CWs, where are we headed now?

Since 2004, foreign workers expressed a lot of action and initiatives for improved immigration status, but CNMI government officials and the business sector were very silent about these issues. Now they are looking up high for a solution to maintain the CW workforce that they badly need, but sorry to say that the issues are beyond their control. Only a handful of medium and small business supported us physically and financial.

“Under U.S. Public Law 110-229, Title VII Section 701 (a)(2), in the U.S. Congress was intended to minimize, to the greatest extent practicable, potential adverse economic and fiscal effects on phasing-out the commonwealth’s nonresident contract worker or CNMI only Transitional Workers (CW) program and to maximize the commonwealth’s potential for future economic and business growth.”

However, what we are seeing today are policy decisions that contradict the intent of Congress. The U.S. Citizenship and Immigration Services last Saturday announced it had reached its 12,999 cap on number of contract worker permit applications, and it would reject applications received after May 5, 2016 including those for extensions of stay for current contract workers.

Furthermore, the USCIS said that if an extension petition is rejected, then the beneficiaries listed on that petition are not permitted to work beyond the previous permit, and that the affected and petitioned family members, must depart the CNMI within 10 days after the their permit expired, with no hint of extension or grace period offered. Ridiculous act, isn’t it?

Action to stop implementation of CW Final Rules
On Oct. 20, 2011, seven of us filed Civil Action No. CV 11-0021 Pro Se to U.S. District Court for the NMI, a Complaint for Declatory and Injunction Relief, “a challenge to the Department of Homeland Security and U.S, Citizenship and Immigration Service (USCIS) the assertion of general authority to enforce, and execute the CNMI-only Transitional Worker (CW) Final Rule to the foreign workers population in the CNMI but was dismissed with prejudice due to lack of merit and on the grounds that we fail to state a claim upon which relief can be granted”.

CV 11-0021 Statement of Case paragraphs 9:
“Plaintiffs/petitioner seeks on their behalf and similarly situated individuals, who are foreign workers in the CNMI affected by the CW final rule, declaratory and injunctive relief under the Administrative Procedures Act 5, U.S.C sec. 706(a) for violations of their rights pursuant to the U.S Constitution and laws of the United States”.

Statement of Case paragraphs 48:
Defendants suffer no injury if and when the CW final rule is delayed but foreign workers who are adversely affected by its implementation will suffer the greater injury of being deprived of their life, liberty, and property without due process of law, and if the employers were not able to file CW renewal, CWs themselves suffer the entire burden of being jobless and become out of immigration status.

Statement of Case paragraphs 49:
Granting an injunction serves the public interest of the large number of people who will be affected by the implementation of the CW final rule. As indicated in the CNMI government’s own petition for injunction against the CW interim rules in 2008, the petitioners assert that the act requires ultimate removal of some 16,750 foreign workers, who, in virtually all cases, will not be able to qualify for federal immigration visas. Many of these workers have lived in the Commonwealth for years and have children who are U.S. citizens. In addition, all residents of the Commonwealth will be affected by the economic devastation occasioned by the forced removal of two-thirds of the Commonwealth’s private sector workforce.” CV 11-0021 was dismissed without prejudice.

For the record, plaintiff appealed and intended to amend the lawsuit.
On my open letter addressed to all concerned foreign workers, businesses, and supporters I wrote dated July 22, 2014 and I quote; “The USCIS website said, if the I-129CW petition is denied, the petitioning employer can appeal a denied CW-1 petition by filing a Form I-290B, Notice of Appeal or Motion. USCIS said only the petitioning employer, not an employee, may appeal the denial. You can only appeal the denial of the petition for CW-1. If the filing employer committed an error that led to the petition’s denial, the employer can appeal the decision and submit the correct information to USCIS. Alternatively, your employer can submit a new petition. However, you are not authorized to remain in the CNMI after your CW-1 status expires,” the USCIS website said. Further, if the employer files Form I-290B Notice of Appeal because the worker’s I-129CW was denied, the worker is no longer allowed to continue working.

If your CW-1 status has expired, you are not considered lawfully present or authorized to continue working, even if you have a pending appeal, the website said.

“At any given time, USCIS can change the rules from 90 days to six months of renewal filing, can amend the Q&A, but there is no indication that they will change their rules that will embrace dedicated CW1 workers if their employers failed to comply with the complete CW1 document’s filing within the period as required. The CW1 rules & Regulations had “NO” protection for CW1 workers for failures that is beyond their control”.

In February 2016, USCIS revised the 90 days to six months for renewal filings.

Because of the 2016 cap of 12,999 had been reached already, the statement above is no longer applicable, thus a lot of foreign workers will soon be affected and become unlawfully present in the CNMI, catastrophic failures that is beyond foreign workers’ control.

On the same letter, I emphasized U.S District Court of NMI judgment, and I quote; “Notwithstanding the balance of harms or how much the public interest would be served, given the unlikelihood that [the] plaintiffs will succeed on the merits of their claim and the lack of irreparable harm for all foreign workers and businesses because of the implementation of the final rule, the court concludes that [the] plaintiffs have not established their entitlement to a preliminary injunction.”

The U.S District Court of the NMI judgment was merely based on the dismissal of the current status of the plaintiffs without considering future effects that foreign workers are currently facing now. The hardship, the irreparable harm, and the public interest are now being experienced.

“The Congressional intent in this transition needs to be carried out, and we as plaintiffs are convinced that if we can make our complaint stronger, the better and this can only be done if we join our hands together in amending the lawsuit. CNMI officials and Chamber of Commerce request to the U.S. Department of Labor for a five-year extension on the federalization transition period set to expire in 2014 for nonresident workers extension of work authorization is nothing but an abusive act because there is no guarantee that foreign workers could get permanent immigration status after 2014. The CNMI officials and the U.S. government (immigration department) are one in abusing the very talent and resources of foreign workers without any reward in giving improve immigration status in return. While it is true that foreign workers are getting paid for work they perform, that is common to all. To be fair to all concerned, an individual who has been contributing his/her expertise in all types of labor for a decade must be awarded with utmost consideration without fear of being deported. It is not only because you need foreign workers (and foreign workers need employment) to sustain the need for businesses to survive and for economic reason, but also to see to it that foreign workers must receive or must be granted equal protection similar to that of U.S. permanent residents for humanitarian reason as members of the community. Now, foreign workers are suffering and distressed because of the pending CW issues and/or release. We are looking forward to your positive response in our request to join us for our cause.”

This appeal was never considered by many including businesspersons, CNMI concerned officials, and even foreign workers alike. Now, everyone (if not all) are asking the USCIS, WHY? Your inaction before is the answer to the question today. It’s been said that, “prevention is better than cure.” You are trying to cure the problem. Adios!

Carlito J. Marquez
Lower Base