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notice of disqualification to his or her
supervisor and the DAEO upon
determining that he will not participate
in the matter.
(c) Disqualification from matters
affecting prospective employers. An
FLRA employee who is required, in
accordance with 5 CFR 2635.604(a), to
disqualify himself or herself from
participation in a particular matter to
which he has been assigned shall,
notwithstanding the guidance in 5 CFR
2635.604(b) and (c), provide written
notice of disqualification to his or her
supervisor and the DAEO upon
determining that he will not participate
in the matter.
(d) Withdrawal of notification. An
FLRA employee may withdraw written
notice under paragraphs (a), (b), or (c) of
this section upon deciding that
disqualification from participation in
the matter is no longer required. A
withdrawal of notification shall be in
writing and provided to the employee’s
supervisor and the DAEO.
Dated: December 10, 2010.
Carol Waller Pope,
Chairman, Federal Labor Relations Authority.
Approved on this date: December 13, 2010.
Robert I. Cusick,
Director, Office of Government Ethics.
[FR Doc. 2010–31874 Filed 12–17–10; 8:45 am]
BILLING CODE 6727–01–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
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Final rule.
AGENCY:

This final rule amends
Department of Homeland Security
(DHS) 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 final 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: This rule is effective January 19,
2011.

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SUMMARY:

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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. 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, President Bush signed into law
the Consolidated Natural Resources Act
of 2008 (CNRA). Public Law 110–229,
122 Stat. 754 (2008). Title VII of the
CNRA extends U.S. immigration laws to
the CNMI with transition provisions
unique to the CNMI. See 48 U.S.C. 1806;
48 U.S.C.A. 1806 note. 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), to maximize the CNMI’s
potential for future economic and
business growth, and to assure workers
are protected from the potential for
abuse and exploitation. See sec. 701 of
the CNRA, 48 U.S.C.A. 1806 note.
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 system
represent a majority of the CNMI labor
force. Such workers outnumber U.S.
citizens and other local residents in
private sector employment in the CNMI.
Currently, the CNMI faces serious
economic challenges, including the total
collapse of the territory’s $1 billion a
year garment industry and a substantial

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decline in its tourism industry.1 The
result has been a decrease in the CNMI
government budget from $217,964,866
in 2005 to $132,565,000 in 2011.
Title VII of the CNRA was to become
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 commencing one year
from the date of enactment of the
CNRA) to November 28, 2009. DHS
Press Release, ‘‘DHS Delays the
Transition to Full Application of U.S.
Immigration Laws in the
Commonwealth of the Northern Mariana
Islands’’ (Mar. 31, 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 Immigration and
Nationality Act (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 status. See
sec. 701 of the CNRA, 48 U.S.C.A. 1806
note; 48 U.S.C. 1806(c), (d).
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).
48 U.S.C. 1806(c). This status is
provided upon application of the alien,
notwithstanding the treaty requirements
otherwise applicable. Id. 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;
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. 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).

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• 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. Id.

proposed rule. These changes are
explained in detail in the summary of
comments and DHS responses below
and are briefly summarized as follows:
1. The proposed rule provided that a
CNMI
Long-Term Business Entry Permit
II. Proposed Rule
holder with a CNMI Long-Term
In accordance with the CNRA, on
Business Certificate would be eligible
September 14, 2009, DHS proposed the
for a period of two years on the basis of
requirements and procedures for foreign the alien’s minimum $150,000
investors in the CNMI to obtain
investment. The final rule reduces the
nonimmigrant status within the E–2
minimum investment to $50,000. New 8
treaty investor classification (‘‘E–2 CNMI CFR 214.2(e)(23)(iii)(A)(2).
Investors’’). See 74 FR 46938. DHS
2. The final rule provides a two-year
provided a 30-day comment period in
application period after the effective
the proposed rule, which ended on
date of the final rule. See new 8 CFR
October 14, 2009. The comments
214.2(e)(23)(v). The proposed rule had
received during the comment period are
proposed that applicants be required to
discussed below.
apply for E–2 CNMI Investor status
The proposed rule preamble
within two years of the beginning of the
described the CNMI’s immigration
transition period. This change is one of
programs for investors that existed
before November 28, 2009. Id. at 46939. a number of updating changes to reflect
the fact that the transition program
The proposed rule also described the
current United States E–2 treaty investor effective date is now in the past. Other
such changes include: Changing
nonimmigrant status. Id. at 46940; see
references to the transition program
INA sec. 101(a)(15)(E)(ii), 8 U.S.C.
effective date and to CNMI-issued
1101(a)(15)(E)(ii); 8 CFR 214.2(e). DHS
immigration statuses to the past tense,
proposed the procedures for foreign
as those statuses no longer are in effect
investors in the CNMI to obtain
after that date; changing the reference
nonimmigrant status within the E–2
date to CNMI laws in effect from May
treaty investor classification, including
8, 2008 (CNRA date of enactment) to
the criteria that must be met and the
November 27, 2009 (day before
evidence that must be submitted in
transition program effective date); and
order to be eligible for E–2 CNMI
Investor nonimmigrant status. See 74 FR removing the definition of ‘‘transition
program effective date’’ from new 8 CFR
46938, 46949 (Sept. 14, 2009).
214.2(e)(23)(ii) as that definition is now
As stated in the proposed rule, the
E–2 CNMI Investor program is intended in the general definitions section of the
immigration regulations at 8 CFR
to provide a smooth transition for
existing CNMI investors and to mitigate 1.1(bb). See new 8 CFR 214.2(e)(23)(v).
3. The final rule adds the phrase ‘‘or
potential adverse consequences to the
any successor body’’ to the provision
CNMI economy if the current
describing where a denial may be
investments could not otherwise be
appealed. The proposed rule had
maintained as a basis for immigration
proposed that denied petitions may be
status during the transition period. At
appealed to the USCIS Administrative
the end of the transition period, the
Appeals Office. See new 8 CFR
E–2 CNMI Investor classification will
214.2(e)(23)(ix).
cease to exist. E–2 CNMI Investors and
4. The final rule clarifies the authority
qualifying spouses and children must
and process by which applicants in the
qualify for and obtain a new immigrant
CNMI can be granted E–2 CNMI Investor
or nonimmigrant status under the INA
status in the CNMI without having to
in order to remain in the CNMI or to
travel abroad to obtain a nonimmigrant
enter the CNMI after a departure.
visa. See new 8 CFR 214.2(e)(23)(xvi).
III. Final Rule
5. The final rule adds the term
‘‘continuous’’ to clarify the period of
This rule provides the procedures to
absence that would break continuity of
obtain status as an E–2 CNMI Investor.
residence under the definition of
The final rule adopts most of the
‘‘continuously maintained residence in
regulations set forth in the proposed
rule. The rationale for the proposed rule the CNMI.’’ See new 8 CFR
214.2(e)(23)(ii)(D).
and the reasoning provided in its
6. The final rule makes technical
preamble remain valid with respect to
changes to the fee waiver provisions, in
these regulatory amendments, and DHS
order to conform the rule to the
adopts such reasoning in support of the
promulgation of this final rule. DHS has reorganized format of 8 CFR 103.7
provided in the DHS final rule, ‘‘U.S.
modified some of the proposed
Citizenship and Immigration Services
provisions for the final rule in response
Fee Schedule,’’ 75 FR 58962 (September
to the public comments received on the

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24, 2010). See new 8 CFR
103.7(c)(3)(xix).
IV. Comments Received on the
Proposed Rule
During the 30-day comment period,
DHS received 13 comments from a
variety of individuals and organizations,
including the CNMI Governor’s Office,
the Saipan Chamber of Commerce, a
former Senator of the CNMI, a Member
of Congress, and other interested
organizations and individuals.
DHS considered the comments
received and all other materials
contained in the docket in preparing
this final rule. The final rule does not
address comments that were beyond the
scope of the proposed rule, including
those seeking changes to United States
statutes, changes to regulations or
petitions outside the scope of the
proposed rule, or changes to the
procedures of other DHS components or
agencies.
All comments and other docket
material may be reviewed at the Federal
Docket Management System (FDMS) at
http://www.regulations.gov, docket
number USCIS–2008–0035.
A. Summary of Comments
Of the 13 comments USCIS received,
two comments supported the proposals
in the rule as a whole and welcomed
DHS’s efforts to minimize, to the
greatest extent practicable, potential
adverse economic and fiscal effects of
federalization and to maximize the
CNMI’s potential for future economic
and business growth.
Most commenters expressed concerns
over specific provisions in the proposed
rule, such as: The requirement to obtain
a visa to re-enter the CNMI; the
minimum investment of $150,000 for
Long-Term Business Investors; and the
continuous residence requirement.
Several commenters wrote that certain
investors would be ineligible for the
E–2 CNMI Investor visa, that the rule
will cause severe economic harm to the
CNMI economy, and that DHS is
incorrect in its interpretation of the
effect of an extension of the transition
period.
B. Comments
The specific comments are organized
by subject matter and addressed below.
1. Visa Requirement (Travel and
Reentry)
Two commenters disagreed with the
proposed requirement that investors
must obtain a visa to re-enter the CNMI.
Commenters stated that obtaining a visa
is an expensive and time-consuming
process. DHS is aware of the public’s

