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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


[Federal Register: August 12, 2002 (Volume 67, Number 155)]
[Rules and Regulations]               
[Page 52583-52593]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au02-18]                         


[[Page 52583]]

-----------------------------------------------------------------------

Part VI





Department of Justice





-----------------------------------------------------------------------



Immigration and Naturalization Service



-----------------------------------------------------------------------



8 CFR Parts 214 and 264



Registration and Monitoring of Certain Nonimmigrants; Final Rule


[[Page 52584]]


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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 214 and 264

[INS No. 2216-02; AG Order No. 2608-2002]
RIN 1115-AG70

 
Registration and Monitoring of Certain Nonimmigrants

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Recent terrorist incidents have underscored the need to 
broaden the special registration requirements for nonimmigrant aliens 
from certain designated countries, and other nonimmigrant aliens whose 
presence in the United States requires closer monitoring, to require 
that they provide specific information at regular intervals to ensure 
their compliance with the terms of their visas and admission, and to 
ensure that they depart the United States at the end of their 
authorized stay. On June 13, 2002, the Department published a proposed 
rule to modify the regulations to require certain nonimmigrant aliens 
to make specific reports to the Immigration and Naturalization Service: 
upon arrival; approximately 30 days after arrival; every twelve months 
after arrival; upon certain events, such as a change of address, 
employment, or school; and at the time they leave the United States. 
This final rule adopts the proposed rule without substantial change.

DATES: This rule is effective September 11, 2002.

FOR FURTHER INFORMATION CONTACT: Dan Brown, Office of the General 
Counsel, Immigration and Naturalization Service, 425 I Street, NW, Room 
6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION:

Introduction

    This final rule applies to only a small percentage of the more than 
35 million nonimmigrant aliens who enter the United States each year: 
(1) Nonimmigrant aliens from selected countries specified in notices 
published in the Federal Register, and (2) individual nonimmigrant 
aliens who are designated by a consular officer outside the United 
States or an inspection officer at the port of entry based on 
information that indicates the need for closer monitoring of the 
alien's compliance with the terms of his or her visa or admission 
because of the national security or law enforcement interests of the 
United States. This rule expands the existing special registration rule 
to require that these designated nonimmigrant aliens provide more 
detailed and frequent information to ensure that they comply with the 
conditions of their visas and admissions, along with leaving the United 
States.

Adoption of the Proposed Rule Without Substantial Change

    The Department received 14 comments on the proposed rule (67 FR 
40581, June 13, 2002). Some comments supported the adoption of the 
proposed rule while other comments opposed the proposed rule. In 
several instances, specific comments repeated the views of other 
comments in a different form. Rather than respond to each comment 
individually, the Department is responding to the nature of the 
comments by subject matter.
    In adopting the proposed rule as a final rule, the Department 
reiterates and adopts the Supplementary Information included in the 
proposed rule as explaining the final rule. The Department has made one 
set of changes in the final rule to reflect the fact that the special 
registration system will be paperless; the Department will not be 
developing a paper form to collect information. The second set of 
changes clarifies and limits the scope and applicability of 8 CFR 
264.1(f)(8). The Department provides the following additional 
information in responding to the comments received.

Response to Comments Received

A. Constitutional Implications

1. Notice of the Requirements of the Rule
    Several commenters argued that the notice requirement for 
nonimmigrant aliens subject to special registration who are already 
residing in the United States violates their due process rights. One 
commenter suggested that there needed to be a more formal notification 
structure developed before provisions relating to nonimmigrant aliens 
subject to special registration already in the United States could be 
enforced because the proposal affects such a small segment of society. 
The commenter argued that these individuals should be given some other 
way to voice their opinions other than the notice and comment period, 
citing Londoner v. City & County of Denver, 210 U.S. 373 (1908), and 
the notion that due process requires that they be given an 
individualized hearing. The commenter argues that those individuals, 
with limited English proficiency or literacy, are not being given 
adequate notice and that the opportunity to be heard must be tailored 
to the regulated group. Another commenter suggested that publication in 
the Federal Register as public notification of a requirement is a legal 
fiction.
    These comments raise an issue related to two different processes. 
First, the commenters appear to raise the issue of whether the 
publication of the proposed and final rule in the Federal Register is 
sufficient notice of the content and applicability of the regulation 
under the Due Process Clause of the Fifth Amendment to the United 
States Constitution. Second, the commenters appear to raise the issue 
of whether publication of a notice in the Federal Register, as required 
by Sec. 264.1(f)(4), of the applicability of the requirements of this 
rule to a specific country or class, is sufficient notice of the 
application of the rule under the Due Process Clause.
    Such notice by publication in the Federal Register unequivocally 
constitutes sufficient notice for due process purposes. Congress has 
specified this form of notice and made that notice binding on all who 
are within the jurisdiction of the United States. 44 U.S.C. 1507 
(publication in Federal Register ``is sufficient to give notice of the 
contents of the document to a person subject to or affected by it''). 
The courts have clearly relied upon the adequacy of notice by 
publication in the Federal Register since the Federal Register's 
inception. See, e.g., Lyng v. Payne, 476 U.S. 926, 942-43 (1986); 
Dixson v. United States, 465 U.S. 482, 489 n.6 (1984); Federal Crop 
Ins. Corp. v. Merrill, 332 U.S. 380, 385 (1947). The Department rejects 
the notion that more notice is required as a matter of law.
    The Department does recognize that the efficacy of the law is more 
assured when those subject to the law have actual notice of its terms, 
and, accordingly, the Department is taking steps in addition to 
publication in the Federal Register to publicize its actions relating 
to immigration matters. When classes of nonimmigrant aliens already in 
the United States are required to present themselves for special 
registration, the Department expects to publicize such announcements in 
additional fora, beyond what is required by the Constitution and the 
laws of the United States. However, as a legal matter there is no 
question that one who is within the jurisdiction of the law of the 
United States, whether by statute or regulation, must comply with the 
terms of the law. It is the individual's responsibility to know the 
law.

