Fingerprinting Applicants and Petitioners for Immigration Benefits; Establishing a Fee for Fingerprinting by the Service;Requiring Completion of Criminal Background ChecksBefore Final Adjudication of Naturalization Applications

DOCUMENT NUMBER: FR 16-98

FEDERAL REGISTER CITE: 63 FR 12979

DATE OF PUBLICATION: March 17, 1998

BILLING CODE 4410-10-M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103, 204, 208, 209, 244, 245, 264,

299, 316, 332, and 335

[INS No. 1891-97]

RIN 1115-AF03

Fingerprinting Applicants and Petitioners for Immigration Benefits; Establishing a Fee for Fingerprinting by the Service;

Requiring Completion of Criminal Background Checks

Before Final Adjudication of Naturalization Applications

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Interim rule with request for comments.

SUMMARY: This rule amends the Immigration and Naturalization Service (Service) regulations relating to fingerprinting applicants and petitioners for benefits under the Immigration and Nationality Act (Act). This rule implements certain provisions of the Department of Justice Appropriations Act, 1988, which prohibit the Service from accepting fingerprint cards (Form FD-258) for the purpose of conducting criminal background checks on applicants and petitioners for immigration benefits prepared by any individual or en tity other than the Service, a registered State or local law enforcement agency, a United States consular office at a United States embassy or consulate, or a United States military installation abroad. The rule also announces the termination of the Designated Fingerprinting Services (DFS) certification program. In addition, this rule establishes a $25 service fee for fingerprinting by the Service, and requires Service receipt of a definitive response from the Federal Bureau of Investigation (FBI) before fi nal adjudication of a naturalization application.

DATES:

Effective date : This interim rule is effective March 29, 1998.

Comment date : Written comments must be submitted on or before May 18, 1998.

ADDRESSES: Please submit written comments, in triplicate, to the Director, Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536. To ensure proper handling, please refer to INS No. 1891-97 on your correspondence. Comments are available for public inspection at the above address by calling (202) 514-3048 to arrange for an appointment.

FOR FURTHER INFORMATION CONTACT: Ann Palmer or Thomas E. Cook, Office of Naturalization Operations, Immigration and Naturalization Service, 801 I Street, NW., Room 935, Washington, DC 20536, telephone (202) 305-0539.

SUPPLEMENTARY INFORMATION:

Background

1. What is the Designated Fingerprinting Services (DFS) Program?

The Designated Fingerprinting Services (DFS) program allowed qualified individuals, businesses, and law enforcement agencies to apply to the Service for certification as a DFS entity to provide fingerprinting services to applicants and petitioners for immigration benefits. The primary purposes of the program were to facilitate the processing of applications and petitions for benefits and protect the integrity of the fingerprinting process. The Service developed the DFS program as a result of reports from th e United States Department of Justice, Inspector General, and United States General Accounting Office which found that the Service's unregulated fingerprinting policy, in effect since 1982, did not provide sufficient security controls. Under the DFS program, the Service accepted fingerprint cards (Form FD-258) filed with applications and petitions for immigration benefits only if they were prepared by a designated Service employee, an approved DFS entity, an intending DFS entity that had submitted an applic ation for certification prior to March 1, 1997, or a law enforcement agency registered as a DFS entity.

2. How Did the Service Implement the DFS Certification Program?

On May 15, 1995, the Service published a notice of proposed rulemaking in the Federal Register at 60 FR 25856 proposing to implement the DFS certification program, which set forth the certification requirements and application procedures for individuals and entities interested in providing fingerprinting services to applicants and petitioners for immigration benefits. The Service also specified a date by which it would no longer accept fingerprint cards prepared by unauthorized entities.

On June 4, 1996, after a 60-day public comment period, the Service published a final rule in the Federal Register at 61 FR 28003, formally implementing the DFS certification program. The final rule became effective July 5, 1996. However, due to the insufficient number of certification applications received by the Service, and to ensure that adequate fingerprinting services were available to all applicants and petitioners for immigration benefits, the Service published a final rule in the Federal Register on November 7, 1996, at 61 FR 57583, extending the effective date of the DFS certification program to March 1, 1997.

