Special Registration : Guidance and Insight
Posted Jan 17, 2003

As regular readers of MurthyDotCom and the MurthyBulletin are aware, the INS is currently conducting special registration for certain nonimmigrant men from Pakistan and Saudi Arabia. In addition, on January 16, 2003 new requirements for registrations for other countries, including Bangladesh have been added with deadlines extended for nationals of countries originally required to register.

Registration is an important issue to all immigrants and to those who care about the foreign nationals residing in the U.S. It raises significant legal issues and is slated for continued expansion over the next two years. This current registration for Pakistan and Saudi Arabia began on January 13, 2002 and has a deadline of February 21, 2003. Earlier registration deadlines were for nationals and citizens of Afghanistan, Algeria, Bahrain, Eritrea, Lebanon, Morocco, North Korea, Oman, Qatar, Somalia, Tunisia, The United Arab Emirates, Yemen, Iran, Iraq, Libya, Sudan, and Syria.  More information about special registration is available in our article,  Special Registration : Phase 3. The INS WebSite is a helpful resource for those who believe they may be subject to the registration.

Confidential INS Memo Sent to Local Offices

The INS has issued guidance to the local offices regarding the call-in registration procedure. While the Memo has not been made public, information regarding its general contents is available. According to information we received, the Memo states that persons with pending INS applications or petitions that would, in and of themselves, provide lawful status, are to be registered. These individuals are not to be referred to the investigations section of INS. This means that persons with Applications for Adjustment of Status (I-485) or change / extension of nonimmigrant status (I-539 or I-129), should be registered rather than investigated, detained, and/or issued a Notice to Appear before the Immigration Court.

Those Subject to Removal Proceedings

The key element to this aspect of the guidance is that the pending application must provide the needed status in and of itself in order to prevent the INS' issuing a Notice to Appear for a removal proceeding. The pending application or petition cannot simply be a prerequisite to a later application for status. Based on our reading, an acceptable situation would be an I-485 pending, based on an approved labor certification and an I-140 petition. An unacceptable situation would be a person who was the out-of-status beneficiary of a pending labor certification. A labor certification, in and of itself, neither provides legal status nor confers benefits. It is a necessary prerequisite to certain benefits. Another example would be a case in which there is a pending family preference I-130 petition on file, but no I-485 pending. The approval of the I-130 is a necessary step to obtain permanent residence in a family-based case, but it does not provide permission to remain legally in the U.S. even after its approval. It provides the basis for the later I-485 filing.

In many cases both family- and employment-based, the I-485 and I-130 or I-485 and I-140 are filed concurrently. The guidance does not indicate that the I-130 or I-140 must be approved at the time of registration. It does indicate that a prima facie eligibility review may be conducted. This would presumably weed out frivolous filings.

Important to File the I-485, if One is Eligible

The Memo indicates that if an I-130 or I-140 has been filed or approved, but the I-485 has not been filed, the person may be put into removal proceedings. The INS is to review the particulars of the situation with regard to whether it is appropriate to take the individual into custody. The Memo also refers to guidance issued in 2000 regarding prosecutorial discretion and indicates that these guidelines are appropriate. These guidelines allow for the exercise of discretion as to whether an individual should be placed in removal proceedings. However, INS officers now are held personally liable for decisions that permit suspected terrorists to remain in the U.S., so this discretion should not be considered a saving grace.

Failure to File within Required Timeframes

With respect to late registrations, for those individuals who are subject to Special Registration and who failed to register within the mandated timeframes, the officers are instructed to allow an explanation. According to information we have received, not included in the Memo, an individual's lack of knowledge about the registration may excuse the untimely registration. However, this too is discretionary. Failure to register due to fear is not considered excusable and may result in removal proceedings against the individual.

At The Law Office of Sheela Murthy, we are following the registration issue closely. AILA (American Immigration Lawyers Association) has compiled detailed accounts of the procedures and anecdotal experiences throughout the U.S. We have a network of colleagues with whom we share our experiences at the local offices, where we appear regularly - Arlington, Virginia and Baltimore, Maryland. Each local office has its nuances, as it works out its procedures. For example, the Arlington, Virginia office was sending some of their overflow to the airport. Accordingly, for individuals with problematic issues, it is best to bring to the registration an attorney who is well-versed in the local procedures.