Changing from nonimmigrant alien to immigrant

[divil]

Here's one for the sharp legal minds of TFL!

I came to the US as a nonimmigrant, with a visa. Now, it's well known that nonimmigrants are generally not allowed to have guns, unless they have a hunting license:

An alien legally in the U.S. is not prohibited from purchasing firearms unless the alien is admitted into the U.S. under a nonimmigrant visa and does not meet one of the exceptions as provided in 18 U.S.C. 922(2), such as possession of a valid hunting license or permit.

[18 U.S.C. 922 (d)(5), (g)(5) and (2); 27 CFR 478.11 and 478.32(a)(5) ]

So I've always made sure that I had a valid hunting license as long as I've had guns or ammunition. So far so good.

But I've now had the good fortune to become a permanent resident (yay!). I always thought that this would mean I wouldn't have to bother with the hunting license requirement any longer, but looking at the way the law is written, I'm not sure.

What bothers me is that the above statement from the ATF uses the word "is" (emphasized) but the statute and CFR they cite doesn't use that word - it says:

"who, being an alien...has been admitted to the US under a nonimmigrant visa..." (emphasis added)

Now, doesn't that mean that I will always be subject to the hunting license requirement, as long as I'm an alien? I mean, since I have been admitted under a nonimmigrant visa, I'll never not have been right? It's not my current status, sure, but the statute doesn't say anything about that. It refers to what has happened in the past, which can't be changed.

Yet everyone (including the ATF) seems to think it's current status that matters. I don't see where they're getting this in the law that they cite.

Does anyone know the answer to this? Is there some trick to interpreting this, or is it just that the ATF can't read ?

Thanks!

 

[dogtown tom]

divil .....I came to the US as a nonimmigrant, with a visa. Now, it's well known that nonimmigrants are generally not allowed to have guns, unless they have a hunting license:

A "nonimmigrant visa" is for students, tourists, temporary workers. A hunting license allows them to acquire firearms.

Those who are here on other types of visas do not have to provide a hunting license.

Legal permanent residents (green card holders) do not need a hunting license to acquire a firearm.

So yes, your current status is what matters.

 

[divil]

A "nonimmigrant visa" is for students, tourists, temporary workers. A hunting license allows them to acquire firearms.

Those who are here on other types of visas do not have to provide a hunting license.

Legal permanent residents (green card holders) do not need a hunting license to acquire a firearm.

So yes, your current status is what matters.

Well that's what the ATF says. But as I explained, this contradicts the statute. So where does this come from?

 

[Aguila Blanca]

It comes from an understanding of what the words "admitted to" mean.

When you first arrived in the United States, you "entered" under the authority of a non-immigrant visa. For the duration of that visa, while you were in the U.S. you were present under the authority of that visa. Thus, you were "admitted to" the U.S. by the non-immigrant visa.

That non-immigrant visa no longer exists. Although you may not have physically left the United States, your authority to be here is now a green card. Assuming that you didn't depart under the non-immigrant visa and then re-enter under the green card, your status changed by the stroke of a pen. The result is that your authorization to be in the U.S. now derives from your green card. Thus, you have now been "admitted to" the U.S. by the green card.

You are confusing "entered" with "admitted to."

 

[Pistoler0]

It comes from an understanding of what the words "admitted to" mean.

When you first arrived in the United States, you "entered" under the authority of a non-immigrant visa. For the duration of that visa, while you were in the U.S. you were present under the authority of that visa. Thus, you were "admitted to" the U.S. by the non-immigrant visa.

That non-immigrant visa no longer exists. Although you may not have physically left the United States, your authority to be here is now a green card. Assuming that you didn't depart under the non-immigrant visa and then re-enter under the green card, your status changed by the stroke of a pen. The result is that your authorization to be in the U.S. now derives from your green card. Thus, you have now been "admitted to" the U.S. by the green card.

You are confusing "entered" with "admitted to."

Aguila is spot on.

My wife is in the same situation as you. She now has a CCW permit and owns several firearms. No problem, relax.

 

[divil]

It comes from an understanding of what the words "admitted to" mean.

When you first arrived in the United States, you "entered" under the authority of a non-immigrant visa. For the duration of that visa, while you were in the U.S. you were present under the authority of that visa. Thus, you were "admitted to" the U.S. by the non-immigrant visa.

