Labor Certification Process for Temporary Employment in the Commonwealth of the Northern Marianas Islands (CW-1 Workers)

20 C.F.R. Part ..., Subpart E
in effectEffective: 2024-07-01

20 C.F.R. § 655.400 Scope and purpose of this subpart.

(a) Purpose. (1) A temporary labor certification (TLC) issued under this subpart reflects a determination by the Secretary of Labor (Secretary), pursuant to 48 U.S.C. 1806(d)(2)(A), that: (i) There are not sufficient U.S. workers in the Commonwealth who are able, willing, and qualified and who will be available at the time and place needed to perform the services or labor for which an employer desires to hire foreign workers; and (ii) The employment of the CNMI-Only Transitional Worker visa program (CW-1) nonimmigrant worker(s) will not adversely affect the wages and working conditions of U.S. workers similarly employed. (2) This subpart describes the process by which the Department of Labor (Department or DOL) makes such a determination and certifies its determination to the Department of Homeland Security (DHS). (b) Scope. This subpart sets forth the procedures governing the labor certification process for the employment of foreign workers in the CW-1 nonimmigrant classification, as defined in 48 U.S.C. 1806(d). It also establishes standards and obligations with respect to the terms and conditions of the temporary labor certification (TLC) with which CW-1 employers must comply, as well as the rights and obligations of CW-1 workers and workers in corresponding employment. Additionally, this subpart sets forth integrity measures for ensuring employers' continued compliance with the terms and conditions of the TLC.

20 C.F.R. § 655.401 Authority of the agencies, offices, and divisions in the Department of Labor.

The Secretary has delegated authority to the Assistant Secretary for the Employment and Training Administration (ETA), who in turn has delegated that authority to the Office of Foreign Labor Certification (OFLC), to issue certifications and carry out other statutory responsibilities as required by 48 U.S.C. 1806. Determinations on a CW-1 Application for Temporary Employment Certification are made by the OFLC Administrator who, in turn, may delegate this responsibility to designated staff members, e.g., a Certifying Officer (CO).

