[Federal Register Volume 74, Number 206 (Tuesday, October 27, 2009)]
[Rules and Regulations]
[Pages 55094-55112]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25808]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 214, 274a, and 299
[CIS No. 2459-08; DHS Docket No. USCIS-2008-0038]
RIN 1615-AB76
Commonwealth of the Northern Mariana Islands Transitional Worker
Classification
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Interim rule; solicitation of comments.
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SUMMARY: The Department of Homeland Security (DHS) is 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 transitional worker program is intended to provide for an
orderly transition from the CNMI permit system to the U.S. federal
immigration system under the Immigration and Nationality Act (INA or
Act). 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. The CNRA imposes a five-year transition
period before the INA requirements become fully applicable in the CNMI.
The new CW classification will be in effect for the duration of that
transition period, unless extended by the Secretary of Labor. The rule
also establishes employment authorization incident to CW status.
DATES: Effective date: This rule will be effective on November 27,
2009.
Implementation date: Beginning at 12:01 a.m. (CNMI local time) on
November 28, 2009, U.S. Citizenship and Immigration Services will begin
operation of this program and required compliance with this interim
rule will begin. The existing CNMI permit program will be in effect
through November 27, 2009.
[[Page 55095]]
Comment date: Written comments must be submitted on or before
November 27, 2009.
Written comments on the Paperwork Reduction Act section of this
rule must be submitted on or before December 28, 2009.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2008-0038 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: You may submit comments directly to USCIS by e-
mail at [email protected]. Include DHS Docket No. USCIS-2008-0038 in the
subject line of the message.
Mail: Chief, Regulatory Products Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210.
To ensure proper handling, please reference DHS Docket No. USCIS-2008-
0038 on your correspondence. This mailing address may be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., Suite 3008, Washington, DC 20529-2210. Contact Telephone Number is
(202) 272-8377.
FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 20
Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529-2060
telephone (202) 272-1505.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule. DHS also invites comments that relate to the economic or
federalism effects that might result from this rule. Comments that will
provide the most assistance to DHS will reference a specific portion of
the rule, explain the reason for any recommended change, and include
data, information, or authority that support such recommended change.
Instructions: All submissions received must include the agency name
and DHS Docket No. USCIS-2008-0038. All comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received go to http://www.regulations.gov. Submitted comments
may also be inspected at the Regulatory Products Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, N.W., Suite 3008, Washington, DC 20529-2210.
II. Background
The Commonwealth of the Northern Mariana Islands (CNMI) is a U.S.
territory located in the Western Pacific that has been subject to most
U.S. laws for many years. The CNMI has administered its own immigration
system under the terms of the 1976 Covenant with the United States. See
A Joint Resolution to Approve the Covenant To Establish a Commonwealth
of the Northern Mariana Islands in Political Union with the United
States of America (Covenant Act), Public Law 94-241, sec. 1, 90 Stat.
263, 48 U.S.C. 1801 note (1976). On May 8, 2008, former President Bush
signed into law the Consolidated Natural Resources Act of 2008 (CNRA).
See Public Law 110-229, Title VII, 122 Stat. 754, 853 (2008). Title VII
of the CNRA extends U.S. immigration laws to the CNMI. The intent of
Congress in passing this legislation is to ensure effective border
controls and properly address national security and homeland security
concerns by extending U.S. immigration law to the CNMI. See Section
701(a) of Public Law 110-229. Title VII of the CNRA includes provisions
to phase-out the CNMI's nonresident contract worker program and phase
in the U.S. federal immigration system in a manner that minimizes
adverse economic and fiscal effects and maximizes the CNMI's potential
for future economic and business growth. Id. (b). Congress also intends
to provide the CNMI with as much flexibility as possible to maintain
existing businesses and other revenue sources and develop new economic
opportunities. Id.
Section 702 of the CNRA was scheduled to become effective
approximately one year after the date of enactment, subject to certain
transition provisions unique to the CNMI. On March 31, 2009, DHS
announced that the Secretary of Homeland Security, in her discretion
under the CNRA, had extended the effective date of the transition
program from June 1, 2009 (the first day of the first full month
commencing one year from the date of enactment of the CNRA) to November
28, 2009. The transition period concludes on December 31, 2014.
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
transitional worker program implemented under this rule is intended to
provide for an orderly transition for those workers from the CNMI
permit system to the U.S. federal immigration system under the INA, and
to mitigate potential harm to the CNMI economy as employers adjust
their hiring practices and as foreign workers obtain U.S. immigrant or
nonimmigrant status.
Section 702(a) of the CNRA mandates that, during this 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\1\ to be issued to prospective
employers'' for the transitional workers and investors.\2\ The statute
provides that this system is for nonimmigrant workers ``who would not
otherwise be eligible for admission'' under applicable provisions of
the INA. Therefore, as discussed in section III below, nonimmigrant
workers seeking CW status must demonstrate that they are ineligible for
admission under another INA classification, such as an H-1B, H-2A or P-
1 nonimmigrant. See 8 U.S.C. 1101.
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\1\ The CNRA refers to a system of permits. Note that we have
retained this language when referencing the statute. However, in
this context, the use of the term ``permit'' is synonymous with CW
status and the latter term is used more extensively in this
discussion.
\2\ DHS will promulgate separate regulations addressing
transitional measures for nonimmigrant investors in the CNMI.
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Section 702(a) of the CNRA further states that transitional workers
may apply to USCIS during the transition period for a change of status
to another nonimmigrant classification or to adjust status to an
immigrant classification in accordance with the INA. Following the end
of the transition period, the transitional worker program will cease to
exist and 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.
[[Page 55096]]
The rule implementing this transitional worker program is explained
below.
III. Regulation Changes
This rule amends DHS regulations at 8 CFR 214.2 by providing a new
paragraph (w). This new paragraph creates a new CNMI-only transitional
worker classification for the duration of the transition period.
Transitional workers will be classified using an admission code of CW-1
for principal transitional workers and CW-2 for dependents. Aliens who
were previously admitted to the CNMI under the CNMI nonresident worker
permit programs may be granted CW status by USCIS. To minimize adverse
impact on the CNMI economy, the CW classification allows workers, who
would not be eligible for any other lawful status under the INA, to
enter or remain in the CNMI as a transitional worker during the
transition period.\3\ In this rule, DHS promulgates provisions
governing CW-1 status in the section of the Code of Federal Regulations
governing other INA nonimmigrant categories, and has incorporated
standard elements from current nonimmigrant categories to maintain
regulatory consistency, particularly with respect to petition
processing procedures. This rule establishes 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 prescribes procedural
requirements for petitioners to follow. The specific areas that this
rule implements and the rationale used by DHS are as follows:
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\3\ On March 2, 2009, USCIS opened an Application Support Center
(ASC) in Saipan that offers extended services, including the ability
for individuals in the CNMI to schedule an INFOPASS appointment to
speak with an immigration officer regarding non-immigrant or
immigrant worker eligibility requirements under the INA. Additional
information regarding such eligibility requirements can be accessed
at http://www.uscis.gov.
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A. CNMI-Only Transitional Workers
As defined by the statute, a CNMI-only transitional worker is an
alien worker who is ineligible for another classification under the INA
during the transition period. Section 6(d)(1) or (2) of Public Law 94-
241, as added by sec. 702(a) of Public Law 110-229. This rule makes
aliens eligible for CW-1 status only if they are ineligible for
nonimmigrant classification based upon employment activities described
in section 101(a)(15) of the INA. Such nonimmigrant classifications may
include, but are not limited to, a specialty occupation described in
section 214(i) of the Act, temporary or seasonal agricultural work for
which H-2A classification is available, and other temporary or seasonal
employment for which H-2B classification is available. See 8 CFR
214.2(w)(2)(vi). DHS believes that this will help ensure that those who
are eligible for employment-related nonimmigrant categories under the
INA make use of those categories, especially the H categories, which
are uncapped for employment in the CNMI during the transition period.
As section 702(a) of the CNRA expressly allows transitional workers to
change or adjust status under the INA, this provision is not meant to
rigidly bar anyone admissible under the INA in any immigrant or other
nonimmigrant category from obtaining CW-1 status. Section 6(d)(1) of
Public Law 94-241, as added by sec. 702(a) of Public Law 110-229. DHS
envisions scenarios wherein certain professionals may not initially be
eligible for H-1B status due to Federal licensing or other
requirements, and believes that it is an appropriate use of the
transitional worker program to allow such aliens time during the
transition period to seek to satisfy such requirements. This rule does
not exempt such aliens in occupations requiring licensure from
complying with existing local licensure requirements. See 8 CFR
214.2(w)(6)(iii).
Section 702(a) further states that DHS shall set the conditions for
admission to the CNMI for nonimmigrant workers. Section 6(d)(3) of
Public Law 94-241, as added by sec. 702(a) of Public Law 110-229. DHS
is providing in this rule that, subject to numerical limitations,
aliens may be classified as CW-1 nonimmigrants if, during the
transition period, the alien: (1) Will enter or remain in the CNMI for
the purpose of employment during the transition period in an
occupational category designated by the Secretary as requiring alien
workers to supplement the resident workforce; (2) has a petition
submitted on his or her behalf by an employer; (3) is not present in
the United States, other than the CNMI; (4) if present in the CNMI, is
lawfully present in the CNMI; and (5) is not inadmissible to the United
States as a nonimmigrant, except for an alien present in the CNMI who
is described in section 212(a)(7)(B)(i)(II) of the Act (not in
possession of valid nonimmigrant visa). See 8 CFR 214.2(w)(2). In order
to obtain CW status, the worker must either be lawfully present in the
CNMI, or must be coming from abroad to the CNMI with a CW-1 visa
properly issued by the U.S. Department of State. See 8 CFR
214.2(w)(2)(i).
DHS has determined that requiring lawful status in the CNMI as a
prerequisite for CW-1 eligibility is the most efficient means to begin
the congressionally-mandated drawdown of transitional workers to zero
by the end of the transition period. Furthermore, to allow workers
without lawful status in the CNMI to obtain CW-1 status would encourage
noncompliance with CNMI immigration law during the period before the
transition program effective date by removing the incentive for such
workers with lawful status to maintain or reacquire such lawful status
under CNMI law prior to the transition. In order to administer this
program in a manner consistent with other employment-based INA
nonimmigrant classifications, this rule requires that employers
petition for aliens to obtain status. Additionally, this rule requires
that aliens cannot be present in the United States other than the CNMI,
which DHS believes is consistent with the statutorily-mandated
geographic restriction of transitional workers to the CNMI. See Section
6(d)(3) of Public Law 94-241, as added by sec. 702(a) of Public Law
110-229;
8 CFR 214.2(w)(2). The transition program effective date is
November 28, 2009. See Section 6(a)(1) and (3) of Public Law 94-241, as
added by sec. 702(a) of Public Law 110-229. The CW classification will
cease to exist at the end of the transition period, meaning that
existing grants of CW status will automatically terminate, and no new
grants of CW status will be made. See 8 CFR 214.2(w)(23). Because of
the statutory restrictions on eligibility for the CW classification and
to avoid the need to seek to change status or depart the CNMI at the
end of the transition period, employers of nonresident workers should
seek classification under another INA classification for which the
workers may be eligible instead of petitioning for CW status. See
Section 6(d)(2) of Public Law 94-241, as added by sec. 702(a) of Public
Law 110-229.