That non-immigrant visa no longer exists. Although you may not have physically left the United States, your authority to be here is now a green card. Assuming that you didn't depart under the non-immigrant visa and then re-enter under the green card, your status changed by the stroke of a pen. The result is that your authorization to be in the U.S. now derives from your green card. Thus, you have now been "admitted to" the U.S. by the green card.

You are confusing "entered" with "admitted to."

Well I am confused, but not about that! I understand that I can be considered admitted under a green card now. What I don't understand is how the words "has been" can be construed to mean "is currently" or "most recently".

The fact is that I "have been" admitted under a non-immigrant visa, many times - just not on my most recent admission. But the statute in question doesn't mention your most recent admission. It doesn't say that if you were subsequently admitted on a permanent basis, then you're off the hook.

 

[Pistoler0]

Well I am confused, but not about that! I understand that I can be considered admitted under a green card now. What I don't understand is how the words "has been" can be construed to mean "is currently" or "most recently".

The fact is that I "have been" admitted under a non-immigrant visa, many times - just not on my most recent admission. But the statute in question doesn't mention your most recent admission. It doesn't say that if you were subsequently admitted on a permanent basis, then you're off the hook.

<<An alien legally in the U.S. is not prohibited from purchasing firearms unless the alien is admitted into the U.S. under a nonimmigrant visa>>

Divil, seriously, relax, you do not have to worry about this.

Today, Sept 12 2021, you ARE not admitted into the U.S. under a nonimmigrant visa. Your old nonimmigrant visa is in fact invalid. Your current "admission" or acceptance (a synonym) to stay here is under your green card.

You are interpreting "admitted" as "first gained entry".

 

[Screwball]

Well I am confused, but not about that! I understand that I can be considered admitted under a green card now. What I don't understand is how the words "has been" can be construed to mean "is currently" or "most recently".

The fact is that I "have been" admitted under a non-immigrant visa, many times - just not on my most recent admission. But the statute in question doesn't mention your most recent admission. It doesn't say that if you were subsequently admitted on a permanent basis, then you're off the hook.

Does a non-immigrant I-94 allow you to live/work in the US right now?

You may have been admitted as a non-immigrant, but you have adjudicated to an LPR (immigrant) thru USCIS. That card means the US is your home… even if you cannot vote or travel on a foreign passport.

But next time you buy a firearm… read the instructions on the back of the 4473.

 

[divil]

Does a non-immigrant I-94 allow you to live/work in the US right now?

Not automatically, it depends on your status .Some non immigrant statuses allow you to do certain work, some don't.

But next time you buy a firearm… read the instructions on the back of the 4473.

But I already know what the ATF thinks.

 

[divil]

You are interpreting "admitted" as "first gained entry"

I'm not sure how you're getting that from what I said. I'm not interpreting it as "first entry". I'm just interpreting "has been" as the past tense, and wondering why the ATF isn't.

They're saying it doesn't matter if I have been admitted as a nonimmigrant, as long I am currently not a nonimmigtrant. I just want to understand where they are getting that from.

 

[Screwball]

Not automatically, it depends on your status .Some non immigrant statuses allow you to do certain work, some don't.

Bud, I’m asking you as “divil,” the person on the other end of the internet… typing a response.

You filling that form out is answering for you in regard to the transaction. Not whether people on a TD can work without getting an EAC thru USCIS.

If you did not have your green card, what allows YOU to live/work here? You lost that status when you adjusted to an LPR. To go back to that status, you’d have to give up your green card, then apply for admission and apply for it again.

But fine… you actually can answer that question as yes. The one following it would be another yes, as residency allows firearm ownership… and you would provide your green card as evidence. More work when ATF specifically says to answer it as such… being you are a permanent resident.

 

[Aguila Blanca]

You are interpreting "admitted" as "first gained entry"

I'm not sure how you're getting that from what I said. I'm not interpreting it as "first entry". I'm just interpreting "has been" as the past tense, and wondering why the ATF isn't.

They are.

As both Pistoler0 and I have pointed out, you are confusing "admitted to" with "entered."

Mundane example: About a year ago I was admitted to a gun club that I had been on a waiting list to join. I received notification that I had been "admitted to" membership by e-mail -- without having set foot on the property. In the legal field, lawyers are "admitted to" the bar, meaning they are authorized to practice in a certain state, or to argue cases before the Supreme Court. It doesn't [necessarily] mean physically entering a location or a premises.

