Real World Impact: Earlier this year, the Department of Homeland Security (DHS) published an interim final rule (IFR) that provides a new online process for unregistered foreign nationals to comply with the decades-old but rarely enforced registration requirements of the Immigration and Nationality Act (INA). The IFR also requires foreign nationals over the age of 18 to carry proof of registration with them at all times. Failure to register or carry proof of registration is punishable by fines and possible imprisonment.
Background: Under the INA, with limited exceptions, foreign nationals age 14 or older who were not registered or fingerprinted (if required) when they applied for a visa and who are staying in the U.S. for 30 days or longer must apply for registration and fingerprinting. Parents and legal guardians of foreign nationals under age 14 must ensure they are registered. Within 30 days of turning 14, a foreign national, regardless of whether they previously registered, must apply for registering and fingerprinting.
Who is Already Considered Registered?
Certain foreign nationals are considered preregistered, and no additional registration action is needed: lawful permanent residents, those with Employment Authorization Documents (EADs), those on sponsored work visas who have an I-94, their family members who have a valid I-94, and a few other categories. A full list of those who are considered preregistered is available on the USCIS website at: https://www.uscis.gov/alienregistration.
Who is Not Considered Registered?
Certain foreign nationals are not considered registered and must do so, including those who entered the U.S. without inspection, children who are turning 14 (as noted above), and visa-exempt Canadian visitors who entered at a land port of entry, were not issued an I-94 upon entry, and are staying in the U.S. longer than 30 days.
New Registration Form
USCIS has developed a new registration form that those who are not registered can use: https://www.uscis.gov/forms/all-forms/g-325r. Note that the use of this form to register is not an immigration status and does not confer employment authorization or provide any other right or benefit under the INA or other U.S. law.
Evidence of Registration
The following documents are considered evidence of registration:
- I-94, Arrival-Departure Record—Aliens admitted as nonimmigrants; aliens paroled into the United States under section 212(d)(5) of the Immigration and Nationality Act; aliens whose claimed entry prior to July 1, 1924, cannot be verified, having satisfactorily established residence in the United States since prior to July 1, 1924; and aliens granted permission to depart without the institution of deportation proceedings.
- I-95, Crewmen's Landing Permit—Crewmen arriving by vessel or aircraft.
- I-184, Alien Crewman Landing Permit and Identification Card—Crewmen arriving by vessel.
- I-185, Nonresident Alien Canadian Border Crossing Card—Citizens of Canada or British subjects residing in Canada.
- I-186, Nonresident Alien Mexican Border Crossing Card—Citizens of Mexico residing in Mexico.
- I-221, Order to Show Cause and Notice of Hearing—Aliens against whom deportation proceedings are being instituted.
- I-221S, Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien—Aliens against whom deportation proceedings are being instituted.
- I-551, Permanent Resident Card—Lawful permanent resident of the United States.
- I-766, Employment Authorization Document.
- Form I-862, Notice to Appear—Aliens against whom removal proceedings are being instituted.
- Form I-863, Notice of Referral to Immigration Judge—Aliens against whom removal proceedings are being instituted.
- USCIS Proof of Alien G-325R Registration, or its successor form (this newly developed form is discussed above).
See https://www.ecfr.gov/current/title-8/chapter-I/subchapter-B/part-264/section-264.1. In addition to the documents listed above, a valid, unexpired DHS admission or parole stamp in a foreign passport constitutes evidence of registration.
Requirement to Carry Proof of Registration
All foreign nationals over the age of 18 who are required to register must carry their proof of registration with them at all times. For green card holders, this means carrying their Permanent Resident cards with them at all times. As with any important personal documents, we recommend people make copies of their proof of registration in case of loss or theft. Foreign nationals must also notify DHS of any change of address within 10 days of the change. A failure to comply with either of these requirements is punishable by a fine of up to $5,000 and imprisonment of up to 30 days, or both.
The Bottom Line
While most noncitizen employees will be considered preregistered and do not need to reregister, it is important that they ensure they have proof of registration with them at all times. Few arrests have been reported for failure to possess proof of registration, but it is important to ensure that foreign nationals are prepared to demonstrate their compliance with the registration requirement in light of the USCIS’s increased focus on worksite enforcement. If someone is detained and asked to provide this documentation, they are not required to answer any questions and can ask to speak to their lawyer. Following arrests for failure to register, some courts have dismissed charges where prosecutors were unable to articulate probable cause for the defendant’s knowledge of the registration requirement and/or intentional refusal to register. Accordingly, awareness of the registration requirement appears important for any related criminal liability.
