Nonimmigrants and the Debate on Gun Control

by Liam Schwartz

Do nonimmigrant visitors have the right to bear arms in the United States?

Some do, and some don't. And as we're about to see, the distinction between those nonimmigrants who can legally pack an assault rifle, and those who cannot, doesn't always make sense.

The Gun Control Act of 1968 was enacted to establish a federal scheme to control the distribution of firearms in the United States. The Act "reflects a concern with keeping firearms out of the hands of potentially irresponsible persons." Barrett v. United States, 423 U.S. 212, 200 (1976).

18 USC § 922(g) identified and codified some of these potentially irresponsible persons, including fugitives from justice, drug addicts, and illegal aliens. Also included are foreign nationals "who have been admitted to the United States under a nonimmigrant visa."

For years, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") took the view that § 922(g) was ambiguous, and that it would be inconsistent with Congressional intent not to prohibit all foreign nationals admitted to the United States as nonimmigrants from bearing arms. There is no logical reason, ATF said, that nonimmigrants with visas should be barred from bearing firearms while nonimmigrants without visas should not.

But in October 2011, the Justice Department issued an opinion, binding upon the ATF, which held that the text of 922(g) is clear: the bar on firearms applies only to nonimmigrants who must have visas to be admitted. Nonimmigrants admitted to the United States without visas are, accordingly, not barred from possessing firearms while visiting our country.

The result of the Justice Department Opinion is the current patchwork of rules in which some nonimmigrants may bear firearms while in the U.S. and some may not.

Within this patchwork:

Individuals presenting passports from the 37 countries participating in the Visa Waiver Program, who are admitted as tourists or business visitors under the VWP, may bear arms during their stay in the United States.

But these same individuals, from these same 37 countries, coming to the U.S. for the same purposes and for the same amount of time, may not bear arms in the U.S. if they traveled here by private aircraft; or if they present passports from the Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania, Malta, the Republic of Korea, or the Slovak Republic (all VWP countries) which do not contain an integrated electronic chip.

Additionally, these same individuals, from these same 37 countries, coming for the same purposes, may not bear arms in the U.S. if they wish to spend more than 90 days in the U.S., since they will need visas in order to do so. But even so, an individual from these same 37 countries who seeks to spend more than 90 days in the U.S. (but not more than 180 days) can bear arms in the U.S. if he or she is a dual citizen of Bermuda.

Got it? Starting to sound a bit like Fox in Sox?

If you're still with us, these same individuals, from these same 37 countries, coming to the U.S. as foreign media representatives to cover an event and then depart after a week, may not bear arms in the U.S., since they will need a visa to do so.

Citizens of Canada who have been admitted as tourists, business visitors, intercompany transferees, or NAFTA professionals may bear arms during their stay in the United States. But citizens of Canada admitted as treaty investors or treaty traders may not bear arms during their stay in the U.S., since they will need a visa to do so. And although a citizen of Canada who has been admitted as a tourist, business visitor, intercompany transferee, or NAFTA professional may bear arms during her stay in the United States, her accompanying spouse may not bear arms while in the U.S. if the spouse is a Mexican or other non-citizen of Canada and requires a visa to enter the U.S.

Foreign nationals wishing to visit Disneyland and needing visas to do so are, as part of the application process, scrutinized by security clearance checks developed by the United States government. Nationals of these same foreign countries who naturalize in Canada are, as part of the process, scrutinized by security clearance checks developed by the Canadian government. Under our current set of rules, those foreign nationals who have been cleared by Canadian security agencies may possess weapons on their way to Orlando; but those who have been cleared by American security agencies may not.

It might be interesting to see whether these rules could stand a constitutional challenge, given that, at least in part, they disable certain individuals from bearing arms in the U.S. on the basis of their national origin. But far more importantly, these rules probably don't cause many Americans to feel more secure from gun violence.

For the curious, the Justice Department's 2011 Opinion ("Memorandum for Stephen R. Rubenstein, Chief Counsel, Bureau of Alcohol, Tobacco, Firearms and Explosives, from Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel, Re: Nonimmigrant Aliens and Firearms Disabilities Under the Gun Control Act" can be accessed here: http://www.justice.gov/olc/2011/nonimmigrant-firearms-opinion.pdf

The Complete Interview with the Rev. Robert L. DeMoss II

Earlier this month our Facebook community page offered a sneak preview of our interview with the Rev. Robert L. DeMoss II. What follows is the full, "unplugged" text of the interview. Happy reading and God bless!

