Immigration: Alien Registration
Released: 2004-01-06T00:00:00

Introduction

The September 11, 2001 terrorist attacks called attention to the fact that the U.S. governmentis unaware of the addresses and whereabouts of many foreign nationals (1) in the United States. In theaftermath of the attacks, Congress sought to improve the tracking of one subgroup of foreignnationals: temporary legal residents. To better track these temporary residents, also known asnonimmigrants, the 107th Congress revived efforts to implement an entry-exit control system and asystem for monitoring foreign students. (2) In addition,the Department of Homeland Security (DHS)is using the registration provisions of the Immigration and Nationality Act to track foreign nationalsin the United States. (3) As detailed below, that actrequires that most aliens in the United States for30 days or longer be registered and provide notification of each change of address. The alienregistration issue has also been considered to a limited extent in the 107th and 108thCongresses.

Current Registration Provisions

Alien registration requirements, which date to the Alien Registration Act of 1940, wereincorporated into the Immigration and Nationality Act (INA) of 1952. (4) They generally do not applyto, or can be waived in, the case of nonimmigrants entering under INA ï¿½101(a)(15)(A) (ambassadorsand diplomats) or INA ï¿½101(a)(15)(G) (representatives to, and officials and employees of,international organizations). In their current form, these requirements include the following: (5)

No visa can be issued to an alien unless the alien has been registered in connection with the visa application. (6)

Every alien who is age 14 or older, remains in the United States for 30 daysor longer, and has not been registered must apply for registration and be fingerprinted before day 30. The Attorney General may waive the fingerprinting requirement in the case of anynonimmigrant. (7)

The Attorney General is authorized to prescribe special regulations and formsfor the registration and fingerprinting of certain enumerated groups, including aliens of any classwho are not legal permanent residents (LPRs) of the United States. (8)

The Attorney General and the Secretary of State are authorized to prepareforms for the registration of aliens. These forms are to contain questions about the date and placeof the alien's entry into the United States; activities in which the alien has been and intends to beengaged; expected length of stay; any police or criminal record; and any additionalmatters. (9)

Aliens required to be registered must notify the Attorney General in writingof each change of address within 10 days of the change and provide such additional information asthe Attorney General may require. Similarly, the Attorney General, upon 10 days notice, may requirethe natives of any foreign state who are required to be registered to provide notification of theircurrent addresses and such additional information as the Attorney General mayrequire. (10)

An alien required to apply for registration and to be fingerprinted who willfullyfails to do so is guilty of a misdemeanor, and upon conviction, may be fined up to $1,000 orimprisoned for up to 6 months, or both. An alien who fails to notify the Attorney General of achange of address is guilty of a misdemeanor, and upon conviction, may be fined up to $200 orimprisoned for up to 30 days, or both. Regardless of whether such an alien is convicted or punishedfor failing to provide the address notification, the alien will be taken into custody and removed fromthe country unless the alien satisfies the Attorney General that "such failure was reasonablyexcusable or was not willful." (11)

Special Registration Requirements

At various times in the past, the Attorney General used the authority granted by the INA toprescribe special regulations and forms for the registration and fingerprinting of certain groups ofaliens. Until its abolition in March 2003, the Immigration and Naturalization Service (INS)administered alien registration. In January 1991, on the eve of the Persian Gulf War, INSpromulgated a rule requiring all nonimmigrants carrying Iraqi or Kuwaiti travel documents whoapplied for admission to the United States, except for those entering as diplomats or officials ofinternational organizations, to be registered, photographed, and fingerprinted at the port of entry. According to the summary of the rule in the Federal Register : "This action is necessary to protectand safeguard the interests and security of the United States as a precaution against reprisals ..." (12)

