Registration and Monitoring of Certain Nonimmigrants

AGENCY:

Immigration and Naturalization Service; Justice.

ACTION:

Proposed rule.

SUMMARY:

Recent terrorist incidents have underscored the need to broaden the special registration requirements for nonimmigrant aliens from certain designated countries, and other nonimmigrant aliens whose presence in the United States requires closer monitoring, to require that they provide specific information at regular intervals to ensure their compliance with the terms of their visas and admission, and to ensure that they depart the United States at the end of their authorized stay. This proposed rule seeks to modify the existing requirements to require certain nonimmigrant aliens to make specific reports to the Immigration and Naturalization Service: upon arrival; approximately 30 days after arrival; every twelve months after arrival; upon certain events, such as a change of address, employment, or school; and at the time of departure from the United States.

DATES:

Written comments must be received on or before July 15, 2002.

ADDRESSES:

Please submit written comments to the Director, Regulations and Forms Services Division, Immigration and Naturalization Service, 425 I Street, NW, Room 4034, Washington, DC 20536. To ensure proper handling, please reference INS No. 2216-02 on your correspondence. Comments may also be submitted electronically to the Service at insregs@usdoj.gov. When submitting comments electronically, please include INS No. 2216-02 in the subject heading. Comments are available for public inspection at this location by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT:

Dan Brown, Office of the General Counsel, Immigration and Naturalization Service, 425 I Street, NW, Room 6100, Washington, DC 20536, telephone (202) 514-2895.

SUPPLEMENTARY INFORMATION:

This proposed rule will apply only to a small percentage of nonimmigrant aliens: nonimmigrant aliens from selected countries specified in notices published in the Federal Register; and individual nonimmigrant aliens who are designated by a consular officer outside the United States or an inspection officer at the port of entry based on information that indicates the need for closer monitoring of the alien's compliance with the terms of his or her visa or admission in the national security or law enforcement interests of the United States. This proposed rule expands the existing special registration rule to require that these designated nonimmigrant aliens provide more detailed and frequent information to ensure that they comply with the conditions of their visas and admissions, along with their departures.

Currently, nonimmigrant aliens from Iran, Iraq, Libya, and Sudan are subject to special fingerprinting requirements. 63 FR 39109 (July 21, 1998).

This proposed rule does not apply to nonimmigrant aliens applying for admission to the United States under sections 101(a)(15)(A) (ambassador, public minister, career diplomat) or 101(a)(15)(G) (representative or employees of an international organization) of the Immigration and Nationality Act (“Act”).

General and Special Registration Requirements

Section 262(a) of the Act provides that all aliens who have not previously been registered and fingerprinted, pursuant to section 221(b) of the Act, have a duty to apply for registration and to be fingerprinted if they remain in the United States for 30 days or longer. Under the existing regulations at 8 CFR 264.1(a), the Immigration and Naturalization Service (“Service”) registers nonimmigrants using Form I-94 (Arrival-Departure Record). As authorized by section 262(c) of the Act, however, the Service's existing regulations at 8 CFR 264.1(e) contain general provisions waiving the fingerprinting requirement for many nonimmigrants. Accordingly, most nonimmigrant aliens are admitted to the United States without being either fingerprinted or photographed.

Notwithstanding the general registration requirements, section 263(a) of the Act also authorizes the Attorney General to prescribe special regulations and forms for the registration, among other classes, of “aliens of any other class not lawfully admitted to the United States for permanent residence.” Pursuant to this section, as well as the Attorney General's general registration authority under section 262 of the Act, the Attorney General promulgated 8 CFR 264.1(f), which authorizes the Attorney General, by notice published in the Federal Register, to direct that certain nonimmigrant aliens from designated foreign countries be registered, fingerprinted, and photographed by the Service at the port of entry at the time the nonimmigrant aliens apply for admission. See 25 FR 10495 (Nov. 2, 1960) (final rule); 58 FR 68024 (Dec. 20, 1993) (interim rule), 63 FR 39109 (July 21, 1998) (notice).

