7\ In 2017, Congress enacted the Northern Mariana Islands 
Economic Expansion Act, Public Law 115-53, 131 Stat. 1091, which 
increased the supplemental fee paid for each CW permit to $200 and 
banned issuing new CW-1 permits to construction workers.
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    Fourth, this IFR updates regulations to include CW-1 cap 
reservations for certain occupational categories per fiscal year, as 
recommended by the Governor of the CNMI,\8\ and indicates use of the 
DOL Standard Occupational Classification (SOC) system to specify which 
occupations are part of this cap reservation. See new 8 CFR 
214.2(w)(1)(x)(D)(1) and (2). Accordingly, this IFR makes the following 
reservations of CW-1 numbers for specified occupational categories: (i) 
200 for occupational categories 29-0000 (Healthcare Practitioners and 
Technical Occupations) and 31-0000 (Healthcare Support Occupations); 
and (ii) 60 for occupational categories related to the operations of 
the CNMI public utilities services, to include, but not limited to 17-
2081 (Water/Waste Water Engineers), 17-2071 (Electrical Engineers), 17-
2141(Mechanical Engineers), and Trades Technicians.\9\ New 8 CFR 
214.2(w)(1)(x)(D)(1). The reserved CW-1 numbers will be made available 
to eligible petitioners requesting such numbers for a fiscal year in 
order of filing until exhausted. Unused reserved numbers will not be 
available to other petitioners.
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    \8\ See Letter from Rafael DLG Torres, Governor of the CNMI, to 
Kirstjen Nielsen, Secretary, DHS (Aug. 8, 2018), available at http://www.regulations.gov under DHS Docket No. USCIS-2019-0003. 
References in this IFR to ``the Governor'' are to the Governor of 
the CNMI.
    \9\ A corresponding SOC code does not exist that would include 
all Trades Technicians occupations.
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    Fifth, this IFR revises petition procedures at 214.2(w)(6)(iv) to 
require that a CW-1 petition must be filed with an approved TLC \10\ 
from DOL. The Workforce Act imposes this requirement for any CW-1 
petition with an employment start date in FY 2020 and beyond. The 
Workforce Act requires a TLC approved by DOL to confirm that there are 
not sufficient United States workers in the CNMI who are able, willing, 
qualified, and available to fill the petitioning CW-1 employer's job 
opportunity. 48 U.S.C. 1806(d)(2)(A). The TLC also confirms that the 
foreign worker's employment in the job opportunity will not adversely 
affect the wages or working conditions of similarly employed United 
States workers. Id.
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    \10\ To obtain a TLC, employers must submit a complete 
Application for Prevailing Wage Determination (Form ETA-9141C) with 
the OFLC National Prevailing Wage Center (NPWC) containing 
information about the job opportunity in which the nonimmigrant 
workers will be employed, as required by 20 CFR 655.410. Once the 
NPWC issues a prevailing wage determination, the employer may submit 
the CW-1 Application for Temporary Employment Certification and 
supporting documentation, as required by 20 CFR 655.420-423. Once 
all CW-1 regulatory requirements are met, the TLC is issued. Under 
the provisions at 20 CFR 655.452, if DOL issues a TLC, it will 
transmit a Final Determination notice and a copy of the certified 
CW-1 Application for Temporary Employment Certification (Form ETA-
9142C) to the employer, with a copy to the employer's representative 
if it has one.
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    Sixth, this IFR revises 8 CFR 214.2(w)(6)(ii)(I) to include the 
statutory minimum wage requirements for a CW petitioner. It now 
specifies that the petitioner will pay the beneficiary a wage that is 
not less than the greater of (1) the CNMI minimum wage; (2) the Federal 
minimum wage; or (3) the prevailing wage in the CNMI for the occupation 
in which the beneficiary will be employed, as established by the DOL.
    Seventh, this IFR establishes a new filing timeframe for CW-1 
petitioners at 8 CFR 214.2(w)(12)(ii). The Workforce Act states that an 
employer seeking to extend the employment of a CW-1 worker may petition 
USCIS no earlier than 180 calendar days before the expiration of the 
CW-1 status. Employers filing an initial petition for CW-1 status may 
not petition earlier than 120 days before the date of actual need for 
the beneficiary's services.
    Eighth, this IFR requires a CW-1 employer to file a semiannual 
reporting form to verify the continuing employment and payment of the 
CW-1 worker under the terms and conditions set forth in the CW-1 
petition. See new 8 CFR 214.2(w)(26). DHS will implement this new 
statutory requirement via a new standalone form which will capture data 
to provide USCIS with the information necessary to help verify the 
continuing employment and payment of the CW-1 worker, and will contain 
an attestation confirming those elements. USCIS will not require 
submission of evidence at the time of filing, but employers must retain 
documents and records which support the attestation for three years 
after the ending date of the petition validity period. An employer must 
retain evidence that supports the semiannual report, including but not 
limited to: (a) Personnel records for each CW-1 worker including the 
name, address of current residence in the Commonwealth, age, domicile, 
citizenship, point of hire, and approved employment contract 
termination date; (b) payroll records for each CW-1 worker including 
the O*NET job classification, wage rate or salary,

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number of hours worked each week, gross compensation, itemized 
deductions, and evidence of net payments made and received biweekly; 
and (c) direct evidence of payment of wages and overtime, such as 
receipts for cash payments, cancelled checks, or deposit records of 
payment of wages and overtime.
    Ninth, this IFR establishes revocation procedures, at new 8 CFR 
214.2(w)(27), for an employer's CW-1 petition using existing revocation 
grounds in place for other nonimmigrants programs (such as the H 
classification revocation procedures at 8 CFR 214.2(h)(11)), which 
include automatic revocation grounds if the petitioner either ceases 
operations or files a written withdrawal of the petition, or DOL 
revokes the TLC upon which the petition is based. This IFR also 
includes discretionary grounds for revocation on a notice of intent to 
revoke (NOIR) to incorporate the good cause grounds listed in the 
Workforce Act. In accordance with the Workforce Act, for each 
beneficiary of a petition revoked in a fiscal year, USCIS will add a 
CW-1 cap number to the next fiscal year.
    Tenth, this IFR incorporates the definition of legitimate business 
as set forth in the Workforce Act. The new definition, at 8 CFR 214.2 
(w)(1)(vii), mirrors current section 214.2(w)(1)(vi), but adds a 
provision to address human trafficking in general (the previous 
definition specified human trafficking in minors). It also requires E-
Verify participation as a condition of filing CW-1 petitions. 
Additionally, it updates the definition with the statutory requirement 
for substantial current and past compliance with wage and hour laws, 
occupational safety and health requirements, nondiscrimination, and all 
other Federal, CNMI, and local requirements relating to employment 
during the five-year period immediately preceding the date of filing 
the petition. Finally, also consistent with the Workforce Act, it 
precludes participation by businesses (including successors in interest 
to businesses) with an owner, investor, manager, operator, or person 
meaningfully involved with the undertaking, if such individual has been 
an owner, investor, manager, operator, or person otherwise meaningfully 
involved with an undertaking that was not in compliance with certain 
employment-related legal requirements at any time during which such 
individual was involved with the undertaking, or is an agent of such 
individual.
    Eleventh, this IFR creates a subcategory of CW-1 workers known as 
``long-term workers'' at 8 CFR 214.2(w)(1)(viii). Under the Workforce 
Act, these are workers who were admitted or otherwise granted status as 
a CW-1 during FY 2015, and during every subsequent fiscal year through 
July 24, 2018.\11\ This subcategory of CW-1 workers is eligible for a 
longer period of stay, in increments of up to 3-year periods, during 
the transition period. These periods are renewable and will be counted 
against the cap on a yearly basis.
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    \11\ See 48 U.S.C. 1806(d)(7)(B). President Trump signed the 
Workforce Act on July 24, 2018.
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    Twelfth, at 8 CFR 214.2(w)(2)(vii), this IFR amends the bar on 
certain construction worker occupations, which was enacted in 2017,\12\ 
and prohibits the CW-1 classification from being available to workers 
who will be performing jobs classified as ``construction and extraction 
occupations'' as defined in the DOL's SOC system; this prohibition does 
not apply to ``long-term workers'' as defined by the Workforce Act.
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    \12\ See Northern Mariana Islands Economic Expansion Act, Public 
Law 115-53 (amending Section 6 of Public Law 94-241, 48 U.S.C. 
1806).
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    Thirteenth, this IFR imposes temporary departure requirements for 
certain CW-1 workers at 8 CFR 214.2 (w)(18)(v). Specifically, it 
requires CW-1 workers who have received a second extension to depart 
the CNMI for at least 30 continuous days prior to filing for CW-1 
status again. However, consistent with the Workforce Act, it exempts 
the ``long-term workers'' from this departure requirement.
2. Technical Changes
    This IFR also makes a number of conforming amendments to DHS 
regulations regarding the asylum provisions to extend the asylum bar in 
the CNMI until December 31, 2029.\13\
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    \13\ The Department of Justice will be publishing a separate 
rule to make technical amendments to 8 CFR Chapter V to reflect that 
Congress has extended the statutory bar for asylum in the CNMI until 
December 31, 2029. See Workforce Act at sec. 3(a). 48 U.S.C. 
1806(a)(2),(7).
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D. Summary of Costs and Benefits

    The costs associated with the revisions to the DHS regulations in 
this interim final rule (IFR) include costs of preparing and filing the 
Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I-
129CW), filing applications for extension of stay, participating in the 
E-Verify program, submitting semiannual reports and document retention, 
submitting notifications to USCIS, and filing revoked petitions. These 
costs are discussed in detail in the Executive Order 12866 and 13563 
sections of this rule. Overall, the lower bound net total estimated 
cost of the rule is $73,578,345 undiscounted, $62,851,776 discounted at 
3 percent, and $51,858,612 discounted at 7 percent from FY 2019 to 
2030. Likewise, the upper bound net total estimated cost of the rule is 
$61,741,219 undiscounted, $52,693,918 discounted at 3 percent, and 
$43,433,060 discounted at 7 percent from FY 2019 to 2030. The total 
estimated lower bound transfers are $25,712 at 7 percent and $32,361 at 
3%, while the total estimated upper bound transfers are $13,845,180 
discounted at 7% and $16,806,753 discounted at 3%. The annualized cost 
of the rule discounted at 7 percent is $5,468,222 for the lower bound 
and $6,528,999 for the upper bound estimates.
    A petitioner is required to file Form I-129CW to employ 
nonimmigrant workers who are otherwise ineligible to work in the CNMI 
under other nonimmigrant worker categories. DHS estimates the total 
petitioners' cost to file Form I-129CW petitions to be $57,047,877 
undiscounted, $48,668,535 discounted at 3 percent, and $40,092,491 
discounted at 7 percent from FY 2019 to 2030, which includes the 
opportunity cost of time to complete Form I-129CW, the postage cost to 
mail the completed form, and the costs associated with Form I-129CW 
filing fee, education funding fee, and fraud prevention and detection 
fee. Petitioners are also required to file a new petition to request an 
extension of stay for their currently approved CW-1 nonimmigrant 
employees. However, the cost of filing a petition for an extension of 
stay is already captured by the cost of filing Form I-129CW petitions.
    The IFR requires that any employer petitioning for a CW-1 
nonimmigrant worker must be an E-Verify program participant in good 
standing. Participating in the E-Verify program requires employers to 
enter information from their newly hired employee's Form I-9, 
Employment Eligibility Verification, to be electronically matched 
against records available to DHS and the Social Security Administration 
(SSA) to confirm the employee's identity and employment eligibility. 
This results in a cost burden to employers. Employers also incur 
additional cost burden for annual training in E-Verify as they continue 
to comply with E-Verify requirements. DHS estimates the total cost of 
participating in the E-Verify program to be $1,224,618 undiscounted, 
$1,061,385 discounted at 3 percent, and $894,425 discounted at 7 
percent from FY 2019 to 2030.
    An employer whose petition has been approved will be required to 
submit a

[[Page 29268]]

semiannual report every six months to DHS, using Form I-129CWR, after 
the petition validity start date to verify the continuing employment 
and payment of the beneficiary under the terms and conditions of the 
approved petition. Petitioners are also required to retain all 
documents and records in support of the petition, and the semiannual 
report, for 3 years after the petition validity period end date. DHS 
estimates the total cost of semiannual reporting and document retention 
will be $15,996,725 undiscounted, $13,647,084 discounted at 3 percent, 
and $11,242,286 discounted at 7 percent from FY 2019 to 2030.
    DHS requires a petitioner to immediately notify USCIS of any 
changes in the terms and conditions of employment of a nonimmigrant 
worker which may affect eligibility under section 214.2(w) either by 
(1) filing an amended petition if the petitioner continues to employ 
the nonimmigrant worker, or (2) sending a letter to the USCIS office at 
which the CW-1 petition was filed explaining the basis on which the 
specific CW-1 nonimmigrant is no longer employed. DHS estimates the 
total cost of filing an amended petition to be $215,296 undiscounted, 
$183,673 discounted at 3 percent, and $151,307 discounted at 7 percent 
from FY 2019 to 2030. In the absence of data to estimate the total cost 
of submitting a notification letter, DHS estimates a unit cost of 
mailing a notification letter to USCIS. An affected petitioner on 
average will incur a unit cost of $43.65 to send a letter notifying 
USCIS that a CW-1 nonimmigrant is no longer working for him or her.
    USCIS reserves the authority to fully or partially revoke petitions 
at any time under specified conditions. The conditions for immediate 
and automatic revocations and the discretionary grounds for revocation 
on notice are discussed in the preamble of this IFR. For each 
beneficiary of a petition revoked in a fiscal year, USCIS will add it 
to a CW-1 numerical cap of the next fiscal year. DHS estimates 
employers' total cost to file Form I-129CW petitions for such additions 
to the numerical cap to be $108,957 undiscounted, $90,410 discounted at 
3 percent, and $71,834 discounted at 7 percent from FY 2019 to 2030. 
The IFR also provides the conditions for appealing revoked petitions. 
DHS is unable to estimate the cost employers will incur appealing 
petitions that have been revoked on notice in the implementation period 
(FY 2019 to 2030); however, DHS estimates a unit cost to show the 
minimum cost petitioners are likely to incur appealing petitions 
revoked on notice. DHS estimates that an affected employer on average 
incurs a cost of $782.95 appealing a petition revoked on notice.
    Qualifying dependents (i.e., an eligible spouse or child) of 
nonimmigrant workers with a CW-1 status may file applications 
requesting a grant of a CW-2 status using Form I-539, Application to 
Extend/Change Nonimmigrant Status. DHS estimates the total cost of 
filing applications for CW-2 status to be $7,826,181 undiscounted, 
$6,676,651 discounted at 3 percent, and $5,500,136 discounted at 7 
percent for nonimmigrant in FYs 2019 to 2030.
    The IFR states that an extension of stay may be granted for a 
period of up to three years if the CW-1 worker is a long-term worker. 
DHS estimates the cost savings for petitioners who will request a 
three-year extension of stay for their long-term workers using the 
lower and upper bound estimates for the net number of beneficiaries for 
whom a three-year extension of stay will be requested. Accordingly, the 
total cost savings to petitioners resulting from filing a three-year 
extension of stay for long-term nonimmigrant workers range from 
$978,034 to $8,802,309 undiscounted ($827,067 to $7,443,600 discounted 
at 3 percent, and $674,239 to $6,068,155 discounted at 7 percent) from 
FY 2019 to 2030.

III. Background

A. Legal Framework

    Under the INA, as amended by the Homeland Security Act of 2002, 
Public Law 107-296, 116 Stat. 2135 (codified at 6 U.S.C. 101 et seq.), 
the Secretary of Homeland Security is charged with the administration 
and enforcement of the INA, and all other laws relating to the 
immigration and naturalization of aliens, except as such laws relate to 
the powers, functions, or duties conferred upon the President, the 
Attorney General, the Secretary of State, or consular officers. See INA 
103(a)(1), 8 U.S.C. 1103(a)(1). The Homeland Security Act, however, 
preserved the functions of the Executive Office for Immigration Review 
(EOIR) (including the immigration judges, the Board of Immigration 
Appeals (BIA), and the Office of the Chief Administrative Hearing 
Officer (OCAHO)) within the Department of Justice (DOJ) under the 
authority of the Attorney General. See 6 U.S.C. 521; INA 103(g), 8 
U.S.C. 1103(g). In addition, DOJ's Civil Rights Division, Immigrant and 
Employee Rights Section (IER) continues to have authority to enforce 
the INA's employment anti-discrimination provisions. See INA 274B, 8 
U.S.C. 1324b.
    The changes implemented under the Workforce Act affect existing 
regulations governing DHS immigration policy and procedures, and these 
revisions to the DHS regulations are described in Part IV below.
    However, given the authority of the immigration judges and the BIA 
to adjudicate asylum claims for aliens who are placed in proceedings 
before the immigration judges and the BIA, the Attorney General is 
publishing a separate rule to make technical amendments to the EOIR 
regulations (i.e., a change of date) to reflect that Congress has 
provided that the statutory bar to applying for asylum in the CNMI will 
continue prior to January 1, 2030.

B. Legislative Authority

1. Legislation Prior to the Workforce Act
    The CNMI, located in the Western Pacific, is a self-governing 
commonwealth in political union with, and under the sovereignty of, the 
United States. In 1976, Congress approved the Covenant to Establish a 
Commonwealth of the Northern Mariana Islands in Political Union with 
the United States of America (the 1976 Covenant), which defined the 
political relationship between the CNMI and the United States, provided 
U.S. citizenship to certain CNMI residents, and exempted the CNMI from 
certain federal minimum wage provisions and immigration laws but 
reserved the right of the federal government to apply federal law in 
these exempted areas without the consent of the CNMI government.\14\ As 
a result, the CNMI administered its own immigration system under the 
terms of the 1976 Covenant with the United States for many years.
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    \14\ See A Joint Resolution to Approve the Covenant To Establish 
a Commonwealth of the Northern Mariana Islands in Political Union 
with the United States of America, Public Law 94-241, 90 Stat. 263 
(1976), 48 U.S.C.1801 note.
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    In 2008, Title VII of the Consolidated Natural Resources Act (CNRA) 
amended the 1976 Covenant, by extending U.S. immigration law, with 
limited exceptions, to the CNMI and providing CNMI-specific provisions 
affecting foreign workers. See Public Law 110-229, 122 Stat. 754, 853-
854; 48 U.S.C. 1806(d). Since 1978, the CNMI had admitted a substantial 
number of foreign workers who constituted a majority of the CNMI labor 
force. The CNRA provided for a transition period to phase out the 
CNMI's nonresident contract worker program and phase in the U.S. 
federal immigration system in a manner that minimized adverse economic 
and fiscal effects and maximized the CNMI's potential for future 
economic and

[[Page 29269]]

business growth. See sections 701 and 702(a) of the CNRA.
    The CNRA authorized the Secretary of Homeland Security to create a 
nonimmigrant classification that would ensure adequate employment in 
the CNMI during the transition period. See section 702(a) of the CNRA; 
48 U.S.C. 1806(d). DHS published a final rule on September 7, 2011, 
amending the regulations at 8 CFR 214.2(w) to implement a temporary, 
CNMI-only transitional worker nonimmigrant classification (CW 
classification, which includes CW-1 for principal workers and CW-2 for 
spouses and minor children). See Commonwealth of the Northern Mariana 
Islands Transitional Worker Classification, 76 FR 55502 (Sept. 7, 
2011).
    The CNRA mandated an annual reduction in the number of permits 
issued per year and the total elimination of the CW nonimmigrant 
classification by the end of the transition period. See section 702(a) 
of the CNRA. At the outset of the transitional worker program, DHS set 
the CW-1 numerical limitation (also known as the CW-1 cap) for FY 2011 
at 22,417 and for FY 2012 at 22,416. DHS announced these annual caps in 
DHS regulations at 8 CFR 214.2(w)(1)(viii)(A) and (B). DHS published 
subsequent annual caps by Federal Register notice. See 8 CFR 
214.2(w)(1)(viii)(C).
    The CNRA directed the U.S. Secretary of Labor to determine whether 
an extension of the CW program for an additional period of up to five 
years beyond the expiration of the initial transition period on 
December 31, 2014, was necessary to ensure that an adequate number of 
workers would be available for legitimate businesses in the CNMI. See 
section 702(a) of the CNRA. The CNRA further provided the Secretary of 
Labor with the authority to provide for such an extension through 
notice in the Federal Register. See id.
    On June 3, 2014, the Secretary of Labor extended the CW program for 
an additional five years, through December 31, 2019. See Secretary of 
Labor Extends the Transition Period of the Commonwealth of the Northern 
Mariana Islands-Only Transitional Worker Program, 79 FR 31988 (June 3, 
2014). Since the Secretary of Labor extended the CW program at least 
until December 31, 2019, DHS decided to generally preserve the then 
current conditions relating to CW-1 workers, rather than aggressively 
reduce CW-1 permit numbers for FY 2015. DHS therefore reduced the CW-1 
cap nominally by one, resulting in an FY 2015 limit of 13,999.\15\ See 
Commonwealth of the Northern Mariana Islands Transitional Worker 
Classification (CNMI)-Only Transitional Worker Numerical Limitation for 
Fiscal Year 2015, 79 FR 58241 (Sept. 29, 2014).
---------------------------------------------------------------------------

    \15\ This section only discusses legislation prior to the 
enactment of the Workforce Act. It is important to note that after 
establishing the transitional worker program, DHS published Federal 
Register Notices to reduce the CW-1 cap. DHS set the CW-1 numerical 
limitation at 15,000 and 14,000 respectively for FY 2013 and FY 
2014. See CNMI-Only Transitional Worker Numerical Limitation for 
Fiscal Year 2013, 77 FR 71287 (Nov. 30, 2012); CNMI-Only 
Transitional Worker Numerical Limitation for Fiscal Year 2014, 78 FR 
58867 (Sept. 25, 2013). DHS reduced the CW-1 cap for FY 2015 
nominally in response to the Secretary of Labor's extension of the 
transition period (explained above). For FY 2016, DHS reduced the 
cap by 1,000 to a limit of 12,999. See Commonwealth of the Northern 
Mariana Islands Transitional Worker Classification (CNMI)-Only 
Transitional Worker Numerical Limitation for Fiscal Year 2016, 80 FR 
63911 (Oct. 22, 2015). DHS reduced the cap for FY 2017 by only one 
to 12,998. See Commonwealth of the Northern Mariana Islands 
Transitional Worker Classification (CNMI)-Only Transitional Worker 
Numerical Limitation for Fiscal Year 2017, 81 FR 60581 (Sept. 2, 
2016). In 2017, DHS published a reduction plan to inform the public 
of the number of CW-1 workers available during each of the fiscal 
years for the remainder of the transition period. See Commonwealth 
of the Northern Mariana Islands (CNMI)-Only Transitional Worker 
Numerical Limitation for Fiscal Years 2018 Through 2020, 82 FR 55493 
(Nov. 22, 2017).
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    On December 16, 2014, Congress amended the law to extend the 
transition period until December 31, 2019. See Consolidated and Further 
Continuing Appropriations Act, 2015, Public Law 113-235, sec. 10, 128 
Stat. 2130, 2134. Congress also eliminated the Secretary of Labor's 
authority to provide for future extensions of the CW-1 program, 
requiring the CW-1 program to end (or sunset) on December 31, 2019. See 
id.
    The Northern Mariana Islands Economic Expansion Act (NMIEEA), 
Public Law 115-53, 131 Stat. 1091 (2017), which was enacted into law on 
August 22, 2017, revised the CW-1 visa classification to, among other 
things, (1) add 350 CW-1 visas to the FY 2017 CW-1 cap for purposes of 
extending certain existing CW-1 permits, raising the total number of 
visas that may be issued in that fiscal year from 12,998 to 13,348; and 
(2) prohibit the CW-1 classification from being available to workers 
who will be performing jobs classified as ``construction and extraction 
occupations'' as defined in the DOL's SOC system, other than to extend 
CW-1 permits of such workers first issued before October 1, 2015. This 
latter provision effectively barred employers of new construction and 
extraction occupation workers from using the CW-1 classification. As 
described by the NMIEEA's sponsor in the Congressional Record, the bar 
on construction and extraction workers is intended to require 
construction companies to fill new positions (including those filled by 
CW-1 workers after October 1, 2015) with non-CW-1 workers.\16\
---------------------------------------------------------------------------

    \16\ See 163 Cong. Rec. E1132 (daily ed. Aug. 15, 2017) 
(statement of Delegate Sablan).
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2. The Workforce Act
    On July 24, 2018, President Trump signed the Workforce Act, Public 
Law 115-218, 132 Stat. 1547. The stated purposes of the Workforce Act 
are to increase the percentage of United States workers in the total 
workforce of the CNMI while maintaining the minimum number of non-U.S. 
workers to meet the demands of the CNMI's economy; encourage the hiring 
of United States workers into the CNMI workforce; and ensure that no 
U.S. worker is at a competitive disadvantage compared to a non-U.S. 
worker or is displaced by a non-U.S. worker.
    In discussing the background and need for the Workforce Act, the 
accompanying Senate Report notes the CNMI's continuing dependence on 
foreign labor.\17\ The Senate Report cites the May 2017 report by the 
Government Accountability Office (GAO), entitled Commonwealth of the 
Northern Mariana Islands; Implementation of Federal Minimum Wage and 
Immigration Laws, noting that since FY 2013, demand for CW-1 permits 
had doubled, and in FY 2016, demand exceeded the numerical cap for the 
first time.\18\ In 2016, USCIS received enough petitions to approve 
12,999 CW-1 permits by May 5, 2016, reaching the cap five months prior 
to the end of the fiscal year.\19\ For the 2017 fiscal year cap, USCIS 
received a sufficient number of petitions to reach the CW-1 cap of 
12,998 by October 14, 2016.\20\ On April 11, 2017, USCIS received a 
sufficient number of petitions to reach the FY 2018 cap of 9,998.\21\ 
The GAO report

[[Page 29270]]

attributes the increased demand for CW-1 permits to the CNMI's recent 
economic expansion, specifically, the construction of casinos and 
hotels.
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    \17\ See S. Rep. No. 115-214, at 7 (2018), available at https://www.congress.gov/115/crpt/srpt214/CRPT-115srpt214.pdf (last visited 
May 28, 2019).
    \18\ See U.S. Govt. Accountability Office, Commonwealth of the 
Northern Mariana Islands: Implementation of Federal Minimum Wage and 
Immigration Laws, GAO-17-437 (May 2017), https://www.gao.gov/products/GAO-17-437 (last visited May 28, 2019).
    \19\ See ``USCIS Reaches CW-1 Cap for Fiscal Year 2016,'' 
available at https://www.uscis.gov/archive/archive-news/uscis-reaches-cw-1-cap-fiscal-year-2016 (last visited May 28, 2019).
    \20\ See ``USCIS Reaches CW-1 Cap for Fiscal Year 2017,'' 
available at https://www.uscis.gov/news/alerts/uscis-reaches-cw-1-cap-fiscal-year-2017 (last visited May 28, 2019).
    \21\ See ``As CNMI Transitional Worker Program Draws Down, USCIS 
Announces Cap for Final Three Fiscal Years,'' available at https://
www.uscis.gov/news/news-releases/cnmi-transitional-worker-program-draws-down-uscis-announces-cap-final-three-fiscal-years (last 
visited May 28, 2019).
---------------------------------------------------------------------------

    The CNMI business community expressed concern that the reduced 
levels of available CW-1 permits would have a negative impact on the 
CNMI's economy. The GAO report found that in 2015, foreign workers 
(totaling 12,784) made up more than half of the CNMI's workforce and 
filled 80 percent of all hospitality and construction jobs. The GAO 
also found that in 2015, if all CW-1 workers were removed from the 
CNMI's labor market, the CNMI's gross domestic product would be reduced 
by between 26 and 62 percent. The GAO report noted that the unemployed 
domestic workforce, estimated at 2,386 in 2016, would be well below the 
CNMI's demand for labor.
    The Senate Report notes that, in response to labor abuses by 
certain employers in the CNMI, there is a call for additional labor 
protections, including higher minimum wage requirements, the potential 
for revocation, legitimate business requirements, and the prohibition 
on the use of CW-1 permits for construction workers.\22\
---------------------------------------------------------------------------

    \22\ See S. Rep. No. 115-214, at 8 (2018), available at https://www.congress.gov/115/crpt/srpt214/CRPT-115srpt214.pdf (last visited 
May 28, 2019).
---------------------------------------------------------------------------

    Certain provisions of the Workforce Act took effect immediately. 
Specifically, it extended the CNMI-Only Transitional Worker program 
(the CW-1 program) through 2029, increased the CW-1 cap for FY 2019, 
provided new CW-1 caps for subsequent fiscal years, and mandated a new 
fraud prevention and detection fee with each petition. In addition to 
extending the CW-1 program, it also extended the following CNRA 
provisions until December 31, 2029:
     The exemption from national caps for H-1B and H-2B workers 
in the CNMI and on Guam;
     The bar on asylum applications in the CNMI; and
     The CNMI-Only Nonimmigrant Investor (E-2C) program.
    The Workforce Act's section 3(a) also amends the 1976 Covenant to 
make a number of changes to the transitional provisions and, as noted 
above, requires the Secretaries of Homeland Security and Labor to each 
promulgate an IFR implementing the related statutory changes no later 
than January 20, 2019, which is 180 days from the date of 
enactment.\23\ (Pub. L. 115-218, sec. 3(b)(1), (2)). The Department of 
Labor (DOL) IFR was published on April 1, 2019, and went into effect on 
April 4, 2019.\24\ The DHS IFR was delayed by a number of months.
---------------------------------------------------------------------------

    \23\ The statutory deadline for rulemaking is 180 days after 
enactment, or January 20, 2019. However, under 1 CFR 18.17, when a 
date falls on a weekend or holiday, the next Federal business day is 
used for publication in the Federal Register. In this case, as 
January 20 was a Sunday and January 21 was a Federal holiday, the 
next business day is January 22, 2019.
    \24\ 84 FR 12380 (Apr. 1, 2019).
---------------------------------------------------------------------------

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

    \25\ See USCIS, ``New Law Extends CNMI CW-1 Program, Mandates 
New Fraud Fee, and Will Require E-Verify Participation,'' available 
at https://www.uscis.gov/news/alerts/new-law-extends-cnmi-cw-1-program-mandates-new-fraud-fee-and-will-require-e-verify-participation (last visited May 28, 2019).
---------------------------------------------------------------------------

IV. Changes to DHS Regulations

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

1. Extension of the Transition Period
    DHS is revising 8 CFR 214.2(w)(1)(xvi) to update the extension of 
the transition period, and thus the CW-1 program, through December 31, 
2029. While the transition period has been previously extended, the 
related regulation was not revised to reflect any of the CW-1 program 
extensions. This change will reflect the new sunset date within 
existing regulations.
    This IFR also revises 8 CFR 214.2(e)(23) to extend the E-2C program 
until December 31, 2029. The E-2C visa classification allows foreign, 
long-term investors to remain lawfully present in the CNMI through the 
transition period and is extendable in 2 year increments.\26\ See 8 CFR 
214.2(e)(23)(xii), (xiv). The E-2 CNMI Investor program was intended to 
provide a smooth transition for existing CNMI investors and to mitigate 
potential adverse consequences to the CNMI economy if the current 
investments could not otherwise be maintained as a basis for 
immigration status during the transition period. As with the CW-1 
classification, the E-2C classification also ceases to exist at the end 
of the transition period. See 8 CFR 214.2(e)(23)(xiv).
---------------------------------------------------------------------------

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

    This IFR also updates DHS regulations to make a number of 
conforming amendments to extend the asylum bar in the CNMI, see INA 
sec. 208(e), 8 U.S.C. 1158(e), until December 31, 2029.
2. CW-1 Numerical Limitation
    As previously noted, the CNRA mandated an annual reduction (not a 
specific numerical reduction) in the number of permits issued per year 
and the total elimination of the CW nonimmigrant classification by the 
end of the transition period. See 48 U.S.C. 1806(d)(2). DHS regulations 
provided that the CW-1 cap for any fiscal year would be less than the 
number established for the previous fiscal year, and that the adjusted 
number would be reasonably calculated in DHS's discretion to reduce the 
number of CW-1 nonimmigrant workers to zero by the end of the program. 
8 CFR 214.2(w)(1)(viii)(C). DHS could adjust the cap for a fiscal year 
or any other period, at any time by publishing a Notice in the Federal 
Register, as long as the number was less than the cap for the previous 
fiscal year. See 8 CFR 214.2(w)(1)(viii)(D).
    At the outset of the transitional worker program, DHS set the CW-1 
numerical limitation (also known as the CW-1 cap) for FY 2011 at 22,417 
and for FY 2012 at 22,416. DHS announced these annual caps in DHS 
regulations at 8 CFR 214.2(w)(1)(viii)(A) and (B). DHS subsequently 
published annual caps by Federal Register notice. See 8 CFR 
214.2(w)(1)(viii)(C). DHS set the CW-1 numerical limitation at 15,000 
and 14,000 respectively for FY 2013 and FY 2014. See CNMI-Only 
Transitional Worker Numerical Limitation for Fiscal Year 2013, 77 FR 
71287 (Nov. 30, 2012); CNMI-Only Transitional Worker Numerical 
Limitation for Fiscal Year 2014, 78 FR 58867 (Sept. 25, 2013). For FY 
2015, DHS reduced the numerical limitation nominally by one, resulting 
in an FY 2015 limit of 13,999. See CNMI-Only Transitional Worker 
Numerical Limitation for Fiscal Year 2015, 79 FR 58241 (Sept. 29, 
2014). For FY 2016, DHS reduced the cap by 1,000 to a limit of 12,999. 
See Commonwealth of the Northern Mariana Islands Transitional Worker 
Classification (CNMI)-Only Transitional Worker Numerical Limitation for 
Fiscal Year 2016, 80 FR 63911 (Oct. 22, 2015). DHS

