Issues and problems with CW

Under the Consolidated Natural Resources Act, or CNRA, the solution for the CNMI’s continuing need for, and let’s face it, dependence on foreign workers, was the institution of the Transitional Worker Program, or classified by USCIS as “CW.” In today’s column we will examine some issues and problems that we have experienced in working with the CW program.

[B]Delay in issuing final regulations[/B]

There were problems from the onset with the CW program, caused mostly by delay by the Department of Homeland Security in issuing the final governing regulations until Sept. 7, 2012, a mere 71 days prior to the filing deadline of Nov. 28, 2011. There is, however, more than enough blame to go around. The delay in issuing the final regulations was caused by a lawsuit, brought by the CNMI government, to enjoin the implementation of interim regulations that were published on Oct. 27, 2009. But for that lawsuit, the CW regulations would have been implemented on Nov. 28, 2009, and we would have had a full two years, prior to Nov. 28, 2011, to figure out how to deal with the CW program.

Although the federal judge dismissed the substantive portions of the lawsuit, which alleged that the federal government was overstepping its authority in taking over immigration in the CNMI, the judge agreed to block the implementation of the interim regulations until the comment period was extended. DHS extended the deadline for comments until Jan. 8, 2010, and further comments were received. Final regulations could have been published at any time after the close of the extended comment period, but were delayed for another 21 months. Instead of two years, employers and employees had little more than two months to gear up and file applications under the new program. This caused a lot of anxiety, confusion, and panic, and provided opportunities for the “immigration consultant” scammers who seemed to be operating with impunity last October and November. It probably also caused a lot of honest mistakes to be made in the applications.

[B]Implementing the CW program[/B]

After the publication of the final regulations, USCIS launched a concerted effort of public education in the CNMI. For a period of 10 days in the later part of September 2011, a team of USCIS officials made multiple daily presentations to members of the public and private interest groups regarding procedures involved in obtaining CW status. Those training sessions were extremely helpful, as was the availability of those same USCIS officials to seek follow-up clarification on specific issues.

There are, however, ongoing bumps in the road. Today we will address three: (1) problems with foreign travel; (2) unreasonable RFEs, and (3) difficulties in obtaining CW visas at foreign consulates.

1. Problems with foreign travel: Many clients come to us seeking assistance with emergency foreign travel. The need for emergency travel most often arises from medical conditions: we had an elderly Japanese man who needed to have a checkup with his Tokyo doctor and obtain the Japanese medicines that he is accustomed to using; we had a Chinese woman who needed to accompany her local U.S. citizen husband to Manila for a triple bypass; we had a Bangladeshi national with an undiagnosed tumor that he could not afford to have diagnosed or treated in the CNMI; and we have had several clients with parents in critical condition in foreign countries. We also had a number of clients who had an urgent need for business travel to attend board meetings, to close a deal, to negotiate contracts, or to buy inventory for their businesses.

The general rule is that if you are an alien living in the CNMI, and you have a pending visa of any type or a CW application pending, or if you have humanitarian parole, you must obtain advance parole if you wish to travel to a foreign country and return to the CNMI. You will not be permitted to re-enter the CNMI without either a visa or an advance parole. The advance parole application must be mailed to USCIS in Guam or dropped off at the ASC in Saipan, for transmittal to Guam. Unfortunately, the Guam Field Office is short-handed and underfunded and they simply are not able to turn around these applications quickly. The delay of mail service between Saipan and Guam doesn’t help. The Guam Field office’s target date for granting or rejecting parole application is 30 days. If you add mailing time to that, it is 40 days. That is simply too long to wait in the event of the kinds of emergencies described above.

There are several options to address this problem:

a) Apply for advance parole and leave. You do not need advance parole to exit the U.S., only to re-enter. You will be stuck wherever you are going until the advance parole is granted and you receive it. But at least you can leave relatively quickly.

b) Apply for the advance parole and wait. Send your application to Guam via DHL and enclose a self-addressed prepaid DHL return envelope to speed up transmittal back to Saipan. Visit the Saipan ASC and call Guam USCIS to follow up on your application. If your request is compelling enough, you may be able to get expedited processing. But it will take a lot of time and a lot of work to succeed.

c) Important caveats:

– Transit visa for Guam. If your itinerary routes you through Guam, you must obtain a Guam transit visa in addition to the parole. (If you intend to travel through any other U.S. immigration checkpoint instead of Guam, this warning applies to you, too.) You should request this at the time you make your advance parole application, or you may be able to get it by making an Infopass appointment at the Saipan ASC. However, Infopass appointments are not always available and we are told that the Saipan ASC is cutting back on issuing Guam transit visas. So if you are planning to make a connection in Guam, to Manila for example, ask for the transit visa in advance. Remember, if you do not have a transit visa through Guam, the airline will not board you. You may lose your existing ticket or be charged a re-booking fee. You may need to buy a whole new ticket routing you through Japan or Korea. This has happened to several clients who failed to inform us that they were planning to travel through Guam.

NOTE: You do not need a transit visa for the return trip, if you have either advance parole or a visa such as CW; you will be admitted to the U.S. at Guam, based on your advance parole or your visa, and you will not be considered to be “transiting.” Your return to Saipan from Guam is deemed domestic travel.

– Return trip for CWs. If you leave with advance parole, with CW or some other U.S. visa pending, and the visa petition is approved while you are still outside the U.S., you must visit the appropriate U.S. consulate to obtain the visa in order to return to the U.S., including the CNMI.

– Warning for green card applicants. A number of CW applicants also have green card applications pending and have filed an I-485 application to adjust status. If this is your situation, you must have advance parole before you depart from the CNMI, or your I-485 will be considered abandoned, and you will lose your filing fees and have to re-apply.