"Consular Corner" occasionally carries conversations with consular officers as a way of showing that the men and women carrying out the visa application process abroad are among America's best and brightest young professionals. We wish to also introduce our readers to outstanding individuals elsewhere in the field of immigration law, with the aim of promoting our appreciation for professionals who devote themselves to improving our visa and other immigration laws and procedures from outside of government.

Rev. Robert L. DeMoss II ranks first on our list of such outstanding individuals.

Known affectionately as "Rusty," Rev. DeMoss has served for nearly eight years as Associate Rector, Christchurch (Anglican), Montgomery, Alabama. As part of his ministry, Rev. DeMoss has helped lead his church's mission to bring water to drought-stricken parts of Uganda.

In parallel, Rev. DeMoss is one of the most active and cherished members of the American Immigration Lawyers Association (AILA): A member of AILA's Board of Directors, Rev. DeMoss has chaired and served on multiple national liaison committees (USCIS Headquarters and Texas Service Center, for example), chaired an AILA chapter, received numerous awards and citations, and spoken and published on occasions too numerous to list here. Rev. DeMoss's academic achievements include a Bachelor of Science (summa cum laude) from Southern Methodist University, a Master of Divinity (cum laude) from Nashotah House and a Juris Doctor from Harvard Law School.

We are honored and, indeed blessed, to provide this interview with Rev. DeMoss.

Liam Schwartz: You serve as Associate Rector of Christchurch in Montgomery, Alabama and also continue to work as a sole-practitioner in the field of immigration law. For some our readers, this juggling act between the religious and the secular may appear a bit unusual. Can you give us a peek into what an "ordinary" work day looks like for you?

Rev. DeMoss: I can see how being a lawyer and a priest seems like a contradiction in terms, generally speaking. Yet immigration law is a perfect fit, as I view the practice indeed as ministry. Counseling and helping a family achieve permanent residence status in the U.S. is akin to counseling and helping a parishioner walk through a personal struggle, such as one with a challenging marriage. Both involve addressing fear, providing encouragement, and enlisting faith, patience and perseverance. Just like in a full-time law office practice, there is no typical day. I can go from planning a service to making a hospital visit to talking with a client on the phone about why their case is taking so long and their friend just had their Green Cards approved and they're sure they didn't have to wait so long. Every day is an adventure!

LS: Which passage or prayer do you believe most appropriately captures the essence of an immigration system which would best reflect our country's values?

Rev. DeMoss: Clearly, from the Bible, Leviticus 19:33-34: "And if a stranger dwells with you in your land, you shall not mistreat him. The stranger who dwells among you shall be to you as one born among you, and you shall love him as yourself; for you were strangers in the land of Egypt: I am the LORD your God."

LS: The working relationship between immigration lawyers and consular officers is sometimes less than optimal. If you could address a gathering of American consular officers, what would you want them to know most about immigration attorneys and the practice of immigration law?

Rev. DeMoss: This may go without saying, but immigration is one of the, if not the, most intricate and complex areas of law to apply, interpret and practice. Immigration attorneys take their work seriously. They are trying their best to advocate for their clients in their knowledge of the law and interpretation of it. They are not trying to "pull a fast one" over consular officers. Nor is the presence of an attorney or the fact of representation a red flag that there is some kind of hidden fraud, as if attorney representation is just not needed before the consulate. Of course there are exceptions; but from what I have seen in over 20 years of practice, the immigration bar is one of the brightest, most passionate, and most conscientious group of attorneys in our country.

LS: You have commented that "we are almost flippantly turning away the best and brightest from our shores and losing our competitive edge as a nation." What do you see as some of the more flippant aspects of our nation's business immigration policies?

Rev. DeMoss: One of the most critical goals in our country, short and long term, is the improvement of our economy. We want to encourage business development; we want to encourage job creation. Yet what are we saying to the best and brightest foreign citizens in our midst, whose lives and brains and hearts are devoted to these critical, laudable goals? "At the end of the day, we really don't want you." Entrepreneurs are denied because they do not meet a highly restrictive interpretation of the definition of employer-employee. Those who are reasonably, by a preponderance of the evidence, of "extraordinary ability" are denied because of a highly restrictive interpretation of the statute and regulation, arising from the Kazarian decision. Those with particular proprietary skill who therefore are vital to the success of U.S. business are denied because of a highly restrictive interpretation of the definition of specialized knowledge. Things have not always been this way. Our interpretations have never been loose but they have only been this restrictive relatively recently. What other message can we as a country be conveying?

LS: Given your expertise in both Biblical exegesis and immigration law, what words of advice and encouragement can you offer to young consular officers seeking to make sense of complicated passages from the Immigration and Naturalization Act?