Moreover, the Attorney General is authorized to prescribe conditions for the admission of nonimmigrant aliens under section 214 of the Act. Section 215 of the Act provides for departure control from the United States. In addition, section 265 of the Act requires that all aliens who remain in the United States for 30 days or more (other than A or G nonimmigrants) must file a notice of change of address with the Attorney General within 10 days of any change of address.

This proposed rule provides for implementation of these requirements for nonimmigrant aliens subject to special registration. However, this Supplementary Information also serves as a reminder to all aliens (not just those nonimmigrant aliens subject to special registration) of their legal obligations under section 265 of the Act to notify the Attorney General, as delegated to the Service, within 10 days of any change of address by filing the general change of address form, Form AR-11.

Need for the Rule

The events of September 11, 2001, highlighted weaknesses in the current immigration system, which does not provide for the adequate collection of information on the activities and whereabouts of nonimmigrant aliens. Under existing regulations it is difficult to determine if such aliens follow their stated plans while in the United States, to determine if they have remained in the United States beyond their authorized period of stay, and to locate them when necessary. Moreover, current procedures do not provide for the collection of fingerprints at the port of entry from many aliens who present a heightened risk of involvement in terrorist or criminal activity. In conjunction with other changes in the regulations, this proposed rule implements special registration requirements (including fingerprinting, photographing, etc.) that will allow the Service to improve nonimmigrant compliance with the terms of their visas and admissions.

The difference between the general requirements and the special requirements is that the United States frequently acquires information that indicates that a specific alien's or class of aliens' activities within the United States should be more closely monitored. Such aliens should be and will be required to provide more information in their registration than other aliens to permit their activities to be followed more closely and to ensure compliance with the terms of their visas, including timely departure.

In promulgating this proposed rule, the Attorney General has determined that existing international conditions require that certain classes of nonimmigrant aliens be required to follow special registration procedures to better ensure the security of the United States through closer monitoring of compliance with the terms of their visas and admissions. The aliens in these classes are referred to in the proposed rule as “nonimmigrant aliens subject to special registration.” Nonimmigrant aliens subject to special registration will include those individual aliens whom the Attorney General or the Secretary of State, through officials of their departments, have determined should be monitored within the United States in order to promote the nation's security or law enforcement interests. Such law enforcement interests include the enforcement of national immigration laws as well as the prevention of other criminal activity. The Attorney General and the Secretary of State may jointly exempt classes of nonimmigrant aliens subject to special registration from that registration. The Attorney General or the Secretary of State may individually exempt an individual nonimmigrant alien from the requirements of special registration.

Nonimmigrant Aliens Whom the Inspecting Officer Has Reason To Believe Present a Heightened National Security or Law Enforcement Risk

The proposed rule provides for supplemental registration at the port of entry for any nonimmigrant whom the inspecting official has reason to believe presents a national security or law enforcement risk, including the risk that the alien may violate the terms of his visa or exceed his authorized period of stay. Accordingly, this proposed rule would delegate authority to require the registration of a nonimmigrant alien whom the inspecting officer has reason to believe presents such a risk. This determination will be made according to specific criteria established by the Attorney General, in light of the observations and experience of the inspecting officers. The criteria, based on experience, are expected to change over time, but the criteria must be established and enunciated to the inspectors prior to their application.

Form of Registration

In this proposed rule, the Attorney General specifies that nonimmigrant aliens subject to special registration must be fingerprinted and photographed, and must provide expanded information on a required form. The nonimmigrant alien will be required, under the informational form being developed by the Service, or an existing form if that option is undertaken, to provide routine and readily available information, which may include: name; passport country of issuance and number; identification and description of a second form of positive identification (e.g., driver's license and number); date of birth; country of birth, nationality and citizenship; height; weight; color of hair; color of eyes; address of residence in the United States and in country of origin; telephone number(s) in the United States and in country of origin; the names, addresses, and dates of birth for both parents; points of contact in the alien's country of origin; name and address of school or employer in the United States (if applicable); name and address of former school or employer in country of origin; intended activities in the United States; and any e-mail addresses. The proposed rule also requires that such nonimmigrant aliens provide the following information at certain intervals: an additional form of photographic identification (e.g., driver's license); proof of tenancy at the listed residential address (e.g., rental contract, mortgage); proof of enrollment at a school or other authorized educational institution where applicable; and/or proof of employment where applicable.

