[Federal Register Volume 74, Number 207 (Wednesday, October 28, 2009)]
[Rules and Regulations]
[Pages 55726-55744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26094]
[[Page 55725]]
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Part V
Department of Homeland Security
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8 CFR Parts 1, 208, 209, et al.
Department of Justice
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Executive Office for Immigration Review
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8 CFR Parts 1001, 1208, 1209, et al.
Application of Immigration Regulations to the Commonwealth of the
Northern Mariana Islands; Interim Final Rule
Federal Register / Vol. 74 , No. 207 / Wednesday, October 28, 2009 /
Rules and Regulations
[[Page 55726]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 1, 208, 209, 212, 214, 217, 235, 245, 274a, 286, and
299
[CIS No. 2460-08; DHS Docket No. USCIS-2008-0039]
RIN 1615-AB77
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Parts 1001, 1208, 1209, 1212, 1235, and 1245 and 1274a
[EOIR Docket No. 169 AG Order No. 3120-2009]
RIN 1125-AA67
Application of Immigration Regulations to the Commonwealth of the
Northern Mariana Islands
AGENCY: U.S. Citizenship and Immigration Services, DHS; Executive
Office for Immigration Review, DOJ.
ACTION: Interim final rule.
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SUMMARY: The Department of Homeland Security (DHS) and the Department
of Justice (DOJ) are implementing conforming amendments to their
respective regulations to comply with the Consolidated Natural
Resources Act of 2008 (CNRA). The CNRA extends the immigration laws of
the United States to the Commonwealth of the Northern Mariana Islands
(CNMI). This rule amends the regulations governing: asylum and credible
fear of persecution determinations; references to the geographical
``United States'' and its territories and possessions; alien
classifications authorized for employment; documentation acceptable for
Employment Eligibility Verification; employment of unauthorized aliens;
and adjustment of status of immediate relatives admitted under the
Guam-CNMI Visa Waiver Program. Additionally, this rule makes a
technical change to correct a citation error in the regulations
governing the Visa Waiver Program and the regulations governing asylum
and withholding of removal. The purpose of this rule is to ensure that
the regulations apply to persons and entities arriving in or physically
present in the CNMI to the extent authorized by the CNRA.
DATES: The rule will be effective November 28, 2009.
Written comments on this rule must be submitted on or before
November 27, 2009.
Written comments on the Paperwork Reduction Act section of this
rule must be submitted on or before November 27, 2009.
ADDRESSES: You may submit comments, identified by DHS Docket No. USCIS-
2008-0039 by one of the following methods:
Federal eRulemaking Portal: www.regulations.gov. Follow
the instructions for submitting comments.
Mail: Chief, Regulatory Products Division, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
111 Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210.
To ensure proper handling, please reference DHS Docket No. USCIS-2008-
0039 on your correspondence. This mailing address may be used for
paper, disk, or CD-ROM submissions.
Hand Delivery/Courier: U.S. Citizenship and Immigration
Services, Department of Homeland Security, 111 Massachusetts Avenue,
NW., Suite 3008, Washington, DC 20529-2210. Contact Telephone Number is
(202) 272-8377.
FOR FURTHER INFORMATION CONTACT:
Regarding 8 CFR Parts 1, 208, 209, 212, 214, 217, 235, 245, 274a,
and 286 and 299: Fred Ongcapin, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 20 Massachusetts Avenue,
NW., 2nd Floor, Washington, DC 20529-2211, telephone (202) 272-8221
(not a toll-free call).
Regarding 8 CFR Parts 1001, 1208, 1209, 1212, 1235, 1245, and
1274a: Robin Stutman, General Counsel, Executive Office for Immigration
Review, 5107 Leesburg Pike, Suite 2600, Falls Church, Virginia 22401,
telephone (703) 305-0470 (not a toll-free call).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation--Posting of Public Comments
II. Background
III. Responsibilities of the Secretary of Homeland Security and the
Attorney General
IV. Amendments
V. Regulatory Requirements
I. Public Participation--Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at
www.regulations.gov. Such information includes personal identifying
information (such as your name, address, etc.) voluntarily submitted by
the commenter. All submissions received must include the agency name
and DHS Docket No. USCIS-2008-0039. All comments received will be
posted without change to www.regulations.gov, including any personal
information provided.
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
interim rule. Comments that will provide the most assistance will
reference a specific portion of the interim rule, explain the reason
for any recommended change, and include data, information, or authority
that support such recommended change.
For access to the electronic docket to read background documents or
comments received, go to www.regulations.gov. Submitted comments may
also be inspected at the Regulatory Products Division, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 111
Massachusetts Avenue, NW., Suite 3008, Washington, DC 20529-2210.
II. Background
The Commonwealth of the Northern Mariana Islands (CNMI) is a U.S.
territory located in the Western Pacific that has been subject to most
U.S. laws for many years. The CNMI has administered its own immigration
system under the terms of the 1976 Covenant with the United States. See
Joint Resolution to Approve the ``Covenant To Establish a Commonwealth
of the Northern Mariana Islands in Political Union with the United
States of America,'' and for Other Purposes (Covenant Act), Public Law
94-241, sec. 1, 90 Stat. 263, 48 U.S.C. 1801 note (1976) (48 U.S.C.
1801 note (2006)). On May 8, 2008, President Bush signed into law the
Consolidated Natural Resources Act of 2008 (CNRA). See Public Law No.
110-229, Title VII, 122 Stat. 754, 853 (2008). Title VII of the CNRA
extends U.S. immigration laws to the CNMI. The intent of Congress in
passing this legislation is to ensure effective border controls and
properly address national security and homeland security concerns by
extending U.S. immigration law to the CNMI. See Sec. 701(a) of Public
Law 110-229. U.S. immigration law is defined by statute as the
provisions of the Immigration and Nationality Act (Act or INA) (i.e.,
title 8, Chapter 12 of the U.S. Code), and ``all laws, conventions, and
treaties of the United States relating to the immigration, exclusion,
deportation, expulsion, or removal of aliens.'' See INA sec.
101(a)(17), 8 U.S.C. 1101(a)(17).
Section 702 of the CNRA was scheduled to become effective
approximately one year after the date of enactment, subject to certain
transition
[[Page 55727]]
provisions. See Sec. 6(a)(1) of Public Law 94-241, as added by sec.
702(a) of Public Law 110-229. On March 31, 2009, DHS announced that the
Secretary of Homeland Security, in her discretion under the CNRA, had
extended 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. The transition
period concludes on December 31, 2014. Most amendments to the INA made
by the CNRA take effect on the transition program effective date,
November 28, 2009. Sec. 705(b) of Public Law 110-229.
III. Responsibilities of the Secretary of Homeland Security and the
Attorney General
Under the INA, as amended by the Homeland Security Act of 2002,
Public Law 107-296, 116 Stat. 2135 (codified at 6 U.S.C. 101 et seq.),
the Secretary of Homeland Security is charged with the administration
and enforcement of the INA, and all other laws relating to the
immigration and naturalization of aliens, except insofar as such laws
relate to the powers, functions, or duties conferred upon the
President, the Attorney General, the Secretary of State, or consular
officers. See INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1). The Homeland
Security Act, however, retained the functions of the Executive Office
for Immigration Review (EOIR) (including the immigration judges and the
Board of Immigration Appeals) within DOJ under the authority of the
Attorney General. See 6 U.S.C. 521, 8 U.S.C. 1103(g). The DHS
regulations relating to immigration are codified principally in 8 CFR
chapter I, while the Attorney General's regulations relating to EOIR
are codified in 8 CFR chapter V, beginning with 8 CFR 1001.
Some of the changes implemented under the CNRA affect existing
regulations governing both DHS immigration policy and procedures and
proceedings before the immigration judges and the Board. Accordingly,
it is necessary to make amendments both to the DHS regulations and to
the DOJ regulations. The Secretary and the Attorney General are making
conforming amendments to their respective regulations in this single
rulemaking document.
IV. Amendments
This rule amends several regulatory provisions to implement some of
the changes to the INA made by the CNRA. Specifically, this rule
defines the often-used term in the CNRA, ``transition program effective
date,'' removes references to the CNMI as a territory or possession of
the United States not subject to the INA, and updates the definition of
the geographical ``United States'' to include the CNMI for immigration
purposes. In addition, this rule:
Provides for the application in the CNMI of the
prohibitions against the knowing employment of unauthorized aliens and
the hiring of individuals without verifying their identity and
employment authorization;
Designates CNMI-issued documentation that may be
acceptable by employers in the CNMI to verify the identity and
employment authorization of newly hired employees;
Adds work-authorized aliens in the CNMI under the CNRA's
``grandfather'' clause \1\ for the first two years following the
transition program effective date to the DHS work authorization
regulations;
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\1\ The CNRA contains a ``grandfather'' clause that allows
aliens lawfully present and authorized for employment under the laws
of the CNMI to be considered authorized for employment by the
Secretary of Homeland Security until the expiration of such CNMI
employment authorization or two years from the transition program
effective date, whichever is earlier. See Sec. 6(e)(2) of Public Law
94-241, as added by sec. 702(a) of Public Law 110-229.
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Addresses the limitations on the granting of asylum under
section 208 of the INA to aliens physically present in or arriving in
the CNMI claiming a fear of persecution or torture in their
country(ies) of nationality or, if stateless, country of last habitual
residence, and adjustment of status under section 209(b) of the INA for
such aliens; and
Clarifies that immediate relatives who were admitted to
the United States under the Guam Visa Waiver Program, pursuant to
current 8 CFR 212.1(e) and 1212.1(e), and those who will be admitted to
the United States under the new Guam-CNMI Visa Waiver Program, pursuant
to new 8 CFR 212.1(q) and 1212.1(q), may apply for adjustment of status
to that of a lawful permanent resident.
A. Definition of Transition Program Effective Date
The CNRA and its amendments to the Covenant Act make several
references to the transition period or program effective date. See,
e.g., Sec. 6(a)(7), (b) and (c) of Public Law 94-241, as added by sec.
702(a) of Public Law 110-229; sec. 702(i) of Public Law 110-229; sec.
705(b) of Public Law 110-229. The CNRA states that the provisions of
the INA shall apply to the CNMI, ``except as otherwise provided'' in
the CNRA, ``effective on the first day of the first full month
commencing 1 year after the date of enactment of the [CNRA] (hereafter
referred to as the `transition program effective date'),'' unless the
Secretary of Homeland Security acts to delay this effective date. Sec.
6(a)(1) of Public Law 94-241, as added by sec. 702(a) of Public Law
110-229. On May 8, 2008, President Bush signed the CNRA into law. On
March 31, 2009, DHS announced that the Secretary of Homeland Security,
in her discretion under the CNRA, had extended 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. Accordingly, this rule defines ``transition
program effective date'' to mean November 28, 2009, the effective date
following the Secretary of Homeland Security's exercise of her
authority pursuant to section 6(a)(2) of Public Law 94-241, as added by
section 702(a) of Public Law 110-229, to delay commencement 180 days
after June 1, 2009. See new 8 CFR 1.1(bb) and 8 CFR 1001.1(bb).
B. References to the Commonwealth of the Northern Mariana Islands
One step that the CNRA takes to effect application of U.S.
immigration law to the CNMI is to include the CNMI in the meaning of
``United States'' and ``State,'' effective on the transition program
effective date. Sec. 702(j)(2), (3) of Public Law 110-229; sec. 705(b)
of Public Law 110-229. The INA defines these terms. INA sections
101(a)(36) and (a)(38), 8 U.S.C. 1101(a)(36) and (a)(38). While these
amendments are automatically incorporated into the regulations by
operation of 8 CFR 1.1(a) and 8 CFR 1001.1(a), which address the
applicability of INA definitions, other more specific provisions in the
DHS and DOJ regulations directly conflict with these amendments and
require modification.
First, this rule incorporates specific references to the CNMI in
those regulatory provisions that include a definition of the United
States. See 8 CFR 214.11(a) (victims of trafficking in persons); 8 CFR
286.1(k) (immigration user fees). Second, this rule removes references
to the CNMI when used in connection with references to U.S. territories
and possessions, or modifies such references as appropriate. See 8 CFR
214.7(a)(3) and (a)(4)(i) (habitual residence); 8 CFR 214.7(b)
(habitual residence in U.S. territories or possessions where the INA
applies); 8 CFR 214.14(a)(11) (victims of criminal activity); 8 CFR
286.1(i) (immigration user fees). Finally, this rule removes references
to the CNMI when listed
[[Page 55728]]
separately from the geographical ``United States.'' See 8 CFR
214.11(b)(2) and (g) (victims of trafficking in persons).
C. CNMI Asylum Provisions
While most U.S. immigration benefits will become available to
aliens in the CNMI on the transition program effective date, the CNRA
precludes the availability of asylum under section 208 of the INA, 8
U.S.C. 1158, on the transition program effective date and throughout
the transition period to aliens physically present in or arriving in
the CNMI. Sec. 6(a)(7) of Public Law 94-241, as added by sec. 702(a) of
Public Law 110-229. Asylum is a discretionary benefit that may be
granted to aliens who establish that they have been persecuted or have
a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. INA sections 101(a)(42) and 208(b), 8 U.S.C. 1101(a)(42) and
1158(b). There are certain exceptions that limit the eligibility for
aliens to apply for asylum, including a limitation stating that an
alien must file his or her application for asylum within one year after
the date of last arrival in the United States. INA sec. 208(a)(2)(B), 8
U.S.C. 1158(a)(2)(B). Aliens granted asylum can seek lawful permanent
resident (LPR) status in the United States by applying for adjustment
of status no earlier than one year after being granted asylum. INA sec.
209(b), 8 U.S.C. 1159(b).
The CNRA, however, does not preclude the granting of two related
forms of protection from removal in the CNMI during the transition
period: withholding of removal under section 241(b)(3) of the INA, 8
U.S.C. 1231(b)(3), and withholding or deferral of removal under the
regulations implementing Article 3 of the Convention Against Torture.
