Regarding employee visas: What should I be doing now?

[B]Question: I have a small business with nine non-U.S. citizen workers. I have been waiting patiently for the Transitional Worker regulations to come out, but it’s getting very close to the Nov. 28 deadline for the start of the CW visa program. What can I do to prepare for this?[/B]

I can sympathize with you. I think we have all been waiting for these regulations and just want them released so we can figure out what we need to do. Let me say first that I am not an authority on immigration law and visa requirements. So, let’s look at it from a human resource and business perspective.

You’re right. Time is running out. All CNMI issued umbrella and other entry permits will expire on Nov. 27. On Nov. 28 all non-U.S. citizen employees need to be either on, or in the process of approval for, either a CW1 visa or another Immigration & Naturalization Act (INA) classification, such as an H1-B visa. I spoke recently with an attorney friend who is an immigration law expert and she said that she does not anticipate any grace period for submission of petitions after Nov. 27.

The Interim Rule establishing the CNMI Transitional Worker Classification [8 CFR 214.2(w)(4)] states:

“DHS is providing in this rule that … aliens may be classified as CW-1 non-immigrants if, during the transition period, the alien: … (4) if present in the CNMI, is lawfully present in the CNMI.”

It goes on to say:

“DHS has determined that requiring lawful status in the CNMI as a prerequisite for CW-1 eligibility is the most efficient means to begin the congressionally-mandated drawdown of transitional workers to zero by the end of the transition period.”

Those statements originally referred to lawful CNMI immigration status through CNMI permits on Nov. 28, 2009, and through the expiration of those permits beyond that date. However, the CNMI instituted the Umbrella Permit System which extended the lawful status period until Nov. 27, 2011 for those who obtained umbrella permits. However, that status ends this upcoming Nov. 27. If my reading of the Interim Rule is correct, on Nov. 28 those non-U.S. citizen workers who do not have a U.S. immigration status or a petition pending will no longer be in a lawful status and may no longer be eligible to file a petition. Of course, the regulations have not been released yet and, because of the delay, the regulations MIGHT provide an extension beyond Nov. 27, BUT—I don’t think I would bet my business on it.

So—what should you be doing now?

1. Read and understand the Interim Rule establishing the CNMI Transitional Worker Classification that was released on Oct. 27, 2009, and then recalled due to the court challenge. My more knowledgeable friend doesn’t think the soon-to-be-released regulations will vary significantly.

2. Assess your business needs and your staffing and determine which of your non-U.S. citizen employees you will petition for CW-1 status or an H1-B visa. Have the courtesy to inform those that you will not petition so that they can try to find another sponsor.

3. Determine which of the employees you plan on petitioning for a H1-B visa and who can be petitioned for the CW-1 visa. Again, the Interim Rule states:

“This rule makes aliens eligible for CW-1 status only if they are ineligible for nonimmigrant classification based upon employment activities described in section 101(a)(15) of the INA. Such nonimmigrant classifications may include, but are not limited to, a specialty occupation described in section 214(i) of the Act.”

In other words, if the job and the worker qualify for an H1-B, or other employment based status, the worker will not be approved for a CW-1 visa.

4. Gather the information that you will need to file petitions for the H1-B and CW-1 visas. The H1-B visa requirements are much more complex than the CW-1, take much longer to acquire the requirements for submission, and cost significantly more. Another friend who has processed H1-B visas says that it takes 4-6 weeks to obtain the education equivalency certification. Do not put the H1-B visas off to the last moment. Research the requirements and get started. Luckily, only a few specialized jobs require a H1-B visa.

The stated time to complete the I-129CW form for the CW-1 visa is three hours. I would imagine that is if you have all of the information ready. The I-129CW form has not been released yet, so you can’t start filling it out, but you can review the existing I-129 form, which should be similar, and get your information and documents ready. You can put all of your workers in one occupational category on one I-129CW form and only have to pay one $320 fee for the form, but the $150 education funding fee is required for each worker petitioned. These fees are paid by the employer. The employee may be required to pay the $80 biometric fee. The employee may also be required to pay for the processing of CW-2 status for spouses and children under 18. Again go to the Interim Rule to review the nine occupational categories and to find out what information and documents will be needed for the CW-1 petition.

5. Decide whether you are going to process the H1-B and CW-1 visas yourself or seek the assistance of an attorney.

6. As part of the submissions for both the H1-B and CW-1 visas, you must fairly consider all qualified U.S. citizens who apply to fill the positions. The Interim Rule states: “this rule further establishes that eligible employers must consider all available U.S. workers for positions being filled by CW-1 workers; offer terms and conditions of employment which are consistent with the nature of the occupation, activity, and industry in the CNMI.” The U.S. Department of Labor provides guidance for providing notification of the intent to petition a non-U.S. citizen on a for H1-B visas:

There is a notice requirement. The employer must inform U.S. workers of the intent to hire a foreign worker by providing notice of the filing of the LCA (Labor Condition Application) to the bargaining representative if there is one, or, if there is no bargaining representative, by posting notice of filing in two conspicuous locations at the employer’s establishments, or by providing electronic notice. The notice must be provided on or within the 30-day period before the date that the labor condition application is submitted to DOL. (http://www.dol.gov/compliance/guide/h1b.htm)

The posting period for a H1-B visa is 10 days within the 30 days prior to submission of the LCA. Electronic notice can be by whatever electronic means the employer normally communicates with its employees (e.g., e-mail, bulletin board, and home Web page. The means of notification for the intent to hire workers on a CW-1 visa is not known yet, but may require posting on the CNMI DOL website.

7. Attend the upcoming SHRM, SCC and USCIS meetings to obtain the latest information on the regulation.

There are some unstated “ifs” in this article because the regulations are not yet out. There is also much not covered here. However, I think it is a fair answer to your question and reasonable guidance as to what you should be doing right now. With luck, the regulation will be out shortly and you can compare the steps I have provided, and the assumptions made, with the regulation and adjust them accordingly.

Yes—the revised regulation may differ from the old one. However, you can’t keep putting this off waiting for the new regulation to be released. I think it is fair to say that, with less than three months to go, if you haven’t at least started working on this, it’s certainly time to do so.

(Follow this link for the Interim Rule: http://www.uscis.gov/ilink/docView/FR/HTML/FR/0-0-0-1/0-0-0-186558/0-0-0-196236/0-0-0-197368.html)