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CNMI Transitional Worker Classification Questions and Answers

CNMI Transitional Worker Classification Questions and Answers

 

Final Rule - CNMI Transitional Worker Classification
Questions and Answers

 

Introduction

On Sept. 7, 2011, U.S. Citizenship and Immigration Services (USCIS) published a final rule that establishes a Transitional Worker nonimmigrant visa classification (CW) for foreign workers only in the Commonwealth of the Northern Mariana Islands (CNMI). Employers of nonimmigrant workers who are ineligible for other employment-based nonimmigrant visa classifications under the Immigration and Nationality Act (INA) can apply for temporary permission to employ workers in the CNMI under the CW classification. The CW program is scheduled to end on Dec. 31, 2019.

 

Background

The Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, was signed into law on May 8, 2008. Title VII of this law amended Pub. L. 94-241, the Act approving the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States. Title VII extended most provisions of the INA and other U.S. immigration laws to the CNMI for the first time. On June 3, 2014, the U.S. Department of Labor published a notice in the Federal Register extending the CW program to December 31, 2019.

 

Questions and Answers

What is the CNMI-Only Transitional Worker program?

Eligibility requirements for employers

Eligibility requirements for employees

Which nonimmigrant worker category to apply for

Filing a petition

Filing fees

Denials and appeals

Employment under the CNMI transitional worker program

Dependents

Travel

Getting help

 

What is the CNMI-Only Transitional Worker (CW-1) program?

Q1. What is the CNMI-Only Transitional Worker (CW-1) category?

A1. The CW-1 category provides lawful U.S. temporary immigration status, known as “nonimmigrant” status, to eligible foreign workers who:

  1. Perform specific, legitimate services or labor for an employer in the CNMI; and
  2. Are ineligible for any other kind of employment-based nonimmigrant status under the INA.

Transitional workers are expected to find a suitable alternative immigration status before the end of the CW program if they wish to remain in the CNMI lawfully.

 

Q2. How does the rule affect foreign workers living and working in the CNMI?

A2. The rule allows employers in the CNMI to sponsor nonimmigrant workers who are ineligible to work under the INA. It gives foreign workers until Dec. 31, 2019, to determine an appropriate long-term immigration status for themselves and their families.

 

Q3. What is the admission code for this visa classification?

A3. The nonimmigrant visa classification admission code is CW-1 for principal CNMI-Only Transitional Workers and CW-2 for their dependents. The CW-2 classification is limited to dependents of CW-1 nonimmigrants (spouses and unmarried children under the age of 18).

 

Q4. How long is CW status valid?

A4. If the I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, is approved, CW-1 status normally is granted for one year. The employer may request an extension of status by filing a new I-129CW petition. A dependent’s CW-2 status expires on the same day as the worker’s CW-1 status and can be extended when the worker’s CW-1 status is extended.

 

Q5. I have CW-1 status, which was approved before the CW program was extended. My CW status expires Dec. 31, 2014, which is less than one year.  Will my status still expire on Dec. 31, 2014?

A5. Yes. Petitions approved through Dec. 31, 2014, will expire on that date. They will not be administratively extended by USCIS. Your employer must petition for an extension if you are to work past Dec. 31, 2014.  Your employer may request an extension of up to one year (that is, until Dec. 31, 2015). 

 

Q6. What happens to CW-1 transitional workers and their dependents at the end of the CW program?

A6. On Dec. 31, 2019, the CW classification will cease to exist. Transitional workers who held the CW status must obtain nonimmigrant or immigrant status under the INA before this date if they wish to stay in the CNMI lawfully.

 

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Eligibility requirements for employers (“petitioners”)

Q1. Am I eligible as an employer to petition for a CNMI-Only Transitional Worker visa?

A1. To be eligible to petition for workers for CW visa status, employers must:

  1. Be engaged in a legitimate business, as defined in the final rule;
  2. Consider all available U.S. workers for the position;
  3. Offer terms and conditions of employment consistent with the nature of the employer’s business in the CNMI;
  4. File Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, to hire transitional workers;
  5. Comply with all federal and CNMI requirements relating to employment, including but not limited to nondiscrimination, occupational safety and minimum-wage requirements; and
  6. Pay the workers’ cost of return transportation to their last place of foreign residence if they are involuntarily dismissed from employment for any reason before the end of the period of authorized admission.

 

Q2. What qualifies as a “legitimate business” under this rule?

A2. The final rule defines a legitimate business as “a real, active, and operating commercial or entrepreneurial undertaking which produces services or goods for profit, or is a governmental, charitable, or other validly recognized nonprofit entity. The business must meet applicable legal requirements for doing business in the CNMI. A business will not be considered legitimate if it engages directly or indirectly in prostitution, trafficking in minors, or any other activity that is illegal under federal or CNMI law.”

 

Q3. Can I, as a private individual, petition for foreign workers to work in a domestic household?

A3. Only an entity doing business, as defined by the transitional worker rule, may petition for CW workers. Private households generally are not eligible.

 

Q4. I am starting a new business. Can I file a petition for a CW worker?

