Immigration Task Force: Agency Action Update
Client Alert | March 21, 2025
Gibson Dunn’s Immigration Task Force is available to help clients understand what these and other expected policy changes will mean for them and how to comply with new requirements.
In recent weeks, several federal agencies responsible for overseeing different aspects of the immigration system have issued or proposed new rules and guidance impacting noncitizens, as well as their families, communities, and employers. This update outlines four of those developments: a new Department of Homeland Security (DHS) rule requiring registration of certain noncitizens and criminal penalties for willful failure to comply; a new proposed DHS rule around the use of social media to vet noncitizens in a variety of common immigration postures; a new proposed Department of Health and Human Services (HHS) around access to the Affordable Care Act marketplace for DACA holders; and a potential new “Gold Card” path to permanent residence.
1. New DHS Rules
DHS recently announced two new rules that seek to expand its ability to monitor noncitizens present in, or seeking admission to, the United States. These include (1) the implementation of a decades-old, little-used registration requirement for noncitizens; and (2) the implementation of new social media information collection and review for certain noncitizens.
Registration Requirements for Certain Noncitizens
On March 12, 2025, DHS announced an interim final rule, effective April 11, 2025, that would—for the first time in decades—enforce the registration requirements of the Immigration and Nationality Act (INA) against certain noncitizens. These requirements include submitting a recently updated registration form online and being fingerprinted.[1] Noncitizens who follow such registration requirements will be issued a certificate or receipt card that they must carry with them at all times.[2]
The interim final rule implements a portion of Executive Order 14159 (titled “Protecting the American People Against Invasion”).[3] In the Executive Order, President Trump directed the Secretary of Homeland Security to enforce the INA’s registration requirements, which date back to the Alien Registration Act of 1940.[4] Notably, these requirements are applicable only for certain noncitizens, namely those who have not applied for a visa, submitted one of several specific forms for immigration relief, or been issued one of several types of identity, visa, entry, or lawful status documents.[5]
Noncitizens who are required to register but willfully fail to do so (or to provide proof of registration when requested by law enforcement) could face civil and criminal penalties.[6]
History
The Alien Registration Act of 1940, also known as the Smith Act,[7] mandated in Title III that all noncitizens (i) aged 14 or older (ii) who had not previously been registered or fingerprinted and (iii) who remained in the United States for thirty or more days were required to apply for registration and be fingerprinted before the end of the thirty day-period.[8 The registration requirements of the Smith Act were announced during a series of radio public service announcements, the first of which included Attorney General Robert Jackson announcing it as an “inventory” of immigrants, which was described as “essential to our national defense.”[9]
In 1952, Congress enacted the INA, incorporating the requirements of the Alien Registration Act into the statute.[10] Further, the INA included a provision that required all registrants to carry the “certificate of alien registration or an alien registration receipt card” “at all times” or risk criminal liability.[11]
While the law has been on the books for decades, its enforcement historically has been inconsistent, and the requirement had generally fallen out of use.[12] Today, noncitizens who enter the United States via a lawful entry method would have already been “registered” in the sense that they have undergone pre-entry vetting and identification confirmation—in other words, the relevant federal agencies already have the “registration” information they need.[13] And for noncitizens who enter the country without inspection, until now, there was no mechanism by which they could comply with the Act’s requirements.[14]
Current Enforcement
DHS’s interim final rule established Form G-325R (“Biometric Information (Registration)”) as a general registration form which can be submitted online.[15] This new general registration form is “available to all aliens regardless of their status”[16] in order to “[e]nsure that all previously unregistered aliens in the United States”[17] follow the registration requirements.
These requirements do not apply to several categories of noncitizens, namely those who have (i) applied to the Department of State for a visa, (ii) submitted one of the documents listed under 8 C.F.R. § 264.1(a),[18] or (iii) been issued one of the documents listed under 8 C.F.R. § 264.1(b).[19] Noncitizens who do not currently appear to need to register under the registration requirements include, among others:
- Lawful permanent residents;
- Noncitizens who were issued a Form I-94 or I-94W, even if the period of admission has expired;
- Noncitizens issued an employment authorization document;
- Noncitizens who have applied for lawful permanent residence and been fingerprinted, even if the applications were denied; and
- All noncitizens in the U.S. who were issued immigrant or nonimmigrant visas before their last date of arrival.
