Special Registration Requirements for Non-Immigrants from Certain Designated Countries - Law Firm Meyner and Landis LLP Attorneys Newark, New Jersey

ANTHONY F. SILIATO, ESQ.
MEYNER AND LANDIS
One Gateway Center, Suite 2500
Newark, New Jersey 07102
(973) 624-2800
(973) 624-0356 (fax)
Email: asiliato@meyner.com
Website: www.meyner.com

SPECIAL REGISTRATION REQUIREMENTS FOR NON-IMMIGRANTS FROM CERTAIN DESIGNATED COUNTRIES

(UPDATED 12/26/2002)
QUESTIONS AND ANSWERS ABOUT "CALL-IN" SPECIAL REGISTRATION

[This Advisory is accurate as of December 26, 2002. *It was revised from the original issued on December 16, 2002, because the Department of Justice decided not to require registration from citizens and national of Armenia. This advisory does not substitute for the advice of an immigration lawyer familiar with the facts of an individual case.]

Q. What is "call-in" special registration?

A. The Attorney General has notified specified nonimmigrants already in the U.S. that they must appear in person at a designated USCIS office and be photographed, fingerprinted and interrogated.

Q. Who is required to register under "call-in" special registration, and by when?

A. To date, the Department of Justice (DOJ) has issued three notices listing different countries. Different dates apply to each group of countries:

The "five" countries: Iran, Iraq, Sudan, Syrian, Libya

Male citizens or nationals of these countries who
were born on or before November 15, 1986
were inspected and last admitted to the U.S. as nonimmigrants
on or before September 10, 2002 and who
will remain in the U.S. at least until December 16, 2002

must register with the USCIS at one of specified locations by December 16, 2002. See 67 Fed. Reg. 66765-68

The "thirteen" countries: Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, Yemen

Male citizens or nationals of these countries who
were born on or before December 2, 1986
Were inspected and last admitted to the U.S. as nonimmigrants
on or before September 30, 2002 and who
will remain in the U.S. at least until January 10, 2003

must register with the USCIS by January 10, 2002. See 67 Fed. Reg. 70525-28. The "two" countries*: Pakistan and Saudi Arabia

Male citizens or of these countries who
were born on or before January 13, 1987
were inspected and last admitted to the U.S. as nonimmigrants
on or before September 30, 2002 and who
will remain in the U.S. after February 21, 2003.

must register with the USCIS between January 13 and February 21, 2003 inclusive. See Fed. Reg. 67 77642-77644.

Q. Who does not have to register?

A. Even if from one of the designated countries, the people who are not required to register under "call-in" special registration are:

Females
U.S. citizens
Lawful permanent residents of the U.S.
"A" and "G" nonimmigrants
Anyone who applied for asylum before a specified date1
Anyone who already was granted asylum.

Q. What about someone who has dual citizenship?

A. If the person is a citizen of one country but may have retained citizenship of one of these specified countries, the DOJ has stated that the person must register.

However, if the person is a U.S. citizen and possibly a citizen of another country, we believe he should not have to register because the statute, INA section 263(a) and regulation, 8 C.F.R. 264.1(f), and "call-in" registration notices, 67 Fed. Reg. 67765 and 70525 specifically provide that they apply only to "aliens."

Q. What is a "national"?

A. The INA defines a "national" as "a person owing permanent allegiance to a state." INA section 101(a)(21), 8 U.S.C. 1101(a)(21). This is not a very helpful definition in this context. Allegiance must be determined by reviewing the law of the country, as each country determines its own citizenship and nationality law.

Q. What if a person's asylum application was denied and is no longer pending?

A. Unless he is a citizen or national of Pakistan or Saudi Arabia, it appears that he does not have to register under call-in special registration. The Federal Register notices say that people who applied for asylum already have provided sufficient information in their application as well as their fingerprints. 67 Fed. Reg. 67766 and 70526. For citizens or nationals of Pakistan or Saudi Arabia, the Federal Register notice says that they do not have to register if their application for asylum was pending on December 18, 2002. 67 Fed. Reg. 77643.

Q. Where do these men need to register?

A. The DOJ has specified only certain USCIS offices for special registration. A list of these offices is at 67 Fed. Reg. 67767, 70527, 77643, and also on AILF's website http://www.ailf.org/lac/911PA.htm and on the USCIS website: http://www.ins.gov/graphics/lawenfor/specialreg/index.htm

Q. What must registrants present and what will happen when they go to register?

A. Registrants will be asked questions "under oath." The USCIS agent will "record" the answers. The registrant will be fingerprinted and photographed. The officer may ask to see travel documents, including passport and I-94; any other government-issued identification; proof of residence, including leases or proof of titles; proof of school matriculation; and proof of employment. The officer may ask many other, unrelated questions.

