NICS appeal frustration

Welcome to THR.

It's unfortunate that you're the alien of the month singled out by bureaucracy to help justify Obama's job creation initiative. Every legal resident in this Nation deserves the right to defend his home.

Assuming you have a clean record, you'll probably get the okay long before the 150 days have lapsed.

If you are legal to own a firearm, and you know it, then find someone local to buy a weapon face to face. You will have protection in your home without having to go wait for NICS.

Do you mind if I ask what state you live in, as some states regulate Face to Face firearm sales.

Most states don't require a background check for long arms, either, so you could buy a shotgun for home defense in the mean time.

I agree that it is ridiculous to have to wait up to 150 days for a response, but there are other legal ways to purchase a defensive weapon.

Can your wife or girlfriend pass the NICS?

Southwest?

If you're in the Southwest, that is to say Nevada, Arizona, New Mexico, Texas, Utah, or Colorado you should be fine with a face-to-face private sale (all other things being in order).

In the Northwest -- Washington, Idaho, Oregon, Montana, Wyoming -- you're good, too.

California . . . bleh.

Moving east, things are a bit of a patchwork.

So, let's begin with "which state is yours?"

ZombieNerd said:

Most states don't require a background check for long arms, either, so you could buy a shotgun for home defense in the mean time.

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All firearms purchased from an FFL are require the purchaser to undergo a NICS check, this can be waived if the purchaser holds a current valid concealed carry license for that state, and that state performs an FBI background check to issue the license.

So purchasing a rifle will not improve this situation. Indeed it may significantly worsen the situation, if it could show any intent to circumvent any law of the US and this is disclosed to USCIS, depending on the visa that the OP is on this may result in withdrawal of his visa, and deportation proceedings.

DO NOT DO ANYTHING THAT MAY JEOPARDIZE YOUR IMMIGRATION AND RESIDENCY STATUS!!!!!!

8 USC 1227 2
(C) Certain firearm offenses.-Any alien who at any time after admission is convicted under any law of purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is deportable.

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Shutterfly, welcome to thr, and the shadowy world of non-resident and resident aliens, where your rights are not, and just because someone else can do something it does not mean that your can. I'm not 100% sure of your immigration status, are you an LPR (green card holder), or on a temporary visa (B-1 (or WB), E, H, I, L, O, P, Q, R), a permanent worker visa (EB)? This can have a significant impact on your rights and right to bear arms. I was originally admitted 10 years ago under an H-1B, later gained my Green Card and I'm now a US Citizen, so I went through the mill to say the least.

What I can say is that visa holders do not have the same constitutional protections as citizens, LPR's (Green card) have almost all the same rights as US citizens except the right to run for public office, and the right to vote in federal elections (local elections voting is per state). Now, when you went to purchase your firearm, you were run through the NICS System using information supplied on the 4473 form, if you answered yes to you are a non-immigrant alien (question 11(l)), or that you are not a US Citizen (question 14) then there is an additional ICE check performed to validate your status (i.e. you're legal) in addition if you answered no to question 14 you need to answer question 15 of the 4473 and supply your alien ID number.

Now if you are a non-immigrant you are a prohibited person unless you have a documentation that excepts you from this prohibition for instance a hunting license.

The interesting thing about aliens is that you can be resident but a non-immigrant, under certain highly unusual conditions you can be an immigrant but non-resident. You mentioned you're a resident but did not disclose your immigration status. This is important if we're to provide any advice.

Those are valid points by Gungnir. I wonder if it could be something as simple (and stupid) as somebody having the same name with a criminal background. And since you theoretically have nothing on file, it may be working against you. It's like a credit report where you have no history if you recently immigrated.

While I agree that you SHOULD be able to own and possess a firearm, based on the little information I know of you, I ALSO AGREE that you do NOT want to jeapordize any status that may still be in the works. If you are told you should not own a weapon right now, for whatever reason, I would abide by that law, hoping that things will eventually open up for you in the future.

In the meantime, be happy with Hornet and Wasp Killer which shoots at least 25 to 30 feet.

A spray in the face from that stuff would turn anyone away, trying to run while falling down steps and over anything else in their way!

Good post Gungnir.

To those suggestion a private party face to face transaction, keep in mind that for us non-citizens the laws are less than straightforward. Most of the time we have the same rights as citizens, but the penalties for breaking the law are far more severe.

What's a misdemeanor and a small fine for you, could cost me my career, my house, my family, and my future. I could end up incarcerated and deported for the smallest infraction of firearms law.

