NFA Gun Trust Lawyer Blog
We are often asked about people who are not U.S. Citizens and their ability to be involved with a gun trust, purchase NFA firearms, or use NFA firearms.
Those who are not citizens are separated into two categories: 1) resident aliens and 2) nonimmigrant aliens. A resident alien is a person who is not a citizen of the United States, but has become a permanent resident of the United States. A nonimmigrant alien is generally a tourist, student, business traveler, or temporary worker who enters the U.S. for a fixed period of time. They are lawfully in the United States, but not lawfully a permanent resident.
Nonimmigrant aliens lawfully admitted to the United States without a visa are not prohibited from shipping, transporting, receiving, or possessing firearms or ammunition, provided they meet State of residency requirements and are not otherwise a prohibited person. As such, they are qualified to be a Trustee of a Gun Trust and in possession of an NFA firearm as long as they are not prohibited and meet the State residency requirements.
Nonimmigrant aliens lawfully admitted to the United States with a visa may purchase or possess a firearm in the United States only if they meet one of the following qualifications:
- 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
- was admitted to the United States for lawful hunting or sporting purposes;
- has received a waiver from the prohibition from the Attorney General of the United States;
- 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;
- is en route to or from another country to which that alien is accredited;
- is an official of a foreign government or a distinguished foreign visitor who has been so designated by the Department of State; or
- is a foreign law enforcement officer of a friendly foreign government entering the United States on official law enforcement business.
In addition, a nonimmigrant alien legally in the United States with or without a nonimmigrant visa may lawfully acquire a firearm only if he/she meets State of residence requirements as required by the Federal government as outlined below. Or in ATF Ruling 2010-6 at: https://www.atf.gov/files/regulations-rulings/rulings/atf-rulings/atf-ruling-2010-6.pdf.
Of the seven qualifications above, only the first three in conjunction with the State residency requirements below would be valid to possess NFA firearms owned by a Gun Trust
A person’s “State of residence” is defined by regulation in 27 CFR 478.11 as “the State in which an individual resides. An individual resides in a State if he or she is present in a State with the intention of making a home in that State.” Ownership of a home or land within a given State is not sufficient, by itself, to establish a State of residence. However, ownership of a home or land within a particular State is not required to establish presence and intent to make a home in that State. Furthermore, temporary travel, such as short-term stays, vacations, or other transient acts in a State are not sufficient to establish a State of residence because the individual demonstrates no intention of making a home in that State.
To ensure compliance with this residency requirement, section 922(t) of the GCA requires licensees to examine a valid “identification document” (as defined in 18 U.S.C. 1028(d) and 27 CFR 478.11) of a firearm transferee. This document must contain the residence address of the transferee so that the licensee may verify the identity of the transferee and discern whether the transferee has the intention of making a home in a particular State.
The term “identification document” is defined by 18 U.S.C. 1028(d)(3) as “a document made or issued by or under the authority of the United States Government, a State, political subdivision of a State . . . which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.” The regulations, 27 CFR 478.11, define the term “identification document” as “[a] document containing the name, residence address, date of birth, and photograph of the holder and which was made or issued by or under the authority of the United States Government, a State, political subdivision of a State . . . which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals.” Identification documents include, but are not limited to, a driver’s license, voter registration, tax records, or vehicle registration. As explained in ATF Ruling 2001-5 (ATFQB 2001-4, 37), a combination of valid government documents may be used to satisfy the GCA’s State residency requirement.
Federal regulations at 27 CFR 478.11 (definition of State of Residence), Example 2, clarify that a U.S. Citizen with homes in two States may, during the period of time the person actually resides in a particular State, purchase a firearm in that State. See also ATF Publication 5300.4 (2005), Question and Answer B12, page 179. Similarly, in ATF Ruling 80-21 (ATFB 1980-4, 25), ATF held that, during the time college students actually reside in a college dormitory or at an off- campus location, they are considered residents of the State where the on-campus or off- campus housing is located.