It’s currently a two-step process:

• Create an online USCIS account.
• Register online once the form and process are set up.

A failure to register may result in criminal and civil penalties, up to and including misdemeanor prosecution and the payment of fines.

It’s been part of our laws for a long time, but it has rarely been enforced in recent years.

After 9/11/2001, men from several mostly Muslim countries were required to register under the National Security Entry– Exit Registration System (“NSEERS”). Many of the registrants were detained by U.S. Immigration and Customs Enforcement (“ICE”).

In Rajah v. Mukasey, 544 F.3d 427 (2nd Cir. 2008), the Second Circuit held that NSEERS was authorized by a similar statute (INA § 263) and did not violate Equal Protection or the Fourth or Fifth Amendments.  With regard to arguments that the NSEERS registration requirements involved compelled self-incrimination, in violation of the Fifth Amendment, the court rejected this argument in light of the “required records” doctrine and allowed the program to stand.   

The Department of Homeland Security (“DHS”) stopped using NSEERS in 2011, and withdrew the NSEERS regulation on 12/23/2016.

Under INA § 262:

• All non-citizens 14 years of age or older who were not registered and fingerprinted (if required) when applying for a visa to enter the U.S. and who remain in the U.S. for 30 days or longer. They must apply before the expiration of those 30 days.
• The parents and legal guardians of non-citizens less than 14 years of age who have not been registered and remain in the U.S. for 30 days or longer, prior to the expiration of those 30 days.
• Any non-citizen, whether previously registered or not, who turns 14 years old in the U.S., within 30 days after their 14th birthday.

Under 8 CFR § 264.1 and USCIS guidance, the following are already registered and/or do not need to register:

• Lawful permanent residents;
• Non-citizens paroled into the U.S. under INA § 212(d)(5), even if the period of parole has expired;
• Non-citizens admitted to the U.S. as nonimmigrants who were issued Form I-94 or I-94W (p aper or electronic), even if the period of admission has expired;
• Non-citizen crewmembers issued Form I-95 or I-184;
• Non-citizens present in the U.S. who were issued immigrant or nonimmigrant visas prior to arrival;
• Non-citizens whom DHS has placed into removal proceedings, including those already having removal orders;
• Non-citizens issued an employment authorization document;
• Non-citizens who have applied for immigration benefits using Forms I-485, I-590, I-687, I-691, I-698, I-700, or I-817, even if the applications were denied;
• Non-citizens issued Border Crossing Cards;
• Native Americans born in Canada who entered the U.S. under INA § 289; and
• Members of the Texas Band of Kickapoo Indians who entered the U.S. under the Texas Band of Kickapoo Act.

Whether or not to apply presents a classic dilemma:

• register and face detention/deportation and possibly certain criminal charges, or
• don’t register and (if discovered) possibly face certain criminal charges, followed by detention/deportation.

Registration does not protect against criminal charges: DHS could bring certain criminal charges against registrants anyway.

Possible criminal charges include, without limitation:

• INA § 275(a) (8 USC 1325(a)), improper entry to the U.S.
• INA § 266(a) (8 USC 1306(a)), willful failure to register
• INA § 266(b) (8 USC 1306(b)), failure to notify of change of address
• INA § 273(a) (8 USC 1323(a)), unlawful bringing of persons into the US (which may become evident when parent registers themself plus child under 14)
• INA § 274(a) (8 USC 1324(a)), bringing in and harboring certain persons (which may become evident when parent registers themself plus child under 14)

For these offenses, charges must be brought within 5 years. See 18 USC § 3282.

We can only lay out the difficult choice between registering and not registering. We cannot advise the client which option to choose. We most certainly cannot advise the client to violate the law (as such advice would violate the Rules of Professional Conduct), nor to take steps to conceal or evade detection by ICE (which could constitute harboring).

As with all legal matters, we can explain factors the client should consider here (e.g., availability of immigration relief; length of time in the US; possibility that if detained, the client will be moved to a location far from their home; possibility that if detained, the client will not have access to counsel to represent them; etc.), to help the client make as informed a choice as possible.

Factors in favor of complying with registration:

• Elimination of the risk of criminal and civil penalties associated with not registering.

Factors against complying with registration:

• Risk of detention, including detention far from the client’s home.
• Risk that, if detained, client will not have access to counsel.
• Risk that registration would provide updated address/contact information that may otherwise not be known to ICE.
• Risk of removal (physical deportation from the U.S.), including expedited removal if in the U.S. unlawfully for under 2 years.
• Risk of criminal prosecution for unlawful entry, failure to report change address, smuggling, harboring, etc., if within the 5-year statute of limitations period.

American Immigration Council summary

The information in this document has been prepared by The Legal Aid Society for informational purposes only and is not legal advice. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. You should not act upon any information without retaining professional legal counsel