U.S. Citizenship and Immigration Services, DHS.
Final rule.
On October 27, 2009, the Department of Homeland Security published an interim rule creating a new, temporary, Commonwealth of the Northern Mariana Islands (CNMI)-only transitional worker classification (CW classification) in accordance with title VII of the Consolidated Natural Resources Act of 2008 (CNRA). The CW classification is intended to provide for an orderly transition from the CNMI permit system to the U.S. Federal immigration system under the immigration laws of the United States, including the Immigration and Nationality Act (INA). This final rule implements the CW classification and establishes that a CW transitional worker is an alien worker who is ineligible for another classification under the INA and who performs services or labor for an employer in the CNMI during the five-year transition period. CNMI employers may now petition for such workers. The rule also establishes employment authorization incident to CW status.
This final rule is effective on October 7, 2011.
Paola Rodriguez Hale, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW., Washington, DC 20529–2060, telephone (202) 272–1470.
The Commonwealth of the Northern Mariana Islands (CNMI or Commonwealth) is a U.S. territory located in the Western Pacific that has been subject to most U.S. laws for many years. Before November 2009, the CNMI administered its own immigration system under the terms of the 1976 Covenant with the United States.
Section 702 of the CNRA stated that U.S. immigration laws would apply to the CNMI starting approximately one year after the date of enactment, subject to certain transition provisions unique to the CNMI.
Since 1978, the CNMI has admitted a substantial number of foreign workers through an immigration system that provides a permit program for foreigners entering the CNMI, such as visitors, investors, and workers. Foreign workers under this program constitute a majority of the CNMI labor force. Such workers outnumber U.S. citizens and other local residents in most industries central to the CNMI's economy.
The CNRA contains several CNMI-specific provisions affecting foreign workers during the transition period. Section 702(a) of the CNRA mandates that:
• During the transition period, the Secretary of Homeland Security must “establish, administer, and enforce a system for allocating and determining the number, terms, and conditions of permits
• Foreign workers may qualify for the transitional worker classification if not otherwise eligible for admission under the INA.
• Transitional workers may apply to USCIS during the transition period for a change of status to another nonimmigrant classification or to adjust status to that of a lawful permanent resident in accordance with the INA.
• The transitional worker program will terminate at the end of the transition period unless the program is extended by the U.S. Secretary of Labor. Transitional workers must then adjust or change status to an immigrant or another nonimmigrant status under the INA if they want to remain legally in the CNMI. Otherwise, such transitional workers must depart the CNMI or they will become subject to removal.
In accordance with the CNRA, on October 27, 2009, DHS published an interim rule amending regulations at 8 CFR 214.2(w) to create a new CNMI-only transitional worker classification (CW classification) intended to be effective for the duration of the transition period.
On November 25, 2009, the U.S. District Court for the District of Columbia enjoined implementation of the interim rule.
The interim rule set forth the requirements and procedures for nonimmigrant status within the transitional worker classification. Specifically, the interim rule included provisions to:
• Classify transitional workers using an admission code of CW–1 for principal transitional workers and CW–2 for dependents;
• Allow aliens who were previously admitted to the CNMI under the CNMI nonresident worker permit programs to be granted CW status by USCIS;
• Allow workers, who would not be eligible for any other lawful status under the INA, to enter or remain in the CNMI as transitional workers during the transition period; and
• Establish eligibility criteria, limitations and parameters for the CW–1 nonimmigrant program as required by or consistent with an interpretation of the applicable provisions of section 702(a) of the CNRA, and prescribe procedural requirements for petitioners.
DHS has complied with the injunction by declining to accept any petition for CW classification under the interim rule or otherwise to implement the interim rule. The interim rule has been incorporated into the Code of Federal Regulations.
This final rule provides the requirements to obtain status as a transitional worker in the CNMI. The final rule adopts most of the changes set forth in the interim rule. The rationale for the interim rule and the reasoning provided in the preamble to the interim rule remain valid with respect to these regulatory amendments, and DHS adopts such reasoning in support of the promulgation of this final rule.
In response to the public comments received on the interim final rule, DHS has modified some provisions for the final rule. These changes are explained in detail in the summary of comments and responses and summarized below:
1. The final rule clarifies the authority and process by which applicants in the CNMI can be granted CW–1 or CW–2 status in the CNMI without having to travel abroad to obtain a nonimmigrant visa. Specifically, it clarifies that DHS may grant a section 212(d)(3)(A)(ii) waiver to an alien who is physically present in the CNMI and approved for an initial grant of CW–1 transitional worker status or CW–2 dependent status in the CNMI. Such aliens will be inadmissible under section 212(a)(7)(B)(i)(II) of the INA for lack of a CW–1 or CW–2 transitional worker visa issued by the U.S. Department of State (DOS) and also may (unless changing to CW–1 status from another nonimmigrant status under the INA) be aliens present in the United States without admission or parole and thus inadmissible under section 212(a)(6)(A)(i) of the INA. This final rule permits a waiver of those two grounds of inadmissibility for aliens lawfully present in the CNMI as defined by new 8 CFR 214.2(w)(1)(v) with appropriate documentation. DHS will determine, on a case-by-case basis, whether an alien is eligible for the waiver. The alien will not have to file a specific form or fee in order to request a waiver of these two grounds of inadmissibility.
2. The final rule describes how beneficiaries of approved employer petitions and their dependents (spouses and minor children) may obtain CW status. Principal beneficiaries and their dependents outside the CNMI will be instructed to apply for a visa. For principal beneficiaries within the CNMI, the petition itself (including the biometrics provided under new 8 CFR 214.2(w)(15)) serves as the application for CW–1 status. Dependents present in the CNMI 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. 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 (or such alternative form as USCIS may designate) may apply for a waiver of the filing fee based upon inability to pay as provided by 8 CFR 103.7(c).
3. The interim rule provided that an alien with CW–1 or CW–2 status who enters or attempts to enter, travels or attempts to travel to any other part of the United States without the appropriate visa or visa waiver, or who violates the 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. This final rule retains the travel restriction but provides a limited exception. Philippine nationals who hold CW status or intend to apply for admission to the CNMI in CW status may travel, if otherwise permissible, between the CNMI and the Philippines through Guam so long as the travel is on a direct Guam transit itinerary. Such direct Guam transit will not be considered a violation of the conditions of the Philippine national's CW status.
4. The interim final rule provided for attestations by petitioning employers and biometric collection from beneficiaries in the CNMI. This final rule strengthens the terms of the attestation that the employer must sign with respect to its compliance with the required terms and conditions of employment and compliance with applicable laws. It requires an employer to attest that it is an eligible employer and will continue to comply with the requirements for an eligible employer until such time as the employer no longer employs the worker.
5. The interim final rule provided for need-based waivers of petition filing fees. The final rule also provides for a need-based waiver of the filing fee for dependent family members seeking CW–2 status in the CNMI.
6. Consistent with the CNRA, the interim final rule provided for a maximum number of CW–1 visas of 22,417 for the time period between the rule's effective date and September 30, 2010. The numerical limitation for that period of time is now moot, so the limitation is revised to extend the 22,417 number to fiscal year 2011 (beginning October 1, 2010). The final rule reduces the number of CW visas by one (to 22,416) for the subsequent fiscal year, fiscal year 2012 beginning October 1, 2011. Unused numbers will not carry over from one fiscal year to the next.
7. The final rule clarifies the impact of a pending petition or application by providing that a foreign national with CW–1 status may under certain circumstances work for a prospective new employer after the prospective new employer files a Form I–129CW petition on the employee's behalf.
8. The final rule clarifies petition validity and admission periods. A petition is valid for admission to the CNMI in CW status during its validity period, and up to ten days before the start of the validity period.
9. The final rule clarifies that a biometric services fee may be collected for each beneficiary of a CW–1 petition and or the spouse or children applying for extension or change of status, in addition to the biometrics fee paid at the time of the initial request. The final rule also specifies that a biometric services fee may be required for each beneficiary for which CW–1 status is being requested and for each CW–2 on the application. Further, a biometrics services fee will be required in order to cover the costs of conducting the necessary background checks and for identity verification even when the biometrics of the applicant of beneficiary is stored and reused and not collected again in connection with the new request.
10. The final rule makes a number of other minor clarifying and updating changes, such as removing references to petitions filed before the transition program effective date since no such petitions could have been filed, clarifying the definition of “transition period” to extend the time period of the CW program to conform to any extension by the U.S. Secretary of Labor, and updating the definition of “lawfully present in the CNMI.”
11. The interim final rule proposed that denied petitions may be appealed to the USCIS Administrative Appeals Office.
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 Senator of the CNMI, and other interested organizations and individuals. DHS considered the comments received and all other material contained in the docket in preparing this final rule. This final rule does not address comments that were beyond the scope of the interim final rule, including those seeking changes to United States statutes, changes to regulations or petitions (outside the scope of the interim rule), or changes to the procedures of other DHS components or agencies. The final rule also does not address comments on the CNMI's government functions. All comments and other docket material are available for viewing at the Federal Docket Management System (FDMS) at
Of the 146 comments received, four comments supported the provisions in the rule as a whole and welcomed the efforts of DHS to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects of federalization and to maximize the Commonwealth's potential for future economic and business growth.
Most commenters expressed concerns over specific provisions in the interim final rule, such as: The transitional worker eligibility requirements; the exclusion of certain occupational categories; the transitional worker classification's allocation system; the petitioning requirements; the ability to acquire transitional worker status in the CNMI without a visa; the requirement to obtain a visa to re-enter the CNMI; and the length of the transition period. Several commenters suggested limiting the transitional worker classification to foreign workers already in the CNMI. Some opposed the blanket exclusion of certain occupational categories and stated that any exclusion would negatively impact the CNMI economy. Other commenters stated that DHS did not meet the requirement to establish and enforce a transitional worker permit system that provides for the allocation and reduction of workers. Many opposed the petitioning requirement and fees by suggesting the automatic conversion of all CNMI permits into transitional worker status. Others opposed the travel restrictions on the transitional worker classification and the visa requirement to re-enter the CNMI. Some suggested that DHS permit travel in the CW status, on the CNMI permit, or issue a waiver of the visa requirement.
The comments received and DHS responses are organized by subject area and addressed below.
Sixty-one commenters expressed concern, supported, or offered general suggestions regarding the transitional worker rule.
Two commenters stated that the CNRA did not authorize DHS to create a new status for workers. They argued that transitional worker status is not necessary because DHS only needs to control worker permits. The commenters suggested that the statute provides no basis for transforming the system of “permits” for employers into a system of “status” for alien workers. They argued that the term “permit” applies only to an employer and is not synonymous with the term “CW status” which applies only to a worker. The commenters added that DHS created a “status” for workers instead of following Congressional intent to create a “permit” for employers. The commenters wrote that, by doing so, DHS intended to restrict workers from moving from employment under Commonwealth-approved contracts to Federal permit-approved employment and back again during the first two years of the transition program. The commenters added that the statutory provision allowing “registration” of aliens present in the Commonwealth did not authorize DHS to create a separate “status” for persons so registered.
DHS interprets the CNRA to authorize DHS to administer the permit system in a manner deemed most reasonable and efficient.
Four out of 61 commenters suggested that the transitional worker rule be immediately implemented to avoid adverse effects on the CNMI's fragile economy. One of these commenters supported the rule as a whole and welcomed the efforts of DHS to provide for an orderly transition by addressing security, foreign labor, illegal activity, and the promotion of U.S. citizen hiring. Another commenter requested that the rule be finalized only after issuance of the congressionally mandated U.S. Government Accountability Office (GAO) report.
DHS appreciates the support of its efforts and the concerns expressed about minimizing the effect of the transition on the CNMI economy. Consistent with the statement of congressional intent in the CNRA, this final rule attempts to avoid adverse effects to the CNMI economy by providing as much flexibility as possible in administering the CW classification. See 48 U.S.C. 1806 note. DHS continues to work with other Federal agencies to coordinate implementation of the CNRA. Such coordination will extend to the statutorily mandated reports to Congress, including the GAO Report (GAO–10–553) released on May 7, 2010, and the recommendations contained therein. Accordingly, DHS has not adopted the suggestions that the final rule be immediately implemented or delayed, and this rule implements the CW classification.
Forty-one out of 61 commenters suggested that, to support a stable work force, foreign workers in the CNMI should be given lawful permanent residence, some other improved immigration status, or a pathway to U.S. citizenship. Many of the commenters suggested such status for guest workers who have worked in the CNMI for years. Others suggested lawful permanent residence, some other improved immigration status, or a pathway to U.S. citizenship for all foreign workers, regardless of their time in the CNMI. Some suggested such status for long-term guest workers with U.S.-born children or families within the CNMI.
Three of the commenters suggested that DHS create and grant a unique permanent status (Lawful Permanent Resident (LPR)-CNMI Only) to foreign workers who have been living in the CNMI for 3 years on the enactment date of the CNRA (May 8, 2008), and who are otherwise admissible. One commenter suggested a scoring system to decide how to grant permanent residence. One suggested a permanent CNMI-only H–2 program.
While these suggestions fall outside the scope of this regulation, it is important to note that the CNRA authorizes the Secretary of Homeland Security to create only a nonimmigrant classification in the Commonwealth during the transition period.
