Department Of Justice Has Published Proposed Rules On The Registration And Monitoring Of Certain Nonimmigrants
On June 13, 2002, the Department of Justice ("DOJ") published its proposed rules on the registration and monitoring of certain nonimmigrants. The rules appear in Volume 67, Number 114 of the Federal Register, pages 40581 through 40586.
The rules do not apply to nonimmigrants applying for admission to the United States under sections 101(a)(15)(A) (ambassadors, diplomats, etc.) or 101(a)(15)(G) (representatives or employees of international organizations) of the Immigration and Nationality Act ("INA").
The proposed rules will apply to nonimmigrant foreign nationals from selected countries that will be specified in notices published in the Federal Register, as well as to individual nonimmigrant foreign nationals who are designated by a consular officer outside the United States or an inspection officer at a port of entry based on information that indicates a need for closer monitoring of his or her compliance with the terms of his or her visa. Currently, nonimmigrants from Iran, Iraq, Libya and Sudan are subject to special fingerprinting requirements. 63 FR 39109 (July 21, 1998).
LEGAL AUTHORITY FOR REGISTRATION
INA § 262(a) provides that "all aliens who have not previously been registered and fingerprinted, pursuant to INA § 221(b), have a duty to apply for registration and to be fingerprinted if they remain in the United States for 30 days or longer. As authorized by INA § 262(c), however, the Immigration and Naturalization Service’s ("INS") existing regulations at 8 C.F.R. § 264.1(e) contain general provisions waiving the fingerprinting requirement for many nonimmigrants. Accordingly, most nonimmigrant foreign nationals who enter the United States are admitted without either be fingerprinted or photographed.
In addition to the general registration requirements of § 262, INA § 263(a) also authorizes the Attorney General to prescribe special regulations and forms for the registration of "aliens or any other class not lawfully admitted to the United States for permanent residence." Therefore, pursuant to this section, as well as the Attorney General’s general registration authority, the Attorney General promulgated 8 C.F.R. § 264.1(f), which authorizes the Attorney General, through notice published in the Federal Register, to direct that certain nonimmigrants from designated foreign countries to be registered, fingerprinted and photographed by the INS at the port of entry at the time of admission.
Aside from the above-mentioned provisions, INA §§ 214 and 215 prescribe conditions for the admission and departure of nonimmigrant foreign nationals, respectively. Furthermore, INA § 265 requires that all foreign nationals who remain in the United States for 30 days or more (other than diplomats and international organization employees) to file a notice of change of address with the Attorney General within 10 days of any such change. The legal obligation to notify the Attorney General, as delegated to the Service, within 10 days of any change of address by filing a Form AR-11 applies to all foreign nationals (not just those subject to special registration).
FORM OF REGISTRATION
Under the proposed rules, those individuals subject to special registration must be fingerprinted and photographed and will be required to provide additional information on a required form. This information may include: name, passport country of issuance and number, a second form of identification (such as driver’s license), date of birth, country of birth, nationality and citizenship, height, weight, color of hair and eyes, address of residence in the United States and in country of origin, telephone numbers both in the United States and in the country of origin, dates of birth for both parents, points of contact in country of origin, name and address of school or employer in the United States and if applicable in country of origin, intended activities in the United States and any e-mail addresses.
Should these individuals remain in the United States beyond thirty days, they will have to report to a designated office of the INS. They must do so before their fortieth day in the United States. At this point, they will be required to provide additional photo I.D., proof of tenancy at listed residential address (i.e. a lease), proof of enrollment at school or other authorized educational institution (if applicable), and/or proof of employment (i.e. letter from employer and pay stubs) (if applicable).
Individuals who hold visas that permit to remain in the United States beyond one year are required to report and register with the INS at 12-month intervals. In the meanwhile, however, any change of address or other "material condition" must be reported to the INS. The change of address, as stated above, must be reported within 10 days of such change, and applies to all foreign national nonimmigrants in the United States.
