Green card holders and firearms

May I purchase a firearm if I have a green card?

Some version of this question shows up in my email almost every week.

It is hardly surprising since there is a great deal of confusion concerning green card holders and firearms.

Those who reach out to me are roughly divided into two groups.

The first group has been told that only full-blown US citizens may purchase firearms.

The second group has been told that anyone legally present in the Unites States may purchase firearms.

The two groups have one thing in common … they have both been given incorrect (or at least incomplete) information.

Let’s break this down step-by step:

1) Nonimmigrant Aliens are Generally Prohibited

The ATF notes that[a]n 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)

So those holding a nonimmigrant visa are generally prohibited from purchasing, receiving, or possessing firearms (I will cover those important exceptions in a later article).

2) But Are Green Card Holders Considered Nonimmigrant Aliens?

The ATF answers this question as well:

No. The possessor of a “green card” is a permanent resident and not in nonimmigrant status.

3)  Filling out the 4473

Let’s look at the relevant question on the ATF Form 4473.

Note that it references instructions for 12d.  In those instructions, it reiterates that permanent resident aliens are not considered nonimmigrant aliens.

4) Final Answer

To summarize … “May I purchase a firearm if I have a Green Card?

Assuming you are not otherwise prohibited (felony conviction, etc.) then yes!

I should also note that the ATF makes no distinction between a green card and a ‘conditional’ green card.

DISCLAIMER:  I am only licensed to practice law in the Commonwealth of Virginia.  This advice is focused on federal law and the laws of Virginia.  Your state may have additional (almost certainly unconstitutional) restrictions on firearms ownership by green card holders.

Posted in 4473, ATF, Background Checks, BATFE, Criminal Law, Federal Law, Green Card Holders, Prohibited Persons, Purchasing Firearms | Comments Off on Green card holders and firearms

Selling an NFA Item as Executor of an Estate

The vast majority of my clients own their NFA items in an NFA Trust so that they get the dual benefits of sharing the items while they are alive and probate-avoidance when they pass away.  However, I occasionally get a call from a potential client who is the Executor of an estate which contains individually-owned NFA items.

You may be asking yourself, “What exactly is an Executor?”  When I use the term ‘Executor’, I am referring to that position which some states call ‘executor’, ‘administrator’, or ‘personal representative’.  Regardless of the term used in a given state, it is the “person authorized under State law to dispose of property in an estate.

The question of whether or not an Executor should sell the items or transfer them to a beneficiary or an heir is based upon the Will of the deceased owner (or lack thereof). However,  in the case where the Executor has determined that they need to sell an item, the question then arises as to how to complete the Form 4.  I will do a separate article in the future on how to complete a Form 5 for transfer of an NFA item to a beneficiary or heir.

But before we talk about completing the Form 4, there is a threshold question that must be answered.  Has the Executor been able to locate the approved tax stamp documents for the NFA items?  If they have then they can move on to the procedural steps below.  However, if they have not then they need to ascertain whether or not the items are properly registered in the National Firearms Registration and Transfer Record (NFRTR).  In the ATF NFA Handbook, they have this to say:

If the executor or administrator cannot locate the decedent’s registration documents, he/she should contact the NFA Branch in writing and inquire about the firearms’ registration status. This inquiry should be accompanied by documents showing the executor’s or administrator’s authority under State law to represent the decedent and dispose of the decedent’s firearms. Although ATF is generally prohibited from disclosing tax information, including the identity of persons to whom NFA firearms are registered, ATF may disclose such information to persons lawfully representing registrants of NFA firearms.

If you find yourself in such a situation, I will be glad to assist you in preparing an appropriate letter to the ATF.  I will do a separate article in the future on how to lawfully dispose of NFA items that are deemed to not be properly registered, and therefore contraband.

But for purposes of this article, we will assume the proper documents have been found.  Having determined that the NFA items are properly registered in the NFRTR, the ATF allows an Executor “a reasonable time” to submit either a Form 4 or a Form 5 for the NFA items in question.  While they do not specifically define this term in the NFA Handbook, you will note that the controlling regulation (quoted below) states that this is “[n]o later than the close of probate.”

It is also important to note that the Executor is subject to the same limitations as an individual owner.  For example, if the item is being sold to a resident of another state, then the item must be transferred to a properly licensed dealer in that state and then transferred from that dealer to the buyer.  I should add that I am licensed to practice law in the Commonwealth of Virginia and your state may have even more state-level requirements that must be observed.