B. Employers
As required under section 702(a) of the CNRA, DHS will not consider
a business legitimate if it engages directly or indirectly in
prostitution, trafficking in minors, or any other activity that is
illegal under Federal or local CNMI law. Section 6(d)(5)(A) of Public
Law 94-241, as added by section 702(a) of Public Law 110-229.
The CNRA provides that the determination of whether a business is
legitimate will be made by the Secretary
[[Page 55097]]
of Homeland Security in the Secretary's sole discretion. Section
6(d)(5)(A) of Public Law 94-241, as added by section 702(a) of Public
Law 110-229. This rule requires that eligible employers of CW
transitional workers be engaged in legitimate business, and separates
the definition of legitimate business into its component parts--
legitimate and business. Accordingly, this rule defines legitimate
business to mean ``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.'' See 8 CFR 214.2(w)(1)(v). The business must meet
applicable legal requirements for doing business in the CNMI and will
not be considered legitimate if it engages directly or indirectly in
prostitution, trafficking in minors, or any other activity that is
illegal under Federal or CNMI law. Id.
In addition to requiring eligible employers to be engaged in
legitimate business, this rule further establishes that eligible
employers must consider all available U.S. workers for positions being
filled by CW-1 workers; offer terms and conditions of employment which
are consistent with the nature of the occupation, activity, and
industry in the CNMI; and comply with all Federal and CNMI requirements
relating to employment; including, but not limited to,
nondiscrimination, occupational safety, and minimum wage requirements.
See 8 CFR 214.2(w)(4). DHS created these parameters for eligible
employers to comply with congressional intent that the CW category
should ``promote the maximum use of, and * * * prevent adverse effects
on wages and working conditions of, workers authorized to be employed
in the United States.'' Section 6(d)(2) of Public Law 94-241, as added
by sec. 702(a) of Public Law 110-229.
Congress has directed that DHS allow CW workers to transfer among
employers during the transition period. Section 6(d)(4) of Public Law
94-241, as added by section 702(a) of Public Law 110-229. This rule
establishes that an employer may request, and USCIS will permit, a
transfer within an alien's occupational category or another
occupational category that the Secretary of Homeland Security has
determined requires alien workers. See 8 CFR 214.2(w)(7).
The CNMI currently classifies occupations by reference to the nine
occupational categories listed under the U.S. Department of Labor's
Dictionary of Occupational Titles (DOT). See 3 N. Mar. I. Code section
4412(k). This rule incorporates all occupational categories that are
currently being utilized in the CNMI. See 8 CFR 214.2(w)(1)(viii).
The occupational categories in which nonresident workers may be
needed include:
Professional, technical, or management occupation;
Clerical and sales occupation;
Service occupation;
Agricultural, fisheries, forestry, and related occupation;
Processing occupation;
Machine trade occupation;
Benchwork occupation;
Structural work occupation; and
Miscellaneous occupation. Id.
The DOT provides examples of these occupations, including
processing and benchwork occupations. See Employment and Training
Administration, U. S. Department of Labor, Dictionary of Occupational
Titles (4th ed. 1991) available at http://www.oalj.dol.gov/libdot.htm.
As the general meaning of processing and benchwork occupations is
not clear from the title alone, additional explanation of these two
particular occupational categories is provided. Processing occupations
include occupations concerned with refining, mixing, compounding,
chemically treating, heat treating, or similarly working with materials
and products. Id. The DOT defines benchwork occupations as those
concerned with the use of hand tools and bench machines to fit, grind,
carve, mold, paint, sew, assemble, inspect, repair, and similarly work
relatively small objects and materials, such as jewelry, phonographs,
light bulbs, musical instruments, tires, footwear, pottery, and
garments. Id. The work is usually performed at a set position in a
mill, plant, or shop, at a bench, worktable, or conveyor. Id. All
occupations must be for a legitimate business not engaging directly or
indirectly in prostitution, trafficking in minors, or any other
activity that is illegal under Federal or CNMI law.
DHS notes that household domestic workers are eligible for CW-1.
However, DHS also notes that the definition of ``legitimate business''
may have a significant impact on domestic workers directly employed by
individuals, as ``business'' is defined to mean ``a real, active, and
operating commercial or entrepreneurial undertaking that produces goods
or services for profit.'' See 8 CFR 214.2(w)(1)(v). Individual
households employing individual domestic workers would not appear to be
a commercial or entrepreneurial undertaking, nor would the individual
household be producing goods or services for profit. Therefore, it is
anticipated that qualifying domestic workers likely would be employed
through a ``legitimate business'' for placement in individual
households.
The rule does not exclude any specific type of employment from the
occupational categories permissible for CW-1 workers. However, there
are three occupational categories--dancing, domestic workers, and
hospitality workers--about which DHS has particular concern. DHS notes
that women seeking employment as exotic dancers in the CNMI have been
particularly prone to sexual exploitation and other abuse. See, e.g.,
Senate Hearing 110-50, Conditions in the Commonwealth of the Northern
Mariana Islands (Feb. 8, 2007) (testimony of Lauri Bennett Ogumoro and
Sister Mary Stella Mangona). In a discussion between DHS officials and
advocates for exploited women in Saipan in July 2008, the advocates
identified so-called ``cultural dancing'' as a common front occupation
used to import women into the CNMI for the purposes of prostitution, in
addition to the category of domestic work. Additionally, waitressing
and other club and restaurant hospitality work also are known paths for
exploitation and abuse. See, e.g., United States v. Liu, 538 F.3d 1078
(9th Cir. 2008). DHS is considering excluding some or all of these
occupations from eligibility for CW status.
DHS also is concerned about the economic effects of blanket
exclusions of all dancers, domestic workers or hospitality service
workers. DHS emphasizes that, regardless of the occupational category,
all employers must be engaged in legitimate business, which is defined
to exclude employers that engage directly or indirectly in
prostitution, trafficking in minors, or any other activity that is
illegal under Federal or CNMI law. DHS invites comments on the
potential effect of excluding dancing from the list of eligible
occupations. DHS also invites comments on whether DHS should exclude
occupations, such as the hospitality industry, domestic service, or
other occupations, to combat human trafficking and sexual exploitation.
C. The CNMI-Only Transitional Worker Allocation System
Section 702(a) of the CNRA mandates that the Secretary of Homeland
Security establish, administer, and enforce a system for allocating and
determining the number, terms, and conditions of permits to be issued
to prospective employers for the transitional workers. Section 6(d) of
Public Law 94-241, as added by sec. 702(a) of Public Law 110-229. The
Secretary may base the system
[[Page 55098]]
on any reasonable method and criteria determined by the Secretary to
promote the maximum use, and to prevent adverse effects on wages and
working conditions, of U.S. citizens, lawful permanent residents, and
lawfully admissible freely-associated state citizen labor. Id. The
system must also provide for a reduction in the allocation of permits
for such workers on an annual basis to zero during a period not to
extend beyond December 31, 2014, unless extended by the Secretary of
Labor. Id. This rule does not, for the reasons explained below, impose
a specific annual reduction in allocation of permits, but does
establish the numerical limitation to be utilized initially and its
underlying methodologies for setting the numerical limitation
throughout the transition period.
Under section 702(a) of the CNRA, between May 8, 2008 and the
transition program effective date, the CNMI government must not
increase the total number of alien workers present in the CNMI. Section
6(i)(1) of Public Law 94-241, as added by sec. 702(a) of Public Law
110-229. Thus, the DHS-administered system, in its initial phase, will
be based on the estimate from the CNMI government of the maximum number
of nonresident workers in the CNMI as of May 8, 2008. That number is
22,417.\4\ This rule defines the numerical limitation as the number of
persons who may be granted CW-1 status and sets that number for the
initial year at no higher than 22,417. See 8 CFR 214.2(w)(1)(vii). DHS
will assess and reduce the number of grants of CW-1 status annually
based, in part, on the economic conditions in the CNMI, consultation
with the government of the CNMI and other Federal government agencies,
and employment opportunities available for the resident workforce. Id.
Grants of CW-1 status will be allocated based upon the availability of
CW-1 permits and a showing of eligibility based upon the requirements
outlined in this rule.
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\4\ See Letter from Benigno Fitial, Governor of the Commonwealth
of the Northern Mariana Islands, to Richard C. Barth, Assistant
Secretary for Policy Development, and Stewart A. Baker, Assistant
Secretary for Policy, Office of Policy, Department of Homeland
Security (July 18, 2008) (Fitial letter) (available at
www.regulations.gov under DHS Docket No. USCIS-2008-0038).
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Specifically, 22,417 is a composite figure that includes aliens
eligible for other INA categories, aliens with employment authorization
for the first two years of the transition period under the
``grandfather clause'' provided by section 6(e)(2) of Public Law 94-
241, as added by section 702(a) of Title VII of the CNRA, and CW-1
eligible aliens. Thus, while 22,417 could theoretically reflect the
total number of CW-1 eligible aliens, setting 22,417 as the total
number of CW-1 workers would artificially inflate the CW-1 eligible
population by presuming that there are zero ``grandfathered'' or other
INA workers. Therefore, this rule defines ``numerical limitation'' to
be the maximum number of persons who may be granted CW-1 status, but
for the reasons explained above, it is not expected that there will
actually be 22,417 CW-1 eligible aliens to whom CW-1 status will be
accorded. Id. DHS emphasizes that this provision is not intended to,
and will not have the effect of, providing any cap on the access of
CNMI employers to H and other nonimmigrant workers in the INA
categories.
The Governor of the CNMI has requested that DHS not reduce the
number of foreign workers available to CNMI employers in the first two
years of the transition program beyond the cap currently provided by
section 6(i)(1) of the Covenant Act.\5\ As required by section 702(a)
of the CNRA, DHS considered the request of the Governor of the CNMI in
creating this rule. However, in considering this request, DHS was also
bound by the statutory language mandating a reduction of numbers on an
annual basis. Section 6(d)(2) of Public Law 94-241, as added by sec.
702(a) of Public Law 110-229.
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\5\ See Fitial letter.
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In light of these interests, this rule sets the maximum number of
persons who may be granted CW-1 status for the first year of the
transition period at 22,417. See 8 CFR 214.2(w)(1)(vii)(A). For the
subsequent years of the transition period, the numerical limitation
will be a number less than 22,417, as determined at the discretion of
the Secretary. USCIS will publish the determination as a notice in the
Federal Register. See 8 CFR 214.2(w)(1)(vii)(B). DHS believes that,
given the lack of specific data available both on the foreign worker
population, particularly with respect to eligibility for other INA
categories and the number of ``grandfathered'' workers during the first
two years of the transition period, as well as the uncertainty of
future economic conditions in the CNMI, determining the CW-1 numerical
limitation in this manner is prudent.