See 8 CFR 208.16(c)-.18, 208.30-.31 (DHS regulations), 1208.16(c)-.18,
1208.30-.31 (DOJ regulations). Unlike asylum, withholding of removal
under section 241(b)(3) of the INA is a mandatory prohibition on the
removal to a particular country of a person who establishes that his or
her life or freedom would be threatened in that country because of the
person's race, religion, nationality, membership in a particular social
group, or political opinion. INA sec. 241(b)(3)(A), 8 U.S.C.
1231(b)(3)(A); 8 CFR 208.16(a)-(b), 1208.16(a)-(b). Pursuant to U.S.
obligations under the Convention Against Torture, a person may not be
removed to a country where he or she is more likely than not to be
tortured. See Foreign Affairs Reform and Restructuring Act of 1998,
Public Law 105-277, Div. G, tit. XXI, ch. 3, sub. B, sec. 2242, 112
Stat. 2681-822; 8 CFR 208.16(c)-.18, 208.30-.31, 1208.16(c)-.18,
1208.30-.31. Therefore, aliens who are ordered removed but who meet
their burden under the Convention Against Torture may have their
removal withheld. Id. If such aliens are ineligible for withholding
(e.g., due to serious criminality, human rights abuses, or national
security concerns), their removal may be ordered deferred. Id. Deferral
of removal is a more limited prohibition on removal to a country where
a person is more likely than not to be tortured, regardless of the
alien's ineligibility for asylum or withholding of removal. Id.\2\
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\2\ A grant of withholding or deferral of removal is made with
respect to an alien who has already been found by an immigration
judge to be inadmissible or deportable and is subject to a final
order of removal. See Matter of I-S- & C-S-, 24 I&N Dec. 432 (BIA
2008). Withholding or deferral of removal precludes removing the
alien to the particular country where the alien has established that
the alien would more likely than not face persecution or torture,
but ``a grant of withholding of removal * * * does not afford the
respondents any permanent right to remain in the United States. * *
* The regulations make clear that a grant of withholding does not
prevent DHS from removing an alien to a country other than the one
to which removal has been withheld.'' Id. at 434. Moreover, with
respect to aliens in the CNMI, we note that Congress has amended INA
section 212(d)(7), 8 U.S.C. 1182(d)(7), so that its provisions with
respect to the inadmissibility of aliens seeking to enter the
continental United States, or any other place under the jurisdiction
of the United States, will be applicable to aliens traveling from
the CNMI. See sec. 702(d) of Public Law 110-229.
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The CNRA amendments to the Covenant Act provide that the asylum
provisions of section 208 of the INA, 8 U.S.C. 1158, do not apply
during the transition period to persons physically present in or
arriving in the CNMI, including persons brought to the CNMI after
having been interdicted in international or United States waters. Sec.
6(a)(7) of Public Law 94-241, as added by sec. 702(a) of Public Law
110-229. The INA amendments also provide for delayed applicability of
the asylum laws in the CNMI, including those providing for asylee
adjustment of status. See sec. 702(j)(4) of Public Law 110-229; see
also INA sec. 208(e) and 235(b)(1), 8 U.S.C. 1158(e) and 1225(b)(1).
Under the CNRA amendments to the INA, however, the delay does not
extend throughout the transition period (ending December 31, 2014), as
the CNRA amendments to the INA only extend the inapplicability of the
asylum provisions under section 208 of the INA, 8 U.S.C. 1158, to
December 31, 2013. Id. These provisions, therefore, would seem to call
for lifting the statutory prohibition on seeking asylum for
applications filed on or after January 1, 2014. Id.
The Secretary and the Attorney General, however, have considered
the statutory discrepancy and conclude that the CNRA's provisions
regarding asylum are properly read to apply in the CNMI during the
entire transition period (ending December 31, 2014), rather than only
through December 31, 2013. This reading is in keeping with the
amendments to the Covenant Act and the intent of Congress, as evident
from the CNRA's language and the pertinent legislative history. As the
title of the relevant CNRA amendments, ``Conforming Amendments to the
Immigration and Nationality Act,'' indicates, the CNRA amendments to
the INA asylum provisions were to be ``conforming'' amendments. Sec.
702(j)(4) of Public Law 110-229. Because the CNRA amendments to the
Covenant Act are the source of authority for the requirement to extend
the immigration laws to the CNMI, and include the exception with
respect to the asylum provisions, the conforming amendments to the
asylum provisions in section 208 of the INA must be read to conform to
the substantive amendments to the Covenant Act that provide that asylum
will be unavailable to persons physically present in or arriving in the
CNMI during the entire time of the transition period. In other words,
in construing these provisions together, the one designated as the
conforming provision should be construed to conform to the primary
provision in the CNRA's amendments to the Covenant Act.
Moreover, the legislative history of the asylum-related provisions
suggests how the discrepancy arose. The CNRA was an omnibus bill (S.
2739, 110th Cong. (2008) (enacted)) that originated in the Senate and
contained numerous measures under the jurisdiction of the Senate
Committee on Energy and Natural Resources that had previously been
passed by the House of Representatives. One of these measures included
H.R. 3079, 110th Cong. (2008), a free-standing bill virtually identical
to what became the CNMI provisions of the CNRA (Title VII). The end
date of the transition period provided by H.R. 3079 varied in different
versions: December 31, 2017, in the bill as introduced, and December
31, 2013, in the bill as passed by the House and reported in the
Senate. In the version passed by the House and reported in the Senate,
the amendments to the asylum provisions provided for asylum eligibility
``on or after January 1, 2014,'' a date that conformed to the December
[[Page 55729]]
31, 2013 transition period end date. The intent was to provide for a
five-year transition period. If the bill had become law in 2007, the
year in which it was introduced, the transition period would have
lasted from 2008 to 2013. The Senate bill also provided for a five-year
transition period. However, with enactment occurring in 2008, the
transition period shifted to end one year later. In S. 2739, Congress
modified the December 31, 2013 date to 2014, but did not change the
January 1, 2014 date to 2015 to conform to the new transition period.
DHS and DOJ believe this to have been a technical oversight.
Where a statute includes a ``technical or clerical error'' such as
an erroneous date, courts ``look beyond a statute's literal language to
the statute's legislative history to fashion an interpretation that is
consistent with Congress's intention in passing the statute.''
Relocation Deadline Provision Contained in the 1996 Omnibus
Consolidated Rescissions and Appropriations Act, 20 Op. O.L.C. 209, 211
(1996) (interpreting statute including deadline that had already passed
when the statute was enacted); see also, e.g., Chickasaw Nation v.
United States, 534 U.S. 84, 88-89 (2001) (concluding that Congress
mistakenly included provision in statute because Court could ``find no
other reasonable reading''); U.S. Nat'l Bank of Or. v. Indep. Ins.
Agents of Am., Inc., 508 U.S. 439, 454-55 (1993) (disregarding
quotation marks that suggested meaning contrary to congressional
intent); United States v. Pabon-Cruz, 391 F.3d 86, 98, 104 (2d Cir.
2004) (concluding in light of legislative history that provision that
``ma[de] no sense'' grammatically was a drafting error); United States
v. Hartsock, 347 F.3d 1, 6 (1st Cir. 2003) (disregarding plainly
erroneous cross-reference in statute); Ronson Patents Corp. v.
Sparklets Devices, Inc., 102 F. Supp. 123, 124 (E.D. Mo. 1951)
(disregarding erroneous date in statute because the error was
``apparent on the face of the act and [could] be corrected by other
language of the act''); Memorandum Opinion for the General Counsel
Department of Transportation and the Acting Chief Counsel Bureau of
Alcohol, Tobacco, Firearms, and Explosives, from Jay S. Bybee,
Assistant Attorney General, Office of Legal Counsel, Re: Department of
Transportation Authority To Exempt Canadian Truck Drivers from Criminal
Liability for Transporting Explosives (Feb. 6, 2003) (concluding that
Congress omitted ``s'' from end of word because contrary interpretation
would yield ``absurd results''); Marketing Loans for Grains & Wheat, 16
Op. O.L.C. 114, 118-19 (June 3, 1992) (concluding based on textual
analysis and legislative history that statutory provision was
improperly denominated). Therefore, this rule uses the length of the
transition period as defined in the final legislation to set the length
of the inapplicability of section 208 of the INA, 8 U.S.C. 1158, in the
CNMI to run through December 31, 2014.
This rule establishes several amendments to conform the regulations
to the limitations on seeking asylum provided by the CNRA amendments to
the Covenant Act and the INA. These amendments are described below.
1. General Applicability of the Asylum Provisions to Aliens Present in
the CNMI Before January 1, 2015
This rule amends 8 CFR 208.1(a) by designating existing text as
paragraph (a)(1) and by making minor edits to paragraph (a)(1) to show
that the text in the paragraph is specific to ``chapter I'' and not
``chapter I and V'' of 8 CFR. Section 1208.1(a) is amended by
designating existing text as paragraph (a)(1) and by making minor edits
to paragraph (a)(1) to show that the text in the paragraph is specific
to ``chapter V'' and not ``chapter I and V'' of 8 CFR. As previously
explained, the DHS regulations relating to immigration are codified
principally in 8 CFR chapter I, while DOJ regulations relating to EOIR
are codified in 8 CFR chapter V, beginning with 8 CFR 1001.
This rule precludes the applicability of the provisions in subpart
A prior to January 1, 2015, to aliens physically present in or arriving
in the CNMI seeking asylum. See new 8 CFR 208.1(a)(2) and 1208.1(a)(2).
Therefore, an alien already present in or arriving in the CNMI, seeking
asylum prior to January 1, 2015, is not eligible to apply for asylum
until on or after January 1, 2015. In addition, since the bar imposed
by the CNRA amendments to the Covenant Act and INA is limited to
asylum, this rule clarifies that the bar does not extend to aliens
physically present in or arriving in the CNMI who establish eligibility
for withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), or withholding or deferral of removal under the regulations
implementing the Convention Against Torture. See new 8 CFR 208.1(a)(2)
and 1208.1(a)(2). For purposes of clarity upon the application of the
asylum provisions in the CNMI on or after January 1, 2015, this rule
divides existing 8 CFR 208.1(a) and 1208.1(a) into sub-paragraphs (1),
re-stating and not substantively modifying the existing general rule of
applicability, and (2), stating the CNMI-specific temporally limited
rule of applicability.
2. Jurisdiction of Immigration Judges Over Applications for Asylum
Filed by Aliens in the CNMI Under a Visa Waiver Program
This rule clarifies the jurisdiction of immigration judges over
applications for asylum under section 208 of the INA, 8 U.S.C. 1158,
withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), or withholding of removal under the regulations
implementing the Convention Against Torture, filed by aliens in the
CNMI who were admitted to the United States under the Visa Waiver
Program described in section 217 of the INA, 8 U.S.C. 1187, or the new
Guam-CNMI Visa Waiver Program under section 212(l) of the INA, 8 U.S.C.
1182(l), as provided by the CNRA.
As of the transition program effective date, under the Visa Waiver
Program described in section 217 of the INA, 8 U.S.C. 1187, visitors to
the United States (including Guam and the CNMI) from designated
countries will not need to obtain a visa in order to travel to the
United States as visitors for business or pleasure. Under the Guam-CNMI
Visa Waiver Program, visitors to Guam and the CNMI will not need a visa
to travel to Guam and the CNMI temporarily as visitors for business or
pleasure, but are generally required to obtain a visa to travel onward
to the rest of the United States. Under both programs, such aliens'
stay in the United States is subject to several limitations, including
limits on their eligibility for immigration benefits and a requirement
that they waive, with few exceptions, their right to contest their
removal. Accordingly, aliens admitted under a Visa Waiver Program are
not entitled to removal proceedings under section 240 of the INA, 8
U.S.C. 1229. However, they may obtain a hearing before an immigration
judge with respect to a claim for asylum (if available) or withholding
of removal or deferral of removal only. See new 8 CFR 208.2(c)(1)(iii)-
(iv) and 1208.2(c)(1)(iii)-(iv).
In light of the limitation in the CNRA that aliens physically
present in or arriving in the CNMI cannot apply for asylum prior to
January 1, 2015, the rule establishes that while an immigration judge
will have jurisdiction over asylum applications filed by aliens who are
seeking admission or have been admitted to the CNMI under a Visa Waiver
Program, the immigration judge will not have jurisdiction over claims
for asylum made in the CNMI before January 1, 2015. See new 8 CFR
[[Page 55730]]
208.2(c)(1)(iii), (iv), (vii), and (viii); and 1208.2(c)(1)(iii), (iv),
(vii), and (viii).
3. Deadline for Filing Asylum Applications for Aliens in the CNMI on or
After January 1, 2015
This rule clarifies the applicability of asylum application filing
deadlines to aliens present in or arriving in the CNMI. See new 8 CFR
208.4(a)(2)(ii) and 1208.4(a)(2)(ii). Under the statute and current
regulations, aliens seeking asylum must file their asylum applications
within one year of the date of their arrival in the United States,
unless an exception applies. See INA sec. 208(a)(2)(B), 8 U.S.C.
1158(a)(2)(B); 8 CFR 208.4(a)(2)(i) and 1208.4(a)(2)(i). Since aliens
in the CNMI seeking asylum will not be eligible to apply for asylum
until January 1, 2015, application of this general one-year filing
deadline without further clarification will render many otherwise
eligible aliens who have been present in the CNMI for more than a year
before January 1, 2015, ineligible to apply for asylum even though the
reason for the delayed ability to file was a temporary statutory
preclusion. Therefore, this rule applies the one-year filing deadline
from January 1, 2015, or from the date of the alien's last arrival in
the United States (including the CNMI), whichever is later. See new 8
CFR 208.4(a)(2)(ii) and 1208.4(a)(2)(ii). The rule provides, however,
that for aliens who last arrived in the United States (e.g., at
Honolulu) prior to January 1, 2015, any period of physical presence in
the United States since that last arrival (other than physical presence
in the CNMI prior to January 1, 2015) will count toward the 1-year
period. The purpose of that exception is to preclude aliens from
effectively restarting the 1-year period simply by traveling to CNMI
from another part of the United States. Prior to January 1, 2015,
aliens in the CNMI may only obtain protection from persecution or
torture through withholding of removal under section 241(b)(3) of the
INA, 8 U.S.C. 1231(b)(3), or withholding or deferral of removal under
the regulations implementing the Convention Against Torture.
