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Wednesday, April 23, 2014

PAST THE EXPIRATION OF ORIGINAL CW PERMIT:
‘Foreign worker can’t work until CW permit is renewed’
SHRM: Early CW application should be heeded

Transitional Commonwealth-only workers would have to stop working—but can remain in the CNMI—while their CW permit renewal application remains pending past the expiration date of their original permit, drawing reactions from both employers and employees yesterday. This is among the reasons why U.S. Citizenship and Immigration Services recommends that employers file renewal applications at least 90 days prior to the original permit’s expiration.

USCIS Honolulu district director David Gulick said that, without a valid permit past the original CW permit expiration date, the alien worker “no longer has employment authorization.”

Gulick was among the resource speakers in yesterday’s Employment Law Compliance Conference of the Society for Human Resource Management-NMI Chapter.

The renewal of CW permits was a key topic, drawing questions and requests for clarification from SHRM members and guests gathered at the Fiesta Resort & Spa in Garapan yesterday.

USCIS Application Service Center will do its best to process CW permit renewals faster than the initial processing of CW permits.

“Hopefully, we can process the extension request because we hope that they will be well documented after the first filing and the reasons why we didn’t approve the first one immediately will be overcome…will be taken care of,” Gulick later said in an interview.

If the employer files the renewal applications at least 90 days prior to the expiration of the original permit but USCIS has not been able to make a decision on the renewal application past the expiration date, then the employee still needs to stop working to comply with the rules and law.

Gulick said it could be an opportunity for the employer to allow the worker to go on vacation while the renewal application is pending.

Otherwise, these foreign workers can remain in the CNMI without penalty while waiting for a USCIS decision on their CW permit renewal application.

“All I can say is that there is no authority in the regulations for that person…to continue working,” he said.

He said the penalty is similar to those employing unauthorized aliens.

Gulick said there are good reasons for implementing the regulations strictly.

“One, because of the cap,” he said, referring to the 15,000 cap on CW-1 permits for fiscal year 2013, down from 22,416 in 2012. “Plus you have the question of qualified U.S. workers.”

Debra Camacho, president of SHRM-NMI Chapter, said in a separate interview that employers need to heed Gulick’s recommendation about early filing of CW permit renewal application.

“I don’t believe that during our previous discussion about CW, that that was a condition that you need to apply [at least] 90 days [prior to expiration] and if in that 90 days they don’t get it they can’t work, they got to go on vacation. So I think this is something new, something now very important that I believe employers are now going to rush and do their [job vacancy] announcement,” Camacho told Saipan Tribune.

Camacho said this is a cause for concern because in the initial processing of CW permit applications, employers had to wait for several months before receiving a grant of approval on the application.

“So how long can we afford to have our employees on vacation?” she said. “They’re not forced to leave the CNMI but our business that relies on them to do the job will now be hampered. Now, can a business afford a three-month delay in [renewal] processing… Maybe Mr. Gulick would say it’s an easier transition. I guess we just have to wait and see on that one, right?”

Camacho said she’s glad that this was clarified during the SHRM annual conference.

“I recommend that employers now look into their staffing and start doing their announcement because again, according to Mr. Gulick, you cannot use your old announcement. Now you have to do it again, before you turn in a renewal,” she added.

In applying for the CW-1 renewal, employers need to submit a filled out Form I-129CW, petition for CNMI-only nonimmigrant transitional worker, which has a fee of $325, and CNMI education funding fee of $150. These two separate checks should be payable to the “Department of Homeland Security.” Employers should “not” include biometrics fee when applying for renewal.

Each petition should include: an attestation for each worker; evidence to support employer’s attestation that he has tried to hire a U.S. worker for the position; copies of recent pay statements or W-2s to show that the worker has been employed and is being compensated at the salary represented in the filing; and documentation to show that the employer is still doing business such as tax returns.

The employer’s attestation should be a “new” advertisement for the job, not the original one. Employers are reminded time and again to hire available and qualified U.S. workers.

More information is available at www.uscis.gov/cnmi or www.uscis.gov/cw.

The law requires CNMI employers to hire U.S. workers and only after not finding one after making good faith effort can these employers petition to hire foreign workers under the transitional CW program.

Employers found to be turning away qualified U.S. workers could be subjected to a higher standard of proof when they file their next CW petition.

“We would also look into whether or not we can revoke their current petition, if there is one. Or if it comes in before we make any adjudication, we might do the same thing. We might have them prove to us that there were no qualified U.S. workers,” Gulick said.

Just like in his Saipan Chamber of Commerce presentation on Wednesday, Gulick explained to SHRM members and guests how the U.S. Department of Homeland Security arrived at a 15,000 cap on CW-1 workers for fiscal year 2013.

In fiscal 2012, the cap was 22,416 but DHS received only 12,247 filings to date, or 11,927, taking into account 320 denials. DHS rounded this to the nearest thousand, which is 12,000.

DHS Secretary Janet Napolitano said the department added an additional 25 percent to the 12,000 “to accommodate possible economic growth that might lead to a need for additional CW workers, for a total of 15,000.”

Tourism arrivals to the CNMI have improved and the growth is expected to continue next year.

The transitional CW program will expire on Dec. 31, 2014, unless extended by the U.S. Labor Secretary.

The law that placed CNMI immigration under federal control requires an annual reduction in the number of CW-1 workers until it reaches “zero” by the end of the transition period.

CNMI government officials and employers have been asking for an extension of the transition period, so that the CNMI will still have access to foreign workers to supplement the available U.S. workforce in the mainly tourism-based economy.

Other resource speakers at the SHRM conference yesterday included Frank Gibson, who gave an update on the Workforce Readiness Initiative; U.S. Department of Labor’s Patrick Candoleta, who presented on the Fair Labor Standards Act; CNMI Department of Labor’s Alfred Pangelinan, who presented on local labor hiring requirements; and attorney Bruce Mailman, with a presentation on available and underutilized U.S. visa possibilities in a federalized immigration and labor scenario. Incoming SHRM-NMI Chapter president Malou Ernest gave the summary and closing remarks.

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