46938 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 

(FLTCIP). The purpose of the change is 

to enhance the ability of Federal 

agencies to provide for the needs of an 

increasingly diverse workforce, and to 

assist the Federal Government in 

competing with the private sector for 

talent. To promote both of these 

policies, OPM proposes to expand the 

term ‘‘qualified relative’’ to include 

additional individuals who are same-sex 

domestic partners and whose close 

association with the employee or 

annuitant constitutes a family 

relationship. 

Currently, a ‘‘qualified relative’’ is 

defined to include: 

• The spouse of an employee, 

annuitant, member of the uniformed 

services or retired member of the 

uniformed services; 

• A parent, stepparent or parent inlaw of an employee or member of the 

uniformed services; 

• An adult child (natural, step or 

adopted) of an employee, annuitant, 

member of the uniformed services, or 

retired member of the uniformed 

services if such a child is at least age 18. 

The proposed regulatory change will 

expand the definition of ‘‘qualified 

relative’’ under 5 U.S.C. 9001(5)(D) to 

provide eligibility to apply for FLTCIP 

coverage to the same-sex domestic 

partners of Federal and U.S. Postal 

Service employees and annuitants. 

Opposite-sex domestic partners are not 

included in the proposed regulation 

because they may obtain eligibility for 

federal long term care insurance through 

marriage, an option not currently 

available to same-sex domestic partners. 

In order to demonstrate eligibility to 

apply for coverage under the FLTCIP, 

individuals will be required to provide 

documentation to establish they meet 

the criteria for domestic partners. 

OPM’s proposed regulations will not 

only modernize FLTCIP and provide for 

workforce equity, but also will make the 

Federal Government more competitive 

in recruiting and retaining highly 

qualified employees. A majority of 

Fortune 500 companies and thousands 

of smaller companies already provide 

the same-sex domestic partners of their 

employees with access to a variety of 

insurance benefits that are available to 

other family members. Such benefits 

also are provided by public-sector 

entities such as state and local 

governments, and by colleges and 

universities. The extension of such 

benefits to Federal employees would 

help the government compete for talent. 

Regulatory Flexibility Act 

I certify that this regulation will not 

have a significant economic impact on 

a substantial number of small entities 

because the regulation only adds an 

additional group to the list of groups 

eligible to apply for coverage under the 

FLTCIP. The FLTCIP is a voluntary, selfpay benefits program with no 

Government contribution. 

Executive Order 12866, Regulatory 

Review 

This rule has been reviewed by the 

Office of Management and Budget in 

accordance with Executive Order 12866. 

Federalism 

We have examined this rule in 

accordance with Executive Order 13132, 

Federalism, and have determined that 

this rule will not have any negative 

impact on the rights, roles and 

responsibilities of State, local or tribal 

governments. 

List of Subjects in 5 CFR Part 875 

Administrative practices and 

procedures, Employee benefit plans, 

Government contracts, Government 

employees, health insurance, military 

personnel, organization and functions, 

retirement. 

U.S. Office of Personnel Management. 

John Berry, 

Director. 

Accordingly, OPM proposes to amend 

5 CFR part 875, as follows: 

PART 875—FEDERAL LONG TERM 

CARE INSURANCE PROGRAM 

1. The authority citation for 5 CFR 

part 875 continues to read as follows: 

Authority: Authority: 5 U.S.C. 9008. 

2. Add a new § 875.213 as follows: 

§ 875.213 May I apply as a qualified 

relative if I am the domestic partner of an 

employee or annuitant? 

(a) You may apply for coverage as a 

qualified relative if you are a domestic 

partner, as described in paragraph (b) of 

this section. As prescribed by OPM, you 

will be required to provide 

documentation to demonstrate that you 

meet these requirements. 

(b) For purposes of this part, the term 

‘‘domestic partner’’ is a person in a 

domestic partnership with an employee 

or annuitant of the same sex. The term 

‘‘domestic partnership’’ is defined as a 

committed relationship between two 

adults, of the same sex, in which the 

partners— 

(1) Are each other’s sole domestic 

partner and intend to remain so 

indefinitely; 

(2) Have a common residence, and 

intend to continue the arrangement 

indefinitely; 

(3) Are at least 18 years of age and 

mentally competent to consent to 

contract; 

(4) Share responsibility for a 

significant measure of each other’s 

financial obligations; 

(5) Are not married to anyone else; 

(6) Are not a domestic partner of 

anyone else; 

(7) Are not related in a way that, if 

they were of opposite sex, would 

prohibit legal marriage in the State in 

which they reside; 

(8) Will certify they understand that 

willful falsification of the 

documentation described in paragraph 

(a) of this section may lead to 

disciplinary action and the recovery of 

the cost of benefits received related to 

such falsification and may constitute a 

criminal violation under 18 U.S.C. 1001. 

[FR Doc. E9–22028 Filed 9–11–09; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 103, 214 and 274a 

[CIS No. 2758–08; DHS Docket No. USCIS– 

2008–0035] 

RIN 1615–AB75 

E–2 Nonimmigrant Status for Aliens in 

the Commonwealth of the Northern 

Mariana Islands With Long-Term 

Investor Status 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Homeland 

Security (DHS) is proposing to amend 

its regulations governing E–2 

nonimmigrant treaty investors to 

establish procedures for classifying 

long-term investors in the 

Commonwealth of the Northern Mariana 

Islands (CNMI) as E–2 nonimmigrants. 

This proposed rule implements the 

CNMI nonimmigrant investor visa 

provisions of the Consolidated Natural 

Resources Act of 2008 extending the 

immigration laws of the United States to 

the CNMI. 

DATES: Written comments must be 

submitted on or before October 14, 

2009. 

ADDRESSES: You may submit comments, 

identified by DHS Docket No. USCIS– 

2008–0035 by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• E-mail: You may submit comments 

directly to USCIS by e-mail at 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 46939 

1 GAO, Commonwealth of the Northern Mariana 

Islands: Pending Legislation Would Apply U.S. 

Immigration Law to the CNMI with a Transition 

Period, GAO–08–466 (Washington, DC: Mar. 18, 

2008); GAO, U.S. Insular Areas: Economic, Fiscal, 

and Accountability Challenges, GAO–07–119 

(Washington, DC: Dec. 12, 2006); and GAO, 

Commonwealth of the Northern Mariana Islands: 

Serious Economic, Fiscal, and Accountability 

Challenges, GAO–07–746T (Washington, DC: Apr. 

19, 2007). 

rfs.regs@dhs.gov. Include DHS Docket 

No. USCIS–2008–0035 in the subject 

line of the message. 

• Mail: Chief, Regulatory 

Management Division, U.S. Citizenship 

and Immigration Services, Department 

of Homeland Security, 111 

Massachusetts Avenue, NW., Suite 

3008, Washington, DC 20529. To ensure 

proper handling, please reference DHS 

Docket No. USCIS–2008–0035 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. Contact 

telephone number is (202) 272–8377. 

FOR FURTHER INFORMATION CONTACT: 

Steven W. Viger, Office of Policy & 

Strategy, U.S. Citizenship and 

Immigration Services, Department of 

Homeland Security, 20 Massachusetts 

Avenue, NW., 2nd Floor, Washington, 

DC 20529–2140 telephone (202) 272– 

1470. 

SUPPLEMENTARY INFORMATION: 

I. Public Participation 

Interested persons are invited to 

participate in this rulemaking by 

submitting written data, views, or 

arguments on all aspects of this 

proposed rule. The Department of 

Homeland Security (DHS) and U.S. 

Citizenship and Immigration Services 

(USCIS) also invite comments that relate 

to the economic, environmental, or 

federalism effects that might result from 

this proposed rule. Comments that will 

provide the most assistance to DHS will 

reference a specific portion of the 

proposed rule, explain the reason for 

any recommended change, and include 

data, information, or authority that 

support such recommended change. 

Instructions: All submissions received 

must include the agency name and DHS 

Docket No. USCIS–2008–0035. All 

comments received will be posted 

without change to http:// 

www.regulations.gov, including any 

personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. Submitted 

comments may also be inspected at the 

Regulatory Management Division, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, 111 

Massachusetts Avenue, NW., Suite 

3008, Washington, DC 20529–2140. 

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. However, the CNMI has 

administered its own immigration 

system under the terms of its 1976 

covenant with the United States. See A 

Joint Resolution To Approve the 

Covenant To Establish a Commonwealth 

of the Northern Mariana Islands in 

Political Union with the United States 

of America, (the Covenant Act), Public 

Law 94–241, sec. 1, 90 Stat. 263, 48 

U.S.C. 1801 note (1976). On May 8, 

2008, former President Bush signed into 

law the Consolidated Natural Resources 

Act of 2008 (CNRA). See Public Law 

110–229, Title VII, 122 Stat. 754, 853 

(2008). Title VII of the CNRA extends 

U.S. immigration laws to the CNMI with 

transition provisions unique to the 

CNMI. The stated purpose of the CNRA 

is to ensure effective border control 

procedures, to properly address national 

security and homeland security 

concerns by extending U.S. immigration 

law to the CNMI (phasing-out the 

CNMI’s nonresident contract worker 

program while minimizing to the 

greatest extent practicable the potential 

adverse economic and fiscal effects of 

that phase-out), and to maximize the 

CNMI’s potential for future economic 

and business growth. 

Since 1978, the CNMI has admitted a 

substantial number of foreign workers 

from China, the Philippines, and other 

countries through an immigration 

system that provides a permit program 

for foreigners entering the CNMI, such 

as visitors, investors, and workers. In 

fact, foreign workers under this program 

represent a majority of the CNMI labor 

force. Such workers outnumber U.S. 

citizens and other local residents in 

most industries central to the CNMI’s 

economy. Currently, the CNMI faces 

serious economic challenges, including 

a substantial decline in the garment 

industry and fluctuation in the tourism 

industry.1

Title VII of the CNRA became 

effective approximately one year after 

the date of enactment, subject to certain 

transition provisions unique to the 

CNMI. 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 that commences one 

year from the date of enactment of the 

CNRA) to November 28, 2009. http:// 

www.dhs.gov/ynews/releases/ 

pr_1238533954343.shtm. The transition 

period concludes on December 31, 2014. 

The law also contains several CNMIspecific provisions affecting foreign 

workers and investors during the 

transition period. These temporary 

provisions are intended to provide for 

an orderly transition from the CNMI 

permit system to the INA and to 

mitigate potential harm to the CNMI 

economy before these foreign workers 

and investors are required to obtain U.S. 

immigrant or nonimmigrant visa 

classifications. See Section 6(d)(1) or (2) 

of Public Law 94–241, as added by sec. 

702(a) of Public Law 110–229 (cited 

herein as ‘‘§ 702 of the CNRA’’). 

Among the CNMI-specific provisions 

applicable during the transition period 

is a provision authorizing the Secretary 

of Homeland Security to classify an 

alien foreign investor in the CNMI as a 

CNMI-only ‘‘E–2’’ nonimmigrant 

investor under section 101(a)(15)(E)(ii) 

of the INA, 8 U.S.C. 1101(a)(15)(E)(ii). 

This status is provided upon application 

of the alien and notwithstanding the 

treaty requirements otherwise 

applicable. See § 702 of the CNRA. 

Eligible investors are those who: 

• Were admitted to the CNMI in longterm investor status under CNMI 

immigration law before the transition 

program effective date; 

• Have continuously maintained 

residence in the CNMI under long-term 

investor status; 

• Are otherwise admissible to the 

United States under the INA; and 

• Maintain the investment(s) that 

formed the basis for the CNMI long-term 

investor status. 

DHS is required to promulgate 

implementing regulations no later than 

60 days before the transition program 

effective date. See id. 

