The U.S. Department of Homeland Security has opened the CNMI's door wider to foreign workers, raising the annual hiring cap to fill the labor gap during the transition period that officially ends Dec. 31, 2029. From 2,499, the new cap for fiscal 2020 is 12,500, while the 2019 cap has been retroactively lifted from 4,999 to 13,000.
The new annual ceilings, which take effect June 18, are listed in the interim final rule posted Thursday by DHS on the Federal Register.
The annual cap goes down at increasing rates in the succeeding years until the program expires. For fiscal 2021, the cap would lower to 12,000.
For teh remaining years, the numerical limitations are as follow:
(5) 11,500 for fiscal year 2022;
(6) 11,000 for fiscal year 2023;
(7) 10,000 for fiscal year 2024;
(8) 9,000 for fiscal year 2025;
(9) 8,000 for fiscal year 2026;
(10) 7,000 for fiscal year 2027;
(11) 6,000 for fiscal year 2028;
(12) 5,000 for fiscal year 2029; and
(13) 1,000 for the first quarter of fiscal year 2030.
(B) A long-term worker granted CW-1 nonimmigrant
The CNMI-Only Transitional Worker program, also known as CW-1, allows CNMI employers to petition for nonimmigrant workers who are otherwise ineligible to work in the commonwealth under other nonimmigrant worker categories.
The program is designed to provide for an orderly transition for workers from the CNMI permit system to the U.S. federal immigration system under the Immigration and Nationality Act and to mitigate potential harm to the CNMI economy as employers adjust their hiring practices and as foreign workers obtain U.S. immigrant or nonimmigrant status.
At the outset of the transitional worker program, DHS set the CW-1 cap at 22,417 for FY 2011 and 22,416 in 2012. The cap was lowered drastically in the following years: 15,000 (FY2013); and 14,000 (FY2014); 13,999 (FY2015); 12,999 (FY2016); 12,998 (2017); and 9,998 (2018).
On July 24, 2018, President Donald J. Trump signed the Northern Mariana Islands U.S. Workforce Act of 2018, aimed at boosting the percentage of U.S. workers in the total workforce of the CNMI, while maintaining the minimum number of non-U.S. workers to meet the demands of the CNMI's economy.
DHS said "this approach would further encourage the recruitment of United States workers and the transition into the U.S. immigration system, consistent with the goals of the CNRA and the general policy direction provided by Executive Order 13,788, Buy American and Hire to protect the interests of United States workers in the administration of our immigration system.”
Last year, DHS issued an interim final rule delaying the implementation of the Workforce Act.
Under the newly published rule, DHS has updated the extension of the transition period, and thus the CW-1 program, through Dec. 31, 2029. "While the transition period has been previously extended, the related regulation was not revised to reflect any of the CW-1 program extensions," the rule states. "This change will reflect the new sunset date within existing regulations."
DHS, at the same time, extends the E-2C program until Dec. 31, 2029. The E-2C visa classification allows foreign, long-term investors to stay in the CNMI through the transition period and is extendable in two year increments.
The E-2 CNMI Investor program was intended to provide a smooth transition for existing CNMI investors and to mitigate potential adverse consequences to the CNMI economy if the current investments could not otherwise be maintained as a basis for immigration status during the transition period.
In separate rules also published on May 14, the U.S. Citizenship and Immigration Services published new guidance for CNMI employers to "ensure that U.S. Workers will not be displaced or be a competitive disadvantage for employment."
The new rules, whic take effect on June 18, require CW-1 employers to enroll and remain in good standing with the E-Verify program.
Other key provisions include:
•Requiring a CW-1 petition to be filed with an approved temporary labor certification from the U.S. Department of Labor;
• Establishing minimum wages requirements for a CW employer;
• Establishing procedures for revoking an employer’s CW-1 petition; and
• Incorporating the definition of a legitimate business, as set forth in the Workforce Act.
“This guidance is important for our businesses and employers, while also ensuring we protect our U.S. workers here in the Marianas. We continue to work with our federal partners for an efficient implementation of this public law to protect businesses and their employees moving forward,” CNMI Gov. Ralph DLG. Torres said.
“While the CNMI Department of Labor works with our federal counterparts as it relates to the CNMI workforce, the Department has no jurisdiction to create federal rules, enforce federal requirements, or adjudicate violations of federal law. However, as always, our department is available to assist, where possible," Secretary of Labor Vicky Benavente said.
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