DHS issues final worker rule

The U.S. Department of Homeland Security released late Tuesday night in the CNMI a 149-page pre-publication version of the much-awaited final rule governing foreign workers in the CNMI.

The rule creates a Commonwealth-only worker status—or CW permit—that will allow foreign workers to remain in the CNMI until the end of the transition period on Dec. 31, 2014.

Of particular importance, however, is the requirement that a foreign worker should already have a CW permit—or their application should already be in process—by Nov. 27, 2011, or they will face deportation. That gives employers less than three months to apply for CW permits for all their foreign employees.

The final rule will be published in the Sept. 7 (or Sept. 8 CNMI time) issue of the Federal Register.

The full text of the Commonwealth-only transitional worker regulations can be accessed at [URL=”http://www.federalregister.gov/articles/2011/09/07/2011-22622/commonwealth-of-the-northern-mariana-islands-transitional-worker-classification”] www.federalregister.gov [/URL]. To download a PDF file, click on [URL=”http://www.gpo.gov/fdsys/pkg/FR-2011-09-07/pdf/2011-22622.pdf “] www.gpo.gov [/URL]

Employers will be the one to petition their employees for a CW classification. Foreign workers cannot petition themselves to obtain such status.

However, foreign workers with CW status may petition to have their alien spouses and alien minor children remain with them in the CNMI for the period they are employed.

Spouses and children of workers with CW status may not work unless they have a separate work authorization.

The fee for Form I-29CW is $325, to be paid by the employer in petitioning for a CW worker.

There is also a mandatory CNMI education funding fee of $150 fee per beneficiary.

An $85 biometrics fee may also be collected for each beneficiary of a CW petition.

DHS estimates that 16,258 foreign workers and 1,176 businesses in the CNMI are subject to the final rule.

Of this number, 13,399 foreign workers are potentially eligible for CW status.

But at least 950 private domestic household workers will not be eligible for a CW status, DHS said.

The federal agency also said there are 183 out-of-status workers, as estimated by the U.S. Department of the Interior as of Dec. 31, 2009.

Workers will still be required to apply for parole and advance parole for travel purposes.

Employers, workers, the Fitial administration and other community members heaved a sigh of relief upon the release of the CW rule, although many have yet to fully read the regulations as of yesterday.

David Gulick, district director for DHS’ U.S. Citizenship and Immigration Services Honolulu District 26, hopes the community will view the release of the regulations as “good news.”

Gulick was one of the guest speakers at the Saipan Chamber of Commerce meeting at the Hyatt Regency yesterday, but he said he could not discuss the details of the final worker rule until it’s published in the Federal Register.

Hyatt’s Sandcastle was packed to capacity as employers or their representatives wanted to hear from Gulick about the worker rule.

While they didn’t hear much from him yesterday, Gulick said he and his USCIS team will be available for presentation about the CW rule starting on Sept. 20.

Gulick will also be holding a news conference this afternoon to talk about the regulations.

DHS received 146 comments to the interim final rule.

They were all reviewed and considered in the publication of the final rule.

Douglas Brennan, president of the Saipan Chamber of Commerce, said the Chamber will thoroughly review the final rule, and see how it’s going to affect the business community.

“What I do understand from the document is it’s going to be employer-based. The employer needs to file the petition; the employees cannot file on behalf of themselves,” he said.

When asked whether it’s worth the wait, Brennan said, “Worth it or not, I don’t know. I know the delays have caused a great deal of anxiety within the business and employee community in the CNMI, the workers. At least it’s out right now. We’ve got a few months to address it before November 2011. We just got to start moving quicker.”

Marian Aldan Pierce, chair of the Marianas Visitors Authority board, said the release of the final rule will finally answer lingering questions.

Rabby Syed, president of the United Workers Movement-NMI, said he will ask DHS to consider extending the grace period for foreign workers to find employers, before they could be considered out of status.

“We will ask if they could extend it until early 2012,” said Syed, whose movement continues to press for improved immigration status, particularly “green card” or pathway to U.S. citizenship for foreign workers who have been in the CNMI for at least five years.