Rev. DeMoss: First and foremost, consult the primary source, then the "commentaries." Also, seek the wisdom and counsel of those who've been in the trenches for years, those with a way long institutional history. They'll save you time and help make sense of the maze.

LS: In the past, you have credited Deborah Anker of Harvard Law School with providing the "inspiring spark" of your calling. What did you find so inspiring about Professor Anker and her immigration law class?

Rev. DeMoss: Towards the end of my 1L year, a friend of mine in my section said, "Let's take this immigration law class next year. It meets at a good time, and it has a clinical component that meets our clinical requirement." Sounded good to me, and intriguing, as it did sound kind of exotic, although I really had no idea what it was all about. The first day of class, though, I knew. I knew why I went to law school after seminary. I had found my calling, even within the ordained ministry. Immigration law had it all: administrative law, constitutional law, corporate law, criminal law, family law, governmental law, international law. It was exotic, and deeply meaningful, as the policies and rationales of our country, throughout our history, have affected the lives and stories of myriads from around the world who have given literally everything to find freedom and a new start here in our land. Professor Anker taught with an unparalleled zeal, and a passion, and a compassion for those so yearning to be free. She was (is!) brilliant, captivating and fun. The clinical component, then in Jamaica Plain, made the classroom "theory" come to life, as we interviewed clients and assisted with cases. Their futures, their lives, their families all depended on the outcome; and they all had a story, inevitably heart wrenching and compelling. I was hooked, for life.

LS: As if serving as an ordained minister and working as an immigration lawyer wasn't enough, you are also deeply involved with a project in Uganda which develops potable water sources in the east of the country. Can you please describe the activities involved with this project?

Rev. DeMoss: Our congregation has enjoyed a missionary partnership in Kapchorwa District, on the border of Uganda and Kenya on the slopes of Mt. Elgon, since 2004. The most desolate area lies in an area called Ngenge, in the lowlands. It's an area which has suffered severe insecurity due to raiding tribes from the north and east. The people there barely survive despite incessant hunger, a dearth of water, and rampant water-related and other disease. Most walk miles to the nearest stream to collect water, though infested, for consumption; others walk even further to the nearest borehole to wait in queue for hours to try to collect water from the broken down pump. I sensed God saying, "They need water." As if I could do something, anything about it. God assured me, "You can't, but I can."

Miraculously, we started seeing the $75,000 needed to bring immediate relief flow in. I knew the hand of God was at work when I received a call out of the blue one day from a grandma in Washington state who said she wanted to tithe on an inheritance she had received. I didn't know this grandma. Nor did I know the man in Colorado who had told her about our project. (We were in Alabama; I didn't know, hadn't told anyone in Colorado!) Within a year, all funds were in place, and we were able to secure a ministry in Kampala, J.O.Y. Drilling, to re-hab 14 broken boreholes and train 5 new well mechanics. Then, through a completely divine connection, a Ft. Worth, Texas, ministry operating in South Sudan came to drill 5 brand new wells. Both J.O.Y. Drilling and Water Harvest International worked with the population to establish local water management committees to maintain the wells and raise funding for well repairs to ensure sustainability.

New projects on the horizon include the establishment of a feeding program to combat the terrible malnutrition and hunger the orphans and vulnerable children in Ngenge are suffering, along with sustainability initiatives for long-term care. At best, they receive only one meal a day, and that's not saying much. We also hope to re-hab a secondary school building, still pierced with bullet holes. Currently we are connecting with the U.N. World Food Programme and the Hunger Institute of Auburn University to gain ideas and contacts on what's the appropriate recipe for immediate hunger relief and where the distribution channels and sources are. If any readers have ideas or contacts, I would be most grateful to receive them!

LS: You and your wife Alice raised two sons during your private immigration law career. Looking back, what "do's" and "don'ts" can you and Alice offer to busy immigration lawyers (and their spouses) who are just starting families of their own?

Rev. DeMoss: Manage your time, lest it manage you. Work is always there to be done, and, yes, there are fatal deadlines. But your loved ones will not always be there. Life on this earth is transitory and all too short. One day your toddler is wanting you to push him on the swing, the next day he's playing t-ball, and the next he's out of the house away at college. Do you want to say to yourself, "Gee, I wish I had spent more time at the office?!" Alice and I have two boys, now young men, one a staffer on the Hill in Washington and the other a sophomore at Alabama (Roll Tide!). We're suddenly empty nesters, and to have them home at the same time for more than 30 seconds is an absolute miracle. The saying really, really is true: "They grow up so fast." Enjoy and cherish your loved ones, and close friends. They are priceless. With them and in your time of daily reflection and quiet, and for me, prayer, you will find the strength and excitement to practice with hope in your heart, conviction in your spirit, and a smile on your face.