Now that we have all of that out of the way, the executor should fill-in the following fields on the Form 4:

  • Box 3a should contain the name and address of the deceased individual owner
  • Boxes 3b and 3c should contain the Executor’s email and telephone number
  • In the case of an individual owner, Box 3d should mirror 3a
  • Boxes 4a through 4h should match the corresponding fields on the approved tax stamp document for the item
  • Note that these instructions assume that the individual owner did not hold an FFL.  If they did hold an FFL, contact me for more specific advice tailored to your situation
  • The executor should sign in Box 9
  • The Executor should print their name in Box 10 and then note their title of Executor (or whatever the appropriate term is under the laws of their state)
  • Finally, the Executor should enter the date that they signed the Form 4 in Box 11

As for what documentation the Executor should send along with the Form 4, this entire process is governed by 27 CFR § 479.90a, which states that (emphasis added):

(a) The executor, administrator, personal representative, or other person authorized under State law to dispose of property in an estate (collectively “executor”) may possess a firearm registered to a decedent during the term of probate without such possession being treated as a “transfer” as defined in § 479.11. No later than the close of probate, the executor must submit an application to transfer the firearm to beneficiaries or other transferees in accordance with this section. If the transfer is to a beneficiary, the executor shall file an ATF Form 5 (5320.5), Application for Tax Exempt Transfer and Registration of Firearm, to register a firearm to any beneficiary of an estate in accordance with § 479.90. The executor will identify the estate as the transferor, and will sign the form on behalf of the decedent, showing the executor’s title (e.g., executor, administrator, personal representative, etc.) and the date of filing. The executor must also provide the documentation prescribed in paragraph (c) of this section.

(b) If there are no beneficiaries of the estate or the beneficiaries do not wish to possess the registered firearm, the executor will dispose of the property outside the estate (i.e., to a non-beneficiary). The executor shall file an ATF Form 4 (5320.4), Application for Tax Paid Transfer and Registration of Firearm, in accordance with § 479.84. The executor, administrator, personal representative, or other authorized person must also provide documentation prescribed in paragraph (c) of this section.

(c) The executor, administrator, personal representative, or other person authorized under State law to dispose of property in an estate shall submit with the transfer application documentation of the person’s appointment as executor, administrator, personal representative, or as an authorized person, a copy of the decedent’s death certificate, a copy of the will (if any), any other evidence of the person’s authority to dispose of property, and any other document relating to, or affecting the disposition of firearms from the estate.

Once the Form 4 is prepped by the Executor and the required accompanying documents are included, the buyer then completes their required fields on the Form 4.  I have a guide from the buyer’s perspective here.  Once the buyer completes their steps, they mail the Form 4, a check for the tax, and all other required documentation, to the ATF.

The ATF will send the approved tax-stamp back to the Executor (at the address entered in 3a) who can then contact the buyer and arrange for the physical transfer.

Posted in ATF, BATFE, Estate Planning, Federal Law, Form 4, Form 5, Inheriting Firearms, NFA Transfers, NFA Trusts, Private Sales, Tax Stamp | Tagged , | Comments Off on Selling an NFA Item as Executor of an Estate

eForm 1: Documents needed

eForm 1 is back!eForm 1 is back!  At the beginning of October, 2018 the ATF announced that Form 1’s were once again available for submission via eForms.

Turnaround Time

Initial applicants astonishingly reported approvals in as little as 15 days!  And while that number has increased as more and more people take advantage of the system, we are still seeing turnaround times between 30 and 60 days.  Most importantly, it still represents a significant improvement over the year-plus approval times we are now seeing with the paper process.

eForm 1 Instructions

The screenshot below shows the ATF’s instructions for the new eForm 1 process from the eForms site.

In summary, they have devised a process which allows the Responsible Person Questionnaire form(s) (Form 23) to be uploaded, along with your notarized trust while completing the eForm 1.  Once the eForm 1 is successfully submitted, the system generates a copy of the Form 1 and a Fingerprint Cover Letter and emails both documents to you.

You then mail the fingerprint cards of each responsible person to the ATF with the Cover Letter.  You then print the CLEO copy of the Form 1 and mail it, with the CLEO copy of your Form 23, to your local CLEO.  I suggest using Priority Mail (or some other form of mailing which provides proof of delivery).  Any additional responsible persons would mail just the CLEO copy of their Form 23, to their local CLEO.

In the past, I have attempted to assist those clients whose trust I drafted in filing their eForm 1.  The sheer volume has made it impossible for me to continue offering that as a free service since it can take over half-an-hour per application to receive the scanned documents, review them for any errors, compress them to comply with ATF requirements, and then navigate the eForms system.

Therefore, I offer this service for a flat-fee of $50 to cover my time.

Prior to calling me to schedule a time, you will need to do the following:

  1. Email me a Scanned Copy of All 17 Pages of Your Notarized Trust
  2. Have Each Responsible Person on the Trust Complete, Print, and Sign a Form 23
  3. Email me a Scanned Copy of the Completed and Signed Form 23(s)
  4. Email me a JPG copy of each responsible person’s passport-style photo
  5. Call me to schedule a time to do the eForm 1 together

The following instructions go into greater detail about each of these steps.

