Commonwealth of the Northern Mariana Islands Transitional Worker Classification, 55502-55539 [2011-22622]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 76, Number 173 (Wednesday, September 7, 2011)]
[Rules and Regulations]
[Pages 55502-55539]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-22622]



[[Page 55501]]

Vol. 76

Wednesday,

No. 173

September 7, 2011

Part III





 Department of Homeland Security





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8 CFR Parts 103, 214, 274a, et al.





 Commonwealth of the Northern Mariana Islands Transitional Worker 
Classification; Final Rule

Federal Register / Vol. 76 , No. 173 / Wednesday, September 7, 2011 / 
Rules and Regulations

[[Page 55502]]


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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 214, 274a, and 299

[CIS No. 2459-08; DHS Docket No. USCIS-2008-0038]
RIN 1615-AB76


Commonwealth of the Northern Mariana Islands Transitional Worker 
Classification

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

ACTION: Final rule.

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SUMMARY: On October 27, 2009, the Department of Homeland Security 
published an interim rule creating a new, temporary, Commonwealth of 
the Northern Mariana Islands (CNMI)-only transitional worker 
classification (CW classification) in accordance with title VII of the 
Consolidated Natural Resources Act of 2008 (CNRA). The CW 
classification is intended to provide for an orderly transition from 
the CNMI permit system to the U.S. Federal immigration system under the 
immigration laws of the United States, including the Immigration and 
Nationality Act (INA). This final rule implements the CW classification 
and establishes that a CW transitional worker is an alien worker who is 
ineligible for another classification under the INA and who performs 
services or labor for an employer in the CNMI during the five-year 
transition period. CNMI employers may now petition for such workers. 
The rule also establishes employment authorization incident to CW 
status.

DATES: This final rule is effective on October 7, 2011.

FOR FURTHER INFORMATION CONTACT: Paola Rodriguez Hale, U.S. Citizenship 
and Immigration Services, Department of Homeland Security, 20 
Massachusetts Avenue, NW., Washington, DC 20529-2060, telephone (202) 
272-1470.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Interim Final Rule
III. Final Rule
IV. Public Comments Received on the Interim Final Rule
V. Other Changes
VI. Regulatory Analyses

I. Background

    The Commonwealth of the Northern Mariana Islands (CNMI or 
Commonwealth) is a U.S. territory located in the Western Pacific that 
has been subject to most U.S. laws for many years. Before November 
2009, the CNMI administered its own immigration system under the terms 
of the 1976 Covenant with the United States. See A Joint Resolution to 
Approve the Covenant To Establish a Commonwealth of the Northern 
Mariana Islands in Political Union with the United States of America 
(Covenant Act), Public Law 94-241, sec. 1, 90 Stat. 263, 48 U.S.C. 1801 
note (1976). On May 8, 2008, President Bush signed into law the 
Consolidated Natural Resources Act of 2008 (CNRA). See Public Law 110-
229, 122 Stat. 754, 853 (2008). Title VII of the CNRA extends U.S. 
immigration laws to the CNMI. Id. The stated purpose of the CNRA is to 
ensure effective border control procedures, to properly address 
national security and homeland security concerns by extending U.S. 
immigration law to the CNMI (phasing-out the CNMI's nonresident 
contract worker program while minimizing to the greatest extent 
practicable the potential adverse economic and fiscal effects of that 
phase-out), to maximize the CNMI's potential for future economic and 
business growth, and to assure worker protections from the potential 
for abuse and exploitation. See sec. 701 of the CNRA, 48 U.S.C.A. 1806 
note.
    Section 702 of the CNRA stated that U.S. immigration laws would 
apply to the CNMI starting approximately one year after the date of 
enactment, subject to certain transition provisions unique to the CNMI. 
See 48 U.S.C. 1806(a). On March 31, 2009, the Secretary of Homeland 
Security postponed the effective date of the transition program from 
June 1, 2009 (the first day of the first full month commencing one year 
from the date of enactment of the CNRA) to November 28, 2009, using her 
discretion provided by the CNRA.\1\ The transition period concludes on 
December 31, 2014. See 48 U.S.C. 1806(a)(2).
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    \1\ See DHS Press Release, ``DHS Delays the Transition to Full 
Application of U.S. Immigration Laws in the Commonwealth of the 
Northern Mariana Islands'' (Mar. 31, 2009), available at https://www.dhs.gov/ynews/releases/pr_1238533954343.shtm.
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    Since 1978, the CNMI has admitted a substantial number of foreign 
workers through an immigration system that provides a permit program 
for foreigners entering the CNMI, such as visitors, investors, and 
workers. Foreign workers under this program constitute a majority of 
the CNMI labor force. Such workers outnumber U.S. citizens and other 
local residents in most industries central to the CNMI's economy.\2\ 
The transitional worker program implemented under this rule is intended 
to provide for an orderly transition for those workers from the CNMI 
permit system to the U.S. Federal immigration system under the INA and 
to mitigate potential harm to the CNMI economy as employers adjust 
their hiring practices and as foreign workers obtain U.S. immigrant or 
nonimmigrant status. See 48 U.S.C. 1806(d).
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    \2\ See GAO, Commonwealth of the Northern Mariana Islands: 
Pending Legislation Would Apply U.S. Immigration Law to the CNMI 
with a Transition Period, GAO-08-466 (Mar. 18, 2008); GAO, U.S. 
Insular Areas: Economic, Fiscal, and Accountability Challenges. GAO-
07-119 (Dec. 12, 2006); GAO, Commonwealth of the Northern Mariana 
Islands: Serious Economic, Fiscal and Accountability Challenges, 
GAO-07-746T (Apr. 19, 2007).
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    The CNRA contains several CNMI-specific provisions affecting 
foreign workers during the transition period. Section 702(a) of the 
CNRA mandates that:
     During the transition period, the Secretary of Homeland 
Security must ``establish, administer, and enforce a system for 
allocating and determining the number, terms, and conditions of permits 
\3\ to be issued to prospective employers'' for the transitional 
workers.
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    \3\ The CNRA refers to a system of permits. Note that we have 
retained this language when referencing the statute. In this 
context, however, the use of the term ``permit'' is synonymous with 
CW status, and the latter term is used more extensively in this 
discussion.
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     Foreign workers may qualify for the transitional worker 
classification if not otherwise eligible for admission under the INA.
     Transitional workers may apply to USCIS during the 
transition period for a change of status to another nonimmigrant 
classification or to adjust status to that of a lawful permanent 
resident in accordance with the INA.
     The transitional worker program will terminate at the end 
of the transition period unless the program is extended by the U.S. 
Secretary of Labor. Transitional workers must then adjust or change 
status to an immigrant or another nonimmigrant status under the INA if 
they want to remain legally in the CNMI. Otherwise, such transitional 
workers must depart the CNMI or they will become subject to removal.

See 48 U.S.C. 1806(d).