20 C.F.R. § 655.402 Definition of terms.

For purposes of this subpart: Administrative Law Judge (ALJ) means a person within the Department's Office of Administrative Law Judges appointed under 5 U.S.C. 3105. Agent means a person or a legal entity, such as an association or other organization of employers, or an attorney for an association or other organization of employers, that: (1) Is authorized to act on behalf of the employer for Temporary Labor Certification (TLC) purposes; (2) Is not itself an employer, or a joint employer, as defined in this subpart with respect to the specific application; and (3) Is not under suspension, debarment, expulsion, disbarment, or otherwise restricted from practice before any court, the Department, the Executive Office for Immigration Review or DHS under 8 CFR 292.3 or 1003.101. Applicant (or U.S. applicant) means a U.S. worker who is applying for a job opportunity for which an employer has filed a CW-1 Application for Temporary Employment Certification. Application for Prevailing Wage Determination means the Office of Management and Budget (OMB)-approved Form ETA-9141C (or successor form) and the appropriate appendices, submitted by an employer to secure a prevailing wage determination (PWD) from the National Prevailing Wage Center (NPWC). CW-1 Application for Temporary Employment Certification means the OMB-approved Form ETA-9142C (or successor form) and the appropriate appendices, a valid wage determination, as required by § 655.410, and all supporting documentation submitted by an employer to secure a TLC determination from the OFLC Administrator. Attorney means any person who is a member in good standing of the bar of the highest court of any State, possession, territory, or commonwealth of the United States, or the District of Columbia. Such a person is also permitted to act as an agent under this subpart. No attorney who is under suspension, debarment, expulsion, or disbarment from practice before any court, the Department, the Executive Office for Immigration Review, or DHS under 8 CFR 1003.101 or 292.3, may represent an employer under this subpart. Board of Alien Labor Certification Appeals (BALCA or Board) means the permanent Board established by part 656 of this chapter, chaired by the Chief Administrative Law Judge (Chief ALJ), and consisting of ALJs appointed pursuant to 5 U.S.C. 3105 and designated by the Chief ALJ to be members of BALCA. Certifying Officer or CO means the person who makes determination on a CW-1 Application for Temporary Employment Certification filed under the CW-1 program. The OFLC Administrator is the national CO. Other COs may also be designated by the OFLC Administrator to make the determinations required under this subpart, including making PWDs. Chief Administrative Law Judge or Chief ALJ means the chief official of the Department's Office of Administrative Law Judges or the Chief ALJ's designee. CNMI Department of Labor means the executive Department of the Commonwealth Government that administers employment and job training activities for employers and U.S. workers in the Commonwealth. Commonwealth or CNMI means the Commonwealth of the Northern Mariana Islands. Corresponding employment means the employment of U.S. workers who are not CW-1 workers by an employer who has an approved CW-1 Application for Temporary Employment Certification in any work included in the approved job offer, or in any work performed by the CW-1 workers. To qualify as corresponding employment the work must be performed during the validity period of the CW-1 Application for Temporary Employment Certification and approved job offer, including any approved extension thereof. CW-1 Petition means the U.S. Citizenship and Immigration Services (USCIS) Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, a successor form, other form, or electronic equivalent, any supplemental information requested by USCIS, and additional evidence as may be prescribed or requested by USCIS. CW-1 worker means any foreign worker who is lawfully present in the Commonwealth and authorized by DHS to perform temporary labor or services under 48 U.S.C. 1806(d). Date of need means the first date the employer requires services of the CW-1 workers as indicated on the CW-1 Application for Temporary Employment Certification. Department of Homeland Security or DHS means the Federal Department having jurisdiction over certain immigration-related functions, acting through its component agencies, including USCIS. Employee means a person who is engaged to perform work for an employer, as defined under the general common law of agency. Some of the factors relevant to the determination of employee status include: The hiring party's right to control the manner and means by which the work is accomplished; the skill required to perform the work; the source of the instrumentalities and tools for accomplishing the work; the location of the work; the hiring party's discretion over when and how long to work; and whether the work is part of the regular business of the hiring party. Other applicable factors may be considered and no one factor is dispositive. The terms employee and worker are used interchangeably in this subpart. Employer means a person (including any individual, partnership, association, corporation, cooperative, firm, joint stock company, trust, or other organization with legal rights and duties) that: (1) Has a place of business (physical location) in the Commonwealth and a means by which it may be contacted for employment; (2) Has an employer relationship (such as the ability to hire, pay, fire, supervise or otherwise control the work of employees) with respect to a CW-1 worker or a worker in corresponding employment, as defined under the common law of agency; and (3) Possesses, for purposes of filing a CW-1 Application for Temporary Employment Certification, a valid Federal Employer Identification Number (FEIN). Employer-client means an employer that has entered into an agreement with a job contractor and that is not an affiliate, branch, or subsidiary of the job contractor, under which the job contractor provides services or labor to the employer-client on a temporary basis and will not exercise substantial, direct day-to-day supervision and control in the performance of the services or labor to be performed other than hiring, paying, and firing the workers. Employment and Training Administration or ETA means the agency within the Department that includes OFLC and has been delegated authority by the Secretary to fulfill the Secretary's mandate under for the administration and adjudication of a CW-1 Application for Temporary Employment Certification and related functions. Federal holiday means a legal public holiday as defined at 5 U.S.C. 6103. Full-time means 35 or more hours of work per week. Governor means the Governor of the Commonwealth of the Northern Mariana Islands. Job contractor means a person, association, firm, or a corporation that meets the definition of an employer and that contracts services or labor on a temporary basis to one or more employers that are not an affiliate, branch, or subsidiary of the job contractor and where the job contractor will not exercise substantial, direct day-to-day supervision and control in the performance of the services or labor to be performed other than hiring, paying, and releasing the workers. Job offer means the offer made by an employer or potential employer of CW-1 workers to both U.S. and CW-1 workers describing all the material terms and conditions of employment, including those relating to wages, working conditions, and other benefits. Job opportunity means full-time employment at a place in the Commonwealth to which U.S. workers can be referred. Joint employment means that