Collection and Use of Biometrics by U.S. Citizenship and Immigration Services

Federal RegisterSep 11, 2020

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 1, 103, 204, 207, 208, 209, 210, 212, 214, 215, 216, 235, 236, 240, 244, 245, 245a, 264, 287, 316, 333, and 335

[CIS No. 2644-19 USCIS Docket No. USCIS-2019-0007]

RIN 1615-AC14

Collection and Use of Biometrics by U.S. Citizenship and Immigration Services

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

This rule proposes to amend DHS regulations concerning the use and collection of biometrics in the enforcement and administration of immigration laws by U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP), and U.S. Immigration and Customs Enforcement (ICE). First, DHS proposes that any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with an immigration benefit or request, including United States citizens, must appear for biometrics collection without regard to age unless DHS waives or exempts the biometrics requirement. Second, DHS proposes to authorize biometric collection, without regard to age, upon arrest of an alien for purposes of processing, care, custody, and initiation of removal proceedings. Third, DHS proposes to define the term biometrics. Fourth, this rule proposes to increase the biometric modalities that DHS collects, to include iris image, palm print, and voice print. Fifth, this rule proposes that DHS may require, request, or accept DNA test results, which include a partial DNA profile, to prove the existence of a claimed genetic relationship and that DHS may use and store DNA test results for the relevant adjudications or to perform any other functions necessary for administering and enforcing immigration and naturalization laws. Sixth, this rule would modify how VAWA and T nonimmigrant petitioners demonstrate good moral character, as well as remove the presumption of good moral character for those under the age of 14. Lastly, DHS proposes to further clarify the purposes for which biometrics are collected from individuals filing immigration applications or petitions, to include criminal history and national security background checks; identity enrollment, verification, and management; secure document production, and to administer and enforce immigration and naturalization laws.

The changes proposed in this rule are intended to: Provide DHS with the flexibility to change its biometrics collection practices and policies to ensure that necessary adjustments can be made to meet emerging needs, enhance the use of biometrics beyond background checks and document production to include identity verification and management in the immigration lifecycle, enhance vetting to lessen the dependence on paper documents to prove identity and familial relationships, preclude imposters, and improve the consistency in biometrics terminology within DHS .

DATES:

Written comments must be submitted on this rule on or before October 13, 2020. Comments on the Paperwork Reduction Act section of this rule (the information collection discussed therein) must be received on or before November 10, 2020.

ADDRESSES:

You may submit comments on the entirety of this proposed rule package, identified by DHS Docket No. USCIS-2019-0007, through the

Federal eRulemaking Portal: http://www.regulations.gov.

Follow the website instructions for submitting comments.

Comments submitted in a manner other than the one listed above, including emails or letters sent to DHS or USCIS officials, will not be considered comments on the proposed rule and may not receive a response from DHS. Please note that DHS and USCIS cannot accept any comments that are hand delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. Due to COVID-19, USCIS is also not accepting mailed comments at this time. If you cannot submit your comment by using

http://www.regulations.gov,

please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at 202-272-8377 for alternate instructions.

Collection of Information:

You must submit comments on the collection of information discussed in this notice of proposed rulemaking to either DHS' docket or the Office of Management and Budget's (OMB) Office of Information and Regulatory Affairs (OIRA). OIRA will have access to and view the comments submitted in the docket. OIRA submissions can also be sent using any of the following alternative methods:

•

Email (alternative): DHSDeskOfficer@omb.eop.gov

(include the docket number and “Attention: Desk Officer for U.S. Citizenship and Immigration Services, DHS” in the subject line of the email).

•

Fax:

202-395-6566.

•

Mail:

Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW, Washington, DC 20503; Attention: Desk Officer, U.S. Citizenship and Immigration Services, DHS.

FOR FURTHER INFORMATION CONTACT:

Michael J. McDermott, Security and Public Safety Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Ave. NW, Washington, DC 20529-2240, telephone (202) 272-8377 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

B. Summary of Costs and Benefits

III. Background and Purpose

IV. Discussion of Proposed Changes

V. Statutory and Regulatory Requirements

A. Executive Orders 12866 and 13563

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act of 1996

D. Unfunded Mandates Reform Act of 1995

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Paperwork Reduction Act

H. Family Assessment

I. National Environmental Policy Act (NEPA)

J. Congressional Review Act

K. Executive Order 13175

L. National Technology Transfer and Advancement Act

M. Executive Order 12630

N. Executive Order 13045

O. Executive Order 13211

P. Signature

Table of Abbreviations

AAC Accompanied Alien Children

ASC Application Support Center

AWA Adam Walsh Child Protection and Safety Act

BFR Biometrics fee ratio

CBP U.S. Customs and Border Protection

CJIS FBI Criminal Justice Information Services

CPMS Customer Profile Management System

DHS Department of Homeland Security DNA deoxyribonucleic acid

DOS Department of State

FBI Federal Bureau of Investigation

ICE U.S. Immigration and Customs Enforcement

IDENT Automated Biometric Identification System

IdHS Identity History Summary

IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act

IMBRA International Marriage Broker Regulation Act

INA Immigration and Nationality Act

NTA Notice to Appear (issued to initiate removal proceedings under INA section 240)

OBIM DHS Office of Biometric Identity Management

RAIO Refugee, Asylum, and International Operations

SEVP Student and Exchange Visitor Program

TVPRA Trafficking Victims Protection Reauthorization Act

UAC Unaccompanied Alien Children

USCIS U.S. Citizenship and Immigration Services

USRAP United States Refugee Admissions Program

VAWA Violence Against Women Act

I. Public Participation

Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. The Department of Homeland Security (DHS) also invites comments that relate to the economic, environmental, or federalism effects that might result from this proposed rule. Comments that provide the most assistance to DHS will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

Instructions:

All submissions received must include the agency name and USCIS Docket No. USCIS-2019-0007 for this rulemaking. All comments received will be posted without change to

http://www.regulations.gov,

including any personal information provided.

Docket:

For access to the docket to read background documents or comments received, go to

http://www.regulations.gov.

II. Executive Summary

As previously stated, this rule proposes to amend DHS regulations concerning the use and collection of biometrics in the administration and enforcement of immigration and naturalization laws as well as the adjudication of benefit requests. This Executive Summary summarizes the changes made by this rule so readers may obtain a brief overview of the changes DHS proposes herein without reading the entire rule. DHS has included full legal citations of authorities, explanations, and more details regarding the proposed changes in the section of the main preamble that discusses the background, need, and authority for the change.

A. Purpose and Summary of the Regulatory Action

DHS has general and specific statutory authority to collect or require submission of biometrics from applicants, petitioners, and beneficiaries for immigration benefits; and from aliens upon their arrest for purposes of processing, care, custody, and initiation of removal proceedings.

As detailed in the Authority section of the preamble that follows this Executive Summary, the Immigration and Nationality Act (INA) at section 103(a), 8 U.S.C. 1103(a), provides general authority for DHS to collect or require submission of biometrics and specific authority in several sections.

DHS currently collects, stores, and uses biometrics for the following purposes: Conducting background checks to determine eligibility for a benefit or other request; document production associated with an application, petition, or other request for certain immigration and naturalization benefits or actions; and performing other functions related to administering and enforcing the immigration and naturalization laws such as identity verification upon issuance of a Notice to Appear (NTA) under section 240 of the INA.

This rule proposes changes to the regulations governing collection of biometrics for benefit requests administered by U.S. Citizenship and Immigration Services (USCIS). It also impacts U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), which have immigration enforcement responsibilities that may require collection, use, and storage of biometrics and use USCIS systems or service forms for which biometrics would be required by this rule. Those provisions are discussed further below. For example, ICE, Student and Exchange Visitor Program (SEVP) uses USCIS Form I-539, Application to Extend/Change Nonimmigrant Status, and Form I-765, Application for Employment Authorization Document. This rule generally does not propose to authorize CBP or ICE to expand biometrics collections beyond either agency's current, independent authorities. However, this rule does propose to authorize CBP and ICE to expand their current biometrics collections for immigration benefit requests to individuals under the age of 14 and authorizes collection of additional biometrics modalities.

For the purposes of this rule, DHS is including all requests processed by USCIS in the term “benefit request” or “immigration benefit request” although the form or request may not be to request a benefit. For example, deferred action is solely an exercise of prosecutorial discretion by DHS and not an immigration benefit, but would fit under the definition of “benefit request” at 8 CFR 1.2 for purposes of this rule.

The applicable statutory sections of each provision are explained in the body of the preamble which follows this Executive Summary.

DHS is precluded in many cases from approving, granting, or providing immigration benefits to individuals with a record of certain criminal offenses or administrative violations. Criminal histories are relevant because they are used to determine eligibility for both discretionary and non-discretionary immigration benefits. Therefore, DHS must include national security considerations and criminal history background checks in its adjudications. Several statutes authorize DHS to conduct biometric collection in relation to national security and public safety purposes, as well as for document production. Other statutes authorize DHS to collect the biometrics of U.S. citizen and lawful permanent resident petitioners of family-based immigrant and nonimmigrant fiancé(e) petitions to determine if a petitioner has been convicted of certain crimes. In addition, certain laws and executive branch guidance requires DHS to have a robust system for biometrics collection, storage, and use related to providing adjudicating immigration benefits and performing other functions necessary for administering and enforcing of immigration and naturalization laws.

Current regulations also provide both general authorities for the collection of biometrics in connection with administering immigration and naturalization benefits requests and administering and enforcing immigration laws. For example, any applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request may be required to appear for biometrics collection.

See

8 CFR 103.2(b)(9). DHS currently has authority to require an individual to submit biometric information to conduct background and security checks and perform other functions related to administering and enforcing immigration laws.

See

8 CFR 103.16(a). DHS proposes to change the regulations in a number of ways.

The immigration benefit request adjudications process requires DHS to verify the identity of an individual applying for or seeking to receive any benefit, and also requires national security and criminal history background checks to determine if such an individual is eligible for the benefit. The adjudication includes a review of the individual's current immigration status, current immigration filings, past immigration filings, and whether previous benefits were granted or denied. Immigration laws preclude DHS from granting many immigration and naturalization benefits to individuals with certain criminal or administrative violations, or with certain disqualifying characteristics, while also providing DHS discretion in granting an immigration benefit in many instances.

DHS conducts checks to determine if an individual has a history that could render him or her inadmissible or removable, a criminal record, an association with human rights violations, or involvement in terrorist activities or organizations. The current DHS biometric collection process for benefits adjudication begins with the collection of an individual's photograph, fingerprints, and signature at an authorized biometric collection site. Collections outside the United States may be conducted on behalf of DHS by other federal agencies. Under this rule, DHS may also require, request, or accept DNA (deoxyribonucleic acid) test results as evidence of genetic relationships.

While DHS has the authority to collect biometrics from any applicant, petitioner, sponsor, beneficiary, requestor, or individual filing or associated with a request, or to perform other functions related to administering and enforcing the immigration and naturalization laws, submission of biometrics is only mandatory for certain benefit requests and enforcement actions upon request of DHS. For all other benefit requests and enforcement actions, DHS must decide, in accordance with its statutory and regulatory authorities, if the request or enforcement action justifies collection of biometrics and notify the individual where they will be collected when a collection is warranted and for what purposes they will be used. DHS has decided that the more limited focus on background checks and document production is outdated because immigration benefit request adjudication and the enforcement and administration of immigration laws include verifying identity and determining whether or not the individual poses a risk to national security or public safety. DHS has decided that it is necessary to increase routine biometric collections to include individuals associated with immigration benefits and to perform other functions related to administering and enforcing the immigration and naturalization laws. Therefore, DHS proposes in this rule that any applicant, petitioner, sponsor, beneficiary, or individual filing or associated

with a certain benefit or request, including U.S. citizens and without regard to age, must appear for biometrics collection unless DHS waives or exempts the requirement.

In addition to removing the age restrictions in the context of adjudicating immigration benefit requests, DHS is also removing the age restrictions for biometrics collection in the context of Notice to Appear (NTA) issuance for the same purposes (

i.e.,

identity verification, national security and criminal history background checks, etc.).

See

Proposed 8 CFR 236.5.

By “associated” DHS means a person with substantial involvement in the immigration benefit request, such as a named derivative, beneficiary, petitioner's signatory, or co-applicant. DHS will not require biometrics to be submitted by agents, representatives, interpreters, preparers, or guardians.

The terms “file,” “submit,” “associated with” or variations thereof, as used throughout this rule, do not encompass attorneys and accredited representatives, although attorneys and accredited representatives may physically “file” or “submit” a request on behalf of a client.

DHS emphasizes that it is not proposing an absolute biometrics collection requirement. Rather, the purpose of this rule is to provide notice that every individual requesting a benefit before or encountered by DHS is subject to the biometrics requirement unless DHS waives or exempts it. This notice will be added to relevant forms in the Privacy Notice. The increased use of biometrics by DHS will include identity management in the immigration lifecycle, which will enable it to transition to a person-centric model to organize and manage its records, manage unique identities, verify immigration records, and will reduce reliance on biographic data for identity management in the immigration lifecycle. Biographic data possess inherent inconsistencies that could result in immigration benefits being granted to ineligible applicants or imposters. Using biometrics for identity verification and management in the immigration lifecycle will help ensure that an individual's immigration records pertain only to that individual, and help DHS locate, maintain, and update the individual's immigration status, previously submitted identity documentation, as well as certain biographic data. DHS proposes to collect biometrics at any age to ensure the immigration records created for children can be related to their adult records later, help combat child trafficking, smuggling, and labor exploitation by facilitating identity verification, while confirming the absence of criminal history or associations with terrorist organizations or gang membership.