D. Petitioning Procedures
This rule requires employers who seek to employ a CW-1 nonimmigrant
worker to file a petition with USCIS requesting such status. See 8 CFR
214.2(w)(1)(ix). USCIS has determined that its Form I-129, Petition for
a Nonimmigrant Worker, contains most of the information needed by USCIS
to determine that a particular employer and its current and prospective
employees are eligible as an employer and for CW-1 status,
respectively. However, because the CW program is a temporary program,
USCIS has decided to develop and use a separate Form I-129 called the
I-129CW (``Petition for a Nonimmigrant Worker in the CNMI''), for CW
petitions and will provide separate instructions for the application
form for requesting CW transitional workers. The petition must be
prepared in accordance with the form instructions and accompanied by
the appropriate fee or a fee waiver request. USCIS will charge the
current fee of $320 for Form I-129 for the Form I-129CW because the
adjudicative burden is expected to be identical. In addition to the
petitioning fee required for submission of a Form I-129, section 702(a)
of the CNRA requires employers to pay a supplemental CNMI education
funding fee of $150 per beneficiary per year. Section 6(b)(6) of Public
Law 94-241, as added by sec. 702(a) of Public Law 110-229. The
supplementary CNMI education funding fee is mandatory and cannot be
waived.
While fee waivers are not generally available in employment-based
cases, due to the unique circumstances present in the CNMI, USCIS may
waive the fee for the I-129CW in certain circumstances if the
petitioner is able to show inability to pay. See 8 CFR 103.7(c)(5)(i).
Due to the inherent inconsistency between sponsoring an alien for
employment and being unable to pay the requisite fee for that
sponsorship, USCIS expects that the situation when an employer would
adequately demonstrate an inability to pay will be extremely limited.
An estimate of the information collection requirements and a request
for comments are included in the Paperwork Reduction Act section of
this rule. An analysis of the fee impacts of this rule are included in
the summary of the costs and benefits also provided below.
Form I-129CW will require an employer to provide the full name of
the beneficiaries, as well as documentation or information that is
sufficient to demonstrate that the worker- beneficiaries on the
petition are eligible for CW-1 status based on the criteria in this
rule. This rule requires that the petitioner submit an attestation
regarding the eligibility of both the employer and the beneficiary. See
8 CFR 214.2(w)(6)(ii). This rule requires that
[[Page 55099]]
such an attestation certify that the petitioner meets the definition of
an eligible employer, that the beneficiary is qualified for the
position, and, if the beneficiary is present in the CNMI, that the
beneficiary is in lawful CNMI status. Id. Finally, the rule requires a
petitioner to attest that the position is nontemporary or nonseasonal,
is in an occupational category as designated by the Secretary, and that
qualified United States workers are not available to fill the position.
Id. DHS believes that having an attestation is necessary to ensure
eligibility of both the employer and of the beneficiary, and will
obviate the need to affirmatively determine whether the applicant is
eligible for status under every other conceivable INA category.
Additionally, certain professions may require licensure in order to
fully perform the duties of the occupation. In order to allow full and
competent performance of such duties, this rule requires the petitioner
to submit evidence of the beneficiary's licensure if the occupation
requires a Commonwealth or local license. See 8 CFR 214.2(w)(6)(iii).
The rule allows a beneficiary to request, and obtain, a transfer to
a new employer within an alien's occupational category or to another
occupational category that the Secretary of Homeland Security has
determined requires alien workers. See 8 CFR 214.2(w)(7). However, the
rule requires that a petition for a change of employer must be filed by
the new employer and an extension of the alien's stay must be requested
if necessary for the validity period of the petition. Id. An alien who
makes an unauthorized change of employment to a new employer has failed
to maintain his or her status. Id. Further, the rule requires an
employer to submit a new or amended petition for any material (i.e.--
substantive) change in the terms and conditions of employment. See 8
CFR 214.2(w)(8). DHS believes that such requirements are consistent
with other nonimmigrant categories allowing change of employers and
ensures that aliens are properly complying with the terms of their
admission in CW status while not making transfer between employers
impermissible.
The rule also allows petitioners to file for multiple
beneficiaries. See 8 CFR 214.2(w)(9). The rule permits a petitioning
employer to include more than one beneficiary in a CW-1 petition if the
beneficiaries will be working in the same occupational category, for
the same period of time, and in the same location. Id. However, the
rule does not allow employers to petition for unnamed beneficiaries. At
the time of filing, the petition must include the name of each intended
beneficiary and other required information, as indicated in the form
instructions. See 8 CFR 214.2(w)(10). DHS believes that allowing
multiple beneficiaries will ease the potential burden on petitioners
associated with submitting multiple individual petitions for multiple
beneficiaries. Requiring that such beneficiaries be named will allow
USCIS to verify, when necessary, prior lawful status of the
beneficiaries in the CNMI, as this rule requires.
The rule includes safeguards for the beneficiary in case of early
termination. See 8 CFR 214.2(w)(11). The rule requires that the
petitioning employer pay the reasonable cost of return transportation
of the alien to the alien's last place of foreign residence if the
alien is dismissed from employment for any reason by the employer
before the end of the period of authorized admission. Id. This
requirement is consistent with current employment practices in the
CNMI. This requirement also protects the Federal government from the
potential costs of removing indigent aliens from the CNMI and is within
DHS's discretion to impose requirements for temporary transitional
worker status under title VII of the CNRA and more generally under
section 214 of the INA.
The rule states that, after consideration of all the evidence
submitted, USCIS will issue an approval of the petition on a Form I-
797, Notice of Action, or in another form as USCIS may prescribe. See 8
CFR 214.2(w)(12). The rule requires that the approval notice include
the classification and name of the beneficiary or beneficiaries and the
petition's period of validity, and that a petition for more than one
beneficiary may be approved in whole or in part. See 8 CFR
214.2(w)(12)(i). However, the rule requires that petitioners will not
be able to file for a beneficiary earlier than six months before the
date of actual need for the beneficiary's services. See 8 CFR
214.2(w)(12)(ii). The rule further provides that, although USCIS may in
its discretion permit petitions to be filed prior to November 28, 2009,
USCIS will not grant CW-1 status or authorize the admission of any
alien to the CNMI prior to such date. Id.
The rule also states that although the beneficiary may be admitted
to the CNMI up to ten days before the validity period begins and may
remain no later than ten days after the validity period ends, the
beneficiary will only be able to work during the validity period of the
petition. See 8 CFR 214.2(w)(13). DHS believes that this validity
period is consistent with other nonimmigrant categories and permits the
necessary flexibility for travel and living arrangements to be made
both before and after period of authorized employment. Finally, this
rule requires that USCIS reject a petition once the numerical
limitation of 22,417 has been reached, but that in such cases the
petition and accompanying fee will be returned along with notice that
the numerical limitation has been reached. See 8 CFR 214.2(w)(20). DHS
believes that this will allow for reduction in CW workers in accordance
with the numerical limitation. An alien in the CNMI whose CW status
terminates, or who is not granted CW status at all, is not lawfully
present and is subject to removal if he or she does not have another
status under U.S. immigration law or other lawful basis to remain.
E. Obtaining CW Status
Once the Form I-129CW petition is approved, the beneficiary will
receive CW-1 status, and eligible family members may apply for CW-2
status for the spouse and dependents, as appropriate. See 8 CFR
214.2(w)(3). Dependents are spouses and minor children, as discussed
more fully below in part G. Aliens who are abroad will need to apply
for a CW-1 or CW-2 visa at a U.S. consulate. Aliens present in the CNMI
must apply for status using Form I-129CW, and shall be required to
provide biometrics along with an initial application for CW-1 or CW-2
status. See 8 CFR 214.2(w)(5) and (w)(15). When applicants apply
overseas, USCIS will not require that the applicants provide biometrics
along with Form I-129CW, although the Department of State may require
biometrics at a U.S. consulate or embassy abroad as part of its routine
visa processing procedures. Aliens present in the CNMI will not have
previously supplied biometric information to the Federal government;
therefore, because the federal government will not have conducted the
attendant security checks on those aliens, USCIS will require aliens in
the CNMI to provide biometrics. The applicable biometrics fee is $80. A
fee waiver is available based upon a showing of inability to pay for
the Form I-129CW and/or biometrics fees. See 8 CFR 103.7(b)(1); 8 CFR
103.7(c)(5)(i). Status will be evidenced using Form I-94 or other
appropriate documents.
F. Lawful Presence and Travel
The transitional worker program will be available to two groups of
aliens in general: (1) Those who are lawfully present in the CNMI; and
(2) those who are abroad. The rule defines lawful
[[Page 55100]]
presence as status under the CNMI immigration laws before the
transition program effective date, or status under the ``grandfather''
provision of the CNRA or U.S. immigration laws after the transition
program effective date. See Section 6(e)(1) or (2) of Public Law 94-
241, as added by sec. 702(a) of Title VII of the CNRA; 8 CFR
214.2(w)(1)(iv).
Short term visitors for business or pleasure, including individuals
admitted with a Visitor Entry Permit (VEP) under CNMI law, will not be
eligible to obtain CW classification, as such individuals are not part
of the foreign workforce that is the subject of this rule. Once status
is obtained, the CW-1 or CW-2 nonimmigrant may leave the CNMI and
return, but must have the appropriate visa for readmission. See 8 CFR
214.2(w)(22)(ii). Such a visa requirement at the time of application
for admission is consistent with current INA requirements. See INA sec.
212(a)(7)(B), 8 U.S.C. 1182(a)(7)(B). CW classification is valid only
in the CNMI, and provides no basis for travel to any other part of the
United States. See 8 CFR 214.2(w)(22)(i). An attempt to travel to any
other part of the United States without documentation authorizing
admission in another classification is a violation of the CW status
that will render the alien removable. Id.
G. Spouse and Minor Children of CW Transitional Worker
Section 702(a) of the CNRA, provides that spouses and minor
children of an alien in CW-1 nonimmigrant status may be authorized for
admission into the CNMI as accompanying or following to join the
principal CW worker, and this rule implements that authority. See 8 CFR
214.2(w)(3). The rule adopts the INA's definition of ``child'' for
immigration purposes other than naturalization in section 101(b),
adding a requirement that the child be under eighteen years of age
since the statute refers to ``minor children'' rather than
``children.'' See Section 6(d)(6) of Public Law 94-241, as added by
sec. 702(a) of Public Law 110-229; 8 CFR 214.2(w)(1)(vi). Generally,
work authorization is not permitted for accompanying spouses and
children of other classes of nonimmigrants as a result of their
derivative status, and this rule similarly does not provide it. See 8
CFR 214.2(w)(22)(iii).
