A foreign worker being petitioned for a Commonwealth-only worker status was asked by U.S. Citizenship and Immigration Services to leave the CNMI and obtain a visa from the U.S. Embassy in Manila, Philippines, something that the worker and his employer find odd considering that those petitioned for CW do not need to get a visa if they don't intend to travel outside the CNMI for the duration of their permit.
The employer's representative told Saipan Tribune yesterday that they had two options: Allow the worker to leave the CNMI and get a visa at the U.S. Embassy in Manila, or file a motion based on the California Service Center's decision by submitting form I-290B with a fee of $630.
The employer, who requested that the company name be withheld from publication at this time, decided to just allow the worker, Orlando Mallari, to leave the CNMI and get a visa at the U.S. Embassy in Manila.
The airfare and the fee cost almost the same, at over $600, so by allowing the worker to go to the embassy in Manila, that worker would also get to see his family, the employer said.
Mallari, a maintenance staff, is apparently not the only one in this quagmire. At least two employees from a major hotel also have to go home to get a visa although they don't intend to travel.
Mallari's appointment at the U.S. Embassy in Manila is today, the employer said.
In a June 19 letter to the worker's employer, USCIS director Rosemary Langley Melville said the beneficiary-Mallari-is eligible for the CW-1 classification but the “grant of status requested on behalf of the beneficiary is denied” because “USCIS records indicate that the beneficiary is currently inadmissible to the United States...”
USCIS' Melville said the agency determined in the exercise of discretion not to grant a waiver of any applicable grounds of inadmissibility.
The employer responded to that USCIS letter, showing proofs that Mallari had an umbrella permit, was here in 2008, 2009, and 2010 and attached copies of the W-2 tax form, as well as proof of last arrival in the CNMI as shown in his passport page.
Despite this, the worker was still asked to leave the CNMI.
Mallari's two other fellow maintenance staff employees who were also applied for CW permits were not asked to leave the CNMI.
“The beneficiary will be required to leave the CNMI and obtain a visa from the Department of State. Please note that the approved I-129CW petition for the CW-1 nonimmigrant classification has been forwarded to the U.S. Consulate in Manila, Philippines,” USCIS' Melville said in the letter to the employer.
USCIS further said that the decision resulting in the denial of the requested grant of status leaves the beneficiary without lawful immigration status.
It said absent an approved application or petition that would bestow valid immigration status upon the beneficiary, he or she is now present in the United States in violation of the law.
USCIS said failing to maintain valid immigration status or remaining in the U.S. beyond the expiration of status will affect the beneficiary's ability to return to the U.S. in the future.
“If the beneficiary is currently not in a valid immigration status, this Notice of Decision leaves the beneficiary without lawful immigration status and the beneficiary is hereafter present in the United States in violation of the law and is required to depart the United States immediately,” USCIS told the employer.
USCIS also said there is no appeal to this decision. But a motion can be filed on Form I-290B, to be accompanied by the fee, which is $360.
The employer reiterated that the worker has been lawfully present in the CNMI.
The employer representative said yesterday they are sharing this story to help warn or educate other employers and employees, that they may also encounter this issue in their CW application.
CNMI immigration was placed under federal control in November 2009 pursuant to U.S. Public Law 110-229.