# Collection and Use of Biometrics by U.S. Citizenship and Immigration Services > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2020-19145 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** September 11, 2020 - **Citation:** 85 FR 56338 ## Text 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. 1 2 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. 3 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. 1 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. 2 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. 3 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 4 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. 5 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. 4 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. 5 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. 6 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. 7 6 To clarify, DHS is not proposing DNA collection at ports of entry. 7 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. 8 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. 8 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), 9 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) 10 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. 9 Public Law 109-248, section 402; 120 Stat. 587, 622 (July 27, 2006); INA 204(a)(1)(A)(viii) & (B)((i)(I). 10 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. 11 11 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 $705,555 annually accruing to fees the FBI would collect for providing fingerprint-based and name-based Criminal History Record Information (CHRI) checks In addition to the impacts summarized above and as required by Office of Management and Budget (OMB) Circular A-4, Table 2 presents the prepared accounting statement showing the costs associated with this proposed regulation. 12 12 OMB Circular A-4 is available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf. The DHS notes that the primary estimate reported here reflects the average of the highest 50 percent DNA submission rate (100 percent) and the lowest (0 percent). It also corresponds to the 50 percent midrange along the spectrum 10-90 percent that we utilize on grounds that realistically, there will be some collection (a positive rate) but not complete (100 percent) collection. Table 2—OMB A-4 Accounting Statement [$ millions, 2019] Category Primary estimate Minimum estimate Maximum estimate Source citation (RIA, preamble, etc.) BENEFITS Monetized Benefits Not estimated Not estimated Not estimated Preamble. Annualized quantified, but un-monetized, benefits 0 0 0 Preamble. Unquantified Benefits The proposed rule would limit identity fraud and improve USCIS identity management systems. Additionally, the proposed rule would enhance the U.S. Government's capability to identify criminal activities and protect vulnerable populations. The removal of age restrictions and the proposal to collect on all NTAs under the age of 14 would assist DHS in its mission to combat human trafficking, child sex trafficking, forced labor exploitation, and alien smuggling. Preamble and RIA. COSTS Annualized monetized costs for 10 year period starting in 2021 to 2030 (discount rate in parenthesis) (3%) $410 (7%) $410 $320.4 $320.4 $499.7 $499.7 RIA. RIA. Annualized quantified, but un-monetized, costs There could be costs germane to the procurement of equipment, information technology and typology, and systems possibly needed to support the increased biometrics modalities. There could also be a cost for transferring information regarding biometrics for the NTAs issued to individuals under age 14. Preamble and RIA. Qualitative (unquantified) costs N/A. TRANSFERS Annualized monetized transfers: “on budget” N/A N/A N/A Preamble. From whom to whom? N/A N/A N/A Preamble. Annualized monetized transfers: “off-budget” N/A N/A N/A Preamble. From whom to whom? N/A N/A N/A Preamble. Miscellaneous analyses/category Effects Source citation (RIA, preamble, etc.) Effects on state, local, and/or tribal governments None Preamble. Effects on small businesses There could be small entity impacts to EB-5 regional centers incurred by biometrics collection germane to the regional center principals. DHS believes these would be indirect but does not know how they could impact the regional center. There are currently 884 approved regional centers and DHS analysis based on limited available suggests that most regional centers could be small entities in terms of their RFA Preamble. Effects on wages None Preamble Effects on growth None Preamble. DHS emphasizes that the costs could vary from the figures reported herein. As is detailed in the analysis, in order to estimate the population of future biometrics submissions, it was necessary to extrapolate certain metrics and conditions to the non-existent (in context) future populations. Although DHS believes the methodology employed is appropriate, because the future actual generalized and form-specific collection rate of biometrics are unknown, the actual populations and costs could vary. In addition, the costs rely on a lower-end average wage to account for opportunity costs associated with biometrics submissions. If, on average, the wage is higher than that relied upon, the costs could vary as well. This regulatory impact analysis is the best available estimate of the future benefits and costs. Actual results will depend on a number of factors including programmatic, operational, and practical considerations in the implementation of the collection of biometrics under this rule. In summary, the proposed rule would enable DHS to conduct the administration and adjudication of immigration benefit requests with increased fidelity, and is conducive to the evolution to a person-centric model for organizing and managing its records, enhanced and continuous vetting, and reduced dependence on paper documents, as is described more fully in the preamble. III. Background and Purpose A. Legal Authority and Guidance for DHS Collection and Use of Biometrics DHS has general and specific statutory authority to collect or require submission of biometrics from applicants, co-applicants, petitioners, requestors, derivatives, beneficiaries and others directly associated with a request for