U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Congressional research reportJan 26, 2006

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U.S. Visitor and Immigrant Status Indicator

Technology (US-VISIT) Program

Lisa M. Seghetti

Section Research Manager

(name redacted)

January 26, 2006

Congressional Research Service

7-....

www.crs.gov

RL32234

CRS Report for Congress

Prepared for Members and Committees of Congress

U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Summary

Congress first mandated that the former Immigration and Naturalization Service (INS) implement

an automated entry and exit data system that would track the arrival and departure of every alien

in §110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).

The objective was, in part, to develop a mechanism that would be able to track nonimmigrants

who overstayed their visas as part of a broader emphasis on immigration control. Following the

September 11, 2001 terrorist attacks there was a shift in priority for implementing the system.

While the tracking of nonimmigrants who overstayed their visas remained an important goal,

border security has become the paramount concern.

Legislation enacted from 1997 to 2000 changed the scope and delayed implementation of §110 of

IIRIRA. For example, the INS Data Management Improvement Act rewrote §110 to require the

development of a system using data currently collected with no new documentary requirements.

The Visa Waiver Permanent Program Act of 2000 required the development and implementation

of a “fully automated entry and exit control system” covering all aliens who enter the United

States under the Visa Waiver Program (VWP) at airports and seaports.

Following the terrorist attacks, several provisions in the USA PATRIOT Act and the Border

Security Act, however, required the immediate implementation of an automated entry and exit

data system and called for enhancements in its development. More recently, the Intelligence

Reform and Terrorism Prevention Act of 2004 implements the 9/11 Commission

recommendations, including those recommendations that pertain to the integrated entry and exit

data system and biometric identifiers in travel documents.

Tracking the entry and exit of foreign nationals at U.S. ports of entry is not a small undertaking.

In FY2005, there were over 428 million inspections conducted at U.S. ports of entry, with the

majority of the inspections conducted on foreign nationals. Implementing the requirements of an

automated entry and exit data system, however, is not without controversy. Some observers fear

that the full implementation of US-VISIT will cause massive delays at U.S. ports of entry,

primarily at land ports of entry. Some believe that the cost of implementing such a system would

outweigh the benefits. Others express concern about the inadequacy of current infrastructure, and

the lack of consensus with respect to the type of biometric technology that should be used in

travel documents. Many continue to question the purpose of such a system. Some argue that

resources should be directed at immigration interior enforcement, rather than on an expensive

system whose capability is not fully known.

The automated entry and exit data system was administratively renamed the United States Visitor

and Immigrant Status Indicator Technology (US-VISIT). It is being implemented in phases over

the next several years. This report will be updated to reflect new developments.

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Contents

Introduction ................................................................................................................................1

Volume of Entries .................................................................................................................1

U.S. Ports..............................................................................................................................2

The Arrival/Departure Record, Form I-94..............................................................................2

Exit Control ..........................................................................................................................3

Statutory History and Other Related Laws...................................................................................3

Mandate to Create an Automated Entry and Exit Data System ...............................................4

Significant Modifications in the Automated Entry and Exit Data System ...............................4

Related Provisions ................................................................................................................5

Enhancements to the Automated Entry and Exit Data System ................................................5

Related Requirements ...........................................................................................................6

Machine-Readable Travel Documents .............................................................................6

Electronic Passenger Manifest.........................................................................................7

Requirement for Biometric Identifiers ...................................................................................7

Technology Standards .....................................................................................................7

Status of US-VISIT .....................................................................................................................8

Implementation Phases..........................................................................................................8

Current Operations.............................................................................................................. 10

Electronic Manifest Requirements....................................................................................... 11

Visa Waiver Program .......................................................................................................... 12

The 9/11 Commission Report .................................................................................................... 12

Legislation in the 108th Congress............................................................................................... 13

The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458).................... 13

Selected Issues .......................................................................................................................... 15

Visa Waiver Program .................................................................................................... 15

New Documentary and Data Collection Requirements................................................... 16

Possible Documentary Exemptions and Exceptions ...................................................... 17

US VISIT and Canadian and Mexican Nationals .......................................................... 18

Implementation Issues......................................................................................................... 20

Infrastructure and Facility Needs at the Border .............................................................. 20

Interior Enforcement ..................................................................................................... 21

Privacy Issues ............................................................................................................... 22

Information Technology Interoperability ....................................................................... 22

Databases...................................................................................................................... 23

Training Needs and Resources ...................................................................................... 23

Facilitation of Travel and Commerce............................................................................. 24

Feasibility of Implementation and Policy Questions ...................................................... 24

Tables

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Appendixes

Appendix A. Summary of Authority for Biometric Identifiers in Travel Documents................... 25

Appendix B. Electronic Manifest Requirements ........................................................................ 27

Appendix C. Visa Holders That Are Exempt from the Fingerprinting and Photographing

Requirements Under DHS Regulation 8 C.F.R. §235.1 ........................................................... 28

Appendix D. Comparison of Current Law Deadlines and the Administration’s

Implementation ...................................................................................................................... 29

Appendix E. Comparison of the Mexican Laser Visa Requirements with Canadian

Documentary Requirements ................................................................................................... 31

Contacts

Author Contact Information ...................................................................................................... 33

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Introduction

Congress first mandated that the former Immigration and Naturalization Service (INS) implement

an automated entry and exit data system that would track the arrival and departure of every alien

in §110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA;

P.L. 104-208).1 The objective for an automated entry and exit data system was, in part, to develop

a mechanism that would be able to track nonimmigrants who overstayed their visas as part of a

broader emphasis on immigration control. Following the September 11, 2001 terrorist attacks

there was a marked shift in priority for implementing an automated entry and exit data system.

While the tracking of nonimmigrants who overstayed their visas remained an important goal of

the system, border security has become the paramount concern with respect to implementing the

system.

This report provides a summary of the statutory history of the automated entry and exit data

system, which was renamed the U.S. Visitor and Immigrant Status Indicator Technology (USVISIT) Program by the Bush Administration. 2 It also discusses other laws that affect the

implementation of the system and provides an analysis of the documentary requirements under

current law. The report also discusses efforts to implement the program and selected issues

associated with its development and implementation. This report will not discuss two related

programs—National Security Entry-Exit Registration System (NSEERS) program3 and the

Student and Exchange Visitor Information System (SEVIS) program,4—which reportedly will be

incorporated into the automated entry and exit data system.

Volume of Entries

Tracking the entry and exit of most foreign nationals at U.S. ports of entry is not a small

undertaking. In FY2005, there were over 428 million inspections conducted at U.S. ports of entry,

with the majority of the inspections conducted on foreign nationals. Most observers contend that

implementing an automated entry and exit data system at the nation’s ports of entry poses a

variety of logistical problems, as discussed below.

1

§110 of IIRIRA is located in Division C of the Omnibus Consolidated Appropriations Act of FY1997.

An October 2003 Department of Homeland Security Press Release refers to the program as the United States Visitor

and Immigrant Status Indicator Technology. In May 2003, Asa Hutchinson, Under Secretary of the Border and

Transportation Security Division in the Department of Homeland Security had announced the Administration’s intent

to rename the automated entry and exit data system the U.S. Visitor and Immigrant Status Indication Technology

Program or US-VISIT. See U.S. Department of State, “Ridge Announces New U.S. Entry-Exit System,” press release,

April 29, 2003, at http://usinfo.state.gov/xarchives/display.html?p=washfileenglish&y=2003&m=April&x=20030429171934rellufj0.3930475&t=xarchives/xarchitem.html. The terms US-VISIT

program and automated entry and exit data system will be used interchangeably throughout this report.

3

For additional information on NSEERS, see CRS Report RL31570, Immigration: Alien Registration, by (name re

dacted).

4

For additional information on SEVIS, see CRS Report RL32188, Monitoring Foreign Students in the United States:

The Student and Exchange Visitor Information System (SEVIS), by (name redacted).

2

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U.S. Ports

There are 280 air, land, and sea ports of entry in the United States. The majority of travelers enter

the United States at a land port of entry. Land borders are unique because traffic at these crossings

could consist in varying combinations of cars, pedestrians, bicycles, trucks, buses, and rail.

Moreover, land ports of entry pose various challenges to the creation of an automated alien

tracking system due to their location, infrastructure, geography and traffic volume, which can

vary extensively among ports of entry.

Air and sea ports are faced with some of the same challenges present at land ports. However, the

impact is not as intense as it is at land ports of entry. While land ports of entry have heavy traffic

volume that could make fully implementing such a program difficult, some air port officials and

observers express concern that implementing the system could also disrupt the flow of traffic at

air ports of entry. Airports have tried to delay the implementation of an automated entry and exit

data system (and reportedly they were effective in pushing back the implementation date of the

Administration’s first increment of the program to January 5, 2004), primarily due to concerns of

the potential slow down in the flow of traffic at the nation’s air ports of entry. In addition to

possible congestion at the nation’s air ports of entry, some fear that the exit process may not be

fully developed due to inadequate space.

Sea ports also pose challenges to the implementation of an automated entry and exit data system.

Similar to other ports, sea ports do not have the necessary infrastructure. Moreover, some sea

ports of entry are not staffed full-time with immigration or customs inspectors.

The Arrival/Departure Record, Form I-94

For many years, the former INS had recorded nonimmigrant arrivals at airports on Form I-94, the

Arrival/Departure Record, which is a paper-based system that contains information that is later

keyed into the Nonimmigrant Information System (NIIS).5

Form I-94 is a perforated numbered card and is composed of an arrival portion collected upon

entry and a departure portion that is returned to the alien passenger. Upon departure, the reverseside of the departure portion is completed by the departure carrier and submitted to the

Department of Homeland Security (DHS) at the port of departure. Under current regulations, the

outbound carrier has 48 hours to submit the departure Form I-94 to DHS.

Due to the cumbersome nature of this process and its unreliability, Congress required that

commercial carriers transporting passengers to or from the U.S. deliver arrival and departure

manifest information electronically to DHS no later than January 1, 2003. These reports are to be

integrated with data systems maintained by the Department of Justice (DOJ) and the Department

of State (DOS) at ports of entry or at consular offices. 6

5

NIIS provides limited data on the arrivals and departures of non-immigrants admitted for short visits such as those

individuals traveling for pleasure or business. NIIS interfaces with several other immigration databases.

6

8 U.S.C. 1365a(b).

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Exit Control

The I-94 Arrival/Departure Record is routinely collected from applicable foreign nationals at air

and sea ports. Reportedly, it is rarely collected from applicable foreign nationals exiting at land

ports. According to many, implementing the exit process of an automated entry and exit data

system at most ports of entry will entail expanding the infrastructure, which may be challenging

at some ports (see discussion in “Selected Issues” section). The Administration is currently in the

third phase of implementation of the system, and reportedly the exit process is operable at

selected ports of entry.7 The full implementation of the exit process will be one of the challenges

to the successful development of an automated entry and exit data system (see discussion in

Implementation of US-VISIT).