In December 1993, INS published an interim rule that removed these special registration requirements for Iraqis and Kuwaitis. The rule also added a new provision to the INS regulationson registration. (13) That provision stated that theAttorney General may require, by public notice inthe Federal Register , that certain nonimmigrants of specific countries be registered and fingerprintedupon arrival in the United States. The supplementary information accompanying the rule describedthe provision as "a procedural change which affords the Attorney General more flexibility inresponding to specific political situations than was formerly available [when changes in regulationwere required]." (14) Under the authority of theprovision, INS published a separate notice in the sameissue of the Federal Register requiring all nonimmigrants bearing Iraqi or Sudanese traveldocuments who applied for admission to the United States, except for those entering as diplomatsor officials of international organizations, to be registered, photographed, and fingerprinted at theport of entry. The notice indicated that such measures were necessary in light of "recent terroristactivities perpetrated on United States soil and the discovery of terrorist plots." (15) In September 1996,INS published a Federal Register notice similarly providing for the registration, photographing, andfingerprinting of nonimmigrants holding Iranian or Libyan travel documents. (16) In July 1998, INSpublished a notice consolidating and replacing these two notices covering nonimmigrants holdingIranian, Iraqi, Libyan, or Sudanese travel documents. (17)

2002 Registration-Related Rules

According to the Department of Justice (DOJ), the September 11, 2001 terrorist attackshighlighted weaknesses in the U.S. immigration system. Under the system in place at that time, DOJmaintained, it was difficult to know whether nonimmigrants in the country were following theirstated plans, whether they remained beyond their authorized period of stay, and how to locate them,if necessary. To address these and other concerns, INS proposed two rules in 2002 that drew on theINA's registration provisions and other authority.

Entry-Exit Registration System

On June 5, 2002, DOJ outlined a proposal for a "National Security Entry-Exit Registration System" (NSEERS). In prepared remarks on the proposal, Attorney General John Ashcroft said:

This system will expand substantially America's scrutiny of those foreign visitors who may pose a national security concern and enter our country. And it will provide a vital line of defense in the war againstterrorism.

The Attorney General described NSEERS as the first step toward developing a congressionally mandated entry-exit data system to track virtually all foreign visitors. (18)

INS proposed a rule to implement NSEERS on June 13, 2002, and issued the final rule on August 12, 2002. (19) The rule took effect onSeptember 11, 2002. Under the rule, expanded specialregistration requirements apply to nonimmigrant aliens from designated countries. Theserequirements also apply to individual nonimmigrants from any country who a consular officer abroador an inspection officer at the port of entry determines meet undisclosed criteria indicating that thealien's presence in the United States warrants monitoring in the interests of national security or lawenforcement. These requirements do not apply to nonimmigrants applying for admission asdiplomats or officials of international organizations. According to the supplementary informationaccompanying the rule, the covered individuals constitute "only a small percentage of the more than35 million nonimmigrant aliens who enter the United States each year." DOJ estimated thatNSEERS would track about 100,000 visitors in the first year. (20)

Upon arrival in the United States, aliens subject to special registration under the rule are fingerprinted, photographed, and checked against databases of known criminals and terrorists. Theyalso are required to register by providing "routine and readily available information," such aspersonal information and information about their plans in the country. The original rule, which hassince been amended as described below, required aliens registered at a port of entry to satisfysubsequent 30-day and annual registration requirements. Under the original rule, if these aliensremained in the country for 30 days or longer, they had to report to an immigration office betweenday 30 and day 40 to complete their registration by providing additional documentation ofcompliance with their visas, including proof of residence, employment, and school enrollment asapplicable. Those aliens remaining for more than 1 year had to reaffirm their registrationinformation annually.

Aliens subject to special registration who remain in the United States for 30 days or longer also have to provide notification of any change in their residential address, employment, or educationalinstitution within 10 days. Upon leaving the United States, special registrants are required to reporttheir exit at the port of departure. (21)

