USCIS updates employers on CW-1 Visa ‘touchback’ rule

Delegate Gregorio Kilili C. Sablan (Ind-MP) participates in the May 2022 general membership meeting of the Society for Human Resources Management at the Hyatt Regency Saipan’s Grand Ballroom last week. (BEA CABRERA)

Mark Graham of U.S. Citizenship and Immigration recently updated CNMI employers on the CW-1 touchback rule at the general membership meeting of the Society for Human Resources Management last week at the Hyatt Regency Saipan’s Grand Ballroom in Garapan.

Graham reiterated the amended rules released in August 2020, where USCIS modified its policy on implementing the requirement that non-immigrant workers must leave the United States for at least 30 days after two renewals of their CNMI-Only Transitional Worker (CW-1) visa classification.

“This will apply on petitions that were approved on or before June 18, 2020…as they are considered a consecutive petition validity period. …A petition approved for consular processing will also be considered a consecutive petition validity period if there is not at least a one-day gap between the ending validity date of the preceding petition and the starting validity date of the petition requesting consular processing,” he said.

“If a CW-1 worker had been approved through Sept. 20, 2022, a subsequent consular processing must be requested and approved for a start date on or after Oct. 2,2022, to be considered non-consecutive,” he added.

According to the USCIS website, USCIS used to count all consecutive petition validity periods, even those approved prior to June 18, 2020, and that the amendment was due to COVID-19 concerns to help minimize “potential travel disruptions and delays” on the workers’ part that will impact their employers, CNMI businesses, and the economy.

As Graham explained, a foreign worker must exit the CNMI and complete the required touchback under the following conditions:

-If the initial petition validity is from Oct. 1, 2020, to Sept. 30,2021, second petition validity is from Oct. 1, 2021, to Sept. 30, 2022, and third petition validity is from Oct. 1, 2022, to Sept. 30, 2023, then the worker must depart for at least 30 days after Sept. 30, 2023, before new CW-1 petition is filed.

-If the initial petition validity is from Oct. 1, 2020, to Sept. 30, 2021, second petition validity is from July 1, 2021, to June 30, 2022 (change of employer with one year and nine-month extension of stay), and third petition validity is from July 1, 2022, to Dec. 31, 2022 (six-month validity), then the worker must depart for at least 30 days after Dec. 31, 2022, before new CW-1 petition is filed.

-If the initial petition validity is from Oct. 1, 2020, to Sept. 30, 2021, second petition validity is from Oct. 1, 2021, to Sept. 30, 2022, and third petition validity is from Jan. 1, 2023, to Dec. 31, 2023, then the third petition was non-consecutive, so the worker is eligible for two more consecutive petition validity periods before temporary departure is required.

-If the initial petition is from Oct. 1, 2020, to Sept. 30,2021, second petition validity is from Oct. 1, 2021, to Sept. 30, 2022, and third petition validity is from Oct. 2, 2022, to Sept. 30, 2023 (with consular processing), then the third petition was non-consecutive and the worker is eligible for two more consecutive petition validity periods before temporary departure is required.

According to Graham, a beneficiary may not be granted a CW-1 status beyond three consecutive petition validity period, “unless the beneficiary has departed and remained outside of the United States for a continuous period of at least 30 days after the expiration of the third consecutive petition validity period and before the filing of any new petition on behalf of the beneficiary.”

“This requirement does not apply to CW-1 long term workers who were admitted to the CNMI or otherwise granted status as a CW-1 worker during fiscal year 2015 and during each fiscal years 2016 through 2018,” he added.

Graham said that if there are multiple beneficiaries on the same petition that have been granted CW-1 status for a different number of consecutive petition validity periods, USCIS will consider the petition individually and subject to partial approval. “The temporary departure requirement will apply no matter how much time was granted to any of the three previously approved petitions.”

He added that the temporary departure requirement does not officially apply to CW-2 dependents. “This is a temporary departure required of the worker himself, so it does not apply to the CW-2 dependent. However, that dependent with CW-2 status generally expires on the same day as the CW-1 status expires and can be extended if the CW-1 status is extended as well. In a way, a CW-2 dependent is impacted by the temporary departure requirement…so it technically applies as they are very tied together.”

Delegate Gregorio Kilili C. Sablan (Ind-MP), who participated in the meeting via video call, also gave an update on the current status of H.R. 560 or the Northern Mariana Islands Legal Residents Relief Act of 2021, a bill he introduced in the U.S. Congress on January 28, 2021.

He said the bill has some bipartisan support as the substance was reasonable and should not affect migration into the United States. He added that some Republicans were open to an expedited procedure for passing the bill, and that he is continuously working on it.

H.R. 560 is a path for qualified individuals that have been lawfully present in the CNMI on certain dates and have continually and lawfully resided in the CNMI from Nov. 28, 2009, through June 25, 2019. This bill will allow eligible individuals to obtain Commonwealth of the Northern Mariana Islands resident status, provides a path for holders of such status to U.S. permanent resident status, and will allow eligible CNMI-only transitional workers to receive government relief or assistance in connection with a declared emergency.