LS: Has your background in the "real world" of a private, secular practice of immigration law provided you with any special insights into your work as an ordained priest?

Rev. DeMoss: In both, people have hopes and dreams. They have worries. They're seeking a better life, a life better for their children and families. In a strong sense, they're placing themselves into your hands to guide them through the process, whether it be immigration or citizenship or their spiritual journey to God. Above all, aside from increasing a spirit of compassion, and service, the practice of immigration law has taught me patience, patience, patience, patience, and perseverance.

LS: I know you agree that the men and women sent by the State Department to represent our country abroad embody the very best qualities of American public service. Would you please grace us with a prayer for the New Year for our nation's Foreign Service Officers?

Rev. DeMoss: Thank you, Liam, for this honor and blessing.

"Almighty God, May Your love fill our souls, that we might be vessels of peace and grace to bring to this hurting and anxious world. Bless especially our Foreign Service officers, who endeavor to safeguard our freedom and welcome the stranger, as the voice and face of America. Guide them with Your wisdom and discernment, give them grace under pressure, and fill them with the radiance of compassion and understanding, all for Your love's sake. Protect, bless, and be with them now and throughout the New Year ahead, as they continue to serve our country with a valiant heart, a keen mind, and a noble spirit. Above all, throughout the year keep us all mindful of Your abiding presence and Your innumerable blessings, our families, friends, our great nation, and our freedom, for which we are truly thankful and to which we resolve to remain wholeheartedly committed. In Your Name, Amen."

Two Views of the Visa Waiver for Israel

"Adding Israel to the Visa Waiver Program will boost business here in the U.S." Congressman Brad Sherman, in introducing the Visa Waiver for Israel Act earlier this month.

"Let's be honest, if we had the opportunity to enter without a visa, there would be a lot more carts in the U.S." "Guy" at 07:07 of Embassy Tel Aviv's video warning against illegal mall cart work. http://www.youtube.com/watch?feature=player_embedded&v=NMsorqqtljc

Death with Dignity: The Role of Consular Officers

The Consular Affairs Office of Overseas Citizens Services (CA/OCS) occasionally receives inquiries relating to gravely ill U.S. citizens abroad and their families confronted with difficult decisions about the end of life. We reprint below a number of these inquires, with responses, as set forth at 7 FAM 200 Exhibit E ("Death With Dignity"):

(1) Question: Can a consular officer authorize removal of life support in the absence of instructions, consultation, or direction from any family member, also without a will or advance directive?

Answer: No. The consular officer cannot act in this capacity. The local law would govern. CA/OCS would work with post to try to find a family member, legal representative or other person who might be designated as guardian. In 2006, CA/OCS and a post faced such a case. Local authorities would not remove life support without a request from a family member, but also would not continue to allow the U.S. citizen to remain in a local hospital. Physicians determined that the individual could survive a flight to the United States with a full life support medical evacuation. CA/OCS and L/CA determined that the Department could not deny the medical evacuation since it would amount to making the decision to allow the person to die. The patient was medically evacuated to the United States where the patient died shortly thereafter.

(2) Question: Can a consular officer assist a family seeking to prevent removal of life support from a pregnant U.S. citizen to allow the viable unborn fetus one more month gestation to increase the chance that the child, to be delivered alive by cesarean section, might survive.

Answer: OCS advised post to assist the family in putting them in touch with appropriate local authorities, provide the family with a list of lawyers, and convey to local authorities the family's concern.

(3) Question: Can a consular officer stop a U.S. citizen from availing him/herself of assisted suicide under local law?

Answer: No, but the consular officer should report the matter to CA/OCS. CA/OCS/ACS will confer with CA/OCS/L and L/CA to formulate an advisory opinion based on the facts of the case. This guidance may include a recommendation that the consular officer encourage the U.S. citizen to designate a legal representative or next of kin to handle disposition of remains and personal effects. http://www.state.gov/documents/organization/86591.pdf

Update on Visa Policy Updates

The "Visas" portion of the Consular Affairs website describes itself as "the official United States visa information source." http://travel.state.gov/visa/visa_1750.html

One of the main topic headings in this official visa information source is "Laws, Regulations and Policy." The latter offers information on essential visa resources such as the Code of Federal Regulations, the Foreign Affairs Manual, and Visa Policy Updates. http://travel.state.gov/visa/laws/laws_1461.html

Click on this third resource -Visa Policy Updates - and you arrive at a webpage describing itself as the place to access selected visa policy guidance transmitted by Consular Affairs to U.S. Embassies and Consulates and provided here in accordance with government website best practices. http://travel.state.gov/visa/laws/telegrams/telegrams_1446.html

Notwithstanding the tremendous number of recent visa policy developments emanating from Consular Affairs, it has now been 24 months since the last update was entered on this webpage.