4. Aliens in DHS Custody
This rule amends the regulations at 8 CFR 208.5 and 1208.5
governing aliens in DHS custody seeking asylum or expressing a fear of
persecution or torture if removed. The rule's amendment to 8 CFR
208.1(a) and 1208.1(a), discussed above, provides that this provision
does not apply to aliens present in the CNMI seeking asylum prior to
January 1, 2015, in conformity with the CNRA amendments. However, DHS
and DOJ believe that this provision requires clarification with respect
to such aliens in DHS custody who express a fear of persecution or
torture and may be eligible for withholding of removal under section
241(b)(3) of the INA, 8 U.S.C. 1231(b)(3), or withholding or deferral
of removal under the regulations implementing the Convention Against
Torture. Thus, this rule provides that such aliens present in the CNMI
cannot be excluded, deported, or removed before a decision is made on
these applications. See new 8 CFR 208.5(a) and 1208.5(a). This rule
also makes technical modifications to these provisions, as well as to
the title of the sections, replacing references to the Immigration and
Naturalization Service (Service) with references to DHS.
With respect to alien crewmembers in DHS custody expressing a fear
of persecution or torture, special application procedures apply. See
new 8 CFR 208.5(b) and 1208.5(b). We believe that these procedures also
require clarification in light of the CNRA amendments. Under the
current regulations, alien crewmembers who file a timely asylum
application, Form I-589, Application for Asylum and for Withholding of
Removal, will also be served with a Notice of Referral to Immigration
Judge, Form I-863, for consideration of their claim before an
immigration judge, rather than having their claim heard initially by
DHS. This rule clarifies that alien crewmembers in the CNMI may request
withholding of removal under section 241(b)(3) of the INA, 8 U.S.C.
1231(b)(3), and withholding of removal under the regulations
implementing the Convention Against Torture using this process, even
though they are not eligible to apply for asylum prior to January 1,
2015. See new 8 CFR 208.5(b)(1)(iii) and 1208.5(b)(1)(iii).
5. Aliens Arriving in the CNMI Expressing a Credible Fear of
Persecution or Torture
This rule makes conforming amendments to subparts B of 8 CFR parts
208 and 1208. Subparts B of CFR part 208 and 1208 begin at 8 CFR 208.30
and 1208.30, respectively. See 8 CFR 208.30 and 1208.30. These
regulations set forth the procedures for handling claims by aliens
arriving in the United States who express a credible fear of
persecution and implement section 235(b) of the INA, 8 U.S.C. 1225(b),
which governs the inspection of aliens arriving in the United States
(or otherwise not admitted or paroled to the United States), including
the screening of aliens for admissibility and the handling of claims of
asylum or fear of persecution or torture. The CNRA amended section 235
of the INA to clarify that it does not authorize aliens arriving in the
CNMI to apply for asylum prior to January 1, 2014. See sec. 702(j)(5)
of Public Law 110-229 (adding new section 235(b)(1)(G) of the INA, 8
U.S.C. 1225(b)(1)(G)).
Under the current regulations, these credible fear procedures apply
to aliens subject to section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1),
and they would include the amendment made by the CNRA barring aliens in
the CNMI from seeking asylum prior to January 1, 2014. See 8 CFR
208.30(a) and 1208.30(a). However, since the Secretary and the Attorney
General have interpreted January 1, 2014, to be an incorrect reference
to the end date of the transition period, as discussed above, this rule
modifies 8 CFR 208.30(a) and 1208.30(a) to ensure that the asylum bar
for aliens in the CNMI applies throughout the entire transition period,
the period prior to January 1, 2015. See new 8 CFR 208.30(a) and
1208.30(a). In addition, this rule clarifies that these provisions do
apply to aliens in the CNMI who establish eligibility for withholding
of removal or protection under the regulations implementing the
Convention Against Torture. Id.; see also new 8 CFR 208.30(e)(2) and
existing 208.30(e)(3).
6. Eligibility of Asylees Physically Present in the CNMI to Adjust
Status to That of an LPR
This rule amends the eligibility requirements for an asylee seeking
to adjust his or her status to that of an LPR. An asylee may not adjust
his or her status to that of an LPR while present in the CNMI until on
or after January 1, 2015. See new 8 CFR 209.2(a)(3) and 1209.2(a)(3).
This preclusion applies even if that applicant was granted asylum and
relocated to the CNMI from elsewhere within the United States. This
rule conforms the regulations to the preclusion of adjustment of status
to such aliens required by section 702(j)(4) of the CNRA (adding new
section 208(e) of the INA, 8 U.S.C. 1158(e)).
7. Procedures for Immigration or Asylum Officers for Referring Cases to
the Immigration Judge
This rule makes conforming amendments to those regulatory
provisions governing the applicable procedures for handling claims by
arriving aliens who express a credible fear of persecution. These
conforming amendments clarify that, with respect to aliens arriving in
the CNMI, these application procedures do not apply to
[[Page 55731]]
applications for asylum filed prior to January 1, 2015, but do apply to
such applications based upon eligibility for withholding of removal
based on section 241(b)(3) of the INA. Determinations involving a
credible fear of torture will be unaffected by the regulation. See new
8 CFR 217.4(a)(1), 235.6(a)(1)(ii) and (iii), and 1235.6(a)(1)(ii) and
(iii).
D. Eligibility for Adjustment of Status for Immediate Relative Aliens
Admitted Under the Guam-CNMI Visa Waiver Program
The CNRA amended the INA to provide for a special visa waiver
program for the CNMI by creating a new Guam-CNMI Visa Waiver Program,
which will supersede the current Guam Visa Waiver Program. See sec.
702(b) of Public Law 110-229. Under the new Guam-CNMI Visa Waiver
Program, citizens or nationals of eligible countries may apply for
admission to Guam or the CNMI at ports of entry in Guam or the CNMI as
nonimmigrant visitors for a period of 45 days or less, for business or
pleasure, without first obtaining a nonimmigrant visa, provided that
they are otherwise eligible for admission under applicable statutory
and regulatory requirements. U.S. Customs and Border Protection (CBP)
is implementing the CNRA's creation of the Guam-CNMI Visa Waiver
Program, including amending the applicable regulatory provisions at 8
CFR 212.1(e) and 212.1(q). DOJ will similarly revise its duplicate
provisions at 8 CFR 1212.1(e) and add a new section 1212.1(q); however,
these two paragraphs are being revised to omit regulatory provisions
pertaining solely to matters within DHS's authority, by cross-
referencing rather than restating in full those provisions in the DHS
regulations at 8 CFR 212.1(e) and (q).
Currently, under 8 CFR 245.1(b)(7) and 1245.1(b)(7), an alien
admitted into Guam under the Guam Visa Waiver Program or the Visa
Waiver Program under section 217 of the INA is prohibited from
adjusting his or her status to that of an LPR. See INA sec. 245(c)(4),
8 U.S.C. 1255(c)(4); 8 CFR 245.1(b)(7) and (8), 1245.1(b)(7) and (8).
An exception to this ineligibility is when the alien is an ``immediate
relative.'' See INA sec. 245(c)(4), 8 U.S.C. 1255(c)(4) (permitting
``immediate relatives'' admitted under the Visa Waiver Program to
adjust status); see generally INA sec. 201(b)(2)(A)(i), 8 U.S.C.
1151(b)(2)(A)(i) (defining ``immediate relative''). An example of an
immediate relative is an alien spouse of a U.S. citizen. The current
provisions excluding aliens admitted under the Guam Visa Waiver Program
from adjusting status, 8 CFR 245.1(b)(7), 212.1(e)(4)(i), 1245.1(b)(7)
and 1212.1(e)(4)(i), do not contain the statutory exception for
immediate relatives, nor do the provisions at 8 CFR 212.1(q)(4)(i) of
the interim final rule implementing the Guam-CNMI Visa Waiver Program.
Therefore, this rule amends 8 CFR 212.1(e)(4)(i) and (q)(4)(i),
245.1(b)(7), and 1245.1(b)(7) and adds a new 8 CFR 1212.1(q)(4)(i) to
provide that immediate relatives admitted to Guam or to the CNMI (on or
after the transition program effective date) under the Guam-CNMI Visa
Waiver Program remain eligible to apply for adjustment of status under
INA section 245(a) and 8 CFR 245.1(a) and 1245.1(a).
E. Verification of Employment Authorization in the CNMI
Upon the transition program effective date, employers and certain
recruiters and referrers for a fee \3\ (collectively referred to as
``employer(s)'') in the CNMI will be subject to the same prohibitions
as other employers in the United States against knowingly employing
aliens who are not authorized to work in the United States, since the
addition of the CNMI to the United States as defined by the INA will
apply section 274A of the INA in full to the CNMI. See sec. 6(a)(1) of
Public Law 94-241, as added by sec. 702(a) of Public Law 110-229; INA
sec. 274A(a)(1)(A), 8 U.S.C. 1324a(a)(1)(A). These employers also will
be subject to the same responsibilities as other employers in the
United States for taking steps to ensure that their workforce is
authorized for employment. See INA sec. 274A(b), 8 U.S.C.
1324a(a)(1)(B). This rule establishes conforming amendments to the
regulations to ensure the proper application of these laws to employers
in the CNMI within the parameters of the CNRA.
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\3\ 8 CFR 274a.2(a)(1) provides that ``[f]or purposes of
complying with section 274A(b) of the Act and this section, all
references to recruiters and referrers for a fee are limited to a
person or entity who is either an agricultural association,
agricultural employer, or farm labor contractor (as defined in
section 3 of the Migrant and Seasonal Agricultural Worker Protection
Act, Public Law 97-470 (29 U.S.C. 1802)).'' However, the anti-
discrimination provisions of section 274B of the Act contain no such
limitation. The Act broadly prohibits discrimination by ``any
individual or other entity with respect to * * * recruitment or
referral for a fee.'' INA sec. 274B(a)(1), 8 U.S.C. 1324b(a)(1).
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In addition, upon the transition program effective date, employers
and other entities in the CNMI will be subject to the anti-
discrimination provisions of the INA, which make it unlawful for a
person or any other entity to discriminate on the basis of citizenship
status or national origin in the hiring, employment eligibility
verification process, firing, or recruitment or referral for a fee of
an individual. See INA sec. 274B, 8 U.S.C. 1324b; 28 CFR Parts 44 and
68. Further, upon the transition program effective date, individuals in
the CNMI will be subject to the civil document fraud provisions of the
INA (in addition to criminal penalties for U.S. immigration-related
document fraud already applicable under title 18 of the U.S. Code),
which generally make it unlawful for any person or entity to use
fraudulent documents for various purposes under the INA. See INA sec.
274C, 8 U.S.C. 1324c.
1. Employment Eligibility Verification Process
It is unlawful for any employer in the United States to hire an
individual knowing that he or she is unauthorized to work in the United
States with respect to that employment. See INA sec. 274A(a)(1)(A), 8
U.S.C. 1324a(a)(1)(A). An alien is unauthorized to work if he or she is
not an LPR or is not authorized to work under specific provisions of
the INA or by DHS. See INA sec. 274A(h)(3), 8 U.S.C. 1324a(h)(3). If an
employer hires an individual without knowledge that he or she is
unauthorized to work in the United States, but gains this knowledge
after the hire, or learns after the hire that the individual has become
unauthorized to work, it is unlawful for the employer to continue to
employ such individual. See INA sec. 274A(a)(2), 8 U.S.C. 1324a(a)(2).
Consequences for violating these prohibitions include civil money
penalties and, in some cases, criminal penalties. See INA sec. 274A(e),
(f), and (g), 8 U.S.C. 1324a(e), (f), and (g).
To better ensure that employers do not hire unauthorized aliens in
the first place, the INA makes it unlawful for employers to hire an
individual for employment in the United States without verifying the
identity and employment authorization of such individual, regardless of
the individual's citizenship. See INA sec. 274A(a)(1)(B), 8 U.S.C.
1324a(a)(1)(B). As part of the verification process, employers must
complete a Form I-9, retain the form for a statutorily-established
period, and make the form available for inspection by certain
government officials. See INA sec. 274A(b), 8 U.S.C. 1324a(b); 8 CFR
274a.2. On Form I-9, a newly-hired employee must attest that he or she
is a U.S. citizen or national, LPR, or an alien otherwise authorized to
work in
[[Page 55732]]
the United States. The employee then must present a document from List
A or a combination of documents from List B and C designated by statute
or regulation and listed on Form I-9 as acceptable for establishing
identity and employment authorization to his or her employer. The
employer must examine the documents, record the document information on
Form I-9, and attest that the documents appear both to be genuine and
to relate to the individual presenting them.
2. Employment Authorization Documentation
After the transition program effective date, CNMI employers may
hire or continue to employ aliens whose work authorization was granted
under CNMI law before the transition program effective date within
certain limitations. The Covenant Act amended by the CNRA contains a
``grandfather clause'' allowing alien workers in the CNMI lawfully
present and authorized to be employed in the CNMI on the transition
program effective date to be considered work authorized in the CNMI
until their employment authorization expires under CNMI law, or for two
years, whichever is shorter. Sec. 6(e)(2) of Public Law 94-241, as
added by sec. 702(a) of Public Law 110-229. Therefore, employers who
employ such aliens in the CNMI will not be in violation of the
prohibition against knowingly hiring or continuing to employ an
unauthorized alien, so long as the employment is consistent with the
CNMI authorization.
