On June 18, 2020, the new Interim Final Rule (IFR) of the Northern Mariana Islands U.S. Workforce Act of 2018 (the “Workforce Act”) became effective. All new applications shall be filed on new forms under new requirements. This article is an introduction of some of the new requirements implemented in the IFR.
1. E-Verify program
After implementation of the new IFR, all CW-1 employers must enroll to the E-Verify program with respect to all their hiring sites in the United States and be a participant in good standing.
E-Verify is a government system which allows employers to confirm the eligibility of their prospective employees to work in the United States. Employers can register on this website:
https://www.e-verify.gov/
When employers submit their applications online, the account will not be active automatically. There will be a follow up email which will request additional information from the employers. After verification, another email will provide the account information.
There will be a mandatory tutorial and a test in the system. After passing the test, the employer can start to use the E-Verify system to verify all new employees’ work eligibility in the United States. The system only requires employers to verify the work eligibility of the new employees hired after electronically signing a memorandum of understanding during the application process. The process involves creating a “case” for each new employee. If the employer is a federal contractor with a federal contract containing the FAR E-Verify clause, the employer should not create cases to verify the work eligibility of old employees. For new employees, the employer must create cases for them by the third business day after the employee’s first day of employment.
2. Semiannual Report
Employers now need to file a semiannual report to the Department of Homeland Security (“DHS”) to verify that they are still employing the approved employees under the conditions of
the application. Employers need to file the new Form I-129CWR, Semiannual Report for CW-1 Employers to the DHS to meet this new requirement.
The form needs to be filed by all employers who have approved CW-1 employees whose starting date is in fiscal year 2020 (after October 1, 2019) and whose employment period is six months or more. Under ordinary circumstances, the semiannual report must be filed within a 60-day window surrounding each six-month anniversary of the petition validity start date, with the filing window opening 30 days before and closing 30 days after the six-month anniversary of the petition validity start date. That means, theoretically, if the approved starting date of employment is October 1, 2019, the first report should be submitted between March 2, 2020 and May 1, 2020. However, because the effective date of the IFR is June 18, 2020, USCIS offered a one-time extension of 60 days to employers. For employers who have petitions with a starting date of from October 1, 2019 to December 18, 2019, the employers can file the report up until August 17, 2020.
3. Notification and Revocation for Approved CW-1 Petition
The new IFR establishes notification and revocation procedures for approved CW-1 petitions.
DHS will now require a petitioner to immediately notify USCIS of any changes in the terms and conditions of employment which may affect eligibility of the CW-1 status by either filing an amended petition to change the specific terms of the employment or sending a letter to the USCIS to explaining the basis of the termination of the employment.
In addition to the notification requirements, the IFR also established the grounds of revocation by USCIS as follows:
(1) Immediate and Automatic Revocation:
(i) Petitioner ceases operations;
(ii) Petitioner files a written withdrawal of the petition;
(iii) The U.S. Department of Labor revokes the temporary labor certification upon which the petition is based.
There is no appeal of an automatic revocation.
(2) Revocation on Notice by USCIS:
(i) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition;
(ii) The facts contained in the petition or TLC application was not true and correct, inaccurate, fraudulent, or misrepresented a material fact;
(iii) The petitioner violated terms and conditions of the approved petition;
(iv) The petitioner violated a requirement of 8 CFR 214.2(w);
(v) The approval of the petition violated 8 CFR 214.2(w) or involved gross error;
(vi) The petitioner failed to maintain the continuous employment of the CW-1 nonimmigrant, failed to pay the nonimmigrant, failed to timely file a semiannual report, committed any other violation of the terms and conditions of employment, or otherwise ceased to operate as a legitimate business;
(vii) The beneficiary did not apply for admission to the CNMI within 10 days after the beginning of the petition validity period if the petition has been approved for consular processing;
(viii) The employer failed to provide a former, current, or prospective CW-1 nonimmigrant, not later than 21 business days after a written request from such individual, with the original (or a certified copy of the original) of all petitions, notices, and other written communication related to the worker (other than sensitive financial or proprietary information of the employer which may be redacted) that has been exchanged between the employer and the DOL, the DHS, or any other Federal agency or department.
When USCIS revokes the approved CW-1 Petition by notice, it will send a Notice of Intent to Revoke (NOIR) with its grounds for revocation. The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice.
4. Implementation of the new Long-Term Worker Subcategory of CW-1
The new IFR incorporates the statutory definition of “long-term workers” at 8 CFR 214.2(w)(1)(viii). “Long-term workers” means “an alien who was admitted to the CNMI, or otherwise granted status, as a CW-1 nonimmigrant during fiscal year 2015, and during each of fiscal years 2016 through 2018.” 8 CFR 214.2(w)(1)(viii).
Under the rule, long-term workers have exemption from the construction prohibition. Employers now can hire long-term workers as “construction and extraction occupations” under CW-1 visa. Also, long-term workers are not subject to the temporary departure requirement we are going to discuss below. In addition, long-term workers can be grant CW-1 visa with a validity period up to three years.
USCIS will begin accepting CW-1 petitions requesting long-term workers as of June 18, 2020.
5. Temporary Departure Requirement
One of the most significant requirements implemented in the new IFR is the temporary departure requirement.
The Workforce Act suggested that ‘at the expiration of the second renewal period, an alien may not again be eligible for such a permit until after the alien has remained outside of the United
States for a continuous period of at least 30 days prior to the submission of a renewal petition on their behalf.’ 48 U.S.C. 1806(d)(7)(A)(ii).
The good news is that this requirement does not affect the long-term workers described above.
The bad news is this requirement actually will “look-back” to the time before the effective date of the rules. DHS believes that because they count former renewal periods to establish the “longterm worker subcategory”, it only makes sense for them to take pre-enactment renewal into consideration. This means, now that the IFR is effective, CW-1 workers who are not “long-term workers” under the definition of “long-term worker” discussed above, and who have worked in the CNMI for the last 3 consecutive years as a CW-1 worker, must exit the CNMI before a new petition can be filed for them.
The requirement to leave the CNMI does not apply to long-term workers.
6. Transit Through Guam
This is one piece of the good news from the new IFR. In the past, most oCW-1 visa holders were not allowed to go to Guam. Now, transit through Guam that should not be permissible.
Under the IRF, it suggested that CW-1 and CW-2 status holders now can transit through Guam. Under the old rules, only CW-1 and CW-2 visa holders who are national of the Philippines can
use the direct transit rule to travel from the CNMI to the Philippines and come back without violating their CW status. Now all of the CW visa holders can use this rule. Direct Guam transit
means travel from (or to) the CNMI to (or from) a foreign place by an alien in on a direct itinerary involving a flight stopover or connection in Guam (and no other place).
Conclusion
The new IFR was made and interpreted under the spirit of Executive Order (E.O.) 13788, “Buy American Hire American.” However, according to United States Government Accountability Office’s projection in its report, the demand for CW-1 workers in the CNMI will continue to grow. The CW-1 visas program has been extended to FY 2030 by the Workforce Act. Although there are more rules now to regulate the CW-1 program, CW-1 workers are needed and will still make up the majority labor force in the CNMI. All employers who use CW-1 workers will need to pay close attention to the new requirements of the CW-1 program.