[[Page 52585]]

2. Notice of Violative Conduct
    One commenter argued that the proposed rule, in defining the 
special registration requirements and applying the Attorney General's 
interpretive authority to violations of the requirements as indicia of 
disregard for the laws of the United States and the potential for 
further violations, creates a new violation of the Immigration and 
Nationality Act (``INA'' or ``Act'') that would be both obscure and de 
minimis, based only on publicity by Federal Register notices rather 
than actual notice. The commenter suggests that this rule would provide 
the most technical and non-substantive bases by which individuals could 
be detained and eventually removed.
    The Department disagrees. As noted above, all who are subject to 
the jurisdiction of the laws of the United States are required to abide 
by those laws. Notice of the laws by publication is sufficient notice 
under the Constitution.
3. Discrimination
    Several commenters argued that the rule targets specific minority 
ethnic groups and members of a specific religion, i.e., Arabs and 
Muslims. The commenters noted that several individuals currently being 
detained or prosecuted would not have been covered by the specific 
criteria set forth in the proposed rule. One commenter in particular 
argued that the proposal ``will further stigmatize innocent Arab and 
Muslim visitors * * * who have committed no crimes and pose no danger 
to us.''
    The Department disagrees with this analysis. There are several 
means by which an alien may become subject to special registration. 
First, as provided in the regulations being amended and in the final 
rule, the Attorney General may designate specific countries, the 
nationals and citizens of which are subject to special registration. 
Currently, nonimmigrant aliens from Iran, Iraq, Libya, and Sudan are 
subject to special registration requirements, including fingerprinting. 
63 FR 39109 (July 21, 1998). Accordingly, contrary to what some 
commenters appear to believe, this method is not new.
    Second, a specific alien may be subject to special registration if 
intelligence information indicates that the individual, while qualified 
for a visa, warrants closer attention. Pre-established criteria will be 
applied. These criteria will be based on intelligence regarding the 
activities and behavior patters of terrorist organizations, not on 
racial, ethnic, or religious stereotypes. The Department strongly 
disagrees with the implication that it would develop or apply such 
criteria in an invidious manner on the basis of race, religion, or 
membership in a social group.
    The Department strongly disagrees with the premise of the comments 
that the rule is invidiously discriminatory. Congressional enactments 
and regulations concerning immigration have historically drawn 
distinctions on the basis of nationality and related criteria. The 
political branches of the government have plenary authority in the 
immigration area. See Fiallo v. Bell, 430 U.S. 787, 792 (1977); 
Matthews v. Diaz, 476 U.S. 67, 80-82 (1976). In the context of 
immigration and nationality laws, the Supreme Court has particularly 
``underscore[d] the limited scope of judicial inquiry.'' Fiallo, 430 
U.S. at 792. The Supreme Court has stated that

    over no conceivable subject is the legislative power of Congress 
more complete than it is over the admission of aliens * * * [T]he 
power to expel or exclude aliens [i]s a fundamental sovereign 
attribute exercised by the Government's political departments 
largely immune from judicial control.

Id. (internal quotations and citations omitted). Congress's 
``inevitable process of `line drawing' '' in the immigration context is 
therefore given great deference. Id. at 795 n.6. The substantive 
decision to relax requirements for only specified nationals, while 
excluding all others, is among those political decisions that are 
``wholly outside the concern and competence of the Judiciary,'' 
Harisiades v. Shaughnessy, 342 U.S. 580, 596 (1952) (Frankfurter, J., 
concurring). When the Executive Branch exercises authority delegated by 
Congress in the immigration area, a court will not ``look behind the 
exercise of that discretion.'' See Fiallo, 430 U.S. at 794-95 (citing 
Kleindienst v. Mandel, 408 U.S. 753 (1972)). As in Fiallo, the Attorney 
General must here make compromises involving ``the inevitable process 
of `line drawing,' '' [whereby] Congress has determined that certain 
classes of aliens are more likely than others to satisfy national 
objectives without undue cost, and [it] granted preferential status 
only to those classes.'' Fiallo, 430 U.S. at 795 n.6. ``Congress 
regularly makes rules that would be unacceptable if applied to 
citizens.'' Mathews, 426 U.S. at 80. The distinctions drawn by the rule 
are appropriate in the context of immigration law and national 
security.
    The Department recognizes that a few individuals in the United 
States have questioned the loyalty of some Muslim Americans to the 
United States. The Department also recognizes that some American 
Muslims have been targets of discrimination. Some mosques have been 
damaged and desecrated. A number of Muslim Americans--and others 
wrongly believed to be Muslims--have been threatened or attacked. These 
attacks against Muslim Americans and the Muslim communities are not 
only reprehensible; like terrorism, they are also attacks against the 
United States and humanity. The Federal Bureau of Investigation (FBI) 
has investigated such attacks and threats against Arab, Muslim, and 
Sikh Americans. The FBI has initiated more than 360 investigations in 
concert with state and local law enforcement authorities. More than 100 
individuals have already been charged with federal, state, and local 
crimes relating to such attacks. The Department continues to treat such 
crimes as civil rights violations and will vigorously prosecute these 
violations.
    The Department remains firmly committed to protecting the civil 
rights of all individuals in the United States while seeking to prevent 
acts of terrorism. The Department unequivocally rejects the notion that 
the requirements of the final rule, or the criteria for application of 
the final rule, to nonimmigrant aliens subject to special registration 
are, or are intended to be, invidiously discriminatory.
4. Applicability of the Act
    One commenter argued that the reporting structure for nonimmigrant 
aliens subject to special registration once they have arrived in the 
United States does not fully comply with the reporting structure 
formulated in the Act. This commenter believed that section 265 of the 
Act (8 U.S.C. 1305) continues to require that aliens report to the 
Attorney General, in writing, their current address before January 31st 
of every year and that certain aliens update this address every three 
months for the duration of the time that they remain in the United 
States. These provisions of the Act were modified in 1981 to eliminate 
the ``January registration'' and 3-month provisions. The amendments 
continued a 10-day notification of change of address requirement. 
Public Law 97-116, section 11, 95 Stat. 1617 (1981).
    As discussed in the proposed rule, section 262(a) of the Act (8 
U.S.C. 1302(a)) provides that all aliens who have not previously been 
registered and fingerprinted pursuant to section 221(b) of the Act (8 
U.S.C. 1201(b)), have a duty to apply for registration and to be 
fingerprinted if they remain in the

[[Page 52586]]

United States for 30 days or longer.\1\ Under the existing regulations 
at 8 CFR 264.1(a), the Immigration and Naturalization Service 
(``Service'' or ``INS'') registers nonimmigrants using Form I-94 
(Arrival-Departure Record). As authorized by section 262(c) of the Act 
(8 U.S.C. 1302(c)), however, the Service's existing regulations at 8 
CFR 264.1(e) contain general provisions waiving the fingerprinting 
requirement for many nonimmigrants. Accordingly, the vast majority of 
nonimmigrant aliens are admitted to the United States without being 
either fingerprinted or photographed.
---------------------------------------------------------------------------

    \1\ The only exception is for aliens admitted as A or G 
nonimmigrants, which pertain to diplomats, employees of certain 
international organizations, etc. INA section 263(b)(8 U.S.C. 
1303(b)).
---------------------------------------------------------------------------