Under the CNMI’s current foreign 

investor programs, foreign investors can 

apply for the following entry permits: 

• Foreign Investor Entry Permit, 4 N. 

Mar. I. Code section 5951 et seq. (2007), 

5 N. Mar. I. Admin. Code section 5– 

40.3–240(g) (2009); 

• Retiree Investor Entry Permit, 4 N. 

Mar. I. Code section 50101 et seq., 5 N. 

Mar. I. Admin. Code section 5–40.3– 

240(o) (2009); and 

• Long-Term Business Entry Permit, 4 

N. Mar. I. Code section 5941 et seq., 5 

N. Mar. I. Admin. Code section 5–40.3– 

240(n) (2009). 

Foreign investors may also obtain 

short-term or regular-term business 


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46940 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 

entry permits, may be authorized to 

enter the CNMI under its permit waiver 

program, or may invest without entering 

the CNMI. 

The CNMI currently has a Foreign 

Investor Entry Permit available for an 

indefinite period of time to individuals 

who submit evidence of good moral 

character and who meet all of the 

requirements for the foreign investment 

certificate. These foreign investors must 

maintain an investment of at least 

$250,000 by an individual in a single 

investment or $100,000 per person in an 

aggregate investment exceeding $2 

million. CNMI regulations for foreign 

investors also require a $100,000 

security deposit. See 4 N. Mar. I. Code 

section 5951 et seq.; see also 5 N. Mar. 

I. Admin. Code section 5–40.3–240(g) 

(2009). 

The CNMI also offers a Retiree 

Investor Entry Permit requiring a 

minimum investment of $100,000 in 

residential property on Saipan or 

$75,000 on the islands of Tinian or Rota 

by an applicant 55 years or older. 

Previously, the CNMI issued a different 

Retiree Investor Entry Permit to foreign 

investors over the age of 55 years; the 

previous certificate was issued for an 

unlimited term if the investor had 

invested and maintained a minimum of 

$150,000 in an approved residence to 

live in the CNMI. 

The CNMI also has a Two-Year 

Foreign Retirees Investment 

Certification that is limited to Japanese 

nationals only, which allows retirees 

over the age of 55 years to live in the 

CNMI for a period not to exceed two 

years, during which each applicant 

makes a minimum investment in a 

residence equivalent to $1,500 in 

monthly lease or rent. This certificate is 

not renewable. See 4 N. Mar. I. Code 

50101 et seq. 

In addition, the CNMI’s Long-Term 

Business Entry Permit for holders of 

long-term business certificates is valid 

for two years and requires an 

investment of at least $150,000 in a 

public organization or at least $250,000 

in a private investment. Each applicant 

alien also must provide the CNMI with 

a security deposit of $25,000. See 4 N. 

Mar. I. Code section 5941 et seq., see 

also 5 N. Mar. I. Admin. Code section 

5–40.3–240(n) (2009) 

Under U.S. immigration law, foreign 

investors may enter the United States as 

nonimmigrants within the treaty 

investor classification with an ‘‘E–2’’ 

visa, or may change to E–2 treaty 

investor nonimmigrant status from 

within the United States. See INA sec. 

101(a)(15)(E)(ii), 8 U.S.C. 

1101(a)(15)(E)(ii); see also 8 CFR 

214.2(e). To qualify for E–2 treaty 

investor status, treaty investors must 

invest a substantial amount of capital in 

a bona fide enterprise in the United 

States, must be seeking entry solely to 

develop and direct the enterprise, and 

must intend to depart the United States 

when their treaty investor status ends. 

Treaty investors must be nationals of a 

country with which the United States 

has a treaty of friendship, commerce, or 

navigation and must be entering the 

United States pursuant to treaty 

provisions. 

This rule proposes to establish 

procedures for foreign investors in the 

CNMI to obtain nonimmigrant status 

within the E–2 treaty investor 

classification, in accordance with the 

CNRA. USCIS refers to this special 

group of E–2 treaty investors as ‘‘E–2 

CNMI Investors.’’ With E–2 CNMI 

Investor nonimmigrant status, eligible 

CNMI investors would be able to remain 

in the CNMI for the duration of the 

transition period as investors under E– 

2 CNMI status, and to exit and enter the 

CNMI with valid E–2 CNMI Investor 

visas. The proposed rule is intended to 

provide a smooth transition for existing 

CNMI investors and to mitigate 

potential adverse consequences to the 

CNMI economy if the current 

investments could not be maintained as 

a basis for immigration status during the 

transition period because of the 

different provisions of the INA. At the 

end of the transition period, E–2 CNMI 

Investors and qualifying spouses and 

children must qualify for and obtain an 

appropriate immigrant or nonimmigrant 

status under the INA in order to remain 

in the CNMI or to enter the CNMI after 

a departure. 

III. Proposed E–2 CNMI Investor 

Program 

A. Eligibility Requirements 

The proposed rule incorporates into 

DHS’s immigration regulations the 

statutory eligibility requirements for E– 

2 CNMI Investor nonimmigrant status. 

See proposed 8 CFR 214.2(e)(23)(i). In 

order to be eligible for E–2 CNMI 

Investor nonimmigrant status, USCIS 

proposes to require that an alien must: 

• Have been admitted to the CNMI in 

‘‘long term investor’’ status before the 

transition program effective date; 

• Have continuously maintained 

residence in long term investor status; 

• Maintain an investment or 

investments forming the basis for such 

long term investment status; and 

• Be otherwise admissible to the 

United States under the INA. 

1. CNMI Admission 

To qualify for E–2 CNMI Investor 

status, an alien must have been lawfully 

admitted to the CNMI under one of the 

eligible CNMI long-term investor 

classifications before the transition 

program effective date, now November 

28, 2009. This proposed rule would not 

require the status to have been granted 

before the enactment date of the CNRA 

(May 8, 2008), but does provide that the 

eligible CNMI long-term investor 

classifications shall be only those in 

effect as of May 8, 2008. Such a 

limitation is necessary to create a 

practicable baseline for this rule that 

conforms with Congress’ intent to 

provide an orderly transition period. It 

must be noted that the CNMI re-codified 

its regulations regarding immigration 

effective on January 1, 2009, but the 

substantive classifications based upon 

investment generally remained the same 

as those in effect as of May 8, 2008. See 

5 N. Mar. I. Admin. Code section 5–40.0 

et seq. (2009); see also 20 N. Mar. I. 

Admin Code section 20–30.2 et seq.; 4 

N. Mar. I. Code section 5941 et seq.; 4 

N. Mar. I. Code section 5951 et seq.; 4 

N. Mar. I. Code section 50101 et seq. 

Aliens who have not been admitted as 

eligible CNMI investors prior to the 

beginning of the transition period are 

not eligible for classification as E–2 

CNMI Investors. Aliens who have 

investor applications pending with the 

CNMI as of the transition program 

effective date, or who have approved 

investor applications but have not been 

admitted to the CNMI as of the 

transition program effective date, will 

not be eligible for E–2 CNMI Investor 

status. 

2. Continuous Maintenance of 

Residence in the CNMI 

This rule proposes to define 

continuous maintenance of residence in 

the CNMI to mean residence in the 

CNMI from the date that an alien 

obtained his or her CNMI status through 

the future date on which USCIS grants 

the new E–2 CNMI Investor status. 

However, continuous residence does not 

mean continuous physical presence; 

thus, an alien would not need to have 

remained in the CNMI for the entire 

period in order to be deemed to have 

maintained continuous residence. 

‘‘Residence’’ is defined by section 

101(a)(33) of the INA (8 U.S.C. 

1101(a)(33)) as ‘‘the place of general 

abode; the place of general abode of a 

person means his or her principal actual 

dwelling place in fact, without regard to 

intent.’’ This statutory definition is 

incorporated into DHS’s immigration 

regulations by 8 CFR 1.1(a). The 

proposed rule provides that an alien 

must have been physically present in 

the CNMI during at least half the time 

for which continuous residence is 


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Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 46941 

required. In addition, any single absence 

of over one year will break continuity of 

residence, as will any single absence of 

more than six months, unless the 

subject alien is able to demonstrate that 

he or she did not abandon his or her 

residence by such absence. See, e.g., 8 

CFR section 316.5(c). 

3. Maintenance of Investment in the 

CNMI 

To establish that an alien is 

maintaining the investment or 

investments that formed the basis for 

admission to the CNMI, the proposed 

rule would require each subject alien to 

provide specific evidence demonstrating 

that the investor is in compliance with 

the terms upon which the CNMI 

investor certificate was issued. All 

documentation previously submitted in 

each investor application to the CNMI 

government should also be submitted as 

part of E–2 CNMI petitions to USCIS. 

The rule proposes to require the 

following documentary evidence for 

submission with each E–2 CNMI 

Investor application, as applicable: 

• Evidence that the applicant has 

invested capital in the CNMI. Such 

evidence may include bank statements 

showing amounts deposited in CNMI 

business accounts, invoices, receipts or 

contracts for assets purchased, stock 

purchase transaction records, loan or 

other borrowing agreements, land 

leases, financial statements, business 

gross tax receipts, and any other 

agreements supporting the application. 

• Evidence that the applicant has 

invested the minimum amount required. 

Such evidence may include evidence of 

assets that have been purchased for use 

in the enterprise, evidence of property 

transferred from abroad for use in the 

enterprise, evidence of monies 

transferred or committed to be 

transferred to the new or existing 

enterprise in exchange for shares of 

stock, any loan or mortgage, promissory 

note, security agreement or other 

evidence of borrowing which is secured 

by assets of the applicant. 

• A comprehensive business plan for 

each new enterprise. 

• Articles of incorporation, by-laws, 

partnership agreements, joint venture 

agreements, corporate minutes and 

annual reports, affidavits, declarations 

or certifications of paid-in capital. 

• Current business licenses. 

• Foreign business registration 

records, recent tax returns of any kind, 

and evidence of other sources of capital. 

• A listing of all resident and 

nonresident employees. 

• A listing of all holders of business 

certificates for the business 

establishment. 

• A listing of all corporations in 

which the applicant has a controlling 

interest. 

• For the holder of a Certificate of 

Foreign Investment, copies of annual 

reports of investment activities in the 

CNMI showing whether the certificate 

holder is under continuing compliance 

with the standards of issuance. Each 

report must be accompanied by an 

annual financial audit report performed 

by an independent certified public 

accountant. 

• For Retiree Investors: 

—Proof that the alien applicant has an 

interest in property in the CNMI and 

the value of that property interest. 

Proof of the value of the property 

could be supported by a lease 

agreement for the property or an 

appraisal of the value of the property. 

—Proof of the value of the 

improvements to the property, such as 

receipts or invoices regarding the 

costs of construction or the amount 

paid for a preexisting structure, or an 

appraisal of a structure. 

—Any other evidence supporting proof 

of investment in a residence and the 

value of the property interest. 

4. Categories of CNMI Foreign Investors 

After consideration of CNMI law and 

consultation with the CNMI 

government, DHS is proposing to limit 

eligibility for E–2 CNMI Investor status 

to the following categories of long-term 

foreign investors in the CNMI. 

• Long-Term business investor. An 

alien who has been lawfully admitted to 

the CNMI under a Long-Term Business 

Entry Permit and has been issued a 

Long-Term Business Certificate by 

CNMI for a period of two years on the 

basis of the alien’s $150,000 (minimum) 

investment in the CNMI. 

• Foreign investor. An alien who has 

been lawfully admitted to the CNMI as 

a Foreign Investor with a Foreign 

Investment Certificate on the basis of 

the alien’s investment of either $100,000 

(minimum) per individual in an 

aggregate investment in excess of 

$2,000,000, or $250,000 (minimum) in a 

single investment. 