Email me a Scanned Copy of All 17 Pages of Your Notarized Trust

This will include the 13 pages of the trust, which ends with the notarized signature on page 13, and each of the four schedules that you have signed and dated.

Email me a Scanned Copy of Any Trust Amendments

You may or may not have any amendments.  If I have created any for you then send me a notarized copy of each.

Have Each Responsible Person on the Trust Complete a Form 23

A copy of the new ‘responsible person’ form 5320.23 (Form 23) will need to be completed by each ‘responsible person’ of the trust (you and anyone on Schedule B of your trust).

Important Note:  Your fellow ‘responsible persons’ will find it much easier to complete this form if they have a copy of your completed questionnaire in front of them so they do not make any mistakes regarding the make, model, serial, etc. of the NFA item.  

The Form 23 may be downloaded from the ATF website.  The form itself is well designed with fillable fields which auto-transfer the data to two additional copies (however, this feature only works if you download the form and open it in Adobe Acrobat or Acrobat Reader.  It will NOT work inside the browser.)

You, and the Joint Trustees listed on Schedule B of your trust, should download the form and each complete it according to the following instructions:

Completing Form 23 – Page 1

  • In Box 1 you should check the box for Form 1.
  • In Box 2 you should put the trust name and the address where the items will be primarily stored.
  • In Box 3a you should put your full legal name and your home address.
  • In Box 3b you should put your telephone number.
  • Box 3c can be left blank.
  • If you have changed your name at any time during your life, including being married, then Box 3d should contain all other names you have ever used.
  • In Box 3e you will affix a 2×2 passport-quality photo taken within the last year (on the ATF copy of the form only).  As I noted here, many NFA dealers are planning to offer in-store photography options so you should check with your local gun store.  Failing that, Walgreens is a common provider of this service in many towns.
  • In Box 4a, you should put the type-of-firearm.  Make sure this is exactly the same as what is, or will be, on the NFA item.
  • In Box 4b you should put the manufacturer’s name and the location in which it was manufactured. It is critical that you enter them exactly as they are engraved on the lower! However, if you have a foreign manufactured firearm, you must also be careful to identify the name and location of the original manufacturer and not the importer (which might also be engraved on the lower). If you are manufacturing your own suppressor, or your own SBR based on an un-serialized 80% lower, then your trust is the manufacturer and you should put the trust name, city, and state here.
  • In Box 4c you should put the model of the item. Once again, it is critical that you enter this exactly as it is engraved on the lower! If you are manufacturing your own suppressor, or your own SBR based on an 80% lower, then you will need to assign a model.
  • In Box 4d you should put the initial caliber of the item being built.  Do not put ‘Multi’ as the caliber even if that is what is engraved on the lower.  While you may have multiple uppers for your registered lower, you need to declare a specific primary configuration in this application and you need to retain the ability to return to this configuration. This value should contain the number and the unit of measure such as .30 Cal, 9mm, or 12 Gauge.
  • In Box 4e you should put the serial number of the item. At the risk of repeating myself, it is critical that you enter the serial number exactly as it is engraved on the lower including any alpha-numeric characters! If you are manufacturing your own suppressor, or your own SBR based on an 80% lower, then you will need to assign a serial number. Many people simply start with 001 and proceed in series as they build additional items.
  • Box 5 should contain the information regarding the CLEO whose jurisdiction includes the home address in Box 3a.

Completing Form 23 – Page 2

  • You will need to answer the questions in Boxes 6, 7, and 8 as they apply to you, the person completing the form.  In the example below, I am completing them as I personally would answer them but you will need to answer them truthfully as they apply to you!
  • Note: If you have been convicted of a felony but have since had your gun rights restored then the instructions state you should answer question 6b as ‘No’.  However, I strongly advise you to attach a copy of your restoration paperwork to the Form 23 when submitting it to the ATF.
  • You should enter the date in the field to the right of the signature block.

A Completed Sample of Form 23

The following sample form illustrates what a completed form should look like.

Download (PDF, 928KB)

Printing The Completed Form 23

Once you have completed the Form 23, you will need to print it.  It will print 2 copies.  You should now affix your photo to the ATF copy of the Form 23 only. (DO NOT USE STAPLES)

Signing and Scanning the Completed Form 23

The only place you will need to sign the Form 23 is following the certification statement below Box 8.  You do NOT add “as trustee” to your signature on this form.

Do not forget to sign both copies of the Form 23.

Important:  The ATF requires all signatures to be in either blue or black ink.

Finally, you should scan the completed and signed Form 23 and email it to me.

Posted in 41F, 80% Lower, Administrative Law, AOW, AR Pistols, AR-15, ATF, BATFE, CLEO Notification, eForms, Form 1, Form 23, Manufacturing, NFA Trusts, Processing Times, SBR, SBS, Short Barreled Rifles, Short Barreled Shotguns | Comments Off on eForm 1: Documents needed