Waiting on Green Card approval, firearm purcahse ok?

[Rayden]

Hi folks,

I am married to a U.S. citizen and I myself have been waiting for my Green card approval. I went through the whole application process and had my immigration Interview and finger printing process back in Sept 2006. I have been studying, working, and living here in the U.S. legally since 1989, and have been living in Texas since 1992.

My question is: can I purchase a handgun legally?

I personally think that I can. I've purchased my handguns in gun shows. I was subjected to the delay (waiting period) while the ATF/FBI go through the background check, and I was able to pick up the firearm from the dealer after 4 weeks of waiting for them to show up at another local gun show again.

The form I filled out asked for my Alien number, which I provided. The dealer called in, and told me that I will be subject to a delay. But since everything came back clear, I was able to pick it up.

Is this generally the case with those that are in my situation? Thanks!

 

[Ergosphere]

My question is: can I purchase a handgun legally?

If you were admitted to the U.S. with a non-immigrant visa, you are probably not legal. The relevant case law here is U.S. v. Verdugo-Urquidez; and you should also see the relevant section of the BATFE FAQ.

If this is the case, you can make sure you are legal by obtaining a hunting license... a cheap varmint license should do fine. If you were admitted under an immigrant visa (seems unlikely if you are acquiring your green card via a marriage) then you should be fine.

 

[Oro]

If you have legally purchased a handgun before,and completed the background check, why do you think you'd have a problem now?

Are you asking if there have been changes to the law lately? No.

The only other variable is your status, if you've been convicted of a felony, lost your gun rights, etc. If you have not had a problem, then nothing would have changed.

 

[allank]

I did some research and think this is all correct. As a Lawful Permanent Resident (LPR aka Green card holder) you fall under the immigrant category.

I don't think you are a non-immigrant just from the length of time you have spent in the USA, but I'm not sure. You can check your visa against this list of USCIS Nonimmigrant Visas to confirm this.

If you are a non-immigrant then since February 19, 2002 the firearms rules changed for non-immigrants.
http://usgovinfo.about.com/library/weekly/aa020702a.htm
http://www.atf.treas.gov/firearms/022002form6updates.htm
The rules are explained in ATF P 5300.18 - Nonimmigrant Aliens Purchasing Firearms and Ammunition in the United States. Basically you need a a valid hunting license or permit lawfully issued in the United States, plus meet some other criteria. Also you cannot purchase firearms from a nonlicensee i.e. no private party sales.

If you are an immigrant (see Visa Types for Immigrants), then you can purchase firearms. From the ATF FAQ see #5 which only excludes nonimmigrants and therefore allows immigrants and citizens.

(B5) Are there certain persons who cannot legally receive or possess firearms and/or ammunition? Yes, a person who –

1. Has been convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year;
2. Is a fugitive from justice;
3. Is an unlawful user of or addicted to any controlled substance;
4. Has been adjudicated as a mental defective or has been committed to a mental institution;
5. Is an alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa;
6. Has been discharged from the Armed Forces under dishonorable conditions;
7. Having been a citizen of the United States, has renounced his or her citizenship;
8. Is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner; or
9. Has been convicted of a misdemeanor crime of domestic violence
10. Cannot lawfully receive, possess, ship, or transport a firearm.

A person who is under indictment or information for a crime punishable by imprisonment for a term exceeding 1 year cannot lawfully receive a firearm. Such person may continue to lawfully possess firearms obtained prior to the indictment or information.

This link might also help: http://www.vrolyk.org/guns/alien-laws.html

 

[allank]

To answer an obvious question, the ATF FAQ entry I posted derives from CFR 27 478.32 which has the nonimmigrant hunting license exemption. The FAQ entry is therefore "incomplete" as far as I understand the situation.

The original temporary rule was posted in the Federal Register -- Vol. 67, No. 24 -- Tuesday, Feb. 5, 2002 and is more explanatory but might have been superseded by more recent rulings.

For anyone reading this later - note this info is only valid as of the date of posting (rules change). Also I am not a lawyer so this might be missing something crucial. Please do your own checks because the penalties are severe and would impact your future ability to get a green card or to naturalize, never mind any issue with your current status and mistakes could lead to deportation.

 

[Ergosphere]

allank, note that Rayden's post suggests that he doesn't yet have a green card. Given the length of his stay in the U.S. and the fact that he does not already have a green card, it is likely that he is here on a non-immigrant visa.

For the situation of a person admitted as a non-immigrant who has married a U.S. citizen and applied for (but not yet received) a green card, the legal situation is complicated. If you look at 8 USC 1101(a)(15), you'll find a description of the many types of non-immigrant aliens. Many of those categories start with "an alien having a residence in a foreign country which he has no intention of abandoning" ... which suggests (but does not prove) that his legal status might be subject to change upon marriage to a U.S. citizen, if he does not maintain, or intend to return to, a foreign residence.

As I mentioned above this is a legal gray area. One might consult a lawyer, but it's not worth the expense... just get a hunting license.