DHS also plans to implement a program of continuous immigration vetting, and require that aliens be subjected to continued and subsequent evaluation to ensure they continue to present no risk of causing harm subsequent to their entry. This rule proposes that any individual alien who is present in the United States following an approved immigration benefit may be required to submit biometrics unless and until they are granted U.S. citizenship. The rule further proposes that a lawful permanent resident or U.S. citizen may be required to submit biometrics if he or she filed an application, petition, or request in the past and it was either reopened or the previous approval is relevant to an application, petition, or benefit request currently pending with DHS.

The changes to the use and collection of biometrics and expanded scope of populations also are pertinent to U.S. Immigration and Customs Enforcement (ICE) and the Executive Office for Immigration Review (EOIR), a component of the U.S. Department of Justice (DOJ), given that immigration judges and the Board of Immigration Appeals (BIA) are prohibited from granting relief or protection from removal to an alien 14 years of age or older unless an ICE attorney reports that all required “identity, law enforcement, or security investigations or examinations” have been completed.

See

INA section 262, and 8 CFR 1003.1(d)(6), 1003.47(g). ICE relies, in part, on USCIS biometric collection in this regard. Further, DHS has leeway in terms of the exact types of such background and security checks.

See Background and Security Investigations in Proceedings Before Immigration Judges and the Board of Immigration Appeals,

70 FR 4743, 4744 (2005) (“There is no need for this rule to specify the exact types of background and security checks that DHS may conduct with respect to aliens in proceedings.”).

DHS recognizes that removing the age restrictions associated with biometrics collection in DHS regulations, without removing the age restrictions in DOJ EOIR regulations, could create disparate processes for biometric collections in immigration adjudications. Specifically, a child under 14 may be required to submit biometrics for an application submitted to USCIS, but the same child would be exempt from biometrics for an application submitted with DOJ EOIR. These disparate authorities could also cause confusion given USCIS collects biometrics at its ASCs for many applications and petitions adjudicated by EOIR. However, DHS and DOJ will continue to be bound by their respective regulations. To the extent that any controversy may arise interpreting DHS and DOJ regulations regarding the removal of age restrictions for biometrics collection, until DOJ removes its age restrictions DHS intends to follow DOJ regulations with respect to age restrictions when collecting

biometrics for an application or petition that will be adjudicated by EOIR.

DHS anticipates that by removing age restrictions on the collection of biometrics this rule will enhance the ability of ICE and CBP to identify fraudulent biological relationships claimed at the border and upon apprehension.

Under the current interpretation of the

Flores

Settlement Agreement, DHS typically releases alien minors apprehended at the border from its detention facilities within 20 days—often in conjunction with the adults with whom these minors were encountered. This may encourage the proliferation of fraudulent family unit schemes wherein unrelated adults and children claim biological relationships in order to secure prompt release into the United States. Alien smuggling organizations are aware of this loophole and are taking full advantage of it, placing children into the hands of adult strangers, so they can pose as families and be released from immigration custody after crossing the border, creating another safety issue for these children. DHS's ability to collect biometrics, including DNA, regardless of a minor's age, will allow DHS to accurately verify or refute claimed genetic relationships among apprehended aliens and ensure that unaccompanied alien children (UACs) are properly identified and cared for.

To clarify, DHS is not proposing DNA collection at ports of entry.

For example, between July 2019 and November 2019, DHS, identified 432 incidents of fraudulent family claims by conducting a Rapid DNA testing under a pilot program named Operation Double Helix. This is over 20% of the total family units tested (1,747).

Regarding the use of DNA evidence, where evidence of a relationship is required, this rule proposes to grant DHS express authority to require, request, or accept DNA test results from relevant parties as evidence of a claimed genetic relationship.

DHS recognizes that there are qualifying family members, such as adopted children, who do not have a genetic relationship to the individual who makes an immigration benefit request on their behalf. To the extent the rule discusses using DNA evidence to establish qualifying relationships in support of certain immigration benefit requests, it is referring only to genetic relationships that can be demonstrated through DNA testing. Current regulations generally require documentary evidence such as marriage and birth certificates, and secondary evidence such as medical records, school records, religious documents, and affidavits to support claims based on familial relationships. DHS currently does not have in place express regulatory provisions to require, request, or accept DNA testing results to prove genetic relationships, but because documentary evidence may be unreliable or unavailable, in some situations, individuals are allowed to voluntarily submit DNA test results. Under this rule, DHS may expressly require, request, or accept DNA evidence to demonstrate the existence of the claimed genetic relationship. DHS proposes to treat raw DNA (the physical sample taken from the applicable individual) that is taken as a distinctive biometric modality from the other biometric modalities it is authorized to collect, and not handle or share any raw DNA for any reason beyond the original purpose of submission (

e.g.,

to establish or verify a claimed genetic relationship), unless DHS is required to share by law. DNA test results, which include a partial DNA profile, like other evidence of a familial relationship, becomes part of the record, and DHS will store and share DNA test results, which include a partial DNA profile, for adjudication purposes, or to perform any other functions necessary for administering and enforcing immigration and naturalization laws, to the extent permitted by law.

This rule is not concerned with, and creates no authority to limit, DNA sample collection required by 34 U.S.C. 40702(a)(1)(A) and 28 CFR 28.12 from individuals who are arrested, facing charges, or convicted and from non-United States persons who are detained under the authority of the United States.

In recent years, government agencies have grouped together identifying features and actions, such as fingerprints, photographs, and signatures under the broad term, biometrics. The terms, biometric “information,” “identifiers,” or “data,” are used to refer to all of these features, including additional features such as iris image, palm print, DNA, and voice print.As a result, DHS has adopted the practice of referring to fingerprints and photographs collectively as “biometrics,” “biometric information,” or “biometric services.” Most laws on the subject do not specify individual biometric modalities such as iris image, palm print, voice print, DNA, and/or any other biometric modalities that may be collected from an individual in the future. DHS is proposing to update the terminology in the applicable regulations to uniformly use the term “biometrics.” DHS seeks to utilize a single, inclusive term comprehensively throughout regulations and form instructions. DHS proposes to define the term, “biometrics,” to clarify and fully explain its authority to collect more than just “fingerprints” in connection with administering and enforcing the immigration and naturalization benefits or other services, and to expressly define “biometrics” to include a wider range of modalities than just fingerprints and photographs. DHS proposes to define the term “biometrics” to mean “the measurable biological (anatomical and physiological) or behavioral characteristics used for identification of an individual,” including a list of modalities of biometric collection.

See

proposed 8 CFR 1.2. Further, DHS proposes the following biometrics as authorized biometric modalities that DHS may request, require, or accept from individuals in connection with services provided by DHS and to perform other functions related to administering and enforcing the immigration and naturalization laws:

• Fingerprint;

• palm print;

• photograph (facial images specifically for facial recognition, as well as photographs of physical or anatomical features such as scars, skin marks, and tattoos);

• signature;

• voice print;

• iris image; and

• DNA (DNA test results, which include a partial DNA profile attesting to genetic relationship).

The proposed definition of biometrics would authorize the collection of specific biometric modalities and the use of biometrics for: Identity enrollment, verification, and management in the immigration lifecycle; national security and criminal history background checks to support determinations of eligibility for immigration and naturalization benefits; the production of secure identity documents; and to perform other functions related to administering and enforcing the immigration and naturalization laws. DHS has internal procedural safeguards to ensure technology used to collect, assess, and store the differing modalities is accurate, reliable, and valid. Further, as with any other USCIS petition or application, if a decision will be adverse to an applicant or petitioner and is based on derogatory information the agency considered, he/she shall be advised of that fact and offered an opportunity to rebut the information. 8 CFR 103.2(b)(16)(i). DNA, while a biometric, would only be collected in limited circumstances to verify the existence of a claimed genetic relationship. To conform to the proposed changes that would expand biometric collection, DHS proposes to

remove individual references to “fingerprints,” “photographs,” and/or “signatures” and replace them with the term “biometrics.”

DHS originally codified restrictions on the ages of individuals from whom biometrics could be collected based on the policies, practice, or technological limitations. For biometrics use to expand to identity management and verification in the immigration lifecycle, this rule would allow for biometric collection from any individual, without age limitation; thus, DHS proposes to remove all age limitations or restrictions on biometrics collection from the regulations in the context of both immigration benefit requests, entering or exiting the United States, NTA issuance, and to perform other functions related to administering and enforcing the immigration and naturalization laws.

DHS also proposes to consolidate sections of 8 CFR providing what USCIS can or will do with an immigration benefit request when required biometrics are not submitted and how biometrics appointments can be rescheduled. In addition, DHS is proposing to remove and/or replace language that applies to paper filings with language that encourages electronic filing. References to position titles, form numbers, mailing addresses, copies, and office jurisdiction are proposed to be removed. In addition, internal USCIS processes are proposed to be removed from the regulatory text. DHS is also proposing to clarify submission of passport-style paper photographs with certain applications or petitions, and eliminating outdated requirements for submitting photographs with immigration benefit requests. Photograph submission and use requirements of the INA would be met in the future by electronic photograph collection.

DHS is also proposing to require biometrics from U.S. citizens or lawful permanent residents when they submit a family-based visa petition. DHS has determined that U.S. citizen and lawful permanent resident petitioners must submit biometrics in order for DHS to comply with the Adam Walsh Child Protection and Safety Act of 2006 (AWA),

which prohibits DHS from approving family-based immigrant visa petitions and nonimmigrant fiancé(e) visa petitions if the petitioner has been convicted of certain offenses. In addition, the International Marriage Broker Regulation Act (IMBRA)

provides that petitioners for an alien fiancé(e) or alien spouse must submit criminal conviction information for certain crimes. To comply with AWA and IMBRA, DHS proposes to require biometrics from all family-based petitioners, which would allow DHS to review a Federal Bureau of Investigation (FBI) report of the petitioner's criminal history. The proposed requirement would extend to family-based petitions for a spouse, fiancé(e), parent, unmarried child under 21 years of age, unmarried son or daughter 21 years of age or over, married son or daughter of any age, sibling, and any derivative beneficiary immigrant or nonimmigrant visa based on a familial relationship.

Public Law 109-248, section 402; 120 Stat. 587, 622 (July 27, 2006); INA 204(a)(1)(A)(viii) & (B)((i)(I).

Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119 Stat. 2960 (2006); and (VAWA 2013), Public Law 113-4, sections 807-8, 127 Stat. 54, 112-17; 8 U.S.C. 1375a); INA sections 214(d)(1), (3).

DHS proposes to require Violence Against Women Act (VAWA) self-petitioners appear for biometric collection, and to remove the requirement that self-petitioners who have resided in the United States submit police clearance letters as evidence of good moral character because DHS will be able to obtain the self-petitioner's criminal history using the biometrics. VAWA self-petitioners are currently required to provide (1) a personal statement from the self-petitioner, (2) police clearance letters from the self-petitioner's places of residence for the three years before filing, and (3) other credible evidence, including affidavits from third parties attesting to the self-petitioner's good moral character. DHS proposes to require biometrics from VAWA self-petitioners to obtain the self-petitioner's criminal history and support identity enrollment, verification, and management in the immigration lifecycle and conduct national security and criminal history background checks. The proposed change will reduce the evidence required to establish good moral character for many self-petitioners, however law enforcement clearances are still required for self-petitioners who recently resided outside the United States. In addition, DHS proposes that good moral character for a VAWA self-petitioner may extend beyond the three years immediately before filing.

See

generally 8 CFR 316.10(a)(2). DHS further proposes to remove the automatic presumption of good moral character for VAWA self-petitioners under 14 years of age. Self-petitioners under 14 would submit biometrics like any other VAWA self-petitioner. Similarly, DHS proposes to eliminate the requirement that T nonimmigrant adjustment of status applicants submit self-reported police clearance letters, unless they lived outside the United States during the requisite period. Adjudicators would assess good moral character based on the applicant's criminal history, national security background check, and any other credible and relevant evidence submitted. DHS also proposes to amend 8 CFR 245.23(g) to refer to the relevant “continuous period” rather than “continued presence,” and to provide that USCIS would be able to consider the applicant's conduct beyond the requisite period, where earlier conduct is relevant to the applicant's moral character and conduct during the requisite period does not reflect a reform of character.

DHS also proposes to remove the presumption of good moral character for T nonimmigrant adjustment of status applicants under 14 years of age. The rule provides that such applicants will submit biometrics that USCIS will use in the determination of good moral character and provides USCIS with the authority to require additional evidence of good moral character. Proposed 8 CFR 245.23(g). The proposed changes would remove the superfluous need for police clearance letters from T nonimmigrant adjustment applicants.

DHS proposes to collect biometrics and perform background checks on U.S. citizen and lawful permanent resident principals of a regional center.