2. Unreasonable RFEs: An RFE is a “Request for Evidence” issued by USCIS if, upon review of an application, the Service deems that additional evidence is necessary to adjudicate the application. We get RFEs in applications for employment-based applications (e.g., H-1B, E-1, E-2, L-1, L-2, EB-1C and R visas). We get them in green card applications and, increasingly nowadays, we get them in CW applications. Not all applications prompt RFEs, and most of the RFEs we get are reasonable and we are able to respond to them with the evidence needed and move the application along. Sometimes we get absurd requests, often having to do with the particular USCIS officer, or an outsourced substitute, having absolutely no clue as to the relationship of the CNMI to U.S. immigration law. We have developed standard replies to those. The most outlandish RFE we ever got had to do with a demand that we show the validity of our Filipino clients’ status under “the Civil Code of Tonga.” Bruce’s anger in that instance, articulated in a very stiff letter to the Missouri Service Center, brought changes to the way CNMI-based green card applications are handled. For a while, anyway.

However, we are receiving an unusual number of unreasonable RFEs on CW applications. The following are some examples:

– Proof that the employer is engaged in a legitimate business. We have gotten numerous RFEs on this ground. While you may think that this type of RFE would be directed to small, arguably marginal businesses, that has not been our experience. We have gotten this type of RFE directed to some of the biggest private sector employers in the CNMI. One of these employers is a multinational corporation, with significant assets and employees worldwide. We processed a large number of CW applications for this employer. Yet the RFEs keep coming, asking us to provide proof that this is a real business, over and over for each individual CW applicant. At the same time, some employees of the same employer are being approved without RFEs, on the basis of essentially identical petitions. This should be comical but rather it is expensive and time consuming: each RFE response packet is upwards of half-an-inch thick or more.

– Separate requests for evidence regarding the employer’s legitimacy for employees on the same petition. In the training sessions conducted by USCIS on how to file CW petitions, employers were instructed to file only one petition for multiple employees in the same job category. We did that and attached the required company bona fides to each group petition. We are now getting RFEs for individual employees, who were included in one application, to provide the same corporate documents separately for each individual employee. This is a waste of time and effort. These materials were provided with each petition. But, again, we cannot simply ignore an official request and we must respond or have the petition denied.

– Federal income tax records. We are also getting requests for evidence that simply doesn’t exist. Good examples are Federal Income Tax Returns and IRS Computer tax records. It is not that these proofs do not exist for a particular employer, but that these proofs do not exist for anyone doing business in the CNMI by virtue of the legal structure of the Commonwealth and its relationship to the US.

– Request for publications. We are asked to provide articles about the company and advertisements in trade journals and magazines. With the exception of large hotels and possibly a few other businesses, these items simply do not exist. The mainland adjudicators have clearly not been briefed about just how small the CNMI is and how small most businesses are in comparison to the U.S. economy. There is a world of small businesses in the CNMI that provide legitimate goods and services, that never had an article written about them, and which do not advertise. Does this make illegitimate businesses? We think not.

These are just a few of the unreasonable RFEs that we have received; more arrive every day. We will continue to advocate with USCIS to desist from using one-size-fits-all RFEs in reviewing CW applications, and to ensure that adjudicators are educated about economic and living conditions in the CNMI. We agree that there are many marginal or fraudulent employers in the CNMI who seek to employ CW workers or sponsor them in sponsorship scams. The Service should focus on eliminating those, not further burden legitimate CNMI businesses that are already struggling in a very stressful economic climate.

All that being said, there is one very bright spot in CW adjudication: the CW email help desk at CNMI.CSC@uscis.dhs.gov. We have been able to correct application errors ranging from incorrect Social Security numbers to wrong job descriptions – no muss, no fuss.

3. Obtaining CW visas at foreign consulates: Now that we are starting to get CW petition approvals, we are discovering that some of the U.S. consulates abroad are not up to speed on the requirements. (This is also true of E-2C petitions as well; we have also seen consular officers confuse E-2 with E-2C.) When a CW petition is approved by USCIS and the CW employee is outside the U.S., he or she must obtain the visa from the U.S. consulate in the home country (unless another consulate is designated, which we have seen happen with green cards, but not yet with CWs).

This is supposed to be a straightforward application, for an approved petition: the applicant goes to the consulate, pays the US $150 visa fee, gets the visa and goes away happy. Last week, however, we received a “221(g) Letter”—the consular equivalent of an RFE—for a CW applicant with an approved CW petition, who was interviewed at the U.S. Embassy in Manila. The 221(g) Letter demanded “a copy of the petition filed with DHS, including the Form I-129 and ETA 9035 (Labor Condition Application)/ETA 9081.”

This was very wrong on two counts: First, the forms demanded by the consular officer simply do not apply to CW—they aren’t required by law and, for CW employees, they don’t exist. Second, the 221(g) Letter was issued in apparent violation of the Department of States’ own Foreign Affairs Manual which states, in its instructions to consular officers regarding CD adjudications:

An approved Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, is to be considered as prima facie evidence that the requirements for CW classification, examined in the petition process, are met. Consular officers do not have the authority to question the approval of CW petitions without specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to CW status. (9 FAM 41.34 N1.1a, emphasis added.)

So in addition to displaying his ignorance, the consular officer acted beyond his authority—unless, of course, he has specific evidence not available to USCIS when it approved the CW petition, that requires the petition to be investigated further. The FAM section on CW approvals can be found at http://www.state.gov/documents/organization/179937.pdf.

We have communicated with the appropriate officials, and we anticipate that this particular problem will be resolved. We also will reply to the 221(g) Letter, because we cannot simply ignore the government’s communications, no matter what we think of the request or demand. And we will hope that the consulates get their act together regarding the CNMI.

[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]