    Notwithstanding the general registration requirements, section 
263(a) of the Act (8 U.S.C. 1303(a)) also authorizes the Attorney 
General to prescribe special regulations and forms for the 
registration, among other classes, of ``aliens of any other class not 
lawfully admitted to the United States for permanent residence.'' 
Pursuant to this section, as well as the Attorney General's general 
registration authority under section 262 of the Act (8 U.S.C. 1302), 
the Attorney General promulgated 8 CFR 264.1(f), which authorizes the 
Attorney General, by notice published in the Federal Register, to 
direct that certain nonimmigrant aliens from designated foreign 
countries be registered, fingerprinted, and photographed by the Service 
at the port of entry at the time the nonimmigrant aliens apply for 
admission. See 58 FR 68024 (Dec. 23, 1993) (final rule); 63 FR 39109 
(July 21, 1998) (notice). Moreover, the Attorney General is authorized 
to prescribe conditions for the admission of nonimmigrant aliens under 
section 214 of the Act (8 U.S.C. 1184). Section 265 of the Act (8 
U.S.C. 1305) requires that all aliens who remain in the United States 
for 30 days or more (other than A or G nonimmigrants) must file a 
notice of change of address with the Attorney General within 10 days of 
any change of address.
    This final rule provides for implementation of these requirements 
for nonimmigrant aliens subject to special registration. However, this 
Supplementary Information also serves as a reminder to all aliens (not 
just those nonimmigrant aliens subject to special registration) of 
their legal obligations under section 265 of the Act to notify the 
Attorney General, as delegated to the Service, within 10 days of any 
change of address by filing the general change of address form, Form 
AR-11.

B. Efficacy of the Rule

1. Acquiring Information Prior to Travel
    Several commenters suggested that data acquisition for any 
effective monitoring of aliens after admission could be better 
performed at the visa issuance stage. A commenter questioned whether 
``it would [be] more effective to have these biometrics collected at 
the U.S. Department of State Consular Offices that would be issuing the 
nonimmigrant visas.'' The commenter stated a belief that all ports of 
entry are, or soon will be, electronically connected to the United 
States Department of State consular database in order that, when an 
individual applies for admission to the United States, the inspector at 
the port of entry can call up the picture and other data about the 
individual.
    The Department notes that the Department of State is acquiring a 
great deal of information through Form DS-156, the visa application, 
and related documents. These forms contain much, but not all, of the 
information that would be required through special registration. 
Accordingly, special registration is warranted to obtain the full array 
of information that is necessary to locate aliens who violate the terms 
of their visas or admission. However, even if all of the required 
information were acquired by the consular officers at the point at 
which they issue a visa, it would still be necessary to confirm the 
information--as a way of confirming identity--at the port of entry and 
subsequently during the alien's stay in the United States.
    The INS has been working with the State Department to expand data 
sharing to ensure that Immigration Inspectors have access to the 
information gathered in the visa issuance process in the Consolidated 
Consular Database. As a result, this information is now available at 
all United States ports-of-entry (POEs), and INS has trained inspectors 
on how to use that data to detect and prevent fraud. Similarly, 
information is being provided to consular officers regarding the 
special registration process that can be provided to appropriate visa 
applicants.
2. Intelligence and Visa Disapproval
    A commenter argued that the rule will not change terrorist or 
criminal methods: they will either comply fully, and registration will 
not prevent them from committing terrorist or criminal acts at any 
time; comply upon entry, but ``go underground''; enter without 
inspection; or use proxies. Several commenters contended that this 
system would not have acquired the required information on several 
individuals currently involved in certain notorious cases. At the same 
time, the commenter claimed that the rule does not mitigate visa fraud 
or immigration document fraud. This commenter concluded that 
fingerprinting, photographing, and periodically interviewing a person, 
whether citizen or alien, cannot predict or deter future terrorist or 
criminal behavior. One commenter also suggested that it was more 
important to deny the visa in the first place than attempt to monitor 
the individual once in the United States.
    Another commenter noted that the Enhanced Border Security and Visa 
Entry Reform Act of 2002, Pub. L. No. 107-173, 116 Stat. 543 (2002), 
provides for such things as the use of pre-arrival passenger manifests, 
enhanced database sharing, improved technology, and increased staffing 
of inspections, all with the hope of enhancing the government's ability 
to interdict, outside of the United States, those who would harm 
America. The commenter further noted that section 212(a)(3)(A) of the 
Act (8 U.S.C. 1182(a)(3)(A)) provides consular officers and immigration 
inspectors with broad authority to prevent the admission of persons 
whom they believe may engage in any unlawful activity from entering the 
United States. Given this authority, the commenter questioned why the 
government would admit such persons and subject them to special 
registration.
    The Department agrees that, where an individual is inadmissible, 
the Department of State should deny an application for a visa. However, 
when an alien is admissible and is granted a visa (or enters the United 
States properly without a visa), but should nevertheless be more 
closely monitored in the national security interest of the United 
States, this rule will provide the basis for that monitoring. The rule 
is not a substitute for proper determination of visa and admission 
eligibility, it is only a supplemental monitoring process for those who 
are eligible for a visa and admissible, but who warrant closer 
monitoring based on the standards set out in the rule.
    The rule must be understood as a third line of defense. First, the 
Department of State must be satisfied that the individual is eligible 
for a visa. Section 306 of the Enhanced Border Security and Visa Entry 
Reform Act of 2002 bars the issuance of visas from a country that is a 
state sponsor of international terrorism unless the Secretary of State, 
in consultation with the Attorney General and the heads of