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concerns regarding the cost and time
involved in obtaining a U.S. visa.
However, visa fees and visa processing
times are managed by the Department of
State (DOS). After careful consideration,
DHS is maintaining the visa
requirement for investors who are
abroad and seek to be admitted to the
CNMI. A primary purpose of the CNRA
is ‘‘to ensure that effective border
control procedures are implemented
and observed, and that national security
and homeland security issues are
properly addressed.’’ CNRA sec. 701(a),
48 U.S.C.A. 1806 note. The visa process
is an important aspect of effective
border control. Therefore, DHS does not
consider it appropriate as a matter of
travel security and immigration policy
to waive visa-based grounds of
inadmissibility for those E–2 CNMI
Investors who travel abroad and wish to
return to the CNMI.
However, DHS is able to address to a
significant extent the general concern
reflected in the comments about visas
and travel costs by clarifying in the final
rule the authority and process by which
applicants who are already within the
CNMI may be determined to be
admissible to the United States and
granted E–2 CNMI Investor status. For
CNMI investors, DHS is providing
beneficiaries of an E–2 CNMI petition in
the CNMI with a grant of E–2 CNMI
Investor status without requiring that
they depart the CNMI in order to obtain
a visa. In other words, an alien in the
CNMI who is eligible for E–2 status will
not have to make a trip abroad solely for
the purpose of obtaining a visa, but if
the alien is otherwise abroad, he or she
will have to obtain a visa in order to
travel to the CNMI.
DHS notes that there is a distinct
difference between a visa and a status.
DOS issues a visa at a U.S. Embassy or
consulate office abroad. A visa, placed
in the alien’s passport, allows an alien
to travel to a port of entry and apply for
admission to the United States in a
particular status. While having a visa
does not guarantee admission to the
United States, it does indicate that a
consular officer has determined that the
alien is eligible to apply for admission
for a specific purpose.
DHS is responsible for all admissions
into the United States. If an alien
seeking admission to the United States
is admissible, DHS admits the alien and
grants his or her status in the United
States. The specified status controls the
period of stay and conditions of such
stay. In most cases, DHS grants status at
the port of entry. As previously
indicated, DHS is providing
beneficiaries of an E–2 CNMI petition in
the CNMI with a grant of E–2 CNMI

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Investor status without requiring that
they depart the CNMI. The grant of such
status is within DHS’ purview. Visa
issuance is handled by DOS.
2. Visa Issuance
One commenter stated that the
Department of State should issue visas
in the CNMI and allow dependents to be
exempt from applying in person for
their E–2 CNMI Investor visas. Another
commenter wrote that the E–2 CNMI
Investor visa should allow for multiple
entries.
DHS cannot address these particular
suggestions in this rule. Visa issuance is
a function of the Department of State,
and thus beyond the scope of this DHS
rule. In any case, DHS believes that the
concerns about visa issuance and the
need for multiple-entry visas are
adequately addressed by the waiver
provision discussed below.
The Supplementary Information to
the proposed rule discussed the fact that
E–2 CNMI Investor status could be
granted directly to aliens present in the
CNMI, unlike aliens abroad seeking that
status who first must be issued an E–2
CNMI Investor nonimmigrant visa by
the Department of State at a consular
post abroad and thereafter seek
admission in E–2 CNMI Investor status.
See 74 FR 46940; proposed 8 CFR
214.2(e)(23)(vii). The proposed
regulatory language, however, was not
explicit about how that would be done
consistent with the requirement that the
alien be admissible to the United States.
Thus, in order to give additional
assurance and direction on this point to
the affected public and to USCIS
adjudicators, the final rule clarifies that
a waiver of inadmissibility under
section 212(d)(3)(A)(ii) of the INA may
be granted to an eligible alien seeking an
initial grant of E–2 CNMI Investor status
from DHS while in the CNMI. See new
8 CFR 214.2(e)(23)(xvi). Such aliens will
necessarily lack an E–2 CNMI Investor
nonimmigrant visa issued by the
Department of State, and are thus
inadmissible under section
212(a)(7)(B)(i)(II) of the INA; they also
by definition will (unless changing to
E–2 CNMI Investor status from another
nonimmigrant status under the INA) be
aliens present in the United States
without admission or parole, and thus
inadmissible under section 212(a)(6)(A)
of the INA. Therefore, the rule allows
for a waiver of those two grounds of
inadmissibility for aliens with
appropriate documentation.
This waiver provision is based upon
the specific language in section
212(d)(3)(A)(ii) that in the case of an
alien ‘‘in possession of appropriate
documents’’ who is seeking admission

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as a nonimmigrant, most grounds of
inadmissibility may be discretionarily
waived. INA sec. 212(d)(3)(A)(ii), 8
U.S.C. 1182(d)(3)(A)(ii). In the unique
situation of the CNMI, considering the
express application of the nonimmigrant
investor visa provision of the CNRA to
aliens lawfully present in the CNMI in
a non-INA status and without a previous
reason to have needed to obtain a U.S.
nonimmigrant visa from the Department
of State, and mindful that the stated goal
of the CNRA is to mitigate potential
adverse consequences of transition to
the extent possible, DHS concludes that
the ‘‘appropriate documentation’’
requirement for the waiver may be met
by aliens who meet the documentary
requirements for petition approval
described in new 8 CFR 214.2(e)(23)(vi).
Those requirements include, but are not
limited to, evidence of prior admission
in CNMI investor status. As a
conforming change, new 8 CFR
214.2(e)(23)(vi) has been titled
‘‘Appropriate documents’’ instead of the
previous ‘‘Accompanying evidence,’’
and a valid unexpired passport is
required as necessary evidence. Id.
In the case of spouses and children
present in the CNMI who are seeking a
derivative grant of E–2 Investor
nonimmigrant status based upon a
principal investor’s approved petition,
to satisfy the ‘‘appropriate documents’’
requirement for a section
212(d)(3)(A)(ii) waiver of
inadmissibility under INA sections
212(a)(6)(A)(i) and 212(a)(7)(B)(i)(II), the
applicant must present (1) a valid
unexpired foreign passport and (2)
evidence that the spouse or child is
lawfully present in the CNMI under
section 1806(e) of title 48, U.S. Code
(the so-called ‘‘grandfather provision’’
applicable until not later than
November 27, 2011 to aliens issued
‘‘umbrella permits’’ or other
authorization by the CNMI government
prior to November 28, 2009). Such
evidence may include evidence of a
grant of parole by USCIS or a grant of
parole by DHS pursuant to a grant of
advance parole by USCIS under DHS
policy in furtherance of the grandfather
provision (in other words, parole
granted to aliens residing in the CNMI
as of November 28, 2009, rather than
parole granted to arriving aliens for
other reasons). See new 8 CFR
214.2(e)(23)(xvi). The intended
beneficiaries of this discretionary
waiver are spouses and children
lawfully residing in the CNMI under the
grandfather provision. The reference to
parole documents is included in the
final rule because of uncertainty about
what type of CNMI documentation may

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be in the possession of these aliens,
since they are not themselves investors
and may not have ‘‘umbrella permits’’ or
other CNMI-issued work authorization
documents. Furthermore, USCIS has
used parole and advance parole broadly
with respect to lawfully present aliens
in the CNMI since the transition date for
humanitarian reasons, and thus DHS
parole documents may be the best way
to identify some members of the
‘‘grandfather’’ provision group.