H. Consideration of Petitions and Applications
A decision to grant or deny CW-1 or CW-2 status is discretionary
and USCIS may deny petitions for failure to demonstrate eligibility or
other good cause. Consistent with procedures for other nonimmigrant
categories, petitioners may appeal denials of Form I-129CW to the USCIS
Administrative Appeals Office on Form I-290B, as provided by 8 CFR
103.7(b). Denials of Form I-539, Application to Change or Extend
Nonimmigrant Status, are not appealable. See 8 CFR 214.2(w)(21).
I. Change or Adjustment of Status
Section 702(a) of the CNRA allows workers in the CW classification
to change to another nonimmigrant status or to adjust to lawful
permanent resident status throughout the transition period, if
eligible. Section 6(d)(1) of Public Law 94-241, as added by section
702(a) of Public Law 110-229. The rule provides that an alien may
legitimately be present in, or come to, the CNMI for a temporary period
as a CW-1 or CW-2 nonimmigrant and, at the same time, lawfully seek to
become a permanent resident of the United States provided the alien
intends to depart voluntarily at the end of the alien's authorized
nonimmigrant stay. See 8 CFR 214.2(w)(19). For purposes of qualifying
for CW-1 or CW-2 classification, the alien is not required to maintain
a residence abroad, and dual immigrant and nonimmigrant intent is
allowed. See 8 CFR 214.2(w)(19).
J. Period of Admission and Extensions of Stay
A CW transitional worker will be admitted for an initial period of
one year. See 8 CFR 214.2(w)(16). The spouse and children accompanying
or following to join a CW transitional worker will be admitted for the
same period that the principal alien is in valid CW transitional worker
status, or in the case of a minor child, until the age of 18. See 8 CFR
214.2(w)(16). Additionally, USCIS will grant extensions of CW status in
one-year increments until the end of the transition period. See 8 CFR
214.2(w)(17). Extensions of stay are subject to the numerical
limitation and section 702(a) of the CNRA further requires that the
number of permits be reduced on an annual basis. See 8 CFR
214.2(w)(1)(vii). A one-year validity period facilitates effective
management of the number of permits issued at any given time. DHS
welcomes comments on the CW-1 status validity period, its potential
impacts on CNMI employers and foreign workers, and ways to mitigate
these impacts while complying with the statute.
K. Post-Transition Period
Unless extended by the Secretary of Labor, the CNMI-only
transitional worker program will end on December 31, 2014. Section
6(a)(2) of Public Law 94-241, as added by section 702(a) of Public Law
110-229. After the end of the CNMI-only transitional worker program,
the CW classification will cease to exist, as existing grants of status
will automatically terminate and no new ones will be issued. See 8 CFR
214.2(w)(23).
IV. Technical Changes
This rule amends the current provisions of 8 CFR 214.2 by adding
paragraph (w) CNMI-Only Transitional Worker classification. See 8 CFR
214.2(w).
V. Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act (APA) provides that an agency may
dispense with notice and comment rulemaking procedures when an agency,
for ``good cause,'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' See 5 U.S.C.
553(b)(B). For reasons discussed below, DHS finds that prepromulgation
notice and comment for this rule would be impracticable, unnecessary,
and contrary to the public interest.
Although Congress provided DHS with twelve months (now eighteen
months under the extended transition date) to conduct and conclude the
rulemaking actions necessary to implement the requirements of the CNRA,
this timeframe is a relatively short timeframe to conduct a thorough
review of the CNMI's immigration system and develop the complex
regulatory scheme necessary to ensure a smooth transition of the CNMI
to the U.S. federal immigration system and thus avoid potential adverse
impacts on the CNMI economy and aliens currently residing lawfully in
the CNMI. Further, in developing these regulations, DHS required
sufficient time to engage in the necessary consultations with the CNMI
government, Departments of State and Interior and other required
stakeholders.
Under the APA, an agency is authorized to forego notice and comment
in emergency situations, or where ``the delay created by the notice and
comment requirements would result in serious damage to important
interests.'' Woods Psychiatric Institute v. United States, 20 Cl. Ct.
324, 333 (Cl. Ct. 1990) aff'd 925 F.2d 1454 (Fed. Cir. 1991); also
National Fed'n of Fed. Employees v. National Treasury Employees Union,
671 F.2d 607, 611 (D.C. Cir. 1982). ``[W]hen there is a lack of
specific and immediate guidance
[[Page 55101]]
from the agency that would create confusion, economic harm, and
disruption, not only to the participants of the program, who are forced
to rely on antiquated standards, but would also extend to consumers in
general, the good cause exception is a proper solution to ameliorate
this expected harm.'' Woods, 20 Cl. Ct. at 333. Under the CNRA, the
transition will begin on November 28, 2009, even if regulations to
guide the CNMI are not yet in place. Thus, the failure to have an
effective interim regulation in place by the beginning of the
transition period would serve only to harm the CNMI and aliens residing
in the CNMI following the transition. This would have an adverse impact
on the CNMI economy in direct contrast to congressional intent under
the CNRA and would be contrary to an important public interest.
Although DHS finds that good cause exists under 5 U.S.C. 553(b) to
issue this rule as an interim rule, DHS nevertheless invites written
comments on this interim rule and will consider those comments in the
development of a final rule in this action.
B. Executive Order 12866
This rulemaking is not considered ``economically significant''
under Executive Order 12866 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 that has
been placed in the public docket for this rulemaking.
In this analysis, we estimate the incremental costs to society,
including both the CNMI and the United States, of the rule. Given the
requisite reduction in the number of grants of CW status (to zero) by
the end of the transition period, the most significant economic impact
of the rule may result from a decrease in available foreign labor.
However, we cannot reliably measure this impact for two primary
reasons: (1) DHS has yet to develop a schedule for allocating and
reducing the number of grants of CW status, and (2) economic models
with which to estimate this impact are largely absent or cannot be
developed, given the general lack of CNMI economic and production data
and the changing conditions of the CNMI economy (due to changes in the
two primary industries in the CNMI: Garment manufacturing and tourism,
newly imposed minimum wage requirements, and the CNMI government's
fiscal condition). Furthermore, whether the U.S. Department of Labor
(DOL) will exercise its authority to extend the transition period
beyond 2014 is unknown at this time.
DHS notes that despite these limitations and for purposes of
illustration only, the U.S. Government Accountability Office (GAO) in a
recent report has simulated a range of possible impacts on the CNMI
economy (i.e., Gross Domestic Product) given varying rates of reduction
in the number of visas for foreign workers and decisions made by DOL
with respect to extending the transition period (see GAO-08-791, August
2008). We do not make any attempt to recreate, modify, or substantiate
the GAO analysis in this report.
As a result, we have calculated the estimable incremental direct
costs resulting from changes in the fees imposed for the visas required
by the rule. Because of the data limitations discussed above, we
qualitatively discuss the incremental effect of these costs on overall
production and government revenue in the CNMI.
The analysis focuses solely on impacts likely to be incurred during
the transition period beginning November 28, 2009, and ending December
31, 2014. There are four key assumptions that shape the framework and
methodology of our cost analysis:
1. The number of grants of CW status available during the
transition period ending December 31, 2014, will remain constant at
22,417 visas per year. We make this assumption because (1) DHS and
USCIS have not yet established a schedule for allocating and reducing
the number of grants of CW status; and (2) DOL has not yet decided
whether or not to extend the transition period beyond 2014. We again
note that GAO report 08-791 contains more information regarding
possible impacts on CNMI GDP given varying rates of reduction in the
number of CW visas for foreign workers and DOL with respect to
extending the transition period.
2. 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 2009. We estimate that approximately 14,543 foreign workers (13,543
in-status and 1,000 out-of-status who may be brought into lawful status
under CNMI law) will be granted CW status in 2009. This number is based
on the total number of foreign workers present in the CNMI as of August
2008 (19,083), as reported by the CNMI government, after subtracting
out: The number of garment factory workers assumed to have returned to
their home countries since that time (1,500); the number of foreign
workers eligible for visa classifications under the INA (2,090); and
the number of foreign workers ineligible for a grant of CW status (950
private domestic household workers and other ineligible workers).
3. 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, or the number of jobs available for such workers. We
make this assumption because CNMI's economic conditions are changing,
and we lack the data to definitively 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.
4. The current number of out-of-status foreign workers is 1,000.
The CNMI government estimates that 1,000 out-of-status foreign workers
were present in the CNMI as of August 2008. The CNMI government's
established cap of 22,417 CNMI foreign work permits is sufficient to
allow employers to bring all of these workers into lawful status prior
to the beginning of the transition period.
Collectively, these assumptions result in a scenario where no
shortage of labor is anticipated. Therefore, this analysis focuses on
estimating the change in costs associated with obtaining status for
foreign workers from USCIS instead of from the CNMI government.
However, it is also possible that annual reductions in the number of
grants of CW status could result in a shortage of labor, adversely
affecting the CNMI economy. As previously described, DHS will assess
and reduce the number of grants of CW-1 status annually based, in part,
on the economic conditions in the CNMI, consultation with the
government of the CNMI and other Federal government agencies, and
employment opportunities available for the resident workforce.
Consequently, we are unable to determine conclusively at this time
whether a shortage of labor will take place during the transition
period.
These assumptions are uncertain. Depending on how DHS reduces the
number of grants of CW status during the transition period, 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, or if the number of out-of-status foreign workers
has been underestimated by the CNMI
[[Page 55102]]
government, the rule could have negative impacts, perhaps significant,
on the CNMI economy. The absence of a defined 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
reliable analysis of alternative scenarios exploring these impacts in
depth.
In our analysis, DHS first estimates the current and future
baseline demand for foreign workers in the absence of the rule. In this
baseline analysis, we consider the prevailing economic conditions of
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 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 rule. We consider the number of
affected businesses and foreign workers as well as the foreign workers'
work and professional qualifications, eligibility based on employer or
occupation, and current status in the CNMI. We then estimate the
component costs that CNMI employers would incur to apply for and obtain
the requisite work permits (baseline regulatory environment) and CW
status for foreign workers (rule). We then combine this cost
information with our estimates of the number of grants of CW status
that would be issued to calculate the incremental direct 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 do not consider in our analysis separate costs to the CNMI or
the U.S. Federal government to administer the current CNMI permit
program and this rule, respectively. We assume that the fees associated
with applying for and obtaining the requisite permits and visas account
for the cost to each respective government of adjudicating petitions
and providing the relevant documentation.
As of November 28, 2009, the beginning of the transition period and
the implementation date for this regulation, we estimate that 17,583
foreign workers and 1,176 businesses in the CNMI will be subject to the
rule. Based on the available data, we estimate that approximately 2,090
of these workers may qualify for a nonimmigrant work visa available
under the INA, and at least 950 private domestic household and other
ineligible workers will not be eligible for CW status, leaving 14,543
foreign workers eligible for CW status. In addition, we estimate that
approximately 2,100 spouses and dependent children of foreign workers
will apply for admission under a second CW status category.
