CW pitfalls: Traps for the unwary

[B]pitfall:[/B] [I]an unsuspected difficulty or danger; a trap in the form of a concealed pit, designed to catch men or wild animals. Word origin: c.1300, a type of animal trap. Extended sense of “any hidden danger” is first recorded 1580s[/I]

Ever since we first started this column, in July 2009, we have tried to address current issues and common difficulties that we see arising from the transition of the control of immigration from the authority of the CNMI to the United States. We base our assessment on what qualifies as a current issue by the problems our immigration clients bring to us. We will often have a rush of people with similar problems. Many clients have come to us lately regarding problems with CW renewals. A lot of people are suffering serious—and unnecessary—difficulties resulting from what might seem like minor errors in handling those renewals. Here’s some tips on how to do it right and how not to do it wrong, and how to avoid the pitfalls associated with some common situations.

[B]First round of CW applications[/B]

The CW program was first implemented on Oct. 5, 2011, when the CW regulations became effective. The deadline for initial applications was November 28, 2011. Employers and employees have gone through the first round of CW applications and are now in the renewal process. Because the program was new and glitches were bound to happen, USCIS granted a couple of helpful exceptions that were unique to the initial round of applications:

– The application was deemed filed when mailed. All other applications to USCIS, including CW renewals, responses to RFEs (Requests for Further Evidence), requests for reconsideration, and any form of appeal must be received by USCIS in order to be deemed as filed timely.

– The worker could start working (or continue working as long as the employment was previously legal under either an umbrella permit or a CNMI entry permit) as soon as the application was mailed. The worker could continue working until the CW application was either approved or denied. By contrast, a worker with an application for renewal can only work while the original CW approval is valid. Once the prior CW permit expires, workers with pending CW renewals must stop working until USCIS makes up its mind whether to approve the renewal or not. This is why it is so important for the employer to file early to renew, well before expiration, so that there is no gap in CW status. A gap in status harms both employer and worker, although almost always it is the worker who suffers the greatest hardship even when the employer makes the mistake.

[B]CW renewals[/B]

Because CW is a one-year work permit, it must be renewed every year. It is helpful to think of this as a whole new application because, in fact, it is. There is excellent guidance on the USCIS website on CW requirements in general (http://www.uscis.gov/working-united-states/temporary-workers/cw-1-cnmi-only-transitional-worker); step-by-step instructions for employers (http://www.uscis.gov/working-united-states/temporary-workers/cw-1-cnmi-only-transitional-worker); and step-step instructions for workers (http://www.uscis.gov/working-united-states/temporary-workers/cw-1-cnmi-only-transitional-worker/instructions-employees-who-would-transitional-worker-status-cnmi). There are many pitfalls associated with the renewal process. We will address the most common ones.

[B]PITFALL NO.1: File first and advertise later[/B]

The policy of U.S. immigration is to ensure that foreign workers do not displace or diminish opportunities for U.S. workers. Therefore, if an employer wishes to renew a foreign worker, he must first ensure that there are no qualified U.S. workers (citizens, green card holders, FAS citizens, and EAD holders) available for the position. In the days of CNMI control over immigration, we thought of this as the JVA (job vacancy announcement). The CNMI Department of Labor recently published final regulations that require that all JVAs, including those for non-aliens, be published on its website. We question whether such a requirement is legally enforceable; it is, however, convenient. We hazard to guess that most employers of foreign workers will comply rather than risk the expense and inconvenience of an enforcement action by that department. In the meantime many employers continue to advertise in the local newspapers and on the radio, which has been accepted by USCIS.

Employers must make sure that the JVA is complete and that the requisite number of days has passed before filing the application for the CW renewal. We have had a number of unfortunate worker clients who have come to us whose renewals were denied because the employers filed first and advertised for the position later, while the application was already pending. This will lead to an automatic denial. We are aware of at least one large employer that has made this mistake with regards to the renewal applications of a large number of workers.

