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Registration Requirements for Aliens in the United States

Written by Henry J. Chang

Background

In the USA Patriot Act, Congress mandated the development of an entry-exit system. The first phase of the National Security Entry-Exit Registration System ("NSEERS") was implemented by the former Immigration and Naturalization Service ("Legacy INS") at selected ports of entry on September 11, 2002.

In addition to requiring the fingerprinting of higher-risk visiting aliens at the port of entry, the NSEERS program requires the same individuals to periodically confirm where they are living and what they are doing in the United States, as well as to confirm their exit from the country through designated ports of entry. These special registration procedures apply only to nationals and citizens of certain designated countries.

In addition to special registration procedures, the INS is also enforcing a previously-existing requirement that all aliens in the United States notify the INS of a change of address within 10 days. These general registration procedures apply to all aliens, with only limited exceptions.

Both general and and special registration procedures are discussed below.

General Registration Requirements

Who Must Register

According to INA §261, no visa shall be issued to any alien seeking to enter the United States until such alien has been registered in accordance with INA §221(b). Therefore, any alien applying for a visa must be registered.

In addition, according to INA §262:

  1. Every alien in the United States, who (1) is fourteen years of age or older, (2) has not been registered and fingerprinted under INA §221(b) or section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States for thirty days or longer, must apply for registration and to be fingerprinted before the expiration of such thirty days.
  2. Every parent or legal guardian of any alien in the United States, who (1) is less than fourteen years of age, (2) has not been registered under INA §221(b) or section 30 or 31 of the Alien Registration Act, 1940, and (3) remains in the United States for thirty days or longer, must apply for the registration of such alien before the expiration of such thirty days. Whenever any alien attains his fourteenth birthday in the United States he shall, within thirty days thereafter, apply in person for registration and to be fingerprinted.

INA §262 covers all aliens, except visa-exempt nonimmigrants (such as Canadian citizens entering as B-1 or B-2 nonimmigrants) who are in the U.S. for fewer than 30 days. INA §263 also exempts diplomats (A status) and official government representatives to an international organization (G status).

Under the existing regulations at 8 CFR §264.1(a), the INS registers entering nonimmigrants using Form I-94 (Arrival-Departure Record). Therefore, aliens who are issued Form I-94 are not required to be registered again unless their address changes subsequent to the issuance of Form I-94.

Although the language of INA §262 suggests that all aliens must also be fingerprinted, it also contains general provisions that authorize the Attorney General to waive the fingerprinting requirement. The INS is currently not requiring fingerprinting for aliens in the United States, except those subject to special registration requirements, which are discussed below.

Notifying the INS of a Change of Address

All aliens changing their address must send a completed Form AR-11 to the following address:

Immigration and Naturalization Service
Change of Address
P.O. Box 7134
London, KY 40742-7134

For commercial overnight or fast freight services, only:

Immigration and Naturalization Service
Change of Address
1084-I South Laurel Road
London, KY 40744

According to the INS website, the INS recommends additional notifications for those aliens who are also applicants for benefits. An applicant for naturalization may comply with the law by filing a Form AR-11 AND telephoning the National Customer Service Center (800-375-5283) to advise that office of the change of address. Applicants and petitioners for any other benefits should file a Form AR-11 AND notify in writing the local office processing their case of any change of address.

It is not necessary to include include temporary addresses as long as the alien maintains his or her present address as a permanent residence and continues to receive mail there. When sending a change of address, it is not necessary to include numerous previous addresses; only the most recent last address is needed. Aliens should also indicate in the appropriate block on Form AR-11 current employment and school, where applicable.

Special Registration Requirements for Certain Nonimmigrants

General

As stated above, under the new special registration procedures, certain nonimmigrant aliens from designated foreign countries must now be registered, fingerprinted, and photographed. They must also provide notice of any changes of address and register their departure from the United States by leaving through designated ports of entry. The procedures are applicable to nonimmigrants only; they do not apply to persons who have lawful permanent residence in the United States.

Special registration applies to any alien who is a national or citizen of a designated country. However, it does not apply to diplomats (A status), official government representatives to an international organization (G status), aliens who are lawfully admitted to the United States for permanent residence, or aliens who been granted asylum under INA §208.

Initially, if any alien subject to special registration (call-in or port-of-entry) remained in the United States for 1 year or more, he or she had to report again to an INS office each and every year. The alien had to do so in person no later than 10 calendar days from the anniversary of the date on which he or she last entered the United States. In addition, aliens subject to special registration at the port-of-entry had to be interviewed at an INS office if remaining in the United States for more than 30 days (between the 30th calendar day after entry up to the 40th day). However, the Department of Homeland Security ("DHS") announced at the beginning of December, 2003 that it was suspending the requirement of:

  1. Annual re-registration applicable to all registrants; and
  2. The 30/40-day follow-up interviews applicable to port-of-entry registrants.

