Chapter 4 - Noncitizens Who Entered the United States Prior to January 1, 1972

A. Purpose

USCIS has the discretionary authority to create a record of lawful admission for and to adjust to lawful permanent resident status eligible noncitizens who entered the United States prior to January 1, 1972. This process is called registry.

B. Background

The statutory provision on registry, which originated in the Act of March 2, 1929,^[1] enables certain unauthorized noncitizens in the United States to acquire permanent resident status. The provision has been reviewed and amended periodically since 1929, most commonly to advance the required date from which continuous residence must be established:

C. Legal Authority

• INA 249; 8 CFR 249 – Record of admission for permanent residence in the case of certain aliens who entered the United States prior to January 1, 1972

D. Eligibility Requirements

To qualify for registry, the applicant must meet the following eligibility requirements:^[12]

1. Entered the United States prior to January 1, 1972

In general, entry pertains to any type of entry, whether legal or illegal, including entry in any immigrant, nonimmigrant, or parole classification.

Current Exchange Visitors

Although not listed as a basis for ineligibility for registry, nonimmigrants who entered as an exchange visitor (J nonimmigrant) subject to the 2-year foreign residency requirement are precluded from applying for permanent residence unless a waiver is granted.^[14] Any applicant subject to the foreign residency requirement must be eligible for and obtain a waiver of the requirement since compliance with such requirement would break the continuous residence after entry.

2. Maintained Continuous Residence in the United States Since Entry

An applicant may prove continuous residence^[15] in the United States since entry without regard to numerous brief departures from the United States.^[16]

Establishing continuity of residence is normally done through the submission of a number of documents covering the period of time since the claimed admission date. While there is no fixed number of documents an applicant must submit to cover the period, it must be enough to satisfy an officer making the determination. An officer should take into account the length of time since the entry, the applicant’s circumstances, and other similar factors when determining how much evidence is necessary to establish continuous residence.

The burden remains on the applicant to prove eligibility for this benefit.^[17] Exact, complete proof of continuous residence is not required. However, the applicant should submit evidence to show a pattern of continuous residence in the United States for the time period necessary. The officer should consider the proof of residence submitted in light of any relevant periods of time when large numbers of noncitizens were leaving the United States, such as periods of war or economic recessions.^[18]

Establishing Entry and Continuous Residence

The applicant may show evidence of entry by submitting at least one document showing presence in the United States prior to January 1, 1972. An applicant may submit as many documents as necessary to establish the entry date and continuous residence in the United States. The officer should document the record to reflect the evidence used to establish eligibility. 

Examples of the types of evidence an applicant may submit include copies of:

• Passport page(s) with nonimmigrant visa, admission, or parole stamp(s);
• Arrival/Departure Record (Form I-94);
• Income tax records;
• Mortgage deeds or leases;
• Insurance premiums and policies;
• Birth, marriage, and death certificates of immediate family members;
• Medical records;
• Bank records;
• School records;
• All types of receipts that contain identifying information about the applicant;
• Census records;
• Social Security records;
• Newspaper articles concerning the applicant;
• Employment records;
• Military records;
• Draft records;
• Car registrations;
• Union membership records; and
• Affidavits from credible witnesses having a personal knowledge of the applicant’s residence in the United States, submitted with the affiant’s contact information. 

Although affidavits may be submitted and should be considered, an applicant should be able to provide some type of additional evidence to support the application. Additionally, affidavits must be convincing and verifiable and affiants must be credible witnesses.^[19]

3. Good Moral Character

The good moral character^[20] requirement for the registry should be treated in a similar manner to the good moral character requirement in the naturalization process except that registry does not require good moral character over a specified period of time. The applicant is required to establish good moral character during the period encompassed by the registry application. If an applicant is not within any of the specific classes of noncitizens ineligible for visas or admission under INA 212, an officer may find the applicant does not possess good moral character for other reasons.^[21]

4. Admissibility and Waiver Requirements

Only certain grounds of inadmissibility are relevant to registry applications.^[22] The following table specifies which grounds of inadmissibility apply and which do not apply to applicants for registry.

