I-129 beneficiaries may apply to remain in NMI

 Foreign workers in the Commonwealth of the Northern Mariana Islands may apply for parole and an employment authorization document, or EAD, to remain in the CNMI and continue working while awaiting a decision on a petitioning employer’s Form I-129 Petition for a Nonimmigrant Worker requesting a grant of status in the CNMI for them. Examples of nonimmigrant classifications for which a I-129 petition may be filed include H-1B Specialty Occupation, E-1 Treaty Trader, E-2 Investor, L-1 Intra-Company Transferee and R Religious Worker. To benefit from this policy, the petition must be filed before Nov. 28, 2011.

U.S. Citizenship and Immigration Services developed this approach in response to input received from the public during USCIS outreach sessions during the last two weeks of September. Employers and workers were concerned that businesses would have to close if the benefiting employees had to leave the CNMI to await decisions on their employer’s I-129 petitions. There was particular concern about a negative impact on schools and hospitals.

USCIS also recognizes that it is important to support movement into regular employment-based nonimmigrant categories under the Immigration and Nationality Act (INA), as that is the ultimate goal of the CNMI transition to federal immigration law. A continuing employment provision in the CW Transitional Worker final rule allowed this convenience for workers who are being petitioned for CW-1, but there are no equivalent special regulatory provisions for those under INA categories.

Q&A

Q. Can I stay and continue working in the CNMI while awaiting a USCIS decision on an I-129 petition filed on my behalf?

A. Parole and work authorization must be current for you to remain legally in the CNMI and continue working while awaiting a decision on your H-1B or other nonimmigrant employment-based petition. Without parole and work authorization, a foreign worker is unable to work and must leave the CNMI and wait for a decision outside the United States.

Q. Who can apply for parole and employment authorization?

A. Workers for whom employers are filing an I-129 Petition for a Nonimmigrant Worker requesting a grant of nonimmigrant status in the CNMI can apply for parole and an employment authorization document, EAD. Examples of nonimmigrant classifications for which an I-129 petition may be filed include H-1B Specialty Occupation, E-1 Treaty Trader, E-2 Investor, L-1 Intra-Company Transferee and R Religious Worker. To benefit from this policy, the petition must have been filed before Nov. 28, 2011.

Q. Is everyone in the CNMI eligible for this continuing employment benefit?

A. No. To eligible for continuing employment, a foreign worker must be:

§ Legally present in the CNMI;

§ Working prior to Nov. 28, 2011 with a valid permit; and

§ Have an employer who files an I-129 for him/her prior to Nov. 28, 2011.

Russian and Chinese visitors who have been paroled into the United States solely as tourists are not eligible to work.

Q. What must be submitted with the parole and EAD request?

A. You must submit the following information:

§ A letter or affidavit signed by you, the worker, requesting parole. Include your complete P.O. Box mailing address and telephone number;

§ A copy of a valid identity document, such as your passport biographic page (with photo, date of birth and expiration date);

§ A copy of your I-94 (front and back) if you have one;

§ A copy of your umbrella permit or other document evidencing your lawful presence and work authorization (if you have one);

§ A letter from your employer verifying his or her intention to continue your employment, indicating the U.S. immigration law category for which he/she intends to file the I-129 on your behalf on or before Nov. 28, 2011, or a copy of the filed I-129 if available;

§ Completed I-765 Application for Employment Authorization; and

§ Check for $380 made out to the Department of Homeland Security or a request for fee waiver, such as the I-912.

Seal all these items in one envelope with the following information:

§ Your name, P.O. Box and telephone number

§ “I-129 Parole, EAD and Waiver Request”

We recommend that you keep a copy of all documents for yourself.

Q. Where can I get the I-765 and I-912 forms?

A. These forms are available for free on-line at www.uscis.gov/forms or at the USCIS office, TSL Plaza, Garapan, Saipan.

Q. Where should I submit my request for parole, I-765 and fee waiver request?

A. Please see the table for instructions on how to submit your request.

Q. Is there a fee to apply for parole?

A. There is no filing fee to apply for parole in this situation.

Q. Is there a fee to apply for an EAD?

A. There is a $380 filing fee for the I-765 Request for Employment Authorization.

Q. Can I get a waiver of the I-765 fee?

A. You may submit a request, such as the I-912 Request for Fee Waiver, along with your I-765 request. Fee waivers are based upon a determination that the applicant is unable to pay. If you are able to pay the fee, you should not submit a fee waiver request.

Q. Can my employer pay the I-765 fee for me?

A. Yes, but the employer is not required to do so.

Q. Does the employer or foreign worker apply for parole, employment authorization and fee waiver?

A. The foreign worker applies for those benefits. However, as described elsewhere in this guidance, the application will require certain supporting information from the employer.

Q. When do I have to submit my request in order to have parole and an EAD by Nov. 28?

A. You should submit your package as soon as possible. We strongly suggest that the package be sent by Oct. 14, 2011. USCIS is committed to processing these requests as quickly as possible, and has made arrangements to input the applications in Guam and process as a special group at our National Benefits Center in order to address the unique situation in the CNMI.