My wife is in exactly this situation: she was admitted on an F-1 (student) non-immigrant visa. It's not clear to me if she has immigrant alien status at this time. A good argument could be made that she is now an immigrant, given the letter of the law, but I'd rather not have to argue this in federal court or risk prison time and deportation! So we've been very careful to ensure that everything is legal. To be completely certain, she purchased a varmint hunting license. The ~$15 was well worth the peace of mind.

 

[Rayden]

Thanks all for all the advice.

Ergo you are correct in interpreting that my situation is a "gray area" as per the ATF definition of a Non-Immigrant, for which the description does not fit me. An argument can be made that I am an immigrant as I've married my citizen wife for two and a half years, and I've lived more than half of my life, legally, here in the U.S.

I've followed your link to the ATF site and have read over the sections applicable to me:

(R1) May nonimmigrant aliens legally in the United States purchase or possess firearms and ammunition while in the United States?

Nonimmigrant aliens generally are prohibited from possessing or receiving (purchasing) firearms and ammunition in the United States.

There are exceptions to this general prohibition. The exceptions are as follows:

1.

nonimmigrant aliens who possess a valid (unexpired) hunting license or permit lawfully issued by a State in the United States;

2. nonimmigrant aliens entering the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show sponsored by a national, State, or local firearms trade organization devoted to the collection, competitive use or other sporting use of firearms;

3. certain diplomats, if the firearms are for official duties;

4. officials of foreign governments, if the firearms are for official duties, or distinguished foreign visitors so designated by the U.S. State Department;

5. foreign law enforcement officers of friendly foreign governments entering the United States on official law enforcement business; and

6. persons who have received a waiver from the prohibition from the U.S. Attorney General.

Significantly, even if a nonimmigrant alien falls within one of these exceptions, the nonimmigrant alien CANNOT purchase a firearm from a Federal firearms licensee (FFL) unless he or she (1) has an alien number or admission number from the Department of Homeland Security (formerly the Immigration and Naturalization Service) AND (2) can provide the FFL with documentation showing that he or she has resided in a State within the United States for 90 consecutive days immediately prior to the firearms transaction.

[18 U.S.C. 922(g)(5)(b) and 922(y), 27 CFR 478.124, ATF Rul. 2004-1]



(R2) Typically, who are "nonimmigrant aliens?"

In large part, nonimmigrant aliens are persons traveling temporarily in the United States for business or pleasure, persons studying in the United States who maintain a foreign residence abroad, and certain foreign workers. Permanent resident aliens are NOT nonimmigrant aliens. Permanent resident aliens often are referred to as people with "green cards."

Under (R1)1., I may possess a valid hunting license. In addition, the last paragraph of (R1)1 stated that I may also need an alien number or admission number ... to which I have both.

So taking that into consideration, I purchased a Hunting License and hope that it will cross the t's and dot the i's.

I want to make sure all the laws are followed in this matter and that's why I come on here to ask. I've been living legally in this great country for 19 years and have gotten nothing more than just a couple of speeding tickets. I pay my taxes every year, do not tie up the health care system, and believe I have made positive contribution to this country I call home.... thus I believe that my life is worth defending against criminals just as much as anyone else's is.

Your help and advices are well appreciated!

 

[Voin]

....

 

[Robert Hairless]

I want to make sure all the laws are followed in this matter and that's why I come on here to ask. I've been living legally in this great country for 19 years and have gotten nothing more than just a couple of speeding tickets. I pay my taxes every year, do not tie up the health care system, and believe I have made positive contribution to this country I call home.... thus I believe that my life is worth defending against criminals just as much as anyone else's is.

Bring friends. That's how this country became great.

 

[Ergosphere]

If you'll pardon some minor thread-necromancy here...

The I-130 form (Petition for Alien Relative) is a petition for immigrant status. So a person admitted under a non-immigrant visa retains non-immigrant status until the I-130 is approved, i.e. a green card is issued.

So it's probably not a gray area after all.

 

[MikeH]

Approval of I-130 doesn't mean that that green card is issued. The beneficiary of the I-130 petition still needs to file I-485 for Adjustment of Status, only after which he becomes a permanent resident. From what the OP wrote, it looks like he is in this particular stage.

 

[NavyLCDR]

You talked about buying the gun through the dealer and waiting for the NICS check, so I don't think you have anything to worry about. The FBI/Federal Government bought off on you buying the gun. Since it went through all these checks, you bought it from an FFL. A true private party sales would be no paperwork, no check. Do you have a Texas state DL or ID Card? If so, apply for the Concealed Handgun License and go all the way! The requirements, according to state law, is just state residency, not US citizenship.

Just because the location was at a gun show means nothing - there is no such thing as a gun show loophole. You bought the gun from a FFL.

I hope it all works out for you! Welcome to the US!

 

[boatbod]

I presume the OP applied for I-130 and I-485 together, and is therefore an adjustee. Its kind of a limbo status, because the application could theoretically drag on forever, yet he'd never go out of status (i.e. become illegal) until the case is finally adjudicated. Its definitely not a non immigrant visa category, regardless of how he was admitted to the country.

