31 Aug 2020 EB3 – STILL AN ATTRACTIVE OPTION FOR EMPLOYERS IN THE CNMI
The Commonwealth of the Northern Mariana Islands (CNMI) has many unique immigration issues like no others. When the Consolidated Natural Resources Act of 2008 (CNRA) installed the U.S. immigration system in the CNMI on November 28, 2009, the law intended to provide temporary legal status to all legal, and even some illegal aliens who were legal under the CNMI immigration system, The temporary fix of the status as provided by law came in the form of humanitarian parole for some and the newly created CNMI Transitional Worker status (CW1) for most. However, these options failed miserably to meet the immigration demands of CNMI residents who have been legally living and working in the CNMI for decades, many of whom have U.S. citizen children who are too young to petition family-based immigrant status for their parents.
The main problem of temporary fixes is having unintentionally created procedural obstacles for these CNMI residents to maintain legal status. From the CW1 annual cap issue, the visa gap issue for employment authorization, the restriction of CW1 in construction businesses, the elimination of most parole categories, and the recent problem of 30-day touchback, it seems that each time USCIS has tried to fix one problem, it created another. Even with the creation of CNMI Long-Term Resident status, the legislative intent and the letter of the law appears to be at odds. How USCIS will adjudicate these long-term status applications remains to be seen.
The temporary nature of the employment status for most CNMI residents has created absolute nightmares for employers. The uncertainty of employees’ legal status make it impossible for most employers to maintain its business flow without constantly worrying about the availability of the employees. Since 2009, we have been strongly advocating that CNMI employers seek permanent solutions to its labor force problem. Even with CNMI Long-Term Resident status, its future remains uncertain after the end of the transition period of 2029.
One way to turn temporary employment of alien skilled workers into permanent employment is to apply for them under an employment-based immigration category. This is a three-step process involving the following: (1) the employer applying for a Permanent Labor Certification (PERM) at the U.S. Department of Labor; (2) the employer applying for an immigrant visa for the alien employee; and lastly, (3) the alien employee and her immediate family members, including spouse and children under 21 years of age, applying for green cards. Depending on the nature of the offered position, employment-based (“EB”) immigration has five categories from EB1 to EB5.
Most of the skilled labor in the CNMI fall into the category of EB3, which generally requires a minimum of two years of experience with no prerequisite for college degrees. But EB3 is often considered an inferior immigration option in comparison to EB1 and EB2 because of the long waiting period commonly associated with the application process. For example, in April 2013, the waiting period for an EB3 applicant from the Philippines was about seven years. The waiting period of an EB3 applicant from China was more than six years. Things have changed significantly since 2014. According to Visa Bulletin issued monthly by the U.S. Department of State, as of September 1 2020, the waiting period for an EB3 applicant from the Philippines is one and a half years, and for Chinese nationals it is approximately three and a half years.
The recent changes to these wait periods are significant to employers in the CNMI. The shorter waiting periods make it possible for employers to successfully obtain green cards for their employees quickly in order to avoid CW1 cap and touchback requirements. This means that CW1 visa holders do not have to leave the United States to wait for their green cards and the employers can continue to keep these workers under their employment while completing the immigration process. Hopefully, these employees will become part of the employers’ permanent labor force after they receive the green cards. Shorter waiting periods coupled with lower requirements make EB3 an extremely attractive option for employers who wish to keep their labor force more permanent.
A cautionary note is that employment-based immigration process is both complex and individualized. It requires careful review of an employer’s corporate and financial information as well as an employee’s personal information to determine the employer’s eligibility as a petitioner and the employee’s eligibility as a beneficiary. Employers are therefore encouraged to seek professional legal assistance from experienced immigration attorneys, particularly one with knowledge of issues specific to the CNMI.
This article was authored by Nelson J. Xu.