[[Page 52587]]

other appropriate agencies, makes a determination that an alien from 
such a country does not pose a threat to the safety or national 
security of the United States. 8 U.S.C. 1735(a).
    Second, the inspecting officer must determine that the alien is 
admissible. In this context, it is the alien's responsibility to prove 
admissibility. INA section 212 (8 U.S.C. 1182). If the nonimmigrant 
alien can satisfy these requirements, then the alien may be admitted.
    However, there are national security and law enforcement reasons 
why some aliens who are admissible and have visas (or enter properly 
without a visa) require further monitoring. The final rule, like the 
proposed rule, provides a process under which such aliens will provide 
additional, confirmable information that will enable the INS to contact 
them quickly if necessary and will ensure that such aliens comply with 
the terms of their visas and the conditions of their admission. As for 
the terrorist who complies upon entry, but seeks to go underground 
immediately thereafter, this rule will provide a basis for alerting law 
enforcement organizations to that fact when the would-be terrorist 
fails to register at the 30-day point.
3. Change of Address and Form AR-11
    One commenter acknowledged that the provision requiring filing of a 
change of address has long been in the statute and regulations, but 
argued that its ``notorious ineffectuality has long since rendered the 
provision irrelevant.'' A number of commenters noted that the Service 
does not maintain a central address file and that the most effective 
way to file a change of address is to file it with the office holding 
an application for benefits. Several commenters raised issues 
concerning whether there would be any electronic retrieval system to 
support the information provided; whether aliens know that the form is 
required; whether any means exist to confirm receipt of a change of 
address; and whether ``widespread ignorance'' of the provision renders 
``virtually all ``violations'' of this provision'' not willful.
    The Department has recognized the historical shortcomings of the 
address notification system and has taken steps to develop the 
necessary infrastructure to provide a complete address record system. 
For example, the Department's Inspector General recently reported on 
the historical process for recording student visas, and the failures of 
that system, and made recommendations for improvement. See Office of 
the Inspector General, The Immigration and Naturalization Service's 
Contacts with Two September 11, Terrorists: A Review of the INS's 
Admissions of Mohamed Atta and Marwan Alshehhi, its Processing of their 
Change of Status Applications, and its Efforts to Track Foreign 
Students in the United States 187 (May 20, 2002). The existing student 
visa process is being replaced by the Student and Exchange Visitor 
Information System (SEVIS). 67 FR 34862 (May 16, 2002); (Proposed Rule: 
Retention and Reporting of Information for F, J and M Nonimmigrants; 
Student and Exchange Visitor Information System (SEVIS)); 67 FR 44344 
(July 1, 2002) (Interim Rule with Request for Comments: Allowing 
Eligible Schools To Apply for Preliminary Enrollment in the Student and 
Exchange Visitor Information System). Moreover, the Department has 
proposed changes in the forms that aliens use to ensure that they are 
aware of the requirements of the Act. 67 FR 48818 (July 26, 2002) 
(Proposed Rule: Address Notification to be Filed with Designated 
Applications). As a part of these processes, the INS is reconfiguring 
its computer systems to enhance the utilization of address and other 
information. Accordingly, the Department believes that the address 
notification system supporting this final rule is already sufficiently 
effective and will be improved in the future.
    One commenter supported overall enforcement of address change 
requirements, but recommended leeway for previously unreported changes 
in address and electronic filing of the form. This commenter suggested 
that electronic filing would ease compliance while benefitting the INS 
in its efforts to provide electronic filing of various petition types. 
The commenter suggests that the vast majority of previous unreported 
changes of address were not willful violations of the Act, but an 
oversight in light of different INS priorities and confusion. Thus, the 
commenter suggests, employers and foreign nationals often file a change 
of address with an INS Service Center or District Office where a filing 
or petition is pending, believing this will provide INS with the proper 
notification of a change of address.
    The Department does not disagree with the notion that electronic 
filing may be beneficial, provided that biometric and other identity 
confirmations can be included in such a system. However, until such a 
system is fully implemented, the Department will continue to require 
nonimmigrant aliens subject to special registration to make their 
special registrations in person to ensure the accuracy and integrity of 
the special registrations.
    The Department notes that the process of registration will be 
essentially ``paperless'' in that information will generally be entered 
directly into an electronic format. While the proposed rule refers to 
the information being provided in the ``form'' required by the Service, 
the Department has found that a paper form will not be necessary. To 
ensure clarity, the Department has made minor revisions to the final 
rule to eliminate the suggestion that a paper form is being developed 
and will be used in special registration. The only paper process that 
is continued will be that of the change of address form (AR-11) and 
nonimmigrant aliens subject to special registration will be instructed 
at the time of their initial registration on the proper filing of this 
form. The limited number of individuals who are also within the SEVIS 
system will be required to notify their schools and the Service of 
changes of address.
    One commenter suggested that there must be assurances that those 
who have previously moved without reporting a change of address will be 
able to rectify this oversight without subjecting themselves to fines, 
imprisonment, and possible removal. The commenter recommended that the 
rule include a provision recognizing the shift in enforcement 
priorities, and allow for electronically filed address corrections, 
while clarifying the process to effectuate a change of address 
throughout the Service. The Department has considered this idea 
carefully but declines to adopt it. The concept is technically outside 
the scope of this rule in that it applies to all address changes, not 
merely the prospective special registration system embodied in this 
final rule. This rule is designed to deal with nonimmigrant aliens 
subject to special registration, not the broader class of aliens.
    The Department disagrees with the necessity of providing a specific 
mechanism to rectify past failures to provide a change of address, or a 
recognition of a ``shift'' in enforcement priorities. The requirements 
of the Act have been in effect for many years and a lack of publicity 
about specific enforcement of the provision does not change the legal 
effect of the requirements. The commenter's suggestion that electronic 
filing of changes of address should be provided does merit 
consideration and the Department is considering how best to implement 
such an electronic filing system.
    The Department recognizes that the development and implementation 
of the information technology necessary to

[[Page 52588]]