[[Page 29271]]

reduced the cap for FY 2017 by only one to 12,998. See Commonwealth of 
the Northern Mariana Islands Transitional Worker Classification (CNMI)-
Only Transitional Worker Numerical Limitation for Fiscal Year 2017, 81 
FR 60581 (Sept. 2, 2016). Finally, in 2017, DHS published a reduction 
plan to inform the public of the number of CW-1 workers available 
during each of the fiscal years for the remainder of the then-existing 
transition period. See Commonwealth of the Northern Mariana Islands 
(CNMI)-Only Transitional Worker Numerical Limitation for Fiscal Years 
2018 through 2020, 82 FR 55493 (Nov. 22, 2017). DHS set the CW-1 cap 
for FY 2018 at 9,998. For FY 2019, the cap was set at 4,999. For FY 
2020, the cap was set at 2,499 and was to be in effect until the 
previous end of the transition period on December 31, 2019. See id. DHS 
believed that this approach would further encourage the recruitment of 
United States workers and the transition into the U.S. immigration 
system, consistent with the goals of the CNRA and the general policy 
direction provided by Executive Order 13,788, Buy American and Hire 
American, 82 FR 18837, 18838 (Apr. 21, 2017) ``to protect the interests 
of United States workers in the administration of our immigration 
system.''
    The Workforce Act did not make any changes to the CW-1 cap for FY 
2018. However, it immediately raises the CW-1 cap for FY 2019 and then 
provides gradually diminishing CW-1 caps for subsequent fiscal years 
until the end of the transition period on December 31, 2029. It starts 
with a cap of 13,000 for FY 2019, then reduces each fiscal year by 500 
through FY 2023; that number then declines by 1,000 for each fiscal 
year through 2029. By FY 2029 it drops to 5,000 and then to 1,000 for 
FY 2030 (until December 31, 2029).
    The new caps took effect immediately and are reflected in this 
interim final rule as follows:
    (1) 9,998 for fiscal year 2018;
    (2) 13,000 for fiscal year 2019;
    (3) 12,500 for fiscal year 2020;
    (4) 12,000 for fiscal year 2021;
    (5) 11,500 for fiscal year 2022;
    (6) 11,000 for fiscal year 2023;
    (7) 10,000 for fiscal year 2024;
    (8) 9,000 for fiscal year 2025;
    (9) 8,000 for fiscal year 2026;
    (10) 7,000 for fiscal year 2027;
    (11) 6,000 for fiscal year 2028;
    (12) 5,000 for fiscal year 2029; and
    (13) 1,000 for the first quarter of fiscal year 2030.
3. CNMI Education Fee
    The Workforce Act implements the raise in the supplemental CNMI 
education funding fee from $150 to $200 (per each beneficiary issued 
CW-1 status, per year). See 48 U.S.C. 1806(a)(6)(A)(i). It also 
provides the Secretary of Homeland Security the discretion to annually 
adjust this supplemental fee. See 48 U.S.C. 1806(a)(6)(A)(ii). 
Beginning in FY 2020, the Secretary, through notice in the Federal 
Register, may annually adjust the supplemental fee by a percentage 
equal to the annual change in the Consumer Price Index for All Urban 
Consumers published by the Bureau of Labor Statistics. See 48 U.S.C. 
1806(a)(6)(A)(ii). This IFR updates the regulation at 8 CFR 
103.7(b)(1)(i)(J) and 8 CFR 214.2(w)(5) to include the new fee and the 
Secretary's discretionary authority for inflation adjustment.
4. Fraud Prevention and Detection Fee
    The Workforce Act requires DHS to impose a $50 fee for fraud 
prevention and detection purposes on each CW-1 petitioner. See 48 
U.S.C. 1806(a)(6)(A)(iv)(I). This fee is for the sole purpose of 
preventing and detecting immigration benefit fraud in the Northern 
Mariana Islands. See 48 U.S.C. 1806(a)(6)(A)(iv)(II). USCIS implemented 
the antifraud fee as soon as it began accepting new petitions under the 
revised FY 2019 CW-1 cap.\27\ This new fraud prevention and detection 
fee did not apply to CW-1 petitions already filed and pending with 
USCIS as of July 24, 2018, but was imposed on any petitions received 
after July 24, 2018. USCIS rejects petitions with incorrect or 
insufficient fees. This IFR updates the regulation at 8 CFR 
103.7(b)(1)(i)(J) and 8 CFR 214.2(w)(5) to include the new fraud 
prevention and detection fee.
---------------------------------------------------------------------------

    \27\ See USCIS, ``New Law Extends CNMI CW-1 Program, Mandates 
New Fraud Fee, and Will Require E-Verify Participation,'' available 
at https://www.uscis.gov/news/alerts/new-law-extends-cnmi-cw-1-program-mandates-new-fraud-fee-and-will-require-e-verify-participation (last visited May 28, 2019).
---------------------------------------------------------------------------

B. CW-1 Numerical Reservation for Specific Occupational Categories

    Section 3(b)(3) of the Workforce Act requires the Secretary of 
Homeland Security to consider the Governor's recommendations in 
developing the interim final rule implementing the law. The Workforce 
Act specifically states that DHS shall consider in good faith any 
written public recommendations regarding Workforce Act implementation 
that are submitted by the Governor of the Commonwealth not later than 
60 days after the date of the Workforce Act's enactment. The Workforce 
Act further provides that DHS may include provisions in its IFR that 
are responsive to any recommendation of the Governor and not 
inconsistent with the Workforce Act, including a recommendation to 
reserve a number of permits each year for occupational categories 
necessary to maintain public health or safety in the Commonwealth.
    In an August 8, 2018 letter,\28\ Governor Torres requested that DHS 
reserve 200 CW-1 permits in FY 2019 for ``occupational categories'' 29-
0000 (Healthcare Practitioners and Technical Occupations) and 31-0000 
(Healthcare Support Occupations). For FY 2019, Governor Torres also 
requested that DHS reserve 60 CW-1 permits for occupational categories 
related to the operations of the CNMI public utilities services, to 
include Water/Waste Water Engineers, Electrical Engineers, Mechanical 
Engineers, and Trades Technicians. Governor Torres stressed the 
importance of reserving these cap numbers in order to maintain labor 
access and, therefore, adequate staffing of the CNMI's healthcare 
system and public utilities services. Additionally, Governor Torres 
recommended that the CW-1 cap reservations should be changed based on 
labor demands within these sectors. Finally, Governor Torres requested 
the ability to recommend changes to these CW-1 cap reservations 
throughout the duration of the transition period as this would help the 
CNMI's goals of truly transitioning occupations toward U.S. citizens, 
or alternative visa classifications when United States workers are not 
available.
---------------------------------------------------------------------------

    \28\ See Letter from Rafael DLG Torres, Governor of the CNMI, to 
Kirstjen Nielsen, Secretary, DHS (Aug. 8, 2018), available at http://www.regulations.gov under DHS Docket No. USCIS--2019-0003.
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    As directed by the Workforce Act, DHS considered the Governor's 
recommendations in developing this IFR. As mentioned above, the 
Governor requested that DHS reserve 200 CW-1 permits for health 
occupations and 60 CW-1 permits for public utilities occupations for FY 
2019. In an October 29, 2018 response to Governor Torres,\29\ DHS 
explained that it did not have the authority to reserve permits for 
occupational categories prior to the IFR taking effect and that the 
ability to make any such reservations for FY 2019, as opposed to future 
fiscal years, would depend upon when the IFR takes effect and whether 
FY 2019 CW-1 permits are still available at that time.
---------------------------------------------------------------------------

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

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[[Page 29272]]

    DHS understands the Governor's concerns regarding the availability 
of CW-1 cap numbers for these critical occupations. After careful 
consideration, DHS will include a CW-1 cap reservation for all critical 
occupations, as recommended by the Governor.
    With respect to the occupational categories identified by the 
Governor regarding the operations of the CNMI public utilities 
services, DHS is concerned that the Governor's recommendation refers to 
these occupations in general terms rather than providing a specific 
definition or offering a more precise way to identify them. DHS can 
better implement and operationally manage a CW-1 cap reservation by 
defining the occupational categories that will be considered as part of 
that cap reservation.
    After careful consideration, DHS has determined that, consistent 
with the Governor's use of the occupational categories to refer to 
health occupations, DHS will generally use the DOL SOC \30\ system to 
specify which occupations are part of this cap reservation. The SOC 
system is a federal statistical standard used by federal agencies to 
classify workers into occupational categories for the purpose of 
collecting, calculating, or disseminating data.\31\ DOL uses the SOC 
system to group and classify jobs and occupations. The purpose of the 
SOC system is to organize occupational data and classify workers into 
distinct occupational categories. It covers all occupations where work 
is performed for pay or for profit. Occupations are generally 
categorized based on the type of work performed. Additionally, certain 
occupations are also classified based on the skills, education and 
training required to perform the job. The SOC system is organized using 
codes, which generally consist of six numerical digits. In sum, the SOC 
code provides an objective approach to define affected groups.
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    \30\ See U.S. Department Labor, Bureau of Labor Statistics, 
Standard Occupational Classification, available at https://www.bls.gov/soc/ (last visited May 28, 2019).
    \31\ The Office of Management and Budget is charged by statute 
with coordinating the U.S. Federal statistical system. All workers 
are classified into one of 867 detailed occupations according to 
their occupational definition. To facilitate classification, 
detailed occupations are combined to form 459 broad occupations, 98 
minor groups, and 23 major groups. Detailed occupations in the SOC 
with similar job duties, and in some cases skills, education, and/or 
training, are grouped together. For an overview, see ``Office of 
Management and Budget, Statistical Programs & Standards,'' available 
at https://www.whitehouse.gov/omb/information-regulatory-affairs/statistical-programs-standards/ (last visited May 28, 2019).
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    Currently, USCIS uses these SOC codes as one basis for determining 
whether the beneficiary's proposed employment qualifies for CW-1 
classification.\32\ For purposes of adjudicating the Form I-129CW, 
USCIS reviews the totality of the record, including the listed SOC code 
and any additional evidence submitted by the CW-1 petitioner. If all 
information found in the Form I-129CW is consistent with the TLC, and 
provided all other eligibility requirements are met, then USCIS may 
approve the Form I-129CW and use the SOC code listed on the petition to 
identify the petitions set aside for the cap reservation. If the SOC 
code is blank or if the evidence submitted with the Form I-129CW does 
not establish that the proposed employment matches the SOC code listed 
on the petition, USCIS may request additional information. In 
determining whether the proposed employment matches the listed SOC 
code, USCIS considers factors including but not limited to the job 
duties and responsibilities of the proposed employment, and any 
educational, experience, and/or training requirements. If USCIS finds a 
mismatch between the SOC code on the Form I-129CW and the TLC, or finds 
conflicting information in the Form I-129CW and TLC, then USCIS may 
consider such information to deny or revoke the Form I-129CW.\33\
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    \32\ See Instructions for Form I-129CW, Petition for a CNMI-Only 
Nonimmigrant Transitional Worker, available at https://www.uscis.gov/i-129cw (last visited May 28, 2019).
    \33\ USCIS generally defers to DOL to determine the correct SOC 
code for purposes of the TLC. Nevertheless, USCIS maintains the 
authority to consider the SOC code as one basis for purposes of 
adjudicating the Form I-129CW.
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    USCIS already collects the SOC code on the Form I-129CW to help 
administer the statutory prohibition of construction occupations.\34\ 
This IFR adopts this same approach of using the SOC code to help USCIS 
properly identify the occupations for which a portion of the CW-1 
numerical limitation is reserved. However, it is noted that the 
occupational categories related to the operations of the CNMI public 
utilities may not be able to be properly limited or defined to specific 
corresponding SOC codes. For example, there is not a specific SOC code 
for ``Trades Technicians.'' Rather, there are a large number of SOC 
codes which could potentially be used to describe a number of different 
technicians. For this occupation, it is not practical to include every 
possible code that would be eligible for the CW-1 cap reservation. As a 
result, this IFR includes a single SOC code for the specific 
occupational category related to the operations of the CNMI public 
utilities services, if known, but does not limit this CW-1 cap 
reservation only to the included SOC codes.
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    \34\ In fiscal year 2017, DHS also used the SOC codes to 
identify CW-1 health care workers to manage the statutory sub-cap 
for healthcare workers.
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    Accordingly, this IFR makes the following reservations of CW-1 
numbers for specified occupational categories: (i) 200 total for 
occupational categories 29-0000 (Healthcare Practitioners and Technical 
Occupations) and 31-0000 (Healthcare Support Occupations); and (ii) 60 
for occupational categories related to the operations of the CNMI 
public utilities services, to include, but not limited to, 17-2081 
(Water/Waste Water Engineers), 17-2071 (Electrical Engineers), 17-2141 
(Mechanical Engineers), and Trades Technicians.\35\ New 8 CFR 
214.2(w)(1)(x)(D)(1). The reserved CW-1 numbers will be made available 
to eligible petitioners requesting such numbers for a fiscal year in 
order of filing until exhausted. New 8 CFR 214.2(w)(1)(x)(D)(2). DHS 
will not impose an arbitrary deadline for petitioners to exhaust this 
cap reservation as it would be contrary to the CNMI government's 
request to preserve access to labor in these critical occupations. As a 
result, unused reserved numbers for these occupational categories will 
not be available to other petitioners. Id. Accordingly, DHS is also 
updating the Form I-129CW to include a new data field on the Form I-
129CW requesting whether the petitioner would like to be considered 
under one of the occupational category reservations. This approach is 
consistent with the Governor's request to reserve CW-1 numbers for 
specified occupations.
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    \35\ A corresponding SOC code does not exist that would include 
all Trades Technicians occupations.
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    This new CW-1 cap reservation will not apply to any fiscal year cap 
that has been reached prior to the effective date of this IFR. For any 
fiscal year cap that has not been reached as of the date this IFR takes 
effect, the CW-1 cap reservation will be considered completely 
unsubscribed at that time and will only be filled by petitions received 
on or after such date that specifically request consideration under the 
Governor's recommendations in the corresponding data field on the Form 
I-129CW.
    As noted above, the Governor also recommended that any CW-1 cap 
reservation should be subject to change based on labor demand and 
requested the ability to recommend changes to

[[Page 29273]]

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

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

    The current DHS CW-1 regulations do not require that an employer 
obtain any documentation from DOL as a prerequisite to filing a CW-1 
petition with USCIS. The Workforce Act changed petition procedures by 
imposing a temporary labor certification requirement beginning with CW-
1 petitions filed with USCIS with employment start dates in FY 
2020.\36\ See 48 U.S.C. 1806(d)(2)(A)(i). Now, as a prerequisite to 
filing a CW-1 petition with USCIS, an employer must first obtain an 
approved TLC from DOL confirming that: (1) There are not sufficient 
United States workers in the CNMI who are able, willing, qualified, and 
available at the time and place needed to perform the services or labor 
involved in the petition; and (2) the employment of a nonimmigrant 
worker who is the subject of a petition will not adversely affect the 
wages and working conditions of similarly employed United States 
workers. See 48 U.S.C. 1806(d)(2)(A).
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    \36\ On September 24, 2019, USCIS announced it was providing a 
one-time, limited accommodation to facilitate the initial 
implementation of the new requirement that CW-1 petitions with 
employment start dates on or after October 1, 2019 include a TLC 
approved by DOL. USCIS would consider certain FY 2020 CW-1 petitions 
seeking an extension of status for temporary workers present in the 
CNMI to be filed on time, even if USCIS received them after the 
worker's current period of CW-1 petition validity expires, under the 
following limited circumstances: (1) The petition was otherwise 
properly filed, and included an approved TLC with a start date on or 
after October 1, 2019; (2) USCIS received the petition no later than 
30 days after the date of TLC approval, or by November 1, 2019, 
whichever was earliest; and (3) the expiration date of the currently 
approved petition was on or after September 1, 2019. If an employer 
filed an extension petition meeting these requirements, the CW-1 
worker could continue employment with the same employer for up to 
240 days beginning on the expiration of the authorized period of 
stay, pending adjudication of the petition (or, in the case of a 
non-frivolous petition for extension of stay with change of 
employer, until USCIS adjudicates the petition). See USCIS, Filing 
Guidance for CW-1 Petitions Seeking to Extend Status for Fiscal Year 
2020, https://www.uscis.gov/news/alerts/filing-guidance-cw-1-petitions-seeking-extend-status-fiscal-year-2020 (Last Reviewed/
Updated Sept. 24, 2019).
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    To ensure that the CW-1 employment will not adversely affect 
similarly employed United States workers' wages and working conditions, 
the Workforce Act also mandates minimum wage requirements. 
Specifically, it requires the employer to pay a CW-1 worker the greater 
of the CNMI minimum wage, the federal minimum wage, or the prevailing 
wage as determined by DOL. 48 U.S.C. 1806(d)(2)(C). It requires DOL to 
make a prevailing wage determination, by allowing DOL to meet this 
requirement in a number of ways. 48 U.S.C. 1806(d)(2)(B). DOL will use 
or make available to employers annual occupational wage surveys 
conducted by the Governor meeting the statistical standards established 
by DOL for determining prevailing wages in the CNMI. 48 U.S.C. 
1806(d)(2)(B)(i). In the absence of a DOL-approved Governor's survey, 
the Workforce Act sets forth that the prevailing wage for an occupation 
in the CNMI is the arithmetic mean of the wages of workers similarly 
employed in the territory of Guam according to the Occupational 
Employment Statistics Survey conducted by DOL's Bureau of Labor 
Statistics. 48 U.S.C. 1806(d)(2)(B)(ii).
    Consistent with the Workforce Act, DOL administers these additional 
labor protections and has issued a separate regulation \37\ governing 
the TLC process, but this IFR updates DHS regulations to include the 
new TLC requirement at 8 CFR 214.2(w)(6)(iv) as a prerequisite to 
filing a CW-1 petition with USCIS. Any CW-1 petition requesting an 
employment start date on or after October 1, 2019 must be filed with a 
DOL approved TLC. The certified TLC confirms that there are not 
sufficient United States workers in the CNMI who are able, willing, 
qualified, and available at the time and place needed to perform the 
services or labor involved in the petition, and that the employment of 
the CW-1 nonimmigrant will not adversely affect the wages and working 
conditions of similarly employed United States workers. Any petition 
filed without the approved DOL TLC will be rejected. If the TLC 
approves certain education, training, experience, or special 
requirements, USCIS will further require sufficient evidence to 
determine whether the CW-1 worker qualifies for the job offer. The IFR 
also updates 8 CFR 214.2(w)(6)(ii)(I) to include the related minimum 
wage statutory requirements.
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    \37\ The DOL IFR was published on April 1, 2019, and went into 
effect on April 4, See Labor Certification Process for Temporary 
Employment in the Commonwealth of the Northern Mariana Islands (CW-1 
Workers), 84 FR 12380 (Apr. 1, 2019).
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D. CW-1 Petition Filing Window

    The Workforce Act sets forth new CW-1 petition filing windows for 
employers renewing the permits of their CW-1 workers and for those 
requesting new CW-1 workers. It provides that employers renewing the 
permits of their CW-1 employees can file 180 days before the expiration 
of current CW-1 status. Employers filing for new CW-1 employment 
authorization may file no more than 120 days prior to the need for such 
employment. 48 U.S.C. 1806(d)(3)(D)(i).
    To adhere to this filing window, it is important to note again 
that, a CW-1 petition for temporary employment filed with USCIS must be 
accompanied by an approved TLC from DOL. 48 U.S.C. 1806(d)(2). This 
prerequisite does not change the statutory filing window. Under DOL 
regulations at 20 CFR 655.420 (b)(1), an employer seeking to hire a CW-
1 worker must first apply for a TLC with DOL, no more than 120 calendar 
days before the employer's date of need. However, where the employer is 
seeking a TLC to support a petition to renew a visa (extending the 
employment of a CW-1 worker), 20 CFR 655.420(b)(2) requires that the 
employer file the TLC application no more than 180 calendar days before 
the date on which the CW-1 status expires. Once DOL approves the TLC, 
the employer can file the CW-1 petition with USCIS.

E. Semiannual Report for CW-1 Employers

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

[[Page 29274]]

conditions set forth in the CW-1 petition that the employer filed on 
behalf of such worker. 48 U.S.C. 1806(d)(3)(D)(ii). In order to 
implement the semiannual reporting requirement, USCIS created a 
standalone form, the Form I-129CWR, Semiannual Report for CW-1 
Employers (semiannual report). USCIS is requiring petitioners to file 
the semiannual report, with a required attestation, in order to capture 
data to verify the continued employment and payments to their CW-1 
workers. See new 8 CFR 214.2(w)(26)(i) and (ii).
    In accordance with the Workforce Act's reporting requirement, all 
approved CW-1 petitioners must file a semiannual report. USCIS 
interprets this as a filing requirement for all approved CW-1 
petitioners, whose petitions have been approved for a validity period 
of six months or more, to be submitted during the petition's validity 
period. An approved CW-1 petition may be approved for a period of up to 
one year, unless the beneficiary is a long-term worker, in which case 
an approved petition will be valid for a period of up to three years. 
As a result, CW-1 petitions have varying validity periods, as 
petitioners can request the entire validity period available or any 
shortened period of time necessary for the employment opportunity. 
USCIS will use the semiannual report to verify the continuing 
employment and payment of such workers, on a semiannual basis, whether 
the CW-1 petitioner is requesting a validity period of up to 1 year or 
up to 3 years. Under 8 CFR 214.2(w)(26)(i)(A), an employer whose CW-1 
petition has been approved for an employment start date on or after 
October 1, 2019 and for a validity period of six months or more, must 
file a semiannual report every six months after the petition validity 
start date up to and including the sixth month preceding the petition's 
validity end date. As such, a CW-1 petition approved for a validity 
period of 1 year requires the filing of a single semiannual report 
while a CW-1 petition approved for a validity period of 3 years 
requires the filing of 5 semiannual reports. The semiannual report must 
be filed within a 60 day window surrounding each six-month anniversary 
of the petition validity start date, with the filing window opening 30 
days before and closing 30 days after the six-month anniversary of the 
petition validity start date.
    This form creates a streamlined approach for easy USCIS intake 
while creating targeted data requests to ensure that USCIS captures the 
information necessary for verification of the CW-1 employment. Data 
fields include information to verify what was approved on the petition 
versus the actual terms under which the CW-1 is employed. For example, 
the form requests information on how many CW-1 beneficiaries were 
approved on the original petition; how many of the approved 
beneficiaries remain in CW-1 status and are still working for the 
petitioner; the wage offered, per week or year, on the approved Form I-
129CW versus the actual wage, per week or per year, currently paid to 
the CW-1 workers; and the hours per week, offered on the approved Form 
I-129CW versus the actual hours worked per week. Petitioners can file 
one form to report the information on multiple beneficiaries as long as 
they were approved on the same petition.
    Although this IFR does not require submission of evidence at the 
time of filing the semiannual report, it does contain an attestation of 
compliance for the petitioner to affirm, under penalty of perjury, the 
continuing employment and payment of the CW-1 worker under the terms 
and conditions set forth in the petition. The attestation serves as 
initial evidence to USCIS regarding the petitioner's continued 
eligibility as a CW-1 petitioner.
    In addition, although there is no requirement to submit evidence, 
the regulations are revised to add a new document retention requirement 
at 8 CFR 214.2(w)(26)(iii). In accordance with these requirements, the 
petitioner must retain documents and records meeting their burden to 
demonstrate compliance with this rule, and must provide the documents 
and records upon the request of DHS or DOL, such as in the event of an 
audit or investigation. An employer must retain evidence that supports 
the approved petition and semiannual report including, but not limited 
to: (a) Personnel records for each CW-1 worker including the name, 
current residence address in the Commonwealth, age, domicile, 
citizenship, point of hire, and approved employment contract 
termination date; (b) Payroll records for each CW-1 worker, including 
the O*NET job classification wage rate or salary, number of hours 
worked each week, gross compensation, itemized deductions, and evidence 
of net payments made and received biweekly; and (c) Direct evidence of 
payment of wages and overtime, such as receipts for cash payments, 
cancelled checks or deposit records of payment of wages and overtime. 
Petitioners must retain all documents and records in support of an 
approved petition and any semiannual report(s) for a period of three 
years after the ending date of the petition validity period. If 
requested, petitioners must provide the documents and records 
supporting the information in the approved petition and the semiannual 
report to DHS and DOL at any time during the aforementioned retention 
period. The document retention is necessary from an investigative 
perspective as the information collected may be used in conjunction 
with any site visits conducted by DHS or requests for additional 
evidence to verify compliance. Per 8 CFR 214.2(w)(26)(ii), DHS may 
provide such semiannual reports to other federal partners, including 
DOL for investigative or other use as DOL may deem appropriate. Failure 
to comply with the semiannual report requirement may be a basis for 
revocation of an approved petition as provided below or for denial of 
subsequent petitions filed by the employer.
    To ensure fairness and equal footing among CW-1 petitioners in the 
application of this statutory requirement, this IFR establishes that 
the semiannual report shall be required beginning with all CW-1 
petitions approved by USCIS with employment start dates in FY 2020 for 
a validity period of six months or more. The semiannual reporting 
requirement will apply to CW-1 petitions with such employment start 
dates approved by USCIS before the effective date of this IFR and 
before the requirement was stated in the instructions for the CW-1 
petition. Completion of the report will rely on readily attainable 
facts by the petitioner that are based on the terms and conditions 
previously set forth in the CW-1 petition. Requiring the semiannual 
report for all CW-1 petitions approved by USCIS with employment start 
dates in FY 2020 for a validity period of six months or more ensures 
uniform compliance with the statutory requirement by requiring the 
submission of the same information across the same period of time, and 
will avoid data gaps and incomplete information collections for the 
initial FY 2020 reporting period.

F. Revocations

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

[[Page 29275]]

conditions of employment, or otherwise ceases to operate as a 
legitimate business; if the beneficiary of such petition does not apply 
for admission to the CNMI by the date that is 10 days after the period 
of petition validity begins, if the employer has requested consular 
processing; or if the employer fails to provide a former, current, or 
prospective CW-1 worker with the original (or a certified copy of the 
original) of all petitions, notices, and other written communication 
related to the worker (other than sensitive financial or proprietary 
information of the employer, which may be redacted) that has been 
exchanged between the employer and the DOL, DHS, or any other Federal 
agency or department. See 48 U.S.C. 1806(d)(3)(D)(iii)(I).
    The Workforce Act also authorizes the Secretary to reallocate a 
revoked permit to the following fiscal year. See 48 U.S.C. 
1806(d)(3)(D)(iii)(II). Pursuant to section 3(b)(3) of the Workforce 
Act,\38\ Governor Torres submitted comments and recommendations to DHS 
on the implementation of this revocation provision.\39\ On the 
statutory revocation provision, the Governor expressed concern with a 
specific statutory provision, allowing for revocation of a permit if 
the petition was approved for consular processing and the beneficiary 
does not apply for admission to the CNMI during the ten day period 
after the start date of petition validity. He requested that DHS delay 
the implementation of the statutory revocation provision until the U.S. 
Department of State's role in this process is established or 
alternatively, that the provision be interpreted and implemented so 
that it does not immediately disqualify admission into the CNMI if all 
other petition criteria are met. The Governor stated that consular 
processing delays, which are outside the control of employers, may lead 
to petition revocations and this would be detrimental to the CNMI 
business community.\40\
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    \38\ As stated in sec. 3(b)(3), the Secretary shall consider, in 
good faith, any written public recommendations regarding the 
implementation of this Act that are submitted by the CNMI Governor 
and may include provisions in the IFR that are responsive to any 
recommendation of the Governor that is not inconsistent with the 
Workforce Act.
    \39\ See Letter from Rafael DLG Torres, Governor of the CNMI, to 
Kirstjen Nielsen, Secretary, DHS (Sept. 18, 2018), available at 
http://www.regulations.gov under DHS Docket No. USCIS-2019-0003.
    \40\ While the Governor's letter does not mention concerns 
regarding admission, it is important to note that the statutory 
basis for revocation is tied to admission, and therefore to U.S. 
Customs and Border Protection's (CBP) role, rather than to visa 
issuance. That said, delays in consular processing of visas with DOS 
would inherently delay any admission by CBP.
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    In accordance with the Workforce Act, DHS has considered the 
Governor's recommendations in the development of this regulation. The 
Workforce Act is clear that petition revocation is within the 
Secretary's discretionary authority and therefore does not mandate 
automatic revocation pursuant to any of the listed grounds. However, in 
considering how to implement the revocation authority based on ``good 
cause,'' including for any of the examples specified in the Workforce 
Act, DHS examined the revocation procedures already in place for other 
nonimmigrant classifications. For example, the H classification 
revocation procedures at 8 CFR 214.2(h)(11)(ii) include immediate and 
automatic revocation if the petitioner goes out of business or files a 
written withdrawal of the petition, or DOL revokes the temporary labor 
certification upon which the petition is based. Similarly, the 
provisions relating to the H classification at 8 CFR 214.2(h)(11)(iii) 
provide for revocation on notice and issuance of a NOIR on certain 
grounds, which are tied to elements specified in the petition. These 
procedures provide for a NOIR if the beneficiary is no longer employed 
by the petitioner in the capacity specified in the petition, or the 
beneficiary is no longer receiving training as specified in the 
petition; the statement of facts contained in the petition or on the 
application for a temporary labor certification was not true and 
correct, inaccurate, fraudulent, or misrepresented a material fact; the 
petitioner violated terms and conditions of the approved petition; the 
petitioner violated requirements of section 101(a)(15)(H) of the INA or 
8 CFR 214.2(h); or the approval of the petition violated related 
regulations or involved gross error. Id.
    The Workforce Act does not provide specific procedural requirements 
for implementation but DHS is closely mirroring existing revocation 
procedures already in place for other nonimmigrant classifications.\41\ 
Under new 8 CFR 214.2(w)(27)(i), the petitioner must immediately notify 
USCIS of any changes in the terms and conditions of employment of a 
beneficiary which may affect eligibility. If the petitioner continues 
to employ the beneficiary, it must notify USCIS of these changes on an 
amended Form I-129CW petition. If the petitioner no longer employs the 
beneficiary, the petitioner shall send a letter to the office at which 
the CW-1 petition was filed explaining the basis on which the specific 
CW-1 nonimmigrant is no longer employed.
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    \41\ For example, provisions related to the O and P 
classifications also provide for immediate and automatic revocation 
if the petitioner or employer goes out of business, or files a 
written withdrawal of the petition, or notifies USCIS that the 
beneficiary is no longer employed by the petitioner. See 8 CFR 
214.2(o)(8)(ii) and 8 CFR 214.2(p)(10)(ii). The R classification 
regulations include immediate and automatic revocation if the 
petitioner ceases to exist or files a written withdrawal of the 
petition. See 8 CFR 214.2(r)(18)(ii). As with the H classifications, 
the O, P, and R regulations also provide for revocation on notice 
and issuance of a NOIR on certain elements specified in the 
petition. See 8 CFR 214.2(o)(8)(iii), 8 CFR 214.2(p)(10)(iii), and 8 
CFR 214.2(r)(18)(iii). However, these classifications do not require 
an approved TLC as a prerequisite to filing the petition with USCIS.
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    Under 8 CFR 214.2(w)(27)(ii), a petition will be immediately and 
automatically revoked if the petitioner ceases operations or files a 
written withdrawal of the petition, or if DOL revokes the temporary 
labor certification upon which the petition is based. Under 8 CFR 
214.2(w)(27)(iii), USCIS will also pursue discretionary NOIRs in a 
manner that mirrors the existing H classification grounds for 
revocation on notice and for additional elements listed in the 
Workforce Act. Specifically, under 8 CFR 214.2(w)(27)(iii)(A), USCIS 
may, in its discretion, send the petitioner a NOIR for good cause, 
including if it finds that:
    (1) The beneficiary is no longer employed by the petitioner in the 
capacity specified in the petition;
    (2) The petition or the application for a temporary labor 
certification was not true and correct, inaccurate, fraudulent, or 
misrepresented a material fact;
    (3) The petitioner violated terms and conditions of the approved 
petition;
    (4) The petitioner violated a requirement of 8 CFR 214.2(w);
    (5) The approval of the petition violated 8 CFR 214.2(w) or 
involved gross error;
    (6) The petitioner failed to maintain the continuous employment of 
the CW-1 nonimmigrant, failed to pay the nonimmigrant, failed to timely 
file a semiannual report, committed any other violation of the terms 
and conditions of employment, or otherwise ceased to operate as a 
legitimate business;
    (7) The beneficiary did not apply for admission to the CNMI within 
10 days after the beginning of the petition validity period if the 
petition has been approved for consular processing; or
    (8) The employer failed to provide a former, current, or 
prospective CW-1 nonimmigrant, not later than 21 business days after a 
written request from such individual, with the original (or a certified 
copy of the original) of all petitions, notices, and other written 
communication related to the worker (other than sensitive financial or 
proprietary information of the employer

[[Page 29276]]

which may be redacted) that has been exchanged between the employer and 
DOL, DHS, or any other Federal agency or department.
    Under 8 CFR 214.2(w)(27)(iii)(B), the NOIR will state the grounds 
for the revocation. The petitioner may submit evidence in rebuttal 
within 30 days of receipt of the notice. USCIS may revoke the petition 
in whole or in part. There is no appeal of an automatic revocation. 
Under 8 CFR 214.2(w)(28), revocations on notice may be appealed under 
existing appeal procedures in 8 CFR 103.
    The grounds listed in 8 CFR 214.2(w)(27)(iii) provide clear 
guidelines for the program consistent with the Workforce Act. The new 8 
CFR 214.2(w)(27) creates automatic revocation grounds for clear-cut 
scenarios, consistent with other nonimmigrant classifications, allows 
for revocation for good cause, and specifies the statutory grounds for 
instituting revocation-on-notice proceedings while providing 
petitioners with notice and an opportunity to cure any deficiencies. 
For each beneficiary of a petition revoked, entirely or in part in a 
fiscal year, USCIS will add a CW-1 cap number to the next fiscal year 
and inform the public as appropriate. See new 8 CFR 214.2(w)(1)(x)(C). 
These new revocation provisions shall apply to all CW-1 petitions 
approved by USCIS or that otherwise remain valid as of the effective 
date of this IFR.