One commenter expressed concern regarding the complexity of the immigration laws and the effect of such complex laws on small businesses. DHS understands the concerns of the commenter and agrees that immigration law is complex. Nonetheless, DHS has no power to change the immigration laws and is unable to make any changes in the rule to address this commenter's concerns. DHS understands that the transition of the CNMI to the U.S. immigration system offers both benefits and challenges to the CNMI population. This rule promulgates provisions governing CW status consistent with other INA nonimmigrant categories. The rule attempts to incorporate standard elements from other nonimmigrant categories to maintain regulatory consistency. Employers wishing to
Five out of 61 commenters expressed concerns regarding the rule's effect on labor laws and the CNMI permitting system. One of these commenters stated that the rule violates the contract workers' rights. Four of the commenters stated that the rule sets up a labor permitting system that fails to address the many issues that have plagued the CNMI nonimmigrant guest workers by eliminating all of the existing labor protections under the previous CNMI immigration system. They added that the rule subjects foreign workers to abuses that currently affect the H–2 visa program and assert that such past abuses were eliminated from the CNMI program. Two of these commenters believe that, given such progress under CNMI law, DHS should support and not seek to eliminate the Commonwealth's guest worker program. The commenters argued that the interim rule failed to provide a reasonable mechanism to facilitate any cooperation between the two systems or any practical means for Commonwealth enforcement of its labor laws in connection with the Federal system.
The CNRA requires the discontinuation of the CNMI's previous immigration system. As required by the CNRA, this final rule creates a new transitional worker classification and recognizes CNMI-issued work permits during the first two years of the transition period.
This final rule incorporates CNMI labor law protections in its description of an eligible employer.
DHS understands the concern of commenters about the possible revival of past worker abuses that occurred in the CNMI. Like workers in other parts of the United States, all employees who work in the CNMI are protected by a variety of Federal civil rights, labor, and workplace safety laws that are enforced by the U.S. Department of Justice (U.S. DOJ) and the U.S. Department of Labor (U.S. DOL).
Two commenters suggested revising the rule to minimize the serious adverse effect and increased burdens. The commenters did not address any specific actions to take or what effects needed mitigation. DHS therefore has not changed the rule in response to this comment. The interim final rule was drafted consistent with expressed Congressional intent to minimize the potential adverse economic and fiscal effects of the federalization of the CNMI's immigration program. DHS is aware that the CNMI is experiencing a severe economic downturn during the current decline in the world economy. DHS formulated this rule to be as inclusive as it reasonably could within the parameters of the statute. Moreover, DHS has made additional changes in the final rule to that end. This final rule provides for an initial grant of CW–1 transitional worker status or CW–2 dependent status in the CNMI without having to travel abroad to obtain a nonimmigrant visa, for need-based waivers of the filing fee for dependent family members seeking CW–2 status in the CNMI, and, as discussed in more detail below, for a limited travel exception, where appropriate, to the otherwise applicable bar on travel elsewhere in the United States by aliens in CW status, for Philippine nationals who hold CW status and travel between the CNMI and the Philippines directly through Guam. Thus, DHS believes that it has minimized adverse effects and burdens caused by this rule.
Five commenters offered suggestions regarding the Department of the Interior's (DOI) Report on the Alien Worker Population in the Commonwealth of the Northern Mariana Islands (the “DOI Report”).
The DOI Report was released in April 2010. DHS continues to work together with other Federal agencies to coordinate the implementation of the CNRA provisions in the Commonwealth. Such coordination extended to the statutorily mandated reports to Congress and any recommendations contained therein.
The specific comments are organized by subject area and addressed below.
Twenty-six commenters expressed concern or offered suggestions regarding the rule's eligibility requirements.
Five out of 26 commenters suggested that transitional worker status should be limited to guest workers present in the CNMI and should not be available to those abroad. Two of these commenters suggested that the rule intends to admit new foreign workers to the Commonwealth without regard to economic impact or regulatory effect on the Commonwealth. The commenters suggested that the likely effect will be to encourage the entry of very low-wage, unskilled workers, who would displace experienced on-island foreign workers, resulting in unemployment and incentives to fall into illegal status.
Eighteen of 26 commenters suggested that the transitional worker program provide a hiring preference for foreign workers currently in the CNMI. Three of these commenters suggested that DHS place a numerical limitation on transitional workers coming from abroad in order to provide foreign workers in the CNMI with the hiring preference. Six of these commenters suggested that DHS conduct a registration, as mentioned in the CNRA, of alien workers present in the CNMI to ensure that any jobs that need to be performed by the alien workforce would first be offered to on-island workers. Another commenter suggested that DHS conduct a registration to determine the number of guest workers in the CNMI and their corresponding job categories. The commenter wrote that the data on the available workforce may deter employers from hiring abroad. One commenter suggested a hiring preference for Filipino foreign workers in the CNMI. Another suggested that the transitional worker program provide a hiring preference for guest workers present in the CNMI for over 5 years.
The transitional worker program will be available to two groups of aliens in general: (1) Those who are present in the CNMI and (2) those who are abroad.
While information on guest workers and their current job categories may be helpful, DHS does not plan to limit the availability of transitional workers to guest workers currently on the islands. The CNRA requires that the allocation of transitional worker visas be reduced to zero by the end of the transition period, but it does not limit eligibility for the visa to foreign workers in the CNMI.
Three commenters expressed concern regarding the rule's requirement that the transitional worker classification be limited to nonimmigrant workers who would not otherwise be eligible for another INA classification. Two of these commenters argued that such a requirement is a misinterpretation of the law and will deprive the Commonwealth of skilled workers. The commenters stated that the CNRA's intent is to preserve a choice: Workers may choose either transitional worker status or another nonimmigrant status. All three commenters were concerned that certain aliens eligible for an INA-based status may only be eligible for transitional worker status because employers would be unable to petition for other INA classifications due to financial difficulties. The commenters stated that they would be unable to meet the income requirements for other INA classifications.
DHS disagrees with these comments. The CNRA requires that the transitional worker classification be used only for foreign workers “who would not otherwise be eligible for admission under the [INA].” 48 U.S.C. 1806(d)(2). This final rule states that guest workers eligible for other INA classifications at the time of a petition for CW status must apply for such status.
Fourteen commenters offered suggestions, or opposed the rule's requirements, for employers and the proposed exclusion of certain occupational categories.
Two commenters stated that the rule's provision with respect to terms and conditions of employment and transfers will likely lead to abuses. The commenters stated that the DHS rule requires only that an employer “[o]ffer terms and conditions of employment
DHS agrees with the comments that the rule would be strengthened by further incorporating the terms and conditions of an employment requirement into the attestation requirement for employers. DHS has added a requirement that the employer attest that it will comply with the requirements for an eligible employer, which include offering appropriate terms and conditions for the intended CW–1 employment.
The interim final rule did not exclude any occupational categories from eligibility for CW workers, but DHS indicated that it was considering excluding dancing, domestic workers, and hospitality workers based upon human trafficking concerns, and specifically invited comment on this subject. Six out of 14 commenters opposed a potential final rule excluding certain occupational categories in order to combat human trafficking and sexual exploitation. These commenters stated that prohibiting a particular occupation will not effectively combat human trafficking. Some argued that the rule hurts the CNMI's successful efforts to stop trafficking under its 2007 reform law. Others stated that the exclusion of the proposed categories will not help deter the worker exploitation problem because exploitation occurs in a wide range of occupational categories and a foreign worker can technically enter any of those occupational categories. The commenters added that a blanket exclusion of any occupational category or legitimate business that supports the CNMI economy runs counter to the CNRA's stated purpose of providing flexibility to maintain existing businesses and expanding tourism and economic development in the CNMI. They also argued that the CNRA does not provide statutory authority for the blanket exclusion and that a blanket exclusion is inappropriate and will cause further economic harm.
Two other commenters added that the exclusion of occupations that serve the tourist industry is not justified and will cause substantial harm. They stated that the proposed exclusion is based on a concern regarding abuse against women and, as such, is discriminatory because it is not gender neutral. The commenters noted that such restrictions are unnecessary because prostitution is a crime under CNMI law.
Commenters suggested that DHS offer protection from exploitation through a system of employment regulation combined with enforcement of the laws intended to protect guest workers regardless of occupational category. The commenters suggested that DHS conduct site visits and that any exclusion or employer debarment be based on a specific finding indicating that a particular business is violating a law, not based on evidence of past abuses. The commenters argued that the rule's requirement that employers must be engaged in legitimate business is not the appropriate regulatory means to address the DHS concern.
DHS agrees that exploitation can occur in any occupational category. The proposed exclusions were supported by the findings of a GAO report and Congressional hearings, which indicated that the excluded occupational categories have been prone to widespread abuse. U.S. Gov't Accountability Office, GAO–08–791,
Five commenters suggested that the rule should allow domestic workers as transitional workers. One of these commenters disagreed with the requirement that only businesses will be allowed to petition for domestic workers as CW workers. That commenter also argued that individual households should be allowed to employ domestic workers directly and the renewal of the contracts should be based on the proper tax filings of the workers.
Two additional commenters argued that the definition of a “legitimate business” cannot be used to bar households from employing caregivers. The commenters argued that the determination as to “legitimate business” only relates to the task of determining whether an adequate number of workers are available. As such, they stated that domestic workers are currently entitled to work until the transition period ends. The commenters further stated that DHS may not “disqualify an entire business on the basis of `illegal' activity, except on the basis of conviction of a crime, and may not impute the crime of an officer to the entire business without due process.”
The CNRA transitional worker provisions were intended to address the needs of legitimate businesses.
For the purposes of the transitional worker program, the final rule states that a legitimate business is 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 and meets applicable legal requirements for doing business in the CNMI.
Additionally, a stated purpose of the CNRA is to combat human trafficking and other widespread abuse.
It is important to note that a household worker may still be eligible for transitional worker status if a business petitions for the worker. The occupational category itself is potentially eligible for the transitional worker status. DHS is only limiting such filings for CW workers to domestic service companies operating as legitimate businesses. Therefore, it is possible that domestic workers qualify for transitional worker status through employment by a business which places domestic workers in individual households.
One commenter suggested that domestic workers should be offered permanent immigration status. As previously discussed, the CNRA only authorizes DHS to create a nonimmigrant classification to ensure adequate employment in the Commonwealth during the transition period.
Thirty commenters offered suggestions for, or opposed, the transitional worker allocation system.
Three commenters stated that DHS did not implement a transitional work permit system as required by the CNRA. They stated that DHS was required to establish and enforce a transitional work permit system in the CNMI that provided the criteria for allocating transitional workers to employers or industries during the transition period.
The CNRA requires the Secretary of Homeland Security to establish a permit system for prospective employers based on any reasonable method.
Additionally, the CNRA requires an annual reduction in the number of permits and total elimination of the CW classification by the end of the transition period.
One commenter stated that the CNRA does not authorize the issuance of regulations in piecemeal form over time that address various aspects of the work
As noted above, the CNRA provides that DHS may base the system on any reasonable method.
The CNRA also mandated that DHS provide the Commonwealth with flexibility to maintain existing businesses and develop new economic opportunities yet required an annual reduction in the number of permits and total elimination of the CW classification by the end of the transition period.
One commenter suggested that DHS adopt the CNMI's proposed revision of the interim rule with regard to assessing the total alien work force and total work force. The same commenter took issue with the figures DHS used to project the number of CW grants of status. The commenter stated that the DHS estimate of 13,543 foreign workers in-status and 1,000 workers out-of-status who may be brought into lawful status under CNMI law was incorrect. The commenter stated that DHS incorrectly estimated the number of immediate relatives of foreign workers who may be eligible for CW–2 status. The commenter further stated that DHS's 2010 projections were also incorrect because most workers will be working under CNMI-issued permits and most employers will be employing workers under existing CNMI-approved contracts. As such, these workers would not need to enter the Federal immigration system for at least two years.
DHS disagrees with the commenter and believes that its estimate of the number of foreign workers is reasonable. The final rule sets forth the maximum number of persons who may be granted transitional worker status based on the CNMI government estimate of the nonresident workers as of May 8, 2008, the date of enactment of the CNRA. The 22,417 number was the total number of foreign workers working in the Commonwealth, according to the CNMI government, on that date.
The interim final rule set a numerical limitation for the first year of the transition period (November 28, 2009 through September 30, 2010) at 22,417, with the limitation for fiscal year 2011 (beginning October 1, 2010) and subsequent fiscal years to be published via subsequent Notice in the
Four commenters stated that DHS did not implement the statutory requirement that DHS establish and enforce a transitional work permit system in the CNMI that provides for a reduction in the number of transitional workers to zero by December 31, 2014. They stated that the rule only established a numerical cap. Without a reduction plan, employers cannot operate their businesses and plan for future access to foreign labor. Similarly, two commenters requested clarification on DHS' intent to draw down foreign workers to zero by the end of the transition period. One of these commenters also argued that the rule did not identify any criteria or methodology that will be used to reduce the number of permits on an annual basis. Specifically, the commenter disagreed with the DHS assertion that a permit reduction plan was not established due to a lack of specific data on the foreign worker population and due to the uncertainty of the CNMI's future economic conditions. The commenter stated that the DHS claim that specific data was unavailable was later impeached when DHS offered very specific figures regarding the number of foreign workers in the CNMI and suggested that DHS should have chosen an alternative set forth in the 2008 GAO report. Those alternatives set forth a range of possible outcomes in terms of impact on the Commonwealth's economy.
