9 FAM 402.18

(U) Nonimmigrant Visas Specifically for the Commonwealth of the Northern Mariana Islands – CW and E-2C Visas

(CT:VISA-533;   03-26-2018)
(Office of Origin:  CA/VO/L/R)

9 FAM 402.18-1  (U) Statutory and Regulatory Authorities

9 FAM 402.18-1(A)  (U) Code of Federal Regulations

(CT:VISA-1;   11-18-2015)

(U) 8 CFR 214.2(e)(23); 8 CFR 214.2(w).

9 FAM 402.18-1(B)  (U) United States Code

(CT:VISA-1;   11-18-2015)

(U) 48 U.S.C. 1806(d); 48 U.S.C. 1806(c).

9 FAM 402.18-2  (U) Overview

(CT:VISA-1;   11-18-2015)

a. (U) The Consolidated Natural Resources Act of 2008 (CNRA), Public Law 110-229, extends U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI), including transition provisions unique to the CNMI.  These CNMI-only provisions are in effect during a transition period concluding December 31, 2019.

b. (U) CW Visa Classification:

(1)  (U) The CNRA authorizes the Department of Homeland Security (DHS) to classify an alien as a CNMI-only nonimmigrant transitional worker (CW).  DHS regulations provide the eligibility requirements for CW status at 8 CFR 214.2(w). 

(2)  (U) Individuals who qualify as CW transitional workers may apply for a CW-1 nonimmigrant visa.

(3)  (U) Any applicant for a CW-1 nonimmigrant visa must be the beneficiary of an approved Form I-129-CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, filed with U.S. Citizenship and Immigration Services (USCIS).

c. (U) E-2C Visa Classification: 

(1)  (U) The CNRA authorized the Department of Homeland Security (DHS) to classify an alien as an E-2 CNMI Investor (E-2C) under INA 101(a)(15)(E)(ii) (See 48 U.S.C. 1806(c).)  DHS regulations that set forth the eligibility requirements for this status can be found at 8 CFR 214.2(e)(23).  Those aliens qualified as E-2 CNMI Investors may apply for an E-2C nonimmigrant visa. 

(2)  (U) Any applicant for an E-2C nonimmigrant visa must be the beneficiary of an approved Form I-129, Petition for a Nonimmigrant Worker and Supplement E, filed with U.S. Citizenship and Immigration Services (USCIS) before January 18, 2013.

9 FAM 402.18-3  (U) CW Visa for Transitional Workers in the Commonwealth of the Northern Mariana Islands (CNMI)

9 FAM 402.18-3(A)  (U) Approved Petition is Prima Facie Evidence of Entitlement to CW Classification

(CT:VISA-533;   03-26-2018)

a. (U) Consider an approved Form I-129-CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, as prima facie evidence that a CW applicant meets the requirements for CW classification..  To question an approved CW petition, you require specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to CW status.  See 9 FAM 402.18-3(I).

b. Unavailable

9 FAM 402.18-3(B)  (U) Overview of Eligibility Requirements for the CW Nonimmigrant Visa

(CT:VISA-173;   09-12-2016)

a. (U) In addition to an approved Form I-129-CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, applicants must meet all requirements established below to receive CW Transitional Worker Status.  For the full list of requirements, see 8 CFR 214.2(w). 

b. (U) Transitional Workers Eligible for CW-1 Status are Those Who:

(1)  (U) Are the beneficiary of an approved Form I-129-CW petition filed by a legitimate employer (see 8 CFR 214.2(w)(2)(ii));

(2)  (U) Will enter or remain in the CNMI to work in an occupational category designated as needing alien workers to supplement the resident workforce (see 8 CFR 214.2(w)(2)(i));

(3)  (U) Are either lawfully present in the CNMI or are not present in the United States (see 8 CFR 214.2(w)(2)(iii) and (iv));

(4)  (U) Are ineligible for any other employment-based nonimmigrant status under the INA (see 8 CFR 214.2(w)(2)(vi)); and

(5)  (U) Are otherwise admissible to the United States or have been granted a waiver of each applicable ground of inadmissibility (8 CFR 214.2(w)(2)(v)). 

c.  (U) An alien is lawfully present in the CNMI if, at the time the application for status is filed, s/he was lawfully admitted or paroled into the CNMI under the immigration laws on or after the transition program effective date, i.e., November 28, 2009 (other than an admission or parole as a visitor for business or pleasure) and remains in a lawful immigration status. 