Legislative Authority

1. Why is the Service Terminating the Designated Fingerprinting Services Certification Process?

On November 26, 1997, the Department of Justice Appropriations Act, 1998 (Pub. L. 105-119, 111 Stat. 2440) was enacted. This legislative change necessitates elimination of the DFS program. Pursuant to this legislation, effective December 3, 1997, the Service can accept fingerprint cards (Form FD-258) for the purpose of conducting criminal background checks on applications and petitions for immigration benefits only if prepared by a Service office, a registered State or local law enforcement agency, a United States consular office at a United States embassy or consulate, or a United States military installation abroad. Accordingly, the Service is removing the DFS certification process from its regulations.

2. How Will the Service Implement the New Fingerprint Requirements?

To comply with Public Law 105-119, 111 Stat. 2440, the Service is establishing a new program to fingerprint applicants and petitioners for immigration benefits. The Service is opening new offices, known as Application Support Centers (ASCs), and establishing mobile fingerprinting centers nationwide to fingerprint applicants and petitioners for immigration benefits. The Service will also fingerprint applicants and petitioners for immigration benefits in certain Service field offices and, in less populated ar eas, is entering into co-operative agreements with designated State or local law enforcement agencies (DLEA) which have registered with the Service to provide fingerprinting services to applicants and petitioners for immigration benefits. This new fingerprinting program applies only to acceptance of Form FD-258, Applicant Card, submitted to the Service in connection with applications and petitions for immigration benefits.

3. How Does the New Legislation Affect Filing of Applications and Petitions for Immigration Benefits?

Under the Service's new fingerprinting program, effective on December 3, 1997, the Service began accepting fingerprinting cards with applications and petitions for immigration benefits only if prepared by the Service, registered State or local law enforcement agencies, a United States consular office at a United States embassy or consulate, or a United States military installation abroad.

Effective March 29, 1998, applicants and petitioners for immigration benefits residing in the United States will be required to file applications and petitions without completed fingerprint cards. After filing, the Service will notify applicants and petitioners to appear at an ASC or other Service-designated location, including designated State or local law enforcement agencies, to be fingerprinted. Applicants and petitioners residing outside of the United States submit completed fingerprint cards prepare d by the Service, a United States consular office or a United States military installation abroad with applications and petitions for immigration benefits.

a. How Has the Fingerprinting Process for Naturalization Been Changed?

Effective December 3, 1997, naturalization applications from individuals residing in the United States (as defined in section 101(a)(38) of the Act) have been filed without completed fingerprint cards. After filing the Form N-400, these naturalization applicants have been notified to appear at an ASC or other Service-designated location to be fingerprinted. Naturalization applications from individuals residing outside of the United States have been filed with completed fingerprint cards prepared by a United States consular office at a United States embassy or consulate or a United States military installation aboard.

b. How Has the Fingerprinting Process for Immigration Benefits Other Than Naturalization Been Changed?

Effective on December 3, 1997, applicants and petitioners for immigration benefits other than naturalization have filed applications and petitions with completed fingerprint cards prepared by State or local law enforcement agencies registered with the Service to provide fingerprinting services.

Effective on March 29, 1998, applications and petitions for all immigration benefits other than naturalization, including asylum applications, from individuals residing in the United States, will be filed without completed fingerprint cards. After filing, these individuals, who require fingerprinting in connection with applications and petitions, will be notified to appear at an ASC or other Service-designated location to be fingerprinted. Under this new process, the Service will continue to give special co nsideration to processing of fingerprint cards associated with orphan petitions to ensure timely and flexible adjudication of these cases.

Effective December 3, 1997, applications and petitions for immigration benefits other than naturalization from individuals residing outside of the United States have been filed with completed fingerprint cards prepared by the Service, a United States consular office at a United States embassy or consulate, or a United States military installation aboard.