A4. Yes, as long as you can demonstrate that you are a “legitimate business” and that you are “doing business” in the CNMI. See Question 2 in this section for the definition of a “legitimate business.” You must also meet all requirements, listed in Question 1 in this section, for hiring a CW worker.

 

Q5. Can I petition for CW workers if my business license has been suspended or revoked by the CNMI government, or if my license has not been renewed for any other reason?

A5. In order to petition for CW workers, you must meet applicable legal requirements for doing business in the CNMI. You should provide all available evidence of compliance with applicable license requirements.

If your business or occupational license has been suspended, revoked or not renewed, you should submit this disclosure and a full explanation of all relevant facts in writing along with your petition. USCIS will consider this information on a case-by-case basis to see whether you and/or the foreign worker are eligible for the requested CW classification.

Also, if the foreign worker requires an occupational license, you should provide evidence of such licensing.

 

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Eligibility requirements for employees (“beneficiaries”)

Q1. Are all foreign workers eligible for the CW visa classification?

A1. No. Foreign workers who are eligible for any other employment-based nonimmigrant visa classifications are not eligible for this program. A foreign national who is in the CNMI must also be lawfully present in the CNMI, as described in Question 3 of this section.

 

Q2. How can I qualify for a CNMI-Only Transitional Worker visa?

A2. You may be eligible for CW-1 nonimmigrant classification if you:

  1. Are ineligible for any other employment-based nonimmigrant status under U.S. immigration law;
  2. Will enter or stay in the CNMI to work in an occupational category designated as needing foreign workers to supplement the resident workforce;
  3. Are the beneficiary of a petition filed by a legitimate employer who is doing business in the CNMI;
  4. Are not present in the United States, other than the CNMI;
  5. Are lawfully present in the CNMI if actually in the CNMI; and
  6. Are admissible to the United States or are granted any necessary waiver of a ground of inadmissibility.

 

Q3. What does “lawfully present in the CNMI” mean for purposes of eligibility for the CW nonimmigrant classification?

A3. You are “lawfully present in the CNMI” if you have been lawfully admitted or paroled into the CNMI by the Department of Homeland Security (DHS), except for an admission or parole as a tourist or business visitor, and that admission or parole has not expired.

 

Q4.  I am a worker who is “lawfully present in the CNMI.” When my CW status is approved, can I remain in the CNMI to work or do I first have to leave the CNMI?

A4. In most cases, you can remain in the CNMI to work. The notice sent with your approval will state whether you are approved for a change or grant of status in the CNMI, or whether you will need to obtain a CW visa abroad.

If you were admitted or paroled as a tourist or business visitor, you are not eligible for a grant of CW status, so you will need to obtain a CW visa abroad. Also, if you are no longer lawfully present in the CNMI, you must leave the CNMI before your employer can file the petition. You then cannot reenter the CNMI and resume employment until the petition is granted and you obtain a CW visa at a U.S. Consulate abroad.

 

Q5. Are there any occupational categories which are excluded from eligibility for CW status?

A5. No.

 

Q6. How can I obtain a CW-1 or CW-2 visa if I am located outside the CNMI?

A6. After USCIS approves the Form I-129CW filed by your employer, you must contact the U.S. Department of State in the country where you are located to apply for a CW-1 or CW-2 visa based on your employer’s approved petition.

Your employer will have to send you the original approval notice from USCIS. See more details in answer 17 under Filing a petition.

 

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Which nonimmigrant worker category to apply for

Q1. How do I know whether to petition my worker for CW or H-1B status?

A1. The CW classification is only for job positions in the CNMI that do not otherwise qualify for a nonimmigrant classification under federal immigration law. If the job position is what may be considered a “specialty occupation,” then it does not qualify for the CW classification. In these cases, you should submit an I-129 Petition for a Nonimmigrant Worker.

A “specialty occupation” requires specialized knowledge in fields such as architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. Specialty occupations also require the worker to hold a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation.

If the job position listed on the petition falls into these categories and requires this level of education at the entry level, it is likely that the position qualifies for H-1B status.

 

Q2. Can I petition my worker for CW status instead of H-1B status, even though he or she meets the description of an H-1B worker?

A2. No. When analyzing what category under which to hire a worker, you should focus on whether the position is a specialty occupation position for which H-1B status is available. If the worker meets the description of an H-1B worker, then you should petition for him or her as an H-1B worker. Not being able to pay the appropriate prevailing wage for an H-1B position or not wanting to pay the petition fees are not sufficient justifications for filing for CW-1 instead of H-1B.

 

Q3. Can I file a CW petition for my temporary or seasonal workers?

A3. No. You should petition for temporary or seasonal workers under the H-2B category.

 

Q4. I have CW status. Can I apply for other visa classifications?

A4. Yes. If eligible, you and your dependents may apply for other INA nonimmigrant or immigrant visa classifications.

 

Q5. If I am currently working with H-1B status, can I get another job with CW status (or vice versa)?