9 FAM 402.18-3(C)  (U) CW-1 Employment Restrictions 

(CT:VISA-533;   03-26-2018)

a. (U) A CW-1 Transitional Worker may only work in the CNMI for the employer that is the basis for his or her approved Form I-129-CW petition.

b. (U) An alien requires a new or amended petition if there are any material changes in the terms and conditions of employment.

c.  (U) A change of employment to a new employer requires a new petition.  The individual may start work for the new employer as soon as the new employer files a nonfrivolous petition before the date of expiration of his or her authorized period of stay, provided that he or she has not been employed without authorization in the United States (including the CNMI) subsequent to his or her lawful admission.

d. (U) A CW-1 applicant working for more than one employer must have an approved petition for each employer.

e. (U) If you find that a CW applicant has violated any of the employment authorization restrictions above, you must suspend action on the application and submit a report to the approving USCIS office.

f.  (U) If employment terminates, the CW–1 holder will not be considered to be in violation of CW–1 status for a period of 30 days immediately following the date of termination, if a new employer files a nonfrivolous Form I-129-CW petition and the CW-1 holder does not otherwise violate the terms and conditions of his or her status during that 30-day period.  Consistent with 8 CFR 214.2(w)(7)(i) and (ii), within that 30-day period, the CW-1 may commence employment with an employer following the employer's filing of a nonfrivolous Form I-129-CW petition during that 30 day period. 

9 FAM 402.18-3(D)  (U) Spouses and Children of CW-1 Beneficiaries

(CT:VISA-399;   07-14-2017)

a. (U) CW-2 nonimmigrant status is available to spouses and minor children of CW-1 beneficiaries (see 8 CFR 214.2(w)(3)).  Spouses and minor children eligible for CW-2 status are those who meet the qualifications outlined in paragraphs c and d below.

b. (U) CW-2 status does not authorize employment but holders may apply for other INA nonimmigrant or immigrant visas under which employment is authorized.

c.  (U) A CW-2 Spouse Must be:

(1)  (U) A spouse of a CW-1;

(2)  (U) Accompanying or following to join the CW-1 beneficiary;

(3)  (U) Not present in the United States other than in the CNMI;

(4)  (U) If present in the CMNI, lawfully present; and

(5)  (U) Otherwise admissible under the INA or granted a waiver of each applicable ground of inadmissibility.

d. (U) A CW-2 Child Must be:

(1)  (U) Under 18 years of age;

(2)  (U) Accompanying or following to join the CW-1 beneficiary;

(3)  (U) Not present in the United States other than in the CNMI;

(4)  (U) If present in the CNMI, lawfully present; and

(5)  (U) Otherwise admissible under the INA or granted a waiver of each applicable ground of inadmissibility.

9 FAM 402.18-3(E)  (U) CW Classification Valid Only for Travel to/Use in CNMI

(CT:VISA-399;   07-14-2017)

a. (U) Except as provided in paragraph b below, a CW visa is valid only for travel to the CNMI.  An alien with CW status or traveling on a CW visa may neither travel to nor transit any other part of the United States.

b. (U) An alien who is a national of the Philippines traveling on a CW visa may travel from the Philippines through the Guam airport in direct transit to the CNMI on a direct itinerary with a stopover or connection in Guam (and no other place) lasting no longer than 8 hours.  A Philippine national in CW status may similarly transit the Guam airport en route to the Philippines.

9 FAM 402.18-3(F)  (U) Departing From and Returning to the CNMI

(CT:VISA-173;   09-12-2016)

(U) A CW-1 or CW-2 nonimmigrant may leave the CNMI, but he or she must have the appropriate visa to re-enter the CNMI.  If the CW worker was granted CW status in the CNMI or has a CW visa that will expire prior to returning to the CNMI, the CW worker must apply for a CW visa at a U.S. embassy or consulate abroad before seeking readmission to the CNMI.  If the CW-1 or CW-2 status is obtained while in the CNMI, the nonimmigrant will be given a Form I-94, Arrival-Departure Record as documentation of CW status. 

