CNMI Transitional Worker Final Rule: FAQ – Part III

My dependents and I will be lawfully present in the CNMI until Nov. 27, 2011. An employer is willing to petition for CW-1 status for me. Does the employer have to file the petition before Nov. 27, 2011? If so, do my dependents also have to file their applications for CW-2 status before Nov. 27, 2011?

In order for you and your dependents in the CNMI to be eligible for CW status, you must be lawfully present in the CNMI on the date your application for CW status is filed. For you (the principal worker), that is the date your employer files the I-129CW petition requesting that you be granted CW-1 status. For your dependents, that is the date they file the I-539 application for a grant of CW-2 status. If you or your dependents have umbrella permits or other work authorization expiring Nov. 27, 2011, these applications MUST be filed on or before Nov. 27, 2011, to be eligible for a grant of CW status in the CNMI. USCIS will consider a petition postmarked Nov. 28, 2011, as filed on Nov. 27, 2011 (as discussed in the response to Question 11). Dependent applications do not have to be filed before the principal CW-1 application has been granted; but dependents must keep in mind that, regardless of whether or not the CW-1 application has been granted, the dependent application must be filed while the dependent is still lawfully present in the CNMI. Otherwise, the dependent can only obtain CW-2 status through a visa application to a U.S. Consulate abroad.

Which dependents are eligible for derivative CW-2 status?

Spouses and minor children (children under 18 years of age) are eligible for derivative CW-2 status. Children over 18 years of age, and parents or other relatives, are not eligible for CW-2 status.

I am a foreign worker living abroad and an employer in the CNMI is willing to sponsor me. What are the steps I need to take to obtain a CW visa?

In this situation, the following steps should be taken:

Step 1: For you to obtain a CW visa, the sponsoring employer must first submit the following documents: 

·         A Form I-129CW;

·         The $325 application fee;

·         The mandatory $150 education fee; and

·         Supporting evidence certifying that the information provided about you, your employer and the job position are accurate and meets eligibility requirements.

Step 2: If the petition is approved, USCIS will mail an approval notice to your employer. Your employer will need to send you the original approval notice to your address abroad.

After you receive the approval notice, you will need to schedule a nonimmigrant visa interview at the U.S. Consulate or Embassy nearest to you. Your dependents may simultaneously apply for CW-2 visas with the U.S. Department of State and do not need to file a Form I-129CW or Form I-539. The Department of State has separate application and fee requirements for visa applications.

You and your dependents will not have CW-1 or CW-2 status until you obtain a CW visa from the U.S. Department of State and are admitted to the CNMI. The approval of a Form I-129CW for consular processing approves the classification only and does not grant you any additional status in the CNMI.

If I am working for an employer who has sponsored me for CW-1 status in the CNMI, and my umbrella permit expires on Nov. 27, 2011, can I continue working until a decision is made on the petition?

Yes. If you are lawfully employed in the CNMI under a CNMI grant of work authorization that expires Nov. 27, 2011, and your employer files a CW petition for you on or before Nov. 28, 2011, you are authorized to continue your employment until USCIS makes a decision on the petition.

What must a worker submit to the Department of State for a CW nonimmigrant visa?

The Department of State requires all nonimmigrant visa applicants to complete a Form DS-160, Application for Nonimmigrant Visa, with the required fee. The Department of State encourages families to file together, even if the family members will be travelling separately.

How do I make an appointment for a visa interview?

Each U.S. Consulate has its own process for making visa appointments. Depending on the consulate, you may either call or make an appointment online. All fees must be paid before you make an appointment.

The Department of State website, www.usembassy.gov, has more information about nonimmigrant visa interviews. This website also has information about expected wait times for nonimmigrant visa interviews at every U.S. Consulate overseas. You will need to bring the petition approval notice and the Form DS-160 with you to the appointment.

What if I work for more than one employer?

If you work for more than one employer, each employer must file a separate Form I-129CW with USCIS.

Can a beneficiary with CW-2 status work?

No. The CW-2 status does not authorize employment.