This rule will allow aliens with unrestricted work authorization in
the CNMI under the grandfather clause discussed above to present to
their employers CNMI-specific documents in order to meet employment
verification requirements. The Department of Labor of CNMI issues to
aliens in the CNMI the following documentation evidencing work
authorization:
An Alien Entry Permit (with a red band) that shows the
name of the alien, employer, job classification, citizenship,
expiration date of the Alien Entry Permit, and the Alien Entry Permit
number; \4\ and
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\4\ CNMI Public Law 15-108 Sec. 4925. It is DHS' understanding
that cards provided to immediate relatives, aliens given refugee
protection, or others with unrestricted work authorization have red
bands, and cards provided to aliens authorized to work with a
specific employer have blue bands. For this reason, the rule
specifies that only red-banded Alien Permit Cards would be
acceptable.
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A Temporary Work Authorization letter containing a
photograph.\5\
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\5\ CNMI Public Law 15-108 Sec. 4947(f) provides that a ``* * *
hearing officer may authorize a foreign national worker to be
employed in the Commonwealth on a temporary basis pending a hearing
with respect to a labor complaint. A temporary work authorization
shall end two (2) business days after the hearing officer's order is
issued.''
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In addition, CNMI issued permanent resident cards to aliens who
were granted permanent resident status under CNMI law between April 1,
1977 and April 23, 1981.\6\ This rule provides that these documents in
combination with the alien's unexpired foreign passport are acceptable
documents for completion of Form I-9 CNMI for new hires in the CNMI.
See new 8 CFR 274a.2(b)(1)(v)(D). These documents establish both
identity and work authorization for a two-year period starting from the
transition program effective date. The limited duration of this
provision parallels the period during which such aliens are authorized
to work under the grandfather clause.
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\6\ Under Northern Mariana Islands Public Law 5-11 Sec. 4, which
became effective April 1, 1977, the Resident Commissioner (the
highest executive authority of the Government of the Northern
Mariana Islands at the time appointed by the Secretary of the
Interior) was authorized to issue permanent identification cards to
persons granted permanent residence status pursuant to the
provisions of Northern Mariana Islands Public Law 5-11. Northern
Mariana Islands Public Law 5-11, however, was repealed in 1981 by
CNMI Public Law 2-17. Public Law 2-17, Sec. 2 preserved the rights
and status of persons who were granted or applied for permanent
residency status pursuant to prior Northern Mariana Islands Public
Law 5-11.
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DHS has determined that, because of the limited situation and
timeframe for verifying employment authorization for new hires in the
CNMI, it is appropriate to designate certain limited documents that are
used only in the CNMI as List A documents for Form I-9 purposes in the
CNMI.
DHS is not amending Form I-9 (OMB Control Number 1615-0047) by
adding CNMI-specific documents to its lists of acceptable documents and
is instead creating a new form, Form I-9 CNMI, Employment Eligibility
Verification, to be used by CNMI employers to document authorized
employment. This form will contain new acceptable documents specific to
the CNMI as described above. DHS determined that amending the form used
for the 78 million estimated annual new hires and re-verifications in
the U.S. to add CNMI-exclusive documents on the List of Acceptable
Documents would result in unnecessary expense and confusion because
those documents are not acceptable for Form I-9 purposes in the
remainder of the United States. U.S. employers therefore will not be
required under this rule to learn about documents that apply to a very
limited geographic area and relatively small number of employers.
Employers in any other part of the United States may not accept the
CNMI documents specified in this rule to satisfy documentation
requirements of the Form I-9. The identification documents for all
other employers will continue to be as currently provided in 8 CFR
274a.2(b)(1)(v).
DHS has also considered what documentation may reasonably be
available to U.S. nationals and others who are authorized to work in
the CNMI for the purpose of documenting their employment authorization.
Under the applicable statutes and regulations that will be in effect
beginning on the transition program effective date, the CNMI will be a
``State'' as defined by section 101(a)(36) of the INA, so U.S.
nationals, LPRs, and categories of aliens eligible to obtain
unrestricted Social Security cards (i.e., those without a restrictive
legend limiting the card's use as evidence of employment authorization)
can present the CNMI driver's license and Social Security card
combination, or a U.S. passport, Permanent Resident Card, Employment
Authorization Document (EAD) or other appropriate employment
authorization document or documents. See 8 CFR 274a.2(b)(1)(v)(A)-(C).
Nationals of the Marshall Islands and the Federated States of
Micronesia may use a passport and Form I-94 showing admission under the
Compacts of Free Association, and may also apply for an EAD; nationals
of Palau will need to obtain an EAD. DHS is not aware at the present
time of other specific accommodations to the CNMI relating to Form I-9
identity or employment authorization documentation that may be
necessary, but invites public comment on this subject.
3. Application of the Hiring Prohibitions to Employers in the CNMI
The prohibitions in section 274A of the INA, 8 U.S.C. 1324a,
against the hiring of unauthorized aliens and the hiring of individuals
without verifying their identity and employment authorization are
applicable to any hiring in the United States on or after November 6,
1986 (the effective date of the prohibitions). See 8 CFR 274a.7; see
also 8 CFR 274a.1(c). Although the provisions of section 274A do not
apply in the CNMI until the transition period effective date, as of
that date they will apply as stated in the INA. Therefore, Form I-9
requirements, using Form I-9 CNMI, should apply to hiring in the CNMI
actually conducted on or after the transition program effective date.
The current provision at 8 CFR 274a.7 provides that the civil and
criminal penalties associated with violating the
[[Page 55733]]
employment authorization requirements or knowingly continuing to employ
unauthorized aliens will not apply to hires on or before November 6,
1986. To make the necessary conforming amendments to the current
regulations, this rule amends 8 CFR 274a.7 to recognize that the
penalties will not apply to hires in the CNMI prior to the transition
program effective date. This rule would preclude application of these
penalties to CNMI employers for potential employment authorization
documentation violations committed after November 28, 2009 with respect
to hires occurring before November 28, 2009. Therefore, under this
rule, the employment authorization documentation requirements and
associated penalties apply to any new hiring in the CNMI on or after
November 28, 2009; a CNMI employer is not subject to penalties if it
does not complete the Form I-9 CNMI for an employee continuing in his
or her employment. See 8 CFR 274a.7.
This rule does not, however, provide a safe harbor to CNMI
employers with knowledge that employees hired prior to the transition
program effective date are unauthorized for employment. For this
reason, the rule does not amend 8 CFR 274a.3, which provides that an
employer is in violation of section 274A if it continues the employment
of any alien hired on or after November 6, 1986, knowing that the
employee is or has become unauthorized to be employed with respect to
that employment. Although a Form I-9 CNMI is not required for employees
continuing in their employment on the transition program effective
date, DHS does not believe that CNMI employers should continue the
employment of an individual on or after the transition date if they
know that the individual is unauthorized to work. In particular,
exempting CNMI employers from liability for ignoring expiration of CNMI
work authorizations during the grandfather clause period would permit
them to continue the employment of an alien worker during the period
between expiration of his or her work authorizations (a date which,
under the CNMI labor permitting system, is known to the employer) and
the end of the grandfather period.
As described in 8 CFR 274a.3, the continuing employment prohibition
applies to an employer who continues the employment of an alien hired
after November 6, 1986, knowing that the employee is or has become an
unauthorized alien with respect to that employment. This provision
applies in the CNMI to impose penalties on an employer who, on or after
the transition program effective date, knowingly employs an
unauthorized alien hired after November 6, 1986, regardless whether a
Form I-9 CNMI is required to be completed on the employee (which it
would not be unless the hire was on or after the transition program
effective date). An employee who is employed under a valid
``grandfathered'' grant of CNMI work authorization during the first two
years of the transition period is not an ``unauthorized alien,''
because the employee would be authorized by DHS under the amendments to
8 CFR 274a.l2 also made by this rule. Rather, the violation would occur
if the employer knew that the employee's grandfathered work
authorization grant had expired, but continued the employment anyway.
4. Contracting for Labor or Services
If a person or entity has entered into a contract for the labor or
services of an individual, the action is not necessarily considered a
``hire'' triggering section 274A of the Act, 8 U.S.C. 1324a, including
the Form I-9 requirements. However, the law provides that if the person
or entity uses a contract entered, renegotiated, or extended after
November 6, 1986 to obtain the labor or services of an alien knowing
that the alien is unauthorized for employment in the United States with
respect to such labor or services, the person or entity will be
considered to have knowingly hired the individual in violation of
section 274A(a)(4) of the Act, 8 U.S.C. 1324a(a)(4). This provision is
implemented in the current regulations at 8 CFR 274a.5 and in the
definition of ``hire'' at 8 CFR 274a.1(c). This rule amends these
provisions to provide that they are applicable in the CNMI to contracts
entered into, renegotiated, or extended on or after the transition
program effective date. See 8 CFR 274a.5 and 274a.1(c). DHS believes
that amendments to these provisions to cover actions occurring in the
CNMI on or after section 274A becomes applicable will avoid retroactive
application of the law to the CNMI.
F. Employment Authorization of Aliens With Employment Authorization
Granted by the CNMI
In order to conform the DHS work authorization regulations to the
previously discussed ``grandfather clause'' authorizing employment for
up to two years after the transition program effective date, this rule
adds a new classification of CNMI aliens to the list of alien
classifications authorized for employment incident to status with a
specific employer. See new 8 CFR 274a.12(b)(24). Such work
authorization is limited to employment in the CNMI only, and within the
time limitations set by the Covenant Act sec. 6(e)(2) (added by CNRA
sec. 702(a)). DHS determined that it would be most reasonable to
include this class of CNMI aliens within the list of alien
classifications authorized to work incident to status with a specific
employer since most aliens in the CNMI are granted employer-specific
work authorization under CNMI law. However, some aliens are granted
unrestricted work authorization. Therefore, this rule includes a
distinction within new 8 CFR 274a.12(b)(24) to account for aliens with
employer-specific work authorization.
Employers continuing the employment of aliens with CNMI work
authorization under the grandfather clause will not be required to
complete a Form I-9 CNMI for these employees on the transition program
effective date because the Form I-9 requirements apply only to hiring
on or after the transition program effective date, and not continuing
employment. Unless they are permitted to change employers under their
CNMI work authorization, most aliens with employer-specific CNMI work
authorization will need to continue their employment with the same
employer on or after the transition program effective date to be deemed
employment-authorized under the grandfather clause. As provided in 8
CFR 274a.12(b)(24), employees who are authorized by the CNMI as of the
transition program effective date to change employers may do so,
whether the approval to change is employer-specific or in the form of
unrestricted work authorization. For aliens with unrestricted CNMI work
authorization or who are permitted to change employers, Forms I-9 CNMI
will need to be completed for hires on or after the transition program
effective date.
G. Technical Changes
This rule corrects an error in 8 CFR 217.4(a)(1) and (b)(1). These
provisions provide for determinations of inadmissibility and
deportability with respect to aliens arriving to the United States
under the Visa Waiver Program, codified in section 217 of the INA, 8
U.S.C. 1187. Both paragraphs (a)(1) and (b)(1) in 8 CFR 217.4 require
aliens seeking admission to the United States under the Visa Waiver
Program who apply for asylum to be referred to the immigration judge
for a proceeding under 8 CFR 208.2(b)(1) and (b)(2). However, the cross
references to 8 CFR 208.2(b)(1) and (b)(2) are incorrect. The provision
at 8 CFR 208.2(b) describes the general jurisdiction of the Immigration
Court over asylum
[[Page 55734]]
applications and does not contain paragraphs (b)(1) and (b)(2). The
provisions to which the cross references should apply are the
provisions applicable to aliens not entitled to removal proceedings
under section 240 of the INA, 8 U.S.C. 1229, with respect to
applications for asylum and withholding of removal filed on or after
April 1, 1997. The applicable provisions are 8 CFR 208.2(c)(1) and
(c)(2), which this rule is amending by including a discussion of aliens
arriving in the CNMI before January 1, 2015. To correct the error in 8
CFR 217.4(a)(1) and (b)(1), this rule replaces the reference to 8 CFR
208.2(b)(1) and (2) with a reference to 8 CFR 208.2(c)(1) and (c)(2).
See new 8 CFR 217.4(a)(1) and (b)(1).
This rule also corrects an error in 8 CFR 208.1(a) and 8 CFR
1208.1(a). These provisions generally reference applicability of
section 208 of the INA, 8 U.S.C. 1158. Both paragraphs reference
motions to reopen and reconsider under section 240(c) of the INA, 8
U.S.C. 1229, and currently include references to sections 240(c)(5) and
(6) of the INA, 8 U.S.C. 1229. However, pursuant to section 101(d)(1)
of the REAL ID Act of 2005, Public Law 109-13, the provisions dealing
with motions to reconsider and reopen previously codified at sections
240(c)(5) and (6) of the INA, 8 U.S.C. 1229, were re-designated as
sections 240(c)(6) and (7) of the INA, 8 U.S.C. 1229. To correct this
error in 8 CFR 208.1(a) and 8 CFR 1208.1(a), this rule replaces
references to sections 240(c)(5) and (6) of the INA, 8 U.S.C. 1229,
with references to sections 240(c)(6) and (7) of the INA, 8 U.S.C.
1229. See 8 CFR 208.1(a)(1) and 1208.1(a)(1).
In addition to the changes being addressed in this rule, DOJ
recognizes the need to make further conforming changes updating and
harmonizing the EOIR provisions at chapter V to take account of various
other recent conforming revisions already made by DHS to 8 CFR chapter
I, particularly sections 212.0, 212.1, 215.1, and 235.5. See 74 FR 2834
(Jan. 16, 2009), as revised, 74 FR 25388 (May 28, 2009); 73 FR 18384
(Apr. 3, 2008). DOJ plans to thoroughly review these provisions to
determine whether it will retain these provisions or, in a future
rulemaking, make further changes to delete provisions from the
corresponding EOIR regulations (sections 1212.1, 1215.1, and 1235.5)
that have been determined to be no longer within the jurisdiction of
the Attorney General and do not need to be restated in the DOJ
regulations. DOJ expects that such a future rulemaking may address
other recent revisions made by DHS as part of the recent DHS interim
rule published at 74 FR 26933 (June 5, 2009). Although such changes are
not being incorporated into the present rule (which is more
specifically focused on the CNMI), DOJ welcomes public comment with
regard to these planned revisions.
