Meeting the deadline: General guidelines

We are very glad that the long-awaited final regulations with respect to CW status are finally available. Questions abound, but we now have basic guidance for the employment of foreign workers in the CNMI beyond the Nov. 28 deadline. This week will see a flurry of public outreach events by USCIS on Saipan, Tinian, and Rota. We strongly urge that both employers and employees attend one of these sessions. Once everyone understands the big picture, we can all concentrate on the details that still need to be worked out. Accordingly, we will hold off on detailed discussion of the CW regs today; rather we will concentrate on some basic guidelines that everyone needs to understand.

[B]The Nov. 28 deadline [/B]

By Nov. 28, 2011, all aliens in the Commonwealth must have some form of status under the immigration laws of the United States. On that day, all Commonwealth-issued entry permits, work permits, or other documents relating to permission to live and or work in the Commonwealth will expire, and will cease to have any effect. This includes not only contract workers’ umbrella permits but investor, retiree, religious, student, and other permits. This is a deadline that is created by federal law; it cannot be extended administratively. It can only be extended if the CRNA is amended by legislation passed by both houses of the U.S. Congress and signed by the President; there is simply no time for that to happen. All aliens who are present in the CNMI on Nov. 28, 2011, but who lack some form of U.S. status will be subject to removal by ICE.

[B]Filing on time[/B]

In the usual case, an applicant must file and USCIS must receive any application by a given deadline. However, with respect to the filing of CW-1 and CW-2 applications we have some leeway: USCIS will consider as filed all CW applications with a postmark up to and including Nov. 28, 2011. Applications for most other forms of status by aliens currently present in the CNMI, such as H-1, H2, L-1A, EB-1C, R-1, must be received by USCIS before Nov. 28. Our experience is that in order to ensure timely delivery, applications should be sent out by Express Mail or courier service 10 days ahead of any deadline. Always be sure to send by some method that includes tracking and proof of delivery. We have been recommending Express Mail over certified (with return receipt requested), simply because certified is the slowest form of first class mail.

[B]Making the application[/B]

For employment-based applications, which includes among others, CW-1, H-1, H-2, L-1, EB-1C, and R-1, the employer must make the application; the employee cannot. For CW-2, which is the available status for spouses and minor children of CW’s, the employee must make the petition; the employer has no obligation to file for dependents of his workers. The primary petition for CW-1 can be filed concurrently with the petition for
dependents (CW-2).

For family-based applications, such as green cards for immediate relatives, the U.S. citizen (“USC”) or lawful permanent resident (“LPR”) relative must file a petition for alien relative (Form 1-130), and the alien relative files the application adjustment of status (Form I-485); we typically file both together as part of a complete application package. The only exceptions to the rule that the sponsoring relative file an I-130 are self-petitioning widows and widowers of USCs and abused spouses or children of USCs or LPRs filing under the Violence Against Women Act (“VAWA”), who can file for themselves using a different form, the Form I-360 self-petition.

Please keep in mind that if you are filing as the widow or widower of a USC, and your USC spouse died more than two years ago, you must file before Oct. 28, 2011. If you do not file by Oct. 28—and a postmark on or before Oct. 28 won’t cut it—then you will be barred from filing the application in the future.

[B]Options for umbrella permit holders[/B]

All umbrella permits issued by the CNMI government will expire on Nov. 27, 2011. In order to lawfully remain in the CNMI beyond that date, holders of umbrella permits must do one of the following:

1. Obtain an employment-based status. If you are employed, get your employer to file for an employment-based visa for you. In most cases, this will be a CW-1; you can file CW-2 for your spouse and minor children (under 18). If you are a professional with at least a four-year degree, and you are working within your profession, and the job requires the professional degree, you may be eligible for H-1 status. If you are eligible for H-1, or other nonimmigrant status, you cannot apply for CW. This determination is sometimes difficult to make, and we recommend that you and your employer seek legal advice if you do not clearly fit into H-1 status.

There is a special filing deadline of Nov. 27, 2011, for executive and managerial employees who qualify as multinational intracompany transferees, and who intend to apply for either L-1A (nonimmigrant) or EB-1C (immigrant) visas. Both visas require that the employee have worked in the same capacity for the same employer (or a related foreign company) at least one of the three years immediately preceding the application. If these employees’ qualifying “foreign” employment was all served in the CNMI—which is possible because prior to Nov. 28, 2009 all CNMI businesses were considered “foreign” for immigration purposes—then looking backward from Nov. 28, 2011, the employee can no longer claim a full year out of the last three for the “foreign” CNMI employer. Note that this application will only work if the CNMI company still has a foreign parent, subsidiary, affiliate, or branch. We’ve written about this before, including in our most recent column, but we want to emphasize that, like the widows and widowers deadline, this is a one-time opportunity.