A5. No. You may hold only one nonimmigrant status at a time. You may work for more than one employer at the same time within a single nonimmigrant status if petitions for both are approved. For example, you could work for employer A as a CW worker in one part-time position, and employer B as a CW worker in another part-time position. You cannot, however, work as both a CW nonimmigrant and as an H-1B nonimmigrant (or any other nonimmigrant status). You may change status, if eligible, from CW to H-1B to work in another position, but you would need to give up the CW status and employment upon approval of the H-1B.

 

Q6. Can an employer file a CW petition for me if I am eligible for E-2 CNMI-Only Investor (E2C) status?

A6. Yes. An employer may file a CW petition for you even if the employer believes you are eligible to apply for E-2 CNMI-Only Investor (E2C) status. However, if you are eligible for any regular nonimmigrant worker category, you are not eligible for CW-1 status.

 

Q7. Is it still possible for a person with parole to obtain a nonimmigrant status?

A7. Yes, an individual with parole may apply for nonimmigrant status.

 

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Filing a petition

Q1. Does the extension of the CW program mean any changes in the petitioning process?

A1. No. There are no changes to the application process or fees for the CNMI-Only Transitional Worker (CW) Program.

  • Employers must still file Form I-129CW.
  • The timetable for petitioning remains the same. Employers may file Form I-129CW up to six months in advance. We encourage employers to file as soon as possible within that time frame to prevent gaps in employment authorization.

USCIS will resume approving CW-1 status in increments of up to one year if the petitioner already requested a date beyond Dec. 31, 2014, on the unadjudicated Form I-129CW, and if the petition is otherwise eligible.

 

Q2. What version of the I-129CW petition must I use?

A2. The correct version of Form I-129CW has the date 04/04/2013 in the lower right-hand corner of the petition. You can find it at www.uscis.gov/I-129cw. You may also use the version dated 10/7/2011. Do not use earlier versions of the form.

 

Q3. I am an employer. When may I file petitions for workers?

A3. You should file a petition for a worker no earlier than six months before the date you need the worker’s services. For example, if you need a worker’s services on July 1, you may submit a petition for the worker no earlier than Jan. 1 of the same year.

A petition will be rejected if it is filed earlier than six months before the date that the worker is needed.

 

Q4. When is a petition considered filed?

A4. An immigration application or petition is filed when USCIS actually receives it, not when you mail it.

(To maximize the opportunity for employers and employees in the CNMI to apply for the new CW program before the “umbrella permits” expired on Nov. 27, 2011, USCIS did provide a one-time special consideration, under which petitions postmarked as late as that expiration date would be considered timely filed.  However, that special consideration no longer applies.)

 

Q5. What must I do as an employer to petition for a foreign worker?

A5. Before you may petition for a foreign worker, you must consider available U.S. workers for the position being filled by the CW worker.

To petition for a foreign worker, you must:

  1. File a Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker and the CW Classification Supplement, which is an attestation by the employer;
  2. Offer terms and conditions of employment that are consistent with the nature of the occupation, activity and industry in the CNMI;
  3. File supporting evidence showing that the information provided about the employer, job position and prospective worker is accurate and meets eligibility criteria; and
  4. Submit the appropriate filing fees.

You can find detailed steps for those lawfully present in the CNMI and those residing outside the United States in Questions 16 & 17 below.

 

Q6. Do I need to file a separate Form I-129CW for each transitional worker?

A6. No. You can file a single petition for multiple workers, when all workers:

  1. Will work in the same occupational category;
  2. Will be employed for the same period of time;
  3. Will be employed in the same location; and
  4. Are requesting the same action in questions 2 and 5 of Part 2 of Form I-129CW (Basis for Classification and Requested Action.)

 

Q7. To include more than one worker on the same Form I-129CW petition, the instructions say that all workers must be in the same “occupational category.” What does this mean?

A7. This means that each worker included on the same petition must:

  1. Have the same job title;
  2. Perform the same job duties; and
  3. Work in the same job location.

If any of these three items differ, you must petition for the workers on different forms. You may not file a single petition for multiple workers just because they have the same general occupational category, such as “service occupation.” The job title and duties must be specific to the work being done.

 

Q8. I have seen references in USCIS materials to “grant of status,” “change of status” and “extension of status.” Are these different?

A8. Yes. In this context, “change of status” refers to a change from one U.S. nonimmigrant status to another; for example, changing from an F-1 student to a CW-1 transitional worker. “Grant of status” refers to an initial grant of CW status to an individual who did not previously have a nonimmigrant status, such as a parolee. Although the end result is the same – the individual will have CW status in the CNMI – the procedures are not identical (for example, you must pay the biometrics fee for a grant of status but not for a change of status). “Change of status” and “grant of status” are not considered the same requested action for purposes of filing for multiple workers on one petition.

An “extension of status” is a continuation of a worker’s previously granted CW-1 status after it otherwise would expire. An extension of status is a different action than a change or grant of status.

 

Q9. If I file a petition for multiple workers, can some of the workers request a visa from the U.S. Consulate and some request a grant or change of status in the CNMI?

A9. No. The request must be the same for all workers on one petition. The workers must either all request a change of status, all request a grant of status, or all request consular processing. Otherwise, you may not combine them on the same petition.

