Implementation of the United States Visitor and Immigrant Status Indicator Technology Program ("US-VISIT"); Biometric Requirements [69 FR 468] [DHS 1-04]

DOCUMENT NUMBER: DHS 1-04

FEDERAL REGISTER CITE: 69 FR 468

DATE OF PUBLICATION: January 5, 2004

BILLING CODE: 4410-10

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214, 215 and 235

[BTS 03-01]

RIN 1651-AA54

Implementation of the United States Visitor and Immigrant Status Indicator Technology Program (“US-VISIT”); Biometric Requirements

AGENCY: Border and Transportation Security Directorate, Department of Homeland Security.

ACTION: Interim final rule with request for comments.

SUMMARY: The Department of Homeland Security (Department or DHS) has established the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) in accordance with several Congressional mandates requiring that the Department create an integrated, automated entry exit system that records the arrival and departure of aliens; that equipment be deployed at all ports of entry to allow for the verification of aliens' identities and the authentication of their travel documents through the comparison of biometric identifiers; and that the entry exit system record alien arrival and departure information from these biometrically authenticated documents. This rule provides that the Secretary of Homeland Security or his delegate may require aliens to provide fingerprints, photographs or other biometric identifiers upon arrival in or departure from the United States. The arrival and departure provisions are authorized by sections 214, 215 and 235 of the Immigration and Nationality Act (INA).

The Department will apply this rule's requirements only to aliens seeking to be admitted pursuant to a nonimmigrant visa who travel through designated air and sea ports. The rule exempts: aliens admitted on A-1, A-2, C-3 (except for attendants, servants or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas, unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject t o the rule; children under the age of 14; persons over the age of 79; classes of aliens the Secretary of Homeland Security and the Secretary of State jointly determine shall be exempt; and an individual alien the Secretary of Homeland Security, the Secretary of State, or the Director of Central Intelligence determines shall be exempt. A Federal Register notice identifying the air and sea ports where biometrics may be collected at time of entry and departure has been published simultaneously with this rule. This rule authorizes the Secretary to establish pilot programs for the collection of biometric information at time of departure and at a limited number of ports of entry, to be identified through notice in the Federal Register . The biometrics provided by the aliens will be entered into the automated identification system (IDENT) system, which will be integrated with the entry exit system component of US-VISIT. The alien's biometric and other information will be checked against law enforcement and intelligence data to determine whether the alien is a threat to national security or public safety, or is otherwise inadmissible. An alien's failure to comply with this rule's requirements may result in a finding that he or she is inadm issible to the United States, has violated the terms of his or her admission and maintenance of status, or is ineligible for future visas, admission or discretionary immigration benefits. Due to heightened security concerns related to a continued threat of terrorist acts in the United States, the Department has determined that immediate implementation of this rule is necessary with request for public comments.

DATES: Interim rule effective on January 5, 2004. Written comments must be submitted on or before February 4, 2004.

ADDRESSES: Written comments may be submitted to Patrice Ward, Chief Inspector, Air and Sea Exit Manager, US-VISIT, Border and Transportation Security; Department of Homeland Security; 1616 North Fort Myer Drive, 5th Floor, Arlington, VA 22209. Submitted comments may be inspected at 425 I St NW., Room 4034, Washington, DC 20536 during regular business hours. Arrangements to inspect submitted comments should be made in advance by calling (202) 298-5200. Comments submitted will be available for public inspection in acco rdance with the Freedom of Information Act, 5 U.S.C. 552.

FOR FURTHER INFORMATION CONTACT: For US-VISIT requirements under this rule: Patrice Ward, Chief Inspector, Air and Sea Exit Manager, US-VISIT, Border and Transportation Security; Department of Homeland Security; 1616 North Fort Myer Drive, 5th Floor, Arlington, VA 22209, at (202) 927-5200.

SUPPLEMENTARY INFORMATION:

What Is the US-VISIT Program?

The US-VISIT program is a high priority initiative of the Department that is designed to improve overall border management through the collection of arrival and departure information on foreign visitors and immigrants who travel through our nation's air, sea and land ports. The goals of US-VISIT are to enhance the security of the United States, its citizens, permanent residents and visitors; to expedite legitimate travel and trade; to ensure the integrity of the U.S. immigration system; and to safeguard the personal privacy of foreign visitors and residents. By recording more complete arrival and departure information, the US-VISIT program will not only meet various Congressional mandates for an integrated, interoperable, and automated entry exit system for aliens as discussed below, but it will also enhance the security and safety of citizens, residents and visitors by verifying foreign national travelers' identities through the comparison of biometric identifiers, by authenticating their travel documents, a nd by checking their data against appropriate law enforcement and intelligence systems. The terrorist attacks of September 11, 2001, highlighted the need to improve national security by returning integrity to the U.S. immigration system. This requires developing better methods for identifying aliens who are inadmissible to the country as well as those who overstay their lawful admission periods. At the same time, the country needs procedures and systems that facilitate legitimate travel, commerce, tourism, education, international communication, and other benefits that flow from welcoming law-abiding citizens of other countries into the United States. The US-VISIT Program was created to help DHS meet all of these law enforcement and service goals.