See

Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Public Law 102-395, 106 Stat. 1828, 8 U.S.C. 1153 note (“Such pilot program shall involve a regional center in the United States for the promotion of economic growth[.]”). USCIS would review the results of national security and criminal history background checks in order to decide whether the principals of the intending or existing regional center, and the regional center itself, are bona fide and capable of credibly promoting such economic growth. This proposal would provide USCIS relevant information regarding whether the regional center will, or is continuing to, promote economic growth in accordance with regional center program requirements.

DHS also proposes to remove 8 CFR 216.4(b)(1) and (2), and 216.6(b)(1) and (2) to clarify interview procedures for conditional permanent residents, to reduce potential redundancies, and ensure greater uniformity within DHS operations.

DHS does not plan to immediately expand all of its programs to provide that all new biometrics modalities would be required of all potentially amenable individuals as of the effective date of a potential final rule. Only those revised forms that propose to add a particular biometric collection or DNA submission requirement in conjunction with this rule (as described in the Paperwork Reduction Act (PRA) section of this preamble) will be immediately subject to new biometrics, modalities, or DNA requirements. DHS proposes that DHS component agencies may expand or contract their biometrics submission requirements within the parameters of this rule in the future by notice in the

Federal Register

or updated form instructions.

USCIS is authorized to collect an $85 biometric services fee, but has proposed to incorporate the biometric services costs into the underlying immigration benefit request fees for which biometric services are applicable in a recent final rule.

See U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,

85 FR 46788 (Aug. 3, 2020) (Fee Rule). The $85 biometric services fee required by 8 CFR 103.7(b)(1)(i)(C) that DHS estimates will be collected as a result of this proposed rule will not be collected if the Fee Rule takes effect before this rule does.

B. Summary of Costs and Benefits

DHS proposes to expand the collection of biometrics to require any individual filing or associated with an immigration benefit or request to appear for biometrics collection, and, if applicable, pay the $85 biometric services fee unless exempted or waived from appearing and/or paying for such biometrics collection. This proposed rule would also change current regulations by defining the term “biometrics” to clarify and fully explain DHS's regulatory authority to collect biometrics information. The proposal to expand the collection of biometrics would impact certain populations without regard to age or U.S. citizenship status. Additionally, DHS proposes to further clarify the purposes for which biometrics are collected, stored, and utilized. Last, this rule proposes that DHS may require, request, or accept the submission of DNA or DNA test results to verify a claimed genetic relationship.

DHS estimates that under the proposed rule, from those seeking an immigration benefit, about 2.17 million new biometrics submissions will be collected annually, and the resulting biometrics submitting population will increase from 3.90 million currently to 6.07 million, and, from a generalized collection rate across all forms of 46 percent currently to 71.2 percent (projected). The increase in biometrics submissions would accrue to three population segments: (i) A small subset of forms in which biometrics collection is collected routinely in which the age-eligible population will expand; (ii) the broadening of routine collection to a dozen or so forms in which collection is not currently routine; and (iii) the expansion of the age-eligible biometrics population to a collection of forms characterized by very low filing volumes, unspecified forms, and forms in which DHS does not intend to broadly extend collection on a routine basis at this time. USCIS is also removing the age restrictions for biometrics collection in the context of an NTA issuance. However, the issuance of an NTA is not an “application, petition, or other request for certain immigration and naturalization benefits.”

See

8 CFR 103.7(b)(1)(i)(C). For this stated reason, USCIS will not (and does not currently) collect the $85 biometrics services fee from those whose DNA was collected in the course of being issued NTAs or for other immigration law enforcement purposes. Based on FY 2018 statistics, the proposed rule, could result in DHS collecting biometrics from as many as 63,000 additional individuals under the age of 14 years annually associated with NTAs.

To be clear, DHS is not estimating that this rule would result in the issuance of 63,000

additional

NTAs by its components; rather, 63,000 NTAs were issued in FY 2018 to minors under the age of 14 who would be subject to biometric collection (for the purpose of verifying identify) under the parameters of this proposed rule.

The proposed rule would expand the collection of the $85 biometric services fee to include any individual appearing for biometrics collection in connection with a benefit request unless the individual is statutorily exempt from paying the biometric services fee or if he or she has received a fee waiver. DHS estimates that there will be 1.63 million new biometrics fee payments annually. The annual quantified costs associated with submitting new biometrics submissions could be $158.9 million, and the costs associated with the new fees could be $138.4 million, for a combined total of $297.3 million in quantified costs. There could be some unquantified impacts related to privacy concerns for risks associated with the collection and retention of biometric information, as discussed in DHS's Privacy Act compliance documentation. However, this rule would not create new impacts in this regard but would expand the population that could have privacy concerns. When costs of $705,555 are incorporated to include fees the FBI would collect for providing fingerprint-based and name-based Criminal History Record Information (CHRI) checks for NTAs, the annual costs are about $298 million.

In addition, DHS proposes to expand its regulatory authority so that it may require, request, or accept DNA or DNA test results, which include a partial DNA profile, to prove the existence of a genetic relationship for any benefit request where such a relationship must be established, such as certain family-based benefit requests, including but not limited to the following:

• Petition for Alien Relative (Form I-130);

• Refugee/Asylee Relative Petition (Form I-730);

• Application for T Nonimmigrant Status, Supplement A (Form I-914A);

• Petition for U Nonimmigrant Status, Supplement A (Form I-918A);

• Petition for Qualifying Family Member of a U-1 Nonimmigrant (Form I-929);

• Application for Certificate of Citizenship (Form N-600);

• Application for Citizenship and Issuance of Certificate Under Section 322 (Form N-600K);

• And any other form where the existence of a genetic relationship is at issue for a beneficiary, dependent, derivative, rider, or other qualifying family member.

DHS is not proposing with this rule to require in all cases proof of a genetic relationship submission in connection with these forms via raw DNA or DNA test results, which include a partial DNA profile. However, the rule will allow immediately for DHS, in its discretion, to request, require, or accept DNA or DNA test results, which include a partial DNA profile, for individual benefit requests requiring proof of a genetic relationship. Since the actual volume cannot be predicted at this time with accuracy, DHS conducted a sensitivity analysis using a range of 10 to 100 percent to estimate the potential costs for eligible populations associated with these family-based benefit requests. The costs to principal filers and beneficiaries/qualifying family members who may submit DNA or DNA test results, which include a partial DNA profile, to establish a genetic relationship in support of these benefit requests would range from $22.4 million to $224.1 million annually, in undiscounted terms.

Combining the cost of the biometrics collection (in both the benefits and law

enforcement contexts) with the DNA costs, DHS estimated the total monetized costs of the proposed rule at three points of the DNA submission range, to represent a lower bound (10 percent), a midrange (50 percent), and a high range (90 percent). In undiscounted terms, the ten-year (2021-2030) costs could range from $3,204.1 to $4,996.9 million, with a midrange of $4,100.5 million. At a 3 percent rate of discount, the ten-year present values could range from $2,773.2 million, to $4,262.4 million, with a midrange of $3,497.8 million. At a 7 percent rate of discount, the ten-year present values could range from $2,250.4 million to $3,509.6 million, with a midrange of $2,880.0 million. The average annualized equivalence costs could range from $320.4 million to $499.7 million, with a midrange of $410 million.

The proposed rule would provide benefits that are not possible to quantify. Qualitatively, the proposed rule would provide individuals requesting certain immigration and naturalization benefits with a more reliable system for verifying their identity when submitting a benefit request. This would limit the potential for identity theft while also reducing the likelihood that DHS would be unable to verify an individual's identity and consequently deny the benefit. In addition, the proposal to allow individuals to use DNA testing as evidence to demonstrate the existence of a claimed genetic relationship would provide them the opportunity to demonstrate a genetic relationship using a quicker and more effective technology than the blood testing method currently provided for in the regulations.

See

8 CFR 204.2(d)(2)(vi).

The proposed rule would benefit the U.S. Government by enabling DHS with more fidelity and efficiency in identity verification, identity management in the immigration lifecycle, and vetting of individuals seeking certain immigration and naturalization benefits, as well as in DHS functions related to law enforcement purposes. The expanded use of biometrics stands to provide DHS with the improved ability to identify and limit fraud because biometrics technology measures unique physical characteristics that are more difficult to falsify than documentary evidence of biographic information, when collected under controlled circumstances and retained and used for a limited period of time. Biometrics would also help reduce the administrative burden involved in identity verification and the performance of criminal history checks, by reducing the need for manual document review and name-based security checks. The proposed rule also would enhance the U.S. Government's capability to identify criminal activity and protect vulnerable groups by supporting identity enrollment and verification in the immigration lifecycle by extending the collection of biometrics to populations under certain benefit requests.

Table 1 provides a more detailed summary of the proposed provisions and their impacts.

Table 1—Summary of Provisions and Impacts

Proposed change

Expected cost of the provision

Expected benefit of the provision

DHS proposes to expand collection of biometrics to require any individual filing or associated with an immigration benefit or request to appear for biometrics collection without regard to age

Individuals Submitting Biometrics—

Quantitative:

• Total annual direct costs of the proposed rule:

○ $158,940,196 for about 2.17 million

individuals to submit

biometrics

○ $138,356,283 for about 1.63 million new $85 biometric services fees

Individuals Submitting Biometrics—

Qualitative:

• The proposed rule provides individuals requesting certain immigration and naturalization benefits with a more reliable system for verifying their identity when submitting a benefit request. This would limit the potential for identity theft. It would also reduce the likelihood that DHS would not be able to verify an individual's identify and therefore possibly deny a benefit request.

Government—

Qualitative:

• DHS would be able to routinely collect biometrics information from children under the age of 14, and therefore, increase the U.S. Government's capabilities of determining the identity of a child who may be vulnerable to gang affiliation, human trafficking child sex trafficking, forced labor exploitation, and alien smuggling.

• The proposed rule would provide a benefit to the U.S. Government by enabling DHS to know with greater certainty the identity of individuals requesting certain immigration and naturalization benefits. The expanded use of biometric information would provide DHS with the ability to limit identity fraud because biometrics technologies measure unique physical characteristics and more difficult to falsify than biographic documents.

DHS proposes to increase the biometric modalities that it uses to collect biometrics information for benefits adjudication and law enforcement purposes to include the following: Palm prints, facial and iris image, and voice prints

Government—

Qualitative:

• DHS does not know what the costs of expanding biometrics collection to the government in terms of assets and equipment; it is possible that costs could be incurred for the new equipment and information technologies and typologies needed to collect, process, store, and utilize biometrics, including software updates; cameras that are able to collect iris and facial images; devices used to record a voice print; and other equipment

Government—

Qualitative:

• Use of the new biometric technologies would allow DHS to keep up with technological developments in this area and adjust collection practices for both convenience for applicants and petitioners and to ensure the improved service for all stakeholders.

DHS may require, request, or accept the submission of DNA or DNA test results, which include a partial DNA profile, to verify the existence of a claimed genetic relationship for benefits adjudication and law enforcement purposes

Individuals Submitting DNA Evidence—

Quantitative:

• Potential annual costs for principal filers and beneficiaries/qualifying family members to submit DNA evidence range from $22.4 million to $224.1 million. These figures are based on current costs and depend on how many individuals submit DNA evidence in support of a family-based benefit request

Individuals Submitting DNA test result Evidence—

Quantitative:

• DNA testing would provide a means to demonstrate a claimed genetic relationship using a quicker and more effective technology than the current reliance on primary and secondary records and document-based evidence that may be unreliable or unavailable.

• There will be no cost to the individuals from whom DHS will require DNA sample for law enforcement purposes

Government—

Qualitative:

• USCIS facilitates collection of DNA from individuals outside the United States for transmission to accredited laboratories in the United States to ensure proper chain of custody. USCIS currently reimburses the Department of State for the collection of DNA in countries where it does not have a presence. DHS does not currently know how many individuals would submit DNA under the proposed rule but there is the potential for additional costs if the Department of State facilitates additional DNA testing

DHS is proposing to remove the age restrictions for biometrics collection in the context of Notice to Appear (NTA) issuance for the same reasons (

i.e.,

identity verification, criminal history background checks, etc.)

Individuals Submitting Biometrics—

Quantitative:

None; there would be no opportunity or travel related costs associated with biometrics collection from individuals for NTAs

Individuals Submitting Biometrics

Government—

Qualitative:

The collection of biometrics on children under the age of 14 associated with NTAs would significantly assist DHS in its mission to combat human trafficking, child sex trafficking, forced labor exploitation, and alien smuggling.

Government—

Quantitative:

There could be costs of $705,555 annually accruing to fees the FBI would collect for providing fingerprint-based and name-based Criminal History Record Information (CHRI) checks

In addition to the impacts summarized above and as required by Office of Management and Budget (OMB) Circular A-4, Table 2 presents the prepared accounting statement showing the costs associated with this proposed regulation.

OMB Circular A-4 is

available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.

The DHS notes that the primary estimate reported here reflects the average of the highest 50 percent DNA submission rate (100 percent) and the lowest (0 percent). It also corresponds to the 50 percent midrange along the spectrum 10-90 percent that we utilize on grounds that realistically, there will be some collection (a positive rate) but not complete (100 percent) collection.

