FAQ: Non-citizen Registration Requirement in Trump Day 1 Executive Order

On his first day in office President Trump issued a series of hateful anti-immigrant Executive Orders. One of these Executive Orders, entitled “Protecting the American People Against Invasion,” includes a provision (Section 7) ordering the Departments of Homeland Security, Justice and State to–

• Publicize information on the “legal obligation” of noncitizens who are not already registered to comply with the registration requirements in U.S. Code Title 8, Sections 1301 to 1306;
• Ensure the registration of noncitizens who are not already registered under the requirements in U.S. Code Title 8, Sections 1301 through 1306; and
• Make failure to register a criminal and civil immigration enforcement priority.

Trump administration officials like Immigration and Customs Enforcement (ICE) Chief of Staff Jon Feere have previously talked about weaponizing the registration laws to prosecute undocumented immigrants. In a memo issued January 21, Trump’s Acting Attorney General issued a memo to all Department of Justice staff prioritizing a number of migration-related offenses for criminal prosecutions, including the registration-related provisions referenced in the EO. The memo also instructs U.S. Attorney’s Offices to develop a process to handle increased prosecutions, raising concerns of streamlined prosecutions that would dramatically short circuit due process, similar to Operation Streamline which was previously used to force people facing migration-related charges into pleading guilty en masse.

In short, there is no centralized registration process that currently exists for immigrants in the United States, whether with or without lawful status. The history of the legal provisions referenced in the Day 1 EO provides crucial context.

The federal law referenced by the EO is at Section 1302 of Title 8 of the U.S. Code, and says that all noncitizens who are 14 years old or older, have not already registered by applying for a visa, and stay in the U.S. for 30 days or more have a duty to apply for registration and be fingerprinted within those 30 days. While this law dates from 1952, Congress based this duty to apply for registration on an earlier and largely obsolete registration process from the Alien Registration Act of 1940.

The Alien Registration Act of 1940 was passed shortly before the U.S. entered World War II (WWII). It created a process where all noncitizens had to register with the U.S. government at their local post office. The stated goal of the process was to inventory noncitizens in order to identify potential national security threats broadly characterized as communist or subversive. Immigration enforcement was not the point – in fact, propaganda campaigns encouraging noncitizens to register promised legalization for those without authorized status.

After WWII, registration was integrated into the immigration process. Instead of going to the local post office, noncitizens registered as part of the process of immigrating to the U.S. through ports of entry. While noncitizens previously had to fill out a separate, specialized noncitizen registration form, now their immigration application form did double duty as the registration form. This meant there was no way for undocumented people to register under the law, as registration was only for people who qualified for some kind of authorized immigration status.

Over the years, two trends further eroded noncitizens’ ability to comply with a duty to apply for registration. First, various categories of noncitizens were exempted from the registration requirements, including certain Canadians, diplomats, and Bracero (guest worker) program workers.

Second, many new forms of immigration status were never incorporated into the registration regulations. The federal regulations governing registry – found at Code of Federal Regulations Title 8, Part 264.1 – differentiate between which immigration forms qualify as registration forms and which qualify as evidence of registration. The forms that qualify as registration and the forms that qualify as proof of that registration are not all the same. This leads to absurd results, like an Employment Authorization Document (Form I-766) counting as proof of registration while its application form (I-765) is missing entirely from the list of qualifying registration forms. Further, many commonly used immigration forms are missing. This means that someone granted asylum, Temporary Protected Status (TPS), Deferred Action for Childhood Arrivals (DACA), or a U (crime victim) or T (trafficking) visa, can neither apply for registration nor show proof of having registered, despite having authorized immigration status.

As explained above, the Alien Registration Act of 1940 is the only time the U.S. government carried out a comprehensive campaign to require all noncitizens to register. The U.S. government’s other attempts to force noncitizens to register have been explicitly discriminatory in targeting specific racial groups or nationalities. The Chinese Exclusion Act of 1882 led the U.S. government to create a registration system for Chinese immigrants. This swept up not only people born in China but also people of Chinese descent born in the U.S., as well as people authorities considered to “look” Chinese.

The only modern example of registration is the National Security Entry-Exit Registration System (NSEERS), a post 9/11 program created by the George W. Bush administration that targeted noncitizens from 24 Muslim-majority countries and North Korea for registration and tracking. Purporting to address national security concerns, the U.S. government forced 83,000 people to register with NSEERS and placed 13,000 of them in deportation proceedings. The government obtained zero terrorism convictions, all while supercharging racial profiling and tearing families apart. Many communities still live with the pain caused by the deportations of loved ones through the NSEERS system.

The Trump Executive Order did not explicitly create any new duty or process for noncitizens to register. Instead, it orders agencies to come up with ways to use the patchwork of incoherent and obsolete registration laws and regulations against noncitizens.

The Trump administration wants to use out-of-date registration laws as a backdoor way to criminalize people for being undocumented. Moreover, the administration could attempt to wield registration as a way to target people with temporary status for detention and deportation, including people who entered on Biden-era parole programs for people fleeing instability and violence in Cuba, Haiti, Nicaragua, and Venezuela, people with Temporary Protected Status and pending asylum claims.

Were federal prosecutors to charge someone without authorized status under one of the registration-related federal criminal statutes (U.S. Code Title 8, Sections 1304(e) and 1306), they would have an impossibility defense, as there is no process for someone without status to register. This would also be true for someone with a form of authorized status not included in the registration regulations.

Any attempt by the Trump administration to create a registration process for noncitizens previously unable to register would be used to identify and target people for detention and deportation. In so doing, Trump would revive one of the most shameful episodes in U.S. history, when the government used its registration information on Japanese noncitizens to force thousands into internment camps, together with thousands of others who were U.S. citizens of Japanese descent.

Community members with questions about registration and how it might impact them should consult trusted immigration lawyers and monitor trusted sources of information to be aware of any registration process that may be created. More information on the history and evolution of noncitizen registration can be found here.

Community members may also want to consider carrying at least copies of any immigration documents listed in the registration regulations that they may have, in order to show compliance should they be stopped or questioned by law enforcement.

“Prescribed registration forms” listed in the regulations include:

• I-94 Arrival-Departure Record
• I-485 Application for Status as a Permanent Resident
• I-590 Registration for Classification as a Refugee

“Evidence of registration” listed in the regulations includes:

• I-94 Arrival-Departure Record
• I-551 Permanent Resident Card (“Green Card”)
• I-766 Employment Authorization Document (EAD)
• I-862 Notice to Appear.