CNMI-Only Transitional Worker (CW–1)

(1) Definitions. The following definitions apply to petitions for CW status for employment in the Commonwealth of the Northern Mariana Islands (the CNMI or the Commonwealth) filed under this section:

(i) Doing business means the regular, systematic, and continuous provision of goods or services by an employer as defined in this paragraph and does not include the mere presence of an agent or office of the employer in the CNMI.

(ii) Employer means a person, firm, corporation, contractor, or other association, or organization which:

(A) Engages a person to work within the CNMI; and

(B) Has or will have an employer-employee relationship with the CW–1 nonimmigrant being petitioned for.

(iii) Employer-employee relationship means that the employer may hire, pay, fire, supervise, or otherwise control the work of the employee.

(iv) Lawfully present in the CNMI means that the alien has lawfully been admitted to the CNMI under the immigration laws of the Commonwealth in a category other than short term visitor for pleasure or business (240(c), 703(A), 703(B), or 704(B) under CNMI classifications). With respect to any application for transitional worker status filed or adjudicated after the transition program effective date, lawfully present in the CNMI means that the alien:

(A) Is an alien described in section 6(e)(1) or (2) of Public Law 94–241, as added by section 702(a) of Public Law 110–229, other than an alien described in section 6(e)(1) who was admitted to the CNMI as a short term visitor for pleasure or business (240(c), 703(A), 703(B), or 704(B) under CNMI classifications); or

(B) Was lawfully admitted to the CNMI under the immigration laws on or after the transition program effective date, other than an alien admitted as a visitor for business or pleasure (B–1 or B–2 or under any visa-free travel provision).

(v) Legitimate business means a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit, or is a governmental, charitable or other validly recognized nonprofit entity. The business must meet applicable legal requirements for doing business in the CNMI. A business will not be considered legitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under Federal or CNMI law. The Secretary will determine whether a business is legitimate.

(vi) Minor child means a child as defined in section 101(b)(1) of the Act who is under the age of eighteen years.

(vii) Numerical limitation means the maximum number of persons who may be granted CW–1 status in a given fiscal year or other period as determined by the Secretary, as follows:

(A) For the period beginning on November 28, 2009 and ending on September 30, 2010, the numerical limitation is 22,417.

(B) For each fiscal year beginning on October 1, 2010 until the end of the transition period, the numerical limitation shall be a number less than 22,417 that is determined by the Secretary and published via Notice in theFederal Register.The numerical limitation for any fiscal year shall be less than the number for the previous fiscal year, and shall be a number reasonably calculated in the Secretary’s discretion to reduce the number ofCW–1 nonimmigrants to zero by the end of the transition period.

(C) The Secretary may adjust the numerical limitation for a fiscal year or other period at her discretion at any time via Notice in theFederal Register,as long as such adjustment is consistent with paragraph (w)(1)(vii)(B) of this section.

(viii) Occupational category means those employment activities that the Secretary of Homeland Security has determined require alien workers to supplement the resident workforce and includes:

(A) Professional, technical, or management occupations;

(B) Clerical and sales occupations;

(C) Service occupations;

(D) Agricultural, fisheries, forestry, and related occupations;

(E) Processing occupations;

(F) Machine trade occupations;

(G) Benchwork occupations;

(H) Structural work occupations; and

(I) Miscellaneous occupations.

(ix) Petition means USCIS FormI–129CW, Petition for a Nonimmigrant Worker in the CNMI, a successor form, or other form, any supplemental information requested by USCIS, and additional evidence as prescribed by USCIS.

(x) Transition period means the period beginning on the transition program effective date and ending on December 31, 2014, unless the CNMI-only transitional worker program is extended by the Secretary of Labor.

(xi) Transition program effective date means November 28, 2009.

(xii) United States worker means a national of the United States, an alien lawfully admitted for permanent residence, or a national of the Federated States of Micronesia, the Republic of the Marshall Islands, or the Republic of Palau who is eligible for nonimmigrant admission and is employment-authorized under the Compacts of Free Association between the United States and those nations.