Table 2—OMB A-4 Accounting Statement

[$ millions, 2019]

See also

8 U.S.C. 1732(b) (requiring machine-readable travel and entry documents containing biometric identifiers); 8 CFR 264.1(b); Application to Register Permanent Residence or Adjust Status (Form I-485); Application to Replace Permanent Resident Card (Form I-90); Application for Employment Authorization (Form I-765); Application for Certificate of Citizenship (Form N-600); Application for Naturalization (Form N-400); Application for Replacement Naturalization/Citizenship Document (N-565).

The paper photograph is retained and may be used to verify the identity of an applicant who is required to be interviewed by comparing it to the digitally captured photograph or the applicant's motor vehicle operator's license.

As part of the benefit adjudications process, DHS must first verify the identity of an individual applying for or seeking any benefit. Identity verification protects against fraud and imposters. Second, DHS must determine if the individual is eligible to receive the requested benefit. That determination may focus on the criminal, national security, and immigration history of the individual, depending on the eligibility requirements for the particular benefit type, and is accomplished through national security and criminal history background checks.

The immigration history review includes a review of the individual's current immigration status, current immigration filings, past immigration filings, and whether previous benefits were granted or denied. DHS conducts national security and criminal history background checks on individuals applying for an immigration benefit because U.S. immigration laws preclude DHS from granting many immigration and naturalization benefits to individuals with certain criminal or administrative violations, or with certain disqualifying characteristics (

e.g.,

certain communicable diseases or association with terrorist organizations), while also providing DHS discretion in granting an immigration benefit in many instances.

See, e.g.,

INA section 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A) (mandatory bars to asylum); INA section 245(a)(2), 8 U.S.C. 1255(a)(2) (admissibility requirements for adjustment of status applicants); INA section 316(a)(3), 8 U.S.C. 1427(a)(3) (good moral character requirement for naturalization).

DHS conducts multiple types of national security and criminal history background checks including but not limited to: (1) Name-based checks, (2) FBI fingerprint-based checks, and (3) biometrics checks against the Automated Biometric Identification System (IDENT), the FBI Next Generation Identification system, and the Department of Defense (DoD) Automated Biometric Identification System (ABIS).).

21 22 23

DHS also uses biometrics to determine if an individual has activities in their background such as an association with human rights violations, involvement in terrorist activities, or affiliation with terrorist organizations rendering them inadmissible. To that end, DHS may vet an individual's biometrics against data sets of foreign partners in accordance with international arrangements.

IDENT will be replaced by a system called the Homeland Advanced Recognition Technology (HART). DHS will use the term “IDENT” in this rule to refer to both the current and successor systems.

The FBI NGI system is operated by the FBI/CJIS Division, and provides the criminal justice community with multi-modal biometric and criminal history information.

See

Privacy Impact Assessment Update for Biometric Interoperability Between the U.S. Department of Homeland Security and the U.S. Department of Justice (Oct. 13, 2011). FBI's NGI database, in turn, also provides access to DoD's ABIS database.

DoD's ABIS system is operated by the DoD, and contains biometric records of individuals encountered overseas by the DoD that include KSTs. The biographic and biometric data from ABIS is also transferred to the DoD's Special Operations Force Exhibition (SOFEX) Portal for additional biometric matching. Once complete, the NGI system forwards responses back from both the NGI and the ABIS systems to the IDENT system. When data is initially submitted and processed through IDENT, NGI, and ABIS, an ICE Analyst conducts biometric and biographic checks against other law enforcement and classified Intelligence Community databases before processing, exploiting, summarizing, and disseminating findings to the relevant ICE Attaché and Biometric Identification Transnational Migration Alert Program (BITMAP) PMT.

See, e.g.,

Five Country Conference High Value Data Sharing Protocol, Nov. 2009; Statement of Mutual Understanding on Information Sharing among the Department of Citizenship Immigration Canada (CIC) and the U.S. Immigration and Naturalization Service (INS) and the U.S. Department of State (DOS), Feb. 2003; Agreement between the U.S. and Canada for the sharing of Visa and Immigration Information, Dec. 13, 2012, T.I.A.S. No. 13-1121; and Agreement between the

U.S. and the Government of the United Kingdom of Great Britain and Northern Ireland for the Sharing of Visa, Immigration, and Nationality Information, April 18, 2013, T.I.A.S. No. 13-1108.

The DHS biometrics process for benefits adjudication purposes begins with the collection of an individual's biometrics at an authorized biometrics collection site, including DHS offices, ASCs, military installations, U.S. consular offices abroad, and, in some cases, federal, state, and local law enforcement installations. Domestically, DHS established a robust program to allow individuals to provide biometrics at ASC facilities, and generally individuals are scheduled to appear at a location close to their address of record. DHS also established mobile biometrics collection capabilities domestically for those who are homebound, or for certain remote locations, as well as outside the United States to support biometrics collection in the United States Refugee Admissions Program (USRAP). For other collections outside the United States, biometrics may be handled differently. When biometrics are required on a DHS-adjudicated form and DHS does not have a presence in that country, the Department of State (DOS) will continue to collect biometrics on behalf of DHS. In cases where DOS will issue a boarding foil, immigrant visa, or non-immigrant visa associated with a DHS form, DOS will continue to collect biometrics under its existing authority.

Currently, DHS biometrics consist of a photograph, fingerprints, and signature to conduct identity, eligibility, national security, criminal history background checks, and in certain situations, voluntary DNA testing to verify a claimed genetic relationship. For certain family-based benefit requests, where other evidence proves inconclusive, DHS accepts DNA test results obtained from approved laboratories (along with other necessary identifiers, such as a name and date of birth), as evidence to assist in establishing the existence of genetic relationships.

See

8 CFR 204.2(d)(2)(vi). In these limited cases, DHS requires that DNA test results establish a sufficient probability of the existence of the alleged relationship to be accepted as probative evidence of that relationship.

DHS is bound by the confidentiality provisions of Section 1367 of title 8 of the U.S. Code, “Penalties for disclosure of information” (originally enacted as Section 384 of the Illegal Immigrant Reform and Immigrant Responsibility Act of 1996 (IIRIRA)). All DHS officers and employees are generally prohibited from permitting use by or disclosure to anyone other than a sworn officer or employee of DHS, DOS, or DOJ of any information relating to a beneficiary of a pending or approved request for certain victim-based immigration benefits, such as an abused spouse waiver of the joint filing requirement, a VAWA self-petition by a spouse or child of an abused U.S. citizen or lawful permanent resident, VAWA cancellation of removal or suspension of deportation, or application for T or U nonimmigrant status, including the fact that they have applied for such a benefit. Importantly, the protection against disclosure extends to all records or other information, including those that do not specifically identify the individual as an applicant or beneficiary of the T Visa, U Visa, or VAWA protections. Therefore, the biometric collection contemplated here would also be protected from disclosure in accordance with the requirements and exceptions found in 8 U.S.C. 1367. Thus, DHS has not separately codified the Section 1367 protections in this proposed rule.

IV. Discussion of Proposed Changes

A. Use Biometrics for Identity Management and Enhanced Vetting

DHS requires the submission of biometrics for several immigration benefit requests and for law enforcement purposes, including functions incident to apprehending, arresting, processing, and care and custody of aliens.

In addition, DHS has the authority to require biometrics and the associated biometric services fee from any applicant, petitioner, sponsor, beneficiary, or requestor, or individual filing a request on a case-by-case basis, through form instructions or as provided in a

Federal Register

notice. 8 CFR 103.2(b)(9), 103.7(b)(1)(i)(C), 103.17. Under that construct, although DHS has the authority to collect biometrics from any applicant, petitioner, sponsor, beneficiary, or requestor, or individual filing a request, biometrics are only mandatory for certain benefit requests. For all others, DHS must decide if the benefit requested, or circumstances of the request, justifies collection of biometrics and, if so, notify an individual that their biometrics are required along with when and where they should be collected.

See, e.g.,

8 CFR 204.310(a)(3)(ii), 210.2(c)(2)(i), 210.5(b)(2), 212.7(e)(3)(i), 214.11(d)(5)-(7), 214.11(m)(2), 214.2(w)(15), 244.6, 244.17, 245.15(g)(1), 245.21(b), 245a.2(d), 245a4(b)(4), 248.3, 1(a)-(b).

DHS's use of biometrics for criminal history background checks and document production is outdated and not fully in conformity with current biometrics use policies by government agencies.

In addition, as outlined above, DHS has the legal authority to administer and enforce immigration laws and collect biometrics when such information is necessary to that authority. For individuals, any adjudication necessarily includes verifying identity and determining whether or not the individual poses a risk to national security or public safety in those instances where these factors may impact eligibility for an immigration benefit and upon arrest of an alien for purposes of processing, care, custody, and initiation of removal proceedings.

See, e.g., Individuals with Multiple Identities in Historical Fingerprint Enrollment Records Who Have Received Immigration Benefits,

Department of Homeland Security, Office of Inspector General, Office of Inspections and Special Reviews, OIG-17-111 (Sept. 2017);

Potentially Ineligible Individuals Have Been Granted U.S. Citizenship Because of Incomplete Fingerprint Records,

Department of Homeland Security, Office of Inspector General, Office of Inspections and Special Reviews, OIG-16-130 (Sept. 2016);

Review of U.S. Citizenship and Immigration Services' Alien Security Checks,

Department of Homeland Security, Office of Inspector General, Office of Inspections and Special Reviews, OIG-06-06 (Nov. 2005).

Biometrics collection upon apprehension or arrest by DHS will accurately identify the individuals encountered, and verify any claimed genetic relationship. This in turn will allow DHS to make better informed decisions as to the processing, transporting, and managing custody of aliens subject to DHS's law enforcement authorities. Having more reliable data about detainees' identities will increase safety of DHS detention facilities for both DHS law enforcement officers and the detainees. It would also eliminate an incentive that currently exists for unscrupulous individuals to jeopardize the health and safety of minors to whom they are unrelated, transporting the minors on a dangerous journey across the United States border, and claiming to be the parents of unrelated minors in order to claim to be a “family unit” and thus obtain a relatively quick release from DHS custody.

Thus, DHS decided that it is necessary to increase the use of collected biometric information beyond only eligibility and admissibility determinations to include identity management in the immigration lifecycle and continuous immigration vetting. To accomplish this goal, DHS proposes in this rule to flip the current construct from one where biometrics may be collected based on past practices, regulations, or the form instructions for a particular benefit, to a system under which biometrics are required for any immigration benefit

request unless DHS determines that biometrics are unnecessary. Therefore, DHS proposes that any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with a benefit or other request, including U.S. citizens and without regard to age, must appear for biometrics collection, unless DHS or its designee affirmatively decides to not issue a biometrics appointment notice to the individual, or unless DHS waives or exempts the requirement in the form instructions, a

Federal Register

notice, or as otherwise provided by law or regulation. DHS may waive or exempt the biometrics requirement at its discretion or based on a request for reasonable accommodation.

See

proposed 8 CFR 103.16(a)(1). The Department will make reasonable efforts that are also consistent with the Government's need for biometrics in certain contexts, and will follow all required procedures that are applicable under the Americans with Disabilities Act and the Federal Rehabilitation Act.

As explained more fully later in this preamble, DHS is not proposing that the requirement that any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with a benefit or other request, including U.S. citizens and without regard to age, must appear for biometrics collection will apply to DNA.

However, DHS does not propose to impose an absolute biometrics collection requirement in all instances for all forms filed with the agency.

There may be limited circumstances where biometric collection would be unnecessary or duplicative. A particular application or petition (

e.g.,

an inadmissibility waiver request) may not require its own biometric collection because a different application or petition filed in conjunction with the first application or petition already carries a biometrics collection requirement. Under limited circumstances, DHS proposes to retain discretion to exempt certain forms from the biometric collection requirement because it would result in waste or redundancy to both the agency and the public. For example, when an applicant files an Application to Register Permanent Residence or Adjust Status (Form I-485) biometrics are collected from all applicants. However, if the same applicant also files an Application for Waiver of Grounds of Inadmissibility (Form I-601) due to an inadmissibility concern, that form is associated with the Form I-485. There is no need to independently require biometrics collection in conjunction with Form I-601 because DHS is already collecting biometrics in association with Form I-485. Form I-601 would never be filed without an associated form carrying a biometrics collection requirement (

i.e.,

an immigrant visa application, adjustment of status application, certain non-immigrant visa applications, etc.).

Only certain family-based benefit requests would be impacted by the proposed provision to allow, request, or require DNA evidence to establish a claimed genetic relationship.

In this type of situation, DHS recognizes that there is no value in imposing a biometric collection for forms that are only filed in conjunction with other forms that already require biometrics collection. Consequently, the DHS forms that are being revised and posted in accordance with the PRA for public comments do not include an absolute requirement for biometrics collection. Instead, the revised form instructions put the applicant on notice that every individual who is an applicant, petitioner, derivative, beneficiary, or sponsor of an immigration benefit request or other request submitted to DHS is required to provide biometrics unless DHS waives or exempts the requirement and that the applicant will be notified of the time and place for the appointment. For those forms for which DHS proposes to mandate biometrics in all cases as proposed under this rule, DHS included the requirement for payment of the biometric services fee with the underlying application or petition filing (unless there is an approved fee waiver). See the PRA section of this rule for information on how to comment on the proposed form instructions for implementing the changes proposed in this rule.