Statutory History and Other Related Laws

There are five principal laws that extend and refine §110 of IIRIRA to require the development

and implementation of an integrated entry and exit data system:

•

The INS Data Management Improvement Act (DMIA; P.L. 106-215);

•

The Visa Waiver Permanent Program Act (VWPPA; P.L. 106-396);

•

The Uniting and Strengthening America by Providing Appropriate Tools

Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act; P.L. 10756);

•

The Enhanced Border Security and Visa Entry Reform Act (Border Security Act;

P.L. 107-173); and

•

The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458).

Following the terrorist attacks, several provisions in the USA PATRIOT Act, the Border Security

Act and the Intelligence Reform and Terrorism Prevention Act of 2004, however, required the

immediate implementation of an automated entry and exit data system and called for

enhancements in its development. The provisions in these Acts have several common elements:

•

encouraged a more expeditious development of the automated entry and exit data

system;

•

required that biometric identifiers be used in all visas and other travel documents;

and

•

required that the system be interoperable with other law enforcement and

national security databases.

Accordingly, implementation of the relevant provisions in these six laws together are intended to

result in an integrated, automated entry and exit data system that now includes the use of

biometric identifiers.

7

According to the Administration, the exit component is at 14 air and sea ports.

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Mandate to Create an Automated Entry and Exit Data System

Section 110 of IIRIRA required the Attorney General to develop an automated data system that

would record the entry and exit of every alien arriving in and departing from the United States by

September 30, 1998.8 Under this initial authorization, the Attorney General was required to

develop an automated entry and exit control system not later than two years after the enactment of

IIRIRA in 1996. The automated entry and exit data system would have created a record for every

alien arriving in the U.S. and paired it with the record for the alien departing the United States.

The automated entry and exit data system was also supposed to enable the Attorney General to

identify, through online searching procedures, lawfully admitted nonimmigrants who remained in

the United States beyond the period authorized by the Attorney General.

The act also mandated that the Attorney General report to Congress annually after the

development of an automated entry and exit data system on the following:

•

the number of recorded departures by country of nationality;

•

the number of recorded departures matching recorded arrivals of nonimmigrants

by country of nationality; and

•

the number of aliens who arrived as nonimmigrants or visitors under the visa

waiver program and have overstayed their visas.

Congress amended §110 of IIRIRA in P.L. 105-259 to require the implementation of the system

before October 15, 1998. Congress further amended §110 in the FY1999 Omnibus Consolidated

and Emergency Supplemental Appropriations Act (P.L. 105-277) by extending the deadline for

the implementation of the automated entry and exit data system to March 30, 2001, for land

border ports of entry and sea ports of entry (but otherwise leaving the October 15, 1998 deadline

for air ports of entry); and prohibiting significant disruption of trade, tourism or other legitimate

cross-border traffic once the automated entry and exit data system was in place. 9

Significant Modifications in the Automated Entry and Exit Data

System

In June of 2000, Congress substantially amended §110 of IIRIRA in the Immigration and

Naturalization Service Data Management Improvement Act of 2000. This act renamed the

automated entry and exit data system the “Integrated Entry and Exit Data System” and included

provisions that (1) rewrote IIRIRA §110 to require the development of a system using data

currently collected with no new documentary requirements; (2) set staggered deadlines for the

implementation of the system at air, sea, and land border ports of entry; (3) established a task

force to evaluate the implementation of the system and other measures to improve legitimate

cross-border traffic; and (4) expressed a sense of Congress that federal departments charged with

border management should consult with foreign governments to improve cooperation.

8

9

P.L. 104-208, Div. C, Title I, §110 (formally codified at 8 U.S.C. §1221 note) (currently codified at 8 U.S.C. §1365a).

P.L. 105-277, Tit. I (Dept. of Justice), §116, 112 Stat. 2681-68.

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Related Provisions

While statutorily distinct from §110, the Visa Waiver Permanent Program Act of 2000 also

mandated the development and implementation of a “fully automated entry and exit control

system” covering all aliens who enter the United States under the Visa Waiver Program (VWP) at

airports and seaports.10 Under the VWP, nationals from certain countries are allowed to enter the

United States as temporary visitors (nonimmigrants) for business or pleasure for up to 90 days

without first obtaining a visa from a U.S. consulate abroad.

The Visa Waiver Permanent Program Act included many provisions designed to strengthen

documentary and reporting requirements. Most notably, the VWPPA included a provision that

mandated that by October 1, 2007, all entrants under the VWP must have machine-readable

passports.11 It has been stipulated by DHS that the VWP arrival/departure information has

effectively been incorporated into the broader entry-exit system component mandated by the

DMIA. 12

In late 2001 and 2002, Congress passed two additional laws affecting the development of the

automated entry and exit data system, particularly with respect to the use of use biometric

identifiers: the USA PATRIOT Act (P.L. 107-56) and the Border Security Act (P.L. 107-173).

Enhancements to the Automated Entry and Exit Data System13

In the USA PATRIOT Act, Congress required the Attorney General and the Secretary of State to

jointly develop and certify a technology standard with the capacity to verify the identity of

persons applying for a U.S. visa or such persons seeking to enter the United States pursuant to a

visa.14 The USA PATRIOT Act also encouraged the full implementation of the integrated,

automated entry and exit data system “with all deliberate speed and as expeditiously as

practicable” and called for the immediate establishment of the Integrated Entry and Exit Data

System Task Force, as described in §3 of the DMIA. 15 The act also directed the Attorney General

and Secretary of State to focus on the utilization of biometric technology and tamper resistant

documents in the development of the integrated, automated entry and exit data system.

The Border Security Act further advanced requirements set forth in IIRIRA by requiring the

Attorney General to implement an integrated entry and exit data system. In developing the entry

and exit data system, the act required: (1) the Attorney General and the Secretary of State to

10

P.L. 106-396, §205 (codified at 8 U.S.C. §1187).

The USA Patriot Act and the Border Security Act added and modified various requirements in the Visa Waiver

Permanent Program Act. For a more thorough discussion on the Visa Waiver Program, as amended, see CRS Report

RL32221, Visa Waiver Program, by (name redacted).

12

Carrier Arrival and Departure Electronic Manifest Requirements, 68 Federal Register 30280, 30359, May 27, 2003;

see also 69 Federal Register 468, 469, January 5, 2004.

13

For additional information on immigration-related border security provisions in the USA PATRIOT Act and the

Border Security Act, see CRS Report RL31727, Border Security: Immigration Issues in the 108th Congress, by Lisa M.

Seghetti.

14

According to the act, the Attorney General and the Secretary of State were to develop and certify a technology

standard through the National Institute of Standards and Technology (NIST) and in consultation with the Secretary of

the Treasury, federal law enforcement and intelligence agencies, and the Congress.

15

Ibid., at §414.

11

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

implement a technology standard in compliance with the USA PATRIOT Act16 at U.S. ports of

entry and at consular posts abroad; (2) the establishment of a database containing the arrival and

departure data from machine-readable visas, passports and other alien travel documents; (3) the

integration of all INS databases and data systems that process or contain information on aliens;

and (4) the development and implementation of an interoperable electronic data system that

provides real time access to federal law enforcement agencies and the intelligence community

databases in order to obtain relevant information to make visa and admissibility determinations. 17

More recently, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004

(P.L. 108-458). See discussion below, in the “Legislation in the 108th Congress” section.

Related Requirements

Machine-Readable Travel Documents

The Border Security Act required the Attorney General and the Secretary of State to issue

machine-readable, tamper-resistant visas and travel documents that will utilize biometric

identifiers by October 26, 2004. The act required all U.S. ports of entry to have equipment and

software installed by October 26, 2004 that will allow biometric comparison and the

authentication of all visas and other travel and entry documents issued to aliens. The act also

required by the same date that all VWP countries have a program in place to issue tamperresistant, machine-readable, biometric passports that comply with the biometric and document

identifying standards established by the International Civil Aviation Organization (ICAO).18 P.L.

108-299, however, extended the deadline to October 26, 2005. In essence, on or after October 26,

2005, any alien applying for admission under the VWP must present a passport that is tamperresistant, machine-readable, and uses ICAO-compliant biometric identifiers (unless the unexpired

passport was issued prior to that date). With respect to Laser Visas (previously referred to as

Mexican Border Crossing Cards), the act extended until September 30, 2002, the deadline for

such visas to contain a biometric identifier that matches the biometric characteristic of the card

holder.19

As previously mentioned, the Border Security Act required the automated entry and exit data

system be interoperable with other federal law enforcement agencies and the intelligence

community data systems. The act required the interoperable data system to have the capacity to

compensate for disparate name formats among the various databases and be able to search names

that are linguistically sensitive. It required linguistically sensitive algorithms to be implemented

for at least four languages designated as high priorities by the Secretary of State.20 The act

16

Section 403(c) of the USA PATRIOT Act requires the development and certification of a technology standard that

can be used to verify the identity of persons (1) applying for a U.S. visa or (2) seeking entry into the United States

pursuant to a visa.

17

The interoperable data system is also known as Chimera.

18

In May 2003, ICAO finalized standards for biometric identifiers, which asserted that facial recognition is the globally

interoperable biometric for machine readable documents with respect to identifying a person.

19

Border Crossing Cards are issued to Mexican nationals under specified conditions, see discussion below.

20

The act also required that an additional language algorithm be implemented annually for three years following the

implementation of the highest priority languages.

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required the President to establish a commission by October 26, 2002, to oversee the development

and progress of the interoperable data system.

Electronic Passenger Manifest

The Border Security Act required airline carriers to provide the Attorney General with electronic

passenger manifests before arriving in or departing from the United States and repealed a

provision that required airport inspections to be completed within 45 minutes of arrival. 21

Requirement for Biometric Identifiers22

Congress first mandated biometrics in travel documents in IIRIRA by requiring Border Crossing

Cards (BCCs, now referred to as Laser Visas) for Mexican nationals to have a biometric identifier

that is machine readable. The act required that the biometric identifier match the biometric

characteristic of the card holder in order for the alien to enter the United States. In addition to

IIRIRA, the USA PATRIOT Act and the Border Security Act both required the use of biometrics

in travel documents.

