Certification of Designated Outside Entities to Take Fingerprints

SUMMARY: The Immigration and Naturalization Service (Service) is

proposing to certify designated outside entities (DOEs) to take

fingerprints of applicants for immigration benefits. This rule would

establish eligibility criteria and application procedures to certify

DOEs. The proposed rule would facilitate processing of applications for

immigration benefits and protect the integrity of the fingerprinting

process, while relieving the strain on Service resources.

DATES: Written comments must be received on or before July 14, 1995.

ADDRESSES: Please submit written comments, in triplicate, to the Policy

Directives and Instructions Branch, Immigration and Naturalization

Service, 425 I Street NW., Room 5307, Washington, DC 20536, Attn:

Public Comment Clerk. To ensure proper handling, please reference INS

No. 1666-94 in your correspondence. Comments are available for public

inspection at this location by calling (202)-514-3048 to arrange an

appointment.

FOR FURTHER INFORMATION CONTACT:

Pearl Chang, Senior Examiner, Jack Rasmussen, Senior Examiner, or Ray

Jaroneski, Senior Examiner, Adjudications Division, Immigration and

Naturalization Service, 425 I Street NW., Room 3214, Washington, DC

20536, telephone (202) 514-3240. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

Background

Applicants for various types of immigration benefits are required

to submit a set of fingerprints on Form FD-258, Applicant Fingerprint

Card, along with their applications. The applicants' fingerprints are

forwarded to the Federal Bureau of Investigation (FBI) for checks for

criminal history that may render an alien ineligible for immigration

benefits.

Traditionally, applicants for immigration benefits have been

fingerprinted at Service local offices. Over the past few years,

because of resource shortages and uncontrollable overcrowding, most

Service field offices have been forced to stop fingerprinting

applicants for immigration benefits. Since other law enforcement

agencies have not been able to meet the demand, applicants have turned

to private enterprises for fingerprints. Under these circumstances, the

Service typically does not know the identity of the person or

organization that prepared the fingerprints.

In a February 1994 inspection report, the Office of Inspector

General (OIG) of the Department of Justice identified two major

deficiencies in the current fingerprinting process that required

corrective action: the reliance on unknown and untrained outside

entities to prepare fingerprints; and the lack of identity verification

of the individuals fingerprinted. In addition, the OIG pointed out that

fingerprint cards submitted by the applicants were often of poor

quality and had to be rejected by the FBI. The OIG recommended that the

Service establish procedures to institute control and oversight of the

fingerprint process. The Committee on Appropriation of the United

States Senate also expressed concern about the current fingerprint

process and directed in its report dated July 14, 1994, that the

Service implement a fingerprint collection system which accepts only

fingerprints taken by authorized entities, including trained Service

employees, recognized law enforcement agencies, or Service certified

outside entities.

In May 1994, the Service convened a working group, which was

comprised of representatives from various Service components along with

advisors from the FBI and the OIG, to recommend solutions. After

considering various options, the working group recommended that the

Service adopt a policy of encouraging Service local offices to provide

fingerprinting services. Where that was not feasible, the working group

recommended that the district director designate outside entities to do

the job. The district director would assess the unique local situation

prior to deciding whether to certify DOEs or to renew them when the

initial certification of 3 years expires. The working group concluded

that certification of DOEs is the most cost-effective way to restore

integrity to the process in the short term and that it should be

implemented as soon as possible. Based on these recommendations, the

Service is undertaking rulemaking to establish eligibility criteria,

certification requirements, application procedures, and a date on which

the Service will stop accepting fingerprint cards prepared by

unauthorized entities.

The Service is aware that the objectives of the proposed DOE-

certification program cannot be fulfilled unless the outside entities

are carefully screened and monitored. The Service is contemplating

three complementary methods for the monitoring of DOEs: on-site review

of DOE operations; completion of an attestation form (discussed later)

which the applicant is to submit to the Service with the fingerprint

cards; and, in many cases, physical verification of benefit-applicants'

fingerprints during their interviews with Service officers. The latter

is possible because the Service has been developing imaging capability

in its Computer Linked Adjudication and Information Management System

(CLAIMS). This imaging capability can be used to capture, store, and

reproduce the digitalized image of the fingerprints submitted by

applicants for benefits. At interview time, the adjudicating officer

will be able to compare a system-generated image of the applicant's

right index fingerprint with a freshly taken print of the interviewee's

right index finger to ascertain that they belong to the same person.

It should be emphasized that the working group gave serious thought

to the feasibility of resuming fingerprinting services at all Service

field offices. However, acquiring additional staff and facilities is a

time-consuming process. Even with a fee increase, it would take up to 3

years to implement a fully [[Page 25857]] functional fingerprinting

operation at all local Service offices. It is simply not feasible for

all Service field offices to resume the fingerprinting service in a

short time. The working group believed that the establishment of an

automated fingerprint information system would ultimately resolve the

current problems, yet it is not a solution that could be implemented

immediately. Thus, the fingerprint working group recommended the use of

DOEs as an interim solution while the Service is actively working on

automating the fingerprinting process.

Upon development of an automated fingerprint information system,

the Service will decide if there is a continued need for the DOEs'

services and, if so, whether they should switch to newer technologies,

such as acquiring automated fingerprinting equipment that meet the

Service's specifications. In either event, the Service shall issue a

public notification or make a new rule, as appropriate.