1. Identity Management

DHS is proposing to use biometrics for identity management in the immigration lifecycle for several reasons. Most importantly, DHS is transitioning to a person-centric model for organizing and managing its records. DHS plans to begin using biometrics to establish and manage unique identities as it organizes and verifies immigration records in a highly-reliable, on-going, and continuous manner. Currently, DHS relies on declared biographic data for identity management in the immigration lifecycle. Once an identity has been enrolled in IDENT and established within DHS, future activities and encounters may be added to the original enrollment and will be confirmed through identity verification at various points in the immigration lifecycle. Identity verification may be done outside of the United States (by DHS or DOS) or within the United States (at ASCs, USCIS offices, or other DHS facilities). Identity verification also allows the reuse of enrolled identity data (both biometric and biographic) that has already been vetted. Such reuse reduces the amount of erroneous or conflicting data that can be entered into systems, and reduces the cost and complexity of repetitive collection and validation. Reusable fingerprints allow for more immediate and recurrent background checks, and reusable photographs allow for quick production of documents with high consistency and integrity.

DHS recognizes that biometric reuse is acceptable, when there is identity verification, but in the case of children biometric reuse could be impacted by the rapidly changing physical attributes of children. DHS has a duty to the public to ensure that immigration benefits are granted only to those who are eligible for them, to ensure that no benefit is provided to the wrong individual, and to verify that individuals entering the country are who they say they are.

See generally

INA section 103, 8 U.S.C. 1103 (charging DHS with the administration and enforcement of the INA). A biometrically-based, person-centric records model would ensure that an individual's records are complete and pertain only to that individual. Under this model, DHS would be able to easily locate, maintain, and update the correct individual's information such as: Current address (physical and mailing), immigration status, or to associate previously submitted identity documentation, such as birth certificates and marriage licenses, in future adjudications thereby reducing duplicative biographic or evidentiary collections.

Biometrics are unique to each individual and provide USCIS with tools for identity management while improving the services provided to those who submit immigration benefit requests. With regard to age, DHS proposes to reserve the authority to collect biometrics at any age to ensure the immigration records created for children can more assuredly be related to their subsequent adult records despite changes to their biographic information. USCIS notes that with respect to these biometrics, as with any other agency decision on a petition or application, if a decision will be adverse to an applicant or petitioner and is based on derogatory information the agency considered, he/she will be advised of that fact and offered an opportunity to rebut the information. 8 CFR 103.2(b)(16)(i).

Another key driver for eliminating the age restrictions for biometric collection is the number of Unaccompanied Alien Children (UAC) and Accompanied

Alien Children (AAC) being intercepted at the border. The DHS proposal to remove age restrictions will help combat human trafficking, specifically human trafficking of children, including the trafficking and exploitation of children forced to accompany adults traveling to the United States with the goal of avoiding detention and exploit immigration laws.

Beginning in July 2019 DHS has been conducting a small-scale pilot program where, with consent from individuals presenting themselves as family units, officers use Rapid DNA testing technologies as a precise and focused investigative tool to identify suspected fraudulent families and vulnerable children who may be potentially exploited. Between July 1, 2019 and November 7, 2019, DHS encountered 1747 self-identified family units with indicators of fraud who were referred for additional screening. Of this number, DHS identified 432 incidents of fraudulent family claims (over 2020 percent).

Collecting biometrics on children that DHS encounters would permit definitive identification of them and may show that they have been reported missing. Generally, DHS plans to use the biometric information collected from children for identity management in the immigration lifecycle only, but will retain the authority for other uses in its discretion, such as background checks and for law enforcement purposes. DHS does not intend to routinely submit all UAC or AAC biometrics to the FBI for criminal history background checks; rather, the biometrics collected from the majority of these children would be stored in IDENT

to help DHS with future encounters. USCIS is authorized to share relevant information with law enforcement or other DHS components, including “biometrics” for identity verification and, consequently, it may share DNA test results, which include a partial DNA profile, with other agencies as it does other record information pursuant to existing law.

IDENT is the DHS enterprise repository for biometrics and provides biometric identification management services to DHS Components with technology for matching, storing, and sharing biometric data. DHS Office of Biometric Identity Management (OBIM) is the lead designated provider of biometric identity services for DHS, and maintains the largest biometric repository in the U.S. government. See

www.dhs.gov/obim

(last visited June 15, 2020).

DHS will have the express authority to send UAC or AAC biometrics to the FBI for criminal history background checks, but depending on the DHS component encountering the individual, may only send biometrics to the FBI if DHS had some articulable derogatory information on the subject and needed to confirm criminal history or an association with other illegal or terrorist organizations in the interests of public safety and national security. Biometrics collected for the identification of genetic relationships at the border would be maintained in law enforcement systems for future identify verification, subject to the restrictions found in proposed 8 CFR 103.16.

2. Enhanced and Continuous Vetting

Individuals with certain types of criminal convictions, or those who present a threat to national security or public safety are not eligible for certain benefits. Benefit eligibility determinations in these cases often focus on the criminal, national security, and immigration history of the individual. The immigration history review considers the individual's current immigration status, past immigration filings, and whether previous benefits were granted or denied. DHS conducts national security and criminal history background checks on individuals applying for or seeking an immigration benefit because U.S. immigration laws preclude DHS from granting many immigration and naturalization benefits to individuals with certain criminal or administrative violations, or with certain disqualifying characteristics (

e.g.,

certain communicable diseases or association with terrorist organizations), while also providing DHS discretion in granting an immigration benefit in many instances.

See, e.g.,

INA section 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A) (mandatory bars to asylum); INA section 245(a)(2), 8 U.S.C. 1255(a)(2) (admissibility requirements for adjustment of status applicants and agency discretion); and INA section 316(a)(3), 8 U.S.C. 1427(a)(3) (good moral character requirement for naturalization).

Biometrics are collected and or referenced throughout the immigration law administration and enforcement lifecycle, from first application, encounter, or apprehension to naturalization or removal. In the enforcement context, biometric collection when an individual is first encountered can help officers detect fraudulent identities and relationships between adults and children. This helps identify child smuggling, trafficking, and exploitation. It can also help identify when an adult who has been previously encountered is posing as child. Collection of biometrics during removal proceedings is primarily to identify that the individual is the correct individual being removed.

As part of the adjudication process, DHS needs a strong system for the collection and use of biometrics from foreign nationals who enter or wish to enter the United States in order to, as directed by the President, “identify individuals who seek to enter the United States on a fraudulent basis, who support terrorism, violent extremism, acts of violence toward any group or class of people within the United States, or who present a risk of causing harm subsequent to their entry.”

See

E.O. 13780 section 5, 82 FR 13209, 13215 (Mar. 9, 2017). The changes proposed in this rule would assist DHS in developing appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of any grounds of inadmissibility or grounds for the denial of an immigration benefit.

Id.

In addition, as part of the effort to implement Uniform Screening and Vetting Standards for All Immigration Programs, DHS plans to implement a program of continuous immigration vetting. Under continuous vetting, DHS may require aliens to be subjected to continued and subsequent evaluation of eligibility for their immigration benefits to ensure they continue to present no risk of causing harm subsequent to their entry. This rule proposes that any individual alien who is present in the United States following an approved immigration benefit may be required to submit biometrics unless and until they are granted U.S. citizenship.

The rule further proposes that a lawful permanent resident or U.S. citizen may be required to submit biometrics if he or she filed an application, petition, or request in the past, and it was either reopened or the previous approval is relevant to an application, petition, or benefit request currently pending with USCIS. Proposed 8 CFR 103.16(c)(2).

See

DHS Privacy Impact Assessment for Continuous Immigration Vetting (Feb. 14, 2019),

available at https://www.dhs.gov/privacy.

DHS welcomes public comment on the increased use of biometrics beyond criminal history background checks, to include identity management in the immigration lifecycle and enhanced vetting or other purposes, as well as any relevant data, information, or proposals.

B. Verify Identity, Familial Relationships, and Preclude Imposters

1. Use of DNA Evidence

T The DNA Fingerprint Act authorizes the Attorney General to collect DNA from individuals arrested, facing charges, convicted, or from non-U.S. persons who are detained under the authority

of the United States. 34 U.S.C. 40702. The implementing DOJ regulations require any agency of the United States that arrests or detains individuals or supervises individuals facing charges to collect DNA samples from individuals who are arrested, facing charges, or convicted, and from non-United States persons who are detained under the authority of the United States. 28 CFR 28.12(b). DHS notes that the DNA collection requirements of 34 U.S.C. 40702 and 28 CFR part 28, subpart B are for law enforcement identification purposes, whereas this rule proposes to establish the authority for the use of DNA to verify claimed genetic relationships in the adjudication of immigration benefit requests.

U.S. citizens and lawful permanent residents petitioning for a biological

family member, or individuals seeking to include a biological family member as a dependent or derivative (accompanying or follow-to-join) in an application for an immigration benefit, must demonstrate the existence of the claimed genetic relationship, and current regulations generally require documentary evidence such as marriage and birth certificates as primary evidence of such a claimed relationship.

In the absence of primary evidence, acceptable secondary evidence includes medical records, school records, religious documents, and affidavits.

See, e.g.,

8 CFR 204.2(d)(2). However, documentary evidence may be unreliable or unavailable, and individuals need additional means to establish claimed genetic relationships to avoid denial of a petition, application, or other benefit request. USCIS currently accepts DNA test results from laboratories accredited by the AABB (formerly the American Association of Blood Banks) as proof of the existence of a claimed genetic relationship where other evidence is unavailable.

See, e.g.,

8 CFR 103.2(b)(2)(i); 204.2(c)(2)(ii), (d)(2)(i)-(iii), (d)(5)(ii), (f)(2)(i)-(iii), (g)(2)(i)-(iii); 207.7(e); 208.21(f), 245.11(b), 245.15(l)(2), 254.24(h)(1)(iii).

Although most of the collection of DNA samples is performed by the AABB-accredited laboratory conducting the testing, for individuals residing overseas, DHS or the Department of State facilitate collection and transmission of the DNA sample to the laboratory to ensure regularity in the collection and proper chain of custody of the DNA sample.

DHS proposes to revise its regulations to provide that DNA genetic testing can be required, requested, or accepted as probative evidence, either primary or secondary, to establish a claimed genetic relationship where required.

See

proposed 8 CFR 103.16(e). DNA is the only biometric that can verify a claimed genetic relationship. Current regulations allow USCIS to require Blood Group Antigen or Human Leukocyte Antigen (HLA) tests to prove parentage only after other forms of evidence were inconclusive.

See

8 CFR 204.2(d)(2)(vi). But those tests are no longer widely available and are not as conclusive as a DNA test because, while blood-typing can be used as proof that an individual is not a child's biological parent, it cannot be used to

confirm

the individual

the child's parent.

According to the AABB, DNA testing provides the most reliable scientific test available to resolve a genetic relationship and replaced older serological testing such as blood typing and serological HLA typing.

Blood tests are also more invasive than DNA tests, DNA collection generally does not require blood to be drawn from any individuals tested, and the most common method is a noninvasive buccal (mouth) swab.

This includes requiring, requesting, or accepting DNA testing to establish a genetic relationship with a birth parent in the context of a petition to classify a beneficiary as an orphan under INA 101(b)(1)(F) or as a Convention adoptee under INA 101(b)(1)(G).

Gunther Geserick & Ingo Wirth,

Genetic Kinship Investigation from Blood Groups to DNA Markers,

39 Transfus Med Hemother 163-75 (2012),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3375130/.

AABB, Standards for Relationship Testing Laboratories, Appendix 10—Immigration Testing (14th ed. 2019).

DHS proposes to define the term “DNA” in regulation as “deoxyribonucleic acid, which carries the genetic instructions used in the growth, development, functioning, and reproduction of all known living organisms.” Proposed 8 CFR 1.2. When DHS uses the term “DNA” in this rule it is a reference to the raw genetic material, typically saliva, collected via buccal swab from an individual in order to facilitate DNA testing to establish genetic relationships. DHS will only require, request, or accept DNA testing to verify a claimed genetic relationship. DHS will not store or share any raw DNA or biological samples, other than to the extent necessary to facilitate the DNA testing (by using an on-site automated machine or transmitting to the AABB-accredited laboratory conducting the testing), unless DHS is required to share by law. Proposed 8 CFR 103.16(e).