As discussed above, the final rule sets forth the maximum number of workers who may be granted transitional worker status during fiscal years 2011 and 2012.
DHS did not establish a methodology for reducing the number of transitional workers, ultimately to zero by the end of the transition period. DHS believes that any methodology will require flexibility to adjust to the future needs of the CNMI economy. A methodology or formula set forth in a regulation does not provide such flexibility. Additionally, the CNRA only requires that DHS reduce the number of transitional workers on an annual basis.
Two commenters suggested that transitional worker status should be limited to foreign workers present in the CNMI only, as opposed to any workers abroad sought to be imported under the transitional worker program. One of these commenters argued that the shortage of jobs in the Commonwealth makes it unnecessary for employers to go abroad for additional employees. One commenter suggested that such a limitation will help curb the incidents of human trafficking and help in the mandated reduction of transitional workers. Another commenter argued that allowing workers to come to the CNMI conflicts with the statutory goal of phasing-out all contract workers. The commenter added that the goal to ultimately phase-out contract workers would be furthered by preventing hiring from abroad and providing transitional worker status only to the current foreign work force in the CNMI.
While the CNRA requires that the allocation of transitional worker classifications be reduced to zero by the end of the transition period, it does not limit eligibility for the visa to foreign workers in the CNMI on or before the transition program effective date.
Eleven commenters suggested that DHS grant lawful permanent resident status, or some other immigration status, to guest workers. The commenters indicated that such a measure would stabilize the work force and help reduce the number of transitional workers to zero by the end of the transition period as required by the CNRA. One of these commenters suggested that DHS allow self-petitioning and make the CNMI-only classification a permanent status.
As previously mentioned, the CNRA does not authorize DHS to create a permanent CNMI classification.
Two commenters expressed concern about the need to assess the CNMI labor needs and use those needs to craft any reduction plan. One of these commenters suggested that DHS accurately assess the CNMI's total labor needs in order to avert a collapse of its economy. The commenter asserted that guest workers are most essential to the economy because other residents of the CNMI are reluctant to take the jobs that foreign workers will accept. The commenters also suggested that phasing out the transitional workers by 2014 may result in a chaotic situation for the CNMI's economy.
DHS understands that the CNMI economy has been based on a workforce made up mainly of workers from other countries. To address this concern, Congress included a provision in the CNRA that allows for an extension of the transitional worker classification for up to five years upon a finding that the CNMI's labor needs are not fulfilled with INA classifications or domestic sources.
The second commenter stated that the rule ignores the current labor needs of the CNMI and creates uncertainty with respect to the availability of an adequate labor force. The commenter emphasized that it is extremely important to establish how DHS will phase out transitional workers because the reduced labor pool directly affects the CNMI's Gross Domestic Product. As previously mentioned, DHS did not provide a reduction in an attempt to provide the CNMI economy with the flexibility to grow or constrict its workforce according to market forces. Still, according to data on the number of foreign workers currently in the CNMI, the maximum number allowable under this rule appears to be quite adequate to meet the needs of CNMI businesses. Therefore, no changes to the final rule were made as a result of these comments.
Two commenters suggested that the CNMI-issued permits and CNMI-approved employer contracts should be the foundation for the first two years of the transition period. These commenters further suggested no reduction in the number of foreign workers allowed legally in the CNMI should occur during those two years. The commenters suggested that the DHS rule state specifically that all CNMI-issued permits and contracts in force prior to the transition date on November 28, 2009, remain completely outside the Federal system until November 27, 2011, two years after the transition date.
DHS notes that the CNRA contains a grandfather provision, which grants work authorization to aliens in the CNMI with valid CNMI-issued work permits. See 48 U.S.C. 1806(e)(2). Work authorization is valid for the length of the work permit or until two years after the start of the transition period, whichever is shorter.
Two commenters suggested the rule include a plan under which DHS would collaborate with the U.S. Secretary of Labor to make the necessary assessment with respect to a five-year extension of the transition period no later than November 2011. The commenters also suggested that no reductions in the Commonwealth's workforce be made until the Secretary of Labor issues a determination on the extension.
Under the CNRA, only the Secretary of Labor has the authority to extend the transitional worker provisions of the transition period up to an additional five years. See 48 U.S.C. 1806(d)(5). DHS will continue to consult with U.S. DOL on all CNMI transition policies and issues; however, the requirements in the CNRA for extending the transition period are sufficient to address the issue. DHS does not believe that it is necessary, or appropriate, to include a deadline in this rule for U.S. DOL to make a determination on extending the transition period. Therefore, no changes are made as a result of these comments.
Fifty-six commenters expressed concern or offered suggestions regarding the rule's petitioning requirements.
Eighteen commenters suggested that DHS issue an automatic conversion of all valid CNMI entry permit holders to transitional worker status. Some of these commenters opined that an automatic conversion into CW status, for one or two years, would help facilitate travel.
The commenters' suggestions to automatically convert valid CNMI entry permit holders into transitional worker status cannot be adopted. The CNRA requires DHS to recognize valid CNMI immigration status (and prohibits removal of such aliens for being present in the CNMI without admission or parole) until the expiration of such status up to a maximum of two years after the transition date.
DHS cannot automatically convert all permit holders to transitional worker status because the CNRA also requires
DHS will recognize permits as required by the CNRA. Otherwise, DHS will issue CW status in one-year increments in order to properly administer the allocation and annual reduction mandated by the CNRA.
DHS has made this accommodation in the final rule to address the unique circumstances in the CNMI, including the lack of familiarity in the CNMI with Federal immigration processes and statuses relative to other U.S. jurisdictions because Federal immigration law has only applied since November 28, 2009 and most aliens in the CNMI remain and work in the Commonwealth under umbrella permits or other authorization issued by the CNMI government before that date; the expiration of those permits on November 27, 2011; the adverse economic situation in the CNMI; and the legislative direction in the CNRA to seek to minimize adverse effects of the federalization of immigration authority.
Under new 8 CFR 274a.12(b)(23), the continuing work authorization will continue until DHS makes a decision on the application seeking CW status in the CNMI; that is, until either the application is granted and CW status provided to the alien worker, or until it is denied. Denial of an application for grant of CW status in the CNMI may not be appealed.
This continuing work authorization provision applies only to aliens in the CNMI seeking CW–1 nonimmigrant status. It does not provide work authorization to any spouses or children seeking CW–2 nonimmigrant status, even if they are work authorized in the CNMI on or before November 27, 2011, as the CW–2 status sought does not itself provide any work authorization. If spouses or children wish to be work authorized in CW status, an employer must petition for them as a CW–1 principal. In that case the continuing work authorization would apply to them to the same extent as to other aliens applying for CW–1 status.
The continuing work authorization pending adjudication provided by this provision is not a grant of CW nonimmigrant or other lawful immigration status; CW status is only provided if and when a favorable decision is made on the application. The final rule does, however, make a conforming clarification to the definition of “lawfully present in the CNMI”.
Thirteen commenters suggested that DHS should automatically convert all valid CNMI permits to transitional worker status to avoid the economic impact caused by the duplication of fees. Two commenters suggested that DHS not charge employers any additional fees to obtain transitional worker status for their renewed contract workers. One commenter requested that DHS not impose fees for employers as they will retaliate against the employees for the fees. Two commenters stated that DHS has no authority to require aliens to pay for filling out a form, to pay for providing biometric data, or to pay any other fee of any kind. These commenters also said that the rule's increased fees will cause substantial harm to the foreign workers currently in the Commonwealth.
The CNRA requires DHS to establish, administer and enforce a CNMI transitional worker system under the INA. As discussed above, DHS does not interpret the CNRA simply to permit automatic conversion of CNMI statuses to transitional worker status without an individual employer petition and adjudication of the employer's and worker's eligibility.
One commenter expressed a concern regarding the guest worker's ability to pay the fees for a transitional worker petition. The commenter explained that the guest worker's earning capacity is based on the Commonwealth's minimum wage, which is far below the U.S. minimum wage, and this makes the petition fees unreasonable for the workers. DHS understands this concern and reminds guest workers that the petitioning employer will pay the applicable petition fees. The employee is only responsible for paying the biometrics fee both at the time of the initial grant of status, and as requested by USCIS for renewals or extensions of status. An employer may pay the biometrics fees and the CW–2 fees for their employees, but that is not required. The biometrics services fee will be collected to cover the costs of the background check and identify verification whether or not the previous biometrics are stored and reused or if the employee or derivative beneficiary must appear again at the Application Support Center (ASC) for their collection. Nevertheless, the biometrics fee may be waived upon proof of inability to pay on a case-by-case basis.
As with the fee for petitions for nonimmigrant workers, the fee for the Application to Extend/Change Nonimmigrant Status is generally not eligible for a waiver. However, DHS has clarified in this final rule that it has authority to waive the Form I–539 fee based on inability to pay in the case of an alien seeking CW–2 derivative nonimmigrant status as the spouse or child in the CNMI of a CW–1 worker, as the interim final rule referred only to the Form I–129CW in its reference to fee waiver for aliens applying for CW–2 status.
One commenter stated that petitioners should be required to pay petition fees and minimum wage for their employees. Another commenter stated that the rule imposes severe limitations on the ability to freely transfer jobs and hire from the existing labor pool.
DHS agrees with the commenter regarding payment of petition fees and wages. Consistent with other INA classifications, CNMI CW classification petitioners must pay petition fees unless eligible for and granted a fee waiver.
DHS disagrees with the second commenter's assertion that this rule imposes severe limitations on the ability to freely transfer jobs. This final rule incorporates standard elements of the Federal immigration system, including the requirement that an employer petition for an employee. There is nothing to prevent that employee from transferring freely to another job upon filing of a petition for their services by a new employer.
However, in light of this commenter's concern, DHS believes it is important to include additional flexibility for a CW–1 worker seeking to transfer to a new employer. The CNRA mandates that an alien “shall be permitted to transfer between employers in the Commonwealth during the period of such alien's authorized stay therein, without permission of the employee's current or prior employer, within the alien's occupational category or another occupational category the Secretary of Homeland Security has found requires alien workers to supplement the resident workforce.”
DHS is able to address the general concern regarding transfer of employment by clarifying that a foreign national with CW–1 status may work for a prospective new employer after the prospective new employer files a Form I–129CW petition on the employee's behalf.
DHS emphasizes that this provision for change of employer does not intend to authorize extended continued presence in the CNMI for the purpose of seeking employment after termination of CW–1 employment. In general, a CW–1 worker loses CW–1 status upon any violation of CW–1 status (including termination of the qualifying CW–1 employment), and a loss of CW status ends the period of authorized stay at that time.
By allowing employer petitions for change of employment at any time during the CW–1 alien's current employment, and providing a limited opportunity for an employer to petition for an alien in the CNMI after termination of employment, DHS believes that it is providing opportunities that will improve the ability of employers to respond to economic conditions in the CNMI and reduce unnecessary travel costs to obtain visas abroad and other burdens on workers, without enabling unemployed former CW–1 workers to remain long-term in the CNMI for the purpose of seeking new employment.
DHS has made a conforming change to the CW–1 employment authorization provision, since in a change of employer situation the CW–1 employment will not necessarily be “only [for] the petitioner through whom the status was obtained.”
DHS disagrees with the commenter's assertion that this rule imposes severe limitations on the ability to hire from the existing labor pool. This rule provides the flexibility for employers to petition for employees from within the CNMI or from abroad.
Two additional commenters stated that the employer attestation requirement will invite widespread abuse, will actually decrease the job opportunities available to U.S. workers, and will remove any means for enforcing workforce participation requirements designed to maximize those jobs for U.S. workers.
DHS disagrees with the commenters. DHS has effectively instituted similar attestations in other employment-based categories such as those for temporary agricultural workers (H–2A visas) and temporary nonagricultural workers (H–2B visas). We think the attestation issued with this rule will serve to effectively enforce the necessary requirements and prevent fraud and abuse within the immigration system. Coordinated efforts between agencies within and outside DHS ensure the protection of U.S. citizen and lawful permanent resident workers. Additionally, CNMI employers will be able to reasonably convert their foreign worker dominated workforce to a work force of U.S. citizens or lawful permanent residents by phasing out the use of the transitional worker classification by the end of the transition period. DHS will work with other Federal agencies to review the CNMI's workforce requirements and Federal law compliance. Therefore, this rule retains the provision on employer attestations from the interim final rule. In addition, DHS has strengthened the attestation requirements with respect to terms and conditions of employment.
One commenter supported the requirement that the petitioning employer pay the alien's reasonable cost of return transportation 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. The commenter added that this requirement was deleted from the CNMI Government's umbrella permit system.