During the deliberation of the fingerprinting options, the Service

explored contracting as a possible solution, but determined that

contracting was not viable. A controlled procurement contract requires

the contracting agency and the contractor to enter into a binding

agreement involving appropriated funds, and these required conditions

do not exist. On the other hand, section 103 (a) and (b) of the

Immigration and Nationality Act (``the Act'') confers upon the Attorney

General, and the Commissioner of the Service by delegation, the

authority to establish regulations necessary for carrying out the

provisions of the Act. For reasons explained earlier in this preamble,

rulemaking appears to be a reasonable and practical way to solve the

fingerprinting problem.

In this rulemaking, the Service is proposing the creation of a new

paragraph (e) in 8 CFR 103.2, to establish eligibility standards,

responsibilities, and application procedures for DOE certification.

Public comments are encouraged and must be received by the Service

on or before July 14, 1995. It has also been suggested that DOEs

certified as a result of this rulemaking could ultimately be endorsed

and utilized by other federal, state, or local government agencies

which require fingerprints from applicants for various types of

benefits or programs under this jurisdiction. Comments are also

solicited on the feasibility of such an expansion in the role of DOEs

and on what changes to the rule would be necessary to accommodate that

broader role.

Proposed Regulation for Certification of DOEs

1. DOE Eligibility

As stated earlier, the purpose of the fingerprints-clearance

requirement is to ensure that the applicants for immigration benefits

(e.g., adjustment to permanent residence, citizenship, adoption of

foreign orphans, etc.), do not have criminal records that would render

them ineligible. Because the validity of the fingerprints is an

essential premise for carrying out the Service's obligation to identify

and deny benefits to ineligible aliens, it is important that the

fingerprinting process is not entrusted to persons whose past criminal

conduct or other wrongdoing makes them unsuitable for such

responsibility.

Thus, the proposed regulation would preclude from certification as

outside entities those applicants who have been convicted of any

aggravated felony as defined in section 101(a)(43) of the At or of any

crime involving dishonesty or false statement, who have been subjected

to a civil penalty for fraud under section 274C of the Act or any other

law. (If the applicant is an organization, these standards would also

be applied to its principal officers, directors, or partners.)

Moreover, an outside entity's employee who has been convicted of an

aggravated felony or a crime involving dishonesty or false statement,

or subjected to a civil penalty for fraud, would not be eligible to

take fingerprints, unless the outside entity can establish to the

Service's satisfaction that the circumstances are such (because of the

person's youth at the time of the conduct, the number of years that

have passed since then, or other convincing factors) that there can be

no reasonable questions as to the person's reliability in taking

fingerprints in conformity with these rules.

In interpreting the terms ``dishonesty or false statement'', the

Service may take general guidance to the degree that it is appropriate

by analog to the judicial interpretations of crimes involving

``dishonesty or false statement'' as that phrase is used in Rule

609(a)(2) of the Federal Rules of Evidence and prior cases. For

example, Government of Virgin Islands v. Toto, 529 F.2d 278 (3d Cir.

1976), includes criminal convictions involving ``perjury or subornation

of perjury, false statement, criminal fraud, embezzlement, false

pretense, or any other offense which involves some element of

deceitfulness, untruthfulness or falsification''. The Service invites

comments from the public on these issues.

Since the FBI fingerprint-check is the only practical means

available to the Service to positively identify any known criminal

history, this rule would require outside entity employees with

fingerprinting responsibility to submit their own fingerprints for an

FBI check. Fingerprints submitted to support applications for

certification as a DOE would have to be taken by designated Service

personnel at local offices.

The proposed rule would also provide for a streamlined registration

process for Federal, state, or local law enforcement facilities and

military police facilities which provide fingerprinting service. These

local police stations and military police facilities would be

automatically eligible for DOE status provided that they register with

the Service on Form I-850, Application for Certification as Designated

Outside Entity to Take Fingerprints. No FBI fingerprint check,

application fee, or additional training would be required of their

personnel charged to take fingerprints. Once registered, the Service

would include these police stations and military police facilities on

the listing of DOEs and make available to them the Service's

fingerprinting regulations and instructions.

2. Requirements

As set forth in Sec. 103.2(e) of the proposed regulation, a DOE

would be required to take legible and classifiable fingerprints of

applicants, or be required to retake the fingerprints deemed to be

illegible free of charge. A DOE would be allowed to charge an

additional fee, however, if a good set of fingerprints is rendered

illegible due to improper handling by the applicant. As part of the

fingerprinting procedures, a DOE would be required to check the

identification of the person being fingerprinted by comparing the

information on the fingerprint cards with that of his or her passport,

alien registration card, or any other Service issued photo-ID. The DOE

would be required to maintain clean and suitable facilities that are

accessible to the general public. The DOE would be required to use only

fingerprint cards (Forms FD-258) or any other forms that are specified

and supplied by the Service. Reproduced copies of Form FD-258 would be

rejected.

A DOE could charge a reasonable fee for taking the fingerprints.

Even though the Service has not imposed a fee limitation, a DOE would

be required to make its fee known to the Service at the time its

application for DOE-certification is filed and when there is a fee

change. The Service believes that [[Page 25858]] competition in the

marketplace would keep the DOEs' fees at a reasonable level. Each local

Service office would compile a list of the DOEs in its jurisdiction,

giving their names, addresses, telephone numbers, and fees, and make

the list available the public to encourage healthy competition.

A DOE would be required to immediately notify the Service director

having jurisdiction over his or her place of business of any changes in

personnel who take fingerprints. All DOE personnel charged with the

responsibility to take fingerprints would be required to undergo and

pass an FBI criminal history check, as discussed.