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3. Eligible Long-Term CNMI Investors
Six comments opposed or offered
suggestions on the proposed list of
CNMI investor categories that would be
eligible for the E–2 CNMI Investor visa.
(a) High Level Managers
One commenter stated that the
proposed regulation omits high level
managers from the eligible categories of
CNMI long-term investors. The
commenter also stated that these
managers may not be eligible for L visas.
If granted upon petition by an employer,
the L–1A Intracompany Transferee
Executive or Manager nonimmigrant
classification enables a U.S. employer to
transfer an eligible executive or manager
from one of its affiliated foreign offices
to one of its offices in the United States.
INA sec. 101(a)(15)(L), 8 U.S.C.
1101(a)(15)(L); 8 CFR 214.2(l). The
commenter suggested that high level
managers be eligible for E–2 CNMI
Investor status.
The final rule includes all CNMI
investors who meet the long-term
investor requirement under the CNRA.
See new 8 CFR 214.2(e)(23)(iii). If a
high-level manager is also an investor
eligible for E–2 CNMI Investor status,
the individual may obtain that status,
but the final rule does not provide E–
2 CNMI Investor status to employees
who are not the actual investors in the
approved investment. The final rule
cannot go beyond the statute, which
specifically provides that CNMI E–2
Investor status is limited to those
investors described in 48 U.S.C. 1806(c),
and therefore the comment cannot be
adopted. High level managers likely are
ineligible for long-term investor status
because they are not the actual
investors. Although high level managers
may be ineligible for the E–2 CNMI
Investor visa, they may be eligible for
either an H–1B or a transitional worker
visa. Thus no change is made in the
final rule in response to this comment.
(b) Ineligible CNMI Investors
One commenter wrote that hundreds
of investors would be left out under the
proposed regulation. The comment did
not identify which types of investors

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would not be included in the proposed
regulation. Certain categories used by
the CNMI, including the short-term
business entry permit, the long-term
business entry permit, and the 2–Year
Japanese Retiree classification, are not
eligible for E–2 CNMI Investor status
because these categories do not relate to
long-term investors, as required by the
CNRA. Based upon a review of CNMI
investor classifications, DHS has
included all long-term CNMI investors,
including retiree investors, in the list of
investors eligible for the E–2 CNMI
Investor classification. See new 8 CFR
214.2(e)(23)(iii).

order to minimize any potential
confusion in the adjudication process.
See new 8 CFR 214.2(e)(23)(iii)(A).
This modification of the proposed
rule furthers the goal of DHS to
minimize the potential adverse
economic and fiscal effects of this
rulemaking on the CNMI by including
all CNMI long-term investor
classifications. It is consistent with the
CNRA’s references to aliens previously
admitted to the CNMI in long-term
investor status as eligible for the E–2
CNMI Investor nonimmigrant program.

(c) Grandfathering Long-Term CNMI
Investors
One commenter suggested that DHS
‘‘grandfather’’ long-term permit holders
for a period of four years without adding
new enforcement criteria in order to
avoid economic disruption. While
grandfathering long-term CNMI permit
holders arguably could lessen economic
disruption, grandfathering is not an
option under the CNRA. Section 702(c)
of the CNRA provides for a CNMI
investor classification with specific
eligibility requirements, to be provided
only ‘‘upon the application of an alien.’’
48 U.S.C. 1806(c)(1). In accordance with
the eligibility requirements under the
CNRA, the E–2 CNMI Investor visa is
available to all CNMI investors with
valid long-term investor permits. The
final rule has been drafted to minimize
the potential adverse economic and
fiscal effects by applying standards
similar to those used by the CNMI
government in approving long-term
investors in the CNMI. Thus DHS is not
adopting this comment.

One commenter wrote that what the
commenter described as the six-month
residence requirement will be
unnecessarily rigorous for those
investors who do not reside in the
CNMI, proposing instead to reduce the
requirement to two months. Another
commenter wrote that the residence
requirement should apply at the start of
the transition period.
The rule does not in fact specifically
require six months of residency; rather,
the investor is required to have resided
in the CNMI since he or she was
lawfully admitted as a long-term
investor (which, given the passage of
time since the last date that such an
admission could have taken place under
the former CNMI immigration laws—
November 27, 2009—is necessarily
longer than six months), and to have
been present in the CNMI for half the
time that he or she has resided in the
CNMI A continuous absence of six
months or more may be considered to
break the continuity of residence. New
8 CFR 214.2(e)(23)(ii)(D). DHS therefore
interprets the comment to raise in
general a concern about required
residence time, and to request a
reduction in the residence time to two
months. DHS understands the concern
but is unable to agree with the
suggestion to reduce the residency
requirement to two months or otherwise
to modify it substantively. The CNRA
requires that the investor have
‘‘continuously maintained residence in
the Commonwealth under long-term
investor status.’’ Therefore, by
definition, the status is unavailable to
those who do not reside in the CNMI.
While reasonable absence is not
incompatible with maintaining
residence, DHS does not believe that the
lengths of absence suggested by the
commenter, amounting essentially to
absentee investment, are consistent with
the statute. DHS has made a technical
amendment to further clarify that the
reference to an absence of six months or
more as breaking the continuity of

(d) Minimum Investment for Long-Term
Business Investors
Three commenters wrote that the
$150,000 minimum investment
requirement for Long-Term Business
Investors will exclude investors who
were granted Long-Term Business
Certificates by the CNMI at a lower
investment minimum of $50,000. In
response to these comments, and in
view of the fact that the CNMI
government has previously granted
Long-Term Business Certificates with a
minimum investment of $50,000, the
final rule has been amended to include
those investors who were granted longterm business certificates with a
minimum investment of $50,000, as
long as they continued to hold that
status on the transition program
effective date. DHS decided to reduce
the general minimum investment
requirement rather than creating a
separate eligible investor category in

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residence means a ‘‘continuous’’ absence
of six months or more.
In response to the commenter who
wrote that the residence requirement
should apply at the start of the
transition period (i.e., that DHS should
not consider whether the investor
resided in the CNMI during the period
of status under CNMI law prior to the
transition program effective date), DHS
does not believe that such a change is
consistent with the CNRA’s requirement
that the alien have ‘‘continuously
maintained residence in the
Commonwealth under long-term
investor status.’’ 48 U.S.C. 1806(c)(1)(B).
By definition, long-term investor status
was a status provided prior to the
transition program effective date under
the laws of the CNMI formerly in effect.
Id. In the proposed rule, DHS provided
as liberal a construction of the CNRA’s
residence requirements as it reasonably
could do under the statute, including
permitting substantial periods of
absence from the CNMI not to terminate
continuous residence. See new 8 CFR
214.2(e)(23)(ii)(D). For these reasons,
DHS made no changes in response to
this comment, other than the technical
clarification identified above.
5. Economic Impact
Some commenters stated that the rule
would have a significant negative
impact on the CNMI economy. More
specifically, these commenters objected
that the analysis ‘‘substantially
understated’’ the adverse effects of the
rule and imposed an ‘‘exit requirement’’
upon investors at the end of the
transition period.
DHS disagrees with the commenters’
assertion that this rule represents either
an ‘‘adverse’’ economic impact or an
‘‘exit requirement.’’ The commenters
may be conflating the economic impact
of the CNRA’s imposition of the
immigration laws of the U.S. on the
CNMI with the actual economic impact
of this rule. When measuring the costs
of a regulation, USCIS must measure
these costs against a baseline. Per
guidance from OMB Circular A–4, the
baseline should be the best assessment
of the way the world would look absent
the proposed action. Without this rule
in place, foreign investors who cannot
qualify for status under the immigration
laws of the U.S. would be required by
the CNRA to leave the CNMI no later
than Nov. 27, 2011. With this rule in
place, foreign investors who cannot
qualify for status under the immigration
laws of the U.S. are allowed to stay until
December 31, 2014. Consequently, this
rule allows certain foreign investors to
remain in the CNMI several years
beyond when they would be able to stay