(2) Eligible aliens. Subject to the numerical limitation, an alien may be classified as a CW–1 nonimmigrant if, during the transition period, the alien:

(i) Will enter or remain in the CNMI for the purpose of employment in the transition period in an occupational category as designated by the Secretary as requiring alien workers to supplement the resident workforce;

(ii) Is petitioned for by an employer;

(iii) Is not present in the United States, other than the CNMI;

(iv) If present in the CNMI, is lawfully present in the CNMI;

(v) Is not inadmissible to the United States as a nonimmigrant, except for an alien present in the CNMI who is described in section 212(a)(7)(B)(i)(II) of the Act (not in possession of nonimmigrant visa); and

(vi) Is ineligible for status in a nonimmigrant worker classification under section 101(a)(15) of the Act, including but not limited to, section 101(a)(15)(H) of the Act.

(3) Derivative beneficiaries—CW–2 nonimmigrant classification. The spouse or minor child of a CW–1 nonimmigrant may accompany or follow the alien as a CW–2 nonimmigrant if the alien:

(i) Is not present in the United States, other than the CNMI;

(ii) If present in the CNMI, is lawfully present in the CNMI; and

(iii) Is not inadmissible to the United States as a nonimmigrant, except for an alien present in the CNMI who is described in section 212(a)(7)(B) of the Act (not in possession of nonimmigrant visa).

(4) Eligible employers. To be eligible to petition for a CW–1 nonimmigrant worker, an employer must:

(i) Be engaged in legitimate business;

(ii) Consider all available United States workers for the positions being filled by the CW–1 worker;

(iii) Offer terms and conditions of employment which are consistent with the nature of the occupation, activity, and industry in the CNMI; and

(iv) Comply with all Federal and Commonwealth requirements relating to employment, including but not limited to nondiscrimination, occupational safety, and minimum wage requirements.

(5) Petition requirements. An employer who seeks to classify an alien as a CW–1 worker must file a petition with USCIS and pay the requisite petition fee plus the CNMI education fee of $150 per beneficiary per year. If the beneficiary will perform services for more than one employer, each employer must file a separate petition with USCIS.

(6) Accompanying evidence. A petition must be accompanied by:

(i) Evidence demonstrating the petitioner meets the definition of eligible employer in this section.

(ii) An attestation by the petitioner certified as true and accurate by an appropriate official of the petitioner, of the following:

(A) Qualified United States workers are not available to fill the position;

(B) The employer is doing business as defined in 8 CFR 214.2(w)(1)(i);

(C) The employer is a legitimate business as defined in 8 CFR 214.2(w)(1)(v);

(D) The beneficiary meets the qualifications for the position;

(E) The beneficiary, if present in the CNMI, is lawfully present in the CNMI;

(F) The position is not temporary or seasonal employment, and the petitioner does not reasonably believe it to qualify for any other nonimmigrant worker classification; and

(G) The position falls within the list of occupational categories designated by the Secretary.

(iii) Evidence of licensure if an occupation requires a Commonwealth or local license for an individual to fully perform the duties of the occupation. Categories of valid licensure for CW–1 classification are:

(A) Licensure. An alien seeking CW–1 classification in that occupation must have that license prior to approval of the petition to be found qualified to enter the CNMI and immediately engage in employment in the occupation.

(B) Temporary licensure. If a temporary license is available and allowed for the occupation with a temporary license, USCIS may grant the petition at its discretion after considering the duties performed, the degree of supervision received, and any limitations placed on the alien by the employer and/or pursuant to the temporary license.

(C) Duties without licensure. If the CNMI allows an individual to fully practice the occupation that usually requires a license without a license under the supervision of licensed senior or supervisory personnel in that occupation, USCIS may grant CW–1 status at its discretion after considering the duties performed, the degree of supervision received, and any limitations placed on the alien if the facts demonstrate that the alien under supervision could fully perform the duties of the occupation.