A DOE would be required to ensure that its employees receive

adequate training in fingerprinting techniques and photo-ID

verification procedures. A qualifying outside entity applying for

certification would be required to show that all of its personnel

charged with the fingerprinting responsibility have been trained by the

Service or the FBI, are scheduled to receive such training prior to the

approval of the application, or can otherwise demonstrate proficiency.

After certification, a DOE, however, would be allowed to train its

new employees, provided that the trainer was initially trained by the

Service or the FBI. The proposed rule would condition the grant of DOE

status to the entity's successful completion of the required training.

Training could be arranged through local Service offices. An applicant

who has been previously trained in fingerprinting by the Service or the

FBI, or who can otherwise demonstrate proficiency, could be exempt from

this training requirement.

A DOE would be required to immediately notify the Service of any

conviction for an aggravated felony or a criminal offense involving

dishonesty or false statement or of any civil penalty for fraud

committed by an employee charged to take fingerprints. Since these

types of activities cast doubt on an individual's credibility as a

responsible person, the Service would need to be alerted.

A DOE would be required to permit the Service to make periodical

on-site inspection of its operations to ensure compliance with required

procedures. If a DOE was found to be in violation of the established

regulations and procedures, and in the absence of evidence of willful

misconduct, it would be given the opportunity to submit rebuttal

evidence or request a reinspection following corrective actions. If the

DOE failed to submit evidence of rebuttal or take corrective actions

within a 30-day period, or if unsatisfactory conditions persisted at

the second inspection, the Service could revoke its DOE status.

3. Attestation

To assure the Service of the integrity of the fingerprint cards

submitted, the proposed rule would require all DOE fingerprints to fill

out an attestation each time they take fingerprints for an immigration

benefit applicant. In turn, applicants for immigration benefits would

file this attestation together with the fingerprint card. The

attestation must be signed and dated by the fingerprinter and state:

(1) That he or she has properly checked the identity of the person

being fingerprinted and entered, on the form, information pertaining to

the individual's passport, alien registration card, or other acceptable

Service issued photo-ID; (2) that he or she is an employee of a

certified DOE, giving the DOE's name, address, certification number (as

assigned by the Service) and expiration date; (3) that he or she

understands the fingerprinting requirements as established by this

remaking and has received adequate training to perform his or her

responsibilities, giving his or her name and ID number (as assigned by

the Service); and (4) the name, signature, and identification provided

by the person being fingerprinted (the benefit applicant). The DOE's

fingerprinters would be required to execute the attestations in

duplicate in the presence of the benefit applicants. The original copy

would be given to the person being fingerprinted, to be filed with the

Service along with the fingerprint cards. The second copy, which may be

a reproduced copy of the first one, would be kept on file by the DOE

for at least 3 months for Service inspection. The Service would provide

a standardized attestation, Form I-850A, Attestation by Designated

Outside Entities Certified to Take Fingerprints, to DOEs for their

convenience. The DOEs would be allowed to use reproduced copies of Form

I-850A. Most of the information on the form could be preprinted, except

for the fingerprinter's signature, the date, and the information

pertaining to the person being fingerprinted.

4. Application

To obtain certification as a DOE, a qualifying outside entity would

be required to file an application on Form I-850, including the

required fee, with the district director having jurisdiction over the

applicant's place of business. A DOE would also use Form I-850 to apply

for renewal of its certification, to change its address or fee, or to

seek approval for new or replacement employees to take fingerprints.

The district director would consider all supporting materials submitted

and request other evidence of eligibility for certification as he or

she may deem necessary. The initial certification is valid for three

years and, if the district director finds a continuing need, may be

renewed by applying to the district director having jurisdiction over

the DOE's place of business on a new Form I-850, with the required fee,

at least 90 days before it expires.

5. Fee

As previously mentioned, an application for DOE certification would

be filed on Form I-850, with the required fee of $370. (The fee for

filing an application for renewal of DOE certification would be $200.)

The application fee would underwrite the Service's processing and

administrative costs incurred in the DOE certification process, such as

staffing, training of Service personnel on the DOE certification

process, adjudication of applications, oversight or DOEs, as well as

providing fingerprinting training (including instructional material and

training videos) to DOEs. The proposed fee amount is based on estimates

of these costs and is supported by a fee analysis, which is available

upon request. Since the FBI fingerprint-check and related processing

currently costs the Service $23 per person, an employer would also be

required to pay an additional fee of $23 for each of its employees

submitted for the Service's approval to take fingerprints. A fee would

not be charged for filing a request for adding new employees to a prior

approved list, but the employer would have to pay the fingerprint-check

fee of $23 for each of the new employees.

6. Revocation

DOE certification would be automatically revoked when the DOE

withdraws its application, or goes out of business prior to the

expiration of the approval. The district director may also revoke on

notice the certification of a DOE that is providing poor quality

prints, cannot provide adequate assurance as to the identity of persons

being fingerprinted or the integrity of its employees, or otherwise has

violated the fingerprinting requirements. In that case, the district

director would issue a notice of intent to revoke detailing the reasons

for the intended action. Within 30 days of the receipt of the notice,

the DOE could submit evidence of rebuttal. If the district director is

not satisfied with the evidence of rebuttal or if the DOE fails to

respond within the 30-day period, the district director would notify

[[Page 25859]] the DOE of the revocation, and of its right to appeal.