• Retiree investor. An alien who has 

been lawfully admitted to the CNMI on 

the basis of one of the following Foreign 

Retirees Investment Certificates issued 

by the CNMI: 

—Foreign Retirees Investment 

Certification. This certificate is issued 

to an alien retiree over the age of 55 

years who has an interest in a 

residential property either (1) on 

Saipan in which the alien has 

invested a minimum of $100,000, or 

(2) on Tinian or Rota in which the 

alien has invested a minimum of 

$75,000. 

—Foreign Retiree Investment Certificate. 

This certificate was issued to an alien 

retiree over the age of 55 years who 

had invested and maintained a 

minimum of $150,000 in an approved 

residence to live in the CNMI. 

In creating the E–2 CNMI Investor 

status, the CNRA refers to admission in 

‘‘long-term investor’’ status under the 

laws of the CNMI, but does not define 

the term. See section 6(c)(1) of the 

Covenant Act. The admission categories 

under CNMI law that could potentially 

be referenced by the CNRA include the 

three categories listed above (Long-Term 

Business Investor, Foreign Investor, and 

Retiree Investor), a sub-category of the 

Retiree Investor specifically limited to 

Japanese retirees, discussed below, and 

Short- and Regular-Term Business Entry 

Permits. In order to meaningfully 

construe both ‘‘long-term’’ and 

‘‘investor,’’ only CNMI categories that 

mandated a fixed minimum threshold 

amount of investment and are 

renewable over a period of multiple 

years were considered to be ‘‘long-term 

investor’’ statuses. 

While the Retiree Investor category 

may not meet the current regulatory 

definition of investment for E–2 

purposes (at 8 CFR 214.2(e)(12)), DHS 

believes that the Retiree Investor 

category falls within the meaning of 

‘‘long-term investor’’ as it is used in the 

CNRA. USCIS understands that land 

ownership limitations in the CNMI 

generally prohibit alien ownership of 

real property, and that the maximum 

term of an interest in real property is a 

55-year lease. For this reason, and 

consistent with the intent of sections 

701(b) and sections 702(6)(c) and (6)(d) 

of the CNRA, USCIS has determined 

that a lease of residential property, 

which normally would not be 

considered ‘‘investment,’’ may serve as 

the basis for E–2 CNMI Investor status 

as long as the qualifying investment 

amount under CNMI law has been 

placed in the property through an 

upfront commitment to a long-term 

lease or improvements to the property. 

Therefore, USCIS has included this 

category in the proposed rule. 

Additionally, including the Retiree 

Investor is consistent with USCIS’ 

objective to provide a smooth transition 

for current CNMI investors and to 

mitigate potential economic harm to the 

CNMI. 

USCIS finds that CNMI status 

obtained through the two-year program 

for Japanese retirees requiring only 

monthly rental payments does not 

reasonably meet the statutory 

requirement of long-term investment 


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46942 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 

with respect either to its length, as the 

permit is non-renewable, or the 

character of the investment, and is thus 

not included in the E–2 CNMI Investor 

program proposed by this rule. USCIS 

notes that either the visa waiver 

program or B–1/B–2 visas may be 

available to such Japanese retirees. 

Aliens lawfully admitted to the CNMI 

under any other categories, including 

the Short-Term Business Entry Permit or 

the Regular-Term Business Entry Permit 

are not included in this proposed rule 

as eligible to apply for E–2 CNMI 

Investor status. Aliens lawfully 

admitted under the Short-Term 

Business Entry Permit or the RegularTerm Business Entry Permit categories 

are not included because such permits 

are not long-term, nor do they require 

investments. These aliens, however, 

would be eligible to apply for other 

nonimmigrant classifications, such as 

the B–1 business visitor classification. 

B. Application Procedures 

In keeping with the language of the 

CNRA, which discusses an alien’s 

application for a nonimmigrant investor 

visa, the rule proposes to require that 

those CNMI long-term investors seeking 

E–2 CNMI Investor status file 

applications requesting such status with 

USCIS, and pay the appropriate fees to 

USCIS, in accordance with instructions 

on the application form. USCIS will 

designate the form as Form I–129, 

‘‘Petitioner for a Nonimmigrant 

Worker,’’ with Supplement E as the 

application form for requesting E–2 

CNMI Investor status. The current fee 

for Form I–129 is $320. 

1. Application Period 

This rule proposes a limited 

application period. Applicants would be 

required to apply for E–2 CNMI Investor 

status either: (1) Before the start of the 

transition period; or (2) within the first 

two years following the start of the 

transition period. Therefore, USCIS 

would reject an application filed after 

the two-year period. Note, that while the 

rule would permit applications to be 

filed before the transition program 

effective date, USCIS would not be 

permitted to grant E–2 CNMI Investor 

status before that date. However, if 

USCIS completes its adjudication of an 

early-filed application prior to the 

transition program effective date, a 

consulate would be able to issue an E– 

2 CNMI Investor visa so that the subject 

alien would be able to seek admission 

to the CNMI as an E–2 CNMI Investor 

on or after the transition program 

effective date. 

2. Physical Presence 

Because E–2 CNMI Investor 

nonimmigrant status is a CNMI-only 

status, the rule proposes that each alien 

must be present in the CNMI or outside 

the United States at the time his or her 

application is filed with USCIS. Upon 

approval, an alien outside the CNMI 

would need to obtain an E–2 CNMI 

Investor nonimmigrant visa at a United 

States consulate abroad to be admitted 

to the CNMI as an E–2 CNMI Investor 

on or after the transition program 

effective date. 

3. Fee Waiver 

Waiver of the current $320 fee for 

filing Form I–129 is normally not 

permitted under the applicable 

regulations at 8 CFR 103.7. In 

recognition of adverse economic 

conditions in the CNMI as compared to 

many other U.S. places, and because of 

the inclusion of some retirees in this 

new nonimmigrant category and the 

likely participation by a number of 

proprietors of small businesses with 

CNMI Long-Term Business Entry 

Permits, the proposed rule permits 

waiver of the fee in cases where the 

subject alien is able to substantiate that 

he or she is unable to pay the prescribed 

fee, under the standards provided in 8 

CFR 103.7(c)(1). Currently there is no 

fee-waiver provision for Form I–129 and 

this rule is proposing a specific waiver 

provision limited to investors under this 

rule. See proposed 8 CFR 103.7(c)(5)(iv). 

While such a provision may seem 

inconsistent with a benefit based upon 

a monetary investment, the CNMI E–2 

Investor program proposed in this rule 

differs from the current E–2 program in 

that retiree investors are eligible. The 

waiver provision is limited to those who 

can make a showing of inability to pay. 

USCIS believes that some CNMI E–2 

Investor eligible retiree investors may 

have invested the majority of their 

savings in their investment residences, 

may be living on fixed incomes, and 

may qualify for waivers. Applicants in 

the CNMI will also have to submit the 

$80 biometric service fee; this fee is 

waivable for inability to pay under 

current USCIS regulations. See 8 CFR 

103.7(b)(1) (discussing the current 

biometric service fee); proposed 8 CFR 

214.2(e)(23)(viii) (discussing ability to 

seek waiver of biometric service fee). 

4. Discretionary Benefit and Appeal 

Rights 

Adjudication of the application for E– 

2 CNMI Investor nonimmigrant status is 

a discretionary determination by USCIS. 

USCIS may deny an application for 

failure of the applicant to demonstrate 

eligibility or for other good cause. As 

with other adjudications of Form I–129, 

denial of an E–2 CNMI Investor 

application may be appealed to the 

USCIS Administrative Appeals Office 

for agency review of the denial. 

5. Spouses and Children 

USCIS proposes to extend E–2 CNMI 

Investor status to the spouse and 

children of each principal E–2 CNMI 

Investor if they accompany or follow-tojoin the principal alien. The nationality 

of these dependents would not be 

material to their classification as 

dependents of E–2 CNMI Investors. 

Such spouse and dependents, however, 

must be otherwise admissible to the 

United States under the INA to qualify 

for the status. The rule proposes to 

require that those CNMI long-term 

investors seeking E–2 CNMI Investor 

status file applications requesting such 

status with USCIS in accordance with 

instructions on the application form. 

See proposed 8 CFR 214.2(e)(23)(v). In 

accordance with instructions on the 

application form, E–2 CNMI investors 

whose spouses and children seek to 

accompany or follow-to-join him or her 

will utilize Form I–539, ‘‘Application to 

Extend/Change Nonimmigrant Status’’ 

as the application form for requesting E– 

2 CNMI Investor status for dependants. 

The current fee for Form I–539 is $300. 

C. Work Authorization 

The proposed rule would amend 8 

CFR 214.2(e) and 274a.12 to provide for 

the work authorization of certain E–2 

CNMI Investors and their spouses. Work 

authorization is not permitted for 

children of E–2 CNMI Investors. The E– 

2 CNMI Investor is authorized to work 

for a specific employer incident to 

status to the extent that such work 

authorization is for a qualifying entity 

that was the basis for the long-term 

investor status under CNMI law upon 

which the grant of E–2 CNMI Investor 

status is based. For example, an 

authorized investment in a business 

operated by the investor in the CNMI 

under a Long-Term Business Permit 

granted prior to the transition program 

effective date will permit the investor to 

operate that business as an E–2 CNMI 

Investor. E–2 CNMI Investors obtaining 

status under a Retiree Investment Permit 

are not work-authorized, since, by 

definition, coming to the CNMI as a 

‘‘retiree’’ is inconsistent with obtaining 

employment there. 

After each spouse of E–2 CNMI 

Investors lawfully obtains E–2 CNMI 

Investor status, and upon lawful 

admission to the CNMI, each spouse 

may request employment authorization 

by filing Form I–765, Application for 


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Employment Authorization, with 

USCIS. However, spouses of E–2 CNMI 

Investors who obtained that status as 

retirees are not eligible for work 

authorization, for the reason stated 

above. This is consistent with the level 

of benefits currently afforded under 

CNMI law, as neither retiree investors 

nor their spouses are permitted to work. 

Employment authorization is 

inconsistent with being a ‘‘retiree’’. DHS 

understands that the spouse of a retiree 

may not in all cases also be a retiree, but 

notes that retiree spouses may qualify 

for transition worker or other specific 

work-authorized statuses if eligible. 

However, DHS specifically invites 

comments on whether work 

authorization should be permitted for 

spouses of retiree investors. 

All E–2 CNMI Investor principal and 

spousal employment authorization is 

expressly limited to employment in the 

CNMI. 

D. Changes in the Terms and Conditions 

of E–2 CNMI Investor Status 

If there are any substantive changes to 

aliens’ compliance with the terms and 

conditions of qualification for E–2 

CNMI Investor status, the rule proposes 

to require those aliens to file with 

USCIS new copies of Form I–129 and 

Supplement E with respect to the 

changes. An unauthorized change of 

employment to a new employer would 

constitute a failure to maintain status 

within the meaning of section 

237(a)(1)(C)(i) of the INA, 8 U.S.C. 

1227(a)(1)(C)(i). 

E. Period of Admission 

This rule proposes to provide an 

initial admission period of two years for 

aliens with E–2 CNMI Investor status. 

The spouse and minor children 

accompanying or following-to-join an 

E–2 CNMI Investor would be admitted 

for the same period that the principal 

alien is in valid E–2 CNMI Investor 

status. If an E–2 CNMI Investor 

temporarily departs the CNMI, the 

derivative status of the dependent 

spouse and children would not be 

affected, provided that the familial 

relationship continues to exist and the 

principal remains eligible for admission 

as an E–2 CNMI Investor. 