support the special registration system requires time. In particular, 
the installation of data entry systems requires the acquisition of 
hardware in some ports-of-entry. Accordingly, while the registration 
system is expected to be brought on line in a timely fashion, it is 
also expected that 100 percent coverage will not be immediately 
available. The Department will exercise prosecutorial discretion, as is 
deemed appropriate based on the particular circumstances, with regard 
to the enforcement of the system at those ports-of-entry where the 
electronic system, or a manual system, is not immediately available. 
This exercise of discretion not to pursue the individual alien beyond 
requiring delayed compliance does not, however, absolve any alien from 
the requirements of the rule.
4. Airport Inspection Facilities
    Several commenters stated concern that efficient passenger 
processing through POEs, airport facilities and airport operations may 
be negatively impacted by the special registration entry and exit 
processes. Commenters offered different solutions to perceived problems 
in the actual flow of arrivals.
    One commenter recommended fingerprinting and photographing in 
secondary inspection areas of airports. The commenter suggested that 
this would allow the majority of international passengers to be 
processed efficiently through the primary inspection area, which would 
allow the Service to continue to strive to meet the 45-minute 
passenger-processing goal. The Department intends to conduct 
fingerprinting and photographing in secondary inspection areas in 
airports precisely because of this reasoning, even though there are no 
longer any statutorily mandated time limits for inspection.
    One commenter suggested that facilities at ports-of-entry do not 
have the capacity to take fingerprints and photographs. The commenter's 
assertion is incorrect. The Department has been utilizing both two- and 
ten-fingerprint systems for the purpose of identifying aliens and 
rapidly comparing a specific set of fingerprints with existing 
fingerprint files, including the Federal Bureau of Investigation's 
Integrated Automated Fingerprint Identification System (IAFIS). 
Photographing capabilities also exist at all ports-of-entry.
    Another commenter recommended that the Service work with 
international air carriers servicing United States international 
airports so that registration information can be electronically 
transmitted via the advanced passenger information system (APIS) to the 
Service and queried through the interagency border identification 
system (IBIS) prior to the non-immigrant alien's entry into the United 
States. This commenter noted that INS, Customs, and international air 
carriers have agreed to adopt the U.N. Edifact format for transmitting 
electronic information. Additionally, the commenter suggested that INS 
establish a consortium with each of the airport operators and 
international carriers servicing that federal inspection service area. 
The commenter noted that without federal funding possible modifications 
or expansion of a federal inspection service area is limited and costly 
to the airport.
    The Department notes that many of these suggestions are already 
being implemented as part of the INS's continuing improvement of the 
inspection service. These issues do not address the provisions of the 
rule, but the manner in which the INS relates to the air carriers and 
airport administrations.
5. Economic Impact of the Rule
    Several commenters suggested that the proposed rule on registration 
and monitoring of certain nonimmigrants could have the potential 
significantly to deter legitimate international travel to the United 
States. Accordingly, they suggested that registration of nonimmigrants 
must be targeted in a manner that enhances United States national 
security while not eroding economic security. The Department has 
attempted to balance these interests in adopting the proposed and final 
rules. The national security benefits from this rule outweigh the 
economic costs.

C. Specific Issues

1. Condition of Admission
    One commenter argued that the proposal to amend 8 CFR 214.1(f) to 
make compliance with the special registration requirements a condition 
of maintenance of status is flawed because it is a ministerial 
requirement, not intrinsic to a nonimmigrant's maintenance of status. 
The commenter suggests that Mashi v. INS, 585 F.2d 1309 (5th Cir. 
1978), limits the use of conditions of admission. However, Mashi v. INS 
holds no more than that the immigration judge and the Board of 
Immigration Appeals used the wrong regulatory provision in resolving 
that alien's case. The remainder of the opinion does not discuss the 
proposition cited by the commenter.
    This commenter also argued that 8 CFR part 214 could not be used to 
establish conditions because, the commenter argued, one court had found 
that the Attorney General exceeded his authority when he promulgated 8 
CFR 214.1(f), which imposes as a condition of a nonimmigrant's 
admission and continued stay in the United States the full and truthful 
disclosure of all information requested by the INS, regardless of 
whether the information is material, Romero v. INS, 39 F.3d 977, 979 
(9th Cir. 1994). However, that case related to whether the Service 
could properly impose a condition to provide full and truthful 
disclosure of information that was not material to the respondent's 
immigration status. Id. at 980. Here the information that aliens are 
required to provide is material to their immigration status. Moreover, 
this rule is promulgated under the Attorney General's authority not 
only to establish conditions of admission under section 214 of the Act 
(8 U.S.C. 1184), but also to promulgate regulations for the 
registration, reporting of changes of address, and special registration 
of non-immigrants under sections 263 and 265 of the Act (8 U.S.C. 1303, 
1305). This confluence of authority is much broader than the authority 
interpreted in Romero and depends not merely upon an interpretation of 
the Act, but the specific delegations of authority in the cited 
provisions of the Act.
2. Identification of Aliens
    One commenter argued that it is impossible for many nonimmigrant 
aliens subject to special registration to acquire a second form of 
identification from their country of origin. The commenter suggests 
that some countries do not have second forms of identification. The 
Department disagrees. Many countries issue more than one form of 
identification, such as a national identification card and a driver's 
license. A second form of photographic identification is not 
specifically required by the regulation, but the Service is authorized 
to request confirmatory information.
3. Pre-existing Criteria
    One commenter argued that, while the proposed 8 CFR 
264.1(f)(2)(iii) states that nonimmigrant aliens subject to special 
registration will be subject to special registration if they meet 
``pre-existing criteria,'' no criteria are provided. The commenter 
questions what these criteria would be, and how specific they would be.
    The criteria by which an alien may be required to make a special 
registration cannot be made public without defeating the national 
security and law enforcement effectiveness of the criteria.

[[Page 52589]]

