What Categories of Aliens Are Affected by This Rule?

This interim rule applies only to aliens applying for admission pursuant to a nonimmigrant visa who arrive in or depart from the United States through designated air and sea ports. 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 shou ld 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. However, as a routine matter, only nonimmigrant visa-holders will be affected by this rule.

What Biometrics Will Be Collected and Will They Ever Change?

The Department initially plans to take a digital photograph and two fingerprints from each nonimmigrant alien who presents a visa at designated air or sea ports of entry. The Department, however, reserves its right to expand the types of biometric identifiers required in the future where doing so will improve the border management, national security, and public safety purposes of the entry exit system. Additional biometric requirements will be implemented in compliance with section 403(c) of the USA PATRIOT Act.

How Did DHS Determine Which Biometric Identifiers Would Be Collected for US-VISIT Purposes?

The Department has chosen to collect two fingerprints and photographs, in part, because they currently are less intrusive than other forms of biometric collections and because the combination of these biometric identifiers are an effective means for verifying a person's identity. Also, historically fingerprints and photographs have been the biometrics of choice within the law enforcement communities and the travel industry. As the deployment of more comprehensive technologies becomes feasible, however, the Department may collect additional biometric data to improve its ability to verify the identity and determine the admissibility of nonimmigrant aliens.

As required by section 403(c) of the USA PATRIOT Act and section 302(a)(1) of the Border Security Act, the Department of Justice and the former Immigration and Naturalization Service (INS) worked closely with NIST, DOS, other agencies and Congress to study and select fingerprints and digital photographs as the biometric identifiers that will be used in conjunction with the entry exit system. A report on the biometric standards selected was delivered to Congress in January 2003. See “Use of Technology Standa rds and Interoperable Databases with Machine-Readable, Tamper-Resistant Travel Documents,” Report to Congress from U.S. Department of Justice, U.S. Department of State, and the National Institute of Standards and Technology (January 2003).

How Will a Person's Fingerprints and Photographs Be Collected?

On arrival at air and sea ports of entry, inspectors will scan two fingerprints of the foreign national with an inkless device and will take a digital photograph of the person. This information, as well as other information that the person provides, will then be used to assist the border inspector in determining whether or not to admit the traveler. Upon exit from the United States at designated air and sea ports, the foreign national traveler will go to a work station or kiosk to scan his travel documents, have his photograph compared, and to provide his fingerprints on the same type of inkless device that is used at entry.

What If an Individual Cannot Provide Clear Fingerprints or Photographs or Is Disabled in Such a Way That He or She Is Unable To Provide the Biometric Information?

The Department will make reasonable efforts that are also consistent with the Government's need to verify an alien's identity to accommodate any person with disabilities which prevent him or her from complying with the requirements of this rule for fingerprinting, photographs or other biometric collections. We will follow all required procedures that are applicable to government action under the Americans With Disabilities Act, codified as amended at 42 U.S.C. 12101 et seq. and the Federal Rehabilitation Ac t, codified as amended at 29 U.S.C. 701 et seq. In cases where a satisfactory fingerprint, for example, cannot be taken, the inspecting officer may accept another biometric identifier that will reasonably identify the person or sufficient additional information from the alien from which the officer can determine the individual's identity. In some instances where the identity of a person with disabilities does not appear to be truly at issue, the requirement for fingerprints or other biometric identifier may be waived in the discretion of the inspecting officer. The Department will ensure that procedures for handling the collection of biometric information from persons with disabilities are covered in any internal field guidance it may issue to implement this rule. In addition, the Department welcomes public comment on methods for properly handling situations where persons with disabilities are not able to provide the requested biometrics, but that still permit the Department to make the necessary identity and admissibility determinations.

How Will the Biometric Information Be Used?

The fingerprints and photograph(s) of the alien will be entered initially into an existing system called IDENT The alien's fingerprints and photographs will be compared against the biometric information already stored in IDENT to determine whether there is any information that would indicate the alien is an imposter or otherwise inadmissible. In addition, IDENT and the other technology associated with US-VISIT will permit the inspecting officer to compare the alien's fingerprints and photographs with any su ch biometric information previously captured.