Criminal acts may be waived if the applicant meets the criteria for a waiver of the ground.^[23] An applicant may file a waiver application for the applicable grounds of inadmissibility and it should be adjudicated to the standards of any other waiver.^[24]

5. Discretion

Even if a registry applicant meets all other statutory eligibility criteria, the application must still warrant a favorable exercise of discretion to be approved. 

In most registry cases, a favorable exercise of discretion is warranted because the positive factor of having lived in the United States for such a long period of time and having created ties to the country outweigh all but the most negative discretionary factors.^[25]

6. Treatment of Family Members

Dependents of registry applicants cannot file as derivative applicants. Each applicant must qualify on his or her own. An applicant may petition for eligible family members in an appropriate family-based category once he or she obtains permanent resident status through registry.

E. Documentation and Evidence

An applicant should submit the following to establish eligibility for registry:

• Application to Register Permanent Residence or Adjust Status (Form I-485), with the correct fee;
• Two passport-style photographs;
• Copy of government-issued identity document with photograph;
• Copy of birth certificate;
• Evidence of entry into the United States prior to January 1, 1972;
• Evidence of continuous physical presence in the United States since entry; and
• Certified police and court records of criminal charges, arrests, or convictions (if applicable).

An applicant does not have to submit a Report of Immigration Medical Examination and Vaccination Record (Form I-693) or Affidavit of Support Under Section 213A of the Act (Form I-864), because the medical and public charge grounds of inadmissibility are not applicable.

F. Adjudication

1. Jurisdiction

An application for registry must be filed according to the form instructions. USCIS generally has jurisdiction to adjudicate the application unless the applicant has been served with a Notice to Appear or warrant of arrest.^[26] If the applicant has been served with a Notice to Appear, an Immigration Judge generally has jurisdiction over the application. If an Immigration Judge has jurisdiction, an officer completes only preliminary processing and closing actions on the case once the judge has made a final decision. 

2. Interview

If USCIS has jurisdiction, the applicant is interviewed to determine eligibility. At the interview, the officer places the applicant under oath and proceeds to review the application.

Name

The officer should closely question the applicant regarding all variations of names used, including foreign variations of any Anglicized names. An officer should pay particular attention to the name the applicant used upon arrival in the United States. Information gathered concerning the applicant’s name may provide data that an officer can use to search relevant systems for information on the applicant’s entry.

Date of Last Arrival in the United States

If the applicant has been absent from the United States on at least one occasion since the entry claimed on the application for registry, an officer should question the applicant to obtain all the facts regarding the date, place, manner of departure and reentry, and the purpose of each absence. An officer may need to verify each departure and reentry from USCIS records if the applicant’s file does not contain the information. A temporary absence does not necessarily break the continuity of the applicant’s residence. Therefore, an officer must determine whether the evidence establishes that the applicant’s absence did or did not break the continuity of residence. In any case where the applicant departed under an order of exclusion or deportation, continuity of residence is considered broken.

Membership in Organizations

If other evidence of the applicant’s continuity of residence is missing, an applicant’s organizational membership or association records may be helpful regarding the period of the applicant’s membership. Membership in organizations includes unions, clubs, and religious or community entities.

An officer should question the applicant about the nature of any organization in which the applicant has been involved. When appropriate, an officer should check against the list of Foreign Terrorist Organizations designated by the Secretary of State.^[27]

Violations of Law

The statute specifically bars from registry those applicants who are found to be inadmissible “as it relates to criminals, procurers and other immoral persons, subversives, violators of the narcotics laws or smugglers of aliens.”^[28] Therefore, an officer should elicit information from the applicant about any criminal history to determine if the applicant meets the eligibility requirements and ensure the applicant is admissible to the United States. 

Request for Exemption or Discharge from Training or Service in the U.S. Armed Forces

An applicant who is ineligible to citizenship is barred from registry.^[29] For this reason, an officer should review any information in the Selective Service System to determine if the applicant is eligible for registry. 

If the applicant was classified as “4-C – Alien or Dual National - Sometimes Exempt from Military Service” by the Selective Service System, the officer should further inquire to determine if the applicant was granted exemption or discharge from training or service in the U.S. armed forces due to alienage.^[30] If the applicant avoided conscripted military service by requesting and being granted exemption or discharge from training or service in the U.S. military due to alienage, the applicant is considered “ineligible to citizenship” and therefore ineligible for registry.

