Local
Monday, December 20, 2010
Aliens can change status without leaving CNMI
By Haidee V. Eugenio
Reporter
The U.S. Citizenship and Immigration Services issued on Tuesday a policy memorandum allowing aliens to obtain a non-immigrant status in the CNMI without having to leave the islands.
The policy memorandum takes effect immediately.
David Gulick, district director of USCIS Honolulu District 26, said the grant of status policy memo would affect mostly those who are seeking R status, along with H1B, H2B, and H3 status. R-1 is for temporary religious workers, while R-2 is for the spouse/children of an R-1.
“These are the main groups that should be taking advantage of that policy. That will save people some trips; they don't need to travel outside to get their status,” Gulick said at a news briefing on Saturday about the policy memo.
In most cases, an individual in the U.S. without a non-immigrant status needs to leave the country in order to obtain a non-immigrant classification.
But the USCIS has made exceptions for individuals in the CNMI with CNMI permits or parole authorization.
“If you are a CNMI worker with a valid CNMI work permit or parole status, immigration officials may consider you lawfully present in the CNMI for the purposes of obtaining a grant of initial grant of status,” the USCIS said.
The USCIS is one of the component agencies of the U.S. Department of Homeland Security which is the lead agency overseeing the federal takeover of CNMI immigration.
Those who are eligible for an initial grant of status are those who are lawfully present in the CNMI, were present in the CNMI before Nov. 28, 2009, do not currently hold a non-immigrant classification, and are admissible.
The policy memo applies to and binds all USCIS employees who adjudicate petitions and applications for non-immigrant status.
It adds Chapter 36.4 to the Adjudicator's Field Manual, “Waivers of Inadmissibility and Grants of Status for Certain Aliens Seeking Nonimmigrant Status in the Commonwealth of the Northern Mariana Islands.”
USCIS said allowing for the grant of nonimmigrant status to eligible aliens who are physically present in the CNMI will help encourage these aliens and their employers to seek an appropriate, federal immigration status for themselves and their employees.
“This (policy memo) is consistent with congressional intent to promote as rapid and smooth a transition as possible from former CNMI statuses to federally based statuses,” the federal agency added.
More information is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/December/cnmi-status.pdf.
Showing posts with label USCIS. Show all posts
Showing posts with label USCIS. Show all posts
Sunday, December 19, 2010
DHS Issues Final Investor Rule for CNMI
Local
Monday, December 20, 2010
DHS issues final investor rule for CNMI
2-year status covers those with $50,000 minimum investment
By Haidee V. Eugenio
Reporter
The U.S. Department of Homeland Security issued the long-awaited final E-2 CNMI-only investor rule which, among other things, allows eligible foreign long-term investors with a minimum of $50,000 instead of $150,000 in investments to remain in the CNMI through Dec. 31, 2014.
Eligible investors can start applying for this status on Jan. 18, 2011.
DHS' U.S. Citizenship and Immigration Services said petitions received prior to Jan. 18, 2011 will be rejected.
The E2 CNMI investor visa is valid for two years, is renewable, and is valid only in the CNMI.
The investor's spouse and children may also apply for a status as dependents of the investor.
DHS issued the final investor rule almost 15 months after U.S. Public Law 110-229, which placed CNMI immigration under federal control, required them to publish it.
By the end of the federalization transition period on Dec. 31, 2014, these investors are required to obtain another U.S. immigrant or nonimmigrant visa classification.
The E-2 CNMI investor rule will be published in the Federal Register on Dec. 20 in Washington, D.C. or Tuesday, Saipan time.
It is now available for review at http://www.ofr.gov/OFRUpload/OFRData/2010-31652_PI.pdf.
Those eligible to apply for the E-2 CNMI investor status include long-term business investors, foreign investors, and retiree foreign investors.
Major change
David Gulick, district director of USCIS Honolulu District 26, said the reduction in investment for eligibility to apply for an investor status is the “major change” in the proposed rule.
He said DHS made a great deal in considering the 13 comments received.
“What I personally hope people would realize is that if you read the comment section, that peoples' comments were seriously considered. In fact, there was one change in the rule, the $50,000 from $150,000. We do take comments seriously,” Gulick said at a news conference on Saturday afternoon.
Gulick also briefed some stakeholders in the CNMI community about the final rule, which provides the procedures to obtain status as an E-2 CNMI investor.
Were it not for this modification in the proposed rule, most of the estimated 500 long-term foreign investors in the CNMI would not qualify to apply for this status because their minimum investments do not meet the $150,000 proposed threshold.
This goes along with DHS' goal and U.S. Congress' intent of minimizing the potential adverse economic impact of P.L. 110-229 or the Consolidated Natural Resources Act which was signed in May 2008 but took effect on Nov. 28, 2009, with a transition period ending Dec. 31, 2014.
The final rule also clarifies the authority and process by which applicants in the CNMI can be granted E-2 CNMI investor status in the CNMI without having to travel abroad to obtain a nonimmigrant visa.
No worker rules yet
During the news briefing, Gulick said the transitional worker regulations are still being developed.
He said there's no telling when those will be published, along with the final rule on the tourist visa waiver program.
Delegate Gregorio Kilili C. Sablan, for his part, said while DHS has made progress by issuing the investor regulation, he continues to stress to DHS officials that all regulations implementing P.L. 110-229 “must be issued, particularly the CNMI-only Transition Worker Classification.”
“The delays continue to cause harm to our struggling economy and are contrary to the intent of the law,” he said.
Other stakeholders have yet to fully review the investor rule, and have deferred comment at this time.
If you need more information
Gulick said he will be on Saipan until Wednesday, Dec. 22, and will make himself available to investors who have questions about the E-2 CNMI investor rule.
He said investors can walk in and see him if he's at the Saipan Application Support Center at the TSL Plaza in Garapan between today and Wednesday.
After Wednesday, investors need to make Infopass appointments to ask questions about the investor rule.
Gulick said he will be visiting the Japanese Consulate on the investor rule, and will also make himself available for presentations to representatives of the Korean business community, the Chinese business community, the Saipan Chamber of Commerce, and other stakeholders in the CNMI.
In the second to fourth week of January 2011, USCIS will send a team of experts to the CNMI to make presentations and answer specific questions about the investor rule.
“Included in that team will be representatives of the California Service Center, which will be the one handling these petitions. They will be able to meet with all you guys to go over the regulation, they will have power point presentation, they will be able to answer questions in depth,” Gulick said.
He said the holiday break will give investors and other stakeholders a chance to go over the investor rule and formulate specific questions they may have, in time for the visit of the USCIS representatives from California.
Fees, qualification
The current processing fee for Form I-129 is $325, plus an $85 biometrics fee for certain beneficiaries who require an initial grant of status in the CNMI.
Fee waivers for inability to pay are available.
To qualify for E-2 CNMI investor status, the applicant must:
Have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before Nov. 28, 2009;
Have continuously maintained residence in the CNMI under long-term investor status;
Currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and
Otherwise be admissible to the United States under the U.S. Immigration and Nationality Act.
Investors who were admitted to the CNMI in long-term investor status under CNMI immigration law qualify to apply for an E-2 CNMI investor status.
They include long-term business investors that the CNMI issued a long-term business certificate based upon an investment of at least $50,000.
They also include those with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment.
Investors eligible also include retiree investors over the age of 55 years who were issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI, but not including the two-year non-renewable retiree investor program limited to Japanese nationals.
Monday, December 20, 2010
DHS issues final investor rule for CNMI
2-year status covers those with $50,000 minimum investment
By Haidee V. Eugenio
Reporter
The U.S. Department of Homeland Security issued the long-awaited final E-2 CNMI-only investor rule which, among other things, allows eligible foreign long-term investors with a minimum of $50,000 instead of $150,000 in investments to remain in the CNMI through Dec. 31, 2014.
Eligible investors can start applying for this status on Jan. 18, 2011.
DHS' U.S. Citizenship and Immigration Services said petitions received prior to Jan. 18, 2011 will be rejected.
The E2 CNMI investor visa is valid for two years, is renewable, and is valid only in the CNMI.
The investor's spouse and children may also apply for a status as dependents of the investor.
DHS issued the final investor rule almost 15 months after U.S. Public Law 110-229, which placed CNMI immigration under federal control, required them to publish it.
By the end of the federalization transition period on Dec. 31, 2014, these investors are required to obtain another U.S. immigrant or nonimmigrant visa classification.
The E-2 CNMI investor rule will be published in the Federal Register on Dec. 20 in Washington, D.C. or Tuesday, Saipan time.
It is now available for review at http://www.ofr.gov/OFRUpload/OFRData/2010-31652_PI.pdf.
Those eligible to apply for the E-2 CNMI investor status include long-term business investors, foreign investors, and retiree foreign investors.
Major change
David Gulick, district director of USCIS Honolulu District 26, said the reduction in investment for eligibility to apply for an investor status is the “major change” in the proposed rule.
He said DHS made a great deal in considering the 13 comments received.
“What I personally hope people would realize is that if you read the comment section, that peoples' comments were seriously considered. In fact, there was one change in the rule, the $50,000 from $150,000. We do take comments seriously,” Gulick said at a news conference on Saturday afternoon.
Gulick also briefed some stakeholders in the CNMI community about the final rule, which provides the procedures to obtain status as an E-2 CNMI investor.
Were it not for this modification in the proposed rule, most of the estimated 500 long-term foreign investors in the CNMI would not qualify to apply for this status because their minimum investments do not meet the $150,000 proposed threshold.
This goes along with DHS' goal and U.S. Congress' intent of minimizing the potential adverse economic impact of P.L. 110-229 or the Consolidated Natural Resources Act which was signed in May 2008 but took effect on Nov. 28, 2009, with a transition period ending Dec. 31, 2014.
The final rule also clarifies the authority and process by which applicants in the CNMI can be granted E-2 CNMI investor status in the CNMI without having to travel abroad to obtain a nonimmigrant visa.
No worker rules yet
During the news briefing, Gulick said the transitional worker regulations are still being developed.