II. Interim Final Rule

    In accordance with the CNRA, on October 27, 2009, DHS published an 
interim rule amending regulations at 8 CFR 214.2(w) to create a new 
CNMI-only transitional worker classification (CW classification) 
intended to be effective for the duration of the transition period. See 
74 FR 55094. DHS provided a 30-day comment period in the interim rule, 
which ended on November 27, 2009. Id. The interim rule

[[Page 55503]]

was to become effective on November 27, 2009. Id.
    On November 25, 2009, the U.S. District Court for the District of 
Columbia enjoined implementation of the interim rule.\4\ See CNMI v. 
United States, 670 F. Supp. 2d 65 (D.D.C. 2009). On December 9, 2009, 
DHS published a notice in the Federal Register reopening and extending 
the public comment period for an additional 30 days. See 74 FR 64997. 
The reopened comment period ended on January 8, 2010. Id. The comments 
received during both comment periods were considered and are discussed 
below.
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    \4\ On September 12, 2008, the CNMI government filed a lawsuit 
challenging the legality of certain provisions of the CNRA and a 
motion requesting that those provisions be enjoined. On November 2, 
2009, the CNMI government filed an amended complaint, alleging 
violations of the Administrative Procedure Act, which generally 
provide for notice and public comment before new rules can go into 
effect, and seeking a preliminary injunction with regard to the 
CNMI-only transitional worker classification (CW classification) 
interim final rule. On November 25, 2009, the court issued several 
rulings in that lawsuit. First, the court agreed with the United 
States that the provisions of the CNRA extending U.S. immigration 
law to the CNMI beginning on November 28, 2009 do not violate the 
Covenant between the United States and the CNMI or the U.S. 
Constitution. The court dismissed the two counts of the CNMI's 
complaint alleging these violations. CNMI v. United States, 670 F. 
Supp. 2d 65 (D.D.C. 2009). The transition to U.S. immigration law 
took place on November 28, 2009 as scheduled. The court entered the 
requested preliminary injunction and enjoined the CNMI-only 
transitional worker interim final rule. Id. On June 21, 2010, the 
district court entered a minute order staying proceedings pending 
the promulgation of the CNMI-only transitional worker final rule.
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    The interim rule set forth the requirements and procedures for 
nonimmigrant status within the transitional worker classification. 
Specifically, the interim rule included provisions to:
     Classify transitional workers using an admission code of 
CW-1 for principal transitional workers and CW-2 for dependents;
     Allow aliens who were previously admitted to the CNMI 
under the CNMI nonresident worker permit programs to be granted CW 
status by USCIS;
     Allow workers, who would not be eligible for any other 
lawful status under the INA, to enter or remain in the CNMI as 
transitional workers during the transition period; and
     Establish eligibility criteria, limitations and parameters 
for the CW-1 nonimmigrant program as required by or consistent with an 
interpretation of the applicable provisions of section 702(a) of the 
CNRA, and prescribe procedural requirements for petitioners.

See 74 FR 55094.

    DHS has complied with the injunction by declining to accept any 
petition for CW classification under the interim rule or otherwise to 
implement the interim rule. The interim rule has been incorporated into 
the Code of Federal Regulations. See 8 CFR 214.2(w).

III. Final Rule

    This final rule provides the requirements to obtain status as a 
transitional worker in the CNMI. The final rule adopts most of the 
changes set forth in the interim rule. The rationale for the interim 
rule and the reasoning provided in the preamble to the interim rule 
remain valid with respect to these regulatory amendments, and DHS 
adopts such reasoning in support of the promulgation of this final 
rule.
    In response to the public comments received on the interim final 
rule, DHS has modified some provisions for the final rule. These 
changes are explained in detail in the summary of comments and 
responses and summarized below:
    1. The final rule clarifies the authority and process by which 
applicants in the CNMI can be granted CW-1 or CW-2 status in the CNMI 
without having to travel abroad to obtain a nonimmigrant visa. 
Specifically, it clarifies that DHS may grant a section 
212(d)(3)(A)(ii) waiver to an alien who is physically present in the 
CNMI and approved for an initial grant of CW-1 transitional worker 
status or CW-2 dependent status in the CNMI. Such aliens will be 
inadmissible under section 212(a)(7)(B)(i)(II) of the INA for lack of a 
CW-1 or CW-2 transitional worker visa issued by the U.S. Department of 
State (DOS) and also may (unless changing to CW-1 status from another 
nonimmigrant status under the INA) be aliens present in the United 
States without admission or parole and thus inadmissible under section 
212(a)(6)(A)(i) of the INA. This final rule permits a waiver of those 
two grounds of inadmissibility for aliens lawfully present in the CNMI 
as defined by new 8 CFR 214.2(w)(1)(v) with appropriate documentation. 
DHS will determine, on a case-by-case basis, whether an alien is 
eligible for the waiver. The alien will not have to file a specific 
form or fee in order to request a waiver of these two grounds of 
inadmissibility. See new 8 CFR 214.2(w)(24).
    2. The final rule describes how beneficiaries of approved employer 
petitions and their dependents (spouses and minor children) may obtain 
CW status. Principal beneficiaries and their dependents outside the 
CNMI will be instructed to apply for a visa. For principal 
beneficiaries within the CNMI, the petition itself (including the 
biometrics provided under new 8 CFR 214.2(w)(15)) serves as the 
application for CW-1 status. Dependents present in the CNMI may apply 
for CW-2 dependent status on Form I-539 (or such alternative form as 
USCIS may designate) in accordance with the form instructions. CW-2 
status may not be approved until approval of the CW-1 petition. A 
spouse or child applying for CW-2 status on Form I-539 (or such 
alternative form as USCIS may designate) may apply for a waiver of the 
filing fee based upon inability to pay as provided by 8 CFR 103.7(c). 
See new 8 CFR 214.2(w)(14).
    3. The interim rule provided that an alien with CW-1 or CW-2 status 
who enters or attempts to enter, travels or attempts to travel to any 
other part of the United States without the appropriate visa or visa 
waiver, or who violates the conditions of nonimmigrant stay applicable 
to any such authorized status in any other part of the United States, 
will be deemed to have violated CW-1 or CW-2 status. This final rule 
retains the travel restriction but provides a limited exception. 
Philippine nationals who hold CW status or intend to apply for 
admission to the CNMI in CW status may travel, if otherwise 
permissible, between the CNMI and the Philippines through Guam so long 
as the travel is on a direct Guam transit itinerary. Such direct Guam 
transit will not be considered a violation of the conditions of the 
Philippine national's CW status. See new 8 CFR 214.2(w)(22)(iii).
    4. The interim final rule provided for attestations by petitioning 
employers and biometric collection from beneficiaries in the CNMI. This 
final rule strengthens the terms of the attestation that the employer 
must sign with respect to its compliance with the required terms and 
conditions of employment and compliance with applicable laws. It 
requires an employer to attest that it is an eligible employer and will 
continue to comply with the requirements for an eligible employer until 
such time as the employer no longer employs the worker. See new 8 CFR 
214.2(w)(6)(ii)(D). The final rule is also more specific as to the 
information that may be required from beneficiaries regarding 
immigration status and the need to pay a biometrics fee with each 
application (unless the beneficiary is under 14 years of age, or is age 
79 or older). See new 8 CFR 214.2(w)(6)(ii) and (15).
    5. The interim final rule provided for need-based waivers of 
petition filing fees. The final rule also provides for a need-based 
waiver of the filing fee for dependent family members seeking CW-2 
status in the CNMI. See new 8