Technology Standards

The USA PATRIOT Act required the Attorney General and the Secretary of State, through the

National Institute of Standards and Technology (NIST), to develop and certify a technology

standard, such as fingerprints and facial photographs, that can be used to verify the identity of

persons seeking a visa to enter the United States. With respect to developing and certifying a

technology standard, the act also required the Attorney General and the Secretary of State to

consult with the Secretary of the Treasury and other relevant federal law enforcement and

intelligence agencies. The act required the technology standard to be a “cross-agency, crossplatform electronic system” that is fully integrated with other federal law enforcement and

intelligence agencies’ databases. It also required the technology standard to be accessible to all

consular officers who are responsible for issuing visas, all federal inspection agents at U.S. ports

of entry, and all law enforcement and intelligence officers who are determined by regulations to

be responsible for investigating or identifying aliens admitted to the United States through a visa.

The Border Security Act, in advancing requirements set forth in IIRIRA, authorized the funding

and implementation of a technology standard (e.g., biometrics). The act required the Attorney

General and the Secretary of State to issue machine-readable, tamper-resistant visas and travel

documents that have biometric identifiers by October 26, 2004. On January 5, 2004, DHS

promulgated an interim final rule that amended portions of 8 C.F.R. §§214.1, 215.8, and 235.1 to

21

The Aviation and Transportation Security Act (P.L. 107-71) also required the electronic transmission of passenger

manifests prior to an aircraft or vessel’s arrival at a U.S. port of entry.

22

The US-VISIT program incorporates the use of biometric technology in travel documents to track foreign visitors

moving through the nation’s air, land, and sea points of entry. A biometric identifier is a physical characteristic or other

attribute unique to an individual (such as a fingerprint, a facial photograph or an iris scan) that can be collected, stored,

and used to verify the claimed identity of a person. To verify identity, a similar physical characteristic or attribute is

taken from the person who presents himself and it is compared against the previously collected identifier.

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include language for the biometric requirements of US-VISIT (see Appendix A for a discussion

on the authority and implementation of the biometric identifier requirements). 23

The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) contains a

provision that requires every person traveling to the United States to possess documentation. The

act, however, does not explicitly require that the travel documents contain biometrics. The act

requires the Secretary of Homeland Security, in consultation with the Secretary of State, to

develop and implement a plan that requires persons traveling to the United States, including U.S.

citizens and other persons for whom documentation requirements have previously been waived, 24

to have a passport or other combination of documents by January 1, 2008.

Status of US-VISIT

The US-VISIT program was established to respond to several congressional mandates that

required DHS to create an integrated, automated entry and exit data system that (1) uses available

data to produce reports on alien arrivals and departures; (2) deploys equipment at all ports of

entry to allow for the verification of aliens’ identities and the authentication of their travel

documents through the comparison of biometric identifiers; and (3) records alien arrival and

departure information from biometrically authenticated documents.25 The program is reportedly

going to be implemented in phases over the next several years in compliance with congressional

mandates and include resources and services from a number of federal, state, local, and foreign

entities to meet these requirements. 26

Implementation Phases

The Administration announced plans to implement the program in four increments, with the first

three increments constituting a temporary system. While details are not available, the US-VISIT

Fact Sheet states the first three increments will include the interfacing, enhancement and

deployment (at air, sea and land ports of entry) of existing system capabilities, which is in line

with a Government Accountability Office (GAO) report. According to a GAO report, “DHS has

preliminary plans showing that it intends to acquire and deploy a system that has functional and

performance capabilities that satisfy the general scope of capabilities required under various laws

... [to include] the capability to (1) collect and match alien arrival and departure data

electronically; (2) be accessible to the border management community ...; and (3) support

machine readable, tamper-resistant documents with biometric identifiers at ports of entry.”27 GAO

23

The Border Security Act also requires the installation of biometric identifier readers and scanners at all ports of entry

by October 26, 2004. It requires that the biometric data readers and scanners be accurate according to domestic and

international standards and that they be able to authenticate documents.

24

Under §212(d)(4)(B) of the INA.

25

See generally, 8 U.S.C. §§1187, 1365a and note, 1379, 1731-31.

26

DHS currently reports the following entities to be key participants in the implementation of US-VISIT: The

Departments of State, Transportation, Justice, and Commerce, the General Services Administration, the CIA, other

countries, state and local law enforcement and within the DHS—the Bureau of Immigration and Customs Enforcement,

the Science and Technology Directorate, the Bureau of Customs and Border Protection, the Transportation and Security

Administration, the U.S. Coast Guard, the Federal Law Enforcement Training Center, the Citizenship and Immigration

Service, and the Data Management Improvement Act Taskforce.

27

GAO Report GAO-03-563, “Information Technology: Homeland Security Needs to Improve Entry Exit System

(continued...)

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observed, however, that the initial plan lacks sufficient information with respect to “... what

specific capabilities and benefits [that] will be delivered, by when, and at what cost ....”28

On January 5, 2004, DHS implemented the first phase of US-VISIT by publishing an Interim

Final Rule in the Federal Register authorizing DHS to require certain aliens to provide

fingerprints, photographs, or other biometric identifiers upon arrival in or departure from the

United States at air and sea ports of entry. 29 The January 5 Interim Final Rule also authorized the

Secretary of DHS to establish exit pilot programs at up to 15 air or sea ports of entry, to be

identified by Notice in the Federal Register. A separate January 5, 2004, Federal Register Notice

identified 115 airports and 14 sea ports of entry that would be implementing US-VISIT entry

procedures, and two locations—Baltimore/Washington International Airport and Miami, Florida

sea port—that would be implementing exit pilot programs. 30 On August 3, 2004, DHS announced

its plans to increase the exit pilot programs to 12 additional air ports and 1 additional sea port,

expanding the US-VISIT exit program to its full authorization of 15 air or sea ports.31 A Notice

issued on August 20, 2004, added six new ports of entry and eliminated two ports that were listed

in the January 5, 2004, Notice, for ports processing arrivals, and exchanged two airports that

were inadvertently included in the August 3, 2004, Notice for two others.32

On August 31, 2004, DHS implemented the second increment of US-VISIT by publishing an

Interim Final Rule authorizing DHS to require certain aliens to provide fingerprints, photographs,

or other biometric identifiers upon arrival in the United States at the 50 most trafficked land ports

of entry.33 This Interim Rule also amended 8 C.F.R. §215.8(a)(1) to allow DHS to establish exit

pilot programs at land border ports of entry.34 DHS staggered the implementation of US-VISIT at

the land ports of entry to test the system and identify areas where the process for collection of

biometric information may be improved. 35 A November 9, 2004, Federal Register Notice listed

(...continued)

Expenditure Planning,” June 2003.

28

Ibid.

29

Interim Final Rule, Implementation of the United States Visitor and Immigrant Status Indicator Technology Program

(“US-VISIT”); Biometric Requirements, 69 Federal Register 468 (January 5, 2004).

30

Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United States Visitor and Immigrant Status Indicator

Technology System, 69 Federal Register 482, (January 5, 2004).

31

Notice to Aliens Included in the United States Visitor and Immigrant Status Indicator Technology System (USVISIT), 69 Federal Register 46556 (August 3, 2004). The airports added were: Newark International; O’Hare

International; William B. Hartsfield International; Philadelphia International; Dallas/Fort Worth International; Detroit

Metropolitan Wayne County; Agana International Airport, Guam; McCarren International Airport, Las Vegas; Luis

Munoz Marin International in San Juan, Puerto Rico; Phoenix Sky Harbor International; San Francisco International;

and Denver International. The seaport added was Los Angeles, California (including San Pedro and Long Beach,

California).

32

Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United States Visitor and Immigrant Status Indicator

Technology System (US-VISIT), 69 Federal Register 51695 (August 20, 2004) (adding: Albany International Airport,

New York; St. Petersburg/Clearwater International Airport, Florida; Port Everglades seaport, Florida; Andrews Air

Force Base, Maryland; New York City seaport, New York; and Port Canaveral, Terminal 10, Florida); (eliminating

Alfred Whitted Airport in St. Petersburg, Florida and the seaport in Jacksonville, Florida); and (exchanging Agana

International Airport, Guam, and McCarren International Airport, Las Vegas, for Seattle/Tacoma International Airport

and Ft. Lauderdale/Hollywood Airport, Florida).

33

Interim Final Rule, Authority to Collect Biometric Data From Additional Travelers and Expansion to the 50 Most

Highly Trafficked Land Border Ports of Entry, 69 Federal Register 53318 (August 31, 2004).

34

Originally, the provision only allowed exit pilot programs to be established at the 15 air and sea ports.

35

69 Federal Register 53318, 53321.

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the 50 most trafficked land ports of entry and provided estimated staggered implementation dates

starting on November 15, 2004, and ending on December 27, 2004.36 As a further enhancement to

the second stage of implementation, DHS published a Federal Register Notice on August 4, 2005,

stating that it was intending to test exit and entry control through the use of passive radio

frequency identification (RFID) technology at five U.S. land border locations. 37

DHS implemented the third increment of US-VISIT on September 14, 2005, with the

announcement that it was applying entry procedures at all other land border ports of entry by

December 31, 2005 (for a total of 154 land ports of entry).38 DHS will announce, through a

separate Notice in the Federal Register, the biometric data collection program for processing

aliens upon departure from the United States at a limited number of sites.

Current Operations

Under the US-VISIT program, the Secretary of Homeland Security or his delegate may require

aliens to provide fingerprints, photographs or other biometric identifiers upon arrival in or

departure from the United States. Initially, DHS plans to take a digital photograph and two

fingerprints from each nonimmigrant alien who presents a visa at designated ports of entry.39

DHS reportedly chose to collect two fingerprints and a photograph of the alien’s face, in part,

because they are currently less intrusive than other forms of biometric collections and because of

the effectiveness of such techniques. Moreover, NIST, in consultation with DOJ and DOS, has

determined that two fingerprints and facial photographs are sufficient forms of biometrics for the

purpose of the US-VISIT program. DHS has commented, however, that it will soon begin to

collect 10 flat fingerprints.

Upon arrival at a designated port of entry, inspectors will scan two fingerprints of the foreign

national with an inkless device and will take a digital photograph of the person. Initially, the

biometric information collected will be entered into an existing system called Automated

Biometric Fingerprint Identification System (IDENT).40 The alien’s fingerprint and photographs

are compared against the biometric information already stored in IDENT to determine whether

there is any information that would indicate the alien is inadmissible. For nonimmigrants subject

to US-VISIT requirements entering the country through a land port of entry, this process is

conducted in secondary inspection. 41

36

Notice to Aliens Included in the United States Visitor and Immigrant Status Indicator Technology System (USVISIT), 69 Federal Register 64964 (November 9, 2004).