G. Definition of Legitimate Business

    The Workforce Act retains the regulatory definition of a 
``legitimate business'' \42\ as set forth in 8 CFR 214.2(w)(1)(vi), and 
adds an E-Verify requirement. 48 U.S.C. 1806(d)(3)(D)(iv). Further, it 
states that a CW-1 petition may not be approved for a CW-1 employer 
that is not a legitimate business. Id. While The Workforce Act 
authorizes the Secretary to determine what constitutes a legitimate 
business, it also specifically defines the term ``legitimate business'' 
as a real, active, and operating commercial or entrepreneurial 
undertaking that the Secretary determines, in the Secretary's sole 
discretion: Produces services or goods for profit, or is a 
governmental, charitable, or other validly recognized nonprofit entity; 
meets applicable legal requirements for doing business in the CNMI; has 
substantially complied with wage and hour laws, occupational safety and 
health requirements, and all other Federal, CNMI, and local 
requirements related to employment during the preceding 5 years; does 
not directly or indirectly engage in, or knowingly benefit from, 
prostitution, human trafficking, or any other activity that is illegal 
under Federal, CNMI, or local law; and is a participant in good 
standing in the E-Verify program. Id. Further pursuant to The Workforce 
Act, a ``legitimate business'' must not have, as a current or former 
owner, investor, manager, operator, or person meaningfully involved 
with the undertaking, who has not substantially complied with wage and 
hour laws, occupational safety and health requirements, and all other 
Federal, Commonwealth, and local requirements related to employment 
during the preceding 5 years; or who directly or indirectly engages in, 
or knowingly benefits from, prostitution, human trafficking, or any 
other activity that is illegal under Federal, Commonwealth, or local 
law. Id. Also under the Workforce Act, a ``legitimate business'' must 
not be the agent of such an individual, or a successor in interest to 
an undertaking that does not comply with such requirements. Id.
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    \42\ The ``legitimate business'' definition set forth in the 
CNRA was incorporated into DHS CW transitional worker regulations 
via the final rule, published on September 7, 2011. 76 FR 55502 
(Sept. 7, 2011). On December 16, 2014, Congress amended the law to 
extend the transition period until December 31, 2019. See 
Consolidated and Further Continuing Appropriations Act, 2015.
    Public Law 113-235, sec. 10, 128 Stat. 2130, 2134 (codified at 
48 U.S.C. 1806(d)). Congress also eliminated the Secretary of 
Labor's authority to provide for future extensions of the CW-1 
program, requiring the CW-1 program to end (or sunset) on December 
31, 2019. Public Law 113-235 removed section (d)(5), the DOL 
extension provision, which is where the definition of legitimate 
business was contained in the original Act.
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    This IFR incorporates the revised definition of legitimate business 
into 8 CFR 214.2(w)(1)(vii) to include the new E-Verify requirement and 
successor in interest prohibitions. Pursuant to 48 U.S.C. 
1806(d)(3)(D)(iv), only legitimate businesses may petition for a CW-1 
employer. The statutory definition of a legitimate business, among 
other things, requires CW-1 employers to be a participant in good 
standing in the E-Verify program as a prerequisite for filing for a CW-
1 worker. This IFR implements the Workforce Act's E-Verify requirement 
for CW-1 employers at 8 CFR 214.2(w)(1)(vii)(E) and provides a 
definition of a participant in good standing for E-Verify purposes at 8 
CFR 214.2(w)(1)(xii).
    The E-Verify program is a web-based system that allows enrolled 
employers to confirm the eligibility of their employees to work in the 
United States.\43\ E-Verify employers verify the identity and 
employment eligibility of newly hired employees by electronically 
matching information provided by employees on the Form I-9, Employment 
Eligibility Verification, against records available to DHS and SSA. 
While E-Verify is a voluntary program, some employers are required to 
enroll in it as a condition of federal contracting, or a result of 
state legislation or other applicable law.
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    \43\ See E-Verify, available at https://www.e-verify.gov/ (last 
visited May 28, 2019).
---------------------------------------------------------------------------

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

[[Page 29277]]

by the employer is grounds for immediate termination of its 
participation in the program.\44\
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    \44\ See E-Verify, Employers, Enrolling in E-Verify: The E-
Verify Memorandum of Understanding for Employers, available at 
https://www.e-verify.gov/sites/default/files/everify/memos/MOUforEVerifyEmployer.pdf (last visited May 28, 2019).
---------------------------------------------------------------------------

    Employers participating in E-Verify must still complete a Form I-9 
for each newly hired employee, as required under current law.\45\ 
Following completion of Form I-9, the employer must enter the newly 
hired worker's information into E-Verify, which then checks that 
information against information contained in government databases.\46\ 
It is important to note that once an employer enrolls in E-Verify, that 
employer is responsible for verifying all new hires in E-Verify, at the 
hiring site(s) identified in the MOU executed between the employer and 
DHS.\47\ The earliest an employer may use E-Verify with respect to an 
individual is after the individual accepts an offer of employment and 
the employee and employer complete the Form I-9.\48\ Verification of 
the employee's identity and employment eligibility and creating the E-
Verify case must be done no later than the end of three business days 
after the new hire's first day of employment. E-Verify applies to new 
hires only and cannot be used to verify expiring work authorization of 
a current employee (including CW-1 employees).
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    \45\ See E-Verify, Employers, Monitoring and Compliance 
available at https://www.e-verify.gov/employers/monitoring-and-compliance (last visited May 28, 2019).
    \46\ See id. For example, E-Verify compares employee information 
against records in the SSA database and those available to DHS. Most 
employees are automatically confirmed as work authorized. In Fiscal 
Year Q3 2018 (Oct. 2017-June 2018), the E-Verify program processed a 
total of 27,357,051 cases. During this same time period, 98.88 
percent of employees were automatically confirmed as authorized to 
work (``work authorized'') either instantly or within 24 hours, 
requiring no employee or employer action. See E-Verify, About E-
Verify, E-Verify Data, E-Verify Performance available at https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance 
(last visited May 28, 2019).
    \47\ Id.
    \48\ Id.
---------------------------------------------------------------------------

    While participation in E-Verify is a new requirement for CW-1 
employers, it is not a new requirement for certain employers that are 
required to enroll in it as a condition of federal contracting, or a 
result of state legislation or other applicable law. It is also a 
requirement for employers of certain nonimmigrants. For example, 
employers of certain F-1 students with science, technology, 
engineering, or mathematics (STEM) \49\ degrees are subject to E-Verify 
requirements. Employers of these nonimmigrants must remain participants 
in good standing in the E-Verify program, as determined by USCIS in its 
discretion.\50\ While the requirements of the program are clearly 
defined in the MOU and related guidance, DHS has not expressly defined 
``participant in good standing'' in the regulations applicable to that 
program.\51\
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    \49\ See 8 CFR 214.2(f)(10)(ii)(C)(5).
    \50\ See 8 CFR 214.2(f)(10)(ii)(C)(5) and 8 CFR 274a.12(b)(21).
    \51\ But see 81 FR 13039, 13082 (Mar. 11, 2016) (interpreting 
the participant in good standing requirement to apply to a specific 
hiring site or work site).
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    An explicit definition of this term, applicable exclusively to the 
context of CW-1 adjudication, will provide greater transparency for CW-
1 employers as to their responsibilities as E-Verify participants. 
Defining ``participant in good standing'' will also help USCIS more 
closely monitor employer compliance with E-Verify requirements for CW-1 
employers throughout the period of participation with E-Verify. Under 
new 8 CFR 214.2(w)(1)(xii), which is limited to CW-1 petitioners, a 
participant in good standing in the E-Verify program means an employer 
that has enrolled in E-Verify with respect to all hiring sites in the 
United States as of the time of filing a petition; is in compliance 
with all requirements of the E-Verify program as identified in the MOU 
and program guidance, including but not limited to verifying the 
employment eligibility of newly hired employees in the United States; 
and continues to be a participant in good standing in E-Verify at any 
time during which the employer employs any CW-1 nonimmigrant. 
Accordingly, the Form I-129CW is updated to include a new data field on 
the Form I-129CW to capture the employer's E-Verify information 
(employer's name as listed in E-Verify, along with the E-Verify Company 
Identification Number).
    This rule requires participating employers to have enrolled in E-
Verify with respect to all hiring sites in the United States. DHS had 
other options for implementing the E-Verify requirement. DHS could 
require enrollment only for work at the specific worksite, could 
require E-Verify across hiring sites in the CNMI only, or could require 
that the employer enroll in E-Verify for all its worksites. Under 
current procedures, applicable to voluntary E-Verify participation, an 
employer can choose which hiring sites will participate in E-Verify, 
and each employer has the ability to organize or incorporate itself as 
it chooses and enroll as that chosen entity in E-Verify.\52\ While the 
Workforce Act was silent on this issue, and while any of the above 
interpretations are reasonable, Congress could have specified the reach 
of the E-Verify requirement or could have simply limited such 
participation in statute, but it did not provide any limits on the 
requirement.
---------------------------------------------------------------------------

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

    The Workforce Act's definition of ``legitimate business'' states 
that determinations regarding whether an employer is a ``legitimate 
business'' are ``in the Secretary's sole discretion,'' thus 
demonstrating Congressional intent that this authority would be 
exercised flexibly, as deemed appropriate by DHS. The definition of 
``legitimate business,'' which contains the E-Verify participation 
requirement, also contains multiple elements that relate to an 
employer's operations in the CNMI, as well as activities in the United 
States outside of the CNMI. In particular, the business must have 
substantially complied with all Federal laws relating to employment, 
and not to have engaged in or benefited from activities such as human 
trafficking or any other activity that is illegal under Federal law. 
If, for example, a business complied with laws related to its CNMI 
operations, but was engaged in human trafficking in Guam or elsewhere 
in the United States, the employer would not be a legitimate business 
under this definition.
    With respect to the E-Verify requirement, if it were limited to new 
hires at hiring sites in the CNMI only, the rule would be impractical 
for DHS to manage and too easy for an employer to undermine because an 
employer could avoid enrolling a non-CNMI work site in E-Verify. Not 
all hires of an employer are hired through the location where they 
work. It is very common for an employer to hire through a central site 
that has no connection to various work sites. In addition, there are 
few employers who have segregated their workforces to have no 
interaction with other worksites. Modern technology, most notably 
electronic messaging, has

[[Page 29278]]

broadened and facilitated doing work in multiple dispersed locations 
through a national and even international network of collaborators. For 
example, an employer could hire an employee through a hiring site in 
Guam and then station that person in the CNMI, thereby circumventing 
the E-Verify requirement. Thus, narrowly defining the verification 
requirement would be too unwieldy for an effective rule, making 
enforcement of this aspect of the rule too difficult and making the 
rule too easy to misinterpret or undermine, such as in situations as 
the above example illustrated, the employer can merely hire an employee 
at one hiring site and then transfer him/her to a worksite in the CNMI. 
Consequently, DHS believes it is reasonable to take a more expansive 
interpretation to fully support increased participation.
    DHS's more expansive interpretation is also consistent with 
Executive Order (E.O.) 13788, ``Buy American Hire American'',\53\ which 
among other elements, directs the Secretary of Homeland Security, ``to 
protect the interests of U.S. workers in the administration of our 
immigration system, including through the prevention of fraud or 
abuse.'' See E.O. 13788 Section 5(a). A main purpose of E-Verify is to 
ensure that U.S. employers hire only people who are legally permitted 
to work. This interpretation directly supports the E.O. by requiring 
that CW-1 employers use E-Verify to confirm the employment eligibility 
of their new employees at all hiring sites in the United States to 
ensure the integrity of the immigration system and preserve jobs for 
U.S. workers.
---------------------------------------------------------------------------

    \53\ On April 18, 2017, the President issued Executive Order 
(E.O.) 13788, ``Buy American and Hire American'' available at 
https://www.whitehouse.gov/presidential-actions/presidential-executive-order-buy-american-hire-american/, (last visited June 26, 
2019).
---------------------------------------------------------------------------

    Under this IFR, a CW-1 employer will need to enroll and participate 
in E-Verify with respect to all of its hiring sites, to include the 
CNMI and other locations in the rest of the United States, as of the 
time of filing a petition. A hiring site is the location where the 
employer hires employees and they complete Form I-9.\54\ This means 
that the CW-1 employer must select all hiring sites to participate in 
E-Verify so that the employer can verify all newly hired employees for 
all hiring sites. The Workforce Act further bars petitioners that have 
not substantially complied with wage and hour laws, occupational safety 
and health requirements, and all other Federal, Commonwealth, and local 
requirements related to employment during the preceding 5 years and 
that have directly or indirectly engaged in, or knowingly benefitted 
from, prostitution, human trafficking, or any other activity that is 
illegal under Federal, Commonwealth, or local law. Notably, the current 
regulatory definition mentioning trafficking in minors will be amended 
to the more expansive term, human trafficking. These statutory changes 
to the legitimate business definition also cast a wider net by 
expanding the population it covers by extending these prohibitions to 
any ``successor in interest.'' This IFR, consistent with DOL's 
implementing interim regulation for the Workforce Act,\55\ defines 
successor in interest at 8 CFR 214.2(w)(1)(xiv) as an employer that is 
controlling and carrying on the business of a previous employer. The 
following factors may be considered in determining whether an employer 
is a successor in interest; no one factor is dispositive, but all of 
the circumstances will be considered as a whole to have:
---------------------------------------------------------------------------

    \54\ See ``The E-Verify User Manual for Corporate 
Administrators'', available at https://www.e-verify.gov/e-verify-user-manual-for-corporate-administrators-20-company-location-administration-21 (last visited June 26, 2019).
    \55\ See 20 CFR 655.402(rr). DHS has not previously defined this 
concept by regulation and finds the DOL definition relating to TLCs 
for CW-1 petitions applicable here.
---------------------------------------------------------------------------

     Substantial continuity of the same business operations;
     Use of the same facilities;
     Continuity of the work force;
     Similarity of jobs and working conditions;
     Similarity of supervisory personnel;
     Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
     Similarity in machinery, equipment, and production 
methods;
     Similarity of products and services; and
     The ability of the predecessor to provide relief.

H. Long-Term Workers

    The Workforce Act creates a new subcategory of CW-1 workers. Per 
statute, a long-term worker is one who was admitted to the CNMI as a 
CW-1 nonimmigrant during FY 2015, and who was granted CW-1 nonimmigrant 
status, as defined by DHS, during each of FYs 2016 through 2018. 48 
U.S.C. 1806(d)(7)(B). As provided by the Workforce Act, long-term 
workers are exempt from the prohibition on Construction and Extraction 
Occupations (under DOL's SOC Group 47-0000). 48 U.S.C. 
1806(d)(3)(D)(v). Extensions for long-term workers may be granted for a 
period of up to three years until the end of the transition period, 
subject to the numerical limitation. 48 U.S.C. 1806(d)(7)(B) and new 8 
CFR 214.2(w)(13). Long-term workers are not subject to the temporary 
departure requirement. 48 U.S.C. 1806(d)(7)(A) and new 8 CFR 
214.2(w)(18)(v).
    Current regulations do not differentiate between a beneficiary with 
initial CW-1 status and a beneficiary that has been in status for a 
number of years. CW-1 status currently may be granted for a period of 
up to one year only. An employer may request an extension of status by 
filing a new I-129CW petition. Extensions are also granted in periods 
that are not to exceed one year. However, the Workforce Act now 
distinguishes between certain CW-1 beneficiaries, based on their 
previous status as a CW-1, and provides this new subcategory of CW-1 
beneficiaries, the long-term workers, with up to a three year validity 
period. This IFR incorporates the statutory definition of ``long-term 
workers'' at 8 CFR 214.2(w)(1)(viii); the exemption from the 
construction prohibition at 8 CFR 214.2(w)(2)(vii); the exemption from 
the temporary departure requirement at 8 CFR 214.2(w)(18)(v) and the 
longer extension period at 8 CFR 214.2(w)(18)(iii).
    USCIS will begin accepting CW-1 petitions requesting long-term 
workers as of the effective date of this IFR. Accordingly, the Form I-
129CW is updated to specifically identify a request for such long-term 
workers.

I. Bar on Certain Construction Worker Occupations

    The Workforce Act amends the ban on certain construction worker 
occupations first enacted in 2017 \56\ and prohibits the CW-1 
classification from being available to workers who will be performing 
jobs classified as ``construction and extraction occupations,'' as 
defined in DOL's SOC system, other than long-term workers (CW-1 workers 
first issued such status before October 1, 2015). 48 U.S.C. 
1806(d)(3)(D)(v). It bans employers of new construction and extraction 
occupation workers from using the CW-1 classification.
---------------------------------------------------------------------------

    \56\ The Northern Mariana Islands Economic Expansion Act (the 
NMIEEA), Public Law 115-53, which was enacted into law on August 22, 
2017, revised the CW-1 visa classification to, among other things, 
prohibit the CW-1 classification from being available to workers who 
will be performing jobs classified as ``construction and extraction 
occupations'' as defined in the U.S. Department of Labor's SOC 
system other than to extend CW-1 permits of such workers first 
issued before October 1, 2015.

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[[Page 29279]]

    As noted above, the original construction ban was imposed in 2017, 
but DHS did not update its regulations at that time. USCIS interpreted 
the 2017 exemption to the ban as applying to extensions from the same 
petitioner and same qualifying beneficiary. This new exemption broadly 
allows any CW-1 petitioner to request a CW-1 beneficiary for 
``construction and extraction occupations'' as long as that beneficiary 
qualifies as a long-term worker. Accordingly, this IFR updates DHS 
regulations to include this amended bar on construction workers (and an 
exemption for long-term workers) at 8 CFR 214.2(w)(2)(vii), but does 
not change any other petitioning procedures.
    Petitioners are required to comply with all U.S. Federal and CNMI 
labor laws including the requirements to submit a DOL-approved TLC. 
While USCIS will consider the job classification identified on these 
documents, USCIS is not bound by this determination and may make a 
separate and independent judgment on the CW-1 petition based on a 
preponderance of the evidence in each case. USCIS will deny CW-1 
petitions for construction and extraction occupations if it is not 
established that the beneficiary is eligible for the long-term worker 
subcategory.

J. Temporary Departure Requirement

    The Workforce Act contains a requirement for CW-1 transitional 
workers (other than ``long-term workers'' who have had CW-1 status 
continuously since FY 2015) to remain outside the United States after a 
second renewal period (i.e., extending up to a total of three years of 
CW-1 status) before another petition for CW-1 classification may be 
filed. 48 U.S.C. 1806(d)(7). Specifically, the language states, ``at 
the expiration of the second renewal period, an alien may not again be 
eligible for such a permit until after the alien has remained outside 
of the United States for a continuous period of at least 30 days prior 
to the submission of a renewal petition on their behalf.'' 48 U.S.C. 
1806(d)(7)(A)(ii).
    In a September 18, 2018 letter to Secretary Nielsen, Governor 
Torres requested that DHS interpret the requirement for a CW-1 permit 
holder to remain outside of the United States for 30 continuous days 
prior to the submission of a [third] renewal petition by their employer 
such that the first relevant renewal petition would be filed for 
employment in FY 2020.\57\ Governor Torres stated that this approach 
would provide clarity to employers on the mandates of the Workforce Act 
and allow them to make the necessary adjustments to their internal 
processes to plan for the departure of their CW-1 employees following 
the end of the second renewal.
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    \57\ As previously stated, the Workforce Act states that DHS 
should consider in good faith the implementation recommendations of 
the Governor submitted within 60 days after enactment.
---------------------------------------------------------------------------

    In accordance with the Workforce Act, DHS has considered the 
Governor's recommendations in the development of this regulation. The 
Governor's request is inconsistent with the best reading of the 
statute. The Workforce Act exempts long-term workers from the departure 
requirement. Eligibility for the long-term worker subcategory is 
specifically based on their CW-1 status before the date of enactment 
(i.e., in CW-1 status since FY 2015). DHS therefore believes the 
Workforce Act is best read as indicating that pre-enactment renewals 
will be taken into consideration in applying the departure bar to other 
workers. Otherwise, DHS is arguably (at least for the first two years) 
creating an exception for all workers that Congress did not intend. The 
Workforce Act specifically exempts long-term workers from the departure 
requirement and ensures that they receive preferential consideration 
under the cap. As a result, this provision limits the stay of CW-1 
workers, other than long-term workers, by imposing a new 30-day 
departure before the third petition to renew CW-1 classification.
    USCIS will count renewals issued before the interim final rule 
effective date, so that the 30-day departure requirement is implemented 
immediately. As such, it shall apply to all CW-1 petitions filed with 
USCIS on or after the effective date of this IFR. This reading of the 
Workforce Act is more in line with Congressional intent (given the 
express carve-out for the long-term workers from the 30-day departure 
requirement). New 8 CFR 214.2(w)(18)(v).

K. Transit Through Guam

    The Workforce Act also authorizes CW-1 and CW-2 status holders to 
transit through Guam. Existing regulations allow direct Guam transit 
under limited conditions only. This IFR updates regulations at 8 CFR 
214.2(w)(1)(ii) and (w)(23)(iii) to incorporate the statutory language.
    Under the current 8 CFR 214.2(w)(22), CW-1 and CW-2 status is only 
applicable in the CNMI. It does not authorize entry to Guam or to any 
other part of the United States. Entry, employment, and residence in 
the rest of the United States (including Guam) require the appropriate 
visa or visa waiver eligibility. An alien with CW-1 or CW-2 status who 
enters or attempts to enter, who travels or attempts to travel to any 
other part of the United States without the appropriate visa or visa 
waiver eligibility, or who violates conditions of nonimmigrant stay 
applicable to any such authorized status in any other part of the 
United States is deemed to have violated CW-1 or CW-2 status. However, 
the regulations provide an exception to this limitation on travel to 
Guam. Currently, under 8 CFR 214.2(w)(22)(iii), USCIS allows a CW-1 or 
CW-2 who is a national of the Philippines, to travel from the CNMI to 
the Philippines (and back) via a direct Guam transit without being 
deemed to violate that status. Under 8 CFR 214.2(w)(1)(ii), such direct 
transit can only be on a direct itinerary involving a flight stopover 
or connection in Guam (and no other place) within 8 hours of arrival in 
Guam, without the alien leaving the Guam airport. Under this limited 
travel exception, if an immigration officer determines that the 
individual warrants a discretionary exercise of parole authority, the 
CW may be paroled into Guam via direct Guam transit to undergo pre-
inspection 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 pre-inspection, the individual may be admitted in CW-1 
or CW-2 status if the immigration officer in Guam determines that the 
he or she is admissible to the CNMI. A condition of the admission is 
that the individual must complete the direct Guam transit.
    DHS included this regulatory exception to alleviate the travel 
problems arising from the general limitation of CW status to the CNMI. 
While this provision helped reduce the travel restrictions placed on 
certain CW workers, the 8-hour limitation often proved challenging for 
travelers as they are subject to limited flight schedules which 
exceeded these regulatory time limits. In these cases, CBP could waive 
the 8-hour limit and extend up to 24 hours on a case-by-case basis.\58\
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    \58\ See USCIS, Legal Resources, Immigration From the 
Commonwealth of the Northern Mariana Islands (CNMI), ``CNMI 
Transitional Worker Classification Questions and Answers,'' 
available at https://www.uscis.gov/legal-resources/immigration-commonwealth-northern-mariana-islands-cnmi/cnmi-transitional-worker-classification-questions-and-answers (last visited May 28, 2019).
---------------------------------------------------------------------------

    As this limited travel exception is applicable only to Philippine 
nationals, other CW status holders cannot easily transit through Guam, 
which continues

[[Page 29280]]

to pose travel problems for other CW nonimmigrants. The latter cannot 
travel without advance approval of travel by USCIS.\59\ Such CW status 
holders must first obtain an approved advance parole from USCIS in 
order to transit via Guam when arriving from a foreign place.
---------------------------------------------------------------------------

    \59\ These individuals file a Form I-131 Application for Travel 
Document with the fee at the USCIS Guam Office to obtain an advance 
parole document.
---------------------------------------------------------------------------

    The statutory provision reduces the existing travel issues by 
removing the travel restrictions and allowing transit of all CW status 
holders through Guam. New 8 CFR 214.2 (w)(1)(ii) and (w)(23)(iii) allow 
all CW status holders to travel to and from a foreign place via a 
direct Guam transit without being deemed to violate that status.

L. Other Technical Amendments

    This IFR revises DHS regulations to reflect that Congress has 
extended the statutory bar for asylum in the CNMI, see INA sec. 208(e), 
8 U.S.C. 1158(e), until December 31, 2029. See Workforce Act at sec. 
3(a); 48 U.S.C. 1806(a)(2). See Part IV.A.1 above.

V. Statutory and Regulatory Requirements

A. Administrative Procedure Act

    The Administrative Procedure Act (APA) generally requires agencies 
to issue a proposed rule before revising legislative regulations, 
subject to certain exceptions. See 5 U.S.C. 553(b). The Workforce Act 
specifically exempts this rulemaking from the notice-and-comment 
requirement, and instead directs the Secretary of Homeland Security to 
publish in the Federal Register an IFR that specifies how the Secretary 
intends to implement the Workforce Act's amendments. Pursuant to 
section 3(e)(2) of the Workforce Act, this authority persists even in 
the event that the IFR is published after the 180-day deadline 
established in the Act. DHS is proceeding by IFR as a consequence of 
these statutory provisions. DHS nevertheless invites written comments 
on this interim rule and will consider those comments in the 
development of a final rule in this action.

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

    Executive Order (E.O.) 12866 directs agencies to assess the costs 
and benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits, 
including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity. E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, reducing costs, 
harmonizing rules, and promoting flexibility. E.O. 13771 directs 
agencies to reduce regulation and control regulatory costs. This 
interim final rule (IFR) is considered a regulatory action for the 
purposes of E.O. 13771.
    The Office of Information and Regulatory Affairs, of the Office of 
Management and Budget, has designated this rule a ``significant 
regulatory action'' that is not economically significant because it is 
not estimated to have an annual effect on the economy of $100 million 
or more, under section 3(f)(1) of Executive Order 12866. Accordingly, 
the Office of Management and Budget (OMB) has reviewed this regulation.
1. Summary
    The Northern Mariana Islands U.S. Workforce Act of 2018 (Workforce 
Act) creates requirements to encourage the hiring of United States 
workers in the Commonwealth of the Northern Mariana Islands (CNMI). The 
Workforce Act extends the transition period through December 31, 2029 
and provides new CW-1 numerical limitations for each fiscal year until 
the end of the transition period. This IFR amends the relevant sections 
of USCIS regulations to reflect these changes. The provisions of the 
IFR are discussed in detail in the sections that follow.
    The costs associated with the IFR include costs of preparing and 
filing Form I-129CW petitions, filing applications for extension of 
stay, participating in the E-Verify program, submitting semiannual 
reports and document retention, submitting notifications to USCIS, and 
filing revoked petitions. Accordingly, the lower bound net total 
estimated cost of the regulatory changes to employers and nonimmigrant 
CW-2 applicants is $73,578,345 undiscounted, $62,851,776 discounted at 
3 percent, and $51,858,612 discounted at 7 percent from FY 2019 to 
2030. Likewise, the upper bound net total estimated cost of the 
regulatory changes to employers and nonimmigrant CW-2 applicants is 
$61,741,219 undiscounted, $52,693,918 discounted at 3 percent, and 
$43,433,060 discounted at 7 percent from FY 2019 to 2030. These costs 
are summarized in Table 1. The total estimated lower bound transfers 
are $25,712 at 7 percent and $32,361 at 3% while the total estimated 
upper bound transfers are $13,845,180 discounted at 7% and $16,806,753 
discounted at 3%. The annualized cost of the regulatory changes to 
employers and nonimmigrant CW-2 applicants discounted at 7 percent is 
$5,468,222 for the lower bound and $6,528,999 for the upper bound 
estimates.
    A petitioner is required to file Form I-129CW to employ 
nonimmigrant workers who are otherwise ineligible to work in the CNMI 
under other nonimmigrant worker categories. DHS estimates the total 
petitioners' cost to file Form I-129CW petitions to be $57,047,877 
undiscounted, $48,668,535 discounted at 3 percent, and $40,092,491 
discounted at 7 percent from FY 2019 to 2029, which includes the 
opportunity cost of time to complete Form I-129CW, the postage cost to 
mail the completed form, and the costs associated with Form I-129CW 
filing fee, education funding fee and fraud prevention and detection 
cost. Petitioners are also required to file a new petition to request 
an extension of stay for their currently approved CW-1 nonimmigrants 
employees. Because the cost of filing a petition for an extension of 
stay is already captured by the cost of filing Form I-129CW petitions, 
DHS does not separately present the cost of filing an extension of 
stay.
    The IFR requires that any employer petitioning for a CW-1 
nonimmigrant worker must be an E-Verify program participant in good 
standing. Participating in the E-Verify program requires entering newly 
hired employees' information from Form I-9 to electronically match 
against records available to DHS and the SSA to confirm the employees' 
identity and employment eligibility. This results in a cost burden to 
employers that petition for CW-1 nonimmigrant workers and operate in 
the CNMI and other locations in the U.S. Employers also incur 
additional cost burden for annual training in E-Verify as they continue 
to comply with E-Verify requirements. DHS estimates the total cost of 
participating in the E-Verify program to be $1,224,618 undiscounted, 
$1,061,385 discounted at 3 percent, and $894,425 discounted at 7 
percent from FYs 2019 to 2030.
    An employer whose petition has been approved will be required to 
submit a semiannual report to USCIS every six months, using Form I-
129CWR, after the petition validity start date to verify the continuing 
employment and payment of the beneficiary under the terms and 
conditions of the approved petition. Petitioners are also required to 
retain all documents and records in support of the petition, including

[[Page 29281]]

information submitted to USCIS in the semiannual report, for three 
years from the petition validity start date. DHS estimates the total 
cost of semiannual reporting and document retention will be $15,996,725 
undiscounted, $13,647,084 discounted at 3 percent, and $11,242,286 
discounted at 7 percent from FY 2019 to 2030.
    The IFR requires a petitioner to immediately notify USCIS of any 
changes in the terms and conditions of employment of a nonimmigrant 
worker which may affect eligibility for CW-1 status either by (1) 
filing an amended petition if the petitioner continues to employ the 
nonimmigrant worker, or (2) sending a letter to the USCIS office at 
which the CW-1 petition was filed explaining the basis on which the CW-
1 nonimmigrant worker no longer works for the petitioner. DHS estimates 
the total cost of filing an amended petition to be $215,296 
undiscounted, $183,673 discounted at 3 percent, and $151,307 discounted 
at 7 percent from FY 2019 to 2030. Although DHS is not able to estimate 
the total cost of submitting a notification letter due to lack of data, 
DHS provides a unit cost of mailing a notification letter. Hence, an 
affected petitioner on average will incur a unit cost of $43.65 to send 
a letter notifying USCIS that a CW-1 nonimmigrant is no longer working 
for him or her. This unit cost estimate consists of the opportunity 
cost of time to prepare a notification letter and the postage cost to 
mail the notification letter to USCIS.
    USCIS reserves the authority to fully or partially revoke petitions 
at any time under specified conditions. The conditions for immediate 
and automatic revocations and the discretionary grounds for revocation 
on notice are discussed in the preamble of this IFR. For each 
beneficiary of a petition revoked in a fiscal year, USCIS will add it 
to a CW-1 numerical cap of the next fiscal year. DHS estimates 
employers' total cost to file Form I-129CW petitions for such additions 
to the numerical cap to be $108,957 undiscounted, $90,410 discounted at 
3 percent, and $71,834 discounted at 7 percent from FY 2019 to 2030. 
The IFR also provides the conditions for appealing revoked petitions. 
For revocation on notice, a petitioner may file an appeal with the 
USCIS Administrative Appeals Office or a motion with the USCIS office 
that revoked the petition by submitting Form I-1290B, Notice of an 
Appeal or Motion, in accordance with 8 CFR 103. There is no appeal of 
an automatic revocation. DHS is unable to estimate the total cost 
employers will incur appealing petitions that have been revoked on 
notice in the implementation period, however, DHS estimates a unit cost 
to show the minimum cost petitioners are likely to incur appealing 
petitions revoked on notice. DHS estimates that an affected employer on 
average incurs a cost of $782.95 appealing a petition revoked on 
notice. This unit cost estimate consists of the filing fee for Form I-
290B, the opportunity cost of time to complete the form, and the 
postage cost to mail the form to USCIS.
    Qualifying dependents (i.e., an eligible spouse or child) of 
nonimmigrant workers with a CW-1 status may file applications 
requesting an extension of CW-2 status using Form I-539, Application to 
Extend/Change Nonimmigrant Status. DHS estimates the total cost of 
filing applications for CW-2 status to be $7,826,181 undiscounted, 
$6,676,651 discounted at 3 percent, and $5,500,136 discounted at 7 
percent for nonimmigrant CW-2 applicants from FY 2019 to 2030.
    The IFR states that an extension of stay may be granted for a 
period of up to three years if the employee is a long-term worker. DHS 
estimates the cost savings for petitioners who will request a three-
year extension of stay for their long-term workers using the lower and 
upper bound estimates for the net number of beneficiaries for whom a 
three-year extension of stay will be requested. Accordingly, the total 
cost savings to petitioners resulting from filing a three-year 
extension of stay for long-term nonimmigrant workers range from 
$978,034 to $8,802,309 undiscounted ($827,067 to $7,443,600 discounted 
at 3 percent, and $674,239 to $6,068,155 discounted at 7 percent) from 
FY 2019 to 2030.
    Table 1 provides a detailed summary of the regulatory changes and 
their impacts.

  Table 1--Summary of Major Provisions and Economic Impacts of the Rule
------------------------------------------------------------------------
                                                     Expected impact of
         Provisions            Regulatory changes    regulatory changes
------------------------------------------------------------------------
Amending 8 CFR 103.7 by       This is not a new     Quantified Costs
 revising paragraph            fee as in 2017        Total cost
 (b)(1)(i)(J) and CFR          Congress enacted      of $40.1 million
 214.2(w)(5).                  the Northern          discounted at 7
                               Mariana Islands       percent
                               Economic Expansion   Transfers
                               Act, Public Law 115-  The $50
                               53, 131 Stat. 109,    increase in the
                               which raised the      education funding
                               supplemental CNMI     fee would be a
                               education funding     transfer of $13.8
                               fee from $150 to      million discounted
                               $200 per each         at 7 percent.
                               beneficiary issued
                               CW-1 permit status.
                               The Act also banned
                               issuing new CW-1
                               permits to
                               construction
                               workers.
                              This IFR also
                               updates existing
                               regulations, to
                               include the
                               Workforce Act's
                               requirement that CW-
                               1 employers must
                               pay a mandatory $50
                               fraud prevention
                               and detection fee
                               per petition The
                               additional $50 fee
                               is intended for a
                               new and permanent
                               site visit program.
                               The fee is for the
                               sole purpose of
                               fraud deterrence
                               and detecting
                               immigration benefit
                               fraud in the
                               Northern Mariana
                               Islands. DHS
                               characterizes this
                               fee as a cost
                               because in general,
                               fee revenues will
                               support new
                               activities that
                               were not previously
                               conducted.
Amending 8 CFR                DHS provides that an  Quantified Cost
 214.2(w)(18)(iii).            extension of CW-1     Savings
                               status may be         Because
                               granted for a         approved extension
                               period of up to 1     of stay requests
                               year (or up to 3      are counted towards
                               years of the          each year's
                               beneficiary is a      numerical cap, the
                               long-term worker).    cost of filing a
                                                     one-year extension
                                                     of stay is already
                                                     captured by the
                                                     above CW-1 petition
                                                     filing cost
                                                     Using
                                                     sensitivity
                                                     analysis, the total
                                                     cost savings to
                                                     petitioners arising
                                                     from three-year
                                                     extension of stay
                                                     requests range from
                                                     $0.07 million to
                                                     $6.1 million
                                                     discounted at 7
                                                     percent.