(7) Change of employers. An unauthorized change of employment to a new employer will constitute a failure to maintain status within the meaning of section 237(a)(1)(C)(i) of the Act. A CW–1 nonimmigrant may change employers if:

(i) The prospective new employer files a petition requesting the CW–1, and

(ii) An extension of the alien’s stay is requested if necessary for the validity period of the petition.

(8) Amended or new petition. If there are any material changes in the terms and conditions of employment, the petitioner must file an amended or new petition to reflect the changes.

(9) Multiple beneficiaries. A petitioning employer may include more than one beneficiary in a CW–1 petition if the beneficiaries will be working in the same occupational category, for the same period of time, and in the same location.

(10) Named beneficiaries. The petition must include the name of the beneficiary and other required information, as indicated in the form instructions, at the time of filing. Unnamed beneficiaries will not be permitted.

(11) Early termination. The petitioning employer must pay the reasonable cost of return transportation of the alien to the alien’s last place of foreign residence if the alien is dismissed from employment for any reason by the employer before the end of the period of authorized admission.

(12) Approval. USCIS will consider all the evidence submitted and such other evidence required in the form instructions to adjudicate the petition. USCIS will notify the petitioner of the approval of the petition on Form I–797, Notice of Action, or in another form as USCIS may prescribe:

(i) The approval notice will include the classification and name of the beneficiary or beneficiaries and the petition’s period of validity. A petition for more than one beneficiary may be approved in whole or in part.

(ii) The petition may not be filed or approved earlier than six months before the date of actual need for the beneficiary’s services. USCIS may in its discretion permit petitions to be filed and take other actions under this paragraph prior to the transition program effective date, but in no case will USCIS grant CW–1 status or authorize the admission of any alien to the CNMI prior to such date.

(13) Petition validity. A beneficiary will be admitted to the CNMI for the validity period of the petition, plus up to 10 days before the validity period begins and 10 days after the validity period ends. The beneficiary may not work except during the validity period of the petition. No petition shall authorize admission as a CW–1 nonimmigrant before the transition period effective date.

(14) Where to apply. The beneficiary, eligible spouse and minor children may:

(i) Upon petition approval, apply for a visa at a U.S. consulate authorizing admission in CW–1 or CW–2 status, as appropriate, at a port of entry in the CNMI on or after the transition program effective date; or

(ii) If present in the CNMI, apply for classification as a CW–1 or CW–2 nonimmigrant by filing Form I–129CW (or such alternative form as USCIS may designate) with USCIS. An alien applying for CW–1 or CW–2 status is eligible for a waiver of the fee for Form I–129CW based upon inability to pay as provided by 8 CFR 103.7(c)(1).

(15) Biometrics. USCIS shall require a beneficiary initially applying for CW–1 or CW–2 status to submit biometric information if the beneficiary is present in the CNMI. A beneficiary present in the CNMI must pay or obtain a waiver of the biometric service fee described in 8 CFR 103.7(b)(1).

(16) Period of admission. (i) A CW–1 nonimmigrant will be admitted for an initial period of one year. A CW–2 spouse will be admitted for the same period as the principal alien. A CW–2 minor child will be admitted for the same period as the principal alien, but such admission shall not extend beyond the child’s 18th birthday.

(ii) The temporary departure from the CNMI of the CW–1 nonimmigrant will not affect the derivative status of the CW–2 spouse and minor children, provided the familial relationship continues to exist and the principal remains eligible for admission as a CW–1 nonimmigrant.

(17) Extension of visa petition validity and extension of stay. (i) The petitioner may request an extension of an employee’s CW–1 nonimmigrant status by filing a new petition and accompanying evidence as described in 8 CFR 214.2(w)(6)(ii).

(ii) A request for a petition extension may be filed only if the validity of the original petition has not expired.

(iii) Extensions of CW–1 status may be granted for periods of 1 year until the end of the transition period, subject to the numerical limitation.

