On May 5, 2016, USCIS received a sufficient number of petitions to reach the numerical limit (“cap”) of 12,999 workers who may be issued CW-1 visas or otherwise be provided with CW-1 status for Fiscal Year (FY) 2016. USCIS understands that the CW-1 numerical limits may affect long-term workers whose CW-1 nonimmigrant status cannot be extended and may create particular uncertainty and hardship in some cases.
USCIS reminds affected transitional CW-1 workers that they may have options, consistent with existing laws and regulation, such as continued employment authorization or other visa categories after the expiration of their current status. USCIS will also consider requests for deferred action, on a case-by-case basis, by long-term CW-1 workers residing in the CNMI who face a temporary interruption in their employment authorization until the renewal of their CW-1 visa in fiscal year (FY) 2017 and who demonstrate exceptional circumstances or justifications.
USCIS reminds transitional CW-1 workers and their employers that, as mandated by Congress, the annual CW-1 cap will continue to be reduced until the program expires on December 31, 2019. As a result, the consideration of deferred action under these particular circumstances is a singular response to address short-term and unexpected humanitarian circumstances immediately arising from the May 2016 announcement that the FY 2016 CW-1 cap had been reached.
What Happened after the CW-1 Cap was Reached
Once the CW-1 cap was reached on May 5, 2016, which was earlier than anticipated, USCIS began rejecting CW-1 petitions requesting an employment start date before October 1, 2016. As a result, certain CW-1 workers may find that their CW-1 status will expire before USCIS approves an extension of their employment authorization.
As of February 2016, USCIS may authorize up to 240 days of continued employment authorization to certain beneficiaries of CW-1 applications for extension of status under 8 CFR 274a.12(b)(20). On a case-by-case basis, USCIS may also consider requests for deferred action by long-term workers and residents with CW-1 visas who face a temporary interruption in their employment authorization until the renewal of their CW-1 visa in FY 2017 and who demonstrate exceptional circumstances or justifications.
Who is Eligible for Continued Employment Authorization
An employee in CW-1 nonimmigrant status may lawfully continue working for up to 240 days after the previously approved CW-1 status expires if:
The current employer files a CW-1 petition for FY 2017 asking to continue previously approved employment;
The employer files the petition before the CW-1 status expires; and
The employer asks to extend the employee’s stay in the petition.
Please note that the employee is not eligible for the additional 240 days if USCIS rejects the employer’s petition.
Additionally, the 240 days of continued employment authorization does NOT extend a CW-1 worker’s nonimmigrant status. It only allows the employee to continue working with the same employer. It does not give nonimmigrant status or lawful presence that allows an employee to avoid accruing unlawful presence under section 212(a)(9) of the Immigration and Nationality Act. Unlawful presence, depending on the length of time, can be a bar to future admissibility to the United States. However, if the employee is the beneficiary of a timely filed, non-frivolous CW-1 petition requesting an extension of stay, the employee generally will not accrue unlawful presence if nonimmigrant status is not violated before the employer files the CW-1 petition and the employee does not engage in unauthorized employment.
How Long the Continued Employment Authorization Lasts
The additional 240 day employment authorization period begins on the date that the CW-1 status expires. The period continues until USCIS issues a decision on the petition or until 240 days after the CW-1 status expires, whichever comes first. The terms and conditions of the employment must remain the same as those previously approved.
Status after USCIS Decides on the CW-1 Petition
An employer’s petition is actually a two-part request. One part is the employer’s petition to classify the employee as a CW-1 nonimmigrant. The other part is the employee’s application for an extension of stay.
Grants an extension of stay petition: The 240-day employment authorization ends on the date of USCIS’ decision. The CW-1 status is extended, and the employee may be employed during the validity period of the extension.
Denies an extension of stay petition: If an employee’s CW-1 status has already expired, the 240-day employment authorization ends on the date USCIS’ decision is received, even if 240 days have not yet passed. The employee must stop working on the date of USCIS’ decision.
