Is it legally possible to purchase a handgun for a nonimmigrant alien from a visa-exempt country?

[Maximer]

Dear Sirs and Madams,
please, sorry for my English, it's not my mother tongue nor even a second language.

As we can read from the Bureau of ATF website:

An alien admitted to the United States under a nonimmigrant visa is prohibited from shipping, transporting, receiving, or possessing a firearm or ammunition unless the alien falls within one of the exceptions provided in 18 U.S.C. 922(y)(2), such as: a valid hunting license or permit, admitted for lawful hunting or sporting purposes, certain official representatives of a foreign government, or a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business.

[18 U.S.C. 922(g)(5)(B) and 922(y)(2); 27 CFR 478.11 and 478.32]

https://www.atf.gov/firearms/qa/may...dmitted-united-states-under-nonimmigrant-visa

But, from the same source of information:

Does the prohibition on the receipt and possession of firearms and ammunition by aliens in nonimmigrant visa status apply to nonimmigrant aliens who lawfully enter the United States without a visa?

No. A nonimmigrant alien who is lawfully admitted to the United States without a visa (e.g. Visa Waiver Program), may acquire or possess a firearm in the United States.

Nationals of those countries can be lawfully admitted to the US without a visa:

38 Visa Waiver Program countries (Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, United Kingdom) + 3 Compact of Free Association countries (The Federated States of Micronesia, The Republic of Marshall Islands, Palau) + 1 other country (Canada) = 42 countries.

But!

Excerpt from the article titled Firearms Eligibility for Foreign Nationals in the United States:

Neither federal firearms licensees (FFLs) nor private individuals can sell or transfer firearms to persons that they know, or have reason to know, reside in a different state, with limited exceptions. Additionally, private persons are not permitted to purchase firearms outside of their states of residence, with limited exceptions. ATF regulations define an individual’s state of residence as the state in which she “is present … with the intention of making a home.” Because nonimmigrants admitted into the United States without a visa are generally in the United States for very limited periods (no more than 90 days in the case of travelers under the Visa Waiver Program), and for specific purposes such as tourism, it would seem difficult for such aliens to satisfy the Gun Control Act’s residency requirements.

So?

Can somebody, please, explain to me - in reality, is it possible or impossible to buy/purchase a handgun in the US for a visa-exempt national? The ATF website said - yes, it is, if you've been lawfully admitted to the US without a visa. But then, it comes to the state residency requirements... Or it is possible to become a state resident for a visa-exempt nonimmigrant? I'm totally confused by those complicated US laws Somebody, please, save me

Note: want to buy a handgun not for export, but for recreation and leisure during my few-months visit to the US, the state of West Virginia (I'll live in your country from January 27 to April 7, 2018).

Thank you very much for help!

 

[Craig_AR]

1. I am not a lawyer, so these are only thoughts on the topic.
2. Since you know you are going to be in West Virginia, you can contact the Office of the Attorney General in West Virginia to ask their guidance.
3. If you know which city or town you will be in, you can identify local gun ranges with rental guns (not all ranges rent guns) and ask them if they would rent to you, given your status. Given that you will be in the USA for only a limited period, and will be well served by using a managed range for your recreational shooting, renting on each range visit rather than buying seems a good solution.
4. In the USA, legal resident status in a state has particular meaning, beyond physical residence. Think of the term as referring to state-level citizenship. If this is an aspect of possessing a gun in West Virginia, the Attorney GEneral's office can help you with the information you need.
5. West Virginia is a beautiful place. I hope you enjoy your visit there.

 

[entropy]

Your problem is with the definition of 'acquire' and 'possess'. They do not mean 'own' (hold legal title to) in US legal parlance. You may acquire or possess a handgun at a range for instance, but you will not own it. I'm sure Frank will be by shortly, but to the best of my limited knowledge (only served as a paralegal for a short while), resident aliens may own, but not nonimmigrant aliens that are not residents of a US State. (you will be here too short to establish residency, or your residency will be too short for most dealers to consider selling) My advice; find a range or two that you can rent guns to shoot on the premises.