On September 11, 2002, NSEERS was implemented at selected ports of entry. On October 1, 2002, the system went into effect at all remaining land, air, and sea ports of entry. It coversnonimmigrants who are citizens or nationals of Iran, Iraq, Libya, Sudan, and Syria, as well as othernonimmigrants determined to pose an elevated national security risk as explained above. (22) Aninternal INS memorandum dated September 5, 2002, which has been reported on by various mediaoutlets, stated that the Attorney General had determined that nonimmigrant males applying foradmission who are citizens or nationals of Pakistan, Saudi Arabia, or Yemen and are between theages of 16 and 45 warranted special registration. According to the memorandum, these individualswere to be subject to special registration as of October 1, 2002. The memorandum also enumeratedthe seven criteria to be used by immigration inspectors to determine whether to require the specialregistration of arriving nonimmigrants from any country. Among these criteria were the following: The alien has made unexplained trips to Iran, Iraq, Libya, Sudan, Syria, Saudi Arabia, or one of nineother specified countries; and "The nonimmigrant alien's behavior, demeanor, or answers indicatethat the alien should be monitored in the interest of national security." Neither DOJ nor INS wouldcomment on this memorandum. (23)

Aliens in the United States. In addition to requiring the special registration of certain newly arriving nonimmigrants, INS published a noticein the Federal Register on November 6, 2002, similarly requiring the registration of certainnonimmigrants already residing in the United States. (24) The notice required nonimmigrant males whowere citizens or nationals of Iran, Iraq, Libya, Sudan, and Syria, were at least 16 years old, and werelast admitted to the United States on or before September 10, 2002, to report to an immigrationoffice by December 16, 2002, to be registered, fingerprinted, and photographed. (A Federal Register notice published on January 16, 2003, reopened the registration period for individuals covered bythe November 6, 2002 notice. It stated that those individuals who had not registered as requiredcould do so between January 27, 2003, and February 7, 2003, and would be considered to be incompliance. (25) ) Following this initial registration,these individuals were required to registerannually. A December 2, 2003 DHS rule, described below, suspended this annual re-registrationrequirement.

Subsequent Federal Register notices, published on November 22, 2002, December 18, 2002, and January 16, 2003, made nonimmigrant males from additional countries who were at least 16years old and were last admitted to the United States on or before September 30, 2002, subject tospecial registration. (26) The November 22 noticecovered citizens or nationals of Afghanistan, Algeria,Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United ArabEmirates, or Yemen. They were required to report to an immigration office by January 10, 2003, tobe registered, fingerprinted, and photographed. (Like those covered by the November 6, 2002 notice,individuals covered by this notice who had not registered by the deadline were given the opportunityto do so between January 27, 2003, and February 7, 2003, under the terms of the January 16 noticecited above.) The December 18 notice required citizens or nationals of Pakistan or Saudi Arabia (27) to report to an immigration office by February 21, 2003, to be registered, fingerprinted, andphotographed, and the January 16 notice required citizens or nationals of Bangladesh, Egypt,Indonesia, Jordan, or Kuwait to report by March 28, 2003. A February 19, 2003 Federal Register notice extended these registration deadlines to March 21, 2003, and April 25, 2003, respectively. (28) Following their initial registration, as set forth in the notices, these individuals were required toregister annually. As described below, this annual re-registration requirement was suspended inDecember 2003.

During an April 2003 speech, Secretary of Homeland Security Tom Ridge signaled the end of NSEERS registrations for aliens within the country. He announced a new entry-exit system calledthe U.S. Visitor and Immigration Status Indication Technology (US-VISIT) System, (29) which, he said,was scheduled to begin operations by the end of the year. Secretary Ridge stated:

I want to stress that the phase-in of the new VISIT system will provide us with the crucial biometric information needed to end the domestic registrationof people from certain countries, which has been conducted for the past several months under asystem known as NSEERS. (30)

Number of Registrants. Through September 30, 2003, 177,260 individuals had been registered under NSEERS Of this total, 93,741 were registeredat a port of entry, and 83,519 were registered when they reported to an immigration office. (31) As ofDecember 1, 2003, individuals from more than 150 countries had been registered in the NSEERSprogram. (32)