 

Q10. When filing a petition for multiple workers, can some of the workers request an extension of existing CW status and some request a grant or a change of status?

A10. No. The request must be the same for all workers on the petition. The workers must either all request an extension of status, all request a change of status, or all request an initial grant of status. Otherwise, you may not combine them on the same petition.

 

Q11. To be eligible for CW status, a worker must be ineligible for other employment-based nonimmigrant categories under the INA. As an employer, does this mean that I must apply for those other categories and be denied, prior to petitioning for CW status for a worker?

A11. No. You do not need to show that you have unsuccessfully applied for any other nonimmigrant classification for a worker. You must attest that the position is not temporary or seasonal in nature (because you can use the H-2B nonimmigrant classification to obtain temporary or seasonal workers), and that you do not reasonably believe the worker qualifies for any other nonimmigrant worker classification. If you applied unsuccessfully for another nonimmigrant classification for a worker, you should supply that evidence of your previous applications.

 

Q12. As an employer, what evidence should I provide with the Form I-129CW petition?

A12. You should submit evidence, to the extent available, to support the elements in the attestation. For example, to support the attestation that there are no qualified U.S. workers available to fill the position, you may submit evidence that you posted the job vacancy in daily newspaper want ads or on job vacancy websites such as those operated by the CNMI Department of Labor and private recruitment firms.

 

Q13. I am a worker. What must I submit to the U.S. Department of State for a CW nonimmigrant visa?

A13. You must complete a Form DS-160, Application for Nonimmigrant Visa, and submit the required fee. The Department of State encourages families to file together, even if the family members will be travelling separately.

 

Q14. As an employer, what must I do to request an extension of CW-1 nonimmigrant status for my employee?

A14. You must file a new Form I-129CW petition. You can find a list of items that must be included with the application for CW-1 extension on page 4 of the Form I-129CW instructions, including a CW Classification Supplement to Form I-129CW (with the required attestation) for each employee.

Any evidence you provide to support the attestation will help USCIS in determining eligibility. The evidence may include:

  • Pay statements, pay stubs or other documentation showing that the beneficiary was employed by you in the occupation that was indicated on the initial I-129CW,
  • Evidence that you have considered all available U.S. workers for the job position, and
  • Evidence that the beneficiary has obtained the necessary health care worker certification, if required.

You can find detailed information about the items required for an extension of stay petition on page 4 of the I-129CW instructions. The link to these instructions is found at www.uscis.gov/i-129cw.  

Supporting evidence is important for a timely decision. If your submission is incomplete, USCIS may send you a Request for Evidence (RFE), which would delay the extension of the transitional worker and perhaps result in employment delays while USCIS waits for you to send the required information.

You cannot file an extension request for an employee in CW status more than six months in before the expiration date of the employee’s current status. But we encourage you to file as soon as you can within those six months to prevent gaps in employment authorization. USCIS will reject extensions filed more than six months in advance of the employee’s expiration date.

 

Q15. If my employer files an I-129CW petition requesting an extension of my CW-1 nonimmigrant status, can I keep working while the petition is pending adjudication?

A15. You may continue working as long as your current CW-1 status is valid. If it expires before USCIS grants the extension, you may not continue working unless you another basis of work authorization from USCIS, such as an Employment Authorization Document.

USCIS has proposed a change to the regulation that would allow up to 240 days additional work authorization based on a pending extension petition, but that change is not yet in effect.

 

Q16. I am a worker and I am lawfully present in the CNMI. What steps do I need to take to obtain CW status?

A16. You should take the following steps in this situation.

Step 1: Your employer must submit the following forms to sponsor you:

  1. A Form I-129CW;
  2. The $325 application fee;
  3. The mandatory $150 education fee; and
  4. Supporting evidence certifying that the information provided about you, your employer and the job position is accurate and meets eligibility requirements.

Either you or your employer must also include the $85 biometrics fee with the petition (unless you are requesting a change of nonimmigrant status or requesting consular processing in the event that you are not eligible for a grant of status, as described in answer 4 of Eligibility requirements for employees). After your employer files the Form I-129CW, USCIS will contact you to say when you will need to go to the USCIS Application Support Center in TSL Plaza in Saipan for USCIS to take your fingerprints and photograph.

Step 2: If your Form I-129CW is approved, USCIS will mail an approval notice to your employer. Make sure your employer gives you a copy of the approval notice. The approval notice and attached Form I-94 will indicate that you have been granted CW-1 status in the CNMI. The approval notice will also tell you whether you need to go to a U.S. Embassy or Consulate abroad to apply for a CW-1 visa.

 

Q17. I am a foreign worker living outside the United States and an employer in the CNMI is willing to sponsor me. What are the steps I need to take to obtain a CW visa?

A17. In this situation, you should take the following steps:

Step 1: For you to obtain a CW visa, your sponsoring employer must first submit the following documents:

  1. A Form I-129CW;
  2. The $325 application fee;
  3. The mandatory $150 education fee; and
  4. Supporting evidence certifying that the information provided about you, your employer, and the job position are accurate and meets eligibility requirements.