[[Page 29282]]

 
Amending 8 CFR                DHS imposes the       Quantified Costs
 214.2(w)(1)(vii)(E).          requirement that      Total cost
                               petitioners who       of $0.89 million
                               file Form I-129CW     discounted at 7
                               petitions must be     percent.
                               an E-Verify program
                               participant in good
                               standing.
Amending 8 CFR                DHS requires          Quantified Costs
 214.2(w)(26)(i)&(iii).        petitioners to        Total cost
                               submit semiannual     of $11.2 million
                               reports every six     discounted at 7
                               months and retain     percent.
                               all documents and
                               records in support
                               of the petition for
                               3 years.
Amending 8 CFR                DHS requires          Quantified Costs
 214.2(w)(27)(i)(A).           petitioners to        Total cost
                               immediately notify    of $ $0.15 million
                               USCIS when changes    discounted at 7
                               that affect the       percent.
                               employment of CW-1
                               nonimmigrant
                               workers occur.
Adding 8 CFR                  DHS adds the number   Quantified Costs
 214.2(w)(27)(ii) & (iii).     of petitions          Total cost
                               revoked in a fiscal   of $0.07 million
                               year to the next      discounted at 7
                               year's numerical      percent, to file
                               cap so that           revoked petitions
                               petitioners may      Transfer Payments
                               file Form I-129CW     A transfer
                               petitions for each    of $0.03 million
                               revoked petition.     education funding
                                                     discounted at 7
                                                     percent.
Adding 8 CFR 214.2(w)(28)...  DHS adds a provision  Quantified Costs
                               that a petition       Total cost
                               revoked on notice     not estimated due
                               may now be appealed.  to lack of data; a
                                                     unit cost of $783
                                                     to appeal a
                                                     petition revoked on
                                                     notice.
8 CFR 214.2(w)(16)..........  Current DHS           Quantified Costs
                               requirement for       Total cost
                               nonimmigrant          of $5.5 million
                               workers with          discounted at 7
                               approved CW-1         percent to
                               status to file Form   nonimmigrant CW-2
                               I-539 requesting an   applicants
                               extension of CW-2    Note: This cost is
                               status for their      estimated because
                               qualifying            the current rule
                               dependents.           was set to expire
                                                     on FY 2020 before
                                                     the Workforce Act
                                                     extends it to FY
                                                     2030. Hence, the CW-
                                                     2 extension of stay
                                                     requirement will be
                                                     applied to the
                                                     affected population
                                                     during the IFR
                                                     implementation
                                                     period. To account
                                                     for the overlapping
                                                     period (FYs 2019 &
                                                     2020) the
                                                     difference between
                                                     the proposed and
                                                     current numerical
                                                     caps is taken as
                                                     shown in Table 8.
------------------------------------------------------------------------

2. Background and Purpose of the Rule
    The Consolidated Natural Resources Act of 2008 (CNRA) amended the 
1976 Covenant by extending the U.S. immigration laws, with limited 
exceptions, to the CNMI and providing CNMI-specific provisions 
affecting foreign workers. The CNMI had been admitting a substantial 
number of foreign workers since 1978 who constituted a majority of the 
CNMI labor force. The CNRA provided for a transition period to phase 
out the CNMI's nonresident contract worker program and phase in the 
U.S. federal immigration system in a manner that minimized adverse 
economic and fiscal effects and maximized the CNMI's potential for 
future economic and business growth.
    The CNRA authorized the Secretary of DHS to create a nonimmigrant 
classification that would ensure adequate employment in the CNMI during 
the transition period, also known as CW nonimmigrant classification. 
The CNRA also 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. As a result, 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).\60\ DHS also set the CW-1 numerical limitations (or caps) 
starting from FY 2011. DHS initially announced annual caps for the 
first two fiscal years in the DHS regulations at 8 CFR 
214.2(w)(1)(viii)(A) and (B), and thereafter published subsequent 
annual caps in Federal Register notices.\61\
---------------------------------------------------------------------------

    \60\ See Commonwealth of the Northern Mariana Islands 
Transitional Worker Classification, 76 FR 55502 (Sept. 7, 2011)
    \61\ See 8 CFR 214.2(w)(1)(viii)(C).
---------------------------------------------------------------------------

    The Northern Mariana Islands U.S. Workforce Act of 2018 (the 
Workforce Act) creates requirements to encourage the hiring of United 
States workers in the CNMI in order to (a) increase the percentage of 
U.S. workers in the CNMI while maintaining the minimum number of 
workers who are not U.S. workers to meet the changing demands of the 
CNMI economy, and (b) ensure that no U.S. worker is placed at a 
competitive disadvantage for employment compared to a non-U.S. worker 
or is displaced by a non-U.S. worker. The Workforce Act amends the 
statute by which employers within the CNMI may apply for permission to 
employ nonimmigrant workers who are otherwise ineligible to work in the 
CNMI under other nonimmigrant worker categories. The Workforce Act 
makes a number of changes to the transitional provisions (which 
extended U.S. immigration law, with limited exceptions, to the CNMI) 
and requires the Secretary of DHS to promulgate an Interim Final Rule 
(IFR) implementing the related statutory changes. These changes are 
discussed in detail in the next section.
3. Changes in the IFR
    This section provides a brief description of the major regulatory 
changes in this IFR. The regulatory changes in the IFR arise from the 
statutory requirements of the Workforce Act.
    In accordance with the statutory requirements in the Workforce Act, 
DHS amends its regulations in this IFR. DHS extends the transition 
period and the CW-1 program through December 31, 2029, reflecting the 
new sunset date in existing regulations. As the Workforce Act provides 
new CW-1 numerical limitations for each fiscal year until the end of 
the transition period, this IFR amends the relevant sections of USCIS 
regulations to reflect these changes.
    This IFR updates existing regulations to reflect that the 
supplemental CNMI education funding fee is raised from

[[Page 29283]]

$150 to $200 \62\ per each nonimmigrant worker with a CW-1 status per 
year. This education fee is paid by petitioners on behalf of the CW-1 
worker. Consistent with the Workforce Act, this IFR also provides DHS 
the discretion to annually adjust this supplemental fee via notice in 
the Federal Register. However, in providing DHS with the discretion to 
adjust the fee, the Workforce Act also sets forth that DHS can only 
adjust the fee by a percentage equal to the annual change in the 
Consumer Price Index for All Urban Consumers. Furthermore, this IFR 
updates existing regulations to include the statutory requirement that 
CW-1 petitioners must pay a mandatory $50 fraud prevention and 
detection fee with each petition, in addition to other current fees. 
This new fraud prevention and detection fee does not apply to CW-1 
petitions already filed and pending with USCIS as of July 24, 2018.
---------------------------------------------------------------------------

    \62\ In 2017, Congress enacted Public Law 115-53, which 
increased the supplemental fee paid for each CW permit to $200 and 
banned issuing new CW-1 permits to construction workers.
---------------------------------------------------------------------------

    This IFR revises existing procedures to require that a CW-1 
petition be filed with an approved TLC from DOL.\63\ The Workforce Act 
imposes this requirement for any CW-1 petition with an employment start 
date in FY 2020 and beyond. Per the Workforce Act, a TLC approved by 
DOL confirms that there are not sufficient United States workers in the 
CNMI who are able, willing, qualified, and available to fill the 
petitioning CW-1 employer's job opportunity. The TLC also confirms that 
the foreign worker's employment in the job opportunity will not 
adversely affect the wages or working conditions of similarly employed 
United States workers.
---------------------------------------------------------------------------

    \63\ To obtain a TLC, employers must submit a complete 
Application for Prevailing Wage Determination (Form ETA-9141C) with 
the OFLC National Prevailing Wage Center (NPWC) containing 
information about the job opportunity in which the nonimmigrant 
workers will be employed, as required by 20 CFR 655.410. Once the 
NPWC issues a prevailing wage determination, the employer may submit 
the CW-1 Application for Temporary Employment Certification as 
required by 20 CFR 655.410 and supporting documentation, as required 
by 20 CFR 655.420-423. Once all CW-1 regulatory requirements are 
met, the TLC is issued. Under the provisions at 20 CFR 655.452, the 
TLC is considered both, the Final Determination notice and a copy of 
the certified CW-1 Application for Temporary Employment 
Certification (Form ETA-9142C).
---------------------------------------------------------------------------

    DHS is revising existing regulations to include the statutory 
minimum wage requirements for a CW-1 petitioner. It now specifies, in 
alignment with the Workforce Act, that the petitioner will pay the 
nonimmigrant worker a wage that is not less than the greater of (1) the 
CNMI minimum wage; (2) the Federal minimum wage; or (3) the prevailing 
wage in the CNMI for the occupation in which the nonimmigrant worker 
will be employed as established by the DOL.
    Additionally, DHS will now require a CW-1 employer to file a 
semiannual reporting form to verify the continuing employment and 
payment of the CW-1 nonimmigrant worker under the terms and conditions 
set forth in the CW-1 petition. DHS implements this new statutory 
requirement via a new standalone form that captures data to provide 
USCIS with information necessary to help verify the continuing 
employment and payment of the CW-1 nonimmigrant worker. The standalone 
form also contains employers' attestations confirming the validity of 
the data provided. USCIS will not require submission of evidence at the 
time of filing, but employers must retain documents and records which 
support the attestation for three years after the ending date of 
petition validity period.
    DHS will now require employers filing CW-1 petitions to be E-Verify 
program participants in good standing. The E-Verify program is a USCIS 
web-based system that allows enrolled employers to confirm the 
eligibility of their employees to work in the United States.\64\ 
Employers participating in the E-Verify program are required to verify 
the identity and employment eligibility of newly hired workers by 
electronically matching information provided by workers on the Form I-
9, Employment Eligibility Verification, against records available to 
DHS and the SSA. A participant in good standing in the E-Verify program 
means an employer that has enrolled in E-Verify with respect to all 
hiring sites in the United States, not just the CNMI locations, as of 
the time of filing a petition, and is in compliance with all 
requirements of the E-Verify program, including but not limited to 
verifying the employment eligibility of newly hired employees in the 
United States, and not just in the CNMI. This is a new requirement with 
respect to all CW-1 employers and affects how they handle new hires at 
all hiring sites, not just in the CNMI.
---------------------------------------------------------------------------

    \64\ See E-Verify, available at https://www.e-verify.gov/ (last 
visited May 28, 2019).
---------------------------------------------------------------------------

    This IFR establishes notification and revocation procedures for 
approved CW-1 petitions. Specifically, DHS will now require a 
petitioner to immediately notify USCIS of any changes in the terms and 
conditions of employment of a nonimmigrant worker that may affect 
eligibility either by (1) filing an amended petition if the petitioner 
continues to employ the nonimmigrant worker, or (2) sending a letter to 
the USCIS office at which the CW-1 petition was filed explaining the 
basis on which the specific CW-1 nonimmigrant no longer works for the 
petitioner. Further, this IFR establishes conditions for immediate and 
automatic revocations and the discretionary grounds for revocation on 
notice. A petition that has been revoked on notice, in whole or in 
part, may be appealed under 8 CFR 103; however, automatic revocations 
may not be appealed. Further, under this IFR, for each beneficiary of a 
petition revoked in a fiscal year, USCIS will add an equivalent number 
of CW-1 visas to a CW-1 numerical cap of the next fiscal year. This 
recapture of CW-1 visas does not exist under the current regulations.
4. Population
    The population affected by this IFR consists of petitioners (or 
employers) within the CNMI who file Form I-129CW requesting a CW-1 visa 
for nonimmigrant workers and the nonimmigrant workers who are 
beneficiaries of the program. DHS estimates the number of the affected 
population based on the CNMI transitional worker program historical 
data for FYs 2012 to 2018 and the numerical caps set by this IFR 
limiting the total number of visas to be issued each year during the 
implementation period (FY 2019 to 2030).
i. CNMI Only Transitional Worker Program Historical Data
    Table 2 shows historical data on the number of Form I-129CW 
petitions received, beneficiaries approved, and petitions denied by 
USCIS in FYs 2012 to 2018.\65\ DHS estimates the number of petitions 
approved by subtracting the number of petitions denied from the number 
of petitions received for each year. Since a petitioner can request 
more than one beneficiary on a Form I-129CW, DHS also estimates the 
number of beneficiaries approved per petitioner by dividing the number 
of beneficiaries approved by the number of petitions approved for each 
year. Over the 7-year period, USCIS received an average of 6,880 
petitions from 1,471 petitioners (or employers) and approved an average 
of 6,391 petitions and 10,276 beneficiaries annually. Based on this, 
DHS concludes that USCIS approves 93 percent of the CW-1 petitions 
annually and that a petitioner files a petition on average for 
approximately 2

[[Page 29284]]

beneficiaries (or CW-1 nonimmigrant workers).
---------------------------------------------------------------------------

    \65\ The number of beneficiaries approved is based on the 
validity start date. If validity start date is unavailable, approval 
is based on approval date. The number of petitions denied is based 
on the date the application was denied irrespective of the initial 
date of submission.

                                          Table 2--Total Number of Form I-129CW Petitions Received and Approved
                                                                    [FY 2012 to 2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                             Number of                                                                       Number of      Percent of
                                            petitioners    Form I-129CW    Form I-129CW    Form I-129CW    Form I-129CW    beneficiaries   Form I-129CW
               Fiscal year                who filed Form     petitions     beneficiaries     petitions       petitions     approved per      petitions
                                              I-129CW        received        approved         denied         approved        petition      approved (%)
                                                       A               B               C               D         E = B-D       F = C / E       G = E / B
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012....................................           1,789           5,899          10,548             244           5,655            1.87            95.9
2013....................................           1,393           7,057           6,325             540           6,517            0.97            92.3
2014....................................           1,698           7,196           9,188             564           6,632            1.39            92.2
2015....................................           1,668           6,388           9,715             442           5,946            1.63            93.1
2016....................................           1,503           7,805          13,299             668           7,137            1.86            91.4
2017....................................           1,189           6,537          13,563             259           6,278            2.16            96.0
2018....................................           1,054           7,278           9,294             708           6,570            1.41            90.3
                                         ---------------------------------------------------------------------------------------------------------------
    Total...............................  ..............          48,160          71,932           3,425          44,735  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
7-year average..........................           1,471           6,880          10,276             489           6,391            2.00            93.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Office of Policy and Strategy, Research and Evaluation Division (OP&S RED) and USCIS analysis.

    Table 3 shows the number of Form I-129CW petitions amended by 
petitioners and CW-1 visas revoked by USCIS out of the total number of 
petitions and beneficiaries (or visas) approved, respectively, in FYs 
2012 to 2018. Based on these historical data, DHS estimates the 
percentage of petitions amended and visas revoked in each year. Over 
the 7-year period, from an average of 6,391 approved petitions, an 
average of 141 (or 2.20 percent) petitions were amended annually, and 
from an average of 10,276 approved beneficiaries, an average of 20 (or 
0.20 percent) petitions were revoked annually.

                                     Table 3--Total Number of Form I-129CW Petitions Amended and CW-1 Visas Revoked
                                                                    [FY 2012 to 2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Percent of
                                                           Form I-129CW    Form I-129CW    Form I-129CW    Form I-129CW    Form I-129CW     Percent of
                       Fiscal year                           petitions     beneficiaries     petitions       petitions       petitions     Form I-129CW
                                                             approved        approved         amended         revoked       amended (%)     revoked (%)
                                                                       A               B               C               D       E = C / A       F = D / B
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012....................................................           5,655          10,548              72              38            1.27            0.36
2013....................................................           6,517           6,325             124              25            1.90            0.40
2014....................................................           6,632           9,188             124              21            1.87            0.23
2015....................................................           5,946           9,715             175              14            2.94            0.14
2016....................................................           7,137          13,299             127              22            1.78            0.17
2017....................................................           6,278          13,563             171              11            2.72            0.08
2018....................................................           6,570           9,294             194               7            2.95            0.08
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................          44,735          71,932             987             138  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
7-year average..........................................           6,391          10,276             141              20            2.20            0.20
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Office of Policy and Strategy, Research and Evaluation Division (OP&S RED) and USCIS analysis.

    The historical data also show the number of petitioners who filed 
applications requesting extension of stay for their CW-1 workers in FYs 
2013 to 2018.\66\ Petitioners are required to file a new petition using 
Form I-129CW to request an extension of stay for their currently 
approved CW-1 nonimmigrants employees. As shown in Table 4, DHS 
estimates the number of applications approved by subtracting the number 
of applications denied from the total number of applications received 
for each year. DHS also estimates the number of beneficiaries approved 
per application by dividing the number of beneficiaries approved by the 
number of applications approved for each year. Over the 6-year period, 
USCIS received an average of 5,271 extension of stay applications and 
approved 5,056 applications and 7,545 beneficiaries (or CW-1 
nonimmigrant workers) annually. DHS then concludes

[[Page 29285]]

that USCIS approves 96 percent of extension of stay applications 
annually and that a petitioner files an extension of stay application 
on average for approximately 2 beneficiaries per petition.
---------------------------------------------------------------------------

    \66\ The data on extension of stay for FY 2012 are incomplete 
and therefore, dropped from this analysis.

                                      Table 4--Total Number of Extension of Stay Applications Received and Approved
                                                                    [FY 2013 to 2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Extension of
                                                               stay        Beneficiaries   Applications    Applications    Beneficiaries    Percent of
                       Fiscal year                         applications      approved         denied         approved      approved per    applications
                                                             received                                                       application    approved (%)
                                                                       A               B               C         D = A-C       E = B / D       F = D / A
--------------------------------------------------------------------------------------------------------------------------------------------------------
2013....................................................           4,743           6,003             464           4,279            1.40            90.2
2014....................................................           6,293           8,327             245           6,048            1.38            96.1
2015....................................................           4,899           7,230             174           4,725            1.53            96.4
2016....................................................           7,672          11,151             202           7,470            1.49            97.4
2017....................................................           3,767           6,280             102           3,665            1.71            97.3
2018....................................................           4,253           6,280             102           4,151            1.51            97.6
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................          31,627          45,271           1,289          30,338  ..............  ..............
--------------------------------------------------------------------------------------------------------------------------------------------------------
6-year average..........................................           5,271           7,545             215           5,056            2.00            96.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Office of Policy and Strategy, Research and Evaluation Division (OP&S RED) and USCIS analysis.

    To estimate the proportion of extension of stay applications filed 
on behalf of CW-1 nonimmigrant workers out of the total petitions 
approved, DHS divides the total number of extension of stay 
applications received by the total number of Form I-129CW petitions 
approved in FYs 2013 to 2018 as shown in Table 5. Overall, of the total 
number of CW-1 nonimmigrant workers that have been approved in FYs 2013 
to 2018, an average of 80 percent of applications request an extension 
of stay.

                               Table 5--Percent of Extension of Stay Applications
                                                [FY 2013 to 2018]
----------------------------------------------------------------------------------------------------------------
                                                                                                    Percent of
                                                                   Form I-129CW    Extension of    extension of
                           Fiscal year                               petitions         stay            stay
                                                                     approved      applications    applications
                                                                                   received \a\         (%)
                                                                               A               B       C = B / A
----------------------------------------------------------------------------------------------------------------
2013............................................................           6,517           4,743            72.8
2014............................................................           6,632           6,293            94.9
2015............................................................           5,946           4,899            82.4
2016............................................................           7,137           7,672           107.5
2017............................................................           6,278           3,767            60.0
2018............................................................           6,570           4,253            64.7
                                                                 -----------------------------------------------
    Total.......................................................          39,080          31,627  ..............
----------------------------------------------------------------------------------------------------------------
6-year average..................................................           6,513           5,271            80.0
----------------------------------------------------------------------------------------------------------------
Source: Office of Policy and Strategy, Research and Evaluation Division (OP&S RED) and USCIS analysis.
\a\ Data for extension of stay applications are not available for FY 2012.

    DHS uses the data from Form I-539, Application to Extend/Change 
Nonimmigrant Status, on applicants for an initial grant or extension of 
a CW-2 status, shown in Table 6, to determine the total number of 
qualifying dependents (i.e., eligible spouse or child) of nonimmigrant 
workers with a CW-1 visa in FYs 2012 to 2018. DHS estimates the number 
of applications approved by subtracting the number of applications 
denied from the number of applications received for each year. DHS also 
estimates the number of dependents approved per application by dividing 
the number of dependents approved by the number of applications 
approved for each year. Over the 7-year period, USCIS received on 
average 933 applications and approved 898 applications and 782 
qualified dependents annually. Table 6 also shows that USCIS approves 
96 percent of applications for CW-2 status annually and that an 
applicant uses Form I-539 to apply for a CW-2 status on average for 
approximately 1 dependent.

[[Page 29286]]



                                Table 6--Total Number of Applications for CW-2 Status (Form I-539) Received and Approved
                                                                    [FY 2012 to 2018]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                               CW-2       Percent of CW-
                                                               CW-2            CW-2            CW-2            CW-2         dependents    2 applications
                       Fiscal year                         applications     dependents     applications    applications    approved per    approved (%)
                                                             received        approved         denied         approved       application
                                                                       A               B               C         D = A-C       E = B / D       F = D / A
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012....................................................             889             426              28             861           0.495            96.9
2013....................................................             687             622              85             602           1.033            87.6
2014....................................................           1,081             799              33           1,048           0.762            96.9
2015....................................................             906             785              13             893           0.879            98.6
2016....................................................           1,406           1,034              21           1,385           0.747            98.5
2017....................................................             867             934              27             840           1.112            96.9
2018....................................................             695             873              35             660           1.323            95.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total...............................................           6,531           5,473             242           6,289  ..............  ..............
                                                         -----------------------------------------------------------------------------------------------
6-year average..........................................             933             782              35             898            1.00            96.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Office of Policy and Strategy, Research and Evaluation Division (OP&S RED) and USCIS analysis.

    To estimate the proportion of applications who filed for CW-2 
status, DHS assumes that qualifying dependents of nonimmigrant workers 
file Form I-539 for CW-2 status after the CW-1 status of the 
nonimmigrants workers have been approved by USCIS. Hence, DHS divides 
the total number of applications received for CW-2 status by the total 
number of CW-1 petitions approved in FYs 2013 to 2018 as shown in Table 
7. The result shows that applications requesting a CW-2 status are 
filed by qualifying dependents of on average 15 percent of the total 
number of nonimmigrant workers with approved CW-1 status in FYs 2013 to 
2018.

                                      Table 7--Percent of CW-2 Applications
                                                [FY 2013 to 2018]
----------------------------------------------------------------------------------------------------------------
                                                                               Form I-539 CW-2
                                                                                 initial or        Percent of
                                                            Form I-129 CW CW-   extension of       initial or
                        Fiscal year                            1 petitions          stay          extension of
                                                                approved        applications          stay
                                                                                  received      applications (%)
                                                                           A                 B         C = B / A
----------------------------------------------------------------------------------------------------------------
2013......................................................             5,655               889              15.7
2013......................................................             6,517               687              10.5
2014......................................................             6,632             1,081              16.3
2015......................................................             5,946               906              15.2
2016......................................................             7,137             1,406              19.7
2017......................................................             6,278               867              13.8
2018......................................................             6,570               695              10.6
                                                           -----------------------------------------------------
    Total.................................................            39,080             6,531  ................
----------------------------------------------------------------------------------------------------------------
6-year average............................................             6,513               933              15.0
----------------------------------------------------------------------------------------------------------------
Source: Office of Policy and Strategy, Research and Evaluation Division (OP&S RED) and USCIS analysis.

ii. CNMI-Only Transitional Worker Program Numerical Limitations
    The Consolidated Natural Resources Act of 2008 (CNRA), which 
extended U.S. immigration and naturalization laws to the CNMI, 
authorized DHS to create a temporary nonimmigrant worker permit program 
and to gradually reduce the annual number of visas issued to zero at 
the end of the five-year transition period. However, in December 16, 
2014, Congress extended the transition period until the first quarter 
of FY 2020 (or December 31, 2019),\67\ DHS had to readjust the CW-1 
numerical limitations in such a way that the annual number of visas 
issued would become zero at the sunset date of December 31, 2019. DHS 
published these annual numerical caps in a series of Federal Register 
notices. Table 8 shows the numerical caps set by DHS for each year 
prior to this IFR (see column A).
---------------------------------------------------------------------------

    \67\ See Public Law 113-235, section 10 (Dec. 16, 2014).
---------------------------------------------------------------------------

    The Workforce Act extended the CW-1 program through FY 2030, 
increased the CW-1 numerical cap for FY 2019, and provided new CW-1 
numerical caps for subsequent fiscal years as shown in column B of 
Table 8. For FYs 2018 through 2020, DHS estimates the net numerical 
caps resulting from the Workforce Act by subtracting the numerical caps 
prior to the Workforce Act from those in the Workforce Act (see column 
C, Table 8). For FYs 2021 through 2030, the net numerical caps

[[Page 29287]]

are the same as those set by the Workforce Act.

              Table 8--Numerical Caps for CW-1 Visas Prior to This IFR and Set by the Workforce Act
----------------------------------------------------------------------------------------------------------------
                                                                                                 Net CW-1 visas
                                                                CW-1 visa         CW-1 visa      numerical caps
                        Fiscal year                          numerical caps    numerical caps    as a result of
                                                              prior to this      set by the       the Workforce
                                                                   IFR          Workforce Act          Act
                                                                           A                 B           C = B-A
----------------------------------------------------------------------------------------------------------------
2011......................................................       \68\ 22,417  ................  ................
2012......................................................            22,416  ................  ................
2013......................................................       \69\ 15,000  ................  ................
2014......................................................       \70\ 14,000  ................  ................
2015......................................................       \71\ 13,999  ................  ................
2016......................................................       \72\ 12,999  ................  ................
2017......................................................       \73\ 13,348  ................  ................
2018......................................................        \74\ 9,998             9,998                 0
2019......................................................             4,999            13,000             8,001
2020......................................................        \75\ 2,499            12,500            10,001
2021......................................................  ................            12,000            12,000
2022......................................................  ................            11,500            11,500
2023......................................................  ................            11,000            11,000
2024......................................................  ................            10,000            10,000
2025......................................................  ................             9,000             9,000
2026......................................................  ................             8,000             8,000
2027......................................................  ................             7,000             7,000
2028......................................................  ................             6,000             6,000
2029......................................................  ................             5,000             5,000
2030......................................................  ................        \76\ 1,000             1,000
----------------------------------------------------------------------------------------------------------------

iii. Population Affected by This IFR
    DHS uses the estimates derived from the historical data in Tables 1 
through 7 and the numerical limitations set by the Workforce Act in 
Table 8 to estimate the total population affected by this IFR. The net 
numerical caps in this IFR show the maximum number of persons who may 
be granted CW-1 visas during each of the FYs 2019 through 2030.\77\ DHS 
assumes that employers petition for, and DHS approves, the maximum 
number of available visas for each fiscal year. As the historical data 
in Table 2 show, the number of petitions received and beneficiaries 
approved exceeded the CW-1 numerical cap, in certain fiscal years.\78\ 
Receiving more petitions than would potentially be approved helps 
minimize the number of CW-1 visas that may remain unused in each fiscal 
year due to beneficiaries who may not ultimately be granted a CW-1 visa 
or whose petition may ultimately be denied. Similarly, to ensure that 
there are no unused visas in any fiscal year during the IFR's 
implementation period, DHS assumes that USCIS receives more petitions 
than may potentially be approved each year to account for the number of 
petitions that may be denied each year. As shown in Table 2, because 
USCIS may on average approve 93 percent of the petitions, on average 7 
percent of the petitions may be denied each year. This means USCIS may 
receive on average 7 percent more petitions each year to ensure the net 
numerical caps are met as shown in Table 8.
---------------------------------------------------------------------------

    \68\ DHS announced the 2011 and 2012 numerical caps in its 
current regulation at 8 CFR 214.2(w)(1)(viii)(A) and (B).
    \69\ See CNMI-Only Transitional Worker Numerical Limitation for 
Fiscal Year 2013, 77 FR 71287 (Nov. 30, 2012).
    \70\ See CNMI-Only Transitional Worker Numerical Limitation for 
Fiscal Year 2014, 78 FR 58867 (Sept. 25, 2013).
    \71\ DHS decided to preserve the status quo at 13,999 for 2015, 
nominally reducing the 2014 cap by one, rather than aggressively 
reducing the 2015 CW-1 numbers since DOL and later Congress extended 
the CW program until Dec. 31, 2019. 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).
    \72\ 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).
    \73\ DHS reduced the cap for FY 2017 by only one to 12,998. See 
Commonwealth of the Northern Mariana Islands Transitional Worker 
Classification (CNMI)-Only Transitional Worker Numerical Limitation 
for Fiscal Year 2017, 81 FR 60581 (Sept. 2, 2016). But Congress 
enacted Public Law 115-53, 2 to add 350 CW-1 permits to the 2017 cap 
(i.e., 13,348 = 12,998 + 350).
    \74\ In 2017, DHS published a reduction plan on the number of 
CW-1 workers available during fiscal years 2018 through 2020. See 
Commonwealth of the Northern Mariana Islands (CNMI)-Only 
Transitional Worker Numerical Limitation for Fiscal Years 2018 
Through 2020, 82 FR 55493 (Nov. 22, 2017).
    \75\ Prior to the Workforce Act, the sunset date for CNMI-Only 
Transitional Worker Program was quarter one of FY 2020 (or Dec. 31, 
2019).
    \76\ The Workforce Act now extends the sunset date for the CNMI-
Only Transitional Worker Program to quarter one of FY 2030 (or Dec. 
31, 2029).
    \77\ For this analysis the statutory changes start from fiscal 
year 2019 because the Workforce Act did not change the numerical 
caps for 2018 set by DHS on Nov. 22, 2017.
    \78\ Generally, CW-1 petitions are adjudicated on a first-come, 
first-serve basis. As the number of CW-1 workers approaches the 
numerical limit, USCIS will monitor the number of petitions received 
(including the number of beneficiaries requested) until a 
determination is made on the final receipt date. Petitions will be 
accepted in the order in which the petitions are filed until such 
time as USCIS has accepted the number of petitions necessary to 
achieve the numerical limit (the ``cap''). Once this happens, USCIS 
will announce the final receipt date, which is the date after which 
USCIS will not accept any petitions subsequently filed. Any 
petitions that were received after the final receipt date will be 
rejected.
---------------------------------------------------------------------------

    As shown in Table 2, on average one petition is for approximately 
two beneficiaries. USCIS estimates the number of petitions that may be 
approved each year by dividing the number of visas available for each 
year by the average number of beneficiaries per petition (two). 
Overall, a total of 98,502 CW-1 visas are available for the 
implementation period. These 98,502 CW-1 visas would be filed by 49,251

[[Page 29288]]

petitioners \79\ and be approved by USCIS. To account for the number of 
beneficiaries who may not ultimately be granted a CW-1 visa or whose 
petition may ultimately be denied, DHS uses the average denial rate (7 
percent) as described above. Hence to approve 49,251 petitions and use 
all available visas, USCIS will accept a total of 52,699 petitions 
during the implementation period.\80\ Table 9 shows the estimated 
number of petitions that would be approved and filed in FYs 2019 to 
2030.
---------------------------------------------------------------------------

    \79\ 49,251 petitions to be approved = 98,502 available visas / 
2 employees per petition.
    \80\ 52,699 petitions would need to be filed with USCIS to fill 
the cap limitations = 49,251 petitions to be approved x (1 + 7 
percent).
    \81\ These numerical caps represent the maximum number of visas 
(CW-1 nonimmigrant workers) that will be approved during the 
implementation period.

                     Table 9--Estimated Number of Form I-129CW Petitions Approved and Filed
                                                [FY 2019 to 2030]
----------------------------------------------------------------------------------------------------------------
                                                              Net CW-1 visa   Estimated number  Estimated number
                                                              numerical cap    of Form I-129CW   of Form I-129CW
                        Fiscal year                          limitation \81\      petitions      petitions filed
                                                             (from Table 8)       approved         with USCIS
                                                                           A         B = A / 2    C = B x (1+7%)
----------------------------------------------------------------------------------------------------------------
2019......................................................             8,001             4,001             4,281
2020......................................................            10,001             5,001             5,351
2021......................................................            12,000             6,000             6,420
2022......................................................            11,500             5,750             6,153
2023......................................................            11,000             5,500             5,885
2024......................................................            10,000             5,000             5,350
2025......................................................             9,000             4,500             4,815
2026......................................................             8,000             4,000             4,280
2027......................................................             7,000             3,500             3,745
2028......................................................             6,000             3,000             3,210
2029......................................................             5,000             2,500             2,675
2030......................................................             1,000               500               535
                                                           -----------------------------------------------------
    Total.................................................            98,502            49,251            52,699
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    The IFR allows petitioners to request an extension of stay for 
their CW-1 nonimmigrant workers by filing a new Form I-129CW petition. 
The extension of stay may be granted for a period of up to one year (or 
a period of up to three years if the employee is a long-term worker). 
However, as the three year extension period for long-term nonimmigrant 
workers is a new provision in the IFR, DHS does not have historical 
data showing the total number of CW-1 long-term workers in the CNMI. As 
a result, DHS is not able to estimate the number of long-term workers 
for FYs 2019 to 2030. In the absence of historical data, DHS assumes 
that the extension of stay request will be granted for a period of one 
year for non-long-term workers, and for a period of three years for 
long-term workers. DHS conducts a sensitivity analysis to estimate the 
potential range of 0 to 90 percent of petitioners who may request an 
extension of stay for a period of three years (which conversely means 
10 to 100 percent of petitioners will be requesting an extension of 
stay for a period of one year). In this analysis, DHS reports the case 
where 100 percent of petitioners are requesting an extension of stay 
for a period of one year as well as the 10 percent lower bound and 90 
percent upper bound estimates for the number of petitioners requesting 
an extension of stay for a period of three years.
    Table 10 shows the number petitioners requesting a one-year 
extension of stay. DHS multiplies the estimated number of petitions 
that will be approved in FYs 2019 to 2030 by 80 percent (see Table 5) 
to obtain the estimated number of extension of stay applications that 
may be filed in the same period. Similarly, DHS multiplies the 
estimated number of extension of stay applications that may be filed in 
FYs 2019 to 2030 by 96 percent (see Table 4) to obtain the estimated 
number of extension of stay applications that will be approved in the 
same period. DHS also calculates the estimated number of nonimmigrant 
workers whose extension of stay requests will be granted each year by 
multiplying the estimated number of extension of stay applications that 
will be approved each year by the average number of nonimmigrant 
workers approved per application. Overall, a total of 39,401 
petitioners in the CNMI may file a one-year extension of stay 
applications, of which 37,825 petitions requesting a one-year extension 
of stay for a total of 75,650 beneficiaries may be approved by USCIS in 
FYs 2019 to 2030.

[[Page 29289]]



         Table 10--Total Number of Extension of Stay Applications and CW-1 Nonimmigrant Workers Approved
                                                [FY 2019 to 2030]
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated
                                     Estimated       Estimated       number of       Estimated       Estimated
                                     number of       number of        workers        number of       number of
           Fiscal year               petitions     extension  of    requesting       petitions     workers whose
                                     approved          stay        extension  of     approved      extension of
                                                   applications        stay                        stay approved
                                               A     B = A x 80%       C = B x 2   D = B x 96.0%       E = D x 2
----------------------------------------------------------------------------------------------------------------
2019............................           4,001         3,200.4         6,400.8         3,072.4         6,144.8
2020............................           5,001         4,000.4         8,000.8         3,840.4         7,680.8
2021............................           6,000         4,800.0         9,600.0         4,608.0         9,216.0
2022............................           5,750         4,600.0         9,200.0         4,416.0         8,832.0
2023............................           5,500         4,400.0         8,800.0         4,224.0         8,448.0
2024............................           5,000         4,000.0         8,000.0         3,840.0         7,680.0
2025............................           4,500         3,600.0         7,200.0         3,456.0         6,912.0
2026............................           4,000         3,200.0         6,400.0         3,072.0         6,144.0
2027............................           3,500         2,800.0         5,600.0         2,688.0         5,376.0
2028............................           3,000         2,400.0         4,800.0         2,304.0         4,608.0
2029............................           2,500         2,000.0         4,000.0         1,920.0         3,840.0
2030............................             500           400.0           800.0           384.0           768.0
                                 -------------------------------------------------------------------------------
    Total.......................          49,251        39,401.0        78,802.0        37,825.0        75,650.0
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

    As shown in Tables 11 and 12, the three-year extension of stays 
requested in FY 2019 will be valid, if ultimately granted, for three 
consecutive years (FYs 2020 to 2022), and hence will be counted towards 
these years' numerical caps. The same applies for extension of stay 
requests in the rest of the implementation years. To illustrate using 
numbers from Table 11, a three-year extension of stay is requested for 
640 beneficiaries in FY 2019, which if granted will be valid for three 
consecutive years (FYs 2020 to 2022) and counted towards the numerical 
caps of 800, 960 and 920 in the corresponding years. As a result, the 
number of valid three-year extension of stays will be 640 in FY 
2020,\82\ 160 in FY 2021,\83\ and 160 in FY 2022.\84\ The footnotes to 
Tables 11 and 12 show similar calculations for the net number of 
beneficiaries for whom three-year extension of stay will be requested 
in the rest of the implementation years.
---------------------------------------------------------------------------

    \82\ There will be 640 valid three-year extension of stays in FY 
2020 because the validity period of the 640 extension of stay 
requests made in FY 2019 will start in FY 2020.
    \83\ 160 net three-year extension of stays in FY 2021 = (800 
requests for extension of stay beneficiaries in FY 2020 whose 
validity period starts in FY 2021)-(640 beneficiaries from FY 2020 
counted towards FY 2021 numerical cap).
    \84\ 160 net three-year extension of stays in FY 2022 = (960 
requests for extension of stay beneficiaries in FY 2021 whose 
validity period starts in FY 2022)-(640 beneficiaries from FY 2020 
counted towards FY 2022 numerical cap)-(160 beneficiaries from FY 
2021 counted towards FY 2022 numerical cap).

                                Table 11--Estimated Number of Applications for Three-Year Extension of Stay (Lower Bound)
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of
                                                       beneficiaries for whom         Number of              Net number of         Estimated number  of
                     Fiscal year                         extension of stay      beneficiaries for whom   beneficiaries for whom  applications for  three-
                                                       requested  (from Table  three-year extension of  three-year extension of  year extension  of stay
                                                              10) \a\           stay can be requested        stay requested
                                                                            A       B = A x 10 percent       C = B adjusted for                D = C / 2
                                                                                                            three-year validity
                                                                                                                         period
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019................................................                    6,401                      640  .......................  .......................
2020................................................                    8,001                      800                      640                      320
2021................................................                    9,600                      960                      160                       80
2022................................................                    9,200                      920                      160                       80
2023................................................                    8,800                      880                  \b\ 600                      300
2024................................................                    8,000                      800                  \c\ 120                       60
2025................................................                    7,200                      720                   \d\ 80                       40
2026................................................                    6,400                      640                  \e\ 520                      260
2027................................................                    5,600                      560                   \f\ 40                       20
2028................................................                    4,800                      480                    \g\ 0                        0
2029................................................                    4,000                      400                  \h\ 440                      220
2030................................................                      800                       80                        0                        0
                                                     ---------------------------------------------------------------------------------------------------
    Total...........................................                   78,802                    7,880                    2,760                    1,380
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ This assumes that all the requests are only for one-year extension of stay.