We consider and evaluate the following four alternatives:
Alternative 1 (the chosen alternative): Only aliens lawfully
present in the CNMI may qualify for CW status. An employer petitioner
can name more than one worker or ``beneficiary'' on a single Form I-
129CW petition if the beneficiaries will be working in the same
eligible occupational category, for the same period of time, and in the
same location. CW status is valid for a period of 1 year.
Alternative 2: Same as Alternative 1, but an employer petitioner
can name only one eligible beneficiary on each petition.
Alternative 3: Same as Alternative 1, but CW status is valid for a
period of 2 years.
Alternative 4: Same as Alternative 1, but aliens lawfully present
as well as aliens unlawfully present in the CNMI as of the beginning of
the transition period (November 28, 2009) may qualify for CW status.
We estimate the incremental costs on an annual basis over the same
period of time as the transition period, beginning with the year 2010
(to simplify our cost analysis by estimating the incremental costs on a
calendar year basis, we assume the transition period begins 1 month
later on January 1, 2010) and ending with the year 2014, in the absence
of any extension made by DOL. In addition, we estimate costs for the
20-month period prior to the onset of the transition period (May 8,
2008, to December 31, 2009) to account for the incremental costs of
issuing CNMI work permits to those foreign workers who are currently
out-of-status in the CNMI, thus allowing them to be eligible for CW
status or INA visa classifications under Alternatives 1, 2, and 3 of
the rule.
The incremental costs represent the change in the cost of obtaining
the necessary CW status and INA visas under the rule from the baseline
cost of obtaining foreign work permits under the current CNMI system.
We estimate that the baseline cost for issuing CNMI work permits to the
16,583 in-status foreign workers presently in the CNMI is about $4.9
million annually. Table 1 summarizes the results of the regulatory
analysis.
Table 1--Summary of Estimable Incremental Direct Costs of the Rule: Net Permit and Visa Costs Incurred by CNMI
Employers (CNMI Businesses and CNMI Government), 2009 Dollars in Millions
----------------------------------------------------------------------------------------------------------------
Year
-----------------------------------------------------------------------------
Alternative May '08-
Dec '09 2010 2011 2012 2013 2014 Total
----------------------------------------------------------------------------------------------------------------
Undiscounted
----------------------------------------------------------------------------------------------------------------
Alternative 1..................... $0.30 $0.12 -$3.4 -$3.4 -$2.6 -$3.4 .........
Alternative 2..................... 0.30 5.1 1.6 1.6 2.3 1.6 .........
Alternative 3..................... 0.30 0.12 -4.6 -3.4 -3.8 -3.4 .........
Alternative 4..................... 0 0.12 -3.4 -3.4 -2.6 -3.4 .........
----------------------------------------------------------------------------------------------------------------
3% Discount Rate
----------------------------------------------------------------------------------------------------------------
Alternative 1..................... $0.30 $0.11 -$3.2 -$3.1 -$2.3 -$2.9 -$11.2
Alternative 2..................... 0.30 4.9 1.5 1.4 2.1 1.3 11.5
Alternative 3..................... 0.30 0.11 -4.3 -3.1 -3.4 -2.9 -13.4
Alternative 4..................... 0 0.11 -3.2 -3.1 -2.3 -2.9 -11.5
----------------------------------------------------------------------------------------------------------------
7% Discount Rate
----------------------------------------------------------------------------------------------------------------
Alternative 1..................... $0.30 $0.11 -$3.0 -$2.8 -$2.0 -$2.4 -$9.8
[[Page 55103]]
Alternative 2..................... 0.30 4.7 1.4 1.3 1.8 1.1 10.6
Alternative 3..................... 0.30 0.11 -4.0 -2.8 -2.9 -2.4 -11.8
Alternative 4..................... 0 0.11 -3.0 -2.8 -2.0 -2.4 -10.1
----------------------------------------------------------------------------------------------------------------
Note: Detail may not sum to total due to independent rounding. These costs do not include the CW educational fee
and the H-1B visa American Competitiveness and Worker Improvement Act (ACWIA) fee because these fees represent
transfer payments under Executive Order 12866 and are redistributed in the economy. Estimated costs for the
period prior to the beginning of the transition period (May 2008 through December 2009) are assumed to be
largely incurred in 2009; thus, these costs are not discounted to calculate their present value in 2009.
The total present value costs of Alternatives 1, 3, and 4 are
projected to range from -$9.8 million to -$13.4 million depending on
the validity period of CW status (1 or 2 years), whether out-of-status
aliens present in the CNMI are eligible for CW status, and the discount
rate applied. These negative values indicate that society will
experience a net cost savings as a result of implementing one of these
three alternatives instead of the baseline. These savings 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 current CNMI permit system that requires an application and fee
paid for each employee. The additional costs for 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 20 percent. Additionally, allowing
out-of-status workers eligibility for CW status (Alternative 4) results
in additional cost savings of about 3 percent because CNMI employers
would not necessarily need to bring out-of-status workers to an in-
status condition (under CNMI law) prior to the beginning of the
transition period.
The total present value costs of Alternative 2 are projected to
range from $10.6 million to $11.5 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 is expected given that this
alternative requires a petition for each beneficiary.
The costs presented in Table 1 do not include the statutorily
required fee of $150 per beneficiary per year to fund vocational
education programs in the CNMI. This fee is to be paid for each
beneficiary seeking CW status. The costs also do not include the ACWIA
fee required for H-1B visa applicants. Although these fees represent a
cost to businesses or employer petitioners in the CNMI, we consider
these fees as a transfer or redistribution of funds within the CNMI and
U.S. economies and not as a component of the net costs of the rule to
society. We note that from the perspective of the employers, when these
fees are included, Alternatives 1, 3, and 4 are a net overall cost
rather than benefit.
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. First, 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. Second, 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 improvements, we describe
the intended benefits of the regulation qualitatively. Moreover, under
the assumptions outlined previously, because three of the four
alternatives analyzed, including the chosen alternative (Alternative
1), are projected to result in net cost savings to society, the rule
may produce a net overall quantifiable benefit to society. Assuming
that the fees collected by the CNMI government in the baseline and by
USCIS under each regulatory alternative equal the costs to the CNMI and
U.S. Federal governments of administering their respective programs,
the results of our analysis imply that the U.S. Federal government can
more cost-effectively administer the program while also providing
improved security benefits.
Notwithstanding the inestimable potential broader impacts of this
regulation on the CNMI economy that would result if the availability of
foreign labor is affected, the results of our analysis on the
incremental societal costs of the associated visa or status 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 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 4
is also expected to achieve more cost savings than Alternative 1, but
is considered less stringent because DHS has determined that requiring
lawful status in the CNMI as a prerequisite for CW eligibility is the
most efficient means to begin the Congressionally mandated drawdown of
transitional workers to zero by the end of the transition period.
Furthermore, to allow out-of-status workers in the CNMI to obtain CW
status would encourage noncompliance with CNMI immigration law during
the timeframe before the transition period effective date by removing
the incentive for such workers with lawful status to maintain or
reacquire such lawful status under CNMI law prior to the transition.
DHS and USCIS welcome comments on this analysis and the regulatory
alternatives considered.
C. Impacts to Small Entities
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-121), requires Federal agencies
[[Page 55104]]
to consider the potential impact of regulations on small businesses,
small governmental jurisdictions, and small organizations during the
development of their rules. When an agency invokes the good cause
exception under the Administrative Procedure Act (APA) to make changes
effective through an interim final rule, the RFA does not require an
agency to prepare a regulatory flexibility analysis. This rule makes
changes for which notice and comment are not necessary, and,
accordingly, DHS is not required to prepare a regulatory flexibility
analysis.
However, DHS and USCIS have considered the impacts of this interim
rule on small entities in the CNMI. A summary of the analysis is
presented below. For further details regarding this analysis, please
refer to the complete Regulatory Assessment that has been placed in the
public docket for this rulemaking.
(1) Why action by the agency is being considered: USCIS is
promulgating this regulation in response to legislation by Congress
imposing Federal immigration law on the CNMI. Congressional 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.'' Please refer to
Section II above for further detail.
(2) The objectives of, and legal basis for, the rule: On May 8,
2008, President George W. Bush signed the CNRA into law, Public Law
110-229 (CNRA). 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. Congress directs USCIS to minimize the
``potential adverse economic and fiscal effects of phasing-out'' CNMI's
nonresident contract worker program and maximizing CNMI's ``potential
for future economic and business growth.'' The objective of the CNMI-
only transitional worker program is to provide for an orderly
transition from the existing CNMI foreign worker permit system to the
U.S. immigration system and 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 Section II above for further detail.
(3) The type and number of small entities to which the rule will
apply: 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. We estimate there are approximately 1,000
businesses with 1 to 19 employees in the CNMI. 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 Small Business
Administration'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 annual revenues less than $7 million or
fewer than 50 employees. In many industries, the threshold is higher.
In addition, an unknown portion of the approximately 177 businesses
with 20 or more employees are likely to be small according to the SBA
size standards.
The CNMI government also employs foreign workers. A small
governmental jurisdiction is a government representing fewer than
50,000 constituents. Under this definition, the CNMI government is not
considered small, as the population of the CNMI is approximately
66,000.
Information on non-profit organizations in the CNMI is largely non-
existent or incomplete. USCIS believes, however, that like virtually
all entities in the CNMI, these organizations likely employ foreign
workers and would likely be considered small and would be affected by
this rule.
(4) Reporting, recordkeeping and other compliance requirements:
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 be completing
and filing these forms, which require basic administrative and
recordkeeping skills. The skills required to complete the new I-129CW
form are essentially the same as the skills required to complete the
necessary paperwork under the current CNMI permit program.
As described in the previous section on Executive Order 12866, DHS
and USCIS considered four regulatory alternatives.
Alternative 1 (the chosen alternative): Only aliens lawfully
present in the CNMI may qualify for CW status. An employer petitioner
can name more than one worker or ``beneficiary'' on a single Form I-
129CW petition if the beneficiaries will be working in the same
eligible occupational category, for the same period of time, and in the
same location. CW status is valid for a period of 1 year.
Alternative 2: Same as Alternative 1, but an employer petitioner
can name only one eligible beneficiary on each petition.
Alternative 3: Same as Alternative 1, but CW status is valid for a
period of 2 years.
Alternative 4: Same as Alternative 1, but aliens lawfully present
as well as aliens unlawfully present in the CNMI as of the beginning of
the transition period (November 28, 2009) may qualify for CW status.
Note that in the analysis in the previous section, fees associated
with CW status were considered intra-economy transfers and were thus
not considered in the estimation of net costs or net benefits to
society. In this analysis of small entities, however, these status fees
and the $150 educational fee are considered explicitly because the fees
are a direct cost a small entity will incur and a business's annual
revenue and ability to hire workers will be directly impacted by these
fees.