[[Page 55504]]

CFR 103.7(c)(3)(iii). The fee provision is also technically revised to 
conform the rule to 8 CFR 103.7, as reorganized in the DHS final rule, 
U.S. Citizenship and Immigration Services Fee Schedule, 75 FR 58961 
(Sept. 24, 2010).
    6. Consistent with the CNRA, the interim final rule provided for a 
maximum number of CW-1 visas of 22,417 for the time period between the 
rule's effective date and September 30, 2010. The numerical limitation 
for that period of time is now moot, so the limitation is revised to 
extend the 22,417 number to fiscal year 2011 (beginning October 1, 
2010). The final rule reduces the number of CW visas by one (to 22,416) 
for the subsequent fiscal year, fiscal year 2012 beginning October 1, 
2011. Unused numbers will not carry over from one fiscal year to the 
next. See new 8 CFR 214.2(w)(1)(viii).
    7. The final rule clarifies the impact of a pending petition or 
application by providing that a foreign national with CW-1 status may 
under certain circumstances work for a prospective new employer after 
the prospective new employer files a Form I-129CW petition on the 
employee's behalf. See new 8 CFR 214.2(w)(7)(iii) and 274a.12(b)(23). 
The final rule also provides that a lawfully present, work authorized 
and employed beneficiary of a CW-1 petition filed on or before November 
27, 2011 applying for a grant of status in the CNMI may lawfully 
continue the employment in the CNMI until a decision is made on the 
petition. See new 8 CFR 274a.12(b)(23). The final rule makes a 
conforming clarification to the definition of ``lawfully present in the 
CNMI'' to ensure that aliens remain eligible for CW status after 
November 27, 2011 based upon an application for CW status filed before 
that date. See new 8 CFR 214.2(w)(1)(v)(A).
    8. The final rule clarifies petition validity and admission 
periods. A petition is valid for admission to the CNMI in CW status 
during its validity period, and up to ten days before the start of the 
validity period. See new 8 CFR 214.2(w)(16). Admission to the CNMI and 
authorized employment in CW status is limited to the petition validity 
period, not to exceed one year. See new 8 CFR 214.2(w)(13). CW status 
expires ten days after the end of the petition's validity period, when 
the alien violates his or her status (or, in the case of a status 
violation caused solely by termination of employment, 30 days after the 
date of termination if a new employer files a nonfrivolous petition 
within that 30-day period), or at the end of the transitional worker 
program, whichever is earlier. See new 8 CFR 214.2(w)(7)(v) and 
(w)(23). The transitional worker program will terminate either upon the 
end of the transition period or, if the transitional worker provisions 
of the CNRA are extended by the Secretary of Labor pursuant to 48 
U.S.C. 1806(d)(5), at the end of that extended period, whichever is 
later. See new 8 CFR 214.2(w)(23).
    9. The final rule clarifies that a biometric services fee may be 
collected for each beneficiary of a CW-1 petition and or the spouse or 
children applying for extension or change of status, in addition to the 
biometrics fee paid at the time of the initial request. The final rule 
also specifies that a biometric services fee may be required for each 
beneficiary for which CW-1 status is being requested and for each CW-2 
on the application. Further, a biometrics services fee will be required 
in order to cover the costs of conducting the necessary background 
checks and for identity verification even when the biometrics of the 
applicant of beneficiary is stored and reused and not collected again 
in connection with the new request. See new 8 CFR 214.2(w)(15). This 
change is consistent with biometrics collection policies in other 
programs managed by USCIS and does not represent a substantive change.
    10. The final rule makes a number of other minor clarifying and 
updating changes, such as removing references to petitions filed before 
the transition program effective date since no such petitions could 
have been filed, clarifying the definition of ``transition period'' to 
extend the time period of the CW program to conform to any extension by 
the U.S. Secretary of Labor, and updating the definition of ``lawfully 
present in the CNMI.'' See, e.g., new 8 CFR 214.2(w)(1)(v) and (xi).
    11. The interim final rule proposed that denied petitions may be 
appealed to the USCIS Administrative Appeals Office. See new 8 CFR 
214.2 (w)(21). The final rule adds the phrase ``or any successor body'' 
to the provision describing where a denial may be appealed.

IV. Public Comments Received on the Interim Final Rule

    During the initial and extended comment periods, DHS received 146 
comments from a broad spectrum of individuals and organizations, 
including the CNMI Governor's Office, the Saipan Chamber of Commerce, a 
former Senator of the CNMI, and other interested organizations and 
individuals. DHS considered the comments received and all other 
material contained in the docket in preparing this final rule. This 
final rule does not address comments that were beyond the scope of the 
interim final rule, including those seeking changes to United States 
statutes, changes to regulations or petitions (outside the scope of the 
interim rule), or changes to the procedures of other DHS components or 
agencies. The final rule also does not address comments on the CNMI's 
government functions. All comments and other docket material are 
available for viewing at the Federal Docket Management System (FDMS) at 
https://www.regulations.gov, docket number USCIS-2008-0038.

A. Summary of Comments

    Of the 146 comments received, four comments supported the 
provisions in the rule as a whole and welcomed the efforts of DHS to 
minimize, to the greatest extent practicable, potential adverse 
economic and fiscal effects of federalization and to maximize the 
Commonwealth's potential for future economic and business growth.
    Most commenters expressed concerns over specific provisions in the 
interim final rule, such as: The transitional worker eligibility 
requirements; the exclusion of certain occupational categories; the 
transitional worker classification's allocation system; the petitioning 
requirements; the ability to acquire transitional worker status in the 
CNMI without a visa; the requirement to obtain a visa to re-enter the 
CNMI; and the length of the transition period. Several commenters 
suggested limiting the transitional worker classification to foreign 
workers already in the CNMI. Some opposed the blanket exclusion of 
certain occupational categories and stated that any exclusion would 
negatively impact the CNMI economy. Other commenters stated that DHS 
did not meet the requirement to establish and enforce a transitional 
worker permit system that provides for the allocation and reduction of 
workers. Many opposed the petitioning requirement and fees by 
suggesting the automatic conversion of all CNMI permits into 
transitional worker status. Others opposed the travel restrictions on 
the transitional worker classification and the visa requirement to re-
enter the CNMI. Some suggested that DHS permit travel in the CW status, 
on the CNMI permit, or issue a waiver of the visa requirement.