Two other commenters stated that the repatriation clause was very limited and will place the burden on foreign workers to pay their own way back home. These commenters suggested that the Commonwealth's system is superior to that in the interim final rule. That system required the final employer of record to pay for a return ticket when the worker became unemployed for any reason. The CNMI also required the posting of a bond to help ensure that this obligation would be met.
While DHS understands these concerns, DHS does not believe it necessary to modify or make the repatriation provision in the final rule more stringent. The interim final rule required employers to 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 authorized admission.
Four commenters expressed concern that the rule only empowers the employer to petition for guest workers. Two of these commenters stated that employees should be able to apply for their own status. They suggested that the petition requirement should only be imposed on individuals who have not resided in the CNMI for a minimum number of years. Another commenter stated that the employer's petition
DHS has not adopted the commenters' suggestion that employees be allowed to self-petition. The purpose behind employment-based visa programs is to ensure an adequate number of qualified employees to effectively operate the businesses. Such programs permit U.S. employers to hire foreign workers on a temporary or permanent basis to fill jobs essential to the U.S. economy.
There are various Federal laws enforced by the U.S. Departments of Justice and Labor, and other agencies that prohibit workplace discrimination and regulate issues such as wages, benefits, safety, and health care. Those protections also apply to foreign workers in the United States. U.S. citizens may report employer abuses to the appropriate state and Federal agencies for enforcement action. Thus, no changes have been made to the final rule as a result of these comments.
One commenter stated that DHS should allow employers to petition for multiple beneficiaries regardless of occupational category, as long as the beneficiaries are already in the CNMI. The commenter stated that this process would help employers transfer all the CNMI permit holders to an INA status and, in turn, result in a more orderly transition and phasing-out of the CNMI's nonresident contract worker program. Another commenter also suggested a multiple beneficiary process.
DHS encourages all CNMI permit holders to convert to a Federal immigration status as soon as possible. That is the intent of the final rule's provisions allowing multiple beneficiaries on the same CW petition if the beneficiaries will be performing the same service, for the same period of time, and in the same location.
Two commenters stated that the rule's provision that allows employment by more than one employer is not a viable way to control subcontracting and may lead to large-scale fraud as previously experienced in the CNMI. DHS understands this concern regarding a foreign worker's ability to work for more than one employer. However, Congress clearly expressed its intent that the transition to the INA be eased as much as possible and included provision for the continued use of alien workers.
Two commenters opposed the validity period of the CW classification provided in the interim rule. They stated that limiting workers to only ten days in the CNMI after their employment is completed is unrealistically short and unfair to those with pending disputes or skills that can be used in the CNMI. As a result of this limited validity period, nonimmigrant resident aliens can be deported even if they have a claim pending against an employer. The commenters further asserted that this result is contrary to opinions issued by the CNMI federal district court which require both an extension of stay in the Commonwealth to prosecute claims and temporary work opportunities while awaiting the completion of the case or claim.
The commenters did not cite specific cases, but DHS is aware of decisions from the CNMI courts relating to the removal of aliens with pending labor cases and of case law from the U.S. District Court for the Northern Mariana Islands relating to the employment privileges of aliens under former CNMI immigration law.
Another DHS component, U.S. Immigration and Customs Enforcement (ICE), has the authority to institute removal proceedings for unauthorized aliens. DHS respects the importance of labor claims, and ICE may exercise its prosecutorial discretion as appropriate when considering the possible removal of aliens who are pursuing such claims. As with other employment-based statuses under U.S. immigration law, court actions and removal proceedings are independent of what regulations may provide regarding the validity of CW status. It is not necessary to spell out in regulations the effects of such claims on a nonimmigrant's status.
This final rule retains the substance of the interim final rule's provision stating
Two commenters suggested that transitional worker petitions be processed at the Saipan Application Support Center instead of the California Service Center. Petitions not typically requiring an interview as part of the adjudication process, including employment-based petitions such as CW petitions, are normally processed at USCIS Service Centers. USCIS has found this to be the most efficient and cost-effective approach. Due to the CNMI's geographic location, DHS has determined that CW petitions will be processed by the California Service Center (CSC) in Laguna Niguel, California. Such centralization ensures that one specialized unit processes all the CNMI filings in order to ensure more consistent adjudications. The comment has not been adopted.
Two commenters criticized the rule's reliance on a paper-based system and categorized it as wasteful and time consuming. DHS agrees that direct, electronic or online interactions and information transmittal is the most efficient method to use when possible. DHS uses electronic procedures whenever that option is available. Nevertheless, for most filings, a combination of electronic and paper-based filing must still be utilized. DHS continues to strive for efficiency and the transformation of its systems; however, DHS is not able to accept this petition via electronic filing at this time. Nonetheless, this rule does not mandate a paper-based system and a transition to electronic submission could be effectuated when that becomes a viable option.
Three commenters offered suggestions or requested clarification on the process for conferring transitional worker status to individuals currently in the CNMI.
Two commenters pointed out that the rule does not specifically indicate how CNMI permit holders will be able to obtain a Federal immigration status while in the CNMI. The commenters noted that these aliens have not been admitted by a U.S. immigration officer and thus are not technically eligible to change their status under current regulations. The commenters proposed an amendment to 8 CFR part 248 to provide DHS with the authority to change their CNMI status to Federal immigration status. They stated that this change would alleviate the need for all aliens to depart the CNMI in order to obtain the CW–1 status abroad through the consular process. One of the commenters also proposed an amendment to 8 CFR part 245 to provide DHS with the authority to adjust the CNMI status of such aliens to immigrant categories under the INA.
As noted, all aliens present in the CNMI on the transition date (other than U.S. lawful permanent residents) became present in the United States without admission or parole by operation of law.
The
This waiver provision is based upon the specific language in section 212(d)(3)(A)(ii) that in the case of an alien “in possession of appropriate documents” who is seeking admission as a nonimmigrant, most grounds of inadmissibility may be discretionarily waived.
In the case of spouses and children present in the CNMI who are seeking a derivative grant of CW–2 nonimmigrant status based upon a principal CW–1 approved petition, to satisfy the “appropriate documents” requirement
Therefore, the final rule clarifies that DHS may, without additional application or fee, grant a section 212(d)(3)(A)(ii) waiver to an alien approved for an initial grant of CW–1 transitional worker status or CW–2 dependent status in the CNMI and in possession of appropriate documents.
DHS also has revised 8 CFR 214.2(w)(14) to describe more clearly how beneficiaries of approved employer petitions and their dependents (spouses and minor children) may obtain CW status. Principal beneficiaries and their dependents outside the CNMI will be instructed to apply for a visa. For principal beneficiaries within the CNMI, the petition itself (including the biometrics provided under new 8 CFR 214.2(w)(15)) also serves as the application for CW–1 status. Dependents present in the CNMI 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 the CW–1 petition is approved. 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).
The final rule also makes conforming changes to the description of eligible principal and derivative aliens with respect to inadmissibility, to confirm that the alien must not be inadmissible, except to the extent that any applicable ground of inadmissibility is overcome with the appropriate waiver.
One commenter requested clarification on the biometric fee requirement and the availability of a fee waiver. Aliens present in the CNMI generally will not have previously supplied biometric information to the Federal government. As a result, the Federal government will not have conducted the necessary background checks required for most immigration benefits under the immigration laws of the United States. DHS will require applicants for CW status to provide biometrics.
Seventy-nine commenters expressed concern about, or offered suggestions regarding, the rule's lawful presence and travel requirements.
DHS received five comments regarding the rule's lawful presence requirement. One commenter suggested that transitional worker status should be afforded to all alien workers with legal CNMI status. Four commenters expressed concern regarding the requirement that an employer petition for a guest worker while she or he is in lawful CNMI status. Three of these commenters stated that this requirement will negatively impact guest workers with expiring or expired umbrella permits who do not have a sponsoring employer. In order to alleviate this problem, one commenter suggested that DHS allow all umbrella permit holders to self-petition when a sponsoring employer is not available. Another stated that the requirement does not take into account the need for new foreign workers necessary to support new projects.
DHS is aware of the interest of employers in the CNMI to bring in new hires. The interim rule accordingly provided that the CW classification would be available to aliens coming from abroad.
The interim rule's intent to encourage legal compliance before the transition program effective date is now moot, as that date has passed. Nonetheless, DHS has decided to maintain a lawful presence requirement to remove the incentive for a person to enter the CNMI illegally or overstay his or her visa or status expiration date to seek employment in the CNMI through the CW program.
DHS is unable to adopt the commenter's suggestion that DHS allow all umbrella permit holders to self-petition when a sponsoring employer is not available. The CNRA requires that DHS establish a system for allocating “permits to be issued to prospective employers * * *.”
Six commenters out of 79 expressed concern regarding the umbrella permit issued by the CNMI government and its effect during the transition period. Five commenters expressed concern regarding the validity of the umbrella permit under U.S. immigration law. One commenter stated that the DHS recognition of the umbrella permit should be accompanied by provisions that address an employer's responsibility for a former foreign worker with an expired CNMI labor contract. Another commenter expressed concern that the rule did not contain a mechanism to ensure that U.S. workers are not displaced by the foreign worker pool created through the recognition by DHS of the CNMI umbrella permit. The commenter suggested that foreign workers with a valid CNMI work permit be allowed to remain in the CNMI until November 2011 without additional limitations, even if they are not employed. A sixth commenter suggested that DHS provide aliens with pending cases before the CNMI Department of Labor with work authorization.
DHS fully considered these comments regarding the validity of the umbrella permits, how they relate to unemployed workers, the protection of U.S. workers, and how they relate the objectives of the CNRA. DHS believes that the existence of umbrella permits does not frustrate implementation of the CNRA or other U.S. immigration laws in the CNMI or present problems with the implementation of the transitional worker program. As provided in the CNRA and this rule, work authorization is allowed with a valid CNMI immigration status until such status expires, or for two years after the transition date.
DHS cannot make amendments to the rule in response to commenters' suggested methods for dealing with individuals with work permits but no employment (due to, for example, an expired contract or a labor dispute). The transitional worker program provides the “number, terms, and conditions of permits to be issued to prospective employers for each such nonimmigrant worker,” and was not intended to protect residents with CNMI permits but no employment.
As for the comment suggesting additional provisions to ensure that U.S. workers are not displaced by CNMI umbrella permit holders, no changes to the regulation have been made. The number of available U.S. workers relative to aliens will be considered when deciding on the level of transitional workers that may be required in each successive year of the transition period. Such consideration will address whether sufficient U.S. workers are available to meet the labor needs of the CNMI. USCIS has issued information that clarifies regulations and policies and their application in the CNMI.
Fifteen out of 79 commenters stated that the inability of DHS to offer concrete options for guest workers has led to a fear of traveling abroad due to the uncertainty of re-entry into the CNMI. Five of these commenters expressed concern regarding the rule's visa requirement to re-enter the CNMI after travel abroad given what they characterized as the probability of visa denial by the U.S. Embassy. Some commenters suggested that DHS issue the transitional worker status without a travel restriction.
DHS is aware of the public's concern regarding the burden of obtaining a visa to re-enter the CNMI. The CNRA provides for the creation of a geographically limited nonimmigrant classification and expressly states that such classification “shall not be valid for admission to the United States * * * except admission to the Commonwealth.”
As previously noted, the transitional worker does not require a CW visa to legally remain and work in the CNMI. This final rule clarifies that such status may be granted to the beneficiary directly in the CNMI.
While the I–94 is evidence of lawful immigration status, Federal regulations require that a nonimmigrant return the I–94 departure record to U.S. officials upon exiting the United States.
However, as discussed further below, DHS is providing in this final rule an exception to limitations on travel to Guam in CW status that will permit nationals of the Philippines to transit Guam when travelling to or from the Philippines. Those CW nonimmigrants may travel to the Philippines through Guam without violating their CW status. CW nonimmigrants still must obtain a visa to return from the Philippines through Guam to the CNMI, but may apply to CBP upon arrival in Guam for a discretionary exercise of parole authority to enable their onward travel and admission to the CNMI in CW status. DHS hopes that this will alleviate to some degree travel problems arising from the general limitation of CW status to the CNMI.
Eleven commenters stated that transitional worker status holders should be permitted to leave and re-enter the CNMI on CW status alone, without first obtaining U.S. visas in their countries of origin. DHS notes that there is a distinct difference between a visa and a status. All nonimmigrants
Fourteen commenters suggested that an automatic CW–1 visa should accompany the issuance of CW–1 nonimmigrant status in order to give nonimmigrant workers and their dependents the freedom to exit and re-enter in the CNMI without unnecessary delay and uncertainty on re-admittance. DHS notes again that there is a distinct difference between a visa and a status. DOS issues a visa at a U.S. Embassy or consulate office abroad. A visa, placed in the alien's passport, allows an alien to travel to a port of entry and request permission to enter the United States. While having a visa does not guarantee entry to the United States, it does indicate that a consular officer has determined that the alien is eligible to seek entry for the specific purpose covered by that visa.
DHS is responsible for all admissions into the United States. If admissible, DHS admits an alien and grants his or her status in the United States. The specified status controls the period of stay and conditions of such stay. In most cases, DHS grants status at the port of entry. For CW workers, DHS may exercise its discretionary waiver authority to allow beneficiaries of a CW petition in the CNMI to seek a grant of transitional worker status without requiring that they depart the Commonwealth.
