Affected applicants for nonimmigrant visa admission are those identified in any way by consular or immigration officers to be nationals or citizens of Iran, Iraq, Libya, Sudan, or Syria. Lawful permanent residents will not be affected by this rule, nor will applicants for admission under the diplomatic "A" or "G" nonimmigrant visa categories.

(Please see our August 15 news update which explained the new special registration requirements put into effect by INS, mandated by last year's antiterrorism-oriented PATRIOT Act. At present, the special registration requirements will only impact applicants for nonimmigrant admission from abroad. Individuals already admitted to the United States will not be subject to the special registration requirements, unless they should leave the United States and subsequently seek admission as a nonimmigrant. Generally speaking, these new special registration requirements will involve fingerprinting and photographing upon arrival, as well as in-person registration 30 days after arrival, annually thereafter, and when leaving the country.)

As previously explained in our August 15 article, this rule authorizes consular officers and INS inspecting officers to apply the special registration requirements to any foreign national holding nonimmigrant status, should the officer have (1) reason to believe the foreign national is a citizen or national of a designated country, or (2) reason to believe the foreign national's "presence in the United States warrants monitoring in the national security interests…or law enforcement interests of the United States." 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 INS may also apply the special registration requirements to individuals already admitted to the United States in the future, upon publication of notice; however, this has not been done to date.

Importantly, these special registration requirements will apply to any applicants for nonimmigrant admission (other than under the "A" or "G" diplomatic visa categories) whom a consular or immigration officer may have reason to believe is a "national or citizen" of these countries, regardless of any applicant's change in citizenship or nationality. Thus, applicants for admission whose documents indicate birth in Iran, Iraq, Libya, Sudan, or Syria may be subjected to the new special registration requirements, regardless of any dual citizenship status. Even those who have relinquished citizenship or nationality in any one of these five countries, may be deemed subject to these new special registration requirements.

The new Notice does not yet clarify the procedures for "special registration." Berry, Appleman & Leiden will continue to post updates on these new procedures as implementing policies and rules are published.