He said there's no telling when those will be published, along with the final rule on the tourist visa waiver program.
Delegate Gregorio Kilili C. Sablan, for his part, said while DHS has made progress by issuing the investor regulation, he continues to stress to DHS officials that all regulations implementing P.L. 110-229 “must be issued, particularly the CNMI-only Transition Worker Classification.”
“The delays continue to cause harm to our struggling economy and are contrary to the intent of the law,” he said.
Other stakeholders have yet to fully review the investor rule, and have deferred comment at this time.
If you need more information
Gulick said he will be on Saipan until Wednesday, Dec. 22, and will make himself available to investors who have questions about the E-2 CNMI investor rule.
He said investors can walk in and see him if he's at the Saipan Application Support Center at the TSL Plaza in Garapan between today and Wednesday.
After Wednesday, investors need to make Infopass appointments to ask questions about the investor rule.
Gulick said he will be visiting the Japanese Consulate on the investor rule, and will also make himself available for presentations to representatives of the Korean business community, the Chinese business community, the Saipan Chamber of Commerce, and other stakeholders in the CNMI.
In the second to fourth week of January 2011, USCIS will send a team of experts to the CNMI to make presentations and answer specific questions about the investor rule.
“Included in that team will be representatives of the California Service Center, which will be the one handling these petitions. They will be able to meet with all you guys to go over the regulation, they will have power point presentation, they will be able to answer questions in depth,” Gulick said.
He said the holiday break will give investors and other stakeholders a chance to go over the investor rule and formulate specific questions they may have, in time for the visit of the USCIS representatives from California.
Fees, qualification
The current processing fee for Form I-129 is $325, plus an $85 biometrics fee for certain beneficiaries who require an initial grant of status in the CNMI.
Fee waivers for inability to pay are available.
To qualify for E-2 CNMI investor status, the applicant must:
Have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before Nov. 28, 2009;
Have continuously maintained residence in the CNMI under long-term investor status;
Currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and
Otherwise be admissible to the United States under the U.S. Immigration and Nationality Act.
Investors who were admitted to the CNMI in long-term investor status under CNMI immigration law qualify to apply for an E-2 CNMI investor status.
They include long-term business investors that the CNMI issued a long-term business certificate based upon an investment of at least $50,000.
They also include those with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment.
Investors eligible also include retiree investors over the age of 55 years who were issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI, but not including the two-year non-renewable retiree investor program limited to Japanese nationals.
Q&A: E-2 CNMI Non-Immigrant Investor Status
Q&A: E-2 CNMI Nonimmigrant Investor Status
Monday, December 20, 2010 12:00AM
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(USCIS) — U.S. Citizenship and Immigration Services posted a final rule in the Federal Register that creates a nonimmigrant investor visa classification in the CNMI.
The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014 and is intended to help with the transition to U.S. immigration law in the CNMI.
This final rule implements one of the CNMI-specific provisions of the Consolidated Natural Resources Act of 2008, which extends the immigration laws of the United States to the CNMI.
Background
The Consolidated Natural Resources Act of 2008, Public Law 110-229 was signed into law on May 8, 2008. Title VII of this law extends the immigration laws of the United States to the CNMI. One provision of the CNRA authorizes the Secretary of Homeland Security to classify, during the transition period, an foreign investor in the CNMI as an E-2 nonimmigrant investor. This transition period formally began on Nov. 28, 2009 and is set to end on Dec. 31, 2014. Accordingly, USCIS’s rule allows foreign long-term investors to reside in the CNMI through December 2014 in CNMI E-2 nonimmigrant investor status. This rule temporarily resolves the immigration status of long-term investors in the CNMI and provides them time in which to obtain another lawful immigration status under the provisions of the Immigration and Nationality Act. As with other immigration benefits, individuals must apply for E-2 CNMI Investor status.
Q1. Why did USCIS create this rule?
A1. As required by the CNRA, this final rule enables long-term foreign investors in the CNMI to apply for status as CNMI-only E-2 nonimmigrant investors. USCIS created this transitional regulatory provision because of the unique nature of CNMI investors who are not otherwise immediately eligible to obtain U.S. immigrant or nonimmigrant visa classifications.
Q2. What is the CNMI-only E-2 nonimmigrant investor status?
A2. The rule establishes a transitional status that does not exist anywhere else in the United States to temporarily resolve the immigration status of long-term investors in the CNMI by allowing foreign long-term investors to obtain status to reside in the CNMI through December 2014.
Q3. Why is this category temporary?
A3. The CNRA only provided for this status during the transition period. The E-2 CNMI Investor status is intended to help with the transition to U.S. immigration law in the CNMI. These investors are required to obtain another U.S. immigrant or nonimmigrant visa classifications by the end of the transition period, or Dec. 31, 2014.
Q4. What forms of work authorization are investors currently using in the CNMI?
A4. Since the transition period began on Nov. 28, 2009, most investors are continuing to work under CNMI-issued “umbrella permits” or other CNMI work authorization permits issued prior to that date. These permits are valid until Nov. 27, 2011, or their date of expiration, whichever is sooner.
Q5. What are the existing foreign investor requirements under the INA?
A5. Under U.S. immigration law, foreign investors may enter the United States as nonimmigrants within the treaty investor classification with an E-2 visa or may change to E-2 treaty investor nonimmigrant status from within the United States.
To qualify for E-2 treaty investor status, treaty investors must:
• Invest a substantial amount of capital in a bona fide enterprise in the United States;
• Seek entry solely to develop and direct the enterprise;
• Enter the United States according to treaty provisions;
• Be nationals of a country with which the United States has a treaty of friendship, commerce, or navigation; and
• Intend to depart the United States when their treaty investor status ends.
Q6. What happens at the end of the transition period?
A6. At the end of 2014, the transition period will expire and the E-2 CNMI investor status and visa will expire. Therefore, individuals in the CNMI with E-2 CNMI status must depart the CNMI at the end of the transition period or qualify for and obtain another nonimmigrant or immigrant status in order to lawfully remain in the CNMI.
Q7. When does the transition period end?
A7. The transition program will last through Dec. 31, 2014.
Q8. Will any extensions of the transition period, as determined by the Secretary of Labor, affect eligibility for the CNMI-only investor visas?
A8. No. The CNMI-only investor status ends at the end of the transition period. Any extension by the Secretary of Labor will apply only to the CNMI transitional worker category. As mandated by the CNRA, the investor provisions will terminate on Dec. 31, 2014, regardless of whether an extension to the transitional worker provision occurs.
Q9. What nonimmigrant or immigrant statuses can investors in the CNMI apply for?
A9. That will depend upon individual circumstances. Investors who obtain the E-2 CNMI nonimmigrant investor status have until the end of 2014 to adjust or change their status. (Similarly, investors in the CNMI may apply for a nonimmigrant or immigrant status for which they qualify without first obtaining the E-2 CNMI investor status, however, they may not adjust status to a business based immigrant status without first obtaining an INA based nonimmigrant status.) Some examples of nonimmigrant or immigrant status that an E-2 CNMI Investor may be eligible are:
• To qualifying for an L-1A nonimmigrant executive or managerial visa;
• Adjusting status based on the status of family members; or
• Qualifying under other investor or employment-based visas.
Q10. What happens to dependents of CNMI E-2 Investors during the transition period?
A10. During the transition period, dependents (spouses and children) can qualify for dependent status under the CNMI E-2 Investor final rule. Dependents will follow normal procedures with respect to extensions or changes of status for nonimmigrants.
Upon the end of the transition period, spouses and children also will be subject to the same regulations as other immigrants. For example, if the E-2 CNMI Investor qualifies for a change of status to regular E-2 status at the end of the transition period, his or her dependents would have to apply for a change of status as well and qualify under those statutory and regulatory provisions.
Q11. Who qualifies for the CNMI-only "E-2" nonimmigrant investor visa?
A11. To qualify for E-2 CNMI Investor status, the primary applicant must:
• Have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before Nov. 28, 2009;
• Have continuously maintained residence in the CNMI under long-term investor status;
• Currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and
• Otherwise be admissible to the United States under the U.S. Immigration and Nationality Act.
Q12. Which current CNMI investor statuses qualify?
A12. Individuals who were admitted to the CNMI in long-term investor status under CNMI immigration law qualify, specifically:
• A long-term business investor who was issued a long-term business certificate by the CNMI based upon an investment of at least $50,000;
• A foreign investor with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment; and
• A retiree investor over the age of 55 years who was issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI (but not including the two-year non-renewable retiree investor program limited to Japanese nationals).
Q13. How did USCIS decide which categories will qualify under the final rule?
A13. The CNRA refers to admission in “long-term investor” status under the laws of the CNMI when creating the E-2 CNMI Investor status. Only CNMI categories that mandated a fixed minimum threshold amount of investment and are renewable over a period of multiple years (long-term) were considered to be “long-term investor” statuses for this rule, namely the three categories listed above (long-term business investor, foreign investor, and retiree foreign investor).
Q14. How many people are currently in these three CNMI long-term investor categories?
A14. USCIS estimates that there are approximately 500 foreign-registered investors in the CNMI long-term investor categories.
Q15. Which CNMI Investor categories are not eligible for E-2 CNMI Investor status under the rule?
A15. Other investors, including the following, are not eligible for this E-2 visa under the final rule:
• The sub-category of the retiree investor specifically limited to Japanese retirees;
• Short-term business entry permits; and
• Regular-term business entry permits.
Q16. Why is the sub-category of the retiree investor specifically limited to Japanese retirees not eligible for E-2 investor status?
A16. The rule does not consider this category eligible, as these individuals do not classify as “long-term investors.” The CNMI permit for the two-year program for Japanese retirees is nonrenewable and only requires monthly rental payments rather than long-term investment.
Q17. What can these Japanese retirees do once their permit expires?
A17. By Nov. 27, 2011, or the expiration of the Japanese retiree investor’s CNMI-issued permit (whichever occurs first), the individual must depart the CNMI unless he or she applies for and is eligible to remain in the CNMI under another lawful status.
