E-2C investors apply for other status

With only three months to go before they will be ordered to exit the CNMI, foreign investors with a transitional E-2C status and visa have started applying for other immigrant or nonimmigrant status under U.S. immigration law.

As of this week, the U.S. Congress has yet to send President Barack Obama a bill that would extend beyond Dec. 31, 2014, not only the E-2C program but also the CNMI and Guam’s exemption from the H-1B and H-2B caps and the Commonwealth’s exemption from accepting asylum applicants.

“I’ve applied for a CW status and it’s now being processed,” an E-2C visa holder told Saipan Tribune yesterday. “The E-2C and CW application processes are almost the same.”

Many of those with E-2C investor status and visa own and operate small hotels, laundry facilities, automotive shops, car rentals, grocery stores, and a host of other small businesses in the CNMI.

They are investors who, along with their spouses and children, were allowed to remain in the CNMI under E-2C status even with a minimum investment of $50,000, instead of $150,000—but that would only be allowed until the end of this year.

Another E-2C visa holder said yesterday she will be discussing her immigration status with her lawyer, to check whether she qualifies for an EB-5 visa or a CW status, among other things.

“If I qualify, then I will apply for a CW status for now. There’s nothing we can do, right? So we have to convert to another status. But I think I should be okay for now,” the businesswoman said.

If and when a bill is passed and signed into law extending the E-2C program, then she plans to again apply for an E-2C visa.

Other E-2C visa holders have opened businesses in nearby Guam, while some still hope Congress will pass a bill to extend the E-2C program by five years, up to Dec. 31, 2019.

U.S. Citizenship and Immigration Services issued an advisory yesterday reminding the public that the E-2C immigration category will expire on Dec. 31, 2014.

It said unless Congress takes legislative action to extend it, the E-2 CNMI investor status and visa will expire on the last day of 2014.

“Therefore, individuals in the CNMI with E-2 CNMI status must depart the CNMI after Dec. 31, 2014, or qualify for and obtain another nonimmigrant or immigrant status in order to lawfully remain in the CNMI. Otherwise, such investors will begin to accrue unlawful presence on Jan. 1, 2015,” USCIS said in a media advisory.

On Thursday last week, the U.S. Senate added three CNMI immigration policies to an insular areas energy bill, then passed the combined bill and sent it back to the U.S. House of Representatives.

These immigration policies include extending beyond Dec. 31, 2014, the CNMI’s exemption from accepting asylum applicants, extending the islands’ E-2C investor visa, and extending the numerical cap on H visas for Guam and the CNMI.

There is no telling when the U.S. House will act on the Senate-amended bill, with the U.S. House in recess for district work this week.

Delegate Gregorio Kilili C. Sablan (Ind-MP) said these CNMI immigration policies and the insular energy provisions of H.R. 83 are also parts of his omnibus territories bill or H.R. 2200, and its Senate companion, S.1237. They are also included in Sablan’s H.R. 4296.

An E-2C visa holder said yesterday she would like the program to be extended for another five years. Yet she’s not taking any chances.

“I don’t want to be out of status, even for a day,” she said.

USCIS said the U.S. government’s administrative agencies do not have the authority to extend the E-2C program without legislative action from Congress.

It pointed out that the U.S. Labor secretary’s extension of the CNMI-only transitional worker or CW program in June 2014 did “not” apply to the E-2C program.

“All individuals’ E-2C status (whether principal investors, or E-2C spouses and children) will terminate on Dec. 31, 2014. E-2C visas will not be valid for admission into the CNMI on or after Jan. 1, 2014,” USCIS said.

To remain lawfully in the CNMI after 2014, all individuals with E-2C nonimmigrant status must obtain another lawful immigrant or nonimmigrant status under U.S. immigration law “no later than” Dec. 31, 2014.

“Depending upon their particular circumstances, E-2C individuals may wish to consider other family-based or employment-based categories. These include, but are not limited to, E-2 treaty investor (the status through which certain foreign investors may seek entry into the United States, in contrast to the temporary E-2C program limited to investors from the CNMI), and the CW program,” USCIS said.

E-2C non-immigrants are also not eligible for parole in the CNMI, USCIS said.

USCIS pointed out that anyone who has had a non-immigrant status is not eligible to apply for or receive parole in the CNMI, regardless whether or not the nonimmigrant status has expired.

For more information about E-2 treaty investors and CW status, visit the USCIS website at www.uscis.gov.

H visa cap

In a separate statement yesterday, USCIS reminded employers that the H-1B and H-2B cap exemptions for the CNMI and Guam would end on Dec. 31, 2014.

The Consolidated Natural Resources Act of 2008, which federalized CNMI immigration, included a provision that exempted H-1B and H-2B nonimmigrant workers performing labor or services in the CNMI and Guam from the congressionally-mandated annual numerical limitations from Nov. 28, 2009, to Dec. 31, 2014.

During this period, a nonimmigrant worker may have been granted H-1B or H-2B status but was not counted toward the cap.

“All requests for H-1B or H-2B work to be performed in Guam or the CNMI on or after Jan. 1, 2015, will be subject to the annual H-1B or H-2B cap unless otherwise exempt,” USCIS said.

The federal agency said there are ways to still qualify under the H cap exemption for the CNMI and Guam.

It said any petition for a new or extended H-1B or H-2B nonimmigrant worker must be filed by Dec. 31, 2014, and as explained in the filing instructions for Form I-129 Petition for a Nonimmigrant Worker.

With limited exceptions, a petition requesting an extension of the beneficiary’s status must be filed prior to the expiration of the beneficiary’s currently approved status.

USCIS also said employers do not need to wait until the validity of the original petition and the beneficiary’s status are about to expire to file an extension.

It said the employment start date of the worker’s labor or services must be on or before Dec. 31, 2014.

For H-1B visas, Congress has set a regular annual cap of 65,000 available per fiscal year, from Oct. 1 to Sept. 30.

USCIS will begin accepting H-1B petitions that are subject to the fiscal 2016 cap on April 1, 2015.

If a Form I-129 petition for the H-1B classification is accepted and approved, then the earliest the H-1B worker may begin to work in Guam or the CNMI would be Oct. 1, 2015.

Meanwhile, the H-2B cap set by Congress is 66,000 visas per fiscal year, with 33,000 to be allocated for employment beginning in the first half of the fiscal year, from Oct. 1 to March 31.

The remaining 33,000, together with any unused numbers from the first half of the fiscal year, will be allocated for employment beginning in the second half of the fiscal year (April 1 to Sept. 30).

USCIS will begin accepting H-1B petitions that are subject to the fiscal 2016 cap on April 1, 2015.

At present, CNMI employers are also experiencing rejections of H visa applications over a lack of a valid prevailing wage survey.

The Saipan Chamber of Commerce plans to update its 2011 prevailing wage survey after the latest round of 50-cent minimum wage hike takes effect Sept. 30. The CNMI Department of Commerce also just recently received a federal grant that will fund a new prevailing wage survey.