37

Notice on Automatic Identification of Certain Nonimmigrants Exiting the United States at Select Land Border Portsof-Entry, 70 Federal Register 44934 (August 4, 2005). DHS will begin issuing RFID embedded Forms I-94 or Forms I94W on or around August 4, 2005, at the following land border ports-of-entry crossing locations: Pacific Highway,

Washington; Peace Arch, Washington; Alexandria Bay, New York; Nogales East, Arizona; Mariposa-Nogales West,

Arizona.

38

Notice to Aliens Included in the United States Visitor and Immigrant Status Indicator Technology System (USVISIT), 70 Federal Register 54398 (September 14, 2005).

39

U.S. consular officers overseas also enroll foreign nationals in US-VISIT at the time of issuance of a new visa.

40

IDENT was piloted in 1994 and has been used by border patrol agents (CBP) and ICE agents to more positively

identify aliens that are apprehended along the border and in the interior of the country. Immigration inspectors use

IDENT during primary inspections and as a part of the US—VISIT program to check the admissibility of foreign

nationals seeking entry to the United States.

41

Reportedly, DHS has a pilot program in place at several land ports of entry. The pilot program tests radio frequency

identification (RFID) technology to record the entries of selected foreign nationals who are issued a Form I-94. See

(continued...)

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For departures at designated air and sea ports, the foreign national traveler will go to a work

station or kiosk to scan his travel documents, have his photograph compared, and provide his

fingerprints on the same type of device used at entry. The departure information that a traveler

provides will be verified and matched against any available information that he or she provided

upon inspection and that was previously stored in the systems that comprise US-VISIT.

Generally, all the information collected will be used to (1) identify persons who have overstayed

their authorized periods of admission; (2) compile the overstay reports required by DMIA; and,

(3) help DOS and DHS make determinations as to whether the person is eligible for future visas,

admission, or other discretionary immigration benefits.

Although the biometric requirements initially only apply to nonimmigrant visa-holders who travel

through designated air and sea ports, DHS anticipates expanding the program, through separate

rulemaking to include other groups of aliens and more ports, including land border ports of

entry. 42 As mentioned above, the Secretary has the authority under current regulations to establish

exit pilot programs at up to 15 air or sea ports of entry and any number of land ports of entry.

Under DHS’ initial regulations, biometric identifiers are not required for U.S. citizens, lawful

permanent residents of the United States or for travelers who seek to enter the United States

through the VWP. Subsequent DHS regulations, however, now require VWP participants to

submit to the requirements of the US-VISIT program. 43 With respect to Canadian citizens who

enter through the designated air and sea ports of entry, biometric identifiers will be required,

unless the Canadian citizen is temporarily visiting the United States and does not apply for

admission pursuant to a nonimmigrant visa. Nonimmigrant Mexican visa holders must also

present biometric identifiers if they enter through the designated air and sea ports of entry, but not

at land ports of entry along the southwest border. Current DHS regulations also exempt 18 other

categories of individuals from providing biometric identifiers upon entry to or exit from the

United States (see Appendix C). An inspector retains the discretion, however, to collect an alien’s

biometric information in order to determine the exact age of the alien and whether he or she is

exempt from the biometric requirements.

Electronic Manifest Requirements

One of the basic legislative mandates of US-VISIT is that the system integrate the available alien

arrival and departure data that exist in any Department of Justice (now DHS) or DOS database

system. This includes the systems that incorporate carrier manifest data on passengers and crew

members who are entering or leaving the United States via air or sea—generally, the Advance

Passenger Information System (APIS) for arrivals and the Arrival Departure Information System

(ADIS) for departures.44

In addition to the information captured by the electronic manifests, APIS and ADIS include

information gathered from VWP aliens and information on visa applications and recipients

(...continued)

http://www.dhs.gov/interweb/assetlibrary/USVISIT_RFIDFactSheet.pdf, accessed on January 26, 2006.

42

69 Federal Register 468, 470.

43

69 Federal Register 53318.

44

Current law already requires that passenger manifests be submitted electronically prior to an aircraft or vessel’s

arrival at a U.S. port of entry. Section 402 of P.L. 107-173 and §115 of P.L. 107-71.

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received through the DataShare program with DOS. The information provided by the APIS and

ADIS databases are run against the Interagency Border Inspection System (IBIS) which contains

“lookouts” on individuals submitted by more than 20 law enforcement and intelligence agencies.

According to DHS, by the time a traveler gets to an air or sea port of entry, inspectors have

identified the aliens that need to be scrutinized more closely or that may be inadmissible.45

Under current regulations, a commercial aircraft or vessel must electronically transmit arrival and

departure manifests to DHS officials for passengers or crew members not currently exempt from

the manifest requirements pursuant to 8 C.F.R. §231.1 or §231.2. These manifests must contain

the data elements (e.g., name, passport number) specified in INA §231, as described in

regulations 19 C.F.R. §4.7b (passengers and crew members onboard vessels) §122.49a

(passengers onboard aircraft) and §122.49b (crew members onboard aircraft) (see Appendix B).

Arrival manifests must be submitted electronically to DHS prior to the arrival of the commercial

aircraft or vessel. Electronic departure manifests, under 8 C.F.R. §231.2, must be submitted to

DHS officials within 48 hours of departure.46 Under current regulations, arrival and departure

manifest data are not required to be submitted by U.S. citizens, a returning lawful permanent

resident alien of the United States, and new immigrants to the United States or aircraft and vessels

arriving in the United States directly from Canada, or departing to Canada.47

Visa Waiver Program

The entry-exit system must also include the arrival and departure for any visitor who transits

through the air and seaports and is admitted under the Visa Waiver Program. The VWP allows

nationals from 27 countries to enter the United States as temporary visitors for business or

pleasure without first obtaining a visa from a U.S. consulate abroad. The VWPPA states that no

alien arriving by air or sea may be granted a visa waiver under INA §217, on or after October 1,

2002, unless the carrier is submitting passenger information electronically to the VWP entry-exit

system, as required by the Secretary. According to 8 C.F.R. §217.7, carriers must electronically

transmit arrival manifest data in accordance with the elements spelled out in 19 C.F.R. §4.7b or

19 C.F.R. §122.49a for every applicant for admission under the VWP that the carrier transports by

air or sea to a U.S. port of entry. Carriers are only required to transmit departure passenger

information for those departing VWP passengers who were admitted to the United States under

the VWP after arriving at a port of entry. As of September 30, 2004, travelers entering the United

States pursuant to the VWP are enrolled in US-VISIT.

The 9/11 Commission Report

The National Commission on Terrorist Attacks Upon the United States (9/11 Commission) was

created to investigate “facts and circumstances relating to the terrorist attacks of September 11,

45

69 Federal Register 468, 471.

46

On January 3, 2003, DOJ proposed a rule that would require commercial carriers transporting any person by air to

any port within the U.S. from any place outside the U.S. to submit an electronic arrival passenger manifest to federal

officials no later than 15 minutes after the flight departs from the last foreign port or place and for departure manifest,

no later than 15 minutes before the flight or vessel has departed the U.S. See Manifest Requirements Under Section 231

of the act, 68 Federal Register 292, 294 (January 3, 2003).

47

8 C.F.R. §§231.1 (Arrival manifest for passengers) and 231.2 (Departure Manifest for passengers).

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2001.”48 The 9/11 Commission published its report in July 2004.49 In its report, the 9/11

Commission noted the following with respect to the US-VISIT system:

Since September 11, the United States has built the first phase of a biometric screening

program, called US VISIT... So far, however, only visitors who acquire visas to travel to the

United States are covered. While visitors from “visa waiver” Countries will be added to the

program, beginning this year, covered travelers will still constitute only about 12 percent of

all noncitizens crossing the U.S. borders...

While the 9/11 Commission called for the expeditious implementation of the US-VISIT program,

it noted the following with respect to biometrics: “biometrics have been introduced into an

antiquated computer environment” and that “replacement of these systems and improved

biometric systems will be required.” The 9/11 Commission also recommended the consolidation

of the various border screening systems with the US-VISIT system, including frequent traveler

programs such as NEXUS and the Secure Electronic Network for Travelers’ Rapid Inspections

(SENTRI).50

Legislation in the 108th Congress

As stated above, the 9/11 Commission called for the expeditious implementation of the US-VISIT

program. It also called for the replacement of the “antiquated computer environment” in which

biometrics have been introduced. The 9/11 Commission recommended the consolidation of the

various border screening systems with the US-VISIT system, including frequent traveler

programs. 51 In an effort to implement the 9/11 Commission’s recommendations, Congress passed

“The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)” as discussed

below.

The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L.

108-458)

The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458) called for the

Secretary of DHS (Secretary) to develop a plan to accelerate the full implementation of an

automated biometric entry and exit data system and submit a report to Congress on the plan by

July 17, 2005. The act required the plan to describe the functionality of the entry and exit data

system that includes the following:

•

a listing of ports of entry and other DHS and DOS locations with biometric entry

data systems in use and whether the systems are located at primary or secondary

inspections areas;

•

a listing of ports of entry and other DHS and DOS locations with biometric exit

data systems in use;

48

The commission was established pursuant to P.L. 107-306.

A staff report, titled “9/11 and Terrorist Travel” was released in August 2004

50

See http://www.9-11commission.gov/.

51

Registered traveler programs include NEXUS and Secure Electronic Network for Travelers’ Rapid Inspection

(SENTRI).

49

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•

a listing of databases and data systems that are interoperable with the entry and

exit data system;

•

a description of identified deficiencies with respect to the accuracy or integrity of

the information contained in the entry and exit data system;

•

a description of identified deficiencies with respect to the technology used to

process individuals through the system;

•

a description of programs and policies to correct such deficiencies; and

•

an assessment of the effectiveness of the system in fulfilling its intended

purposes.

The act also required the plan to describe factors that are relevant to the accelerated

implementation of the system, including the earliest estimated date for full implementation of the

program, among other things. The plan must also describe the following: (1) any improvements

needed with respect to the technology used to process individuals through the system; (2)

improved or added interoperability with other databases or data systems; and (3) the manner in

which the US-VISIT program meets the goals of a comprehensive entry and exit screening

system and how the program fulfills its statutory obligations.

As specified in previously enacted legislation, the act required the entry and exit data system to

collect “biometric exit data for all categories of individuals who are required to provide biometric

entry data.” The act also required the integration of all databases and data systems that process or

contain information on aliens by December 2006. In doing so, the act specified the following

agencies to comply with the mandate:

•

DHS’ U.S. Immigration and Customs Enforcement;

•

DHS’ U.S. Customs and Border Protection;

•

DHS’ U.S. Citizenship and Immigration Services;

•

DOJ’s Executive Office for Immigration Review; and

•

DOS’ Bureau of Consular Affairs.

