Application of Immigration Regulations to the Commonwealth of the Northern Mariana Islands, 55726-55744 [E9-26094]

Agencies

• Executive Office for Immigration Review
• DEPARTMENT OF HOMELAND SECURITY
• Department of Justice

[Federal Register Volume 74, Number 207 (Wednesday, October 28, 2009)]
[Rules and Regulations]
[Pages 55726-55744]
From the Federal Register Online via the Government Printing 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

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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

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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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     A Temporary Work Authorization letter containing a 
photograph.\5\
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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 G