My initial thoughts on the CNMI Transitional Worker Final Rule

After reading the Final Rule on the CNMI Transitional Worker, I sense that many of those who are affected have lingering questions that have not been answered.

I would like to offer a few comments on this piece of legislation as an immigration attorney with more than twenty years of experience in the field.

1. Processing of employment-based nonimmigrant visa petitions at the California Service Center currently takes about two months, but the processing time varies from month to month, depending on the workload and priorities.

2. The vast majority of the foreign workers in the CNMI will not qualify for the H-1B visa for a variety of reasons.

3. Given the extreme difficulty in getting H-1B petitions approved by the California Service Center, filing for the CW-1 visa is definitely the better option.

4. Since all CW-1 petitions are filed with the same division at the California Service Center that handles H-1B petitions, the petitioner should clearly point out to the adjudicating officer that the standards for adjudicating a CW-1 petition are different than those for an H-1B petition.

5. The petition should be sent to the California Service Center by certified mail with return receipt or, if time is a concern, Express Mail or Fedex should be used.

6. In determining whether a petition is timely filed at the California Service Center, the date of receipt of the petition controls, not the date of mailing.

7. A CW-1 worker can start working for the new employer on the day of filing. Proof of filing is important here. A cautious employer may choose to wait until the receipt arrives.

8. When the CW-1 petition is approved, the employer should give the original approval notice (Form I-797) to the foreign worker. The foreign worker has to present the original approval notice when he or she applies for the CW-1 visa abroad and also when he or she travels abroad.

9. If the foreign worker plans on applying for the CW-1 visa at a consular post, he or she should inform the petitioner to file the petition in duplicate and instruct USCIS to forward a copy of the petition to the appropriate post. This will save time and expense for both the petitioner and the foreign worker.

10. Dependents who are eligible for the CW-2 visa need not apply together with the CW-1 principal if they are residing abroad. They should take care of their affairs back home and wait until the CW-1 visa holder has settled down in the CNMI before putting in their visa applications at the consular post.

11. If your CW-1 petition is denied, the employer can file either a Motion to Reopen/Reconsider or an Appeal. The filing fee of either the motion or the appeal is $630. The processing time on a motion is usually about two months but I have had some that have taken longer. The processing time on an appeal on an H-1B petition is 21 months. If the same processing time applies to CW-1 petitions with a one-year validity period, there would be no point in filing an appeal. The better course of action would be to file a new CW-1 petition.

12. The transitional worker rule is supposed to give foreign workers until Dec. 31, 2014, to determine an appropriate long-term immigration status for themselves and their families. Under present conditions, it is very unlikely that this could happen before Dec. 31, 2014. I expect an extension of the CW visa classification for another five years. I can think of at least three reasons. First, the lack of economic data prevents the filing of PERM applications. Second, visa retrogression is so severe that it would take at least six years for a typical foreign worker to acquire any form of permanent residence. The wait is even longer for those from China and India. Third, imagine what would happen if the CW visas of the estimated 22,000 foreign workers and their families suddenly lapse at the stroke of midnight on 12/31/2014. It would be a logistical and public relations nightmare for USCIS, ICE, and the U.S. immigration court to process such a large volume of visa overstayers. A huge detention facility would have to be built at taxpayers’ expense to house those who are not able to post bail and the sheer number of cases could bog down the court system for years.

I would be happy to answer any questions that you may have. Please send them to my email address: pengchan77@yahoo.com.