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without this rule in place. In this
manner, this rule provides a significant
economic benefit to the CNMI, and
comments expressing concern over the
economic impacts of this rule are
misplaced.
One commenter wrote that DHS
incorrectly determined that the
proposed regulation does not constitute
a major rule under the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA). The commenter
believes that this rule should be
considered a major rule and therefore
subject to disapproval by both Houses of
the U.S. Congress and the President of
the United States.
DHS does not agree with the
commenter. The commenter is
apparently citing SBREFA’s
Congressional Review Act, 5 U.S.C. 801
(CRA). The CRA delays implementation,
and provides a mechanism for
congressional disapproval, of
regulations designated as ‘‘major rules’’
by the Administrator of the Office of
Management and Budget. Such a
designation is made where OMB finds
the rule has resulted in or is likely to
result in (a) an annual effect on the
economy of $100,000,000 or more; (b) a
major increase in costs or prices for
consumers, individual industries,
Federal, State, or local government
agencies, or geographic regions; or (c)
significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
enterprises to compete with foreign
based enterprises in domestic and
export markets. See 5 U.S.C. 804(2).
OMB has not determined that this rule
is a major rule and, therefore, the CRA
does not apply.
One commenter argued that DHS
utilized outdated data which led to an
understated economic impact on
foreign-owned businesses.
As mentioned in the analysis, precise
data for the CNMI are difficult to obtain.
The 2005 CNMI Household, Income,
and Expenditures Survey data, used in
the initial analysis, have been updated
with the most current publicly-available
data from the 2007 Economic Census of
Island Areas in the final analysis. The
analysis required by the Regulatory
Flexibility Act need not produce
statistical certainty; the law requires
that DHS ‘‘demonstrate a ‘reasonable,
good-faith effort’ to fulfill [the RFA’s]
requirements.’’ Ranchers Cattlemen
Action Legal Fund v. U.S. Dep’t of
Agric., 415 F.3d 1078, 1101 (9th Cir.
2005); see also Associated Fisheries of
Maine v. Daley, 127 F.3d 104, 114–15
(1st Cir. 1997). Also, when conducting
a Regulatory Flexibility Analysis, the

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RFA requires consideration only of the
direct costs of a regulation on a small
entity that is required to comply with
the regulation. Mid-Tex Electric Coop. v.
FERC, 773 F.2d 327, 340–43 (DC Cir.
1985) (holding indirect impact of a
regulation on small entities that do
business with or are otherwise
dependent on the regulated entities is
not considered in RFA analyses); see
also Cement Kiln Recycling Coal. v.
EPA, 255 F.3d 855, 869 (DC Cir. 2001)
(observing that, in passing the RFA,
‘‘Congress did not intend to require that
every agency consider every indirect
effect that any regulation might have on
small businesses in any stratum of the
national economy’’).
6. End of Transition Period
Two comments opposed the
termination of the E–2 CNMI Investor
classification at the end of the transition
period.
(a) Extension of Transition Period
One commenter objected to the DHS
interpretation of the CNRA that any
extension of the transition period by the
Secretary of Labor will only extend the
transitional worker visa and not the
CNMI-only investor visa. DHS disagrees
with the commenter. The CNRA
specifically authorizes the Secretary of
Labor only to extend ‘‘the provisions of
this subsection’’ beyond December 31,
2014. See 48 U.S.C. 1806(d)(5)(A). ‘‘This
subsection’’ is subsection (d), which
solely addresses the transitional worker
program. Id. The CNRA does not
provide authority to extend subsection
1806(c), the nonimmigrant investor
program, past the end of the transition
period. Id.
(b) Expiration of E–2 CNMI Investor
Classification
One commenter wrote that CNMI
investors will be required to apply for
a standard U.S. investor visa in order to
remain in the CNMI after the transition
period has ended. DHS appreciates the
concern but is constrained by the
CNRA. Although the Secretary of Labor
has the authority to extend the initial
5-year transition period with respect to
the transitional worker program, the
E–2 CNMI Investor provision cannot be
extended, as discussed above. The
transition period will end on December
31, 2014. See new 8 CFR
214.2(e)(23)(xiv). Investors who seek to
remain in the CNMI must apply and be
approved for another immigrant or
nonimmigrant status on or before
December 31, 2014. DHS is aware that
some CNMI investors may not qualify
for another immigration classification at
the end of the transition period;

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however, DHS does not have authority
to extend the E–2 CNMI Investor
classification beyond its statutory limits.

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V. Other Changes
Since DHS issued the proposed rule
before the transition program effective
date, DHS has made a number of other
minor changes to the final rule as a
result of the timing of the rule. These
include:
A. Changes of Tense and Other Timing
Matters
The proposed rule was written and
issued before the transition program
effective date. The fact that the final rule
is issued after that date requires some
wording changes. In particular, as
immigration statuses are now a matter of
Federal rather than CNMI law,
including the Federal ‘‘grandfathered’’
status provided for up to two years past
the transition program effective date to
aliens based on their status under CNMI
immigration law as of that date (see 48
U.S.C. 1806(e)), references in the
proposed rule that could have been read
to imply that CNMI immigration law
statuses would continue as such after
the transition program effective date
have been modified accordingly. See
new 8 CFR 214.2(e)(23)(i)(A) (changing
references to admission under CNMI
law and status as of transition date to
the past tense); new 8 CFR
214.2(e)(23)(i)(B) (removing reference to
continuous residence ‘‘under such longterm investor status’’). These changes are
technical rather than substantive, as the
applicant for CNMI E–2 Investor status
must still show that he or she has
continuously resided in the CNMI since
admission by the CNMI as a long-term
investor, that he or she had long-term
investor status as of the transition
program effective date, and that he or
she has maintained the investment(s)
that formed the basis for that status, as
provided by the proposed and the final
rule. See new 8 CFR 214.2(e)(23)(i)(A),
(B), (D); 8 CFR 214.2(e)(23)(ii)(D).
DHS has also modified the reference
to investor classifications under CNMI
law in new 8 CFR 214.2(e)(23)(iii). The
proposed rule referred to CNMI law as
in effect on May 8, 2008, the date of the
CNRA’s enactment. As explained in the
Supplementary Information to the
proposed rule, the reason for that date
was to provide a practicable baseline to
the rulemaking. In other words, the
proposed rule was drafted in such a way
so as to take into account the possibility
that the CNMI government could modify
its long-term investor classifications
under the authority to enact
immigration law for the CNMI that it
possessed prior to November 28, 2009.

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Such an action could have had
substantial effects on the rulemaking
and the public’s ability to provide
useful comments on it. However, the
CNMI government did not modify its
long-term investor classifications.
Therefore it is appropriate as a nonsubstantive technical change to conform
date references in the final rule to the
transition of immigration authority on
November 27, 2009 (the last day of
CNMI immigration authority) rather
than May 8, 2008.
DHS has also removed the definition
of ‘‘transition program effective date’’
that the proposed rule had provided as
proposed new 8 CFR 214.2(e)(23)(ii)(G).
This definition would have been
redundant with the definition of
transition program effective date in 8
CFR 1.1(bb) that was provided by the
DHS Interim Final Rule, Application of
Immigration Regulations to the
Commonwealth of the Northern Mariana
Islands, published on October 28, 2009,
74 FR 55726. The transition program
effective date in this definition is
November 28, 2009, the same as had
been stated in the proposed rule on the
E–2 CNMI Investor program. That
definition applies to all USCIS programs
in the CNMI.
B. Reference to Administrative Appeals
Office
The final rule modifies the proposed
rule’s reference to appeals of denials of
applications for E–2 CNMI Investor
status. See new 8 CFR 214.2(e)(23)(ix).
Rather than refer solely to the ‘‘USCIS
Administrative Appeals Office’’ (AAO),
the provision now refers to the AAO ‘‘or
any successor body.’’ This change is not
substantive, but provides flexibility in
case of a future USCIS administrative
reorganization or the renaming of an
office with respect to administrative
appeals. DHS has found that overly
specific references to particular officials
or offices in regulations can lead either
to unnecessary future conforming
rulemakings, or obsolete regulations, if
and when names and responsibilities
are reorganized or otherwise modified.
C. Information Needed for Background
Check
The final rule includes the proposed
rule’s specific authorization to collect
biometric information from applicants
for E–2 CNMI Investor status, with the
applicant paying the biometric services
fee. See new 8 CFR 214.2(e)(23)(viii).
The final rule clarifies that biometric
services include reuse of previously
provided biometric information
(typically in an extension of status
scenario), consistent with USCIS’s
current practice. Id.