Q18. Why are individuals with short-term and regular-term business entry permits not eligible for E-2 investor status?
A18. Foreign nationals lawfully admitted under the CNMI short-term business entry permit or the regular-term business entry permit categories are not eligible because these permits are not long-term and they do not require investments.
Q19. If individuals with short-term and regular-term business entry permits are not eligible for an E-2 CNMI Investor visa, what can they do?
A19. Individuals with short-term and regular-term business entry permits will not be eligible to obtain the E-2 CNMI Investor visa and therefore must depart the CNMI at the expiration of their CNMI issued status or Nov. 27, 2011, whichever occurs first OR apply for and obtain another immigrant or nonimmigrant classification under the INA that permits them to remain in the CNMI.
Q20. Will foreigners who had pending CNMI Investor applications on Nov. 28, 2009, be eligible for the new E-2 CNMI Investor status?
A20. Foreign nationals who were not admitted as eligible CNMI investors prior to the beginning of the transition period are not eligible for classification as E-2 CNMI nonimmigrant investors. Therefore, individuals who had investor applications pending with the CNMI as of the transition program effective date are not eligible for E-2 CNMI Investor status.
Q21. Is an individual with an approved investor application eligible for E-2 CNMI Investor status?
A21. An individual who was not admitted as an eligible CNMI investor prior to Nov. 28, 2009, is not eligible for classification as E-2 CNMI nonimmigrant investor. Therefore, an individual who has an approved investor application but was not admitted to the CNMI as of the transition program effective date is not eligible for E-2 CNMI Investor status.
Q22. What does the E-2 CNMI Investor visa requirement “continuous maintenance of residence” mean? What if an investor travels regularly outside CNMI?
A22. “Continuous maintenance of residence in the CNMI” means residence in the CNMI from the date that an individual obtained his or her CNMI status through the date on which USCIS grants the new E-2 CNMI Investor status. This is not the same as continuous physical presence; therefore, an investor does not need to remain in the CNMI for the entire period in order to have maintained continuous residence. The rule provides, however, that an investor must be physically present in the CNMI for at least half the time for which continuous residence is required. Additionally, an individual will not maintain continuous residence if he or she leaves the CNMI for more than one year or leaves the CNMI for more than six months and cannot demonstrate that he or she did not abandon his or her residence by this absence.
Q23. Can an investor lose his or her status?
A23. Yes, an investor could lose immigration status if he or she does not maintain the investment(s) that formed the basis for admission. To establish that an investor is maintaining the investment or investments that formed the basis for admission to the CNMI, the rule requires each applicant to provide specific evidence demonstrating that the investor is in compliance with the terms upon which the CNMI investor certificate was issued. Additionally, as previously mentioned, an investor can lose immigration status is he or she does not maintain continuous residence in the CNMI.
Q24. What evidence must an applicant for E-2 CNMI Investor provide?
A24. All documentation previously submitted in each investor application to the CNMI government should be submitted as part of each E-2 CNMI petition to USCIS.
All individuals must provide the following evidence of lawful admission to the CNMI:
• A valid unexpired foreign passport; and
• A properly endorsed CNMI admission document (e.g., entry permit, entry certificate or foreign investor visa) with a period of validity that includes Nov. 28, 2009.
Individuals with a CNMI-issued foreign investor entry permit or long-term business entry permit
An applicant with a CNMI-issued foreign investor entry permit or long-term business entry permit must submit evidence to show that he or she has maintained his or her investment with the E-2 CNMI Investor application. This evidence could include:
• An approval letter issued by the CNMI government;
• Evidence that capital has been invested, such as bank statements, receipts or contracts for assets purchased, stock purchase transaction records, loan or other borrowing agreements, land leases, financial statements, business gross tax receipts, or other agreements supporting the application;
• Evidence that the applicant has invested at least the minimum amount required, such as evidence of assets purchased or 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 secured by assets of the applicant;
• A comprehensive business plan for new enterprises;
• Articles of incorporation, by-laws, partnership agreements, joint venture agreements, corporate minutes and annual reports, affidavits, declarations or certifications of paid-in capital;
• Current business licenses;
• Foreign business registration records, recent tax returns of any kind, evidence of other sources of capital;
• A listing of all resident and nonresident employees;
• A listing of all holders of business certificates for the business establishment; or
• A listing of all corporations in which the applicant has a controlling interest.
For the holder of a certificate of foreign investment, copies of annual reports of investment activities in the CNMI showing that the certificate holder is under continuing compliance with the standards required. Each report must be accompanied by an annual financial audit report performed by an independent certified public accountant.
Individuals with a CNMI-issued retiree investor permit
CNMI retiree investors should submit the following with their applications for E-2 CNMI Investor status:
• Proof that the foreign applicant has an interest in property in the CNMI, such as a lease agreement;
• Proof of the value of that property, such as an appraisal; and
• Proof of any improvements to the property, which could include receipts or invoices of the costs of construction, the amount paid for a preexisting structure, or an appraisal of improvements.
Q25. When can individuals apply for E-2 CNMI Investor status?
A25. Petitions for E-2 CNMI Investor status may be filed on Jan. 18, 2011. Any petitions received prior to Jan. 18, 2011 will be rejected. E-2 CNMI investors may apply for changes of status to any other nonimmigrant or immigrant visa classifications for which they may qualify anytime during the transition period.
Q26. What is the final date that initial petitions will be accepted for the E-2 CNMI Investor visa?
A26. The final acceptable filing date for initial E-2 CNMI investor petitions will be Jan. 18, 2013.
Q27. What application must be submitted for the E-2 CNMI Investor visa?
A27. The existing Form I-129, Petitioner for a Nonimmigrant Worker, with Supplement E is the application form used for requesting E-2 CNMI Investor status.
Q28. What is the cost of the application?
A28. The processing fee for Form I-129 is $325. In addition, the biometrics fee for applicants present in the CNMI who are applying for an initial grant of status is $85.
Q29. Where should I file the application?
A29. Most U.S. immigration applications, including the Form I-129, are filed by mail. Detailed instructions for each form, including the address to which the application should be sent, are found on-line at www.uscis.gov/forms. All E-2C petitions are filed with the California Service Center at: P.O. Box 10698, Laguna Niguel, CA 92607-1098. All courier/express deliveries should be forwarded to 24000 Avila Road, 2nd Floor, Room 2312, Laguna Niguel, CA 92677.
You must be present in the CNMI or outside the United States at the time your application is filed with USCIS. If you are outside the United States upon approval, you will need to obtain an E-2 CNMI Investor nonimmigrant visa at a United States Embassy or consulate abroad to be admitted to the CNMI as an E-2 CNMI Investor.
Q30. Is a fee waiver available?
A30. Yes, the final rule allows the applicant to file for a fee waiver. If you wish to apply for a fee waiver, you must complete and submit a Form I-912, Request for Fee Waiver with the Form I-129 petition.
Q31. Why does the rule permit a fee waiver for an “investor” who would have to make a relatively significant monetary investment to qualify for the visa?
A31. Waiver of the fee for filing Form I-129 is normally not permitted. However, USCIS is allowing a waiver limited to investors under this rule in the CNMI due to the current adverse economic conditions there and because of the retirees and proprietors of small businesses included in this new nonimmigrant category. The fee waiver provision is limited to those who show inability to pay. USCIS understands that some CNMI E-2 Investor eligible retiree investors may have invested the majority of their savings in their investment residences, may be living on fixed incomes, and may qualify for waivers.
Applicants in the CNMI who are applying for an initial grant of status must also submit the biometric service fee. This fee is waivable for inability to pay under current USCIS regulations.
Q32. What can I do if my application is denied?
A32. As with other adjudications of Form I-129, the denial of an E-2 CNMI investor application may be appealed to the USCIS Administrative Appeals Office for a review.
Q33. Does immigration status extend to dependents of E-2 CNMI Investors?
A33. The rule allows dependents of the principal E-2 CNMI Investor to accompany or follow-to-join the principal investor, irrespective of the nationality of these dependents. To qualify for this status, the spouse and children must be otherwise admissible to the United States under the INA. As outlined below, to obtain this status, a dependent living in the CNMI must submit a Form I-539, Application to Extend/Change Status.
Q34. How does a dependent (a spouse or child) obtain derivative E-2 CNMI Investor status?
A34. If a dependent is living in the CNMI, he or she must submit a Form I-539, Application to Extend/Change Status. The fee for this form is $290, plus the biometric fee of $85 if requesting an initial grant of status in the CNMI. Fee waivers are available for inability to pay. If abroad, the spouse and/or child should not file the Form I-539 but each dependent needs to apply for an E-2 CNMI visa at the appropriate U.S. embassy or consulate.
Q35. For how long is the E-2 CNMI Investor visa valid?
A35. The initial admission period is two years. Upon approval of their application(s) for derivative status, the spouse and minor children accompanying or following-to-join an E-2 CNMI investor would be admitted for the same period that the principal investor is in valid E-2 CNMI Investor status.
Q36. What happens to dependents if an E-2 CNMI Investor temporarily departs from the CNMI?
A36. The derivative status of the dependent spouse and children would not be affected, provided that the familial relationship continues to exist and the principal remains eligible for admission as an E-2 CNMI investor.
Q37. How will work authorizations be handled?
A37. All E-2 CNMI Investor principal and spousal employment authorization is limited to employment in the CNMI. Certain investors and their spouses will be eligible to work in the CNMI:
• The E-2 CNMI Investor is authorized to work for a specific employer determined by the long-term investor status under CNMI law on which the grant of E-2 CNMI Investor status is based.
• The spouse of an E-2 CNMI Investor may request employment authorization after he or she lawfully obtains E-2 CNMI Investor status and lawfully enters the CNMI. Spouses of E-2 CNMI Investors who initially had CNMI Retiree Investor Certificates are not authorized to seek employment authorization.
• Work authorization is not permitted for children of E-2 CNMI investors.
• Neither E-2 CNMI Investors with status under a retiree investment permit nor their spouses are work-authorized. Entering the CNMI as a “retiree” is inconsistent with obtaining employment.