The act required the integrated data system to be an interoperable component of the entry and exit

data system. The act further required the Secretary to fully implement the interoperable electronic

data system as specified in the Border Security Act. The act also required the Secretary and heads

of other agencies that have databases or data systems that are linked to the entry and exit data

system to establish policies and procedures for maintaining the entry and exit data system’s

accuracy and integrity and establish guidelines for collecting and removing data, among other

things. The act also required the training of front line personnel with respect to the integrated

system (as well as to the goals of the system).

In addition to the integration of the entry and exit data system with other databases and data

systems, the act required the Secretary to develop and implement a plan to expedite the

processing of registered travelers through a single registered traveler program that can be

integrated into the broader automated biometric entry and exit data system.

With respect to maintaining accuracy and integrity of the system, the act required the following:

(1) the establishment of policies and procedures for maintaining the entry and exit data system’s

accuracy and integrity; (2) the establishment of guidelines for collecting and removing data; (3)

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the training of training of personnel who are authorized to access information maintained in the

databases and data system; and (4) the establishment of a clearinghouse within DHS to streamline

the process through which one can seek corrections to inaccurate information.

In addition to the plan mentioned above, the act required the Secretary to submit several reports

to Congress, including a report on the status of implementing the integrated databases and data

systems as defined under current law; an individual and joint (with other relevant agency heads)

status report on compliance with the act; and a report that describes DHS’ progress and

implementation of a single registered traveler program. The act authorized such sums as

necessary for each fiscal year, FY2005 through FY2009, to carry out the provisions.

Selected Issues

While the Administration has seemingly gone to great lengths to clarify the processes involved

with the US-VISIT program, many concerns have surfaced. Some have questioned the integration

of US-VISIT with the VWP, while others have found the existence of too many potential

exceptions problematic. Some observers have suggested that the program may not be in

compliance with congressional mandates. Generally, the specific requirements and procedures

that a traveler must abide by to enter the United States through the US-VISIT program are

detailed in agency regulations.

Visa Waiver Program

The VWP, while statutorily distinct, is linked to US-VISIT’s components and implementation in

many respects. For example, VWP regulations for manifest requirements have now been merged

with the electronic manifest requirements for all passengers arriving on commercial aircraft from

foreign countries.52 With respect to biometrics, travelers entering the United States pursuant to the

VWP are enrolled in US-VISIT starting September 30, 2004. Moreover, foreign nationals who

participate in the VWP will not be admitted under the program on or after October 26, 2005,

without a machine-readable, tamper-resistant passport that meets ICAO biometric standards for

photographs, unless the passport has not expired and was issued prior to that date.53

As previously discussed, the Administration in 2004 began to require VWP foreign nationals who

enter the United States to enroll in US-VISIT due to the lack of biometrics in the participating

countries’ passports. It is not clear that if once the VWP participating countries meet the

biometrics requirement whether the U.S. government will continue to require the foreign

nationals to enroll in US-VISIT. Some have expressed concerns with respect to this, primarily due

to the different type of technology that will be in the passports. According to DHS’ Inspector

General, “...the technology embedded in passports will be different from technology employed by

52

Previously, the elements required to be submitted by VWP passengers in support of the entry-exit system mandated

by 8 C.F.R. §217.7 had been different from a carrier’s obligation to submit arrival and departure manifests under USVISIT. DHS claimed, nonetheless, that the VWP elements had effectively been included in the general electronic

manifest requirements. The programs were officially combined pursuant to, Final Rule, Electronic Transmission of

Passenger and Crew Manifests for Vessels and Aircraft, 70 Federal Register 17820 (April 7, 2005).

53

8 U.S.C. §1732(c)(2). The deadline was originally October 26, 2004, but was extended a year by P.L. 108-299.

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US-VISIT. Until the two technologies for verifying a traveler’s identity and admissibility are

integrated, VWP countries should remain enrolled in US-VISIT.”54

New Documentary and Data Collection Requirements

The scope of §110 of IIRIRA as amended is much narrower than originally enacted since it does

not require the development of a system that would record the entry and exit of every alien

arriving and departing from the United States. Instead, §110 of IIRIRA as amended by the DMIA,

requires that a system be developed to record alien arrivals and departures, without establishing

additional documentary requirements. Nothing in the amended §110 of IIRIRA should be

interpreted as requiring the Attorney General or the Secretary of State to collect new types of

documents or data from aliens, particularly aliens who have had document requirements waived

under §212(d)(4)(B) of the INA by the Attorney General and the Secretary of State acting jointly

on the basis of reciprocity with respect to foreign contiguous territories or adjacent islands.55

Nonetheless, IIRIRA §110 does not “reduce or curtail any authority of the Secretary of Homeland

Security or the Secretary of State under any other provision of law” to require new documentary

or data collection information.56 Thus, while §110 of IIRIRA restricts the Attorney General and

the Secretary of State from imposing new documentary or data collection requirements upon

aliens under §110 of IIRIRA, it does not reduce the authority of the Attorney General or the

Secretary of State from developing new documentary or data collection requirements from other

provisions of law. 57

DHS claims there is no conflict between the requirement for biometric identifiers and DMIA’s

prohibition on new documentary or data collection requirements.58 DHS supports its conclusion

with the “no reduction in authority” clause of the DMIA, claiming the biometric requirements

found in the Interim Final Rule are supported by statutory authority “outside the four corners of

DMIA.”59 For example, DHS cites §403(c) and §414 of the USA PATRIOT Act and §§ 302-303

of the Border Security Act, as laws passed after the DMIA that encourage and require DHS to

develop and utilize a biometric technology for the implementation of the automated entry and exit

data system. While these provisions do not appear to give the Secretary of DHS or DOS the

explicit authority to promulgate new data collection or documentary requirements under §110 per

se, the broad grant of authority in these provisions to implement an integrated entry-exit system

that utilizes biometric technology, combined with the generous discretion that is often afforded

agencies implementing congressionally mandated programs by courts, seemingly provides strong

support for the use of biometric identifiers.

Other authority cited by DHS, includes INA §§ 214, 215 and 235. Of particular importance is

INA §215 which allows the President to promulgate regulations for alien departure and arrival.

The President pursuant to Executive Order 13323 delegated his authority to promulgate these

54

DHS, Office of Inspector General, Implementation of the United States Visitor and Immigrant Status Indicator

Technology Program at Land Ports of Entry, OIG-05-11, February 2005.

55

In addition, §110 does not permit the Attorney General or the Secretary of State to require documents or data from

aliens that are inconsistent with the North American Free Trade Agreement.

56

8 U.S.C. 1365a(c)(2).

57

Congressional Record, daily edition, vol. 146, (May 23, 2000), pp. H3570-H3571.

58

69 Federal Register 468, 475.

59

Ibid.

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regulations to the Secretary of DHS. This delegation, and its result—the Secretary’s new

authority to promulgate regulations for the entry and exit of aliens—would likely correct any

apparent deficiency in the authority cited by DHS. Still, the fact that DHS claims that it may

collect additional biometric data as the deployment of more comprehensive technologies becomes

feasible may raise questions as to whether these new requirements are truly consistent with

§110’s mandate that no new documentary or data collection requirements be imposed.

Possible Documentary Exemptions and Exceptions 60

Under some circumstances not all the information required by US-VISIT must be submitted. For

example, visa information may be omitted in the event a passenger is traveling pursuant to the

VWP (though the VWP has its own requirements). Visa and/or passport requirements may be

waived upon the joint determination of the Attorney General and the Secretary of State under 22

C.F.R. §41.2. Individuals from certain countries may also be exempt from providing a passport or

visa under 8 C.F.R. 212.1.

With respect to biometrics, seventeen categories of individuals are exempt from providing this

kind of information. Determining an exemption may become a highly complicated task for a

potentially under-manned and untrained staff. While no particular nation is completely exempted

from biometrics, there may be one exception that could provide the avenue for exempting very

large numbers of aliens. Under 8 C.F.R. §235.1(d)(iv)(C), the Secretary of Homeland Security

and the Secretary of State may jointly determine that a “class of aliens” are exempted from the

biometric requirements. Though it is unclear from the regulations how broadly a “class of aliens”

may be defined, case law demonstrates that the phrase has been accepted to include all aliens

from certain nations.61 Moreover, this exception could potentially lead to a listing of persons

similar to the listed individuals who are already exempted from the visa and passport

requirements under 22 C.F.R §41.2 and 8 C.F.R. 212.1.

Notwithstanding US-VISIT’s formal regulations and guidelines, applicants may be processed in a

manner different than anticipated due to a number of reasons, some of which may include

national security concerns, emergencies, and travel delays. For example, DHS reserves the right

to require identifying information from any individual whom it has reason to believe may not be

who he or she claims or feels is not entitled to enter.62 In addition, certain aliens whose presence

in the United States warrants monitoring for national security reasons remain subject to the

NSEERS special registration procedures.63 Mitigation strategies—to speed-up the screening

process—have also been developed by DHS in the event immigration and customs processing are

hampered by significant delays.64 The mitigation strategies have caused some controversy as

60

For a fuller discussion on documentary exemptions and exceptions, see CRS Congressional Distribution

Memorandum, Waiving the Documentary Requirements for Visas and Passports to Enter the United States, by Ruth E.

Wasem and (name redacted), October 27, 2003.

61

Sale v. Haitian Ctrs., Council, 509 U.S. 155 (1993) (upholding an executive order that directed the Coast Guard to

intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti

without first determining whether they may qualify as refugees, partly on 8 U.S.C. §1182, which provides the President

with the authority to suspend the entry of “any class of aliens”).

62

69 Federal Register 468, 472.

63

8 C.F.R. 264.1(f).

64

See 69 Federal Register 468, 474; see also Paul Sperry, “New Anti-terror Program Contains Hidden Loophole,”

WorldNetDaily, January 8, 2004 (describing a DHS memorandum that requires the collection of biometrics be ceased,

if processing wait times exceed one hour), available at http://www.worldnetdaily.com/news/

(continued...)

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some believe that if used, they could be a loophole for some foreign nationals to enter the United

States.

US VISIT and Canadian and Mexican Nationals 65

The Canadian government has expressed strong opposition to implementation of an automated

entry and exit data system at northern ports of entry. Notwithstanding, Canadian citizens are

exempt from some of the US-VISIT program requirements. For example, Canadian nationals and

some Canadian landed immigrants are not required to present a passport, and are often not

required to obtain a visa.66 Moreover, Canadian nationals are generally not required to obtain an

I-94 form if they are entering the United States temporarily for business or pleasure. 67 Canadians

who enter the United States for purposes other than business or pleasure (e.g., employment, trade

and diplomatic activities, etc.) are issued an I-94 form but may be able to omit their passport

number and visa information from the I-94 pursuant to 8 C.F.R. §212.1, if they have not visited

outside the Western Hemisphere. 68 Upon departure, the Canadian government collects the I-94

departure records for U.S. immigration officials.

