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  • News: USCIS and DHS Publish Notification of Numerical Limitation

    [Federal Register Volume 78, Number 186 (Wednesday, September 25, 2013)]
    [Rules and Regulations]
    [Pages 58867-58868]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2013-23289]

    Rules and Regulations
    Federal Register

    This section of the FEDERAL REGISTER contains regulatory documents
    having general applicability and legal effect, most of which are keyed
    to and codified in the Code of Federal Regulations, which is published
    under 50 titles pursuant to 44 U.S.C. 1510.

    The Code of Federal Regulations is sold by the Superintendent of Documents.
    Prices of new books are listed in the first FEDERAL REGISTER issue of each


    Federal Register / Vol. 78, No. 186 / Wednesday, September 25, 2013 /
    Rules and Regulations

    [[Page 58867]]


    8 CFR Part 214

    [CIS No. 2537-13; DHS Docket No. USCIS-2012-0010]
    RIN 1615-ZB23

    Commonwealth of the Northern Mariana Islands (CNMI)-Only
    Transitional Worker Numerical Limitation for Fiscal Year 2014

    AGENCY: U.S. Citizenship and Immigration Services, DHS.

    ACTION: Notification of numerical limitation.


    SUMMARY: The Secretary of Homeland Security announces that the annual
    fiscal year numerical limitation for Commonwealth of the Northern
    Mariana Islands (CNMI)-only Transitional Worker (CW-1) nonimmigrant
    classification for fiscal year (FY) 2014 is set at 14,000. In
    accordance with Title VII of the Consolidated Natural Resources Act of
    2008 (CNRA) (codified, in relevant part, at 48 U.S.C. 1806(d)) and 8
    CFR 214.2(w)(1)(viii)(C), this document announces the mandated annual
    reduction of the CW-1 numerical limit and provides the public with
    information regarding the new CW-1 numerical limit. This document is
    intended to ensure that CNMI employers and employees have sufficient
    notice regarding the maximum number of workers who may be granted
    transitional worker status during the upcoming fiscal year.

    DATES: Effective Date: September 25, 2013.

    FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, Adjudications
    Officer (Policy), Office of Policy and Strategy, U.S. Citizenship and
    Immigration Services, Department of Homeland Security, 20 Massachusetts
    Avenue NW., Washington, DC 20529-2060. Contact telephone (202) 272-


    I. Background

    Title VII of the Consolidated Natural Resources Act of 2008 (CNRA)
    extends U.S. immigration law to the CNMI and provides CNMI-specific
    provisions affecting foreign workers. See Public Law 110-229, 122 Stat.
    754, 853. The CNRA included provisions for a ``transition period'' to
    phase-out the CNMI's nonresident contract worker program and phase-in
    the U.S. federal immigration system in a manner that minimizes the
    adverse economic and fiscal effects and maximizes the CNMI's potential
    for future economic and business growth. See sec. 701(b) of the CNRA.
    The CNRA authorized DHS to create a nonimmigrant classification that
    would ensure adequate employment in the CNMI during the transition
    period, which ends December 31, 2014.\1\ See id.; 48 U.S.C. 1806(d)(2).
    The CNRA also mandated an annual reduction in the allocation of the
    number of permits issued per year and the total elimination of the CW
    nonimmigrant classification by the end of the transition period. 48
    U.S.C. 1806(d)(2).

    \1\ The Secretary of Labor is authorized to extend the
    transitional worker program beyond December 31, 2014 for up to five
    years. See 48 U.S.C. 1806(d)(5). An extension decision must be made
    no later than 180 days before the expiration of the transition
    period on December 31, 2014, i.e., no later than July 7, 2014 (the
    first business day after the date that is 180 days before the end of
    the transition date, Friday, July 4, 2014). The Secretary of Labor
    has not made an extension decision as of the date of this Notice.