The requirements for certain categories of noncitizens remain unclear. For example, individuals who have applied for asylum and are awaiting adjudication do not fall within the specific list of exempted individuals identified here but are generally already subject to biometrics collection and otherwise seem to meet the exemption criteria.
Additionally, the interim final rule provides that “every registered alien 18 years of age and over must at all times carry and have in their personal possession any certificate of alien registration or alien registration receipt card” and “[n]oncompliance is a misdemeanor punishable by a fine of up to $5,000 or imprisonment for not more than thirty days, or both.”[20] This means that immigrants who are registered—including those with lawful immigration status—could be criminally prosecuted for failing to carry proof of that registration with them at all times.
Social Media Screening
On March 5, 2025, DHS issued a Notice of Proposed Rulemaking (NPRM) “Generic Clearance for the Collection of Social Media Identifier(s) on Immigration Forms”) that would require applicants for several forms of immigration relief and benefits to provide identifier information (“handles”) for social media platforms on which they have had a presence in the last five years.[21]
This requirement is applicable to noncitizens in a wide variety of legal postures, from those seeking entry to the United States for the first time to those who have been here for decades and are applying to obtain their citizenship: N-400 (Application for Naturalization), I-131 (Application for Travel Documents, Parole Documents, and Arrival/Departure Records), I-192 (Application for Advance Permission to Enter as Nonimmigrant), I-485 (Application to Register Permanent Residence or Adjust Status), I-589 (Application for Asylum and for Withholding of Removal), I-590, I-730 (Refugee/Asylee Relative Petition), I-751 (Petition to Remove Conditions on Residence), and I-829 (Petition by Investor to Remove Conditions on Permanent Residence Status).
The stated purpose of this NPRM is to collect all necessary screening information for immigration benefit decisions and to ensure “uniform vetting standards” for national security and public safety risks,[22] as called for by Executive Order 14161 (“Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats”).[23]
2. HHS Proposed Final Rule on Affordable Care Act Access for DACA Recipients
On March 19, 2025, HHS announced a NPRM to rescind a recent Biden Administration regulation that, since November 2024, has permitted recipients of relief under the Deferred Action for Childhood Arrivals (DACA) policy to purchase health insurance through the marketplaces established by the Affordable Care Act (ACA).[24] Estimates vary regarding the number of affected individuals, but reflect that approximately 11,000 DACA recipients would lose their current enrollment to the ACA marketplaces.[25]
Enacted in 2010, the ACA established “Marketplaces” in each state where citizens and “lawfully present” noncitizens may purchase health insurance, made accessible through tax subsidies.[26] States may choose to run their own exchange or participate in the Federal Exchange.[27] Upon passage, HHS issued regulations that defined the term “lawfully present” broadly to include, among other groups, all recipients of “deferred action”—an exercise of prosecutorial discretion by DHS to defer taking removal action against an individual.[28]
Two years later, in June 2012, DHS announced the DACA policy, which allows noncitizens who came to the U.S. as children to apply for deferred action, providing temporary protection from deportation and work authorization.[29] As of September 30, 2024, there are over 530,000 active DACA recipients in the United States.[30] Because of court orders in pending litigation, no new DACA applications have been processed since July 2021, though current DACA recipients can still renew their status and work authorization.[31]
When DACA was first implemented, HHS amended the definition of “lawfully present” to exclude DACA recipients for the purpose of the ACA, thus excluding them from the ACA Marketplaces.[32] On May 8, 2024, however, a Biden Administration final amended the definition of “lawfully present”—effective November 1, 2024—to include DACA recipients, on the ground that there was no reason to treat DACA recipients differently than other persons with “deferred action” status.[33] That final rule is currently subject to litigation in the District of North Dakota and has been enjoined and stayed in nineteen states.[34] Gibson Dunn, together with the National Immigration Law Center, is currently representing DACA recipients and CASA, a membership-based immigrant rights organization, as intervenors in that litigation in defending the May 2024 final rule. Due to the limited nature of the injunction and stay, the final rule remains in effect in other states, and around 11,000 DACA recipients have purchased Marketplace plans.[35]
This recent NPRM would revise the ACA Marketplace regulations to again bar DACA recipients from the ACA Marketplaces.[36] Comments on the regulation are due on April 11, 2025.