Unfortunately, all other special registration requirements continue to apply.

Aliens subject to special registration must also notify the INS of any changes of address, employment or school within 10 calendar days from the time the change occurs. These changes are submitted on Form AR-11, using the same procedure followed in the general registration procedures discussed above.

Aliens subject to special registration who depart from the United States on or after October 1, 2002, are required to report their departure from the United States by appearing before an INS inspecting officer at a designated port of entry on the same day that they leave. Aliens will be given a list of airports, seaports, and overland exit ports that are designated for this purpose.

Port of Entry Registration

The list of nationalities subject to call-in registration (see below) is broader than the list of nationalities subject to port-of-entry special registration. According to 8 CFR §264.1(f)(2), port-of-entry special registration applies only to:

  1. Citizens or nationals of a country designated by the Attorney General, in consultation with the Secretary of State, by a notice in the Federal Register (currently Iran, Iraq, Libya, Sudan and Syria);
  2. Nonimmigrant aliens who a consular officer or an inspecting officer has reason to believe are nationals or citizens of a country designated by the Attorney General, in consultation with the Secretary of State, by a notice in the Federal Register; and
  3. Nonimmigrant aliens who meet pre-existing criteria, or who a consular officer or the inspecting officer has reason to believe meet pre-existing criteria, determined by the Attorney General or the Secretary of State to indicate that such alien's presence in the United States warrants monitoring.

A Legacy INS Memo dated September 30, 2002, from from Johnny N. Williams, Executive Associate Commissioner, Office of Field Operations, to all Regional and Service Center Directors (the "Williams Memo") stated that special registration would also be applied to males between 16 and 45 years of age who were applying for admission as, and were citizens or nationals of Pakistan, Saudi Arabia, or Yemen. However, special registration only applied in these cases if the nonimmigrant alien presented himself for admission as a citizen or national of one of these three countries.

As stated above, in addition to the above nationalities, port-of-entry special registration may be applied to any nonimmigrant alien who meets certain pre-existing criteria. The Williams Memo states that, in determining whether to exercise his or her discretion to require a nonimmigrant alien to comply with the special registration requirements of 8 CFR §264.1(f), the inspecting officer may only consider the following pre-existing criteria established by the Attorney General:

  1. The alien made trips to Iran, Iraq, Libya, Sudan, Syria, North Korea, Cuba, Saudi Arabia, Afghanistan, Yemen, Egypt, Somalia, Pakistan, Indonesia, or Malaysia that lack a credible explanation;
  2. The alien engaged in other travel not well explained by a job or other legitimate circumstances;
  3. The alien has previously overstayed a nonimmigrant visa, so that monitoring is now appropriate in the interest of national security;
  4. The alien meets characteristics established by current intelligence updates and advisories;
  5. The alien is identified by local, state or federal law as requiring monitoring in the interest of national security;
  6. The alien's behavior, demeanor, or answers indicate that the alien should be monitored in the interest of national security; or
  7. The alien provides information that causes the immigration officer to reasonably determine that the individual requires monitoring it the interest of national security.

Call-In Registration

Special registration procedures also apply to aliens of the above designated countries who entered the United States without being registered, prior to the implementation of NSEERS (September 10, 2002). The Call-in registration procedures applied to citizens or nationals of: Iran, Iraq, Libya, Sudan, Syria, Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen, Pakistan, Saudi Arabia, Bangladesh, Egypt, Indonesia, Jordan, and Kuwait. Registration deadlines vary depending upon the country of citizenship or nationality:

Group 1 - Citizens and Nationals of Iran, Iraq, Libya, Sudan and Syria - Citizens and nationals of the above countries who are:

  1. Males born on or before November 15, 1986; and
  2. Who entered United States on or before September 10, 2002;
  3. did not apply for asylum on or before November 6, 2002, and
  4. Who will remain in the United States at least until December 16, 2002

must register at a designated INS Office between November 15, 2002 and December 16, 2002.

Group 2 - Citizens of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen - Citizens and nationals of the above countries who are:

  1. Males born on or before December 2, 1986; and
  2. Who entered United States on or before September 30, 2002;
  3. Did not apply for asylum on or before November 22, 2002, and
  4. Who will remain in the United States at least until January 10, 2003
must register at a designated INS Office between December 2, 2002 and January 10, 2003.