That might sound reasonable on the surface, I mean we don't want criminal immigrants. But for example, I'd be a felon for even touching a gun in Washington state.

If you're a citizen, you can work with a basic understanding of the law. But for a non-citizen, it's critically important to know, understand, and follow all local, state, and federal laws.

To OP, I know it's frustrating, but just wait and see what NICS comes back with.

My concern would be why they flagged you with a "deny". The steps are "proceed, delay and deny". Typically situations such as yours we always received delayed, which means we cannot transfer for 5 business days if the status is not changed by NCIS. Good luck with your quest, just remember the squeaky wheel gets the grease.... I would check fairly often with them, but always be very polite and thank them for their time. It could get you bumped up on the waiting list..

Interesting.
As a resident alien, as required I fill in my green card number on my 4473 form. That should be enough for the bureaucrats to verify if one is in the states legally or not.
And surely you have a driver's license, social security number, etc.
I can't see why you'd be denied for NOT having a record with the FBI.

I have been delayed on my last 2 purchases. The last time was a longer delay. I think it might have to do with me having submitted for a C&R license.

Well the information that is given for a NICS result is purely proceed, delay or deny. Why deny came back for the OP is not known, it could be that ICE came back with something that is not known to the OP.

The FBI not having them on file is highly unusual, since the FBI is used to screen all visa candidates that apply through USCIS (i.e. not through a visa waiver program) this information is retained until the alien gains US citizenship (and I'm sure there's some maximum time too, say 100 years).

The most likely explanation is that this is a clerical error, for instance the OP changed their name (through marriage for example), or their official record is under a different alias in the FBI databases, this happens a lot with Brazilians or Portuguese where they have both a matriarchal and patriarchal family name (or maybe more), and occasionally USCIS choose the patriarchal name (or the last in the list), where the individual commonly goes by the matriarchal name (or a different familial name) or vice-versa. For instance "Paulo Ivan Santa Maria Mão de Ferro" may be recorded by the USCIS as Paolo Ivan Ferro (forename, any secondary names, and surname, though incorrect as the final name is "Mão de Ferro") however he may be commonly known as Ivan Santa Maria, Paulo Mão de Ferro, Ivan Mão de Ferro, Paulo Santa Maria, etc. Of course the FBI may have different ideas of how to differentiate that name which may lead to the same query across different databases producing different results.

However the immigration status of the individual is not recorded in the FBI records and rightly so; too much information about individuals stored in government databases tends to lead them into all sorts of dangerous areas.

In most false denials, it's because your info is close to someone else.

I have a very low opinion of government desk-jobbers, after once being delayed indefinitely, and many times (unrelated to the delay) having paperwork 'to be done in no less than three weeks' take five months, a dozen phone calls, and a threat to send my lawyer (the local paper-pushers apparently HATE this guy!) down to take care of it.

There's a distinct possibility just running a new 4473 will get you approved. There's just as much chance that you have a long and frustrating road to walk down.

Shutterbug, this may not be a false denial.

An H-1B is a non-immigrant temporary worker in a specialty occupation. Even though it's recognized as dual-intent it is still a non-immigrant visa, dual-intent just means you can apply for an immigrant visa while your current visa is valid and during your stay. Therefore you need to answer yes to question 11(l) on the 4473 and have documentation (such as a hunting license) that provides an exception.

One issue I do see is in the potential scenario where you use a firearm in self defense. This is very murky legal waters we're talking about.

One additional point (and this is very important) many states do not allow non-resident aliens to possess firearms, while this restriction on firearm possession is not Federal, many states that do have this restriction it will be classified as a felony, and this will then initiate 8 USC 1227 2 (C) above, since you would be "in violation of any law" this includes federal, state, and local ordinances.

My recommendation is if you want to pursue this go talk to your immigration lawyer, AND also talk to a lawyer who is familiar with firearms law (federal, state and local) or call the NRA and/or SAF.

The reason I say talk to both is your immigration lawyer is going to freak out and say no you can't own firearms. I know mine did, actually he did worse, and recommended my wife, a natural born citizen, disarm too, to prevent constructive possession by me then he found out I had a WA State issued AFL and CPL, but he wasn't very happy about it.

The other lawyer or organization is going to probably need to do some research and get back to you, but you should have a definitive answer, you may also like to give your other lawyer your immigration attorney's details so they can converse on the subject. I know that there are people who have significant gun collections on H-1B's and other visa's, and I also know since you mentioned it, people you know on the same visa have firearms, it does not mean that this is legal, it just may mean that as yet they haven't been caught.

Unfortunately legal advice is generally worth what you pay for it.