F. Extensions of Stay 

This proposed rule provides for 

extensions of E–2 CNMI Investor status, 

until the end of the transition period, in 

two-year increments, which is the same 

increment permitted for non-CNMI E–2 

nonimmigrants. To apply for an 

extension of stay, each E–2 CNMI 

Investor would be required to file with 

USCIS a new Form I–129 and 

Supplement E with the required 

evidence and fee. To qualify for an 

extension of stay, each E–2 CNMI 

Investor would be required to 

demonstrate that he or she: 

(i) Continuously maintained the terms 

and conditions of E–2 CNMI Investor 

status; 

(ii) Was physically present in the 

CNMI at the time of filing the 

application for extension of stay; and 

(iii) Did not abandon the request for 

extension of stay. 

G. Travel 

E–2 status provided to long-term 

CNMI investors is a ‘‘CNMI-only 

nonimmigrant’’ status. See section 

6(c)(1) of the Covenant Act, as added by 

section 702 of the CNRA. Consistent 

with this provision, the proposed rule 

provides that a grant of E–2 CNMI 

investor status is a grant of status valid 

within the CNMI only, and not within 

the United States as a whole. It does not 

authorize admission or travel to Guam 

or to any other part of the United States. 

However, it does not bar such travel if 

the alien is otherwise authorized and 

admissible to the United States in 

another status. For example, an E–2 

CNMI Investor who wishes to make a 

tourist or business visit to Guam or 

another part of the United States 

(including but not limited to transit 

through the Guam airport) may do so if 

he or she has a B nonimmigrant visa or 

is eligible under an applicable visa 

waiver program. However, the alien may 

not do so based upon the current E–2 

CNMI Investor status, or based upon any 

E–2 CNMI Investor visa. 

The proposed rule provides that travel 

or attempted travel from the CNMI to 

another part of the United States 

without the appropriate visa or other 

authorization, or violation of the terms 

applicable to the authorized status, 

would constitute violation of the E–2 

CNMI Investor status. For example, if an 

E–2 CNMI Investor were identified by 

U.S. Customs and Border Protection as 

seeking to board a plane in Saipan for 

Guam, and the alien lacked a B 

nonimmigrant visa or other visa (or 

eligibility for a visa waiver) that would 

authorize the alien to have traveled from 

a foreign place to Guam and to be 

admitted there, then the alien would 

have failed to comply with the 

conditions of the E–2 CNMI Investor 

status and would be deportable from the 

CNMI or any other U.S. location under 

section 237(a)(1)(C) of the INA, 8 U.S.C. 

1227(a)(1)(C). 

With respect to travel from the CNMI 

to a foreign place and return to the 

CNMI, if an E–2 CNMI Investor obtained 

his or her status from USCIS in the 

CNMI, he or she would need to obtain 

an E–2 CNMI Investor visa from a U.S. 

embassy or consulate in order to be 

readmitted to the CNMI, regardless of 

nationality. USCIS approval of E–2 

CNMI Investor status provides status 

while present in the CNMI, but does not 

preclude the requirement of a visa for 

admission to the CNMI. 

H. Change of Status to E–2 CNMI 

Investor Status 

This rule proposes to permit aliens 

eligible for E–2 CNMI investor status on 

the transition program effective date, 

but who obtain other valid 

nonimmigrant visa statuses, to apply to 

change to E–2 CNMI Investor status by 

filing Form I–129 and Supplement E in 

accordance with the current regulations 

at 8 CFR 214.2(e)(21). However, 

applications for this change in status 

would have to be filed within the twoyear filing period for obtaining initial 

grants of E–2 CNMI Investor status. Note 

that during the transition period, E–2 

CNMI Investors may apply for changes 

of status to any other nonimmigrant or 

immigrant visa classifications for which 

they may qualify. 

I. Post-Transition Period 

As previously discussed, E–2 CNMI 

Investors may maintain status and apply 

for subsequent extensions of this status 

until the end of the transition period. 

After the transition period, however, the 

E–2 CNMI Investor classification will 

cease to exist. Absent delay, the 

transition period will end on December 

31, 2014. Although the Secretary of 

Labor is authorized under section 702 of 

the CNRA to extend the transition 

provisions relating to temporary 

workers in additional increments of up 

to five years each, this authority is 

limited to extension of those provisions 

relating to temporary workers and not 

the investor provisions. Therefore, the 

investor provisions will terminate on 

December 31, 2014, regardless of 

whether the temporary worker 

provisions are extended. 

IV. Regulatory Requirements 

A. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement Act of 

1996. This rule, with its impact limited 

to addressing eligible aliens currently in 

one of the CNMI long term investor 

classifications, will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 


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46944 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 

2Northern Marianas College, Business 

Development Center, An Economic Study of the 

Commonwealth of the Northern Mariana Islands 

(Saipan, MP: Northern Marianas College 1999). 

3 Ibid. 

4CNMI Comprehensive Economic Development 

Strategic Plan 2009–2014. CNMI CEDS Commission 

Updated 1/29/09. 

5See, Walt F. J. Goodridge, ‘‘The Last Garment 

Factory is Closing,’’ Saipan Times, January 14, 

2009, http://www.saipantribune.com/ 

newsstory.aspx?cat=3&newsID=86872. 

6United States Government Accountability 

Office, Commonwealth of the Northern Mariana 

Islands Managing Economic Impact of Applying 

U.S. Immigration Law Requires Coordinated 

Federal Decisions and Additional Data (July 2008). 

investment, productivity, innovation, or 

on the ability of U.S.-based companies 

to compete with foreign-based 

companies in domestic and export 

markets. 

B. Executive Order 12866 

In accordance with Executive Order 

12866, USCIS is required to prepare an 

assessment of the benefits and costs 

anticipated to occur as a result of this 

regulatory action and to provide the 

assessment to the Executive Office of 

the President, Office of Management 

and Budget, Office of Information and 

Regulatory Affairs. The analysis below 

is the DHS Economic Analysis as 

required by the Executive Order. 

(1) Background 

The CNMI lies north of Guam, 

between the Philippines and Japan. S. 

Rep. No. 110–324, at 2 (2008). The 

United States captured the islands of the 

CNMI in World War II and they became 

a district of the U.S.-administered 

United Nations Trust Territory of the 

Pacific Islands. Id. Under the Covenant 

through which the CNMI joined the 

United States in 1976, the CNMI was 

exempted from most provisions of U.S. 

immigration laws and allowed to 

control its own immigration; however, 

the Covenant gave the U.S. Congress the 

authority to modify that arrangement 

through Federal legislation. Id. 

The United States enacted the CNRA 

amending the level of control the CNMI 

would have over its immigration system 

to more closely harmonize it with the 

laws and procedures applicable to other 

U.S. jurisdictions, particularly those 

designed to ensure that border control, 

national security, and homeland 

security issues are properly addressed. 

See CNRA Section 701. 

(2) Changes Made in This Rule 

In order to reduce the opportunity for 

fraud and to improve homeland 

security, USCIS is proposing in this rule 

that foreign investors who wish to 

reside in the CNMI must reapply every 

two years using USCIS Form–129, 

Petition for a Nonimmigrant Worker. 

Requiring renewal every two years will 

help USCIS make sure investors have 

maintained their eligibility, update their 

biometrics, or allow USCIS to advise 

them whether they are potentially 

eligible for another program under the 

INA that will allow them to stay in legal 

nonimmigrant status after the end of the 

transition program, currently December 

31, 2014. The CNRA generally extends 

Federal control of immigration in the 

CNMI to combat fraud and abuse, and 

the requirement for renewal within this 

period is consistent with current 

practice for non-CNMI E–2 treaty 

investor non-immigrants. 

However, USCIS is aware of and 

sensitive to the potential economic 

impact of new Federal immigration 

requirements on the CNMI economy, 

and this rule’s proposed requirements 

have been developed with that in mind. 

According to an economic study 

performed by the Northern Marianas 

College, employment grew in the CNMI 

by 12.7 percent annually between 1980 

and 1995, because of expansion of the 

garment and tourism sectors.2 During 

that time, the garment and tourism 

industries accounted for 85 percent of 

the CNMI economy.3 Recently, 

economic conditions have changed 

dramatically for these two CNMI 

industries. Due to changes in trade 

agreements, the value of CNMI textile 

exports to the United States dropped 

from $1.1 billion in 1998 to $317 

million in 2007. The number of licensed 

apparel manufacturers dropped from 34 

to 3 in 2008.4 The remaining three 

garment factories have closed or 

suspended their operations in early 

2009.5 The CNMI tourism industry also 

has been in decline in recent years. The 

terrorist attacks on the United States on 

September 11, 2001, the Severe Acute 

Respiratory Syndrome (SARS) epidemic 

which began in Asia in 2003 and led to 

the death of 774 worldwide, the 

downturn in many Asian economies, 

changes in airline service, and other 

concerns have reduced the number of 

tourists traveling to the CNMI from 

736,117 in 1996 to 389,345 in 2007.6

Because of the decline of the CNMI 

economy, USCIS has sought to 

minimize the impact of any additional 

visa requirements, while recognizing 

that Federal oversight of CNMI 

immigration is necessary to reduce 

fraud and ensure U.S. homeland 

security. 

(3) Alternatives Considered 

USCIS considered a narrow 

construction for implementation of the 

CNMI-only nonimmigrant investor visa 

as required by section (6)(c) of the 

Covenant Act, as added by section 702 

of the CNRA. Possible constructions 

would have limited the categories of 

investors under current CNMI law who 

would be permitted to become CNMI 

E–2 Investors. Possible constructions 

analyzed included limiting which 

investor-based categories under current 

CNMI law would be permitted to 

become CNMI 

E–2 Investors. Specifically, DHS 

discussed options wherein only CNMI 

perpetual foreign investors would be 

permitted, as well as options wherein 

only long-term business permit holders 

or a combination of only perpetual 

foreign investors and long-term business 

permit holders would be permitted. 

However, in light of the potential 

adverse economic impact of such 

limitations and the goal of limiting 

adverse economic impact on the CNMI, 

such limiting options were not chosen. 

USCIS chose the broadest interpretation 

possible, whereby long-term business 

permit holders, foreign investors and 

retiree investors (other than investors 

under a short-term program not believed 

to qualify under the CNRA) would be 

eligible for CNMI E–2 Investor status, 

because it believes such an 

interpretation is most in keeping with 

the mandate to limit adverse economic 

impact. 

(4) The Total Cost of This Regulation 

(a) Fees 

This proposed regulation will require 

all foreign investors wishing to remain 

in the CNMI to reapply for investor 

registration every two years using 

USCIS Form I–129, Petition for a NonImmigrant Worker. The application fee 

for this form is $320. Additionally, this 

rule will require CNMI investors to 

provide their biometrics and imposes an 

additional $80 biometrics fee. Thus, the 

total fees for each initial and biennial 

registration are $400 ($320 + $80). Fee 

waivers for inability to pay are 

available. 

(b) Paperwork Burden 

It takes approximately 2.75 hours to 

complete the Form I–129, according to 

the instructions to the form. Since most 

of the respondents under this rule will 

be business investors, their average 

hourly costs will be much higher than 

the average hourly costs of the average 

salaried worker. Thus, for the purpose 

of this analysis, USCIS based hourly 

costs on the average hourly salary for 

‘‘chief executives’’ from the Department 

of Labor’s May 2007 National 

Occupational Employment and Wage 

Estimates to determine the cost 

associated with the hours necessary to 


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7 GAO–08–791 Commonwealth of the Northern 

Mariana Islands, Managing Potential Impact of 

Applying U.S. Immigration Law requires 

Coordinated Federal Decisions and Additional Data, 

August 2008. 

8This estimate considers the added time burden 

costs of the new USCIS paperwork but includes no 

similar cost savings from eliminating the paperwork 

burden associated with the CNMI’s current 

program. Thus actual costs savings are likely to be 

greater than estimated here. 

