USCIS: 2015 CW cap hinges on US Labor decision, consultation

Only after U.S. Labor Secretary Thomas Perez grants an extension of the Commonwealth-only worker program beyond Dec. 31, 2014, will the U.S. Department of Homeland Security start consulting with other federal agencies and Gov. Eloy S. Inos to determine the cap on the number of foreign workers for fiscal year 2015, an official with U.S. Citizenship and Immigration Services told a U.S. House subcommittee with oversight on the CNMI and other insular areas. Without an extension, the number of CW foreign workers will be immediately zeroed out after 2014.

If the CW program is extended, the new cap will still be less than the current limit of 14,000, although with enough wiggle room to meet the labor needs of an expanding CNMI economy.

“USCIS is awaiting the Secretary of Labor’s decision whether to extend the Transitional Worker program before determining the number for [fiscal year] 2015. As such, DHS is providing extensions of status and grants of new transitional worker status until the Dec. 31, 2014, current sunset date of the program,” USCIS Honolulu district director David Gulick told the U.S. House Subcommittee on Fisheries, Wildlife, Oceans and Insular Areas in testifying last week on H.R. 4296.

The bill, authored by Delegate Gregorio Kilili C. Sablan (Ind-MP), seeks to extend the CW program by five years or up to 2019, among other things.

Inos said as of last week, he has not heard from the U.S. Department of Labor any decision on the requested CW extension. The governor plans to write a follow-up letter on his request to extend the program that allows the CNMI to have continued access to some 10,000 foreign workers.

Gulick said once the U.S. Labor secretary announces his decision, DHS will consult with the U.S. Department of Labor, the Department of Justice, the Department of the Interior, and the CNMI Governor’s Office “before announcing the fiscal year 2015 numerical limitation for transitional workers.”

In fiscal year 2013, DHS set a numerical limit of 15,000 CW-1s. This went down by only 6.66-percent or to 14,000 in 2014, close to Inos’ request of 14,100.

Gulick said USCIS approved CW status for 10,071 beneficiaries of petitions in fiscal year 2013.

Thus far in fiscal year 2014, USCIS has approved CW status for 4,052 beneficiaries, he said.

The U.S. Labor secretary has until July 4—some five months before the program’s expiration—to decide whether to grant an extension of the CW program.

Inos said the CNMI’s growing tourism industry demands a steady stream of workers. Two new hotels will be built in San Antonio and Marpi. Another major development on the horizon is at least a 2,000-room casino resort on Saipan. Right now, the U.S. labor pool in the CNMI is not enough to address the needs of the present economy, especially when it further expands. But the CNMI has continued to train and place U.S. workers in the workforce.

Options

Sablan expressed his frustration with the mixed signals that the U.S. Labor has been giving, causing further uncertainty among CNMI employers and employees.

Besides an administrative decision from the U.S. Labor secretary, the CNMI is also looking at a CW extension through legislation such as Sablan’s HR 4296.

The governor said employers can also look into petitioning their workers for H visas.

Gulick, in his testimony to the subcommittee, said USCIS has received 228 petitions for H-1B and three petitions for H-2B status filed by CNMI employers since the transition period started in November 2009.

U.S. Public Law 110-229 provided an exemption to the cap on H-2B and H-1B nonimmigrant workers for work performed in Guam and the CNMI.

But that cap exemption is scheduled to end also on Dec. 31, 2014, under the law.

“Unlike the CNMI CW Transitional Worker Program, the U.S. Secretary of Labor does not have authority under the CNRA to extend the H-2B and H-1B cap exemptions administratively. H.R. 4296 would extend these exemptions until Dec. 31, 2019,” Gulick said without taking a position on the bill, just like other federal agencies that testified.

Sablan said over the weekend that the number of foreign workers has already gone from about 22,000 in the last year the CNMI ran the immigration system to 10,071 under federal control.

“And even if the transition period is extended, the number of workers allowed still has to go down every year. Another important reason to keep the transition period is the training fees it generates. $1.3 million went to the Public School System, Northern Marianas College, and the Northern Marianas Training Institute last year alone to train local workers for jobs in our economy. If the transition ends this year, those training funds disappear,” Sablan said.

Asylum, ‘credible fear’ claims

While aliens in the CNMI are not eligible to apply for asylum until Jan. 1, 2015, Gulick said that DHS remains responsible for screening certain aliens applying for admission who express a fear of return to their home countries.

In his testimony before the U.S. House subcommittee, Gulick said although such individuals cannot seek asylum, the credible fear process provides a threshold screening for certain forms of protection that are not barred such as withholding of removal and protection under the Convention Against Torture.

“From the start of the transition period in November 2009 through the second quarter of [fiscal year] 2014, a total of nine individuals made credible fear claims in NMI, two of whom later withdrew their claims,” Gulick said.

Sablan’s HR 4296 seeks to extend the CNMI’s exemption from accepting asylum applications. Like Sablan, the CNMI governor is also hoping that the asylum application exemption will be extended, citing its negative impact on an existing lucrative program allowing Chinese tourists to enter the CNMI without a U.S. visa.

Gulick said some additional technical clarification of congressional intention on the important matter about the asylum application bar would be helpful as the bill proceeds in the legislative process.

“Under current law, and consistent with U.S. treaty obligations, aliens subject to removal from the CNMI could continue to seek withholding or deferral of removal because of threat of persecution or torture in their home countries,” the USCIS official added.

H.R. 4296 also extends the CNMI E-2 nonimmigrant investor program beyond Dec. 31, 2014.

Gulick said USCIS has so far granted CNMI investor status to 261 individuals.