As hard as it already is for employers in the CNMI to find and hire the employees that they need, the United States Federal Government has just made it much more difficult. This article will briefly explain the new rules that apply to processing CW visa applications for foreign workers.1
The Interim Final Rule
The Department of Labor (the “Department”) published the Interim Final Rule (the “IFR”) on April 4, 2019. The IFR created a new application system and new requirements for the CW-1 visa program. Although the IFR is described as an “interim rule”, suggesting it is only temporary until a final rule is issued, the Department has advised that the final rule will be identical to the IFR. The Department is enforcing the IFR now.
Employers must establish that: (1) No US Citizen worker is able, willing, qualified, and available to fill the job opportunity in the CNMI, and (2) That the foreign worker’s employment in the job opportunity will not adversely affect the wages or working conditions of similarly employed US Citizen workers.
Employers need to pay visa and related fees for CW-1 workers. If the worker completes 50% of the job order period, the employer must pay inbound transportation and subsistence costs for the worker. If the worker completes 100% the job order period, the employer must pay 100% of the outbound transportation and subsistence expenses to the worker.
New Application System
The Department has created the Foreign Labor Application Gateway System (FLAG System), a new electronic filing system to process applications for CW-1 visas. Generally, employers, their attorneys and agents, must electronically file their applications through the system. However, if an employer is unable to file electronically due to lack of internet access or physical disability, they can file by mail. In their application the employer must include a statement which supports their need to file by mail. A mailed application will be returned without review if it does not include such a statement in the application.
To complete a CW-1 application, employers are required to use new Forms:
Form ETA 9141C Application for Prevailing Wage Determination
Form DTA 9142C Application for Temporary Employment Certification
Prevailing Wage Determination
Unless there is an exception made for an emergency, the first step of the application process is to obtain a Prevailing Wage Determination (PWD). Employers can file the Application for Temporary Employment Certification (Form DTA-9142C and appendices) after obtaining the PWD.
As mentioned above, employers generally must electronically file a Form ETA 9141C through the FLAG System to obtain a PWD. There is no requirement in the statute, but the Department hopes employers will submit their PWD requests at least 90 calendar days before they need the determination. The National Prevailing Wage Center (NPWC) of the Department’s Office of Foreign Labor Certification (OFLC) will issue the PWDs.
The wage requirement for CW-1 Temporary Labor Certification (TLC) should be determined by an occupational wage survey conducted by the CNMI Governor on an annual basis. Based on this requirement, the wage survey conducted in September 2017 cannot be used for the CW-1 visa applications. Because we do not have a current wage survey, the prevailing wage for a CW-1 occupation should be the arithmetic mean of the wage of workers similarly employed in Guam based on the Occupational Employment Statistics (OES) Survey conducted by the Department’s Bureau of Labor Statistics. In addition, the prevailing wage can never be lower than the highest of the CNMI and the federal minimum wage.
Temporary Labor Certification
After receiving a PWD, employers must file Form ETA-9142C and its appendices to apply a TLC for the beneficiaries. All applications will be sent to the Chicago National Processing Center (NPC) of the Department.
If the employer is filing an application for new employees, the employer may not file the application more than 120 calendar days before the employer’s date of need. If an employer is filing an extension for an existing CW-1 visas, the employer may not file more than 180 calendar days before the expiration date. The period of employment under the application is generally limited to no more than 1 year. There is an exception for long-term CW-1 workers whose period of employment may be up to 3 years.
If the number of CW-1 applications meet the statutory cap, the OFLC will continue processing on going applications and return all additional TLC applications for the current fiscal year. OFLC will post a notice on its website that the cap has been reached and the notice will be effective for the rest of the fiscal year unless there is a new notice regarding this issue. Certain cap exempt applications are not subject to the notice.
Notice of Deficiency
The Chicago NPC will issue a Notice of Deficiency (NOD) if they decide the application contains an error or inaccuracy, or that the application does not meet a requirement. The NOD will explain the reasons for the NOD and offer 10 business days from the issuance of the NOD to the employer to submit a modified application. If employer fails to modify their application in time, the application will be denied. If the modification does not meet the requirements of the NOD, the office may issue another NOD. If the modification meets the requirements, the office will issue a Notice of Acceptance (NOA).
Notice of Acceptance
The Chicago NPC will issue a Notice of Acceptance (NOA) after they decide that the application does not have errors or inaccuracies and meets all requirements. The NOA will require the employer to recruit US workers and submit a recruitment report.
The recruitment needs to start within 14 calendar days of the NOA. The recruitment advertisement must include all required content. The advertisement must be posted on the CNMI Department of Labor website for 21 consecutive calendar days. Employers must maintain a record of the recruitment documents.
Although not explicitly on the IFR, USCIC is taking the position that to show there are no available US Citizen workers, employers will have to advertise vacancies in three (3) separate forums. First, as mentioned above, employers must advertise through the CNMI Department of Labor website. Second, positions must be advertised in two additional forums, one of which must be digital. The digital forum is a recruitment service like Ideed.com or Monster.com or LinkedIn.com.
During the recruitment period, employers have to contact former US Citizen workers who were employed in the same position and were laid off within 270 days before the date of need. The only exception is that the employer does not have to contact the US Citizen workers who were dismissed for cause or who abandoned the position.
In addition, a copy of the application must be posted in at least two conspicuous locations at the place of employment to notify all employees in the job classification and area. Employers also can use other ways to provide reasonable notification. Employers must maintain proof of posting.
If there are other recruitment requirements listed on the NOA, the employer must follow comply with the requirements. After the recruitment process, the employer must prepare the recruitment report in no fewer than 2 calendar days after the last date of the advertisement.