B. General Comments

    The comments received and DHS responses are organized by subject 
area and addressed below.
    Sixty-one commenters expressed concern, supported, or offered 
general suggestions regarding the transitional worker rule.

[[Page 55505]]

1. System of Permits Versus System of Status
    Two commenters stated that the CNRA did not authorize DHS to create 
a new status for workers. They argued that transitional worker status 
is not necessary because DHS only needs to control worker permits. The 
commenters suggested that the statute provides no basis for 
transforming the system of ``permits'' for employers into a system of 
``status'' for alien workers. They argued that the term ``permit'' 
applies only to an employer and is not synonymous with the term ``CW 
status'' which applies only to a worker. The commenters added that DHS 
created a ``status'' for workers instead of following Congressional 
intent to create a ``permit'' for employers. The commenters wrote that, 
by doing so, DHS intended to restrict workers from moving from 
employment under Commonwealth-approved contracts to Federal permit-
approved employment and back again during the first two years of the 
transition program. The commenters added that the statutory provision 
allowing ``registration'' of aliens present in the Commonwealth did not 
authorize DHS to create a separate ``status'' for persons so 
registered. See 48 U.S.C. 1806(e)(3).
    DHS interprets the CNRA to authorize DHS to administer the permit 
system in a manner deemed most reasonable and efficient. See 48 U.S.C. 
1806(d)(2). The CNRA also authorized DHS, in its discretion, to 
implement a registration program to aid in the federalization process. 
Id. at 1806(e)(3). The CNRA did not state that the Federal permit 
system should mirror the current CNMI permit system under its prior 
immigration laws. It is not reasonable for DHS to administer a permit 
system outside of the immigration laws of the United States. DHS 
interprets the CNRA to allow it to establish a classification within 
its existing system. While the CNMI's formerly applicable immigration 
law refers to a system of ``permits'' and Federal immigration law 
refers to ``status,'' both terms apply to the alien's period of stay 
and conditions of such stay. DHS believes it is reasonable to interpret 
that the CNMI permit is comparable to the federal immigration status 
because they both set conditions for the admission of the foreign 
workers. As such, DHS implemented a transitional worker program to be 
consistent with federal immigration laws, including all fees, petition 
and application procedures. Therefore, the final rule requires that 
employers petition for transitional workers and allows employees to 
change employers under INA section 248 and obtain lawful permanent 
status, if eligible, under INA section 245. See new 8 CFR 214.2(w)(5) 
and (7). The CNMI permit system did not offer such flexibility. While 
DHS did not use the CNRA's registration provision in developing the 
rule, it provides a transitional program as mandated by the CNRA within 
the parameters of the existing Federal system.
2. Immediate Implementation
    Four out of 61 commenters suggested that the transitional worker 
rule be immediately implemented to avoid adverse effects on the CNMI's 
fragile economy. One of these commenters supported the rule as a whole 
and welcomed the efforts of DHS to provide for an orderly transition by 
addressing security, foreign labor, illegal activity, and the promotion 
of U.S. citizen hiring. Another commenter requested that the rule be 
finalized only after issuance of the congressionally mandated U.S. 
Government Accountability Office (GAO) report.\5\
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    \5\ The GAO report was released on May 7, 2010. See GAO, 
Commonwealth of the Northern Mariana Islands, DHS Should Finalize 
Regulations to Implement Federal Immigration Law, No. GAO-10-553 
(May 7, 2010), available at https://www.go.gov/new.items/d10553.pdf.
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    DHS appreciates the support of its efforts and the concerns 
expressed about minimizing the effect of the transition on the CNMI 
economy. Consistent with the statement of congressional intent in the 
CNRA, this final rule attempts to avoid adverse effects to the CNMI 
economy by providing as much flexibility as possible in administering 
the CW classification. See 48 U.S.C. 1806 note. DHS continues to work 
with other Federal agencies to coordinate implementation of the CNRA. 
Such coordination will extend to the statutorily mandated reports to 
Congress, including the GAO Report (GAO-10-553) released on May 7, 
2010, and the recommendations contained therein. Accordingly, DHS has 
not adopted the suggestions that the final rule be immediately 
implemented or delayed, and this rule implements the CW classification.
3. Lawful Permanent Residence
    Forty-one out of 61 commenters suggested that, to support a stable 
work force, foreign workers in the CNMI should be given lawful 
permanent residence, some other improved immigration status, or a 
pathway to U.S. citizenship. Many of the commenters suggested such 
status for guest workers who have worked in the CNMI for years. Others 
suggested lawful permanent residence, some other improved immigration 
status, or a pathway to U.S. citizenship for all foreign workers, 
regardless of their time in the CNMI. Some suggested such status for 
long-term guest workers with U.S.-born children or families within the 
CNMI.
    Three of the commenters suggested that DHS create and grant a 
unique permanent status (Lawful Permanent Resident (LPR)-CNMI Only) to 
foreign workers who have been living in the CNMI for 3 years on the 
enactment date of the CNRA (May 8, 2008), and who are otherwise 
admissible. One commenter suggested a scoring system to decide how to 
grant permanent residence. One suggested a permanent CNMI-only H-2 
program.
    While these suggestions fall outside the scope of this regulation, 
it is important to note that the CNRA authorizes the Secretary of 
Homeland Security to create only a nonimmigrant classification in the 
Commonwealth during the transition period. See 48 U.S.C. 1806(d). In 
compliance with the CNRA, DHS is establishing a nonpermanent 
classification, available only during the transition period (unless 
extended by the Secretary of Labor), to provide a guest worker with 
lawful nonimmigrant status. See new 8 CFR 214.2(w)(1)(xi). The CNRA 
does not provide DHS with authority to create a permanent immigration 
path specifically for the CNMI, nor does any other law. Under the CNRA, 
a transitional worker may adjust to lawful permanent resident status 
throughout the transition period, if eligible through another 
immigrant-based petition or application under the provisions of the 
INA. See 48 U.S.C. 1806(d)(1). For these reasons, DHS is unable to 
accept the suggestions of these commenters.
4. Immigration Law
    One commenter expressed concern regarding the complexity of the 
immigration laws and the effect of such complex laws on small 
businesses. DHS understands the concerns of the commenter and agrees 
that immigration law is complex. Nonetheless, DHS has no power to 
change the immigration laws and is unable to make any changes in the 
rule to address this commenter's concerns. DHS understands that the 
transition of the CNMI to the U.S. immigration system offers both 
benefits and challenges to the CNMI population. This rule promulgates 
provisions governing CW status consistent with other INA nonimmigrant 
categories. The rule attempts to incorporate standard elements from 
other nonimmigrant categories to maintain regulatory consistency. 
Employers wishing to