If the violations are egregious, such as failure to verify the identity

of the individuals seeking fingerprinting, the district director could

issue a suspension order and place the DOE on immediate suspension. If

the reason for suspension is correctable, the DOE under suspension

could submit evidence of corrective action to the district director

within 30 days and request a second inspection. Upon approval by the

district director, the DOE would be allowed to resume fingerprinting on

probation pending the results of the reinspection.

7. Confidentiality

Section 264(b) of the Act provides that all registration and

fingerprint records made under Title II are confidential and may be

made available only (1) to Federal, State, and local law enforcement

agencies, upon request, pursuant to section 287(f)(2) of the Act, and

(2) to such persons and agencies as may be designated by the Attorney

General. To preserve confidentiality, the proposed regulation would

prohibit a DOE from releasing the fingerprints taken pursuant to the

provisions of 8 CFR 103.2(e), other than to the Service or to the

subject or as otherwise provided in the Service's regulations.

This restriction is not intended to preclude law enforcement

agencies registered under 8 CFR 103.2(e) from using the fingerprints

they have collected for immigration purposes in other law enforcement

pursuits.

8. Effective Date

Upon publication of the final regulation in the Federal Register,

qualifying outside entities may apply to the district director having

jurisdiction over the location of their businesses for certification as

a DOE. During the initial certification phase, the Service will allow

an overlapping period to give outside entities sufficient time to

obtain certification. To facilitate a smooth transition to the new

fingerprinting environment, the Service intends to implement the

certification process, within a 6-month period, in two stages: (1) As

of 120 days from the date of publication of the final rule in the

Federal Register, the service would require that all fingerprints

submitted by immigration benefit applicants be taken by either a

Service employee, a DOE fingerprinter, or an outside entity who has

completed and filed an application for certification with the Service;

and (2) As of 180 days from the date of publication of the final rule

in the Federal Register, the Service would phase out all uncertified

fingerprinters.

As indicated, the Service does not plan to implement the new

fingerprinting process to a full scale until 6 months after the final

rule has taken effect, but it would begin to implement the attestation

provision of the proposed regulation before the end of the transitional

period. As of 90 days from the date of publication of the final rule in

the Federal Register, the Service would require that all fingerprint

cards submitted by benefit applicants be accompanied by an attestation

on Form I-850A by the fingerprinter. An outside entity that has

completed and filed an application for DOE status prior to 90 days from

the date of publication of the final rule in the Federal Register may,

pending the Service's action upon its application, take fingerprints

and complete the Form I-850A, indicating that its application for DOE

status is pending. This provisional authority will cease if its

application is denied or as of 180 days from the date of publication of

the final rule in the Federal Register.

The information collection requirements contained in this rule have

been cleared by the Office of Management and Budget, under the

provisions of the Paperwork Reduction Act. Clearance numbers for these

collections will be contained in 8 CFR 299.5, Display of Control

Numbers.

Regulatory Flexibility Act

The Service has examined the impact of this proposed rule in light

of Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C.

603, et seq.) and has drafted this rule in a way to minimize the impact

that it has on small business while meeting its intended objectives.

As set forth more fully elsewhere in the preceding supplemental

information, the current fingerprinting process does not adequately

ensure either the quality or the integrity of fingerprints submitted to

the Service by applicants for immigration benefits. This rulemaking

action is being conducted in order to address the concerns of the

Justice Department's Office of the Inspector General (OIG) and the

Committee on Appropriations of the United States Senate regarding the

current fingerprinting process. According to an OIG report issued in

February 1994, 11% of the total number of fingerprint cards submitted

by the Service to the FBI during fiscal year 1993 were rejected by the

FBI as unclassifiable. That is a high level of rejection based on the

quality of the fingerprints, resulting in unnecessary burdens on the

Service, the FBI , and the applicants. Moreover, in the absence of a

system to designate entities to take fingerprints, the Service often

does not know who took the fingerprints and lacks ready means to

determine if the fingerprints are actually those of the person

submitting them.

The objectives of this proposed rule are to facilitate processing

of applications for immigration benefits, protect the integrity of the

fingerprinting process, and relieve strain on Service resources by

establishing criteria for the certification of designated outside

entities to take fingerprints. The legal basis for this rule is the

authority conferred upon the Attorney General and, by delegation, upon

the Service by section 103 (a) and (b) of the Immigration and

Nationality Act to establish such regulations as are necessary to carry

out its provision. This rule will substantially promote the Service's

ability to identify and deny benefits to ineligible aliens, and to

promptly and effectively administer the immigration laws of the United

States by reducing unnecessary delays caused by poor fingerprint cards.

The Service believes that there are approximately 3,000 outside

entities which are taking fingerprints for immigration benefit

applicants. Because the entities providing fingerprinting services at

present are primarily small businesses, the Service has developed and

reviewed this proposed rule with the needs and circumstances of small

businesses specifically in mind. The Service is not aware of any

relevant Federal rules which duplicate, overlap or conflict with this

proposed rule.

The Service has considered significant alternatives to this

proposed rule which accomplish the objectives and which minimize any

significant economic impact of this rule on small entities, including

the use of contracting or greater use of Service facilities. The

Service has sought to avoid burdens on outside entities beyond those

requirements needed to improve the quality of the fingerprints taken

and to provide assurance to the Service that the fingerprints it

receives are genuine. As appropriate, requirements have been drafted as

performance standards, for example: that the fingerprints DOEs take be

legible and classifiable; that DOE personnel charged with the

responsibility to take fingerprints pass an FBI criminal history

records check; and that such DOE personnel be trained in fingerprinting

or otherwise be able to demonstrate their proficiency.

