Local
Monday, December 14, 2009

No changes in transitional worker rule reopened for comments

By Haidee V. Eugenio
Reporter

The U.S. Department of Homeland Security has not made any changes to its interim final rule on the CNMI Transitional Worker Classification but merely reopened it for public comment on Dec. 10.

The interim final rule seeks to create a new CNMI-only transitional worker, or “CW,” classification intended to be effective during the transition period from Nov. 28, 2009 to Dec. 31, 2014. It was initially published on Oct. 27 and intended to become effective on Nov. 27.

But a federal judge issued a preliminary injunction two days prior to federalization, preventing DHS from implementing the regulations on Nov. 28, to give the public enough time to comment as required by the Administrative Procedures Act.

Two weeks later, DHS reopened and extended for another 30 days the public comment period for the interim final rule as published in the Dec. 10 Federal Register.

The comment period will remain open until Jan. 8, 2010, and not Jan. 7, 2010, as earlier announced.

Marie Thérèse Sebrechts, DHS-U.S. Citizenship and Immigration Services regional media manager, said Friday that USCIS “will consider all comments received during the public comment period of Oct. 27, 2009 to Jan. 8, 2010 in the development of its final transitional worker rule.

“Pursuant to a recent order of the U.S. District Court for the District of Columbia, DHS will not implement the transitional worker visa classification provisions until DHS considers comments received on the interim rule, makes any necessary revisions resulting from those comments, and issues a final rule,” Sebrechts said.

The interim final rule will continue to be available for public comment at www.regulations.gov. To find this rule on regulations.gov, search under the docket number USCIS-2008-0038.

Teresa Kim, interim press secretary, said re-opening the comment period on regulations that are the subject of a court order is a customary practice for an agency that now must decide how to respond to the court order.

“Prior comments were provided without the benefit of either the court’s opinion with respect to the Commonwealth’s challenge to the statute or the court’s second opinion with respect to the Commonwealth’s challenge to the failure by DHS to abide by the requirements of the federal Administrative Procedure Act,” she told Saipan Tribune when asked for comment.

Some 100 entities submitted comments to the interim final rule in its initial public comment period.

“The additional comment period will give others a chance to provide DHS with information for use in the rule-making process. The administration urges all affected persons and businesses to take advantage of this opportunity to assist DHS in promulgating a practical and workable rule that will not further damage the Commonwealth’s economy,” Kim added.

Saipan Chamber of Commerce president Jim Arenovski, lawyer Steve Woodruff and United Workers Movement-NMI board chair Ronnie Doca earlier said they welcome the additional public comment period.

Since the reopening of the public comment period, one comment has so far been posted online from an individual whose name was withheld.

“To all legislators, it's simple and straightforward. If you were in our shoes, having a family here on the island of Saipan, will you want your kids to be left out whenever us as parents cannot step back to U.S. soil because we were denied by the embassy after having a vacation? Who will take care of our kids? Who will raise them? Isn’t it in the school system they are teaching that U.S. is the land of the free? But now, who is saying that is the enemy,” the commenter said.

DHS is establishing a Transitional Worker Visa category, a new nonimmigrant visa classification under the Immigration and Nationality Act using the admission code CW-1 for the principal transitional worker and CW-2 for dependents. “CW” stands for “Commonwealth transitional worker.”

A “transitional worker” is defined as an alien worker who is currently ineligible for another classification under the INA and who performs services or labor for an employer in the CNMI.

Under the CNMI-Only Transitional Worker program, employers may file a petition for a transitional worker with USCIS using Form I-129CW, Petition for a Nonimmigrant Worker in the CNMI.

The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker program.

The fee for Form I-129CW would be $320, the same amount charged for the I-129, and an $80 biometrics fee.

In addition, the Consolidated Natural Resources Act mandates a “CNMI education funding fee” of $150 per beneficiary per year, which cannot be waived.

Under the interim final rule, the CNMI-Only Transitional Worker program includes all occupational categories being used in the CNMI now.

Also, for the first year, the numerical limits for CW-1 status are based on the CNMI government’s own estimate of the nonresident worker population, which is 22,417. After the first year, the numerical limit will decrease, as determined by the DHS secretary.