May non-immigrant aliens buy firearms?

May non-immigrant aliens buy firearms?

In the United States, citizenship is a complicated issue and it becomes even more so when firearms are involved.  A very common question I am asked is “May non-immigrant aliens buy firearms?

The answer, as is often the case with legal questions, is “maybe.”  To fully answer the question, we need to further explore the details of a given client’s immigration status.

I should note that this particular article is focused on the issues faced by non-immigrant aliens and does not address green-card holders, who are generally treated like U.S. citizens where firearm laws are concerned.  I have a separate article on green card holders and firearms which goes into further detail.

Federal Law

Returning to today’s question of “May non-immigrant aliens buy firearms?”, we will first address federal law.  You start by asking whether or not the client is a ‘documented’ alien.   This means that they have one or more of the following (even those admitted under refugee status will have one or more of these):

  • A#- Alien Number
  • AR# – Alien Registration Number
  • USCIS# – United States Citizenship and Immigrations Services Number
  • I-94# – Arrival and Departure Record Number

If the client is undocumented, then they are not able to purchase, possess, or transport firearms in the United States until that requirement is satisfied.

If they have an appropriate identification number then the next key question is whether they were admitted under a Visa.

If they were NOT admitted  under a Visa (e.g. Visa Waiver Program) then they MAY purchase and possess firearms in the United States as long as they are not otherwise prohibited and do not require any further exceptions to qualify.  The ATF has a Q&A document available here with more details.

If they WERE admitted under a Visa (student, etc.) then they may only purchase and possess firearms under federal law if they meet one of the exceptions laid out in § 18 USC 922(y)(2).  It states:

An alien admitted to the United States under a non-immigrant visa is not prohibited from purchasing, receiving, or possessing a firearm if the alien:

(1) is in possession of a hunting license or permit lawfully issued by the Federal Government, a State or local government, or an Indian tribe federally recognized by the Bureau of Indian Affairs, which is valid and unexpired;

(2) was admitted to the United States for lawful hunting or sporting purposes;

(3) has received a waiver from the prohibition from the Attorney General of the United States;

(4) is an official representative of a foreign government who is accredited to the United States Government or the Government’s mission to an international organization having its headquarters in the United States;

(5) is an official representative of a foreign government who is en route to or from another country to which that alien is accredited;

(6) is an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State; or

(7) is a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business.

The first of these is by far the most common / important.  However, one should be careful not to assume that just any hunting license will suffice.  In this article from Arizona, we see that eight Chinese students were charged, and their firearms seized, due to their having a ‘resident’ hunting license which, under Arizona state law, they were not qualified to receive.  Therefore, the firearms they acquired using the license were considered to have been fraudulently and illegally obtained.  If they had acquired a non-resident hunting license then the entire affair could have been avoided.

State Law

Before you assume that you have a handle on all the permutations, do not forget that state law may impose additional restrictions beyond that imposed by federal law.  For example, in Virginia, a non-immigrant alien (of any status) cannot possess any firearm that meets the statutory definition of ‘assault firearm’.

§ 18.2-308.2:01. Possession or transportation of certain firearms by certain persons.

A. It shall be unlawful for any person who is not a citizen of the United States or who is not a person lawfully admitted for permanent residence to knowingly and intentionally possess or transport any assault firearm or to knowingly and intentionally carry about his person, hidden from common observation, an assault firearm.

B. It shall be unlawful for any person who is not a citizen of the United States and who is not lawfully present in the United States to knowingly and intentionally possess or transport any firearm or to knowingly and intentionally carry about his person, hidden from common observation, any firearm. A violation of this section shall be punishable as a Class 6 felony.

C. For purposes of this section, “assault firearm” means any semi-automatic center-fire rifle or pistol that expels single or multiple projectiles by action of an explosion of a combustible material and is equipped at the time of the offense with a magazine which will hold more than 20 rounds of ammunition or designed by the manufacturer to accommodate a silencer or equipped with a folding stock.

Therefore, when asking the question “May non-immigrant aliens buy firearms?”, it is imperative that a non-immigrant alien understand not only the federal framework, but also any state limitations or prohibitions before they attempt to purchase, possess, or transport any firearms.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in ATF, BATFE, Federal Law, Non-Immigrant Aliens, Prohibited Persons, Student Visa | Comments Off on May non-immigrant aliens buy firearms?

A spouse’s elective share in Virginia

Spouse's Elective ShareI recently prepared an estate plan for a client who had, for various reasons, never finalized her divorce with the father of her children.  In preparing her will, she wanted to have her estate divided between her children but was completely unaware that her estranged husband might have a spouse’s elective share claim.

What is a spouse’s elective share?

A spouse’s elective share is a portion of a decedent’s estate to which a spouse is statutorily entitled.  While the surviving spouse is not required to exercise this election, one cannot sever them from the right to do so unless there is a valid waiver in place specifically waiving the right such as a prenuptial or postnuptial agreement.  A surviving spouse may exercise this right if the decedent died intestate (without a will), left them out of the will entirely, or did not leave as much as they can claim under the elective share.