There is no cure for this situation, other than for the worker to return to his home country, and go through consular processing for a new CW, based on a new CW petition. This is costly and time consuming for the employer; it disrupts the worker’s income stream, and it involves considerable stress for workers who must leave children and spouses behind with no guarantee of return. Worse, because of the expense and delay, employers often choose to employ another worker. All in all, this is a very sad situation that can easily be avoided by simply posting the JVA first and filing for a renewal later. This same situation applies to people who are “transferring” to a new employer who has filed a petition for a worker who is already validly employed as a CW for someone else, with the difference that a transferring worker can start working as soon as the petition for the new CW is filed.

[B]PITFALL NO. 2: Failure to inform worker of RFES and denials [/B]

Because the CW application is made by the employer, any RFEs or denials come to the employer. We have had numerous workers come to us whose employers either failed to inform them of a denial or an RFE or simply failed to respond to an RFE, which results in automatic denial. Again, this is a situation that can be simply avoided. However, it appears that a number of unscrupulous employers have simply allowed the worker to work past the CW expiration date by misleading them about the status of their applications. If an application is denied either on the merits or because an RFE goes unanswered, the worker loses status and begins to accrue unlawful presence, or what is called “bad time,” beginning with the CW expiration date.

This can have negative results: First, because worker is out of status, he is subject to removal, which is the current term for deportation. Since ICE has not conducted any raids in the CNMI to look for workers in illegal status, as it does in other jurisdictions, the worker may go unnoticed and not be deported unless he commits a crime. However, if the worker remains in the CNMI without status, and especially if he works without employment authorization, the worker may be rendered inadmissible to the entire U.S., not just the CNMI, on a subsequent application for status. Which means that even if a worker in illegal status finds a legitimate employer, he will likely be denied because of prior unlawful presence and/or unauthorized employment.

Second, the clock starts running for the 3- and 10-year bars against admission to the U.S. If an alien remains in the U.S. out of status for up to six months and then departs, he is barred from returning for three years. If an alien remains out of status for a full year and then departs, he cannot return for 10 years. There are unusual circumstances that may qualify an alien for a waiver for the 3- and 10-year bars but they are very difficult to come by.

Remember, USCIS counts the “bad time” days beginning on the day after the CW status expires, not on the date a renewal application or appeal is denied.

[B]PITFALL NO. 3: Worker filing for reconsideration or appeal of denial[/B]

This cannot be done: the CW petition is an employer’s petition and the worker has no standing to appeal; the appeal will be automatically denied. Remember, CW is an application by the employer to hire a foreign worker for a particular job. If the application is denied, only the employer can file for reconsideration or any form of appeal. There are several levels of appeal from a denial. A denial may be completely valid, sometimes based on the qualification of the employer or the qualification of the worker, or some other circumstance that the worker has no control over. Or the denial may be wrong on the facts or there is a viable legal argument to be made to challenge the denial. Unless the employer is on board with the appeal, and is willing to bear the expense, there is no point in bringing an appeal, and we have had to turn the workers away under these circumstances.

A word on CW denial appeals: in general, they are a waste of time and money, even when the employer brings them. They are rarely successful, regardless whether they are brought by an attorney or not, because they rarely involve the kind of legal error by USCIS that will result in a reversal. They are rarely resolved before the six months has passed and the worker will be subject to the 3-year bar on returning once he leaves the U.S. (that is, leaves the CNMI). Filing an appeal provides zero right to remain and none to continue working while the appeal is pending. We generally tell employers (and workers) to save their money, file a new petition, and process it from outside the CNMI. We have also found that CW visa applications for “outside” workers tend to process more quickly.

[B]PITFALL NO. 4: Involuntary and voluntary termination of employment [/B]

A worker who is involuntarily terminated from a CW position has 30 days within which to find a new employer who—within those 30 days—files a new CW petition for the terminated worker. Remember that “files” means “received by USCIS at the California Service Center.” And “terminated” means “fired”—it does not mean “I’ll quit and I’ll get someone else to file for me.” The terminated worker for whom a timely CW petition has been filed by a new employer can begin to work for the new employer while waiting for adjudication of the new petition.

If that 30-day deadline is not met, the new employer can still file a CW petition but the worker will have to leave the CNMI and have a CW visa processed at the appropriate U.S. consulate. Workers who voluntarily quit their jobs without having an approved second CW employment will also have to exit the CNMI and go through consular processing.