Deportation Proceedings

An officer should verify the applicant’s statements regarding deportation or removal proceedings. The applicant’s continuity of residence is considered broken by a departure due to, or following, an order of removal, deportation, or exclusion. However, an applicant who leaves under an order of voluntary departure does not automatically break the continuity of residence.^[31]

Eligibility for Presumption of Lawful Admission

If examination of an applicant’s file and supporting documents and information establishes the applicant is eligible for presumption of lawful admission^[32] even though the applicant sought permanent residence through registry, an officer should advise the applicant that the registry application filed on Form I-485 will be converted to one for presumption of lawful admission. 

The officer should only transfer the Form I-485 from one basis to another in clear cases in which the application can be immediately granted.

3. Approvals

If the applicant can establish eligibility for registry and that the application warrants a favorable exercise of discretion, then the officer should approve the application and provide the applicant with a permanent resident card.

Effective Date of Permanent Residence 

The date the applicant is able to establish entry for registry purposes is important because it determines the code of admission as well as the effective date of the applicant’s permanent residence, as outlined in the table below. 

An applicant who claims entry prior to July 1, 1924, but is only able to establish presence at some point after that date and before January 1, 1972 can only be granted permanent residence as of the date of the application’s approval. If the applicant is able to establish presence prior to July 1, 1924 after a decision has already been made, the application should be reopened on a Service motion and a new decision issued.^[33]

4. Denials

If no record is found of the applicant’s entry and the applicant is unable to establish eligibility for registry, an officer must deny the application and provide a written explanation of the reasons the application was denied.^[34] There is no appeal of a denied registry application. If removal proceedings are initiated against the applicant, then the applicant may renew the registry application in removal proceedings.^[35]

Footnotes

[^ 1] See 45 Stat. 1512.

[^ 2] See Pub. L. 76-853 (October 14, 1940).

[^ 3] See Pub. L. 82-414 (PDF) (June 27, 1952).

[^ 4] See Pub. L. 85-616 (PDF) (August 8, 1958). See Pub. L. 85-700 (PDF) (August 21, 1958).

[^ 5] By eliminating deportability as a bar, registry became available to applicants who had entered the country without inspection, or who had overstayed or violated the terms of a temporary period of entry.

[^ 6] See INA 249.

[^ 7] See Pub. L. 89-236 (PDF) (October 3, 1965).

[^ 8] See Pub. L. 99-603 (PDF) (November 6, 1986).

[^ 9] See Pub. L. 100-525 (PDF) (October 24, 1988).

[^ 10] See Pub. L. 101-649 (PDF) (November 29, 1990).

[^ 11] See Pub. L. 104-208 (PDF) (September 30, 1996).

[^ 12] See INA 249.

[^ 13] See INA 237(a)(4)(B) (noncitizens inadmissible under INA 212(a)(3)(B) and INA 212(a)(3)(F) are deportable).

[^ 14] See INA 212(e).

[^ 15] See INA 101(a)(33).

[^ 16] See Matter of Outin (PDF), 14 I&N Dec. 6 (BIA 1972), but see Matter of Lettman (PDF), 11 I&N Dec. 878 (Reg. Comm. 1966). A departure as a result of exclusion or expulsion proceedings may break the continuity of residence regardless of the period of time outside the United States. See Matter of P- (PDF), 8 I&N Dec. 167 (BIA 1958), but see Matter of Young (PDF), 11 I&N Dec. 38 (BIA 1965) (voluntary departure does not break continuity of residence).

[^ 17] See 8 CFR 103.2(b)(1).

[^ 18] For a further discussion on the issue of continuity of residence, see Matter of P- (PDF), 8 I&N Dec. 167 (Reg. Comm. 1958); Matter of S-J-S- (PDF), 8 I&N Dec. 463 (Asst. Comm’r 1959); Matter of Lee (PDF), 11 I&N Dec. 34 (BIA 1965); Matter of Young (PDF), 11 I&N Dec. 38 (BIA 1965); Matter of Ting (PDF), 11 I&N Dec. 849 (BIA 1966); Matter of Lettman (PDF), 11 I&N Dec. 878 (Reg. Comm. 1966); Matter of Benitez-Saenz (PDF), 12 I&N Dec. 593 (BIA 1967); Matter of Contreras-Sotelo (PDF), 12 I&N Dec. 596 (BIA 1967); Matter of Harrison (PDF), 13 I&N Dec. 540 (BIA 1970); and Matter of Jalil (PDF), 19 I&N Dec. 679 (Comm. 1988).

