CNMI Transitional Worker Final Rule: FAQ – Part II

What evidence should an employer provide with the Form I-129CW petition?

The employer must complete the form fully, including the attestations needed to establish eligibility. The employer should submit evidence, to the extent available, to support the elements in the attestation. For example, in order to support the attestation that there are no qualified U.S. workers available to fill the position, the employer may submit evidence that the job vacancy has been posted in daily newspaper want ads or on job vacancy websites such as those operated by the CNMI Department of Labor and private recruitment firms.

Can an employer petition for CW workers if the employer’s business license has been suspended or revoked by the CNMI government, or if the license has not been renewed for any other reason?

In order to petition for CW workers, an employer must be doing business in the CNMI in a legitimate business manner; this means he or she meets applicable legal requirements for doing business in the CNMI. To the extent available, the employer should provide evidence of compliance with all applicable license requirements. If a business or occupational license has been suspended, revoked or not renewed, the employer should submit disclosure and a full explanation of all relevant facts in writing along with his or her petition. USCIS will consider this information on a case-by-case basis with respect to whether the employer and/or the foreign worker are eligible for the requested CW classification. In addition, if the foreign worker requires an occupational license, the employer should provide evidence of such licensing.

Can an employer who has been barred by the CNMI government from employing foreign workers petition for CW workers?

Placement of an employer on the CNMI’s “barred employer list” does not disqualify an employer from petitioning for CW foreign workers. However, placement on this list should be disclosed and fully explained in the petition, for consideration as appropriate by USCIS with respect to eligibility for the benefit sought.

Are there any occupational categories which are excluded from eligibility for CW status?

No.

To be eligible for CW status, a worker must be ineligible for other employment-based nonimmigrant categories under the INA. Does this mean that an employer must apply for those other categories and be denied, prior to petitioning for CW status for a worker?

No. Employers do not need to show that they have unsuccessfully applied for any other nonimmigrant classification for a worker. Employers must attest that the position is not temporary or seasonal in nature (because they can use the H-2B nonimmigrant classification to obtain temporary or seasonal workers), and that they do not reasonably believe the worker qualifies for any other nonimmigrant worker classification. Employers that have applied unsuccessfully for another nonimmigrant classification for a worker should supply that evidence to support the attestation.

What is the appeal process if a petition is denied?

The administrative appeal process for Form I-129CW is consistent with other nonimmigrant classifications. To appeal the denial of a CW-1 petition, the petitioning employer in the CNMI must file a Form I-290B, Notice of Appeal or Motion. Only the petitioning employer, not an employee, may appeal the denial. An application for a change of status or an extension of status may not be appealed if it is denied.

Can private individuals petition for foreign workers being employed to provide domestic household labor?

Only an entity doing business, as defined by the transitional worker rule, may petition for CW workers. Private households generally are not eligible.

Questions for Workers

What must a worker in the CNMI do to obtain CW-1 status?

Only an employer can file a petition for a worker to obtain CW-1 status. An individual must be sponsored by an employer and must meet basic eligibility requirements. An individual may be eligible for CW-1 nonimmigrant classification if he or she:

·         Is ineligible for any other nonimmigrant or immigrant status under U.S. immigration law;

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

·         Is the beneficiary of a petition filed by a legitimate employer 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.

How can an eligible individual obtain a CW-1 or CW-2 visa from outside the CNMI?

Once an I-129CW filed with USCIS by the employer is approved, the eligible individual applying from outside the CNMI must contact the U.S. Department of State to apply for a CW-1 or CW-2 visa based on the employer’s approved petition. The CW-2 classification is limited to dependents of CW-1 status holders (spouses and unmarried children under the age of 18).

Can an individual with a CW visa be employed anywhere in the United States?

No. An individual with CW-1 status may only work in the CNMI for the petitioning employer that filed the approved petition. The employer must file a new I-129CW petition if there are any material changes in the terms and conditions of employment. CW status does not authorize individuals to work in any other state or territory of the United States, including the neighboring territory of Guam. Individuals with CW-2 status may not work in the CNMI or in any other part or territory of the United States.

Can an individual with CW-1 status change employers?

Yes, but the new employer must file a Form I-129CW petition with USCIS. The worker may start work for the new employer as soon as the new employer files the petition. This must be a nonfrivolous Form I-129CW petition for a change of employer, meaning that the petition is filed on behalf of an individual who is in CW-1 status at the time of filing, for a bona fide job offer for which the individual meets the qualifications. If the petition is denied, the work authorization ceases.

How long is CW status valid?

CW-1 status will be granted for one year. The employer may request an extension of status by filing a new I-129CW petition. A dependent’s CW-2 status expires on the same day as the principal’s CW-1 status and can be extended when the principal’s CW-1 status is extended.

Does an individual with CW status lose that status if terminated from employment?

Yes, a foreign worker with CW nonimmigrant status will lose that status if he or she violates any of the terms or conditions that are associated with that CW status. When the violation is solely caused by termination from employment, however, a worker will not be considered to have violated his or her status if, within 30 days from the date of termination, he or she obtains new employment and an employer files a nonfrivolous petition on his or her behalf; but only if the foreign worker does not violate any other terms or conditions of CW status.

Thus, if new employment is found, the new employer must file a petition for the foreign worker before the end of this 30-day period in order for the foreign worker to remain lawfully present in the CNMI. Per the answer to Question 27, the foreign worker may only begin work with the new employer after that employer files the petition. If a new petition is not filed within 30 days, the foreign worker must leave the CNMI and that worker will be considered to be out of status effective on the date of termination of CW-1 employment. Any petition filed for that worker after the 30-day period will require an approved petition and a CW visa issued at a Consulate outside the CNMI before the foreign worker can return and start new employment in the CNMI.

I am a foreign worker who has been living and working lawfully in the CNMI, and my employer is willing to sponsor me for the CW visa. What steps do I need to take to obtain CW status in the CNMI?

The following steps need to be taken in this situation.

Step 1: Your employer must submit the following forms to sponsor you: 

·         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 is accurate and meets eligibility requirements.

Either you or your employer must also include the $85 biometrics fee with the petition (unless you are requesting consular processing). After your employer files the Form I-129CW, USCIS will contact you regarding when you will need to appear to provide your fingerprints and photograph at the USCIS Application Support Center in TSL Plaza in Saipan. 

Step 2: If your Form I-129CW is approved, USCIS will mail an approval notice to your employer. Make sure your employer gives you a copy of the approval notice. The approval notice and attached Form I-94 will indicate that your status in the CNMI has been adjusted to CW-1. The approval notice will also inform you of whether you need to go to a U.S. Embassy or Consulate abroad to seek visa processing of your CW-1 visa.

How do my dependents apply to receive CW status?

As derivative of your employer’s application for you to obtain CW-1 status, your dependents lawfully present in the CNMI may apply for CW-2 status. Applicants for CW-2 status must submit:

·         The $290 application fee;

·         The $85 biometrics services fee if applicable;

·         A copy of your approval notice and Form I-94 documenting admission to the CNMI in the CW-1 classification (if available); and

·         An Application to Change or Extend Status, Form I-539.

Dependents may not need to file Form I-539, depending on how the primary CW-1 status is being processed.