The Service considered the purposes for certification and made the

following determinations: [[Page 25860]]

1. This rule must improve the quality of fingerprints taken for

immigration benefit applicants by providing for the training of persons

taking fingerprints or by their demonstration of proficiency in doing

so. A beneficial result of improving the quality of fingerprints will

be to reduce amount of time wasted by the applicant and by the Service

in the processing and retaking of smeared or otherwise unusable

fingerprints. This rule must also improve the integrity of the

fingerprint process. This is accomplished by the licensing of DOE's and

by the requirement that attestations be submitted along with the

fingerprints. A beneficial result of improving the integrity will be to

reduce the number of immigration benefits improperly granted.

Many outside entities currently taking fingerprints do so with

acceptable standards of quality control and applicant verification. The

Service believes that such entities will have no difficulty qualifying

under this rule. The eligibility criteria of this rule have been

minimized as far as possible while remaining consistent with the

achieving of Service objectives in order to allow outside entities

which at present do not meet acceptable standards to raise their

standards to acceptable levels without undue burden.

2. Training requirements should be flexible in order to avoid

unduly burdening DOEs. Accordingly, the Service will exempt from the

training requirement those individuals who have been previously trained

by the Service or the FBI, or who can otherwise demonstrate

proficiency. Furthermore, the Service will allow a DOE to train its new

employees with an employee who was initially trained by the Service or

the FBI.

3. DOEs should decide for themselves what is a reasonable fee for

the services they provide. Instead of setting a fingerprinting fee for

the DOEs, the Service believes that the appropriate amount should be

determined by the marketplace. Therefore, the proposed regulation would

require that a DOE make its fee known to the Service when applying for

certification. The Service would encourage healthy competition by

compiling a DOE fee list and making it available to the public.

4. The regulation is a mechanism for setting guidelines for quality

control and should be educational in nature. The regulation is designed

to stress training and voluntary compliance. In the absence of willful

misconduct, the DOEs, found to be in violation of the established

regulations are not subject to sanctions until they had been given an

opportunity for a rebuttal or a second inspection within 30 days. The

Service will only take actions against those DOEs which have failed to

submit evidence of rebuttal or take corrective actions within the 30-

day period.

5. There should be a three-month transitional period during which

an outside entity may continue to take fingerprints. Entities that

apply for certification during this three-month period will be

grandfathered, pending the Service's decision to grant or deny

certification. This will allow the Service to regain control of the

fingerprinting process at the earliest possible date without disrupting

an outside entity's ability to conduct routine business. After the

transitional period, an outside entity which has applied for

certification before the end of the transitional period may continue to

take fingerprints until the Service acts on its application, as long as

it completes a standard attestation, Form I-850A, for each of the

immigration benefit applicants it fingerprints and indicates that its

application for certification is pending.

The Service has designed the attestation form to allow the DOEs to

partially fill in the information concerning the DOE, then provide

reproduced copies of the partially completed form for its

fingerprinters to use. The person who actually takes the fingerprints

would then easily be able to complete the form with the information

specific to the person being fingerprinted.

6. The Service will charge DOEs an application fee that is based on

actual cost. The Service is proposing to charge $370 for an initial

application and $200 for a renewal to underwrite the processing and

administrative costs incurred in the DOE certification process. The

proposed fee, which is supported by an estimated fee analysis, is based

on costs relating to staffing, training of Service personnel on DOE

certification process, adjudication of applications, oversight of DOEs,

as well as providing fingerprinting training to DOEs. In addition, due

to concerns for national security, the Service is proposing to require

all employees of outside entities responsible for taking fingerprints

to pass an FBI fingerprint-check. Since the fingerprint check and

related processing currently costs the Service about $23 per person, an

employer will also be required to pay an additional fee of $23 for each

of its employees submitted for approval or each change of employees.

Although this rule imposes a fee on qualified small business entities

to conduct fingerprinting services, the fee is minimal and will not

have a significant economic impact on small entities. DOEs will be able

to recoup the cost of the fee through the fees they charge for their

fingerprinting services.

7. In addition to the cost of certification and renewals, it is

estimated that each applicant would be required to expend approximately

two and half hours every three years completing the appropriate

application for certification or renewal of certification. The Service

is not asking the applicants to provide more information than what is

necessary for adjudicating their applications.

8. The Service will give the public sufficient time to comment on

the proposal for rulemaking, especially, those small business entities

that will be affected by it. To that end, the Service has set a 60-day

comment period. The Service will consider all comments received within

the comment period and make changes, as appropriate.

Executive Order 12866

This rule is considered by the Department of Justice, Immigration

and Naturalization Service, to be a ``significant regulatory action''

under Executive Order 12866, section 3(f), Regulatory Planning and

Review, and has been reviewed by the Office of Management and Budget.

As noted in the supplementary section of the rule, this action is

intended to facilitate processing of applications for immigration

benefits and protect the integrity of the fingerprinting process, while

reviewing the strain on Service resources.

Executive Order 12612

The regulation will not have substantial direct effects on the

States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the

various levels of government. Therefore, in accordance with Executive

Order 12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

Executive Order 12606

The Commissioner of the Immigration and Naturalization Service

certifies that she has addressed this rule in light of the criteria in

Executive Order 12606 and has determined that it will not have any

impact on family well-being.

List of Subjects

8 CFR Part 103

Administrative practice and procedure, Authority delegations

[[Page 25861]] (Government agencies), Reporting and recordkeeping

requirements.

8 CFR Part 299

Immigration, Reporting and recordkeeping requirements.

