August 15, 2002 - On Monday the INS published a final rule requiring special registration and future monitoring of foreign nationals who are not lawful permanent residents of the United States. This rule is the direct result of the PATRIOT Act legislation passed by Congress following the terrorist attack on September 11, 2001.

Who is subject to the special registration requirements? The rule permits the INS, in consultation with the State Department, to designate nationals or citizens of specific countries subject to the new rule. The countries designated at this time include Iran, Iraq, Libya, Sudan and Syria. Thus, all foreign nationals present in the United States holding nonimmigrant visa status (e.g., H-1B, H-4, B-1, L-1, L-2, etc.) who are nationals or citizens of Iran, Iraq, Libya, Sudan or Syria are subject to the new registration requirements. The INS, in consultation with the State Department, may add other nations to this list in the future.

The new rule also authorizes consular officers and INS inspecting officers at U.S. ports of entry (such as airports and border inspection posts) to apply the special registration requirements to any foreign national holding nonimmigrant status should they have either (1) "reason to believe" the individual is a citizen or national of a designated country, or (2) "reason to believe" the individual meets unspecified pre-existing criteria indicating "that such foreign national's presence in the United States warrants monitoring in the national security interests . . . or law enforcement interests of the United States." According to an INS press release issued the same day, individuals subject to special registration include nonimmigrant foreign nationals determined by the State Department or INS inspectors "to present an elevated national security risk, based on criteria reflecting current intelligence." The special registration requirements apply to foreign nationals admitted in a nonimmigrant status, and therefore do not apply to lawful permanent residents.

What are the special registration requirements? There are five special registration requirements: (1) Registration at the time of entry (includes fingerprinting and photographing); (2) in-person registration at a local INS district office 30 days after admission; (3) in-person annual registration at a local INS district office; (4) notification to INS (by mail or other means) of any change of residence, employment, or educational institution; (5) in-person INS inspection at the port of exit upon departing the United States.

Foreign nationals subject to the special registration requirements must provide documentation confirming compliance with their visa status and terms of admission at both the 30day and annual "in-person registration events". Foreign nationals are given a 10-day "window" in which to complete each of these registration requirements, i.e., 30 to 40 days after admission, notification of changes within 10 days of occurrence, and annual registration within 10 days of the anniversary of admission to the U.S.

What are the penalties for noncompliance?

1. First and foremost, the amended regulation at 8 CFR § 214.1(f) now states that "Willful failure by a nonimmigrant to register or to provide full and truthful information requested by the Service (regardless of whether or not the information requested was material) constitutes a failure to maintain nonimmigrant status under section 237(a)(1)(C) of the Act." Thus, any subject foreign national who willfully (i.e., purposefully) fails to comply is deportable under Immigration and Nationality Act (INA) § 237(a)(1)(C)(i).
   
2. Any subject foreign national who fails to report for final registration at the time of exiting the United States would be "presumed to be inadmissible." The regulation offers no method or criteria for overcoming this presumption.
3. Additional consequences are likely, because the special registration requirements will now become part of the "terms and conditions of admission" for any foreign national subject to the new rule. For example, any violation of terms and conditions of admission make the foreign national ineligible for adjustment of status, and potentially inadmissible based on security and related grounds, should a consular officer or the INS have "a reasonable ground to believe that the foreign national seeks to enter the United States to engage . . . incidentally in . . . any other unlawful activity."

When does the new rule go into effect? The new rule takes effect on September 11, 2002. The corresponding INS system that will track foreign nationals subject to special registration has been named the National Security Entry-Exit Registration System (NSEERS). According to an August 12 INS press release, INS will implement NSEERS at selected ports of entry throughout the United States on September 11, 2002. Following a 20-day period of testing and evaluation of all remaining ports of entry, including land, air and sea, the INS expects to have NSEERS fully implemented throughout the United States on October 1, 2002.

How does a foreign national subject to the special registration requirements demonstrate compliance? The regulation provides no guidance as to how foreign nationals will be able to demonstrate that they have complied with the special registration requirements. Except for the notification of address changes to be submitted on Form AR-11, the INS expects the special registration requirements to be "paperless."

Berry, Appleman & Leiden will closely monitor the implementation of this new regulation and provide advisory notices to potentially affected clients.