As estimated previously, businesses may experience costs in 2008
and 2009 to bring out-of-status workers into lawful CNMI status prior
to the onset of the transition period (November 28, 2009) in order to
avoid having to replace those workers. In 2010, businesses will obtain
visas issued under the INA for eligible workers, and they will obtain
CW status for the remaining eligible workers as well as their spouses
and children. For the purposes of the cost analysis, we assume the INA-
eligible workers will all qualify for H-1B visas (while this group may
qualify for other INA classifications, we use the cost to petition for
an H-1B visa because the costs for these visas are higher than for the
other classifications that foreign workers may be eligible for). The H-
1B visas will be renewed in 2013, while CW status will be renewed
annually or biennially, depending on the regulatory alternative. Table
2 presents the annual estimable incremental costs (i.e., the costs of
CW status and INA visas minus the costs of CNMI permits had the rule
not come into effect) for businesses of complying with the rule under
the chosen alternative, Alternative 1.
[[Page 55105]]
Table 2--Distribution of Net Permit and Visa Costs by Business Size, Alternative 1--Chosen Alternative
(undiscounted, $M, 2009)
----------------------------------------------------------------------------------------------------------------
May '08-
Business size (employees) Dec '09 2010 2011 2012 2013 2014
----------------------------------------------------------------------------------------------------------------
No paid employees........................ $0 $0 $0 $0 $0 $0
1 to 4................................... 0.02 0.41 0.03 0.03 0.18 0.02
5 to 9................................... 0.04 0.45 -0.13 -0.14 0.09 -0.15
10 to 19................................. 0.07 0.79 -0.24 -0.24 0.16 -0.26
20 or more............................... 0.17 2.4 -0.86 -0.88 0.80 -0.93
All businesses........................... 0.30 4.1 -1.2 -1.2 1.2 -1.3
----------------------------------------------------------------------------------------------------------------
Note: Net permit and visa costs include the CW education fee and H-1B visa ACWIA fee.
The costs of Alternative 1, as experienced by businesses, are the
highest in the first year of the transition period, when businesses
obtain initial INA-eligible visas for their employees in addition to CW
status and providing biometrics. In most years businesses will
collectively save money compared to the baseline, as the CW status,
including the education fee, are less expensive than the CNMI permits
on a per-worker basis, largely because multiple beneficiaries may be
included on a single I-129CW petition. However, the smallest
businesses, those employing 1 to 4 workers, may experience positive
costs in each year.
Alternative 2 requires businesses to file separate I-129CW
petitions for each of their foreign workers (multiple beneficiaries are
not permitted on a single petition). These costs, distributed by
business size, are shown in Table 3.
Table 3--Distribution of Net Permit and Visa Costs by Business Size, Alternative 2 (undiscounted, $M, 2009)
----------------------------------------------------------------------------------------------------------------
May '08-
Business size (employees) Dec '09 2010 2011 2012 2013 2014
----------------------------------------------------------------------------------------------------------------
No paid employees........................ $0 $0 $0 $0 $0 $0
1 to 4................................... 0.02 0.69 0.31 0.31 0.46 0.30
5 to 9................................... 0.04 1.1 0.48 0.47 0.70 0.46
10 to 19................................. 0.07 1.9 0.84 0.83 1.2 0.81
20 or more............................... 0.17 5.4 2.1 2.1 3.8 2.1
All businesses........................... 0.30 9.0 3.8 3.7 6.2 3.6
----------------------------------------------------------------------------------------------------------------
Note: Net permit and visa costs include the CW education fee and H-1B visa ACWIA fee.
The incremental costs of Alternative 2 are positive in every year,
as the transitional worker program is more expensive than the CNMI
permit process in the baseline in this case. Once again, businesses
face the highest costs in 2010 due to the added expense of obtaining
INA visas and providing biometrics.
Under Alternative 3, CW status is valid for two years. This
analysis calculates costs as if businesses will be required to pay the
education fee for those two years at the same time (i.e., businesses
will pay the $320 I-129CW filing fee along with $300 for two years
education fee at one time). The costs of visas under existing INA
classifications remain the same. The costs of Alternative 3 are shown
in Table 4.
Table 4--Distribution of Net Permit and Visa Costs by Business Size, Alternative 3 (undiscounted, $M, 2009)
----------------------------------------------------------------------------------------------------------------
May '08-
Business size (employees) Dec '09 2010 2011 2012 2013 2014
----------------------------------------------------------------------------------------------------------------
No paid employees........................ $0 $0 $0 $0 $0 $0
1 to 4................................... 0.02 0.59 -0.37 0.20 -0.22 0.02
5 to 9................................... 0.04 0.72 -0.57 0.12 -0.34 -0.15
10 to 19................................. 0.07 1.3 -1.0 0.21 -0.60 -0.26
20 or more............................... 0.17 3.7 -2.6 0.28 -0.84 -0.93
All businesses........................... 0.30 6.2 -4.5 0.8 -2.0 -1.3
----------------------------------------------------------------------------------------------------------------
Note: Net permit and visa costs include the CW education fee and H-1B visa ACWIA fee.
Businesses experience positive costs in the years in which they pay
CW status costs as well as payment of two years of education fees. In
the alternate years, businesses save money by not obtaining CNMI
permits for their workers. The net effect of these costs in comparison
to Alternative 1 is a slight savings for businesses, as they spend half
as much on I-129CW filing fees under that alternative.
Alternative 4 presents the same cost components and timing as
Alternative 1 with one exception: Because out-of-status workers will be
eligible for CW status, businesses have no incentive to bring those
workers into status (under CNMI law) prior to the onset of the
transition period. Therefore, the annual costs after the beginning of
the transition period (for our cost analysis, we assume January 1,
2010), for the two alternatives are the same; only the costs
[[Page 55106]]
in 2008 and 2009 differ. The costs for Alternative 4 are listed in
Table 5.
Table 5--Distribution of Net Permit and Visa Costs by Business Size, Alternative 4 (undiscounted, $M, 2009)
----------------------------------------------------------------------------------------------------------------
May '08-
Business size (employees) Dec '09 2010 2011 2012 2013 2014
----------------------------------------------------------------------------------------------------------------
No paid employees........................ $0 $0 $0 $0 $0 $0
1 to 4................................... 0 0.41 0.03 0.03 0.18 0.02
5 to 9................................... 0 0.45 -0.13 -0.13 0.09 -0.15
10 to 19................................. 0 0.79 -0.24 -0.24 0.16 -0.26
20 or more............................... 0 2.4 -0.86 -0.86 0.80 -0.93
All businesses........................... 0 4.1 -1.2 -1.2 1.2 -1.3
----------------------------------------------------------------------------------------------------------------
Note: Net permit and visa costs include the CW education fee and H-1B visa ACWIA fee.
Under all four alternatives, businesses experience the highest net
positive costs in the first year of the transition period. Therefore,
we will compare these 2010 costs to the annual revenues and payrolls
for businesses of each size category. Table 6 lists the number of
businesses in each size category along with the average payroll and
average revenue of businesses in those size categories in 2010 dollars.
Table 6--Average Payroll and Revenue of Businesses
------------------------------------------------------------------------
Average Average
Business size (employees) Businesses payroll ($M) revenue ($M)
------------------------------------------------------------------------
No paid employees.............. 61 0 0.096
1 to 4......................... 476 0.034 0.17
5 to 9......................... 244 0.096 0.66
10 to 19....................... 210 0.17 1.0
20 or more..................... 200 1.0 4.8
All businesses................. 1,191 0.23 1.2
------------------------------------------------------------------------
Average payrolls range from $34,000 per business (1 to 4 employees)
to $1.0 million per business (20 or more employees). Average revenue
also scales with the size of the business, from $96,000 for sole
proprietorships to $4.8 million for businesses with 20 or more
employees. For comparison, Table 7 presents the per-business
incremental costs of each alternative and the ratio of these costs to
the average payroll and revenue.
Table 7--Estimated 2010 Permit and Visa Costs per Business as a
Percentage of Payroll and Revenue
------------------------------------------------------------------------
Cost/
Business size (employees) business Percent Percent
($) payroll revenue
------------------------------------------------------------------------
Alternative 1
------------------------------------------------------------------------
No paid employees................ 0 0 0
1 to 4........................... 869 2.6 0.52
5 to 9........................... 1,832 1.9 0.28
10 to 19......................... 3,750 2.2 0.37
20 or more....................... 12,230 1.3 0.26
All businesses (average)......... 3,438 1.5 0.29
------------------------------------------------------------------------
Alternative 2
------------------------------------------------------------------------
No paid employees................ 0 0 0
1 to 4........................... 1,451 4.3 0.86
5 to 9........................... 4,313 4.5 0.66
10 to 19......................... 8,881 5.2 0.87
20 or more....................... 27,203 2.8 0.57
All businesses (average)......... 7,598 3.3 0.64
------------------------------------------------------------------------
Alternative 3
------------------------------------------------------------------------
No paid employees................ 0 0 0
1 to 4........................... 1,241 3.7 0.74
5 to 9........................... 2,938 3.0 0.45
10 to 19......................... 6,028 3.5 0.59
20 or more....................... 18,291 1.9 0.38
All businesses (average)......... 5,232 2.3 0.44
------------------------------------------------------------------------
[[Page 55107]]
Alternative 4
------------------------------------------------------------------------
No paid employees................ 0 0 0
1 to 4 869 2.6 0.52
5 to 9........................... 1,832 1.9 0.28
10 to 19......................... 3,750 2.2 0.37
20 or more....................... 12,230 1.3 0.26
All businesses (average)......... 3,438 1.5 0.29
------------------------------------------------------------------------
Note: Net permit and visa costs include the CW status education fee and
H-1B visa ACWIA fee.
Under all four alternatives, the additional costs imposed by the
rule in 2010 represent less than 0.9 percent of annual revenues.
Compared to payroll, however, the impacts are about 5 to 7 times
higher. Under Alternative 1 (the chosen alternative) businesses of all
sizes experience increased labor costs of 1.3 to 2.6 percent on
average, depending on the size of the business. Considering that the
payroll costs presented in Table 6 do not include benefits, the actual
percentage increase in labor costs for 2010 are actually smaller than
reported in the exhibit. In light of these results, it does not appear
that the change from CNMI permits to USCIS status represents a large
impact on small businesses.
The analysis to this point has focused on the impact of replacing
the CNMI foreign worker permits with INA visas and the CW status. This
change does not appear to have a large economic impact on small
businesses. However, the rule also establishes the intent of USCIS to
reduce the number of grants of CW status on an annual basis to zero at
the conclusion of the transition period, unless the transition period
is extended by the U.S. Department of Labor. Reducing the number of
grants of CW status may have a larger impact. In addition, the
ineligibility of certain workers (e.g., domestic household workers
employed directly by private residents) may have a notable economic
impact.
(5) Federal rules that may duplicate, overlap or conflict with the
interim rule: In 1976, the CNMI negotiated political union with the
United States, agreeing to the Covenant to Establish a Commonwealth of
the Northern Mariana Islands (CNMI) in Political Union with the United
States. Under the Covenant, United States citizenship was conferred on
legally qualified CNMI residents, and Federal law generally applies to
the CNMI, with the exception of the income tax system, and until
recently, the Federal minimum wage and immigration laws. This rule,
when finalized, supersedes existing CNMI immigration law.