The E-2 CNMI Investor principal’s work authorization is employer-specific incident to the E-2 CNMI Investor status, so the principal does not need to apply for an Employment Authorization Document. The investor’s passport and Form I-94 showing E-2 CNMI Investor status are acceptable forms of documentation to complete the Employment Eligibility Verification, Form I-9, when commencing any new employment authorized under that status. A spouse must apply for an EAD, using Form I-765, in order to be granted employment authorization. If granted an EAD, the spouse may use it as evidence of identity and work authorization for Form I-9 purposes with any employer in the CNMI.
Q38. What happens if an individual changes employers without filing with USCIS?
A38. An unauthorized change of employment to a new employer could cause the individual to lose lawful status.
Q39. May E-2 CNMI Investors apply for extensions?
A39. Yes. An individual may apply for an extension before the status expires. An individual with E-2 CNMI Investor status may apply for an extension until the end of the transition period.
Q40. What will be required for an extension of stay?
A40. To apply for an extension of stay, an E-2 CNMI investor must file a new Form I-129 and Supplement E with the required evidence and fee.
Q41. Does this visa allow an E-2 CNMI Investor to travel elsewhere in the United States?
A41. No. E-2 CNMI Investor status for long-term CNMI investors is a “CNMI-only nonimmigrant” status, and does not exist within the United States as a whole. It does not authorize entry to Guam or to any other part of the United States. However, it does not bar travel if the investor is otherwise authorized and admissible to the United States in another status.
Q42. What would happen if an E-2 CNMI Investor traveled to another part of the United States solely based up the CNMI-only E-2 visa?
A42. Travel or attempted travel from the CNMI to another part of the United States without the appropriate visa or other authorization is a violation of the E-2 CNMI Investor status. If an individual fails to comply with the conditions of the E-2 CNMI Investor status, he or she would be deportable from the CNMI or any other U.S. location.
Q43. Could an E-2 CNMI Investor travel outside the United States and then return to the CNMI?
A43. Yes, the final rule allows for travel outside the U.S. However, individuals who are present in the CNMI under a CNMI-only nonimmigrant status who depart and desire to return in the same status must obtain a visa from the U.S. Department of State in order to be readmitted to the CNMI. Therefore, if an E-2 CNMI Investor obtained his or her status from USCIS in the CNMI, he or she would need to obtain an E-2 CNMI Investor visa from a U.S. Embassy or Consulate in order to be readmitted to the CNMI, regardless of nationality. USCIS approval of E-2 CNMI Investor status provides status while present in the CNMI, but does not eliminate the requirement of a visa for admission to the CNMI.
Q44. What is the process for obtaining a visa overseas?
A44. Once USCIS approves a petition for E-2 CNMI Investor classification, the investor should apply for an E-2 CNMI Investor visa at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence.
Q45. How many public comments were received in this rule making and were they taken into account?
A45. USCIS received 13 comments. DHS and USCIS reviewed and considered each comment that was submitted. In one of the most significant changes resulting from public comments, the final rule reduced the minimum investment of a CNMI Long-Term Business Entry Permit holder with a CNMI Long-Term Business Certificate to $50,000 from the $150,000 threshold in the proposed rule. USCIS also clarified the manner in which E-2 CNMI Investor status will be granted directly in the CNMI using appropriate waiver authority under the INA, without requiring investors to travel abroad to obtain a visa in order to be admitted in E-2 Investor status. All comments received are posted without change to http://www.regulations.gov, as part of the final rule.
Monday, December 20, 2010 12:00AM
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(USCIS) — U.S. Citizenship and Immigration Services posted a final rule in the Federal Register that creates a nonimmigrant investor visa classification in the CNMI.
The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014 and is intended to help with the transition to U.S. immigration law in the CNMI.
This final rule implements one of the CNMI-specific provisions of the Consolidated Natural Resources Act of 2008, which extends the immigration laws of the United States to the CNMI.
Background
The Consolidated Natural Resources Act of 2008, Public Law 110-229 was signed into law on May 8, 2008. Title VII of this law extends the immigration laws of the United States to the CNMI. One provision of the CNRA authorizes the Secretary of Homeland Security to classify, during the transition period, an foreign investor in the CNMI as an E-2 nonimmigrant investor. This transition period formally began on Nov. 28, 2009 and is set to end on Dec. 31, 2014. Accordingly, USCIS’s rule allows foreign long-term investors to reside in the CNMI through December 2014 in CNMI E-2 nonimmigrant investor status. This rule temporarily resolves the immigration status of long-term investors in the CNMI and provides them time in which to obtain another lawful immigration status under the provisions of the Immigration and Nationality Act. As with other immigration benefits, individuals must apply for E-2 CNMI Investor status.
Q1. Why did USCIS create this rule?
A1. As required by the CNRA, this final rule enables long-term foreign investors in the CNMI to apply for status as CNMI-only E-2 nonimmigrant investors. USCIS created this transitional regulatory provision because of the unique nature of CNMI investors who are not otherwise immediately eligible to obtain U.S. immigrant or nonimmigrant visa classifications.
Q2. What is the CNMI-only E-2 nonimmigrant investor status?
A2. The rule establishes a transitional status that does not exist anywhere else in the United States to temporarily resolve the immigration status of long-term investors in the CNMI by allowing foreign long-term investors to obtain status to reside in the CNMI through December 2014.
Q3. Why is this category temporary?
A3. The CNRA only provided for this status during the transition period. The E-2 CNMI Investor status is intended to help with the transition to U.S. immigration law in the CNMI. These investors are required to obtain another U.S. immigrant or nonimmigrant visa classifications by the end of the transition period, or Dec. 31, 2014.
Q4. What forms of work authorization are investors currently using in the CNMI?
A4. Since the transition period began on Nov. 28, 2009, most investors are continuing to work under CNMI-issued “umbrella permits” or other CNMI work authorization permits issued prior to that date. These permits are valid until Nov. 27, 2011, or their date of expiration, whichever is sooner.
Q5. What are the existing foreign investor requirements under the INA?
A5. Under U.S. immigration law, foreign investors may enter the United States as nonimmigrants within the treaty investor classification with an E-2 visa or may change to E-2 treaty investor nonimmigrant status from within the United States.
To qualify for E-2 treaty investor status, treaty investors must:
• Invest a substantial amount of capital in a bona fide enterprise in the United States;
• Seek entry solely to develop and direct the enterprise;
• Enter the United States according to treaty provisions;
• Be nationals of a country with which the United States has a treaty of friendship, commerce, or navigation; and
• Intend to depart the United States when their treaty investor status ends.
Q6. What happens at the end of the transition period?
A6. At the end of 2014, the transition period will expire and the E-2 CNMI investor status and visa will expire. Therefore, individuals in the CNMI with E-2 CNMI status must depart the CNMI at the end of the transition period or qualify for and obtain another nonimmigrant or immigrant status in order to lawfully remain in the CNMI.
Q7. When does the transition period end?
A7. The transition program will last through Dec. 31, 2014.
Q8. Will any extensions of the transition period, as determined by the Secretary of Labor, affect eligibility for the CNMI-only investor visas?
A8. No. The CNMI-only investor status ends at the end of the transition period. Any extension by the Secretary of Labor will apply only to the CNMI transitional worker category. As mandated by the CNRA, the investor provisions will terminate on Dec. 31, 2014, regardless of whether an extension to the transitional worker provision occurs.
Q9. What nonimmigrant or immigrant statuses can investors in the CNMI apply for?
A9. That will depend upon individual circumstances. Investors who obtain the E-2 CNMI nonimmigrant investor status have until the end of 2014 to adjust or change their status. (Similarly, investors in the CNMI may apply for a nonimmigrant or immigrant status for which they qualify without first obtaining the E-2 CNMI investor status, however, they may not adjust status to a business based immigrant status without first obtaining an INA based nonimmigrant status.) Some examples of nonimmigrant or immigrant status that an E-2 CNMI Investor may be eligible are:
• To qualifying for an L-1A nonimmigrant executive or managerial visa;
• Adjusting status based on the status of family members; or
• Qualifying under other investor or employment-based visas.
Q10. What happens to dependents of CNMI E-2 Investors during the transition period?
A10. During the transition period, dependents (spouses and children) can qualify for dependent status under the CNMI E-2 Investor final rule. Dependents will follow normal procedures with respect to extensions or changes of status for nonimmigrants.
Upon the end of the transition period, spouses and children also will be subject to the same regulations as other immigrants. For example, if the E-2 CNMI Investor qualifies for a change of status to regular E-2 status at the end of the transition period, his or her dependents would have to apply for a change of status as well and qualify under those statutory and regulatory provisions.
Q11. Who qualifies for the CNMI-only "E-2" nonimmigrant investor visa?
A11. To qualify for E-2 CNMI Investor status, the primary applicant must:
• Have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before Nov. 28, 2009;
• Have continuously maintained residence in the CNMI under long-term investor status;
• Currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and
• Otherwise be admissible to the United States under the U.S. Immigration and Nationality Act.
Q12. Which current CNMI investor statuses qualify?
A12. Individuals who were admitted to the CNMI in long-term investor status under CNMI immigration law qualify, specifically:
• A long-term business investor who was issued a long-term business certificate by the CNMI based upon an investment of at least $50,000;
• A foreign investor with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment; and
• A retiree investor over the age of 55 years who was issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI (but not including the two-year non-renewable retiree investor program limited to Japanese nationals).
Q13. How did USCIS decide which categories will qualify under the final rule?
A13. The CNRA refers to admission in “long-term investor” status under the laws of the CNMI when creating the E-2 CNMI Investor status. Only CNMI categories that mandated a fixed minimum threshold amount of investment and are renewable over a period of multiple years (long-term) were considered to be “long-term investor” statuses for this rule, namely the three categories listed above (long-term business investor, foreign investor, and retiree foreign investor).
Q14. How many people are currently in these three CNMI long-term investor categories?