The final rule is published almost two years since the CNMI’s immigration came under federal control on Nov. 28, 2009, pursuant to U.S. Public Law 110-229 or the Consolidated Natural Resources Act.

DHS published an interim rule on a new CNMI-only transitional worker classification on Oct. 27, 2009, but a U.S. District Court stopped its implementation following a lawsuit from the CNMI government.

There’s less than three months to go before the Nov. 27 expiration of the two-year period allowed under the federalization law wherein workers can still remain in the CNMI using a Commonwealth-issued permit.

After Nov. 27, foreign workers need to have a U.S. employment visa such as a transitional CW visa or an H visa, or they could face deportation.

Gov. Benigno R. Fitial said he’s pleased with the changes made by USCIS to the worker rule.

“I believe the changes that USCIS has made to their rules will make this an easier process for both employers and employees. The federalization law is punitive and poorly thought-out, but USCIS has tried to make the necessary fixes where they can,” he said in a statement.

Fitial said he and USCIS Director Ali Mayorkas, during a meeting on Feb. 23, exchanged views on the implementation of the CNRA, or the federalization law.

“When I met with Director Mayorkas, I emphasized to him the need for relief for our workers who transit through Guam, especially to the Philippines. The new rule provides the relief I requested,” he said.

Philippine nationals who work in the CNMI are exempted from some travel restrictions.

Under the final rule, Filipino workers who hold a CW status or intend to apply for a CW status may travel between the CNMI and the Philippines through Guam without a U.S. visa or the appropriate visa waiver “so long as the travel is on a direct Guam transit itinerary.” They are not allowed to leave the Guam airport.

It should also involve no more than eight hours of scheduled flight stopover or connection between flights in Guam.

Fitial said this will be a substantial help in easing the cost of travel for individual workers and their families.

During his meeting with Mayorkas, Fitial told the federal official that 10 days was not long enough for employers to make a hiring decision and for workers to locate new employment after a contract ended.

The prior rule provided that after 10 days, the worker would be out of status.

“Thus, I am pleased that the new rule now provides for a 30-day period as I requested and as Commonwealth law previously provided,” Fitial said.

But the governor also pointed out that the new rule, like the initial rule, does not allow individuals to hire foreign workers as caregivers, a concern shared by Delegate Gregorio Kilili Sablan (Ind-MP).

Only businesses can hire aliens as caregivers and for other kinds of household work.

Fitial said his special legal counsel met with USCIS in Washington, D.C. on Tuesday on this issue and other details of how the regulations will work.

“I have decided that I will soon issue an Executive Order permitting individuals who pay for the care of another person, and who hire an alien for that purpose, to apply for a CNMI business license as a sole proprietor. This is permitted under CNMI law, and I think it is the best way to accommodate our need for caregivers,” the governor said.

He said the CNMI has a particular need for caregivers in the Commonwealth because it does not have nursing homes and assisted living facilities like they do in the U.S. mainland.

“Also, many of our frail elders have very limited incomes, so they cannot afford to hire caregivers through domestic service agencies. Fortunately, USCIS has provided for a waiver of the permit fees in cases where the employer cannot afford to pay. This will help our sick and elderly residents who may not have the means to pay the fees for the petition to hire an alien,” he added.

The Fitial administration said the new rule also helps employers “very substantially” by providing that they may employ alien workers on a temporary basis while their petitions for employment of aliens are pending.

USCIS will allow employers to file their petitions for their current alien workers any time up until Nov. 28, 2011.

These petitions will then go to the USCIS California Service Center, which will issue either a grant or a denial.

The Fitial administration reiterated that CNMI employment law applies to all jobs held by aliens, and employers will be required to provide a sworn statement that they are in compliance with CNMI law and will remain in compliance during the one-year period for which the petition is approved.

“They don’t really have any ‘permits’ in their new system. They have ‘approved petitions’ instead,” Fitial noted.

The governor said that in his view, the comment process “was very instructive for USCIS.”

“It should not have taken them as long as it did to get the rule out, but that didn’t have much to do with the comment process. That was due to USCIS’ internal processes that also delayed the initial rule back in October 2009,” he added.