Eleven commenters suggested that DHS should allow travel and re-entry on current CNMI permits. The commenters stated that the grandfather provision
Consistent with the CNRA, DHS is recognizing valid CNMI immigration status and work authorization until the expiration of such status up to a maximum of two years after the transition date.
DHS has established two separate parole procedures for CNMI permit holders to facilitate their travel to the rest of the United States or abroad. Under the parole procedure for domestic travel, CNMI permit holders must submit a written parole request (and documentation) to the USCIS Application Support Center (ASC) in Saipan, before departing the CNMI.
Under the parole procedures for foreign travel, CNMI permit holders must obtain advance parole before departing the CNMI, if they are not lawful permanent residents or do not have an appropriate U.S. visa.
Three commenters stated that the rule's travel restriction prevents them from working in Guam or the U.S. mainland. One of these commenters stated that the rule had the unintended consequence of also prohibiting work-related travel to Guam or the U.S. mainland. This commenter suggested an automatic authorization of the beneficiary's work-related travel and ability to work in Guam or on the U.S. mainland.
While DHS understands this concern, the CNRA expressly limits the transitional worker visa to admission to the CNMI only.
Two commenters expressed concern that travel and re-entry on the CNMI permit is not allowed to and from Guam or the U.S. mainland. One commenter was specifically concerned about the inability to re-enter the CNMI on the permit or a B1/B2 visa after travel to Guam or the U.S. mainland. Another commenter requested clarification on whether DHS will allow long-term alien workers to travel freely to the U.S. mainland for further education, training, or medical purposes after the transition period.
While these comments appeared to be specifically directed at travel with the CNMI permits previously issued by the CNMI government and valid for CNMI work authorization until November 27, 2011, which is a subject this final rule does not address, DHS notes that CNMI permit holders may apply for travel documents using the procedures for obtaining parole approval as mentioned above.
Even if the specific comments focused on current documentation rather than travel with the new CW nonimmigrant status, the concern also applies to that travel and DHS has considered it further in light of the interim final rule's general prohibition on travel in CW status elsewhere in the United States. DHS has responded in this final rule to concerns about inability to travel to Guam by providing a specific, limited exception to the general provision in the interim final rule (which is retained in the final rule) that a CW alien who travels, or attempts to travel to another part of the United States will put himself or herself out of status.
While some foreign workers, particularly those from Japan and South Korea, may board a direct flight from the CNMI to their countries of nationality, Philippine nationals, in particular, may not, based on current flight routes, easily travel to or return from their country of nationality without transiting through Guam. Their only other options are to travel through Japan or South Korea. Compared to the short commuter air flight between Saipan and Guam and the three and one-half hour nonstop flight from Guam to Manila, an itinerary from Saipan to Manila through Japan typically would require a three hour and forty-five minute flight from Saipan to Tokyo, connecting to a five-hour flight from Tokyo to Manila. Itineraries through Seoul, Korea are no shorter. Although airline pricing is of course not necessarily directly reflective of distance, and airline schedules and pricing are subject to frequent change, as a general matter DHS understands that foreclosing the option of travel between the CNMI and the Philippines through Guam in CW status is likely to add significant time and expense to this travel in many cases. Providing some accommodation for this need will help ameliorate potential negative effects of the CNRA, including (but not
Before the transition period, these foreign workers were able to apply for and be granted visitor visas to transit Guam or, in medical emergencies, received authorization to travel through Guam. The CNMI is now part of the United States under the INA and foreign workers residing in the CNMI can no longer use a nonimmigrant visitor visa to transit through Guam to a foreign destination, as the “B” category for nonimmigrant visitors for business or pleasure requires that the alien have a foreign residence.
After careful consideration, DHS has determined to exercise its authority under section 212(d)(7) and 214(a)(1) of the INA (8 U.S.C. 1182(d)(7) and 1184(a)(1)) to enable aliens who are CW status holders who are Philippine nationals to maintain their status and depart the CNMI en route to the Philippines, and return to the CNMI from the Philippines through Guam, as long as the travel is on a direct Guam transit itinerary, without violating that status while in Guam or the CNMI.
If arriving from the Philippines, the alien may be paroled upon arrival in Guam if the immigration officer determines that such parole is appropriate, including examining whether the alien would be admissible to the CNMI.
DHS has limited the travel exception permitting CW aliens to transit through the Guam airport to nationals of the Philippines—in addition to the particular reasons of relative travel convenience discussed above—because focusing on Philippine nationals addresses what is by far the largest national group of foreign workers in the CNMI. As described in the DOI Report at 11 Table 1–B, the number of permits issued by the CNMI to alien workers in 2008 by nationality was: Philippines, 15,769; China, 4,569; South Korea, 729; Thailand, 574; Bangladesh, 333; and others, 598. While the pattern of CW application and issuance likely will not track this pattern exactly, DHS believes that a substantial majority of likely CW nonimmigrants also will be nationals of the Philippines. It also has been USCIS's experience to date during the transition period that the vast majority of applications for advance parole for travel purposes from aliens in the CNMI have come from Philippine nationals.
Eight commenters suggested that DHS issue a visa waiver in lieu of requiring a visa. Seven of these commenters suggested that DHS waive the visa requirement for guest workers in the same manner in which nationals of Russia and China were provided with a waiver. Another suggested that DHS issue a visa waiver for those with a valid reason for leaving and returning to the CNMI.
DHS does not exercise visa waiver authority to allow admission into the CNMI without a visa for nationals of the People's Republic of China (PRC) and the Russian Federation (Russia). Rather, DHS may, in its discretion on a case by case basis, exercise parole authority to allow eligible nationals of the PRC and Russia to enter the CNMI temporarily.
Eight commenters suggested that DHS issue a re-entry permit or advance parole. Specifically, four commenters suggested that DHS allow CW status holders, who must depart for emergent reasons, to apply for a re-entry permit at the Saipan office. One suggested that DHS issue a visa waiver for any foreign worker who wishes to travel with a CNMI Entry Permit as long as they notify the Saipan office in advance about their travel. Another suggested that DHS should allow CW status holders to travel and re-enter the CNMI upon presentation of the CNMI Entry Permit, evidence of CW–1/CW–2 status, and evidence that they notified the USCIS Saipan office of their intention to leave and re-enter the CNMI. Another two commenters suggested that DHS use its parole authority to allow workers to enter and exit the Commonwealth during the term of the CW status.
A re-entry permit is not an appropriate means for CW status holders to request re-entry after a trip abroad. A re-entry permit is a travel document issued to lawful permanent residents and conditional residents to re-enter the U.S. after travel of one year or more abroad.
Two commenters suggested that USCIS process a “change of status” in the CNMI in order to alleviate concerns regarding the rule's visa requirement. Commenters suggested that all CNMI guest workers who are in lawful status and lawfully authorized to work should be able to apply for a “change of status” using a Form that is similar to USCIS Form I–539.
DHS is aware of the public's concern regarding the burden of obtaining a visa to re-enter the CNMI. A transitional worker does not require a CW visa to legally remain and work in the CNMI. As previously discussed, this final rule clarifies that such status may be granted to the beneficiary in the CNMI.
However, as with other nonimmigrant statuses under the Act, this in-country grant of status does not permit the status holder to reenter after foreign travel. Moreover, while the I–94 is evidence of lawful immigration status, Federal law requires that a nonimmigrant return the I–94 departure record to U.S. officials upon exiting the United States. Therefore, if the CW worker wants to travel abroad, he or she will not have evidence of the status and will need to obtain a CW visa at a U.S. Embassy or consulate abroad in order to apply for re-admission and receive a new I–94. As with other INA categories, a CW nonimmigrant will need a visa to be admitted to the CNMI upon return from foreign travel.
Four commenters expressed concern regarding visa issuance abroad and offered suggestions regarding alternative procedures for such issuance. Specifically, two commenters suggested that DHS issue the visa in the United States through an agency to be set-up by DHS. Another suggested that a multiple entry CW visa should be made available within the CNMI to individuals who qualify for CW status. This commenter argued that it is contrary to stated intent of the CNRA for DHS to require CW–1 nonimmigrants to undergo the Federal visa process in a foreign country in order to return to the CNMI. Alternatively, the commenter suggested that an expedited process be established at foreign consular offices for transitional worker nonimmigrants to obtain multiple-entry visas. Another commenter requested clarification regarding whether a CW visa can be obtained within the CNMI and on the effect of such a visa refusal.
Visa issuance is a function of DOS. Thus any changes in visa issuance policies are beyond the scope of this DHS rule. However, DHS has been informed that DOS plans to issue multiple-entry CW visas, which should ease some of the commenters' concerns.
Two commenters opposed the rule because it does not contain a fact dispute resolution mechanism. These commenters stated that while employers and employees may appeal denials as to the issuance of permits to the USCIS Administrative Appeals Office, the process is notoriously slow, bureaucratic, and expensive. The commenters also stated that appeals at higher levels are equally inaccessible for foreign workers of modest means. The commenters suggested that foreign workers have no way to pursue claims with respect to unpaid wages and overtime or other violations of the terms and conditions of employment other than bringing a contract action in court.
First, DHS notes that this rule includes an administrative appeal process which is consistent with other nonimmigrant classifications under the INA. The rule provides that the decision to grant or deny a petition for CW–1 status may be appealed to the USCIS Administrative Appeals Office, but denial of an application for change or extension of status filed under this section may not be appealed.
One commenter requested clarification on a CW holder's ability to change status into another INA classification such as an H classification. DHS notes that, during the transition period, CW workers will be able to change or adjust to another immigration status under the INA if eligible.
Three commenters expressed concerns or offered suggestions regarding the period of admission and extension of stay for transitional workers. One commenter suggested that transitional worker status be valid for either one or two years.
CW status cannot be issued in two-year increments because the CNRA requires an annual reduction in the number of transitional workers.
Two additional commenters stated that the rule allows employers to extend their contracts with foreign workers for the entire transition period. According to the commenters, this fact will exclude U.S. workers from jobs for five years. DHS disagrees with the commenters. While an employer may request extensions for foreign workers it currently employs, the employer must justify a continued need for the workers
Eleven commenters expressed concern or offered suggestions regarding the rule's transition period.
Five commenters stated that there is a continued need for foreign workers to fill the jobs that the locals will not take. They contend that, as a result, the transitional worker classification will need to be in effect beyond the transition period. One of these commenters suggested that the transition period be extended beyond 2014 as long as employers are willing to renew the employment.
The CNRA authorizes DHS to create a nonimmigrant classification to ensure adequate employment in the Commonwealth during the transition period.
Five commenters requested clarification on how transitional workers could transition out of CW status if ineligible for an INA-based status. One commenter suggested that transitional workers with U.S. citizen children should be provided additional immigration options when the transition period expires in order to ensure family unity. Another commenter suggested that DHS implement a post-transition mechanism to bring new replacement workers as market conditions change.
In order to position themselves to transition out of CW status if ineligible for another INA status, workers should use the transition period to satisfy requirements, such as any necessary professional licenses or educational degrees, in order to obtain other employment-based status under the INA. The CNRA does not provide for a mechanism to offer any other immigration relief once the transition period expires.
An additional commenter suggested that the transitional worker classification should terminate when the CNMI labor permit expires. This rule provides for transitional worker visas for foreign workers in the CNMI for the entire transition period.
The final rule modifies the interim final rule's reference to appeals of denials of CW–1 petitions.
This rulemaking is not considered “economically significant” under Executive Order 12866, as supplemented by Executive Order 13563, because it will not result in an annual effect on the economy of $100 million or more in any one year. However, because this rule raises novel policy issues, it is considered significant and has been reviewed by the Office of Management and Budget (OMB) under this Order. A summary of the economic impacts of this rule are presented below. For further details regarding this analysis, please refer to the complete Regulatory Assessment and Final Regulatory Flexibility Analysis that has been placed in the public docket for this rulemaking.
DHS invited the public to comment on any potential economic impacts of this rule and the data and methodologies employed in conducting the Regulatory Assessment. We received approximately 25 comments on the Regulatory Assessment. These comments are addressed below.
One commenter stated that the interim final rule is deficient because DHS failed to conduct an economic impact analysis of the regulation as required by Executive Order 12866 and the Regulatory Flexibility Act of 1980.
DHS prepared a regulatory assessment in support of the interim final rule, titled “Regulatory Assessment for the Interim Final Rule: Commonwealth of the Northern Mariana Islands (CNMI) Transitional Worker Classification,” prepared by Industrial Economics, Incorporated, and dated May 22, 2009. The regulatory assessment was summarized in the preamble to the interim final rule and made available for public comment. Chapter 6 of that report provided all the information required for an Initial Regulatory Flexibility Analysis (IRFA) under the Regulatory Flexibility Act of 1980 (RFA). The analysis has been updated based on new information received during the public comment period, and DHS has prepared a Final Regulatory Flexibility Analysis (FRFA) per the RFA. The complete updated report and FRFA are part of the administrative record for this final rule and can be found in the public docket for this rulemaking.