[[Page 29290]]

 
\b\ 600 net three-year extension of stay requests in FY 2023 = (920 requests for extension of stay beneficiaries in FY 2022 whose validity period starts
  in FY 2023) - (160 beneficiaries from FY 2021 counted towards FY 2022 numerical cap) - (160 beneficiaries from FY 2022 counted towards FY 2023
  numerical cap).
\c\ 120 net three-year extension of stay requests in FY 2024 = (880 requests for extension of stay beneficiaries in FY 2023 whose validity period starts
  in FY 2024) - (160 beneficiaries from FY 2022 counted towards FY 2024 numerical cap) - (600 beneficiaries from FY 2023 counted towards FY 2024
  numerical cap).
\d\ 80 net three-year extension of stay requests in FY 2025 = (800 requests for extension of stay beneficiaries in FY 2024 whose validity period starts
  in FY 2025) - (600 beneficiaries from FY 2023 counted towards FY 2025 numerical cap) - (120 beneficiaries from FY 2024 counted towards FY 2025
  numerical cap).
\e\ 520 net three-year extension of stay requests in FY 2026 = (720 requests for extension of stay beneficiaries in FY 2025 whose validity period starts
  in FY 2026) - (120 beneficiaries from FY 2024 counted towards FY 2026 numerical cap) - (80 beneficiaries from FY 2025 counted towards FY 2026
  numerical cap).
\f\ 0 net three-year extension of stay requests in FY 2027 = (640 requests for extension of stay beneficiaries in FY 2026 whose validity period starts
  in FY 2027) - (80 beneficiaries from FY 2025 counted towards FY 2027 numerical cap) - (520 beneficiaries from FY 2026 counted towards FY 2027
  numerical cap).
\g\ 0 net three-year extension of stay requests in FY 2028 = (560 requests for extension of stay beneficiaries in FY 2027 whose validity period starts
  in FY 2028) - (520 beneficiaries from FY 2026 counted towards FY 2028 numerical cap) - (40 beneficiaries from FY 2027 counted towards FY 2028
  numerical cap).
\g\ 440 net three-year extension of stay requests in FY 2029 = (480 requests for extension of stay beneficiaries in FY 2028 whose validity period starts
  in FY 2029) - (40 beneficiaries from FY 2027 counted towards FY 2029 numerical cap) - (0 beneficiaries from FY 2028 counted towards FY 2029 numerical
  cap).
\h\ There is no new three-year extension of stay request in FY 2030 because the 400 and 80 requests for extension of stay beneficiaries in FYs 2029 and
  2030, respectively, will not be requested for three-year validity period. Instead, all will be a one-year extension of stay requests.


                                Table 12--Estimated Number of Applications for Three-Year Extension of Stay (Upper Bound)
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                             Number of
                                                       beneficiaries for whom         Number of              Net number of         Estimated number  of
                     Fiscal year                         extension of stay      beneficiaries for whom   beneficiaries for whom  applications for  three-
                                                       requested  (from Table  three-year extension of  three-year extension of  year extension  of stay
                                                              10) \a\           stay can be requested        stay requested
                                                                            A       B = A x 90 percent       C = B adjusted for                D = C / 2
                                                                                                            three-year validity
                                                                                                                         period
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019................................................                    6,401                    5,761  .......................  .......................
2020................................................                    8,001                    7,201                \b\ 5,761                    2,880
2021................................................                    9,600                    8,640                \c\ 1,440                      720
2022................................................                    9,200                    8,280                \d\ 1,439                      720
2023................................................                    8,800                    7,920                \e\ 5,401                    2,700
2024................................................                    8,000                    7,200                \f\ 1,080                      540
2025................................................                    7,200                    6,480                  \g\ 719                      360
2026................................................                    6,400                    5,760                \h\ 4,681                    2,340
2027................................................                    5,600                    5,040                  \i\ 360                      180
2028................................................                    4,800                    4,320                    \j\ 0                        0
2029................................................                    4,000                    3,600                \k\ 3,960                    1,980
2030................................................                      800                      720                    \l\ 0                        0
                                                     ---------------------------------------------------------------------------------------------------
    Total...........................................                   78,802                   70,921                   24,841                   12,420
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ This assumes that all the requests are only for one-year extension of stay.
\b\ 5,761 extension of stays will be requested in FY 2020 because the validity period of the 5,761 extension of stay requests made in FY 2019 will start
  in FY 2020.
\c\ 1,400 net three-year extension of stay requests in FY 2021 = (7,201 requests for extension of stay beneficiaries in FY 2020 whose validity period
  starts in FY 2021) - (5,761 beneficiaries from FY 2020 counted towards FY 2021 numerical cap).
\d\ 1,439 net three-year extension of stay requests in FY 2022 = (8,640 requests for extension of stay beneficiaries in FY 2021 whose validity period
  starts in FY 2022) - (5,761 beneficiaries from FY 2020 counted towards FY 2022 numerical cap) - (1,440 beneficiaries from FY 2021 counted towards FY
  2022 numerical cap).
\e\ 5,401 net three-year extension of stay requests in FY 2023 = (8,280 requests for extension of stay beneficiaries in FY 2022 whose validity period
  starts in FY 2023) - (1,440 beneficiaries from FY 2021 counted towards FY 2022 numerical cap) - (1,439 beneficiaries from FY 2022 counted towards FY
  2023 numerical cap).
\f\ 1,080 net three-year extension of stay requests in FY 2024 = (7,920 requests for extension of stay beneficiaries in FY 2023 whose validity period
  starts in FY 2024) - (1,439 beneficiaries from FY 2022 counted towards FY 2024 numerical cap) - (5,401 beneficiaries from FY 2023 counted towards FY
  2024 numerical cap).
\g\ 719 net three-year extension of stay requests in FY 2025 = (7,200 requests for extension of stay beneficiaries in FY 2024 whose validity period
  starts in FY 2025) - (5,401 beneficiaries from FY 2023 counted towards FY 2025 numerical cap) - (1,080 beneficiaries from FY 2024 counted towards FY
  2025 numerical cap).
\h\ 4,681 net three-year extension of stay requests in FY 2026 = (6,480 requests for extension of stay beneficiaries in FY 2025 whose validity period
  starts in FY 2026) - (1,080 beneficiaries from FY 2024 counted towards FY 2026 numerical cap) - (719 beneficiaries from FY 2025 counted towards FY
  2026 numerical cap).
\i\ 360 net three-year extension of stay requests in FY 2027 = (5,760 requests for extension of stay beneficiaries in FY 2026 whose validity period
  starts in FY 2027) - (719 beneficiaries from FY 2025 counted towards FY 2027 numerical cap) - (4,681 beneficiaries from FY 2026 counted towards FY
  2027 numerical cap).
\j\ 0 net three-year extension of stay requests in FY 2028 = (5,040 requests for extension of stay beneficiaries in FY 2027 whose validity period starts
  in FY 2028) - (4,681 beneficiaries from FY 2026 counted towards FY 2028 numerical cap) - (360 beneficiaries from FY 2027 counted towards FY 2028
  numerical cap). The result is rounded from -1 that shows an extra three-year extension of stay request above the FY 2027 cap limit (5,040) whose
  validity period starts in 2028.
\k\ 3,960 net three-year extension of stay requests in FY 2029 = (4,320 requests for extension of stay beneficiaries in FY 2028 whose validity period
  starts in FY 2029) - (360 beneficiaries from FY 2027 counted towards FY 2029 numerical cap) - (0 beneficiaries from FY 2028 counted towards FY 2029
  numerical cap).

[[Page 29291]]

 
\l\ There is no new three-year extension of stay request in FY 2030 because the 3,600 and 720 requests for extension of stay beneficiaries in FYs 2029
  and 2030, respectively, will not be requested for three-year validity period. Instead, all will be a one-year extension of stay requests.

    The IFR provides that, of the total number of approved petitions, 
petitioners may amend a certain number of petitions when there are 
material changes in the terms and conditions of employment. USCIS may 
revoke some of the approved petitions, in whole or in part, immediately 
and automatically if the petitioner ceases operations, files a written 
withdrawal of the petition, or DOL revokes the temporary labor 
certification. USCIS also has the discretion to revoke on notice when 
petitioners violate the grounds for revocation as listed in the 
preamble of this IFR. From the historical data presented in Table 3, on 
average 2.20 percent of approved petitions were amended annually while 
0.20 percent of approved visas were revoked annually. DHS uses these 
rates to estimate the number of petitions to be amended and visas to be 
revoked, respectively, during the implementation period.
    Accordingly, DHS multiplies the number of petitions to be approved 
in the implementation period by 2.20 percent to obtain the estimated 
number of petitions that may be amended in the same period. Similarly, 
DHS multiplies the number of visas available for the implementation 
period by 0.20 percent to obtain the estimated number of visas that may 
be revoked in the same period. DHS also estimates the number of 
petitions to be revoked each year by dividing the number of visas to be 
revoked each year by the average number of beneficiaries per petition. 
Table 13 shows these calculations in detail. In general, a total of 
1,084 petitions will be amended by petitioners \85\ and 197 visas may 
be revoked by USCIS \86\ from FYs 2019 to 2030.
---------------------------------------------------------------------------

    \85\ 1,084 petitions amended = 49,251 petitions approved x 2.20 
percent of petitions amended annually.
    \86\ 197 visas revoked = 98,502 visas approved x 0.20 percent 
visas revoked annually.
---------------------------------------------------------------------------

    As discussed in the preamble, for each beneficiary of a petition 
revoked in a fiscal year, DHS will add an equivalent number of CW-1 
visas to the numerical caps of the next fiscal year. This means that 
visas revoked in FY 2019 will be added to the numerical cap of FY 2020, 
visas revoked in FY 2020 will be added to the numerical cap of FY 2021, 
and so on. As a result, all the revoked visas will be available for 
filing in the subsequent years. For example, the 16 visas revoked in FY 
2019 will be added to FY 2020 numerical cap and available for filing in 
FY 2020. As a result, approximately 8 petitions will be filed in FY 
2020 to request these 16 available visas.\87\ Columns E and F in Table 
13 show the estimated number of revoked visas that will be added and 
available for filing and the corresponding number of petitions filed in 
the subsequent FYs 2020 to 2030.\88\
---------------------------------------------------------------------------

    \87\ 8 petitions filed = 16 visas revoked / 2 beneficiaries per 
petition.
    \88\ Note that two visas (in column D), revoked in fiscal year 
2030 cannot be filed before the end of the implementation period.

                   Table 13--Total Number of Form I-129CW Petitions Amended, Petitions and Visas Revoked and Subsequently Added Visas
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                             Estimated
                                                                             Estimated       Estimated       Estimated       Estimated       number of
                       Fiscal year                           CW-1 visa       number of       number of       number of        number          revoked
                                                          numerical caps     petitions       petitions     visas revoked   revoked visas     petitions
                                                                             approved         amended                          filed         filed \a\
                                                                       A               B   C = B x 2.20%   D = A x 0.20%               E       F = E / 2
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019....................................................           8,001           4,001            88.0            16.0
2020....................................................          10,001           5,001           110.0            20.0            16.0             8.0
2021....................................................          12,000           6,000           132.0            24.0            20.0            10.0
2022....................................................          11,500           5,750           126.5            23.0            24.0            12.0
2023....................................................          11,000           5,500           121.0            22.0            23.0            11.5
2024....................................................          10,000           5,000           110.0            20.0            22.0            11.0
2025....................................................           9,000           4,500            99.0            18.0            20.0            10.0
2026....................................................           8,000           4,000            88.0            16.0            18.0             9.0
2027....................................................           7,000           3,500            77.0            14.0            16.0             8.0
2028....................................................           6,000           3,000            66.0            12.0            14.0             7.0
2029....................................................           5,000           2,500            55.0            10.0            12.0             6.0
2030....................................................           1,000             500            11.0             2.0            10.0             5.0
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................          98,502          49,251         1,083.5           197.0           195.0            97.5
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ To estimate the approximate number of petitions that will be filed, USCIS divides the number of revoked visas by the number of beneficiaries per
  petition (2). This is because the numerical caps for subsequent years are increased by the number of visas revoked in the preceding years and made
  available for use by any petitioner.

    Qualifying dependents (i.e., eligible spouse or child) of 
nonimmigrant workers with valid CW-1 status can apply for CW-2 status 
using Form I-539. DHS assumes that applications requesting a CW-2 
status are filed by qualifying dependents of approximately 15 percent 
of the total number of nonimmigrant workers with approved CW-1 status 
(see Table 7) during the implementation period. DHS also assumes that 
96 percent of these CW-2 applications will be approved in FYs 2019 to 
2030, where on average one beneficiary is approved per application (see 
Table 6). DHS multiplies the estimated number of petitions that will be 
approved in FYs 2019 to 2030 by 15 percent to obtain the estimated 
number of CW-2 applications that may be filed in the same period. DHS 
multiplies the estimated number of CW-2 applications that may be filed 
in FYs 2019 to 2030 by 96 percent to obtain the estimated number of CW-
2 applications that will be approved in the same period. DHS also 
calculates the estimated number of dependents of the nonimmigrants 
workers whose request for CW-2 status will be approved each year by 
multiplying the estimated number of CW-2 applications that will be 
approved each year by the average

[[Page 29292]]

number of dependents approved per application (1). Overall, 
nonimmigrant workers are expected to file a total of 14,775 
applications requesting a CW-2 status for their qualifying dependents 
from FYs 2019 to 2030, of which 14,184 applications (or dependents) may 
be approved by USCIS.\89\ Table 14 shows the total number of CW-2 
applications and dependents whose request for CW-2 status may be 
approved in FYs 2019 to 2030.
---------------------------------------------------------------------------

    \89\ Because nonimmigrant workers with CW-1 status apply on 
average for one family member in each CW-2 application, the number 
of applications is equal to the number of dependents.

                    Table 14--Total Number of CW-2 Form I-539 Applications Filed and Approved
                                                [FY 2019 to 2030]
----------------------------------------------------------------------------------------------------------------
                                                                     Estimated                       Estimated
                                     Estimated       Estimated       number of       Estimated       number of
                                  number of Form  number of CW-2  dependents for  number of CW-2    dependents
           Fiscal year                 I-539         Form I-539     whom  CW-2       Form I-539     whose CW-2
                                   applications    applications       status       applications       status
                                     approved                        requested       approved        approved
                                               A     B = A x 15%       C = B x 1     D = C x 96%       E = D x 1
----------------------------------------------------------------------------------------------------------------
2019............................           8,001         1,200.2         1,200.2         1,152.1         1,152.1
2020............................          10,001         1,500.2         1,500.2         1,440.1         1,440.1
2021............................          12,000         1,800.0         1,800.0         1,728.0         1,728.0
2022............................          11,500         1,725.0         1,725.0         1,656.0         1,656.0
2023............................          11,000         1,650.0         1,650.0         1,584.0         1,584.0
2024............................          10,000         1,500.0         1,500.0         1,440.0         1,440.0
2025............................           9,000         1,350.0         1,350.0         1,296.0         1,296.0
2026............................           8,000         1,200.0         1,200.0         1,152.0         1,152.0
2027............................           7,000         1,050.0         1,050.0         1,008.0         1,008.0
2028............................           6,000           900.0           900.0           864.0           864.0
2029............................           5,000           750.0           750.0           720.0           720.0
2030............................           1,000           150.0           150.0           144.0           144.0
                                 -------------------------------------------------------------------------------
    Total.......................          98,502          14,775          14,775          14,184          14,184
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

5. Cost-Benefit Analysis
    This section presents the costs and benefits associated with the 
requirements for hiring CW-1 nonimmigrant workers in the CNMI based on 
the numerical caps set by the Workforce Act. A total of 1,471 
petitioners (see Table 2) in the CNMI will file 52,699 petitions for a 
total 98,502 visas (see Table 9) available in the implementation period 
(FYs 2019 to 2030). These constitute the total estimated number of 
affected population for petitioners, petitions and nonimmigrant workers 
(beneficiaries), respectively. In this analysis, DHS uses an hourly 
compensation rate for estimating the opportunity cost of time for human 
resources (HR) specialists. DHS uses this occupation as a proxy of who 
might prepare and complete these petitions for an entity. DHS notes 
that not all entities may have an HR specialist, but rather some 
equivalent occupation may prepare and complete the petition. DHS also 
uses an hourly compensation rate to determine the opportunity costs of 
time for qualifying dependents (i.e., spouse or child) of the CW-1 
nonimmigrant workers who file applications for CW-2 status. DHS 
estimates the hourly compensation rates by adjusting the average hourly 
wage rates by a benefit-to-wage multiplier to account for the full cost 
of benefits such as paid leave, insurance, and retirement. Based on the 
most recent report by the Bureau of Labor Statistics (BLS) on the 
average employers' costs for employee compensation for all civilian 
workers in major occupational groups and industries, DHS estimates that 
the benefits-to-wage multiplier is 1.46.\90\
---------------------------------------------------------------------------

    \90\ The benefits-to-wage multiplier is calculated as follows: 
($36.63 Total Employee Compensation per hour) / ($25.03 Wages and 
Salaries per hour) = 1.463 = 1.46 (rounded). See Economic News 
Release, Employer Cost for Employee Compensation (September 2018), 
U.S. Department of Labor, BLS, Table 1. Employer costs per hour 
worked for employee compensation and costs as a percent of total 
compensation: Civilian workers, by major occupational and industry 
group. Released December 14, 2018, available at https://www.bls.gov/news.release/archives/ecec_12142018.pdf (last visited February 4, 
2019).
---------------------------------------------------------------------------

    DHS uses an average hourly compensation rate of $36.30 for HR 
specialists in Guam \91\ as a reasonable proxy for the CNMI in the 
estimation of the opportunity cost of time for preparing and filing a 
Form I-129CW petition on behalf of CW-1 nonimmigrant workers.\92\ 
Additionally, DHS uses an average hourly compensation rate of $10.59 in 
the CNMI \93\ as a reasonable proxy for dependents of CW-1 nonimmigrant 
workers in the CNMI in the estimation of the opportunity cost of time 
for filing Form I-539 applications requesting a CW-2 status.
---------------------------------------------------------------------------

    \91\ Hourly compensation of $36.30 = $24.86 average hourly wage 
rate for HR specialists x 1.46 benefits-to-wage multiplier. See 
Bureau of Labor Statistics, U.S. Department of Labor, Occupational 
Employment Statistics, May 2018 National Occupational Employment and 
Wage Estimates Guam, SOC 13-1071--Human Resources Specialist. 
Available at https://www.bls.gov/oes/2018/may/oes_gu.htm (last 
visited June 20, 2019).
    \92\ The Bureau of Labor Statistics does not report hourly wage 
rates for the CNMI.
    \93\ Hourly compensation of $10.59 = $7.25 federal minimum 
hourly wage rate in the CNMI x 1.46 benefits-to-wage multiplier. See 
Employee Rights Under The Fair Labor Standards Act, Federal Minimum 
Wage In the Commonwealth Of The Northern Mariana Islands, Department 
of Labor, Wage and Hour Division, September 30, 2018. Available at 
https://www.dol.gov/whd/regs/compliance/posters/cnmi.pdf (last 
visited June 13, 2019).
---------------------------------------------------------------------------

i. Baseline Estimate of Current Costs
    As mandated by the Consolidated Natural Resources Act of 2008 
(CNRA), which created a Commonwealth of the Northern Mariana Islands 
Transitional Worker Classification to employ adequate numbers of 
nonimmigrant workers in the CNMI during the 5-year transitional period, 
DHS published a final rule on September 7, 2011 to implement a 
temporary CW classification that included CW-1 for principal workers 
and CW-2 for spouses and minor children. Since then, DHS has been 
setting the CW-1 numerical

[[Page 29293]]

caps on the number of nonimmigrant workers employed annually by 
announcing them, first by amending its existing regulations and later 
in Federal Register notices. 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. The 
transition period was initially set to expire on December 31, 2014, but 
the Secretary of the Department of Labor later extended it to December 
31, 2019 as per the provision in the CNRA.
    However, before the expiration of the transition period on December 
31, 2019, the Workforce Act was signed into law on July 24, 2018. The 
Workforce Act extends the transition period to December 31, 2029 and 
makes several changes that affect, among others, existing regulations 
governing DHS immigration policy and procedures. As a result, DHS 
issues this IFR to make amendments to its existing regulations and 
establish procedures to implement the provisions of the Workforce Act.
    The provisions of the Workforce Act will be implemented in a period 
primarily occurring after the previously authorized transition period, 
because the overlap between that transition period and the transition 
period established by the Workforce Act is only for about two years, of 
the 12 transition years.\94\ This indicates that the numerical caps set 
by the Workforce Act on the number of CW-1 nonimmigrant workers 
employed annually took effect before DHS's previously scheduled 
reductions in the numerical cap took effect. As a result, to account 
for the net number of CW-1 permits available during the overlap period, 
DHS subtracts the numerical caps authorized during the previous 
transition period from the numerical caps established by the Workforce 
Act as shown in Table 8. Therefore, the net number of CW-1 permits 
available during the overlapping period is 8,001 and 10,001 for FYs 
2019 and 2020, respectively.\95\ This helps shorten the steps required 
to separately estimate costs, first for the previously authorized 
transition period, second for the transition period established by the 
Workforce Act, and then take the difference between these costs to 
capture the net cost attributable to the IFR in the overlapping period. 
DHS estimates the costs resulting from the regulatory changes and 
incurred in the implementation period (i.e., FYs 2019 to 2030) using 
the affected population estimated based on the net numerical caps in 
FYs 2019 and 2020 (i.e., 8,001 and 10,001, respectively) and the 
numerical caps set forth by the Workforce Act for FYs 2021 to 2030.
---------------------------------------------------------------------------

    \94\ The overlap between the previously authorized transition 
period (ending on December 31, 2019) and the transition period 
established by the Workforce Act (ending on December 31, 2029) is 
only between the last quarter of fiscal year 2018 (which has already 
elapsed), fiscal year 2019, and the first quarter of fiscal year 
2020.
    \95\ For FY 2019: 8,001 net numerical cap in the IFR = 13,000 
numerical cap set by the Workforce Act - 4,999 numerical cap 
authorized in the previous transition period. For FY 2020: 10,001 
net numerical cap in the IFR = 12,500 numerical cap set by the 
Workforce Act - 2,499 numerical cap authorized in the previous 
transition period.
---------------------------------------------------------------------------

ii. Costs of Regulatory Changes to Petitioners
    The new costs associated with the IFR include costs of preparing 
and filing Form I-129CW petitions, filing applications for extension of 
stay, participating in the E-Verify program, submitting semiannual 
reports and document retention, filing amended petitions and sending 
notifications, and filing revoked petitions. These costs are presented 
in detail in the following subsections.
(a) Cost of Filing Form I-129CW Petitions
    A petitioner is required to file Form I-129CW to employ 
nonimmigrant workers who are otherwise ineligible to work in the CNMI 
under other nonimmigrant worker categories. DHS estimates that the time 
burden per response, which includes the time for reviewing 
instructions, gathering the required documentation and information, 
completing the petition, preparing statements, attaching necessary 
documentation, and submitting the petition, is 4 hours.\96\ The filing 
fee for an employer to petition on behalf of one or more nonimmigrant 
workers is $460 per petition.
---------------------------------------------------------------------------

    \96\ USCIS Office of Policy and Strategy, PRA Compliance 
provided the time burden for Form I-129 CW.
---------------------------------------------------------------------------

    Additionally, DHS is increasing the supplemental CNMI education 
funding fee from $150 to $200 per beneficiary issued CW-1 status per 
year. This updates the regulation, at 8 CFR 103.7(b)(1)(i)(J) to 
reflect that in 2017 Congress raised the supplemental CNMI education 
funding fee from $150 to $200 \97\ per each beneficiary issued CW-1 
status, per year. Consistent with the Workforce Act, the IFR also 
provides the Secretary of Homeland Security the discretion to annually 
adjust this supplemental fee via notice in the Federal Register. This 
fee is characterized as a transfer payment \98\ for the purposes of our 
analysis.
---------------------------------------------------------------------------

    \97\ In 2017, Congress enacted the Northern Mariana Islands 
Economic Expansion Act, Public Law 115-53, 131 Stat. 1091, which 
increased the supplemental fee paid for each CW permit to $200 and 
banned issuing new CW-1 permits to construction workers.
    \98\ Transfer payments are monetary payments from one group to 
another that do not affect total resources available to society. See 
Office of Management and Budget (OMB). Circular A-4 pages 14 and 38 
for further discussion on transfer payments and distributional 
effects. September 17, 2003. Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
---------------------------------------------------------------------------

    This IFR also updates existing regulations, at 8 CFR 214.2(w)(5), 
to include the Workforce Act's requirement that CW-1 employers must pay 
a mandatory $50 fraud prevention and detection fee with each petition, 
in addition to other current fees DHS is updating the regulatory 
provision as the increase is not new and has been in effect since 2017. 
The additional $50 fraud prevention and detection fee per each petition 
is intended for a new and permanent site visit program. The fee is for 
the sole purpose of fraud deterrence and detecting immigration benefit 
fraud in the Northern Mariana Islands.\99\ DHS characterizes this fee 
as a cost because in general, fee revenues will support new activities 
that were not previously conducted.
---------------------------------------------------------------------------

    \99\ This fee is for the sole purpose of preventing and 
detecting immigration benefit fraud in the Northern Mariana Islands. 
The fraud fee will also assist with any new filings processed for 
review, site visits, and/or administrative investigation by USCIS 
Fraud Detection and National Security personnel at the California 
Service Center.
---------------------------------------------------------------------------

    DHS estimates the opportunity cost of time to complete and submit 
Form I-129CW by multiplying the estimated total number of petitions 
filed (52,699) in the implementation period by the average time it 
takes to complete and submit a petition (4 hours) and the average 
hourly compensation rate for a HR specialist ($36.30). DHS estimates 
the costs associated with a petition filing fee, supplemental education 
funding fee and fraud prevention and detection fee by multiplying the 
estimated total affected population under each case by their respective 
fee amounts. DHS also applies the average mailing cost per package 
($53.50) \100\ to the total number of petitions filed

[[Page 29294]]

(52,699) in the implementation period to estimate the postage cost 
associated with mailing the completed petitions to USCIS. Table 15 
shows the detailed calculation of the total petition filing cost of the 
IFR in FYs 2019 to 2030.
---------------------------------------------------------------------------

    \100\ Although petitioners may choose other means of shipping, 
for the purposes of this analysis, DHS uses the shipping prices of 
United States Postal Service (USPS) Domestic Priority Mail Express 
Flat Rate Envelopes, which is currently priced at $53.50 per 
package, as a proxy estimate for the postage cost of mailing a 
package containing completed Form I-129CW. DHS also assumes that the 
package on average weighs three pounds and ships to zone 8 (from 
CNMI to Laguna Niguel, California Service Center). See U.S. Postal 
Service, Price List, Notice 123, Effective January 27, 2019 at: 
https://pe.usps.com/text/dmm300/Notice123.htm#_c011 (last visited 
May 29, 2019).

                                                                         Table 15--Petition Filing Cost for Petitioners
                                                                                      [FY 2019 to FY 2030]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       CW-1
                                                                  numerical caps  Number of  CW-                                     Education         Fraud       Postage cost
                                                                   (or number of   1  petitions       OCT to       Form I-129CW     funding fee    prevention  &      to mail          Total
                           Fiscal year                            beneficiaries)    to be filed   complete  Form    filing fee      cost  (per    detection  fee     completed       petition
                                                                    (from Table   (from Table 9)      I-129CW          cost        beneficiary)        cost        Form I-129CW     filing cost
                                                                        9)
                                                                               A               B       C = B x 4    D = B x $460    E = A x $200     F = B x $50  G = B x $53.50   H = C + D + E
                                                                                                  hours x $36.30/     filing fee   education fee       fraud fee    postage cost         + F + G
                                                                                                            hour
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2019............................................................           8,001           4,281        $621,534      $1,969,046      $1,600,200        $214,027        $229,009      $4,633,815
2020............................................................          10,001           5,351         776,898       2,461,246       2,000,200         267,527         286,254       5,792,124
2021............................................................          12,000           6,420         932,184       2,953,200       2,400,000         321,000         343,470       6,949,854
2022............................................................          11,500           6,153         893,343       2,830,150       2,300,000         307,625         329,159       6,660,277
2023............................................................          11,000           5,885         854,502       2,707,100       2,200,000         294,250         314,848       6,370,700
2024............................................................          10,000           5,350         776,820       2,461,000       2,000,000         267,500         286,225       5,791,545
2025............................................................           9,000           4,815         699,138       2,214,900       1,800,000         240,750         257,603       5,212,391
2026............................................................           8,000           4,280         621,456       1,968,800       1,600,000         214,000         228,980       4,633,236
2027............................................................           7,000           3,745         543,774       1,722,700       1,400,000         187,250         200,358       4,054,082
2028............................................................           6,000           3,210         466,092       1,476,600       1,200,000         160,500         171,735       3,474,927
2029............................................................           5,000           2,675         388,410       1,230,500       1,000,000         133,750         143,113       2,895,773
2030............................................................           1,000             535          77,682         246,100         200,000          26,750          28,623         579,155
                                                                 -------------------------------------------------------------------------------------------------------------------------------
    Total.......................................................          98,502          52,699       7,651,832      24,241,342      19,700,400       2,634,929       2,819,373      57,047,877
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
Note: Totals may not sum due to rounding.

    As discussed in the preamble to this IFR, an employer filing a 
petition is eligible to apply for a waiver of the petition fee (but not 
the CNMI education funding fee or the fraud prevention and detection 
fee) based upon inability to pay.\101\ However, it is important to note 
that due to lack of historical data on fee waiver requests, DHS is 
unable to estimate the fee waiver cost in this analysis. As a result, 
the estimated petition filing cost ($57,047,877) represents an upper 
bound cost in this analysis being that it could be lower by the value 
of the fee waiver cost because granted fee waivers accrue as cost 
savings to petitioners.
---------------------------------------------------------------------------

    \101\ See 8 CFR 214.2(w)(5).
---------------------------------------------------------------------------

(b) Cost Savings From Filing Extension of Stay Applications
    Petitioners will be required to file a new petition to request an 
extension of stay for their currently approved CW-1 nonimmigrant 
employees. However, DHS does not estimate the cost of filing an 
extension of stay applications to avoid double counting. The cost of 
filing new petitions requesting an extension of stay for an existing 
CW-1 nonimmigrant worker is already captured under the cost of filing 
petitions for CW-1 status discussed in subsection (a). The cost of 
filing petitions is estimated using the total number of visas (98,502) 
available for the duration of the IFR's implementation period, based on 
the numerical caps set for each year in the IFR, and the total 
estimated number of petitions that can potentially be filed in this 
period (52,699, see Table 9). Because an employer's request for 
extending the period of stay for an existing CW-1 worker in a given 
year counts towards the numerical cap in the same year, estimating the 
cost for those who petition for an extension of stay for their 
nonimmigrant workers results in double counting the cost.\102\ That 
means, whether petitioning for a new CW-1 nonimmigrant worker or 
requesting an extension of stay for an existing CW-1 nonimmigrant 
worker, it counts towards the same numerical cap that limits the number 
of visas available in a given year. Any request for an extension of 
stay is bound by the numerical caps and USCIS does not accept petitions 
once the number of visas set for a given year are fully used.\103\
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    \102\ The 52,699 initial petitions filed for 98,502 permits 
available for the implementation period (see Table 9) can also be 
viewed as consisting of the 39,401 extension of stay applications 
filed for 78,802 nonimmigrant workers of which 75,650 nonimmigrant 
workers will be granted an extension of stay (see Table 10).
    \103\ The IFR states that ``USCIS may reject an employer's 
petition for new or extended CW-1 status if the numerical limitation 
has been met.'' When such cases arise, USCIS notifies employers 
``that numbers are unavailable for the CW nonimmigrant 
classification.'' 8 CFR 214.7(w)(21).
---------------------------------------------------------------------------

    The IFR also states that an extension of stay may be granted for a 
period of up to three years if the employee is a long-term worker. DHS 
estimates the cost savings for petitioners who will request a three-
year extension of stay for their long-term workers using the lower and 
upper bound estimates for the net number of beneficiaries for whom a 
three-year extension of stay will be requested (see Tables 11 and 12). 
That means, instead of filing a new request to extend permits for all 
nonimmigrant workers every year, petitioners will save time and 
resources by applying a three-year extension of stay for their long-
term employees once every three years. DHS estimates the cost savings 
in terms of the opportunity cost of time for filing Form I-129CW, 
paying a filing fee of $460 and a fraud prevention and detection fee of 
$50 per application, and a postage cost of $53.50 for mailing the 
completed application.\104\ As shown in Tables 16 and 17, the total 
petitioners' cost savings resulting from filing a three-year extension 
of stay for long-term nonimmigrant workers, as opposed to filing a one-
year extension of stay, ranges from $978,034 to $8,802,309 from FY 2019 
to 2030.
---------------------------------------------------------------------------

    \104\ It should be noted that there will be no cost savings from 
paying the educational fund fee as the Workforce Act requires this 
fee to be collected from all beneficiaries for each year of 
approval. The educational fee is represented in this analysis as a 
transfer. See Section (VI)(5)(ii)(b) in this economic analysis.

[[Page 29295]]



                            Table 16--Petitioners' Cost Savings From Applying for Three-Year Extension of Stay (Lower Bound)
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Estimated
                                                 number of
                                               applications                                              Fraud       Postage  cost to        Total
                 Fiscal year                  for three-year   OCT to complete      Form I-129CW     prevention &    mail  completed      application
                                               extension  of   Form I-129CW \a\   filing fee cost    detection fee     Form I-129CW       filing cost
                                                stay  (from                                              cost
                                                 Table 11)
                                                           A  B = A x 4 hours x       C = A x $460     D = A x $50     E = A x $53.50  F = B + C + D + E
                                                                    $36.30/hour         filing fee       fraud fee       postage cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019........................................  ..............  .................  .................  ..............  .................  .................
2020........................................             320            $46,470           $147,218         $16,002            $17,122           $226,812
2021........................................              80             11,616             36,800           4,000              4,280             56,696
2022........................................              80             11,610             36,782           3,998              4,278             56,668
2023........................................             300             43,566            138,018          15,002             16,052            212,638
2024........................................              60              8,712             27,600           3,000              3,210             42,522
2025........................................              40              5,802             18,382           1,998              2,138             28,320
2026........................................             260             37,758            119,618          13,002             13,912            184,290
2027........................................              20              2,904              9,200           1,000              1,070             14,174
2028........................................               0                  0                  0               0                  0                  0
2029........................................             220             31,944            101,200          11,000             11,770            155,914
2030........................................               0                  0                  0               0                  0                  0
                                             -----------------------------------------------------------------------------------------------------------
    Total...................................           1,380            200,382            634,818          69,002             73,832            978,034
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ OCT denotes the opportunity cost of time and estimated by multiplying the time burden to complete Form I-129CW (4 hours) by the average hourly
  compensation rate of a HR specialist (36.30).