9 FAM 402.18-3(G)  (U) Validity of CW Visas

(CT:VISA-533;   03-26-2018)

a. (U) CW-1 status is valid for a period of up to one year.  While the CW-1 nonimmigrant may be admitted for the period of petition validity and additionally up to 10 days before the validity period begins and 10 days after the validity period ends, the visa status only authorizes employment during the validity period of the petition. 

b. (U) To request an extension of stay in CW-1 status, the employer must file a new petition. 

c.  (U) CW-2 status expires on the same day as the principal’s CW-1 status or (in the case of a minor child) on a minor child’s 18th birthday. 

d. (U) The CW classification will cease to exist at the conclusion of the CNRA-mandated transition period on December 31, 2019.  Transitional workers who wish to remain in the CNMI lawfully beyond the end of the CW transitional worker program must obtain nonimmigrant or immigrant status under the INA before the expiration date of the program.

9 FAM 402.18-3(H)  (U) Applying INA 214(b) in the Adjudication of CW and E-2C Visas

(CT:VISA-533;   03-26-2018

a. (U) Applicants for CW and E-2C nonimmigrant visas are subject to INA 214(b) and must provide credible evidence showing that they are entitled to nonimmigrant status and that their intended activities are consistent with the status for which they applying (see 9 FAM 302.1-2(B)(6) paragraph b).

b. (U) Importantly, per 8 CFR 214.2(w)(19), these applicants are allowed to have dual immigrant and nonimmigrant intent and are not required to maintain a residence abroad.  Nonetheless, you must be satisfied at the time of the application for the CW or E-2C visa that the applicant possesses the present intent to depart the CNMI at the conclusion of the authorized period of stay.  That this intention is subject to change is not a sufficient reason to refuse a visa.  Although CW and E-2C visa holders may apply to change or adjust status in the United States in the future, this is not a basis to refuse a visa application if the applicant's present intent is to depart the CNMI at the conclusion of the authorized period of stay.

9 FAM 402.18-3(I)  (U) Referring Petition to DHS for Reconsideration

(CT:VISA-533;   03-26-2018

a. (U) Posts should return petitions to DHS for reconsideration sparingly, to avoid inconveniencing bona fide petitioners and beneficiaries and causing duplication of effort by DHS.  You must have specific evidence of a requirement for automatic revocation, misrepresentation in the petition process, or of previously unknown facts, which might alter DHS’s finding, before requesting reconsideration.  When seeking reconsideration, you must, under cover of Form DS-3099, NIV Petition Revocation Request Cover Sheet-Kentucky Consular Center, forward the petition, all pertinent documentation, and a written memorandum of the evidence supporting the request for reconsideration to KCC, which will forward the request to the approving DHS office.

b. (U) Send requests for petition revocation to the following address, using registered mail or express mail:

      Attention: Fraud Prevention Manager

      Kentucky Consular Center

      3505 N. Hwy 25W

      Williamsburg, KY 40769

9 FAM 402.18-4  (U) E-2C Nonimmigrant Visa for Long-Term Investors in the Commonwealth of the Northern Mariana Islands (CNMI)

9 FAM 402.18-4(A)  (U) Approved Petition is Prima Facie Evidence of Entitlement to E-2C Classification

(CT:VISA-533;   03-26-2018)

a. (U) An approved Form I-129, Petition for a Nonimmigrant Worker and Supplement E, is to be considered as prima facie evidence that the requirements for E-2C classification are met.  To question an approved E-2C petition, you require specific evidence, unavailable to DHS at the time of petition approval, that the beneficiary may not be entitled to status.  See 9 FAM 402.18-3(I).

b. (U) If an applicant has an approved I-129 petition for E-2C status, apply only the provisions contained in this section and not the E-2 Treaty Investor classification in 9 FAM 402.9.

cUnavailable

9 FAM 402.18-4(B)  (U) Overview of Eligibility Requirements for the E-2C Nonimmigrant Visa

(CT:VISA-399;   07-14-2017)

a. (U) Although an approved Form I-129, Petition for a Nonimmigrant Worker and Supplement E, are prima facie evidence of entitlement to E-2C status (see 9 FAM 402.18-4(A) above), the following is an overview of the CNMI-Only E-2 nonimmigrant investor status.  For the full list of requirements, see 8 CFR 214.2(e)(23).

b. (U) Investors Eligible for E-2C Status are Those Who:

