Special Registration And Marriage Based Adjustment: How Can My Husband Register Under NSEERS?
A young couple comes to you for a consultation. They dated for two years and recently married. The wife is a U.S. citizen and wants to submit an I-130 petition on behalf of her husband. The husband, a Yemeni national, wishes to simultaneously file his I-485 Application to Adjust Status. The husband is now out of status, having overstayed a student visa. He was born in 1982 and came to the U.S. to study in August 2001. When he came to this country, his only interaction with the Yemeni community was through his father, a green card holder. Otherwise, he studied and interacted with a diverse group of American men, all in their late teens and early twenties, none of whom were up-to-date on current events other than the latest developments in their fantasy football league. As such, this young man never heard anything about Special Registration and therefore did not know that male Yemeni citizens born on or before December 2, 1986 and inspected and admitted to the United States on or before September 30, 2002 were required to register with the legacy INS in early 2003. 67 Fed. Reg. 70525-28; 68 Fed. Reg. 2366-2367.This man now wants to adjust status based on his bona fide marriage to a U.S. citizen. Unfortunately, his failure to register under NSEERS is keeping him from adjusting.
The above scenario comes up frequently in immigration practice. Certain nonimmigrant men from designated countries  were required to register under the National Security Entry-Exit Registration System (NSEERS) in late 2002 and early 2003. 8 C.F.R. § 264.1. Many of these non-immigrant men failed to go for initial registration at the appointed “call in” times. There are many reasons why they may have failed to register. For example, they may have been unaware of NSEERS and would have had no way of knowing about it because nobody they knew was subject to the requirements. This is what happened in the above scenario. Or, perhaps they did not register because their mobility was restricted (i.e. they were hospitalized or in an extended care facility). Or, they simply did not register because they were out of status and were afraid of the consequences of registration. Regardless of the reason for not registering, one who failed to register at the designated time and now seeks to register so that he can be in compliance with the law faces the challenge of finding a means to register so that he can also avoid being removable.
Failure to comply with registration is an indication that the alien is removable for having failed to maintain status under INA §237(a)(1)(C)(i) unless he/she can show that “the failure was reasonably excusable or was not willful.” 67 Fed. Reg. 6766. See also Williams, Ex. Assoc. Comm. Field Operations, Memo, HQ/INS 70/28 (Nov. 21, 2002).  In the past, an attorney meeting the couple described above, would first see why the young man did not register. If the attorney believed that the failure to register was reasonably excusable and not willful, the attorney would send the individual to register with the local Immigration and Customs Enforcement (ICE) Office, prior to filing his adjustment application. The problem with this approach, however, was that very few local ICE Offices accommodated late registration. Individuals either needed to go in during the designated “call in” times, or they were out of luck. For this reason, many attorneys would advise the client to go ahead and file his adjustment application without first registering. Then, at the time of the interview, the attorney would first argue that the applicant’s failure to register was reasonably excusable and not willful. The attorney would then request of the Officer to set a special appointment for the applicant so that he could register. This strategy, while not perfect, often worked.
Unfortunately, this option is no longer available to men who failed to register and now seek to adjust status based on their marriage to a U.S. Citizen. The National Benefits Center (NBC) now requires proof of registration when initially filing the I-485 application. In the past, such proof did not need to be submitted until the adjustment interview. At that time, evidence could be submitted that the failure was not willful and was reasonably excusable, and a personal request could be made for a registration appointment with ICE. Now, however, the NBC will not process the application without such evidence and will immediately issue a Request for Evidence (RFE), asking the applicant to provide evidence that he registered.
This has left both applicants and attorneys confused about how to proceed. How can an applicant get a registration appointment prior to filing the I-485? If the application has been filed, how can he register in time to respond to the RFE? Should he go to the local ICE office and attempt to get registered? If that is unsuccessful and he is unable to register in time to respond to the RFE, will his application be denied? I have come to learn from my own experience and the experience of other attorneys that efforts to register an applicant at ICE either before he files his adjustment application or after it has been filed are largely unsuccessful. ICE agents refuse to register individuals if they do not have their A Files on hand. This results in the applicant, who is attempting to be in compliance with the law, to spend countless hours trying to get the District USCIS Office or the NBC to transfer his file to ICE.