                            Table 17--Petitioners' Cost Savings From Applying for Three-Year Extension of Stay (Upper Bound)
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                 Estimated
                                                 number of
                                               applications                                              Fraud       Postage  cost to        Total
                 Fiscal year                  for three-year   OCT to complete      Form I-129CW     prevention &    mail  completed      application
                                               extension  of   Form I-129CW \a\   filing fee cost   detection  fee     Form I-129CW       filing cost
                                                stay  (from                                              cost
                                                 Table 12)
                                                           A  B = A x 4 hours x       C = A x $460     D = A x $50     E = A x $53.50  F = B + C + D + E
                                                                    $36.30/hour         filing fee       fraud fee       postage cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019........................................  ..............  .................  .................  ..............  .................  .................
2020........................................           2,880           $418,228         $1,324,966        $144,018           $154,099         $2,041,311
2021........................................             720            104,544            331,200          36,000             38,520            510,264
2022........................................             720            104,492            331,034          35,982             38,501            510,009
2023........................................           2,700            392,092          1,242,166         135,018            144,469          1,913,745
2024........................................             540             78,408            248,400          27,000             28,890            382,698
2025........................................             360             52,220            165,434          17,982             19,241            254,877
2026........................................           2,340            339,820          1,076,566         117,018            125,209          1,658,613
2027........................................             180             26,136             82,800           9,000              9,630            127,566
2028........................................               0                  0                  0               0                  0                  0
2029........................................           1,980            287,496            910,800          99,000            105,930          1,403,226
2030........................................               0                  0                  0               0                  0                  0
                                             -----------------------------------------------------------------------------------------------------------
    Total...................................          12,420          1,803,436          5,713,366         621,018            664,489          8,802,309
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ OCT denotes the opportunity cost of time and estimated by multiplying the number of extension of stay applications in each year by the time burden
  to complete Form I-129CW (4 hours) and the average hourly compensation rate of a HR specialist (36.30).
Please note that totals may not sum due to rounding.

(c) Cost of Participating in the E-Verify Program
    This IFR requires that any employer petitioning for a CW-1 
nonimmigrant worker must be an E-Verify program participant in good 
standing. The E-Verify program is a DHS USCIS web-based system that 
allows enrolled employers to confirm the eligibility of their employees 
to work in the United States.\105\ DHS does not charge a fee to E-
Verify employers to create cases to confirm the identity and employment 
eligibility of newly hired employees by electronically matching 
information provided by employees on the Form I-9, Employment 
Eligibility Verification,

[[Page 29296]]

against records available to DHS and the SSA.
---------------------------------------------------------------------------

    \105\ See E-Verify, available at https://www.e-verify.gov/ (last 
visited May 29, 2019).
---------------------------------------------------------------------------

    The E-Verify requirement will result in a cost burden to employers 
currently participating in the E-Verify program as well as to newly 
enrolling employers. While the employers who will be newly enrolling in 
the E-Verify program incur startup enrollment or program initiation 
costs, employers who are currently participating in the E-Verify 
program do not incur these costs as they already have incurred them 
previously. However, both groups of employers incur additional cost 
burdens for ongoing training in E-Verify as they continue to comply 
with E-Verify requirements and for verifying the identity and work 
authorization of all of their newly hired employees including new CW-1 
nonimmigrant workers.
    DHS estimates the number of employers in the CNMI currently 
participating in the E-Verify program using the data obtained from E-
Verify Usage Statistics that tracks E-Verify enrollment and usage on a 
quarterly basis. The Usage Statistics provide information on enrolled 
memoranda of understanding (MOU), FY 2018 cases, and usage by U.S. 
states and territories. Accordingly, there are a total of 141 employers 
in the CNMI enrolled to use E-Verify and agreed to the terms of the 
MOU.\106\ DHS uses historical data on Form I-129CW petitions from FYs 
2012 to 2018 to estimate the number of employers operating in the CNMI 
each year. These data capture the number of approved employees per 
petitioning business entity in each fiscal year.\107\
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    \106\ The E-Verify data was updated on Oct. 5, 2018. See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-usage-statistics (last visited May 29, 2019).
    \107\ Office of Policy and Strategy, Research and Evaluation 
Division (OP&S RED) provided the data. The data identify each 
petitioning business entity by name and tax ID.
---------------------------------------------------------------------------

    DHS estimates that on average 1,471 business entities (or 
employers) petitioned for CW-1 nonimmigrants workers each year in the 
CNMI from FY 2012 to 2018 (see Table 2). Instead of assuming that on 
average the same number of business entities will continue to petition 
for CW-1 nonimmigrants workers in FYs 2019 to 2030, DHS uses a linear 
projection of the FYs 2012 to 2018 data to capture the declining trend 
in the number of business entities participating in E-Verify during the 
12-year implementation period (see Table 19). Because 141 of the 1,771 
business entities operating in the CNMI in FY 2019 are currently 
participating in the E-Verify program, the remaining 1,630 business 
entities \108\ need to enroll in the E-Verify program and incur costs 
associated with enrollment in order to continue employing CW-1 workers. 
However, all the business entities will incur the additional time 
burden cost of ongoing training in E-Verify and creating E-Verify cases 
to confirm the identity and work authorization of newly hired 
employees.
---------------------------------------------------------------------------

    \108\ 1,630 business entities newly enrolling in E-Verify = 
1,771 number of businesses petitioning for CW-1 nonimmigrants 
workers in FY 2019-141 businesses already participating in the E-
Verify program.
---------------------------------------------------------------------------

    Participating in the E-Verify program and remaining in good 
standing requires employers to enroll online in the program,\109\ 
electronically sign the associated MOU with DHS that set the terms and 
conditions of participation in the program, and use E-Verify for all 
newly hired employees. The MOU requires employers to agree to abide by 
lawful hiring procedures and to ensure that no employee will be 
unfairly discriminated against as a result of the E-Verify program. 
Violating the terms of this agreement by the employer is grounds for 
immediate termination of its participation in the program.\110\ 
Additionally, employers are required to designate and register at least 
one person that serves as an E-Verify administrator on behalf of the 
company.
---------------------------------------------------------------------------

    \109\ See the enrollment process at https://www.e-verify.gov/employers/enrolling-in-e-verify/the-enrollment-process (last visited 
May 29, 2019).
    \110\ See USCIS, The E-Verify Memorandum of Understanding for 
Employers, available at http://www.uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E-Verify_Native_Documents/MOU_for_E-Verify_Employer.pdf (last visited May 29, 2019).
---------------------------------------------------------------------------

    For this analysis, DHS assumes that each employer participating in 
the E-Verify program designates one HR specialist if operating only in 
the CNMI, and at least one additional HR specialist if the company is 
also operating in other U.S. states, to manage the E-Verify program on 
behalf of the company. Based on the most recent Paperwork Reduction Act 
Information Collection Package for the E-Verify program, DHS estimates 
the time burden for the HR specialist to undertake the tasks associated 
with the E-Verify program. DHS estimates that the enrollment process 
takes the HR specialist on average 2.26 hours to provide basic company 
information, review and sign the MOU, take a new user training, and 
review the user guides. Once enrolled in the E-Verify program, the HR 
specialist takes training on new features and system updates every 
year, which takes on average one hour.\111\
---------------------------------------------------------------------------

    \111\ The USCIS Office of Policy and Strategy, PRA Compliance 
Branch estimates the average time burdens. See Paperwork Reduction 
Act (PRA) E-Verify Program (OMB control number 1615-0092), May 24, 
2016. The PRA Supporting Statement can be found under Question 12 at 
https://www.regulations.gov/document?D=USCIS-2007-0023-0081 (last 
visited May 29, 2019).
---------------------------------------------------------------------------

    Once an employer enrolls in E-Verify program, the employer is 
responsible for ensuring that the hiring process is undertaken as per 
the requirements of the MOU and verifying all newly hired employees. 
Hence, after completing Form I-9, Employment Eligibility Verification, 
the employer must enter the newly hired employee's information in E-
Verify, where the information is checked against records available to 
SSA and DHS. After checking a worker's information against these 
records, E-Verify returns the case processing results, which could 
either automatically confirm the worker as employment authorized or 
return a tentative non-confirmation (TNC). Receiving a TNC does not 
mean a worker is not authorized to work in the United States; rather it 
indicates there is an initial system mismatch between the information 
the employer entered in E-Verify from the worker's Form I-9 and the 
records available to DHS or SSA. Workers receiving a TNC have the 
option to contest (take action) or not contest (not take action) to 
resolve the DHS or SSA TNC case result. E-Verify requires employers to 
inform the employee about the TNC and provide instructions for 
contesting it. The E-Verify website also provides detailed information 
about contesting the TNC.\112\
---------------------------------------------------------------------------

    \112\ See the following for more detailed information https://www.e-verify.gov/employees/tentative-nonconfirmation-overview/how-to-correct-a-tentative-nonconfirmation (last visited May 29, 2019).
---------------------------------------------------------------------------

    As the nationwide E-Verify historical data show, while 98.88 
percent of workers are automatically confirmed as work authorized, 1.12 
percent have received a TNC as of June 2018.\113\ The E-Verify 
performance data also show that, of the 1.12 percent of workers who 
receive initial system mismatches, 0.16 percent are later confirmed as 
work authorized after contesting and resolving the mismatches and the 
remaining 0.96 percent are not found to be work authorized. Again, of 
the 0.96 percent of workers not found work authorized, 0.43 percent do 
not contest the mismatch either because they do not choose to do so or 
are unaware of the opportunity to contest and as a result are not found 
work authorized; only 0.02 percent contest the mismatch and

[[Page 29297]]

are not found work authorized; and the remaining 0.51 percent are 
unresolved cases either because the employer closed the case as ``self-
terminated'' or the case was awaiting further action by either the 
employer or worker as of June 2018.
---------------------------------------------------------------------------

    \113\ USCIS E-Verify Performance Statistics, Verification 
Information System (VIS) Transaction Data. See https://www.e-verify.gov/about-e-verify/e-verify-data/e-verify-performance (last 
visited May 29, 2019).
---------------------------------------------------------------------------

    DHS estimates the time burden to submit a query in E-Verify as a 
weighted average of the time required to enter workers' initial 
information for verification and the time required to assist workers 
with the TNC contestation process to resolve the mismatch,\114\ using 
the above E-Verify case processing results as weights. The most recent 
Paperwork Reduction Act Information Collection Package for the E-Verify 
program estimates the time burdens to enter workers' initial 
information in E-Verify and assist workers with the TNC contestation to 
be 0.12 hours (or 7.2 minutes) and 0.5 hours (or 30 minutes) per 
worker, respectively.\115\ DHS estimates that on average it takes an HR 
specialist 0.121 hours (or 7.26 minutes) per worker to submit a query 
in E-Verify. Table 18 shows estimation of this time burden in detail.
---------------------------------------------------------------------------

    \114\ Here, DHS estimates the amount of time the employer spends 
in the TNC contestation process, not the time burden for the 
contesting workers.
    \115\ The USCIS Office of Policy and Strategy, PRA Compliance 
Branch estimates the average time burdens. See Paperwork Reduction 
Act (PRA) E-Verify Program (OMB control number 1615-0092), May 24, 
2016. The PRA Supporting Statement can be found under Question 12 at 
https://www.regulations.gov/document?D=USCIS-2007-0023-0081 (last 
visited May 29, 2019).

         Table 18--Average Time Burden Estimation for Initial Employee Case Verification Using E-Verify
----------------------------------------------------------------------------------------------------------------
                                                      Time to         Time to
                                       Case       submit initial      resolve       Total time       Weighted
 E-Verify performance categories    processing      verification     mismatch     burden  (hours      product
                                   results  (%)   query  (hours)      (hours)       per worker)
                                               A               B               C       D = B + C       E = A x D
----------------------------------------------------------------------------------------------------------------
Automatically confirmed as work            98.88            0.12               0            0.12        0.118656
 authorized.....................
Confirmed after initial mismatch            0.16            0.12             0.5            0.62        0.000992
Not confirmed after initial                 0.02            0.12             0.5            0.62        0.000124
 mismatch is contested..........
Not found authorized \a\........            0.94            0.12               0            0.12        0.001128
                                 -------------------------------------------------------------------------------
    Total.......................            100%  ..............  ..............  ..............           0.121
                                 -------------------------------------------------------------------------------
Weighted Average \b\............  ..............  ..............  ..............  ..............           0.121
----------------------------------------------------------------------------------------------------------------
Source: USCIS E-Verify Performance Statistics, Verification Information System (VIS) Transaction Data as of June
  2018. Time burden data from Paperwork Reduction Act (PRA) E-Verify Program (OMB control number 1615-0092), May
  24, 2016.
\a\ 0.94 percent not found authorized = 0.43 percent do not contest the mismatch + 0.51 percent unresolved
  cases.
\b\ 0.121 hours weighted average time burden for submitting a verification query = 0.121 hours sum of weighted
  product in column E / 100% sum of case processing results in column A.

    Using the number of affected populations and the time burdens 
estimated above, and the hourly compensation rates for HR specialists, 
DHS estimates the opportunity cost of time of employers participating 
in the E-Verify program in two parts. First, DHS estimates the 
opportunity cost of time for employers petitioning for CW-1 
nonimmigrant workers in the CNMI. Second, DHS estimates the opportunity 
cost of time for employers who are operating both in the CNMI and other 
locations in the U.S. and use E-Verify to confirm the identity and work 
authorization of all their newly hired employees during the IFR 
implementation period.
Employers Petitioning for CW-1 Nonimmigrant Workers in the CNMI
    Table 19 shows in detail estimation of the opportunity cost for the 
time employers in the CNMI will spend to enroll in E-Verify, take 
annual training, and submit a query in E-Verify. As discussed above, 
1,630 of the 1,771 employers that petition for CW-1 nonimmigrant 
workers in FY 2019 need to enroll in E-Verify and incur a one-time 
enrollment cost at the beginning of the implementation period. Hence, 
for employers petitioning for CW-1 nonimmigrant workers in the CNMI the 
total opportunity cost of participating in the E-Verify program is 
$1,097,732 from FY 2019 to 2030.\116\
---------------------------------------------------------------------------

    \116\ Note that this cost estimate does not include the cost of 
job search for employees who are legally able to work in the U.S. 
but choose not to contest a TNC for whatever reason and lose their 
jobs. DHS does not have data to estimate the job search cost for 
this group of employees.

                                    Table 19--Employers' Opportunity Cost of Time To Participate in E-Verify Program
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               CW-1
                                             Estimated                    numerical caps    Enrollment                         Case
                                             number of         Newly       (or number of     cost  for      Employers'    submission and  Total E-Verify
               Fiscal year                 employers in      enrolling    beneficiaries)       newly          annual       verification    participation
                                           the CNMI \a\    employers \b\    (from Table      enrolling     training cost       cost        cost in  CNMI
                                                                                9)           employers
                                                       A       B = A-141               C           D = B  E = A x 1 hour   F = C x 0.121   G = D + E + F
                                                               currently                    x 2.26 hours   x $36.30/hour  hour x $36.30/
                                                           participating                   x $36.30/hour                            hour
                                                               employers
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019....................................           1,771           1,630           8,001        $133,722         $64,287         $35,143        $233,152
2020....................................           1,671  ..............          10,001  ..............          60,657          43,927         104,585
2021....................................           1,571  ..............          12,000  ..............          57,027          52,708         109,735
2022....................................           1,471  ..............          11,500  ..............          53,397          50,511         103,909
2023....................................           1,370  ..............          11,000  ..............          49,731          48,315          98,046

[[Page 29298]]

 
2024....................................           1,270  ..............          10,000  ..............          46,101          43,923          90,024
2025....................................           1,170  ..............           9,000  ..............          42,471          39,531          82,002
2026....................................           1,069  ..............           8,000  ..............          38,805          35,138          73,943
2027....................................             969  ..............           7,000  ..............          35,175          30,746          65,921
2028....................................             869  ..............           6,000  ..............          31,545          26,354          57,899
2029....................................             769  ..............           5,000  ..............          27,915          21,962          49,876
2030....................................             668  ..............           1,000  ..............          24,248           4,392          28,641
                                                         -----------------------------------------------------------------------------------------------
    Total...............................  ..............  ..............          98,502         133,722         531,359         432,650       1,097,732
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis
\a\ DHS uses a linear forecasting equation y = -100.29x + 1,871.7 (obtained using the FY 2012 to 2018 data shown in Table 2, Column A) to estimate the
  number of business entities that will be petitioning for CW-1 nonimmigrant workers in the CNMI each year during the implementation period. In this
  equation, y denotes the number of business entities estimated for each year, while x denotes each year of the implementation period (where year 1
  represents FY 2019, year 2 represents FY 2020, and so on). For example, the number of business entities operation in the CNMI (y) in FY 2019 (or year
  1) = -100.29 x (1) + 1,8771.7 = 1,771 (rounded). For each of the remaining years, the number of business entities operating in the CNMI can be
  estimated in the same way. Averaging over all years, DHS estimates that an average of 1,220 business entities will be operating in the CNMI each year
  during the implementation period.
\b\ Of the number of business entities operating in the CNMI in FY 2019 (1,771), 141 of them are already participating in the E-Verify program and do
  not need to enroll in the E-Verify program.

Employers Operating in the CNMI and Other Locations in the U.S. and 
Hiring New U.S. Employees
    To estimate the opportunity cost of time to confirm the identity 
and work authorization of newly hired U.S. employees using E-Verify, 
DHS first estimates the number of employers (businesses) that petition 
for CW-1 nonimmigrant workers operating both in the CNMI and other 
locations in the U.S. DHS identified a total of 2,481 business entities 
that have operated in the CNMI and petitioned for CW-1 nonimmigrant 
workers at one time or another from FY 2012 to 2018. DHS provided the 
names and Tax ID of these 2,481 business entities to the USCIS E-
Verify, Verification Information System (VIS) to identify whether the 
entities are (a) enrolled in E-Verify and (b) operating in other 
locations in the U.S. (i.e., outside the CNMI).\117\ The E-Verify team 
conducted individual business name and Tax ID searches in the VIS 
database and reported the data, based on which DHS estimates that of 
the total business entities that have been operating in the CNMI and 
petitioned for CW-1 workers (2,481), only 101 (or 4.1 percent) have 
already been enrolled in E-Verify for at least one hiring site in the 
CNMI and other locations in the U.S. Of the 101 enrolled in E-Verify, 
70 use E-Verify for at least one hiring site in the CNMI, 30 are 
operating in other locations in the U.S. but are not enrolled in E-
Verify for those locations, and 1 is enrolled in E-Verify for hiring 
sites in the CNMI and other locations in the U.S. For the remaining 
number of businesses not enrolled in E-Verify in the CNMI (2,380),\118\ 
USCIS did not assess whether they are operating in other locations in 
the United States.
---------------------------------------------------------------------------

    \117\ DHS searches information for the 2,481 petitioning 
business entities in the E-Verify VIS database because this database 
provides two important pieces of information relevant to the 
analysis: (a) Whether the entities are enrolled in E-Verify program 
and (b) where they are operating in the U.S. In addition, conducting 
a global name search for the 2,481 petitioning business entities 
using other external databases is a time-consuming endeavor as it 
involves conducting searches in multiple databases only to identify 
their locations of operation. Given the time constraint to complete 
the rulemaking, DHS opts to use the E-Verify VIS database as the 
most viable option to extract both the E-Verify enrollment and 
location information from a single and reliable source.
    \118\ 2,380 business entities not enrolled in E-Verify = 2,481 
total number of business entities-101 business entities enrolled in 
E-Verify.
---------------------------------------------------------------------------

    Overall, DHS concludes that of the 2,481 business entities only 31 
(1.2 percent) operate in the CNMI and other locations in the U.S. DHS 
applies this rate to the estimated number of employers operating in the 
CNMI who are expected to petition for CW-1 nonimmigrant workers during 
the IFR implementation period to obtain that on average 15 employers 
\119\ will be operating both in the CNMI and other locations in the 
U.S. each year during the implementation period. As per the requirement 
to participate in the E-Verify program in good standing, all employers 
operating both in the CNMI and other locations in the U.S. are required 
to use E-Verify to confirm the identity and work authorization of all 
their newly hired U.S. employees during the implementation period.
---------------------------------------------------------------------------

    \119\ 15 (rounded) average number of employers operating in the 
CNMI and other locations in the U.S. = 1,220 average number of 
employers operating in the CNMI each year x 1.2 percent of business 
entities operating in the CNMI and other locations in the U.S. 
Alternatively, the same result is obtained by averaging the number 
of employers operating in CNMI and other U.S. locations each year 
shown in Table 20, Column B.
---------------------------------------------------------------------------

    DHS estimates the average number of new employees each of the 
employers operating in the CNMI and other locations in the U.S. will be 
hiring each year during the implementation period based on the average 
employment size of businesses operating in the U.S. and their average 
hiring rate. As the data obtained from the U.S. Census Bureau shows, 
the average employment size for a business entity operating in the U.S. 
is 17 employees.\120\ Using the Bureau of Labor Statistics (BLS) 2018 
data from the Job Openings and Labor Turnover Survey (JOLTS) Database, 
DHS also estimates the annual hires rate across all industries in the 
U.S. to be 51 percent.\121\ DHS multiplies the average

[[Page 29299]]

employment size across businesses (17 employees per business entity) by 
the annual hires rate (51 percent per business entity) to estimate that 
an employer in the U.S. hires approximately 9 new employees each 
year.\122\ Finally, DHS multiplies the number of employers operating in 
the CNMI and other locations in the U.S. each year by the average 
number of new hires per year to estimate an average of approximately 
123 newly hired employees each year during the implementation 
period.\123\ Table 20 shows in detail estimation of the total number of 
new hire U.S. employees for FY 2019 to 2030.
---------------------------------------------------------------------------

    \120\ This is estimated by dividing the total number of 
employment to the total number of establishments in each industry 
using the U.S. 6-digit NAICS data obtained from the U.S. Census 
Bureau. Taking the average over all industries, DHS obtains that a 
business entity in the U.S. on average employs 17 employees. See 
U.S. Census Bureau, Statistics of U.S. Businesses (SUBS), 2016 SUSB 
Annual Data Tables by Establishment Industry, released on Dec. 18, 
2018. https://www.census.gov/data/tables/2016/econ/susb/2016-susb-annual.html (last visited June 19, 2019).
    \121\ BLS, News Release, Job Openings and Labor Turnover--
January 2019, Table 14. Annual hires rates by industry and region, 
not seasonally adjusted. Released March 15, 2019. See https://
www.bls.gov/news.release/archives/jolts_03152019.pdf (last visited 
August 7, 2019). The hires rate is the number of hires during a 
reference period as a percent of total employment. The number of 
hires is the total additions to the payroll occurring at any time 
during the reference month, including (but not limited to) both new 
and rehired employees, full-time and part-time, permanent, short-
term and seasonal employees.
    \122\ 9 (rounded) number of new hires per business entity per 
year = 17 number of employees per business entity x 51 percent hires 
rate per year. Note that the average number of new hires per 
business entity falls to 8.2 when we include the new hires for FY 
2030 quarter 1.
    \123\ 123 (rounded) average number of newly hired employees each 
year = 15 average number of employers operating in the CNMI and 
other states in the U.S. each year x 8.72 average number of new 
hires per business entity per year. Table 20 shows in detail the 
estimation for each year.

   Table 20--Estimated Number of CNMI Employers Operating in Other States in The U.S. and Number of New Hires
                                                [FY 2019 to 2030]
----------------------------------------------------------------------------------------------------------------
                                                     Number of                        Average
                                     Estimated       employers        Average     number of  new   Total  number
                                    number  of     operating in      number of       hires per     of  new hires
           Fiscal year               employers     CNMI &  other   employees per     business       per year in
                                   operating in        U.S.         businesses      entity per      other U.S.
                                       CNMI          locations    entity in U.S.       year          locations
                                               A     B = A x 1.2               C      D = C x 51       E = B x D
                                                         percent                         percent
----------------------------------------------------------------------------------------------------------------
2019............................           1,771            21.3              17             8.7             185
2020............................           1,671            20.1              17             8.7             175
2021............................           1,571            18.9              17             8.7             164
2022............................           1,471            17.7              17             8.7             154
2023............................           1,370            16.4              17             8.7             143
2024............................           1,270            15.2              17             8.7             132
2025............................           1,170            14.0              17             8.7             122
2026............................           1,069            12.8              17             8.7             111
2027............................             969            11.6              17             8.7             101
2028............................             869            10.4              17             8.7              90
2029............................             769             9.2              17             8.7              80
2030............................             668             8.0              17           2.2 a              18
                                 -------------------------------------------------------------------------------
    Average.....................           1,220              15              17             8.2             123
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis
\a\ The IFR implementation period ends in FY 2030 quarter 1. Accordingly, the average number of new hires per
  business entity is estimated only for 3 months for FY 2030 (i.e., 17 x (51 percent / 12 months) x 3 months =
  2.2).

    Employers that will petition for CW-1 nonimmigrant workers and 
operate only in the CNMI are also required to use E-Verify to confirm 
the identity and work authorization of all their newly hired employees. 
For these businesses operating only in the CNMI, DHS assumes the 
average employment size to be 15 employees per entity \124\ and the 
annual hires rate across all industries to be 25 percent \125\ during 
the implementation period. DHS estimates that a CW-1 nonimmigrant 
petitioning employer that operates only in the CNMI on average employs 
nearly 4 new hires each year,\126\ of which approximately 2 will be 
U.S. employees.\127\ Finally, DHS multiplies the number of these 
employers operating only in the CNMI by the average number of new hire 
U.S. employees per year to estimate an average of approximately 2,092 
new hire U.S. employees each year during the implementation period. 
Table 21 shows the estimation of the total number of new hire U.S. 
employees for employers operating only in the CNMI.
---------------------------------------------------------------------------

    \124\ This is estimated by dividing the total number of 
employment to the total number of business entities operating in the 
CNMI in 2016. According to the CNMI 2016 Prevailing Wage and 
Workforce Assessment Study (PWWAS) released in September 2017, there 
were 32,061 employees working for 2,146 employers. 15 employees per 
business entity = 32,061 employees / 2,146 business entities. See 
2018 Draft Modification to the Workforce Innovation and 
Opportunities Act (WIOA) State Plan for the CNMI, submitted by the 
State Workforce Development Board, final publication date March 15, 
2018. https://www.marianaslabor.net/resources/files/CNMIMondifiedUnifiedStatePlanunderWIOA02072018.pdf (last visited 
June 24, 2019).
    \125\ Id. This is estimated based on projected demand for 
additional employees over and above the total number of employees in 
the CNMI in 2016. According to PWWAS, the newly approved projects in 
the CNMI would raise the demand for additional employees by 8,000 in 
the following year, resulting in annual hires rate of 25 percent 
(i.e., 25 percent = (8,000 additional employees / 32,061 number of 
employees in 2016) x 100).
    \126\ 4 (rounded) number of new hires per entity per year = 15 
number of employees per entity x 25 percent hires rate per year.
    \127\ 2 (rounded) number of new hire U.S. workers per year = 3.6 
number of new hires per year x 47 percent. Using the 2011 to 2016 
data obtained from the 2018 GAO report, DHS estimates that U.S. 
workers account on average for 47 percent of the total workforce in 
the CNMI. See United States Government Accountability Office (GAO), 
Testimony Before the Committee on Energy and Natural Resources, U.S. 
Senate, Commonwealth of the Northern Mariana Islands, Recent 
Economic Trends and Preliminary Observations on Workforce Data. GAO-
18-373T, Feb. 2018. GAO used the most recent available CNMI tax 
data.

[[Page 29300]]



                         Table 21--Estimated Number of Employers Operating Only In the CNMI and Their Newly Hired U.S. Employees
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Average         Average
                                                                       Estimated       number of    number of  new                      Total number of
                                                                       number of     employees per     hires per     Number of newly    newly hired U.S.
                            Fiscal year                                employers       business        business         hired U.S.       employees per
                                                                    operating only    entity  in      entity per    employees in CNMI     year in CNMI
                                                                      in CNMI \a\        CNMI            year
                                                                                 A               B     C = B x 25%        D = C x 47%          E = A x D
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019..............................................................           1,750              15             3.8                1.8            3,149.5
2020..............................................................           1,651              15             3.8                1.8            2,971.6
2021..............................................................           1,552              15             3.8                1.8            2,793.8
2022..............................................................           1,453              15             3.8                1.8            2,615.9
2023..............................................................           1,354              15             3.8                1.8            2,436.5
2024..............................................................           1,255              15             3.8                1.8            2,258.6
2025..............................................................           1,156              15             3.8                1.8            2,080.8
2026..............................................................           1,056              15             3.8                1.8            1,901.2
2027..............................................................             957              15             3.8                1.8            1,723.3
2028..............................................................             859              15             3.8                1.8            1,545.5
2029..............................................................             760              15             3.8                1.8            1,367.6
2030..............................................................             660              15           b 0.9                0.4              264.0
                                                                   -------------------------------------------------------------------------------------
    Total.........................................................           1,205              15             3.6                1.7            2,092.4
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis
\a\ Calculation: Number of employers operating only in CNMI = Number of employers operating in CNMI (from Table 20, Column A)-Number of employers
  operating in CNMI & other U.S. locations (Table 20, Column B).
\b\ The IFR implementation period ends in FY 2030 quarter 1. Accordingly, the average number of new hires per business entity is estimated only for 3
  months for FY 2030 (i.e., 15 x 2.1 percent x 3 = 0.9 (rounded)).

    Using the number of newly hired U.S. employees shown in Tables 20 
and 21, DHS estimates the opportunity cost of time to participate in 
the E-Verify program for employers operating in the CNMI and other 
locations in the U.S. While employers operating in other locations in 
the U.S. incur costs for taking annual training and submitting a query 
in E-Verify for their newly hired employees, employers operating only 
in the CNMI incur the cost for submitting a query in E-Verify for their 
newly hired employees.\128\ As described above, employers operating 
both in the CNMI and other locations in the U.S. assign at least one 
additional HR specialist to handle the case submissions for the new 
employees hired in other locations in the U.S. DHS uses the average 
hourly compensation rate of $46.88 for an HR specialist located outside 
the CNMI \129\ and $36.30 for an HR specialist located in the CNMI (as 
discussed before).
---------------------------------------------------------------------------

    \128\ It should be noted that the costs to enroll in E-Verify 
and annual training have already been accounted for in Table 19.
    \129\ Hourly compensation of $46.88 = $32.11 average hourly wage 
rate for HR specialists (national) x 1.46 benefits-to-wage 
multiplier. See Bureau of Labor Statistics, U.S. Department of 
Labor, Occupational Employment Statistics, May 2018 National 
Occupational Employment and Wage Estimates National, SOC 13-1071--
Human Resources Specialist. https://www.bls.gov/oes/2018/may/oes_nat.htm (last visited June 20, 2019).
---------------------------------------------------------------------------

    Table 22 shows estimation of the opportunity cost of time employers 
operating in other locations in the U.S. spend to confirm the identity 
and work authorization of their newly hired U.S. employees in FYs 2019 
to 2030. Likewise, Table 23 shows estimation of the opportunity cost of 
time employers operating only in the CNMI spend to confirm the identity 
and work authorization of their newly hired U.S. employees in FYs 2019 
to 2030.

    Table 22--Employers Opportunity Cost of Time to Participate in E-Verify Program (Operating in Other U.S.
                                                   Locations)
                                                [FY 2019 to 2030]
----------------------------------------------------------------------------------------------------------------
                                  Number of CNMI
                                     employers     Total number     Employers'         Case       Total E-Verify
           Fiscal year             operating in     of new hire       annual      submission and   participation
                                    other U.S.    U.S. employees   training cost   verification    cost in other
                                     locations       per year                          cost       U.S. locations
                                               A               B  C = A x 1 hour   D = B x 0.121       E = C + D
                                                                   x $46.88/hour  hours x $46.88/
                                                                                            hour
----------------------------------------------------------------------------------------------------------------
2019............................            21.3           185.3            $999          $1,051          $2,050
2020............................            20.1           174.9             942             992           1,934
2021............................            18.9           164.4             886             933           1,819
2022............................            17.7           154.0             830             874           1,703
2023............................            16.4           142.7             769             809           1,578
2024............................            15.2           132.2             713             750           1,463
2025............................            14.0           121.8             656             691           1,347
2026............................            12.8           111.4             600             632           1,232

[[Page 29301]]

 
2027............................            11.6           100.9             544             572           1,116
2028............................            10.4            90.5             488             513           1,001
2029............................             9.2            80.0             431             454             885
2030............................             8.0            17.6             375             100             475
                                 -------------------------------------------------------------------------------
    Total.......................           175.6          1475.7           8,232           8,371          16,603
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis


  Table 23--Employers Opportunity Cost of Time To Participate In E-Verify Program (Operating Only in the CNMI)
                                                [FY 2019 to 2030]
----------------------------------------------------------------------------------------------------------------
                                                                  Total number of new
                          Fiscal year                           hire U.S. employees per    Case submission and
                                                                      year in CNMI          verification cost
                                                                                      A    B = A x 0.121 hours x
                                                                                                     $36.30/hour
----------------------------------------------------------------------------------------------------------------
2019..........................................................                  3,149.5                  $13,833
2020..........................................................                  2,971.6                   13,052
2021..........................................................                  2,793.8                   12,271
2022..........................................................                  2,615.9                   11,490
2023..........................................................                  2,436.5                   10,702
2024..........................................................                  2,258.6                    9,921
2025..........................................................                  2,080.8                    9,139
2026..........................................................                  1,901.2                    8,350
2027..........................................................                  1,723.3                    7,569
2028..........................................................                  1,545.5                    6,788
2029..........................................................                  1,367.6                    6,007
2030..........................................................                    264.0                    1,160
                                                               -------------------------------------------------
    Total.....................................................                 25,108.3                  110,283
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis

(d) Cost of Obtaining TLC From DOL
    All new petitions and extension of stay petitions are required to 
include a TLC approved by the DOL if they are requesting an employment 
start date on or after October 1, 2019. The TLC is used to confirm that 
there are not sufficient United States workers in the CNMI who are 
able, willing, qualified and available at the time and place needed to 
perform the services or labor involved in the petition, and that the 
employment of the CW-1 nonimmigrant will not adversely affect the wages 
and working conditions of similarly employed United States workers. 
Obtaining a TLC results in a cost burden to petitioners. However, this 
cost is addressed in the DOL rulemaking.\130\
---------------------------------------------------------------------------

    \130\ See Labor Certification Process for Temporary Employment 
in the Commonwealth of the Northern Mariana Islands (CW-1 Workers), 
84 FR 12380 (Apr. 1, 2019).
---------------------------------------------------------------------------

(e) Cost of Semiannual Reporting and Document Retention
    An employer whose petition has been approved will be required to 
submit a semiannual report every six months after the petition validity 
start date to DHS to verify the continuing employment and payment of 
the beneficiary under the terms and conditions of the approved 
petition. The petitioners must retain all documents and records in 
support of the petition, including information submitted to DHS in the 
semiannual report, for 3 years from the petition validity end date. 
Petitioners are also required to provide the documents and records 
supporting the information in the semiannual report to DHS and DOL upon 
request.
    Petitioners use the newly developed Form I-129CWR, Semiannual 
Report for CW-1 Employers, to submit their semiannual reports to DHS. 
DHS estimates that the time burden for completing Form I-129CWR, which 
includes reviewing instructions, gathering the required documentation 
and information, attaching necessary documentation, and completing and 
submitting the form, is 2.5 hours.\131\ DHS also estimates that the 
time burden

[[Page 29302]]

for gathering and retaining documents and records is at least 1 hour 
for the duration of the 3-year document retention period.\132\ DHS 
assumes that petitioners retain separate documents and records for each 
approved petition. As a result, the affected population is the number 
of petitions approved each year.
---------------------------------------------------------------------------

    \131\ USCIS Office of Policy and Strategy, PRA Compliance 
Branch, Instruction on Form I-129CWR.
    \132\ The joint USCIS and DOL temporary final rule, Exercise of 
Time-Limited Authority to Increase the Fiscal Year 2018 Numerical 
Limitation for the H-2B Temporary Nonagricultural Worker Program 
uses 1 hour for document retention. See 83 FR 24905 (May 31, 2018).
---------------------------------------------------------------------------

    DHS applies the time burdens, the frequency of reporting and an HR 
specialist's hourly compensation rate to the affected population to 
estimate the total cost of semiannual reporting and document retention. 
As shown in Table 24, DHS estimates the total semiannual reporting and 
document retention cost to be $15,996,725 for FYs 2019 to 2030.