A14. USCIS estimates that there are approximately 500 foreign-registered investors in the CNMI long-term investor categories.
Q15. Which CNMI Investor categories are not eligible for E-2 CNMI Investor status under the rule?
A15. Other investors, including the following, are not eligible for this E-2 visa under the final rule:
• The sub-category of the retiree investor specifically limited to Japanese retirees;
• Short-term business entry permits; and
• Regular-term business entry permits.
Q16. Why is the sub-category of the retiree investor specifically limited to Japanese retirees not eligible for E-2 investor status?
A16. The rule does not consider this category eligible, as these individuals do not classify as “long-term investors.” The CNMI permit for the two-year program for Japanese retirees is nonrenewable and only requires monthly rental payments rather than long-term investment.
Q17. What can these Japanese retirees do once their permit expires?
A17. By Nov. 27, 2011, or the expiration of the Japanese retiree investor’s CNMI-issued permit (whichever occurs first), the individual must depart the CNMI unless he or she applies for and is eligible to remain in the CNMI under another lawful status.
Q18. Why are individuals with short-term and regular-term business entry permits not eligible for E-2 investor status?
A18. Foreign nationals lawfully admitted under the CNMI short-term business entry permit or the regular-term business entry permit categories are not eligible because these permits are not long-term and they do not require investments.
Q19. If individuals with short-term and regular-term business entry permits are not eligible for an E-2 CNMI Investor visa, what can they do?
A19. Individuals with short-term and regular-term business entry permits will not be eligible to obtain the E-2 CNMI Investor visa and therefore must depart the CNMI at the expiration of their CNMI issued status or Nov. 27, 2011, whichever occurs first OR apply for and obtain another immigrant or nonimmigrant classification under the INA that permits them to remain in the CNMI.
Q20. Will foreigners who had pending CNMI Investor applications on Nov. 28, 2009, be eligible for the new E-2 CNMI Investor status?
A20. Foreign nationals who were not admitted as eligible CNMI investors prior to the beginning of the transition period are not eligible for classification as E-2 CNMI nonimmigrant investors. Therefore, individuals who had investor applications pending with the CNMI as of the transition program effective date are not eligible for E-2 CNMI Investor status.
Q21. Is an individual with an approved investor application eligible for E-2 CNMI Investor status?
A21. An individual who was not admitted as an eligible CNMI investor prior to Nov. 28, 2009, is not eligible for classification as E-2 CNMI nonimmigrant investor. Therefore, an individual who has an approved investor application but was not admitted to the CNMI as of the transition program effective date is not eligible for E-2 CNMI Investor status.
Q22. What does the E-2 CNMI Investor visa requirement “continuous maintenance of residence” mean? What if an investor travels regularly outside CNMI?
A22. “Continuous maintenance of residence in the CNMI” means residence in the CNMI from the date that an individual obtained his or her CNMI status through the date on which USCIS grants the new E-2 CNMI Investor status. This is not the same as continuous physical presence; therefore, an investor does not need to remain in the CNMI for the entire period in order to have maintained continuous residence. The rule provides, however, that an investor must be physically present in the CNMI for at least half the time for which continuous residence is required. Additionally, an individual will not maintain continuous residence if he or she leaves the CNMI for more than one year or leaves the CNMI for more than six months and cannot demonstrate that he or she did not abandon his or her residence by this absence.
Q23. Can an investor lose his or her status?
A23. Yes, an investor could lose immigration status if he or she does not maintain the investment(s) that formed the basis for admission. To establish that an investor is maintaining the investment or investments that formed the basis for admission to the CNMI, the rule requires each applicant to provide specific evidence demonstrating that the investor is in compliance with the terms upon which the CNMI investor certificate was issued. Additionally, as previously mentioned, an investor can lose immigration status is he or she does not maintain continuous residence in the CNMI.
Q24. What evidence must an applicant for E-2 CNMI Investor provide?
A24. All documentation previously submitted in each investor application to the CNMI government should be submitted as part of each E-2 CNMI petition to USCIS.
All individuals must provide the following evidence of lawful admission to the CNMI:
• A valid unexpired foreign passport; and
• A properly endorsed CNMI admission document (e.g., entry permit, entry certificate or foreign investor visa) with a period of validity that includes Nov. 28, 2009.
Individuals with a CNMI-issued foreign investor entry permit or long-term business entry permit
An applicant with a CNMI-issued foreign investor entry permit or long-term business entry permit must submit evidence to show that he or she has maintained his or her investment with the E-2 CNMI Investor application. This evidence could include:
• An approval letter issued by the CNMI government;
• Evidence that capital has been invested, such as bank statements, receipts or contracts for assets purchased, stock purchase transaction records, loan or other borrowing agreements, land leases, financial statements, business gross tax receipts, or other agreements supporting the application;
• Evidence that the applicant has invested at least the minimum amount required, such as evidence of assets purchased or 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 secured by assets of the applicant;
• A comprehensive business plan for new enterprises;
• Articles of incorporation, by-laws, partnership agreements, joint venture agreements, corporate minutes and annual reports, affidavits, declarations or certifications of paid-in capital;
• Current business licenses;
• Foreign business registration records, recent tax returns of any kind, evidence of other sources of capital;
• A listing of all resident and nonresident employees;
• A listing of all holders of business certificates for the business establishment; or
• A listing of all corporations in which the applicant has a controlling interest.
For the holder of a certificate of foreign investment, copies of annual reports of investment activities in the CNMI showing that the certificate holder is under continuing compliance with the standards required. Each report must be accompanied by an annual financial audit report performed by an independent certified public accountant.
Individuals with a CNMI-issued retiree investor permit
CNMI retiree investors should submit the following with their applications for E-2 CNMI Investor status:
• Proof that the foreign applicant has an interest in property in the CNMI, such as a lease agreement;
• Proof of the value of that property, such as an appraisal; and
• Proof of any improvements to the property, which could include receipts or invoices of the costs of construction, the amount paid for a preexisting structure, or an appraisal of improvements.
Q25. When can individuals apply for E-2 CNMI Investor status?
A25. Petitions for E-2 CNMI Investor status may be filed on Jan. 18, 2011. Any petitions received prior to Jan. 18, 2011 will be rejected. E-2 CNMI investors may apply for changes of status to any other nonimmigrant or immigrant visa classifications for which they may qualify anytime during the transition period.
Q26. What is the final date that initial petitions will be accepted for the E-2 CNMI Investor visa?
A26. The final acceptable filing date for initial E-2 CNMI investor petitions will be Jan. 18, 2013.
Q27. What application must be submitted for the E-2 CNMI Investor visa?
A27. The existing Form I-129, Petitioner for a Nonimmigrant Worker, with Supplement E is the application form used for requesting E-2 CNMI Investor status.
Q28. What is the cost of the application?
A28. The processing fee for Form I-129 is $325. In addition, the biometrics fee for applicants present in the CNMI who are applying for an initial grant of status is $85.
Q29. Where should I file the application?
A29. Most U.S. immigration applications, including the Form I-129, are filed by mail. Detailed instructions for each form, including the address to which the application should be sent, are found on-line at www.uscis.gov/forms. All E-2C petitions are filed with the California Service Center at: P.O. Box 10698, Laguna Niguel, CA 92607-1098. All courier/express deliveries should be forwarded to 24000 Avila Road, 2nd Floor, Room 2312, Laguna Niguel, CA 92677.
You must be present in the CNMI or outside the United States at the time your application is filed with USCIS. If you are outside the United States upon approval, you will need to obtain an E-2 CNMI Investor nonimmigrant visa at a United States Embassy or consulate abroad to be admitted to the CNMI as an E-2 CNMI Investor.
Q30. Is a fee waiver available?
A30. Yes, the final rule allows the applicant to file for a fee waiver. If you wish to apply for a fee waiver, you must complete and submit a Form I-912, Request for Fee Waiver with the Form I-129 petition.
Q31. Why does the rule permit a fee waiver for an “investor” who would have to make a relatively significant monetary investment to qualify for the visa?
A31. Waiver of the fee for filing Form I-129 is normally not permitted. However, USCIS is allowing a waiver limited to investors under this rule in the CNMI due to the current adverse economic conditions there and because of the retirees and proprietors of small businesses included in this new nonimmigrant category. The fee waiver provision is limited to those who show inability to pay. USCIS understands that some CNMI E-2 Investor eligible retiree investors may have invested the majority of their savings in their investment residences, may be living on fixed incomes, and may qualify for waivers.
Applicants in the CNMI who are applying for an initial grant of status must also submit the biometric service fee. This fee is waivable for inability to pay under current USCIS regulations.
Q32. What can I do if my application is denied?
A32. As with other adjudications of Form I-129, the denial of an E-2 CNMI investor application may be appealed to the USCIS Administrative Appeals Office for a review.
Q33. Does immigration status extend to dependents of E-2 CNMI Investors?
A33. The rule allows dependents of the principal E-2 CNMI Investor to accompany or follow-to-join the principal investor, irrespective of the nationality of these dependents. To qualify for this status, the spouse and children must be otherwise admissible to the United States under the INA. As outlined below, to obtain this status, a dependent living in the CNMI must submit a Form I-539, Application to Extend/Change Status.
Q34. How does a dependent (a spouse or child) obtain derivative E-2 CNMI Investor status?
A34. If a dependent is living in the CNMI, he or she must submit a Form I-539, Application to Extend/Change Status. The fee for this form is $290, plus the biometric fee of $85 if requesting an initial grant of status in the CNMI. Fee waivers are available for inability to pay. If abroad, the spouse and/or child should not file the Form I-539 but each dependent needs to apply for an E-2 CNMI visa at the appropriate U.S. embassy or consulate.
Q35. For how long is the E-2 CNMI Investor visa valid?
A35. The initial admission period is two years. Upon approval of their application(s) for derivative status, the spouse and minor children accompanying or following-to-join an E-2 CNMI investor would be admitted for the same period that the principal investor is in valid E-2 CNMI Investor status.
Q36. What happens to dependents if an E-2 CNMI Investor temporarily departs from the CNMI?