DOS is currently implementing a program on a phased-in basis for taking fingerprints of many categories of visa applicants who have been approved or denied and storing those fingerprints and photographs in IDENT. This DOS-collected biometric information may also be accessed through the Interagency Border Inspection System (IBIS) by inspectors at the ports of entry in the United States. The inspecting officer will be able to compare the biometrics associated with the person who applied for the visa at the co nsular office abroad against the biometrics of the person who is present at the port of entry. Once the machine readers are in place at the ports of entry, this process will be fully automated and the visas and certain other travel documents will be capable of being scanned and compared electronically. An alien's name, biometric information and other identifying information will also be checked against various law enforcement and intelligence data for information that may identify him or her as inadmissible to the United States or as a threat to national security or the public safety. In the air and sea context, much of the information on the alien is already collected via the electronic passenger manifest process required by section 402 of the Border Security Act, codified as amended at INA, section 231; 8 U.S.C. 1221. Customs and Border Protection (CBP) officers currently have access to the passenger's complete name, nationality, date of birth, citizenship, gender, passport number and country of issuance, U .S. visa number, if applicable, alien registration number, if applicable, country of residence, and complete address while in the United States. U.S. inspectors receive the information prior to the alien's arrival through the Advance Passenger Information System (APIS) and the Arrival Departure Information System (ADIS), and it is run against the IBIS which contains “lookouts” on individuals submitted by more than 20 law enforcement and intelligence agencies. Thus, by the time the person gets to an air or s ea port of entry, inspectors have identified aliens that need to be scrutinized more closely as well as aliens who may be inadmissible and whether other law enforcement agencies should be notified of any individual's presence.

Are Travelers Who Come Under the Visa Waiver Program (VWP) Affected by This Rule?

At this time, travelers who seek to enter under the VWP are not affected by this rule. However, under current law, an alien will not be admitted under the VWP on or after October 26, 2004, without a machine-readable, tamper-resistant passport that meets ICAO biometric standards for photographs, unless his passport is unexpired and was issued prior to that date. 8 U.S.C. 1732(c)(2). The machines that DHS must have in place at all ports of entry by that same date will also be capable of reading the ICAO-compl iant biometrics in any VWP alien's passport. 8 U.S.C. 1732(b)(2).

Will Canadian or Mexican Citizens Have To Provide Biometric Identifiers When They Travel To or From the United States?

This rule does not affect foreign nationals entering the U.S. through land ports of entry. Aliens entering through land ports of entry need only meet the current requirements in the law. However, the rule does apply to Canadian and Mexican citizens who enter through air and sea ports of entry as outlined below. At present, the Department will not apply the biometric collection requirements of this rule to those Canadian citizens who travel on temporary visits to the United States and who do not apply for ad mission pursuant to a nonimmigrant visa. As usual, Canadians who are lawful permanent residents of the United States must possess a Permanent Resident Card (PRC) or other evidence of their permanent resident status; they will not, however, be routinely fingerprinted or photographed. The Department, as it always has, reserves the right to require fingerprints or other identifying information from any individual whom it has reason to believe may not be who he or she claims.

Mexicans currently must present visas, Border Crossing Cards (BCC), or other appropriate evidence of their immigration status to enter the United States. Since October 1, 2002, the law has required that a biometric characteristic (e.g., face, fingerprint) of a bearer of a BCC must be matched against the biometric on the BCC before the bearer may be admitted. See 8 CFR 212.1(c)(3). This requirement remains applicable at all ports of entry. Machines have been deployed at the ports of entry to allow for the au tomated comparison of the fingerprints of BCC bearers against their documents. Under this rule and the Department's first implementation phase for US-VISIT biometrics collection, nonimmigrant Mexican visa holders will be required to provide fingerprints and photographs if they enter or exit at the designated ports.

Which United States Ports of Entry Will Be Involved in the Collection of Biometrics and in Verifying the Identities of Aliens and Authenticating Their Documents?

The notice that is published elsewhere in this issue of the Federal Register identifies the airports and the seaports where nonimmigrants who apply for admission pursuant to a nonimmigrant visa will be required to provide biometric information at time of arrival and departure. The names of all the affected ports of entry will not be repeated here for the sake of brevity.

The Department intends to implement departure inspection through pilot programs at a limited number of departure ports. The Department has identified thirty departure ports as candidates at which it will next implement biometric collection. The Department anticipates that, within the next few months, it will implement departure biometric collection at approximately fifteen of those ports of entry. This rule therefore authorizes the Secretary to establish pilot programs for departure inspection at up to fift een air and sea ports, to be identified through notice in the Federal Register .

