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[1] (December 18, 2015)

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CRS   Reports   &  Analysis


Legal Sidebar


Firearms Eligibility for Foreign Nationals in the United

States

12/18/2015



The recent terrorist attacks in Paris, France and San Bernardino, California, have prompted increased.attention upon the
categories of persons barred from acquiring firearms. The Gun Control Act of 1968 (GCA)- as amended, generally
prohibits certain categories of persons from acquiring firearms or ammunition, including some categories of foreign
nationals (i.e., aliens). The GCA provides that aliens in the United States unlawfully are generally barred from
purchasing a firearm, as are most aliens admitted into the United States pursuant to temporary, nonimmigrant visas
(subject to limited exceptions). Aliens who violate these prohibitions, along with persons who sell or transfer firearms
to them, may face                .

Foreign nationals who do not fall under these two restrictions-including lawful permanent residents (commonly
referred to as immigrants), refugees, and other lawfully present aliens who did not enter the United States pursuant to a
visa, such as many foreign travelers visiting the United States under the terms of the Vian.Waiver Prur-are not
prohibited from acquiring a firearm solely on account of their immigration status. Nonetheless, other provisions in the
GCA,   such as residency requirements that must be satisfied for a firearms sale to be lawful, may impede some foreign
nationals from acquiring firearms.

Aliens Admitted to the United States Pursuant to a Nonimmigrant Visa

In general, aliens seeking to come to the United States on a temporary basis (e.g., for tourism, as temporary workers, or
as students) must first obtain a nonimmigranLYia authorizing their admission. However, by immigration statute and
regubation, some foreign travelers seeking to enter the United States under a nonimmigrant classification are exempted
from  visa requirements. For example, foreign nationals from Canada or Bermuda generally do not need a visa if they
seek to briefly travel to the United States for business or tourism. Similarly, under the Visa Waiv er Program, foreign
nationals from 37 participating countries and Taiwan are generally permitted to visit the United States for business or
pleasure for up to 90 days without first obtaining a visa.

In 1998, Congress amended the GCA to extend its criminal prohibitions to aliensadmite t heJnited  n
nonimmirantvisa,   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 -can ile 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 posul s        why Congress might have opted to distinguish between
nonimmigrants  admitted pursuant to a visa and those admitted without. For example, OLC suggested that Congress

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