3. Announcement of the Potential Revocation of EB-5 Visa in favor of a “Gold Card”
The Executive Branch has also announced plans to offer a Gold Card, which, after application and payment of a fee of $5,000,000, would offer privileges granted by existing Permanent Resident Cards (Green Cards) and a path to U.S. citizenship.[37] President Trump and U.S. Secretary of Commerce Howard Lutnick described the proposed visa program in remarks to reporters in the Oval Office on February 25, 2025.[38] The Gold Card, according to President Trump, could be paid for directly by vetted individuals or on behalf of individuals by companies seeking to hire top job candidates.[39]
“Golden visas” offering legal status and a path to citizenship have grown in popularity in recent decades, with European countries such as Spain, Portugal, and Greece all offering a form of a golden visa to individuals who invest a minimum amount of money in the country.[40]
The United States currently offers a visa under the EB-5 Immigrant Investor Program authorized under Section 203(b)(5) of the Immigration and Nationality Act (the INA),[41] that functions somewhat similarly to a golden visa in that it offers individuals who make certain investments in the country a path to lawful permanent residence.
Specifically, under the INA, EB-5 Visas are available to qualified immigrants seeking to enter the United States for the purpose of engaging in a for-profit organization formed in the United States (1) in which the visa applicant invested (after November 29, 1990), or is actively in the process of investing, $1,050,000 (subject to adjustment) and (2) that will create full-time employment for at least 10 individuals lawfully authorized to be employed in the United States (other than the applicant’s spouse and children).[42] Of the visas made available under the EB-5 Program each year, 20 percent are reserved for investors in rural areas, 10 percent for investors in designated high unemployment areas, and 2 percent for investors in infrastructure projects, each with a reduced investment requirement of $800,000.[43] Under the INA, investments may be made in an organization managed directly by the investor or in qualified regional center programs in which qualified immigrants pool their investments.[44] Notably, the INA expressly authorizes visas under the regional center program through September 30, 2027.[45] Secretary Lutnick, however, stated that the EB-5 Program “was full of nonsense make believe and fraud” and would be replaced by the Gold Card program.[46]
Compared to EB-5 Visas, the proposed Gold Card would shift visa requirements away from the above investment criteria focused on job creation, especially in rural and high unemployment areas, in favor of a simplified flat fee paid to the U.S. Government. At a cost of $5,000,000, the proposed Gold Card would also come at a significantly higher price to visa applicants, and unlike investments made under the EB-5 Program, fees paid for the proposed Gold Card would not offer visa applicants the opportunity to generate returns directly on the cost of the visa.
President Trump and Secretary Lutnick have not detailed plans for terminating the existing EB-5 Program, nor have plans for implementing a Gold Card program been provided. Although the EB-5 program was created by statute,[47] President Trump has stated his belief that Congressional action will not be required to create the Gold Card program.[48] A new visa program adopted without legislation likely would face legal challenges.
[1] See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793 (Mar. 12, 2025).
[2] See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11794 (Mar. 12, 2025).
[3] See Alien Registration Requirement, U.S. Citizenship and Immigration Services, available at https://www.uscis.gov/alienregistration (last visited Mar. 18, 2025); Exec. Order No. 14159, 90 Fed. Reg. 8443 (Jan. 29, 2025), § 7.
[4] See Exec. Order No. 14159, 90 Fed. Reg. 8443 (Jan. 29, 2025), § 7; Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11793 (Mar. 12, 2025).
[5] See Alien Registration Requirement, U.S. Citizenship and Immigration Services, available at https://www.uscis.gov/alienregistration (last visited Mar. 18, 2025).