Step 2: If the petition is approved, USCIS will mail an approval notice to your employer. Your employer will need to send the original approval notice to your address abroad.

After you receive the approval notice, you will need to schedule a nonimmigrant visa interview at the U.S. Consulate or Embassy nearest to you. Your dependents may simultaneously apply for CW-2 visas with the U.S. Department of State and do not need to file a Form I-129CW or Form I-539. The Department of State has separate application and fee requirements for visa applications.

You and your dependents will not have CW-1 or CW-2 status until you obtain a CW visa from the U.S. Department of State and are admitted to the CNMI. The approval of a Form I-129CW for consular processing approves the classification only and does not grant you any status in the CNMI.

 

Q18. How do I make an appointment for a visa interview?

A18. Each U.S. Consulate has its own process for making visa appointments. You may either call or make an appointment online. All fees must be paid to the U.S. Department of State before you make an appointment. Their website, www.usembassy.gov, has more information about nonimmigrant visa interviews and the expected wait times for nonimmigrant visa interviews at every U.S. Consulate overseas.

Remember that you must bring the petition approval notice and the Form DS-160 with you to the appointment.

 

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Filing fees

Q1. What are the filing fees associated with a Form I-129CW?

A1. If you are an employer in the CNMI seeking to sponsor an eligible individual as a CNMI-Only Transitional Worker, please see the filing fees below.

 

If you are…

You must…

And…

Petitioning for one or more workers who are lawfully present in the CNMI with a federal nonimmigrant status (e.g., F-1 or H-1B)...

Submit a Form I-129CW with the $325 application fee...

Submit a mandatory CNMI education funding fee of $150 per beneficiary. Do not submit a biometrics fee.

Petitioning for one or more workers who have been granted parole by USCIS or CBP (except as a visitor for business or pleasure from Russia or China)…

Submit a Form I-129CW with the $325 application fee…

  • Submit a mandatory CNMI education funding fee of $150 fee per beneficiary.
  • You or the worker must also submit an $85 biometrics fee if you are requesting an initial grant of status in the CNMI.*

Petitioning for one or more workers who are requesting consular processing abroad…

Submit a Form I-129CW with the $325 application fee…

Submit a mandatory CNMI education funding fee of $150 fee per beneficiary. Do not submit a biometrics fee. The Department of State may require a biometrics fee when the worker applies for his or her visa abroad.

Requesting an extension of status for a CW nonimmigrant worker…

Submit a Form I-129CW with the $325 application fee…

Submit a mandatory CNMI education funding fee of $150 fee per beneficiary. Do not submit a biometrics fee.

 

Q2. Can filing fees be waived?

A2. The Form I-129CW and biometrics filing fees may be waived in extraordinary situations where you demonstrate an inability to pay the filing fee but you are still able pay the employee’s wage. To request a fee waiver you must submit a Form I-912, Request for Individual Fee Waiver, or a written request for a fee waiver. The $150 CNMI education funding fee cannot be waived.

For more guidance about applying for a fee waiver, visit www.uscis.gov/feewaiver.

 

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Denials and appeals

Q1. My petition was denied. How can I appeal?

A1. If you are the petitioning employer, you can appeal a denied CW-1 petition by filing a Form I-290B, Notice of Appeal or Motion. You can find this form at http://www.uscis.gov/i-290b. Only the petitioning employer, not an employee, may appeal the denial.

You can only appeal the denial of the petition for CW-1. You may not appeal the denial of an application for a grant or change of status, or an extension of status.

 

Q2. My CW status was denied because my employer made a mistake on my petition. What are my options?

A2. Your employer can appeal the decision and submit the correct information.  Alternatively, your employer can submit a new petition. However, you are not authorized to remain in the CNMI after your CW-1 status expires.

 

Q3. If my employer files Form I-290B Notice of Appeal because my I-129CW was denied, am I allowed to continue working? Am I considered legally present while the appeal is pending adjudication?

A3. No. If your CW-1 status has expired, you are not considered lawfully present or authorized to continue working, even if you have a pending appeal.

 

Q4. If my CW petition is denied but another employer has filed a petition on my behalf, am I authorized to stay in the CNMI while the petition is pending? 

A4. You may not work for the employer whose petition was denied. If your new employer filed a petition for you while you were in lawful CW-1 status for the previous employer, you are authorized to begin work for the new employer pending adjudication of the new employer’s petition

 

Q5. My CW renewal was denied. Can I obtain parole-in-place since my children were born in the United States, and may I stay in the CNMI until I receive a decision on my parole?

A5. No. You cannot apply for parole-in-place if you had CW status. If you had CW status or any other nonimmigrant status, you are not eligible to apply for or to receive parole in the CNMI, regardless of whether or not your nonimmigrant status has expired.  Also, a pending request for parole does not authorize you to remain in the CNMI.

 

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Employment under the CNMI transitional worker program

Q1. I have CW status. Can I be employed anywhere in the United States?

A1. No. CW status does not authorize you to work in any other state or territory of the United States, including the neighboring territory of Guam.