As with the criteria the United States Customs Service and the Drug 
Enforcement Administration use in determining which individuals 
entering the United States will be subject to greater scrutiny for 
trafficking in controlled substances, publicly announced criteria for 
requiring special registration could be evaded by those who are subject 
to the requirements. Even if some details of a specific profile were to 
become publicly available, it is worth noting that the constantly 
changing patterns of criminal activity require constant adjustment of 
the criteria through improved intelligence and more refined analysis, 
cf. United States v. Berry, 670 F.2d 583, 598-599 & n.17 (5th Cir. 
1982), and cases cited therein, and any public profile is, at best, of 
evanescent value.
    The international response to the September 11th attacks has been 
defined by multilateral cooperation. The success of this response has 
depended in large part on improved sharing among governments of 
information relating to terrorists, their associates, and their 
activities. Continued vigilance requires procedures to institutionalize 
such coordination of information. Accordingly, the Attorney General has 
directed the FBI to establish procedures to obtain, on a regular basis, 
the fingerprints, other identifying information, and available 
biographical data of all known or suspected foreign terrorists who have 
been identified and processed by foreign law enforcement agencies. The 
FBI also coordinates with the Department of Defense to obtain, to the 
extent permitted by law, the fingerprints, other identifying 
information, and available biographical data of known or suspected 
foreign terrorists who have been processed by the United States armed 
forces. Such information is, and will continue to be, regularly 
evaluated in order to update the criteria that are used in identifying 
nonimmigrant aliens who are appropriately subject to special 
registration.
    In the same vein, sections 203 and 905 of the Uniting and 
Strengthening America by Providing Appropriate Tools Required to 
Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, Public 
Law 107-56, 115 Stat. 272, 278, 388 (2001), authorized and required 
sharing of foreign intelligence and counterintelligence information in 
new ways, subject to limitations otherwise provided by law and 
exceptions delineated in regulations to be issued by the Department.
4. Reason to Believe
    A commenter noted that proposed 8 CFR 264.1(f)(2) also states that 
a nonimmigrant will be subject to the special registration requirements 
if there is ``reason to believe'' that the nonimmigrant is a national 
or citizen of a specific country or meets the pre-existing criteria, 
and questioned what criteria would be used. In this context, the 
commenter questioned whether language or dress would be considered 
appropriate indicia. Another commenter argued that the proposed rule 
was a delegation of the Attorney General's discretion to the inspecting 
officer at the ports-of-entry, allowing discretion for the inspecting 
officers to choose aliens who they believe to be a risk. Although the 
commenter noted that the Act authorizes any employee of the Department 
to perform or exercise any of the powers, privileges, or duties 
conferred or imposed by this chapter, the commenter was concerned over 
the possibility of abuse.
    Under 8 CFR 264.1(f)(2)(i), (ii), as added by this final rule, the 
authority to designate the classes of nonimmigrant aliens who will be 
subject to special registration requirements is retained by the 
Attorney General, in consultation with the Secretary of State. The 
final rule notes that such designation will apply to ``nationals'' or 
``citizens'' of a specified country. The Act, moreover, permits the 
Attorney General to designate ``class[es]'' of aliens for special 
registration, not merely countries. INA section 263(a)(6) (8 U.S.C. 
1303(a)(6)). In light of the fact that individual aliens involved in 
terrorist activity or other activity inimical to the interests of the 
United States may commit document fraud to gain admission to the United 
States for nefarious purposes, the rule allows immigration inspectors 
to conclude that an alien will be subject to special registration 
requirements if they have ``reason to believe'' that the individual 
alien actually does fall within the classes of nonimmigrant aliens 
subject to special registration.
    This ``reason to believe'' phrase is used throughout the Act to 
refer to situations where there is a basis for believing in fact that a 
provision of the Act applies. See, e.g., INA section 204(f)(2)(A) (8 
U.S.C. 1154(f)(2)(A)) (procedure for granting immigrant status; certain 
aliens whom the Attorney General has reason to believe were born in 
certain countries and were fathered by a United States citizen); INA 
section 212(a)(2)(C) (8 U.S.C. 1182(a)(2)(C)) (alien inadmissible if 
consular or immigration officer has reason to believe alien is a 
controlled substance trafficker); INA section 214(n)(1) (8 U.S.C. 
1184(n)(1)) (alien inadmissible if substantial reason to believe alien 
committed act of severe form of human trafficking); INA section 
221(g)(3) (8 U.S.C. 1201(g)(3)) (non-issuance of visa if consular 
officer has reason to believe alien not eligible) of the Act. In the 
final rule, the ``reason to believe'' standard will not have such 
drastic consequences, but instead will merely require certain 
nonimmigrant aliens to provide more detailed information at regular 
intervals. Where information indicates that an alien is, in fact, a 
national or citizen of a designated country, or that other provisions 
of the rule apply, the inspecting officer must be authorized to make 
the special registration requirements applicable to that alien.
5. Notice of New Country Listings
    One commenter was concerned that a specific country that is not 
currently listed might be listed in the future. The commenter believed 
that this would be antithetical to the relationship between the United 
States and that country and its citizens.
    The listing of countries from which nonimmigrant aliens will be 
subject to special registration is determined by the Attorney General 
in consultation with the Secretary of State, thereby ensuring that 
foreign policy implications will be considered when evaluating the 
possible designation of any specific country. However, because the 
final rule only provides the framework for the special registration 
process, and does not make any specific designations, this comment is 
outside the scope of this final rule.
6. Reporting at 30-day and Annual Intervals
    One commenter suggested that interval reporting is problematic. As 
the States are making it increasingly difficult, if not impossible, for 
some nonimmigrants to obtain driver's licenses or identification cards, 
some aliens may find that an alternative form of identification is not 
available. The commenter suggested proof of tenancy is often impossible 
because ``short-term visitors (such as students touring for the summer) 
often travel around the United States, with no set address as they stay 
in hostels or camp''; in other cases aliens may not have established 
proof of tenancy in their names if they are staying with relatives or 
friends. Another commenter suggested that nonimmigrants sponsored by a 
charity, such as for a speaking tour, be permitted to use the charity's 
address.

[[Page 52590]]

