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OMB Number 1512-0129 June 16, 2000
Dear Federal Firearms Licensee: In an open letter, dated November 18, 1998, we notified you that a recent amendment to the Federal firearms laws prohibited the transfer to and possession of firearms and ammunition by aliens admitted to the United States under a nonimmigrant visa. This letter provides some additional guidance about this amendment and how it affects your conduct of business. The amendment applies to any alien in the United States in a nonimmigrant status, whether or not that alien was required to obtain a visa to enter the United States. Some examples of aliens in a nonimmigrant status are persons travelling temporarily in the United States for business or pleasure, persons studying in the United States who maintain a residence abroad, and temporary foreign workers. Permanent resident aliens are not subject to this new prohibition. There are exceptions to this new prohibition. One such exception – the exception you will most likely encounter – is for a nonimmigrant alien holding a hunting license or permit lawfully issued in the United States. The other exceptions may be found in Section 922(y)(2) of the Gun Control Act of 1968, as amended. (Section 922(y)(2) is on page 15 of ATF's Federal Firearms Regulations Reference Guide - ATF P 5300.4, January 2000.) We are in the process of changing the Firearms Transaction Record (ATF Form 4473) to address this prohibition. However, until the new form is published, we request your assistance to ensure that prohibited nonimmigrant aliens do not obtain a firearm or ammunition from you. Specifically, we suggest that you ask any person who answers "No" to Item 9(l) on the ATF Form 4473 – which asks "Are you a citizen of the United States?" – whether he or she is a permanent resident alien or a person in a nonimmigrant alien status. If the person is a nonimmigrant alien, we recommend that you try to determine whether any of the exceptions to the prohibition apply. If the nonimmigrant alien says that he or she has a hunting license or permit, we suggest that you ask to see it and copy it for your records. We remind you, however, that even if a nonimmigrant alien qualifies for an exception to the prohibition, that person must still satisfy the State residency requirement in order to lawfully purchase a firearm from you. See Item 9(m) on the Form 4473. You may not lawfully sell a firearm to a person who is not a resident of a State. An alien is only considered a resident of a State if he or she has resided in the State for at least 90 days prior to the date of the sale of the firearm. If you have reasonable cause to believe that an alien is subject to the nonimmigrant alien prohibition or if an alien cannot satisfy the State residency requirement, you should end the transaction without contacting NICS or your State POC. If, however, you believe the alien is qualified to lawfully receive or possess a firearm, you may proceed with the transaction by contacting NICS or your State POC. Because the purchaser is an alien, NICS may provide a delay response. If so, a NICS examiner may call you and ask some or all of the following questions –
It is likely that a State POC will follow the same or similar procedure. If NICS or your State POC issues a denial within three (3) business days or before you have transferred the firearm, you may not lawfully transfer the firearm to the purchaser. This is the case even if you have seen documentation – for example, a hunting license – that demonstrates that the purchaser qualifies for one of the exceptions. Remember that a denial could be based on the fact that the purchaser is subject to one of the other prohibitions, such as the prohibition for convicted felons. We realize that this letter will not answer all of your questions regarding the nonimmigrant prohibition. The revised Form 4473 will provide further guidance. In the meantime, if you have any questions about this issue, please contact your local ATF office. Sincerely yours, John P. Malone Assistant Director (Firearms, Explosives and Arson) |