[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]



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

[[Page 58867]]



DEPARTMENT OF HOMELAND SECURITY

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.

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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-
1470.

SUPPLEMENTARY INFORMATION:

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).
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\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.
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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
classification.
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.
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\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.
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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
period.
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
14,000.
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
rejected.
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
status.
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]
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