[6] See Alien Registration Requirement, U.S. Citizenship and Immigration Services, available at https://www.uscis.gov/alienregistration (last visited Mar. 18, 2025) (“It is the legal obligation of all unregistered aliens (or previously registered aliens who turn 14 years old) who are in the United States for 30 days or longer to comply with these requirements. Failure to comply may result in criminal and civil penalties, up to and including misdemeanor prosecution, the imposition of fines, and incarceration.”); Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11794 (Mar. 12, 2025) (“An alien’s willful failure or refusal to apply to register or to be fingerprinted is punishable by a fine of up to $5,000 or imprisonment for up to six months, or both.”).
[7] See Public Law 76-670, 54 Stat. 670.
[8] See Public Law 76-670, 54 Stat. 670, tit. III.
[9] See Elizabeth Burnes & Marisa Louie, The A-Files: Finding Your Immigrant Ancestors, 45 Prologue Mag. 1 (Spring 2013), in NATIONAL Archives, https://www.archives.gov/publications/prologue/2013/spring/a-files.
[10] See 8 U.S.C. §§ 1301 et seq.
[11] See 8 U.S.C. § 1304(e) (noting that anyone who failed to carry such a certificate or receipt card “shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both”).
[12] See Tim Sullivan, Immigration Officials Say Everyone Living in the US Illegally Must Register. What Does That Mean?, Eyewitness News ABC 7 (Mar. 3, 2025), https://abc7ny.com/post/immigration-officials-say-everyone-living-us-illegally-register-what-does-mean/15957638/ (noting that “[a]cross the decades, . . . scholars say the registration requirement has rarely been enforced”).
[13] See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11794 (Mar. 12, 2025) (listing the forms “that satisfy registration requirements”).
[14] See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11795 (Mar. 12, 2025) (noting that under current regulations, “[a]liens who entered without inspection and have not otherwise been encountered by DHS lack a designated registration form”).
[15] See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11795 (Mar. 12, 2025).
[16] See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11795–96 (Mar. 12, 2025).
[17] See Exec. Order No. 14159, 90 Fed. Reg. 8443 (Jan. 29, 2025), § 7.
[18] DHS regulations identify the following forms as applicable registration forms: I-67, I-94, I-95, I-181, I-485, I-590, I-687, I-691, I-698, I-700, and I-817. See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11794–95 (Mar. 12, 2025).
[19] DHS regulations identify the following forms as constituting evidence of registration: I-94, I-95, I-184, I-185, I-186, I-221, I-221S, I-551, I-766, I-862, and I-863. See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11795 (Mar. 12, 2025).
[20] See Alien Registration Form and Evidence of Registration, 90 Fed. Reg. 11793, 11795–96 n.7 (Mar. 12, 2025).
[21] See Agency Information Collection Activities; New Collection: Generic Clearance for the Collection of Social Media Identifier(s) on Immigration Forms, 90 Fed. Reg. 11324 (Mar. 5, 2025).
[22] See Agency Information Collection Activities; New Collection: Generic Clearance for the Collection of Social Media Identifier(s) on Immigration Forms, 90 Fed. Reg. 11324 (Mar. 5, 2025).
[23] See Exec. Order No. 14161, 90 Fed. Reg. 8451 (Jan. 30, 2025), § 2.
[24] Patient Protection and Affordable Care Act; Marketplace Integrity and Affordability, 90 Fed. Reg. 12942 (March 19, 2025)
[25] Id. at 13000.
[26] Patient Protection and Affordable Care Act, P.L. 111-148, as amended.
[27] Affordable Choices of Health Benefit Plans, 42 U.S.C. §§18031 et seq.
[28] Pre-Existing Condition Insurance Plan Program, 75 Fed. Reg. 45014 (July 30, 2010); Patient Protection and Affordable Care Act; Establishment of Exchanges and Qualified Health Plans, 77 Fed. Reg. 18310 (March 27, 2012); Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship and Immigration Services, https://www.uscis.gov/DACA.
[29] Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship and Immigration Services, https://www.uscis.gov/DACA.