Through those pilot programs, the Department will test different methods to collect the required information from nonimmigrant aliens as they depart the United States through the designated ports of entry. The Department is currently exploring several different methods and processes, including but not limited to self-serve kiosks and hand-held scanners. The pilot program will enable the Department to conduct a cost benefit analysis of the different processes. The Department welcomes comments on how to imple ment biometric collection at time of departure. After reviewing the reliability, efficiency, and cost of those pilot programs, and receiving comments from the public regarding the departure inspection process, the Department will undertake new rulemaking to allow the Secretary to expand biometric collection to all departure ports.

Will Foreign Travelers' Biometrics Be Collected, Their Identities Verified, and Their Documents Authenticated on Departure From the United States?

Yes. Aliens subject to this rule who exit through designated air and sea ports where pilot programs are implemented will be required to “check out” at work stations in those air and sea ports and to provide requested information and biometrics. The information that a traveler provides on departure will be verified and matched against any available information that he or she provided upon inspection and that was stored in the systems that comprise US-VISIT. This information will also be used to identify pers ons who have overstayed their authorized periods of admission, to compile the overstay reports required by DMIA, and where applicable, considered in DOS and DHS determinations on whether the person is eligible for future visas, admission or other discretionary immigration benefits.

Will There Be Any Assistance for Travelers During the Exit Process?

The exit collection mechanism at special work stations or kiosks will be structured to include international instructional icons, illustrating how the alien will submit biometrics and travel documents for scanning. DHS or contract personnel will be available, at initial stages, to assist travelers covered by the first increment of US-VISIT in learning how the exit process works.

Is a Nonimmigrant Visa Holder Required To Enter or Exit Through One of the Ports Designated for Biometric Processing in the Federal Register Notice?

Certain individuals remain subject to the National Security Entry Exit Registration System (NSEERS) regulations to depart through specific ports and undergo special departure procedures. See 8 CFR 264.1(f)(8). The most recent Federal Register notice listing the NSEERS ports of departure can be found at 68 FR 8967. This rule does not alter or amend that list.

Nonimmigrant visa holders, except those subject to NSEERS, may continue to depart the United States through any port, even those locations where biometrics are not currently being collected on exit. The Department recommends that any alien whom the Secretary designates to be covered by this rule's departure requirements and who chooses to depart from a location where US-VISIT departure procedures are not in place may wish to preserve any evidence that he or she did indeed depart the United States. Such evid ence could include a passport stamp of admission to another country or a used airline ticket showing the person left the United States in a timely manner. Such information may be useful to show to a consular or immigration officer in case there is ever any future question about whether the alien properly left the United States. Individuals who have an I-94 Arrival Departure Record that must be surrendered upon departure should be certain to return this form promptly to the appropriate DHS division as requir ed on the form to ensure that the individual's departure will be entered into appropriate DHS systems. In addition, the departure of individuals who leave on air or sea carriers that submit electronic passenger departure manifests to DHS/CBP will be recorded in DHS systems and should help to prove when the alien departed. However, not all carriers are currently able to submit this information electronically. The Department recognizes that there may be some interim confusion about whether covered foreign nat ionals overstayed their last periods of admission where there is no evidence in the US-VISIT systems of their departure. The Department anticipates that as departure procedures are expanded to all air, sea and land border ports, such confusion and potential for inaccurate determinations that a person overstayed will be significantly reduced.

Are There Any Additional Fees Imposed Upon Travelers as a Result of This Rule?

No, there are no additional fees for travelers required by this interim rule. DOS and DHS may need to adjust the fees for visas and other immigration documents that utilize biometrics in the future, but the Departments will follow all required Administrative Procedure Act (APA) procedures for notice and comment and any other applicable legal requirements if the fees change.

How Much Will the Biometric Collection Procedures Cost DHS and What Is the Source of the Funding?

In FY 2003, the US-VISIT program spent $190 million for the biometrics portion of the program. For FY 2004, the cost of implementing the biometric collection and verification procedures at air and sea ports of entry and departure locations is anticipated to be approximately $103 million. The funds for the equipment and other requirements to support the biometric procedures come from the approximately $380 million that Congress appropriated in FY 2003 for development of the entry exit system component of US- VISIT and from the $330 million total appropriated for FY 2004.

What May Happen If an Alien Refuses To Provide the Required Biometric Identifiers at Time of Entry?