(6) Significant alternatives to the interim rule that accomplish
the stated objectives of applicable statutes and that minimize any
economic impact to small entities: As described above, USCIS 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. To
address Congress' requirement that USCIS minimize ``potential adverse
economic and fiscal effects of phasing-out'' CNMI's nonresident
contract worker program, the rule allows for multiple beneficiaries per
Form I-129CW, which, as shown above, represents a cost savings over the
baseline and relative to Alternative 2, where a separate Form I-129CW
is required for each worker. USCIS had considered alternatives that
exempt small entities from this rule; however, such alternatives would
not achieve the security objective of the CNRA, which is to establish
Federal responsibility over immigration throughout the CNMI, and during
the transition period, provide all eligible foreign workers a temporary
status to continue work in the CNMI. While USCIS cannot exempt small
entities from the requirements of the rule and meet the statutory
objectives of the CNRA, USCIS may grant waivers from the Form I-129CW
and biometric fees on a case-by-case basis for those applicants showing
an inability to pay, which has the potential to minimize the impact of
the rule on small entities.
In addition, we emphasize that it is the reduction in the number of
grants of CW status that will have a potentially large impact on small
entities; however, the interim rule does not prescribe a schedule for
allocating CW status throughout the transition period.
In summary, because the rule affects all businesses employing
foreign workers, it likely affects a notable number of small entities
in every industry. Based on this analysis, USCIS does not believe the
requirement that businesses obtain CW status or INA visas will have a
large impact on a per-business basis because it will coincide with the
end of the CNMI permit program. However, the impact of the reduction in
grants of available status (and thus foreign workers) is less certain.
DHS and USCIS welcome comments on this analysis.
D. Unfunded Mandates Reform Act of 1995
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.
Please refer to the section above on Executive Order 12866 for further
details on the potential economic impacts of this rule.
E. Executive Order 13132
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.
[[Page 55108]]
F. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988.
G. Paperwork Reduction Act (PRA)
Under the Paperwork Reduction Act of 1995, Public Law 104-13, 109
Stat. 163 (1995), all Departments are required to submit to OMB, for
review and approval, any reporting or recordkeeping requirements
inherent in a regulatory action. The collections of information
encompassed within this rule have been submitted to the OMB for review
in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
An agency may not conduct, and a person is not required to respond to,
a collection of information unless the collection of information
displays a valid control number assigned by OMB.
USCIS is requiring a new form, Form I-129CW, to collect the
information required for an employer to petition for CW status on
behalf of one or more beneficiaries. Since this is an interim rule,
this information collection has been submitted and approved by OMB
under the emergency review and clearance procedures covered under the
PRA. During the first 60 days, USCIS is requesting comments on this
information collection until December 28, 2009. When submitting
comments on this information collection, your comments should address
one or more of the following four points.
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Overview of this Information Collection:
a. Type of information collection: New information collection.
b. Abstract: This collection is necessary to determine whether a
petitioner and beneficiary meet the 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.
c. Title of Form/Collection: Petition for a Nonimmigrant Worker in
the CNMI.
d. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-
129CW; U.S. Citizenship and Immigration Services.
e. Affected public who will be asked or required to respond:
Individuals and businesses.
f. An estimate of the total number of respondents: 1,178
respondents.
g. Number of Responses per Respondent: 1.34. Responses per
respondent reflect the assumption that most petitioners will have to
file only one I-129CW, but some petitioners will have to file multiple
forms. On average, this equals 1.34 responses per respondent.
h. Total Annual Responses: 1,580.
i. Hours per Response: 3.0 hours per response.
j. Total Annual Reporting Burden: 4,740.
Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden may be submitted to The Department
of Homeland Security, USCIS, Chief, Regulatory Products Division,
Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210.
Besides the creation of the new Form I-129CW, the information
collection requirements contained in this rule have been cleared by OMB
under the provisions of the Paperwork Reduction Act. 44 U.S.C. Chapter
35; 5 CFR Part 1320.
In addition, termination of the current CNMI worker program will
result in employers petitioning for those employees under another visa
under the INA. 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,
Application to Extend/Change Nonimmigrant Status, OMB Control Number
1615-0003. Accordingly, DHS submitted Form OMB 83-C, Correction
Worksheet, to OMB to increase the number of respondents submitting Form
I-129 and Form I-539.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(Government agencies), Freedom of Information, Privacy, Reporting and
recordkeeping requirements, Surety bonds.
8 CFR Part 214
Administrative practice and procedure, Aliens, Employment, Foreign
Officials, Health Professions, Reporting and recordkeeping
requirements, Students.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
0
Accordingly, chapter I of title 8 of the Code of Federal Regulations is
amended as follows:
PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304,
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1
et seq.), E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166;
8 CFR part 2.
0
2. Section 103.7 is amended by:
0
a. Adding the entry ``I-129CW'' in proper alpha/numeric sequence, in
paragraph (b)(1); and
0
b. Revising paragraph (c)(5)(i).
The revisions and additions read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-129CW. For an employer to petition for CW status on behalf
of one or more beneficiaries--$320 plus a supplemental CNMI education
funding fee of $150 per beneficiary per year. The CNMI education
funding fee cannot be waived.
* * * * *
(c) * * *
(5) * * *
(i) Biometrics; Form I-90; Form I-129CW; Form I-751; Form I-765;
Form I-817; I-929; Form N-300; Form N-336; Form N-400; Form N-470; Form
N-565; Form N-600; Form N-600K; and Form
[[Page 55109]]
I-290B and motions filed with U.S. Citizenship and Immigration Services
relating to the specified forms in this paragraph (c); and
* * * * *
PART 214--NONIMMIGRANT CLASSES
0
3. The authority citation for part 214 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208,
110 Stat. 3009-708; Public Law 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; Title VII of Public Law 110-229; 8 CFR part 2.
0
4. Section 214.2 is amended by adding paragraph (w) to read as follows:
Sec. 214.2 Special requirements for admission, extension, and
maintenance of status.
* * * * *
(w) CNMI-Only Transitional Worker (CW-1)
(1) Definitions. The following definitions apply to petitions for
CW status for employment in the Commonwealth of the Northern Mariana
Islands (the CNMI or the Commonwealth) filed under this section:
(i) Doing business means the regular, systematic, and continuous
provision of goods or services by an employer as defined in this
paragraph and does not include the mere presence of an agent or office
of the employer in the CNMI.
(ii) Employer means a person, firm, corporation, contractor, or
other association, or organization which:
(A) Engages a person to work within the CNMI; and
(B) Has or will have an employer-employee relationship with the CW-
1 nonimmigrant being petitioned for.
(iii) Employer-employee relationship means that the employer may
hire, pay, fire, supervise, or otherwise control the work of the
employee.
(iv) Lawfully present in the CNMI means that the alien has lawfully
been admitted to the CNMI under the immigration laws of the
Commonwealth in a category other than short term visitor for pleasure
or business (240(c), 703(A), 703(B), or 704(B) under CNMI
classifications). With respect to any application for transitional
worker status filed or adjudicated after the transition program
effective date, lawfully present in the CNMI means that the alien:
(A) Is an alien described in section 6(e)(1) or (2) of Public Law
94-241, as added by section 702(a) of Public Law 110-229, other than an
alien described in section 6(e)(1) who was admitted to the CNMI as a
short term visitor for pleasure or business (240(c), 703(A), 703(B), or
704(B) under CNMI classifications); or
(B) Was lawfully admitted to the CNMI under the immigration laws on
or after the transition program effective date, other than an alien
admitted as a visitor for business or pleasure (B-1 or B-2 or under any
visa-free travel provision).
(v) Legitimate business means a real, active, and operating
commercial or entrepreneurial undertaking which produces services or
goods for profit, or is a governmental, charitable or other validly
recognized nonprofit entity. The business must meet applicable legal
requirements for doing business in the CNMI. A business will not be
considered legitimate if it engages directly or indirectly in
prostitution, trafficking in minors, or any other activity that is
illegal under Federal or CNMI law. The Secretary will determine whether
a business is legitimate.
(vi) Minor child means a child as defined in section 101(b)(1) of
the Act who is under the age of eighteen years.
(vii) Numerical limitation means the maximum number of persons who
may be granted CW-1 status in a given fiscal year or other period as
determined by the Secretary, as follows:
(A) For the period beginning on November 28, 2009 and ending on
September 30, 2010, the numerical limitation is 22,417.
(B) For each fiscal year beginning on October 1, 2010 until the end
of the transition period, the numerical limitation shall be a number
less than 22,417 that is determined by the Secretary and published via
Notice in the Federal Register. The numerical limitation for any fiscal
year shall be less than the number for the previous fiscal year, and
shall be a number reasonably calculated in the Secretary's discretion
to reduce the number of CW-1 nonimmigrants to zero by the end of the
transition period.
(C) The Secretary may adjust the numerical limitation for a fiscal
year or other period at her discretion at any time via Notice in the
Federal Register, as long as such adjustment is consistent with
paragraph (w)(1)(vii)(B) of this section.
(viii) Occupational category means those employment activities that
the Secretary of Homeland Security has determined require alien workers
to supplement the resident workforce and includes:
(A) Professional, technical, or management occupations;
(B) Clerical and sales occupations;
(C) Service occupations;
(D) Agricultural, fisheries, forestry, and related occupations;
(E) Processing occupations;
(F) Machine trade occupations;
(G) Benchwork occupations;
(H) Structural work occupations; and
(I) Miscellaneous occupations.
(ix) Petition means USCIS Form I-129CW, Petition for a Nonimmigrant
Worker in the CNMI, a successor form, or other form, any supplemental
information requested by USCIS, and additional evidence as prescribed
by USCIS.
(x) Transition period means the period beginning on the transition
program effective date and ending on December 31, 2014, unless the
CNMI-only transitional worker program is extended by the Secretary of
Labor.
(xi) Transition program effective date means November 28, 2009.
(xii) United States worker means a national of the United States,
an alien lawfully admitted for permanent residence, or a national of
the Federated States of Micronesia, the Republic of the Marshall
Islands, or the Republic of Palau who is eligible for nonimmigrant
admission and is employment-authorized under the Compacts of Free
Association between the United States and those nations.
(2) Eligible aliens. Subject to the numerical limitation, an alien
may be classified as a CW-1 nonimmigrant if, during the transition
period, the alien:
(i) Will enter or remain in the CNMI for the purpose of employment
in the transition period in an occupational category as designated by
the Secretary 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,
except for an alien present in the CNMI who is described in section
212(a)(7)(B)(i)(II) of the Act (not in possession of nonimmigrant
visa); and
(vi) Is ineligible for status in a nonimmigrant worker
classification under section 101(a)(15) of the Act, including but not
limited to, section 101(a)(15)(H) of the Act.