A36. The derivative status of the dependent spouse and children would not be affected, provided that the familial relationship continues to exist and the principal remains eligible for admission as an E-2 CNMI investor.
Q37. How will work authorizations be handled?
A37. All E-2 CNMI Investor principal and spousal employment authorization is limited to employment in the CNMI. Certain investors and their spouses will be eligible to work in the CNMI:
• The E-2 CNMI Investor is authorized to work for a specific employer determined by the long-term investor status under CNMI law on which the grant of E-2 CNMI Investor status is based.
• The spouse of an E-2 CNMI Investor may request employment authorization after he or she lawfully obtains E-2 CNMI Investor status and lawfully enters the CNMI. Spouses of E-2 CNMI Investors who initially had CNMI Retiree Investor Certificates are not authorized to seek employment authorization.
• Work authorization is not permitted for children of E-2 CNMI investors.
• Neither E-2 CNMI Investors with status under a retiree investment permit nor their spouses are work-authorized. Entering the CNMI as a “retiree” is inconsistent with obtaining employment.
The E-2 CNMI Investor principal’s work authorization is employer-specific incident to the E-2 CNMI Investor status, so the principal does not need to apply for an Employment Authorization Document. The investor’s passport and Form I-94 showing E-2 CNMI Investor status are acceptable forms of documentation to complete the Employment Eligibility Verification, Form I-9, when commencing any new employment authorized under that status. A spouse must apply for an EAD, using Form I-765, in order to be granted employment authorization. If granted an EAD, the spouse may use it as evidence of identity and work authorization for Form I-9 purposes with any employer in the CNMI.
Q38. What happens if an individual changes employers without filing with USCIS?
A38. An unauthorized change of employment to a new employer could cause the individual to lose lawful status.
Q39. May E-2 CNMI Investors apply for extensions?
A39. Yes. An individual may apply for an extension before the status expires. An individual with E-2 CNMI Investor status may apply for an extension until the end of the transition period.
Q40. What will be required for an extension of stay?
A40. To apply for an extension of stay, an E-2 CNMI investor must file a new Form I-129 and Supplement E with the required evidence and fee.
Q41. Does this visa allow an E-2 CNMI Investor to travel elsewhere in the United States?
A41. No. E-2 CNMI Investor status for long-term CNMI investors is a “CNMI-only nonimmigrant” status, and does not exist within the United States as a whole. It does not authorize entry to Guam or to any other part of the United States. However, it does not bar travel if the investor is otherwise authorized and admissible to the United States in another status.
Q42. What would happen if an E-2 CNMI Investor traveled to another part of the United States solely based up the CNMI-only E-2 visa?
A42. Travel or attempted travel from the CNMI to another part of the United States without the appropriate visa or other authorization is a violation of the E-2 CNMI Investor status. If an individual fails to comply with the conditions of the E-2 CNMI Investor status, he or she would be deportable from the CNMI or any other U.S. location.
Q43. Could an E-2 CNMI Investor travel outside the United States and then return to the CNMI?
A43. Yes, the final rule allows for travel outside the U.S. However, individuals who are present in the CNMI under a CNMI-only nonimmigrant status who depart and desire to return in the same status must obtain a visa from the U.S. Department of State in order to be readmitted to the CNMI. Therefore, if an E-2 CNMI Investor obtained his or her status from USCIS in the CNMI, he or she would need to obtain an E-2 CNMI Investor visa from a U.S. Embassy or Consulate in order to be readmitted to the CNMI, regardless of nationality. USCIS approval of E-2 CNMI Investor status provides status while present in the CNMI, but does not eliminate the requirement of a visa for admission to the CNMI.
Q44. What is the process for obtaining a visa overseas?
A44. Once USCIS approves a petition for E-2 CNMI Investor classification, the investor should apply for an E-2 CNMI Investor visa at the U.S. Embassy or Consulate with jurisdiction over their place of permanent residence.
Q45. How many public comments were received in this rule making and were they taken into account?
A45. USCIS received 13 comments. DHS and USCIS reviewed and considered each comment that was submitted. In one of the most significant changes resulting from public comments, the final rule reduced the minimum investment of a CNMI Long-Term Business Entry Permit holder with a CNMI Long-Term Business Certificate to $50,000 from the $150,000 threshold in the proposed rule. USCIS also clarified the manner in which E-2 CNMI Investor status will be granted directly in the CNMI using appropriate waiver authority under the INA, without requiring investors to travel abroad to obtain a visa in order to be admitted in E-2 Investor status. All comments received are posted without change to http://www.regulations.gov, as part of the final rule.
Feds Issue Rule for NMI-Only Investor Program
Feds issue rule for NMI-only investor program
Monday, December 20, 2010 12:00AM By Gemma Q. Casas - Reporter
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U.S. Citizenship and Immigration Services on Friday posted a final rule in the Federal Register that creates a nonimmigrant investor visa classification in the CNMI.
The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside on the islands through the end of the federalization transition phase, Dec. 2014.
This visa will be issued for two years, is renewable, and is valid only in the CNMI. The investor’s spouse and children may also apply for status as dependents of the investor.
According to USCIS, individuals who were admitted to the CNMI in long-term investor status under commonwealth immigration law qualify, specifically:
• A long-term business investor who was issued a long-term business certificate by the CNMI based upon an investment of at least $50,000;
• A foreign investor with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment; and
• A retiree investor over the age of 55 years who was issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI (but not including the two-year non-renewable retiree investor program limited to Japanese nationals).
“What you are going to show us is the investment that you’ve made to become an investor. We’re not asking you to show us what investment you’ve made right now but the documentation that enable you to get that investor status,” David Gulick, USCIS Honolulu regional director, said in a media conference on Saturday.
He said CNMI investors with questions on the new E-2 rule should visit the USCIS office on Saipan.
He said he is also scheduled to meet with the Japanese and the Philippine consuls to explain the E-2 rule and other related issues.
“Don’t panic,” the USCIS said. “We’re not in the business of deporting people.”
It is U.S. Immigration and Customs Enforcement that deports aliens that no longer have legal status.
Gulick said a team of immigration experts is coming to Saipan next month to hold public forums and consultation talks with employers, the local government and other groups in the community.
The final regulations for the Commonwealth Worker status remain in the drafting stage, said Gulick.
He earlier said that these regulations should be announced before Nov. 2011, when the CNMI umbrella permits expire.
Monday, December 20, 2010 12:00AM By Gemma Q. Casas - Reporter
E-mail Print
U.S. Citizenship and Immigration Services on Friday posted a final rule in the Federal Register that creates a nonimmigrant investor visa classification in the CNMI.
The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside on the islands through the end of the federalization transition phase, Dec. 2014.
This visa will be issued for two years, is renewable, and is valid only in the CNMI. The investor’s spouse and children may also apply for status as dependents of the investor.
According to USCIS, individuals who were admitted to the CNMI in long-term investor status under commonwealth immigration law qualify, specifically:
• A long-term business investor who was issued a long-term business certificate by the CNMI based upon an investment of at least $50,000;
• A foreign investor with a foreign investment certificate issued by the CNMI based upon an investment of at least $100,000 in an aggregate approved investment in excess of $2 million or at least $250,000 in a single approved investment; and
• A retiree investor over the age of 55 years who was issued a foreign retiree investment certificate based upon a qualifying investment in an approved residence in the CNMI (but not including the two-year non-renewable retiree investor program limited to Japanese nationals).
“What you are going to show us is the investment that you’ve made to become an investor. We’re not asking you to show us what investment you’ve made right now but the documentation that enable you to get that investor status,” David Gulick, USCIS Honolulu regional director, said in a media conference on Saturday.
He said CNMI investors with questions on the new E-2 rule should visit the USCIS office on Saipan.
He said he is also scheduled to meet with the Japanese and the Philippine consuls to explain the E-2 rule and other related issues.
“Don’t panic,” the USCIS said. “We’re not in the business of deporting people.”
It is U.S. Immigration and Customs Enforcement that deports aliens that no longer have legal status.
Gulick said a team of immigration experts is coming to Saipan next month to hold public forums and consultation talks with employers, the local government and other groups in the community.
The final regulations for the Commonwealth Worker status remain in the drafting stage, said Gulick.
He earlier said that these regulations should be announced before Nov. 2011, when the CNMI umbrella permits expire.
Monday, March 15, 2010
Local
Tuesday, March 16, 2010
Fitial hits USCIS; issues own Q&A
AG: CNMI may revoke aliens' immigration status
By Haidee V. Eugenio
Reporter
Gov. Benigno R. Fitial and Lt. Gov. Eloy S. Inos said yesterday that the answers provided by the U.S. Citizenship and Immigration Services on federalization and the extent to which CNMI laws continue to be enforced during the two-year transition period following Nov. 28, 2009 “are not consistent” with the provision of the Consolidated Natural Resources Act.
Attorney General Edward T. Buckingham also issued yesterday a legal opinion stating that the CNRA does not expressly preempt the CNMI from administering and revoking Commonwealth immigration status of aliens during the two-year transition period.
“Indeed, it would be illogical and unjust to allow aliens to remain in the CNMI for up to two years by virtue of their Commonwealth status without a mechanism for administering that status,” Buckingham said in his eight-page legal opinion.
Fitial and Inos pointed out that USCIS has not issued final regulations with respect to foreign workers or foreign investors in the CNMI.
“Instead, USCIS has issued a questions and answers document setting forth their policy views with respect to matters they believe might be subject to federal regulations,” said Fitial and Inos.
USCIS is one of the component agencies of the U.S. Department of Homeland Security.
The Fitial administration's statement came after U.S. Interior Assistant Secretary Tony Babauta defended Federal Ombudsman Pamela Brown's statements at a forum where she stated, among other things, that the CNMI Department of Labor lost its authority to revoke umbrella permits when the federalization law took effect on Nov. 28, 2009.
USCIS also issued this weekend a guidance memorandum that supports Brown's statements on umbrella permits and alien employment issues.
The Fitial administration said the employment of aliens in the CNMI under the CNRA is a shared responsibility of the federal and CNMI governments.