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D. Fee Waiver Provisions
The final rule makes technical
revisions in order to conform the rule to
the reorganized format of 8 CFR 103.7
provided in the DHS final rule, ‘‘U.S.
Citizenship and Immigration Services
Fee Schedule,’’ 75 FR 58962 (Sept. 24,
2010). See new 8 CFR 103.7(c)(3)(xix).
The final rule also clarifies that the
authority to waive fees applies to Forms
I–539 filed by derivative spouses and
children, as well as to Forms I–129 filed
by principal applicants. The proposed
and final fee rules provided generally
for need-based application fee waivers
for any applicant for E–2 CNMI Investor
status in new 8 CFR 214.23(e)(xv), but
the conforming reference in 8 CFR
103.7(c) did not refer specifically to the
I–539 as well as the Form I–129.
VI. 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
Fairness 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, 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
This rule is a significant regulatory
action under Executive Order 12866,
section 3(f)(1), Regulatory Planning and
Review. Accordingly, the Office of
Management and Budget has reviewed
this rule.
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. Public Comments on the Estimated
Costs and Benefits of the Proposed Rule
DHS invited the public to comment
on the extent of any potential economic
impact of this rule on small entities, the
scope of these costs, or more accurate
means for defining these costs. As a
result, DHS received a number of

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comments related to the regulatory
analysis performed for the proposed
rule which is addressed above in the
preamble of this rule.
(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,
worker protections, national security,
and homeland security issues are
properly addressed. See CNRA section
701, 48 U.S.C. 1801 note.
(2) Changes made by this rule.
In order to reduce the opportunity for
fraud and to improve homeland
security, this rule requires foreign
investors who wish to reside in the
CNMI to reapply every two years using
USCIS Form I–129, Petition for a
Nonimmigrant Worker. Requiring
renewal every two years will help
USCIS make sure the investor has
maintained eligibility and provided
updated biometrics. The CNRA
generally extends Federal control of
immigration in the CNMI to address
national security and homeland security
issues, and the requirement for renewal
within this period is consistent with
current practice for non-CNMI E–2
treaty investor nonimmigrants. See
CNRA section 701 (48 U.S.C. 1801 note).
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 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
2 Northern Marianas College, Business
Development Center, An Economic Study of the
Commonwealth of the Northern Mariana Islands
(Saipan, MP: Northern Marianas College 1999).

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garment and tourism industries
accounted for 85 percent of the CNMI
economy.3 Recently, economic
conditions have changed dramatically
for these two CNMI industries. As a
result of changes in World Trade
Organization agreements, the apparel
industry in the CNMI was faced with
greater international competition.
Ultimately, this led to a decline in the
value of CNMI textile exports to the
United States, from $1.1 billion in 1998
to $317 million in 2007.4 The number
of licensed apparel manufacturers
dropped from 34 to six in 2008.5 The
remaining three garment factories closed
or suspended their operations in early
2009.6
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 people 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 2007.7
Because of the decline of the CNMI
economy, USCIS has sought to
minimize the potentially negative
effects of implementing the CNRA,
while recognizing that Federal oversight
of CNMI immigration is necessary to
reduce fraud, assure worker protections,
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
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
3 Id.
4 CNMI Comprehensive Economic Development
Strategic Plan 2009–2014. CNMI CEDS Commission
Updated 1/29/09.
5 Id.
6 See Walt F. J. Goodridge, The Last Garment
Factory is Closing, Saipan Tribune (Jan. 14, 2009)
(available at http://www.saipantribune.com/
newsstory.aspx?cat=3&newsID=86872).
7 GAO, Commonwealth of the Northern Mariana
Islands: Managing Economic Impact of Applying
U.S. Immigration Law Requires Coordinated
Federal Decisions and Additional Data, No. GAO–
08–791 (Aug. 4, 2008) (2008 GAO Rep.), available
at http://www.gao.gov/new.items/d08791.pdf.

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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, these
narrower 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 judged
to qualify under the CNRA) would be
eligible for CNMI E–2 Investor status,
because such an interpretation is most
in keeping with the mandate to limit
adverse economic impact.
(4) The total cost of this regulation to
investors.
(a) Fees.
This 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 current
application fee for this form is $325.
Additionally, this rule will require
CNMI investors to provide their
biometrics and imposes a biometrics fee,
currently $85. Thus, the total current
fees for each initial and biennial
registration are $410 ($325 + $85). Fee
waivers for inability to pay are
available.
(b) Paperwork burden.
It takes approximately 2.75 hours to
complete 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 2008 National
Occupational Employment and Wage
Estimates to determine the cost
associated with the hours necessary to
complete the Form I–129. The hourly
wage for chief executives is $77.13. If
we multiply $77.13 by 1.4 to account for
fringe benefits, the hourly cost is
$107.98. Multiplying $107.98 by the
2.75 hours required to fill out the I–129
results in paperwork burden cost per
form of $296.95 (rounded up to $297).
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 to investors is expected to be
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.

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The current application fee for this form
is $290 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 $107.98 × .75, or $80.99
(rounded up to $81) per investor.
(c) Cost incurred per foreign investor.
Adding the estimated paperwork
burden cost for completing Form I–129
of $297 to the $410 current application
and biometrics fees, the total cost
incurred for each CNMI foreign investor
to submit the I–129 as required under
this rule every two years is $707. Since
re-registration is only required every
other year, annualized costs to foreign
investors are $354 ($707/2).
In addition, the $81 paperwork cost of
completing the I–539 plus the $290
application fee equals a total of $371. In
this case, Form I–539 is being used to
grant initial status and to extend status
every two years. This results in an
annualized cost of $186 ($371/2) for
foreign investors to complete and
submit Form I–539 every two years for
their family.
In addition, 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 current fee of $85 per person.
According to a recent GAO report, the
average family in the Northern Mariana
Islands includes two children.8
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 $170.
This will be required only every other
year for an average annualized fee of
$85 ($170/2). Adding this fee to the
above paperwork costs and fees will
lead to an annualized cost per investor
family of $625 ($354 + $186 + $85).
The above annual estimates represent
the costs incurred by those investors
with a spouse and one child between
the ages of 14 and 21. For those
investors with a spouse and more than
one child between the age of 14 and 21,
these 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
prevents us from further refining our
estimates.
Under the CNMI government’s former
immigration authority, foreign investors
were charged $1,000 every two years or
$500 per year by the CNMI government.
CNMI fee setting methodology is
8 2008

GAO Rep., supra note 7.

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unknown to USCIS. For this analysis, it
is assumed that the CNMI fees
resembled U.S. Government agency
service and user fees in that they were
set at the amount necessary to recover
costs in accordance with Office of
Management and Budget guidance, and
were 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.
This final rule replaces the $1,000 fee
formerly charged every two years by the
CNMI government under the legal
authority it possessed prior to the
transition program effective date.
Therefore, this rule will raise the foreign
investor’s annualized direct cost by
$125 ($625–$500), through the end of
the transition period in 2014.9 USCIS
did not estimate the paperwork burden
associated with completing the requisite
CNMI application forms. Consequently,
the $125 annualized direct cost for
foreign investors is most likely
overstated.
Additionally, this rule provides that
spouses of foreign investors are eligible
to apply for employment authorization
documents. This accommodation is a
significant qualitative benefit for an
investor’s spouse who needs or wants to
work while living in the CNMI. If the
spouse chooses to take advantage of this
benefit, he or she must file a Form
I–765, Application for Employment
Authorization, which requires a current
fee of $380 and 3.42 hours to complete.
Since the occupation of these spouses is
unknown, we use fully burdened
minimum wage of $10.15 to estimate the
opportunity cost of completing the form
at $34.71.10 DHS is unable to accurately
estimate the number of investors who
have spouses that will request
employment authorization, although
some CNMI E–2 spouses are likely to
take advantage of this opportunity.
(5) Number of filings expected.
USCIS projects that most foreign
investors plan to re-register their status,
although a small number of foreign
9 This 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.
10 Minimum wage totals $7.25/hour × 1.4
(burdened rate) = $10.15/hour. See http://
www.dol.gov/whd/Flsa/index.htm. $10.15/hour ×
3.42 hours = $34.71.

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investors may be found ineligible. For
the purpose of this analysis, we assume
that all current investors will choose to
re-register. USCIS does not believe the
relatively low additional annualized
cost of $125 to foreign investors will
cause foreign investors not to re-register.
In 2006–2007, there were 448 longterm business entry permit holders and
30 foreign investor entry permit holders
and retiree investor permit holders,
totaling 478, or approximately 500
foreign registered investors.11 In its
recent report, the GAO estimates that
the number of active and valid longterm business and perpetual foreign
investor entry permits totaled 506 in
2008. In another measure, the GAO
suggests that 448 businesses were
associated with long-term business
entry permits and additional 56
perpetual foreign entry permits were
associated with 30 businesses. This
analysis assumes that 500 foreign
investors would be affected because of
the constantly changing economic
environment in CNMI. The annualized
costs and fees throughout the transition
period, as discussed above, would be an
additional $125 per investor for a total
annualized direct cost of $62,500 ($125
× 500) for all CNMI foreign investors.
Foreign investors who travel to and
from the 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 cost
to obtain a visa is not a cost of this rule
but rather the cost of the CNRA, and the
application of Federal immigration laws
in the CNMI.
(6) The cost to the Federal
Government.
There are no additional costs to the
Federal Government, because USCIS is
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
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 establishes temporary
regulatory provisions to transition the
CNMI to U.S. immigration law and to
mitigate harm to the CNMI economy
before investors in the CNMI are
required to obtain U.S. immigrant or
11 2008