 

[bikemutt]

Casting a layman's eye on the rules, regulations and law, it seems to me the intent is to permit non-immigrant visitors to possess firearms for lawful hunting and competitive purposes, as well as foreign law enforcement individuals. As a citizen of the United States who resides in WA, I cannot walk into a gun store in OR and purchase a handgun. I would have to move to OR, reside there for 90 days and show proof of that to a gun dealer in OR before I could buy said handgun.

Again, as a layperson, I can't see why the laws concerning the transfer of a handgun would be relaxed so as to apparently benefit a non-immigrant visitor versus a citizen. Then again, we live in strange times.

I'd just find a range you like that'll rent you the gun, shoot it and enjoy. By the time you sort things out with ATF, FFL ad nauseam you could be having fun instead.

 

[Sam1911]

Hello! And welcome to The High Road.

While I don't know the exact answer to your question, we do have a couple of threads which I think might answer it with proper legal citations.

https://www.thehighroad.org/index.php?posts/10287770/

https://www.thehighroad.org/index.php?posts/10275345/

 

[Frank Ettin]

1. I am not a lawyer, so these are only thoughts on the topic....

On the other hand, I am a lawyer and will explain why some of your answers are inaccurate.

....2. Since you know you are going to be in West Virginia, you can contact the Office of the Attorney General in West Virginia to ask their guidance.....

That is a bad idea, and it would be a useless exercise.

1. An Attorney General of a State is the lawyer for the State. It is not his job to provide legal services, legal opinions, or legal guidance for individuals.
   
   
2. The issue raised by the OP is primarily a matter of federal law. The AG of a State is responsible for the enforcement of state law and should not be expect to provide guidance or assistance in connection with matters of federal law.
   
   
3. If someone really needs legal guidance of assistance with a personal matter he needs to hire a qualified lawyer.

....4. In the USA, legal resident status in a state has particular meaning, beyond physical residence. Think of the term as referring to state-level citizenship....

But for the purposes of federal law, it does not. Federal regulations define "state of residence" for the purposes of the Gun Control Act of 1968 at 27 CFR 478.11:

State of residence. The State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State. If an individual is on active duty as a member of the Armed Forces, the individual's State of residence is the State in which his or her permanent duty station is located, as stated in 18 U.S.C. 921(b). The following are examples that illustrate this definition:

Example 1.

A maintains a home in State X. A travels to State Y on a hunting, fishing, business, or other type of trip. A does not become a resident of State Y by reason of such trip.

Example 2.

A maintains a home in State X and a home in State Y. A resides in State X except for weekends or the summer months of the year and in State Y for the weekends or the summer months of the year. During the time that A actually resides in State X, A is a resident of State X, and during the time that A actually resides in State Y, A is a resident of State Y.

Example 3.

A, an alien, travels to the United States on a three-week vacation to State X. A does not have a state of residence in State X because A does not have the intention of making a home in State X while on vacation. This is true regardless of the length of the vacation.

Example 4.

A, an alien, travels to the United States to work for three years in State X. A rents a home in State X, moves his personal possessions into the home, and his family resides with him in the home. A intends to reside in State X during the 3-year period of his employment. A is a resident of State X.​

....If this is an aspect of possessing a gun in West Virginia, the Attorney GEneral's office can help you with the information you need.....

Not entirely. The questions of whether the OP is completely prohibited from having possession of a gun or ammunition and whether the OP may purchase and own a gun are first matters of federal law outside the authority of the Attorney General of West Virginia.

The state law question is very narrow and limited, and it's discussed below.

....Because nonimmigrants admitted into the United States without a visa are generally in the United States for very limited periods (no more than 90 days in the case of travelers under the Visa Waiver Program), and for specific purposes such as tourism, it would seem difficult for such aliens to satisfy the Gun Control Act’s residency requirements.....

I think that's an accurate summary.