USCIS earlier said this is now a matter of federal law.
Fitial and Inos issued yesterday their own question-and-answers similar to the format issued by USCIS during the weekend, so that the differences between the federal government and the CNMI on federalization issues can be easily understood.
“In addition, many Commonwealth employers already have approved employment contracts in place with the foreign workers they employ. All of these employment arrangements must be honored and cannot be disturbed by federal officials,” they said.
The administration said the preemption provision in the CNRA does not preempt the labor laws of the Commonwealth-broadly defined as those laws regulating the terms of employment between employers and employees, including those specific provisions relating to the employment of foreign workers such as the provision for medical expenses-that do not conflict with any provisions of federal law.
“In short, CNMI can and will exercise the same powers with respect to its workforce as are exercised by the states. The views of the Commonwealth on this preemption issue are set forth more fully in the opinion of the CNMI Attorney General dated March 15, 2010,” Fitial and Inos said.
'Inconsistent'
Fitial and Inos said holders of umbrella permits may not work “for any private employer in the CNMI until Nov. 27, 2011” as asserted by USCIS.
“This is inconsistent with the provisions of CNMI law under which the permits were issued and agreed to by the worker, student, investor, or other recipient of such a permit. In the case of a foreign worker, for example, who received an umbrella permit under category 240K, the worker is required to return to the CNMI Department of Labor in the event that he or she is no longer employed, for whatever reason, and seek permission to pursue other employment within a limited period of time,” they said.
USCIS earlier said in the case of the category 240K Foreign National Worker Permit, aliens are authorized to work for any private sector employer in the CNMI until Nov. 27, 2011.
The Fitial administration said investors are not permitted to work for any private employer, and may work only in the establishment in which they have invested.
It said students may not work for any private employer, but may work only part-time and in accordance with the limitations set out in Commonwealth law and regulations.
'No conflict'
Buckingham said there is no actual conflict between the CNRA and the CNMI's administration and revocation of Commonwealth immigration status during the transition period.
First, it is possible for the CNMI to administer and revoke Commonwealth immigration status without violating the CNRA because the CNRA preserves Commonwealth status, which is dependent on compliance with Commonwealth law, during the transition period.
Second, CNMI administration and revocation of Commonwealth immigration status during the transition period would not be an obstacle to the CNRA's purposes and objectives.
This, according to the attorney general, is because: (1) border security would not be adversely affected; (2) the Commonwealth's foreign national worker program would be phased-out in an orderly manner; (3) federal immigration responsibilities would be phased-in in an orderly manner; (4) potential adverse economic and fiscal effects of phasing-out the Commonwealth's foreign national worker program would be minimized by the orderly transition; and (5) the Commonwealth's potential for future economic and business growth would be maximized by the orderly transition.
Deputy Labor Secretary Jacinta M. Kaipat said earlier that the names of some 300 foreigners are ready to be referred “soon” to the U.S. Immigration and Customs Enforcement for deportation, while some 200 umbrella permits issued to foreigners have so far been revoked.
Tuesday, March 16, 2010
Fitial hits USCIS; issues own Q&A
AG: CNMI may revoke aliens' immigration status
By Haidee V. Eugenio
Reporter
Gov. Benigno R. Fitial and Lt. Gov. Eloy S. Inos said yesterday that the answers provided by the U.S. Citizenship and Immigration Services on federalization and the extent to which CNMI laws continue to be enforced during the two-year transition period following Nov. 28, 2009 “are not consistent” with the provision of the Consolidated Natural Resources Act.
Attorney General Edward T. Buckingham also issued yesterday a legal opinion stating that the CNRA does not expressly preempt the CNMI from administering and revoking Commonwealth immigration status of aliens during the two-year transition period.
“Indeed, it would be illogical and unjust to allow aliens to remain in the CNMI for up to two years by virtue of their Commonwealth status without a mechanism for administering that status,” Buckingham said in his eight-page legal opinion.
Fitial and Inos pointed out that USCIS has not issued final regulations with respect to foreign workers or foreign investors in the CNMI.
“Instead, USCIS has issued a questions and answers document setting forth their policy views with respect to matters they believe might be subject to federal regulations,” said Fitial and Inos.
USCIS is one of the component agencies of the U.S. Department of Homeland Security.
The Fitial administration's statement came after U.S. Interior Assistant Secretary Tony Babauta defended Federal Ombudsman Pamela Brown's statements at a forum where she stated, among other things, that the CNMI Department of Labor lost its authority to revoke umbrella permits when the federalization law took effect on Nov. 28, 2009.
USCIS also issued this weekend a guidance memorandum that supports Brown's statements on umbrella permits and alien employment issues.
The Fitial administration said the employment of aliens in the CNMI under the CNRA is a shared responsibility of the federal and CNMI governments.
USCIS earlier said this is now a matter of federal law.
Fitial and Inos issued yesterday their own question-and-answers similar to the format issued by USCIS during the weekend, so that the differences between the federal government and the CNMI on federalization issues can be easily understood.
“In addition, many Commonwealth employers already have approved employment contracts in place with the foreign workers they employ. All of these employment arrangements must be honored and cannot be disturbed by federal officials,” they said.
The administration said the preemption provision in the CNRA does not preempt the labor laws of the Commonwealth-broadly defined as those laws regulating the terms of employment between employers and employees, including those specific provisions relating to the employment of foreign workers such as the provision for medical expenses-that do not conflict with any provisions of federal law.
“In short, CNMI can and will exercise the same powers with respect to its workforce as are exercised by the states. The views of the Commonwealth on this preemption issue are set forth more fully in the opinion of the CNMI Attorney General dated March 15, 2010,” Fitial and Inos said.
'Inconsistent'
Fitial and Inos said holders of umbrella permits may not work “for any private employer in the CNMI until Nov. 27, 2011” as asserted by USCIS.
“This is inconsistent with the provisions of CNMI law under which the permits were issued and agreed to by the worker, student, investor, or other recipient of such a permit. In the case of a foreign worker, for example, who received an umbrella permit under category 240K, the worker is required to return to the CNMI Department of Labor in the event that he or she is no longer employed, for whatever reason, and seek permission to pursue other employment within a limited period of time,” they said.
USCIS earlier said in the case of the category 240K Foreign National Worker Permit, aliens are authorized to work for any private sector employer in the CNMI until Nov. 27, 2011.
The Fitial administration said investors are not permitted to work for any private employer, and may work only in the establishment in which they have invested.
It said students may not work for any private employer, but may work only part-time and in accordance with the limitations set out in Commonwealth law and regulations.
'No conflict'
Buckingham said there is no actual conflict between the CNRA and the CNMI's administration and revocation of Commonwealth immigration status during the transition period.
First, it is possible for the CNMI to administer and revoke Commonwealth immigration status without violating the CNRA because the CNRA preserves Commonwealth status, which is dependent on compliance with Commonwealth law, during the transition period.
Second, CNMI administration and revocation of Commonwealth immigration status during the transition period would not be an obstacle to the CNRA's purposes and objectives.
This, according to the attorney general, is because: (1) border security would not be adversely affected; (2) the Commonwealth's foreign national worker program would be phased-out in an orderly manner; (3) federal immigration responsibilities would be phased-in in an orderly manner; (4) potential adverse economic and fiscal effects of phasing-out the Commonwealth's foreign national worker program would be minimized by the orderly transition; and (5) the Commonwealth's potential for future economic and business growth would be maximized by the orderly transition.
Deputy Labor Secretary Jacinta M. Kaipat said earlier that the names of some 300 foreigners are ready to be referred “soon” to the U.S. Immigration and Customs Enforcement for deportation, while some 200 umbrella permits issued to foreigners have so far been revoked.
Wednesday, December 9, 2009
Local
Thursday, December 10, 2009
USCIS seeks new comments on transitional worker rules
By Haidee V. Eugenio
Reporter
The U.S. Citizenship and Immigration Services has reopened the comment period for the interim final rule on the CNMI Transitional Worker Classification, giving a bit of reprieve to a community still grappling with changes brought by the federal takeover of CNMI immigration since Nov. 28.
The additional 30-day comment period will close on Jan. 7, 2010.
USCIS is one of the component agencies of the U.S. Department of Homeland Security, the lead agency implementing Public Law 110-229 or the federalization law.
The rule will be re-published in the Dec. 10 Federal Register.
“To provide the public and the CNMI with optimum opportunity to comment on the proposed transitional worker classification provisions, USCIS is reopening the comment period for an additional 30 days. USCIS will consider comments received during the entire public comment period in its development of the final rule,” USCIS said yesterday.
Some 100 comments, mostly from foreign workers in the CNMI, were received during the initial 30-day comment period.
Easy conversion mechanism
Steve Woodruff, who has been representing hundreds of nonresident workers in the CNMI, said yesterday that reopening the comment period is “the best way to satisfy the Administrative Procedures Act requirements, to give people enough time to comment on the regulations, before coming up with the final rule.”
Woodruff, a former Senate legal counsel, said his comment will focus more on technical aspects of the rule.
“DHS had said it prefers very specific comments,” he said.
But Woodruff said DHS should have a mechanism that allows for “easy conversion” of existing CNMI nonresident workers to CW-1 status.
“They should be able to obtain that new status just by presenting their CNMI permit,” he said, adding that DHS has taken other right steps, including providing parole and advance parole options.
Transitional worker
DHS is establishing a Transitional Worker Visa category, a new nonimmigrant visa classification under the Immigration and Nationality Act using the admission code CW-1 for the principal transitional worker and CW-2 for dependents. “CW” stands for “Commonwealth transitional worker.”
A “transitional worker” is defined as an alien worker who is currently ineligible for another classification under Immigration and Nationality Act and who performs services or labor for an employer in the CNMI.
The CNMI-Only Transitional Worker Program will be available to two groups of nonresidents: those who are lawfully present in the CNMI and those who are abroad.
Under the CNMI-Only Transitional Worker program, employers may file a petition for a transitional worker with USCIS using Form I-129CW, Petition for a Nonimmigrant Worker in the CNMI.
