Reaching the CW cap: Is the sky really falling?

One day while Chicken Little was walking in the woods an acorn falls from a tree, and hits the top of her little head. My, oh, my, the sky is falling. I must run and tell the lion about it,—says Chicken Little and begins to run. —Traditional folk tale, http://www.worldstory.net/en/stories/chicken_little.html 

Over the last several weeks, we have fielded a large number of CW workers panicking about their status, and quite a few employers worried about their employees and their businesses. Some of their fears are justified, and many are not. All of the concerns were triggered by the announcement, made by USCIS on May 20, 2016, that the Fiscal Year 2016 cap for CW-1 permits has been reached and no new applications would be accepted or processed for FY 2016.

What does the CW cap mean?

The cap was established after the passage of the Consolidated Natural Resources Act of 2008 (“CNRA”), which became effective with respect to the CNMI on Nov. 28, 2009. The CNRA authorized the U.S. Secretary of Labor to authorize a certain number of CW-1 permits to be issued of foreign workers in the CNMI. The number is allocated per the federal fiscal year which starts on each Oct. 1 and ends on each Sept. 30. The following are the CW caps since the program was initiated:

FY 2011 22,417

FY 2012 22,416

FY 2013 15,000

FY 2014 14,000

FY 2015 13,990

FY 2016 12,999

FY 2017 undetermined

From FY 2011 though the end of FY 2015, the number of CW permits issued did not exceed the cap. In 2016, the number of applications skyrocketed, due, we assume, to the massive influx of new foreign investment and casino and resort construction projects in the CNMI. According to USCIS, the number of permits issued, plus the probable number of applications in process, reached the cap on May 5, 2016. Applications received by the agency after that date, for employment commencing on or before September 30, 2016, will be rejected and returned.

CW-2 permits, which are available for non-working foreign spouses and children under 18, are not counted toward the cap, but cannot be approved unless there is a valid CW-1 permit for the working spouse or parent.

Who is affected by the cap?

The number of workers who will be affected by the closing of the cap appears to be relatively small when compared to the total authorized number of CW-1 workers. The issue of which year’s cap applied to which worker is determined by the employment start date. This applies regardless whether the application is for new employment or continued employment (“extension of stay”).

1. If the employment start date is on or before Sept. 30, 2016, but the employer filed the CW petition prior to May 5, 2016, the worker is under the 2016 cap and the petition will processed by USCIC. Please remember that “filed” means received by USCIS; not the date of mailing.
2. If the employment start date is on or before Sept. 30, 2016, and the employer filed the CW petition after May 5, 2016, the worker is under the 2016 cap and the petition, with all filing fees, will be returned to the petitioning employer. This is the group that is most affected by the closing of the quota set by the cap. We will refer to this group as “second category” in the rest of this article.
3. If the employment start date is on or after Oct. 1, 2016, the worker is counted toward the 2017 cap. The trick here will be timing. We anticipate that the 2017 cap will be reached much sooner than was the case with the 2016 cap. We are advising our employer clients to file petitions for their workers as soon as possible. Petitions can be filed as long as “six months”—that means “180 days” in USCIS-speak—in advance of the employment start date. We advise our employer clients to post the JVAs as soon as possible on the CNMI Labor Website and file for renewed or new employment as close as possible to 180 days in advance of the start date. (By our count, the first day on which petitions can be filed for workers whose CW-1s expire on Dec. 31 is July 5. As of June 6, petitions can be filed for employees whose term of employment starts on or before December 3.)

What to do is your permit expires before Oct. 1, 2016 and your employer didn’t manage to file your petition prior to May 5, 2016?

Unfortunately, the options for workers in this second category are very limited.

• You can work until the expiration date of your current permit.
• You will need to leave the CNMI within 10 days after your expiration. This includes any CW-2 spouses or children whose status is derived from yours. After that, you begin to accumulate what immigration lawyers call “bad time,” discussed below, which counts toward possible application of the three-year and 10-year bars to re-entering the U.S.
• You can and should encourage your employer to submit an application for you as soon as possible. Please make sure that your employer does not just resubmit the application that was rejected. There will need to be a new JVA, with a start date on or after Oct. 1, 2016. There are also some parts of the petition that will need to be answered differently than for a petition to extend status.
• Once you return to your home country, you will need to go through consular processing to obtain a CW visa to return to the CNMI. This means that once USCIS approves the petition, you—the worker and any dependents—will need to file an online form, DS-160 for each person, to pay the nonimmigrant visa fee that will be required, and to obtain an appointment at the appropriate U.S. consulate.

What will not work

1. Parole: We are informed that at least one HR manager on island has advised employees who are in the second category, above, to apply for Parole In Place so that they can remain on island until their next employment period commences. Unfortunately this will not work. Parole in Place is available only to persons who have never been admitted to the United States. A CW permit is deemed an admission to the United States. A person who has been admitted to the United States is ineligible for Parole in Place, including parents and spouses of U.S citizens.
2. Changing to CW-2 status: We have received several inquiries on whether a second category worker can temporarily switch to CW-2 status in order not to have to depart the CNMI within 10 days after permit expiration. Unfortunately, this will not work either. First of all, the CW-1 worker from whose status you would seek to derive your CW-2 status has to be your spouse; it cannot be your parent or child. Second of all, when you apply for CW-2, you are applying for a non-immigrant status. If you then apply for an employment-based CW-1, you are applying for a second non-immigrant status. Except in rare circumstances you cannot have two pending non-immigrant applications; the second application will wipe out the first. Since we do not know how fast your CW-2 application will be processed, it is likely that your CW-1 application will wipe out the CW-2 application before the CW-2 is granted. The result is that you have wasted time and money and will not get the result you want. Furthermore, since a pending parole application does not give you legal status, you may have accumulated “bad time.” More on that below.

3- and 10-year bars

The three and ten year bars are a form of penalty for over-stayers. Aliens who overstay their permits are technically subject to removal (a polite term for deportation). Removal, however, is expensive for the government, and is exercised on a discretionary basis. In the case of simple over-stayers, without unlawful entry into the U.S., or subsequent criminal conduct, removal is not a priority. In other words, if you simply overstay your permit expiration, you are unlikely to be deported. There are other consequences, however, that kick in when you choose or need to travel outside the CNMI. If you overstay your permit by at least 180 days, and then exit the USA, you will not be permitted to return for three years. If you overstay your permit by at least one year, and exit the USA, you will not be permitted to return for 10 years. There are waivers available for the bars, but that is nor useful to our discussion here.

Other visa options

There may be other visa options available to some CW-1 workers, although not all. We regularly explore other options with both employers and employees, but that is too complicated a topic for today’s column.

To sum up: the sky is not falling; not yet, anyway. Category two workers are unfortunately trapped at the intersection of politics, law and economics. We can only hope that employers act responsibly and humanely with respect to their affected employees. Everyone needs to act with common sense, with careful consideration of all options, and with attention to the calendar.

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 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.