If you have CW-1 status, you may only work in the CNMI for the petitioning employer who filed the approved petition. The employer must file a new I-129CW petition if there are any material changes in the terms and conditions of your employment. If you have CW-2 status, you may not work in the CNMI or in any other state or territory of the United States.

 

Q2. I have CW-1 status. Can I change employers?

A2. Yes, but the new employer must file a Form I-129CW petition with USCIS. You may start work for the new employer as soon as the new employer files the petition. This must be a non-frivolous Form I-129CW petition for a change of employer, meaning that you are in CW-1 status at the time of filing, there is a real job offer, and you meet the qualifications of the job offer. If the petition is denied, the work authorization ends immediately.

 

Q3. I don’t have CW-1 status yet but have a pending CW-1 petition. Can I change employers and begin working for the new employer?

A3. Generally, you cannot work for a new employer until the CW-1 petition (I-129CW) filed by the new employer is approved. 

 

If you…

Then you…

Have no basis of lawful presence or work authorization…

  • Must depart the CNMI once your old employer (the petitioner) withdraws the I-129CW petition that was filed on your behalf
  • Your new employer can file a new petition seeking consular processing abroad (Part 2, Number 5, Option A of the petition)

Are in a parole status, but do not have a valid Employment Authorization Document…

  • Must not start working for the new employer until a decision is made on the newly-filed I-129CW petition
  • May stay in the CNMI while awaiting  I-129CW decision

Are in a parole status and have a valid Employment Authorization Document…

  • May begin working for the employer at any time

 

Q4. What should I do if I filed a pending I-129CW for an employee but my employee leaves his or her employment?

A4. You should notify USCIS of the employee’s termination and of your intention to withdraw the petition.

To notify USCIS of an employee’s termination, submit a letter signed by the employer indicating the employee’s termination and requesting to withdraw the petition.

Where to send it:

 

OR

  • Mail the original letter to: USCIS, California Service Center, ATTN: CW-1, P.O. Box 10698, Laguna Niguel, CA 92607-1098.

Please be sure to reference the number associated with the pending petition. This is the number on your receipt that begins with the letters “WAC.”

 

It is important that you notify USCIS of an employee’s termination and your withdrawal of the petition. Otherwise, you will still have responsibilities if the petition is approved.

  • You would be responsible for notifying USCIS of any material change in the employee’s employment, including the fact that the employee has been terminated.
  • You are responsible for the reasonable cost of return transportation of the employee to his or her home country if the petition is approved but the employee has been dismissed from employment for any reason.

 

Q5. Do I lose my CW status if I am terminated from employment?

A5. Yes, you will lose your CW nonimmigrant status if you violate any of the terms or conditions associated with that CW status.

However, when the violation is only caused by termination from employment, you will not be considered to have violated your status if, within 30 days from the date of termination, you obtain new employment and an employer files a non-frivolous petition on your behalf. This only applies if you do not violate any other terms or conditions of CW status.

  • If you find new employment, your new employer must file a petition for you before the end of this 30-day period in order for you to remain lawfully present in the CNMI. You may only begin work with the new employer after that employer files the petition.
  • If you cannot find new employment or your new employer does not file a new petition within 30 days, you must leave the CNMI and you will be considered to be out of status effective on the date of termination from CW-1 employment. Any petition filed for you after the 30-day period will require an approved petition and a CW visa issued at a U.S. Consulate outside the CNMI before you can return and start new employment in the CNMI.

 

Q6. When does the 30 day “grace period” apply?

A6. If you employment is terminated, you may remain in the CNMI for a period of 30 days to find new employment. If you find new employment, your new employer must file a non-frivolous petition for you before the end of the 30 day period. Details and conditions are found in the answer to Question 5 of this section.

 

Q7. How do I maintain my CW-1 status?

A7. CW-1 status expires at the end of the petition validity period, or if you violate status.  Once the expiration date arrives, you are no longer in status.

To maintain CW-1 status, you must:

  • Obey federal and CNMI laws;
  • Continue to engage in the employment that is the basis of your grant of status; and
  • Comply with the terms and conditions of your status, including not traveling or attempting to travel elsewhere in the United States without authorization.

 

Q9. I am nearing the end of my CW-1 work authorization period. How can I remain in status?

A9. To remain in status, your employer or a new employer must file a petition to extend your CW-1 status before it expires. You can also remain in status by seeking and obtaining another nonimmigrant or immigrant status.

 

Q10. What if I want to work for more than one employer?

A10. If you work for more than one employer while in CW-1 status, each employer must file a separate Form I-129CW with USCIS.

 

Q11. When being petitioned for a new CW-1 status after the expiration of a previously granted CW-1, why do some individuals receive split decisions and some receive denials?

A11. USCIS adjudicates each petition on its individual merit, so we may issue split decisions to some petitions and denials to other petitions. 

While USCIS decides each case on its individual facts, we generally deny a petition if the employer does not establish its eligibility. 

USCIS may issue a split decision if the employer is able to establish eligibility but there is a problem with the employee’s eligibility for an extension of status in the CNMI. In this situation, the employee can still seek CW status based on the employer’s approved petition but can only do so by obtaining a visa abroad and returning to the CNMI. 