[^ 19] See 8 CFR 103.2(b)(2)(i). See 8 CFR 245a.2(d)(3) for examples of documents that may establish proof of continuous residence. Although this list was created for legalization provisions, it provides common examples of evidence that USCIS will accept to establish continuous residency under any statutory provision.

[^ 20] See INA 101(f). See Matter of P- (PDF), 8 I&N Dec. 167 (BIA 1958).

[^ 21] For further discussion on good moral character, see Volume 12, Citizenship and Naturalization, Part F, Good Moral Character [12 USCIS-PM F]. See Matter of Carbajal (PDF), 17 I&N Dec. 272 (Comm. 1978). See Matter of Piroglu (PDF), 17 I&N Dec. 578 (BIA 1980). See Matter of Sanchez-Linn (PDF), 20 I&N Dec. 362 (BIA 1991).

[^ 22] The statute only requires that a registry applicant establish that he or she is not inadmissible under INA 212(a)(3)(E) or INA 212(a) insofar as it relates to “criminals, procurers and other immoral persons, subversives, violators of the narcotic laws or smugglers of aliens” and that he or she is not ineligible to citizenship and is not deportable under INA 237(a)(4)(B). See INA 249. For more information on the grounds of inadmissibility, see Volume 8, Admissibility [8 USCIS-PM].

[^ 23] See INA 212(h).

[^ 24] For more information on waivers, see Volume 9, Waivers and Other Forms of Relief [9 USCIS-PM].

[^ 25] For more information on discretion, see Part A, Adjustment of Status Policies and Procedures, Chapter 10, Legal Analysis and Use of Discretion [7 USCIS-PM A.10]. For a discussion of discretion in registry applications, see Matter of L-F-Y- (PDF), 8 I&N Dec. 601 (Asst. Comm. 1960); Matter of R-E- (PDF), 9 I&N Dec. 103 (Asst. Comm. 1960); and Matter of De Lucia (PDF), 11 I&N Dec. 565 (BIA 1966).

[^ 26] See 8 CFR 249.2(a). 

[^ 27] Applicants must not be deportable under terrorist-related grounds to be eligible for registry. See Section D, Eligibility Requirements [7 USCIS-PM O.4(D)].

[^ 28] See INA 249. See INA 212(a)(2)(A)-(D) and INA 212(a)(6)(E). See Section D, Eligibility Requirements, Subsection 4, Admissibility and Waiver Requirements [7 USCIS-PM O.4(D)(4)].

[^ 29] See INA 249(d). See INA 212(a)(8) (ground of inadmissibility) and INA 101(a)(19) (definition of ineligible to citizenship). See Section D, Eligibility Requirements, Subsection 4, Admissibility and Waiver Requirements [7 USCIS-PM O.4(D)(4)].

[^ 30] See Volume 12, Citizenship and Naturalization, Part I, Military Members and their Families, Chapter 4, Permanent Bars to Naturalization [12 USCIS-PM I.4]. An applicant who requested, applied for, and obtained a discharge or exemption from military service from the U.S. armed forces on the ground that he or she is an "alien" (“alienage discharge”) is permanently ineligible for naturalization unless he or she qualifies for an exception.

[^ 31] See Matter of Young (PDF), 11 I&N Dec. 38 (BIA 1965). See Matter of Benitez-Saenz (PDF), 12 I&N Dec. 593 (BIA 1967). See Matter of Contreras-Sotelo (PDF), 12 I&N Dec. 596 (BIA 1967).

[^ 32] See Chapter 1, Presumption of Lawful Admission [7 USCIS-PM O.1].

[^ 33] See 8 CFR 249.3.

[^ 34] See 8 CFR 103.3.

[^ 35] See 8 CFR 249.2(b).