Accordingly, chapter I of title 8 of the Code of Federal

Regulations is proposed to be amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF

SERVICE RECORDS

1. The authority citation for part 103 continues to read as

follows:

Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252

note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,

15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

2. In Sec. 103.2 a new paragraph (e) is added to read as follows:

Sec. 103.2 Applications, petitions, and other documents.

(e) Fingerprinting. Service regulations require that applicants for

various types of immigration benefits submit their fingerprints with

the applications. The fingerprinting of these benefit applicants must

be carried out pursuant to the provisions contained in this paragraph

(e).

(1) Fingerprinting by the Service. Where feasible, a Service local

office shall provide fingerprinting service to applicants for

immigration benefits. The district director shall assess available

resources in his or her district office to determine whether the

district office can provide such service.

(2) Certification of designated outside entities. Where the

district director determines that the district office does not have the

resources to provide fingerprinting services, the district director may

certify one or multiple outside entities as a designated outside entity

(DOE) to provide the service. Where a district office does not have the

resources to fingerprint all applicants, the district director may

certify outside entities to take fingerprints to supplement the

district's efforts.

(3) Transition to use designated outside entities. As of 180 days

from the date of publication of the final rule in the Federal Register,

the Service will not accept fingerprint cards for immigration benefits

unless they are taken by:

(i) Designated Service employees;

(ii) A DOE accompanied by a completed attestation, Form I-850A; or

(iii) An outside entity that has completed and filed an application

for DOE status prior to 90 days from the date of publication of the

final rule in the Federal Register may, pending the Service's action

upon its application, take fingerprints and complete the Form I-850A,

indicating that its application for DOE status is pending. This

provisional authority for an outside entity shall cease if its

application is denied or as of 180 days from the date of publication of

the final rule in the Federal Register, whichever occurs first.

(4) Eligibility for DOE. An outside entity applying for DOE status

may be either a business, a not-for-profit organization, a Federal,

state, or local law enforcement facility, or an individual.

(i) An individual must establish that he or she is a United States

citizen or lawful permanent resident, and has not been convicted of an

aggravated felony or any crime involving dishonesty or false statement

or subjected to a civil penalty for fraud.

(ii) A business or a not-for-profit organization must establish

that it is of no known disrepute, that the majority (more than 50%) of

its ownership is comprised of United States citizen(s) or lawful

permanent resident(s), and that its principal officers, directors or

partners meet the standard for individual applicants. Subsidiaries of

foreign corporations may be exempted from the ownership requirement,

provided that the subsidiary is incorporated in the United States.

(iii) A Federal, state or local law enforcement facility may

register as a designated outside entity but does not need to comply

with the requirements in this paragraph regarding operating licenses,

identification and training of employees or application fees.

(5) Criminal history records check.

(i) An identification and criminal history record check is required

for each person listed on the application for DOE certification. The

district director shall designate Service personnel of the district

office to obtain and transmit fingerprints to the Federal Bureau of

Investigation (FBI) for such checks. If a DOE needs to add new or

replacement employees to the personnel approved by the Service, it must

file a new application, with the required fee for the FBI fingerprint

check, with the district director having jurisdiction over the DOE's

place of business. The Service will accept fingerprints from an

applicant for DOE-certification only if the fingerprints were taken by

designated Service personnel.

(ii) An employee who has been convicted of an aggravated felony or

a crime involving dishonesty or false statement, or subjected to a

civil penalty for fraud, may not be assigned to take fingerprints,

unless the DOE can establish to the Service's satisfaction that the

circumstances of the crime are such (because of the person's youth at

the time of the conduct, and/or the number of years that have passed

since then) that there can be no reasonable doubt as to the person's

reliability in taking fingerprints in conformity with these rules.

(6) Requirements. Except as provided under paragraph (e)(9), an

outside entity seeking certification as a DOE must agree that it will:

(i) Abide by Service regulations governing certification of DOEs;

(ii) Permit Service personnel to make on-site inspections to ensure

compliance with required procedures;

(iii) Ensure that the personnel responsible for taking fingerprints

received training in fingerprinting procedures by the Service or FBI

(exceptions can be made for those who have previously received training

from the FBI or the Service or who can otherwise demonstrate

proficiency);

(iv) If training in fingerprinting is in progress or has been

scheduled and will be conducted prior to the approval of the

application, notification of completion of training must be made to the

district director where the application was filed;

(v) Use only FBI or Service-trained employees to train its new

employees on fingerprinting procedures (exceptions can be made for

those who have previously received training from the FBI or the

Service) to conduct periodic refresher training as needed;

(vi) Make every reasonable effort to take legible and classifiable

fingerprints, using only black ink;

(vii) Retake the applicants' prints free of charge if the DOE

initially fails to take legible and classifiable prints;

(viii) Use only fingerprint cards (Forms FD-258 or other Service

specified forms) that were provided by the Service for all fingerprints

taken for immigration purposes;

(ix) Ensure that the fingerprint cards are correctly completed

using FBI prescribed identity codes;

(x) Ensure that the fingerprint cards are signed by the applicants

in their presence, and by the fingerprinter;

(xi) Verify the identification of the person being fingerprinted by

comparing the information on the fingerprint card, Form FD-258, or

other Service specified forms with the applicant's passport, alien

registration card, or other acceptable Service issued photo-ID;

(xii) Complete an attestation on Form I-850A and provide it to the

person being fingerprinted along with the fingerprint

cards; [[Page 25862]]

(xiii) Note on the fingerprint card, Form FD-258, or other Service

specified forms that it has been certified by INS as a DOE, giving its

DOE certification number (including the fingerprinter's ID number),

expiration date, name, and address;

(xiv) Charge no more than a reasonable fee, if a fee is charged,

and make that amount known to the Service;

(xv) Immediately notify the director having jurisdiction over the

applicant's place of business of any changes in personnel responsible

for taking fingerprints;

(xvi) Request approval for any new personnel to take fingerprints

according to the procedures set forth in paragraphs (e) (4), (5), (6),

(8), and (9) of this section;

(xvii) Notify the Service of any conviction for a crime involving

dishonesty or false statement or civil penalty for fraud subsequent to

the DOE's certification of an employee authorized to take fingerprints;

and

(xviii) Maintain clean and suitable facilities that are accessible

to the general public.