                                        Table 24--Semiannual Reporting and Document Retention Cost for Employers
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Estimated  number
                                                                of  CW-1       OCT to  complete   Postage cost to   OCT to gather and   Total semiannual
                       Fiscal year                             petitions        form  I-129CWR     mail completed   retain  documents     reporting &
                                                            approved  (from          \a\           Form I-129CWR      & records \b\         document
                                                                Table 9)                                                                 retention cost
                                                                           A          B = A x 2          C = A x 2   D = A x 1 hour x      E = B + C + D
                                                                               reports per year   reports per year        $36.30/hour
                                                                                  x 2.5 hours x   x $53.50 postage
                                                                                    $36.30/hour               cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019.....................................................              4,001            726,091            428,054            145,218          1,299,362
2020.....................................................              5,001            907,591            535,054            181,518          1,624,162
2021.....................................................              6,000          1,089,000            642,000            217,800          1,948,800
2022.....................................................              5,750          1,043,625            615,250            208,725          1,867,600
2023.....................................................              5,500            998,250            588,500            199,650          1,786,400
2024.....................................................              5,000            907,500            535,000            181,500          1,624,000
2025.....................................................              4,500            816,750            481,500            163,350          1,461,600
2026.....................................................              4,000            726,000            428,000            145,200          1,299,200
2027.....................................................              3,500            635,250            374,500            127,050          1,136,800
2028.....................................................              3,000            544,500            321,000            108,900            974,400
2029.....................................................              2,500            453,750            267,500             90,750            812,000
2030.....................................................                500             90,750             53,500             18,150            162,400
                                                          ----------------------------------------------------------------------------------------------
    Total................................................             49,251          8,939,057          5,269,857          1,787,811         15,996,725
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.
\a\ OCT denotes the opportunity cost of time estimated by multiplying the number of CW-1 petitions in each year by the number of reports per year (2),
  the time burden to complete Form I-129CWR (2.5 hours), and the average hourly compensation rate of a HR specialist ($36.30). It should be noted that
  there is no filing fee for Form I-129CWR.
\b\ OCT denotes the opportunity cost of time estimated by multiplying the number of CW-1 petitions in each year by the time burden to gather and retain
  documents and records (1 hour) and the average hourly compensation rate of a HR specialist ($36.30).

(f) Cost of Notifications
    The IFR requires a petitioner to immediately notify USCIS if there 
are any changes in the terms and conditions of employment of the CW-1 
nonimmigrant worker that may affect eligibility for CW-1 
classification. Petitioners can notify USCIS about the changes that 
affect the eligibility of the nonimmigrant worker in two ways. 
Petitioners may file an amended or new petition that reflects the 
changes using Form I-129CW if the nonimmigrant worker is still working 
for them. The amended or new petition must be submitted with a new TLC 
approved by DOL that supports the new terms and conditions. The second 
way of notifying USCIS is by sending a letter to the office at which 
the CW-1 petition was filed explaining the basis on which the specific 
CW-1 nonimmigrant is no longer employed. DHS estimates the number of 
petitions to be amended during the implementation period based on 
estimates derived from historical data on CNMI-Only Transitional Worker 
program as shown in Table 13. However, due to lack of similar data on 
the number of notification letters sent to USCIS or relevant proxy 
measure, DHS is not able to estimate the number of letters to be sent 
during the implementation period. DHS assumes that filing an amended 
petition takes the same amount of time as filing a new petition (4 
hours) \133\ while sending a letter takes approximately 1 hour,\134\ 
which includes gathering the relevant information, preparing the 
letter, and sending the letter to USCIS. DHS uses the postage cost of 
$53.50 for mailing amended petitions \135\ and $7.35 for mailing 
withdrawal letters.\136\ DHS estimates the opportunity cost of time 
(OCT) of completing amended petitions by multiplying the number of 
petitions amended each year by the time burden to complete Form I-129CW 
(4 hours) and the average hourly compensation rate of an HR specialist 
($36.30). DHS

[[Page 29303]]

applies the postage cost of 53.50 per package to the number of 
petitions amended and sent to USCIS each year to estimate the postage 
cost of mailing amended petitions. Table 25 shows these calculations in 
detail for FYs 2019 to 2030.
---------------------------------------------------------------------------

    \133\ USCIS Office of Policy and Strategy, PRA Compliance Branch 
provided the time burden for completing Form I-129 CW.
    \134\ DHS is not able to find data on how much time it would 
take to prepare a withdrawal letter and send it to USCIS. However, 
DHS assumes that it would not take more than 1 hour.
    \135\ Although petitioners may choose other means of shipping, 
for the purposes of this analysis, DHS uses the shipping prices of 
United States Postal Service (USPS) Domestic Priority Mail Express 
Flat Rate Envelopes, which is currently priced at $53.50 per 
package, as a proxy estimate for the postage cost of mailing a 
package containing amended Form I-129CW. DHS also assumes that the 
package on average weighs three pounds and ships to zone 8 (from 
CNMI to Laguna Niguel, California Service Center). See U.S. Postal 
Service, Price List, Notice 123, Effective January 27, 2019 at: 
https://pe.usps.com/text/dmm300/Notice123.htm#_c011 (last visited 
May 29, 2019).
    \136\ Although petitioners may choose other means of shipping, 
for the purposes of this analysis, DHS uses the shipping prices of 
United States Postal Service (USPS) Domestic Priority Mail Flat Rate 
Envelopes, which is currently priced at $7.35 per package, as a 
proxy estimate for the postage cost of mailing an envelope 
containing a withdrawal letter. DHS also assumes that the mail ships 
to Laguna Niguel, California Service Center. See U.S. Postal 
Service, Price List, Notice 123, Effective January 27, 2019 at: 
https://pe.usps.com/text/dmm300/Notice123.htm#_c011 (last visited 
May 29).
---------------------------------------------------------------------------

    Although DHS is not able to estimate the cost of submitting 
notification letters due to lack of data on the number of notification 
letters sent to USCIS or a relevant proxy measure, DHS provides a unit 
cost estimates for the opportunity cost of time of preparing and 
submitting a withdrawal letter and for the postage cost of mailing the 
letter to USCIS. DHS obtains an opportunity cost of time of $36.30 by 
multiplying the time burden to prepare and submit a notification letter 
to USCIS (1 hour) by the average hourly compensation rate of an HR 
specialist ($36.30). DHS adds the postage cost of mailing the 
notification letter ($7.35) to the estimated opportunity cost of time 
to obtain a total unit cost of $43.65 per notification letter. This 
means, an affected petitioner on average will incur a unit cost of 
$43.65 to send a letter notifying USCIS that a CW-1 nonimmigrant is no 
longer working for him or her.

                       Table 25--Employers Notification Cost for Filing Amended Petitions
                                                [FY 2019 to 2030]
----------------------------------------------------------------------------------------------------------------
                                       Estimated number   OCT to complete
                                         of petitions         amended        Postage cost to         Total
             Fiscal year                amended  (from    petitions  (Form     mail amended    notification cost
                                          Table 13)           I-129CW)          petitions
                                                      A  B = A x 4 hours x     C = A x $53.50          D = B + C
                                                               $36.30/hour       postage cost
----------------------------------------------------------------------------------------------------------------
2019................................                 88            $12,779             $4,709            $17,488
2020................................                110             15,974              5,886             21,859
2021................................                132             19,166              7,062             26,228
2022................................                127             18,368              6,768             25,136
2023................................                121             17,569              6,474             24,043
2024................................                110             15,972              5,885             21,857
2025................................                 99             14,375              5,297             19,671
2026................................                 88             12,778              4,708             17,486
2027................................                 77             11,180              4,120             15,300
2028................................                 66              9,583              3,531             13,114
2029................................                 55              7,986              2,943             10,929
2030................................                 11              1,597                589              2,186
                                     ---------------------------------------------------------------------------
    Total...........................              1,084            157,327             57,968            215,296
----------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

(g) Cost of Filing Revoked Petitions
    As discussed in the preamble of this IFR, USCIS has the authority 
to fully or partially revoke petitions at any time under specified 
conditions. The approval of any petition may either be immediately and 
automatically revoked or revoked on notice. An immediate and automatic 
revocation of an approved petition occurs if the petitioner ceases 
operations, files a written withdrawal of the petition, or DOL revokes 
the labor certification upon which the petition is based. For 
revocation on notice, USCIS has the discretion to send to the 
petitioner a notice of intent to revoke the petition in relevant part, 
for good cause, based on grounds for revocation specifically listed in 
this IFR. The grounds listed in 8 CFR 214.2(w)(27)(iii) provide clear 
guidelines for the program consistent with the Workforce Act. This IFR 
also states that for each beneficiary of a petition revoked entirely or 
in part in a fiscal year, the numerical limitation for the next fiscal 
year will be increased by the number of nonimmigrant workers of such 
petitions subject to such revocation.\137\ This means all the petitions 
revoked in a given year will be added to a subsequent year's numerical 
cap. To estimate an upper bound cost, DHS assumes that the CW-1 
petitions revoked in a given year will be filed in the subsequent year 
given the larger numerical cap available. Table 13 shows the CW-1 
revoked visas (or revoked petitions) that will be filed each year using 
Form I-129CW. As in the case for initial filing of Form I-129CW, a 
petitioner incurs the opportunity cost of time to complete Form I-129CW 
($145.204),\138\ the postage cost to mail the form to USCIS ($53.50), 
and the costs associated with filing fee ($460), education funding fee 
($200 per approved beneficiary), and fraud prevention and detection fee 
($50). DHS applies these unit costs to the relevant affected population 
under consideration to estimate the total cost of filing revoked 
petitions as shown in Table 26. DHS also estimates the cost of 
confirming the identity and work authorization of beneficiaries whose 
permits are revoked and subsequently filed using E-Verify.\139\ DHS 
estimates that the total cost of filing Form I-129CW for revoked 
petitions is $108,957 for FYs 2019 to 2030.
---------------------------------------------------------------------------

    \137\ See 8 CFR 214.2 (w)(1)(x)(C).
    \138\ $145.20 unit cost for opportunity cost of time estimation 
= 4 hours, the time burden to complete Form I-129CW x $56.30 average 
hourly compensation rate for an HR specialist.
    \139\ See section V.A.5.ii(c) for the details in the estimation 
of the case submission and verification cost.

[[Page 29304]]



                                                                    Table 26--Revoked Petitions Refiling Cost for Petitioners
                                                                                        [FY 2019 to 2030]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                              Estimated    Estimated
                                                                number       number       OCT to                     Education                                       Case
                                                               revoked      revoked      complete    Form I-129CW     funding       Fraud      Postage cost to  submission and    Total revoked
                        Fiscal year                           permits to   petitions     Form I-      filing fee      fee cost    prevention   mail completed     verification   petition filing
                                                               be filed   to be filed   129CW for        cost           (per     & detection    Form I-129CW     cost  (for E-        cost
                                                             (from Table      (from      revoked                      worker)      fee cost                         Verify)
                                                                 13)       Table 13)    petitions
                                                                       A            B    C = B x 4    D = B x $460      E = A x  F = B x $50    G = B x $53.50   H = B x 0.121   I = C+D+E+F+G+H
                                                                                           hours x      filing fee         $200    fraud fee      postage cost  hours x $36.30/
                                                                                       $36.30/hour                    education                                           hour
                                                                                                                            fee
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2019.......................................................  ...........  ...........  ...........  ..............  ...........  ...........  ................  ..............  ................
2020.......................................................           16            8        1,162           3,680        3,200          400               428           70.29             8,941
2021.......................................................           20           10        1,452           4,600        4,000          500               535           87.85            11,176
2022.......................................................           24           12        1,742           5,520        4,800          600               642          105.42            13,410
2023.......................................................           23           12        1,670           5,290        4,600          575               615          101.02            12,851
2024.......................................................           22           11        1,597           5,060        4,400          550               589           96.63            12,292
2025.......................................................           20           10        1,452           4,600        4,000          500               535           87.85            11,175
2026.......................................................           18            9        1,307           4,140        3,600          450               482           79.06            10,057
2027.......................................................           16            8        1,162           3,680        3,200          400               428           70.28             8,940
2028.......................................................           14            7        1,016           3,220        2,800          350               375           61.49             7,822
2029.......................................................           12            6          871           2,760        2,400          300               321           52.71             6,705
2030.......................................................           10            5          726           2,300        2,000          250               268           43.92             5,587
                                                            ------------------------------------------------------------------------------------------------------------------------------------
    Total..................................................          195           98       14,157          44,851       39,001        4,875             5,216             857           108,957
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

(h) Cost of Appealing Revoked Petitions
    As discussed above, the IFR sets forth the conditions that lead to 
an immediate and automatic revocation and the grounds to revoke on 
notice the approval of any petition. While the IFR provides that only a 
petition that has been revoked on notice (in whole or in part) may be 
appealed, it prohibits the appeal of petitions that are automatically 
revoked.\140\ Due to lack of historical data on the appeal process, DHS 
is unable to estimate the cost employers incur appealing petitions that 
have been revoked on notice during the implementation period. However, 
given that the total number of petitions revoked (due to immediate and 
automatic as well as on notice revocations) are estimated to be only 
197 for FYs 2019 to 2030, DHS assumes that the proportion of appeals 
due to revocation on notice alone is likely to be smaller.
---------------------------------------------------------------------------

    \140\ See 8 CFR 214.2 (w)(27)--(28).
---------------------------------------------------------------------------

    To show the minimum cost employers appealing revoked petitions are 
likely to incur, DHS uses the cost of filing Form I-290B, Notice of 
Appeal or Motion, as a unit cost estimate. The filing fee for Form I-
290B is $675 and the time burden to complete this form is 1.5 hours. 
DHS multiplies the time burden by the average hourly compensation rate 
of a HR specialist ($36.30) to obtain the opportunity cost of time to 
complete Form I-290B ($54.45).\141\ Adding the postage cost of mailing 
the completed form to USCIS ($53.50) to the above costs, DHS estimates 
that an affected employer on average incurs a cost of $782.95 appealing 
a petition revoked on notice.\142\
---------------------------------------------------------------------------

    \141\ $54.45 opportunity cost of time to complete Form I-290 B = 
1.5 hours, time burden to complete Form I-290B x $36.30 hourly 
compensation rate for a HR specialist.
    \142\ $782.95 unit cost of appealing a petition revoked on 
notice = $675 filing fee for Form I-290B + $54.45 opportunity cost 
of time to compete Form I-290B + $53.50 postage cost of mailing 
completed form.
---------------------------------------------------------------------------

iii. Cost to Nonimmigrant CW-2 Applicants
    Qualifying dependents (i.e., an eligible spouse or child) of 
nonimmigrant workers with a CW-1 status are eligible to apply for a 
grant of a CW-2 status. The CW-2 applicants must use Form I-539, 
Application to Extend/Change Nonimmigrant Status, to apply for an 
initial grant or extension of stay of a CW-2 status if the qualifying 
dependent is in the CNMI. Table 14 shows the number of applications 
that will be filed each year requesting a CW-2 status for qualifying 
dependents of nonimmigrant workers in the CNMI in FYs 2019 to 2030.
    The filing fee for Form I-539 is $370 for each dependent applicant 
and it takes a nonimmigrant applicant 2 hours to review instructions 
and complete and submit the form.\143\ DHS uses $10.59 as the average 
hourly compensation rate for dependent applicants in the CNMI. 
Additionally, each qualifying dependent applicant must submit a 
biometric services fee of $85 with the application, or must obtain a 
waiver of the biometric services fee for any biometric services 
provided, including but not limited to reuse of previously provided 
biometric information for background checks. However, a biometric 
services fee is not required for qualifying dependents under the age of 
14 or who are at least 79 years of age. As described above, historical 
data are not available to estimate the number of applicants that 
request a waiver of the biometric services fee in the implementation 
period.
---------------------------------------------------------------------------

    \143\ USCIS Office of Policy and Strategy, PRA Compliance 
Branch, Instruction on Form I-539.
---------------------------------------------------------------------------

    DHS applies the opportunity cost of time ($21.18),\144\ Form-I-539 
filing fee ($370), biometric fee ($85), and the postage cost ($53.50) 
to the number of applications that will be filed each year for CW-2 
status to estimate the total cost of filing applications for CW-2 
status as shown in Table 27. DHS estimates that the total cost of 
filing applications for CW-2 status is $7,826,181 for nonimmigrant 
applicants in the CNMI from FYs 2019 to 2030.
---------------------------------------------------------------------------

    \144\ $21.18 opportunity cost of time = 2 hours, time burden to 
complete Form I-539 x $10.59 average hourly compensation rate for 
CW-2 applicants in the CNMI.

[[Page 29305]]



                                                    Table 27--Application Filing Cost for CW-2 Status
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    Estimated
                                                    number of                                                     Postage cost
                                                  applications       OCT to        Form I-539       Biometric        to mail      Total application cost
                  Fiscal year                       for CW-2     complete  Form    filing fee     services fee      completed        for CW-2 status
                                                  status  (from       I-539           cost            cost         Form I-539
                                                    Table 14)
                                                              A       B = A x 2    C = A x $370     D = A x $85  E = A x $53.50        F = B + C + D + E
                                                                 hours x $10.59/     filing fee   biometric fee    postage cost
                                                                           hour
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019...........................................           1,200         $25,419        $444,056        $102,013         $64,208                 $635,695
2020...........................................           1,500          31,773         555,056         127,513          80,258                  794,599
2021...........................................           1,800          38,124         666,000         153,000          96,300                  953,424
2022...........................................           1,725          36,536         638,250         146,625          92,288                  913,698
2023...........................................           1,650          34,947         610,500         140,250          88,275                  873,972
2024...........................................           1,500          31,770         555,000         127,500          80,250                  794,520
2025...........................................           1,350          28,593         499,500         114,750          72,225                  715,068
2026...........................................           1,200          25,416         444,000         102,000          64,200                  635,616
2027...........................................           1,050          22,239         388,500          89,250          56,175                  556,164
2028...........................................             900          19,062         333,000          76,500          48,150                  476,712
2029...........................................             750          15,885         277,500          63,750          40,125                  397,260
2030...........................................             150           3,177          55,500          12,750           8,025                   79,452
                                                --------------------------------------------------------------------------------------------------------
    Total......................................          14,775         312,941       5,466,861       1,255,901         790,479                7,826,181
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: USCIS analysis.

iv. Total Estimated and Discounted Costs of Regulatory Changes to 
Employers and Nonimmigrant CW-2 Applicants
    Table 28 summarizes the total estimated and discounted costs of 
regulatory changes in this IFR to employers and nonimmigrant CW-2 
applicants. DHS estimates the total cost of the rule by summing the 
total estimated costs in Tables 15, 19, 22 through 27. To compare costs 
over time, DHS applies 3-percent and 7-percent discount rates to the 
total estimated costs of the IFR. Over the 12 years of implementation, 
DHS estimates that the total cost of the IFR to employers and 
nonimmigrant CW-2 applicants is $82,419,653 undiscounted, $70,327,737 
discounted at 3-percent, and $57,952,479 discounted at 7-percent.

                                                  Table 28--Total Estimated and Discounted Costs to Employers and Nonimmigrant CW-2 Applicants
                                                                                        [FY 2019 to 2030]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Total E-Verify    Semiannual                                                                    Total IFR cost
                                                   Form  I-129CW      program       reporting &    Notification       Revoked       Application  -----------------------------------------------
                   Fiscal year                       petition      participation     document          cost          petitions     cost for CW-2                   Discounted at   Discounted at
                                                    filing cost        cost       retention cost                    filing cost       status       Undiscounted         3%              7%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
2019............................................      $4,633,815        $249,035      $1,299,362         $17,488              $0        $635,695      $6,835,396      $6,636,307      $6,388,221
2020............................................       5,792,124         119,571       1,624,162          21,859           8,941         794,599       8,361,257       7,881,287       7,303,046
2021............................................       6,949,854         123,825       1,948,800          26,228          11,176         953,424      10,013,307       9,163,595       8,173,841
2022............................................       6,660,277         117,102       1,867,600          25,136          13,410         913,698       9,597,222       8,527,008       7,321,675
2023............................................       6,370,700         110,326       1,786,400          24,043          12,851         873,972       9,178,292       7,917,275       6,543,995
2024............................................       5,791,545         101,407       1,624,000          21,857          12,292         794,520       8,345,622       6,989,327       5,561,040
2025............................................       5,212,391          92,488       1,461,600          19,671          11,175         715,068       7,512,393       6,108,263       4,678,341
2026............................................       4,633,236          83,525       1,299,200          17,486          10,057         635,616       6,679,120       5,272,559       3,887,309
2027............................................       4,054,082          74,606       1,136,800          15,300           8,940         556,164       5,845,892       4,480,389       3,179,778
2028............................................       3,474,927          65,688         974,400          13,114           7,822         476,712       5,012,663       3,729,892       2,548,184
2029............................................       2,895,773          56,769         812,000          10,929           6,705         397,260       4,179,435       3,019,312       1,985,619
2030............................................         579,155          30,275         162,400           2,186           5,587          79,452         859,055         602,524         381,431
                                                 -----------------------------------------------------------------------------------------------------------------------------------------------
    Total.......................................      57,047,877       1,224,618      15,996,725         215,296         108,957       7,826,181      82,419,653      70,327,737      57,952,479
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Annualized......................................  ..............  ..............  ..............  ..............  ..............  ..............  ..............       7,065,271       7,296,332
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    DHS estimates the net total cost by subtracting the cost savings to 
petitioners shown in Tables 16 and 17 from the total estimated cost 
shown in Table 28. To compare the net total estimated costs over time, 
DHS applies 3-percent and 7-percent discount rates to the net total 
estimated costs attributable to the IFR. Tables 29 and 30, 
respectively, show the summary of lower and upper bound undiscounted 
and discounted net total estimated costs to employers and nonimmigrant 
CW-2 applicants.\145\ Over the implementation period, DHS estimates the 
lower bound net total estimated costs of the IFR to employers and 
nonimmigrant CW-2 applicants to be $73,578,345 undiscounted, 
$62,851,776 discounted at 3-percent, and $51,858,612 discounted at 7-
percent. Likewise, DHS estimates the upper bound net total estimated 
costs of the IFR to employers and nonimmigrant CW-2 applicants to be 
$61,741,219 undiscounted, $52,693,918 discounted at 3-percent,

[[Page 29306]]

and $43,433,060 discounted at 7-percent.\146\
---------------------------------------------------------------------------

    \145\ It should be noted that because the upper bound cost 
savings are much larger than the lower bound cost savings, DHS 
subtracts the upper bound cost savings from the total estimated cost 
to provide a lower bound net total cost. Similarly, DHS subtracts 
the lower bound cost savings from the total estimated cost to 
provide an upper bound net total cost. Estimated this way, the lower 
and upper bound net total costs can provide intuitively meaningful 
net total costs that range from a low to high value.
    \146\ Note that the upper bound net total estimated cost is 
smaller than the lower bound net total cost due to the fact that the 
upper bound cost savings are much larger than the lower bound cost 
savings.

                                            Table 29--Net Total Estimated and Discounted Costs (Lower Bound)
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                 Net total IFR cost  (lower bound)
                                                               Total                       Cost savings  -----------------------------------------------
                       Fiscal year                        estimated cost     Transfers     (upper bound)                   Discounted at   Discounted at
                                                                                                \a\        Undiscounted         3%              7%
                                                                       A               B               C       (= A-B-C)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019....................................................      $6,835,396  ..............  ..............      $6,835,396      $6,636,307      $6,388,221
2020....................................................       8,361,257           3,200       2,041,311       6,316,746       5,954,139       5,517,291
2021....................................................      10,013,307           4,000         510,264       9,499,043       8,692,970       7,754,049
2022....................................................       9,597,222           4,800         510,009       9,082,413       8,069,606       6,928,929
2023....................................................       9,178,292           4,600       1,913,745       7,259,947       6,262,494       5,176,242
2024....................................................       8,345,622           4,400         382,698       7,958,524       6,665,139       5,303,101
2025....................................................       7,512,393           4,000         254,877       7,253,516       5,897,772       4,517,125
2026....................................................       6,679,120           3,600       1,658,613       5,016,907       3,960,393       2,919,886
2027....................................................       5,845,892           3,200         127,566       5,715,126       4,380,168       3,108,650
2028....................................................       5,012,663           2,800               0       5,009,863       3,727,809       2,546,760
2029....................................................       4,179,435           2,400       1,403,226       2,773,809       2,003,859       1,317,817
2030....................................................         859,055           2,000               0         857,055         601,121         380,543
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................      82,419,653          39,000       8,802,309      73,578,345      62,851,776      51,858,612
                                                         -----------------------------------------------------------------------------------------------
Annualized..............................................................................................................       6,310,318       6,528,999
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Because the upper bound cost savings are much larger than the lower bound cost savings, DHS subtracts the upper bound cost savings from the total
  estimated costs to construct a meaningful range for the net total estimated cost.


                                            Table 30--Net Total Estimated and Discounted Costs (Upper Bound)
                                                                    [FY 2019 to 2030]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                 Net total IFR cost  (Upper bound)
                                                               Total                       Cost savings  -----------------------------------------------
                       Fiscal year                        estimated cost     Transfers     (Lower bound)                   Discounted at   Discounted at
                                                                                                \a\        Undiscounted         3%              7%
                                                                       A               B               C       (= A-B-C)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2019....................................................       6,835,396       1,600,200  ..............       5,235,196       5,082,715       4,892,707
2020....................................................       8,361,257       2,000,200         226,812       6,134,245       5,782,114       5,357,887
2021....................................................      10,013,307       2,400,000          56,696       7,556,611       6,915,370       6,168,446
2022....................................................       9,597,222       2,300,000          56,668       7,240,554       6,433,138       5,523,784
2023....................................................       9,178,292       2,200,000         212,638       6,765,654       5,836,113       4,823,818
2024....................................................       8,345,622       2,000,000          42,522       6,303,100       5,278,747       4,200,022
2025....................................................       7,512,393       1,800,000          28,320       5,684,073       4,621,672       3,539,755
2026....................................................       6,679,120       1,600,000         184,290       4,894,830       3,864,024       2,848,836
2027....................................................       5,845,892       1,400,000          14,174       4,431,718       3,396,543       2,410,561
2028....................................................       5,012,663       1,200,000               0       3,812,663       2,836,979       1,938,165
2029....................................................       4,179,435       1,000,000         155,914       3,023,521       2,184,256       1,436,453
2030....................................................         859,055         200,000               0         659,055         462,248         292,628
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................      82,419,653      19,700,400         978,034      61,741,219      52,693,918      43,433,060
                                                         -----------------------------------------------------------------------------------------------
Annualized..............................................................................................................       5,290,469       5,468,222
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Because the lower bound cost savings are much smaller than the upper bound cost savings, DHS subtracts the lower bound cost savings from the total
  estimated costs to construct a meaningful upper range for the net total estimated cost.

    E.O. 13771 directs agencies to reduce regulation and control 
regulatory costs. This interim final rule (IFR) is considered a 
regulatory action for the purposes of E.O. 13771. The total annualized 
cost over a perpetual time period using a 7 percent discount rate, in 
2016 dollars, and discounted back to 2016 is $2,608,771.
v. Costs to DHS
    USCIS incurs costs while administering the requirements set forth 
by this IFR. However, these costs are covered by fees collected from 
employers and nonimmigrant workers covered by this rule when they apply 
for the benefits this IFR provides. Therefore, there are no additional 
costs incurred by USCIS in this IFR.

[[Page 29307]]

vi. Benefits of the Regulatory Changes
    This IFR specifies the conditions under which DHS intends to 
implement the statutory changes and provisions in the Workforce Act. 
This section presents a qualitative description of the benefits of the 
regulatory changes in the IFR.
    The IFR provides an orderly transition from the CNMI permit system 
to the United States federal immigration system under the Immigration 
and Nationality Act (INA), which mitigates the potential harm to the 
CNMI economy as employers adjust their hiring practices and as 
nonimmigrant workers obtain the United States' nonimmigrant status. In 
this regard, the purposes of the Workforce Act are (a) to increase the 
percentage of United States workers in the total workforce of the CNMI, 
while maintaining the minimum number of non-U.S. workers to meet the 
changing demands of the CNMI's economy; (b) to encourage the hiring of 
United States workers into the CNMI workforce; and (c) to ensure that 
no United States worker is at a competitive disadvantage for employment 
compared to a non-U.S. worker or is displaced by a non-U.S. worker. The 
IFR also provides additional benefits to petitioners. The requirement 
to enroll in the E-Verify program allows employers to ensure that they 
hire only CW-1 nonimmigrant workers with valid work authorization, 
serving as an additional layer of the work authorization confirmation 
process. Recapturing the number of beneficiaries of petitions revoked 
in a fiscal year by adding it to the CW-1 numerical cap of the next 
fiscal year can be considered as a benefit to petitioners because it 
helps preserve the total number of CW-1 visas available each year 
during the implementation period.
    To achieve the stated purposes, the Workforce Act sets numerical 
caps limiting the total number of permits to be issued to prospective 
employers each year during the implementation period (FYs 2019 to 
2030). To implement the Workforce Act, this IFR establishes terms and 
conditions to administer and enforce a system for allocating the visas 
to be issued each year. According to the 2018 GAO report, after nearly 
a decade of annual decline, the total number of workers employed in the 
CNMI increased from 2013 through 2016, in which nonimmigrant workers 
accounted for 53 percent of the total workforce in 2016, compared to 76 
percent in 2002.\147\ Particularly, during the period when the number 
of approved CW-1 permits were increasing from 7,127 in FY 2012 to 
12,862 in FY 2017, the proportion of nonimmigrant workers in the CNMI 
workforce declined from 55 percent to 53 percent.\148\ Conversely, this 
means the proportion of United States workers in the CNMI increased 
from 45 percent to 47 percent between 2012 and 2017, indicating that 
the increase in the number of United States workers was higher than the 
increase in the number of nonimmigrant workers. DHS believes that the 
Workforce Act will further contribute to this declining trend in the 
proportion of nonimmigrant workers in the CNMI workforce because it 
limits the number of permits to be issued to CW-1 nonimmigrants workers 
to 13,000 for FY 2019 and sets it to decline gradually to 1,000 in FY 
2030.
---------------------------------------------------------------------------

    \147\ United States Government Accountability Office (GAO), 
Testimony Before the Committee on Energy and Natural Resources, U.S. 
Senate, COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, Recent 
Economic Trends and Preliminary Observations on Workforce Data. GAO-
18-373T, Feb. 2018. GAO used the most recent available CNMI tax 
data.
    \148\ Id. The numerical caps set by DHS on the CNMI-Only 
Transitional Worker (CW-1) permits available for foreign workers 
were set to decline from 22,416 in fiscal year 2012 to 13,348 in 
fiscal year 2017.
---------------------------------------------------------------------------

    To ensure that no United States worker is at a competitive 
disadvantage compared to a non-U.S. worker or is displaced by a non-
U.S. worker, the Workforce Act prohibits employers from paying 
nonimmigrant workers a wage that is not less than the greater of (a) 
the statutory minimum wage in the CNMI, (b) the federal minimum wage, 
or (c) the prevailing wage in the CNMI for the occupation in which the 
nonimmigrant worker is employed. The fact that the Workforce Act 
requires employers not to underpay nonimmigrant workers serves as a 
protection to the United States workers from unfair competition, and 
ensures that the employment of the nonimmigrant worker will not 
adversely affect the wages and working conditions of similarly employed 
U.S. workers. Additionally, under the Workforce Act, employers must 
prove to DOL, via the TLC that, there are not sufficient U.S. workers 
in the CNMI who are able, willing, qualified, and available. These 
requirements help discourage employers from employing CW-1 nonimmigrant 
workers at an uncompetitive or unfair wage and from resorting to hiring 
nonimmigrant workers before they exhaustively search for equally 
qualified locally available workers.
    According to GAO's projection in its 2017 report,\149\ if all 
nonimmigrant workers with the CW-1 visas were removed from the CNMI's 
labor market in 2015, the CNMI's 2015 gross domestic product (GDP) 
would have declined by 26 percent to 62 percent. This shows the 
continuing demand for and the substantial contribution of these 
nonimmigrant workers to the CNMI's economy, and hence highlights the 
significance of the CNMI-Only Transitional Worker program. The GAO 
report also indicates that the demand for nonimmigrant workers in the 
CNMI exceeded the available CW-1 visas in 2016. Accordingly, the GAO 
report projects that the demand for nonimmigrant workers would continue 
to grow and, if the CNMI-Only Transitional Worker program ended in 2019 
in accordance with the termination date established prior to enactment 
of the Workforce Act, the domestic workforce would be well below the 
CNMI's demand for labor. DHS believes that the Workforce Act alleviates 
the anticipated labor shortage in the CNMI as it extends the CNMI-Only 
Transitional Worker program and makes additional CW-1 visas available 
for the period extending from FY 2019 to FY 2030.
---------------------------------------------------------------------------

    \149\ United States Government Accountability Office (GAO), 
Report to Congressional Addressees, COMMONWEALTH OF THE NORTHERN 
MARIANA ISLANDS, Implementation of Federal Minimum Wage and 
Immigration Laws. GAO-17-437, May 2017.
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended 
by the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), requires an agency to prepare and make available to the 
public a regulatory flexibility analysis that describes the effect of 
the rule on small entities (i.e., small businesses, small 
organizations, and small governmental jurisdictions). A regulatory 
flexibility analysis is not required when a rule is exempt from notice 
and comment rulemaking. This rule is exempt from notice and comment 
rulemaking. Therefore, a regulatory flexibility analysis is not 
required for this rule.

D. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among 
other things, to curb the practice of imposing unfunded Federal 
mandates on State, local, and tribal governments. Title II of UMRA 
requires each Federal agency to prepare a written statement assessing 
the effects of any Federal mandate in a proposed rule, or final rule 
for which the agency published a proposed rule, that includes any 
Federal mandate that may result in a $100 million or more expenditure 
(adjusted annually for inflation) in any one year by State, local, and 
tribal governments, in the aggregate, or by the private sector.

[[Page 29308]]

This rule is exempt from the written statement requirement, because DHS 
did not publish a notice of proposed rulemaking for this rule.
    In addition, this rule does not exceed the $100 million expenditure 
in any one year when adjusted for inflation ($165 million in 2018 
dollars, per the CPI-U), and this rulemaking does not contain such a 
mandate.

E. Congressional Review Act

    The Office of Information and Regulatory Affairs has determined 
that this interim final rule is not a major rule, as defined by 5 
U.S.C. 804, for purposes of congressional review of agency rulemaking 
pursuant to the Congressional Review Act, Public Law 104-121, sec. 251, 
110 Stat. 868, 873 (codified at 5 U.S.C. 804). This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based companies to compete with foreign-based companies 
in domestic and export markets.

F. Executive Order 13132 (Federalism)

    This interim final rule does 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 No. 13132, 64 FR 43,255 (Aug. 4, 1999), this interim 
final rule does not have sufficient federalism implications to warrant 
the preparation of a federalism summary impact statement.

G. Executive Order 12988 (Civil Justice Reform)

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order No. 12988, 61 FR 4729 (Feb. 5, 1996).

H. National Environmental Policy Act (NEPA)

    The DHS Management Directive (Dir.) 023-01 Rev. 01 establishes the 
procedures that DHS and its components use to comply with the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375, and the 
Council on Environmental Quality (CEQ) regulations for implementing 
NEPA, 40 CFR parts 1500-1508.
    The CEQ regulations allow federal agencies to establish, with CEQ 
review and concurrence, categories of actions (``categorical 
exclusions'') which experience has shown do not individually or 
cumulatively have a significant effect on the human environment and, 
therefore, do not require an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS). 40 CFR 1507.3(b)(1)(iii), 1508.4. 
Dir. 023-01 Rev. 01 establishes Categorical Exclusions that DHS has 
found to have no such effect. Dir. 023-01 Rev. 01 Appendix A Table 1. 
For an action to be categorically excluded, Dir. 023-01 Rev. 01 
requires the action to satisfy each of the following three conditions: 
(1) The entire action clearly fits within one or more of the 
categorical exclusions; (2) the action is not a piece of a larger 
action; and (3) no extraordinary circumstances exist that create the 
potential for a significant environmental effect. Dir. 023-01 Rev. 01 
section V.B (1)-(3).
    DHS analyzed this action and has determined that because Congress 
has left DHS with no discretion as to the number of CW-1 permits that 
may be issued during the transition period, NEPA, which only applies to 
discretionary actions, does not apply to this IFR. This regulation 
largely implements amendments to the Workforce Act that dictates both 
the initial numbers of CW-1 permits that may be issued by DHS on day 
one as well as the numbers of visas that may be issued in ten years, 
leaving DHS no discretion.