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nonimmigrant visa classifications. The
CNMI investor program established by
this rule will last until the end of the
transition program, December 31, 2014,
by 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 nonimmigrant 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 through 2014
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 $50,000;
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 the treaty investor status ends. In
addition, 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.
There is no accurate way for USCIS 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

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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.12 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 on December
31, 2014.13
(c) Effect on the CNMI economy of the
CNRA.
USCIS has not analyzed the precise
effect of increased or decreased
investments in the CNMI caused by the
CNRA. Nevertheless, as indicated
before, the differences between the
CNMI foreign investor programs before
the CNRA took 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
on 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 by the CNRA to
leave, and their investments are not
maintained or replaced by another equal
or greater investment, then it will likely
have a negative impact on the CNMI
12 2008

GAO Rep., supra note 7.
INA section 101(a)(15)(L), 8 U.S.C.
1101(a)(15)(L); 8 CFR 214.2(l).
13 See

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economy. This rule is intended to
mitigate that impact.
(8) Benefits.
CNMI administration of an
immigration system outside U.S.
immigration law led to visa system
abuses in the CNMI. Sen. Rep. No. 110–
324, at 3 (2008). Given this abuse, there
are concerns not only for the well being
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 the
opportunity for aliens to exploit the
CNMI as an entry point into the United
States. Id. at 2, 4–5. The Federal
Government’s assumption of
responsibility for immigration
enforcement in the CNMI reduces the
opportunity for abuse of the CNMI
immigration regime for illegal access to
the United States.
(9) Conclusion.
This 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 and to implement the special
E–2 investor provisions of the CNRA in
the CNMI. This rule will implement this
mandate and thus contribute to U.S.
homeland security. USCIS concludes
that the alternative chosen for this rule
represents the most cost-effective means
of implementing its Congressional
mandate while having the least possible
negative impact on the CNMI economy.
C. Regulatory Flexibility Act—Final
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,
Public Law 104–121, requires Federal
agencies to consider the impact of their
regulatory proposals on small entities
whenever an agency must publish a
notice of proposed rulemaking.
Recently, new data concerning the
CNMI were made available by the U.S.
Census Bureau. DHS also examined a
recent U.S. Department of the Interior
(DOI) report; however the data in that
report did not apply to this analysis.
DHS did incorporate some of the overall

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Federal Register / Vol. 75, No. 243 / Monday, December 20, 2010 / Rules and Regulations
DOI conclusions later in this analysis.14
Accordingly, DHS has updated this
analysis to reflect the most recent
information. In the Initial Regulatory
Flexibility Analysis (IRFA), DHS
primarily utilized data from the 2005
CNMI Household, Income, and
Expenditures Survey (HIES) to analyze
the impacts on small entities. Since
2005, the CNMI economy has
experienced significant changes; new
data from the 2007 Economic Census of
Island Areas show important differences
in the labor force and business
establishments.15
1. Objectives of, and Legal Basis for, the
Final Rule
On May 8, 2008, President Bush
signed into law the Consolidated
Natural Resources Act of 2008 (CNRA),
Public Law 110–229. 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, and to

maximize the CNMI’s potential for
future economic and business growth.
48 U.S.C. 1801 note.
The law also contains several CNMIspecific provisions affecting foreign
workers and investors during the
transition period. 48 U.S.C. 1806(b), (c).
This rule establishes procedures for
foreign investors in the CNMI to obtain
nonimmigrant status within the E–2
treaty investor classification, in
accordance with the CNRA.
Additionally, this rule is intended to
provide a smooth transition for existing
CNMI investors and to mitigate
potential adverse consequences of the
CNRA to the CNMI.
2. Significant Issues Raised by Public
Comments in Response to the IRFA
DHS received a number of comments
relating to the economic analysis. These
comments have been addressed in
section IV(B)(5) (Economic Impact),
above.
3. Description and Estimate of the
Number of Small Entities to Which the
Rule Will Apply
a. Regulated entities.

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This rule will directly affect foreign
investors in the CNMI. As previously
stated, foreign investors in the past
could apply for the following CNMI
entry permits: Foreign investor permits,
long-term business permits, and retiree
investor permits. These investors are
small business owners and this rule
does not regulate small nonprofits or
small governmental jurisdictions.
b. Number of small entities to which
the final rule will apply.
This analysis is most concerned with
the number of business establishments
owned by foreign investors, the number
of workers they employ, and the
revenue levels of those entities. This
analysis is based on data from the 2007
Economic Census of Island Areas as we
believe they are the best data publicly
available.16
According to the 2007 Economic
Census of Island Areas, there were 1,191
business establishments in the CNMI,
and 365 of these establishments were
owned by foreign investors.17 Table 1
outlines the pertinent statistics on these
foreign-owned businesses.

TABLE 1—FOREIGN-OWNED BUSINESSES IN THE CNMI
Industry name
(NAICS)

# Est.

Total CNMI (all sectors & est.) .............................................
Total Foreign-owned Est ......................................................

# Emp.

Avg emp.

Avg
sales/receipts

1191
365

22,622
9,663

19
26

$1,078,243
1,149,214

17
23
18
77
29
16
23
28
20
68
25

165
3,121
168
785
103
88
245
83
268
2,661
256

10
136
9
10
4
6
11
3
13
39
10

379,941
2,831,696
1,104,444
660,727
178,517
169,063
414,043
76,500
482,850
1,367,735
259,280

SBA guideline

Foreign-owned by sector

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Construction (23) ..................................................................
Manufacturing (31–33) .........................................................
Wholesale (42) .....................................................................
Retail (44–45) .......................................................................
Real Estate (53) ...................................................................
Prof Services (54) ................................................................
Admin/Support Services (56) ...............................................
Educational Services (61) ....................................................
Arts & Entertain (71) ............................................................
Accomm. & Food Services (72) ...........................................
Other Services (81) ..............................................................

$7 to $33 million.
500–1,500 employees.
100 employees.
$7 to $29 million.
$7 to $25.5 million.
$4.5 to $27 million.
$4.5 to $35.5 million.
$7 to $35.5 million.
$7 million.
$7 to $20.5 million.
$7 to $25 million.

Table 1 illustrates the fact that all
foreign-owned businesses in the CNMI
are small entities by comparing the
average number of employees per
establishment or the average receipts/
sales/revenue per establishment to the
size guidelines outlined by the Small
Business Administration.

It is important to note that the
manufacturing numbers reported in
Table 1 are certainly changed today. The
2007 data indicated that the apparel
sector of the manufacturing industry in
the CNMI accounted for 42% of the
entire manufacturing industry. Now that
apparel manufacturing in the CNMI has
ceased operations, we estimate that 10

foreign-owned apparel manufacturing
establishments have ceased operations
and this results in a decrease of about
1,311 employees.18 One promising
development in the CNMI was
highlighted by a recent Department of
the Interior study that reported a
number of the industries listed above
are now forecasting employment growth

14 U.S. Department of the Interior, The Secretary
of the Interior, A Report on the Alien Worker
Population in the Commonwealth of the Northern
Mariana Islands, Washington, DC, April 2010,
available at http://www.doi.gov/oia/reports/
042810_FINAL_CNMI_Report.pdf.
15 The 2007 Economic Census of Island Areas was
released by the Census Bureau on September 1,

2009. The 2007 Economic Census results for the
CNMI are available at http://factfinder.census.gov/
servlet/FindEconDatasetsServlet?_caller=
geoselect&_ts=291885681264.
16 The 2007 Economic Census data for the CNMI
is available at http://factfinder.census.gov/servlet/
FindEconDatasetsServlet?_caller=geoselect
_ts=291885681264.

17 This number is smaller than the 500 long-term
permit holders identified by the GAO report
referenced earlier. This likely is due to data
reporting restrictions of the Census Bureau.
18 23 est. × 42% = 9.66 fewer establishments and
3,121 employees × 42% = 1,311 fewer employees.