immigration benefits; and for purposes incident to apprehending, arresting, processing, and care and custody of aliens. First, the INA at section 103(a), 8 U.S.C. 1103(a), provides general authority to DHS to administer and enforce immigration laws, including issuing forms, regulations, instructions, other papers, and such other acts the Secretary of Homeland Security (the Secretary) deems necessary to carry out the INA. The INA also provides specific authority for DHS to collect or require submission of biometrics in several sections. • INA section 235(d)(3), 8 U.S.C. 1225(d)(3), provides that the Secretary and any immigration officer will: . . . have power . . . to take and consider evidence of or from any person touching the privilege of any alien or person he believes or suspects to be an alien to enter, reenter, transit through, or reside in the United States or concerning any matter which is material and relevant to the enforcement of this chapter and the administration of the Service. • INA 287(b), 8 U.S.C. 1357(b), provides DHS authority to, “. . . take and consider evidence concerning the privilege of any person to enter, reenter, pass through, or reside in the United States, or concerning any matter which is material or relevant to the enforcement of this chapter and the administration of the Service.” • INA sections 333 and 335, 8 U.S.C. 1444 and 1446, require the submission of photographs and a personal investigation before an application for naturalization, citizenship or other similar requests may be approved. • INA section 262(a), 8 U.S.C. 1302(a), provides direct statutory authority for the collection of fingerprints for the purpose of registering aliens. • INA section 264(a), 8 U.S.C. 1304(a), 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 the broad statutory authority described above as authority for the collection of biometrics when such information is material or relevant to the furtherance of DHS' delegated authority to administer and enforce the INA. DHS' delegated authority includes the adjudication of requests for immigration benefits, as well as authority to “register and fingerprint aliens in the United States.” 13 Establishing and verifying an individual's identity through the use of biometrics falls within DHS' authority in the adjudication of immigration benefits and administration and enforcement of immigration laws. 13 6 U.S.C. 271(b); see also Department of Homeland Security Delegation Number: 0150.1, Delegation To the Bureau of Citizenship and Immigration Services (June 5, 2003), available at https://www.hsdl.org/?view&did=234775 (viewed Nov. 12, 2019). Several other statutes authorize the collection of biometrics by DHS. In 1997, when funding the agency for 1998, Congress directed the former Immigration and Naturalization Service (INS), which preceded the creation of DHS, not to accept any fingerprint cards collected by entities outside the INS for immigration benefits, except in certain instances when collected by law enforcement agencies and in certain overseas situations. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Title I, Public Law 105-119, 111 Stat. 2440, 2447-2448 (1997). Previously, certain “designated fingerprint services” entities could collect fingerprints. After passage of this law, which necessitated a change in INS' practices, INS established the Application Support Centers (ASCs) which exist nationwide today and are operated by DHS for the collection of biometrics for immigration benefits. See 63 FR 12979 (Mar. 17, 1998). The 1998 appropriations law also provided for the former INS to charge a fee for fingerprinting. A fingerprinting fee was first charged in March 1998, and has evolved into the biometric services fee in 8 CFR 103.7(b)(1)(i)(C). 14 14 Another section of the INA specifically authorizes USCIS to collect fees for fingerprinting, biometric, and other necessary services under the Temporary Protected Status (TPS) program. 8 U.S.C. 1254b; DHS Appropriations Act of 2010, Public Law 111-83, sec. 549, 123 Stat. 2142, 2177 (2009). 1. Background Checks 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. 15 Whether granting a benefit is discretionary or not, criminal histories are relevant because they are used to determine eligibility for both discretionary and non-discretionary benefits. Additionally, DHS is mandated to protect the American public from terrorist attacks by foreign nationals admitted to the United States, by “identify[ing] individuals who seek to enter the United States . . . 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 Executive Order (E.O.) No. 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, at section 5(a), 82 FR 13209, 13215 (Mar. 9, 2017) (E.O. 13780). Therefore, DHS adjudications must include national security considerations and criminal history background checks. 15 DHS would like to note that limitations on biometric collection or use in this proposed rule would not impact existing law enforcement authorities or other national security or intelligence gathering activities. For example, one statute precludes the filing of a family-based immigrant petition by someone who has been convicted of a “specified offense against a minor.” See INA section 204(a)(1)(A)(viii), 8 U.S.C. 1154(a)(1)(A)(viii). The criminal and security-related grounds of inadmissibility found in INA section 212(a)(2)-(3), 8 U.S.C. 1182(a)(2)-(3), apply to many benefits, such as adjustment to lawful permanent resident status, refugee status, and Temporary Protected Status (TPS). The INA provides that refugee applicants must be admissible as immigrants and the criminal, security, and terrorism-related grounds of inadmissibility apply to refugee applicants. See INA section 207(c)(1), 8 U.S.C. 1157(c)(1); INA section 212, 8 U.S.C. 1182. The INA provides that asylum may be granted on a discretionary basis. See INA section 208(a)(1)(A), 8 U.S.C. 1158(a)(1)(A). It provides that asylum applicants are subject to mandatory criminal and security bars. See INA section 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A). Sections of the INA apply the criminal, security, and terrorism-related bars to TPS applicants, including the mandatory asylum bars above. See INA sections 244(c)(2)(A)(iii)-(B), 