CWs, where are we headed now?—Part II

“A pessimist sees the difficulty in every opportunity; an optimist sees the opportunity in every difficulty.”—Winston Churchill

Last Dec. 3, 2007, four days before the unity march from Kilili Beach to American Memorial Park, I wrote a letter to the editor titled “exodus of foreign workers leaving the islands” due to (1) CNMI government introduction of Labor Reform Bill HB 15-108 otherwise known as “the alien workers act” that limit foreign workers to leave the island after three years of continued working and allow them to stay in their country of origin for about six months before coming back in the island. (2) Seeking the retention of HB 3074 that includes the “grandfathering of long-term foreign workers” in the island but it was scrapped before it reaches the U.S. Congress.

The unity march was very, very successful but the alien workers act (HB 15-108 / HB 3074) was unsuccessful.

“The Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, was signed into law on May 8, 2008. Title VII of this law amended Pub. L. 94-241, the Act approving the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States.

Title VII extended most provisions of the Immigration and Nationality Act (INA) and other U.S. immigration laws to the Commonwealth of the Northern Mariana Island (CNMI) for the first time”.

Sec. 701: Statement of Congressional Intent of CNRA. (a) “Immigration and Growth.—In recognition of the need to ensure uniform adherence to long-standing fundamental immigration policies of the United States, it is the intention of the Congress in enacting this subtitle— (1) to ensure that effective border control procedures are implemented and observed, and that national security and homeland security issues are properly addressed, by extending the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(17)), to apply to the Commonwealth of the Northern Mariana Islands”.

Sec. 701 does not emphasized or recognizes the activities and/or advocacies of foreign workers in the island in implementing federal immigration under the CNRA in the Northern Mariana Islands. Blaming individuals who were advocated for CNMI federal takeover is inappropriate.

“On Sept. 7, 2011, U.S. Citizenship and Immigration Services (USCIS) published a final rule that establishes a Transitional Worker nonimmigrant visa classification (CW) for foreign workers only in the Commonwealth of the Northern Mariana Islands (CNMI). Employers of nonimmigrant workers who are ineligible for other employment-based nonimmigrant visa classifications under the Immigration and Nationality Act (INA) can apply for temporary permission to employ workers in the CNMI under the CW classification.

The paragraph above has never been completely addressed by some qualified employers that is why the 2016 CW cap has been reach. Likewise, USCIS itself is in trouble by accepting petitions for professional employees and seasonal workers under the CW category when in fact they are otherwise qualified for H-Visa. The USCIS violated the final rule that they themselves drafted. We challenge this final rule implementation in the U.S District Court via a lawsuit but we failed to establish the 3 merit of injunction and it was dismissed with prejudice.

“On June 3, 2014, the U.S. Department of Labor published a notice in the Federal Register extending the CW program to December 31, 2019”, the final year when there will be a zero foreign workers in CNMI.

Clarification on CW-1 extension of stay petitions
On May 20, USCIS announced that it had received a sufficient number of petitions to reach the numerical limit (the “cap”) of 12,999 workers who may be issued CW-1 visas or otherwise provided with CW-1 status for fiscal year (FY) 2016.  May 5 was the final receipt date for CW-1 worker petitions requesting an employment start date before October 1, 2016. We are clarifying that although extension of stay petitions for current CW-1 workers are counted toward the CW-1 cap; these petitions will be accepted under certain circumstances.

Everyone is hoping that all petitions filed on time after May 5, 2016 will falls under “certain circumstances” and that the 240 days is considered valid.

Quite confusing that from October 1, 2015 up to May 5, 2016, 12,999 CW had been approved already meaning within more than seven months or almost half of the calendar year, the door for CW petitions were closed already. A lot of those within the 2016 cap are now subject for rejection if filed after May 5, 2016.

What happens after the cap is reached
“USCIS will reject CW-1 petitions that were received after May 5, 2016 and that request an employment start date before October 1, 2016. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap.  The filing fees will be returned with any rejected CW-1 petition”.

“If an extension petition is rejected, then the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must depart the CNMI within 10 days after the CW-1 validity period has expired, unless they have some other authorization to remain under U.S. immigration law”.

At this point, the six months filing period for those CWs that is expiring after May 5 will be rejected and became invalid. Is the 240 days processing period is also been set aside by this May 5, 2016 cap? Poor (fellow) CW workers will end up with nothing, pack-up personal belongings for eventual unplanned vacation or stay back for a reason.

This is ridiculous. What happens to the 30-day period of stay after the expiration of CW to look for another possible employer? Is the 30-days grace period overturned by the 10 days exit if a certain petition is rejected? There must be some kind of relief in favor of the CWs who are helpless in filing their CW renewal.

CW workers renewal lies at the hands and at the mercy of their employer.

If in 2007, the exodus of foreign workers leaving the island did not occur because of the scrapping of the proposed HB 15-108, this time due to the CW cap limitations, I am afraid if USCIS will not consider those petitions filed after May 5, 2016, the exodus of foreign workers leaving the island is about to begin.

On CW cap development, “The 902 talks both agreed to focus in on the issues of the expiration of the CNMI-only transition worker program in 2019 and U.S. Department of Defense activities in the CNMI, according to a statement from the Interior and problems with the U.S. through a total dissection of our Covenant and re-negotiation of those terms and conditions, which need to be updated preferably in our favor.

“The objective of these 902 Consultations is to provide an avenue for high level discussions on the issues of immigration, labor, and U.S. national security interests between U.S. and CNMI officials.”

We hope that the ongoing 902 talks will focus on grandfathering of long-time foreign workers as it is the best options to make favoring both employers and employees for the ongoing future development in the island. A 10-year extension is just another way of prolonging the hardship and agony of CW workers.

Other consideration is to grant long-time foreign worker with a CNMI-only resident status for those who were granted with umbrella permit. This are the very workers who dedicated their years of experience in providing quality workmanship, loyalty, and are law-abiding citizens in this island they called home. We urge CNMI lawmakers and Congressman Kilili to pursue the improve immigration status for long time foreign workers to maintain current workforce that are badly needed in the island.

Carlito J. Marquez
Lower Base