In addition, under these proposed procedures, nonimmigrant aliens subject to special registration will be fingerprinted and photographed at the port of entry. This will allow the Service to determine if an alien's fingerprints match those of known terrorists or criminals, and to detain the alien if such an identity match is established. It will also serve important law enforcement and national security purposes if the alien is later suspected of taking part in terrorist or criminal activity in the United States and will ensure that the nonimmigrant alien cannot reenter the United States in the future using a different identity.

Relief From Requirements

A nonimmigrant alien subject to special registration may seek relief from the requirements of special registration from a Service district director or other official designated by the Attorney General. For example, an alien initially required to complete the requirements of special registration may satisfy the district director that due to exigent or unusual circumstances such requirements cannot reasonably be fulfilled.

Nonimmigrant Aliens From Designated Countries Already in the United States

Section 265(b) of the Act provides that the Attorney General may require natives or citizens of a designated country who are already in the United States, or any subset of such class, to register pursuant to this section. In the event the Attorney General determines that it is necessary to register such nonimmigrant aliens, the Attorney General will publish a notice in the Federal Register describing the aliens who will be required to appear at a Service office for registration. The Attorney General's notice will describe the class of nonimmigrant aliens and the locations at which such registration may occur. The Attorney General's notice will also explain the procedures for filing a required form and/or providing fingerprints and photographs, and submitting supplemental information, if needed.

Initial Registration at Port of Entry and Confirmation of Status

The proposed rule specifies that if a nonimmigrant alien subject to special registration stays in the United States for a period of 30 days or more, the alien must report to a designated office of the Service on or after the alien's thirtieth day in the United States, but before the alien's fortieth day in the United States, to confirm the information provided in the alien's initial registration at the port of entry.

For those aliens applying for admission to the United States who are found to be nonimmigrant aliens subject to special registration, the completion of registration is a condition of admission under section 214 of the Act. If an alien desires not to participate in special registration, the alien may withdraw his or her application for admission.

A nonimmigrant alien subject to special registration who comes to the United States to work or to study is required to provide proof of such activity when the alien appears at the designated Service office. Documentation such as enrollment forms, actual employment contracts, or pay statements must be presented to the Service to confirm the alien's registration statement. All nonimmigrant aliens subject to special registration must provide proof of residential address in the United States. These documents will be examined by the Service, the originals will be returned to the nonimmigrant alien, and a copy will be retained by the Service.

Nonimmigrant aliens often arrive at a port of entry that is distant from their final destination. For example, a nonimmigrant alien arriving at John F. Kennedy Airport in New York on an F-1 student visa may be enrolling at a college or university or other school elsewhere in the United States. This proposed provision permits a nonimmigrant alien subject to special registration who does not already have a residential address to acquire that residential address and provide the Service with an actual rental agreement or other proof of residence to update or confirm the information on the alien's initial registration statement.

Annual Registration

A nonimmigrant alien may hold a visa which allows him or her to remain in the United States for longer than one year. For this type of nonimmigrant alien who is also subject to special registration, the proposed rule requires him or her to verify his or her activities and address, and to update any other information provided to the Service, on an annual basis. The proposed rule requires that the nonimmigrant alien reaffirm his or her registration statement on, or within 10 days after, each anniversary of his or her arrival. The anniversary date is used as a benchmark because of the relative importance of the nonimmigrant alien's arrival in the United States to the nonimmigrant alien. The anniversary date is a natural reminder of the requirements for registration. Additionally, the fact that nonimmigrant aliens arrive in the United States on a relatively steady basis dictates that this reaffirmation process will occur at Service offices steadily throughout the year, thus avoiding a large number of re-registrations at any one time that might overload the Service or inconvenience the nonimmigrant aliens any more than necessary.