What Is the Statutory Authority for the Entry Exit System Component of the US-VISIT Program and for the Collection of Biometric Identifiers From Aliens?

The principal law that mandates the creation of an automated entry exit system that integrates electronic alien arrival and departure information is the Immigration and Naturalization Service Data Management Improvement Act of 2000 (DMIA), Public Law 106-215 (2000), 114 Stat. 339, codified as amended at 8 U.S.C. 1365a. DMIA amended previous legislative requirements for an entry exit system that would record the arrival and departure of every alien who crosses the U.S. borders. See section 110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, Public Law 104-208 (1996), 110 Stat. 3009-558, codified in scattered sections of 8 U.S.C. (later amended by DMIA). DMIA requires that the entry exit system consist of the integration of all authorized or required alien arrival and departure data that is maintained in electronic format in Department of Justice (DOJ) (now DHS) or Department of State (DOS) databases. 8 U.S.C. 1365a. This integrated entry exit system must be implemented at al l air and sea ports of entry by December 31, 2003 using available air and sea alien arrival and departure data as described in the statute. DMIA also states that the system must be implemented at the 50 most highly trafficked land border ports of entry by December 31, 2004, and at all ports of entry by December 31, 2005 with all available electronic alien arrival and departure information. DMIA also requires DHS to use the entry exit system to match the available arrival and departure data on aliens and to prepare and submit to Congress various reports on the numbers of aliens who have overstayed their periods of admission and on implementation of the system. 8 U.S.C. 1365a(e). DMIA authorizes the Secretary of Homeland Security, in his discretion, to permit other Federal, State, and local law enforcement officials to have access to the entry exit system for law enforcement purposes. 8 U.S.C. 1365a(f).

In addition, section 217(h) of the Visa Waiver Permanent Program Act of 2000 (VWPPA), Public Law 106-396 (2000), 114 Stat. 1637, codified as amended at 8 U.S.C. 1187(h), requires the creation of a system that contains a record of the arrival and departure of every alien admitted under the Visa Waiver Program (VWP) who arrives and departs by air or sea. The requirements of DMIA effectively result in the integration of this VWP arrival/departure information into the primary entry exit system component of the US-VISIT program.

In late 2001 and 2002, Congress passed two additional laws affecting the development of the entry exit system, in part, in response to the events of September 11, 2001. Section 403(c) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act), Public Law 107-56 (2001), 115 Stat. 353, codified as amended at 8 U.S.C. 1379, required the Attorney General and the Secretary of State jointly, through the National Institute of Standards and Technology (NIST), and in consultation with the Secretary of the Treasury and other appropriate Federal law enforcement and intelligence agencies, and in consultation with Congress, to develop and certify a technology standard, including appropriate biometric identifier standards, that can be used to verify the identity of visa applicants and persons seeking to enter the United States pursuant to a visa and to do background checks on such aliens. In developing the entry exit system required by DMIA, sectio n 414(b) of the USA PATRIOT Act directed the Attorney General and the Secretary of State to “particularly focus on the utilization of biometric technology; and the development of tamper-resistant documents readable at ports of entry.” 8 U.S.C. 1365a note.

The legislative requirements for biometric identifiers to be utilized in the context of the entry exit system were significantly strengthened with passage of the Enhanced Border Security and Visa Entry Reform Act of 2002 (“Border Security Act” or EBSVERA), Public Law 107-173 (2002), 116 Stat. 553, codified in scattered sections of 8 U.S.C. 302(a)(1) of the Border Security Act states that the entry exit system must use the technology and biometric standards required to be certified by section 403(c) of the U SA PATRIOT Act. Section 303(b)(1) requires that “[n]o later than October 26, 2004,” only machine-readable, tamper-resistant visas and other travel and entry documents that use biometric identifiers may be issued to aliens by DHS and DOS. 8 U.S.C. 1732(b)(1). This section, however, does not invalidate unexpired travel documents that have been issued by the U.S. government that do not use biometrics. Section 303(b)(1) further states that the Secretaries of Homeland Security and State must jointly establish do cument authentication and biometric identifier standards for alien travel documents from among those recognized by domestic and international standards organizations. Id.

Section 303(b)(2) requires that “[n]o later than October 26, 2004,” all ports of entry must have equipment and software installed “to allow biometric comparison and authentication of all United States visas and other travel and entry documents issued to aliens, and passports” that are required to be issued by VWP countries. 8 U.S.C. 1732(b)(2). The current statutory language also requires that by that same date, VWP countries must have a program in place to issue tamper-resistant, machine-readable, biometri c passports that comply with biometric and document identifying standards established by the International Civil Aviation Organization (ICAO). 8 U.S.C. 1732(c)(1). The statute also states that on or after October 26, 2004, any alien applying for admission under the VWP must present a passport that is machine-readable, tamper-resistant and that uses ICAO-compliant biometric identifiers, unless the unexpired passport was issued prior to that date. 8 U.S.C. 1732(c)(2). The entry exit system must include a data base that contains alien arrival and departure data from the machine-readable visas, passports, and other travel and entry documents. 8 U.S.C. 1731(a)(2). In developing the entry exit system, the Secretaries of Homeland Security and State must also make interoperable all security databases relevant to making determinations of alien admissibility. 8 U.S.C. 1731(a)(3).

In addition, the entry exit system component must share information with other systems required by the Border Security Act. Section 202 of the Border Security Act addresses requirements for an interoperable law enforcement and intelligence data system and requires the integration of all databases and data systems that process or contain information on aliens.

The US-VISIT program requirements that foreign nationals provide biometric identifiers when they seek admission to the United States are further supported by the Department's broad authority to inspect aliens contained in section 235 of the INA, 8 U.S.C. 1225. Pursuant to section 215(a) of the INA, the President also has the authority to regulate the departure of aliens, as well as their arrival. President Bush has issued Executive Order titled Assignment of Functions Relating to Arrivals In and Departures From the United States delegating his authority to promulgate regulations governing the departure of aliens from the United States. In accordance with section 215 and with this new Executive Order, the Secretary of Homeland Security, with the concurrence of the Secretary of State, has the authority to issue this rule which requires certain aliens to provide requested biometric identifiers and other relevant identifying information as they depart the United States. For nonimmigrant aliens, the Department may also make compliance with the departure procedures a condition of their admission and maintenance of status while in the country under INA, section 214.

Many other provisions within the INA also support the implementation of the US-VISIT program, such as the grounds of inadmissibility in section 212, the grounds of removability in section 237, the requirements for the VWP program in section 217, the electronic passenger manifest requirements in section 231, and the authority for alternative inspection services in sections 286(q) and 235 of the INA and section 404 of the Border Security Act. These are but a few of the most significant provisions that support US-VISIT from among numerous other immigration and customs statutes.

Is DHS Meeting the December 31, 2003 DMIA Deadline for Implementing the Integrated Entry Exit System at the Air and Sea Ports of Entry?

Yes. By integrating all the available arrival and departure data on aliens who arrive through the air and sea ports of entry that currently exists in the electronic systems of DHS and DOS and deploying the integrated system at those ports of entry, the Department has met the first DMIA deadline of December 31, 2003. The Department is accomplishing this first phase through the integration of the arrival and departure data contained in the Advance Passenger Information System (APIS) and the Arrival Departure Information System (ADIS), as well as other systems related to air and sea inspections. APIS and ADIS include the information captured from electronic passenger manifest data received from carriers, information on VWP aliens, and information on visa applicants and recipients received through the DataShare program with DOS.

What Changes Does This Interim Rule Make?

Through an amendment to 8 CFR 235.1(d), the Department may require aliens who are arriving at United States air and sea ports of entry to provide fingerprints, photographs, or other biometric identifiers to the inspecting officer. The Department will collect fingerprints and photographs from aliens applying for admission pursuant to a nonimmigrant visa upon their arrival at air and sea ports of entry and upon departure if they exit through certain locations. Departure inspection will be conducted through pi lot programs at a limited number of departure ports, identified by notice in the Federal Register. The rule exempts: (i) Aliens admitted on A-1, A-2, C-3 (except for attendants, servants or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas, unless the Secretary of State and the Secretary of Homeland Security jointly determine that a class of such aliens should be subject to the rule, (ii) children under the age of 14, (iii) persons over the age of 79, (iv) classes of aliens the Secretary of Homeland Security and the Secretary of State jointly determine shall be exempt, and (v) an individual alien the Secretary of Homeland Security, the Secretary of State, or the Director of Central Intelligence determines shall be exempt. Although the biometric requirements in this rule will initially only apply to nonimmigrant visa-holders who travel through designated air and sea ports, the Department anticipates expanding the program, through separate rulemaking to include other groups of aliens and more ports in order to eventually have the capabili ty to verify the identities of most foreign national travelers through biometric comparisons as envisioned by the USA PATRIOT Act and the Border Security Act.

