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Special Registration and Third-Country Nationals

How would you respond if a clients asks, “I am a Canadian citizen, but I was born Iran. Do I need to comply with Special Registration?” The answer is not altogether clear from current immigration policies and regulations, but it is advisable to err on the side of compliance—even if it proves unnecessary. Your client may be wary of reporting to the Bureau of Citizenship and Immigration Services, (“BCIS,” formerly the Immigration and Naturalization Services, or “INS”) due to fear, or simply to avoid the hassle, but the risks of not doing so are enormous to the client’s nonimmigrant visa status. Consequences of non-compliance include: (1) deportation pursuant to INA 273(a)(1)(C)(i) and INA 273(a)(3)(A); (2) criminal penalties pursuant to INA 266(a), including fines or imprisonment; and (3) detention for failure to notify BCIS regarding a change of address within 10 days of moving.

For those who may not be familiar with Special Registration, it is part of an initiative called the National Security Entry-Exit Registration Systems (NSEERS), implemented on September 11, 2002. Special Registration applies to four groups of individuals to date, and was formulated in response to the attacks on the U.S. on September 11, 2001. The list included nationals of the following countries:

Group 1: All nationals or citizens of Iran, Iraq, Libya, Sudan and Syria born on or before November 15, 1986;

Group 2: Male nationals from Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, United Arab Emirates, and Yemen born on or before December 2, 1986;

Group 3: Male nationals from Pakistan and Saudi Arabia born on or before January 13, 1987; and

Group 4: Male nationals from Bangladesh, Egypt, Indonesia, Jordan and Kuwait born on or before February 24, 1987.

In addition to these four groups, if a nonimmigrant visa holder from any country travels to one of the above listed countries without a reasonable explanation, such as a business trip, he will be subject to Special Registration. Each of the four groups has a call-in date by which individuals must comply with Special Registration. The INS was reorganized and split into various agencies within the Department of Homeland Security on March 1, 2003. For Special Registration updates, check the BCIS’ web site at, or

Special Registration is conducted at the Port of Entry/Exit or during a call-in. It requires that the nonimmigrant visa holder be photographed, fingerprinted and interviewed under oath by a BCIS Officer. For special call-in interviews, it is advisable for an individual to bring a copy of his apartment lease, school transcripts, W-2 forms, tax returns, or a letter from his employer explaining the legitimate reasons for his stay in the U.S. Special registration also includes annual re-registration.

Individuals not subject to Special Registration include (1) nonimmigrants in A or G status (government officials and international representatives), (2) U.S. permanent residents, or (3) an asylee with an application pending on or before November 6, 2002. It is difficult to ascertain from the Immigration and Nationality Act whether “nationality” means an individual’s country of current citizenship or country of birth. The INA 101(1)(2) defines, “national” as a “person owing permanent allegiance to a state.” This definition is not very helpful for purposes of determining if an individual is subject to Special Registration. An Iranian-born Canadian who does not carry an Iranian passport would ostensibly not be considered an Iranian national for purposes of this definition. Without an Iranian passport, it would be difficult to prove the individual’s loyalty to Iran.

In a precedent decision regarding an individual’s nationality, claimed in the context of a nonimmigrant E-2 change of status petition, the Board of Immigration Appeals held that an individual’s national claimed or established at the time of entry to the U.S. must be regarded as the sole or operative nationality for the duration of temporary stay. Matter of Ognibene, 18 I&N Dec. 425 (R.C. 1983). The holding was limited to section 214 of the Immigration and Nationality Act. This reasoning can be applied to the Special Registration context. For example, the local Chicago BCIS District office has indicated that it may consider issuing letters of exemption for individuals who were born in a country subject to special registration, who did not acquire citizenship of the subject country, and who entered the U.S. as a citizen of a non-subject country. No such written documentation is given by the local Chicago BCIS District Office at the time of this publication.

On November 1, 2002, the Justice Department addressed this issue of nationality by announcing that “place of birth, by itself, will not automatically trigger registration.” However, the Justice Department did not provide any guidance as to what factors will be used to determine if someone is subject to special registration. On November 6, 2002, in the Federal Register, the INS published a notice stating that Special Registration applies to “any alien who is a national or citizen of a designated country, notwithstanding any dual nationality or citizenship.” This notice indicates that those individuals who hold two passports and who maintain dual citizenship are subject to Special Registration, but it does not address those individuals born in one of the countries subject to special registration who do not maintain “permanent allegiance” to a country on the list. Identifying citizenship becomes even more problematic because each country determines its own citizenship and nationality laws differently. Therefore, a determination of an individual’s nationality should include a review of the law of the country in which the individual was born.

In practice, an Iranian-born Canadian who tries to complete Special Registration will likely be met with confusion by a BCIS officer. Different officers may give conflicting information. The local Chicago BCIS District Office is registering individuals who were born in one of the above listed countries but are citizens of a different country at this time.

Unfortunately, the ground rules for Special Registration are not likely to become clearer over time due to the daunting task of registering thousands of nonimmigrants. The safest advice for those individuals who were born in countries subject to Special Registration, but who are citizens of a different country, is to comply with Special Registration. As described above, the consequences of non-compliance far outweigh the inconvenience.

Special Registration is here to stay. Congress recently passed an omnibus bill, including funding for Special Registration and immigration enforcement activities. Attorney General John Ashcroft has also asserted that Special Registration will continue, and additional countries will be added to the list until all foreign nationals requiring nonimmigrant visas will be subject to the entry and exit system. Due to the ongoing concern over terrorism, Special Registration may be around for years to come.

By Jacqueline Lentini McCullough, published in “The Globe,” the Illinois State Bar Association’s newsletter to the members of the Section on International and Immigration Law, May 2003, Vol. 40, No. 5.