(7) Attestation.

(i) To ensure the integrity of the fingerprint cards submitted by

applicants for benefits, all DOE fingerprinters must fill out an

attestation on Form I-850A each time they take fingerprints for an

immigration benefit applicant. Such attestation must be signed and

dated by the fingerprinter and show:

(A) The fingerprinter's name and ID number (as assigned by the

Service) and a statement that the requirements of Sec. 103.2(e) have

been met;

(B) The name, address, certification number (as assigned by the

Service) and expiration date of the certified DOE;

(C) That he or she has checked the identity of the person he or she

fingerprinted and has listed the identification number from the

individual's passport, alien registration card, or other acceptable

Service issued photo-ID; and

(D) That it is signed and dated by the benefit applicant.

(ii) DOE fingerprinters must execute the attestations in duplicate

in the presence of the applicant. The original copy must be given to

the applicant to be filed with the Service with his or her fingerprint

card, and the second copy, which may be a reproduced copy of the first

one, must be kept on file at the DOE for at least three months for

Service inspection.

(8) Application. An outside entity seeking certification as a DOE,

or a DOE seeking approval for personnel change, must submit an

application on Form I-850, Application for Certification as a

Designated Outside Entity to Take Fingerprints, to the director having

jurisdiction over the applicant's place of business. The application

must include the following:

(i) The required fee;

(ii) A copy of all business licenses or permits required for its

operations;

(iii) The names and signatures of personnel who will take

fingerprints of applicants for immigration benefits;

(iv) A set of fingerprints taken by a Service employee on Form FD-

258 for each employee whose name appears on the application form

pursuant to paragraph (e)(4) of this section, and the required fee (for

each employee) for the FBI criminal history record check;

(v) A statement on Form I-850 indicating the fee, if any, it will

charge for the fingerprinting service; and

(vi) A signed statement on Form I-850 attesting that it will abide

by the Service regulation governing fingerprinting and the

certification of DOEs.

(9) Registration of police stations or military police facilities.

(i) Federal, state, or local police stations or military police

facilities may individually register to take fingerprints of applicants

for immigration benefits by filing a Form I-850, Application for

Certification as Designated Outside Entity to Take Fingerprints,

completing only the relevant parts of the form. No fee or fingerprint

cards need to be submitted for their personnel charged with the

fingerprinting responsibility; nor are these personnel required to have

additional training in fingerprinting techniques and procedures.

Furthermore, law enforcement agencies registered to take fingerprints

under this paragraph are not subject to on-site inspections by the

Service. The Service will communicate with these agencies through

regular liaison channels at the local level.

(ii) A police department may request registration on behalf of all

of its subordinate stations on a single application by listing their

precinct numbers and addresses. Once registered, the Service will

include the individual police stations and military police facilities

on the DOE listings and make available to them the Service's

fingerprinting regulations and instructions.

(10) Confidentiality. A DOE is prohibited from releasing

fingerprints taken pursuant to certification, other than to the Service

or to the applicant or as otherwise provided in the Service's

regulations. Law enforcement agencies enumerated under paragraph (e)(9)

of this section are not precluded from using the fingerprints they have

collected for immigration purposes in other law enforcement efforts.

(11) Approval of application. The district director shall consider

all supporting documents submitted and may request additional

documentation as he or she may deem necessary. When the application has

been approved, the district director shall assign a certification to

the DOE and individual ID numbers to its approved fingerprints. The

approval will be valid for a period of 3 years and may be renewed in

accordance with paragraph (e)(13) of this section. The district

director shall notify the applicant of the approval and include in the

notice of approval the following items:

(i) Instructions on how to prepare Applicant Fingerprint Cards,

Form FD-258;

(ii) A listing of acceptable Service issued photo-IDs; and

(iii) A statement detailing the DOE's responsibilities and rights,

including the renewal and revocation procedures as provided by

paragraph (e) of this section.

(12) Denial of the application. The applicant shall be notified of

the denial of an application, the reasons for the denial, and the right

to appeal under 8 CFR part 103.

(13) Renewal.

(i) Subject to paragraph (e)(13)(ii) of this section, a DOE may

apply for renewal of its certification at least ninety (90) days prior

to the expiration date to prevent interruption in its ability to

provide fingerprinting services. An application for renewal must be

made on Form I-850 with the required fee and documentation as continued

in paragraph (e)(8) of this section. In considering an application for

renewal, the Service will give particular weight to the volume and

nature of complaints or issues that have been raised in the past with

respect to the DOE, by the Service, the FBI, or the public, or the

absence of such complaints or issues. Each renewal shall be valid for 3

years. Failure to apply for renewal will result in the expiration of

the outside entity's DOE status.