Address Reporting

As noted in the earlier discussion of current registration requirements, aliens required to be registered under the INA must notify the U.S. government in writing of each change of addresswithin 10 days. This reporting requirement applies to virtually all aliens who remain in the UnitedStates for 30 days or longer, including LPRs. These individuals number in the millions. (33) Formerprovisions of the INA required nonimmigrants to submit address notices every 3 months andrequired other aliens, including LPRs, to submit such notices every year, regardless of whether theiraddresses had changed. (34) Both of these reportingrequirements were repealed by the Immigrationand Nationality Act Amendments of 1981 in the stated interest of improving the efficiency of INS. (35)

Under current law, aliens who fail to submit change-of-address notices can be fined and/or imprisoned, and are subject to being taken into custody and removed from the country. Accordingto a July 2002 DOJ fact sheet, however, both compliance with and enforcement of this requirementhave been lacking. (36) As a result, the governmentdoes not have the current addresses of manynoncitizens required to be registered.

A rule proposed by INS on July 26, 2002, would provide notice to aliens of their obligation to submit address notices and the consequences of failing to do so. (37) The rule would amend variousimmigration forms to require aliens applying for immigration benefits to acknowledge havingreceived notice of the following:

the alien must provide a valid current address, including any change of address within 10 days of the change;

the most recent address provided by the alien will be used for all purposes,including the service of a written notice informing the alien of the initiation of removal proceedings(referred to as a "notice to appear"); and

if the alien has changed addresses and failed to provide notification, the alienwill be held responsible for any communications sent to the prior address.

According to the July 2002 DOJ fact sheet cited above, this rule will help track noncitizens, will enhance the ability to initiate and complete removal proceedings, (38) and will facilitate contactingaliens in a timely fashion about their applications for immigration benefits. The comment period onthe rule ended on August 26, 2002.

Reactions to the Rules

These registration and address reporting rules have been controversial. Supporters portray the entry-exit registration system as a needed means of reducing the nation's vulnerability to futureterrorist attacks. In addition, they view it as a reasonable way to begin addressing the problem ofillegal immigration by identifying individuals who remain in the country beyond their authorizedperiod of stay. Critics take issue with the system's purported national security benefits,characterizing it as an inefficient and counterproductive approach that will create resentment of theUnited States in the Muslim and Arab world and will undermine international support for the U.S.war on terrorism. They describe it as a blatant example of racial and ethnic profiling, which, theymaintain, runs counter to core democratic values. Critics, as well as some supporters, also havequestioned whether such a system would be effectively implemented.

The proposed address reporting rule has likewise elicited strong reactions. Some support the underlying idea, agreeing that it is important for the government to have the current addresses offoreign nationals in the United States. As with the entry-exit registration proposal, however, someof these supporters, as well as opponents, have raised doubts about whether the information wouldbe processed in a timely fashion. In 2002, when INS had responsibility for processing immigrationforms, it was reported in July that the agency had not filed 2 million documents submitted byimmigrants, including 200,000 change-of-address cards. (39) It was further reported in early September2002 that INS had received 870,000 change-of-address forms since publication of the proposedaddress reporting rule in July and had processed some 100,000. (40) Moreover, some supporters havequestioned whether processing updated address information would be the best use of immigration-related resources. In addition to questioning the feasibility of implementing large-scale addressreporting, opponents have voiced substantive objections to the proposal. They argue that strictlyenforcing the change-of-address reporting requirement could subject some otherwise law-abidingaliens to severe punishment, possibly including removal. Critics also fear selective enforcement ofthe reporting requirement on the basis of race, ethnicity, or other characteristics.

2003 Changes to the Special Registration System

On December 2, 2003, DHS published an interim rule in the Federal Register to amend the NSEERS regulations. (41) The rule became effectiveon December 2 and provided for a 2-monthcomment period, ending on February 2, 2004. The interim rule suspends the requirements that: (1)individuals registered under NSEERS at a port of entry report after 30 days to complete theirregistration; and (2) all NSEERS registrants re-register annually. Instead, according to the summaryof the rule, "DHS will utilize a more tailored system in which it will notify individual aliens of futureregistration requirements." Under the new rule, DHS will decide on a case-by-case basis whichregistrants must appear at a DHS office (specifically, a U.S. Immigration and Customs Enforcementoffice) for one or more additional registration interviews to determine whether they are incompliance with the conditions of their nonimmigrant visa status and admission. For some aliens,these interviews may be more frequent than the prior 30-day and annual re-registration requirements. Among the other changes made by the rule are conforming amendments to the regulations to reflectthe transfer of immigration-related functions from DOJ to DHS under the Homeland Security Actof 2002 ( P.L. 107-296 ).