My spouse and I are both employed. If my spouse cannot work as a CW-2 nonimmigrant, how can he or she continue to work if I receive CW-1 status?

Your respective employers can petition for each of you to obtain CW-1 status.

Can an individual with a CW visa apply for other visa classifications?

Yes. During the transition period, CW transitional workers and their dependents may apply for other INA nonimmigrant or immigrant visa classifications.

Is it necessary to apply for a CW visa if a temporary worker has a CNMI permit?

Yes. An employer must apply for a CW visa if the employer wants to continue to employ a worker after the expiration of the worker’s CNMI permit, unless another work-authorized status can be obtained under federal immigration law. Workers may remain in the CNMI until their permits expire, or until Nov. 27, 2011, whichever date occurs first. Only an employer may decide whether to petition for a worker to obtain CW classification or status.

If a worker has an unexpired umbrella permit and needs to travel outside of the CNMI, he or she must have a U.S. visa in order to return. If the employer wishes to obtain a grant of CW status in the CNMI for an employee with an umbrella permit, the petition must be filed on or before Nov. 28, 2011. Otherwise, the worker will need to leave the CNMI and obtain a CW visa at a U.S. Consulate or Embassy abroad in order to be admitted into the CNMI in CW status.

What happens to CW-1 transitional workers and their dependents at the end of the transition period?

At the end of the transition period, Dec. 31, 2014, the CW classification will cease to exist (unless the transitional worker program is extended by the U.S. Secretary of Labor). Transitional workers who held the CW status must obtain nonimmigrant or immigrant status under the INA before this date if they wish to stay in the CNMI lawfully.

Questions About Travel

As a CW-1 or CW-2 status holder, what do I need to do in order to travel?

CW status holders must obtain a CW-1 or CW-2 visa from the U.S. Department of State abroad if they wish to travel abroad and reenter the CNMI. The Department of State has separate application and fee requirements for visa applications. For more information on traveling outside of the CNMI, please visit the Department of State website.

Can workers with advance parole travel abroad and work with an authorized umbrella permit upon their return to the CNMI?

Yes. Workers with a valid umbrella permit and a valid travel document can continue to travel and return legally to work in the CNMI if they have applied for and been granted advance parole.

USCIS has used advance parole and parole-in-place as temporary measures because no visa classification under the INA allowed legitimate workers to continue to travel and return to the CNMI after traveling internationally or within the United States without a visa. Advance parole will not normally be considered for individuals who have received CW status in the CNMI, and who therefore can obtain a visa abroad for their return to the CNMI.

Can individuals with CW status return from travel outside the CNMI?

A CW-1 or CW-2 nonimmigrant may leave the CNMI, but he or she must have the appropriate visa to reenter the CNMI. The CW worker must apply for a CW visa at a U.S. Embassy or Consulate abroad before seeking readmission to the CNMI. If the CW-1 or CW-2 status is obtained while in the CNMI, the nonimmigrant will be given a Form I-94, Arrival-Departure Record, as documentation of CW status.

Is CW status valid in any part of the United States other than the CNMI?

No, CW status is limited to the CNMI. Individuals with CW status who travel or attempt to travel, without otherwise receiving authorization, to any other part of the United States including Guam have violated their CW status and are subject to removal from the United States to their country of nationality. However, the final rule provides one important exception; please see Question 48 for further clarification.

Can individuals with CW nonimmigrant status, or with CW visas, transit through the Guam airport?

Individuals who are nationals of the Philippines may travel between the CNMI and the Philippines through the Guam airport under the following conditions:

Outbound from the CNMI to the Philippines via Guam: The individual is in valid CW status and is traveling on a direct itinerary involving a flight stopover or connection in Guam of no more than eight hours, and the individual remains at the Guam airport during the transit.

Inbound from the Philippines to the CNMI via Guam: The individual has a valid CW visa and is traveling on a direct itinerary involving a flight stopover or connection in Guam of no more than eight hours, and the individual remains at the Guam airport during the transit.

Other individuals in CW status or with CW visas cannot travel to or from foreign destinations with a stopover or connection through Guam.