CNMI Transitional Worker Final Rule: FAQ – Part I

General Questions

What does the CNMI-Only Transitional Worker (CW) visa do?
The CW visa provides lawful U.S. temporary immigration status to eligible foreign workers who:

• Perform services or labor for an employer in the CNMI; and

• Are ineligible for any other kind of employment-based nonimmigrant visa under the INA.

Transitional workers are expected to find a suitable alternative immigration status before the end of the transition period if they wish to remain in the CNMI. The rule allows time for employers to adjust their hiring practices and for eligible foreign workers to obtain nonimmigrant or immigrant visa classifications available under the INA.


How will the rule affect foreign workers living and working in the CNMI?
The rule allows employers in the CNMI to sponsor nonimmigrant workers who otherwise would be ineligible to work under the INA and gives foreign workers until Dec. 31, 2014, to determine an appropriate long-term immigration status for themselves and their families. More than 22,000 foreign workers in the CNMI are potentially eligible for the temporary CW visa status.


Are all foreign workers eligible for the CW visa classification?
No. Foreign workers who are eligible for other employment-based nonimmigrant visa classifications are not eligible for this program. In addition, a foreign national who is in the CNMI must be lawfully present in the CNMI, as described in Question 6.


What are the requirements for an individual to qualify for a CNMI-Only Transitional Worker visa?
For an individual to qualify for CW visa status, both the employer and the foreign national must meet basic requirements.

Requirements for Employers

To be eligible to petition for workers for CW visa status, employers must:

• Be engaged in a legitimate business, as defined in the final rule;

• Consider all available U.S. workers for the position;

• Offer terms and conditions of employment consistent with the nature of the employer’s business in the CNMI;

• File the required forms to hire transitional workers;

• Comply with all federal and CNMI requirements relating to employment, including but not limited to nondiscrimination, occupational safety and minimum-wage requirements; and

• Pay the worker’s cost of return transportation to their last place of foreign residence if they are involuntarily dismissed from employment for any reason before the end of the period of authorized admission.

Requirements for Workers

An individual may be eligible for CW-1 nonimmigrant classification if he or she:

• Is ineligible for any other employment-based nonimmigrant status under U.S. immigration law;

• Will enter or stay in the CNMI to work in an occupational category designated as needing foreign workers to supplement the resident workforce;

• Is the beneficiary of a petition filed by a legitimate employer who is doing business in the CNMI;

• Is not present in the United States, other than the CNMI;

• Is lawfully present in the CNMI if present in the CNMI; and

• Is otherwise admissible to the United States or is granted any necessary waiver of a ground of inadmissibility.


What qualifies as a “legitimate business” under this rule?
The final rule defines a legitimate business as “a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit, or is a governmental, charitable, or other validly recognized nonprofit entity. The business must meet applicable legal requirements for doing business in the CNMI. A business will not be considered legitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under federal or CNMI law.”


What does “lawfully present in the CNMI” mean for purposes of eligibility for the CW nonimmigrant classification?
In order to be eligible for a grant of status in the CNMI, an individual must be lawfully present in the CNMI. This means that the person must either (1) at the time the application for status is filed, be within the period of stay authorized by the “umbrella permit” or other CNMI authorization (which expires no later than Nov. 27, 2011); or (2) be within a period of lawful admission or parole into the CNMI granted by the Department of Homeland Security (DHS), except for an admission or parole as a tourist or business visitor.


What is the admission code for this visa classification?
The nonimmigrant visa classification admission code is CW-1 for principal CNMI-Only Transitional Workers and CW-2 for their dependents.


Can the CW visa classification be extended beyond Dec. 31, 2014?
Yes. The CW visa classification currently expires at the end of the transition period on Dec. 31, 2014. However, the U.S. Department of Labor has the authority to extend the validity period of the CNMI Transitional Worker visa categories beyond Dec. 31, 2014. The Secretary of Labor may extend the transitional worker program if it is determined that current and anticipated labor needs justify such an extension to ensure adequate employment in the CNMI.


How many public comments did DHS receive on the Interim Final Rule?
During the initial and extended comment periods, DHS received 146 comments from a broad spectrum of individuals and organizations, including the CNMI Governor’s Office, the Saipan Chamber of Commerce, a former CNMI senator and other interested organizations and individuals. DHS considered all comments received in preparing this final rule. Details may be found in the Federal Register final rule.


Questions for Employers

When may employers begin filing petitions for workers?
Employers may begin filing petitions on Oct. 7, 2011. An employer, however, cannot apply for a worker more than six months before the date the employer needs the worker’s services. For example, if an employer needs a worker’s services on July 1, the employer may submit a petition for the worker no earlier than Jan. 1 of the same year.


If a worker is currently employed in the CNMI under an “umbrella permit” or other CNMI work authorization expiring Nov. 27, 2011, when must an employer petition for that worker to obtain CW status?
The employer must petition for the worker on or before Nov. 27, 2011. The employee must be lawfully present in the CNMI as of the date of filing the petition in order to be eligible for a grant of CW status. Employees whose work authorization under the CNRA expires Nov. 27, 2011, and who do not have a CW petition filed on their behalf by that date, will no longer be lawfully present in the CNMI. A petition to sponsor these workers as CW-1 nonimmigrants must be postmarked no later than Nov. 28, 2011 (for example, by the end of the first business day after Sunday, Nov. 27, 2011, CNMI local time).

Workers no longer lawfully present in the CNMI must leave the CNMI before their employers can file the petition. They cannot reenter the CNMI and resume employment until the petition is granted and they obtain a CW visa at a U.S. Consulate abroad.


May an employer continue to employ a worker under an “umbrella permit” or other CNMI work authorization after Nov. 27, 2011, if the petition for CW status is pending?
Yes. The worker’s lawful presence is based on the petition filing date, so if the employer files the petition no later than Nov. 27, 2011, the worker will remain eligible for a grant of CW status. USCIS will consider a petition postmarked Nov. 28, 2011, as filed on Nov. 27, 2011 (as discussed in the response to Question 11). If an employer applies for CW status for a worker he or she currently employs in the CNMI under an umbrella permit or other CNMI authorization expiring Nov. 27, 2011, the employer may lawfully continue to employ the worker until a decision is made on the application. If the petition is granted, the worker will receive CW status and may continue to be employed. If the petition is denied, the work authorization ceases at that time.


What must an employer do to petition for a foreign worker?
Before an employer may petition for a foreign worker, the employer must consider available U.S. workers for the position being filled by the CW worker.

To petition for a foreign worker, an employer must:

• File a Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker;

• Offer terms and conditions of employment that are consistent with the nature of the occupation, activity and industry in the CNMI;

• File supporting evidence certifying that the information provided about the employer, job position and prospective worker is accurate and meets eligibility criteria; and

• Submit the appropriate filing fees.


Does an employer need to file a separate Form I-129CW for each transitional worker?
No. An employer can file a single petition for multiple workers, so long as all workers:

• Will work in the same occupational category;

• Will be employed for the same period of time;

• Will be employed in the same location; and

• Are requesting the same action in Part 2 of the petition (Change of Status, Extension of Status, etc.).


Can filing fees be waived?
The Form I-129CW and biometrics filing fees may be waived in extraordinary situations where an employer demonstrates an inability to pay the filing fee but is still able pay the employee’s wage. To request a fee waiver you must submit a Form I-912, Request for Individual Fee Waiver, or a written request for a fee waiver. The $150 CNMI education funding fee cannot be waived.