Since the attacks of 9/11, the INS has come under fire for its failure to monitor the whereabouts and activities of foreign nationals in the United States. Consequently, in an effort to counter the finger pointing and criticism, the INS has stepped up its efforts in this regard. One issue that has been the topic of frequent discussion has been the requirement that all "aliens," including those who are here as lawful permanent residents (i.e. Green Card holders) inform the INS of any change of address. Several recent news stories have brought this matter to national attention. For instance, recently a Palestinian man who was stopped for a routine traffic check (he was driving four miles over the speed limit), was placed in deportation proceedings for failing to report an address change to the INS1.
Since the United State is a mobile society, with people frequently moving for various reasons, for example to pursue better job opportunities, the obligation to report one’s address change to the government can seem onerous and even counterintuitive. However, this obligation is not a new, post-9/11 duty, but one that has been on the books and applies to all non-citizens. Section 265(a) of the Immigration and Nationality Act ("INA") states: "each alien required to be registered under this title who is within the United States shall notify the Attorney General in writing of each change of address and new address within ten days from the date of such change and furnish with such notice such additional information as the Attorney General might require by regulation." The failure to comply with the provisions of INA § 265 is deportable, "unless the alien establishes to the satisfaction of the Attorney General that such failure was reasonably excusable or was not willful." INA § 237(a)(3)(A).
By its own admission, the INS has rarely enforced this provision. However, the provision has been used against many individuals since the attacks of 9/11. Furthermore, the Department of Justice recently published a notice2 in the Federal Register on a proposed rule that would require every alien applying for immigration benefits to acknowledge the following: (a) that he or she is required to provide a valid current address to the INS, including any change of address within 10 days of the change; (b) that the INS will use the most recent address provided by the alien for all purposes, including the service of a Notice to Appear if the INS initiates removal proceedings; (c) that if the alien has changed his or her address and failed to provide it to the INS, he or she will be held responsible for any communications sent to the most recent address provided by the alien.
The most dramatic effect of this proposed rule will be to prevent those aliens placed in removal proceedings who have been ordered deported for failing to appear at a hearing from reopening their hearing for lack of notice. Currently, an alien who can show that he or she did not receive notice of his or her hearing may file a motion to reopen at any time to rescind an in absentia order of removal. INA § 240(b)(5)(C)(ii); See also Matter of G-Y-R, 23 I& N Dec. 181 (BIA 2001) (holding that when an alien fails to appear at removal proceedings for which notice of hearing was served by mail, an in absentia order may only be entered where the alien has received or, can be charged with receiving, a Notice to Appear (Form I-862) informing the alien of the statutory address obligations associated with removal proceedings and of the consequences of failure to provide a current address, pursuant to INA § 239(a)(1)(F)).
The new proposed rule would essentially relieve the INS of its obligation to insure that aliens receive notice of removal hearings not only by shifting, onto the alien, the responsibility of keeping the INS informed of his or her whereabouts, but also by then preventing the alien from ever raising a "lack of notice" defense in response to an in absentia order of removal.
Written comments on this proposed rule must be submitted on or before August 26, 2002 to: Director, Regulations and Forms Services Division (HQRFS), Immigration and Naturalization Service, 425 I Street NW, Room 4034, Washington DC, 20536.
In light of the foregoing, it is highly advisable for all foreign nationals in the United States—all individuals holding temporary visas as well as Green Card holders—to comply with this provision, by completing Form AR-11, which can be downloaded off the INS web site: Click here for AR-11
The following is a summary of some important points having to do with Form AR-11:
YOU MUST COMPLETE FORM AR-11 IF:
· You are in the United States on a nonimmigrant visa (ex: B, F-1, H-1B, L-1A).
· You are currently in deportation or removal proceedings.
· You have been admitted as a lawful permanent resident (i.e. hold a Green Card).
· You hold a Green Card and have applied for naturalization, but your naturalization application is still pending.
· NOTE: each family member must complete a separate Form AR-11, however if your children were born in the United States, as U.S. citizens, they are not obligated to file the form.
STATUS IN THE UNITED STATES
· Individuals in the U.S. on visas other than Visitor (B) or Student (F-1), must check the box for "other" and insert their status, e.g. H-1B, L-1A, TN.
· Individuals who have applied for adjustment of status in the U.S. (i.e. filed form I-485), can enter "AOS." NOTE: once Form I-485 is filed, your status is "AOS" regardless of whether your nonimmigrant visa is still valid or expired.
YOU HAVE AN A-NUMBER IF:
· If you hold a Green Card—the number appears on it.
· You have applied for adjustment of status. The A number is noted on the I-485 receipt notice.
· Some individuals in J-1 status may have an A number, as the older IAP-66 forms listed an A number.
· You have been placed in deportation and removal proceedings. The number is on the Order to Show Cause (OSC) or Notice to Appear (NTA), or on any Notice of Hearing received from the Immigration Court.
EXPIRATION OF STAY
· If you are in the U.S. on a nonimmigrant visa, generally, you must insert the date on your I-94 as the date that your stay expires (typically, this should be the same date as that on an approval notice if you are, for instance, an H-1B visa holder).
· If you are in the U.S. on an F-1 or J-1, frequently, the I-94 is marked with D/S, Duration of Stay. You can enter D/S.
· If your I-485 is pending and your H-1B visa expires, then you can simply enter "AOS applicant."
PORT AND DATE OF ENTRY
· The port of entry is the name of the city in which you last entered the United States (the initials for the city are on the I-94 card), or in some instances the place you were inspected by U.S. INS officials.
· The date of entry is the date stamped on your most recent I-94 card. If you are a permanent resident, your passport should have an admission stamp—that is the date of your last entry into the U.S.
One last question that remains is this: since the law requires that aliens inform the INS of a change of address within ten days of such change, do individuals who report a change of address beyond the ten day period (in some cases maybe even months after moving) run the risk of being placed in proceedings? It is not clear whether the INS will penalize individuals who are late in reporting an address change, though it seems like it would be an extremely inefficient use of their resources. In addition, the late filing may be excused on grounds that it was not willful. INA § 237(a)(3)(A). The INS generally does not accept ignorance of the law as an excuse for failure to comply with it. However, an exception might be made, as many non-immigrants and permanent residents have been unaware of this requirement. In fact, the only time that an alien is explicitly reminded to notify the government of a change in address is during deportation or removal proceedings, when Immigration Judges point out this requirement.
In light of the current conditions, it is advisable for all non-citizens to comply with this provision, and inform the INS of a change of address.
1. This story appeared in the July 10, 2002 issue of The Atlanta Journal and Constitution.
2. Published in 67 FR 144 (July 26, 2002), also posted on AILA InfoNet at Doc. No. 02072604 (July 26, 2002).