Immigration lawyers: CWs, don’t panic—yet

Attorneys Maya Kara and Bruce Mailman speak to the Society for Human Resource Management-NMI Chapter at their meeting yesterday, addressing better visa options in the face of numerous pending CW renewals. (Daisy Demapan)

At the Society for Human Resource Management NMI Chapter meeting yesterday, both lawyers highlighted viable options and better alternatives in terms of ensuring employable workers.

Kara said, “Commonwealth controlled immigration ended in November 2011 and now we have a transition period. Umbrella permits and CNMI entry permits are no longer relevant except to prove status prior to November 2011,” especially for those considering family based immigration status.

The CW visa classification has been in effect while the CNMI foreign worker permit system transitions to U.S. immigration law. During this transition period, employers of nonimmigrant workers who are ineligible for other employment-based nonimmigrant visa classifications can apply for temporary permission to employ workers in the CNMI under the CW classification.

“By 2019, there will be no more exceptions until Congress decides on the issue or, after the presidential election, what direction their immigration policy will go,” she said.

She said the only legal option that can be done for late CW-1 renewals is for them to stop working.

“Your workers have to stop working when permits expire,” she said, highlighting the legal dilemma if employees refuse.

According to U.S. Citizenship and Immigration Service, transitional workers are expected to find a better alternative immigration status before the end of the transition period if they wish to remain in the CNMI. The rule allows time for employers to adjust their hiring practices and for eligible foreign workers to obtain nonimmigrant or immigrant visa classifications.

Mailman noted that workers who stop working due to the expiration of their CW permits still have a 120-day tolling period to wait for their renewal without leaving the CNMI.

He said a regulatory amendment is still pending since May 2014 that, if approved, will allow CW-1 employees 240 days to work after expiration if a timely renewal is pending.

The attorneys warned HR managers that CW-1 cannot be converted to H-1B or H-2B or any other nonimmigrant position without a change in job description, duties, and employee qualifications.

If the qualifications are changed according to visa option guidelines, non-immigrant visa options open up to H-visa, L visa, E visa, R visa, and T & U visas options.

However, “most CW-1 positions cannot be converted into H-1B or H-2B. It all comes down to how job duties are set out and for those worrying about renewal, U.S. immigration is saying that they are peddling as fast as they can,” Mailman said.

Kara adds that if filings are non-frivolous and timely—employees submit renewals at their recommendation of six months in advance—and USCIS has still not issued a status update, contacting them directly is the best option.

“If your dates of filing are more than 90 days as stated on your receipt,” you may also contact Delegate Gregorio Kilili C. Sablan’s office who is currently working with federal officials to push forward with renewals.

Spouses and minor children under 18 years of age are eligible for CW-2 status, while children over 18 years of age and parents or other relatives are not eligible for CW-2 status. Also, although CW-2 are allowed to stay, they aren’t allowed to work.

“What you need to do is consider any factors for a more permanent status. For your CWs in particular, apply six months early. Dates are important. Don’t cancel one status while applying for another and also train and hire U.S. qualified workers every chance you get,” Mailman said.

They said that CW status can be converted to green card status but that the CW status must be continually renewed until the new status is approved.

Lastly and legally speaking, if a CW renewal is late, “the best thing you can do is buy a ticket for your employee to return to their country and work out a petition with their consulate. Otherwise, if an employer is allowing an expired CW to work, penalties will be assessed and they’ll most likely be barred from hiring alien workers,” he said.

Despite the catastrophic events caused by Typhoon Soudelor and the undersea fiber optic cable break, the attorneys say, USCIS has not provided any flexibility, adding stress to CW renewals.

The reality, he said, is that “there hasn’t been a statement or policy on whether CW renewals are given priority in terms of the CW cap,” when the program ends in 2019.

If there are more employees and applicants as the cap lowers, he said, some may be out of work.

Log on to www.uscis.gov to check your case status or call customer service at 1-800-375-5283.