(iv) To qualify for an extension of stay, the petitioner must demonstrate that the beneficiary or beneficiaries:

(A) Continuously maintained the terms and conditions of CW–1 status; and

(B) Remains admissible to the United States; and

(C) Remains eligible for CW–1 classification.

(v) The derivative CW–2 nonimmigrant may file an application for extension of nonimmigrant stay on Form I–539 (or such alternative form as USCIS may designate) in accordance with the form instructions. The CW–2 status extension may not be approved until approval of the CW–1 extension petition.

(18) Change or adjustment of status. A CW–1 or CW–2 nonimmigrant can apply to change nonimmigrant status under section 248 of the Act or apply for adjustment of status under section 245 of the Act, if otherwise eligible. During the transition period, CW–1 or CW–2 nonimmigrants may be petitioned for or may apply for any nonimmigrant or immigrant visa classification for which they may qualify.

(19) Effect of filing an application for or approval of a permanent labor certification, preference petition, or filing of an application for adjustment of status on CW–1 or CW–2 classification. An alien may legitimately come to the CNMI for a temporary period as a CW–1 or CW–2 nonimmigrant and, at the same time, lawfully seek to become a lawful permanent resident of the United States provided he or she intends to depart the CNMI voluntarily at the end of the period of authorized stay. The filing of an application for or approval of a permanent labor certification or an immigrant visa preference petition, the filing of an application for adjustment of status, or the lack of residence abroad will not be the basis for denying:

(i) A CW–1 petition filed on behalf of the alien;

(ii) A request to extend a CW–1 status pursuant to a petition previously filed on behalf of the alien; or

(iii) An application for admission as a CW–1 or CW–2 nonimmigrant.

(20) Rejection. USCIS may reject an employer’s petition for new or extended CW–1 status if the numerical limitation has been met. In that case, the petition and accompanying fee will be rejected and returned with the notice that numbers are unavailable for the particular nonimmigrant classification. The beneficiary’s application for admission based upon an approved petition will not be rejected based upon the numerical limitation.

(21) Denial. The ultimate decision to grant or deny CW–1 or CW–2 status is a discretionary determination, and the petition or the application may be denied for failure of the petitioner or the applicant to demonstrate eligibility or for other good cause. The denial of a CW–1 petition may be appealed to the USCIS Administrative Appeals Office. The denial of a Form I–539 application may not be appealed.

(22) Terms and conditions of CW Nonimmigrant status. (i) Geographical limitations. CW–1 and CW–2 statuses are only applicable in the CNMI. Entry, employment and residence in the rest of the United States (including Guam) require the appropriate visa or visa waiver eligibility. An alien with CW–1 or CW–2 status who enters or attempts to enter, travels or attempts to travel to any other part of the United States without the appropriate visa or visa waiver eligibility, or who violates conditions of nonimmigrant stay applicable to any such authorized status in any other part of the United States, will be deemed to have violated CW–1 or CW–2 status.

(ii) Re-entry. An alien with CW–1 or CW–2 status who departs the CNMI will require a CW–1 or CW–2 or other appropriate visa to be re-admitted to the CNMI.

(iii) Employment authorization. An alien with CW–1 nonimmigrant status is only authorized employment in the CNMI for the petitioning employer. An alien with CW–2 status is not authorized to be employed.

(23) Expiration of transition period. CW–1 status expires at the end of the transition period. CW–2 nonimmigrant status expires when the related CW–1 status expires or on a CW–2 minor child’s 18th birthday, if sooner, or if the alien violates his or her status. No alien will be eligible for admission to the CNMI in CW–1 or CW–2 status, and no CW–1 or CW–2 visa will be valid for travel to the CNMI, after the transition period.

(Title VI of the Health Professions Educational Assistance Act of 1976 (Pub. L. 94–484; 90 Stat. 2303); secs. 103 and 214, Immigration and Nationality Act (8 U.S.C. 1103 and 1184))