[[Page 55506]]

employ foreign workers must abide by all rules set forth in the Code of 
Federal Regulations. USCIS has conducted extensive outreach to explain 
the complexities of U.S. immigration law to the community, private 
sector employers, and CNMI governmental officials, including numerous 
meetings and information sessions in Saipan, Tinian and Rota with 
stakeholder groups and the general public, as well as posting 
informational materials on the USCIS Web site on a variety of CNMI-
related topics. Among other things, in October 2009, USCIS conducted 
outreach on DHS regulations initially implementing the CNRA. In 
December 2009, USCIS again conducted outreach to employers and the 
public, focusing on employment eligibility verification (Form I-9) 
requirements. In January 2011, DHS conducted outreach on Saipan for the 
December 20, 2010 final rule, E-2 Nonimmigrant Status for Aliens in the 
Commonwealth of the Northern Mariana Islands With Long-Term Investor 
Status, with community based organizations, CNMI government 
representatives and local business leaders. USCIS plans to conduct 
similar outreach efforts for this final rule. In addition to CNMI-
specific materials, USCIS also provides helpful explanations of U.S. 
immigration law on its Web site and provides a dedicated employer 
information telephone line. Thus DHS believes that it has taken 
reasonable and substantial action to mitigate any adverse impacts that 
implementation of the CNRA and the CW classification may entail with 
respect to availability of information.
5. Labor Law
    Five out of 61 commenters expressed concerns regarding the rule's 
effect on labor laws and the CNMI permitting system. One of these 
commenters stated that the rule violates the contract workers' rights. 
Four of the commenters stated that the rule sets up a labor permitting 
system that fails to address the many issues that have plagued the CNMI 
nonimmigrant guest workers by eliminating all of the existing labor 
protections under the previous CNMI immigration system. They added that 
the rule subjects foreign workers to abuses that currently affect the 
H-2 visa program and assert that such past abuses were eliminated from 
the CNMI program. Two of these commenters believe that, given such 
progress under CNMI law, DHS should support and not seek to eliminate 
the Commonwealth's guest worker program. The commenters argued that the 
interim rule failed to provide a reasonable mechanism to facilitate any 
cooperation between the two systems or any practical means for 
Commonwealth enforcement of its labor laws in connection with the 
Federal system.
    The CNRA requires the discontinuation of the CNMI's previous 
immigration system. As required by the CNRA, this final rule creates a 
new transitional worker classification and recognizes CNMI-issued work 
permits during the first two years of the transition period. See new 8 
CFR 214.2(w)(1)(v). Foreign workers granted work authorization from the 
CNMI government will continue to be work authorized under U.S. 
immigration law for the duration of the permit's validity or up to two 
years after the transition program effective date, whichever is 
shorter. See 48 U.S.C. 1806(e)(2). This employment authorization under 
Federal immigration law affects only the basic privilege to work in the 
CNMI. Employers in the CNMI remain responsible for complying with other 
applicable requirements of law, such as wage and hour and occupational 
safety requirements. DHS assumes that the Commonwealth will continue to 
enforce its local labor laws to the extent that they are not preempted 
by Federal immigration law. Nevertheless, DHS cannot accept the 
commenters' suggestion to replicate or rely on the authorities and 
processes of the CNMI with respect to work authorization of aliens for 
establishing and administering the CW classification. Though these 
commenters indicate that the pre-November 28, 2009 system was a 
preferable immigration and labor policy to federalization, Congress 
eliminated that system and required that DHS implement federal 
immigration law in the CNMI. See section 701(a) of the CNRA, 48 U.S.C. 
1806 note. Perpetuating CNMI authorities, even if it were lawful to do 
so under the CNRA, would be contrary to the letter and spirit of the 
CNRA that Federal transition programs and authority be established as 
promptly as possible in the CNMI. Id.
    This final rule incorporates CNMI labor law protections in its 
description of an eligible employer. See new 8 CFR 214.2(w)(4). The 
rule provides that, in order to be eligible to petition for a 
transitional worker, an employer must offer terms and conditions of 
employment consistent with the nature of the occupation or industry in 
the CNMI. Id. It also provides that employers must comply with all U.S. 
Federal and Commonwealth requirements relating to employment, including 
but not limited to nondiscrimination, occupational safety, and minimum 
wage. Id. The reference to Commonwealth requirements is intended only 
to include those aspects of Commonwealth law that are not immigration 
law. CNMI law relating to employment authorization of aliens is 
immigration law that has been superseded by the CNRA.
    DHS understands the concern of commenters about the possible 
revival of past worker abuses that occurred in the CNMI. Like workers 
in other parts of the United States, all employees who work in the CNMI 
are protected by a variety of Federal civil rights, labor, and 
workplace safety laws that are enforced by the U.S. Department of 
Justice (U.S. DOJ) and the U.S. Department of Labor (U.S. DOL).
6. Adverse Effects
    Two commenters suggested revising the rule to minimize the serious 
adverse effect and increased burdens. The commenters did not address 
any specific actions to take or what effects needed mitigation. DHS 
therefore has not changed the rule in response to this comment. The 
interim final rule was drafted consistent with expressed Congressional 
intent to minimize the potential adverse economic and fiscal effects of 
the federalization of the CNMI's immigration program. DHS is aware that 
the CNMI is experiencing a severe economic downturn during the current 
decline in the world economy. DHS formulated this rule to be as 
inclusive as it reasonably could within the parameters of the statute. 
Moreover, DHS has made additional changes in the final rule to that 
end. This final rule provides for an initial grant of CW-1 transitional 
worker status or CW-2 dependent status in the CNMI without having to 
travel abroad to obtain a nonimmigrant visa, for need-based waivers of 
the filing fee for dependent family members seeking CW-2 status in the 
CNMI, and, as discussed in more detail below, for a limited travel 
exception, where appropriate, to the otherwise applicable bar on travel 
elsewhere in the United States by aliens in CW status, for Philippine 
nationals who hold CW status and travel between the CNMI and the 
Philippines directly through Guam. Thus, DHS believes that it has 
minimized adverse effects and burdens caused by this rule.
7. DOI Report
    Five commenters offered suggestions regarding the Department of the 
Interior's (DOI) Report on the Alien Worker Population in the 
Commonwealth of the Northern Mariana Islands (the ``DOI Report'').\6\ 
They

[[Page 55507]]

suggested that the Report to Congress should contain a joint 
recommendation (from DOI, DHS and the CNMI Governor) to allow guest 
workers to apply for enhanced status. One of these commenters stated 
such recommendations to improve immigration status for long-term alien 
workers can be addressed during the transition period but no later than 
the April 2010 report. The commenter was concerned that neither Federal 
agencies nor the CNMI governor reached a decision.
---------------------------------------------------------------------------

    \6\ See Secretary of the Interior, Report on the Alien Worker 
Population in the CNMI (April 2010), available at http:/www.doi.gov/oia/reports/042810_FINAL_CNMI_Report_pdf.
---------------------------------------------------------------------------

    The DOI Report was released in April 2010. DHS continues to work 
together with other Federal agencies to coordinate the implementation 
of the CNRA provisions in the Commonwealth. Such coordination extended 
to the statutorily mandated reports to Congress and any recommendations 
contained therein.