9 GAO, GAO–08–791, Commonwealth of the 

Northern Mariana Islands, Managing Potential 

Economic Impact of Applying U.S. Immigration 

Law Required Coordinated Federal Decisions and 

Additional Data, August 2008. 

complete the Form I–129. The hourly 

wage for chief executives is $72.77. If 

we multiply $72.77 by 1.4 to account for 

fringe benefits, the hourly cost is 

$101.88. Multiplying $101.88 by the 

2.75 hours required to fill out the I–129 

results in paperwork burden cost per 

form of $280.16. However, because of 

generally lower wage levels in the CNMI 

and because some CNMI investors are 

retirees, this is a maximum cost estimate 

and the likely actual cost is lower. 

Additionally, if a foreign investor 

wishes to bring along his or her family 

they will have to complete Form I–539, 

Application to Extend/Change Status. 

The application fee for this form is $300 

and this form takes approximately 45 

minutes to complete according to the 

form instructions. If the foreign investor 

fills out this form himself, the 

paperwork cost to complete this form is 

$101.88 × .75, or $76.41 per investor. 

(c) Cost per Foreign Investor 

Adding the estimated paperwork 

burden cost for completing Form I–129 

of $280 to the $400 application and 

biometrics fee, the total cost for each 

CNMI foreign investor to submit the 

I–129 as required under this rule every 

two years is $680. Since re-registration 

is only required every other year, annual 

costs are $340 per year ($680/2). In 

addition, the $76 paperwork cost of 

completing the I–539 plus the $300 

application fee costs a total of $376. 

Form I–539 is a one time only 

application. So the first year cost for 

foreign investors to complete and 

submit the two forms combined is $716 

($340 + $376). Each additional year is 

only $340. 

Currently foreign investors are 

charged $1,000 every two years or $500 

per year by the CNMI government. 

CNMI fee setting methodology is 

unknown to USCIS. For this analysis it 

is assumed that the CNMI fees resemble 

U.S. Government agency service and 

user fees in that they are set at the 

amount necessary to recover costs in 

accordance with Office of Management 

and Budget guidance, and are not 

intended to generate a profit. Thus, 

while fees collected by the CNMI for the 

foreign investor program will no longer 

be collected by the CNMI Government, 

the cost of administering that program 

will not be incurred, resulting in a 

neutral financial effect. To the extent 

that the CNMI government used such 

fees to raise revenue, such excess will 

be lost as a result of this rule. 

Additionally, spouses and children 

who wish to receive the same status as 

their foreign investor spouse or parent 

may be required to provide biometrics at 

a cost of $80 per person. According to 

a recent GAO report the average family 

in the Marianas Islands includes 2 

children.7 However, biometrics are only 

required for children between the ages 

of 14 and 21. Therefore, for purposes of 

analysis, we assume that each foreign 

investor’s family will be required to 

provide biometric fees for one spouse 

and only one child for an additional 

cost of $160. This will be required only 

every other year for an average annual 

cost of $80 ($160/2). Adding this cost to 

the above fees will lead to a cost per 

investor family of $796 in the first year 

($340 + $376 + $80) and $420 in the 

second year ($340 + $80) and every 

subsequent year until the end of the 

transition period. Once the Federal 

regulations are in place the CNMI 

government will no longer charge the 

$1,000 fee they have been charging 

foreign investors every two years as 

foreign investors will now be subject to 

the Federal regulations. Therefore, this 

rule will raise the foreign investor’s 

annual cost by $296 in the first year 

($796—$500), but reduce the cost in 

second and future years until the end of 

the transition period in 2014 by $80 

($500—$420).8

The above annual cost estimates 

represent the costs for those investors 

with a spouse and one child between 

the ages of 14 and 21. For those 

investors with a spouse and more than 

1 child between the ages of 14 and 21 

these cost estimates may be too low. For 

those investors, particularly those who 

are retired, these estimates may be too 

high. Lack of data on foreign investors 

does not allow us to further refine our 

estimates. 

(5) Number of Filings Expected 

USCIS projects that most foreign 

investors plan to re-register their status 

Although a small number of foreign 

investors may be found ineligible, 

USCIS lacks data on the basis of which 

to estimate to what extent that may 

occur. USCIS therefore is soliciting 

comments on the subject along with any 

supporting material, data, or 

calculations that support the estimated 

rejection rate so that we may consider 

this information and place it in the 

public docket for this rulemaking. 

Additionally, given the decline in the 

textile and tourist businesses in the 

CNMI as discussed earlier, even the 

small fee imposed by this rule may lead 

some foreign investors not to re-register. 

Since data on which to base a reliable 

estimate of the numbers of foreign 

investors who may choose not to reregister are lacking, USCIS is interested 

in comments containing information 

concerning the likelihood of reregistration. 

In 2006–2007, there were 464 longterm business entry permit holders and 

20 foreign investor entry permit holders 

and retiree investor permit holders, 

totaling 484, or approximately 500 

foreign registered investors. In its recent 

report, the GAO estimates that the 

number of long-term business and 

perpetual foreign investor entry permits 

active and valid in 2008 were 506. In 

another measure, the GAO suggests that 

448 businesses were associated with 

long-term business entry permits and 56 

additional perpetual foreign entry 

permits were associated with 30 

businesses.9 This analysis assumes that 

500 foreign investors would be affected 

because of the constantly changing 

economic environment in CNMI. The 

first year costs, as discussed above, 

would be an additional $296 per 

investor for a total first year cost of 

$148,000 ($296 × 500) for all CNMI 

foreign investors. The additional 

transition years will see a savings of $80 

per investor or a total foreign investor 

savings of $40,000 ($80 × 500 = $40,000) 

per year until 2014. 

Foreign investors who travel to and 

from CNMI will now be required to have 

visas. USCIS, however, is not requiring 

foreign investors who travel to the 

United States to have visas in this rule, 

as that requirement will exist 

irrespective of this rule. Thus the costs 

to obtain a visa are not a cost of this rule 

but rather the cost of the CNRA, and the 

CNMI adopting the INA. 

(6) The Cost to the Federal Government 

There are no additional costs to the 

Federal Government as USCIS is a 

generally a fee funded agency. USCIS 

will recoup its costs through the 

collection of Form I–129 and Form 

I–539 fees. 

(7) Effects after 2014 

(a) The CNRA and This Rule 

The CNRA was intended to ensure 

effective border control procedures and 

to properly address national security 

and homeland security concerns by 


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46946 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 

10 GAO, GAO–08–791, Commonwealth of the 

Northern Mariana Islands, Managing Potential 

Economic Impact of Applying U.S. Immigration 

Law Required Coordinated Federal Decisions and 

Additional Data, August 2008. 

11See, INA Section 101(a)(15)(L); 8 CFR 214.2(l). 

extending U.S. immigration law to the 

CNMI, and to maximize the CNMI’s 

potential for future economic and 

business growth under U.S. immigration 

law. This rule proposes temporary 

regulatory provisions to transition the 

CNMI to the INA and to mitigate harm 

to the CNMI economy before investors 

in the CNMI are required to obtain U.S. 

immigrant or nonimmigrant visa 

classifications. The CNMI investor 

program proposed in this rule will last 

until the end of the transition program, 

currently December 31, 2014, at which 

time, the CNMI E–2 Investor must apply 

and be approved for another immigrant 

or nonimmigrant status under the INA. 

It is assumed that the data provided by 

the CNMI and other interested parties, 

gathered by Congress, and considered in 

development and passage of the CNRA 

showed significant differences in the 

non-immigrant visa programs under the 

INA and the visa and certificate 

programs offered by the CNMI. Current 

foreign workers and investors in the 

CNMI would mostly not be eligible for 

a status under the INA, or else 

legislation of a transition period and 

temporary mitigating regulations as 

proposed under this rule would be 

unnecessary. Thus, while one stated 

goal of the CNRA is the economic and 

business growth of the CNMI, by 

providing a mitigating transition 

program, the legislation implies that 

goal will require at least 5 years to be 

achieved. This rule will operate during 

that time. 

(b) Effect on Investors 

This rule links investment levels to 

those required for CNMI status for a 

long-term business investor at $150,000; 

a perpetual foreign investor at $100,000, 

in an aggregate approved investment in 

excess of $2,000,000, or a minimum of 

$250,000 in a single investment; and, a 

retiree investor at $100,000 in Saipan, 

$75,000 in Tinian or Rota, or $150,000 

elsewhere in the CNMI. To qualify as a 

U.S E–2 treaty investor with 

nonimmigrant status, the applicant must 

invest a substantial amount of capital in 

a bona fide enterprise in the United 

States, must be seeking entry solely to 

develop and direct the enterprise, and 

must intend to depart the United States 

when their treaty investor status ends. 

Next, the treaty investor must be a 

national of a country with which the 

United States has a treaty of friendship, 

commerce, or navigation and must be 

entering the United States pursuant to 

treaty provisions. 

USCIS has not analyzed the data on 

current CNMI long-term business entry 

permit holders and foreign investor 

entry permit holders to determine who 

would qualify as U.S. E–2 Investors. 

There is no accurate way to estimate for 

what other visa or nonimmigrant status 

the 500 foreign registered investors may 

qualify. However, a review of the CNMI 

eligibility criteria and anecdotal 

evidence indicates that many of them 

would not meet the minimum financial 

investment necessary to be eligible for 

U.S. E–2 status currently. Further, the 

retiree investor permit holders do not 

qualify as U.S. E–2 Investors in their 

current status, notwithstanding that 

they may have access to or be able to 

acquire enough capital to invest and 

qualify. Finally, according to the GAO 

Report, about 18 percent of foreign 

investors in the CNMI are from 

countries with which the United States 

does not have a treaty of friendship, 

commerce, or navigation.10 Thus of the 

500 foreign registered investors in the 

CNMI, many of them will need to spend 

the transition period making themselves 

eligible for another status under the 

INA. Anecdotal evidence indicates that 

at least a few of the affected investors 

from countries without treaties of 

friendship, commerce or navigation 

with the United States may be eligible 

for L–1A executive or managerial visas; 

thus the possibility exists that some of 

these investors may be able to stay in 

the CNMI in another status after the end 

of the transition program, currently 

December 31, 2014.11

(c) Effect on the CNMI Economy 

USCIS has not analyzed the precise 

effect of increased or decreased 

investments in the CNMI. Nevertheless, 

as indicated before, the differences 

between the CNMI foreign investor 

programs before the CNRA takes effect 

and those available afterward under the 

INA are certain to change the mix of 

foreign investors eligible for a new 

status and maintaining a presence in the 

CNMI after the end of the transition 

program, currently December 31, 2014. 

An immigrant investor program, or 

immigration through investment, seeks 

to promote economic growth through 

increased export sales, improved 

regional productivity, creation of new 

jobs, and increased domestic capital 

investment. The presumption is that the 

investment opportunity coupled with 

the opportunity to live in the country 

offering the program offers advantages, 

or at least appears to offer advantages, 

to the investor over investments and 

residence in his or her country of origin. 

Assuming that these goals are generally 

achieved, withdrawal of the alien’s 

investment without substitution of a 

substantially similar investment, would, 

at the least, end what positive results 

had been started, and, at the worst, have 

the reverse effect and retard growth, 

sales, productivity, jobs, and 

investment. Thus, if a substantial 

number of the 500 foreign investors in 

the CNMI are required to leave, 

liquidate their investments, and their 

investments are not replaced by another 

equal or greater investment, then it will 

likely have a negative impact on the 

CNMI economy. This rule is intended to 

mitigate that impact. 

