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 94241, as added by sec. 702(a) of Public Law 110229; sec. 702(i) of Public Law 110229; sec. 705(b) of Public Law 110229. 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 94241, as added by sec. 702(a) of Public Law 110229. 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 94241, as added by section 702(a) of Public Law 110229, 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 110229; sec. 705(b) of Public Law 110229. 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 94241, as added by sec. 702(a) of Public Law 110229. Asylum is a discretionary benefit that may be granted to aliens who establish that they have been persecuted or have a wellfounded 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 105277, Div. G, tit. XXI, ch. 3, sub. B, sec. 2242, 112 Stat. 2681822; 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\ \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 IS & CS, 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 110229.

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 94241, as added by sec. 702(a) of Public Law 110229. 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 110229; 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 110229. 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 asylumrelated 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 freestanding 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 fiveyear 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 fiveyear 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, 8889 (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, 45455 (1993) (disregarding quotation marks that suggested meaning contrary to congressional intent); United States v. PabonCruz, 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 crossreference 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, 11819 (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 subparagraphs (1), restating and not substantively modifying the existing general rule of applicability, and (2), stating the CNMIspecific 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 GuamCNMI 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 GuamCNMI 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 oneyear 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 oneyear 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 1year period. The purpose of that exception is to preclude aliens from effectively restarting the 1year 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 I589, Application for Asylum and for Withholding of Removal, will also be served with a Notice of Referral to Immigration Judge, Form I863, 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 110229 (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 GuamCNMI Visa Waiver Program

The CNRA amended the INA to provide for a special visa waiver program for the CNMI by creating a new GuamCNMI Visa Waiver Program, which will supersede the current Guam Visa Waiver Program. See sec. 702(b) of Public Law 110229. Under the new GuamCNMI 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 GuamCNMI 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 GuamCNMI 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 GuamCNMI 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 94241, as added by sec. 702(a) of Public Law 110229; 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 97470 (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. immigrationrelated 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 I9, retain the form for a statutorilyestablished 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 I9, a newlyhired employee must attest that he or she is a U.S. citizen or national, LPR, or an alien otherwise authorized to work in
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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 I9 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 I9, 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 94241, as added by sec. 702(a) of Public Law 110229. 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 CNMIspecific 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:

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 I9 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 twoyear 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 511 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 511. Northern Mariana Islands Public Law 511, however, was repealed in 1981 by CNMI Public Law 217. Public Law 217, 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 511.

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 I9 purposes in the CNMI.

DHS is not amending Form I9 (OMB Control Number 16150047) by adding CNMIspecific documents to its lists of acceptable documents and is instead creating a new form, Form I9 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 reverifications in the U.S. to add CNMIexclusive documents on the List of Acceptable Documents would result in unnecessary expense and confusion because those documents are not acceptable for Form I9 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 I9. 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 I94 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 I9 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 I9 requirements, using Form I9 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
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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 I9 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 I9 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 I9 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 I9 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 employerspecific 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 employerspecific work authorization.

Employers continuing the employment of aliens with CNMI work authorization under the grandfather clause will not be required to complete a Form I9 CNMI for these employees on the transition program effective date because the Form I9 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 employerspecific CNMI work authorization will need to continue their employment with the same employer on or after the transition program effective date to be deemed employmentauthorized 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 employerspecific or in the form of unrestricted work authorization. For aliens with unrestricted CNMI work authorization or who are permitted to change employers, Forms I9 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
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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 10913, 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 redesignated 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 andcomment 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, 129092 (D.C. Cir. 1991) (regulations that ``either restate or paraphrase the detailed requirements'' of a selfexecuting 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, 122324 (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 noticeandcomment 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. 601612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104121, 110 Stat. 847, 857, requires Federal agencies to consider the potential impact of regulations on small businesses, small governmental jurisdictions, and small
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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

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 205292211, telephone (202) 2728221 (not a tollfree 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) 3050470 (not a tollfree call).