This rule provides that an alien who refuses to provide biometric identifiers when seeking admission to the United States in order to assist inspectors in verifying his or her identity and authenticating his or her travel documents may be deemed inadmissible under INA, section 212(a)(7) (failure to provide appropriate documents), or other applicable grounds of inadmissibility in INA, section 212. For example, the inspector may deny admission under INA, section 212(a)(7) if he or she is unable to determine w hether the applicant is presenting a document that is truly his and the inspector is unable to collect a biometric that can be verified against the fingerprints and photographs associated with the document. The rule does not attempt to identify every ground of inadmissibility that may apply because each case may present different circumstances that skilled inspectors are trained to assess and adjudicate. The rule does not change any of the existing criteria for inadmissibility, but allows inspectors to cons ider a failure to provide requested biometric identifiers as a factor in their admissibility determinations. In some circumstances, such as an individual who cannot physically provide clear fingerprints, a failure to do so will not necessarily result in an inadmissibility determination, provided that the inspector is otherwise satisfied that the person is who he claims to be and has appropriate authorization to enter the country. This rule also amends 8 CFR 214.1(a) to state that if a nonimmigrant alien is required under 8 CFR 235.1(d) to provide biometric identifiers, the alien's admission is conditioned on compliance with any such requirements.

What May Happen If an Alien Fails To Provide the Required Biometric Identifiers at the Time of Departure From the United States?

An alien who fails to comply with the departure requirements may be found in violation of the terms of his or her admission, parole, or other immigration status. This rule states that an alien who is covered by the requirements to provide biometrics on departure at new 8 CFR 215.8 may be found to have overstayed the period of his or her last admission if the available evidence indicates that he or she did not leave the United States when required to do so. A determination that the alien previously overstaye d may result in a finding of inadmissibility for accruing prior unlawful presence in the United States under section 212(a)(9) of the INA, provided that the accrued unlawful time and other prerequisites of that statute are met, or that the alien is otherwise ineligible for a visa or other authorization to reenter the United States. An overstay finding could also trigger consequences for a nonimmigrant visa holder under section 222(g) of the INA. If the person is deemed to have overstayed his authorized peri od of admission, his visa (including a multiple entry visa) would be deemed void under section 222(g). Section 222(g) further states that where a visa is void because the alien overstayed, he or she is ineligible to be readmitted to the United States as a nonimmigrant except on another visa issued in the consular office located in the country of the alien's nationality, or where there is no DOS office in the country, in such other consular office as the Secretary of State shall specify. The requirement of o btaining a new visa from the consular office in the country of the alien's nationality may be waived where extraordinary circumstances are found. 8 U.S.C. 1202(g).

The Department intends to focus its enforcement of departure requirements in this rule on cases where the alien willfully and unreasonably fails to comply with this regulation. The rule provides that an alien's failure to follow the departure procedures may be considered by an immigration or consular officer in making a discretionary decision on whether to approve or deny the alien's application for a future immigration benefit. The rule does not, however, state that an alien's failure to comply with depart ure procedures in every instance will necessarily result in a denial of a future visa, admission or other immigration benefit. For example, no alien will be penalized for failing to provide biometrics on departure where the Department has not yet implemented the departure facilities or procedures at the specific port where the person chooses to depart. There may well be instances where a consular officer or inspector, in his or her discretion and after reviewing the totality of the circumstances, determines that an alien's previous failure to comply with the departure procedures does not result in a finding of inadmissibility or the denial of an immigration benefit.

Will Biometric Collection Create Inspection Delays at Ports of Entry and Departure?

The Department is aware of this concern and is taking all possible steps to prevent congestion and delays in immigration and customs processing at the ports of entry and the departure locations. On entry, the Department anticipates that an average of only 15 additional seconds per nonimmigrant visa holder will be needed to complete processing as a result of the added biometric procedures. The Department arrived at this estimate after piloting the process on a voluntary compliance basis at Atlanta's Hartsfie ld International Airport. Individuals who are not required to provide biometrics at this time (e.g., U.S. citizens, permanent residents, persons not required to have visas) may be routed through separate processing lines at the air and seaports so as to further alleviate congestion. Individuals who require more in depth scrutiny will, as usual, be taken to secondary inspection areas so as not to delay primary inspection processing for other travelers. The Department does not believe that significant delays will occur at the air and sea ports as a result of the new biometric collection and verification procedures. The Department further believes that the limited departure processing at the air and sea ports can be accommodated within the pre-boarding time period that carriers currently recommend travelers allow before their scheduled departure and that their travel should not be delayed.

While the Department does not anticipate longer wait times at ports of entry due to US-VISIT processing, a number of mitigation strategies have been developed, not unlike those already available to CBP under other conditions which result in backups. However, as the US-VISIT program expands, the Department will continually reassess the issue of delays to reduce any negative effects.

Will Legitimate Travel, Commerce, and Tourism Be Negatively Affected by This Rule?