Change of Address or Other Material Condition

As noted above, all aliens are required to provide the Service with any change of residential address. The proposed rule reiterates, for this distinct group of nonimmigrant aliens who are subject to special registration, the requirement that the nonimmigrant alien provide the Service with any change of residential address within 10 days of such change of address. The proposed rule allows a nonimmigrant alien subject to special registration to notify the Service by mail, or such other means as the Attorney General may designate, of a change of address, employment, or educational institution. Appropriate forms will be made available to such aliens at arrival, on the Internet, and at Service offices.

Departure

The proposed rule requires that a nonimmigrant alien subject to special registration also report his or her actual departure from the United States through inspection by an already existing departure control officer established under 8 CFR part 215. This requirement means that the alien must appear before a departure control officer, i.e., an immigration inspector, at the time he or she departs the United States to close his or her registration. This notification will ensure that all special registrations are properly closed.

The proposed rule does not alter any of the requirements of part 215, or otherwise authorize a departure control officer to prohibit departure, but complements them with requirements that the nonimmigrant aliens subject to special registration report to the departure control officer in conjunction with his or her special registration under this Part.

The requirement that an alien appear before a departure control officer at the time of departure from the United States is not new, but has been used sparingly in the past. Under this proposed rule, it will be necessary to expand the use of the departure control officer to ensure that the nonimmigrant aliens subject to special registration have complete records of their status. If actual departure control were not utilized, special registrations for the nonimmigrant aliens subject to special registration would simply stop without explanation sometime after their departure.

Departure will now be confirmed by actual presentation by the nonimmigrant aliens subject to special registration. This departure notification can then be confirmed by reference to other records, such as the actual electronic flight manifests provided by carriers. Departure control has not been used in a substantial way in the past and facility work will take substantial time to develop with airports, even for the small number of aliens covered by this proposed rule. Therefore, the Service is authorized to restrict ports of departure as facilities are developed. The nonimmigrant aliens subject to special registration will be advised of available ports of departure as they register. Accordingly, the Service is authorized to prohibit nonimmigrant aliens subject to special regulation from exiting at ports of entry that lack departure control officers and facilities.

The Department notes that departure control procedures have been demanded by Congress as a part of a complete entry-exit management system. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, § 110, Pub. L. 104-208, 110 Stat. 3009-558 (Sept. 30, 1996); Immigration and Naturalization Service Data Management Improvement Act of 2000, § 3, Pub. L. 106-215, 114 Stat. 337 (June 15, 2000); United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, tit. IV, subtit. B, § 414(b), Pub. L. 107-56, 115 Stat. 272, 353-354 (Oct. 26, 2001); Enhanced Border Security and Visa Entry Reform Act of 2002, tit. III, § 302, Pub. L. 107-173, 116 Stat. 543, 552 (May 14, 2002). Congress has required that such a system be implemented by December 31, 2003. 8 U.S.C. 1365a(d)(1). Accordingly, as the Department develops the larger system mandated by Congress, the Department will ensure appropriate integration of the special registration system proposed in this rule.

To ensure that nonimmigrant aliens subject to special registration provide this notification of departure and to ensure actual departure, this rule proposes that substantial penalties be attached to failure to notify the Service of departure. Paragraph (f)(8) provides that failure to notify the Service of departure in this way is a failure to complete registration under section 263(a) of the Act.

Because failure to complete registration is an unlawful activity, the alien shall thereafter be presumed to be inadmissible to the United States under section 212(a)(3)(A)(ii) of the Act. This presumption may be overcome by making a showing that satisfies conditions set by the Attorney General and the Secretary of State. Other grounds of inadmissibility may also apply.

Application of the Act and Penalties

The proposed rule is an exercise of the Attorney General's authority under sections 214, 215, 262, 263, and 265 of the Act to impose conditions on admission, register aliens and special groups of aliens, and manage departure of aliens. Each registration required by the proposed rule is, therefore, a registration under sections 262 and 263 of the Act. The Act provides that a willful failure to register, or making a false statement on the registration, is punishable under section 266(a) and (c), respectively, of the Act by a fine of up to $1,000 or by imprisonment for up to 6 months. Providing a false statement would also subject the nonimmigrant alien subject to special registration, upon conviction, to detention and removal.