With respect to biometrics, Canadians arriving at the designated air or sea port of entry must, in

general, comply with the biometric requirements. However, those Canadian citizens who travel

on temporary visits to the United States and who do not apply for admission pursuant to

nonimmigrant visas do not have to supply the biometric information currently required by law.69

Finally, manifests are not required from aircraft or vessels arriving directly from Canada.

Accordingly, a Canadian citizen who is exempt from the passport and visa requirements under 8

C.F.R. §212.1, has arrived in the United States on an aircraft originating in Canada (i.e., no

manifest required by vessel), and intends to travel temporarily in the United States without

applying for admission pursuant to nonimmigrant visas (i.e., no biometrics required) is exempted

from the documentation requirements of the US-VISIT program; however, such an individual

would still be subject to routine inspection by federal officials at the border. It is not clear,

however, what documents would be examined to verify Canadian citizenship.70

(...continued)

article.asp?ARTICLE_ID=36511.

65

For a comparison of documentary requirements for Canadian and Mexican nationals to enter into the United States,

see a.

66

Section 212(d)(4) of the INA permits the Attorney General and the Secretary of State acting jointly to exempt certain

foreign nationals from the documentary requirements to enter the United States. See also 22 U.S.C. §41.2 (allowing the

Secretary of State and AG to waive Canadian nationals’ visa and passport requirements if they have not visited outside

the Western Hemisphere).

67

8 C.F.R. §235.1(f)(i) (exempting aliens described in 8 C.F.R. §212.1 and 22 C.F.R. §41.33 (Canadian Border

Identification Crossing Card)).

68

See 68 Federal Register 292, 293 (citing 8 C.F.R. §212.1).

69

69 Federal Register 468, 472.

70

A Data Management Improvement Act (DMIA) Task Force report published in January 2003 lists the following as

acceptable documentation for entry into the United States:

● Canadian citizens or British subjects with residence in Bermuda or Canada—oral declaration

and identification; or proof of citizenship and residence in Bermuda or Canada;

● Canadian landed immigrant with British common nationality—identification and proof of landed

immigrant status; and

● Canadian landed immigrant without British common nationality—passport with nonimmigrant

(continued...)

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

The Mexican government and some observers have long complained about the difference in

treatment of its nationals at the border when compared to Canadian nationals. Mexican nationals

applying for admission to the United States as visitors are required to obtain a visa or hold a

Mexican Border Crossing Card, now referred to as the Mexican “laser visa” (for a comparison of

the Mexican Laser Visa requirements with Canadian documentary requirements see Appendix

D).71 The laser visa is used by citizens of Mexico to gain short-term entry (up to six months) for

business or tourism into the United States. It may be used for multiple entries and is good for 10

years. Mexican citizens can get a laser visa from the Department of State (DOS) Bureau of

Consular Affairs if they are otherwise admissible as B-1 (business) or B-2 (tourism)

nonimmigrants.72 Under existing regulations, a biometric characteristic of a bearer of a laser visa

must be matched against the biometric on the laser visa before the bearer may be admitted.73 This

requirement applies at all ports of entry, including land borders. If the individual intends to go 25

miles or further inland or stay longer than 30 days, they are also required to obtain a Form I-94.

Upon departure, Mexican nationals who had to complete an I-94 form are to deposit them into

boxes at ports of entry.

According to DHS regulations, Mexican nationals who present a laser visa at time of admission,

who will stay within 25 miles of the border (75 miles if admitted in Arizona) and whose stay will

be shorter than 30 days, are temporarily not subject to US-VISIT biometric data collection

requirements. 74 The Secretaries of DHS and State, pursuant to their regulatory authority in 8

C.F.R. parts 215.8(a)(2)(iii) and 235(d)(1)(iv)C) to jointly exempt classes of aliens from the

biometric requirements of US-VISIT, have decided to temporarily exempt such short-term

Mexican laser visa travelers. The Secretaries have determined that this class of aliens should be

exempt because their biometric data has already been captured by DOS at the issuance of the

laser visa and the photograph of the traveler can be compared to the facial appearance of the

traveler upon admission. Those Mexican travelers who present a laser visa that intend to travel

beyond the geographic restrictions or remain beyond the time limitations will be subject to USVISIT biometric requirements if they apply for admission at a designated air, sea, or land port of

entry.

(...continued)

visa.

See DMIA Task Force First Annual Report to Congress, December 2002. Appendix C of the DMIA Report lists those

nationals that are considered to have common nationality with citizens of Britain.

71

Although no longer called a border crossing card (BCC), the statutory authority for the laser visa derives in part from

the provision in the Immigration and Nationality Act (INA) that defines “border crossing card”:

... a document of identity bearing that designation issued to an alien who is lawfully admitted for

permanent residence, or to an alien who is a resident in foreign contiguous territory, by a consular

officer or to an immigration officer for the purpose of crossing over the borders between the United

States and foreign contiguous territory in accordance with such conditions for its issuance and use

as may be prescribed by regulations ... (§101(a)(6))

The other key provision is §212(a)(7)(B)(i) of INA, which declares “any nonimmigrant not in possession of a passport

valid for a minimum of six months and ... is not in possession of a valid nonimmigrant visa or border crossing

identification card at the time of application for admission, is inadmissible.” This provision makes the BCC an official

document on par with the nonimmigrant visa to enter the United States.

72

From 1992 to 1998, border crossing cards were also issued to Canadian citizens. DOS and the former Immigration

and Naturalization Service ceased issuing the BCC and the combination B-1/B-2 visa and BCC to Canadian citizens,

British subjects who reside in Canada and landed immigrants in 1988.

73

See 8 C.F.R. §212.1(c)(3).

74

69 Federal Register 53318.

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Implementation Issues

In its most basic form US-VISIT is an automated entry and exit data system that tracks the arrival

and departure of most foreign nationals to and from the United States. The 2001 terrorist attacks,

however, have led many to view US-VISIT as more than a tracking system. Although not

formally described as the following, some have pegged US-VISIT as a travel log, a mechanism to

collect data, a risk assessment tool, a mechanism to reduce document fraud, and a terrorist and

criminal watch list.

Many observers have expressed concern with the implementation of US-VISIT. Observers fear

that the full implementation of US-VISIT will cause massive delays at U.S. ports of entry,

primarily at land ports of entry. Some believe that the cost of implementing such a system would

outweigh the benefits. Others expressed concern about the inadequacy of current infrastructure,

and the lack of consensus with respect to the type of biometric technology that should be used in

travel documents. 75 Many continue to question the purpose of such a system. Some argue that

resources should be directed at immigration interior enforcement, rather than on an expensive

system whose capability is not fully known.

Some may also argue that the implementation of US-VISIT is not in compliance with its statutory

deadlines. For example, while the entry system appears to be in place at all ports of entry, the exit

process is not fully developed. Some might argue that the lack of an exit system at all ports of

entry is contrary to the program’s authorizing language, which requires the Secretary of DHS to

“fully implement the integrated entry and exit data system” by December 31, 2005 [emphasis

added]. Others, however, might contend that the language is ambiguous and that full

implementation of exit features at some ports of entry is sufficient to meet the statute’s mandate.

A number of issues may complicate this issue and the actual time line for implementation,

including the use of pilot programs, new or varying technologies between ports, and funding

levels.

Infrastructure and Facility Needs at the Border

Many maintain that the successful development of an automated entry and exit data system may

require the United States and quite possibly its neighbors (Canada and Mexico) to expand

infrastructure at land border crossings. The current infrastructure at most U.S. ports of entry

reportedly is not sufficient to accommodate the demands of an automated entry and exit data

system. For example, according to some observers, at many land ports of entry additional lanes

may be necessary to accommodate the number of individuals seeking entry into the United States

who will need to be processed through the system. Moreover, in order to record the departure of

every alien leaving the United States through a land port entry, there needs to be a “port of exit”

that has sufficient lanes, staff and resources. Additionally, the sending or receiving countries (i.e.,

Canada and Mexico) may not have the same number of lanes or the necessary infrastructure to

create additional lanes that would accommodate the amount of traffic entering and leaving the

country via a United States port of entry. Some contend that this could lead to significant delays

as travelers try to make their way through ports of entry. Others assert that the cost of expanding

the infrastructure would be great.

75

NIST published a Report to Congress in January 2003 that contends that two fingerprints and facial photograph are

adequate biometrics.

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

With respect to air and sea ports of entry, concerns similar to those about land ports of entry have

been expressed. For example, securing adequate space and facilities may prove challenging at

many air and sea ports of entry, particularly for the exit process. Moreover, in many instances

passengers are inspected on board vessels because of inadequate or nonexistent inspection areas

at sea ports of entry.

With respect to the northern border, many businesses as well as the Canadian government fear

that the implementation of such a system would clog the border.76 There have been reports that

the Canadian government may introduce a plan that would have Canadian Customs officials

collect exit information on non-citizens and pass it on to United States officials. Such a plan could

further aid the United States in identifying non-citizens who may enter the country. Moreover, as

the United States begins to implement the US-VISIT program, the demand for improved

infrastructure may be critical for its development. It is unclear if Canada will facilitate such a

system by extending its infrastructure at the relevant border crossings.

Interior Enforcement

One of the purposes of the US-VISIT program is to track nonimmigrants who overstay the terms

of their visas. It is not clear if the Bureau of Immigration and Customs Enforcement (ICE) will

have adequate resources to track down those who overstay their visas once the US-VISIT

program is implemented. Many have argued that enforcement of immigration law within the

interior of the country has lacked sufficient resources. Prior to the September 11, 2001 terrorist

attacks, the Immigration and Nationalization Service (INS) had less than 2,000 immigration

agents to enforce immigration laws within the United States; and during a 2002 hearing, the

former INS Commissioner, James Ziglar, testified that the terrorist attacks prompted the INS to

reassign many investigators to work on terrorism investigations. 77 Although that number has not

changed since the terrorist attacks, the merging of the interior enforcement function of the former

INS and the investigative arm of the U.S. Customs Service (Customs) within the Bureau of

Immigration and Customs Enforcement (ICE) under the Directorate of Border and Transportation

Security in the Department of Homeland Security (DHS) has brought the number of agents to

over 5,500.78

Although the number of interior enforcement agents has doubled since the consolidation of the

former INS and Customs, many continue to express concerns that the number is insufficient to

adequately enforce immigration laws. Moreover, although the consolidation increased the number

of interior enforcement agents, Customs needs to continue to carry out its interior enforcement

missions of stemming the flow of illicit drugs and deterring money laundering, among other

things. These critics argue that if the intent of the entry and exit system is to document

nonimmigrants who overstay their visas, then more resources should be directed at interior

enforcement and integrating existing immigration databases rather than on developing and

implementing a new system.