So it is clear that under federal law the OP present in the United States for a limited period of less than 90 days and here for a specific purpose such as on vacation would be prohibited under federal law from buying a gun. But the open question seems to be whether the OP while lawfully temporarily present in the United States without a visa under the Visa Waiver program could have temporary possession of a gun on loan or rental for a lawful sporting purpose.

There is some reason to believe that such temporary possession would be permissible under federal law. However, I would not offer a definitive opinion on that question without more research, and I'm not going to do more research. But if it were concluded that such would be permissible under federal law, there would still be state law to consider.

 

[Craig_AR]

Frank, Thank you for your comments. You clarified several points, and educated me (and, I hope) others, in particular on the varying meanings (in context) of "legal resident."

Given the complications of blending relevant U.S. and Wet Virginia law in this case, I wonder if it is even advisable for the OP to attempt to rent a gun at a range. I certainly could not assume the rental counter clerk or range safety officer would be up to speed on all the laws involved.

 

[Bill50]

Renting is going to be much cheaper than going through the hunting and sporting exemptions. He'll also be automatically delayed even when making a legal purchase once he gets the paperwork together.

I've seen many large groups of people at gun ranges that don't speak English shooting. The counter workers realize the situation then assign a range officer to supervise them. The range officer gives instructions to the person that speaks English. That person then translates to the group.

 

[MedWheeler]

There is good reading here:

https://www.atf.gov/file/61841/download

From the above:

Q5. I’m a nonimmigrant alien lawfully present in the United States without a visa. May I purchase or possess a firearm in the United States?
A5. A nonimmigrant alien who is lawfully admitted to the United States without a visa (e.g. Visa Waiver Program), may acquire or possess a firearm in the United States, provided that he or she is not prohibited from shipping, transporting, receiving, or possessing firearms or ammunition in the U.S. In addition, a nonimmigrant alien legally in the United States with or without a nonimmigrant visa may lawfully acquire a firearm only if he/she meets State of residence requirements as required by the Federal government. For more information, see ATF Ruling 2010-6 at: http://www.atf.gov/regulations-rulings/rulings/atf-rulings/atf-ruling-2010-6.pdf. These requirements are irrespective of the licensed status of the individual from whom the alien is purchasing the firearm. An unlicensed individual is prohibited from selling a firearm to an out-of-State resident. A Federal firearms licensee (FFL) is prohibited, with few exceptions, from transferring a firearm to an out-of-State resident.

So, it seems to read that a V/W non-immigrant may possess. However, all nonimmigrants (V/W or visa-holding) must meet state-of-residence requirements as set by the Federal government. I've read elsewhere that this is considered satisfied after 90 days living within a state. Since V/W visitors would typically not be permitted to stay beyond this time frame, and are assumed not to be "intending to establish residency within the state", I see no way in which one could legally obtain a firearm, since they cannot establish residence, and no one can sell to them lawfully as non-residents.

There is some interesting reading here:

https://fas.org/sgp/crs/misc/firearms.pdf

It almost seems as if, at one time at least, V/W visitors were meant to be included in the general prohibition of all non-resident aliens from possession firearms and/or ammunition. From the link above:

In 1998, Congress amended the GCA to extend its criminal prohibitions to “aliens admitted to the United States under a nonimmigrant visa,” except for certain foreign government officials and law enforcement agents, persons admitted into the United States for hunting or sporting purposes, and aliens who possess hunting licenses or permits lawfully issued in the United States. Aliens with nonimmigrant visas may also petition for a waiver of the application of GCA restrictions. In 2002, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the Department of Justice component primarily responsible for enforcing the GCA, announced a final interim rule interpreting the 1998 amendment to the GCA. ATF interpreted the new restriction as broadly covering any alien “in a nonimmigrant classification,” regardless of whether the alien had been admitted pursuant to a nonimmigrant visa. However, in 2011, the DOJ’s Office of Legal Counsel (OLC), issued both informal and formal opinions in response to an inquiry by ATF as to the permissibility of its interim rule. The OLC concluded that the plain text of the GCA “is clear: the provision applies only to nonimmigrant aliens who must have visas to be admitted, not to all aliens with nonimmigrant status.” The OLC disagreed with ATF’s characterization of the legislative history of the amendments as clearly supporting a broader interpretation, and also postulated several reasons why Congress might have opted to distinguish between nonimmigrants admitted pursuant to a visa and those admitted without. For example, OLC suggested that Congress might have believed the categories of nonimmigrants likely to be admitted without visas posed a lesser security risk than those admitted pursuant to nonimmigrant visas. In response to the OLC opinion, ATF issued a final rule in 2012 that interpreted the 1998 amendment to the GCA as not applying to nonimmigrants who had been admitted into the United States without a visa. There are, however, legislative proposals that have been introduced in the 114th Congress that would amend the GCA to explicitly make it a criminal offense for aliens admitted under the Visa Waiver Program to purchase a firearm.

Now, that last line indicates a proposal has been made to extend the prohibition to all nonresident aliens in the 114th Congress. I'm going to submit this post now, then look into that some and see what I can find to see if that ever happened.

EDIT: Above, I mentioned a possible 90-day period that could satisfy a residency requirement. This is not accurate, and could not be true since, by definition, a non-immigrant visitor cannot be a resident without adjusting their immigration status, or violating their visa terms (or the terms of their visa-waived US entry.)

Also, I did view some summaries of the gun-control-related activities of the 114th Congress and found nothing to indicate any proposals intending to address non-immigrants and guns were addressed.

 

[dogtown tom]

..... However, all nonimmigrants (V/W or visa-holding) must meet state-of-residence requirements as set by the Federal government. I've read elsewhere that this is considered satisfied after 90 days living within a state.
.

Not at all correct.
ATF Ruling 2010-6 "State of Residence" merely requires that a person make their home in a state.
https://www.atf.gov/firearms/docs/ruling/2010-6-state-residence/download

....A person’s “State of residence” is defined by regulation in 27 CFR 478.11 as “the State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State.” Ownership of a home or land within a given State is not sufficient, by itself, to establish a State of residence. However, ownership of a home or land within a particular State is not required to establish presence and intent to make a home in that State. Furthermore, temporary travel, such as short-term stays, vacations, or other transient acts in a State are not sufficient to establish a State of residence because the individual demonstrates no intention of making a home in that State.....

There is no "90 day" requirement.

 

[MedWheeler]

dogtown tom writes:

There is no "90 day" requirement.

True. There had been at one time regarding other situations, none of which addressed non-immigrant visitors, but it has since been stricken.

However, this does the OP no good, as he cannot establish that he "is making his home within a state" since he is here under a visa-waived non-immigrant status, which means his stay within the US cannot exceed 90 days, and that he is expected to maintain a residence in another country (the one from which he came under waived-visa permission.) By definition, a non-immigrant cannot be a "resident", at least, not without violating the terms of his or her visa, or the conditions of his or her visa-waived entry permission.

ATF Ruling 2010-6 provides him with no relief, since it applies to US citizens, and is aimed at clarifying laws regarding those citizens who maintain addresses in more than one state, or addresses abroad. It makes no mention of non-citizen immigrants ("green card holders") or non-immigrant aliens (temporary visitors.)

From the opener of the document you linked:

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has received inquiries seeking clarification as to whether, under Federal law, United States citizens who maintain residences in both a foreign country and a particular State may purchase firearms while in the State.

It seems to be that, the way the laws are written, non-immigrant visitors are not technically prohibited from acquiring or possessing firearms, but pretty much everyone else is prohibited from facilitating such acquisition or possession (except in the limited conditions already discussed.)

 

[Frank Ettin]

....By definition, a non-immigrant cannot be a "resident", at least, not without violating the terms of his or her visa, or the conditions of his or her visa-waived entry permission.....