8 U.S.C. 1254a (c)(2)(A)(iii)-(B). Various INA sections require that adjustment of status applicants be admissible in order to qualify. See, e.g., sections 245(a)(2) and 209(b)(5), 8 U.S.C. 1255(a)(2) and 8 U.S.C. 1159(b)(5). The INA also provides a good moral character requirement for any applicant to be naturalized. See INA section 316(a)(3), 8 U.S.C. 1427(a)(3). Other statutes authorize DHS to conduct biometric services in relation to national security and public safety purposes. For example, Congress directed in the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56, 115 Stat. 354 (2001), reauthorized by Public Law 114-23, 129 Stat. 268 (2015) (codified at note to 8 U.S.C. 1365a), that “biometric technology” should be utilized in the development of the integrated entry-exit system originally mandated by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, Public Law 104-208, 110 Stat. 3009 (1996) (codified at 8 U.S.C. 1365a). The Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat. 3638 (2004) (codified as amended at 8 U.S.C. 1365b), required the completion of a biometric data system to facilitate efficient immigration benefits processing and to protect the United States by preventing the entry of terrorists. For USCIS, any limitations on the collection or use of biometrics in this draft rule does not impact DHS law enforcement authorities or other national security or intelligence gathering activities. Background checks are also required by EOIR regulation for aliens who apply for relief and protection in removal proceedings. Specifically, immigration judges and the BIA are prohibited from granting relief and protection to an alien unless an ICE attorney reports that all required “identity, law enforcement, or security investigations or examinations” have been completed. See 8 CFR 1003.1(d)(6), 1003.47(g). Indeed, as pertaining to asylum applications, there is a statutory basis for such background checks as well. See 8 U.S.C. 1158(d)(5)(A)(i); see also 8 CFR 1208.10. Once again, 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. 2. Secure Document Production Still other statutes authorize or require the collection of biometrics for secure document production. For example, photographs are required by statute to create certificates of naturalization. INA section 333(a), 8 U.S.C. 1444(a). Additionally, an alien granted asylum will be granted an employment authorization document (EAD) that shall at a minimum contain the fingerprint and photograph of such alien. 8 U.S.C. 1738. Relatedly, the Enhanced Border Security and Visa Entry Reform Act of 2002 (Border Security Act), Public Law 107-173, 116 Stat. 543 (2002), requires that DHS issue aliens machine-readable, tamper-resistant visas and other travel and entry documents using biometric identifiers. 8 U.S.C. 1732(b)(1). 3. Biometric Collection From U.S. Citizens and Lawful Permanent Residents DHS is also authorized to collect the biometrics of U.S. citizen and lawful permanent resident petitioners of family-based immigrant petitions, and U.S. citizen petitioners of nonimmigrant fiancé(e) petitions, to determine if a petitioner has been convicted of certain crimes pursuant to the AWA, Public Law 109-248, 120 Stat. 587 (2006) (codified as amended in scattered sections of 18 and 42 U.S.C.) (see sections 402(a) and (b) for the applicable immigration provisions), and IMBRA, Public Law 109-162, 119 Stat. 2960 (2006) (codified as amended at 8 U.S.C. 1375a). The AWA: • Prohibits U.S. citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based immigrant visa petition on behalf of any beneficiary, unless the Secretary determines in his or her sole and unreviewable discretion that the petitioner poses “no risk” to the beneficiary. INA section 204(a)(1)(A)(viii)(I), (B)(i)(II); 8 U.S.C. 1154(a)(1)(A)(viii)(I), (B)(i)(II). • Renders ineligible to file “K” nonimmigrant fiancé(e) petitions those U.S. citizens convicted of such offenses, unless the Secretary determines in his or her sole and unreviewable discretion that the petitioner poses “no risk” to the fiancé(e) beneficiary. INA section 101(a)(15)(K), 8 U.S.C. 1101(a)(15)(K). Independent of the AWA, USCIS is also required to disclose information regarding certain violent arrests and convictions for some U.S.C. petitioners who file K-visas for fiancés or spouses in accordance with IMBRA, 8 U.S.C. 1375a. 4. Administrative Guidance This proposed rule is also consistent with non-statutory guidance on effective mechanisms for foreign national vetting, screening, and identification. DHS was directed by executive branch guidance to take actions that require a robust system for biometrics collection, storage, and use related to providing adjudication and naturalization services of immigration benefits. For example, with respect to secure documents, Homeland Security Presidential Directive (HSPD) 11, “ Comprehensive Terrorist-Related Screening Procedures,” (August 27, 2004) directs DHS to “incorporate security features . . . that resist circumvention to the greatest extent possible.” DHS is directed to consider the “. . . information individuals must present, including, as appropriate, the type of biometric identifier[s] or other form of identification or identifying information to be presented, at particular screening opportunities.” DHS was also directed to expand the use of biometrics, consistent with applicable law, to identify and screen for individuals who may pose a threat to national security by HSPD 24, “Biometrics for Identification and Screening to Enhance National Security,” (June 5, 2008). In addition, E.O. 13780 requires DHS to implement a program, as part of the process for adjudications, to 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. 