INS Issues Notices and Guidance to Implement Special Registration Requirements for Certain Nonimmigrants

IMMIGRATION LAW & POLICY

Arrest and Detention

INS ISSUES NOTICES AND GUIDANCE TO IMPLEMENT SPECIAL REGISTRATION REQUIREMENTS FOR CERTAIN NONIMMIGRANTS
Immigrants' Rights Update, Vol. 16, No. 6, October 21, 2002

The Immigration and Naturalization Service has issued two notices augmenting its rules for nonimmigrants who must register with the agency. By adding a new country of designation, these rules expand the class of nationals that must register and provide notice of the airports from which they must depart. The rules became effective Sept. 11 and Oct. 1, 2002, respectively. In addition, on Sept. 5, 2002, the INS issued an internal memo to provide guidance to the field concerning the registration requirements. Section 262(a) of the Immigration and Nationality Act requires all nonimmigrants aged 14 or older who have not previously been fingerprinted abroad to be registered and fingerprinted if they remain in the United States for 30 days or longer.

Section 262(c) of the INA allows the attorney general to waive these requirements, and the attorney general has used this provision to exempt the majority of nonimmigrants from these registration requirements. However, in 1998, the attorney general designated Iran, Iraq, Libya, and Sudan as countries whose nationals and citizens are subject to registration requirements.

On Aug. 12, 2002, the U.S. Dept. of Justice issued final regulations that expand the special registration requirements. Under the regulations, nonimmigrants from designated countries, as well as other nonimmigrants designated by consular and immigration officials, will be required to be registered, photographed and subjected to certain monitoring upon entry and departure from the U.S. If special registrants remain in the U.S. beyond 30 days, they must report to the INS in person and provide documentation confirming their compliance with the terms of their admission. Thereafter, they must report to the INS annually. (For more information on the proposed and final regulations, see "DOJ Issues Final Rule on Registration of Nonimmigrants," Immigrants' Rights Update, Sept. 10, 2002, p. 3, and "DOJ Proposes Rules to Monitor Certain Nonimmigrants," IRU, July 29, 2002, p. 2.)

Designation of Certain Countries. The notice that took effect on Sept. 11, 2002, applies the expanded special registration requirements of the final regulations to nationals of the four countries previously subject to registration requirements—Iran, Iraq, Libya, and Sudan—and adds Syria to this list. The notice also requires that the following individuals be subject to the registration rules as well: those whom consular officers or INS inspectors have reason to believe are actually nationals or citizens from one of the designated countries. The agency's rationale for including this discretionary provision is that there may be cases where individuals present documentation from one country but have actual or dual citizenship from one of the designated countries. The notice states that all special registrants will be advised of their obligation to comply with the registration rules at the time that admission is granted.

Airports for Departure. The registration rules also require nonimmigrants to depart from certain designated airports. The notice that took effect Oct. 1, 2002, provides that special registrants must report to a port of entry officer at the airport from which they are departing unless the INS has specified in the Federal Register that special registrants may not depart from those airports. The INS will provide packets of information to special registrants about how to comply with the rules. These packets will contain the list of airports that special registrants may use, as well as directions, contact numbers, and hours of operation. The notice adds that as new ports of entry are added to the list of those that special registrants may depart from, the INS will publish their names and locations in the Federal Register. The INS will also make the list available at district offices and on its Web site at http://www.ins.usdoj.gov.

INS Guidance. In a memo not intended for the media or the general public, on Sept. 5, 2002, Johnny Williams, executive associate commissioner of the INS, provided guidance to the field on the implementation of special registration rules. The memo provides further information regarding the circumstances in which nonimmigrants who are not nationals of the five designated countries will be subject to the special registration requirements.

First, the special registration rules will be applied to individuals who are or are believed to be citizens or nationals of Pakistan, Saudi Arabia, and Yemen, and who are males between 16 and 45 years of age.

Second, individuals will be identified for the special registration requirement by State Dept. consular officers. According to the memo, during primary inspection, INS officers will receive special registration lookouts regarding these individuals through the Interagency Border Inspection System (IBIS). IBIS is a multi-agency database containing lookout information for persons applying for admission to the U.S. IBIS will also identify individuals whom consular officers have determined should be exempted from special registration requirements.

Third, a nonimmigrant of any nationality may be specially registered if an inspecting officer determines or has reason to believe that he or she meets the following criteria (an immigration supervisor must concur with the inspection officer's exercise of discretion to refer the nonimmigrant for special registration):

The nonimmigrant has made unexplained trips to Iran, Iraq, Libya, Sudan, Syria, North Korea, Cuba, Saudi Arabia, Afghanistan, Yemen, Egypt, Somalia, Pakistan, Indonesia, or Malaysia; or the individual's explanation for such trips lacks credibility.
The nonimmigrant has engaged in other travel that is not well explained by the individual's job or other legitimate concerns. Travel is not further defined to include specific countries.
The nonimmigrant has previously overstayed in the U.S. on a nonimmigrant visa, and monitoring is now appropriate in the interest of national security.
The nonimmigrant meets characteristics established by current intelligence updates and advisories. The memo does not elaborate on such characteristics.
Local, state or federal law enforcement agencies have identified the nonimmigrant as requiring monitoring in the interest of national security.
The nonimmigrant's behavior, demeanor, or answers to questions posed by officers indicate that the individual should be monitored in the interest of national security.
The nonimmigrant provides information causing the officer to reasonably determine that the individual requires monitoring in the interest of national security.

67 Fed. Reg. 57,032 (Sept. 6, 2002); 67 Fed. Reg. 61,352 (Sept. 30, 2002);
INS Memorandum from Johnny Williams, HQ/INS 70/28 (Sept. 5, 2002).