Recent Changes in Virginia’s spousal elective share

Historically, the laws governing a spouse’s elective share in Virginia were located at § 64.2-300, et seq. of the Code of Virginia.  Under that now-superceded version of the law, the spouse of a decedent was entitled to “(i) one-third of the decedent’s augmented estate if the decedent left surviving children or their descendants or (ii) one-half of the decedent’s augmented estate if the decedent left no surviving children or their descendants.

In my client’s case, since she has surviving children, the old rules would have conceivably allowed her husband to claim one-third of her augmented estate.

During the 2016 legislative session House Bill 231 and Senate Bill 181 were passed, changing a number of provisions in this area of law.  These changes took effect on January 1, 2017.  The laws governing a spouse’s elective share are now located at § 64.2-308.1, et seq.

In the new version, a spouse is entitled to “take an elective-share amount equal to 50 percent of the value of the marital-property portion of the augmented estate.

So in my client’s case, the new rules would conceivably allow her husband to claim one-half of the marital-property portion of her augmented estate.

What is an augmented estate?

This term is used in both the old and new versions of the elective share laws.  However, the list of those assets that comprise the augmented estate also changed on January 1, 2017.

A point-by-point comparison of the differences is beyond the scope of this article.  However, the important thing to note is that, under the new definition, the augmented estate includes the decedent’s non-probate transfers to others.  This would include assets passing outside of probate to the beneficiaries of revocable trusts, transfer-on-death deeds, and other assets with direct benificiary designations.

Complicating matters, there is a percentage allocation table which requires a couple to have been married 15 years in order for a surviving spouse to get credit for 100% of the value.

When is a surviving spouse not entitled to an elective share?

There are a number of defenses to a spousal election.  The first is that the right was somehow waived, perhaps in a prenuptial or postnuptial agreement, a separation agreement, or some other waiver standing alone.  The second occurs when the surviving spouse “deserts or abandons the other spouse and such desertion or abandonment continues until the death of the [decedent].

What does this mean to the average person?

It means that the legal framework surrounding each step in your life is important.

It means that you should consider a prenuptial agreement prior to marriage to insure that both parties fully understand how they are going to handle the financial aspects of their marriage and any possible separation or divorce.

If you are already married and wish to make such decisions then perhaps a postnuptial agreement is in order.

If you are going to separate but remain married, then you should consider adding language to the separation agreement addressing spousal elective share.

Finally, estate planning should be a part of your life at every stage, and should be revisited as your circumstances change (children born or adopted, marriage, divorce, and the passing of loved ones).  Make sure the assets you worked so hard to earn are left to those you truly want to receive them.


Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in Estate Planning, Family Law, Postnuptial Agreements, Prenuptial Agreements | Comments Off on A spouse’s elective share in Virginia

Understanding the implications of the recent ATF ruling regarding overall length measurements

Social media is buzzing about the recent release of a letter from the ATF regarding folding or telescoping ‘stabilizing braces’, non-standard receiver extensions, and the measurement of overall length (OAL).

I have received several calls and emails from clients who are unsure whether this ruling will impact their particular configuration(s).

While there may be other implications, this ruling will primarily affect those who have added a folding or telescoping stabilizing brace (or other non-standard receiver extension) to a pistol with the intent of making the OAL greater than 26 inches so that a vertical fore-grip may be added to the pistol without it becoming an Any-Other-Weapon (AOW).

The ATF’s position is as follows:

a) Adding a vertical fore-grip to a pistol generally makes it an AOW subject to the requirements of the National Firearms Act (NFA).

b) However, if the overall length (OAL) of the pistol is greater than 26 inches then adding a vertical fore-grip doesn’t result in the pistol becoming an AOW.

Previously, many people have concluded that the OAL of a pistol containing a folding or telescoping stabilizing brace would be measured with the brace extended since the OAL of a rifle or shotgun is measured with the stock extended (see below).

However, this latest ruling makes it clear that ‘stabilizing braces’ are NOT stocks and they must be measured with the brace folded or collapsed.  If the OAL with the brace folded or collapsed is less than 26 inches then the addition of a vertical fore-grip will render said firearm an AOW.  If you have such a firearm, I recommend remove the vertical fore-grip immediately.

Finally, there is a second component of the ruling that few people are discussing: the language regarding non-standard receiver extensions.  What does this mean?  I interpret it to mean that if you have a non-folding and non-telescoping brace which would, in its default configuration, not be greater than 26 inches, you cannot use spacers or other extensions to artificially extend it beyond 26 inches.  If the only reason your pistol configuration is greater than 26 inches is that you have a spacer installed and you have a vertical fore-grip installed, I recommend you remove the vertical fore-grip immediately.

If you are looking for alternatives, see my article on angled fore-grips or my article on permanently attaching a muzzle device.

 

Disclaimer:  This information is presented for educational purposes only and does not give rise to an attorney-client relationship. Additionally, I am licensed to practice law in the Commonwealth of Virginia and this answer may not be appropriate for other states.

Posted in Administrative Law, AOW, AR Pistols, ATF, ATF Guidance Letters, ATF Ruling, BATFE, Overall Length (OAL), Stabilizing Brace | Comments Off on Understanding the implications of the recent ATF ruling regarding overall length measurements