There are other employment-based visas, for professionals, investors, and religious workers, among others, but they are beyond the scope of today’s discussion.

2. Obtain a family-based immigration status: A “green card” is an immigrant status based on your family relationship to a USC or LPR. Eligibility for a green card does not deprive you of the opportunity to get CW status. If you cannot afford the filing fees to become an LPR, or you are not yet eligible (for example if your USC child is not yet 21), or you are not ready to apply for some other reason, you may choose to wait to file for a green card and get by with a CW in the meantime. Whether applying for a green card is a solution for you to meet the Nov. 28 deadline for U.S. status depends on your relationship to the USC or LPR and also on your country of origin. The general categories are as follows:

a. IRs of U.S. citizens: If you are the spouse of a U.S. citizen, the parent of a U.S. citizen who is over 21 years of age; or the child (under 21) of a U.S. citizen, you have an immediate green card available to you. You will need to file the appropriate application and, as long as the application is received by USCIS before Nov. 28, you will likely be protected from removal while the application is pending. Note that whether you file before or after Nov. 28, USCIS will still process your application and, if you are approved, issue your green card. But if you file after Nov. 28, ICE may consider that you are out of status between Nov. 28 and the date you are approved as an LPR. The consequences may be different, however, depending on when you file. If you are eligible now, you should file now, or at least get CW status while waiting to file for a green card. (See our Sept. 6 column for a more detailed discussion of the pros and cons for overstayers filing for green cards.)

b. Family members of USCs and LPRs: If you are the unmarried son or daughter (over 21) of a USC; the married son or daughter of a USC; a spouse or child (under 21) or the unmarried son or daughter (over 21) of an LPR; or the brother or sister (of any age) of a USC, you are eligible to apply for a green card but you have a long wait ahead of you. The length of the wait depends on your relationship and the country of your origin. Please consult http://travel.state.gov/visa/bulletin for current wait times. Right now, wait times for available visa numbers range from almost three years to 23 years. If you are in one of these categories, you will either have to get some form of a non-immigrant status such as CW in order to remain in the CNMI. However, it would be a good idea for your relative to file a petition of alien relative (I-130) now in order to get the process started. If you cannot obtain CW or other status, you may need to return to your country of origin to wait until your visa number comes up, and then apply for a green card through the U.S. Consulate there.

3. Obtain a parole-in-place plus work authorization: This is an option of last resort because parole is adjudicated on a case-by-case basis and it involves the discretion of the adjudicating officer. There is no absolute right to a parole; it is a humanitarian cushion to relieve the harshness of immigration laws, and it is entirely within the discretion of USCIS to grant or deny a parole. That being said, USCIS has identified certain specifically protected categories to whom parole-in-place will be generally available. These are: CNMI permanent residents, their IRs and surviving IRs, and the IRs and surviving IRs of FAS citizens. It also includes persons to whom the CNMI or USCIS has granted refugee status.

As for anyone else, unless you can show some seriously compelling circumstance, such as perhaps a severely disabled USC child who would not be able to obtain treatment in the home country, your chances of getting this form of relief are uncertain. Being poor, or out of work, or unable to get work in the home country, or having minor USC children is usually not enough.

[B]Options for aliens with no umbrella permits[/B]

Unfortunately, there is no one-size-fits-all solution for this category of people. Many people who would have been entitled to umbrella permits did not get them, for one reason or another. Some people who did not get umbrella permits, but whose underlying CNMI entry permits had not yet expired, were given parole-in-place through Nov. 27, 2011. Persons in this category, if they are employed, can apply for CW or other employment based non-immigrant categories by Nov. 28, just like anyone with an umbrella permit.

There are several categories of aliens for whom we cannot offer any options at this time. These are unemployed people with or without umbrella permits; IRs of USCs who cannot afford the filing fees for a green card; abandoned spouses; parents of U.S. citizen children who are under 21 on the Nov. 28 cutoff; common law spouses who may have umbrella permits but who do not work and are not eligible for any non-immigrant or immigrant U.S. status. We hope that some form of humanitarian relief may be offered to at least some of these people.

[I]The information contained in this column is intended as general information only, and not as individual legal advice. Readers should obtain professional legal advice before taking action with respect to their individual situations. Readers may submit questions regarding federalization or immigration issues to the authors by email to lexmarianas@pticom.com. Readers may also e-mail written questions through the Saipan Tribune at editor@saipantribune.com. [/I]