Within the barrage of initiatives, goals, policy statements, directives to agencies, and various other Trump Administration actions regarding immigration, is the reinvigoration of the long-standing Alien Registration requirements. This alert is intended to clarify the scope of this requirement where possible but also note the uncertainty of its scope in other circumstances.
Executive Order – Protecting the American People Against Invasion
On January 20, 2025, President Trump signed the wide-ranging Executive Order titled: “Protecting the American People Against Invasion”. Among other things, the Order contains the following provision:
Section 7 – Identification of Unregistered Illegal Aliens. The Secretary of Homeland Security, in coordination with the Secretary of State and the Attorney General, shall take all appropriate action to:
(a) Immediately announce and publicize information about the legal obligation of all previously unregistered aliens in the United States to comply with the requirements of part VII of subchapter II of chapter 12 of title 8, United States Code;
(b) Ensure that all previously unregistered aliens in the United States comply with the requirements of part VII of subchapter II of chapter 12 of title 8, United States Code; and
(c) Ensure that failure to comply with the legal obligations of part VII of subchapter II of chapter 12 of title 8, United States Code, is treated as a civil and criminal enforcement priority.
While the title of this section references “illegal aliens” the language of the Order is not so limited. The registration requirement applies to all persons in the U.S. for more than 30 days who are not U.S. Citizens. Lawful permanent residents are required to be registered, but they complete that process through the process of obtaining lawful permanent residence. They are still required to update their address within 30 days of any change of address until such time as they become U.S. citizens or abandon their permanent resident status.
The affirmative registration process has not yet been defined. Doing so is the responsibility of the Secretary of Homeland Security.
Effect of Visa Issuance on Registration
The registration requirement is defined in 8 USC sections 1301-1306 and expressly includes as registered any person registered through 8 USC Section 1201. Section 1201 refers to any person that has been issued a visa from a U.S. Consular office abroad. Such individuals have been registered previously and are therefore not required to affirmatively register through whatever procedure may be implemented.
For example, individuals employed though the H-1B program, the L-1 program, F-1 students, or any of the other myriad of nonimmigrant classifications through which the individual has obtained a visa are considered registered. This is the case even if that person has since changed lawful status in the United States and does not hold a visa in the category based on which they remain lawfully present. For example, a student who obtains an F-1 visa to attend a University in the United States has been “registered”. If that person subsequently graduates and is sponsored by a U.S. employer as a professional and changes from F-1 status to H-1B status, that person will not hold an H-1B visa, but is still registered.
Travelers Without Visas – Visa Waiver Program and Canadian Citizens
The Visa Waiver Program (“VWP”) allows visitors for business or pleasure to travel to the U.S. for 90 days or less without obtaining a visa if they are a citizen or national of one of the VWP specified countries. While neither the Executive Order nor regulations explicitly state that participation in the VWP effectively satisfies the registration requirement, the process to qualify to use the VWP requires completing biographic information through the Electronic System for Travel Authorization (ESTA) and requires that the individual hold a passport with machine readable embedded biometric information. That information is run through various databases upon the individual’s inspection either at a port of entry or pre-flight inspection. Based on this, it appears that VWP users are registered, and although not all machine readable passports are embedded with biometrics that include fingerprint information, fingerprints are generally collected by U.S. Customs and Border Patrol at the time of inspection for admission.
Similarly, Canadian citizens may enter the United States in most nonimmigrant (temporary) categories without obtaining a visa, if they are otherwise eligible. Canadian machine readable passports do not generally contain fingerprint information, and therefore, it is not clear whether they are considered “registered” under U.S. immigration law. Any such traveler who has registered through many of the trusted travel programs, such as SENTRI, NEXUS, Global Entry, or FAST will have completed all necessary components of registration.
The clear intent of the Order was to force those present without authorization in the United States to affirmatively identify themselves or face prosecution for failing to do so. This applies to any person in the U.S. who has not been registered, i.e. has never been fingerprinted and had their personally identifiable information placed on file with U.S. authorities. For some circumstances, that is easy to identify. In others, it is not so easy. Presumably, any person who applied for parole, asylum, or any other form of benefit for which they had to file forms with personal information and be fingerprinted have been registered.
Conclusion
As the Trump Administration’s enforcement initiatives continue, presumably some of the uncertainty noted above will be resolved. We will continue to monitor these developments and provide information as appropriate. In the meantime, persons in the U.S. pursuant to a visa admission do not need to be concerned about the registration requirement. Similarly, it is unlikely that travelers using the VWP or other visa-exempt persons are presently the target of these enforcement initiatives but may consider registering through one of the Trusted Travel Programs to be certain.
