Alien Registration Requirement

USCIS is resuming use of an alien registration requirement enacted during the Second World War and incorporated into the 1952 Immigration and Nationality Act. Department of Homeland Security Noem announced that DHS will use every tool available to compel self-deportation.

History of the registration requirement

The original Alien Registration Act of 1940 sought to create a registry of all foreign nationals living in the U.S. and registered more than 5.6 million people between August 1, 1940, and March 31, 1944. The Attorney General at the time made a radio address that this was essentially just for informational purposes, that those who registered would be given full consideration for cancellation of deportation versus being harshly dealt with for failure to register. Thereafter, the program fell into decline, in part due to the expense of registration (originally handled for no fee at the post office), reciprocity (waiving the fingerprint requirement greatly increased athlete attendance at the 1960 Winter Olympics in California), and other changes to immigration law creating duplicity (I-94 cards and I-551 cards reflect different statuses but both became acceptable proof of registration).

Understanding registration and address reporting requirements

Immigration and Nationality Act Section 261 (8 USC 1301) requires aliens to register, with exceptions, before being issued a visa. INA 262 requires anyone 14 years of age or older who was not registered and fingerprinted while receiving entry documents and will remain in the US for thirty days or longer, to register and be fingerprinted before the expiration of the 30 days. Parents are required to register children under 14 years of age. INA 263 provides for registration of special groups--some listed--and also of any other class not admitted for permanent residence. This last provision has been used to create registration requirements for limited groups of people, most recently after 9/11 through the National Security Entry-Exit Registration System (NSEERS). Additionally, at INA 265, all aliens in the US must update their address with the Attorney General within ten days of each new address, and parents must update the address of children.

Understanding penalties for failure to register or update US address

INA 264 states that the Attorney General and the Secretary of State are jointly authorized to prepare forms for registration, to provide a receipt or card as proof of registration, and also that

·      Failure of anyone 18 or older to carry their proof of registration with them at all times is a misdemeanor subject to a fine of up to $100 or up to thirty-days imprisonment or both.

·      INA 266 provides that the willful failure or refusal to register (or a legal guardians willful failure or refusal to register a child) is a misdemeanor subject to a fine of up to $1,000 or up to six months imprisonment or both.

·      Failure of an alien to change their address within ten days is a misdemeanor punishable by up to $200 or imprisonment up to thirty days or both. INA 266 also says that whether or not convicted under the statute, anyone failing to comply SHALL be taken into custody and removed UNLESS the Attorney General is satisfied that the failure was reasonably excusable or was not willful.

How and where to register

After the free option to register at the post office ended in the 1940's, there has been no way for anyone not currently applying for immigration benefits in the US or entry to the US to comply with the registration requirement (publicized as for informational purposes). USCIS will now require everyone to create a myUSCIS account in preparation for a registration form to be provided online, and is very clear that it is not just for information purposes.

In order to change one's address with USCIS, the process depends on your status:

·      For those with an online account, that is the best option

·      For U/T/VAWA/I-751 abuse cases, there are special instructions.

·      For those in removal proceedings, there are additional requirements and shorter timelines.

·      Anyone else can mail in an AR-11 Change of Address Card.

What happens after registration

Deportation. Other than that the government is required to provide proof of registration, and Department of Homeland Secretary Kristi Noem has promised to "help them relocate back to their home country," logistics and any benefits are not otherwise provided. DHS has made it very clear that the aim is for applicable foreign nationals to leave on their own.  The Secretary states that voluntary departure opens up avenues for lawful return in the future, but does not outline that registration would waive any of the existing bars to re-entry.

Conclusion

Individuals will need to weigh the cost of not registering. We will watch for pending litigation, but the US Supreme Court has previously recognized the provisions. Other countries also have registration requirements. While when initially introduced in 1940 there were wide-spread advertisements that it was not purely penalizing and just for tracking purposes (and not always used that way), it is clear that the current goal is to penalize. In addition, all nonimmigrants bear the risk of fines, imprisonment, or even detention and removal for failure to keep their address current with the Attorney General.