Lastly, under the proposed rule, nonimmigrant foreign nationals subject to special registration must report their actual departure from the United States through inspection by an existing departure control officer. The authority to require a foreign national to appear before a departure officer is not new, but has been sparingly used in the past. Under the proposed rule, departure will be confirmed by actual presentation by those subject to registration. The departure notification will then be confirmed by reference to other records such as actual electronic flight manifests provided by airline carriers.
The rules authorize the INS to restrict ports of departure as facilities are developed. Accordingly, those foreign nationals subject to the special registration rules will be advised of available ports of departure as they initially register. Furthermore, the INS will be authorized to prohibit those individuals from exiting at ports of entry that lack departure control officers and facilities. To ensure that those subject to these rules will comply with the departure requirement, substantial penalties will ensue if someone fails to notify the INS of their departure. In fact, an individual who fails to register their departure will be presumed to be inadmissible to the United States under INA § 212(a)(3)(A)(ii).
PENALTIES FOR FAILURE TO REGISTER OR COMPLY WITH CONDITIONS OF ADMISSION
As these proposed rules are deemed to be an exercise of the Attorney General’s authority under INA §§ 214, 215, 262, 263, and 265, each registration required by the proposed rule is considered a registration under INA §§ 262 and 263. The INA provides that a willful failure to register, or to make a false statement on the registration is punishable under INA §§ 266(a) and (c), respectively, by a fine of up to $1,000 or by imprisonment of up to six months. Providing false statements would also subject the individual subject to special registration, upon conviction, to detention and removal from the United States.
Furthermore, for those individuals who fail to provide a change of address or other information, as required, INA § 266(b) imposes a fine of up to $200 and imprisonment for up to thirty days. Additionally, the Attorney General may remove nonimmigrant foreign nationals who fail to comply with the requirements of INA § 265 (providing updated address), even if those individuals have not been subject to criminal prosecution. Lastly, individuals subject to the special registration requirements who fail to register with the INS at the 30-day mark will be deemed to have violated the conditions on their admission. Consequently, they will be subject to removal under INA § 237(a)(1)(C)(i).
WHO IS SUBJECT TO THE SPECIAL REGISTRATION RULES?
As stated above, currently nonimmigrant nationals of Iran, Iraq, Libya and Sudan are subject to fingerprinting requirements. 63 FR 39109 (July 21, 1998). They will be subject to the new special registration requirements, as well.
In addition, the Attorney General will designate approximately 33 countries whose nationals will be subject to special registration. As stated above, these countries will be listed in the Federal Register. Though the list has not been published yet, it is acknowledged that it will include Middle Eastern and other Muslim countries, or countries with significant Muslim populations. Lastly, the rules provide for supplemental registration at the port of entry for any nonimmigrant whom the inspecting official has "reason to believe presents a national security or law enforcement risk, including the risk that the alien may violate the terms of his visa or exceed his authorized period of stay." Although the DOJ notice indicates that the determination "will be made according to specific criteria established by the Attorney General, in light of the observations and experience of the inspecting officers," no other specific information regarding the criteria has been provided.
Moreover, the Attorney General may require natives or citizens of a designated country who are already present in the United States to register. In the event that the Attorney General determines that it is necessary to register these individuals, he will publish a notice in the Federal Register describing the individuals who will be required to appear at an INS office for registration. The Attorney General’s notice will describe the class of nonimmigrants and the locations at which such registration may occur.
The proposed rules have generated a great deal of concern, particularly among civil liberties organizations for their intrusive nature and among Arab American organizations for the patent racial profiling.
Those wishing to comment on these rules must do so by July 15, 2002. Written comments must be sent to: Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington D.C. 20536. Please reference INS No. 2216-02 on your correspondence to ensure proper handling. Comments may also be submitted electronically to the INS at email@example.com. When submitting comments electronically, please include INS No. 2216-02 in the subject heading.
About The Author
Parastou Hassouri is an associate attorney at the Law Offices of Cyrus D. Mehta. She received her J.D. from the University of Pittsburgh School of Law in 1999. Prior to joining the firm, she served as a Judicial Law Clerk with the Executive Office for Immigration Review, New York City Immigration Court.
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