The certification will be granted only if the employer meets all the requirements. The Final Determination notice and a copy of the certified application will be sent electronically to the employer.
Employers must retain the required documents for three years from the final determination date, the date the certification expire, or the Department’s receipt of a request of withdrawal of an application, whichever is later. The certification is valid only for the period of employment approved on the certification. The certification is only valid for the specific position described in the application, including all approved modifications. It cannot be transferred from one employer to another, unless the acceptance is a successor in interest to the former employer.
Even if the certification is granted, it might be revoked if the OFLC finds that the issuance of the TLC was due to fraud or misrepresentation; the employer substantially failed to comply with any of the requirement; or the employer impeded the audit process or any other investigations by the Federal Government. If this is the case, a Notice of Revocation (NOR) will be sent to the employer. The employer can submit rebuttal evidence or request a review by the Board of Alien Labor Certification Appeals (BALCA) within 10 business days from the notice day.
The Final Determination Notice of Denial will be sent to the employer. The Notice will explain reason for denial, cite relevant standards, and offer the opportunity to request administrative review. The review will be conducted by the BALCA. If the employer fails to request a review, the decision will become final.
A partial certification is a certification which reduces the period of validation, the number of employees, or both. There is also an opportunity to request the review process. Failure to request a review will make the partial certification final.
To request an administrative review the request must be received by the BALCA and the Certifying Officer (CO) who review the application within 10 business days of the determination. The request needs to identify the determination, include a copy of the determination, explain the grounds for the request and contain evidence which is in the application and modification that has been reviewed by the CO. If the employer would like to submit a brief the employer must submit it with the request. The CO will provide an Appeal File to BALCA, the employer, and the Associate Solicitor for Employment and Training at the Department. The CO may submit a brief to support the CO’s decision within 7 business days of receipt of the Appeal File.
The Chief Administrative Law Judge (Chief ALJ) will assign a single member or a three-member panel of the BALCA to consider the case. The BALCA can affirm, reverse, or modify the CO’s determination, or remand it to the CO for further consideration. The CO’s decision will be upheld unless it is arbitrary, capricious, an abuse of discretion, or otherwise against the law. The BALCA will make the decision within 10 business days after receiving the CO’s brief or 10 business days after receipt of the Appeal File, whichever is later.
The CO may request documents from employers to perform an audit by sending a letter to the employer. The CO may request additional documents during the audit period. The CO also can provide audit documents to Department of Homeland Security (DHS) and other departments and refer any findings establishing that the employer failed to hire qualified US workers.
If the CO determined that there was a violation, but it was not bad enough to justify debarment, the CO will notify the employer that assisted recruitment (AR) will be required for 2 years from the date of the notice. The employer can request an administrative review. During the AR period, the CO will request additional documents and monitor the recruiting process.
If there is a violation of a material term or condition of the application, the OFLC may debar the employer, agent, attorney, or successor in interest to that employer from participating in all of the Department’s employer based foreign labor programs for up to 5 years. All labor certification applications and labor condition applications will be denied without review within the debarment period. The OFLC will determine whether there is a substantial violation based on multiple factors. However, a single violation may lead to a debarment.
The OFLC will issue a notice of debarment, the debarred party may submit rebuttal evidence or request an administrative review within 30 calendar days of the notice date. If rebuttal evidence is timely filed, the OFLC will issue a final determination within 30 calendar days upon receiving the rebuttal evidence. If the decision is upheld, the debarred party may request an appeal within 30 days after the final determination.
The debarred party must send the request for an appeal to the ALJ in writing and send a copy to the OFLC administrator. The request needs to identify the determination and explain the ground of review. The OFLC administrator will send a copy of the case file to the Chief ALJ. The Chief ALJ will assign an ALJ to conduct the review. Both parties have 30 calendar days to submit statements or legal briefs. All evidence they submit must be within the record at the time the debarment decision was made. The ALJ may affirm, reverse or modify the determination.
If any of the parties are not satisfied with the ALJ’s decision, they can petition to the Administrative Review Board (ARB) within 30 calendar days of the ALJ’s decision. The ARB can accept or deny the petition within 30 days of receipt of the petition. If the ARB does not accept the petition, the ALJ’s decision is final. If the ARB accepts the petition, the ALJ’s office will send a copy of the appeal file to the ARB. The ARB will notify the parties of what material they need to submit and when they need to submit the material. Its final decision will be made within 90 calendar days from the date of the notice granting the petition.
Hiring employees under the new IFR is now a lot like hiring employees under the H-1 visa program. Employers need to be prepared to do more work and invest more time into getting CW visas approved for the foreign worker they need.
The new system is not employer friendly, nor is it sensitive to the needs of all of the foreign workers that the CNMI must have to keep its economy running. The IFR will not lead to more employment of US citizens in the CNMI (we are too far away from the mainland to attract US Citizen employees and we are at full employment of available skilled US Citizen workers). Nor will the IFR improve the employment conditions of US Citizens already working here (in fact its impact may be of so much of a harm to the CNMI economy that business will close and US Citizens will lose their jobs along with the foreign workers).
The IFR is a rule imposed on the CNMI. There was no meaningful consultation with the CNMI first. Unfortunately that was at least in part because the United States is going through a dark time now, and xenophobia and racism informs US Immigration Policy. The CNMI, with no vote for the United States President, no United States Senator looking out for the interests of the CNMI in the US Senate, and only a non-voting delegate in Congress, is at the mercy of the bad intentions of those in power in Washington. All we can do here in the CNMI is to comply with the IFR as best we can and hope that someday soon rationality and compassion will return to Washington DC. When it comes to foreign workers and the disenfranchised American citizens living in the CNMI, immigration reform that will then lead to a reasonable foreign worker program for the CNMI, is what is needed.