Surge in number of CW petitions

As expected, the long lines at the post office close to the critical Nov. 28 cutoff date led to a surge in the number of Commonwealth-only worker petitions filed through Dec. 2 and that number is currently at 8,227.

This is a 198-percent jump from only 2,759 petitioned foreign workers as of Nov. 25, three days before the critical deadline.

Both the CNMI business sector and the government believe a figure close to 8,227 is the number of foreign workers that the weak economy can hire or absorb right now, as opposed to the over 22,000 worker cap estimated.

“That may be a good way to put it—that this is the number of foreign workers that businesses need or can afford to hire right now,” Saipan Chamber of Commerce president Douglas Brennan told Saipan Tribune yesterday.

The 8,227 petitioned workers comprise 61 percent of the 13,399 foreign workers estimated to be “potentially eligible” for CW status that USCIS stated in its final rule issued on Sept. 7.

But Brennan said there may be many other foreign workers still on island but were not petitioned for CW because there are just no available jobs, or they do not qualify for CW status.

“We were given a cap of 22,000 workers but with the economy on a further decline, 8,500 to 9,000 foreign workers may just be the right figure. But that’s only my estimate,” the general manager of Microl Corp. added.

Press secretary Angel Demapan, when asked for comment, said 61 percent “is definitely a more realistic figure” than the previous one.

“However, if this figure will stabilize between the 60-70 percent range, then that could be an indicator of the decline in private employers. On the contrary, the figure also indicates that 39 percent of those ‘potentially eligible’ for CW are somewhere out there either without employment or being employed illegally,” Demapan told Saipan Tribune.

Regardless, he said, if these people continue to remain in the CNMI without status, “then there is absolute cause for concern in regards to the impact this would have on our society and on our resources.”

Gov. Benigno R. Fitial had said he wants to stop the federal government from granting a one-year parole to certain foreign workers not petitioned for CW status and could be a “burden” to the CNMI.

Marie Thérèse Sebrechts, regional media manager at U.S. Citizenship and Immigration Services, said yesterday that USCIS’ California Service Center had data entered 4,172 I-129CW petitions through Friday, Dec. 2.

She said this figure does not include “unprocessed” petitions that were received late last week. As of Friday, there were 799 petitions that had not yet been data entered, she said.

Some 1,300 so far filed I-129CW petitions.

“A total of 8,227 CW-1 workers are sponsored on these petitions,” said Sebrechts.

Of this figure, 7,463 workers are on Saipan, 413 are on Tinian, and 351 on Rota.

Sebrechts said 34 petitions have so far been rejected for the following reasons:

-Work location is not the CNMI;

-Old revision of the form;

-Too much money included on the check;

-Too little money included with the petition; and

-Missing pages.

Rejection is different from denial. For rejected petitions, employers are notified of errors that they need to correct before the petitions are actually accepted for review. USCIS has yet to release the number and nature of denials, which can still be appealed.

Form I-129CW is the form used by an employer to petition an alien to temporarily work as a nonimmigrant in the CNMI as a CW-1 transitional worker.

Employers can still petition foreign national workers for CW status after Nov. 28, 2011, if those foreign nationals are in a “lawful immigration status in the CNMI” even if the worker is not currently employed.

A “lawful immigration status” can mean having valid parole.

USCIS said as long as the I-129CW petition or application for any other nonimmigrant employment-based category is submitted before the foreign national’s parole expires, an employer can petition for a foreign national who:

-was lawfully present in the CNMI before Nov. 28, 2011;

-has an extension of parole until Jan. 31, 2011 or beyond; and

-does not work without authorization after Nov. 27, 2011.

The foreign national can also be an applicant for a grant of status.

“This is where USCIS gives a foreign national a federal immigration status without the foreign national having to leave the United States [in this case, the CNMI],” said USCIS.

If the I-129CW is filed after Nov. 28, 2011, the foreign national would not be eligible for continuation of employment and cannot work until the I-129CW petition is approved and CW-1 status granted.

“A person is not ‘lawfully present’ if they are engaged in unauthorized employment,” said USCIS.

In an effort to streamline public inquiries, USCIS has created a special e-mail box for inquiries related to the CNMI, including questions about CW petitions and parole, among other things. The e-mail address is CNMI.CSC@uscis.dhs.gov.

This mailbox will be monitored by customer service personnel who are familiar with CNMI issues.

Brennan said the application of Federal Insurance Contribution Act taxes on foreign workers who were previously exempt is a “further stumbling block” and adds to the already costly conduct of business in the CNMI.

FICA covers Social Security and Medicare taxes.

The Chamber’s stance is that “until such time evidence is offered to the contrary, foreign nationals employed in the CNMI prior to Nov. 27, 2011, and previously exempted from paying FICA taxes by bilateral agreements with the U.S., would now fall subject to individual and employer FICA tax contributions.”

This means affected employees will be subject to FICA withholding for wages earned on and after Nov. 28.

A foreign worker earning a minimum wage of $5.05 an hour will have a FICA tax deduction of over $45 a month. Employee’s FICA contribution is 5.65 percent of their salary.

For employers, this means an additional expense of almost $62 a month in employer’s share for every employee required to pay FICA taxes. Employer’s share is 7.65 of the employee’s salary.

Acting governor Eloy S. Inos earlier said that without further clarification from federal agencies, employers should comply with the IRS on the applicability of FICA taxes on previously exempt foreign workers, and just ask for refund later if these exemptions continue.