For DHS, there are two different means of actually testing the raw DNA to verify a claimed genetic relationship. After DNA samples are collected, an individual's raw DNA material would then be either tested locally by an automated machine (

i.e.,

Rapid DNA)

or mailed to a traditional AABB-accredited laboratory for testing. This testing allows for the comparison of partial DNA profiles to determine the statistical probability that the individuals tested have the claimed genetic relationship. In either case, a partial DNA profile would be produced as a result of the test. When DHS uses the term “partial DNA profile” it is a reference to a visual or printed partial representation of a small portion of an individual's particular DNA characteristics. An individual's partial DNA profile is a biometric identifier as unique as their fingerprints. Significantly, when an individual's DNA is tested in order to verify a claimed genetic relationship, the test does not reveal medical or hereditary conditions. The particular genetic markers profiled for relationship testing are markers used to verify the claimed genetic relationship. More specifically, the partial DNA profile created for relationship testing is actually a very small portion of an individual's full DNA characteristics. At present, DHS relationship tests profile between 16 and 24 genetic markers out of the nearly two million genetic markers typically contained in human DNA. In contrast with raw DNA or biological samples, which will not be shared or stored under any circumstances unless required to share by law, DHS may store or share DNA test results, which include a partial DNA profile, with other law enforcement agencies to the extent permitted by and necessary to enforce and administer the immigration and naturalization laws. Proposed 8 CFR 103.16(e).

The Department of Homeland Security (DHS) Science and Technology Directorate (S&T) has been working in conjunction with DoD and DOJ to fund the development of cost-effective Rapid DNA equipment to allow non-technical users with appropriate training to analyze the DNA of individuals in a field setting and receive reliable results in about one hour.

The testing entity conducts the DNA test, either automatically by machine or in a traditional laboratory environment, and generates a DNA test result. DHS uses the term “DNA test result” as a reference to the ultimate scientific conclusion made by the AABB-accredited testing entity as to the claimed genetic relationship. The DNA test result is represented by a probability or percentage of the likelihood of the existence of the claimed genetic relationship as a result of comparing at least two partial DNA profiles. DHS has established by policy what minimum threshold probability for the relationship that it would accept in verifying a claimed genetic relationship, depending on the particular relationship claimed (

i.e.,

parent, full-sibling, half-sibling, etc.).

DNA test results which

include a partial DNA profile, where they indicate a sufficient probability of the existence of the relationship tested, are now accepted as a probative evidence to establish parent and sibling genetic relationships.

See Matter of Ruzku,

26 I&N Dec. 731 (BIA 2016).

See DNA Evidence of Sibling Relationships,

PM 602.0106.1, issued April 17, 2018 (establishing the threshold probabilities for full and half sibling relationships);

Genetic Relationship Testing; Suggesting DNA Tests Revisions to the Adjudicators Field Manual (AFM) Chapter 21 (AFM Update AD07-25),

signed by Michael Aytes, Associate

Director, Domestic Operations, issued March 19, 2008 (establishing voluntary or suggested nature of DNA testing to verify claimed relationships and citing AABB testing standards); DOS, Foreign Affairs Manual 9 FAM 601.11-1(A)(a)(2) (CT: VISA-936 Sept. 10, 2019) (stating that DNA “test results reporting a 99.5 percent or greater degree of certainty” may be accepted by consular officers as “sufficient to support a biological relationship between a parent and child in visa cases”);

see also Matter of Ruzku,

26 I&N Dec. 731 (BIA 2016) (holding direct sibling-to-sibling DNA test results reflecting a 99.5 percent degree of certainty or higher that a full sibling biological relationship exists should be accepted and considered to be probative evidence of the relationship).

Consistent with current practice, the DNA test results obtained by DHS, which contain the ultimate probability of relationship and a partial DNA profile, would be retained in the individual's Alien file (A-file) and made part of the record. USCIS may use and store DNA test results with other law enforcement agencies to the extent permitted by and necessary to administer and enforce the immigration and naturalization laws. Proposed 8 CFR 103.16(e).

Currently, DHS allows individuals in certain situations to voluntarily submit DNA test results from AABB-accredited laboratories

where other documentary evidence is inconclusive or unavailable.

This rule proposes to clarify that DHS may require, request, or accept DNA testing from relevant parties to a benefit request, where probative, as evidence of a claimed genetic relationship. It also proposes to clarify that DHS may consider DNA test results in adjudicating certain immigration benefits as a means of verifying a claimed genetic relationship. And the rule proposes to clarify DHS's authority to collect raw DNA from relevant parties and either perform a DNA relationship test with an AABB-accredited machine in-house or send the raw DNA to a traditional AABB-accredited lab for DNA testing. DHS requests comments on all aspects of this proposal, including the collection, use, and retention of DNA evidence.

See

AABB home page at

http://www.aabb.org/Pages/default.aspx

(last visited Apr. 7, 2020).

See

Genetic Relationship Testing; Suggesting DNA Tests Revisions to the Adjudicators Field Manual (AFM) Chapter 21 (AFM Update AD07-25), signed by Michael Aytes, Associate Director, Domestic Operations, issued March 19, 2008 (establishing voluntary or suggested nature of DNA testing to verify claimed relationships and citing AABB testing standards).

2. Special Treatment of DNA Evidence

While DNA is fundamentally a biometric identifier, DHS recognizes the increased sensitivity surrounding the use of genetic information. DHS believes the other biometric modalities that will be collected are sufficient for most of the goals of this rule.

See

proposed 8 CFR 1.2 (definition of biometrics); proposed 8 CFR 103.16(a) (biometric collection). Therefore, DHS proposes to treat raw DNA as a distinctive biometric modality from the other biometric modalities it is authorized to collect.

See

proposed 8 CFR 1.2 (definition of DNA); proposed 8 CFR 103.16(e). For purposes of DNA collected under this rule, DHS proposes that it will not handle or share any raw DNA for any reason beyond the original purpose of submission (

i.e.,

to establish or verify the claimed genetic relationship), unless DHS is required to share by law. DHS would only store, use, and share DNA test results, which include a partial DNA profile derived from the raw DNA, as provided by the testing entity or as produced by DHS, for adjudication purposes and would retain the results to perform any other functions necessary for administering and enforcing immigration and naturalization laws, to the extent permitted by law. DHS would also only use the raw DNA and DNA test results, which include a partial DNA profile, for the original purpose of submission (

i.e.,

to establish or verify the claimed genetic relationship) or as authorized by the immigration and naturalization laws. DHS components are authorized to share relevant information with law enforcement or other DHS components and, consequently, it may share DNA test results, which include a partial DNA profile, with other agencies when there are national security, public safety, fraud, or other investigative needs, but always pursuant to existing law. Proposed 8 CFR 103.16(e). DHS especially welcomes comments on these proposed provisions.

3. Identity Management

DHS must ensure that immigration benefits are not fraudulently obtained and are granted to the rightful person, and that individuals entering the country are who they say they are. As part of the benefit adjudications process, USCIS must verify the identity of an individual applying for or seeking any benefit to protect against fraud and imposters. In all circumstances, DHS must identify persons using aliases after prior immigration encounters and assist in efforts to prevent human smuggling and trafficking. Currently DHS relies mainly on documentary, paper evidence of identity in administering its programs. Unfortunately, there is no guaranteed way to prevent the manufacturing, counterfeiting, alteration, sale, and/or use of identity documents or other fraudulent documents to circumvent immigration laws or for identity theft. On the other hand, biometric identifiers are not transferrable and may provide confirmation of an individual's identity. Therefore, DHS believes that the best approach to address the vulnerabilities in the immigration process, preclude imposters, and deter fraud would be to rely more on biometrics for identity management in the immigration lifecycle.

C. Flexibility in Biometrics Requirements

1. Definition of Biometrics

In recent years, government agencies have grouped together identifying features and actions, such as fingerprints, photographs, and signatures under the broad term, biometrics.

The terms, biometric “information,” “identifiers,” or “data” are used to refer to all of these features, including additional features such as iris image, palm print, DNA, and voice print.

For example, authorities such as 18 U.S.C. 1028(d)(7)(B) and 17 CFR 162.30(b)(8) refer to identifying information including “unique biometric data, such as fingerprint, voice print or iris image, or other unique physical representation.” The term “biometrics” is also used in other laws and regulations.

See, e.g.,

18 U.S.C. 1028(d)(7)(B), 17 CFR 162.30(b)(8), 21 CFR 11.3(b)(3), and 27 CFR 73.3. As a result, DHS has adopted the practice of referring to fingerprints and photographs collectively as “biometrics,” “biometric information,” or “biometric services.”

See

Federal Bureau of Investigation (FBI), Criminal Justice Information Services Division (CJIS), Fingerprints and Other Biometrics, Next Generation Identification (NGI),

https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi

(last visited Apr. 7, 2020).

See

FBI, CJIS, Fingerprints and Other Biometrics,

https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics

(last visited Apr. 7, 2020).

For example, the instructions for Application to Replace Permanent Resident Card (Form I-90) refer to a “biometric services appointment,” while the, Application for Asylum and for Withholding of Removal (Form I-589), refers to “biometrics, including fingerprints and photographs.” Many forms also include a signature as a type of biometric identifier.

See

instructions

for Form I-485 which references providing “fingerprints, photograph, and/or signature.” Most laws on the subject do not specify individual biometric modalities such as iris image, palm print, voice print, DNA, and/or any other biometric modalities that may be collected from an individual in the future.

See, e.g.,

8 U.S.C. 1732(b)(1) (requiring the issuance of travel documents that use biometric identifiers recognized by international standards organizations). By proposing to update the terminology in the regulations to uniformly use the term “biometrics” DHS seeks to utilize a single, inclusive term comprehensively throughout regulations and form instructions.

DHS proposes to define the term, “biometrics,” to clarify and expand its authority to collect more than just fingerprints in connection while administering and enforcing the immigration and naturalization benefits or other services. To do this, DHS proposes to expressly define “biometrics” to include a wider range of modalities than just fingerprints and photographs. DHS proposes to define the term “biometrics” to mean “the measurable biological (anatomical and physiological) or behavioral characteristics used for identification of an individual.” Proposed 8 CFR 1.2. Further, DHS proposes the following biometrics as authorized biometric modalities that may be requested or required from individuals in connection the administration and enforcement of immigration and naturalization laws:

• Fingerprint;

• palm print;

• photograph (including facial images specifically for facial recognition, as well as photographs of physical or anatomical features such as scars, skin marks, and tattoos);

• signature;

• voice print;

• iris image; and

• DNA (DNA test results, which include a partial DNA profile attesting to genetic relationship).

The term “biometric modality” is used to describe a type or class of biometric system. The collection of a biometric implies its use in a system used to identify an individual; hence the use of the term “modality.” “Modality” is often interchanged, or used in conjunction, with the term “biometric” because the collection of a biometric implies automation. For example, an individual's face is a biometric, but DHS intends to collect a photograph or image of an individual's face, making a facial photograph the modality. Similarly, an individual's iris is a biometric, but DHS intends to collect a photograph or image of an individual's iris, making an iris image the “modality.” An individual's voice is a “biometric,” but DHS intends to collect an audible recording of an individual's voice, making a voice print the “modality.” Finally, an individual's raw DNA is a “biometric,” but upon testing, the partial DNA profile becomes the “modality” and the DNA test result is the memorialization or evidence of the existence of the claimed genetic relationship. DHS will collect a photograph, fingerprint, audible recording, DNA, etc., for use in facial recognition, fingerprint recognition, iris image recognition, voice recognition, DNA testing, etc.

See

proposed 8 CFR 1.2. DNA, while a biometric, would only be collected by USCIS in limited circumstances to verify the existence of a claimed genetic relationship where relevant to the administration and enforcement of immigration and naturalization laws.

See

proposed 8 CFR 1.2 and 8 CFR 103.16(e).

2. Additional Modalities

In addition to the current use of fingerprints

as a biometric modality, DHS proposes to begin requesting biometric collection (now and through emerging technologies) with the following additional biometric modalities: Iris, palm, face, voice, and DNA.

The technology for collecting and using biometrics has undergone constant and rapid change.

DHS needs to keep up with technological developments that will be used by the FBI and agencies with which we will be sharing and comparing biometrics in this area and adjust collection and retention practices for both convenience and security, and to ensure the maximum level of service for all stakeholders. USCIS also has internal procedural safeguards to ensure technology used to collect, assess, and store the differing modalities is accurate, reliable, and valid. Additionally, as with any other USCIS petition or application, if a decision will be adverse to an applicant or petitioner and is based on derogatory information the agency considered, he/she shall be advised of that fact and offered an opportunity to rebut the information. 8 CFR 103.2(b)(16)(i). Therefore, DHS proposes that, as of the effective date of this rule, it would begin collecting new biometrics modalities as follows.

Currently USCIS does not routinely use photographs or signatures for identity verification purposes other than for document production and visual verification of the photo.

DNA, while included in the list of additional modalities, is a distinct modality and is discussed at length separately above.

FBI, Science and Technology Branch,

https://www.fbi.gov/about/leadership-and-structure/science-and-technology-branch

(last visited Apr. 7, 2020).

a. Iris Image

DHS proposes to collect and use iris images as a biometric modality. Iris as a biometric modality is a valuable identifier especially for individuals whose fingerprints are unclassifiable or unattainable through loss of fingers, hand amputation, normal wear in the ridges and patterns over time (

i.e.,

due to age, types of employment, etc.), or deliberate eradication/distortion of fingerprint ridges to avoid identification and detection. Iris scanning biometric technology measures the unique patterns in the colored circle of the eye to verify and authenticate identity. Biometric iris recognition is fast, accurate, and offers a form of identification verification that requires no physical contact to collect an iris image. DHS intends to collect iris images as part of the ASC and mobile biometric enrollment process to enroll and verify identity against IDENT, as well as to assist in the adjudication process by verifying against previous immigration encounters.

b. Palm Print

DHS proposes to add palm prints as a biometrics modality in this rule. This proposal is consistent with what the FBI has announced as part of its Next Generation Identification (NGI) initiative for the development of the requirements for and deployment of an integrated National Palm Print Service.