So will workers whose employers do not renew their CW employment. In most cases, that is not “involuntary termination” of employment. Ideally, these workers should be informed of non-renewal soon enough in advance of the termination date that they can have a petition timely filed by a new, second employer. But if they do not, then they are out of luck with regard to waiting in the CNMI for an approval.

Please keep in mind that there is no right to CW renewal. This was an issue when the CNMI government controlled immigration, before CW existed, and in that regard little has changed. Workers are still fighting about having the right to renewal and they are still losing. Unless there is some legal basis such as wrongful termination, as a practical matter these fights are—like most CW denial appeals—a waste of time.

[B]PITFALL NO 5: Filing for PIP to improve status from a CW[/B]

Our first column, back in early July 2009, was titled “Rumors and Whispers,” in which we dealt with the various instances of wholly inaccurate rumors, not to mention bald-faced lies, that were circulating in the foreign worker communities at that time. We have now encountered one that has wreaked real havoc in the lives of many foreign workers. The rumor is that you can improve your immigration status by abandoning your CW status and obtaining humanitarian parole, known most often in the CNMI as Parole in Place (“PIP”), usually because there are U.S. citizen children in the family. If you get PIP, you can also get an Employment Authorization Document (“EAD”) and then you are free to work for anyone without going through the CW renewal process. This is viewed as an improved status by employers and workers alike. Sadly, it appears that employers, as well as workers, are involved in spreading this rumor.

Unfortunately this will not work. A parole of any kind is a form of administrative grace that is accorded by USCIS under certain circumstances. A parole is permission to remain in the U.S. without regular status, such as a green card, a CW, a student visa, and so forth. Parole is a last resort for someone who is not eligible for any other form of status but who the government deems worthy of special consideration. In the rest of the U.S., it is considered an extraordinary form of relief.

In the case of the CNMI, the transition from local to federal control of immigration brought about many unforeseen and unintended consequences. One was the presence in the CNMI of a large numbers of foreign workers who had lived and worked here for many years and who had established families. Their children, born here, are U.S. citizens by birth. Those foreign workers who were not able to establish some kind of status by Nov. 28, 2011, were at risk of either being removed or forced to “voluntarily” depart, often destroying family unity. In recognition of this reality, USCIS therefore established a procedure for granting PIP to parents of U.S. citizen children under the age of 21. The procedure was announced on Thanksgiving Day 2011, a few days before the original CW filing deadline. As a result, a number of people who might have chosen to file for PIP instead obtained CW status.

Those who are the beneficiaries of approved CW petitions are deemed to have been “admitted” to the United States. This is a statutory (legal) definition and has nothing to do with crossing the border. If you have an approved CW, you have been admitted. You are therefore ineligible for parole, a form of relief only for those who have not been admitted. Therefore, if you are planning to either allow your CW to expire without renewal or quit your CW job in order to apply for PIP as the parent of a minor U.S. citizen, don’t. The outcome will be that your PIP will be denied, you will be out of status, and you will start accruing bad time. If your luck is bad, you will also be subject to removal.

There is more bad news. We had a client who allowed his CW to expire on the advice of a “friend” so that he could apply for PIP. The application was denied and he filed for reconsideration. This was also denied. He then hired a lawyer to file an appeal; this too was denied. By the time he came to see us, more than six months had passed since the expiration date of his CW. He thought that during the time between the filing of his initial PIP application and the last denial, his unlawful presence was tolled (the clock stopped ticking). He was wrong. The clock started ticking the day after his CW expiration and continued all through his various forms of appeal. If he was less than six months out, he could have returned to his home country and have an employer file a CW petition and go through consular processing and re-enter the CNMI on a new CW. This would take a few months, and he would have to explain the overstay. But because he is now an overstayer for more than six months, as soon as he leaves the CNMI, the 3-year bar snaps into place and he cannot return until the time has passed.

As we’ve said many times before, friends don’t let non-attorney friends give legal advice. And if they do give legal advice, don’t listen. The stakes are too high.

[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]