76

This fear may be unwarranted because under current law and DHS regulations, Canadian nationals and legal

permanent residents of Canada would be exempt from the requirements of the US-VISIT program.

77

Testimony of INS Commissioner James Ziglar, in U.S. House, Committee on Appropriations, Subcommittee on

Commerce, Justice, State and the Judiciary, hearing on the President’s FY2003 Budget Request, March 7, 2002.

78

Michael Garcia, Director of the Bureau of Immigration and Customs Enforcement, July 23, 2003 speech at the

Heritage Foundation.

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Privacy Issues

The US-VISIT Program’s Increment I Privacy Impact Assessment was made available to the

public on December 18, 2003. Many observers stress the importance of having individual’s

privacy rights protected due to the potential for unauthorized use of personal information. While

some observers maintain that current law79 requires a privacy impact assessment before

developing and purchasing new technology that will collect or store personal information

electronically, the Administration maintains that it is using existing databases during the first

phase of the program’s implementation. Some observers, however, view the introduction of

biometrics as evidence that the Administration is using new technology. The Administration

published a privacy impact assessment prior to the actual implementation of the program. And,

according to the National Institutes of Standards and Technology (NIST) in its report to Congress:

... the biometric data that the U.S. government would collect from foreign nationals ...

disclose a limited amount of personal information ... and do not raise significant privacy

concerns. Specifically, the personal information disclosed by the biometric data relates to the

identity.... Facial photographs do not disclose information that the person does not routinely

disclose to the general public, and their use to verify identity obviously raises no serious

privacy concerns. Moreover, fingerprints disclose very little other information about a person

other than the person’s identity. Accordingly, their use as a biometric does not raise the sorts

of privacy concerns that might arise from the use of other biometrics that, in addition to

verifying identity, could also conceivably disclose secondary (e.g., medical, health-related)

information).80

Information Technology Interoperability

The USA PATRIOT Act called for the automated entry and exit data system to interface with

federal law enforcement databases. It also called for the integration of IDENT and the Federal

Bureau of Investigation’s (FBI) Integrated Automated Fingerprint Identification System (IAFIS).

Additionally, the USA PATRIOT Act along with the Border Security Act required the former INS

to integrate all of its databases. Several GAO studies criticized the former INS for having

antiquated databases and failing to integrate its system. 81 Reportedly, the Administration is

currently using the IDENT system to capture two, flat fingerprints instead of 10 fingerprints.

While the two fingerprint system is sufficient for identifying a person, some contend that two

fingerprints may not be sufficient to return a match from the Federal Bureau of Investigation’s ten

fingerprint system.

Critical to the success of border security is the ability to process information in real time quickly

enough to accommodate the pace and volume of work. Without information obtained in real time,

there is a potential for a backlog to occur. The issue of making real time information available to

the immigration inspectors processing foreign nationals seeking entry at U.S. ports of entry is

highlighted at many of the nation’s sea ports of entry. As previously mentioned, many inspections

of travelers seeking entry into the United States at a sea port of entry occurs on board the vessel.

79

The E-Government Act of 2002 (P.L. 107-347).

U.S. Department of Justice, U.S. Department of State and NIST Report to Congress, January 2003, Use of

Technology Standards and Interoperable Databases with Machine—Readable, Tamper—Resistant Travel Documents.

81

See for example a series of GAO reports: U.S. Government Accountability Office, INS: Overview of Recurring

Management Challenges, GAO Report 02-168T, October 17, 2001 and Securing America’s Borders: INS Faces

Information Technology Planning and Implementation Challenges, GAO Report 02-148T, October 11, 2001.

80

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Immigration inspectors use the Portable Automated Lookout System (PALS), which is a laptop

computer that contains a CD-ROM that is updated monthly and contains lookout information on

individuals who are deemed inadmissible to the United States. Although some may view this

method as problematic, primarily due to the potential for the information to be outdated, sea

vessels like their air carrier counterparts, are required under law to submit passenger manifests in

advance to their arrival at a U.S. port of entry. Submitting the passenger information in advance

of arrival, allows the immigration inspector to query real time databases.

Databases

While some observers question the ability of US-VISIT to carry out its mission, many agree that

the program’s usefulness will depend, in large part, on the quality and accuracy of the various

watchlists that are integrated with the immigration databases that comprise US-VISIT. It is

unclear, however, how many watchlists are included in US-VISIT and whether they are

integrated.

In addition to the first hand knowledge immigration inspectors must have, they also must be

familiar with the numerous databases. Moreover, DOS and DHS use IDENT to store the

biometrics for those foreign national travelers who are subject to the US-VISIT program

requirements. Some contend that the IDENT database, which contains recidivism and lookout

data on foreign nationals who have previously been apprehended, should not be used to store the

biometrics of admissible foreign nationals. They argue that in addition to the number of databases

that are accessed through the US-VISIT program, the inclusion of biometrics on inadmissible

foreign nationals with those who are admissible in IDENT may confuse the inspector.

Training Needs and Resources

Prior to the transfer of immigration and customs functions to DHS, the agencies (INS and the

U.S. Customs Service) cross-trained their inspectors to perform primary inspections. Upon

referral to secondary inspections, however, a more experienced inspector with the designated

agency would perform the inspection (i.e., an immigration matter would be referred to an

immigration inspector and a customs matter would be referred to a customs inspector). Some

have expressed concern that the discretion given to immigration inspectors and the complexity of

immigration law requires substantial training. Moreover, inspectors must have knowledge of the

various documents and databases that are used to determine admissibility. Inspectors at U.S. ports

of entry must make an immediate determination that an undocumented alien, or someone who has

questionable documents, should be excluded or detained for further processing by an immigration

court.

Now that DHS has implemented its “one face at the border” initiative, some have questioned the

adequacy of training that is provided to the non-immigration inspectors. Observers view the USVISIT program as one more layer of technology that must be mastered by the immigration

inspector. While some contend that the first increment of the program has not introduced new

technology, others contend that inspectors who may not already be familiar with current

immigration databases are now expected to be competent with the US-VISIT database.

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Facilitation of Travel and Commerce

Many contend that programs such as NEXUS, the Secure Electronic Network for Travelers Rapid

Inspection (SENTRI) and the Free and Secure Trade (FAST) program that facilitate the speedy

passage of low risk, frequent travelers and commerce are essential. The number of travelers who

took advantage of automated inspections has risen over the recent years, peaking to 2.6 million in

FY2002.82 It is not clear how these programs will be incorporated into US-VISIT; and how

participants of these programs will be vetted through the system.

Feasibility of Implementation and Policy Questions

Many have questioned the feasibility of implementing the US-VISIT program. While many

observers question the ability of the administration to meet the congressionally mandated time

line, others question the financial burden of implementing such a system. Some contend that until

the limits and capabilities of US-VISIT are determined, it will be difficult to assess its progress

towards its mission. Proponents, however, point to the success stories that have been reported

since the implementation of US-VISIT as providing proof that the program is achieving its

mission.

82

Congressional Research Service analysis of the former Immigration and Naturalization Service workload data.

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Appendix A. Summary of Authority for Biometric

Identifiers in Travel Documents

DHS maintains that the requirement that foreign nationals provide biometric identifiers when they

seek admission to the United States is apparently supported by the Department’s broad authority

to inspect aliens contained in the Immigration and Nationality Act (INA) §235 (Inspection by

Immigration Officers). 83 DHS also claims various other provisions in the INA support the use of

biometric identifiers, including §212 (grounds of inadmissibility); §217 (requirements for the

VWP); §231 (the electronic passenger manifest requirements); §237 (grounds of removability);

and §286(q) in combination with INA §235 and §404 of the Border Security Act (authority for

alternative inspection services).

DHS also cites INA §215 as a provision that can require foreign nationals to provide biometric

identifiers when they seek admission to the U.S. Section 215(a) of the INA allows the President to

regulate the arrival and departure of aliens. On January 2, 2004, however, President Bush signed

an Executive Order titled Assignment of Functions Relating to Arrivals in the Departures From

the United States, delegating his authority to promulgate regulations governing the departure of

aliens to the Secretary of DHS.84 In essence, under §215 and with this new delegation of

authority, the Secretary of Homeland Security, with the concurrence of the Secretary of State, has

the authority to issue new rules and regulations which may require certain aliens to provide

biometric identifiers.

This delegation became increasingly significant in light of the Interim Final Rule promulgated by

DHS on January 5, 2004, which allows the Secretary of DHS to require certain aliens to provide

finger prints, photographs, or other biometric identifiers upon arrival in or departure from certain

air and sea ports in the U.S.85 Initially, this rule only applies to nonimmigrant visa-holders who

travel through the designated air and sea ports listed in DHS Regulations.86

In general, the Interim Final Rule amends portions of 8 C.F.R. §§ 214.1, 215.8, and 235.1 to

include language for biometric requirements. For example, §235.1(d), which provides for the

scope of the examination of persons applying for admission, was amended to provide the

Secretary of DHS with the authority to now require finger prints, photographs or other biometric

identifiers during the inspection process from nonimmigrant aliens seeking admission pursuant to

nonimmigrant visas. In addition, under amended §235.1(d), the failure of an applicant for

admission to comply with the biometric requirements may result in a determination of

“inadmissibility” under INA 212(a)(7). Section 235.1 was also amended to exclude a number of

categories of travelers. Section 235.1(f) was amended to clarify that all nonimmigrant aliens will

be issued the Form I-94, Arrival Departure Record, regardless of whether they come through air,

sea, or land ports of entry (unless otherwise exempted).

83

See 69 Federal Register 468, 469.

E.O. 13323; 69 Federal Register 241, January 2, 2004.

85

69 Federal Register 468.

86

Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United States Visitor and Immigrant Status Indicator

Technology System, 69 Federal Register 482 (January 5, 2004).

84

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Under amended §214.1(a), which addresses requirements for admission, extension, and

maintenance of status, an alien’s admission is now conditioned on compliance with the entry-exit

examination process described by 8 C.F.R. §235.1, if applicable to the nonimmigrant alien.

Furthermore, if the alien is required to provide biometrics and other information upon departure

pursuant to 8 C.F.R. 215.8, the nonimmigrant alien’s failure to comply may constitute a failure of

the alien to maintain the terms of his or her immigration status.