Q. Does my employer have to have filed the Form I-129 in order for me to apply for parole?

A. No. USCIS recognizes that putting together a complete and accurate petition package for an H-1B or other nonimmigrant worker will take employers some time, and in many cases requires previous action by the U.S. Department of Labor. Also, it will take time for USCIS to process these parole and EAD requests. For these reasons, USCIS will accept the requests prior to the employer actually filing the I-129. However, as stated elsewhere in this guidance, the worker should at a minimum supply a letter stating the employer’s intention to continue your employment in a U.S. immigration law category, and the employer will need to file the petition no later than Nov. 28, 2011. Employers are strongly encouraged to begin the H-1B or other nonimmigrant petition process immediately, if they have not already done so.

Q. Will USCIS grant parole in cases where the employer requests consular processing abroad for the worker?

A. No. This option is intended for cases where the employer is seeking a first-time grant of nonimmigrant status in the CNMI for the worker beneficiary of the Form I-129 petition, not for those cases in which the worker intends to obtain a visa abroad based upon an approved petition.

Q. Is premium processing available for Form I-129 petitions filed by CNMI employers?

A. USCIS offers a premium processing service for some Form I-129 filers. With premium processing, USCIS will process the case within 15 days. There is an additional premium processing fee of $1,225 for those requesting this service. In the CNMI, premium processing is available to Form I-129 petitioners requesting consular processing or an extension of a current U.S. nonimmigrant status. It is not available for petitioners requesting an initial grant of status in the CNMI, or a change of nonimmigrant status. Employers who qualify for premium processing, and desire this service, should file USCIS Form I-907 along with their Form I-129 package.

Q. For how long will parole and an EAD be granted?

A. If granted, parole and EADs in these instances generally will be valid for a period of 120 days.

Q. Can I work once parole is granted?

A. Parole allows an individual to remain temporarily in the CNMI subject to any conditions but does not provide work authorization. You can continue to work under your current umbrella or other work permit until Nov. 27, 2011 (or the expiration date of that authorization, if earlier). Once your EAD is granted, as a beneficiary of an I-129 petition filed on or before Nov. 28, 2011 by your current employer, you may continue to work in your current position without violating the immigration laws until a decision is made on your petition or until your EAD expires.

Q. Can I work for any employer with my EAD?

A. No. A condition of your parole in this situation is that you will use the EAD to continue to work only for the employer filing the Form I-129 on your behalf, until that petition is adjudicated by USCIS.

Q. Can I travel anywhere in the United States?

A. No. Parole of individuals in this situation does not permit the individual to travel to any other part of the United States. If you need to travel outside of the CNMI, you should provide necessary details when requesting your parole, and USCIS will consider whether to authorize this travel as part of your parole.

Q. Why can’t I automatically continue to work for my current employer as a foreign worker can who is being petitioned for a CW-1 category?

A. A continuing employment provision in the CW Transitional Worker final rule allowed this convenience for foreign workers who are being petitioned for CW-1 status, but there were no special provisions for those on whose behalf petitions may be filed under INA-based nonimmigrant classifications. In response to the unique situation in the CNMI and to avoid, to the extent possible, disparate treatment of those employers who are complying with the law and submitting I-129 petitions for positions qualifying as H-1B specialty occupation positions or otherwise eligible for a regular U.S. employment-based nonimmigrant category, USCIS is providing a way for beneficiaries of I-129 petitions to apply for parole, work authorization and fee waivers in order to continue working in the CNMI while awaiting a decision on their I-129 petitions.

Q. This all sounds pretty complicated. Can’t my employer just file a CW petition for me instead, and then later on I can change that to H-1B under U.S. immigration law?

A. No. The CW transitional worker program is for employment positions and workers that do not qualify for H-1B or another regular U.S. employment-based nonimmigrant classification. If a position is eligible for an INA-based nonimmigrant status, the employer should seek that status for the worker. A CW petition for an H-1B position will be denied.

Q. What about my dependents? If I am granted parole and permitted to continue to work pending adjudication of my employer’s Form I-129, will my dependents also be allowed to remain in the CNMI with me?

A. If you are a worker eligible for parole under this guidance, you may also request parole for your spouse and dependent children (under the age of 21) who are lawfully present in the CNMI. You must submit the following information regarding any family member requesting parole along with you:

§ A letter or affidavit signed by the family member requesting parole, or signed by you if the family member is a child under 18;

§ A copy of a valid identity document, such as a passport biographic page (with photo, date of birth and expiration date);

§ A copy of any Form I-94 (front and back), umbrella permit, and/or other document showing current lawful presence in the CNMI.

This parole will allow the family member to remain with the worker lawfully in the CNMI after Nov. 27, 2011, but does not authorize employment. Work authorization will not be granted to paroled family members. If you and your spouse are both eligible for parole and work authorization as workers under this guidance, you should file separate requests as such.

Q. If I or my family member is eligible for parole under this guidance, will it automatically be granted?

A. Any grant of parole is discretionary and will be made on a case by case basis.

Q. Where can I find more information about parole in the CNMI?

A. USCIS is the component within the U.S. Department of Homeland Security that handles immigration benefits. For more information, please visit the USCIS website at www.uscis.gov/cnmi. (USCIS)