State of Residence Revised by ATF

Today, the ATF revised it’s definition of State of Residence and residency requirements.

The Gun Control Act (GCA) generally prohibits any person from transferring firearms to any unlicensed person who they know or have reasonable cause to believe does not reside in the State in which the transferor resides. See 18 U.S.C. ยง 922(a)(5).

27 C.F.R. 478.11 defines the term “State of residence” differently for U.S. citizens and aliens. A U.S. citizen’s State of residence is the State in which he or she is present with the intention of making a home; while an alien is considered a resident of a State if he or she has resided in that State for a period of at least 90 days prior to the date of transfer with the intention of making a home.

Federal firearms licensees (FFLs) were previously required to obtain documentation establishing that an alien legally in the United States has resided in the State continuously for at least 90 days prior to the transfer of the firearm. See Question 20c of the Firearms Transaction Record, ATF Form 4473.

The DOJ recently concluded that, as a matter of law, applying a more stringent State residency requirement for aliens legally present in the U.S. than for U.S. citizens is incompatible with the language of the GCA. As a result, ATF will be revising the regulations in 27 C.F.R. Part 478 to conform to the DOJ’s conclusions by removing the separate 90-day residency requirement for aliens. Once the regulations have been revised, both U.S. citizens and aliens legally present in the U.S. will be subject to the same requirements for State residency and proof of residency. ATF is in the process of amending its forms to conform to the statute as well.

Until process is complete, the current regulations have the force of law and for the time being, FFLs should continue to use the current forms and abide by the current regulations.

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