One commenter stated that by failing to define a specific plan for allocating
DHS agrees that costs associated with regulatory uncertainty may occur. However, estimation of these costs in the Regulatory Assessment is not possible at this time. Several factors prevent any estimation of economy-wide impacts resulting from this rule, including: (1) The highly uncertain future demand for foreign workers given the demise of the garment industry, newly imposed minimum wage requirements, and challenges faced by the tourism industry and (2) the fact that economic data and models with which to estimate impacts to the broader economy are largely absent or difficult to develop given the general lack of CNMI economic and production data and the changing conditions of the CNMI economy. Furthermore, DHS believes that maintaining flexibility with respect to the allocation system allows the Department to respond more quickly to changing economic conditions and demand for labor in the CNMI.
One commenter stated that DHS cannot justify its refusal to estimate the broader economic impacts of the rule based on its refusal to develop a schedule for allocating and reducing the number of grants of CW status. By giving the Secretary discretion each year to set the number of available grants of status for the next year, the commenter stated that DHS can avoid forever any economic impact analysis.
While the absence of a defined schedule prohibits the assessment of economic impacts, it is not the only factor preventing such analysis. Decisions by the U.S. Department of Labor (U.S. DOL) regarding whether to extend the CW classification, when combined with decisions by DHS, could significantly affect the number of grants of CW status available during the transition period. The economic analysis cannot predict the timing or outcome of U.S. DOL's decisions. As stated previously, economic analysis is further hampered by significant uncertainty regarding future demand for foreign workers and economic data and models with which to estimate impacts to the broader economy are largely absent or difficult to develop given the general lack of CNMI economic and production data and the changing conditions of the CNMI economy.
One commenter stated that DHS did not make enough use of a report issued by the U.S. Government Accountability Office (GAO) titled, “Commonwealth of the Northern Mariana Islands: Managing Potential Economic Impact of Applying U.S. Immigration Law Requires Coordinated Federal Decisions and Additional Data” (GAO–08–791, August 2008). In this report, GAO illustrates the potential effects of changes in the availability of foreign labor on the gross domestic product (GDP) of the CNMI. Its model relies on a study published in 2005 that found, under certain assumptions, that a 10 percent reduction in the number of all workers might be expected to cause a 7 percent decline in GDP. The commenter stated that DHS refused to recognize this fundamental economic rule and made no more than a passing reference to GAO's study.
DHS disagrees with the commenter. Both the May 2009 Regulatory Assessment and the Regulatory Assessment for this final rule provide a detailed summary and discussion of GAO's analysis (see Appendix A of both reports). In its report, GAO also states that its simulations of the impact of reduced workforce on GDP are intended to illustrate a range of potential impacts. The simulations do not account for other changes in the CNMI over the coming years, and, therefore, should not be considered predictive of future Gross Domestic Product (GDP). GAO stresses that, without knowing the future demand for foreign workers, the impact of joint DHS and U.S. DOL decisions regarding the size of the transitional workforce cannot be predicted.
Two commenters noted that, in the development of the interim final rule, DHS failed to consider the report titled “Economic Impact of Federal Laws on the Commonwealth of the Northern Mariana Islands.”
DHS has carefully reviewed this report, but is unable to use any information from the report in the Regulatory Assessment for this final rule (
When preparing benefit-cost analyses of proposed regulations, Federal agencies must measure the impact of each regulatory alternative against a baseline, defined as “the best assessment of the way the world would look absent the proposed action” (
The GAO report (GAO–08–791, August 2008) highlights the importance of comparing the impacts of the regulation to an accurate baseline scenario. The report states “* * * continuing declines in the garment industry, challenges to the tourism industry, and the scheduled increases in the minimum wage may reduce the demand for foreign workers, lessening any potential adverse impact of the legislation on the economy” (pp. 24–25). For example, if the baseline demand for foreign workers does not exceed the number of available grants of CW status, the impact of the rule will be zero or negligible. If demand is higher than the number of available grants of CW status, cost would be positive, but the magnitude will depend on the size of the gap between worker demand and availability.
McPhee
The authors' alternative scenario designed to demonstrate the effect of Federal actions in the CNMI implicitly assumes that the only restriction on the future growth of the visitor industry is the amount of available foreign labor, without consideration of the other economic events influencing the growth of this sector. This scenario also combines the effects of Federal oversight of immigration and implementation of the Federal minimum wage, adding to the difficulty of isolating the effect of just this immigration rule.
As a result of these limitations, we cannot incorporate the results of McPhee
In the interim final rule and the supporting Regulatory Assessment, DHS argued that the economic models and data necessary to estimate the impacts of the rule are not available. Two commenters asserted that this statement is incorrect and reference McPhee
As noted previously, the results of McPhee
In addition, assuming that the likely baseline demand for foreign workers could be projected, this final rule presents unique challenges with regard to defining the types of costs that should be assessed and choosing the appropriate tools for the assessment. OMB's Circular A–4 directs Federal agencies to estimate the costs of a regulation to society in terms of the “opportunity costs.” Generally, opportunity costs are measured as changes in producer and consumer surpluses. In addition, best practices suggest that where the distributional effects are significant, they should also be discussed. Distributional effects might be measured in terms of changes in production (
Where a regulation has the potential to affect a large number of sectors, computable general equilibrium models are employed to capture the interactions among markets, measured as changes in surpluses, GDP, or employment. No such computable general equilibrium model of the CNMI economy exists and the data used to construct such models are incomplete for the CNMI. For example, GAO (GAO–08–791, August 2008) was unable to identify recent estimates of CNMI's GDP for use in its simulations (p. 84). U.S. DOL notes, “CNMI does not yet have in place macroeconomic data collection and accounting systems technology capable of generating information on total output and its components on a monthly or quarterly basis. As a result, there is no way to provide objective measures of productive capacity, capacity utilization, employment, wages or unemployment rates * * * Among the factors that make * * * data gathering and analysis work challenging is that the CNMI * * * is not included in the U.S. Census Bureau's American Community Survey (ACS) or other surveys that generate current detailed data on the 50 states and most areas of populations of 65,000 or more. Nor is the CNMI included in surveys that generate current data on industries, production and household income and expenditures.” (U.S. DOL, Impact of Increased Minimum Wages on the Economies of American Samoa and the Commonwealth of the Northern Mariana Islands, prepared by the Office of the Assistant Secretary for Policy 35–36 (January 2008)).
In their report, McPhee
A separate letter from the co-author of the report to the CNMI government responds to concerns DHS expressed about the quality of the data used in the McPhee
Regarding employment data, the letter states, “[t]here was no single publication that produced the required employment data. Consequently, I had to make employment estimates [for four categories—apparel, hotels, other industries, and government] by reconciling information from five different sources: the economic census, W–2 reports, the census of population and housing, the household, income, and expenditures survey, and various industry and government tabulations” (p. 2). Other variables, such as population, are extrapolated for years where no data are available.
From this comment, it appears that certain conclusions in the report regarding the size and composition of the CNMI economy between 2004 and 2007 are based on estimates derived from the input-output model rather than retrospective data collected through surveys or other means. The authors state that their results for this period are roughly consistent with data published through the second quarter of 2008 by the CNMI Department of Commerce. Those data include W–2 returns, business gross revenue, general fund revenue, imports, bank loans, residential telephone lines, and auto sales. Thus, we conclude that this co-author of the McPhee
One commenter stated that in its proposed regulation addressing foreign investor visas in the CNMI, DHS favorably cited a 1999 study by the Northern Marianas College that applies the same input-output model used as the basis for the work by McPhee
Comments regarding other DHS rules, such as the Notice of Proposed Rulemaking for the E–2 Nonimmigrant Status for Aliens in the Commonwealth of the Northern Mariana Islands with Long-term Investor Status, are outside the scope of this rulemaking. However, it is important to note that the E–2 rule cited historical information provided in the Northern Marianas College study regarding the economic expansion that occurred between 1980 and 1995. We have no reason to believe that the historical information is inaccurate. Of concern for this final rule is whether the model, which relies on information collected in 1995, is descriptive of the future CNMI economy, and whether data exist for making predictions about the impact of the rule on the future economy. As noted in a previous response, McPhee
One commenter argued that several statements and tables in the section of the preamble of the interim final rule summarizing the results of the Regulatory Assessment were incorrect because DHS did not factor in the issuance of CNMI's umbrella permits. Specifically, (1) The size of the cap in 2009 is no longer relevant because foreign workers with umbrella permits will be able to stay in the CNMI without CW status until November 28, 2011, (2) efforts to bring out-of-status workers into compliance with CNMI law prior to November 28, 2009, are incorrectly described, and (3) businesses are unlikely to experience cost savings under the Federal program in 2009 and 2010 because most have already paid CNMI fees for 2-year CNMI-approved employment contracts.
DHS agrees and has revised the Regulatory Assessment to reflect that employers and employees will start applying for status in 2011 in anticipation of the expiration of their umbrella permits on November 27, 2011. The size of the cap in 2009 and assumed costs of efforts to achieve legal status for out-of-status workers prior to November 28, 2009, are no longer relevant to our economic analysis. The final part of this comment seems to reflect a misunderstanding of our comparison of each regulatory alternative to a baseline scenario, defined as the way the world would look absent the regulation. Absent the CNRA, CNMI employers would pay to renew CNMI work permits each year. In the Regulatory Assessment, DHS analyzes the economic impact of employers not having to obtain any new permits or status for workers in 2010 as a result of the umbrella permits and the costs of obtaining CW status in 2011 in anticipation of the expiration of the umbrella permits. Businesses would experience cost savings relative to the baseline in 2010 because no costs are incurred under the final rule. These cost savings are estimated to be $5.2 million. The costs of obtaining CW status or INA visas for in-status workers in 2011, net of fees that would have been paid to obtain CNMI work permits, is $3.2 million. Over the 2-year period, the net savings is $2.0 million. We note in the analysis, however, that to the extent employers took the unusual step of paying 2 years of CNMI work permit fees in 2009, some of these cost savings may not be realized. We think this circumstance is unlikely in most cases because reported revenues for the CNMI Department of Labor (CNMI DOL) in 2009 ($5.4 million) are less than we would have anticipated in that year ($5.6 million including domestic household workers) absent implementation of the CNRA.
Two commenters stated that the interim final rule and supporting Regulatory Assessment do not take into account more recent data regarding the number of foreign workers in the CNMI provided by the CNMI government to DHS in 2009. These data were provided by Governor Fitial as a follow-up to his July 18, 2008, letter.
Regrettably, DHS has no record of such follow-up information provided by Governor Fitial or the government of the CNMI. However, the final rule and Regulatory Assessment incorporated the results of a count of foreign workers in the CNMI conducted by the DOI in December 2009 (U.S. Department of the Interior, The Secretary of the Interior, A Report on the Alien Worker Population in the Commonwealth of the Northern Mariana Islands, Washington, DC, March 2010; referred to as the DOI 2010 Report to Congress).
One commenter stated that the CNMI Department of Commerce Report on the 2005 CNMI Household, Income, and Expenditures Survey (HIES) from April 2008, a source for some of the data for the economic analysis accompanying the final regulation, is incomplete and out-of-date. The commenter believed that DHS should rely instead on the 2002 and 2007 economic census of business reports.
DHS partially agrees. Our economic analysis relies on both the 2005 HIES and the U.S. Census Bureau's 2007 economic census of the CNMI (released in 2009), and we supplemented these sources with newer data provided in the DOI 2010 Report to Congress. We rely on the U.S. Census Bureau's report for the number and size distribution of business establishments on the CNMI. The DOI report provides the most current counts of in-status and out-of-status workers in the CNMI. The DOI report also provides information about each worker's occupation, but not in sufficient detail to identify workers
One commenter stated that the DHS prediction that 2,090 foreign workers will be eligible for traditional INA visa classifications is incorrect. This comment stated that random samples analyzed by the CNMI DOL suggest only 300 workers will be eligible.
In the Regulatory Assessment for this final rule, DHS estimates that approximately 1,909 foreign workers will be eligible for traditional INA visas. This estimate is based on an extensive effort to “crosswalk” CNMI's work permit categories with comparable INA visa categories (the details of which can be found in Chapter 4 and Appendix C of the 2010 Regulatory Assessment, available in the docket for this rulemaking). The reduction from 2,090 to 1,909 results from the overall decrease in the foreign worker population documented in the DOI 2010 Report to Congress. DHS continues to use a higher estimate for three reasons.
First, the documented number of CNMI government employees, religious workers, and diplomatic and consular staff who will be eligible for an existing classification under the INA is 236 workers, close to the estimate provided by the commenter even before adding in eligible skilled and managerial workers in the private sector. Therefore, we believe the estimate of 300 is too low.
Second, a review of the worker occupations reported in the DOI count suggests that at least 1,540 workers may be eligible. This review is imprecise. While we are able to easily identify diplomats, doctors, dentists, pharmacists, or other highly specialized occupations, we cannot determine whether some individuals in other job categories hold eligible managerial positions (
Finally, the commenter did not provide any supporting data or documentation describing the CNMI DOL sampling procedure or methods for evaluating INA visa eligibility. Thus, we are unable to determine whether the sample is representative of the foreign worker population or their understanding of the criteria for eligibility is consistent with INA regulations.