That's not entirely accurate. There are nonimmigrant visas which still contemplate a long term presence here. Someone here on an H1-B or student visa might lawfully be here for years. Such a person might very well have a home in a State and qualify as a resident for the purposes of the GCA. Of course unless he has a hunting license of qualifies for another exemption under 18 USC 922(y) he is prohibited from possessing a gun or ammunition.

Of course, that doesn't help the OP.

 

[dogtown tom]

However, this does the OP no good, as he cannot establish that he "is making his home within a state" since he is here under a visa-waived non-immigrant status, which means his stay within the US cannot exceed 90 days, and that he is expected to maintain a residence in another country (the one from which he came under waived-visa permission.) By definition, a non-immigrant cannot be a "resident", at least, not without violating the terms of his or her visa, or the conditions of his or her visa-waived entry permission.

Nonsense, ATF even gives instructions on the Form 4473 for those in the US on a non immigrant visa (such as tourists, temporary workers, students, etc)
I've transferred over a hundred firearms to legal residents who are here on a nonimmigrant visa. All that is required is a government issued photo ID (a drivers license) and a Texas hunting license.

ATF Ruling 2010-6 provides him with no relief, since it applies to US citizens, and is aimed at clarifying laws regarding those citizens who maintain addresses in more than one state, or addresses abroad. It makes no mention of non-citizen immigrants ("green card holders") or non-immigrant aliens (temporary visitors.)

Again, nonsense. Ruling 2010-6 clearly does not apply solely to US citizens. You read only the initial paragraph and should have read the entire ruling.

 

[MedWheeler]

dogtown tom, how many firearms have you transferred to non-immigrants here under the limited terms of a visa-waived entry? That's the situation in which the OP is.

 

[dogtown tom]

dogtown tom, how many firearms have you transferred to non-immigrants here under the limited terms of a visa-waived entry?.

Heck if I know.
Only the buyer/transferee knows his immigration status as he is the one to complete
the Form 4473.
When the dealer calls in the NICS check, the FBI will ask for the alien, admission or I94#.
FBI NICS cross checks with Immigration before approving a transfer.

That's the situation in which the OP is

I'm aware of that. But it doesn't make your previous comments accurate.

 

[MedWheeler]

^^ I didn't try to connect the query to my previous comments. I just wanted to know if you were transferring to visa-waived non-immigrants, figuring that, if you were and knew it, you'd know how to do so lawfully (or that some applicants may be lying on the form.) Maybe I should have phrased it more like "have you transferred firearms to visa-waived non-immigrants?"

If there is a way to do so lawfully (meaning on both parties' sides), I'm just not seeing it.

 

[milemaker13]

Make sense yet Max? Clear as mud, yes?

 

[dogtown tom]

^^ I didn't try to connect the query to my previous comments. I just wanted to know if you were transferring to visa-waived non-immigrants, figuring that, if you were and knew it, you'd know how to do so lawfully (or that some applicants may be lying on the form.) Maybe I should have phrased it more like "have you transferred firearms to visa-waived non-immigrants?"

I follow the instructions on the Form 4473.

If there is a way to do so lawfully (meaning on both parties' sides), I'm just not seeing it.

See the instructions to questions 12.d and 18.c on the Form 4473.

 

[Frank Ettin]

The issue for someone temporarily in the United States under the Visa Waiver Program is primarily whether the visitor can, given the temporary nature of his sojourn (i. e., less than 90 days), he can be a resident of a State as the term is defined at 27 CFR 478.11. The answer is not automatically "no", although it seems that a unique, and perhaps improbable, set of facts would need to be true in order to satisfy the test.

However, forming a useful opinion on the question would require information to which an FFL is unlikely to have access, nor would an FFL be required to conduct an independent investigation. An FFL's obligations would essentially be satisfied by complying with NICS and the associated protocols and/or refusing the transfer if he has for some reason reasonable cause to believe that the transferee is a prohibited person.

Deciding how the law applies to those sorts of situations is what courts are for.