(3) Derivative beneficiaries--CW-2 nonimmigrant classification. The
spouse or minor child of a CW-1 nonimmigrant may accompany or follow
the alien as a CW-2 nonimmigrant if the alien:
[[Page 55110]]
(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,
except for an alien present in the CNMI who is described in section
212(a)(7)(B) of the Act (not in possession of nonimmigrant visa).
(4) Eligible employers. To be eligible to petition for a CW-1
nonimmigrant worker, an employer must:
(i) Be engaged in legitimate business;
(ii) Consider all available United States workers for the positions
being filled by the CW-1 worker;
(iii) Offer terms and conditions of employment which are consistent
with the nature of the occupation, activity, and industry in the CNMI;
and
(iv) Comply with all Federal and Commonwealth requirements relating
to employment, including but not limited to nondiscrimination,
occupational safety, and minimum wage requirements.
(5) Petition requirements. An employer who seeks to classify an
alien as a CW-1 worker must file a petition with USCIS and pay the
requisite petition fee plus the CNMI education fee of $150 per
beneficiary per year. If the beneficiary will perform services for more
than one employer, each employer must file a separate petition with
USCIS.
(6) Accompanying evidence. A petition must be accompanied by:
(i) Evidence demonstrating the petitioner meets the definition of
eligible employer in this section.
(ii) An attestation by the petitioner certified as true and
accurate by an appropriate official of the petitioner, of the
following:
(A) Qualified United States workers are not available to fill the
position;
(B) The employer is doing business as defined in 8 CFR
214.2(w)(1)(i);
(C) The employer is a legitimate business as defined in 8 CFR
214.2(w)(1)(v);
(D) The beneficiary meets the qualifications for the position;
(E) The beneficiary, if present in the CNMI, is lawfully present in
the CNMI;
(F) 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
(G) The position falls within the list of occupational categories
designated by the Secretary.
(iii) Evidence of licensure if an occupation requires a
Commonwealth or local license for an individual to fully perform the
duties of the occupation. Categories of valid licensure for CW-1
classification are:
(A) Licensure. An alien seeking CW-1 classification in that
occupation must have that license prior to approval of the petition to
be found qualified to enter the CNMI and immediately engage in
employment in the occupation.
(B) Temporary licensure. If a temporary license is available and
allowed for the occupation with a temporary license, USCIS may grant
the petition at its discretion after considering the duties performed,
the degree of supervision received, and any limitations placed on the
alien by the employer and/or pursuant to the temporary license.
(C) Duties without licensure. If the CNMI allows an individual to
fully practice the occupation that usually requires a license without a
license under the supervision of licensed senior or supervisory
personnel in that occupation, USCIS may grant CW-1 status at its
discretion after considering the duties performed, the degree of
supervision received, and any limitations placed on the alien if the
facts demonstrate that the alien under supervision could fully perform
the duties of the occupation.
(7) Change of employers. An unauthorized change of employment to a
new employer will constitute a failure to maintain status within the
meaning of section 237(a)(1)(C)(i) of the Act. A CW-1 nonimmigrant may
change employers if:
(i) The prospective new employer files a petition requesting the
CW-1, and
(ii) An extension of the alien's stay is requested if necessary for
the validity period of the petition.
(8) Amended or new petition. If there are any material changes in
the terms and conditions of employment, the petitioner must file an
amended or new petition to reflect the changes.
(9) Multiple beneficiaries. A petitioning employer may include more
than one beneficiary in a CW-1 petition if the beneficiaries will be
working in the same occupational category, for the same period of time,
and in the same location.
(10) Named beneficiaries. The petition must include the name of the
beneficiary and other required information, as indicated in the form
instructions, at the time of filing. Unnamed beneficiaries will not be
permitted.
(11) Early termination. The petitioning employer must pay the
reasonable cost of return transportation of the alien to the alien's
last place of foreign residence if the alien is dismissed from
employment for any reason by the employer before the end of the period
of authorized admission.
(12) Approval. USCIS will consider all the evidence submitted and
such other evidence required in the form instructions to adjudicate the
petition. USCIS will notify the petitioner of the approval of the
petition on Form I-797, Notice of Action, or in another form as USCIS
may prescribe:
(i) The approval notice will include the 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.
USCIS may in its discretion permit petitions to be filed and take other
actions under this paragraph prior to the transition program effective
date, but in no case will USCIS grant CW-1 status or authorize the
admission of any alien to the CNMI prior to such date.
(13) Petition validity. A beneficiary will be admitted to the CNMI
for the validity period of the petition, plus up to 10 days before the
validity period begins and 10 days after the validity period ends. The
beneficiary may not work except during the validity period of the
petition. No petition shall authorize admission as a CW-1 nonimmigrant
before the transition period effective date.
(14) Where to apply. The beneficiary, eligible spouse and minor
children may:
(i) Upon petition approval, apply for a visa at a U.S. consulate
authorizing admission in CW-1 or CW-2 status, as appropriate, at a port
of entry in the CNMI on or after the transition program effective date;
or
(ii) If present in the CNMI, apply for classification as a CW-1 or
CW-2 nonimmigrant by filing Form I-129CW (or such alternative form as
USCIS may designate) with USCIS. An alien applying for CW-1 or CW-2
status is eligible for a waiver of the fee for Form I-129CW based upon
inability to pay as provided by 8 CFR 103.7(c)(1).
(15) Biometrics. USCIS shall require a beneficiary initially
applying for CW-1 or CW-2 status to submit biometric information if the
beneficiary is present in the CNMI. A beneficiary present in the CNMI
must pay or obtain a waiver of the biometric service fee described in 8
CFR 103.7(b)(1).
(16) Period of admission. (i) A CW-1 nonimmigrant will be admitted
for an initial period of one year. A CW-2 spouse will be admitted for
the same period as the principal alien. A CW-2
[[Page 55111]]
minor child will be admitted for the same period as the principal
alien, but such admission shall not extend beyond the child's 18th
birthday.
(ii) The temporary departure from the CNMI of the CW-1 nonimmigrant
will not affect the derivative status of the CW-2 spouse and minor
children, provided the familial relationship continues to exist and the
principal remains eligible for admission as a CW-1 nonimmigrant.
(17) Extension of visa petition validity and extension of stay. (i)
The petitioner may request an extension of an employee's CW-1
nonimmigrant status by filing a new petition and accompanying evidence
as described in 8 CFR 214.2(w)(6)(ii).
(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 periods of 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; and
(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) Change or adjustment of status. A CW-1 or CW-2 nonimmigrant
can apply to change nonimmigrant status under section 248 of the Act or
apply for adjustment of status under section 245 of the Act, if
otherwise eligible. During the transition period, CW-1 or CW-2
nonimmigrants may be petitioned for or may apply for any nonimmigrant
or immigrant visa classification for which they may qualify.
(19) Effect of filing an application for or approval of a permanent
labor certification, preference petition, or filing of an application
for adjustment of status on CW-1 or CW-2 classification. An alien may
legitimately come to the CNMI for a temporary period as a CW-1 or CW-2
nonimmigrant and, at the same time, lawfully seek to become a lawful
permanent resident of the United States provided he or she intends to
depart the CNMI voluntarily at the end of the period of authorized
stay. The filing of an application for or approval of a permanent labor
certification or an immigrant visa preference petition, the filing of
an application for adjustment of status, or the lack of residence
abroad will not be the basis for denying:
(i) A CW-1 petition filed on behalf of the alien;
(ii) A request to extend a CW-1 status pursuant to a petition
previously filed on behalf of the alien; or
(iii) An application for admission as a CW-1 or CW-2 nonimmigrant.
(20) Rejection. USCIS may reject an employer's petition for new or
extended CW-1 status if the numerical limitation has been met. In that
case, the petition and accompanying fee will be rejected and returned
with the notice that numbers are unavailable for the particular
nonimmigrant classification. The beneficiary's application for
admission based upon an approved petition will not be rejected based
upon the numerical limitation.
(21) Denial. The ultimate decision to grant or deny CW-1 or CW-2
status is a discretionary determination, and the petition or the
application may be denied for failure of the petitioner or the
applicant to demonstrate eligibility or for other good cause. The
denial of a CW-1 petition may be appealed to the USCIS Administrative
Appeals Office. The denial of a Form I-539 application may not be
appealed.
(22) Terms and conditions of CW Nonimmigrant status. (i)
Geographical limitations. CW-1 and CW-2 statuses are only applicable in
the CNMI. Entry, employment and residence in the rest of the United
States (including Guam) require the appropriate visa or visa waiver
eligibility. 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 eligibility, or who
violates conditions of nonimmigrant stay applicable to any such
authorized status in any other part of the United States, will be
deemed to have violated CW-1 or CW-2 status.
(ii) Re-entry. An alien with CW-1 or CW-2 status who departs the
CNMI will require a CW-1 or CW-2 or other appropriate visa to be re-
admitted to the CNMI.
(iii) Employment authorization. An alien with CW-1 nonimmigrant
status is only authorized employment in the CNMI for the petitioning
employer. An alien with CW-2 status is not authorized to be employed.
(23) Expiration of transition period. CW-1 status expires at the
end of the transition period. CW-2 nonimmigrant status expires when the
related CW-1 status expires or on a CW-2 minor child's 18th birthday,
if sooner, or if the alien violates his or her status. No alien will be
eligible for admission to the CNMI in CW-1 or CW-2 status, and no CW-1
or CW-2 visa will be valid for travel to the CNMI, after the transition
period.
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
5. The authority citation for part 274a continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2.
0
6. Section 274a.12 is amended by adding and reserving paragraph
(b)(22), and adding paragraph (b)(23), to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(23) A Commonwealth of the Northern Mariana Islands transitional
worker (CW-1) pursuant to 8 CFR 214.2(w). An alien in this status may
be employed only in the CNMI during the transition period and only by
the petitioner through whom the status was obtained.
* * * * *
PART 299[horbar]IMMIGRATION FORMS
0
7. The authority citation for part 299 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
0
8. Section 299.1 is amended in the table by adding Form ``I-129CW'' to
the list of prescribed forms in proper alpha/numeric sequence, to read
as follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * * * * *
I-129CW............................ 10-22-09 Petition for a CNMI-
Only Nonimmigrant
Transitional Worker.
[[Page 55112]]
* * * * * * *
------------------------------------------------------------------------
0
9. Section 299.5 is amended in the table by adding the Form ``I-129CW''
in proper alpha/numeric sequence, to read as follows:
Sec. 299.5 Display of control number.
* * * * *
------------------------------------------------------------------------
Currently
assigned
Form No. Form title OMB control
no.
------------------------------------------------------------------------
* * * * * * *
I-129CW............................ Petition for a CNMI- 1615-0111
Only Nonimmigrant
Transitional Worker.
* * * * * * *
------------------------------------------------------------------------
Janet Napolitano,
Secretary.
[FR Doc. E9-25808 Filed 10-26-09; 8:45 am]
BILLING CODE 9111-97-P