V. Regulatory Requirements
A. Administrative Procedure Act
The Administrative Procedure Act (APA) provides that an agency may
dispense with notice and comment rulemaking procedures when an agency,
for ``good cause,'' finds that those procedures are ``impracticable,
unnecessary, or contrary to the public interest.'' See 5 U.S.C.
553(b)(B). For reasons discussed below, DHS and DOJ find pre-
promulgation notice and comment for this rule to be impracticable,
unnecessary, and contrary to the public interest.
As noted earlier, the CNRA amends both the INA and the Covenant Act
to extend U.S. immigration laws to the CNMI. These changes become
effective on the transition program effective date, which is November
28, 2009. Because this rulemaking simply conforms the regulations with
the applicable statute, notice and comment procedures are
``unnecessary,'' and the ``good cause'' exception to the APA's notice-
and-comment requirement, see 5 U.S.C. 553(b)(B), therefore is
applicable. See, e.g., Gray Panthers Advocacy Comm. v. Sullivan, 936
F.2d 1284, 1290-92 (D.C. Cir. 1991) (regulations that ``either restate
or paraphrase the detailed requirements'' of a self-executing statute
do not require notice and comment); Komjathy v. Nat'l Transp. Safety
Bd., 832 F.2d 1294, 1296 (D.C. Cir. 1987) (per curiam) (regulation that
``merely reiterates the statutory language'' does not require notice
and comment); Nat'l Customs Brokers & Forwarders Ass'n v. United
States, 59 F.3d 1219, 1223-24 (Fed. Cir. 1995) (notice and comment
unnecessary where Congress directed agency to change regulations and
public would benefit from amendments).
Furthermore, given the short timeframe available to develop the
complex regulatory scheme necessary to ensure a smooth transition of
the CNMI to the U.S. federal immigration system, the ``good cause''
exception also is applicable because it would be ``impracticable'' and
``unnecessary,'' 5 U.S.C. 553(b)(B), for the Departments to delay
implementation of this rule to first consider public comment. Under the
APA, an agency is authorized to forego notice and comment, in emergency
situations, or where ``the delay created by the notice and comment
requirements would result in serious damage to important interests.''
Woods Psychiatric Institute v. United States, 20 Cl. Ct. 324, 333 (Cl.
Ct. 1990), aff'd, 925 F.2d 1454 (Fed. Cir. 1991). ``[W]hen there is a
lack of specific and immediate guidance from the agency that would
create confusion, economic harm, and disruption, not only to the
participants of the program, who are forced to rely on antiquated
standards, but would also extend to consumers in general, the good
cause exception is a proper solution to ameliorate this expected
harm.'' Woods, 20 Cl. Ct. at 333; see also, e.g., N. Am. Coal Corp. v.
Director, Office of Workers' Compensation Programs, U.S. Dep't of
Labor, 854 F.2d 386, 389 (10th Cir. 1988) (finding good cause where
delay would cause ``real harm''); Philadelphia Citizens in Action v.
Schweiker, 669 F.2d 877, 886 (3d Cir. 1982) (finding good cause in
light of statutory deadline); Council of S. Mountains, Inc. v. Donovan,
653 F.2d 573, 575 (D.C. Cir. 1981) (per curiam) (finding good cause
where agency had insufficient time to follow notice-and-comment
procedures despite working diligently to meet deadline); United States
v. Hernandez, 615 F. Supp. 2d 601, 613 (E.D. Mich. 2009) (finding good
cause where agency acted ``to prevent a delay in implementation that
could jeopardize the safety of the public and thwart the purposes of''
the statute). Under the CNRA, the transition will begin on November 28,
2009, even if regulations to guide the CNMI are not yet in place. Thus,
the failure to have an effective interim regulation in place by the
beginning of the transition period would serve only to confuse and harm
the CNMI and aliens residing in the CNMI following the transition. This
would have an adverse impact on the CNMI economy in direct contrast to
congressional intent under the CNRA and would be contrary to an
important public interest.
Although DOJ and DHS find that good cause exists under 5 U.S.C.
553(b) to issue this rule as an interim rule, DOJ and DHS nevertheless
invite written comments on this interim rule and will consider those
comments in the development of a final rule in this action.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), Public Law 104-121, 110 Stat. 847, 857, requires Federal
agencies to consider the potential impact of regulations on small
businesses, small governmental jurisdictions, and small
[[Page 55735]]
organizations during the development of their rules. When an agency
invokes the good cause exception under the Administrative Procedure Act
to make changes effective through an interim final rule, the RFA does
not require an agency to prepare a regulatory flexibility analysis. See
5 U.S.C. 603(a). This rule makes changes for which notice and comment
are not necessary, and, accordingly, DHS and DOJ have not prepared a
regulatory flexibility analysis.
C. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public
Law 104-4, 109 Stat. 48, requires agencies to assess the effects of
their regulatory actions on State, local, and tribal governments and
the private sector if the rule will result in expenditures exceeding
$100 million (adjusted for inflation) in any one year. 2 U.S.C.
1532(a). This rule will not result in the expenditure by State, local,
and tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. The CNRA will cause some changes for
the CNMI government since they will no longer be implementing their own
immigration, foreign worker, and border security program. However, the
costs of administering that program will no longer be incurred by the
CNMI government. Therefore, no actions were deemed necessary under the
provisions of the Unfunded Mandates Reform Act of 1995.
D. Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
SBREFA. See 5 U.S.C. 804(2). This rule will not result in an annual
effect on the economy of $100 million or more; a major increase in
costs or prices; or significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
United States-based companies to compete with foreign-based companies
in domestic and export markets.
E. Executive Order 12866
This rule has been designated as significant under Executive Order
12866. Therefore, an analysis of the costs and benefits of this rule
has been performed and the rule has been reviewed by the Office of
Management and Budget.
This rule contains only such regulations as are required to provide
that U.S. immigration law will apply to the CNMI. This rule establishes
provisions necessary for the application of the INA to the CNMI, and
updates definitions and clarifies existing DHS and DOJ regulations in
areas that may prove confusing or be in conflict with how they are to
be applied after the INA takes effect in the CNMI. These statutory
requirements, including imposition of any applicable application,
petition, or user fees, would mostly be self-implementing in the
absence of this regulatory action. The stated goals of the CNRA are to
ensure effective border control procedures, to properly address
national security and homeland security concerns by extending U.S.
immigration law to the CNMI, and to maximize the CNMI's potential for
future economic and business growth. While those goals are expected to
be partly facilitated by the changes made in this rule, they are
general and qualitative in nature. There are no specific changes made
by this rule with sufficiently identifiable direct or indirect economic
impacts so as to be quantified. There may be some inconvenience costs
associated with the need for residents of the CNMI to adjust to
application of the INA; however, those costs are independent of and
would occur regardless of this rule. The CNRA mandates a 5-year
transition, and provides for other programs that will mitigate the
economic effects of the CNRA and allow for a less turbulent transition
for the CNMI. The regulations for those programs are being implemented
and their effects have been analyzed under separate rulemakings. This
rule is limited to harmonization of DHS, DOJ, and CNMI rules and has no
economic costs.
F. Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
G. Executive Order 12988 Civil Justice Reform
This rule meets the applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13,
109 Stat. 163, all Departments are required to submit to OMB, for
review and approval, any reporting or recordkeeping requirements
inherent in a regulatory action. The collections of information
encompassed within this rule have been submitted to the OMB for review
in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3507.
An agency may not conduct, and a person is not required to respond to,
a collection of information unless the collection of information
displays a valid control number assigned by OMB.
The United States Citizenship and Immigration Services is requiring
a new Form I-9 CNMI, to collect the information required to document
that each new employee (both citizen and noncitizen) hired in the
Commonwealth of the Northern Mariana Islands (CNMI) after November 27,
2009, is authorized to work in the CNMI. Since this is an interim rule,
this information collection has been submitted and approved by OMB
under the emergency review and clearance procedures covered under the
PRA. See 44 U.S.C. 3507(j). During the first 30 days, USCIS is
requesting comments on this information collection until November 27,
2009. When submitting comments on this information collection, your
comments should address one or more of the following four points.
(1) Evaluate whether the collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimate of the burden of
the collection of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to
be collected; and
(4) Minimize the burden of the collection of information on those
who are to respond,
(5) Including through the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology, e.g., permitting electronic submission of
responses.
Overview of this information collection:
a. Type of information collection: New information collection.
b. Abstract: This collection is necessary to document that each new
employee (both citizen and noncitizen)
[[Page 55736]]
hired in the Commonwealth of the Northern Mariana Islands (CNMI) after
November 27, 2009, is authorized to work in the CNMI.
c. Title of Form/Collection: CNMI Employment Eligibility
Verification.
d. Agency form number, if any, and the applicable component of the
Department of Homeland Security sponsoring the collection: Form I-9
CNMI; U.S. Citizenship and Immigration Services.
e. Affected public who will be asked or required to respond:
Primary: Individuals and Households.
f. An estimate of the total number of respondents: 1,700
respondents.
g. Number of Responses per Respondent: 1.
h. Total Annual Responses: 1,700.
i. Hours per Response: 9 minutes or .15 hours per response, and 3
minutes or .05 per response for recordkeeping.
j. Total Annual Reporting Burden: 340 hours.
Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden may be submitted to the Department
of Homeland Security, USCIS, Chief, Regulatory Products Division,
Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210.
List of Subjects
8 CFR Parts 1 and 1001
Aliens, Reporting and recordkeeping requirements.
8 CFR Parts 208 and 1208
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Parts 209 and 1209
Aliens, Immigration, Refugees.
8 CFR Parts 212 and 1212
Administrative practice and procedure, Aliens, Immigration,
Passports and visas, Reporting and recordkeeping requirements.
8 CFR Part 214
Administrative practice and procedure, Aliens, Cultural exchange
programs, Employment, Foreign officials, Health professions, Reporting
and recordkeeping requirements, Students.
8 CFR Part 217
Aliens, Reporting and recordkeeping requirements.
8 CFR Parts 235 and 1235
Administrative practice and procedure, Aliens, Immigration,
Reporting and recordkeeping requirements.
8 CFR Parts 245 and 1245
Aliens, Reporting and recordkeeping requirements.
8 CFR Part 274a
Administrative practice and procedure, Aliens, Employment,
Penalties, Reporting and recordkeeping requirements.
8 CFR Part 286
Air carriers, Immigration, Maritime carriers, Reporting and
recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Department of Homeland Security
8 CFR Chapter I
0
Accordingly, chapter I of Title 8 of the Code of Federal Regulations is
amended as follows:
PART 1[horbar]DEFINITIONS
0
1. The authority citation for part 1 is revised to read as follows:
Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public
Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); Title VII of
Public Law 110-229.
0
2. Section 1.1 is amended by adding a new paragraph (bb) to read as
follows:
Sec. 1.1 Definitions.
* * * * *
(bb) The term transition program effective date as used with
respect to extending the immigration laws to the Commonwealth of the
Northern Mariana Islands means November 28, 2009.
PART 208--PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
3. The authority citation for part 208 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229; 8 CFR part 2.
0
4. Section 208.1(a) is revised to read as follows:
Sec. 208.1 General.
(a) Applicability. (1) General. Unless otherwise provided in this
chapter I, this subpart A shall apply to all applications for asylum
under section 208 of the Act or for withholding of deportation or
withholding of removal under section 241(b)(3) of the Act, or under the
Convention Against Torture, whether before an asylum officer or an
immigration judge, regardless of the date of filing. For purposes of
this chapter I, withholding of removal shall also mean withholding of
deportation under section 243(h) of the Act, as it appeared prior to
April 1, 1997, except as provided in Sec. 208.16(d). Such applications
are referred to as ``asylum applications.'' The provisions of this part
208 shall not affect the finality or validity of any decision made by a
district director, an immigration judge, or the Board of Immigration
Appeals in any such case prior to April 1, 1997. No asylum application
that was filed with a district director, asylum officer, or immigration
judge prior to April 1, 1997, may be reopened or otherwise reconsidered
under the provisions of this part 208 except by motion granted in the
exercise of discretion by the Board of Immigration Appeals, an
immigration judge, or an asylum officer for proper cause shown. Motions
to reopen or reconsider must meet the requirements of sections
240(c)(6) and (c)(7) of the Act, and 8 CFR parts 3 and 103, where
applicable.
(2) Commonwealth of the Northern Mariana Islands. The provisions of
this subpart A shall not apply prior to January 1, 2015, to an alien
physically present in or arriving in the Commonwealth of the Northern
Mariana Islands seeking to apply for asylum. No application for asylum
may be filed prior to January 1, 2015, pursuant to section 208 of the
Act by an alien physically present in or arriving in the Commonwealth
of the Northern Mariana Islands. Effective on the transition program
effective date, the provisions of this subpart A shall apply to aliens
physically present in or arriving in the CNMI with respect to
withholding of removal under section 241(b)(3) of the Act and
withholding and deferral of removal under the Convention Against
Torture.
* * * * *
0
5. Section 208.2 is amended by:
0
a. Revising paragraphs (c)(1)(iii) and (iv);
0
b. Removing the word ``or'' at the end of paragraph; (c)(1)(v);
0
c. Removing the period at the end of paragraph (c)(1)(vi), and adding a
semicolon in its place; and by
0
d. Adding new paragraphs (c)(1)(vii) and (viii).
The revisions and additions read as follows:
Sec. 208.2 Jurisdiction.
