Jian Joe Zhou, Attorney at Law

On Thursday, June 27, 2008, the United States Supreme Court delivered a historic ruling on the rights of an individual to own guns for self protection purposes. In its decision, the Court ruled that the 2nd Amendment to the US Constitution protects an individual’s right to keep a firearm, and the Court struck down a Washington D.C. law banning the possession of handguns. The controversial decision has sparked debates because it expands previous interpretations of the 2nd Amendment that understood the right to bear arms as a collective right that was only constitutionally protected when related to military service. This new ruling, in contrast, upholds the rights of hunters, marksmen and other individuals to possess firearms. Many anticipate that, in light of this new ruling, many state and local gun laws will be challenged in court and limitations on gun ownership may be reduced.

While the Supreme Court ruling may loose restrictions on firearms control for citizens and legal permanent residents, there are still state and federal regulations in place for nonimmigrant aliens who wish to buy or sell a gun in the US. At Federal level, in February of 2002, the U.S. Department of Treasury, Bureau of Alcohol, Tobacco, Firearms, and Explosives, announced that individuals who are not in valid status or who are in nonimmigrant status cannot buy, sell, or possess a firearm or ammunition in the US. The Department of Treasury’s announcement is a clarification of the implementation of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1998 which amended the Gun Control Act of 1968. There are exceptions to this rule, but nonimmigrants should be aware that firearms violations may have lasting immigration implications.

In general, nonimmigrants (such as those who hold F, H, J, O, L status in the US) cannot purchase or possess firearms (including handguns and long guns) in the United States. However, some exceptions apply that allow nonimmigrants to purchase and own guns.

To qualify for an exception, an alien must first establish that he/she is in valid status and has an “A” number or Admission number (I-94 number) issued by USCIS. A nonimmigrant alien must also prove that he/she has been a resident of his/her home state in the U.S. for at least 90 days and will continue to live in that state. Nonimmigrants who wish to purchase handguns will also be required to purchase their firearm in their home state. Nonimmigrants who would like to purchase long guns may do so in any state, provided they meet the local regulations where he/she purchases the long gun.

Once these qualifications have been fulfilled, aliens must prove that they fall within one of the following categories:

1. An individual who was admitted to the U.S. for lawful hunting or sporting

To satisfy this category, the alien must show an invitation to a competitive target shooting event or sports or hunting trade show sponsored by a national, state, or local firearms trade organization devoted to the competitive use or other sporting use of firearms.

2. An individual who has been issued a valid hunting license or permit in the U.S.

The hunting license may be from any state, not necessary from the home state in the U.S. Most states in the U.S. sell hunting permits to nonimmigrant aliens.

3. An individual who has been designated by the Department of State and will possess the firearm in their official capacity;
4.
5. A foreign law enforcement officer of a friendly foreign government who is in the U.S. on official law enforcement business;

If the above criteria are met, an alien is eligible under federal law to purchase and possess a firearm in the U.S and can submit ATF Form 4473, Firearms Transaction Record with supporting documentation to a Federal Firearms Licensee (FFL) for firearms purchase.

In general, nonimmigrant aliens are only allowed to purchase firearms from a Federal Firearms Licensee (FFL). An FFL is an individual or company who has been issued a Federal Firearms License by the Bureau of Alcohol, Tobacco, Firearms, and Explosives and is authorized to engage in business pertaining to the manufacture or sale of firearms and ammunition. In general, a store selling firearms will be an FFL dealer, but aliens should still make certain of this fact as aliens may not purchase firearms from nonlicensed individuals or businesses.

Please note, aliens who are illegally or unlawfully staying in the U.S. CANNOT own any firearm, and there is no exception that applies to illegal or unlawful aliens.

Violation of these regulations may lead to imprisonment and inadmissibility or deportation. Depending on the type of violation, nonimmigrant aliens who violate these firearms regulations may receive a maximum of five or ten years imprisonment which will make them ineligible for admission into the U.S. Conviction of a firearm violation may affect a nonimmigrant’s ability to adjust status in the U.S or legally reenter into the U.S. in the future, and may also serve as grounds for deportation.

In practice, with knowledge of the legal requirements, it is not too hard for a nonimmigrant alien to purchase and own a gun in the U.S. If an alien has resided in a state for more than 90 days, and he/she also purchased a state hunting permit (which is available for a fee at most sports stores or super stores like Wal-Mart), he/she can purchase a handgun from an FFL in his/her state, or purchase a long gun from an FFL in any state.

Further, nonimmigrant aliens should be aware that there are often state and local regulations on gun sale and ownership for nonimmigrants. FFL dealers may be unaware of the exceptions and requirements. So, nonimmigrant aliens should understand and comply with all federal and local laws and regulations before purchasing or owning a gun. It is also important to note that there are special requirements for removing a firearm from the U.S.

Illustrative Examples :

Example 1:

Mr. Wilson, a Canadian, is an engineer holding H-1B temporary worker status in the US and has been working in the state of New York for more than two years. Mr. Wilson is a passionate rifle collector. At a gathering at his friend’s house for a party, Mr. Wilson is excited to find that his friend owns several brand-name, rare collectable rifles. With Mr. Wilson’s persistent request and decent offer, the friend sold one of the rifles to Mr. Wilson.

Mr. Wilson is in violation of the federal law as he does not possess a valid hunting permit. In addition, he is in violation of the law as the rifle was sold not by an FFL dealer.

Example 2:

An F-1 student, Mr. Lee lives in a relatively rough neighborhood of a big city on the East coast. There have been recent reports of burglary and robbery in the area. Fearing for his personal safety, Mr. Lee decided to purchase a shotgun. He went to a local pawn store and purchased the gun without any problem. The pawn store is an FFL dealer, but the sales person failed to check whether Mr. Lee had a hunting permit, which Mr. Lee did not have. Mr. Lee is in violation of the federal firearm law as he does not fall under any of the exceptions. Had he obtained a hunting license prior to purchasing his shotgun, he would have easily avoided the violation.

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Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC, with more than 8 years of experience in employment and business immigration practice and international transaction practice. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law.
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past twelve years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.
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