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by 2014.19 As of 2007, the foreignowned small businesses that will be
impacted by this rule employed about
43% of workers in the CNMI. This
segment certainly represents a
substantial number of employers and
business establishments in the CNMI.
4. Reporting, Recordkeeping and Other
Compliance Requirements

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a. Significance of Impact.
As discussed above, the average
petitioner will be required to incur
annualized fee and paperwork burden
costs of $625 ($354 for investors + $186
for family members’ I–539 + $85 for
biometrics), and the CNMI government
will not charge its $1,000 fee every two
years. Therefore, at most this rule will
raise the foreign investor’s annualized
costs by $125 ($625¥$500) each year of
the transition. The increased annualized
cost for each investor due to this rule
represents less than 0.01087% of
average annual receipts in the CNMI for
foreign owned establishments (see Table
1 for average sales/receipt
information).20 Therefore, USCIS
believes that this additional fee and
paperwork burden should have little to
no impact on the decision of foreign
investors to remain in the CNMI.
b. 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 I–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 $297.
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 $81. If the
spouse of a foreign investor chooses to
seek employment, he or she must file a
Form I–765, Application for
Employment Authorization, which has a
paperwork burden estimated at $35.47
for the spouses taking advantage of this
option. This rule does not require
professional skills for the preparation of
reports or records.
19 U.S. Department of the Interior, A Report on
the Alien Worker Population in the Commonwealth
of the Northern Mariana Islands, Wash., DC (Apr.
2010), available at http://www.doi.gov/oia/reports/
042810_FINAL_CNMI_Report.pdf.
20 $125/$1,149,214 (average annual receipts/
revenue of foreign-owned establishments) =
0.01087%.

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5. Steps Taken To Minimize Significant
Adverse Economic Impacts on Small
Entities
Throughout the development of the
rule, DHS attempted to gather
information regarding the economic
impact of the rule’s requirements on
foreign investors. DHS considered
limiting the categories of investors
under previous CNMI law who 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 longterm business permit holders, foreign
investors and retiree investors (other
than investors under a short term
program not judged to qualify under the
CNRA) would be eligible for CNMI
E–2 Investor status, because such an
interpretation is most in keeping with
the mandate to limit adverse economic
impact.
Since all of the entities directly
affected by this rule are small, this rule
provides no different requirements or
any exemption from coverage of the rule
based on entity size. 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.
Commenters recommended a few
alternatives to the proposed rule. These
include: Extension of transition period;
elimination of the $150,000 minimum
investment requirement; and change in
the definition of continuous residence.
(a) Extension of Transition Period:
One commenter objected to the DHS
interpretation of the CNRA that any
extension of the transition period by the
Secretary of Labor will only extend the
transitional worker visa and not the
CNMI-only investor visa. As previously
discussed, the commenter’s
interpretation of the CNRA is incorrect.
Therefore, DHS is unable to adopt this
alternative approach.
(b) Minimum Investment for LongTerm Business Investors:
Three commenters wrote that the
$150,000 minimum investment
requirement for Long-Term Business
Investors will exclude investors who
were granted Long-Term Business
Certificates by the CNMI at a lower
investment minimum of $50,000. As
previously discussed, DHS found that
these comments had merit. The final
rule therefore has been amended to
include those investors who were
granted long-term business certificates
with a minimum investment of $50,000,
as long as they continued to hold that
status on the transition program
effective date and are otherwise eligible.
This modification of the proposed
rule furthers the goal of DHS and the

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intent of Congress to minimize potential
adverse economic and fiscal effects of
the CNRA on the CNMI and small
entities by including all CNMI long-term
investor classifications.
(c) Continuous Residence:
One commenter wrote that the
proposed rule’s residence requirement
will be unnecessarily rigorous for those
investors who do not reside in the CNMI
and proposed reducing the requirement
to two months. Another commenter
wrote that the residence requirement
should apply at the start of the
transition period. As previously
discussed, DHS does not believe that
adopting these suggestions would be
consistent with the CNRA’s continuous
residence requirement.
D. 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 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.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act,
44 U.S.C. 3501 et seq., 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

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Federal Register / Vol. 75, No. 243 / Monday, December 20, 2010 / Rules and Regulations
control numbers for these collections
are 1615–0009, 1615–0003, and 1615–
0040 respectively. The evidentiary
requirements contained in this rule at 8
CFR 214.2(e)(23)(vi) are not new
requirements and are currently
contained on the instructions to Form
I–129. Accordingly, these evidentiary
requirements will not add to the burden
for completing Form I–129 and
Supplement E.
This final rule requires minor changes
to:
• Form I–539, Application to Extend/
Change Nonimmigrant Status (OMB
Control No. 1615–0003) and
• Form I–129, Petition for
Nonimmigrant Worker (OMB Control
No. 1615–0009).
Accordingly, USCIS has prepared
OMB 83–Cs (correction worksheets) for
both these forms to reflect nonsubstantive changes, and has submitted
them to OMB with this final rule.
It is estimated that there will be a
slight increase in the number of filings
of Form I–129 (due to the new
requirement to have foreign investors
who wish to reside in the CNMI submit
Form I–129) and Form I–539. However,
the current OMB-approved annual
burden hours are sufficient to
encompass the filings added as a result
of this 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.

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Fees.

*

*
*
*
*
(c) * * *
(3) * * *
(xix) Petition for Nonimmigrant
Worker (Form I–129) or Application to
Extend/Change Nonimmigrant Status
(Form I–539), 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; Public Law 106–
386, 114 Stat. 1477–1480; section 141 of the
Compacts of Free Association with the
Federated States of Micronesia and the
Republic of the Marshall Islands, and with
the Government of Palau, 48 U.S.C. 1901
note, and 1931 note, respectively; 48 U.S.C.
1806; 8 CFR part 2.

§ 214.2 Special requirements for
admission, extension, and maintenance of
status.

*

PART 103—POWERS AND DUTIES;
AVAILABILITY OF RECORDS
1. The authority citation for part 103
is revised to read as follows:

■

Authority: 5 U.S.C. 301, 552, 552a; 8
U.S.C. 1101, 1103, 1304, 1356; 31 U.S.C.
9701; 48 U.S.C. 1806; Public Law 107–296,
116 Stat. 2135 (6 U.S.C. 1 et seq.), E.O. 12356,

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§ 103.7

2. Section 214.2 is amended by adding
a new paragraph (e)(23) to read as
follows:

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 amended
as follows:

19:04 Dec 17, 2010

2. Section 103.7 is amended by:
a. Removing the word ‘‘and’’ at the end
of paragraph (c)(3)(xvii);
■ b. Removing the ‘‘.’’ at the end of
paragraph (c)(3)(xviii) and adding a ‘‘,
and’’ in its place; and by
■ c. Adding a new paragraph (c)(3)(xix)
to read as follows:
■
■

■

8 CFR Part 214
Administrative practice and
procedure, Aliens, Employment,
Foreign officials, Health professions,
Reporting and recordkeeping
requirements, Students.

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47 FR 14874, 15557, 3 CFR, 1982 Comp., p.
166; 8 CFR part 2.

*
*
*
*
(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), 48 U.S.C. 1806.
(i) E–2 CNMI Investor eligibility.
During the period ending on January 18,
2013, 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
if the alien:
(A) Was lawfully admitted to the
CNMI in long-term investor status under
the immigration laws of the CNMI
before the transition program effective
date and had that status on the
transition program effective date;

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(B) Has continuously maintained
residence in the CNMI;
(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 continuous 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 DHS that he or she
did not in fact abandon residence in the
CNMI during such period. Absence from
the CNMI for any period of one year or
more 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.
(iii) Long-term investor status. Longterm investor status under the
immigration laws of the CNMI includes
only the following investor
classifications under CNMI immigration
laws as in effect on or before November
27, 2009:
(A) Long-term business investor. An
alien who has an approved investment
of at least $50,000 in the CNMI, as
evidenced by a Long-Term Business
Certificate.

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(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:
(1) Is over the age of 55 years and 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) Is over the age of 55 years and 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
before January 18, 2013. An application
filed after the filing date deadline will
be rejected.
(vi) Appropriate documents.
Documentary evidence establishing
eligibility for E–2 CNMI nonimmigrant
investor status is required.
(A) Required evidence of admission
includes a valid unexpired foreign
passport and a properly endorsed CNMI
admission document (e.g., entry permit
or certificate) 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 Retiree 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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(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

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the application is not required, but an
application may not be filed by, or E–
2 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 inadmissibility
waiver under the U.S. immigration laws.
If USCIS grants E–2 CNMI Investor
nonimmigrant classification 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) Information for background
checks. 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
services fee described in 8 CFR 103.7(b)
for any biometric services provided,
including but not limited to reuse of
previously provided biometric
information for background checks.
(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 or any successor body.
(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)(12) 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.