C. Specific Comments

    The specific comments are organized by subject area and addressed 
below.
1. CNMI-Only Transitional Workers: CW Eligibility Requirements
    Twenty-six commenters expressed concern or offered suggestions 
regarding the rule's eligibility requirements.
(a) Foreign Workers in the CNMI
    Five out of 26 commenters suggested that transitional worker status 
should be limited to guest workers present in the CNMI and should not 
be available to those abroad. Two of these commenters suggested that 
the rule intends to admit new foreign workers to the Commonwealth 
without regard to economic impact or regulatory effect on the 
Commonwealth. The commenters suggested that the likely effect will be 
to encourage the entry of very low-wage, unskilled workers, who would 
displace experienced on-island foreign workers, resulting in 
unemployment and incentives to fall into illegal status.
    Eighteen of 26 commenters suggested that the transitional worker 
program provide a hiring preference for foreign workers currently in 
the CNMI. Three of these commenters suggested that DHS place a 
numerical limitation on transitional workers coming from abroad in 
order to provide foreign workers in the CNMI with the hiring 
preference. Six of these commenters suggested that DHS conduct a 
registration, as mentioned in the CNRA, of alien workers present in the 
CNMI to ensure that any jobs that need to be performed by the alien 
workforce would first be offered to on-island workers. Another 
commenter suggested that DHS conduct a registration to determine the 
number of guest workers in the CNMI and their corresponding job 
categories. The commenter wrote that the data on the available 
workforce may deter employers from hiring abroad. One commenter 
suggested a hiring preference for Filipino foreign workers in the CNMI. 
Another suggested that the transitional worker program provide a hiring 
preference for guest workers present in the CNMI for over 5 years.
    The transitional worker program will be available to two groups of 
aliens in general: (1) Those who are present in the CNMI and (2) those 
who are abroad. See new 8 CFR 214.2(w)(2). In the CNRA, Congress 
expressed its intent that the transitional worker program provide for 
an orderly transition from the CNMI permit system to the U.S. Federal 
system while minimizing potential adverse economic and fiscal effects. 
See 48 U.S.C. 1806 note. Consistent with that intent, this rule does 
not limit access to workers already present in the CNMI. It provides 
CNMI employers with the ability and flexibility to maintain their 
existing foreign workers for current business needs. It also preserves 
employer access to new workers in order to accommodate new economic 
opportunities. See new 8 CFR 214.2(w)(2).
    While information on guest workers and their current job categories 
may be helpful, DHS does not plan to limit the availability of 
transitional workers to guest workers currently on the islands. The 
CNRA requires that the allocation of transitional worker visas be 
reduced to zero by the end of the transition period, but it does not 
limit eligibility for the visa to foreign workers in the CNMI. See 48 
U.S.C. 1806(d)(2). DHS believes that limiting CW-1 issuance to foreign 
workers already present in the CNMI or to Filipino foreign workers in 
the CNMI, would run counter to the CNRA's requirement to mitigate harm 
to the Commonwealth's economy. This rule provides access to foreign 
workers abroad to preserve the CNMI's ability to meet future demands 
for labor. DHS, in consultation with other Federal agencies, will 
consider registration as it continues to evaluate the CNMI's economic 
needs. Accordingly, no changes were made to the final rule as a result 
of these comments.
(b) Ineligibility for Another INA Classification
    Three commenters expressed concern regarding the rule's requirement 
that the transitional worker classification be limited to nonimmigrant 
workers who would not otherwise be eligible for another INA 
classification. Two of these commenters argued that such a requirement 
is a misinterpretation of the law and will deprive the Commonwealth of 
skilled workers. The commenters stated that the CNRA's intent is to 
preserve a choice: Workers may choose either transitional worker status 
or another nonimmigrant status. All three commenters were concerned 
that certain aliens eligible for an INA-based status may only be 
eligible for transitional worker status because employers would be 
unable to petition for other INA classifications due to financial 
difficulties. The commenters stated that they would be unable to meet 
the income requirements for other INA classifications.
    DHS disagrees with these comments. The CNRA requires that the 
transitional worker classification be used only for foreign workers 
``who would not otherwise be eligible for admission under the [INA].'' 
48 U.S.C. 1806(d)(2). This final rule states that guest workers 
eligible for other INA classifications at the time of a petition for CW 
status must apply for such status. See new 8 CFR 214.2(w)(2)(vi). This 
requirement stems directly from the CNRA requirement. See 48 U.S.C. 
1806(d)(2). CNMI employers may use the CW classification during the 
five-year transition period while workers and employers seek to satisfy 
requirements, such as any necessary professional licenses or 
educational degrees, for other employment-based status under the INA. 
DHS is implementing this provision in as flexible a manner as possible. 
For example, this rule requires only an attestation that the employer 
does not reasonably believe the position to qualify for another INA 
nonimmigrant worker classification, as opposed to requiring the 
employer to petition for other INA classifications before seeking CW 
status. See new 8 CFR 214.2(w)(6)(ii)(G).
2. Employers
    Fourteen commenters offered suggestions, or opposed the rule's 
requirements, for employers and the proposed exclusion of certain 
occupational categories.
(a) Terms, Conditions of Employment, and Transfers
    Two commenters stated that the rule's provision with respect to 
terms and conditions of employment and transfers will likely lead to 
abuses. The commenters stated that the DHS rule requires only that an 
employer ``[o]ffer terms and conditions of employment

[[Page 55508]]

