USCIS eases CW-1 extension rule

U.S. Citizenship and Immigration Services announced yesterday that it will consider certain CW-1 petitions seeking an extension of status for temporary workers present in the CNMI to be filed on time, even if USCIS receives them after the worker’s current period of CW-1 petition validity expires.

In a statement with a release date of Oct. 18 2022, that was posted on the USCIS website, it said that USCIS is providing this limited accommodation to facilitate the current Temporary Labor Certification processing delays at the U.S. Department of Labor. In essence, USCIS is saying it would not consider certain petitions to renew CW-1 visas late if the petitions had been held up by the backlog at the U.S. Department of Labor.

Delegate Gregorio Kilili C. Sablan (Ind-MP) welcomed this, saying yesterday that recognizing that Marianas employers of CW-1 workers were being hurt by delays in processing Temporary Labor Certifications was needed and would be welcome by the business community.

“Marianas employers have been rightly concerned about the status of their CW workers, given the long wait to obtain Temporary Labor Certifications this year,” Sablan said. “I have been meeting with the U.S. Department of Labor to get them to move faster on the labor certifications.

“I also informed Department of Homeland Security Secretary Alejandro Mayorkas about the problem and ask that he use his discretionary authority to allow current CW-I visa holders to continue to work and remain lawfully present in the Northern Marianas if their employer had filed for a Temporary Labor Certifications in a timely manner.

Gregorio Kilili C. Sablan

“I very much appreciate my message got through and USCIS provided this relief today.”

Normally, under Department of Homeland Security regulations, an employer may only file a CW-1 petition on behalf of a worker present in the CNMI if the worker is lawfully present in the CNMI, and USCIS will not approve an extension of nonimmigrant status if the worker’s nonimmigrant status expired before the petition is filed. Under statutory requirements and DHS and DOL regulations, CW-1 petitions must include an approved TLC.

However, USCIS has the discretionary authority to excuse a late filing for extension of status petitions in limited circumstances. USCIS has determined that it is appropriate to exercise such authority to excuse late filings of CW-1 petitions (petitions USCIS receives after the current CW-1 status expires) by employers in the CNMI, only if:

-The TLC application was filed with DOL at least 60 days before the requested start date;

-The petition is otherwise properly filed, and includes an approved TLC; and

USCIS receives the petition no later than 30 days after the date of TLC approval, or by Nov. 15, 2022, whichever is earlier.

If an employer files an extension petition meeting these requirements, the CW-1 worker may continue employment with the same employer for up to 240 days beginning on the expiration of the authorized period of stay, pending adjudication of the petition (or, in the case of a non-frivolous petition for extension of stay with change of employer, until USCIS adjudicates the petition).

Certification process protects U.S. workers

Under terms of the U.S. Workforce Act (Public Law 115-218), obtaining a CW-1 visa for a foreign worker first requires certification from the Department of Labor that no U.S. worker is available in the Marianas for a job. Only after that Temporary Labor Certifications is issued may the employer then apply to USCIS to issue a one-year CW-1 visa.

This year, however, because of a larger than normal number of Temporary Labor Certifications for employers of foreign workers nationwide under the H visa category, the Department of Labor fell behind in issuing certifications for CW-1 employers. As a result, some CW-1 visas expired before petitions for renewal could be filed.

USCIS will now excuse late filings of CW-1 petitions for employers who applied for the required Temporary Labor Certification with the Department of Labor at least 60 days before the start data for the renewal. The certification must have been approved; and USCIS must receive the petition within 30 days of that approval or by Nov. 15.

“In the meantime, our discussions with Labor have resulted in progress on the backlog of applications for certification,” Sablan said. “The department reports to me they have dedicated all available staff to processing certifications needed by CW-1 petitioners, and that, as a result, as of Oct. 14 they have issued first actions for all cases filed in May, June, July, and August and for 82% of cases filed in September.

“This means that certifications for 3,055 workers have been issued over this application period, although 2,309 still remain pending,” Sablan added.

“USCIS has also committed to me that they are staffed up and ready to process the surge of approved Temporary Labor Certifications, now expected.

“Today’s action, determining that CW petitions delayed by the Department of Labor will not be considered late, if certain criteria are met, should provide much needed relief to employers and to their foreign workers, as well,” Sablan said. (Saipan Tribune/PR)