* * * * *
(c) * * *
(1) * * *
(iii) An alien who is an applicant for admission pursuant to the
Visa Waiver
[[Page 55737]]
Program under section 217 of the Act, except that if such an alien is
an applicant for admission to the Commonwealth of the Northern Mariana
Islands, then he or she shall not be eligible for asylum prior to
January 1, 2015;
(iv) An alien who was admitted to the United States pursuant to the
Visa Waiver Program under section 217 of the Act and has remained
longer than authorized or has otherwise violated his or her immigration
status, except that if such an alien was admitted to the Commonwealth
of the Northern Mariana Islands, then he or she shall not be eligible
for asylum in the Commonwealth of the Northern Mariana Islands prior to
January 1, 2015;
* * * * *
(vii) An alien who is an applicant for admission to Guam or the
Commonwealth of the Northern Mariana Islands pursuant to the Guam-CNMI
Visa Waiver Program under section 212(l) of the Act, except that if
such an alien is an applicant for admission to the Commonwealth of the
Northern Mariana Islands, then he or she shall not be eligible for
asylum prior to January 1, 2015; or
(viii) An alien who was admitted to Guam or the Commonwealth of the
Northern Mariana Islands pursuant to the Guam-CNMI Visa Waiver Program
under section 212(l) of the Act and has remained longer than authorized
or has otherwise violated his or her immigration status, except that if
such an alien was admitted to the Commonwealth of the Northern Mariana
Islands, then he or she shall not be eligible for asylum in the
Commonwealth of the Northern Mariana Islands prior to January 1, 2015.
* * * * *
0
6. Section 208.4 is amended by adding three new sentences to the end of
paragraph (a)(2)(ii) to read as follows:
Sec. 208.4 Filing the application.
(a) * * *
(2) * * *
(ii) * * * For aliens present in or arriving in the Commonwealth of
the Northern Mariana Islands, the 1-year period shall be calculated
from either January 1, 2015, or from the date of the alien's last
arrival in the United States (including the Commonwealth of the
Northern Mariana Islands), whichever is later. No period of physical
presence in the Commonwealth of the Northern Mariana Islands prior to
January 1, 2015, shall count toward the 1-year period. After November
28, 2009, any travel to the Commonwealth of the Northern Mariana
Islands from any other State shall not re-start the calculation of the
1-year period.
* * * * *
0
7. Section 208.5 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (a); and by
0
c. Adding a new paragraph (b)(1)(iii).
The revisions and addition read as follows:
Sec. 208.5 Special duties toward aliens in custody of DHS.
(a) General. When an alien in the custody of DHS requests asylum or
withholding of removal, or expresses a fear of persecution or harm upon
return to his or her country of origin or to agents thereof, DHS shall
make available the appropriate application forms and shall provide the
applicant with the information required by section 208(d)(4) of the
Act, except in the case of an alien who is in custody pending a
credible fear determination under 8 CFR 208.30 or a reasonable fear
determination pursuant to 8 CFR 208.31. Although DHS does not have a
duty in the case of an alien who is in custody pending a credible fear
or reasonable fear determination under either 8 CFR 208.30 or 8 CFR
208.31, DHS may provide the appropriate forms, upon request. Where
possible, expedited consideration shall be given to applications of
detained aliens. Except as provided in paragraph (c) of this section,
such alien shall not be excluded, deported, or removed before a
decision is rendered on his or her asylum application. Furthermore,
except as provided in paragraph (c) of this section, an alien
physically present in or arriving in the Commonwealth of the Northern
Mariana Islands shall not be excluded, deported, or removed before a
decision is rendered on his or her application for withholding of
removal pursuant to section 241(b)(3) of the Act and withholding of
removal under the Convention Against Torture. No application for asylum
may be filed prior to January 1, 2015, under section 208 of the Act by
an alien physically present in or arriving in the Commonwealth of the
Northern Mariana Islands.
(b) * * *
(1) * * *
(iii) An alien crewmember physically present in or arriving in the
Commonwealth of the Northern Mariana Islands can request withholding of
removal pursuant to section 241(b)(3) of the Act and withholding of
removal under the Convention Against Torture. However, such an alien
crewmember is not eligible to request asylum pursuant to section 208 of
the Act prior to January 1, 2015.
* * * * *
0
8. Section 208.30 is amended by:
0
a. Revising paragraph (a); and by
0
b. Adding a sentence at the end of paragraph (e)(2).
The revision and addition read as follows:
Sec. 208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
(a) Jurisdiction. The provisions of this subpart B apply to aliens
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
section 235(b)(1)(B) of the Act, DHS has exclusive jurisdiction to make
credible fear determinations, and the Executive Office for Immigration
Review has exclusive jurisdiction to review such determinations. Except
as otherwise provided in this subpart B, paragraphs (b) through (g) of
this section are the exclusive procedures applicable to credible fear
interviews, determinations, and reviews under section 235(b)(1)(B) of
the Act. Prior to January 1, 2015, an alien present in or arriving in
the Commonwealth of the Northern Mariana Islands is ineligible to apply
for asylum and may only establish eligibility for withholding of
removal pursuant to section 241(b)(3) of the Act or withholding or
deferral of removal under the Convention Against Torture.
* * * * *
(e) * * *
(2) * * * However, prior to January 1, 2015, in the case of an
alien physically present in or arriving in the Commonwealth of the
Northern Mariana Islands, the officer may only find a credible fear of
persecution if there is a significant possibility that the alien can
establish eligibility for withholding of removal pursuant to section
241(b)(3) of the Act.
* * * * *
PART 209--ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED
ASYLUM
0
9. The authority citation for part 209 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252,
1282; Title VII of Public Law 110-229; 8 CFR part 2.
0
10. Section 209.2 is amended by:
0
a. Revising paragraph (a)(1) introductory text; and
0
b. Adding paragraph (a)(3).
The revision and addition read as follows:
[[Page 55738]]
Sec. 209.2 Adjustment of status of alien granted asylum.
* * * * *
(a) * * *
(1) Except as provided in paragraph (a)(2) or (a)(3) of this
section, the status of any alien who has been granted asylum in the
United States may be adjusted by USCIS to that of an alien lawfully
admitted for permanent residence, provided the alien:
* * * * *
(3) No alien arriving in or physically present in the Commonwealth
of the Northern Mariana Islands may apply to adjust status under
section 209(b) of the Act in the Commonwealth of the Northern Mariana
Islands prior to January 1, 2015.
* * * * *
PART 212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
11. The authority citation for part 212 is revised to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note
(section 7209 of Public Law 108-458; Title VII of Public Law 110-
229; 8 CFR part 2.
0
12. Section 212.1 is amended by revising paragraphs (e)(4)(i) and
(q)(4)(i), to read as follows:
Sec. 212.1 Documentary requirements for nonimmigrants.
* * * * *
(e) * * *
(4) * * *
(i) Adjustment of status to that of a temporary resident or, except
as provided by section 245(i) of the Act or as an immediate relative as
defined in section 201(b) of the Act, to that of a lawful permanent
resident.
* * * * *
(q) * * *
(4) * * *
(i) Adjustment of status to that of a temporary resident or, except
as provided by section 245(i) of the Act or as an immediate relative as
defined in section 201(b) of the Act, to that of a lawful permanent
resident.
* * * * *
PART 214--NONIMMIGRANT CLASSES
0
13. The authority citation for part 214 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301-1305 and 1372; sec. 643, Public Law 104-208,
110 Stat. 3009-708; Public Law 106-386, 114 Stat. 1477-1480; section
141 of the Compacts of Free Association with the Federated States of
Micronesia and the Republic of the Marshall Islands, and with the
Government of Palau, 48 U.S.C. 1901 note, and 1931 note,
respectively; Title VII of Public Law 110-229; 8 CFR part 2.
0
14. Section 214.7 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (a)(3);
0
c. Revising the first sentence of paragraph (a)(4)(i) introductory
text; and by
0
d. Revising paragraph (b).
The revisions read as follows:
Sec. 214.7 Habitual residence in the territories and possessions of
the United States and consequences thereof.
(a) * * *
(3) Territories and possessions of the United States means all
territories and possessions of the United States to which the Act
applies, including those commonwealths of the United States that are
not States. It does not include American Samoa, as long as the Act does
not apply to it.
(4)(i) Habitual resident means a citizen of the FAS who has been
admitted to a territory or possession of the United States (other than
American Samoa, as long as the Act is not applicable to it) pursuant to
section 141(a) of the Compacts and who occupies in such territory or
possession a habitual residence as that term is defined in section 461
of the Compacts, namely a place of general abode or a principal, actual
dwelling place of a continuing or lasting nature. * * *
* * * * *
(b) Where do these rules regarding habitual residence apply? The
rules in this section apply to habitual residents living in a territory
or possession of the United States to which the Act applies. Those
territories and possessions are at present Guam, the Commonwealth of
Puerto Rico, the American Virgin Islands, and the Commonwealth of the
Northern Mariana Islands. These rules do not apply to habitual
residents living in American Samoa as long as the Act does not extend
to it. These rules are not applicable to habitual residents living in
the fifty States or the District of Columbia.
* * * * *
0
15. Section 214.11 is amended by:
0
a. Revising the definition of ``United States'' in paragraph (a);
0
b. Revising paragraph (b)(2);
0
c. Revising the first sentence in paragraph (g) introductory text; and
by
0
d. Revising paragraph (g)(1).
The revisions read as follows:
Sec. 214.11 Alien victims of severe forms of trafficking in persons.
(a) * * *
* * * * *
United States means the continental United States, Alaska, Hawaii,
Puerto Rico, Guam, the United States Virgin Islands, and the
Commonwealth of the Northern Mariana Islands.
* * * * *
(b) * * *
(2) Is physically present in the United States, American Samoa, or
at a port-of-entry thereto, on account of such trafficking in persons;
* * * * *
(g) Physical presence on account of trafficking in persons. The
applicant must establish that he or she is physically present in the
United States, American Samoa, or at a port-of-entry thereto on account
of such trafficking, and that he or she is a victim of a severe form of
trafficking in persons that forms the basis for the application. * * *
(1) In general. The evidence and statements included with the
application must state the date and place (if known) and the manner and
purpose (if known) for which the applicant entered the United States,
American Samoa, or a port-of-entry thereto, and demonstrate that the
applicant is present now on account of the applicant's victimization as
described in paragraph (f) of this section and section
101(a)(15)(T)(i)(I) of the Act.
* * * * *
0
16. Section 214.14 is amended by revising paragraph (a)(11) to read as
follows:
Sec. 214.14 Alien victims of certain qualifying criminal activity.
(a) * * *
(11) Territories and Possessions of the United States means
American Samoa, Swains Island, Bajo Nuevo (the Petrel Islands), Baker
Island, Howland Island, Jarvis Island, Johnston Atoll, Kingman Reef,
Midway Atoll, Navassa Island, Palmyra Atoll, Serranilla Bank, and Wake
Atoll.
* * * * *
PART 217--VISA WAIVER PROGRAM
0
17. The authority citation for part 217 continues to read as follows:
Authority: 8 U.S.C. 1103, 1187; 8 CFR part 2.
0
18. Section 217.4 is amended by revising the last sentence in paragraph
(a)(1) and the last sentence in paragraph (b)(1) to read as follows:
Sec. 217.4 Inadmissibility and deportability.
(a) * * *
[[Page 55739]]
(1) * * *
(1) * * * Such refusal and removal shall be made at the level of
the port director or officer-in-charge, or an officer acting in that
capacity, and shall be effected without referral of the alien to an
immigration judge for further inquiry, examination, or hearing, except
that an alien who presents himself or herself as an applicant for
admission under section 217 of the Act and applies for asylum in the
United States must be issued a Form I-863, Notice of Referral to
Immigration Judge, for a proceeding in accordance with 8 CFR
208.2(c)(1) and (c)(2).
* * * * *
(b) * * *
(1) * * * Such removal shall be determined by the district director
who has jurisdiction over the place where the alien is found, and shall
be effected without referral of the alien to an immigration judge for a
determination of deportability, except that an alien who was admitted
as a Visa Waiver Program visitor who applies for asylum in the United
States must be issued a Form I-863 for a proceeding in accordance with
8 CFR 208.2(c)(1) and (c)(2).
* * * * *
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
19. The authority citation for part 235 is revised to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E. O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224,
1225, 1226, 1228, 1365a note, 1379, 1731-32; Title VII of Public Law
110-229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458).
0
20. Section 235.6 is amended by revising paragraphs (a)(1)(ii) and
(iii) to read as follows:
Sec. 235.6 Referral to immigration judge.
(a) * * *
(1) * * *
(ii) If an asylum officer determines that an alien in expedited
removal proceedings has a credible fear of persecution or torture and
refers the case to the immigration judge for consideration of the
application for asylum, except that, prior to January 1, 2015, an alien
arriving in the Commonwealth of the Northern Mariana Islands is not
eligible to apply for asylum but the immigration judge may consider
eligibility for withholding of removal pursuant to section 241(b)(3) of
the Act or withholding or deferral of removal under the Convention
Against Torture.
(iii) If the immigration judge determines that an alien in
expedited removal proceedings has a credible fear of persecution or
torture and vacates the expedited removal order issued by the asylum
officer, except that, prior to January 1, 2015, an alien physically
present in or arriving in the Commonwealth of the Northern Mariana
Islands is not eligible to apply for asylum but an immigration judge
may consider eligibility for withholding of removal pursuant to section
241(b)(3) of the Act or withholding or deferral of removal under the
Convention Against Torture.
* * * * *
PART 245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
21. The authority citation for part 245 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Public
Law 105-100, 111 Stat. 2160, 2193; section 902, Public Law 105-277,
112 Stat. 2681; Title VII of Public Law 110-229; 8 CFR part 2.
0
22. Section 245.1(b)(7) is revised to read as follows:
Sec. 245.1 Eligibility.
* * * * *
(b) * * *
(7) Any alien admitted as a visitor under the visa waiver
provisions of 8 CFR 212.1(e) or (q), other than an immediate relative
as defined in section 201(b) of the Act;
* * * * *
PART 274a--CONTROL OF EMPLOYMENT OF ALIENS
0
23. The authority citation for part 274a is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1324a; Title VII of Public Law
110-229; 8 CFR part 2.