which are consistent with the nature of the petitioner's business and 
the nature of the occupation, activity, and industry in the CNMI.'' See 
8 CFR 214.2(w)(4)(iii). They added that employers are not required to 
attest that they have met this condition. Another commenter suggested 
that all of the Commonwealth's requirements protecting workers could be 
undone by contracts that comply fully with the DHS requirement. The 
commenter then suggested that the DHS rule cannot ``prevent adverse 
effects on wages and working conditions'' as required by 48 U.S.C. 
1806(d)(2). The commenter added that the DHS interim rule provides no 
protection for a nonimmigrant resident alien who is the subject of a 
petition that is denied, perhaps due to the negligence of an employer. 
The commenter further stated that the rule would be more restrictive 
than the Commonwealth system for transfers.
    DHS agrees with the comments that the rule would be strengthened by 
further incorporating the terms and conditions of an employment 
requirement into the attestation requirement for employers. DHS has 
added a requirement that the employer attest that it will comply with 
the requirements for an eligible employer, which include offering 
appropriate terms and conditions for the intended CW-1 employment. See 
new 8 CFR 214.2(w)(6)(ii)(D). With respect to the comments expressing a 
preference for the Commonwealth's requirements protecting workers, a 
previous discussion in this preamble addressed this subject and 
explained why DHS cannot adopt these comments. Many of these comments 
deal with employment, labor, and safety laws that exceed the scope of 
this rule. By making the procedures for employers as clear and 
transparent as reasonably possible in order to implement the 
transitional worker provisions of the CNRA, including promulgation of a 
specific form for this petition (the I-129CW Form), the final rule 
provides protections to workers from employer negligence or error. 
However, it must be understood that these CNRA provisions are employer-
based, and have been implemented accordingly. The employer, not the 
employee, files the petition, and it is the employer's discretionary 
choice whether or not to do so. This rule provides no steps for 
employees to take in order to keep their status in the CNMI. See new 8 
CFR 214.2(w)(5). Thus no additional changes are made in response to 
these comments.
(b) Blanket Exclusion of Certain Occupational Categories
    The interim final rule did not exclude any occupational categories 
from eligibility for CW workers, but DHS indicated that it was 
considering excluding dancing, domestic workers, and hospitality 
workers based upon human trafficking concerns, and specifically invited 
comment on this subject. Six out of 14 commenters opposed a potential 
final rule excluding certain occupational categories in order to combat 
human trafficking and sexual exploitation. These commenters stated that 
prohibiting a particular occupation will not effectively combat human 
trafficking. Some argued that the rule hurts the CNMI's successful 
efforts to stop trafficking under its 2007 reform law. Others stated 
that the exclusion of the proposed categories will not help deter the 
worker exploitation problem because exploitation occurs in a wide range 
of occupational categories and a foreign worker can technically enter 
any of those occupational categories. The commenters added that a 
blanket exclusion of any occupational category or legitimate business 
that supports the CNMI economy runs counter to the CNRA's stated 
purpose of providing flexibility to maintain existing businesses and 
expanding tourism and economic development in the CNMI. They also 
argued that the CNRA does not provide statutory authority for the 
blanket exclusion and that a blanket exclusion is inappropriate and 
will cause further economic harm.
    Two other commenters added that the exclusion of occupations that 
serve the tourist industry is not justified and will cause substantial 
harm. They stated that the proposed exclusion is based on a concern 
regarding abuse against women and, as such, is discriminatory because 
it is not gender neutral. The commenters noted that such restrictions 
are unnecessary because prostitution is a crime under CNMI law.
    Commenters suggested that DHS offer protection from exploitation 
through a system of employment regulation combined with enforcement of 
the laws intended to protect guest workers regardless of occupational 
category. The commenters suggested that DHS conduct site visits and 
that any exclusion or employer debarment be based on a specific finding 
indicating that a particular business is violating a law, not based on 
evidence of past abuses. The commenters argued that the rule's 
requirement that employers must be engaged in legitimate business is 
not the appropriate regulatory means to address the DHS concern.
    DHS agrees that exploitation can occur in any occupational 
category. The proposed exclusions were supported by the findings of a 
GAO report and Congressional hearings, which indicated that the 
excluded occupational categories have been prone to widespread abuse. 
U.S. Gov't Accountability Office, GAO-08-791, Commonwealth of the 
Northern Mariana Islands, Managing Potential Impact of Applying U.S. 
Immigration Law requires Coordinated Federal Decisions and Additional 
Data (2008); see, e.g., Conditions in the Commonwealth of the Northern 
Mariana Islands: Hearing before the S. Comm. on Energy and Natural 
Resources, 110th Cong. 50 (2007) (testimony of Lauri Bennett Ogumoro 
and Sister Mary Stella Mangona) (2007 Senate Hearing). In addition, DHS 
notes that the proposed exclusion of certain tourist industry workers 
was gender neutral and would be applied in a gender neutral manner. 
Nevertheless, DHS agrees that a blanket exclusion of certain 
occupations may negatively impact the CNMI's economy. This final rule 
does not include a blanket exclusion of any specific occupational 
category, but consistent with the CNRA's requirement for business 
employers, retains the requirement that all employers must be engaged 
in a legitimate business. See 48 U.S.C. 1806(d)(5)(A); new 8 CFR 
214.2(w)(4).
(c) Exclusion of Domestic Workers
    Five commenters suggested that the rule should allow domestic 
workers as transitional workers. One of these commenters disagreed with 
the requirement that only businesses will be allowed to petition for 
domestic workers as CW workers. That commenter also argued that 
individual households should be allowed to employ domestic workers 
directly and the renewal of the contracts should be based on the proper 
tax filings of the workers.
    Two additional commenters argued that the definition of a 
``legitimate business'' cannot be used to bar households from employing 
caregivers. The commenters argued that the determination as to 
``legitimate business'' only relates to the task of determining whether 
an adequate number of workers are available. As such, they stated that 
domestic workers are currently entitled to work until the transition 
period ends. The commenters further stated that DHS may not 
``disqualify an entire business on the basis of `illegal' activity, 
except on the basis of conviction of a crime, and may not impute the 
crime of an officer to the entire business without due process.''

[[Page 55509]]