Law enforcement agencies indicate that at least 30 percent of the prints lifted from crime scenes—from knife hilts, gun grips, steering wheels,

and window panes—are of palms, not fingers. For this reason, capturing and scanning latent palm prints is becoming an area of increasing interest among the law enforcement community. The National Palm Print Service is being developed to improve law enforcement's ability to exchange a more complete set of biometric information, make additional identifications, and improve the overall accuracy of identification through criminal history records. Collecting palm prints would permit DHS to align our background checks capability with the total available records at the FBI Criminal Justice Information Services (CJIS), keep current with the changing records of law enforcement, and make sure immigration benefit background checks are as accurate and complete as possible. Therefore, DHS proposes to reserve the authority to incorporate palm prints into its biometrics collection.

See

Executive Office of the President, National Science and Technology Council, Committee on Technology, Committee on Homeland and National Security, Subcommittee on Biometrics, Palm Print Recognition,

https://www.fbi.gov/file-repository/about-us-cjis-fingerprints_biometrics-biometric-center-of-excellences-palm-print-recognition.pdf/view.

For a basic explanation of NGI, see also

https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi.https://www.fbi.gov/file-repository/about-us-cjis-fingerprints_biometrics-biometric-center-of-excellences-palm-print-recognition.pdf/view.

c. Facial Image

DHS proposes to use facial photographs to reduce the burden of visiting an ASC for individuals previously biometrically enrolled by USCIS. For example, 1:1 face biometric verification can be used in determining whether an applicant is who he/she is claiming to be and allowing EAD re-issuance for certain immigration benefits. Facial recognition can also be used to verify an identity if fingerprints are unobtainable subsequent to the initial biometric enrollment at an ASC. Currently, CBP is undergoing a separate rulemaking and concurrently piloting the use of facial recognition at several airports and early results are very favorable, with suggested potential benefits of the program in identifying fraud. CBP has identified three imposters in less than 40 days using facial recognition.

DHS would also use facial images and facial recognition technology for fraud, public safety or criminal history background checks, and national security screening and vetting. Facial photographs, as a biometric modality, are already collected by DHS primarily for the purpose of secure document production. DHS has collected facial photographs for some time, such as for identity verification at ports of entry; however, DHS is proposing to increase the authorized use of a previously collected biometric modality, facial photographs, to include a facial recognition system.

See

Customs and Border Protection, Dulles CBP's New Biometric Verification Technology Catches Third Impostor in 40 Days (Oct. 2, 2018),

https://www.cbp.gov/newsroom/national-media-release/dulles-cbp-s-new-biometric-verification-technology-catches-third.

More generally, for the use of facial biometrics for international travelers, see Biometrics at

https://www.cbp.gov/travel/biometrics

(last visited Apr. 7, 2020).

d. Voice Print

DHS proposes to collect and use voice prints as a biometric modality. DHS can use voice as a biometric in several ways to improve identity verification in several business processes. First, when immigration benefits are submitted electronically, an individual's voice print can be used to indicate that the individual who submitted the application is the same person who subsequently returns to access or change information.

Second, an individual's voice print can be used for integration into the call center process to accomplish faster, automated identification. Collecting and using an individual's voice print may reduce concerns about the caller's identity. With simpler identification and less effort, individuals will more effectively be able to call for assistance or inquire about the status of a pending immigration benefit request. The current identity verification process is typically more time-consuming than voice; on an average day USCIS receives 50,000 phone calls

on the toll-free national call center line and the use of a voice biometric holds the promise of significantly reducing the time to verify a person's identity. Voice biometrics can be passive, where the user can say anything and a match is made from the voice to a voiceprint, or it can be active, where the caller is asked to recite a previously captured passphrase. Either way, the process is a natural, effortless way to identify the caller.

See

DHS, USCIS, A Day in the Life of USCIS,

https://www.uscis.gov/about-us-0

(last visited Apr. 7, 2020).

Third, voice verification could be used for identity verification in remote locations where an interview is required to adjudicate a benefit being sought, reducing the need for an applicant to travel to a USCIS Office. Finally, USCIS may also use voice prints, where applicable, to identify indicia of fraud, screen for public safety or criminal history, and vet potential national security issues.

DHS welcomes public comment on the various proposed modalities, reliability of technology, suggestions for alternative modalities, as well as its proposal for future modalities.

3. Improve Regulations To Facilitate Electronic Filing

a. Clarify Terms

To conform with the proposed changes to expand biometric collection as previously discussed, DHS proposes to remove restrictive language elsewhere in regulations. Therefore, DHS proposes to remove individual references to “fingerprints,” “photographs,” and/or “signatures” where appropriate, and replace them with the more appropriate term “biometrics.” DHS proposes the following changes to replace references to “fingerprint” with “biometrics” or to remove “biometrics” references on account of proposed 8 CFR 103.16:

• Deleting 8 CFR 204.3(c)(3), which requires biometric submissions from prospective adoptive parent(s), or adult members of the adoptive parents' household, and outlining potential waivers;

• Removing the fingerprint requirement at 8 CFR 204.4(d)(1), and references to fingerprint and completed background checks as elements specifically mentioned in 8 CFR 204.4(g)(2)(ii) regarding the determination that a sponsor is of good moral character;

• Deleting biometric submission and fee requirements in 8 CFR 204.5(p)(4);

• Deleting and reserving 8 CFR 204.310(b), which outlines the biometrics, waiver, and alternative evidentiary requirements for the Application for Determination of Suitability to Adopt a Child from a Convention Country (Form I-800A);

• Deleting the reference to biometric information and 8 CFR 1.2 in 8 CFR 207.1(a);

• Replacing “fingerprint processing” in the second sentence of 8 CFR 208.7(a)(2) with “an interview or biometric collection”;

• Removing the biometrics submission requirement from 8 CFR 209.1(b);

• Revising 8 CFR 208.10, on account of proposed 8 CFR 103.2 and 103.16;

• Removing and reserving 8 CFR 210.1(b); and

• Replacing “must be fingerprinted for the purpose of issuance of Form I-688A” with “submit biometrics”, and replacing “shall” with “will” in proposed 8 CFR 210.2(c)(2)(iv), and “presentation or completion of Form FD-258 (Fingerprint Card)” with “biometric collection” in proposed 8 CFR 210.2(c)(3)(iv).

b. Remove Age Restrictions

DHS originally codified several of its regulatory biometric submission requirements with restrictions on the

ages of individuals from whom biometrics could be collected. The codified ages were based on the policies and practices at the time such as not running criminal history background checks on children

or technological limitations on collecting fingerprints from elderly persons.

As stated earlier, DHS proposes that biometrics uses expand beyond criminal history background checks to include identity management and verification in the immigration lifecycle. Identity verification and management in the immigration lifecycle via biometrics is even more important in the case of children because their physical appearances can change relatively rapidly and children often lack identity documents.

“Children” and “minor” are used interchangeably here and without regard to any single or specific INA definition.

See Fingerprint Waiver Policy for All Applicants for Benefits under the Immigration and Naturalization Act and Procedures for Applicants Whose Fingerprint Responses Expire after the Age Range during Which Fingerprints are Required

by Michael Pearson, Executive Associate Commissioner, Office of Field Operations United States Department of Justice, Immigration and Naturalization Service, dated July 20, 2001 (waiving general fingerprinting requirements for certain ages and classifications of individuals otherwise required under regulation).

Consistent with this determination, DHS is removing the age restrictions for biometric collection writ large, including those for NTA issuance.

See

8 CFR 236.5. DHS has authority, under the immigration laws,

to issue Notice to Appear (Form I-862) and Notice of Referral to Immigration Judge (Form I-863), which are thereafter filed with the Immigration Court to commence removal proceedings under the INA. In removing the age restrictions for biometric collection relating to NTA issuance, DHS is ensuring that every individual's identity is established or verified—regardless of age—when they are placed in removal proceedings under the INA. Just as with the granting of immigration benefits, biographical identifiers are of limited use when verifying identity because individuals share common names and an individual may misrepresent his or her identity when facing immigration enforcement action. Furthermore, with respect to children under the age of 14 issued who are issued NTAs, the collection of biometric information to determine identity will significantly assist DHS in its mission to combat human trafficking, child sex trafficking, forced labor exploitation, and alien smuggling, while simultaneously promoting national security, public safety, and the integrity of the immigration system.

See, e.g.,

INA sections 103(a), 239; 8 CFR 2.1, 239.1.

DHS is authorized to share relevant information internally and with other law enforcement agencies, including “biometrics” and, consequently, is proposing that it may share DNA test results, which include a partial DNA profile, with other agencies where there are national security, public safety, fraud, or other investigative needs, but always consistent with any legal limitations on such information sharing. For those reasons, the removal of age restrictions may lead to more frequent biometric collections compared to adults. Therefore, because the proposed requirements in this rule, requiring appearance for biometric collection or interview would apply to any individual, without age limitation, DHS proposes to remove all age limitations or restrictions on biometrics collection. However, DHS also proposes that the biometric collection may be waived at DHS's discretion.

See

proposed 8 CFR 103.16.

Under the authority granted by the proposed rule, individual DHS components will be able to establish an age threshold for biometric collection specific to that component's operational needs. Immigration officers may collect biometrics, pursuant to the authority granted in 8 U.S.C. 1357(b) from individuals under the age of 14 categorically or on a case-by-case basis, depending on the circumstances. DHS interprets 8 U.S.C. 1357(f)(1) as requiring fingerprinting and photographing of aliens 14 years or older in removal proceedings, but DHS interprets that authority as not prohibiting the collection of biometrics from aliens younger than 14 as authorized by other laws. Removing the age restrictions associated with biometric collections from the regulations will permit DHS components maximum flexibility in their day-to-day operations.

DHS reviewed statutes containing requirements for individuals to submit biometrics to DHS at a certain age and determined those statutes do not restrict or limit the collection of biometrics to these ages. First, INA section 262(b), 8 U.S.C. 1302, states, “Whenever any alien attains his fourteenth birthday in the United States he shall, within thirty days thereafter, apply in person for registration and to be fingerprinted.” Second, INA section 264(a), 8 U.S.C. 1304, provides that the Secretary is authorized “to prepare forms for the registration and fingerprinting of aliens” aged 14 and older in the United States, as required by INA section 262. DHS interprets section 264(a) as requiring that biometrics be submitted by lawful permanent residents aged 14 and older, but not as imposing a lower age limit prohibiting DHS from requiring anyone, including lawful permanent residents or individuals seeking immigration benefits who are under the age of 14, from submitting biometrics as authorized by other laws.

c. Remove Redundant Provisions

DHS proposes in this rule to have one regulatory provision that governs the requirement to submit biometrics for all immigration benefit requests. Proposed 8 CFR 103.16. This new provision will also include the requirements for rescheduling and the acceptable reasons for failure to submit biometrics unless waived.

Id.

In addition, DHS proposes to consolidate the multiple sections of 8 CFR providing what USCIS can or will do with an immigration benefit request when required biometrics are not submitted. For example, 8 CFR 240.68(b) currently provides that failure to comply with fingerprint processing requirements without reasonable excuse may result in dismissal of the asylum application or waiver of the right to adjudication by an asylum officer. Because proposed 8 CFR 103.16 will apply to all immigration benefits adjudicated by USCIS, there is no need for a separate provision for what happens in the context of an asylum application submitted pursuant to 8 CFR 240.68. Therefore, DHS is proposing to either revise separate provisions regarding failure to submit biometrics to cross-reference 8 CFR 103.16 or remove them entirely.

See

proposed 8 CFR 103.2(b)(9), 103.16(b), 208.10, 240.68, 240.70(d)(4), and 245.7.

d. Remove Unnecessary Procedures and Requirements

DHS is proposing changes in this rule consistent with continued efforts to provide flexibility for applicants, petitioners, requestors and associated individuals to submit biometrics, file benefit requests, and provide supporting documentation, as well as for USCIS to receive and process those requests in an electronic environment. In sections of the regulations governing biometrics submission requirements, DHS is also proposing to remove and/or replace language that applies solely to paper filings and benefit requests with language that is applicable in both a paper and electronic environment. For example, references to position titles, form numbers, mailing, copies, and office jurisdiction are proposed to be removed, replacing “the director,” “service office having jurisdiction over the prior petition,” “service legalization

office,” “legalization office,” “service office designated for this purpose,” and “The INS,” with “USCIS” in 8 CFR 204.4(d)(1), 210.2(c)(2)(iv), 210.2(c)(4)(iii) and 210.5(b). In proposed 8 CFR 204.4(d)(1), the internal USCIS process is removed from the regulatory text, by replacing the requirement that petitioners submit documents within one year of the date requested, with a deadline provided in the request. Similarly, in proposed 8 CFR 208.21(d), the specific procedure regarding transmissions to the U.S. Embassy or consulate is deleted from the regulatory text. In other sections, requirements to provide a paper fingerprint card or FD-258 are revised to simply require “biometrics.”