The proposed rule is also an exercise of the Attorney General's authority under section 265 of the Act to provide for aliens to file changes of address and provide other required information. The Act provides that a failure to provide a change of address or provide other information would be punishable under section 266(b) of the Act by a fine of up to $200 and imprisonment for 30 days. The Attorney General may also remove nonimmigrant aliens who violate the provisions of section 265 of the Act and the implementing regulations, even if the alien has not been subject to criminal prosecution.

Conditions of Admission

Under section 214(a) of the Act the admission of all nonimmigrant aliens to the United States “shall be for such time and under such conditions as the Attorney General may by regulations prescribe.” The Attorney General may impose conditions on admission that are rationally related to the maintenance of nonimmigrant status. See, e.g., Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1980) (upholding regulation requiring Iranians on student visas to report and “provide information as to residence and maintenance of nonimmigrant status” or be subject to deportation proceedings). The regulations that currently implement section 214 provide in part that a condition of a nonimmigrant's continued stay in the country “is the full and truthful disclosure of all information requested by the Service.” 8 CFR 214.1(f). The special registration requirements imposed by this proposed rule are intended in part to ensure that nonimmigrant aliens are complying with their nonimmigrant status (e.g., by continuing to be students or employees, as contemplated at the time of the issuance of their visas). This rule also proposes to amend 8 CFR 214.1(f) to impose an additional condition on the admission of a nonimmigrant. The regulation requires that an alien, if chosen for special registration, must report to the INS at certain intervals to prove that he or she is maintaining nonimmigrant status. Thus, a nonimmigrant alien's wholesale failure to appear for registration at the 30-day mark, or for the annual reregistration, for example, will be deemed a failure to maintain the relevant nonimmigrant status, and will render the alien removable under section 237(a)(1)(C)(i) of the Act.

Regulatory Procedures

Regulatory Flexibility Act

The Department of Justice, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This rule will affect individual nonimmigrant aliens who are not considered small entities as that term is defined in 5 U.S.C. 601(6).

Executive Order 12866

This regulation has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has been reviewed by the Office of Management and Budget.

Executive Order 13132

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act

This rule modifies existing requirements to require certain nonimmigrant aliens to make specific reports to the Immigration and Naturalization Service: upon arrival; approximately 30 days after arrival; every twelve months after arrival; upon certain events, such as a change of address, employment, or school; and at the time of departure from the United States. The Service is requiring this information to ensure such aliens comply with the terms of their visas and admission, and to ensure that they depart the United States at the end of their authorized stay.

This rule contains a new information collection which is currently under development. This information collection will be submitted to the Office of Management and Budget (OMB) for emergency approval and comments will be solicited from the public, in accordance with the Paperwork Reduction Act of 1995.

Comments on the collection of information should be sent to Brenda Dyer, Clearance Officer, United States Department of Justice, Information Management and Security Staff, Justice Management Division, Patrick Henry Building, 601 D Street, NW, Rm. 1600, Washington, DC 20530.

List of Subjects

8 CFR Part 214

• Aliens
• Immigration
• Registration
• Reporting and recordkeeping requirements

8 CFR Part 264

Aliens, Immigration, Registration, Reporting and recordkeeping requirements.

Accordingly, the Department of Justice proposes to amend chapter 1 of title 8 of the Code of Federal Regulations as follows:

PART 214—NONIMMIGRANT CLASSES

1. The authority citation for part 214 is revised to read as follows:

Authority: 8 U.S.C. 1101, 1103, 1182, 1184, 1186a, 1187, 1221, 1281, 1282, 1301-1305; sec. 643, Pub. L. 104-208, 110 Stat. 3009-708; section 141 of the Compacts of Free Association with the Federated States of Micronesia and the Republic of the Marshall Islands, and with the Government of Palau, 48 U.S.C. 1901, note, and 1931 note, respectively; 8 CFR part 2.

2. Amend § 214.1 by revising paragraph (f) to read as follows:

PART 264—REGISTRATION AND FINGERPRINTING OF ALIENS IN THE UNITED STATES

3. The authority citation for part 264 is revised to read as follows:

Authority: 8 U.S.C. 1103, 1182, 1184, 1201, 1301-1305.

4. Amend § 264.1 by revising paragraph (f) to read as follows: