18 USC 922(g)(5): Prohibited Persons, Visa Waivers, Penalties

Under 18 U.S.C. § 922(g)(5), a non-citizen who is unlawfully present in the United States, or who was admitted on a nonimmigrant visa, generally cannot possess, receive, ship, or transport firearms or ammunition. A conviction carries up to 15 years in federal prison and almost always triggers deportation with a long bar on returning. The statute draws hard lines by immigration status, and a handful of narrow exemptions decide whether a person on a temporary visa can lawfully touch a firearm at all.

Who the Law Prohibits

The statute reaches two groups of non-citizens.

The first is anyone illegally or unlawfully in the United States. The implementing ATF regulation defines that phrase as anyone not in valid immigrant, nonimmigrant, or parole status.¹ That sweeps in people who crossed the border without inspection, overstayed a visa, violated the terms of their admission, or are under a final removal order.²

The second group is anyone admitted on a nonimmigrant visa. Tourists, students, temporary workers, and exchange visitors all fall here. Unless a specific exemption applies, they cannot lawfully possess firearms or ammunition while in the country.³

DACA Recipients Are Prohibited

Deferred Action for Childhood Arrivals protects recipients from removal and grants work authorization, but it does not confer valid immigrant, nonimmigrant, or parole status. A September 2025 USCIS policy memorandum confirmed that DACA recipients fall inside the ATF’s definition of an alien illegally or unlawfully in the United States and cannot possess or receive firearms.⁴ The same memo makes clear that an attempted purchase can itself trigger termination of DACA.

You Do Not Have To Be Holding the Gun

Federal prosecutors regularly charge these cases on a theory of constructive possession: knowledge that a firearm is present combined with the ability to control it. In a shared apartment where a gun sits in a common area, a prohibited resident who knew about it and had access to it can face charges. Mere proximity is not enough by itself, but in shared living situations the line between proximity and control gets thin quickly.

Who Is Not Covered

Lawful permanent residents are outside the statute. Green card holders are in valid immigrant status, so neither prong of § 922(g)(5) applies to them.⁵ They still have to clear the same background checks and follow the same state laws as everyone else.

Refugees and people granted asylum also hold valid status and are not prohibited under this provision. Neither are people lawfully paroled into the country, provided the parole has not expired or been revoked.

Exemptions for Nonimmigrant Visa Holders

Section 922(y)(2) creates four exemptions. A nonimmigrant visa holder who fits one of these can lawfully possess firearms:³

Admitted for lawful hunting or sporting purposes, or holding a valid hunting license or permit from any U.S. state. This is the most commonly used exemption; non-resident hunting licenses are available in every state, though prices vary.
Official representatives of a foreign government accredited to the U.S. government or to an international organization headquartered in the country, or travel to and from a country of accreditation.
Foreign government officials or distinguished visitors designated by the Department of State.
Law enforcement officers from a friendly foreign government entering the United States on official business.

Attorney General Waiver

A nonimmigrant who does not fit an exemption can petition the Attorney General for a waiver. Eligibility requires at least 180 days of continuous residence in the United States before filing, plus a written statement from the person’s embassy or consulate that both authorizes the firearm acquisition and certifies the applicant would not otherwise be prohibited under any other part of § 922(g). Approval requires a finding that the waiver serves the interests of justice and does not jeopardize public safety.⁵

What Counts as a Firearm or Ammunition

Ammunition here is not just loaded cartridges. The federal definition covers cartridge cases, primers, bullets, and propellant powder designed for use in a firearm. Loose rounds and even components can support a charge.

Antique firearms are the main carve-out. A weapon manufactured in or before 1898, a replica that does not accept modern fixed ammunition, or a muzzle-loading black powder weapon that cannot fire fixed ammunition falls outside the federal definition of firearm and outside § 922(g). State law can still restrict antique firearms, so the federal exemption is not a green light everywhere.

Penalties for a Violation

A § 922(g)(5) conviction carries up to 15 years in federal prison.⁶ Sources still listing a 10-year cap predate the 2022 change.

Lying about immigration status or eligibility on ATF Form 4473 is a separate offense under § 922(a)(6), punishable by up to 10 years.⁷ Courts can run the sentences consecutively, so the false-statement count stacks on top of the possession count.

The Armed Career Criminal Act adds a mandatory 15-year minimum for anyone convicted of unlawful possession who has three or more prior convictions for violent felonies or serious drug offenses. There is no lookback limit on the prior offenses, and priors that produced concurrent sentences can still count separately toward the three-strike threshold.

Immigration Consequences

A firearms conviction makes any non-citizen deportable under 8 U.S.C. § 1227.⁸ Immigration judges read that provision broadly, and there is little discretionary relief available. One conviction is enough.

Reentry after removal is generally barred for 10 years, and 20 years after a second removal. If the conviction qualifies as an aggravated felony, the bar is permanent.⁹ A § 922(g) violation with a 15-year statutory maximum can be classified as an aggravated felony for immigration purposes, so many firearm convictions produce a permanent reentry bar. Form I-212 asks USCIS for permission to reapply, but approval is discretionary and rare in firearms cases.¹⁰

A conviction is not required for immigration exposure. A firearm-related arrest can be enough for ICE to open removal proceedings on the underlying unlawful presence or overstay. Immigration judges also give significant weight to firearm allegations when setting bond, so pretrial release is difficult.

How Enforcement Works at the Point of Sale

Licensed dealers must run every buyer through the FBI’s National Instant Criminal Background Check System before completing a sale. NICS screens for non-citizen status and blocks the transaction if the buyer is flagged as unlawfully present or as a nonimmigrant without an applicable exemption.¹¹

Non-citizens who are eligible to buy must supply an alien number or I-94 number on Form 4473. Nonimmigrant visa holders also have to identify which exemption they are claiming and supply supporting proof, such as a valid hunting license. The dealer relays the correct type of alien number to the NICS operator so the check can process.¹²

Private sales carry a different risk profile. Federal law still bars prohibited non-citizens from receiving firearms in any transaction, and § 922(d)(5) makes it a separate federal crime, punishable by up to 15 years, to knowingly transfer a firearm to a person the seller knows or has reason to believe is prohibited.¹³ Most states do not require private sellers to run a background check, but that does not change the underlying prohibition on the buyer.

Where Constitutional Challenges Stand

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen requires the government to justify firearm regulations by reference to the nation’s historical tradition of firearm regulation. That framework has produced new challenges to § 922(g)(5), but the statute has held.

In July 2025 the Seventh Circuit, in United States v. Carbajal-Flores, reversed a district court ruling that had found § 922(g)(5)(A) unconstitutional as applied. The appellate court held that the Second Amendment does not extend to people unlawfully present, citing a historical tradition of restricting arms to those who have established allegiance to the sovereign.¹⁴ The Tenth Circuit reached a compatible result in United States v. Huitron-Guizar,¹⁵ and the Fifth Circuit did so in United States v. Flores, holding that a pending Temporary Protected Status application did not cure an illegal entry for purposes of the statute.¹⁶ As of mid-2025, no federal circuit has struck down § 922(g)(5).