(8) Benefits 

CNMI administration of an 

immigration system outside U.S. 

immigration law has led to an abuse of 

the visa system in the CNMI. S. Rep. No. 

110–324, at 3 (2008). Given this abuse, 

there are concerns not only for the wellbeing of foreign employees working in 

the CNMI, but also for the potential 

abuse of the visa system by those 

seeking to illegally emigrate from the 

CNMI to Guam or elsewhere in the 

United States. Id. at 3–5. This reduces 

the integrity of the U.S. immigration 

system by increasing the ease by which 

aliens may unlawfully enter the United 

States through the CNMI. Federal 

oversight and regulation of CNMI 

foreign investors should help reduce 

abuse by foreign investors in the CNMI, 

and should help reduce the opportunity 

for aliens to use the CNMI as an entry 

point into the United States. Id. at 2, 4– 

5. Because oversight of immigration by 

the CNMI government is thought to be 

less stringent than that of the United 

States Federal Government, there is 

presently the opportunity by 

individuals seeking entrance to the 

United States to seek admittance to 

CNMI as an opportunity to gain, in turn, 

illegal entrance into the United States. 

By the Federal Government taking over 

responsibility for immigration 

enforcement in CNMI, the opportunity 

for abuse of the CNMI immigration 

regime for illegal access to the United 

States is reduced. 

(9) Conclusion 

This proposed rule responds to a 

Congressional mandate that requires the 

Federal Government to assume 

responsibility for all immigration to the 

CNMI by foreign investors, whether 

temporary or permanent. This proposed 

rule will implement this mandate and 

thus contribute to U.S. homeland 

security. USCIS concludes that the 

alternative chosen for this proposed rule 

represents the most cost-effective means 


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Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 46947 

12U. S. Small Business Administration, Table of 

Small Business Size Standards, Matched to North 

American Industry Classification System Codes. 

Viewed April 2, 2009, at http://www.sba.gov/idc/ 

groups/public/documents/sba_homepage/ 

serv_sstd_tablepdf.pdf. 

of implementing its Congressional 

mandate while having only minimal 

negative impact on the CNMI economy. 

Comments are welcome on these 

conclusions. 

D. Regulatory Flexibility Act—Initial 

Regulatory Flexibility Analysis 

The Regulatory Flexibility Act of 1980 

(RFA), 5 U.S.C. 601–612, as amended by 

the Small Business Regulatory 

Enforcement Fairness Act of 1996 (Pub. 

L. 104–121), requires Federal agencies 

to consider the impact of their 

regulatory proposals on small entities. 

1. Description of and, Where Feasible, 

an Estimate of the Number of Small 

Entities to Which the Proposed Rule 

Will Apply 

a. Regulated Entities 

This proposed rule would affect 

foreign investors in the CNMI. As 

previously stated, foreign investors can 

apply for the following CNMI entry 

permits: foreign investor permits, longterm business permits, and retiree 

investor permits. 

b. Number of Small Entities to Which 

the Proposed Rule Will Apply 

Data available on the present 464 

long-term permit holders reveal that 

they account for 419 businesses with 

about 4,592 employees, approximately 

11 employees per business. In 

additional, as discussed above, there are 

an additional 20 foreign investor entry 

permit holders and retiree investor 

permit holders for a total of 484. Since 

the economic situation in the CNMI is 

dynamic, this analysis approximates the 

number of affected businesses at 500 

total. Now that the last garment factory 

in the CNMI has closed, the remaining 

industries affected by this rule are 

tourism (lodging and recreation) which 

are North American Industry 

Classification System (‘‘NAICS’’) codes 

72111 and 7139, respectively, 

miscellaneous manufacturing (NAICS 

code 339999), and retail sales (NAICS 

Code 445). According to the Small 

Business Administration guidelines 

firms in the accommodation and food 

services and recreation industries are 

considered small if they have sales of 

less than $7 million per year.12

Miscellaneous manufacturing firms are 

considered small if they have fewer than 

500 employees, and specialty retail food 

stores are small if they have sales of less 

than $7 million. The firms affected by 

this rule have an average of 11 

employees, however, USCIS has no data 

on the average annual sales of those 

firms. Thus, for the purposes of this 

analysis, under the requirements of the 

RFA, USCIS assumes that all of the 

foreign investor owned businesses in 

the CNMI affected by this rule are small 

entities. 

According to the 2005 CNMI 

Household, Income, and Expenditures 

Survey, there were 35,365 employed 

workers in the CNMI. Dividing the 4,592 

employees who are employed in foreign 

investor businesses by the total 

employment of 35,365 shows that 

approximately 13 percent of the CNMI 

labor force works directly for foreign 

investor owned businesses that this 

proposed rule would require to register. 

This may constitute a significant 

percentage of employers in the CNMI, 

particularly considering current 

economic trends that show a continued 

decline in both the garment and tourism 

industries, which comprise a significant 

share of the CNMI economy. Therefore, 

while 500 total petitioners appear to be 

a small number, 13 percent may be a 

sufficiently high percentage of workers 

in the economy to represent a 

substantial number of small entities in 

the CNMI. 

2. Description of the Projected 

Reporting, Recordkeeping and Other 

Compliance Requirements of the 

Proposed Rule, Including an Estimate of 

the Classes of Small Entities That Will 

Be Subject to the Requirement and the 

Type of Professional Skills Necessary 

for Preparation of the Report or Record 

As discussed above, the average 

petitioner will be required to pay fees of 

$796 in the first year ($340 for I–129 + 

$376 for I–539 + $80 for biometrics), 

$420 in the second ($340 + $80) and 

subsequent years, and the CNMI 

government will no longer charge their 

$1,000 fee every two years. Therefore, 

this rule will raise the foreign investor’s 

annual cost by $296 per year in the first 

year ($796–$500), and decline by $80 

per year for the remaining years of the 

transition. USCIS believes that this 

additional fee in the first year should 

have little to no impact on the decision 

of foreign investors to remain in CNMI. 

However, USCIS welcomes public 

comments explaining how this 

conclusion may be in error. 

a. Paperwork Reduction Act—New 

Reporting Requirement 

Foreign investors who wish to reside 

in the CNMI will have to apply in the 

first year and reapply every two years 

using USCIS Form-129, Petition for a 

Nonimmigrant Worker. This is a new 

requirement within the meaning of the 

Paperwork Reduction Act. As stated 

above, Form I–129 results in paperwork 

burden cost per form of $280.16. 

Additionally, a foreign investor who 

brings along his or her family will have 

to complete Form I–539, Application to 

Extend/Change Status. The paperwork 

cost to complete this form is $76.41. 

This rule does not require professional 

skills for the preparation of reports or 

records. 

3. Identification of Federal Rules That 

May Duplicate, Overlap or Conflict With 

the Proposed Rule 

DHS is unaware of any duplicative, 

overlapping, or conflicting Federal 

rules. As noted below, DHS seeks 

comments and information about any 

such rules, as well as any other State, 

local, or industry rules or policies that 

impose similar requirements as those in 

this proposed rule. 

4. Description of Any Significant 

Alternatives to the Proposed Rule That 

Accomplish the Stated Objectives of 

Applicable Statutes and That Minimize 

Any Significant Economic Impact of the 

Proposed Rule on Small Entities, 

Including Alternatives Considered, 

Such As: (1) Establishment of Differing 

Compliance or Reporting Requirements 

or Timetables That Take Into Account 

the Resources Available to Small 

Entities; (2) Clarification, Consolidation, 

or Simplification of Compliance and 

Reporting Requirements Under the Rule 

for Such Small Entities; (3) Use of 

Performance Rather Than Design 

Standards; (4) Any Exemption From 

Coverage of the Rule, or Any Part 

Thereof, for Such Small Entities 

Throughout the development of the 

proposed rule DHS has made every 

effort to gather information regarding 

the economic impact of the rule’s 

requirements on all operators, including 

small entities. USCIS considered 

limiting the categories of investors 

under current CNMI law who would be 

permitted to become CNMI E–2 

Investors, and limiting which investorbased categories under current CNMI 

law would be permitted to become 

CNMI E–2 Investors. However, in light 

of the goal of limiting adverse economic 

impact on the CNMI, USCIS chose the 

broadest interpretation possible, 

whereby long-term business permit 

holders, foreign investors and retiree 

investors (other than investors under a 

short term program not believed to 

qualify under the CNRA) would be 

eligible for CNMI E–2 Investor status, 

because it believes such an 

interpretation is most in keeping with 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
46948 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 

the mandate to limit adverse economic 

impact. 

Since all of the entities affected by 

this rule are small, this rule provides no 

different requirements or any exemption 

from coverage of the rule based on 

entity size. USCIS welcomes public 

comment regarding the costs and 

benefits associated with the proposed 

rule with respect to how operators, 

including small entities, can comply 

with the rule’s requirements. It should 

be noted, however, that small entities 

may request a waiver of their fees under 

this rule, if they do not have the ability 

to pay. 

5. Questions for Comment To Assist 

Regulatory Flexibility Analysis 

Please provide comment on any or all 

of the provisions in the proposed rule 

with regard to: 

a. The number of small entities to 

which the proposed rule will apply. 

b. The economic impact of the 

provision(s), if any; including: 

i. The new reporting requirements on 

CNMI investors, including the time 

frame for reporting and mechanisms for 

reporting. 

ii. Costs to ‘‘implement and comply’’ 

with the rule including expenditures of 

time and money for any employee 

training; attorney, computer 

programmer, or other professional time; 

preparing relevant materials; processing 

materials, including, materials or 

requests for access to information; and 

recordkeeping. 

iii. Any other requirement not 

mentioned above. 

c. Costs to implement and comply 

with this rule including expenditures of 

time and money for professional time; 

preparing relevant materials; processing 

materials, including, materials or 

requests for access to information; and 

recordkeeping. As stated above, this rule 

has a direct impact on about 500 small 

entities. USCIS believes that most if not 

all foreign investors will be eligible for 

re-registration and will choose to reregister to participate in the foreign 

investor program in the CNMI during 

the transition period. As indicated 

above, USCIS believes that the 

additional costs required by this 

proposed rule are low enough that the 

vast majority of foreign investors will 

not be deterred from re-registering. 

USCIS welcomes comments from the 

public on the impact of this proposed 

rule on the eligibility and capability of 

foreign investors to re-register in the 

CNMI and the economic impacts on the 

CNMI, its inhabitants, and employers. 

d. Any industry rules or policies that 

already require compliance with the 

requirements of the DHS proposed rule. 

e. Any relevant Federal, State or local 

rules that may duplicate, overlap or 

conflict with the proposed rule. In 

addition, please identify any industry 

rules or policies that already require 

compliance with the requirements of the 

DHS proposed rule. 

f. Ways in which the rule could be 

modified to reduce any costs or burdens 

for small entities consistent with the 

Immigration and Nationality Act’s 

requirements. 

g. Whether and how technological 

developments could reduce the costs of 

implementing and complying with the 

rule for small entities or other operators. 

h. Any information quantifying the 

economic benefits of: 

i. Minimizing immigration fraud and 

protect against abuses. 

ii. Ensuring that border control, 

national security, and homeland 

security issues are properly addressed. 

iii. Reducing the opportunity for fraud 

and to improve homeland security. 

iv. Amending the level of control the 

CNMI would have over its immigration 

system to more closely harmonize it 

with the laws and procedures applicable 

to other U.S. jurisdictions. 

v. Any other requirement not 

mentioned above. 

E. Executive Order 13132 

Executive Order 13132 requires each 

Federal agency to develop a process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have Federalism implications.’’ The 

phrase ‘‘policies that have Federalism 

implications’’ is defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects on 

the States, on the relationship between 

the national government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government.’’ USCIS has 

considered the Federalism implications 

of this proposed rule under the 

Executive Order. 