82 FR 13209, 13215 (Mar. 9, 2017). The E.O. provides that the program must include screening and vetting standards and procedures, a mechanism to ensure that applicants are who they claim to be, assess whether applicants may commit, aid, or support any kind of violent, criminal, or terrorist acts after entering the United States, and evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits. Id. Further, National Security Presidential Memorandum—7 established the DHS-led National Vetting Center to improve vetting “to identify potential threats to national security, border security, homeland security, and public safety”, and included expanding biometric integration, sharing, and use to that end. 16 16 National Security Presidential Memorandum—7, SUBJECT: Integration, Sharing, and Use of National Security Threat Actor Information to Protect Americans (Oct. 5, 2017), available at https://www.whitehouse.gov/presidential-actions/national-security-presidential-memorandum-7/ . B. The Use of Biometrics by DHS Current regulations provide both general authorities for the collection of biometrics in connection with administering and enforcing the immigration and naturalization benefits as well as requirements specific to certain benefit types. 17 In a related provision, an applicant, petitioner, sponsor, beneficiary, or individual filing a benefit request may be required to appear for biometrics. See 8 CFR 103.2(b)(9). 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 or seeking a benefit request on a case-by-case basis, through form instructions, or through a Federal Register notice. Id. 17 See, e.g., 8 CFR 103.16(a), 204.2(a)(2) (requiring evidence of the claimed relationship), 204.3(c)(3) (requiring fingerprinting), 204.2(d)(2)(vi) (authorizing blood testing), 245a.2(d) (requiring photographs and a completed fingerprint card), 316.4(a) (referring to form instructions which may require photographs and fingerprinting). The former INS first used fingerprints for immigration processing solely for the purpose of performing criminal history background checks related to applications for which eligibility required good moral character or non-existence of a record of certain criminal offenses. See, e.g., 63 FR 12979 (Mar. 17, 1998) (prohibiting the former INS from accepting fingerprints for the purpose of conducting criminal background checks unless collected by certain U.S. Government entities). The beneficiary or applicant would submit fingerprints which were then checked against FBI databases to determine if they matched any criminal activity on file. The fingerprints were not retained by the INS and delays in processing would often result in individuals needing to submit fingerprints multiple times for the same application. Photographs were not historically collected by INS as a biometric identifier. For those immigration benefit requests that required a photograph to produce a resulting identity document, the regulations required submission of a passport-style photograph. See, e.g., 8 CFR 264.1, 264.5 (requiring identical photographs). Today, DHS handles biometrics differently. Biometrics are still used in criminal history background checks for immigration benefits where good moral character or absence of certain criminal offenses are required, as well as for overall national security vetting. In addition, biometrics may be stored by DHS and used to verify an individual's identity in subsequent encounters with DHS. These encounters could vary from travel to and from the United States, where an individual may encounter CBP officers, to arrest and detention, by law enforcement components such as ICE, to initiation of removal proceedings. DHS also uses collected biometric information for document production related to immigration benefits and status, including but not limited to: Travel Documents (Form I-512L), Permanent Resident Cards (Form I-551), Employment Authorization Documents (Form I-766), Certificates of Citizenship (Form N-560), Certificates of Naturalization (Form N-550), Replacement Certificates of Citizenship (Form N-561), and Replacement Certificates of Naturalization (Form N-570). 18 Most of these secure documents are created using the photograph (and signature) that is taken by DHS at an ASC, and not the paper photograph mailed with the benefit request. 19 18 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). 19 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. 20 20 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. 24 21 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. 22 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. 23 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. 24 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. 25 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. 25 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. 26 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. 26 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. 27 27 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. 28 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.). 28 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 29 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. 29 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. 30 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). 30 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 31 31 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. 32 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. 33 32 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). 33 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. 34 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 is the child's parent. 35 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. 36 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. 34 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). 35 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/. 36 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) 37 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). 37 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.). 38 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). 38 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 39 where other documentary evidence is inconclusive or unavailable. 40 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. 39 See AABB home page at http://www.aabb.org/Pages/default.aspx (last visited Apr. 7, 2020). 40 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. 41 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. 42 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.” 41 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). 42 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2020-19145. Public record. Not legal advice.