By the way, it sounds very much like the OP is stuck in the dreaded "namecheck" blackhole.

 

[PinoyInFL]

I went through the green card process myself and it was really a huge relief once I got the green card. I think the rule here is simple:

no green card = non-immigrant

So it was good that you got the hunting license.

 

[Rayden]

Well guys thanks for all the support and answers. I wanted to write an update of what happened since I started the thread.

At first there were bad news, then good news, then bad news again.

Bad News:
After I filled out the form at my FFL with truthful answers, I got a "Delay" so I had no choice but to wait for the result. I knew this was coming so I wasn't too concerned about it ... after all, I've purchased one of my guns that way at a gun show and got a delay. I had to go and pick it up 4 weeks later at the next gun show when the dealer showed up again. So I knew I am cleared.

Anyway long story short my FFL called me after 3 days and said I was denied. So with the NTN number I mailed a package with a letter to request for a reason for denial and I also went through the trouble of getting finger-printed and included the prints in the package I sent to NICS. After a week and a half, I got a response back from NICS saying records show that I or someone that closely match my identification is shown as "may be illegally or unlawfully in the U.S."


Good News:
Ironically, on that same day (4/14/2008) that I got the response in the mail from NICS, my Green Card (19 yrs in the making) showed up in my mailbox next to the NICS letter What are the odds ..... should've bought a lotto ticket that night! So now that I finally got my treasured document, I went and try the form again after speaking to NICS customer rep on the phone. She suggested that I go and try again, based on what she has observed in my file.


Bad News:
So I got the same "Delay" when my FFL called in my form. Ok ... no problem, maybe this time it'll come back with a "Proceed". Well, no such luck It seems that now in the ICE record it looks like it is showing that I just started my consecutive 90 days residency on 4/4/2008, the date my card became effective.... :banghead: So the earliest I can take my gun home is July 4th :banghead::banghead::banghead:

I can understand they can say that I officially became a Permanent Resident on 4/4/08 but why subject me with that date for my state physical residency? I've been living in Texas since 1992 (previous to that 3 yrs in Los Angeles) legally and the last time I left the country/state was for a one week vacation last millennium (1999)? I don't know if it'll help any at all, but I am going to make an appointment with ICE this week to go and see if I can request to have them change my last date of entry to be the true date in Nov 1999.

It is frustrating that criminals can easily buy a gun on the street in a minute or two while law abiding people like me have to jump through hoops. I understand that laws are laws but sometime you can't help and wonder if they got their priorities straight

 

[allank]

Rayden, your status as a Lawful Permanent Resident is the date printed on your Green Card, under "Resident Since". Is that the 4/4/08 date? If so congrats on getting your card so quickly (took me 12 months), and commiserations on the 90 day delay.

 

[Rayden]

Rayden, your status as a Lawful Permanent Resident is the date printed on your Green Card, under "Resident Since". Is that the 4/4/08 date? If so congrats on getting your card so quickly (took me 12 months), and commiserations on the 90 day delay.

I first applied for it in June 2006, so it definitely took me a lot longer than you Congrats as well!

 

[NavyLCDR]

CONGRATULATIONS on the green card! Sorry about the 90 day delay, but all in all it's a good day for you! And I noticed less than a week after the green card you're already griping about America, like a true citizen would!

Talk about irony and coincidence, I just got orders to Iraq for a few months. I will be doing intermediate combat training at Ft. Dix, NJ. Ft. Dix is where I went to Army Basic Training 24 years ago when I first came in the military!

Congratulations again!

 

[allank]

Rayden...It took me nearly 2 years to be admitted as in LPR status and then an additional 12 months to get the actual card. It seems like USCIS are processing faster these days.

 

[MikeH]

Congratulations! Now you have to pay Uncle Sam taxes for all your income, worldwide.

Last time I bought a gun as a LPR, NICS delayed me once and told the FFL to collect evidence of 90-day residency. That was 3 years into my greencard and maybe 8 or 9 as a resident of MD. So, please don't feel bad. That's just what they do.

 

[MD_Willington]

Hey look at it this way, at least your State of residence doesn't have a retarded "Alien Firearms License" like mine does..

I've had my green card since June 2005...

 

[PinoyInFL]

Rayden, congratulations on getting your green card. In 3 years you should be able to apply for citizenship. I had to hold my green card for 5 yrs. before I could apply for naturalization. I agree that starting the 3-month count from the date of your green card approval is crazy. I wouldn't worry too much about it though. 3 months go by very fast. You can make up for it by buying another toy in 3 months!

 

[AndyC]

Congrats - got my GC about 6 months ago; I'm in the same boat, married a US lady. I also had the same experience with the Green Card turning the clock back to zero as far as state-residence was concerned and had to wait out the 90 days.

Since then I've bought another two firearms - and been delayed each time (I really need to do the CHL course).

 

[Nuernberg]

I buyd 3 Firearms sine my AOS to LPR and got delayd every single time too ......

it's kinda annoying but thats about all