Executive Order 13132 is based upon 

the role and authorities of ‘‘States’’ 

under the U.S. Constitution. The CNMI 

is not a ‘‘State’’ as defined by section 

1(b) of Executive Order 13132 to include 

‘‘the States of the United States of 

America, individually or collectively, 

and, where relevant, to State 

governments, including units of local 

government and other political 

subdivisions established by the States.’’ 

Therefore, USCIS has determined that 

no actions are required under Executive 

Order 13132. USCIS has, however, 

solicited the input of the CNMI 

government and other CNMI 

stakeholders on issues relating to 

treatment of investors under Public Law 

110–229, and encourages further 

comment on all aspects of the proposed 

rule. 

F. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, 109 Stat. 

163 (1995), all Departments are required 

to submit to the Office of Management 

and Budget (OMB), for review and 

approval, any reporting or 

recordkeeping requirements inherent in 

a regulatory action. The information 

collection requirements contained in 

this rule, Form I–129, Form I–539, and 

Form I–765 have been previously 

approved for use by OMB. The OMB 

control numbers for these collections 

are 1615–0009, 1615–0003, and 1615– 

0040 respectively. The evidentiary 

requirements contained in this proposed 

rule at 8 CFR 214.2(e)(23)(vi) are not 

new requirements and are currently 

contained on the instructions to From 

I–129. Accordingly, these evidentiary 

requirements will not add to the burden 

for completing Form I–129 and 

Supplement E. 

However, it is estimated that there 

will be an increase in the number of 

filings of Form I–129 and Form I–765. 

Accordingly, USCIS will prepare the 

OMB 83–Cs (correction worksheets) for 

both these forms, and will submit them 

to OMB once this proposed rule is 

submitted to OMB as a final rule. 

List of Subjects 

8 CFR Part 103 

Administrative practice and 

procedure, Authority delegations 

(Government agencies), Freedom of 

information, Immigration, Privacy, 

Reporting and recordkeeping 

requirements, Surety bonds. 

8 CFR Part 214 

Administrative practice and 

procedure, Aliens, Employment, 

Foreign officials, Health professions, 

Reporting and recordkeeping 

requirements, Students. 

8 CFR Part 274a 

Administrative practice and 

procedure, Aliens, Employment, 

Penalties, Reporting and recordkeeping 

requirements. 

Accordingly, chapter I of title 8 of the 

Code of Federal Regulations is proposed 

to be amended as follows: 

PART 103—POWERS AND DUTIES; 

AVAILABILITY OF RECORDS 

1. The authority citation for part 103 

continues to read as follows: 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 46949 

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 

1101, 1103, 1304, 1356; 31 U.S.C. 9701; 

Public Law 107–296, 116 Stat. 2135 (6 U.S.C. 

1 et seq.), E.O. 12356, 47 FR 14874, 15557, 

3 CFR, 1982 Comp., p. 166; 8 CFR part 2. 

2. Section 103.7 is amended by 

adding paragraph (c)(5)(iv) to read as 

follows: 

§ 103.7 Fees. 

* * * * * 

(c) * * * 

(5) * * * 

(iv) Form I–129, only in the case of an 

alien applying for E–2 CNMI Investor 

nonimmigrant status under 8 CFR 

214.2(e)(23). 

* * * * * 

PART 214—NONIMMIGRANT CLASSES 

1. The authority citation for part 214 

is revised to read as follows: 

Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 

1184, 1186a, 1187, 1221, 1281, 1282, 1301– 

1305 and 1372; sec. 643, Pub. L. 104–208, 

110 Stat. 3009–708; Pub. L. 106–386, 114 

Stat. 1477–1480; section 141 of the Compacts 

of Free Association with the Federated States 

of Micronesia and the Republic of the 

Marshall Islands, and with the Government 

of Palau, 48 U.S.C. 1901 note, and 1931 note, 

respectively; Title VII of Pub. L. 110–229; 8 

CFR part 2. 

2. Section 214.2 is amended by 

adding a new paragraph (e)(23) to read 

as follows: 

§ 214.2 Special requirements for 

admission, extension, and maintenance of 

status. 

* * * * * 

(e) * * * 

(23) Special procedures for classifying 

foreign investors in the Commonwealth 

of the Northern Mariana Islands (CNMI) 

as E–2 nonimmigrant treaty investors 

under Title VII of the Consolidated 

Natural Resources Act of 2008 (Pub. L. 

110–229). 

(i) E–2 CNMI Investor eligibility. 

During the period ending on the date 

that is two years after the transition 

program effective date, an alien may, 

upon application to the Secretary of 

Homeland Security, be classified as a 

CNMI-only nonimmigrant treaty 

investor (E–2 CNMI Investor) under 

section 101(a)(15)(E)(ii) of the Act (8 

U.S.C. 1101(a)(15)(E)(ii)) if the alien: 

(A) Has been lawfully admitted to the 

CNMI in long-term investor status under 

the immigration laws of the CNMI 

before the transition program effective 

date and has that status on the transition 

program effective date; 

(B) Has continuously maintained 

residence in the CNMI under such longterm investor status; 

(C) Is otherwise admissible to the 

United States; and 

(D) Maintains the investment or 

investments that formed the basis for 

such long-term investment status. 

(ii) Definitions. For purposes of 

paragraph (e)(23) of this section, the 

following definitions apply: 

(A) Approved investment or residence 

means an investment or residence 

approved by the CNMI government. 

(B) Approval letter means a letter 

issued by the CNMI government 

certifying the acceptance of an approved 

investment subject to the minimum 

investment criteria and standards 

provided in 4 N. Mar. I. Code section 

5941 et seq. (long-term business 

certificate), 4 N. Mar. I. Code section 

5951 et seq. (foreign investor certificate), 

and 4 N. Mar. I. Code section 50101 et 

seq. (foreign retiree investment 

certificate). 

(C) Certificate means a certificate or 

certification issued by the CNMI 

government to an applicant whose 

application has been approved by the 

CNMI government. 

(D) Continuously maintained 

residence in the CNMI means that the 

alien has maintained his or her 

residence within the CNMI since being 

lawfully admitted as a long-term 

investor and has been physically 

present therein for periods totaling at 

least half of that time. Absence from the 

CNMI for any period of more than six 

months but less than one year after such 

lawful admission shall break the 

continuity of such residence, unless the 

subject alien establishes to the 

satisfaction of the Secretary of 

Homeland Security that he or she did 

not in fact abandon residence in the 

CNMI during such period. Absence from 

the CNMI for any period of more than 

one year during the period for which 

continuous residence is required shall 

break the continuity of such residence. 

(E) Public organization means a CNMI 

public corporation or an agency of the 

CNMI government. 

(F) Transition period means the 

period beginning on the transition 

program effective date and ending on 

December 31, 2014. 

(G) Transition program effective date 

means November 28, 2009. 

(iii) Long-term investor status. Longterm investor status under the 

immigration laws of the CNMI only 

includes the following investor 

classifications under CNMI immigration 

laws as in effect on May 8, 2008: 

(A) Long-term business investor. An 

alien who has an approved investment 

of at least $150,000 in the CNMI, as 

evidenced by a Long-Term Business 

Certificate. 

(B) Foreign investor. An alien in the 

CNMI who has invested either a 

minimum of $100,000 in an aggregate 

approved investment in excess of 

$2,000,000, or a minimum of $250,000 

in a single approved investment, as 

evidenced by a Foreign Investment 

Certificate. 

(C) Retiree investor. An alien in the 

CNMI who is: 

(1) Over the age of 55 years who has 

invested a minimum of $100,000 in an 

approved residence on Saipan or 

$75,000 in an approved residence on 

Tinian or Rota, as evidenced by a 

Foreign Retiree Investment Certification; 

or 

(2) Over the age of 55 years who has 

invested a minimum of $150,000 in an 

approved residence to live in the CNMI, 

as evidenced by a Foreign Retiree 

Investment Certificate. 

(iv) Maintaining investments. An 

alien in long-term investor status under 

the immigration laws of the CNMI is 

maintaining his or her investments if 

that alien investor is in compliance with 

the terms upon which the investor 

certificate was issued. 

(v) Filing procedures. An alien 

seeking classification under E–2 CNMI 

Investor nonimmigrant status must file 

an application for E–2 CNMI investor 

nonimmigrant status, along with 

accompanying evidence, with USCIS in 

accordance with the form instructions 

within two years of the transition 

program effective date. An application 

filed after the two-year period will be 

rejected. 

(vi) Accompanying evidence. 

Documentary evidence establishing 

eligibility for E–2 CNMI nonimmigrant 

investor status is required. 

(A) Required evidence of admission 

includes a properly endorsed, 

unexpired CNMI admission document 

(e.g., entry permit, certificate, or foreign 

investor visa) reflecting lawful 

admission to the CNMI in long-term 

business investor, foreign investor, or 

retiree foreign investor status. 

(B) Required evidence of long-term 

investor status includes: 

(1) An unexpired Long-Term Business 

Certificate, in the case of an alien in 

long-term business investor status. 

(2) An unexpired Foreign Investment 

Certificate, in the case of an alien in 

foreign investor status. 

(3) A Foreign Retirees Investment 

Certification or a Foreign Retiree 

Investment Certificate, in the case of an 

alien in retiree investor status. 

(C) Required evidence that the longterm investor is maintaining his or her 

investment includes all of the following, 

as applicable: 

(1) An approval letter issued by the 

CNMI government. 


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46950 Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 

(2) Evidence that capital has been 

invested, including bank statements 

showing amounts deposited in CNMI 

business accounts, invoices, receipts or 

contracts for assets purchased, stock 

purchase transaction records, loan or 

other borrowing agreements, land 

leases, financial statements, business 

gross tax receipts, or any other 

agreements supporting the application. 

(3) Evidence that the applicant has 

invested at least the minimum amount 

required, including evidence of assets 

which have been purchased for use in 

the enterprise, evidence of property 

transferred from abroad for use in the 

enterprise, evidence of monies 

transferred or committed to be 

transferred to the new or existing 

enterprise in exchange for shares of 

stock, any loan or mortgage, promissory 

note, security agreement or other 

evidence of borrowing which is secured 

by assets of the applicant. 

(4) A comprehensive business plan for 

new enterprises. 

(5) Articles of incorporation, by-laws, 

partnership agreements, joint venture 

agreements, corporate minutes and 

annual reports, affidavits, declarations 

or certifications of paid-in capital. 

(6) Current business licenses. 

(7) Foreign business registration 

records, recent tax returns of any kind, 

evidence of other sources of capital. 

(8) A listing of all resident and 

nonresident employees. 

(9) A listing of all holders of business 

certificates for the business 

establishment. 

(10) A listing of all corporations in 

which the applicant has a controlling 

interest. 

(11) In the case of a holder of a 

certificate of foreign investment, copies 

of annual reports of investment 

activities in the CNMI containing 

sufficient information to determine 

whether the certificate holder is under 

continuing compliance with the 

standards of issuance, accompanied by 

annual financial audit reports 

performed by an independent certified 

public accountant. 

(12) In the case of an applicant who 

is a retiree investor, evidence that he or 

she has an interest in property in the 

CNMI (e.g., lease agreement), evidence 

of the value of the property interest (e.g., 

an appraisal regarding the value of the 

property), and, as applicable, evidence 

of the value of the improvements on the 

property (e.g., receipts or invoices of the 

costs of construction, the amount paid 

for a preexisting structure, or an 

appraisal of improvements). 

(vii) Physical presence in the CNMI. 