At amended 8 CFR 235.1(d)(ii), the rule states that failure by an alien to provide the requested biometrics necessary to verify his or her identity and to authenticate travel documents may result in a determination that the alien is inadmissible under section 212(a)(7) of the INA for lack of proper documents, or other relevant grounds in section 212 of the Act.

New rule 8 CFR 215.8 states that the Secretary of Homeland Security may establish pilot programs at up to fifteen air or sea ports of entry, designated through notice in the Federal Register , through which the Secretary may require aliens who are departing from the United States from those ports to provide fingerprints, photographs, or other biometric identifiers, documentation, and such other such evidence as may be requested to determine an alien's identity and whether he or she has properly maintained his or her status while in the United States.

This rule also amends 8 CFR 214.1(a) to state that if a nonimmigrant alien is required under section 235.1(d) to provide biometric identifiers, the alien's admission is conditioned on compliance with any such requirements. Similarly, if the alien is required to provide biometrics and other information upon departure pursuant to 8 CFR 215.8, the nonimmigrant alien's failure to comply may constitute a failure of the alien to maintain the terms of his or her immigration status.

Finally, the rule makes clear by amending 8 CFR 235.1(f) that all nonimmigrant aliens will be issued the Form I-94, Arrival Departure Record regardless of whether they come through an air, sea or land port of entry, unless they are otherwise exempted from the I-94 requirement. This amendment clarifies that air and sea carrier passengers will continue to be issued I-94s which must be surrendered upon departure unless the I-94 was issued for multiple entries by the alien.

What Is a “Biometric Identifier?”

As used in this rule, a “biometric identifier” is a physical characteristic or other attribute unique to an individual that can be collected, stored, and used to verify the claimed identity of a person who presents himself or herself to a border inspector. To verify identity, a similar physical characteristic or attribute is taken from the person who presents himself or herself and it is compared against the previously collected identifier. Examples of biometric identifiers include, but are not limited to, the face (i.e., captured in a photograph), fingerprints, hand geometry measurements, handwriting samples, iris scans, retina scans, voice patterns, and other unique characteristics.

Why Is This Interim Final Rule Necessary and Why Was It Not Issued as a Proposed Rule for Notice and Comment?

The Department has determined that the national security and public safety interests of the nation necessitate the implementation of this rule as an immediately effective interim rule with provision for public comment after the effective date. The collection of biometrics from foreign nationals seeking to enter or depart the United States will greatly enhance the Government's ability to identify persons who are a threat to the public and to national security. The longer the Department delays in collecting b iometrics from visa-holders and eventually other foreign nationals, the greater chance that a person who has been previously identified as a threat to the public may not be timely identified through his fingerprints, photographs or other biometrics and may enter the United States without his true identity being detected.

The Department has further determined that this rule is necessary to give effect to the legislative mandates for utilization of biometric identifiers in the entry exit system component of the US-VISIT program as described in the USA PATRIOT Act and the Border Security Act, as previously discussed. Unless it collects biometric identifiers from the aliens who present themselves at inspection and on departure, the Department would be unable to compare the biometrics associated with the travel document presente d (e.g., a visa) against the bearer's characteristics or against DHS or DOS records of any previously taken biometrics associated with the alien's name. In other words, the Department would not be able to verify the alien's identity fully or authenticate his documents as envisioned by Congress when it passed the two laws.

Congress has stated that “no later than October 26, 2004,” biometrics must be utilized with all travel and entry documents that DHS and DOS issue to aliens and that machines capable of verifying the identities of foreign travelers and authenticating their documents through biometrics must be at all ports of entry. 8 U.S.C. 1732(b). The Secretary of Homeland Security has determined that waiting until the last minute (i.e., October 26, 2004) to begin collecting biometrics and verifying the documents and ident ities of aliens who cross our borders would be highly detrimental to the security of the country. Moreover, the Department believes that it makes practical sense to implement the integrated entry exit system with air and sea arrival/departure data on foreign travelers at the same time as a biometric component is introduced to the system to provide the enhanced security benefits that biometrics will provide to verify identity. For these reasons, the Department has determined that it must immediately begin co llecting biometrics from a limited group of aliens, i.e., nonimmigrant visa holders who enter through the air and sea ports, and expand to other categories and locations as rapidly as possible.

The Department does encourage and welcome public comments on this rule and the manner in which it will be implemented. The Department will fully consider all comments submitted by the comment period as it prepares a final rule and before it expands the program to other categories of foreign nationals. See discussion of the “Good Cause Exceptions” below.