A split decision does not guarantee that the U.S. Department of State will find the employee admissible to the United States and approve the visa application abroad.

 

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Dependents

Q1. Which dependents are eligible for derivative CW-2 status?

A1. Spouses and minor children (children under 18 years of age) are eligible for derivative CW-2 status. Children over 18 years of age, parents, and other relatives are not eligible for CW-2 status.

 

Q2. How do my dependents apply to receive CW status?

A2. As derivative of your employer’s application for you to obtain CW-1 status, your dependents may apply for CW-2 status if they are lawfully present in the CNMI. Applicants for CW-2 status must submit:

 

  1. The $290 application fee;
  2. The $85 biometrics services fee, if applicable;
  3. A copy of your approval notice and Form I-94 documenting admission to the CNMI in the CW-1 classification (if available); and
  4. In some cases, Form I-539 Application to Change or Extend Status.

 

Dependents may not need to file Form I-539, depending on how the primary CW-1 status is being processed.

 

If…

Then…

You are requesting consular processing of your CW-1 status at a U.S. Consulate or Embassy abroad…

Your dependents may also seek consular processing of their CW-2 status at the same time. Dependents do not need to file a Form I-539 if they file for CW status from outside the CNMI.

You are in the CNMI and your employer has filed the Form I-129CW requesting CW-1 status for you…

Your dependents may file a Form I-539 at the same time or at any time while the I-129CW is pending. The Form I-539 must be accompanied by an additional biometrics fee unless the dependent is under 14 years of age or is 79 or older. However, your dependents’ Form I-539 will not be approved if your application for change of status is denied.

If the Form I-539 is approved, USCIS will send your dependents an approval notice as evidence of the approved Form I-539 with an I-94 as evidence of CW-2 status.

 

Q3. I have CW-2 status. Can I work?

A3. No. The CW-2 status does not authorize employment.

 

Q4. If my spouse cannot work as a CW-2 nonimmigrant, how can he or she work?

A4. An employer can petition for your spouse to obtain CW-1 status, if eligible. If your spouse has another basis for work authorization, such as an Employment Authorization Document based on a grant of parole, then your spouse can apply for an extension of work authorization before it expires.  A spouse or child of a CW-1 worker is not required to apply for CW-2 status, but if he or she does not, the family member must have another basis of authorization under U.S. immigration law to remain or work in the CNMI.

 

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Travel

Q1. As a CW-1 or CW-2 nonimmigrant, what do I need to do in order to travel?

A1. If you wish to travel abroad and reenter the CNMI, you must obtain a CW-1 or CW-2 visa from the U.S. Department of State abroad.

The Department of State has separate application and fee requirements for visa applications. For more information on traveling outside of the CNMI, please visit the Department of State website.

 

Q2. I have CW status. Can I return from travel outside the CNMI?

A2. You may leave the CNMI, but you must have the corresponding visa to reenter the CNMI. You must apply for a CW visa at a U.S. Embassy or Consulate abroad before seeking readmission to the CNMI.

If you obtained your CW-1 or CW-2 status while in the CNMI, you will be given a Form I-94, Arrival-Departure Record, as documentation of CW status.

 

Q3. Is CW status valid in any part of the United States other than the CNMI?

A3. CW status is a “CNMI-only nonimmigrant” status. It does not authorize entry to Guam or to any other part of the United States. Travel or attempted travel from the CNMI to another part of the United States without the appropriate visa or other authorization is a violation of CW status. If you fail to comply with the conditions of CW status, you would be deportable from the CNMI or any other U.S. location.

However, if you hold CW status, you may travel directly to Guam and other U.S. destinations under the following conditions:

  1. You are traveling to the U.S. destination and back to the CNMI on a U.S. itinerary only (for example, you are traveling to and from Guam only without passing through any foreign airport);

AND

  1. You need to travel to another part of the United States for a valid business or personal reason, such as a necessary business meeting, professional training, or medical treatment, and your travel plans are consistent with the length of stay and activities that would be authorized for B nonimmigrant visitors, including visitors under a visa waiver program, as appropriate;

AND

  1. You have received U.S. Citizenship and Immigration Services (USCIS) approval in advance of the travel.

If you are a Philippine national, please see the answer to Question 6 below for information about a limited Guam transit privilege.

 

Q4. As a CW nonimmigrant, how do I obtain USCIS approval in advance of travel?

A4. Receiving USCIS approval in advance of travel depends on your nationality and/or visa:

 

If you…

You must…

When you travel

  • Have a valid “B” nonimmigrant visa;
  • Are a national of a participating country who is eligible to visit the United States under the U.S. Visa Waiver Program (VWP); or
  • Seek to visit Guam only and are eligible to visit Guam under the Guam-CNMI Visa Waiver Program.

Prepare a travel approval request packet that includes:

  • A copy of your valid passport,
  • A copy of evidence of CW status (Form I-94), and
  • Information on your travel plans including, as available, an invitation letter, documented business or personal reason for travel, and itinerary.
  • Submit the request packet at the USCIS Application Support Center (ASC) in Saipan. The ASC in Saipan accepts travel approval requests on Wednesdays, and you may pick up your answer on Friday without an appointment.