Physical presence in the CNMI at the 

time of filing or during the pendency of 

the application is not required, but an 

application may not be filed by, or 

CNMI Investor status granted to, any 

alien present in U.S. territory other than 

in the CNMI. If an alien with CNMI 

long-term investor status departs the 

CNMI on or after the transition program 

effective date but before being granted 

E–2 CNMI Investor status, he or she may 

not be re-admitted to the CNMI without 

a visa or appropriate visa waiver under 

the U.S. immigration laws. If USCIS 

grants E–2 CNMI Investor nonimmigrant 

status to an alien who is not physically 

present in the CNMI at the time of the 

grant, such alien must obtain an E–2 

CNMI Investor nonimmigrant visa at a 

consular office abroad in order to seek 

admission to the CNMI in E–2 CNMI 

Investor status. 

(viii) Biometrics. USCIS may require 

an applicant for E–2 CNMI Investor 

status, including but not limited to any 

applicant for derivative status as a 

spouse or child, to submit biometric 

information. An applicant present in the 

CNMI must pay or obtain a waiver of the 

biometric service fee described in 8 CFR 

103.7(b). 

(ix) Denial. A grant of E–2 CNMI 

Investor status is a discretionary 

determination, and the application may 

be denied for failure of the applicant to 

demonstrate eligibility or for other good 

cause. Denial of the application may be 

appealed to the USCIS Administrative 

Appeals Office. 

(x) Spouse and children of an E–2 

CNMI Investor. 

(A) Classification. The spouse and 

children of an E–2 CNMI Investor 

accompanying or following-to-join the 

principal alien, if otherwise admissible, 

may receive the same classification as 

the principal alien. The nationality of a 

spouse or child of an E–2 CNMI investor 

is not material to the classification of 

the spouse or child. 

(B) Employment authorization. The 

spouse of an E–2 CNMI Investor 

lawfully admitted in the CNMI in E–2 

CNMI Investor nonimmigrant status, 

other than the spouse of an E–2 CNMI 

investor who obtained such status based 

upon a Foreign Retiree Investment 

Certificate, is eligible to apply for 

employment authorization under 8 CFR 

274a.12(c)(2) while in E–2 CNMI 

Investor nonimmigrant status. 

Employment authorization acquired 

under this paragraph is limited to 

employment in the CNMI only. 

(xi) Terms and conditions of E–2 

CNMI Investor nonimmigrant status. 

(A) Nonimmigrant status. E–2 CNMI 

Investor nonimmigrant status and any 

derivative status are only applicable in 

the CNMI. Entry, employment, and 

residence in the rest of the United States 

(including Guam) require the 

appropriate visa or visa waiver 

eligibility. An E–2 CNMI Investor who 

enters, attempts to enter or attempts to 

travel to any other part of the United 

States without the appropriate visa or 

visa waiver eligibility, or who violates 

conditions of nonimmigrant stay 

applicable to any such authorized status 

in any other part of the United States, 

will be deemed to have violated the 

terms and conditions of his or her E–2 

CNMI Investor status. An E–2 CNMI 

Investor who departs the CNMI will 

require an E–2 CNMI investor visa for 

reentry to the CNMI. 

(B) Employment authorization. An 

alien with E–2 CNMI Investor 

nonimmigrant status is employment 

authorized in the CNMI only for the 

enterprise that is the basis for his or her 

CNMI Foreign Investment Certificate or 

Long Term Business Certificate, to the 

extent that such Certificate authorized 

such activity. An alien with E–2 CNMI 

Investor nonimmigrant status based 

upon a Foreign Retiree Investor 

Certificate is not employment 

authorized. 

(C) Changes in E–2 CNMI investor 

nonimmigrant status. If there are any 

substantive changes to aliens’ 

compliance with the terms and 

conditions of qualification for E–2 

CNMI Investor nonimmigrant status, 

each subject alien must file a new 

application for E–2 CNMI Investor 

nonimmigrant status, in accordance 

with the instructions on Form I–129 

requesting extension of stay in the 

United States. Prior approval is not 

required if corporate changes occur that 

do not affect a previously approved 

employment relationship, or are 

otherwise non-substantive. 

(D) Unauthorized change of 

employment. An unauthorized change 

of employment to a new employer will 

constitute a failure to maintain status 

within the meaning of section 

237(a)(1)(C)(i) of the Act (8 U.S.C. 

1227(a)(1)(C)(i)). 

(E) Periods of admission. 

(1) An E–2 CNMI Investor may be 

admitted for an initial period of not 

more than two years. 

(2) The spouse and children 

accompanying or following-to-join an 

E–2 CNMI Investor may be admitted for 

the period during which the principal 

alien is in valid E–2 CNMI Investor 

nonimmigrant status. The temporary 

departure from the United States of the 

principal E–2 CNMI Investor shall not 

affect the derivative status of the 

dependent spouse and children, 

provided the familial relationship 

continues to exist and the principal 


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Federal Register / Vol. 74, No. 176 / Monday, September 14, 2009 / Proposed Rules 46951 

alien remains eligible for admission as 

an E–2 CNMI Investor. 

(xii) Extensions of stay. Requests for 

extensions of E–2 CNMI Investor 

nonimmigrant status may be granted in 

increments of not more than two years, 

until the end of the transition period. To 

request an extension of stay, an E–2 

CNMI Investor must file with USCIS an 

application for extension of stay, with 

required accompanying documents, in 

accordance with the instructions on 

Form I–129. To qualify for an extension 

of E–2 CNMI Investor nonimmigrant 

status, each alien must demonstrate: 

(A) Continuous maintenance of the 

terms and conditions of E–2 CNMI 

Investor nonimmigrant status; 

(B) Physical presence in the CNMI at 

the time of filing the application for 

extension of stay; and 

(C) That he or she did not leave 

during the pendency of the application. 

(xiii) Change of status. An alien 

eligible for E–2 CNMI Investor status on 

the transition program effective date, 

but who obtains another valid 

nonimmigrant status, may apply to 

change nonimmigrant status to E–2 

CNMI Investor in accordance with 

paragraph (e)(21) of this section and 

within the period of time provided by 

paragraph (e)(23)(v). 

(xiii) Expiration of transition period. 

Upon expiration of the transition 

period, the E–2 CNMI Investor 

nonimmigrant status will automatically 

terminate. 

(xiv) Fee waiver. An alien applying for 

E–2 CNMI Investor nonimmigrant status 

is eligible for a waiver of the fee for 

Form I–129 based upon inability to pay 

as provided by 8 CFR 103.7(c)(1). 

* * * * * 

PART 274a—CONTROL OF 

EMPLOYMENT OF ALIENS 

3. The authority citation for part 274a 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1324a; 8 

CFR part 2. 

4. Section 274a.12 is amended by: 

a. Removing the ‘‘or’’ at the end of 

paragraph (b)(20); 

b. Removing the period at the end of 

paragraph (b)(21) and adding a ‘‘; or’’ in 

its place; 

c. Adding a new paragraph (b)(22); 

and by 

d. Adding a new paragraph (c)(12) to 

read as follows: 

§ 274a.12 Classes of aliens authorized to 

accept employment. 

* * * * * 

(b) * * * 

* * * * * 

(22) An alien in E–2 CNMI Investor 

nonimmigrant status pursuant to 8 CFR 

214.2(e)(23). An alien in this status may 

be employed only by the qualifying 

company through which the alien 

attained the status. An alien in E–2 

CNMI Investor nonimmigrant status 

may be employed only in the 

Commonwealth of the Northern Mariana 

Islands for a qualifying entity. An alien 

who attained E–2 CNMI Investor 

nonimmigrant status based upon a 

Foreign Retiree Investment Certificate or 

Certification is not employmentauthorized. Employment authorization 

does not extend to the dependents of the 

principal investor (also designated E–2 

CNMI Investor nonimmigrant) other 

than those specified in paragraph (c)(12) 

of this section; 

* * * * * 

(c) * * * 

(12) An alien spouse of a long-term 

investor in the Commonwealth of the 

Northern Mariana Islands (E–2 CNMI 

Investor) other than an E–2 CNMI 

investor who obtained such status based 

upon a Foreign Retiree Investment 

Certificate, pursuant to 8 CFR 

214.2(e)(23). An alien spouse of an 

E–2 CNMI Investor is eligible for 

employment in the CNMI only; 

* * * * * 

Janet Napolitano, 

Secretary. 

[FR Doc. E9–21967 Filed 9–11–09; 8:45 am] 

BILLING CODE 9111–97–P 

DEPARTMENT OF AGRICULTURE 

Food Safety and Inspection Service 

9 CFR Parts 317 and 381 

[Docket No. FSIS 2006–0040A] 

Product Labeling: Use of the Voluntary 

Claim ‘‘Natural’’ in the Labeling of Meat 

and Poultry Products 

AGENCY: Food Safety and Inspection 

Service, USDA. 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: The Food Safety and 

Inspection Service (FSIS) is issuing this 

Advance Notice of Proposed 

Rulemaking (ANPR) to assist the Agency 

in defining the conditions under which 

it will permit the voluntary claim 

‘‘natural’’ to be used in the labeling of 

meat and poultry products. After 

considering comments on the ‘‘natural’’ 

claim submitted by the public in 

response to a Federal Register notice 

that the Agency issued on December 5, 

2006, and the comments presented at a 

public meeting held by the Agency on 

December 12, 2006, FSIS has decided to 

solicit additional public input. FSIS has 

concluded that a further solicitation of 

comments could produce information 

that would help to clarify and resolve 

the issues surrounding the ‘‘natural’’ 

claim. Moreover, additional comment 

will help FSIS to assess how best to 

coordinate its regulation of ‘‘natural’’ 

claims with the standards for voluntary 

marketing claims developed by the 

Agricultural Marketing Service (AMS), 

particularly with AMS’s ‘‘naturally 

raised’’ marketing claim standard. 

DATES: Comments are due by November 

13, 2009. 

ADDRESSES: Comments may be 

submitted by one of the following 

methods: 

Federal eRulemaking Portal: This Web 

site provides the ability to type short 

comments directly into the comment 

field on this Web page or attach a file 

for lengthier comments. Go to http:// 

www.regulations.gov and, in the 

‘‘Search for Open Regulations’’ box, 

select ‘‘Food Safety and Inspection 

Service’’ from the agency drop-down 

menu, and then click on ‘‘Submit.’’ In 

the Docket ID column, select FDMS 

Docket Number FSIS–2006–0040A to 

submit or view public comments and to 

view supporting and related material 

available electronically. This docket can 

be viewed using the ‘‘Advanced Search’’ 

function in Regulations.gov. 

Mail, including floppy disks or CD– 

ROMs, and hand or courier-delivered 

items: Send to FSIS, OPPD, Docket 

Room, U.S. Department of Agriculture, 

Food Safety and Inspection Service, 

5601 Sunnyside Avenue, Room 2–2127, 

Beltsville, Maryland 20705. 

All submissions received by mail and 

electronic mail must include the Agency 

name and docket number FSIS–2006– 

0040A. All comments submitted in 

response to this notice will be available 

for public inspection in the FSIS Docket 

Room at the address listed above 

between 8:30 a.m. and 4:30 p.m., 

Monday through Friday. The comments 

also will be posted to the 

regulations.gov Web site and on the 

Agency’s Web site at: http:// 

www.fsis.usda.gov/ 

regulations_&_policies/ 

2009_Notices_Index/index.asp. 

FOR FURTHER INFORMATION CONTACT: 

Sally Jones, Acting Director, Labeling 

and Program Delivery Division, Office of 

Policy and Program Development 

USDA, FSIS, 5601 Sunnyside Avenue, 

Beltsville, Maryland 20705, (202) 205– 

0623, e-mail: Sally.Jones@fsis.usda.gov. 

SUPPLEMENTARY INFORMATION: 


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