    Consistent with this mandate under the CNRA, DHS published a final
    rule on September 7, 2011 amending the regulations at 8 CFR 214.2(w) to
    implement a temporary, CNMI-only transitional worker nonimmigrant
    classification (CW classification, which includes CW-1 for principal
    workers and CW-2 for spouses and minor children). See Commonwealth of
    the Northern Mariana Islands Transitional Worker Classification, 76 FR
    55502 (Sept. 7, 2011). DHS established the CW-1 numerical limitation
    for FY 2011 at 22,417 and for FY 2012 at 22,416. See 8 CFR
    214.2(w)(1)(viii)(A) and (B). DHS opted to publish any future annual
    numerical limitations by Federal Register notice. See 8 CFR
    214.2(w)(1)(viii)(C). Instead of developing a numerical limit reduction
    plan, DHS determined that it would assess the CNMI's workforce needs on
    a yearly basis. Id. This initial approach to the allocation system
    ensured that employers had an adequate supply of workers to provide a
    smooth transition into the federal immigration system. It also provided
    DHS with the flexibility to adjust to the future needs of the CNMI
    economy and to assess the total alien workforce needs based on the
    number of requests for transitional worker nonimmigrant classification
    received following implementation of the CW-1 nonimmigrant
    DHS followed this same rationale for the FY 2013 annual fiscal year
    numerical limitation. After assessing all workforce needs, including
    the opportunity for growth, DHS set the CW-1 numerical limitation at
    15,000. CNMI-Only Transitional Worker Numerical Limitation for Fiscal
    Year 2013, 77 FR 71287 (Nov. 30, 2012). The FY 2013 numerical
    limitation was based on the actual demonstrated need for foreign
    workers within the CNMI during FY 2012. See id.

    II. Maximum CW-1 Nonimmigrant Workers for Fiscal Year 2014

    The maximum number of CW-1 nonimmigrant workers announced in this
    document (14,000) is appropriate based on the actual demonstrated need
    for foreign workers within the CNMI. As of August 13, 2013, in FY 2013,
    employers in the CNMI filed 4,791 petitions for CNMI-Only Nonimmigrant
    Transitional Workers, Form I-129 CW, requesting a total of 7,323
    nonimmigrant transitional workers during FY 2013.\2\ DHS continues to
    believe that the number of requested CW-1 nonimmigrant workers in the
    previous fiscal year provides an accurate assessment to use in
    determining the likely demand in FY 2014. In doing so, DHS also takes
    into account the number of CW-1 requests received in FY 2013. To date,
    most of the CW-1 petitions received in FY 2013 are extensions of CW-1
    nonimmigrant status. DHS anticipates that this trend will continue;
    employers who petitioned for initial

    [[Page 58868]]

    CW-1 nonimmigrant status are likely to seek to renew that status. It is
    important to note that the approvals for initial CW-1 nonimmigrant
    workers were staggered throughout FY 2012. Therefore, the need to file
    extensions for these workers will also be spread out throughout 2013.
    Most CW-1 beneficiaries still have valid CW-1 nonimmigrant status until
    late summer of 2013. Some employers may not have to file for their CW-1
    nonimmigrant workers, to the extent that they plan to extend, until
    later in the year. As a result, USCIS has not yet received the total
    projected number of CW-1 extensions for the 12,247 initial CW-1
    nonimmigrant workers granted in FY 2012. In short, DHS anticipates that
    the majority of the CW-1 employers will request renewal for their CW-1
    workers' nonimmigrant statuses later in the year. These requests, to
    the extent they are granted, will be counted under the FY 2013 cap.

    \2\ USCIS Office of Performance and Quality (OPQ), Data Analysis
    and Reporting Branch (DARB), figures provided as of August 13, 2013.
    This data includes petitions for initial status and for extensions
    of status.