[30] Count of Active DACA recipients, U.S. Citizenship and Immigration Services https://www.uscis.gov/tools/reports-and-studies/immigration-and-citizenship-data
[31] Consideration of Deferred Action for Childhood Arrivals (DACA), U.S. Citizenship and Immigration Services, https://www.uscis.gov/DACA.
[32] Pre-Existing Condition Insurance Plan Program, 77 Fed. Reg. 52614 (Aug. 30, 2012).
[33] Clarifying the Eligibility of Deferred Action for Childhood Arrivals (DACA) Recipients and Certain Other Noncitizens for a Qualified Health Plan through an Exchange, Advance Payments of the Premium Tax Credit, Cost-Sharing Reduction, and a Basic Health Program, 89 Fed. Reg. 39392 (May 8, 2024).
[34] Kansas v. United States, 2024 WL 5220178, at *10 (D.N.D. Dec. 9, 2024).
[35] Patient Protection and Affordable Care Act; Marketplace Integrity and Affordability, 90 Fed. Reg. 12942, 13000 (March 19, 2025)
[36] Id.
[37] Remarks: Donald Trump Signs Executive Orders in the Oval Office, Roll Call (Feb. 25, 2025), available at https://rollcall.com/factbase/trump/transcript/donald-trump-remarks-executive-orders-white-house-february-25-2025/.
[38] Id.
[39] Id.
[40] Jonathan Wolfe, How Trump’s ‘Gold Card’ Plan Echoes the Golden Visas Programs in Europe, the New York Times (Feb. 26, 2025), available at https://www.nytimes.com/2025/02/26/nyregion/trump-gold-card-visa-europe.html.
[41] 8 U.S.C. § 1153(b)(5) https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title8-section1153&num=0&edition=prelim
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Remarks: Donald Trump Signs Executive Orders in the Oval Office, Roll Call (Feb. 25, 2025), available at https://rollcall.com/factbase/trump/transcript/donald-trump-remarks-executive-orders-white-house-february-25-2025/.
[47] See e.g., Dep’t of State v. Munoz, 602 U.S. 899 (2024) (“over no conceivable subject [visa decisions] is the legislative power of Congress more complete.”) (quoting Oceanic Navigation Co. v. Stranahan, 214 U. S. 320 (1909); Fiallo v. Bell, 430 U.S. 787 (1977).
[48] Remarks: Donald Trump Signs Executive Orders in the Oval Office, Roll Call (Feb. 25, 2025), available at https://rollcall.com/factbase/trump/transcript/donald-trump-remarks-executive-orders-white-house-february-25-2025/.
Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these developments. Please contact the Gibson Dunn lawyer with whom you usually work, the authors, any leader or member of the firm’s Pro Bono, Public Policy, Administrative Law & Regulatory, Appellate & Constitutional Law, or Labor & Employment practice groups, or the following members of the firm’s Immigration Task Force:
Stuart F. Delery – Co-Chair, Administrative Law & Regulatory Practice Group,
Washington, D.C. (+1 202.955.8515, sdelery@gibsondunn.com)
Naima L. Farrell – Partner, Labor & Employment Practice Group,
Washington, D.C. (+1 202.887.3559, nfarrell@gibsondunn.com)
Nancy Hart – Partner, Litigation Practice Group,
New York (+1 212.351.3897, nhart@gibsondunn.com)
Katie Marquart – Partner & Chair, Pro Bono Practice Group,
Los Angeles (+1 213.229.7475, kmarquart@gibsondunn.com)
Laura Raposo – Associate General Counsel,
New York (+1 212.351.5341, lraposo@gibsondunn.com)
Matthew S. Rozen – Partner, Appellate & Constitutional Law Practice Group,
Washington, D.C. (+1 202.887.3596, mrozen@gibsondunn.com)
Ariana Sañudo – Associate, Pro Bono Practice Group,
Los Angeles (+1 213.229.7137, asanudo@gibsondunn.com)
Betty X. Yang – Partner & Co-Chair, Trials Practice Group,
Dallas (+1 214.698.3226, byang@gibsondunn.com)
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