(1)  (U) Were lawfully admitted to the CNMI in long-term investor status under CNMI immigration laws before the beginning of the transition period on November 28, 2009;

(2)  (U) Have continuously maintained residence in the CNMI (see paragraph d below);

(3)  (U) Are otherwise admissible to the United States under the INA; and

(4)  (U) Maintain the investment(s) that formed the basis for the CNMI long-term investor status.

c.  (U) An Alien May Be Eligible for E2-C Status Through Three Categories:

(1)  (U) Long-Term Business Investor:  An alien who has an approved investment of at least $50,000 in the CNMI, as evidenced by a CNMI Long-Term Business Certificate;

(2)  (U) Foreign Investor:  An alien in the CNMI who has invested either a minimum of $100,000 in an aggregate approved investment in excess of $2,000,000, or a minimum of $250,000 in a single approved investment, as evidenced by a CNMI Foreign Investment Certificate;

(3)  (U) Retiree Investor:  An alien in the CNMI who is over the age of 55 years; and

(a)  (U) Has invested a minimum of $100,000 in an approved residence on the island of Saipan or $75,000 on the islands of Tinian or Rota, proven with issuance of a foreign retiree investment certificate; or

(b)  (U) Has invested a minimum of $150,000 in an approved residence to live in the CNMI, as evidenced by a Foreign Retiree Investment Certificate.

d. (U) An alien has continuously maintained residence in the CNMI if s/he has maintained his/her residence within the CNMI since being lawfully admitted as a long-term investor and has been physically present therein for periods totaling at least half of that time.  Absence from the CNMI for any continuous period of more than six months but less than a year after a lawful admission breaks the continuity of such residence, unless the alien can establish to the satisfaction of USCIS that s/he did not in fact abandon residence in the CNMI during that period.  Absence from the CNMI for any period one year or more during the period for which continuous residence is required breaks the continuity of residence.

9 FAM 402.18-4(C)  (U) Spouses and Children of E-2C Beneficiaries

(CT:VISA-173;   09-12-2016)

a. (U) The spouse and children of an E-2 CNMI Investor may receive E-2C classification if (1) otherwise admissible and (2) accompanying or following-to-join the principal alien.

b. (U) The spouse of an E-2 CNMI Investor, unless the principal E-2 CNMI Investor is a Retiree Investor (see 9 FAM 402.18-4(B) above), is eligible to apply to DHS for employment authorization in the CNMI under 8 CFR 274a.12(c)(12).

9 FAM 402.18-4(D)  (U) Applying INA 214(b) in the Adjudication of E-2C Visas

(CT:VISA-533;   03-26-2018)

(U) See 9 FAM 402.18-3(H).

9 FAM 402.18-4(E)  (U) E-2C Classification Valid Only for Travel to/Use in CNMI

(CT:VISA-173;   09-12-2016)

(U) An E-2C visa is valid only for travel to the CNMI.  An alien traveling on an E-2C visa may neither travel to nor transit any other part of the United States.

9 FAM 402.18-4(F)  (U) E-2C Employment Restrictions

(CT:VISA-533;   03-26-2018)

a. (U) An E-2 CNMI Investor may only work in the CNMI for the enterprise that is the basis for his/her CNMI Foreign Investment Certificate or Long-Term Investment Certificate, to the extent that the certificate authorized the employment.

b. (U) An E-2 CNMI Investor whose status is based upon a CNMI Foreign Retiree Investor Certificate is not authorized to be employed in the CNMI.

c.  (U) An unauthorized change of employment to a new employer constitutes a violation of status. 

d. (U) An E-2 CNMI Investor requires a new or amended petition if there are any material changes to the alien's compliance with the terms and conditions of qualifications for the E-2 CNMI status.

9 FAM 402.18-4(G)  (U) Validity of E-2C Visas

(CT:VISA-533;   03-26-2018)

a. (U) E-2C status is initially valid for a period of not more than two years and may be extended in not more than two year increments. 

b. (U) To request an extension of stay in E-2C status, the employer must file a new petition. 

c.  (U) The E-2C status of the spouse and children of an E-2 CNMI Investor terminates on the same day as the principal’s E-2C status or (in the case of a minor child) on a minor child’s 18th birthday.

d. (U) The E-2C classification will cease to exist at the conclusion of the CNRA-mandated transition period on December 31, 2019.