(ii) The Service will certify and renew DOEs as long as the need

for their service exists. Following the development of an automated

fingerprint information system, the Service will determine if there is

a continued need for the DOEs' services, and if so, whether they should

switch to newer technologies, such as acquiring compatible automated

fingerprinting equipment. In either event, the Service shall issue a

public notification or make a new rule, as appropriate. Nothing in this

paragraph shall preclude the [[Page 25863]] Service from discontinuing

the DOE certification program after the initial three years.

(14) Revocation of certification. The district director shall

revoke an approval of application for DOE status under the following

circumstances:

(i) Automatic revocation. The approval of any application is

automatically revoked if the DOE:

(A) Goes out of business prior to the expiration of the approval;

or

(B) Files a written withdrawal of the application.

(ii) Revocation on notice. The Service shall revoke on notice the

certification of a DOE which has violated the regulations governing the

fingerprinting process as established in paragraph (e) of this section.

(A) If the district director finds a DOE fails to meet the required

standards, he or she will issue a notice of intent to revoke detailing

reasons for the intended revocation. Within 30 days of the receipt of

the notice, the DOE may submit evidence of rebuttal or request an

inspection following corrective actions. The district director shall

cancel the notice of intent to revoke if he or she is satisfied with

the evidence presented by the DOE or the results of a reinspection.

(B) For egregious violations, such as failure to verify the

identity of the persons seeking fingerprinting, the district director

may, in his or her discretion, issue a suspension order and place the

DOE on immediate suspension. The DOE under suspension may submit a plan

for corrective action to the district director within 30 days and

request a reinspection. If the district director approves the plan, he

or she shall permit the DOE to resume fingerprinting on probation

pending the results of the reinspection. The district director shall

cancel the suspension order if he or she finds the results of a

reinspection satisfactory.

(C) If the DOE fails to submit evidence of rebuttal or corrective

actions within the 30-day period, or if unsatisfactory conditions

persist at the second inspection, the district director shall notify

the DOE of the revocation decision, detailing the reasons, and of its

rights to appeal.

(D) The district director shall consider all timely submitted

evidence and decide whether to revoke the DOE's approval.

(iii) If the Service's investigation uncovers evidence of material

misconduct, the Service may, in addition to revocation, refer the

matter for action pursuant to section 274C of the Act (civil document

fraud), 18 U.S.C. 1001 (false statement), or other appropriate

enforcement action.

(15) Appeal of revocation of approval. The revocation of approval

may be appealed to the Associate Commissioner for Examinations under 8

CFR part 103. There is no appeal from an automatic revocation.

(16) List of DOEs. Each district office shall make available a list

of the DOEs it has certified to take fingerprints. Such list shall

contain the name, address, telephone number, if available, and the fee

of each DOE certified in the district.

(17) Change of address or in fee. A DOE shall promptly report to

the Service, on Form I-850, any change of address or in the fee it is

charging. The district office shall update the list of DOEs and their

fees upon receipt of the notice of changes.

3. In Sec. 103.7, paragraph (b)(1) is amended by adding to the

listing of forms, in numerical sequence, the entry for ``Form I-850''

to read as follows:

Sec. 103.7 Fees.

* * * * *

(b) * * *

(1) * * *

* * * * *

Form I-850. For filing application for certification as designated

outside entity--$370 plus $23 for each fingerprint check for initial

certification; $200 for renewal of certification; and $23 for each

fingerprint check for adding or replacing employees. No fee will be

charged to police stations or military police facilities registering

pursuant to Sec. 103.2(e)(9).

* * * * *

PART 299--IMMIGRATION FORMS

4. The authority citation for part 299 continues to read as

follows:

Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

5. Section 299.1 is amended by adding to the listing of forms, in

numerical sequence, the entry for Forms ``I-850 and I-850A'' to read as

follows:

Sec. 299.1 Prescribed forms.

* * * * *

------------------------------------------------------------------------

Form No. Edition date Title

------------------------------------------------------------------------

* * * * *

I-850....... XXXXX....... Application for Certification as Designated

Outside Entity to Take Fingerprints.

I-850A...... XXXXX....... Attestation by Designated Outside Entities

Certified to Take Fingerprints.

------------------------------------------------------------------------

* * * * *

6. Section 299.5 is amended by adding to the listing of forms, in

proper numerical sequence, the entry for Forms ``I-850 and I-850A'' to

read as follows:

Sec. 299.5 Display of control numbers.

* * * * *

------------------------------------------------------------------------

Currently

INS form No. INS form title assigned

OMB

------------------------------------------------------------------------

* * * * *

I-850....... Application for Certification as Designated 1115-0166

Outside Entity to Take Fingerprints.

I-850A...... Attestation by Designated Outside Entities 1115-0194

Certified to Take Fingerprints.

------------------------------------------------------------------------

* * * * *

Dated: March 24, 1995.

Doris Meissner,

Commissioner, Immigration and Naturalization Service.

Note: Appendix A and B will not appear in the Code of Federal

Regulation.

BILLING CODE 4410-10-M

[[Page 25864]]

[GRAPHIC][TIFF OMITTED]TP15MY95.000

[[Page 25865]]

[GRAPHIC][TIFF OMITTED]TP15MY95.001

[[Page 25866]]

[GRAPHIC][TIFF OMITTED]TP15MY95.002

[[Page 25867]]

[GRAPHIC][TIFF OMITTED]TP15MY95.003

[[Page 25868]]

[GRAPHIC][TIFF OMITTED]TP15MY95.004

[FR Doc. 95-11733 Filed 5-12-95; 8:45 am]

BILLING CODE 4410-10-C