The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker program.
The fee for Form I-129CW would be $320, the same amount charged for the I-129, and an $80 biometrics fee.
In addition, the Consolidated Natural Resources Act mandates a “CNMI education funding fee” of $150 per beneficiary per year, which cannot be waived.
Helpful
Jim Arenovski, president of the Saipan Chamber of Commerce, said although it does not look like DHS is changing anything in the rules at this point, providing additional time to get more input is “helpful.”
“However, we will need to check and verify that nothing has been changed. If nothing is changed, I would not see any reason for the Chamber to make additional comments,” he said.
Arenovski, who is also president of Delta Management Corp.-Saipan, was among those who submitted comments on the interim final rule.
In his seven-page comment as Chamber president, Arenovski offered an alternative solution to structure the mandated reduction in CNMI-only transitional workers: the creation of a “federally-administered CNMI-only H-2 visa program exempt from the numerical limitations applied in the United States.”
He said this solution would be “effective and efficient.” He said such a program would be otherwise largely identical to the existing federal H-2 visa program, but would “not” allow exit from the CNMI to Guam or other areas of the United States.
When asked for comment yesterday, Arenovski said he welcomes the reopening of the public comment period.
“It is welcomed because the more input DHS has about how these rules negatively (or the remote positive comment) affect individuals and businesses, the more they should push the regulations toward the intent of the law, which is not to harm the economy of the NMI. We hope more comments will help DHS see the need for a flexible program that meets their security needs and allows us the workforce (including long term access to foreign labor) to grow our economy,” he said.
Improved status
Ronnie Doca, board chair of the United Workers Movement-NMI, said the additional comment period will also give DHS more time to consider their request of giving improved status, like “green cards,” to long-time nonresident workers in the CNMI.
Doca, who is also the board chair of the Pilipino Contract Workers Association, said they will continue encouraging workers to submit comments to DHS.
“We may go from house to house for written comments,” he said.
Workers' groups, along with Florida-based human rights advocate Wendy Doromal, have been circulating a signature drive petitioning President Obama, the U.S. Congress and other federal agencies to grant “green cards” to long-term foreign workers in the CNMI.
Many of the comments submitted to DHS' interim final rule were from foreign workers and their U.S. citizen children.
Preliminary injunction
The interim final rule was initially published on Oct. 27 and intended to become effective on Nov. 27.
However, on Nov. 25, U.S. District Court for the District of Columbia Judge Paul L. Friedman issued a preliminary injunction to prevent DHS from implementing the rule until it considers public comments and issues a final rule.
Friedman is the judge handling the CNMI government's lawsuit against federalization.
As a result of the judge's ruling, DHS has not implemented the transitional worker rule and USCIS has not accepted any petitions for a CNMI transitional worker, or CW-1, Nonimmigrant, Form I-129CW, until further notice.
The injunction did not affect any aspect of the CNRA's application of federal immigration laws other than the transitional worker nonimmigrant category. U.S. Customs and Border Protection took over immigration processing at airports on Nov. 28.
In his ruling, Friedman said DHS had no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedures Act.
To help alien workers leave and re-enter the CNMI or for employers to hire needed off-island workers, Friedman suggested that DHS promulgate a narrowly focused and temporary emergency regulation that addresses these issues.
DHS's USCIS decided instead to reopen and extend by 30 days the comment period.
Quick link
Janna M. Evans, USCIS regional lead for community outreach, reminded the public yesterday about the DHS website's quick link for the CNMI page, www.uscis.gov/cnmi.
Evans called on stakeholders to circulate the quick link to their coworkers, clients, friends, family and constituencies.
“It is the central repository for everything USCIS is doing to implement the CNRA in CNMI and we will continue to post useful information on this site. I am currently working to have our PowerPoint training materials posted there,” she said.
Thursday, December 10, 2009
USCIS seeks new comments on transitional worker rules
By Haidee V. Eugenio
Reporter
The U.S. Citizenship and Immigration Services has reopened the comment period for the interim final rule on the CNMI Transitional Worker Classification, giving a bit of reprieve to a community still grappling with changes brought by the federal takeover of CNMI immigration since Nov. 28.
The additional 30-day comment period will close on Jan. 7, 2010.
USCIS is one of the component agencies of the U.S. Department of Homeland Security, the lead agency implementing Public Law 110-229 or the federalization law.
The rule will be re-published in the Dec. 10 Federal Register.
“To provide the public and the CNMI with optimum opportunity to comment on the proposed transitional worker classification provisions, USCIS is reopening the comment period for an additional 30 days. USCIS will consider comments received during the entire public comment period in its development of the final rule,” USCIS said yesterday.
Some 100 comments, mostly from foreign workers in the CNMI, were received during the initial 30-day comment period.
Easy conversion mechanism
Steve Woodruff, who has been representing hundreds of nonresident workers in the CNMI, said yesterday that reopening the comment period is “the best way to satisfy the Administrative Procedures Act requirements, to give people enough time to comment on the regulations, before coming up with the final rule.”
Woodruff, a former Senate legal counsel, said his comment will focus more on technical aspects of the rule.
“DHS had said it prefers very specific comments,” he said.
But Woodruff said DHS should have a mechanism that allows for “easy conversion” of existing CNMI nonresident workers to CW-1 status.
“They should be able to obtain that new status just by presenting their CNMI permit,” he said, adding that DHS has taken other right steps, including providing parole and advance parole options.
Transitional worker
DHS is establishing a Transitional Worker Visa category, a new nonimmigrant visa classification under the Immigration and Nationality Act using the admission code CW-1 for the principal transitional worker and CW-2 for dependents. “CW” stands for “Commonwealth transitional worker.”
A “transitional worker” is defined as an alien worker who is currently ineligible for another classification under Immigration and Nationality Act and who performs services or labor for an employer in the CNMI.
The CNMI-Only Transitional Worker Program will be available to two groups of nonresidents: those who are lawfully present in the CNMI and those who are abroad.
Under the CNMI-Only Transitional Worker program, employers may file a petition for a transitional worker with USCIS using Form I-129CW, Petition for a Nonimmigrant Worker in the CNMI.
The Form I-29CW is a modified form of the Form I-29, but it is specifically used for the Commonwealth-only Transitional Worker program.
The fee for Form I-129CW would be $320, the same amount charged for the I-129, and an $80 biometrics fee.
In addition, the Consolidated Natural Resources Act mandates a “CNMI education funding fee” of $150 per beneficiary per year, which cannot be waived.
Helpful
Jim Arenovski, president of the Saipan Chamber of Commerce, said although it does not look like DHS is changing anything in the rules at this point, providing additional time to get more input is “helpful.”
“However, we will need to check and verify that nothing has been changed. If nothing is changed, I would not see any reason for the Chamber to make additional comments,” he said.
Arenovski, who is also president of Delta Management Corp.-Saipan, was among those who submitted comments on the interim final rule.
In his seven-page comment as Chamber president, Arenovski offered an alternative solution to structure the mandated reduction in CNMI-only transitional workers: the creation of a “federally-administered CNMI-only H-2 visa program exempt from the numerical limitations applied in the United States.”
He said this solution would be “effective and efficient.” He said such a program would be otherwise largely identical to the existing federal H-2 visa program, but would “not” allow exit from the CNMI to Guam or other areas of the United States.
When asked for comment yesterday, Arenovski said he welcomes the reopening of the public comment period.
“It is welcomed because the more input DHS has about how these rules negatively (or the remote positive comment) affect individuals and businesses, the more they should push the regulations toward the intent of the law, which is not to harm the economy of the NMI. We hope more comments will help DHS see the need for a flexible program that meets their security needs and allows us the workforce (including long term access to foreign labor) to grow our economy,” he said.
Improved status
Ronnie Doca, board chair of the United Workers Movement-NMI, said the additional comment period will also give DHS more time to consider their request of giving improved status, like “green cards,” to long-time nonresident workers in the CNMI.
Doca, who is also the board chair of the Pilipino Contract Workers Association, said they will continue encouraging workers to submit comments to DHS.
“We may go from house to house for written comments,” he said.
Workers' groups, along with Florida-based human rights advocate Wendy Doromal, have been circulating a signature drive petitioning President Obama, the U.S. Congress and other federal agencies to grant “green cards” to long-term foreign workers in the CNMI.
Many of the comments submitted to DHS' interim final rule were from foreign workers and their U.S. citizen children.
Preliminary injunction
The interim final rule was initially published on Oct. 27 and intended to become effective on Nov. 27.
However, on Nov. 25, U.S. District Court for the District of Columbia Judge Paul L. Friedman issued a preliminary injunction to prevent DHS from implementing the rule until it considers public comments and issues a final rule.
Friedman is the judge handling the CNMI government's lawsuit against federalization.
As a result of the judge's ruling, DHS has not implemented the transitional worker rule and USCIS has not accepted any petitions for a CNMI transitional worker, or CW-1, Nonimmigrant, Form I-129CW, until further notice.
The injunction did not affect any aspect of the CNRA's application of federal immigration laws other than the transitional worker nonimmigrant category. U.S. Customs and Border Protection took over immigration processing at airports on Nov. 28.
In his ruling, Friedman said DHS had no reasonable basis for publishing the interim rule without giving the CNMI and other stakeholders time to comment, as required under the Administrative Procedures Act.
To help alien workers leave and re-enter the CNMI or for employers to hire needed off-island workers, Friedman suggested that DHS promulgate a narrowly focused and temporary emergency regulation that addresses these issues.
DHS's USCIS decided instead to reopen and extend by 30 days the comment period.
Quick link
Janna M. Evans, USCIS regional lead for community outreach, reminded the public yesterday about the DHS website's quick link for the CNMI page, www.uscis.gov/cnmi.
Evans called on stakeholders to circulate the quick link to their coworkers, clients, friends, family and constituencies.
“It is the central repository for everything USCIS is doing to implement the CNRA in CNMI and we will continue to post useful information on this site. I am currently working to have our PowerPoint training materials posted there,” she said.
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