    A commenter also argued that interval reregistration will be 
burdensome, both in traveling to a specified office and in the process 
of scheduling and appearing at an overburdened office. This commenter 
also discussed, and discounted, the notion that nonimmigrants might be 
required to report to state or local police offices.
    The rule continues to provide that an individual must reregister at 
a 30-day interval and annually. Neither of these requirements appears 
to the Department to be burdensome. However, if an individual 
nonimmigrant alien subject to special registration can show a specific 
burden, that nonimmigrant alien subject to special registration may 
seek relief from the appropriate district director.
7. Relief
    Several commenters stated that the provision allowing a district 
director to grant relief from the provisions of the rule was 
insufficient. They were concerned that travel to a distant office was 
still required, that some offices would not grant dispensation, and 
that officials would not be available by telephone. One commenter 
specifically noted that the provision does not include any provision 
regarding failure to register due to a serious illness or other 
emergency circumstance that would prevent the nonimmigrant from 
complying.
    The Department does not believe that these situations require any 
amendment to the rule. The rule is specific that reregistration must be 
in person and, therefore, telephone communication is irrelevant. 
Moreover, the reregistration dates are intentionally established as 
windows before and after a specific date to accommodate such 
intervening events as illness. The second registration is required to 
be made between 30 and 40 days after admission, while annual 
reregistration may be made within 10 days--before or after--the 
anniversary of admission. The totality of this inconvenience must be 
kept in perspective with the scope of this rule: the rule applies only 
to the small number of nonimmigrant aliens subject to special 
registration, and the registrations are not so frequent or so rigid as 
to be burdensome in comparison with the national security or law 
enforcement interests of the United States.
8. Final Registration
    The proposed rule provided that a nonimmigrant subject to special 
registration also report when leaving the United States. This final 
registration would occur through inspection at a port of entry. One 
commenter suggested that this final registration, like the entry 
process, would take substantial time to develop and implement with 
airports, even for the small number of aliens covered by this rule. The 
commenter noted that, for some period of time, nonimmigrant aliens 
subject to special registration would be permitted to depart the United 
States only through the limited number of ports with sufficient 
facilities. The commenter argued against such a provision because it 
would create a substantial inconvenience and expense to the alien, and, 
in some instances, a bar to departure.
    The Department recognizes that a small number of persons presently 
in the United States who will become subject to the rule possess a 
return ticket, and some of these tickets are non-refundable and non-
changeable without penalty. However, the Department is making every 
effort to ensure that there will be sufficient facilities to 
accommodate final registration at all ports at the time the rule 
becomes effective. Because special registration will be a paperless 
system, the Department will be establishing additional computer links 
to ensure that the system is available nationwide. Nevertheless, for a 
short period of time, because aliens will be permitted to depart from 
any port when the rule becomes effective, the Department expects that 
initially some inspectors will need to record information provided by 
nonimmigrant aliens subject to special registration on paper records 
that will not be entered into the system until shortly thereafter. If 
the Service determines that a port is inappropriate for the departure 
of nonimmigrant aliens subject to special registration, the Service 
will give appropriate notice by publication in the Federal Register. 
The Department agrees that individual aliens should not be 
inconvenienced during the ongoing development of the system. To provide 
sufficient time to procure equipment and provide training to all 
inspection personnel, paragraph (f)(8) of the final rule will not 
become applicable until October 1, 2002. Moreover, the final 
registration requirement of 8 CFR 264.1(f)(8) will apply only to those 
nonimmigrant aliens who have been registered under paragraph (f)(3), or 
who are or have been required to register pursuant to paragraph (f)(4).
    Another commenter conceded that subjecting departing aliens to 
special registration requirements is not new, but is not often done. 
The commenter noted that departure will now be confirmed by actual 
presentation by the nonimmigrant alien subject to special registration, 
and that the alien's departure can then be confirmed by reference to 
other records, such as the electronic manifests provided by air 
carriers. The commenter suggested that INS and the air carriers use 
APIS to collect an alien's departure information. The commenter 
suggested a system by which an alien would proceed to the flight gate 
and the air carrier would electronically collect his departure 
information and then transmit it to the INS. The commenter suggested 
that, if prior to an alien's scheduled departure, the INS determined it 
must conduct a face-to-face interview, INS could arrange for the alien 
to meet a departure control officer in the federal inspection service 
(FIS) area before flight time. In all other cases, the air carrier's 
electronic transmission of the alien's departure would serve as 
confirmation to the INS.
    The Department appreciates the thought given to this approach, but 
must decline to adopt it. Final registration, like inspection, requires 
a face-to-face confirmation of identity until such time as electronic 
verification of biometrics can ensure that the nonimmigrant alien 
subject to special registration actually is the individual departing 
the United States.
9. Future Inadmissibility
    Another commenter stated that the proposed rule would effectively 
create a new ground of inadmissibility by characterizing failure to 
comply with the final registration provisions as ``unlawful activity.'' 
The commenter noted that the individual would thereafter be presumed to 
be inadmissible to the United States under section 212(a)(3)(A)(ii) of 
the Act as an alien ``who a consular officer or the Attorney General 
knows, or has reasonable ground to believe, seeks to enter the United 
States to engage solely, principally, or incidentally in * * * any 
other unlawful activity.'' 8 U.S.C. 1182(a)(3)(A)(ii).
    The commenter's analysis is faulty in that only Congress can 
establish grounds for removal and inadmissibility to the United States. 
Congress has made clear, however, that the Attorney General may find an 
alien inadmissible if he has ``a reasonable ground to believe [the 
alien] seeks to enter the United States to engage solely, principally, 
or incidentally in * * * any other unlawful activity * * *.'' INA 
section 212(a)(3)(A)(ii) (8 U.S.C. 1182(a)(3)(A)(ii)) (emphasis added). 
An alien is subject to special registration requirements because that 
alien meets pre-established criteria that the

[[Page 52591]]

Department found to be associated with national security risks. When 
such an alien violates the terms of his or her special registration by 
failing to register upon leaving the United States and then seeks to 
reenter the United States, the alien can reasonably be seen as 
attempting to reenter for the purpose of engaging in ``unlawful 
activity'' under section 212(a)(3)(A)(ii) of the Act. If an alien 
complies with the regulations, he or she will not, in the future, be 
presumed inadmissible under this provision.
    The Department recognizes that there may be reasons why a departing 
alien may not be able personally to report for final registration when 
leaving the United States. The Department acknowledges that some 
failures to register upon leaving are not likely to be the result of a 
preconceived intent to engage in unlawful activity at the time of an 
alien's future entry into the United States. However, if the 
nonimmigrant alien subject to special registration violates the 
specific regulations relating to final registration at the time of 
exiting the United States, that nonimmigrant alien subject to special 
registration will be presumed to be inadmissible. The presumption may 
be overcome, but, despite the concerns of at least one commenter, it is 
not necessary for the Attorney General to provide a complete and 
exhaustive catalogue of the manner in which he will exercise his 
discretion.

D. Issues Not Raised in the Rule

    Several commenters opposed the entry of violation information into 
the National Crime Information Center. The Attorney General's 
announcement of his direction to the Federal Bureau of Investigation 
and the INS to include this information is not covered by, and need not 
be covered by, this rule. Accordingly, these comments are not 
considered in developing the final rule.

Regulatory Procedures

Regulatory Flexibility Act

    The Department of Justice, in accordance with the Regulatory 
Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and by 
approving it certifies that this regulation will not have a significant 
economic impact on a substantial number of small entities. This rule 
will affect individual nonimmigrant aliens who are not considered small 
entities as that term is defined in 5 U.S.C. 601(6).

Executive Order 12866

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation. The Department of Justice has determined that 
this rule is a ``significant regulatory action'' under Executive Order 
12866, section 3(f), Regulatory Planning and Review, and accordingly 
this rule has been reviewed by the Office of Management and Budget.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a federalism 
assessment.

Executive Order 12988

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice 
Reform.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Paperwork Reduction Act

    Information collection associated with this regulation has been 
approved by the Office of Management and Budget under the provisions of 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The OMB 
control number for this collection is 1115-0254.

List of Subjects

8 CFR Part 214

    Aliens, Immigration, Registration, Reporting and recordkeeping 
requirements.

8 CFR Part 264

    Aliens, Immigration, Registration, Reporting and recordkeeping 
requirements.


    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 214--NONIMMIGRANT CLASSES

    1. The authority citation for part 214 is revised to read as 
follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1186a, 1187, 
1221, 1281, 1282, 1301-1305; sec. 643, Pub. L. 104-208, 110 Stat. 
3009-708; section 141 of the Compacts of Free Association with the 
Federated States of Micronesia and the Republic of the Marshall 
Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 
1931 note, respectively; 8 CFR part 2.


    2. Amend Sec. 214.1 by revising paragraph (f) to read as follows:


Sec. 214.1  Requirements for admission, extension, and maintenance of 
status.

