USCIS not bound by USDOL definitions

A U.S. Citizenship and Immigration Services representative said yesterday that they are not bound by the U.S. Department of Labor’s occupational classifications though it is generally followed in the agency’s decision making, especially when it came to the issuance of CNMI-Only Transitional Worker visas now that constructions workers are barred from the program.

A statement from USCIS public affairs officer Claire K. Nicholson said that USCIS was not bound by USDOL’s definitions and classifications of occupations. According to her, due to the recent enactment of Delegate Gregorio Kilili C. Sablan’s (Ind-MP) House Resolution 339, CW-1 visas would “generally no longer be available to workers” performing jobs under the USDOL’s definition of “construction and extraction occupations” based on the Standard Occupational Classification system, or SOC.

“The CNMI Department of Labor will generally identify the SOC group on the required Job Vacancy Announcement (JVA),” she said, adding that while USCIS also takes into consideration the job classifications as provided by the CNMI DOL, USCIS is not bound by it in regards to its decision making.

“…USCIS will consider the job classification identified on the JVA, USCIS is not bound by this determination and may make a separate and independent judgment based on a preponderance of the evidence in each case.”

Sablan’s H.R. 339, which passed in late August 2017, had provisions that barred construction workers from obtaining CW-1 visas. According to the delegate in a previous statement, construction workers alone took up an estimated 4,000 CW-1 slots for fiscal year 2017. USCIS set that cap at 12,998 for fiscal year 2017.

For fiscal year 2018, USCIS reduced the cap of available CW-1 slots by 3,000, setting it at a maximum of 9,998 approved slots for the fiscal year. Fiscal year 2017’s cap was a reduction of one slot from fiscal year 2016’s CW-1 cap.

The large reduction caused Gov. Ralph DLG Torres along with several members of the Northern Marianas Business Alliance Corp. to head to Washington, D.C. to discuss the repercussions of the large reduction.

NMBAC is a collection of private sector executives that strive toward the survival of the CNMI economy.

In a previous press release from NMBAC, they were shocked to discover that the USCIS considers occupations described as general maintenance, general handyman employees, gardeners, or occupations that do “general repairs” as under the USDOL’s definitions of “construction workers”.

“We have hotel maintenance workers who fix leaky faucets and Commonwealth Utilities Corp. engineers who maintain the engines at our power plants, who are in danger of losing their [CW-1] permits,” said NMBAC chair Alex Sablan in a previous statement.

Torres, who went public that he did not intend to support this intention of HR 339, said in a statement that H.R. 339’s enactment was ultimately “detrimental to the economy.”

Despite retracting his support of H.R. 339, Torres said he and his office would “continue to keep moving forward.”

“I am here to support the NMBAC and our efforts to continue fighting for the workforce of the CNMI because what has transpired is absolutely unacceptable for our economy to continue to grow,” he said.

Saipan Tribune tried to obtain comments from Delegate Sablan since last Tuesday. According to the delegate’s deputy communications director Tina Sablan, the delegate was travelling.

USCIS’ Nicholson did clarify, however, that USCIS would deny CW-1 petitions for construction and extraction occupations if “the worker has not continually maintained CW-1 status for the same employer since before October 1, 2015.”

“This new limitation applies to CW petitions that were pending with USCIS as of Aug. 22, 2017 as well as to any petitions filed after that date,” said Nicholson.