Local
Thursday, December 10, 2009

USCIS seeks new comments on transitional worker rules

By Haidee V. Eugenio
Reporter

The U.S. Citizenship and Immigration Services has reopened the comment period for the interim final rule on the CNMI Transitional Worker Classification, giving a bit of reprieve to a community still grappling with changes brought by the federal takeover of CNMI immigration since Nov. 28.

The additional 30-day comment period will close on Jan. 7, 2010.

USCIS is one of the component agencies of the U.S. Department of Homeland Security, the lead agency implementing Public Law 110-229 or the federalization law.

The rule will be re-published in the Dec. 10 Federal Register.

“To provide the public and the CNMI with optimum opportunity to comment on the proposed transitional worker classification provisions, USCIS is reopening the comment period for an additional 30 days. USCIS will consider comments received during the entire public comment period in its development of the final rule,” USCIS said yesterday.

Some 100 comments, mostly from foreign workers in the CNMI, were received during the initial 30-day comment period.

Easy conversion mechanism

Steve Woodruff, who has been representing hundreds of nonresident workers in the CNMI, said yesterday that reopening the comment period is “the best way to satisfy the Administrative Procedures Act requirements, to give people enough time to comment on the regulations, before coming up with the final rule.”

Woodruff, a former Senate legal counsel, said his comment will focus more on technical aspects of the rule.

“DHS had said it prefers very specific comments,” he said.

But Woodruff said DHS should have a mechanism that allows for “easy conversion” of existing CNMI nonresident workers to CW-1 status.

“They should be able to obtain that new status just by presenting their CNMI permit,” he said, adding that DHS has taken other right steps, including providing parole and advance parole options.

Transitional worker

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 Immigration and Nationality Act and who performs services or labor for an employer in the CNMI.

The CNMI-Only Transitional Worker Program will be available to two groups of nonresidents: those who are lawfully present in the CNMI and those who are abroad.

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.

Helpful

Jim Arenovski, president of the Saipan Chamber of Commerce, said although it does not look like DHS is changing anything in the rules at this point, providing additional time to get more input is “helpful.”

“However, we will need to check and verify that nothing has been changed. If nothing is changed, I would not see any reason for the Chamber to make additional comments,” he said.

Arenovski, who is also president of Delta Management Corp.-Saipan, was among those who submitted comments on the interim final rule.

In his seven-page comment as Chamber president, Arenovski offered an alternative solution to structure the mandated reduction in CNMI-only transitional workers: the creation of a “federally-administered CNMI-only H-2 visa program exempt from the numerical limitations applied in the United States.”

He said this solution would be “effective and efficient.” He said such a program would be otherwise largely identical to the existing federal H-2 visa program, but would “not” allow exit from the CNMI to Guam or other areas of the United States.

When asked for comment yesterday, Arenovski said he welcomes the reopening of the public comment period.

“It is welcomed because the more input DHS has about how these rules negatively (or the remote positive comment) affect individuals and businesses, the more they should push the regulations toward the intent of the law, which is not to harm the economy of the NMI. We hope more comments will help DHS see the need for a flexible program that meets their security needs and allows us the workforce (including long term access to foreign labor) to grow our economy,” he said.

Improved status

Ronnie Doca, board chair of the United Workers Movement-NMI, said the additional comment period will also give DHS more time to consider their request of giving improved status, like “green cards,” to long-time nonresident workers in the CNMI.

Doca, who is also the board chair of the Pilipino Contract Workers Association, said they will continue encouraging workers to submit comments to DHS.

“We may go from house to house for written comments,” he said.

Workers' groups, along with Florida-based human rights advocate Wendy Doromal, have been circulating a signature drive petitioning President Obama, the U.S. Congress and other federal agencies to grant “green cards” to long-term foreign workers in the CNMI.

Many of the comments submitted to DHS' interim final rule were from foreign workers and their U.S. citizen children.

Preliminary injunction

The interim final rule was initially published on Oct. 27 and intended to become effective on Nov. 27.

However, on Nov. 25, U.S. District Court for the District of Columbia Judge Paul L. Friedman issued a preliminary injunction to prevent DHS from implementing the rule until it considers public comments and issues a final rule.

Friedman is the judge handling the CNMI government's lawsuit against federalization.

As a result of the judge's ruling, DHS has not implemented the transitional worker rule and USCIS has not accepted any petitions for a CNMI transitional worker, or CW-1, Nonimmigrant, Form I-129CW, until further notice.

The injunction did not affect any aspect of the CNRA's application of federal immigration laws other than the transitional worker nonimmigrant category. U.S. Customs and Border Protection took over immigration processing at airports on Nov. 28.

In his ruling, Friedman said DHS had no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedures Act.

To help alien workers leave and re-enter the CNMI or for employers to hire needed off-island workers, Friedman suggested that DHS promulgate a narrowly focused and temporary emergency regulation that addresses these issues.

DHS's USCIS decided instead to reopen and extend by 30 days the comment period.

Quick link

Janna M. Evans, USCIS regional lead for community outreach, reminded the public yesterday about the DHS website's quick link for the CNMI page, www.uscis.gov/cnmi.

Evans called on stakeholders to circulate the quick link to their coworkers, clients, friends, family and constituencies.

“It is the central repository for everything USCIS is doing to implement the CNRA in CNMI and we will continue to post useful information on this site. I am currently working to have our PowerPoint training materials posted there,” she said.