As noted above, the Department does not believe that immigration and customs processing will be significantly delayed at the ports of entry or the departure locations. The Department believes that over time, the US-VISIT system will facilitate travel for those with biometrically-enhanced travel documents and others for whom the system contains travel records. Public comments are invited on ways that delays and negative effects on travel, trade, commerce, tourism and other desired aspects of immigration can be alleviated or minimized.

Are United States Citizens and Lawful Permanent Residents Required To Provide Biometric Identifiers?

No, United States citizens and lawful permanent residents will not be required to provide biometric identifiers under this rule. U.S. citizens must continue to present passports as required by 22 CFR 53, unless an exception under that regulation applies. Lawful permanent residents must present documents evidencing their status as described in 8 CFR 211.

Will Other Countries Impose Similar Biometric Requirements on United States Citizens?

Each country maintains the right to establish its own procedures and requirements for entry by foreign visitors. The Department, in coordination with DOS, will work with other governments that wish to institute programs of biometric identification in order to ensure that they are fair, efficient, accurate and no more intrusive than necessary.

Will Any Visa-Holders Be Exempt From the Fingerprinting and Photographing Requirements of This Rule?

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. An immigration inspector retains discretion to collect an alien's biometrics if, in the inspector's discretion, such action is necessary to determine the exact age of the alien and whether he or she is exempt from the requirements of this rule.

Will Other Nonimmigrants for Whom Ten-Print Fingerprinting for Registration Purposes Has Been Waived by Existing Regulations be Required to Provide Two-Print Fingerprints and a Photograph Under This Rule Governing Identity Verification on Arrival and Departure From the United States?

The Department has determined that most nonimmigrant visa-holders for whom ten-print fingerprinting has been waived for registration purposes under 8 CFR 264.1(e)(1-2) must nevertheless comply with the requirements of this interim rule for the collection of biometrics (two fingerprints and a photograph) for purposes of entry and exit inspection. This includes nonimmigrants who are in the United States for less than one year, as well as nonimmigrants who are citizens of countries that do not fingerprint U.S. citizens who temporarily reside in their countries.

The ten-print fingerprinting that has been waived for these categories of nonimmigrants under 8 CFR 264.1(e) (1-2) is done for purposes of alien registration under INA, sections 262-266 and is not the same as the collection of two fingerprints and a photograph for identity verification and document authentication at arrival and departure inspection that is required under this interim rule. The biometric collections for arrival and departure inspection purposes are authorized instead by INA, section 235, 214 , 215, and are further supported by the mandates for biometrics in section 303 of the Border Security Act and sections 403(c) and 414 of the USA PATRIOT Act.

DHS believes that the national security of the country, public safety and the integrity of the immigration system necessitate requiring most nonimmigrant visa holders to provide fingerprints and photographs for identity checks, law enforcement background checks, and determinations of admissibility.

Do the Requirements for the Collection of Biometric Identifiers Violate the Statutory “No New Documents or Data Collection” Prohibition in the DMIA?

No, the Department has determined that there is no conflict between this rule and DMIA. DMIA does state that “[n]othing in this section [codified at 8 U.S.C. 1365a] may be construed “to permit the [Secretary of Homeland Security] or the Secretary of State to impose any new documentary or data collection requirements on any person in order to satisfy the requirements of this section * * *.” 8 U.S.C. 1365a(c)(1). However, the provision in DMIA that immediately follows that subsection states that “[n]othing in this section shall be construed to reduce or curtail any authority of the [Secretary of Homeland Security] or the Secretary of State under any other provision of law.” 8 U.S.C. 1365a(c)(2)(emphasis added). The biometric requirements of this interim rule are supported by statutory authority outside of the four corners of DMIA and thus fall within DMIA's own “no reduction of authority” provision. Most importantly, Congress has expressly stated in sections 403(c) and 414 of the USA PATRIOT Act and sections 30 2-303 of the Border Security Act, laws passed after DMIA and after the terrorist attacks on September 11, 2001, that DHS and DOS should “particularly focus on the utilization of biometric technology” in developing the entry exit system; that alien identities be verified through biometric comparisons based on certified biometric standards developed through NIST; that travel and entry documents issued to aliens utilize biometrics; and that those documents be authenticated by machine-readers at ports of entry that will capture information on the aliens' arrival and departure for inclusion in the entry exit system. In addition, this rule is supported by other authority in sections 214, 215 and 235 of the INA, which has not been curtailed or reduced by DMIA. For these reasons, this rule does not violate the proscription against new documentary or data collections in DMIA.