* * * * *
    (f) Registration and false information. A nonimmigrant's admission 
and continued stay in the United States is conditioned on compliance 
with any registration, photographing, and fingerprinting requirements 
under Sec. 264.1(f) of this chapter that relate to the maintenance of 
nonimmigrant status and also on the full and truthful disclosure of all 
information requested by the Service. Willful failure by a nonimmigrant 
to register or to provide full and truthful information requested by 
the Service (regardless of whether or not the information requested was 
material) constitutes a failure to maintain nonimmigrant status under 
section 237(a)(1)(C)(i) of the Act (8 U.S.C. 1227(a)(1)(C)(i)).
* * * * *

PART 264--REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED 
STATES

    3. The authority citation for part 264 is revised to read as 
follows:

    Authority: 8 U.S.C. 1103, 1182, 1184, 1201, 1301-1305.


    4. Amend Sec. 264.1 by revising paragraph (f) to read as follows:


Sec. 264.1  Registration and fingerprinting.

* * * * *

[[Page 52592]]

    (f) Registration, fingerprinting, and photographing of certain 
nonimmigrants. (1) Notwithstanding the provisions in paragraph (e) of 
this section, nonimmigrant aliens identified in paragraph (f)(2) of 
this section are subject to special registration, fingerprinting, and 
photographing requirements upon arrival in the United States. This 
requirement shall not apply to those nonimmigrant aliens applying for 
admission to the United States under sections 101(a)(15)(A) (8 U.S.C. 
1101(a)(15)(A)) or 101(a)(15)(G) (8 U.S.C. 1101(a)(15)(G)) of the Act. 
In addition, this requirement shall not apply to those classes of 
nonimmigrant aliens to whom the Attorney General and the Secretary of 
State jointly determine it shall not apply, or to any individual 
nonimmigrant alien to whom the Attorney General or the Secretary of 
State determines it shall not apply. Completion of special registration 
pursuant to this paragraph (f) is a condition of admission under 
section 214 of the Act (8 U.S.C. 1184) if the inspecting officer 
determines that the alien is subject to registration under this 
paragraph (f) (hereinafter ``nonimmigrant alien subject to special 
registration'').
    (2) Nonimmigrant aliens in the following categories are subject to 
the requirements of paragraph (f)(3) of this section:
    (i) Nonimmigrant aliens who 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;
    (ii) Nonimmigrant aliens who is 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; or
    (iii) Nonimmigrant aliens who meet pre-existing criteria, or who is 
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 aliens' presence in the United 
States warrants monitoring in the national security interests, as 
defined in section 219 of the Act (8 U.S.C. 1189), or law enforcement 
interests of the United States.
    (3)(i) Any nonimmigrant alien who is included in paragraph (f)(2) 
of this section, and who applies for admission to the United States, 
shall be specially registered by providing information required by the 
Service, shall be fingerprinted, and shall be photographed, by the 
Service, at the port-of-entry at such time the nonimmigrant alien 
applies for admission to the United States. The Service shall advise 
the nonimmigrant alien subject to special registration that, if the 
alien remains in the United States for 30 days or more, the 
nonimmigrant alien subject to special registration must appear at a 
Service office in person to complete registration by providing 
additional documentation confirming compliance with the requirements of 
his or her visa. The nonimmigrant alien subject to special registration 
must appear at such office between 30 and 40 days after the date on 
which the nonimmigrant alien subject to special registration was 
admitted into the United States.
    (ii) At the time of verification of information for registration 
pursuant to paragraph (f)(3)(i) of this section, the nonimmigrant alien 
subject to special registration shall provide the Service with proof of 
compliance with the conditions of his or her nonimmigrant visa status 
and admission, including, but not limited to, proof of residence, 
employment, or registration and matriculation at an approved school or 
educational institution. The nonimmigrant alien subject to special 
registration shall provide any additional information required by the 
Service.
    (4) The Attorney General, by publication of a notice in the Federal 
Register, also may impose such special registration, fingerprinting, 
and photographing requirements upon nonimmigrant aliens who are 
nationals, citizens, or residents of specified countries or territories 
(or a designated subset of such nationals, citizens, or residents) who 
have already been admitted to the United States or who are otherwise in 
the United States. A notice under this paragraph (f)(4) shall explain 
the procedures for appearing in person and providing the information 
required by the Service, providing fingerprints, photographs, or 
submitting supplemental information or documentation.
    (5) A nonimmigrant alien subject to special registration shall 
annually reregister in person with the Service at the district office 
for the district in which the nonimmigrant alien subject to special 
registration's residence is located. Annual reregistration shall be in 
the same manner as provided in paragraph (f)(3) of this section, and 
shall occur within 10 days of the month and day of the anniversary of 
his or her original admission to the United States. Annual 
reregistration of a nonimmigrant alien subject to special registration 
under paragraph (f)(4) of this section shall be in the manner 
prescribed in the applicable notice, subject to any modifications or 
changes included in any applicable intervening notice.
    (6) In addition to the 30-day and annual reregistrations pursuant 
to paragraphs (f)(3) and (f)(5) of this section, any nonimmigrant alien 
subject to special registration who remains in the United States for 30 
days or more shall notify the Service by mail or other such means as 
determined by the Attorney General, using a notification form 
designated by the Service, of any change of address of residence, 
change of employment, or change of educational institution, within 10 
days of such change.
    (7) A nonimmigrant alien subject to special registration may apply 
to the district director, or such other official as the Attorney 
General may designate, at the Service's district office in which the 
nonimmigrant alien subject to special registration's residence address 
is located and registered, for relief from the requirements of this 
paragraph (f). The decision of the district director or such other 
official is final and not appealable.
    (8) When a nonimmigrant alien subject to special registration 
departs from the United States, he or she shall report to an inspecting 
officer of the Service at any port of entry, unless the Service has, by 
publication in the Federal Register, specified that nonimmigrant aliens 
subject to special registration may not depart from specific ports. 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, section 212(a)(3)(A)(ii) of the 
Act (8 U.S.C. 1182(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. This 
paragraph (f)(8) applies only to those nonimmigrant aliens who have 
been registered under paragraph (f)(3) of this section, or who are or 
have been required to register pursuant to paragraph (f)(4) of this 
section. This paragraph (f)(8) will become applicable on October 1, 
2002.
    (9) Registration under this paragraph (f) is not deemed to be 
complete unless all of the information required by the Service, and all 
requested documents,

[[Page 52593]]

are provided in a timely manner. Each annual reregistration and each 
change of material fact is a registration that is required under 
sections 262 and 263 of the Act (8 U.S.C. 1302, 1303). Each change of 
address required under this paragraph (f) is a change of address 
required under section 265 of the Act (8 U.S.C. 1305).
* * * * *

    Dated: August 9, 2002.
John Ashcroft,
Attorney General.
[FR Doc. 02-20642 Filed 8-9-02; 2:31 pm]
BILLING CODE 4410-10-P





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