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

Rules and Regulations
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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]