Indeed, a look at government website best practices reveals that this webpage long ago stopped complying with these best practices, which include the following guidance:

"The public trusts U.S. Government websites to provide current and accurate information. Are you doing all you can to ensure that trust is well-deserved?"

http://www.howto.gov/web-content/manage/keep-content-current/establish-a-review-process

The public trust is really not deserved in this context, since Visa Policy Updates offers no visa policy updates. This webpage should be either be revitalized or else moved to the "Archives" section of the State Department's website. http://2001-2009.state.gov/

Changes to the Foreign Affairs Manual (FAM) Monthly Report

Only two changes to 9 FAM have been listed thus far in 2013, and both are classified. Not the best way to start off a transparent New Year in visa processing.

Consular Corner Quiz

1) Which consular post had the highest number of suspected fraud cases in 2011?

2) Which nonimmigrant classification was created for the purpose of improving management effectiveness, expanding U.S. exports, and enhancing competitiveness in markets abroad?

3) May a permanent resident be the employer of a treaty alien?

4) Citizens of which countries may qualify for the F-3 student visa?

5) Approximately what percent of the 7.5 million nonimmigrant visas issued in 2011 were for temporary visits to the United States for business or tourism?

(a) 50 percent
(b) 75 percent
(c) 90 pecent

6) Are applicants for United States naturalization required to take an oath renouncing allegiance to the country of which they are currently citizens?

7) What are the three visa categories which Congress expressly excluded from the statutory presumption of immigrant intent contained in INA 214(b)?

8) How long must a student have been in F-1 status in order to be eligible for off-campus employment?

9) What is the most common reason that an applicant fails to qualify for a nonimmigrant visa (NIV)?

10) The United States began as a union of how many former British colonies? (This is not a trick question, and every one of you had better get it right!)

Top Ten Visa Wait Times at U.S. Consular Posts, January 2103*

The U.S. Interests Section in Havana has reported a stunning drop in visa wait times. Havana's wait times, which have been frozen at 999 days for the past two years, are now set at 7 days only. Successful Cuban visa applicants can expect additional processing times of 312 days before they actually have their visas in hand.

** Updated to January 3, 2012 and based on published Department of State data. The "visa wait time" is the estimated time in which individuals need to wait to obtain a nonimmigrant visa interview appointment at a given consular post.

Top Wait Times by Region

Middle East and North Africa Yemen/Sanaa (93 days)

The Americas Canada/Calgary (44 days)

Africa Nigeria/Abuja (39 days)

Europe and Eurasia Russia/Moscow (30 days)

Central and South Asia Uzbekistan/Tashkent (26 days)

East Asia and Pacific Vietnam/HCMC (21 days)

Answers to Consular Corner Quiz

1. Santo Domingo, with 7,879 suspected fraud cases.

http://www.gao.gov/assets/650/647871.pdf

2. The L-1 classification. 9 FAM 41.54 N1

http://www.state.gov/documents/organization/87229.pdf

3. No, since the employee derives treaty alien status by virtue of employment for an E-1 or E-2 visa employer, or for an enterprise qualified by reason of its ownership.

http://www.uscis.gov/ilink/docView/F...0-0-41197.html

4. Canada and Mexico. 9 FAM 41.61 N14

5. (b) 75 percent of the 7.5 visas.

6. Yes. http://www.uscis.gov/files/article/M-476.pdf

7. H-1B, L, and V. 9 FAM 40.7 N1.4

8. One full academic year. 41.61 N13.2

9. Failure to show the sufficient ties to his or her home country that are required for most NIV classifications. 9 FAM 40.7 N2

10. Thirteen.

Quote of the Corner

"You can’t change the world everyday, but I go to sleep a lot of times feeling like I’ve done something special." Ambassador Kristie Kenney, in the excellent new DOS video, Changing the World: Joining the Foreign Service.

http://www.youtube.com/watch?v=Zdh2oZ6NSgY&feature=youtu.be

About The Author

Liam Schwartz is a principal in Liam Schwartz & Associates, a corporate immigration and consular law firm. He can be reached on Facebook, and at Liam@lsa-law.com