In the supplementary information accompanying the rule, DHS offered several reasons why the suspension of the automatic re-registration requirements is appropriate and advantageous. Itindicated that there are other tracking systems, including US-VISIT and the Student and ExchangeVisitor Information System (SEVIS), (42) that canhelp ensure that NSEERS registrants remain incompliance with the terms of their visas and admission. In addition, DHS stated that suspending the30-day and annual re-registration requirements "will reduce the burden on those required to registerunder the current regulations, as well as to DHS." With respect to the latter, it further stated thatDHS resources not needed for re-registrations can be used for other purposes, including "to craft atargeted registration process that meets the national security needs of the country."

The rule does not amend existing NSEERS registration procedures at ports of entry, including the fingerprinting, photographing, and registering of covered aliens. According to DHS:

Special registration of aliens at [ports of entry] has, consistent with the program's intent, provided important law enforcement benefits, which haveincluded the identification of a number of alien terrorists andcriminals.

The rule also does not change the general requirement that NSEERS registrants report their departure upon leaving the United States.

Legislation in the 107th Congress

Alien registration and reporting provisions were included in legislation in the 107th Congress. The Enhanced Border Security and Visa Entry Reform Act of 2002, as enacted by the 107thCongress, directs the General Accounting Office to conduct a study of the feasibility and utility ofrequiring nonimmigrants in the United States to submit a current address and, where applicable, thename and address of an employer every year. The study is due by May 2003. (43) As discussed above,a similar address reporting requirement existed until 1981.

An immigration reform measure, the "Securing America's Future through Enforcement Reform Act of 2002" ( H.R. 5013 ), would have amended the INA to expand existing registrationrequirements. (44) In addition to the currentrequirement that aliens who are in the United States for30 days or longer and are unregistered apply for registration and be fingerprinted by day 30, it wouldhave required subsequent registrations on the part of LPRs every year and on the part of other aliensevery 3 months. With respect to address reporting, the bill would have retained the currentrequirement that aliens notify the Attorney General of a change of address within 10 days and wouldhave preserved the Attorney General's authority to require, upon 10 days notice, that the natives ofany foreign state report their current addresses. Among its other registration-related provisions, H.R. 5013 would have directed the Attorney General to establish an informationtechnology system for the collection, compilation, and maintenance of registration information. H.R. 5013 was referred to the House Judiciary Committee and its Subcommittee onImmigration, Border Security, and Claims, but saw no further action.

Legislation in the 108th Congress

In the 108th Congress, the Senate agreed to an alien registration-related amendment( S.Amdt. 54 ) by unanimous consent during its consideration of the FY2003Consolidated Appropriations Resolution ( H.J.Res. 2 ). S.Amdt. 54 , whichwas sponsored by Senator Jon Kyl with bipartisan cosponsorship, sought to make funding availablefor an entry-exit system. It also provided that no funds appropriated by the act would be availablefor any expenses related to NSEERS and directed the Attorney General to provide theAppropriations Committees with NSEERS-related documents and materials. The Senate passed anamended version of H.J.Res. 2 , which included S.Amdt. 54 , on January23, 2003. (45) The version of H.J.Res. 2 passed by the House on January 8, 2003, did notinclude language on NSEERS. The final version of H.J.Res. 2 , signed into law onFebruary 20, 2003 as P.L. 108-7 , did not eliminate funding for NSEERS. It did, however, includelanguage requiring the Attorney General, in consultation with the Secretary of DHS, to provide theAppropriations Committees by March 1, 2003, with the NSEERS-related documents and materialsdescribed in the Senate amendment.