Issues a split decision granting the employer’s petition to classify the employee as a CW-1 nonimmigrant but denying the extension of stay application: If an employee’s CW-1 status has already expired, the 240-day employment authorization ends on the date USCIS’ decision is received, even if 240 days have not yet passed. The employee must stop working on the date of USCIS’ decision.
In this situation, the employee is still eligible for CW-1 status based upon the employer’s approved petition, but the employee must leave the CNMI, obtain a CW-1 visa at a U.S. embassy or consulate abroad, and return to the CNMI no earlier than 10 days before the approved start date of the petition. If the employee does this and is admitted to the United States in CW-1 nonimmigrant status, then the employee may work under the approved employment petition during the validity period of that petition.
Other Visa Categories
USCIS reminds CNMI employers to use other U.S. nonimmigrant classifications when appropriate. The CW-1 program requires that the foreign worker must be ineligible for any other employment-based nonimmigrant visa classification under U.S. immigration law, including the H-2B classification for temporary or seasonal workers and the H-1B classification for workers in a specialty occupation. For workers employed in the CNMI, there is no cap on H-2B or H-1B visas during the transition period ending December 31, 2019.
As a short-term solution to the humanitarian circumstances that arose from the FY 2016 CW-1 cap being reached, USCIS is currently allowing certain CW-1 workers to apply for deferred action.
If an employee is a CW-1 worker whose status is expiring or has expired, has remained in the CNMI, and is affected by the CW-1 cap, the employee may request deferred action. If the employee requests deferred action, his or her spouse or children who have been in derivative CW-2 status may also request deferred action.
Please note that a CNMI employer may NOT request deferred action for an employee. The request must come from the employee. However, the employee may provide information from the employer supporting the request, including whether the employer has filed, or intends to file, a CW-1 petition for the employee.
If the employee is not otherwise authorized to be employed, he or she may also apply for a discretionary grant of employment authorization. However, the employee must wait until after he or she receives deferred action before being eligible to apply. If USCIS grants deferred action, the employee will receive instructions on how to apply for employment authorization. The employee will need to prove his or her economic necessity for employment.
How USCIS Adjudicates Deferred Action Requests
USCIS will consider deferred action requests on a case-by-case basis where there are exceptional circumstances or justification for granting deferred action. If USCIS grants deferred action, the requestor will be considered to have lawful presence during the deferred action period. USCIS may consider certain factors while adjudicating requests for deferred action. For example, the length of time that the requestor has been present in the CNMI, whether a spouse or child resides in the CNMI with the requestor, the hardships that would be encountered if the requestor departs the CNMI, and any other factor which may warrant the favorable exercise of discretion in the individual’s case.
USCIS will determine the length of deferred action on a case-by-case basis. In general, the deferred action would normally be valid for a time period that would allow:
The filing of a CW-1 petition requesting a start date on or after October 1, 2016 to be approved for consular processing,
Departure of the beneficiary so that he or she can obtain a new nonimmigrant visa, and
Readmission of the beneficiary to the United States.
How to Request Deferred Action
To request deferred action, a requestor must provide all of the following to USCIS:
A letter asking for deferred action that includes:
A P.O. Box mailing address
A contact telephone number
A completed Form G-325, Biographic Information
A copy of biographic and validity pages of the passport
A copy of the receipt for a petition filed by the employer for employment beginning on or after October 1, 2017
A copy of the current Form I-94
A detailed explanation of the circumstances that the requestor believes requires continued presence in the CNMI and supporting documentation for the explanation. If the request is based on children or a spouse in the CNMI, the requestor must submit evidence of the relationship such as birth certificates and marriage certificates.
The requestor may drop off the request with the USCIS Saipan Application Support Center or mail it to the USCIS Guam Field Office.
You may drop off your request at the Application Support Center at the TSL Plaza in Garapan, or you may mail your request to :
Guam Field Office
770 E Sunset Boulevard, Ste 185
Barrigada, Guam 96913
ATTN: CW Deferred Action Request.