where two or more employers each have sufficient definitional indicia of being a joint employer of a worker under the common law of agency, they are, at all times, joint employers of that worker. Layoff means any involuntary separation of one or more U.S. employees other than for cause. Long-term worker means an alien who was admitted to the CNMI as a CW-1 nonimmigrant during fiscal year (FY) 2015, and who was granted CW-1 nonimmigrant status during each of FYs 2016 through 2018, as defined by DHS. National Prevailing Wage Center or NPWC means that office within OFLC from which employers, agents, or attorneys who wish to file a CW-1 Application for Temporary Employment Certification receive a PWD. NPWC Director means the OFLC official to whom the OFLC Administrator has delegated authority to carry out certain NPWC operations and functions. National Processing Center (NPC) means the office within OFLC in which the COs operate, and which are charged with the adjudication of CW-1 Applications for Temporary Employment Certification. NPC Director means the OFLC official to whom the OFLC Administrator has delegated authority for purposes of certain NPC operations and functions. Occupational employment statistics (OES) survey means the program under the jurisdiction of the Bureau of Labor Statistics (BLS) that reports annual wage estimates, including those for Guam, based on standard occupational classifications (SOCs). Offered wage means the wage offered by an employer in the CW-1 Application for Temporary Employment Certification and job offer. The offered wage must equal or exceed the highest of the prevailing wage, or the Federal minimum wage, or the Commonwealth minimum wage. Office of Foreign Labor Certification or OFLC means the organizational component of the ETA that provides national leadership and policy guidance and develops regulations to carry out the Secretary's responsibilities, including determinations related to an employer's request for an Application for Prevailing Wage Determination or CW-1 Application for Temporary Employment Certification. Place of employment means the worksite (or physical location) where work under the CW-1 Application for Temporary Employment Certification and job offer actually is performed by the CW-1 workers and workers in corresponding employment. Prevailing wage (PW) means the official wage issued by the NPWC on the Form ETA 9141C, Application for Prevailing Wage Determination for the CW-1 Program, or successor form. At least that amount must be paid to all CW-1 workers and U.S. workers in corresponding employment. Prevailing wage determination (PWD) means the prevailing wage issued by the OFLC NPWC on the Form ETA-9141C, Application for Prevailing Wage Determination for the CW-1 Program, or successor form. The PWD is used in support of the CW-1 Application for Temporary Employment Certification. Secretary of Labor or Secretary means the chief official of the U.S. DOL, or the Secretary's designee. Secretary of Homeland Security means the chief official of DHS or the Secretary of Homeland Security's designee. Secretary of State means the chief official of the U.S. Department of State or the Secretary of State's designee. Strike means a concerted stoppage of work by employees as a result of a labor dispute, or any concerted slowdown or other concerted interruption of operation (including stoppage by reason of the expiration of a collective bargaining agreement). Successor in interest means an employer, agent, or attorney that is controlling and carrying on the business of a previous employer. (1) Where an employer, agent, or attorney has violated 48 U.S.C. 1806 or the regulations in this subpart and has ceased doing business or cannot be located for purposes of enforcement, a successor in interest to that employer, agent, or attorney may be held liable for the duties and obligations of the violating employer in certain circumstances. The following factors, as used under Title VII of the Civil Rights Act and the Vietnam Era Veterans' Readjustment Assistance Act, may be considered in determining whether an employer, agent, or attorney is a successor in interest; no one factor is dispositive, and all the circumstances will be considered as a whole: (i) Substantial continuity of the same business operations; (ii) Use of the same facilities; (iii) Continuity of the work force; (iv) Similarity of jobs and working conditions; (v) Similarity of supervisory personnel; (vi) Whether the former management or owner retains a direct or indirect interest in the new enterprise; (vii) Similarity in machinery, equipment, and production methods; (viii) Similarity of products and services; and (ix) The ability of the predecessor to provide relief. (2) For purposes of debarment only, the primary consideration will be the personal involvement of the firm's ownership, management, supervisors, and others associated with the firm in the violation(s) at issue. Temporary labor certification or TLC means the certification made by the OFLC Administrator, based on the CW-1 Application for Temporary Employment Certification, job offer, and all supporting documentation, with respect to an employer seeking to file with DHS a visa petition to employ one or more foreign nationals as a CW-1 worker. United States means the continental United States, Alaska, Hawaii, the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, and the Commonwealth. United States worker (U.S. worker) means a worker who is: (1) A citizen or national of the United States; (2) An alien lawfully admitted for permanent residence; or (3) A citizen of the Federated States of Micronesia, the Republic of the Marshall Islands, or the Republic of Palau, who is eligible for nonimmigrant admission and is employment-authorized under the Compacts of Free Association between the United States and those nations. U.S. Citizenship and Immigration Services or USCIS means the Federal agency within DHS that makes the determination whether to grant petitions filed by employers seeking CW-1 workers to perform temporary work in the Commonwealth. Wages mean all forms of cash remuneration to a worker by an employer in payment for labor or services. Work contract means the document containing all the material terms and conditions of employment relating to wages, hours, working conditions, places of employment, and other benefits, including all assurances and obligations required to be included under this subpart. The contract between the employer and the worker may be in the form of a separate written document containing the advertised terms and conditions of the job offer. In the absence of a separate, written work contract incorporating the required terms and conditions of employment, agreed to by both the employer and the worker, the required terms of the certified CW-1 Application for Temporary Employment Certification will be the work contract.

20 C.F.R. § 655.403 Persons and entities authorized to file.

(a) Persons authorized to file. In addition to the employer, a request for a PWD or TLC under this subpart may be filed by an attorney or agent, as defined in § 655.402. (b) Employer's signature required. Regardless of whether the employer is represented by an attorney or agent, the employer is required to sign the CW-1 Application for Temporary Employment Certification and all documentation submitted to the Department.

20 C.F.R. § 655.404 Requirements for agents.

An agent filing a CW-1 Application for Temporary Employment Certification on behalf of an employer must provide a copy of the agent agreement or other document demonstrating the agent's authority to represent the employer to the NPC at the time of filing the application.

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