One commenter stated that DHS has no statutory basis for making household or other workers ineligible for CW status. Furthermore, the commenter stated that the number of household workers estimated by DHS (950) is incorrect.
As previously mentioned, the CNRA authorizes DHS to set conditions for the admission of transitional workers.
The commenter provided no information correcting the estimate of 950 household workers, nor did the commenter explain if the figure is over- or understated. The DOI 2010 Report to Congress identifies the number of foreign workers employed as “houseworkers” (1,415 holding 706D, 706K, and 706P CNMI work permits); however, the report does not differentiate between workers employed by legitimate businesses, like hotels or maid service companies, and private households. Therefore, DHS relies on the best, publicly-available data provided by the CNMI DOL in its 2005 HIES.
Two commenters stated that our estimate of approximately 2,100 spouses and dependent children of foreign workers is too high because it includes other categories of non-working foreign residents (
Unfortunately, the commenter did not provide better data. However, we were able to revise this estimate to 1,557 based on the number of respondents in the DOI 2010 Report to Congress who currently hold 706E permits.
The Regulatory Assessment for the interim final rule estimated compliance costs occurring between May 2008 and December 2009 as employers obtain CW work permits for out-of-status foreign workers. One commenter stated that no direct costs were incurred during this period because the rule had not gone into effect, and employers who are found to employ out-of-status workers are barred from employing foreign workers in the future.
The costs during that time period (May 2008 and December 2009) reflect actions DHS assumed the regulated community would take in anticipation of the rule. Specifically, we assumed employers would incur costs to obtain CNMI work permits for out-of-status workers to ensure those employees would be eligible for CW status after November 28, 2009. However, based on CNMI's issuance of umbrella permits and efforts to deport out-of-status workers prior to November 28, 2009, and the fact that employers have a disincentive to making the CNMI DOL aware of their out-of-status workers, DHS agrees with the commenter that this assumption is no longer valid. These costs have been removed from the Regulatory Assessment for this final rule.
One commenter stated that the number of out-of-status foreign workers is now 650, which is lower than the 1,000 estimated in the report.
The Regulatory Assessment for this final rule incorporates a newer estimate of 183 out-of-status foreign workers obtained from the DOI 2010 Report to Congress.
One commenter disagreed with the DHS statement that one benefit of the rule will be to protect foreign workers from abuses such as human trafficking and other illicit activity.
The CNRA's stated purposes include ensuring effective border control and addressing national security and homeland security concerns, as well as protecting workers from the potential for abuse and exploitation. Section 701(a) of the CNRA. There is evidence that directly-employed workers have been subject to widespread abuse and have been victims of human trafficking.
In the preamble to the interim final rule, DHS stated that it can more cost-effectively administer the immigration program while also providing improved security benefits. One commenter responded that this statement is untrue, arguing that the CNMI system provides better security because, unlike the United States, it collects exit information on a timely basis. The commenter also stated that the U.S. system is not more cost-effective because it does not consider the negative economic impacts of limiting access to foreign workers.
DHS disagrees with the commenter. This final rule contains provisions to ensure that the admission of nonimmigrants to the CNMI is consistent with existing Federal laws and practices that are intended to secure and control the borders of the United States and its territories. The DHS statement on cost-effectiveness refers only to a comparison of the fees paid to the CNMI government to permit foreign workers (old system) relative to fees paid to the U.S. government under the final rule (new system) for the same workers. Because employers may include more than one worker on a single petition, total present value fees paid by employers to the U.S. government under the preferred alternative are less than they would have paid to the CNMI government over the time period of this analysis.
One commenter stated that the current population of the CNMI is 52,000, rather than 66,000 as specified in the section examining economic impacts to small entities.
DHS appreciates this new information and has used it in the section examining economic impacts to small entities (
One commenter stated that the assertion in the section examining economic impacts to small entities that data on non-profit organizations do not exist is incorrect, arguing that the CNMI maintains information on the number of such organizations with employees.
Regrettably, the commenter did not provide a reference or citation for such information. DHS has clarified in the Final Regulatory Flexibility Analysis that our source for the business size data that we rely on for our estimate of the number of small businesses in the CNMI does not explicitly break out non-profit organizations.
One commenter stated that the DHS calculation of the incremental direct costs of the interim final rule is based on faulty assumptions and reaches flawed and useless conclusions. The commenter argued the following: first, assuming that the number of available grants of CW status will remain constant through the time frame for the analysis is incorrect because DHS is required to reduce the number annually. Second, the number of individuals requesting status in 2009 is incorrect because the number of foreign workers in the CNMI has declined since the development of the Regulatory Assessment. Third, assuming the number of jobs currently held by foreign workers represents the future demand for such workers is incorrect because the CNMI is currently in a serious economic depression (in past years, the number of foreign workers has been much higher). Finally, the assumption that there are 1,000 out-of-status workers is incorrect because the CNMI DOL estimates that the figure had fallen to 600 as of August 2008.
This comment refers to the DHS estimate of the incremental administrative costs of the rule. Incremental costs are the difference between the cost of obtaining a CNMI work permit under the former legal system and the cost of obtaining CW status or an INA visa after the regulation takes effect. Our assumption that the maximum number of grants of CW status is available was intended to estimate the maximum potential administrative costs resulting from the rule. As the analysis reveals, the final rule is anticipated to result in cost savings because employers may name more than one employee on a petition; conversely, separate petitions and fees were required for each employee under the CNMI system. Thus, assuming future growth in the number of foreign workers during the transition period up to the cap on grants of CW status would only increase the cost savings, or benefits, attributable to the final rule. DHS has updated the analysis to include revised estimates of the number of workers present in the CNMI at the start of the transition period based on data collected in December 2009 by the U.S. Department of the Interior on in-status and out-of-status workers.
One commenter stated that excluding the $150 fee per beneficiary to fund vocational education programs in the CNMI and the $1,000 American Competitiveness and Worker Improvement Act (ACWIA) training fee accompanying H–1B visas from the calculation of the net administrative cost to society is not appropriate and would not be endorsed by professional economists.
In its guidance to Federal agencies describing best practices for preparing economic analyses required by Executive Order 12866, OMB includes a section discussing the difference between costs and transfer payments. It states, “Benefit and cost estimates should reflect real resource use. Transfer payments are monetary payments from one group to another that do not affect total resources available to society * * *
In this analysis, we consider the incremental costs and benefits to society, in both the CNMI and the United States, of the final rule. Given the requisite reduction in the number of potential grants of CW status (to zero) by the end of the transition period or by the end of any extensions to the program, the most significant economic impact of the rule may result from a decrease in available foreign labor. However, we cannot measure the social costs of this drawdown for several reasons. First, DHS has yet to develop a schedule for allocating and reducing the number of potential grants of CW status, and the likelihood that the U.S. Department of Labor will exercise its authority to extend the transition period beyond 2014 is unknown. The combined effect of these two decisions on the size of the transitional worker population during the transition period is significant, ranging from minimal reduction in this population to removal of nearly all such workers by the end of 2014. Furthermore, future demand for foreign workers in the CNMI is highly uncertain
In this analysis, we calculate the incremental administrative costs (
(1) CNMI businesses will wait until 2011 to apply for grants of CW status or INA visas in anticipation of the expiration of permits issued by the CNMI DOL (known as “umbrella” permits). In 2009, the CNMI DOL issued umbrella permits to foreign workers, thus authorizing their continued presence and employment in the CNMI until November 27, 2011. DHS will recognize these permits as granting employment authorization to transitional workers during this period.
(2) The number of grants of CW status available during the transition period ending December 31, 2014, will remain essentially constant at 22,417 visas per year. We make this assumption because DHS and U.S. DOL have not yet: (1) Established a system and schedule for allocating and reducing the number of grants of CW status and (2) decided whether or not to extend the transition period beyond 2014.
(3) The starting cap of 22,417 grants of CW status is sufficient to accommodate the number of foreign workers likely to require such status in 2011. We estimate that approximately 13,216 in-status workers will be granted CW status in 2011. This number is based on the total number of foreign workers present in the CNMI as of December 31, 2009 (16,258), as reported by the DOI, after subtracting the number of foreign workers likely to be eligible for visa classifications under the INA (1,909), the number of foreign workers ineligible for a grant of CW status (950 private domestic household workers), and the estimated number of out-of-status workers (183). We assume that the 183 out-of-status workers are gainfully employed in the CNMI and will be replaced with new foreign workers who can legally obtain CW status. As a result, a total of 13,399 foreign workers are potentially eligible for CW status.
(4) The number of jobs currently held by foreign workers will not change during the transition period. We assume that the number of jobs currently held by foreign workers represents the future demand for foreign workers through 2014, or the number of jobs available for such workers. We make this assumption because the CNMI's economic conditions are changing, and we lack the data to predict the future state of the CNMI economy and its resulting impact on the labor market for foreign workers. We also do not know the rate at which resident workers would replace foreign workers.
(5) The current number of out-of-status foreign workers is 183, as estimated by DOI as of December 31, 2009.
Collectively, these assumptions result in a scenario where no shortage of labor is anticipated. Therefore, this analysis focuses on estimating the change in administrative costs associated with obtaining status for foreign workers from USCIS as opposed to from the CNMI government. We also qualitatively consider the effect of this difference in administrative cost on labor prices and related impacts to economy-wide production. The distributional impact on CNMI government revenues is also discussed.
These assumptions are uncertain. Depending on how DHS reduces the number of grants of CW status during the transition period, the rule could have negative impacts, perhaps significant, on the CNMI if the CNMI economy experiences a surge in the demand for the type of foreign labor that is ineligible for visa classifications under the INA and exceeds the CNMI status cap (22,417), or if the number of out-of-status foreign workers has been greatly underestimated by DOI. The absence of a defined system and schedule for reducing the CW status cap, combined with the general lack of CNMI economic and production data and changing conditions of the CNMI economy, preclude a quantitative analysis of alternative scenarios exploring these impacts in depth.
In our analysis, we first estimate the current and future baseline demand for foreign workers in the absence of the final rule. In this baseline analysis, we consider the prevailing economic conditions in the CNMI to estimate the future demand for foreign workers and the total number of foreign work permits that would be issued under CNMI labor law absent the final rule. Next, we characterize the number and type of CW status grants and nonimmigrant worker visas available under the INA that would be issued as a result of the final rule. We consider the number of affected businesses and foreign workers as well as the foreign workers' jobs and professional qualifications, eligibility based on employer or occupation, and current immigration status in the CNMI. We then estimate the component costs that CNMI employers would incur to apply for and obtain the requisite CNMI work permits (baseline regulatory environment) and CW status grants and INA visas for foreign workers (final rule). We combine this cost information with our estimates of the number of visas that would be issued to calculate the incremental administrative costs of the rule. Finally, we discuss qualitatively the potential impact of changes in labor costs on the CNMI economy and the distributive effect of the rule on the revenues of the CNMI government.
We estimate that 16,258 foreign workers and 1,176 businesses in the CNMI will be subject to the final rule. Based on the available data, we estimate that approximately 1,909 of these workers may qualify for a nonimmigrant work visa available under the INA, at least 950 private domestic household workers will not be eligible for CW status, and 183 out-of-status workers will be replaced with new foreign workers who can legally obtain CW status. This calculation leaves 13,399 foreign workers potentially eligible for CW status. In addition, we estimate that approximately 1,557 spouses and dependent children of foreign workers will apply for admission under a second CW status category.
In accordance with Executive Order 12866, we consider and evaluate the following four alternatives:
We estimate the incremental costs on an annual basis over the same period of time as the transition period, beginning with the year 2011 (to simplify our cost analysis by estimating the incremental costs on a calendar basis) and ending with the year 2014, in the absence of any extension made by U.S. DOL.
The incremental costs represent the change in the cost of obtaining the necessary CW status and INA visas under the final rule from the baseline cost of obtaining foreign work permits under the CNMI system. We estimate that the baseline cost for issuing CNMI work permits to the 16,075 in-status foreign workers presently in the CNMI is about $5.6 million annually. Table 1 summarizes the results of the Regulatory Assessment. The negative values in Table 1 estimated for Alternatives 1, 3, and 4 indicate that society will experience a net
The total present value costs are projected to range from −$12 million to $9.6 million depending on the validity period of CW status (1 or 2 years), whether the estimated 183 out-of-status aliens present in the CNMI are eligible for CW status, and the discount rate applied. Savings achieved under Alternatives 1, 3, and 4 are attributable to the flexibility of allowing multiple beneficiaries to be included in a single Form I–129CW petition, which is in contrast to the CNMI permit system that required an application and fee paid for each employee. The additional costs of applying for and obtaining CW status for spouses and children and INA visas for certain qualified foreign workers do not outweigh the benefits of submitting a single petition for multiple beneficiaries seeking CW status. In comparison to the chosen alternative (Alternative 1), increasing the CW status validity period from 1 year to 2 years (Alternative 3) results in additional cost savings of about 60 percent. Allowing out-of-status workers eligibility for CW status (Alternative 4) would result in cost savings of 4 to 5 percent relative to Alternative 1 because CNMI employers will not have to pay to recruit new or replacement workers from overseas.