See

8 CFR 210.2(c)(2)(i), 210.2(c)(4), 240.68, 240.70, 245a.2(e)(1)(iii) and 245a.4(b)(5)(i)(C).

To promote electronic filing and lessen dependence on paper, DHS is also proposing to clarify the regulatory requirements for submitting passport-style paper photographs with certain applications or petitions. DHS proposes to eliminate references to the “ADIT-style” photograph requirement as outdated and revising any requirement for submitting photographs with immigration benefit requests to reference photographs “as required by form instruction.”

See

proposed 8 CFR 103.16 and 333.1. USCIS may continue requiring paper photographs to be submitted with a benefit request, where required by form instruction, to use in its adjudications for either identity verification or document production. However, as proposed, under no circumstances would submission of passport-style photographs relieve an individual from their obligation to appear for biometric collection.

DHS believes that the photograph submission and use requirements in the INA may be met in the future by electronic photographs collected by USCIS as a biometric identifier. INA section 333, 8 U.S.C. 1444, states:

(a) Three identical photographs of the applicant shall be signed by and furnished by each applicant for naturalization or citizenship. One of such photographs shall be affixed by the Attorney General to the original certificate of naturalization issued to the naturalized citizen and one to the duplicate certificate of naturalization required to be forwarded to the Service.

(b) Three identical photographs of the applicant shall be furnished by each applicant for—

(1) a record of lawful admission for permanent residence to be made under section 249;

(2) a certificate of derivative citizenship;

(3) a certificate of naturalization or of citizenship;

(4) a special certificate of naturalization;

(5) a certificate of naturalization or of citizenship, in lieu of one lost, mutilated, or destroyed;

(6) a new certificate of citizenship in the new name of any naturalized citizen who, subsequent to naturalization, has had his name changed by order of a court of competent jurisdiction or by marriage; and

(7) a declaration of intention.

One such photograph shall be affixed to each such certificate issued by the Attorney General and one shall be affixed to the copy of such certificate retained by the Service.

As DHS interprets INA section 333, its requirements may be met when an individual's photographs are obtained by USCIS, signed, and furnished by the individual when USCIS or its designee collects the individual's biometrics. Therefore, DHS proposes to revise 8 CFR 333.1 to provide that every applicant under section 333 of the Act must provide photographs as prescribed by USCIS in the applicable form instructions.

D. Biometrics Requirement for United States Citizens and Lawful Permanent Residents

While the focus of attention in the immigration context is usually on foreign nationals, aliens, and immigrants, DHS is also proposing to require biometrics from U.S. citizens or lawful permanent residents when they submit a family-based visa petition.

See

proposed 8 CFR 103.16. Current regulations only

require

biometrics from applicants, petitioners, their spouses, and all adult members of the household in the intercountry adoption context involving orphan and Hague Adoption Convention cases.

See

8 CFR 204.3(c)(3); 8 CFR 204.310(b). For family-based petitioners filing Petition for Alien Relative (Form I-130) or Petition for Alien Fiancé(e) (Form I-129F), the regulations are silent with respect to the routine submission of a petitioner's biometrics in support of a petition.

See generally

8 CFR 204.1 and 214.2(k). As discussed below, DHS has determined that U.S. citizen and lawful permanent resident petitioners must submit biometrics in order for DHS to comply with existing laws.

1. The Adam Walsh Child Protection and Safety Act of 2006

The INA bars USCIS from approving any family-based immigrant visa petitions and nonimmigrant fiancé(e) visa petitions filed by a U.S. citizen or lawful permanent resident petitioner if he or she has been convicted of any “specified offense against a minor” unless the Secretary first determines in his or her sole and unreviewable discretion that the petitioner poses “no risk” to the beneficiary and/or derivative beneficiaries.

See

INA sections 204(a)(1)(A)(viii)(I) & (B)(i)(II), 8 U.S.C. 1154(a)(1)(A)(viii)(I) & (B)(i)(II), and 101(a)(15)(K), 8 U.S.C. 1101(a)(15)(K), as amended.

The AWA

defines “specified offense against a minor” as an offense against a minor that involves any of the following:

Adam Walsh Child Protection and Safety Act of 2006 section 111(7), Public Law 109-248, 120 Stat. 587, 592 (2006) (codified at 34 U.S.C. 20911(7) after editorial reclassification).

• An offense (unless committed by a parent or guardian) involving kidnapping.

• An offense (unless committed by a parent or guardian) involving false imprisonment.

• Solicitation to engage in sexual conduct.

• Use in a sexual performance.

• Solicitation to practice prostitution.

• Video voyeurism as described in 18 U.S.C. 1801.

• Possession, production, or distribution of child pornography.

• Criminal sexual conduct involving a minor, or the use of the internet to facilitate or attempt such conduct.

• Any conduct that by its nature is a sex offense against a minor.

2. The International Marriage Broker Regulation Act

IMBRA

provides that petitioners for a K nonimmigrant visa for an alien fiancé(e) (K-1) or alien spouse (K-3) must submit with his or her Form I-129F criminal conviction information for the petitioner on any of the following “specified crimes”:

Violence Against Women and Department of Justice Reauthorization Act of 2005 (T 2005), Public Law 109-162, 119 Stat. 2960 (2006); and (VAWA 2013), Public Law 113-4, sections 807-8, 127 Stat. 54, 112-17; 8 U.S.C. 1375a); INA sections 214(d)(1), (3).

• Domestic violence, sexual assault, child abuse and neglect, dating violence, elder abuse, and stalking;

• Homicide, murder, manslaughter, rape, abusive sexual contact, sexual exploitation, incest, torture, trafficking, peonage, holding hostage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, or an attempt to commit any of these crimes; and

• Crimes relating to a controlled substance or alcohol where the petitioner has been convicted on at least three occasions and where such crimes did not arise from a single act.

If a petitioner indicates that he or she has been convicted by a court or by a military tribunal for one of these specified crimes, or if USCIS ascertains through relevant background checks that the petitioner was convicted, the

petitioner is required to submit certified copies of all court and police records showing the charges and dispositions for every such conviction.

See

USCIS Form I-129F and Form I-129F Instructions, Part 3. If the petition is approved, the petitioner's Form I-129F (including all criminal background information submitted by the petitioner and any related criminal conviction information that USCIS discovers during the course of conducting its routine background check) must be provided to DOS.

Id.; see also

8 U.S.C. 1375a(a)(5)(A)(iii). DOS will then disclose this information to the beneficiary during the consular interview.

See

Form I-129F Instructions, Part 3.

3. All Family-Based Petitioners

USCIS is committed to complying with and furthering the purposes of AWA and IMBRA so that intended beneficiaries of family-based visa petitions are not placed at risk of harm from the persons who seek to facilitate their immigration to the United States. Without complete biometrics for all family-based petitioners, USCIS is required to rely only on name-based criminal checks to assess AWA and IMBRA. These name-based checks do not identify all offenders with visa petitions who have been convicted of qualifying crimes under AWA and/or IMBRA. Name-based checks only yield petitioners who are

currently

required to register as a sex offender or who have a

current

order of protection in place. However, AWA and IMBRA apply to all family-based petitioners with qualifying convictions regardless of when the criminality occurred, and whether they are currently registered sex offenders or subject to an order of protection. The current reliance on name-based checks means that certain family-based visa petitioners are not currently identified and vetted under AWA and IMBRA because USCIS does not routinely request biometrics from these populations. Requiring biometrics collection for all family-based petitioners will result in production of an official FBI criminal history result (currently referred to as an Identity History Summary “IdHS” and formerly referred to as a Record of Arrest and Prosecution “RAP sheet”) which provides greater accuracy and detail relating to the petitioner's criminal history.

USCIS already requires biometrics from all applicants, petitioners, their spouses, and all adult members of the household in the intercountry adoption context involving orphan and Hague Adoption Convention cases as part of its evaluation of the prospective adoptive parents' suitability to adopt a foreign-born child.

8 CFR 204.3(c)(3), 8 CFR 204.310(b). USCIS likewise needs to review the criminal histories of other petitioners before approving a family-based immigration benefit. USCIS needs to utilize biometrics to conduct criminal history background checks to identify individuals convicted of any “specified offense against a minor” or “specified crime” and prevent the approval of a petition in violation of the AWA or without the proper disclosure required by IMBRA.

Therefore, DHS proposes to amend the regulations governing the requirements for USCIS Form I-130 and Form I-129F to require those petitioners to routinely submit biometrics as required by proposed 8 CFR 103.16.

See

proposed 8 CFR 204.1(h) and 8 CFR 214.2(k)(1).

In intercountry adoption cases, DHS must be satisfied that proper care will be provided to the child if admitted to the United States. INA section 101(b)(1)(F), (G), 8 U.S.C. 1101(F), (G).

INA section 204(a)(1)(A)(viii)(I) & (B)(i)(II), 8 U.S.C. 1154(a)(1)(A)(viii)(I) & (B)(i)(II), and INA section 101(a)(15)(K), 8 U.S.C. 1101(a)(15)(K), as amended by the Adam Walsh Act, tit. IV, sec. 402, 120 Stat. at 622.

Affected family-based petitions include those petitioning for the following individuals:

• Spouse;

• Fiancé(e);

• Parent;

• Unmarried child under 21 years of age;

• Unmarried son or daughter over 21 years of age or over;

• Married son or daughter of any age;

• Sibling; or

• Any derivative beneficiary permitted to receive an immigrant or nonimmigrant visa based on his or her familial relationship to the beneficiary of such petition.

See

INA sections 101(a)(15)(K), 201(b)(2)(A)(i) and 203(a) and (d), 8 U.S.C. 1101(a)(15)(K), 1151(b)(2)(A)(i) and 1153(a) and (d) (governing nonimmigrant fiancé(e)s, immediate relatives, and family-based preference and derivative categories/classifications).

4. Violence Against Women Act (VAWA) Self-Petitioners

Separate from the AWA and IMBRA provisions discussed above, VAWA self-petitioners are currently not generally required to submit biometrics for adjudication. For many immigrant victims of domestic violence, battery, or extreme cruelty, the U.S. citizen or lawful permanent resident family members who sponsor their applications threaten to withhold legal immigration sponsorship as a tool of abuse. VAWA allows abused immigrants to petition for legal status in the United States without relying on abusive U.S. citizen or lawful permanent resident spouses, parents, or children to petition for and sponsor their immigrant petition and Form I-485. The purpose of the VAWA program is to allow victims the opportunity to “self-petition” or independently seek legal immigration status. DHS proposes in this rule that any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with a benefit or other request must appear for biometrics collection unless biometrics are waived. Accordingly, DHS proposes to remove the regulations that provide that VAWA self-petitioners are not required to appear for biometric collection. In addition, as noted in the PRA section of this preamble, DHS proposes to revise the applicable forms to require VAWA self-petitioners to comply with the biometrics submission requirement proposed in this rule.

VAWA self-petitioners are currently not subject to biometric collection and they establish good moral character required under 8 CFR 204.2(c)(2)(v) and 204.2(e)(2)(v) by: (1) Personal statement from the self-petitioner; (2) police clearance letters from the self-petitioner's places of residence for the three years before filing; and (3) other credible evidence, including affidavits from third parties attesting to the self-petitioner's good moral character. USCIS does not currently use biometrics to verify the identity of the self-petitioner or verify the accuracy or completeness of the disclosed criminal history information.

The proposed requirement for biometrics collection for VAWA self-petitioners would result in production of the self-petitioner's IdHS which provides greater accuracy and detail relating to the self-petitioner's criminal history. This would accomplish several goals. First, it would support the identity enrollment, verification, and management in the immigration lifecycle purpose for USCIS biometrics collection. Second, it supports the national security and criminal history background checks purpose for USCIS biometrics collection because relying on self-petitioners to obtain and present appropriate local police clearance letters is not the most reliable means of obtaining, or verifying, an accurate and complete criminal history for a self-petitioner. Third, it will simplify the petition for the self-petitioner as well as the adjudication for USCIS by reducing the evidence required to establish good moral character. The self-petitioner will

not need to contact the police department in every city in which he or she has lived and USCIS will not need to analyze multiple police letters for their findings. Due to certain limitations with biometric information sharing among foreign countries, self-petitioners who resided outside the United States in the three years before filing will still have to provide a law enforcement clearance, criminal background check, or similar report issued by an appropriate authority from any jurisdiction in which the self-petitioner resided for six or more months during the three year period immediately preceding the filing of the self-petition.

The proposed revision to 8 CFR 204.2(c)(2)(v) and 204.2(e)(2)(v) to require biometrics from VAWA self-petitioners will eliminate the need for self-petitioners who resided in the United States three years before filing to obtain multiple police or law enforcement clearance letters. The majority of self-petitioners would only need to travel to one USCIS ASC for biometrics collection. Further, USCIS adjudicators would no longer need to verify past addresses against police clearance letters, as the information discovered by collecting biometrics for a criminal history and national security background checks will be credible and relevant evidence when considering the good moral character requirement.

Consiste

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