0
24. Section 274a.1 is amended by revising paragraph (c) to read as
follows:
Sec. 274a.1 Definitions.
* * * * *
(c) The term hire means the actual commencement of employment of an
employee for wages or other remuneration. For purposes of section
274A(a)(4) of the Act and 8 CFR 274a.5, a hire occurs when a person or
entity uses a contract, subcontract, or exchange entered into,
renegotiated, or extended after November 6, 1986 (or, with respect to
the Commonwealth of the Northern Mariana Islands, after the transition
program effective date as defined in 8 CFR 1.1), to obtain the labor of
an alien in the United States, knowing that the alien is an
unauthorized alien;
* * * * *
0
25. Section 274a.2 is amended by adding new paragraph (b)(1)(v)(D) to
read as follows:
Sec. 274a.2 Verification of employment eligibility.
* * * * *
(b) * * *
(1) * * *
(v) * * *
(D) The following are acceptable documents to establish both
identity and employment authorization in the Commonwealth of the
Northern Mariana Islands only, for a two-year period starting from the
transition program effective date (as defined in 8 CFR 1.1), in
addition to those documents listed in paragraph (b)(1)(v)(A) of this
section:
(1) In the case of an alien with employment authorization in the
Commonwealth of the Northern Mariana Islands incident to status for a
period of up to two years following the transition program effective
date that is unrestricted or otherwise authorizes a change of employer:
(i) The unexpired foreign passport and an Alien Entry Permit with
red band issued to the alien by the Department of Labor of the
Commonwealth of the Northern Mariana Islands before the transition
program effective date, as long as the period of employment
authorization has not yet expired, or
(ii) An unexpired foreign passport and temporary work authorization
letter issued by the Department of Labor of the Commonwealth of the
Northern Mariana Islands before the transition program effective date,
and containing the name and photograph of the individual, as long as
the period of employment authorization has not yet expired and the
proposed employment is not in conflict with any restrictions or
limitations identified on the Temporary Work Authorization letter;
(iii) An unexpired foreign passport and a permanent resident card
issued by the Commonwealth of the Northern Mariana Islands.
(2) [Reserved]
* * * * *
0
26. Section 274a.5 is revised to read as follows:
Sec. 274a.5 Use of labor through contract.
Any person or entity who uses a contract, subcontract, or exchange
entered into, renegotiated, or extended after November 6, 1986 (or,
with respect to the Commonwealth of the Northern Mariana Islands, after
the transition
[[Page 55740]]
program effective date as defined in 8 CFR 1.1), to obtain the labor or
services of an alien in the United States knowing that the alien is an
unauthorized alien with respect to performing such labor or services,
shall be considered to have hired the alien for employment in the
United States in violation of section 274A(a)(1)(A) of the Act.
0
27. Section 274a.7 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (a); and by
0
c. Revising paragraph (b) introductory text.
The revisions read as follows:
Sec. 274a.7 Pre-enactment provisions for employees hired prior to
November 7, 1986 or in the CNMI prior to the transition program
effective date.
(a) For employees who are continuing in their employment and have a
reasonable expectation of employment at all times (as set forth in 8
CFR 274a.2(b)(1)(viii)), except those individuals described in 8 CFR
274a.2(b)(1)(viii)(A)(7)(iii) and (b)(1)(viii)(A)(8):
(1) The penalty provisions set forth in section 274A(e) and (f) of
the Act for violations of sections 274A(a)(1)(B) and 274A(a)(2) of the
Act shall not apply to employees who were hired prior to November 7,
1986.
(2) The penalty provisions set forth in section 274A(e) and (f) of
the Act for violations of section 274A(a)(1)(B) of the Act shall not
apply to employees who were hired in the CNMI prior to the transition
program effective date as defined in 8 CFR 1.1.
(b) For purposes of this section, an employee who was hired prior
to November 7, 1986 (or if hired in the CNMI, prior to the transition
program effective date) shall lose his or her pre-enactment status if
the employee:
* * * * *
0
28. Section 274a.12 is amended by:
0
a. Removing the word ``or'' at the end of paragraph (b)(20);
0
b. Removing the period at the end of paragraph (b)(21) and adding a
``;'' in its place;
0
c. Removing the period at the end of paragraph (b)(23), and adding a
``; or'' in its place; and by
0
d. Adding a new paragraph (b)(24), to read as follows:
Sec. 274a.12 Classes of aliens authorized to accept employment.
* * * * *
(b) * * *
(24) An alien who is authorized to be employed in the Commonwealth
of the Northern Mariana Islands for a period of up to 2 years following
the transition program effective date, under section 6(e)(2) of Public
Law 94-241, as added by section 702(a) of Public Law 110-229. Such
alien is only authorized to continue in the same employment that he or
she had on the transition program effective date as defined in 8 CFR
1.1 until the earlier of the date that is 2 years after the transition
program effective date or the date of expiration of the alien's
employment authorization, unless the alien had unrestricted employment
authorization or was otherwise authorized as of the transition program
effective date to change employers, in which case the alien may have
such employment privileges as were authorized as of the transition
program effective date for up to 2 years.
* * * * *
PART 286--IMMIGRATION USER FEE
0
29. The authority citation for part 286 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1356; Title VII of Public Law
110-229; 8 CFR part 2.
0
30. Section 286.1 is amended by:
0
a. Revising paragraph (i); and by
0
b. Revising paragraph (k).
The revisions read as follows:
Sec. 286.1 Definitions.
* * * * *
(i) Territories or possessions of the United States means American
Samoa, Baker Island, Howland Island, Jarvis Island, Johnston Atoll,
Kingman Reef, Midway, Swains Island, Palmyra Island, and Wake Island.
* * * * *
(k) United States, when used in a geographical sense, means the
continental United States, Alaska, Hawaii, Puerto Rico, Guam, the
Virgin Islands of the United States, and the Commonwealth of the
Northern Mariana Islands.
PART 299--IMMIGRATION FORMS
0
31. The authority citation for part 299 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
0
32. Section 299.1 is amended in the table by adding Form ``I-9 CNMI''
to the list of prescribed forms in proper alpha/numeric sequence, to
read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
----------------------------------------------------------------------------------------------------------------
Form No. Edition date Title
----------------------------------------------------------------------------------------------------------------
* * * * * * *
I-9 CNMI.............................. xx-xx-xx................. CNMI Employment Eligibility Verification.
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
33. Section 299.5 is amended in the table by adding the Form ``I-9
CNMI'' in proper alpha/numeric sequence, to read as follows:
Sec. 299.5 Display of control number.
* * * * *
------------------------------------------------------------------------
Currently
assigned
Form No. Form title OMB control
No.
------------------------------------------------------------------------
* * * * * * *
I-9 CNMI......................... CNMI Employment 1615-XXXX
Eligibility
Verification.
* * * * * * *
------------------------------------------------------------------------
[[Page 55741]]
Department of Justice
8 CFR Chapter V
0
Accordingly, the Attorney General amends chapter V of title 8 of the
Code of Federal Regulations as follows:
PART 1001--DEFINITIONS
0
34. The authority citation for part 1001 is revised to read as follows:
Authority: 8 U.S.C. 1101; 8 U.S.C. 1103; 5 U.S.C. 301; Public
Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); Title VII of
Public Law 110-229.
0
35. Section 1001.1 is amended by:
0
a. Adding and reserving paragraphs (x), (y), (z), and (aa); and by
0
b. Adding a new paragraph (bb), to read as follows:
Sec. 1001.1 Definitions.
* * * * *
(x) [Reserved]
(y) [Reserved]
(z) [Reserved]
(aa) [Reserved]
(bb) The term transition program effective date as used with
respect to extending the immigration laws to the Commonwealth of the
Northern Mariana Islands means November 28, 2009.
PART 1208[horbar]PROCEDURES FOR ASYLUM AND WITHHOLDING OF REMOVAL
0
36. The authority citation for part 1208 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1158, 1226, 1252, 1282; Title
VII of Public Law 110-229.
0
37. Section 1208.1(a) is revised to read as follows:
Sec. 1208.1 General.
(a) Applicability. (1) In general. Unless otherwise provided in
this chapter V, this subpart A shall apply to all applications for
asylum under section 208 of the Act or for withholding of deportation
or withholding of removal under section 241(b)(3) of the Act, or under
the Convention Against Torture, whether before an asylum officer or an
immigration judge, regardless of the date of filing. For purposes of
this chapter V, withholding of removal shall also mean withholding of
deportation under section 243(h) of the Act, as it appeared prior to
April 1, 1997, except as provided in Sec. 1208.16(d). Such
applications are hereinafter referred to as ``asylum applications.''
The provisions of this part shall not affect the finality or validity
of any decision made by a district director, an immigration judge, or
the Board of Immigration Appeals in any such case prior to April 1,
1997. No asylum application that was filed with a district director,
asylum officer, or immigration judge prior to April 1, 1997, may be
reopened or otherwise reconsidered under the provisions of this part
except by motion granted in the exercise of discretion by the Board of
Immigration Appeals, an immigration judge, or an asylum officer for
proper cause shown. Motions to reopen or reconsider must meet the
requirements of sections 240(c)(6) and (c)(7) of the Act, and 8 CFR
parts 1003 and 1103, where applicable.
(2) Commonwealth of the Northern Mariana Islands. The provisions of
this subpart A shall not apply prior to January 1, 2015, to an alien
physically present in or arriving in the Commonwealth of the Northern
Mariana Islands seeking to apply for asylum. No application for asylum
may be filed prior to January 1, 2015, pursuant to section 208 of the
Act by an alien physically present in or arriving in the Commonwealth
of the Northern Mariana Islands. Effective on the transition program
effective date, the provisions of this subpart A shall apply to aliens
physically present in or arriving in the CNMI with respect to
withholding of removal under section 241(b)(3) of the Act and
withholding and deferral of removal under the Convention Against
Torture.
* * * * *
0
38. Section 1208.2 is amended by:
0
a. Revising paragraphs (c)(1)(iii) and (iv);
0
b. Removing the word ``or'' at the end of paragraph (c)(1)(v);
0
c. Removing the period at the end of paragraph (c)(1)(vi), and adding a
semicolon in its place; and by
0
d. Adding new paragraphs (c)(1)(vii) and (viii).
The revisions and additions read as follows:
Sec. 1208.2 Jurisdiction.
* * * * *
(c) * * *
(1) * * *
(iii) An alien who is an applicant for admission pursuant to the
Visa Waiver Program under section 217 of the Act, except that if such
an alien is an applicant for admission to the Commonwealth of the
Northern Mariana Islands, then he or she shall not be eligible for
asylum prior to January 1, 2015;
(iv) An alien who was admitted to the United States pursuant to the
Visa Waiver Program under section 217 of the Act and has remained
longer than authorized or has otherwise violated his or her immigration
status, except that if such an alien was admitted to the Commonwealth
of the Northern Mariana Islands, then he or she shall not be eligible
for asylum in the Commonwealth of the Northern Mariana Islands prior to
January 1, 2015;
* * * * *
(vii) An alien who is an applicant for admission to Guam or the
Commonwealth of the Northern Mariana Islands pursuant to the Guam-CNMI
Visa Waiver Program under section 212(l) of the Act, except that if
such an alien is an applicant for admission to the Commonwealth of the
Northern Mariana Islands, then he or she shall not be eligible for
asylum prior to January 1, 2015; or
(viii) An alien who was admitted to Guam or the Commonwealth of the
Northern Mariana Islands pursuant to the Guam-CNMI Visa Waiver Program
under section 212(l) of the Act and has remained longer than authorized
or has otherwise violated his or her immigration status, except that if
such an alien was admitted to the Commonwealth of the Northern Mariana
Islands, then he or she shall not be eligible for asylum in the
Commonwealth of the Northern Mariana Islands prior to January 1, 2015.
* * * * *
0
39. Section 1208.4 is amended by adding three new sentences to the end
of paragraph (a)(2)(ii) to read as follows:
Sec. 1208.4 Filing the application.
(a) * * *
(2) * * *
(ii) * * * For aliens present in or arriving in the Commonwealth of
the Northern Mariana Islands, the 1-year period shall be calculated
from January 1, 2015, or from the date of the alien's last arrival in
the United States (including the Commonwealth of the Northern Mariana
Islands), whichever is later. No period of physical presence in the
Commonwealth of the Northern Mariana Islands prior to January 1, 2015,
shall count toward the 1-year period. After November 28, 2009, any
travel to the Commonwealth of the Northern Mariana Islands from any
other State shall not re-start the calculation of the 1-year period.
* * * * *
0
40. Section 1208.5 is amended by:
0
a. Revising the section heading;
0
b. Revising paragraph (a); and by
0
c. Adding a new paragraph (b)(1)(iii).
The revisions and addition read as follows:
[[Page 55742]]
Sec. 1208.5 Special duties toward aliens in custody of DHS.
(a) General. When an alien in the custody of DHS requests asylum or
withholding of removal, or expresses a fear of persecution or harm upon
return to his or her country of origin or to agents thereof, DHS shall
make available the appropriate application forms and shall provide the
applicant with the information required by section 208(d)(4) of the
Act, except in the case of an alien who is in custody pending a
credible fear determination under 8 CFR 1208.30 or a reasonable fear
determination pursuant to 8 CFR 1208.31. Although DHS does not have a
duty in the case of an alien who is in custody pending a credible fear
or reasonable fear determination under either 8 CFR 1208.30 or 8 CFR
1208.31, DHS may provide the appropriate forms, upon request. Where
possible, expedited consideration shall be given to applications of
detained aliens. Except as provided in paragraph (c) of this section,
such alien shall not be excluded, deported, or removed before a
decision is rendered on his or her asylum application. Furthermore,
except as provided in paragraph (c) of this section, an alien
physically present in or arriving in the Commonwealth of the Northern
Mariana Islands shall not be excluded, deported, or removed before a
decision is rendered on his or her application for withholding of
removal pursuant to section 241(b)(3) of the Act and withholding of
removal under the Convention Against Torture. No application for asylum
may be filed prior to January 1, 2015, pursuant to section 208 of the
Act by an alien physically present in or arriving in the Commonwealth
of the Northern Mariana Islands.