You received your green card on some date in the past. That was when you were "admitted to" the U.S. as a permanent resident. Past tense.

 

[divil]

They are.

As both Pistoler0 and I have pointed out, you are confusing "admitted to" with "entered."

Mundane example: About a year ago I was admitted to a gun club that I had been on a waiting list to join. I received notification that I had been "admitted to" membership by e-mail -- without having set foot on the property. In the legal field, lawyers are "admitted to" the bar, meaning they are authorized to practice in a certain state, or to argue cases before the Supreme Court. It doesn't [necessarily] mean physically entering a location or a premises.

You received your green card on some date in the past. That was when you were "admitted to" the U.S. as a permanent resident. Past tense.

I appreciate the replies everyone, but I'm totally baffled by why we are not on the same page!

You guys (and the ATF) seem to think that being admitted as a permanent resident means that I haven't bee admitted as a nonimmigant. In other words, they are mutually exclusive. Is that what you're saying?

The statute says that if you have been admitted on a nonimmigrant visa, then the prohibition applies to you, can we agree on that? So in order for it to not apply, you must not have been admitted on a nonimmigrant visa, agreed?

So if you agree that I, Divil, have been admitted on a nonimmigrant visa, then you must agree that the prohibition applies to me, right?

I have been admitted to the US on a nonimmigrant visa 30 times. On that 30th trip, I adjusted my status with USCIS, and am now deemed to have been admitted as a permanent resident. So the final score is: admitted 30 times as a nonimmigrant, and once as an immigrant. So how can you say that I haven't been admitted as a nonimmigrant?

 

[Screwball]

So, a person comes to the US as a non-immigrant, the visa is the key to the door… the I-94 is what says how long someone can stay.

I-94s are Arrival/Departure Records. The admission stamp has the date you were admitted, and if done correctly… there should be a visa class and printed date on the I-94 that says when your admission is up… meaning you have to be out by. CBP getting that I-94 by that date (or in a way to prove you were out of the US by then) shows you were not an overstay. Similarly, you have a matching stamp in the passport… with the date written along with the visa class. That gives you a record of admission in your passport.

So, what I’m gathering… you think because it states, “Are you an alien who has been admitted to the United States under a nonimmigrant visa?,” it is asking whether you have ever been admitted as a non-immigrant.

That is not the point of the question, and the instructions I quoted earlier prove that. There are plenty of US citizens that naturalized… and have previously been non-immigrants. Who cares? They are allowed to own firearms as citizens… and in your case, as a resident.

To go back to the admission process, even our systems state “admitted to.” Admission happens at the port of entry, when an officer stamps your passport, charges you $6, hands it back, and says “welcome to the US.” So from then until you turn in the I-94/leave… you are admitted. That question is asking at the time of checking yes/no, are you admitted into the US as a non-immigrant? Not if you adjusted status, and were originally a non-immigrant.

If you currently are a non-immigrant… you need to show how you can legally acquire a firearm (hunting license). Which is why they state permanent residents can answer no… being you don’t need an I-94 to be in the US and are not a non-immigrant.

And I do not agree… you are an LPR. You are a resident of the US. Just like US citizens, I do not admit them. I admit foreign nationals, under a visa classification. Sometimes I parole them in as emergency assistance… being there is no visa class that allows people to work in that manner in the US (but that is going way too far into the INA than it is worth).

 

[divil]

So, what I’m gathering… you think because it states, “Are you an alien who has been admitted to the United States under a nonimmigrant visa?,” it is asking whether you have ever been admitted as a non-immigrant.

That is not the point of the question, and the instructions I quoted earlier prove that. There are plenty of US citizens that naturalized… and have previously been non-immigrants. Who cares? They are allowed to own firearms as citizens… and in your case, as a resident.

Well I'm not asking anything about the questions on the 4473, as I explained before. But yes I do think that "has been" means the same thing as "has ever been". I mean, you could argue that they could mean slightly different things, but I wouldn't bet my freedom on it.

But are you claiming, given the history I explained in my last post, that I haven't been admitted on a nonimmigrant visa?

Regarding citizens, that's irrelevant. The statute I quoted in my original post says

who, being an alien...has been admitted to the US under a nonimmigrant visa.

 

[mehavey]

“Are you an alien who has been admitted to the United States under a nonimmigrant visa?,”

Don't add words where there are none.
You are being asked ARE you . . . ?
... not "have you ever been"...