Q. Do people who entered the U.S. without inspection need to register?

A. No. Only people who were inspected by the USCIS and last admitted into the U.S. as nonimmigrants are required to register under the call-in special registration.

Q. People who were admitted under "advance parole" -- do they need to register under "call-in" special registration?

A. We have been informed that the USCIS believes these people are "parolees" and thus not subject to call-in special registration.

Q. How has the USCIS been treating people who go to register under call-in special registration?

A. Many people, including some who thought they were in lawful status, have been arrested when they have gone in to register. Some have been detained by the USCIS for up to several days before being released. In other cases, the USCIS has issued a Notice to Appear (NTA) to begin removal (deportation) proceedings.

Q. What if a person has an adjustment of status (AOS) application pending and filed under 245(i)?

A. The USCIS has arrested and/or issued NTAs against many people who have AOS applications pending, even if they filed under 245(i). Of course, 245(i) did not convey any legal status, but we submit that the intent of Congress would be thwarted if 245(i) beneficiaries were deported before they can adjust their status.

Q. May a lawyer accompany the person registering?

A. Yes, the USCIS should permit a lawyer to accompany the registrant. We have heard of some cases, however, where the USCIS did not allow the lawyer to accompany the person registering. If this happens, you should protest and contact AILA or AILF immediately.

Q. If a person was admitted as a nonimmigrant but now is out of status, should he register?

A. It is impossible for us to give general advice that will fit every situation. Also, special registration is very new, so there is a lot we do not know about what will happen. But here are some risks and reasons on both sides. Of course there may be other risks and reasons in individual cases. Ultimately, the decision must be an individual's to make, after being informed of all the risks and reasons in his particular case.

The risks of registering, especially if a person is out of status:

The USCIS will ask him many questions, including (but also possibly going far beyond) his immigration status, his job, living situation, religious practices, family, friends, and acquaintances;
the USCIS may arrest and detain him for hours or days;
the USCIS may issue an NTA and begin removal (deportation) proceedings.
INA section 266(c) provides criminal penalties for knowingly providing false information when registering.

The risks of not registering:

a willful failure to register may make the nonimmigrant deportable for failure to maintain nonimmigrant status (unless the AG finds the failure was "reasonably excusable");
although the regulations do not say so, there is concern that failure to register may be used by the USCIS or an immigration judge in the future as a negative discretionary factor in AOS or other applications for relief.
INA section 266(a) provides for criminal penalties for willful failure or refusal to register.

Q. Are there any "waivers" of the special registration requirements?

A. The special registration regulation provides for possible "relief" in individual cases. New 8 C.F.R. 264.1(f)(7) allows a nonimmigrant who is subject to special registration to apply to the district director or other designated official for this relief. The regulation says that the decision of this official is final and not appealable.

Also, the regulation permits the Attorney General or the Secretary of State to exempt any individual nonimmigrant from the related "entry-exit" special registration, and thus possibly from the "call-in" special registration as well. 8 C.F.R. 264.1(f)(1).

We do not yet know what criteria, is any, will be used in applying either of these "relief" provisions.

Q. Do other registration requirements apply to people from these countries?

A. Yes. They must register annually and notify the USCIS of changes of address within 10 days of such a change. They may also be required to depart only from certain designated ports. See our website or the USCIS website for additional information.

Q. What if my client did not register by the deadline but want to register later?

A. In some situations, it may be better to attempt to register late, especially if there is a good reason for the delay. In this situation, ideally you would accompany your client or send someone else with him as a witness when he attempts to register. If the USCIS refuses to allow him to register late, you should follow up with a letter and report what happened to AILA or AILF immediately.

Q. Should citizens and nationals of other countries expect to have to register?

A. Yes, we expect that the DOJ may add other countries to the list, so people should be alert and check the AILA, AILF, and USCIS websites.

Q. Under what authority is the Attorney General requiring registration?

A. The Attorney General is citing INA sections 263(a) and 265(b), 8 U.S.C. sections 1303(a), 1305(b) and 8 C.F.R. 264.1(f) for authority.

[December 26, 2002]

FOR MORE COMMONLY ASKED QUESTIONS AND ANSWERS RELATED TO THE SPECIAL REGISTRATION PROCEDURES, PLEASE SEE http://www.ins.usdoj.gov/graphics/lawenfor/ specialreg/CALL_IN_ALL.pdf

1 For those from the group of five countries, the person must have applied for asylum on or before November 6, 2002. For the group of 13 countries, the person must have applied for asylum on or before November 22, 2002. For the group of two countries - Pakistan, and Saudi Arabia - the asylum application must have been pending on December 18, 2002.