The total present value costs of Alternative 2 are projected to range from $8.7 million to $9.6 million depending on the discount rate applied. These costs are substantially higher than the costs estimated for the other three alternatives. The positive values represent a net cost to society, which are expected given that this alternative requires a petition for each beneficiary.
Because Table 1 presents
Ideally, we would quantify and monetize the benefits of the regulation and compare them to the costs. The intended benefits of the rule include improvements in national and homeland security and protection of human rights. Implementation of the rule assures that the admission of nonimmigrants to the CNMI is consistent with existing Federal laws and practices intended to secure and control the borders of the United States and its territories. Additionally, the rule would help protect foreign workers in the CNMI from abuses such as human trafficking and other illicit activity.
Due to limitations in data and the difficulty associated with quantifying national and homeland security
Notwithstanding the potentially broader impacts of this regulation on the CNMI economy that would ensue if the availability of foreign labor is affected, the results of our analysis on the incremental societal costs of the associated visa fees indicate that Alternative 1 provides the most favorable combination of cost and stringency. While Alternative 2 might be considered more stringent because it requires a petition for each beneficiary, the costs are substantially higher than the other three alternatives. Alternative 3 is expected to achieve more cost savings than Alternative 1, but the 1-year status validity period under Alternative 1 facilitates USCIS's effective management of the number of potential grants of CW status issued at any given time and DHS's determination regarding the statutory reduction of the number of annual CW status grants to zero by the end of the transition period. Alternative 4 may provide less security because out-of-status workers would be eligible for CW status.
We qualitatively discuss the distributive effect of the final rule on the revenues of the CNMI government. Absent the rule, we estimate that the CNMI government would have collected approximately $5.6 million annually in fees associated with the issuance of permits for foreign workers. Because it will no longer be responsible for administering this permit program, the CNMI government staff resources devoted to this function, and funded by these permit fees, will be available for other government business. As recently as 2008, the CNMI government operated at a deficit; the government's total expenditures in that year of $329.3 million exceeded revenues by approximately $48.1 million. However, the CNMI government may collect revenue under CNMI Public Law No. 17–1, enacted in March 2010, which requires all foreign workers to apply to the CNMI DOL for an identification card and pay associated fees (specifics unknown as of the writing of this analysis). Given the current state of the economy and holding all other factors constant, the effect of removing the burden of CNMI's immigration functions on the government's fiscal condition is uncertain. CNMI government jobs associated with administering the current permit program may be lost, increasing unemployment within the CNMI citizen population.
Under the requirements of the RFA, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, agencies must consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people).
The types of entities subject to the rule's requirements include all businesses employing foreign workers in the CNMI. As an insular area, the CNMI government does not meet the RFA's definition of a small government, which includes only “governments of
The RFA requires DHS to “describe the impact
The results of this FRFA are summarized below.
On May 8, 2008, the President signed the CNRA into law. Congress' intent in enacting this legislation is “to ensure that effective border control procedures are implemented and observed, and that national security and homeland security issues are properly addressed.” Title VII, Subtitle A of the CNRA calls for the extension of U.S. immigration laws to the CNMI, with special provisions to allow for the orderly phasing-out of CNMI's nonresident contract worker program and the orderly phasing-in of Federal responsibilities over immigration in the CNMI.
The objective of the CNMI-only CW status program is to provide for an orderly transition from the existing CNMI foreign worker permit system to the U.S. immigration system. It is also intended to mitigate potential harm to the CNMI economy as employers adjust their hiring practices and foreign workers obtain nonimmigrant and immigrant visa classifications available under the INA. Please refer to previous sections of this preamble for further details.
One commenter to the interim final rule stated that DHS and USCIS did not conduct a regulatory impact analysis or a small business analysis and were thus not in compliance with the law; however, this commenter was mistaken. A regulatory assessment, which included a chapter on impact to small entities (with all the elements of an IRFA), was placed in the public docket with the interim final rule and was made available for public comment. DHS did not make changes to the rule based on any comments to the IRFA.
To measure the economic impact experienced by entities, we compare the per-business estimated costs of the
We assume all businesses in the CNMI employ foreign workers, except those businesses with no paid employees. The data on businesses by size show that over 80 percent of businesses in the CNMI have between 1 and 19 employees. The 2007 economic census of the CNMI shows that businesses with 10 to 19 employees had average revenues of just over $1 million that year (smaller businesses had even lower average revenues). According to the SBA's “Table of Small Business Size Standards Matched to North American Industry Classification System Codes,” other than in crop production, businesses in the vast majority of industries are considered small if they have revenues less than $7 million or fewer than 50 employees. In many industries the threshold is higher. Thus, in its screening analysis, DHS concludes that a substantial number of small entities will be affected by this rule.
For the sake of brevity, we present the economic impacts to small entities for Alternative 1, the chosen alternative, here. For estimated impacts to small entities for all alternatives, please refer to the Regulatory Assessment and Final Regulatory Flexibility Analysis that is available in the docket for this rulemaking.
Businesses will experience costs beginning in 2011 to obtain visas issued under the INA for eligible workers, and they will obtain CW status for the remaining workers. We assume the INA-eligible workers will all qualify for H–1B visas. The H–1B visas will be renewed in 2014, while CW status will be renewed annually. Table 2 lists the annual administrative costs (
Businesses experience the highest net positive costs in 2011. Therefore, we compare these costs to the annual revenues and payrolls for businesses of each size category based on U.S. Census data for 2007 (released in 2009). Table 3 lists the number of businesses in each size category along with the average payroll and average revenue of businesses in those size categories in 2011 dollars.
Average payrolls range from $30,000 per business (one to four employees) to $1.0 million per business (20 or more employees). Average revenue also scales with the size of the business, from $100,000 for sole proprietorships to $4.9 million for businesses with 20 or more employees. Table 4 presents the per-business incremental costs for Alternative 4 and the ratio of these costs to the average payroll and revenue.
Under Alternative 1, the additional costs imposed by the rule in 2011 represent 0.33 percent or less of annual revenues. Compared to payroll, however, the impacts are about 5 to 6 times higher. Under Alternative 1, businesses of all sizes experience increased labor costs of about 1 percent on average, depending on their size. Considering that the payroll costs presented in Table 4 do not include benefits, the actual percentage increase in labor costs for 2011 is smaller than reported in the table.
The analysis to this point has focused on the impact of replacing the CNMI foreign worker visas with INA visas and CW status. In addition, the ineligibility of certain workers (
The forms required by this rule are expected to be submitted on paper by employers. In our analysis, we assume employees in the job category “Management of companies and enterprises” will complete and file these forms, which require basic administrative and record-keeping skills. The skills required to complete Form I–129 and supplements (filed for other nonimmigrant workers), or the new Form I–129CW (filed for CNMI transitional workers), are essentially the same as the skills required to complete the necessary paperwork under the CNMI permit system. Additionally, the spouse or minor child of a CW–1 nonimmigrant who wishes to accompany or follow the alien as a CW–2 nonimmigrant will have to complete Form I–539, Application to Extend/Change Status. Professional skills are not required for the preparation of this form.
DHS did not identify any significant alternatives to the rule that specifically address small entities while also meeting the requirements of the CNRA. We evaluated four regulatory alternatives to consider changes in the admission and filing requirements, including those that minimize the incremental cost burden to CNMI employers and businesses, including small entities.
Alternative 1 (chosen alternative) provides the most favorable combination of cost and stringency. While Alternative 2 might be considered more stringent because it requires a petition for each beneficiary, the costs are substantially higher than the other three alternatives. Alternative 3 is expected to achieve more cost savings than Alternative 1, but the 1-year status validity period under Alternative 1 facilitates DHS's effective management of the number of potential grants of CW status issued at any given time and the statutory reduction on an annual basis to zero by the end of the transition period. Alternative 1 may provide more security because DHS would require lawful status in the CNMI as a prerequisite for CW eligibility.
In addition, we emphasize that it is the reduction in the number of available grants of CW status that will have a potentially substantial impact on small entities; however, the rule does not prescribe a schedule for allocating CW status throughout the transition period. DHS believes any methodology for allocating CW status will require flexibility to adjust to the prospering or declining needs of the CNMI economy. A methodology or formula set forth in a regulation does not provide such flexibility.
In summary, because the rule affects all businesses employing foreign workers, it likely affects a large number of small entities in every industry. Based on the analysis in the preceding sections, we do not believe the requirement that businesses obtain CW status or INA visas will have a substantial impact on a per-business basis because it will coincide with the end of the more expensive CNMI permit system. However, DHS did not certify this rule as not having a significant economic impact on a substantial number of small entities and has instead prepared a FRFA.
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA) requires agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector if the rule will result in expenditures exceeding $100 million (adjusted for inflation) in any one year. We estimate that this rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. The CNRA will cause some changes for the CNMI government since they will no longer be implementing their own immigration, foreign worker, and border security program. However, the costs of administering that program will no longer be incurred by the CNMI government. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Please refer to the section above on Executive Order 12866 for further details on the potential economic impacts of this rule.
This rule will 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 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This rule meets the applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988.
The Paperwork Reduction Act of 1995 requires all Departments to submit to the Office of Management and Budget (OMB), for review and approval, any reporting or recordkeeping requirements inherent in a regulatory action. 44 U.S.C. 3501
The termination of the CNMI permit program will result in employers petitioning for status under the INA for those employees. Termination of the CNMI worker program will increase the number of respondents submitting Form I–129, Petition for a Nonimmigrant Worker, OMB Control Number 1615–0009, and Form I–539. This increase is already included in the OMB inventory and no further action is required. However, DHS will be making non-substantive changes to the instructions to the Form I–129CW. Accordingly, DHS submitted Form OMB 83–C, Correction Worksheet, to OMB to reflect these non-substantive changes.
Administrative practice and procedure, Authority delegations (Government agencies), Freedom of information, Privacy, Reporting and recordkeeping requirements, Surety bonds.
Administrative practice and procedure, Aliens, Employment, Foreign officials, Health professions, Reporting and recordkeeping requirements, Students.
Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements.
Immigration, Reporting and recordkeeping requirements.
Accordingly, the interim rule amending 8 CFR parts 103, 214, 274a, and 299, which was published in the
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
(b) * * *
(1) * * *
(i) * * *
(J) Petition for a CNMI-Only Nonimmigrant Transitional Worker (Form I–129CW). * * *
(c) * * *
(3) * * *
(iii) A Petition for a CNMI-Only Nonimmigrant Transitional Worker, or an Application to Extend/Change Nonimmigrant Status only in the case of an alien applying for CW–2 nonimmigrant status,
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.
(w)
(i)
(ii)
(iii)
(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.
(iv)
(v)
(A) At the time the application for CW status is filed, is an alien lawfully present in the CNMI under 48 U.S.C. 1806(e); or
(B) 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.
(vi)
(vii)
(viii)
(A) For fiscal year 2011, the numerical limitation is 22,417 per fiscal year.
(B) For fiscal year 2012, the numerical limitation is 22,416 per fiscal year.
(C) For each fiscal year beginning on October 1, 2012 until the end of the transition period, the numerical limitation will be a number less than 22,416 that is determined by DHS and published via Notice in the
(D) DHS may adjust the numerical limitation for a fiscal year or other period in its discretion at any time via Notice in the
(E) If the numerical limitation is not reached for a specified fiscal year, unused numbers do not carry over to the next fiscal year.
(ix)
(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.
(x)
(xi)
(xii)
(2)
(i) Will enter or remain in the CNMI for the purpose of employment in 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; and
(vi) Is ineligible for status in a nonimmigrant worker classification under section 101(a)(15) of the Act.
(3)
(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)
(i) Be engaged in legitimate business;
(ii) 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)
(6)
(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) No qualified United States worker is available to fill the position;
(B) The employer is doing business as defined in paragraph (w)(1)(ii) of this section;
(C) The employer is a legitimate business as defined in paragraph (w)(1)(vi) 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 for any other nonimmigrant worker classification; and
(H) The position falls within the list of occupational categories designated by DHS.
(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)
(B)
(C)
(7)
(i) The prospective new employer files a petition to classify the alien as a
(ii) An extension of the alien's stay is requested if necessary for the validity period of the petition.
(iii) A CW–1 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's authorized period of stay; and
(B) Subsequent to his or her lawful admission, the CW–1 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'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), the CW–1 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'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 does not otherwise violate the terms and conditions of his or her status during that 30-day period.
(8)
(9)
(10)
(11)
(12)
(i) The approval notice will include the 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 petition may not be filed or approved earlier than six months before the date of actual need for the beneficiary's services.
(13)
(14)
(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).
(15)
(16)
(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.
(17)
(ii) A request for a petition extension may be filed only if the validity of the original petition has not expired.
(iii) Extensions of CW–1 status may be granted for a period of up to 1 year until the end of the transition period, subject to the 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) 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.
(18)
(19)
(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.
(20)
(21)
(22)
(ii)
(iii)
(A)
(B)
(iv)
(23)
(24)
8 U.S.C. 1101, 1103, 1324a; 48 U.S.C. 1806; 8 CFR part 2.
(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). An alien who is lawfully present in the CNMI (as defined by 8 CFR 214.2(w)(1)(v)) on or before November 27, 2011, is authorized