Upon approval, USCIS will annotate the Form I-94 to indicate whether your travel is authorized for:

  • Guam only

OR

  • Guam and the rest of the Unites States

You should present the annotated Form I-94 and your passport to any U.S. Customs and Border Protection (CBP) officer encountered when departing the CNMI or elsewhere in the United States. CBP still makes the final decision on whether to permit your travel.

Are a national of the Philippines

See Question 6 in this section for information about your transit privilege through Guam. Philippine nationals eligible for this transit privilege do not require a B visa or advance approval of travel by USCIS.

N/A

Have a status that is not described in either box above

(for example, you are not eligible for the VWP program and do not have a valid “B” immigrant visa)

File a Form I-131 Application for Travel Document with the $360 fee with the USCIS Guam Office to obtain an advance parole document.

Guam Office address:

USCIS

Sirena Plaza, Suite 100

108 Hernan Cortez Avenue Hagatna, Guam 96910

CBP will generally accept the advance parole document to permit you to travel in your CW nonimmigrant status to Guam or the rest of the United States for a purpose and time appropriate for a “B” nonimmigrant visit. CBP ultimately decides whether to permit your travel.

 

Q5. I have CW status and am otherwise eligible for B visitor status (either with a valid B visa or VWP eligible). Can I attempt to travel to or from another part of the United States through a foreign airport?

A5. This is strongly discouraged. You lose CW status if you depart the United States, and a CW visa is not valid for admission to the United States at any port of entry outside the CNMI. Even if you have a valid B visa or are VWP eligible, U.S. Customs and Border Protection (CBP) inspectors may consider you inadmissible because B visitors are supposed to have foreign residence, rather than residence in the CNMI or any other part of the United States.

 

Even if you are admitted to the United States as a B visitor, you can only regain CW status in the CNMI by returning to the CNMI again through a foreign airport (NOT returning through Guam) with a valid CW visa (not the B visa). If you return to the CNMI through Guam, you would remain in B status, which does not permit engaging in the employment authorized in CW-1 status.

 

If you wish to travel to the rest of the United States after transiting through a foreign place, you should apply to the USCIS Guam Office by filing a Form I-131 requesting an advance parole document. This document would authorize your parole into the United States when arriving from a foreign place. However, if you use this method, you must obtain a CW visa abroad before returning to the CNMI. If you are paroled into the United States and return to the CNMI through Guam, you would remain a parolee rather than resuming the CW status which provides authorization to work in the CNMI.

 

Please note the difference between a visa and parole: You can use the process described in Question 4 of this section to obtain approval to travel to the United States from the CNMI through Guam to a foreign destination. However, you CANNOT use the process to travel from a foreign place through Guam to the CNMI, as that travel requires a valid CW visa, which cannot be used in Guam for admission into the United States.

 

For special provisions related to nationals of the Philippines traveling through the Guam airport, see Question 6 below.

 

Q6. I have CW status. Can I transit through the Guam airport?

A6. If you are a national of the Philippines, you may travel between the CNMI and the Philippines through the Guam airport if you:

  • Are in valid CW status;
  • Are traveling on a direct itinerary involving a flight stopover or connection in Guam of no more than eight hours; and
  • Remain at the Guam airport during the stopover or connection.

If you are a national of the Philippines, U.S. Customs and Border Protection (CBP) may be able to waive the 8 hour limit and extend up to 24 hours on a case-by-case basis. Please check with CBP Saipan before traveling.

Other individuals in CW status or with CW visas cannot travel to or from foreign destinations with a stopover or connection through Guam, except as described in A3 of this section.

 

Q7. As a national of the Philippines with CW status, what must I do if my transit through the Guam airport is longer than eight hours?

A7. In this case, follow the instructions under “Have a status that is not described in either box above” in question 4 of this section.

 

Q8. I do not currently have CW status.  Can I travel while my CW petition is pending?

A8. Yes. If you have been granted advance parole, you may travel while your Form I-129CW requesting a grant of CW status in the CNMI is pending. Advance parole is advance permission granted by USCIS to leave the CNMI for a foreign place and return to the CNMI to be paroled back in.

The U.S. Customs and Border Protection (CBP) inspector at the port of entry issues the actual parole to a foreign worker who has an advance parole, when that worker returns to the CNMI from foreign travel.

PLEASE NOTE: If you are requesting a CW visa abroad, you should not request advance parole.

 

Q9. If my employer filed a new CW petition for me, can I travel for work overseas or within the United States while my petition is pending?

A9. As long as your immigration status has not expired, you can travel and still return; however, you will need a visa to return to the CNMI from abroad. Special requirements apply to CW-1 workers seeking to travel elsewhere in the United States. See the other questions in this Travel section. 

 

Getting Help

Q1. How will I know that my petition was received?

A1. You will receive a notice with a receipt number beginning with the letters WAC. You can use this receipt number to check the status of your case online.

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Last Reviewed/Updated: 08/05/2014