I. Paperwork Reduction Act

    Under the PRA of 1995, 44 U.S.C. 3501 et seq., all Departments are 
required to submit to the Office of Management and Budget (OMB), for 
review and approval, any reporting requirements inherent in a rule. DHS 
is amending application requirements and procedures for aliens to 
receive nonimmigrant status in the CNMI. DHS has revised Form I-129CW, 
Petition for CNMI-Only Nonimmigrant Transition Worker, and created a 
new form, Form I-129CWR, Semiannual Report for CW-1 Employers. These 
DHS forms are considered information collections and are covered under 
the PRA. DHS has also updated the estimated number of respondents for 
the E-Verify information collection. E-Verify is covered under the PRA.
Forms I-129CW and I-129CWR
    The revised information collection has been submitted for approval 
to OMB for review and approval under procedures covered under the PRA. 
USCIS is requesting comments on this information collection for 30 days 
until June 15, 2020. When submitting comments on the information 
collection, your comments should address one or more of the following 
four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology (e.g., permitting electronic 
submission of responses.)
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: Petition for CNMI-Only 
Nonimmigrant Transition Worker; Semiannual Report for CW-1 Employers.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: I-129CW; I-129CWR; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. An 
employer uses Form I-129CW to petition USCIS for an alien to 
temporarily enter as a nonimmigrant into the CNMI to perform services 
or labor as a CNMI-Only Transitional Worker (CW-1). An employer also 
uses Form I-129CW to request an extension of stay or change of status 
on behalf of the alien worker. An employer uses Form I-129CWR to comply 
with reporting requirements. These forms serve the purpose of 
standardizing requests for these benefits, and ensuring that the basic 
information required to determine eligibility, is provided by the 
petitioners.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: The estimated 
total number of respondents for the information collection I-129CW is 
5,975 and the estimated hour burden per response is 4 hours; the 
estimated total number of respondents for the information collection I-
129CWR is 5,975 and the estimated hour burden per response is 2.5 
hours.

[[Page 29309]]

    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 38,388 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $3,809,063.
E-Verify
    The revised information collection has been submitted for approval 
to OMB for review and approval under procedures covered under the PRA. 
DHS has revised the estimated number of respondents for this 
information collection, and noted that E-Verify enrollment will be 
mandatory for employers petitioning for a CW-1 nonimmigrant worker. 
USCIS is requesting comments on this information collection for 30 days 
until June 15, 2020. When submitting comments on the information 
collection, your comments should address one or more of the following 
four points:
    (1) Evaluate whether the collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology (e.g., permitting electronic 
submission of responses.)
    Overview of information collection:
    (1) Type of Information Collection: Revision of a Currently 
Approved Collection.
    (2) Title of the Form/Collection: E-Verify Program.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: No form number; USCIS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Primary: Business or other for-profit. E-
Verify allows employers to electronically confirm the employment 
eligibility of newly hired employees.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond:
    [cir] 66,330 respondents averaging 2.26 hours (2 hours, 16 minutes) 
per response (enrollment time includes review and signing of the MOU, 
registration, new user training, and review of the user guides); plus
    [cir] 425,000, the number of already-enrolled respondents receiving 
training on new features and system updates averaging 1 hour per 
response; plus
    [cir] 425,000, the number of respondents submitting E-Verify cases 
averaging .129 hours (approximately 8 minutes) per case.
    (6) An estimate of the total public burden (in hours) associated 
with the collection: The total estimated annual hour burden associated 
with this collection is 3,590,281 hours.
    (7) An estimate of the total public burden (in cost) associated 
with the collection: The estimated total annual cost burden associated 
with this collection of information is $1,887,000.

J. Family Assessment

    DHS has reviewed this regulation and has determined that it may 
affect family well-being as that term is defined in section 654 of the 
Treasury General Appropriations Act, 1999, Public Law 105-277, Div. A, 
112 Stat. 2681-528 (Oct. 21, 1998), as amended, 5 U.S.C. 601 note. This 
action has been assessed in accordance with the criteria specified by 
section 654(c)(1). This regulation will enhance family well-being by 
providing immigration benefits that enhance the economic opportunities 
for those granted CW-1 status and allows certain family members to 
obtain CW-2 nonimmigrant status once the principal applicant has 
received status, while also addressing public safety and fraud 
concerns.

K. Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Senior 
Official Performing the Duties of the General Counsel, for purposes of 
publication in the Federal Register.

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 208

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 209

    Aliens, Immigration, Refugees.

8 CFR Part 212

    Administrative practice and procedure, Aliens, Immigration, 
Passports and visas, Reporting and recordkeeping requirements.

8 CFR Part 214

    Administrative practice and procedure, Aliens, Employment, Foreign 
Officials, Health Professions, Reporting and recordkeeping 
requirements, Students.

8 CFR Part 235

    Administrative practice and procedure, Aliens, Immigration, 
Reporting and recordkeeping requirements.

8 CFR Part 274a

    Administrative practice and procedure, Aliens, Employment, 
Penalties, Reporting and recordkeeping requirements.

Regulatory Amendments

    Accordingly, DHS amends 8 CFR parts 103, 208, 209, 212, 214, 235, 
and 274a as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
 1. The authority citation for part 103 is revised 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; Pub. L. 112-54, 125 Stat 550. Pub. 
L. 115-218.


0
2. Section 103.7 is amended by revising paragraphs (b)(1)(i)(J) to read 
as follows:


Sec.  103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
    (i) * * *
    (J) Petition for Nonimmigrant Worker in CNMI, Form I-129CW. For an 
employer to petition on behalf of one or more beneficiaries: $460 plus 
the following fees: A supplemental CNMI education funding fee of $200 
per beneficiary per year and a $50 fraud prevention and detection fee 
per employer filing a petition. The CNMI

[[Page 29310]]

education and fraud fees cannot be waived. The Secretary may adjust the 
education fee annually by notice in the Federal Register for petitions 
filed on or after each adjustment's effective date, based on a 
percentage equal to the annual change in the unadjusted All Items 
Consumer Price Index for All Urban Consumers (CPI-U) for the U.S. City 
Average published by the Bureau of Labor Statistics.
* * * * *

PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL

0
 3. The authority citation for part 208 is revised to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title 
VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.


0
4. Section 208.1 is amended by revising the first two sentences of 
paragraph (a)(2) to read as follows:


Sec.  208.1  General.

* * * * *
    (a) * * *
    (2) * * * The provisions of this subpart A shall not apply prior to 
January 1, 2030, to an alien physically present in or arriving in the 
Commonwealth of the Northern Mariana Islands seeking to apply for 
asylum. No application for asylum may be filed prior to January 1, 
2030, pursuant to section 208 of the Act by an alien physically present 
in or arriving in the Commonwealth of the Northern Mariana Islands. * * 
*
* * * * *

0
5. Section 208.2 is amended by revising paragraphs (c)(1)(iii), (iv), 
(vii), and (viii) to read as follows:


Sec.  208.2  Jurisdiction.

* * * * *
    (c) * * *
    (1) * * *
    (iii) An alien who is an applicant for admission pursuant to the 
Visa Waiver Program under section 217 of the Act, except that if such 
an alien is an applicant for admission to the Commonwealth of the 
Northern Mariana Islands, then he or she shall not be eligible for 
asylum prior to January 1, 2030;
    (iv) An alien who was admitted to the United States pursuant to the 
Visa Waiver Program under section 217 of the Act and has remained 
longer than authorized or has otherwise violated his or her immigration 
status, except that if such an alien was admitted to the Commonwealth 
of the Northern Mariana Islands, then he or she shall not be eligible 
for asylum in the Commonwealth of the Northern Mariana Islands prior to 
January 1, 2030;
* * * * *
    (vii) An alien who is an applicant for admission to Guam or the 
Commonwealth of the Northern Mariana Islands pursuant to the Guam-CNMI 
Visa Waiver Program under section 212(l) of the Act, except that if 
such an alien is an applicant for admission to the Commonwealth of the 
Northern Mariana Islands, then he or she shall not be eligible for 
asylum prior to January 1, 2030; or
    (viii) An alien who was admitted to Guam or the Commonwealth of the 
Northern Mariana Islands pursuant to the Guam-CNMI Visa Waiver Program 
under section 212(l) of the Act and has remained longer than authorized 
or has otherwise violated his or her immigration status, except that if 
such an alien was admitted to the Commonwealth of the Northern Mariana 
Islands, then he or she shall not be eligible for asylum in the 
Commonwealth of the Northern Mariana Islands prior to January 1, 2030.
* * * * *

0
6. Section 208.4 is amended by revising the last three sentences of 
paragraph (a)(2)(ii) to read as follows:


Sec.  208.4  Filing the application.

* * * * *
    (a) * * *
    (2) * * *
    (ii) * * * For aliens present in or arriving in the Commonwealth of 
the Northern Mariana Islands, the 1-year period shall be calculated 
from either January 1, 2030 or the date of the alien's last arrival in 
the United States (including the Commonwealth of the Northern Mariana 
Islands), whichever is later. No period of physical presence in the 
Commonwealth of the Northern Mariana Islands prior to January 1, 2030, 
shall count toward the 1-year period. After November 28, 2009, any 
travel to the Commonwealth of the Northern Mariana Islands from any 
other State shall not re-start the calculation of the 1-year period.
* * * * *

0
7. Section 208.5 is amended by revising the last sentences of 
paragraphs (a) and (b)(1)(iii) to read as follows:


Sec.  208.5  Special duties toward aliens in custody of DHS.

    (a) * * * No application for asylum may be filed prior to January 
1, 2030, under section 208 of the Act by an alien physically present in 
or arriving in the Commonwealth of the Northern Mariana Islands.
    (b) * * *
    (1) * * *
    (iii) * * * However, such an alien crewmember is not eligible to 
request asylum pursuant to section 208 of the Act prior to January 1, 
2030.
* * * * *

0
8. Section 208.30 is amended by revising the last sentences of 
paragraphs (a) and (e)(2) to read as follows:


Sec.  208.30   Credible fear determinations involving stowaways and 
applicants for admission who are found inadmissible pursuant to section 
212(a)(6)(C) or 212(a)(7) of the Act or whose entry is limited or 
suspended under section 212(f) or 215(a)(1) of the Act.

    (a) * * * Prior to January 1, 2030, an alien present in or arriving 
in the Commonwealth of the Northern Mariana Islands is ineligible to 
apply for asylum and may only establish eligibility for withholding of 
removal pursuant to section 241(b)(3) of the Act or withholding or 
deferral of removal under the Convention Against Torture.
* * * * *
    (e) * * *
    (2) * * * However, prior to January 1, 2030, in the case of an 
alien physically present in or arriving in the Commonwealth of the 
Northern Mariana Islands, the officer may only find a credible fear of 
persecution if there is a significant possibility that the alien can 
establish eligibility for withholding of removal pursuant to section 
241(b)(3) of the Act.
* * * * *

PART 209--ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED 
ASYLUM

0
9. The authority citation for part 209 is revised to read as follows:

    Authority:  8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252, 
1282; Title VII of Pub. L. 110-229; 8 CFR part 2; Pub. L. 115-218.


0
10. Section 209.2 is amended by revising paragraph (a)(3) to read as 
follows:


Sec.  209.2  Adjustment of status of alien granted asylum.

* * * * *
    (a) * * *
    (3) No alien arriving in or physically present in the Commonwealth 
of the Northern Mariana Islands may apply to adjust status under 
section 209(b) of the Act in the Commonwealth of the Northern Mariana 
Islands prior to January 1, 2030.
* * * * *

[[Page 29311]]

PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS; 
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE

0
11. The authority citation for part 212 is revised to read as follows:

    Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note, 
1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255, 
1359; section 7209 of Pub. L. 108-458 (8 U.S.C. 1185 note); Title 
VII of Pub. L. 110-229 (8 U.S.C. 1185 note); 8 CFR part 2; Pub. L. 
115-218.

    Section 212.1(q) also issued under section 702, Pub. L. 110-229, 
122 Stat. 754, 854.


0
12. Section 212.1 is amended by revising the last two sentences of 
paragraphs (q)(8)(i)(A) and (q)(8)(ii)(A) to read as follows:


Sec.  212.1  Documentary requirements for nonimmigrants.

* * * * *
    (q) * * *
    (8) * * *
    (i) * * *
    (A) * * * The provisions of 8 CFR subpart 208 subpart A shall not 
apply to an alien present or arriving in the CNMI seeking to apply for 
asylum prior to January 1, 2030. No application for asylum may be filed 
pursuant to section 208 of the Act by an alien present or arriving in 
the CNMI prior to January 1, 2030; however, aliens physically present 
in the CNMI during the transition period who express a fear of 
persecution or torture only may establish eligibility for withholding 
of removal pursuant to INA 241(b)(3) or pursuant to the regulations 
implementing Article 3 of the United Nations Convention Against Torture 
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
* * * * *
    (ii) * * *
    (A) * * * The provisions of 8 CFR part 208 subpart A shall not 
apply to an alien present or arriving in the CNMI seeking to apply for 
asylum prior to January 1, 2030. No application for asylum may be filed 
pursuant to section 208 of the INA by an alien present or arriving in 
the CNMI prior to January 1, 2030; however, aliens physically present 
or arriving in the CNMI prior to January 1, 2030, may apply for 
withholding of removal under section 241(b)(3) of the Act and 
withholding and deferral of removal under the regulations implementing 
Article 3 of the United Nations Convention Against Torture, Inhuman or 
Degrading Treatment or Punishment.
* * * * *

PART 214--NONIMMIGRANT CLASSES

0
 13. The authority citation for part 214 is revised to read as follows:

    Authority: 6 U.S.C. 202, 236; 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; Pub. L. 115-
218.


0
 14. Section 214.2 is amended by revising paragraphs (e)(23)(ii)(F) and 
(e)(23)(xiv) to read as follows:


Sec.  214.2  Special requirements for admission, extension, and 
maintenance of status.

* * * * *
    (e) * * *
    (23) * * *
    (ii) * * *
    (F) Transition period means the period beginning on the transition 
program effective date and ending on December 31, 2029.
* * * * *
    (xiv) Expiration of the transition period. Upon expiration of the 
transition period, the E-2 CNMI Investor nonimmigrant status will 
automatically terminate.
* * * * *

0
 16. 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) CW-1 Application for Temporary Employment Certification means 
the Office of Management and Budget (OMB)-approved Form ETA-9142C (or 
successor form) and the appropriate appendices, a valid prevailing wage 
determination (Form ETA-9141C, or successor form), and all supporting 
documentation submitted by an employer, as set forth in the U.S. 
Department of Labor's (DOL) regulations at 20 CFR 655.420 through 
655.422, to secure a temporary labor certification determination from 
DOL's Office of Foreign Labor Certification (OFLC) Administrator.
    (ii) Direct Guam transit means travel from the CNMI to a foreign 
place by an alien in CW status, or from a foreign place 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).
    (iii) 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.
    (iv) 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.
    (v) Employer-employee relationship means that the employer will 
hire, pay, fire, supervise, and control the work of the employee.
    (vi) Lawfully present in the CNMI means that the alien 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 or if paroled into the CNMI, the authorized parole 
period has not expired.
    (vii) Legitimate business, as determined by DHS, means a real, 
active, and operating commercial or entrepreneurial undertaking that:
    (A) Produces services or goods for profit, or is a governmental, 
charitable or other validly recognized nonprofit entity;
    (B) Meets applicable legal requirements for doing business in the 
CNMI;
    (C) Has substantially complied with wage and hour laws, 
occupational safety and health requirements, nondiscrimination, and all 
other Federal, CNMI, and local requirements relating to employment 
during the five-year period immediately preceding the date of filing 
the petition, and continues to be in substantial compliance with such 
requirements;
    (D) Does not directly or indirectly engage in, or knowingly benefit 
from, prostitution, human trafficking, or any other activity that is 
illegal under Federal, CNMI, or local law;
    (E) Is a participant in good standing in the E-Verify program;

[[Page 29312]]

    (F) Does not have, as an owner, investor, manager, operator, or 
person meaningfully involved with the undertaking, any individual who 
has been an owner, investor, manager, operator, or person otherwise 
meaningfully involved with an undertaking that was not in compliance 
with paragraph (w)(1)(vii)(C) of this section at the time of the 
individual's involvement and within the five years immediately 
preceding the date of filing the petition; or that was not in 
compliance with clause paragraph (w)(1)(vii)(D) of this section at any 
time during which the individual was involved with the undertaking, or 
is an agent of such individual; and
    (G) Is not a successor in interest to an undertaking that has not 
complied with paragraphs (C) or (D).
    (viii) Long-term worker means an alien who was admitted to the 
CNMI, or otherwise granted status, as a CW-1 nonimmigrant during fiscal 
year 2015, and during each of fiscal years 2016 through 2018.
    (ix) Minor child means a child as defined in section 101(b)(1) of 
the Act who is under 18 years of age.
    (x) Numerical limitation means the maximum number of persons who 
may be granted CW-1 status in a given fiscal year, as follows:
    (A) For fiscal years 2018 through the first quarter of fiscal year 
2030, the numerical limitations are:
    (1) 9,998 for fiscal year 2018;
    (2) 13,000 for fiscal year 2019;
    (3) 12,500 for fiscal year 2020;
    (4) 12,000 for fiscal year 2021;
    (5) 11,500 for fiscal year 2022;
    (6) 11,000 for fiscal year 2023;
    (7) 10,000 for fiscal year 2024;
    (8) 9,000 for fiscal year 2025;
    (9) 8,000 for fiscal year 2026;
    (10) 7,000 for fiscal year 2027;
    (11) 6,000 for fiscal year 2028;
    (12) 5,000 for fiscal year 2029; and
    (13) 1,000 for the first quarter of fiscal year 2030.
    (B) A long-term worker granted CW-1 nonimmigrant status for a 
period exceeding one year shall be counted toward the numerical 
limitation, and toward any reservation of CW-1 numbers, as described in 
paragraph (w)(1)(x)(D)(1) of this section, if applicable, for each 
fiscal year within the period of petition validity.
    (C) For each petition revoked entirely or in part in a fiscal year, 
the numerical limitation for the next fiscal year shall be increased by 
the number of beneficiaries of such petitions subject to such 
revocation before the end of the validity period of the petition.
    (D)(1) Within the numerical limitations described in paragraph 
(w)(1)(x)(A) of this section, the following reservations of CW-1 
numbers for specified occupational categories shall apply:
    (i) 200 for occupational categories 29-0000 (Healthcare 
Practitioners and Technical Occupations) and 31-0000 (Healthcare 
Support Occupations); and
    (ii) 60 for occupational categories related to the operations of 
the CNMI public utilities services, including, but not limited to, 17-
2081 (Water/Waste Water Engineers), 17-2071 (Electrical Engineers), 17-
2141 (Mechanical Engineers), and Trades Technicians.
    (2) Reserved CW-1 numbers described in paragraph (w)(1)(x)(D)(1) of 
this section will be made available to eligible petitioners requesting 
such numbers for a fiscal year in order of filing, separately under 
either paragraph (w)(1)(x)(D)(1)(i) or (ii) of this section, until 
exhausted. Unused reserved numbers under either paragraph 
(w)(1)(x)(D)(1)(i) or (ii) of this section will not be available to 
other petitioners.
    (3) DHS may adjust the reservation of numbers for specified 
occupational categories for a fiscal year or other period via 
publication of a notice in the Federal Register, as long as such 
adjustment is consistent with paragraph (w)(1)(x)(A) of this section. 
DHS will base any such adjustment on factors including: The level of 
past demand for reserved numbers compared to supply; whether a 
reservation of numbers has resulted in unused numbers; reservation of 
numbers compared to overall numerical limitation in a fiscal year; and 
any recommendation received from the Governor of the CNMI regarding the 
adjustment of the reservation of numbers.
    (E) If the numerical limitation is not reached for a specified 
fiscal year, unused numbers do not carry over to the next fiscal year.
    (F) If USCIS receives a sufficient number of petitions to meet the 
numerical limitation in paragraph (w)(1)(x)(A) of this section in a 
fiscal year, USCIS will cease processing further cap-subject petitions 
in that fiscal year, and DOL may cease processing cap-subject 
applications for temporary labor certification for that fiscal year.
    (xi) 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.
    (xii) Participant in good standing in the E-Verify program means an 
employer, as defined in paragraph (w)(1)(iv) of this section, that has 
enrolled in E-Verify with respect to all hiring sites in the United 
States as of the time of filing a petition; is in compliance with all 
requirements of the E-Verify program, including but not limited to 
verifying the employment eligibility of newly hired employees in the 
United States; and continues to be a participant in good standing in E-
Verify at any time during which the employer employs any CW-1 
nonimmigrant.
    (xiii) 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.
    (xiv) Successor in interest means an employer that is controlling 
and carrying on the business of a previous employer. The following 
factors may be considered in determining whether an employer is a 
successor in interest; no one factor is dispositive, but all of the 
circumstances will be considered as a whole:
    (A) Substantial continuity of the same business operations;
    (B) Use of the same facilities;
    (C) Continuity of the work force;
    (D) Similarity of jobs and working conditions;
    (E) Similarity of supervisory personnel;
    (F) Whether the former management or owner retains a direct or 
indirect interest in the new enterprise;
    (G) Similarity in machinery, equipment, and production methods;
    (H) Similarity of products and services; and
    (I) The ability of the predecessor to provide relief.
    (xv) Temporary Labor Certification or TLC means the certification 
made by the DOL OFLC Administrator, based on the CW-1 Application for 
Temporary Employment Certification, and all supporting documentation, 
with respect to an employer seeking to file with a CW-1 petition.
    (xvi) Transition period means the period beginning on the 
transition program effective date and ending on December 31, 2029.
    (xvii) United States worker means a citizen or national of the 
United States,

[[Page 29313]]

an alien lawfully admitted for permanent residence, or a citizen 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 
within 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;
    (vi) Is ineligible for status in a nonimmigrant worker 
classification under section 101(a)(15) of the Act; and
    (vii) Will not be employed in a Construction and Extraction 
Occupation (as defined by the U.S. Department of Labor as Standard 
Occupational Classification Group 47-0000 or successor provision) 
unless the alien is a long-term worker.
    (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) Obtain a TLC from DOL and 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 fees as provided in 8 CFR 103.7(b)(1)(i)(J), along 
with any required documents and in accordance with form instructions. 
An employer filing a petition is eligible to apply for a waiver of the 
petition fee (but not the CNMI education fee or the fraud prevention 
and detection 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) The employer has not displaced and will not displace a United 
States worker in order to employ the beneficiary as agreed to in the 
CW-1 Application for Temporary Employment Certification;
    (B) The employer is doing business as defined in paragraph 
(w)(1)(iii) of this section;
    (C) The employer is a legitimate business as defined in paragraph 
(w)(1)(vii) 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 as eligible for 
any other nonimmigrant worker classification, including H-2A or H-2B;
    (H) The position falls within the list of occupational categories 
designated by DHS;
    (I) The petitioner will pay the beneficiary a wage that is not less 
than the greater of--
    (1) The CNMI minimum wage;
    (2) The Federal minimum wage; or
    (3) The prevailing wage in the CNMI for the occupation in which the 
beneficiary will be employed as established by the U.S. Department of 
Labor; and
    (J) The petitioner will comply with the reporting and retention 
requirements in paragraph 26.
    (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.
    (iv) For any petition requesting an employment start date on or 
after October 1, 2019, including both new petitions and petitions for 
renewal of an existing permit, a TLC approved by DOL, confirming that 
there are not sufficient United States workers in the CNMI who are 
able, willing, qualified, and available at the time and place needed to 
perform the services or labor involved in the petition, and that the 
employment of the CW-1 nonimmigrant will not adversely affect the wages 
and working conditions of similarly employed United States workers. If 
the TLC accepts certain education, training, experience, or special 
requirements of the beneficiary, the petition must also be accompanied 
by documentation that the CW-1 nonimmigrant worker qualifies for the 
job offer as specified in the TLC.
    (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

[[Page 29314]]

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 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 worker 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 worker's 
authorized period of stay; and
    (B) Subsequent to his or her lawful admission, the CW-1 worker 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 worker'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), or if the CW-1's current petition has 
been revoked (other than for the reason described in paragraph 
(w)(27)(iii)(A)(7) of this section) the CW-1 worker 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 worker'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 worker 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. An amended or new 
petition must be submitted with a new TLC approved by DOL.
    (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, under the same terms and 
conditions, 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 are not 
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 CW-1 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 application for a TLC may not be filed with DOL earlier 
than 120 days before the date of actual need for the beneficiary's 
services for an initial petition for CW-1 status, or 180 days before 
the date of expiration of CW-1 status in the case of an extension 
petition described in paragraph (w)(18) of this section. The petition 
may then be filed with USCIS after the TLC is approved. If DOL debars 
an employer from obtaining a CW-1 TLC, USCIS may not approve future 
petitions during the debarment period.
    (13) Petition validity. An approved petition will be valid for a 
period of up to one year, unless the beneficiary is a long-term worker 
in which case an approved petition will be valid for a period of up to 
three years.
    (14) Validity of the labor certification. A TLC is valid only for 
the period of employment as approved on the CW-1 Application for 
Temporary Employment Certification. The TLC expires on the last day of 
authorized employment.
    (15) How to apply for CW-1 or CW-2 status. (i) Upon approval of the 
petition, a beneficiary, his or her eligible spouse, and 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).
    (16) 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 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.
    (17) 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.
    (18) 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.

[[Page 29315]]

    (iii) Extensions of CW-1 status may be granted for a period of up 
to 1 year (or a period of up to 3 years if the beneficiary is a long-
term worker) until the end of the transition period, subject to any 
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) A beneficiary (other than a long-term worker) may not be 
granted CW-1 status beyond three consecutive petition validity periods 
unless the beneficiary has departed and remained outside of the United 
States for a continuous period of at least 30 days after the expiration 
of the third petition validity period and before the filing of any new 
petition on behalf of the beneficiary.
    (vi) 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.
    (19) 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 classification for which they may 
qualify.
    (20) 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.
    (21) Rejection. USCIS may reject an employer's petition for new or 
extended CW-1 status if any 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.
    (22) 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 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.
    (23) 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 and 
nonimmigrant classification. Except as provided in paragraph 
(w)(23)(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) Travel outside the CNMI--(A) Direct Guam transit from the 
CNMI. An alien with CW-1 or CW-2 status may travel to a foreign place 
via a direct Guam transit without being deemed to violate that status.
    (B) Travel from a foreign place to the CNMI. An alien with a valid 
CW-1 or CW-2 visa, who is admissible to the CNMI in such status, may be 
admitted to the United States in CW-1 or CW-2 status in Guam for the 
purpose of a direct Guam transit to the CNMI. An alien who violates the 
terms of direct Guam transit violates his or her CW-1 or CW-2 status.
    (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.
    (24) 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 paragraph (w)(7)(v) of this 
section), 10 days after the end of the petition's validity period, when 
the petition is revoked, 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.
    (25) 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 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.

[[Page 29316]]

    (26) Semiannual report--(i) Filing. During the validity period of 
the petition, an employer whose petition has been approved for an 
employment start date on or after October 1, 2019 and for a validity 
period of six months or more, shall file a semiannual report, every six 
months after the petition validity start date up to and including the 
sixth month preceding the petition's validity end date. The semiannual 
report must be filed within a 60 day window surrounding the six month 
anniversary of the petition validity start date, with the filing window 
opening 30 days before and closing 30 days after the six month 
anniversary of the petition validity start date. The semiannual report 
must be filed with USCIS in the form and containing such evidence as 
USCIS may direct, to verify the continuing employment and payment of 
the beneficiary under the terms and conditions of the approved 
petition.
    (ii) Use. DHS may provide such semiannual reports to other federal 
partners, including DOL for investigative or other use as the DOL may 
deem appropriate. Failure to comply with the requirements of paragraph 
(w)(26) of this section may be a basis for revocation of an approved 
petition as provided in paragraph (w)(27) of this section, or for 
denial of subsequent petitions filed by the employer.
    (iii) Document retention. (A) An employer must retain all documents 
and records in support of an approved petition, and any semiannual 
report. An employer must retain evidence that supports the semiannual 
report including, but not limited to:
    (1) Personnel records for each CW-1 worker including the name, 
address of current residence in the Commonwealth, age, domicile, 
citizenship, point of hire, and approved employment contract 
termination date;
    (2) Payroll records for each CW-1 worker including the O*NET job 
classification; wage rate or salary, number of hours worked each week, 
gross compensation, itemized deductions, and evidence of net payments 
made and received biweekly; and
    (3) Direct evidence of payment of wages and overtime, such as 
receipts for cash payments, cancelled checks or deposit records. 
Petitioners must provide such documents and records to DHS and DOL at 
any time, during the retention period specified in paragraph 
(w)(26)(iii)(B) of this section.
    (B) An employer must retain documents and records until the date 
that is three years after the ending date of the petition validity 
period.
    (27) Revocation of approval of petition--(i) General. (A) The 
petitioner shall immediately notify USCIS of any changes in the terms 
and conditions of employment of a beneficiary which may affect 
eligibility under this paragraph (w). To notify USCIS of such changes, 
an amended petition shall be filed when the petitioner continues to 
employ the beneficiary. If the petitioner no longer employs the 
beneficiary, the petitioner shall send a letter to the office at which 
the CW-1 petition was filed explaining the basis on which the specific 
CW-1 nonimmigrant is no longer employed.
    (B) USCIS may revoke a petition at any time, even after the 
expiration of the petition.
    (ii) Immediate and automatic revocation. The approval of any 
petition is immediately and automatically revoked if the petitioner 
ceases operations, files a written withdrawal of the petition, or the 
U.S. Department of Labor revokes the temporary labor certification upon 
which the petition is based.
    (iii) Revocation on notice--(A) Grounds for revocation. USCIS may 
in its discretion send to the petitioner a notice of intent to revoke 
the petition in relevant part, for good cause, including, if it finds 
that:
    (1) The beneficiary is no longer employed by the petitioner in the 
capacity specified in the petition;
    (2) The facts contained in the petition or on the application for a 
temporary labor certification was not true and correct, inaccurate, 
fraudulent, or misrepresented a material fact;
    (3) The petitioner violated terms and conditions of the approved 
petition;
    (4) The petitioner violated a requirement of paragraph (w) of this 
section;
    (5) The approval of the petition violated paragraph (w) this 
section or involved gross error;
    (6) The petitioner failed to maintain the continuous employment of 
the CW-1 nonimmigrant, failed to pay the nonimmigrant, failed to timely 
file a semiannual report described in paragraph (w)(26) of this 
section, committed any other violation of the terms and conditions of 
employment, or otherwise ceased to operate as a legitimate business;
    (7) The beneficiary did not apply for admission to the CNMI within 
10 days after the beginning of the petition validity period if the 
petition has been approved for consular processing; or
    (8) The employer failed to provide a former, current, or 
prospective CW-1 nonimmigrant, not later than 21 business days after a 
written request from such individual, with the original (or a certified 
copy of the original) of all petitions, notices, and other written 
communication related to the worker (other than sensitive financial or 
proprietary information of the employer which may be redacted) that has 
been exchanged between the employer and the Department of Labor, the 
Department of Homeland Security, or any other Federal agency or 
department.
    (B) Notice and decision. The notice of intent to revoke shall state 
the grounds for the revocation. The petitioner may submit evidence in 
rebuttal within 30 days of receipt of the notice. USCIS shall consider 
all relevant evidence presented in deciding whether to revoke the 
petition in whole or in part. If the petition is revoked in part, the 
remainder of the petition shall remain approved and a revised approval 
notice shall be sent to the petitioner with the revocation notice.
    (28) Appeal of a revocation of a petition. A petition that has been 
revoked on notice in whole or in part may be appealed under part 103 of 
this chapter. Automatic revocations may not be appealed.
    (29) Notice to DOL. USCIS will provide notice to DOL of CW-1 
petition revocations.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
 17. The authority citation for part 235 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323, 69 FR 241, 3 CFR, 2004 Comp., p. 278), 1201, 1224, 1225, 
1226, 1228, 1365a note, 1365b, 1379, 1731-32; Title VII of Pub. L. 
110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458); Pub. 
L. 112-54; Pub. L. 115-218.


0
18. Section 235.6 is amended by revising paragraphs (a)(1)(ii) and 
(iii) to read as follows:


Sec.  235.6  Referral.

    (a) * * *
    (1) * * *
    (ii) If an asylum officer determines that an alien in expedited 
removal proceedings has a credible fear of persecution or torture and 
refers the case to the immigration judge for consideration of the 
application for asylum, except that, prior to January 1, 2030, an alien 
arriving in the Commonwealth of the Northern Mariana Islands is not 
eligible to apply for asylum but the immigration judge may consider 
eligibility for withholding of removal pursuant to section 241(b)(3) of 
the Act or withholding or deferral of removal under the Convention 
Against Torture.
    (iii) If the immigration judge determines that an alien in 
expedited

[[Page 29317]]

removal proceedings has a credible fear of persecution or torture and 
vacates the expedited removal order issued by the asylum officer, 
except that, prior to January 1, 2030, an alien physically present in 
or arriving in the Commonwealth of the Northern Mariana Islands is not 
eligible to apply for asylum but an immigration judge may consider 
eligibility for withholding of removal pursuant to section 241(b)(3) of 
the Act or withholding or deferral of removal under the Convention 
Against Torture.
* * * * *

PART 274a--CONTROL OF EMPLOYMENT OF ALIENS

0
19. The authority citation for part 274a is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Pub. L. 110-
229; 48 U.S.C. 1806; 8 CFR part 2; Pub. L. 101-410, 104 Stat. 890, 
as amended by Pub. L. 114-74, 129 Stat. 599; Pub. L. 115-218.


0
20. Amend Sec.  274a.2 by revising paragraph (a)(2) to read as follows:
* * * * *


Sec.  274a.2  Verification of identity and employment authorization.

    (a) * * *
    (2) Verification form. Form I-9, Employment Eligibility 
Verification Form, is used in complying with the requirements of this 8 
CFR 274a.1-274a.11. Form I-9 can be in paper or electronic format. A 
fillable electronic Form I-9 as well as a paper format Form I-9 may be 
obtained and downloaded from http://www.uscis.gov. Paper forms may also 
be ordered at https://www.uscis.gov/forms/forms-by-mail or by 
contacting the USCIS Contact Center at 1-800-375-5283 or 1-800-767-1833 
(TTY). Alternatively, Form I-9 can be electronically generated or 
retained, provided that the resulting form is legible; there is no 
change to the name, content, or sequence of the data elements and 
instructions; no additional data elements or language are inserted; and 
the standards specified under 8 CFR 274a.2(e), (f), (g), (h), and (i), 
as applicable, are met. When copying or printing the paper Form I-9, 
the text of the two-sided form may be reproduced by making either 
double-sided or single-sided copies.
* * * * *

0
 21. Section 274a.12 is amended by revising paragraph (b)(23) and 
removing and reserving paragraph (b)(24).
    The revision reads as follows:


Sec.  274a.12  Classes of aliens 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).
* * * * *

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel, U.S. 
Department of Homeland Security.
[FR Doc. 2020-08524 Filed 5-13-20; 8:45 am]
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