 

[Screwball]

Well I'm not asking anything about the questions on the 4473, as I explained before. But yes I do think that "has been" means the same thing as "has ever been". I mean, you could argue that they could mean slightly different things, but I wouldn't bet my freedom on it.

Are you claiming, given the history I explained my last post, that I haven't been admitted on a nonimmigrant visa?

Regarding citizens, that's irrelevant. The statute I quoted in my original post says

I am not saying you’ve never been admitted as a non-immigrant… but you are not admitted as a non-immigrant. You are a Legal Permanent Resident of the US. That admission ended the day your petition was approved, and either you got notification from USCIS or had an ADIT stamp put in your passport (probably received an I-797, but USCIS has been a s***show over the past few years that I try not to suggest on how they handle stuff anymore).

A lot of this confusion is because of the one time admission date, people say “admitted” in the sense that they were legally allowed entry into the US. So, admitted seems past tense… but not when you are talking about current status of an alien. “Admitted” means they are good to be here until whatever date they were admitted to.

Like mentioned, with that logic… there would be plenty of US citizens forced to have a hunting license due to their past immigration status.

But hey, if you want to cover your bases… don’t ask the forum. Get an immigration attorney, and pay them to find out/explain.

 

[divil]

I am not saying you’ve never been admitted as a non-immigrant… but you are not admitted as a non-immigrant.

But which one does the statute I quoted refer to: been admitted, (past tense) or are admitted (present tense)?

It clearly says that it applies to aliens who have been admitted under a nonimmigrant visa. Have I been been so admitted, or not?

Like mentioned, with that logic… there would be plenty of US citizens forced to have a hunting license due to their past immigration status.

No, there wouldn't - you're not reading my posts. I've quoted the relevant statute twice now. Citizens are not aliens. Therefore laws that begin "...who, being an alien..." don't apply to them.

 

[Screwball]

But which one does the statute I quoted refer to: been admitted, (past tense) or are admitted (present tense)?

It clearly says that it applies to aliens who have been admitted under a nonimmigrant visa. Have I been been so admitted, or not?



No, there wouldn't - you're not reading my posts. I've quoted the relevant statute twice now. Citizens are not aliens. Therefore laws that begin "...who, being an alien..." don't apply to them.

From the quote in your first post… “is.” Sounds to be present tense.

18 USC §922 also says “has been,” so leaning that way… present tense.

If you are retroactively applying laws to yourself, then you’d have to retroactively apply them to nationalized citizens… no? They were aliens when they applied for the non-immigrant status. So, have you ever been admitted as a non-immigrant… those citizens would have to answer yes. And the same statues would have to be followed, if it was considered that way.

This as why I’m confused with your logic. You are not admitted as a non-immigrant… you are an LPR. LPRs are not admitted in the US. LPRs are not on non-immigrant visas, so non-immigration restrictions don’t apply to them.

Shy of that, if you want any more clarification… call an immigration lawyer.

 

[divil]

From the quote in your first post… “is.” Sounds to be present tense.

18 USC §922 also says “has been,” so leaning that way… present tense.

If you are retroactively applying laws to yourself, then you’d have to retroactively apply them to nationalized citizens… no? They were aliens when they applied for the non-immigrant status. So, have you ever been admitted as a non-immigrant… those citizens would have to answer yes. And the same statues would have to be followed, if it was considered that way.

This as why I’m confused with your logic. You are not admitted as a non-immigrant… you are an LPR. LPRs are not admitted in the US. LPRs are not on non-immigrant visas, so non-immigration restrictions don’t apply to them.

Shy of that, if you want any more clarification… call an immigration lawyer.

Lol I'm at my wits end here! I am writing in what I think is plain English, but something is not coming across.

I don't know why you think I'm applying anything retroactively. The law has to be applied to the circumstances that existed at the time the act was committed (the act in question being, possession of a gun or ammunition).

The law says "...being an alien". This is the present tense, relative to when the act was committed.

Next it says "has been admitted". This is the past tense relative to when the act was committed..

(Technically, it's called the "present perfect tense" if anyone wants to be technical, but it obviously refers to past events.)

So, if a person was a citizen when they possessed a gun, then the "being an alien" part excludes them, and they don't need to read any further.

But it at the time they possessed a gun, the person was an alien, and had been admitted (any time in the past) under a nonimmigrant visa, then the law should apply to them. That's what the plain English of it says.