USCIS: Capped-out CW workers can apply for deferred action
Joy and disappointment greeted the U.S. Citizenship and Immigration Services’ decision of deferred action for capped out workers under the CNMI-Only Transitional Worker nonimmigrant visa.
While CNMI officials thanked USCIS Director Leon Rodriguez for addressing the issue; others, however, called it a little too late with more than half of the affected workers having already left the CNMI as they followed the USCIS’ strict rules that one must exit the CNMI if your CW-1 visa is about to expire.
In a letter addressed to Gov. Ralph DLG Torres and Delegate Gregorio “Kilili” C. Sablan (Ind.-MP), Rodriguez said they understood the impact of the CW-1 cap to the CNMI’s economy and the workers themselves including their families, most of whom have underage children.
“We understand the potential impacts of the CW-1 numerical limits on transitional workers and their families, and we recognize that the current circumstances affect long-term workers and residents whose CW-1 nonimmigrant status cannot be extended and may create particular uncertainty and hardship in some cases,” Rodriguez said in the letter.
USCIS decided to grant a 240-day extension to employees who will have expiring CW-1 visas. This means the employee whose CW-1 visa that was previously approved, had already expired can still work for the next eight months.
This rule, however, applies if your current employer has already filed a CW-1 petition asking to continue your previous approved employment; the employer files the petition before the employee’s CW-1 status expires; and the employer asks to extend the stay of the employee in the petition.
Torres thanked Rodriguez for the concern he has shown on the current situation of the CNMI. He said his administration made a huge effort in relaying the situation to the proper channels to avoid any economic or humanitarian effect.
“Since learning of the economic and humanitarian effects of the CW cap being reached early
this year, I have made every effort to explain and relay the situation on the ground and why immediate action is necessary,” said Torres.
“I sincerely appreciate today’s announcement, but recognize that we have much work to do in ensuring this transition period achieves its goals with the least possible harm to the fragile CNMI economy and the many families who call our islands home,” he added.
“There are many good, hardworking people in USCIS and the Department of Homeland
Security who have listened to the CNMI’s concerns in both 902 consultations and bilateral discussion and have worked hard to provide this relief to many.”
Sablan, in a statement, also echoed the same statement adding that Rodriguez’s department “intends to address the humanitarian issues arising from its May announcement to close applications for CW-1 permits for the rest of fiscal year 2016.”
He said the USCIS considered a deferred action to long-term CNMI workers whose CW-1 permits had already expired or will expire before Oct. 1, the start of fiscal year 2017.
“The decision will not affect workers who have already left the [CNMI]. But those who have remained after their permits expired or whose permits have not yet expired will be able to apply for deferred action,” Sablan added.
Here are some points of the 240-day rule, according to the USCIS, the additional employment authorization period begins on the date the employee’s CW-1 status expires and 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 must remain the same as those previously approved.
Furthermore, if the employer’s petition requesting an extension of stay is granted, the period of authorized employment under the 240-day provision ends on the date of the decision. The employee’s CW-1 status is extended, and the employee may continue employment with the same employer during the validity period of the extension.
If the employer’s petition is granted, but the application for extension of status is denied (referred to as split decision) the employee’s work authorization under the 240-day provision ends on the date of the decision.
If the employee’s CW-1 status has already expired, the employee must stop working at that time. The employee is eligible to obtain CW-1 status based upon the approved petition, but can only do so by leaving the CNMI, obtaining a CW-1 visa at a U.S. embassy or consulate abroad, and returning to the CNMI no earlier than 10 days before the approved employment start date of the petition.
If the employee does this and is admitted to the CNMI in CW-1 nonimmigrant status, then the employee may work in the approved employment during the approved validity dates of the petition.
If the employer’s petition is denied, and the employee’s CW-1 status has already expired, the employee’s work authorization under the 240-day provision ends on the date of that decision. The employee must stop working.
Members of the community had mixed reactions on the USCIS ruling with the Hotel Association of the Northern Mariana Islands chair and Marianas Visitors Authority board member Gloria Cavanagh thanking Department of Homeland Security Deputy Secretary Alejandro Mayorkas, Torres, and Sablan for the efforts they have shown in trying to find a solution to the issue.
“This is good news for those remaining CW-1 employees that are facing much hardship with the fiscal year cap. This will also alleviate worsening conditions with our delicate labor shortage. Our plight for an opportunity to grow our economy is directly tied to having an adequate labor pool. We need a more realistic cap in order to do this,” said Cavanagh.
“Although I don’t totally understand the mechanics nor the politics of this kind of consideration, I am led to believe that this is a huge accommodation for the CNMI. For this HANMI is very thankful.”
Cavanagh, however, said the issue has been tough to some CW-1 workers’ families especially individuals who have kids here. “I must admit though that it is still tough dealing with the splitting up of families that have already occurred over the last couple of months.”
“Personally speaking, we have sent all but one employee back to their homeland to wait for approval of their CW-1s under the new fiscal year. A few of them still have young children being taken cared of by close relatives.”
She said the next thing that needs to be done is the CNMI getting an increase in the cap in order to get the needed workforce that would help sustain the Commonwealth’s economic growth. “The next job is to work on getting approval of the needed increase in our cap.”