They additionally asserted that since DHS seeks to disqualify a 
business if it engages ``directly or indirectly in any activity that is 
illegal under Federal or CNMI law,'' the regulations should be clear 
that only a conviction of a crime can be the basis for this 
disqualification.
    The CNRA transitional worker provisions were intended to address 
the needs of legitimate businesses. See 48 U.S.C. 1806(d)(5)(A). DHS 
believes that the rule's provision regarding legitimate businesses 
accords with the CNRA and is lawful and appropriate. While the rule 
does not prohibit domestic workers from obtaining CW status, for their 
protection and for the legitimacy of the petition process, the rule 
reasonably requires that domestic workers be channeled through an 
established, legitimate business operation. See new 8 CFR 214.2(w)(4). 
The commenters who wrote that domestic workers are currently entitled 
to work until the transition period ends are incorrect. Workers 
authorized by the CNMI before November 28, 2009 are authorized to work 
for up to two years or the date of expiration of their CNMI-issued 
permit, whichever occurs first--not for the entire transition period. 
With regard to the comment suggesting the level of criminal activity or 
proof that should render a petitioning employer ineligible, the CNRA 
does not require a conviction for the direct or indirect illegal 
activity provision to be applied. Therefore, DHS has retained that 
provision unchanged in the final rule.
    For the purposes of the transitional worker program, the final rule 
states that a legitimate business is 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 and meets applicable legal requirements for 
doing business in the CNMI. See new 8 CFR 214.2(w)(1)(vi). The rule is 
also consistent with the definition of ``doing business'' in other 
classifications under the INA. See 8 CFR 204.5(j)(2). As such, the 
final rule states that a petitioner is ``doing business'' if engaged in 
the regular, systematic, and continuous provision of goods or services. 
See new 8 CFR 214.2(w)(1)(ii). An individual employing a household 
worker is not engaged in the systematic provision of goods or services 
and is not ``doing business'' for the purpose of the transitional 
worker program. No change was made as a result of this comment.
    Additionally, a stated purpose of the CNRA is to combat human 
trafficking and other widespread abuse. See 48 U.S.C. 1806 note. 
Congressional hearings held prior to passage of the CNRA focused on the 
issue of domestic workers in the CNMI. See, e.g., 2007 Senate Hearing. 
Congress was provided with evidence that directly employed domestic 
workers have been subject to widespread abuse and have been victims of 
human trafficking. Id. Allowing only domestic service companies to file 
for CW workers is consistent with the decision to not exclude any 
specific occupational categories and to consider petitions by 
legitimate businesses on a case by case basis. Therefore, domestic 
workers will be afforded the same sorts of employment protections as 
other CW workers in the CNMI, whose employer petitioners must be 
legitimate businesses under the terms of this final rule. Accordingly, 
DHS will not change the final rule and will limit filings for CW 
domestic workers to domestic service companies.
    It is important to note that a household worker may still be 
eligible for transitional worker status if a business petitions for the 
worker. The occupational category itself is potentially eligible for 
the transitional worker status. DHS is only limiting such filings for 
CW workers to domestic service companies operating as legitimate 
businesses. Therefore, it is possible that domestic workers qualify for 
transitional worker status through employment by a business which 
places domestic workers in individual households.
    One commenter suggested that domestic workers should be offered 
permanent immigration status. As previously discussed, the CNRA only 
authorizes DHS to create a nonimmigrant classification to ensure 
adequate employment in the Commonwealth during the transition period. 
See 48 U.S.C. 1806(d). There is no authority under the CNRA for DHS to 
establish an immigrant classification. Thus no change is made in the 
final rule. The CW classification is a temporary classification, 
available only during the transition period, to provide a guest worker 
with lawful nonimmigrant status.
3. CNMI-Only Transitional Worker Allocation System
    Thirty commenters offered suggestions for, or opposed, the 
transitional worker allocation system.
(a) Allocation of Transitional Worker Classifications
    Three commenters stated that DHS did not implement a transitional 
work permit system as required by the CNRA. They stated that DHS was 
required to establish and enforce a transitional work permit system in 
the CNMI that provided the criteria for allocating transitional workers 
to employers or industries during the transition period. See 48 U.S.C. 
1806(d)(2). Specifically, two of these commenters argued that there 
were no allocation criteria. One commenter stated that the rule did not 
describe a system or criteria for allocating how the permits are to be 
divided among employers. This commenter argued that DHS will be 
required to allocate permits among CNMI employers whose collective 
demand for foreign workers is greater than the available number of 
permits during the following year. The commenter added that reliance on 
the H visa system is not a substitution for establishing the system 
required by the CNRA. The second commenter further argued that an 
annual determination is not an adequate substitute for such a process. 
A third commenter noted that any system will have to offer careful 
consideration to the economies of all three islands to avoid the harm 
that may result from the allocation of all slots to one island such as 
Saipan.
    The CNRA requires the Secretary of Homeland Security to establish a 
permit system for prospective employers based on any reasonable method. 
See 48 U.S.C. 1806(d)(2). DHS interprets this mandate to allow it to 
establish a classification within its existing system, which it has 
done. The Federal immigration system requires employers to submit 
petitions for their employees. This final rule incorporates standard 
elements of the Federal immigration system, including the DHS 
petitioning and classification process, and thus it is consistent with 
current law, reasonable, and consistent with the intent of the CNRA.
    Additionally, the CNRA requires an annual reduction in the number 
of permits and total elimination of the CW classification by the end of 
the transition period. Id. The CNRA does not dictate how this will 
occur. As indicated in the interim rule, DHS will publish a Federal 
Register notice announcing the annual numerical limitation. DHS 
believes that the number of workers provided in the first years in this 
rule, coupled with the Federal Register notice, will be sufficient 
notice and guidance to implement the required CW classification 
drawdown.
(b) Numerical Limitation by Federal Register Notice
    One commenter stated that the CNRA does not authorize the issuance 
of regulations in piecemeal form over time that address various aspects 
of the work

[[Page 55510]]

permitting system but rather requires one single document. The 
commenter also opposed the issuance of a Federal Register notice 
related to the numerical limitation. Another commenter suggested that 
DHS apply a periodic reduction in foreign workers without providing 
notice or comment.
    As noted above, the CNRA provides that DHS may base the system on 
any reasonable method. Id. DHS determined that it is reasonable to base 
the transitional worker classification on the current nonimmigrant 
system. As such, this rule promulgates provisions governing the 
transitional worker classification and incorporates standard elements 
from current nonimmigrant categories to maintain regulatory 
consistency.
    The CNRA also mandated that DHS provide the Commonwealth with 
flexibility to maintain existing businesses and develop new economic 
opportunities yet required an annual reduction in the number of permits 
and total elimination of the CW classification by the end of the 
transition period. See section 701(b) of the CNRA, 48 U.S.C. 1806 note; 
48 U.S.C. 1806(d)(2). Consistent with this mandate, DHS has determined 
that it is appropriate to publish the CW annual numerical limitation 
rather than provide a permit reduction plan in this final rule due to 
the uncertainty of the CNMI's future workforce needs and economic 
conditions. The Secretary of Homeland Security has determined, in her 
discretion, that the annual numerical limitation will be published in a 
future Federal Register notice. See new 8 CFR 214.2(w)(1)(viii)(D). DHS 
believes that this method will maximize the Commonwealth's potential 
for future economic and business growth by providing a flexible 
mechanism for the continued use of alien workers during the phasing-in 
of Federal immigration law. DHS also believes that a Federal Register 
notice will provide sufficient public notice of the annual numerical 
limitation in accordance with the regulations established by this rule. 
However, as further discussed below, DHS has provided in this final 
rule the numerical limitation not just until September 30, 2010, as was 
provided in the interim final rule, but through the end of fiscal year 
2012 on September 30, 2012. Given uncertainty about demand for the 
program, it would not be prudent to try to set numbers for time periods 
on or after October 1, 2012 at this time. The 22,417 and 22,416 workers 
provided for the first two years of the CW program in this rule, 
coupled with the Federal Register notice, will be sufficient 
information to implement the required CW classification drawdown. DHS 
will need to make the announcement in a timely fashion from the time of 
the decision to the issuance of the notice providing the new CW 
classification numerical limit. As such, DHS believes that a Federal 
Register notice is the most appropriate method to use to issue the 
necessary information.
(c) Total Number of Foreign Workers in the Work Force
    One commenter suggested that DHS adopt the CNMI's proposed revision 
of the interim rule with regard to assessing the total alien work force 
and total work force. The same commenter took issue with the figures 
DHS used to project the number of CW grants of status. The commenter 
stated that the DHS estimate of 13,543 foreign workers in-status and 
1,000 workers out-of-status who