Law Office of Marc J. Smith, LLC
Employment Law and Litigation Counsel

Selective Service Blog

If you are a male between 18 and 25 years of age, the Military Selective Service Act requires you to register with the Selective Service System — the Agency responsible for maintaining information on those potentially eligible for military service in the event the United States government deems it necessary to implement a military draft.  Most male U.S. citizens and male immigrant non-citizens between the ages of 18 and 25 are required by law to have registered within 30 days of their 18th birthday.  If you are a male between 18 and 25 years of age, you may register on-line by clicking here.  You can check to see if you are properly registered here.

Perhaps surprisingly, many non-citizens are required to register, including illegal aliens, legal permanent residents, and refugees.  Noncitizens who are notrequired to register with Selective Service include men who are in the U.S. on student or visitor visas, and men who are part of a diplomatic or trade mission and their families.  Generally, if a male non-citizen takes up residency in the U.S. before his 26th birthday, he must register with Selective Service.  The Selective Service System has published a useful chart detailing who must register.

Fortunately, the U.S. government has not in recent history actively pursued prosecution of individuals who have failed to register with the Selective Service System.  However, there are significant other penalties that are imposed upon individuals who were required to register, but fail to do so before their 26th birthday.  For example, eligible males who have failed to register may not be able to obtain federal student loans or grants.  Failing to register when required to do so also results in a permanent bar for federal employment unless the individual can demonstrate to the Office of Personnel Management, by a preponderance of the evidence, that their failure to register was not “knowing and willful.”  You have two opportunities to do this — an “initial determination” (which almost always results in an adverse decision) and an appeal to the Director of the OPM.  It is therefore vital to ensure that your case is thoroughly prepared and presented to OPM in the proper form.

OPM Issues Favorable Determinations In Failure to Register Cases

During the course of the past four months, the U.S. Office of Personnel Management (OPM) has issued favorable determinations in three separate Selective Service cases involving individuals who failed to register with the Selective Service. One of these cases involved a very typical fact pattern — our client was born in a foreign nation and moved to the United States to attend college when he was in his 20’s.  Our client was initially on a non-immigrant F-1 Visa which expired prior to his 26th birthday — at which time he was required to register, but did not.  As in many other cases, our client did not learn about the Selective Service registration requirement during college, work or from any other source until well after his 26th birthday.

The other two cases involved clients who were born in the U.S. and were U.S. citizens.  One client moved abroad with his family when he was six years old and did not return to the United States until after his 26th birthday.  The other client, whose parents were both in the U.S. military, dropped out of high school and moved out of his family home at an early age and simply never discovered the existence of the Selective Service and its registration requirement until he was in the process of applying for federal employment and was rejected because he had failed to register prior to his 26th birthday.

In all three cases, we submitted strong supporting evidence demonstrating that our clients were simply unaware of the existence of the Selective Service and its registration requirement.   In one case, OPM agreed with our position at the first-level review and, with regard to the other two cases, OPM agreed on requests for reconsideration that our clients’ failure to register with the Selective Service was not knowing and willful.  All three clients have now been cleared for federal employment.

Marc Smith