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(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
readmission to the CNMI as an E–2
CNMI Investor.
(B) Employment authorization. An
alien with E–2 CNMI Investor
nonimmigrant status is only
employment authorized in the CNMI 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 an alien’s
compliance with the terms and
conditions of qualification for E–2
CNMI Investor nonimmigrant status, the
alien must file a new application for E–
2 CNMI Investor nonimmigrant status,
in accordance with the appropriate form
instructions to request an 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.
(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

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dependent spouse and children,
provided the familial relationship
continues to exist and the principal
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 appropriate form
instructions. 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
lawfully admitted to the United States
in another valid nonimmigrant status
who is continuing to maintain that
status may apply to change
nonimmigrant status to E–2 CNMI
Investor in accordance with paragraph
(e)(21) of this section, if otherwise
eligible, including but not limited to
having been in CNMI long-term investor
status on the transition date and within
the period provided by paragraph
(e)(23)(v) of this section.
(xiv) Expiration of initial transition
period. Upon expiration of the initial
transition period, the E–2 CNMI
Investor nonimmigrant status will
automatically terminate.
(xv) Fee waiver. An alien applying for
E–2 CNMI Investor nonimmigrant status
is eligible for a waiver of the required
fee for an application based upon
inability to pay as provided by 8 CFR
103.7(c)(1).
(xvi) Waiver of inadmissibility for
applicants present in the CNMI. An
applicant for E–2 CNMI Investor
nonimmigrant status, who is otherwise
eligible for such status and otherwise
admissible to the United States, and
who has provided all appropriate
documents as described in paragraph
(e)(23)(vi) of this section, may be
granted a waiver of inadmissibility
under section 212(d)(3)(A)(ii) of the Act,
including the grounds of inadmissibility
described in sections 212(a)(6)(A)(i) (to
the extent such grounds arise solely
because of the alien’s presence in the
CNMI on November 28, 2009) and
212(a)(7)(B)(i)(II) of the Act, for the
purpose of granting the E–2 CNMI
Investor nonimmigrant status. Such

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79277

waiver may be granted without
additional form or fee required. In the
case of an application by a spouse or
child as described in paragraph
(e)(23)(x) of this section who is present
in the CNMI, the appropriate documents
required for such waiver are a valid
unexpired passport and evidence that
the spouse or child is lawfully present
in the CNMI under section 1806(e) of
title 48, U.S. Code (which may include
evidence of a grant of parole by USCIS
or by the Department of Homeland
Security pursuant to a grant of advance
parole by USCIS in furtherance of
section 1806(e) of title 48, U.S. Code).
*
*
*
*
*
PART 274a—CONTROL OF
EMPLOYMENT OF ALIENS
3. The authority citation for part 274a
is revised to read as follows:

■

Authority: 8 U.S.C. 1101, 1103, 1324a; 48
U.S.C. 1806; 8 CFR part 2.

4. Section 274a.12 is amended by:
■ a. Adding a new paragraph (b)(22);
and by
■ b. 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 nonimmigrants) 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

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E–2 CNMI Investor is eligible for
employment in the CNMI only;
*
*
*
*
*
Janet Napolitano,
Secretary.
[FR Doc. 2010–31652 Filed 12–17–10; 8:45 am]
BILLING CODE 9111–97–P

DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
12 CFR Part 25
[Docket ID OCC–2010–0021]
RIN 1557–AD34

FEDERAL RESERVE SYSTEM
12 CFR Part 228
[Docket No. R–1387]
RIN 7100–AD50

FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 345
RIN 3064–AD60

DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
12 CFR Part 563e
[Docket ID OTS–2010–0031]
RIN 1550–AC42

Community Reinvestment Act
Regulations
Office of the Comptroller of
the Currency, Treasury (OCC); Board of
Governors of the Federal Reserve
System (Board); Federal Deposit
Insurance Corporation (FDIC); Office of
Thrift Supervision, Treasury (OTS).
ACTION: Joint final rule.
AGENCIES:

The OCC, the Board, the
FDIC, and the OTS (collectively, ‘‘the
agencies’’) are adopting revisions to our
rules implementing the Community
Reinvestment Act (CRA). The agencies
are revising the term ‘‘community
development’’ to include loans,
investments, and services by financial
institutions that support, enable, or
facilitate projects or activities that meet
the ‘‘eligible uses’’ criteria described in
Section 2301(c) of the Housing and
Economic Recovery Act of 2008 (HERA),
as amended, and are conducted in
designated target areas identified in
plans approved by the United States

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SUMMARY:

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Department of Housing and Urban
Development (HUD) under the
Neighborhood Stabilization Program
(NSP). The final rule provides favorable
CRA consideration of such activities
that, pursuant to the requirements of the
program, benefit low-, moderate-, and
middle-income individuals and
geographies in NSP target areas
designated as ‘‘areas of greatest need.’’
Covered activities are considered both
within an institution’s assessment
area(s) and outside of its assessment
area(s), as long as the institution has
adequately addressed the community
development needs of its assessment
area(s). Favorable consideration under
the revised rule will be available until
no later than two years after the last date
appropriated funds for the program are
required to be spent by the grantees. The
agencies will provide reasonable
advance notice to institutions in the
Federal Register regarding termination
of the rule once a date certain has been
identified.
DATES: Effective Date: This joint final
rule is effective January 19, 2011.
FOR FURTHER INFORMATION CONTACT:
OCC: Michael S. Bylsma, Director, or
Margaret Hesse, Special Counsel,
Community and Consumer Law
Division, (202) 874–5750; or Greg Nagel
or Brian Borkowicz, National Bank
Examiners, Compliance Policy, (202)
874–4428; Office of the Comptroller of
the Currency, 250 E Street, SW.,
Washington, DC 20219.
Board: Paul J. Robin, Manager,
Reserve Bank Oversight and Policy,
(202) 452–3140; or Jamie Z. Goodson,
Attorney, (202) 452–3667; Division of
Consumer and Community Affairs,
Board of Governors of the Federal
Reserve System, 20th Street and
Constitution Avenue, NW., Washington,
DC 20551.
FDIC: Janet Gordon, Senior Policy
Analyst, Division of Supervision and
Consumer Protection, (202) 898–3850 or
Richard Schwartz, Counsel, Legal
Division, (202) 898–7424; Federal
Deposit Insurance Corporation, 550 17th
Street, NW., Washington, DC 20429.
OTS: Stephanie M. Caputo, Senior
Compliance Program Analyst,
Compliance and Consumer Protection,
(202) 906–6549; or Richard Bennett,
Senior Compliance Counsel,
Regulations and Legislation Division,
(202) 906–7409; Office of Thrift
Supervision, 1700 G Street, NW.,
Washington, DC 20552.
SUPPLEMENTARY INFORMATION:

thrift regulatory agencies to assess the
record of each insured depository
institution in helping to meet the credit
needs of its entire community,
including low- and moderate-income
neighborhoods, consistent with the safe
and sound operation of the institution,
and to take that record into account
when the agency evaluates an
application by the institution for a
deposit facility.1 The agencies have
promulgated substantially similar
regulations to implement the
requirements of the CRA.2
There is a pressing need to provide
housing-related assistance to stabilize
communities affected by high levels of
foreclosures. High levels of foreclosures
have devastated communities and are
projected to continue into 2012 and
beyond with damaging spillover effects
for low- and moderate-income census
tracts, as well as middle-income census
tracts, affected by high levels of loan
delinquencies and foreclosures. Among
the many consequences of high levels of
foreclosures are growing inventories of
vacant foreclosed properties and
institution ‘‘other real estate owned’’
(OREO) properties, depreciating home
values, declining property tax bases,
and destabilization of communities
directly affected by high levels of
foreclosures and of adjacent and
surrounding neighborhoods.
Neighborhood Stabilization Program
(NSP)
Congress recognized the need to
provide emergency assistance to address
these problems with the establishment
of the Neighborhood Stabilization
Program (NSP) through Division B, Title
III, of the Housing and Economic
Recovery Act of 2008 (HERA), Public
Law 110–289 (2008). Under HERA,
emergency funds (‘‘NSP1’’) totaling
nearly $4 billion for the redevelopment
of abandoned and foreclosed properties
were distributed to States and localities
with the greatest need for such funds
according to a formula based on the
number and percentage of home
foreclosures, the number and percentage
of homes financed by a subprime
mortgage-related loan, and the number
and percentage of homes in default or
delinquency in each State or unit of
general local government. Under NSP1,
each of the 50 States and Puerto Rico
received a minimum award of $19.6
million and 254 local areas received

Background
The Community Reinvestment Act
(CRA) requires the Federal banking and

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1 12

U.S.C. 2903.
12 CFR parts 25, 228, 345, and 563e.

2 See

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