I raised this issue at the October 11, 2005 New York Chapter Meeting for the American Immigration Lawyers Association (AILA). Mr. Robert Cowan, Director of the National Benefits Center, was the speaker that evening. I asked him if the NBC has coordinated with ICE to have files transferred so that aliens whose failure to register was excusable and not willful can still register. Mr. Cowan indicated that at that point, no such coordination had been made. He said that he was aware that this was a problem, however, and it would be addressed.
I also raised this issue with ICE agents at the Newark Office. There, the ICE agents indicated that there has been little coordination between the two entities. They stated that they have been inundated with men trying to register. ICE is unable to accommodate them because they do not have their A Files on hand. Further, the ICE agents in Newark have stated that they will not request the file from the NBC. It is the onus of the applicant and his attorney to determine how to have the file transferred. This is fruitless, however, because the NBC and the District Office will not transfer a file based on an attorney or applicant request. The request must come from a government entity.
So what are applicants and attorneys to do? They seem to be on a wild goose chase. If applicants are unable to register, then their applications to adjust status will be denied, and they will be precluded from adjusting status based on their marriages to U.S. Citizens.
One approach has come to bear that seems to work, although not all of the time. The best way to have a person register is to first file his adjustment application. Soon afterwards, he will receive the standard RFE that is sent to those who have not provided proof of NSEERS compliance. Rather than wasting time and going to the local ICE office to have the man register prior to responding to the RFE, the attorney instead should submit an immediate response to the NBC. The response should provide evidence of why the applicant’s failure to register was not willful and was reasonably excusable. The attorney should then indicate that the man in question wishes to be in compliance with the law and kindly request that the NBC transfer his file and set an appointment for late registration.
This tactic has been taken by a number of practitioners and seems to have worked. The NBC has followed-up the response to the RFE with a Notice of Intent to Deny. In the Notice, the NBC schedules the applicant for an appointment. The file then makes its way over to the ICE office so that the applicant can become registered. It should be noted, however, that this tactic is not foolproof. Just because an appointment has been scheduled does not mean that the file will be transferred on time. The NBC first sends the file to the District Office which in turn transfers the file to the ICE office. This can take time, and it is not certain that the file will be there by the time of the appointment or before the response to the Notice is due. What the applicant has to hope for is that it gets transferred on time. If it is transferred on time, he can register and subsequently provide proof to the NBC. If it is not transferred, his application will be denied. This is not the end of the world, however. The file transfer is in motion and will get there. The applicant can register and re-apply for adjustment of status, only this time with proof of registration.
1 Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, The Sudan, Syria, Tunisia, United Arab Emirates, and Yemen.
2 While failure to register makes one removable, it is not a per se ground of inadmissibility. That said, one who registered at entry or who was later subject to registration and failed to register upon departure “is presumed to be inadmissible under, but not limited to section 212(a)(3)(A)(ii)” of the Immigration & Nationality Act, as someone believed to be seeking entry to engage in “unlawful activity.” 8 C.F.R. § 264.1(f)(8). This is a discretionary determination of the officer. The officer is instructed to “carefully consider the totality of the circumstances before applying this ground of inadmissibility” and to know or have reason to believe “that the alien seeks to enter the United States to engage in unlawful activity.” Williams, Ex. Assoc. Comm. Field Operations, “Standard Operating Procedures for Alien Registration-IFM Update IN02-34, HQINS 70/28 (Sept. 5, 2002).
The issue of inadmissibility is irrelevant in this hypothetical because the Yemeni man has not departed the U.S. Even if he was subject to 8 CFR § 264.1(f)(8), the government is required to look at the totality of the circumstances. Under the circumstances described, he did not enter to engage in unlawful activity and therefore is not inadmissible.
This article was originally published in www.cyrusmehta.com on January 20, 2006.
About The Author
Elizabeth T. Reichard is an Associate at Cyrus D. Mehta and Associates, P.L.L.C, where she practices primarily in the area of immigration law. She is a graduate of the College of the Holy Cross and Case Western Reserve School of Law, where she was the Editor-in-Chief of the Journal of International Law. Ms. Reichard is the Secretary of the Board of Trustees of International Partners in Mission, an international non-profit organization working to empower women, children, and youth. She is admitted to the bar of the State of New York. The views express in this article do not necessarily represent the views of International Partners in Mission.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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