4. Will Applicants and Petitioners Who Were Fingerprinted by a DFS Entity Need to Be Re- fingerprinted?

Fingerprint cards submitted with properly filed applications and petitions for any immigration benefit which were accepted by the Service before December 3, 1997, will be processed in accordance with the regulations in effect at the time of acceptance. For purposes of implementing this rule, fingerprint cards are deemed accepted by the Service before December 3, 1997, if: (1) The application or petition was hand delivered to a Service office before December 3, 1997; or (2) the application or petition was po stmarked before December 3, 1997, and was received in a Service office before December 6, 1997. Applicants and petitioners whose properly completed fingerprint cards were accepted before December 3, 1997, will not ordinarily be required to be re-fingerprinted in accordance with these new fingerprinting procedures, unless the Attorney General determines that it is necessary to re-fingerprint an applicant or petitioner. For example, the Attorney General may decide to take an additional set of fingerprints for an asylum applicant in order to comply with the identity provisions of section 208(d)(5)(A)(i) of the Act or in cases in which the Federal Bureau of Investigation rejects a fingerprint card. However, beginning on December 3, 1997, for naturalization applicants and on March 29, 1998, for applicants and petitioners for other benefits, the Service will notify applicants and petitioners who file a completed fingerprint card prepared by a DFS entity to be re-fingerprinted at an ASC or other Service-designated l ocation.

5. Why is the Service Charging a Fee for Fingerprinting Services?

In Pub. L. 105-119, 111 Stat. 2440, Congress authorized the Service to charge a fee for fingerprinting in connection with the new fingerprinting program. Accordingly, the Service will charge the fee necessary to recover the administrative and support costs of the new fingerprinting program, and for the collection, safeguarding, and accounting of the fees. All fingerprinting fees initially collected from applicants and petitioners for immigration benefits will be deposited into the Immigration Examinations F ee Account established by 8 U.S.C. 1356(m)-(p). However, the Service will not begin charging the fee for fingerprinting applicants and petitioners for immigration benefits until March 29, 1998. This service fee for fingerprinting will apply only to applications and petitions for immigration benefits filed on or after March 29, 1998. Therefore, applicants and petitioners for immigration benefits who file before March 29, 1998, but who are scheduled to be fingerprinted by the Service on or after March 29, 199 8, will be fingerprinted by the Service without charge. This delay in collecting the fee for fingerprinting services will allow the Service to ensure that the new ASCs and mobile fingerprinting centers are operating efficiently.

6. What Fee is Being Established for Fingerprinting by the Service?

In the interest of fairness and based on a Service-determined cost estimate, during the early stages of the new fingerprinting program, the service fee for fingerprinting by the Service is established at $25 per applicant, petitioner, beneficiary, sponsor, or other individual required by Service regulations or form instructions to be fingerprinted in connection with an application or petition for immigration benefits. The Service anticipates that this $25 fee will not recover all Service costs for fingerpri nting individuals for immigration benefits at present. However, the Service plans to conduct a fee analysis under provisions of Office of Management and Budget Circular A-25 in the near future to determine the full cost to the Service of fingerprinting individuals for immigration benefits.

Congress has also authorized registered State and local law enforcement agencies and United States consular offices at United States embassies or consulates, or United States military installations abroad to charge a fee for fingerprinting applicants and petitioners for immigration benefits.

7. How Will Applicants and Petitioners Submit the Fee for Fingerprinting by the Service?

The one-time $25 fee for fingerprinting by the Service must be submitted at the time of filing the application or petition, in addition to the filing fee for the application or petition. However, applicants and petitioners residing abroad who are fingerprinted at United States consular offices or military installations abroad do not need to be fingerprinted by the Service. Therefore, these applicants and petitioners will submit the completed fingerprint cards at the time of filing the application or petitio n for immigration benefits, and do not need to submit the $25 fee for fingerprinting by the Service. In addition, asylum applicants are exempt from submitting the fee for fingerprinting by the Service in connection with filing an application for asylum and withholding of removal.

Applications and petitions for immigration benefits filed by individuals residing in the United States submitted without the $25 service fee for fingerprinting by the Service or with the incorrect service fee for fingerprinting, will not be rejected as improperly filed. The Service will notify applicants or petitioners to submit the correct fee for fingerprinting, and will withhold processing of the application or petition, including scheduling for fingerprinting, until the correct fingerprinting fee is rec eived. Failure by an applicant or petitioner to submit the correct fee for fingerprinting by the Service within the time allotted in a notice to the applicant or petitioner will result in denial of the application or petition due to abandonment.

8. How Does Public Law 105-119 Affect Adjudication of Naturalization Applications?

The new legislation codifies current Service policy that the Service must receive confirmation from the Federal Bureau of Investigation (FBI) that a full criminal background check has been completed on applicants for naturalization before final adjudication of the application. This interim rule requires the Service to receive a definitive response from the FBI that a criminal background check has been completed before notifying applicants for naturalization to appear before a Service officer for the mandato ry examination on the Form N-400, Application for Naturalization.