Group 3 - Citizens of Pakistan and Saudi Arabia - As a result of a notice published on December 16, 2002, citizens and nationals of the above countries who are:
  1. Males born on or before January 13, 1987;
  2. Who entered United States on or before September 30, 2002;
  3. Did not apply for asylum on or before the date of publication of the notice (not yet determined), and
  4. Who will remain in the United States at least until February 21, 2003
will also be required to register at a designated INS Office between January 13, 2003 and March 21, 2003 (the deadline was originally February 21, 2003 but was extended).

Armenia was originally included in the notice also. However, the Department of Justice republished the notice on December 18, 2002, omitting Armenia from the list of countries subject to special registration.

Group 4 - Citizens of Bangladesh, Egypt, Indonesia, Jordan, and Kuwait - As a result of a notice published on January 16, 2003, citizens and nationals of these countries who are:

  • Males born on or before February 24, 1987;

  • Who entered the United States on or before September 30, 2002;

  • Who will remain in the United States after March 28, 2003;

  • Did not apply for asylum on or before January 16, 2003, and
  • Who will remain in the United States at least until April 25, 2003
  • will be required to register at a designated INS Office between February 24, 2003, and April 25, 2003 (the deadline was originally March 28, 2003, but was extended).

    Applicability to Canadian Citizens

    Initially, Canadian citizens who were born in one of the above countries were automatically subjected to special registration requirements. However, after the Canadian Government expressed concerns over this practice, the Department of Justice stated that place of birth, by itself, will not automatically trigger registration and that Legacy INS had instructed immigration inspectors at U.S. ports of entry accordingly. Unfortunately, it did not say what would trigger registration.

    The Federal Register notices that implemented call-in special registration procedures for aliens already in the United States clearly indicate that they apply to any alien who is a national or citizen of a designated country, notwithstanding any dual nationality or citizenship. It appears as though a Canadian citizen who is also a national or citizen of one of the designated countries is still subject to call-in special registration, although port-of-entry special registration will not be automatic.

    Since citizenship or nationality is determined by the laws of the country granting such status, every alien born in one of the designated countries should refer to the law of their country of birth to assess whether they are still considered a citizen or national of that country. If the answer is yes, the alien is subject to special registration. If the answer is no, the alien should obtain evidence of this fact if he or she is ever accused of failure to register.

    Penalties for Failure to Comply

    Willful Failure to Register

    According to INA §266(a), any alien required to apply for registration and to be fingerprinted in the United States who willfully fails or refuses to make such application or to be fingerprinted, and any parent or legal guardian required to apply for the registration of any alien who willfully fails or refuses to file application for the registration of such alien shall be guilty of a misdemeanor and shall, upon conviction thereof, be fined not to exceed $1,000 or be imprisoned not more than six months, or both.

    Willful Failure to Give Notice of Change of Address

    According to INA §266(b), a willful failure to give written notice to INS of a change of address within 10 days of the change is a misdemeanor. If convicted, the alien (or parent or legal guardian of an alien under age 14 who is required to give notice) can be fined up to $200 or imprisoned up to 30 days, or both. The alien may also be taken into custody and subject to removal from the United States, unless such alien establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful.

    Compliance with the requirement to notify INS of any address changes is also a condition of an alien's stay in the United States. Failure to comply could also jeopardize the alienís ability to obtain a future visa or other immigration benefit.

    Failure to Record Departure

    According to 8 CFR §264.1(f)(8), any nonimmigrant alien subject to special registration who: fails, without good cause, to be examined by an inspecting officer at the time of his or her departure, and to have his or her departure confirmed and recorded by the inspecting officer, shall thereafter be presumed to be inadmissible under, but not limited to, INA §212(a)(3)(A)(ii) as an alien whom the Attorney General has reasonable grounds to believe, based on the alien's past failure to conform with the requirements for special registration, seeks to enter the United States to engage in unlawful activity. An alien may overcome this presumption by making a showing that he or she satisfies conditions set by the Attorney General and the Secretary of State.

    Fraudulent Statements

    According to INA §266(c), any alien or any parent or legal guardian of any alien, who files an application for registration containing statements known by him to be false, or who procures or attempts to procure registration of himself or another person through fraud, shall be guilty of a misdemeanor and can be fined up to $1,000, or be imprisoned for up to six months, or both. Any alien so convicted is also subject to removal.

    Counterfeiting

    According to INA §266(d), any person who with unlawful intent photographs, prints, or in any other manner makes, or executes, any engraving, photograph, print, or impression in the likeness of any certificate of alien registration or an alien registration or an alien registration receipt card or any colorable imitation thereof, except when and as authorized by the Attorney General, shall upon conviction be fined up to $5,000 or be imprisoned for up to five years, or both.

    Failure to Have Proof of Registration

    Failure to have the registration receipt card or certificate in personal possession is a misdemeanor, punishable by $100 fine or 30 days imprisonment, or both.
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