    The CNRA requires an annual reduction in the number of transitional
    workers (and complete elimination of the CW nonimmigrant classification
    by the end of the transition period) but does not mandate a specific
    reduction. 48 U.S.C. 1806(d)(2). In addition, 8 CFR
    214.2(w)(1)(viii)(C) provides that the numerical limitation for any
    fiscal year will be less than the number established for the previous
    fiscal year, and it will be reasonably calculated to reduce the number
    of CW-1 nonimmigrant workers to zero by the end of the transition
    To comply with these requirements, meet the CNMI's labor market's
    needs, provide opportunity for growth, and preserve access to foreign
    labor, DHS has set the numerical limitation for FY 2014 at 14,000. DHS
    arrived at this figure by taking the number of CW-1 nonimmigrant
    workers needed based on the FY 2013 limitation of 15,000, and then
    reducing it by 1,000, or approximately 6.7 percent. This number will
    accommodate the staggered extensions for the 12,247 initial CW-1
    nonimmigrant workers granted during FY 2012 (to the extent that the
    employer requests an extension) and will also accommodate possible
    economic growth that might lead to a need for additional nonimmigrant
    workers during FY 2014.
    In setting this new number, DHS also considered the effect of the
    FY 2014 numerical limitation on an extension of the transitional worker
    program, if any. To date, the Department of Labor (DOL) has not
    announced a decision on the extension of the program. However, DHS must
    prepare for both the end of the transitional worker program and for an
    extension of the transitional worker program; a drastic reduction would
    not account for the possibility of an extension. DHS must ensure that
    the numerical limitation is reduced as statutorily mandated, but that
    it still provides for enough CW-1s for future fiscal years if the
    transitional worker program is extended. DHS thus believes that a
    reduction of only 6.7 percent or 1,000 is appropriate because the new
    baseline must preserve access to foreign labor, as well as accommodate
    future reductions, if the DOL extends the transitional worker program.
    Accordingly, DHS reduced the number of transitional workers from the
    current fiscal year numerical limitation of 15,000, and established the
    maximum number of CW-1 nonimmigrant visas available for FY 2014 at
    This number of CW-1 nonimmigrant workers will be available
    beginning on October 1, 2013. DHS may adjust the numerical limitation
    for a fiscal year or other period, in its discretion, at any time via
    notice in the Federal Register. 8 CFR 214.2(w)(1)(viii)(D). Consistent
    with the rules applicable to other nonimmigrant worker visa
    classifications, if the numerical limitation for the fiscal year is not
    reached, the unused numbers do not carry over to the next fiscal year.
    8 CFR 214.2(w)(1)(viii)(E).
    Petitions requesting a start date within fiscal year 2014 will be
    counted against the 14,000 limit. As such, each CW-1 nonimmigrant
    worker who is listed on a Form I-129 CW is counted against the
    numerical limitation at the time USCIS receives the petition. Counting
    the petitions in this manner will help ensure that USCIS does not
    approve requests for more than 14,000 CW-1 nonimmigrant workers. If the
    number of CW-1 nonimmigrant workers approaches the 14,000 limit, USCIS
    will hold any subsequently-filed petition until a final determination
    is made on the petitions that are already included in the numerical
    count. Subsequently-filed petitions will be forwarded for adjudication
    in the order in which they were received until USCIS has approved
    petitions for the maximum number of CW-1 nonimmigrant workers; any
    remaining petitions that were held or that are newly received will be
    This document does not affect the immigration status of aliens who
    hold CW-1 nonimmigrant status. Aliens currently holding such status,
    however, will be affected by this document when they apply for an
    extension of their CW-1 nonimmigrant classification, or a change of
    status from another nonimmigrant status to that of CW-1 nonimmigrant
    This document does not affect the status of any alien currently
    holding CW-2 nonimmigrant status as the spouse or minor child of a CW-1
    nonimmigrant worker. This document also does not directly affect the
    ability of any alien to extend or otherwise obtain CW-2 status, as the
    numerical limitation applies to CW-1 principals only. Aliens seeking
    CW-2 status may, however, be indirectly affected by the applicability
    of the cap to the CW-1 principals from whom their status is derived.

    Rand Beers,
    Acting Secretary.

    [FR Doc. 2013-23289 Filed 9-24-13; 8:45 am]
    BILLING CODE 9111-97-P

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