“The CNMI is growing exponentially. The original cap was to afford the supply of labor for the operations of the then economy. With growth the way it is now, we are going to fall short very soon with our labor market again.”
Saipan Chamber of Commerce president Velma Palacios also welcomed the news of USCIS’ deferred action that would be beneficial to all CW-1 workers that were affected by the cap, their families, and employers.
“This deferred action provides relief for eligible workers. Since the announcement that the CW-1 cap had been reached in May, businesses had to make adjustments within their operations as some of their employees affected had to leave island,” said Palacios.
“Businesses have instituted training programs and created partnerships to address their human resource requirements. CW-1 workers and their families have made hard decisions: to separate their family or to leave their home altogether.”
She said the CNMI’s renewed economic activity, especially on Saipan, needs the sufficient labor force to support. “Businesses need to maintain those who would be eligible to support their operations. With the continued economic growth in our islands, we need a workforce to support and sustain this growth.”
“Our economy is on recovering from five years ago. We have many new hotel developments that have started construction and some are now in the planning stage. New businesses including restaurant franchises have opened.”
“In addition to the local workforce capacity, we still require our CW-1 workers. We thank Congressman Kilili Sablan and Gov. Torres for working with USCIS.”
CNMI Chinese Association director Rose Chan said although it is a welcome news, it would be better to have a more long-term solution on the issue and the case of long-term guest workers here that spent most of their lives helping the CNMI whether on its best or lean years.
“It’s good news for the employees and the employers. We just hope the USCIS can make a long-term solution on this issue since the CNMI’s economy is getting stable,” said Chan, who owns several businesses on Saipan including Canton Restaurant in Garapan.
Chan added that some Chinese businesses had to temporarily shut down their operations due to lack of employees as they need to exit the CNMI because of expiring CW-1 visas. She is hoping for a better and long-term solution.
“A long-term solution would improve and secure the CNMI’s future. These are employees who stayed and worked here for 10, 20, or 30 years. They have become part of Saipan and called the islands their home.”
She, however, felt bad for those who had already left the CNMI since they have no choice but to follow the USCIS’ ruling. “Those who have expired CW-1s need not leave but I really felt sad for those who went home and followed the law.”
U.S. Citizenship and Immigration Services district director David Gullick, when he spoke to members of the Saipan Chamber of Commerce early this month, said employers and employees should check the dates of their I-94s and make sure they exit before the expiry date.
Mami Ikeda, who was one the community volunteers that helped victims of Typhoon Soudelor last year, said she was thankful for the USCIS ruling but at the same time sad for those who had already gone home and are waiting for their documents to be released.
“[It’s] sad to know nothing applies to those who complied to their [USCIS] rules and left the island. That they required people to file the application, which I hope is for free. Required the people to apply for [an employment authorization document], which is going to [cost] $390 and takes months to get approved,” said Ikeda.
“Most of all, they still require you to leave the CNMI once your new CW-1 is approved, get a visa, and come back. Is this what we wanted?”
Katrina Punzalan, who was born on Saipan to Filipino parents and is now studying at the University of Washington, said it was ironic to learn about the deferment plan given by the USCIS to those who have expired CW-1 visas.
“It’s ironic how the new deferment plan gives leeway to those who overstayed after their documents expired—exactly what the USCIS has been warning people not to do—before this plan was announced,” said Punzalan, whose parents needed to exit as they were affected by the fiscal year cap.
“I think it’s unfair and a little insulting for any side—federal or local—to think that this is near an adequate response to the issue. It’s a slow response announcing this after over half of the affected individuals have already been forced to flee. They don’t benefit from this at all. Those that are eligible to in the future aren’t even guaranteed protection due to having to demonstrate ‘exceptional” circumstances,’ said Punzalan.
United Filipino Organization president Bong Malasarte, whose group helped in collecting information of long-time CW-1 workers that was part of the USCIS’ requirement, said the 240-day extension is a big help unlike the 10-day grace period which wasn’t enough to process documents or find a new employer.
“We are very thankful to Gov. Ralph [DLG] Torres for sharing the status and concerns of CW-1s to the USCIS. Also thank you to all that supported our signature campaign that we submit to the Governor’s Office and the USCIS recognized the current situation of our long-time foreign workers in the CNMI,” said Malasarte.
“I salute both sides, for those who went back home because they don’t want to risk their current status and also those who made risks for the sake of their families here. For me, there is always a chance to come back.”
He, however, cautioned all CW-1 employees to be cautious of individuals who would take advantage of the situation and at the same time feeding false information. “I hope all CW-1 employees would use the 240-day period the right way. This is a huge chance given to us by the USCIS.”
“This is the time to help each other. Help those who are in need of work to the best of their abilities. Also, know the right information and the correct details. Don’t just settle for second-hand information or from what you’ve heard from others. The information is available from credible sources,” added Malasarte.
Rene Reyes, the Marianas Association for Humanitarian Affairs Ltd. founding president, said it was a positive development in the ongoing plight for improved status of all long-term foreign workers.
“It is welcome news to all and I thank all the individuals who made it happen. But for those who had already left and were not included in the deferment, it is frustrating. These foreign workers were the ones that were affected by the cap, they are the ones that needed to exit to the extent of leaving their children.”