(b) * * *
(1) * * *
(iii) An alien crewmember physically present in or arriving in the
Commonwealth of the Northern Mariana Islands can request withholding of
removal pursuant to section 241(b)(3) of the Act and withholding of
removal under the Convention Against Torture. However, such an alien
crewmember is not eligible to request asylum pursuant to section 208 of
the Act prior to January 1, 2015.
* * * * *
0
41. Section 1208.30 is amended by revising paragraph (a) to read as
follows:
Sec. 1208.30 Credible fear determinations involving stowaways and
applicants for admission found inadmissible pursuant to section
212(a)(6)(C) or 212(a)(7) of the Act.
(a) Jurisdiction. The provisions of this subpart B apply to aliens
subject to sections 235(a)(2) and 235(b)(1) of the Act. Pursuant to
section 235(b)(1)(B), asylum officers have exclusive jurisdiction to
make credible fear determinations, and the immigration judges have
exclusive jurisdiction to review such determinations. Prior to January
1, 2015, an alien present in or arriving in the Commonwealth of the
Northern Mariana Islands is ineligible to apply for asylum and may only
establish eligibility for withholding of removal pursuant to section
241(b)(3) of the Act or withholding or deferral of removal under the
Convention Against Torture.
* * * * *
PART 1209--ADJUSTMENT OF STATUS OF REFUGEES AND ALIENS GRANTED
ASYLUM
0
42. The authority citation for part 1209 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1157, 1158, 1159, 1228, 1252,
1282; Title VII of Public Law 110-229.
0
10. Section 1209.2 is amended by:
0
a. Revising paragraph (a)(1) introductory text; and by
0
b. Adding paragraph (a)(3).
The revision and addition read as follows:
Sec. 1209.2 Adjustment of status of alien granted asylum.
* * * * *
(a) * * *
(1) Except as provided in paragraph (a)(2) or (a)(3) of this
section, the status of any alien who has been granted asylum in the
United States may be adjusted to that of an alien lawfully admitted for
permanent residence, provided the alien:
* * * * *
(3) No alien arriving in or physically present in the Commonwealth
of the Northern Mariana Islands may apply to adjust status under
section 209(b) of the Act in the Commonwealth of the Northern Mariana
Islands prior to January 1, 2015.
* * * * *
PART 1212--DOCUMENTARY REQUIREMENTS; NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
0
43. The authority citation for part 1212 is revised to read as follows:
Authority: 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note,
1184, 1187, 1223, 1225, 1226, 1227, 1255; 8 U.S.C. 1185 note
(section 7209 of Pub. L. 108-458); Title VII of Public Law 110-229.
0
44. Section 1212.1 is amended by:
0
a. Revising paragraph (e);
0
b. Adding and reserving paragraph (p); and by
0
c. Adding a new paragraph (q).
The revision and additions read as follows:
Sec. 1212.1 Documentary requirements for nonimmigrants.
* * * * *
(e) Aliens entering Guam pursuant to section 14 of Public Law 99-
396, ``Omnibus Territories Act'' and 8 CFR 212.1(e). (1) As provided in
8 CFR 212.1(e), until November 28, 2009, a visa is not required of an
alien who is a citizen of a country enumerated in 8 CFR 212.1(e)(3)
who:
(i) Is classifiable as a visitor for business or pleasure;
(ii) Is solely entering and staying on Guam for a period not to
exceed fifteen days;
(iii) Is in possession of a round-trip nonrefundable and
nontransferable transportation ticket bearing a confirmed departure
date not exceeding fifteen days from the date of admission to Guam;
(iv) Is in possession of a completed and signed Visa Waiver
Information Form (Form I-736);
(v) Waives any right to review or appeal the immigration officer's
determination of admissibility at the port of entry at Guam; and
(vi) Waives any right to contest any action for deportation, other
than on the basis of a request for asylum.
(2) The DHS regulations for waiver of the visa requirement for
aliens entering Guam pursuant to section 14 of Public Law 99-396, prior
to November 28, 2009, are set forth at 8 CFR 212.1(e).
(3) [Reserved]
(4) Admission under 8 CFR 212.1(e) renders an alien ineligible for:
(i) Adjustment of status to that of a temporary resident or, except
under the provisions of section 245(i) of the Act or as an immediate
relative as defined in section 201(b), to that of a lawful permanent
resident;
(ii) Change of nonimmigrant status; or
(iii) Extension of stay.
* * * * *
(q) Aliens admissible under the Guam-CNMI Visa Waiver Program and 8
CFR 212.1(q). (1) Eligibility for Program. As provided in 8 CFR
212.1(1), in accordance with Public Law 110-229, beginning November 28,
2009, the Secretary of Homeland Security, in consultation with the
Secretaries of the Departments of Interior and State, may waive the
visa requirement in the case of a nonimmigrant alien who seeks
admission to Guam or to the Commonwealth of the Northern Mariana
Islands (CNMI) under the Guam-CNMI
[[Page 55743]]
Visa Waiver Program. To be admissible under the Guam-CNMI Visa Waiver
Program, prior to embarking on a carrier for travel to Guam or the
CNMI, each nonimmigrant alien must:
(i) Be a national of a country or geographic area listed in 8 CFR
212.1(q)(2);
(ii) Be classifiable as a visitor for business or pleasure;
(iii) Be solely entering and staying on Guam or the CNMI for a
period not to exceed forty-five days;
(iv) Be in possession of a round trip ticket that is nonrefundable
and nontransferable and bears a confirmed departure date not exceeding
forty-five days from the date of admission to Guam or the CNMI. ``Round
trip ticket'' includes any return trip transportation ticket issued by
a participating carrier, electronic ticket record, airline employee
passes indicating return passage, individual vouchers for return
passage, group vouchers for return passage for charter flights, or
military travel orders which include military dependents for return to
duty stations outside the United States on U.S. military flights;
(v) Be in possession of a completed and signed Guam-CNMI Visa
Waiver Information Form (CBP Form I-736);
(vi) Be in possession of a completed and signed I-94, Arrival-
Departure Record (CBP Form I-94);
(vii) Be in possession of a valid unexpired ICAO compliant, machine
readable passport issued by a country that meets the eligibility
requirements of paragraph (q)(2) of this section;
(viii) Have not previously violated the terms of any prior
admissions. Prior admissions include those under the Guam-CNMI Visa
Waiver Program, the prior Guam Visa Waiver Program, the Visa Waiver
Program as described in section 217(a) of the Act and admissions
pursuant to any immigrant or nonimmigrant visa;
(ix) Waive any right to review or appeal an immigration officer's
determination of admissibility at the port of entry into Guam or the
CNMI;
(x) Waive any right to contest any action for deportation or
removal, other than on the basis of: an application for withholding of
removal under section 241(b)(3) of the INA; withholding of removal
under the regulations implementing Article 3 of the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment; or, an application for asylum if permitted
under section 208 of the Act; and
(xi) If a resident of Taiwan, possess a Taiwan National Identity
Card and a valid Taiwan passport with a valid re-entry permit issued by
the Taiwan Ministry of Foreign Affairs.
(2) Implementing regulations. The DHS regulations for waiver of the
visa requirement for aliens seeking admission to Guam or to the CNMI
under the Guam-CNMI Visa Waiver Program are set forth at 8 CFR
212.1(q).
(3) [Reserved]
(4) Admission under 8 CFR 212.1(q). Admission under 8 CFR 212.1(q)
renders an alien ineligible for:
(i) Adjustment of status to that of a temporary resident or, except
as provided by section 245(i) of the Act, other than as an immediate
relative as defined in section 201(b) of the Act, to that of a lawful
permanent resident;
(ii) Change of nonimmigrant status; or
(iii) Extension of stay.
(5)-(7) [Reserved]
(8) Inadmissibility and Deportability. (i) Determinations of
inadmissibility. (A) An alien who applies for admission under the
provisions of the Guam-CNMI Visa Waiver Program, who is determined by
an immigration officer to be inadmissible to Guam or the CNMI under one
or more of the grounds of inadmissibility listed in section 212 of the
Act (other than for lack of a visa), or who is in possession of and
presents fraudulent or counterfeit travel documents, will be refused
admission into Guam or the CNMI and removed. Such refusal and removal
shall be effected without referral of the alien to an immigration judge
for further inquiry, examination, or hearing, except that an alien who
presents himself or herself as an applicant for admission to Guam under
the Guam-CNMI Visa Waiver Program, who applies for asylum, withholding
of removal under section 241(b)(3) of the INA or withholding of removal
under the regulations implementing Article 3 of the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment must be issued a Form I-863, Notice of Referral
to Immigration Judge, for a proceeding in accordance with 8 CFR
208.2(c)(1) and (2) and 1208.2(c)(1) and (2). The provisions of 8 CFR
part 1208 subpart A shall not apply to an alien present or arriving in
the CNMI seeking to apply for asylum prior to January 1, 2015. No
application for asylum may be filed pursuant to section 208 of the Act
by an alien present or arriving in the CNMI prior to January 1, 2015;
however, aliens physically present in the CNMI during the transition
period who express a fear of persecution or torture only may establish
eligibility for withholding or deferral of removal pursuant to INA
241(b)(3) or pursuant to the regulations implementing Article 3 of the
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
(B) [Reserved]
(C) Refusal of admission under this paragraph or 8 CFR
212.1(q)(8)(i) shall not constitute removal for purposes of the Act.
(ii) Determination of deportability. (A) An alien who has been
admitted to either Guam or the CNMI under the provisions of this
section who is determined by an immigration officer to be deportable
from either Guam or the CNMI under one or more of the grounds of
deportability listed in section 237 of the Act, shall be removed from
either Guam or the CNMI to his or her country of nationality or last
residence. Such removal will be determined by DHS authority that has
jurisdiction over the place where the alien is found, and will be
effected without referral of the alien to an immigration judge for a
determination of deportability, except that an alien admitted to Guam
under the Guam-CNMI Visa Waiver Program who applies for asylum or other
form of protection from persecution or torture must be issued a Form I-
863 for a proceeding in accordance with 8 CFR 208.2(c)(1) and (2) and
1208.2(c)(1) and (2). The provisions of 8 CFR part 1208 subpart A shall
not apply to an alien present or arriving in the CNMI seeking to apply
for asylum prior to January 1, 2015. No application for asylum may be
filed pursuant to section 208 of the INA by an alien present or
arriving in the CNMI prior to January 1, 2015; however, aliens
physically present or arriving in the CNMI prior to January 1, 2015,
may apply for withholding of removal under section 241(b)(3) of the Act
and withholding of removal under the regulations implementing Article 3
of the United Nations Convention Against Torture, Inhuman or Degrading
Treatment or Punishment.
(B) Removal by DHS under paragraph (b)(1) of this section or 8 CFR
212.1(q)(8)(ii) is equivalent in all respects and has the same
consequences as removal after proceedings conducted under section 240
of the Act.
(iii) [Reserved]
PART 1235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
45. The authority citation for part 1235 is revised to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, 69 FR 241, 3 CFR, 2003 Comp., p. 278), 1201, 1224, 1225,
1226, 1228, 1365a note, 1379, 1731-32; Title VII of Public Law 110-
229; 8 U.S.C. 1185 note (section 7209 of Pub. L. 108-458).
[[Page 55744]]
0
46. Section 1235.5(a) is revised to read as follows:
Sec. 1235.5 Preinspection.
(a) In United States territories and possessions. For provisions of
the DHS regulations with respect to examinations of passengers and crew
in the case of any aircraft proceeding from Guam, the Commonwealth of
the Northern Mariana Islands (beginning November 28, 2009), Puerto
Rico, or the United States Virgin Islands destined directly and without
touching at a foreign port or place, to any other of such places, or to
one of the States of the United States or the District of Columbia, see
8 CFR 235.5.
* * * * *
0
47. Section 1235.6 is amended by revising paragraphs (a)(1)(ii) and
(iii) to read as follows:
Sec. 1235.6 Referral to immigration judge.
(a) * * *
(1) * * *
(ii) If an asylum officer determines that an alien in expedited
removal proceedings has a credible fear of persecution or torture and
refers the case to the immigration judge for consideration of the
application for asylum, except that, prior to January 1, 2015, an alien
present in or arriving in the Commonwealth of the Northern Mariana
Islands is not eligible to apply for asylum but the immigration judge
may consider eligibility for withholding of removal pursuant to section
241(b)(3) of the Act or withholding or deferral of removal under the
Convention Against Torture.
(iii) If the immigration judge determines that an alien in
expedited removal proceedings has a credible fear of persecution or
torture and vacates the expedited removal order issued by the asylum
officer, except that, prior to January 1, 2015, an alien physically
present in or arriving in the Commonwealth of the Northern Mariana
Islands is not eligible to apply for asylum but an immigration judge
may consider eligibility for withholding of removal pursuant to section
241(b)(3) of the Act or withholding or deferral of removal under the
Convention Against Torture.
* * * * *
PART 1245--ADJUSTMENT OF STATUS TO THAT OF PERSON ADMITTED FOR
PERMANENT RESIDENCE
0
48. The authority citation for part 1245 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1182, 1255; section 202, Public
Law 105-100, 111 Stat. 2160, 2193; section 902, Public Law 105-277,
112 Stat. 2681; Title VII of Public Law 110-229.
0
49. Section 1245.1(b)(7) is revised to read as follows:
Sec. 1245.1 Eligibility.
* * * * *
(b) * * *
(7) Any alien admitted as a visitor under the visa waiver
provisions of 8 CFR 212.1(e) or (q), other than an immediate relative
as defined in section 201(b) of the Act;
* * * * *
Janet Napolitano,
Secretary of Homeland Security.
Eric H. Holder, Jr.
Attorney General.
[FR Doc. E9-26094 Filed 10-27-09; 8:45 am]
BILLING CODE 9111-14-P