8 C.F.R. §215.8 was created to provide the Secretary of Homeland Security the right to establish

pilot programs at up to 15 air or sea ports of entry (to be designated through further notice in the

Federal Register), through which the Secretary may require aliens who are departing from the

United States from those ports to provide fingerprints, photographs, or other biometric identifiers.

DHS published a regulation on August 3, 2004, to extend the departure capability of US-VISIT to

15 air and seaports.87

87

69 Federal Register 51695.

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U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Appendix B. Electronic Manifest Requirements

Contents of electronic arrival/departure manifests

(INA §231(c))

Electronic manifest requirements for

passengers onboard commercial aircraft

(19 C.F.R. §122.49a)

Complete name

Complete name

Date of birth

Date of birth

Citizenship

Citizenship

Sex

Gender

Passport number and country of issuance

Passport number, country of issuance, expiration

date

Country of residence

Country of residence

U.S. visa number, date, and place of issuance, where applicable

Alien registration number, where applicable

Alien registration number, where applicable

U.S. address while in the U.S.

U.S. address while in the U.S.

Such other information the Secretary, in consultation with the

Secretary of State and the Secretary of the Treasury determines

as being necessary for the identification of the persons

transported and for the enforcement of the immigration laws

and to protect safety and national security.

- Airline International Air Transport Association

(IATA) carrier code or vessel

Congressional Research Service

- Travel document type

Passenger Name Record locator, if applicable

- Port of departure, port of arrival, port of final

destination for in-transit passengers

- Airline carrier code

- Flight number

- Date of aircraft arrival

27

U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Appendix C. Visa Holders That Are Exempt from

the Fingerprinting and Photographing

Requirements Under DHS Regulation 8 C.F.R.

§235.1

Exempt category

Explanation of category

A-1a

Diplomatic or Consular officers, close relatives

A-2

Other foreign government officials or Employees, close

relatives

C-3

In Transit-foreign government officials, close relatives

G-1

Principal recognized foreign government representative to

an international organization, staff, spouse, and children

G-2

Other recognized foreign government representative to

an international organization, staff and close relatives

G-3

Nonrecognized foreign government representative to an

international organization, and close relatives

G-4

International organization officers or employees and close

relatives

NATO-1

Principal permanent representative to NATO and staff,

spouses and children

NATO-2

Other representative to NATO and staff, spouses and

children

NATO-3

Official clerical staff accompanying NATO representatives,

spouses and children

NATO-4

“Officials” of NATO, spouses and children

NATO-5

NATO experts, spouses and children

NATO-6

NATO civilians, spouses and children

Certain Taiwan officials and their immediate family

members who hold E-1 visas

Children under the age of 14

Persons over the age of 79

Classes of aliens the Secretary of DHS and Secretary of

State jointly determine shall be exempt

An individual alien the Secretary of DHS, the Secretary

of State, or the Director of CIA determines shall be

exempt

a.

Exemptions for categories A-1, A-2, and C-3 do not include attendants, servants, or personal employees of

accredited officials. Exemptions for categories A-1 and 2, C-3, G-1 to 4, NATO-1 to 6, and E-1 will not be

provided if the Secretary of State and the Secretary of DHS jointly determine that a class of such aliens

should be subject to the biometric identifier requirements.

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Appendix D. Comparison of Current Law Deadlines and the Administration’s

Implementation

Provision of the law

Provision

Current law deadline

Implementation

§403(c)(1)

Technology Standard

(Biometrics)P.L. 10756a;

§202(a)(4)

P.L. 107-173b

§202(a)(4) and

§302(a)(b)

Requires the development and certification of a technology

standard that can be used to verify the identity of persons

seeking a visa to enter the United States.

October 26, 2003;

however, P.L. 107-173

set a January 26, 2003

deadline.

The National Institute of Science and Technology (NIST)

published a Report to Congress in January 2003 that

determined the types of biometrics that should be used.c

The Administration published an Interim Final Rule that

amends portions of 8C.F.R. §214.1, 215.8 and 235.1.

§403(c)(2)

Technology Standard

(Biometrics)

P.L. 107-56a

Requires the technology standard that is developed to be a

“cross-agency, cross-platform electronic system” that is fully

integrated with law enforcement and intelligence

information relevant to confirming the identity of persons

applying for a visa to enter the U.S. or seeking entry into the

country.

October 26, 2003

See above.

§403(c)(4)

Technology Standard:

Reporting Requirement

(Biometrics)

P.L. 107-56a

Requires a report that describes the development,

implementation, efficacy and privacy implications of the

technology standard and database system.

April 26, 2003

(18 months after

enactment of the act,

thereafter every two

years)

See NIST’s Report to Congress, published in January

2003.c

§414(b)

Entry/Exit Data System:

Visa Requirements

P.L. 107-56a;

§303(b)(1)

P.L. 107-173b

With respect to developing an integrated entry/exit data

system, requires the issuance of visas with biometric

identifiers that are tamper-resistant.

October 26, 2004 (per

P.L. 107-173)

See 69 Federal Register 468.

§414(c)

Entry/Exit Data System

P.L. 107-56a

Requires the entry/exit data system interface with federal

law enforcement databases.

None specified

The Administration maintains that the US-VISIT program

includes the interfacing, enhancement and deployment of

existing system capabilities.

CRS-29

Provision of the law

Provision

Current law deadline

Implementation

§303(a)

Machine Readable Visas

and Travel Documents:

Reporting Requirement

P.L. 107-173b

Requires a report to Congress on the assessment of actions

necessary to fully achieve the implementation of biometric

identifiable, machine-readable, tamper-resistant visas and

other travel documents, and the installation of equipment

and software at all U.S. ports of entry that reads and

authenticates the biometric identifiable documents by

10/26/04.

November 14, 2002

(180 days after

enactment)

See NIST report referenced above.

§303(b)(2)

Visa Requirements

P.L. 107-173b

Requires the installation of biometric data readers and

scanners at all ports of entry.

October 26, 2004

Requirement has not been met.

§402(a)(e)

Electronic Passenger

Manifest

P.L. 107-173b

Requires the transmission of an electronic arrival and

departure manifest to an immigration officer for all

commercial vessels or aircraft bringing passengers to or

from the U.S.

January 1, 2003

8 C.F.R. §231.2

Source: CRS summary of selected provisions in P.L. 107-56 and P.L. 107-173.

a.

The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act Of 2001.

b.

The Enhanced Border Security and Visa Entry Reform Act of 2002.

c.

U.S. Department of Justice, U.S. Department of State and NIST Report to Congress, January 2003, Use of Technology Standards and Interoperable Databases with

Machine-Readable, Tamper -Resistant Travel Documents.

CRS-30

Appendix E. Comparison of the Mexican Laser Visa Requirements with

Canadian Documentary Requirements

Agency

DOS

DHS

Mexican Border Crossing Card

22 CFR 41.32 Nonresident alien Mexican border crossing identification cards; combined

border crossing identification cards and B-1/B-2 visitor visas

22 CFR 41.33 Nonresident alien Canadian border

crossing identification card (BCC)

“Consular officers assigned to a consular office in Mexico ... may issue a border crossing identification card

... in combination with a B-1/B-2 nonimmigrant visitor visa (B-1/B-2 Visa/BCC), to a nonimmigrant alien

who is a citizen and resident of Mexico; seeks to enter the United States as a temporary visitor for

business or pleasure as defined in INA 101(a)(15((B) for periods of stay not exceeding six months;

and is otherwise eligible for a B-1 or B-2 temporary visitor visa or is the beneficiary of a waiver under INA

212(d)(3)(A) of a ground of ineligibility, which waiver is valid for multiple applications for admission into

the United States and for a period of at least ten years and which contains no restriction as to extensions

of temporary stay or itinerary.”

No longer in effect.

8 CFR 212.6 Border crossing identification cards

8 CFR 212.6(b) Border crossing identification

cards

“(a) Application for Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by DOS. A citizen of Mexico,

who seeks to travel temporarily to the United States for business or pleasure without a visa and passport,

must apply to DOS ...”

DHS

Canadian Border Crossing Card

8 CFR 235.1(f) Form I-94, Arrival Departure Record

No longer in effect.

No similar regulation

“(1) Unless otherwise exempted, each arriving nonimmigrant who is admitted to the United States shall be

issued ... a Form I-94 as evidence of the terms of admission. A Form I-94 issued at a land border port-ofentry shall be considered issued for multiple entries unless specifically annotated for a limited number of

entries ...”

DHS

8 CFR 235.1(f) Form I-94, Arrival Departure Record

“(1)(iii) ... Form I-94 is not required by... any Mexican national who is ... in possession of a Form DSP—

150, B-1/B-2 Visa and BCC, containing a machine-readable biometric identifier, issued by DOS and is

applying for admission as a temporary visitor for business or pleasure from contiguous territory” (see CFR

212.1(c)(i)).

DHS

8 CFR 235.1(f) Form I-94, Arrival Departure Record

“(1)(iii) ... Form I-94 is not required by ... any Mexican national who is ... entering soley for the purpose of

applying for a Mexican passport or other official Mexican document at a Mexican consular office on the

United States side of the border” (see CFR 212.1(c)(ii)).

CRS-31

8 CFR 235.1(f) Form I-94, Arrival Departure

Record

“(1)(i) ... Form I-94 is not required by citizens of

Canada” (see 8 CFR 212.1(a)) who is admitted as a

visitor for business or pleasure or admitted to proceed

in direct transit through the United States.”

No similar regulation

Agency

DHS

Mexican Border Crossing Card

8 CFR 235.1(f) Form I-94, Arrival Departure Record

Canadian Border Crossing Card

No similar regulation

“(1)(iii) ... Form I-94 is not required by ... any Mexican national who is in possession of a passport and valid

visa who is admitted as a nonimmigrant visitor for a period not to exceed 72 hours to visit within 25 miles

of the border.”

DHS

8 CFR 235.1(f) Form I-94, Arrival Departure Record

No similar regulation

“(1)(iv) ... Form I-94 is not required by ... bearers of Mexican diplomatic or official passports ...”

DHS

8 CFR 235.1(f) Form I-94, Arrival Departure Record

“(1)(iii) ... Form I-94 is not required by ... any Mexican national who is exempt from a visa and passport ...

or is in possession of a passport and valid visa who is admitted as a nonimmigrant visitor at the Mexican

border Port of entries in the state of Arizona at Sasabe, Nogales, Mariposa, Naco, or Douglas for a period

not to exceed 72 hours to visit within the state of Arizona and within 75 miles of the border.”

Source: CRS presentation of selected DHS regulations.

CRS-32

No similar regulation

U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program

Author Contact Information

Lisa M. Seghetti

Section Research Manager

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

(name redacted)

33

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