On January 5, 2004, DHS published an interim rule in the Federal Register establishing US-VISIT at air and sea ports of entry designated by notice in the Federal Register at 69 FR 468. Also on January 5, 2004, DHS published a notice in the Federal Register at 69 FR 482, designating 115 airports and 14 sea ports for the collection of biometric data from certain aliens upon arrival to the United States under the US-VISIT program. Since January 5, 2004, aliens applying for admission pursuant to a nonimmigrant visa at designated air and seaports have been required to submit fingerprints and photographs.

    Since its implementation at air and seaports in January 2004, US-VISIT has proven that the use of biometrics to check identity and background is a highly effective national security and law enforcement tool. US-VISIT has already prevented 196 criminal aliens from entering the United States. Further, US-VISIT has already identified 790 aliens using biometric “lookout” lists--established lists of aliens suspected of being terrorists, or having committed past criminal acts or immigration violations.

B. Exit Pilot Programs

    The January 5, 2004 interim rule also authorized the Secretary of DHS to establish pilot programs at up to fifteen air or sea ports of entry, to be identified by notice in the Federal Register , through which DHS may require certain aliens who depart from a designated air or sea port of entry to provide specified biometric identifiers and other evidence at the time of departure. 8 CFR 215.8. On January 5, 2004, DHS published a notice in the Federal Register at 69 FR 482 identifying the implementation of exit pilot programs at Baltimore-Washington International Airport (BWI) and the Miami Seaport. DHS has recently implemented exit pilot programs at an additional 13 ports of departure, as identified by notice in the Federal Register on August 3, 2004 at 69 FR 46556.

    Under the exit pilot programs at BWI and Miami, aliens departing from any of the designated departure air and sea ports are required to submit fingerprints and electronically scan their nonimmigrant visas or passports at self-serve “kiosks” which are located in the air and sea port terminals. DHS personnel are available to assist aliens with the data collection procedure as needed. To date, the process has been implemented smoothly with no significant delays for travelers.

    Since early August of 2004, DHS, through the extended exit pilot program, has been testing different methods to collect the required information from aliens as they depart the United States through the designated ports of entry. DHS currently is exploring several different methods and processes for collection of information, including an “enhanced” version of the existing self-serve kiosks already in place. The enhanced version provides the alien a receipt with biometric identifiers for the alien to present to a DHS representative prior to boarding a flight or ship. Also, DHS is testing hand-held scanners, which can be taken from person to person by a DHS representative to collect biometric information, and a combination of the two systems. US-VISIT rejected several other options, including the use of Transportation Security Administration (TSA) screeners or airline personnel assisting in data collection, as unfeasible due to the potential of overwhelming the ability of these organizations to perform their al ready existing functions.

    The exit pilot program will enable DHS to conduct a cost-benefit analysis of the different processes and determine which process allows for the most accurate and efficient collection of information from aliens departing from the United States. After careful analysis and consideration of the deployed alternatives, DHS will then evaluate which solution or solutions will be selected for additional deployment at air and sea ports.

    The evaluation of the best method for collecting exit data collection will occur from August through November 2004. The pilot programs will be evaluated based on: (1) The cost of each option, including the impact on staffing and necessary personnel; (2) how well the alternative supports all necessary aliens being processed and requisite law enforcement functions; and (3) how conducive the alternative is for tourist and commercial travel. The extended pilot program began in August 2004, where the additional methods of data collection have occurred in Chicago O'Hare airport, Baltimore/Washington International Airport, and Miami seaport. In early September 2004, US-VISIT exit pilot program will expand to additional ports of entry where additional evaluations may be made. DHS will take a flexible approach to the evaluation of the different methods of data collection, and may select one of the methods currently evaluated or a slightly modified version, depending on information gained from the pilot program. In add ition, DHS may not select the same method at every port, recognizing that physical space limitations and passenger procedures are different at different ports. DHS invites comments on the existing methods being piloted, the ones previously rejected, or on any other potential technologies or methods of collecting US-VISIT exit data.

    The pilot program is currently for air and sea ports of entry; at this time, no departure requirements are in place at land border ports of entry.

C. Classes of Aliens Exempted From Biometrics Requirements of US-VISIT Pursuant to the January 5, 2004 Interim Rule

    The January 5, 2004 interim rule exempts certain classes of aliens from US-VISIT requirements. The exempted classes are: (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, and 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) person s 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. 8 CFR 215.8(a)(2).

III. Implementation of the Second Phase of US-VISIT

    This interim rule amends DHS regulations to implement the second phase of US-VISIT by expanding the program to the 50 most highly trafficked land border ports of entry in the United States as directed under 8 U.S.C. 1365a(d)(2). This interim rule also expands the population of nonimmigrant aliens who may be subject to US-VISIT biometric data collection. Finally, this interim rule further defines the aliens who are exempt from US-VISIT biometric data collection requirements.

A. The 50 Most Highly Trafficked Land Border Ports

    This interim rule authorizes the Secretary or his delegate to extend the US-VISIT biometric data collection requirements to land border ports of entry designated by notice in the Federal Register . Biometric data collection at time of entry will be implemented at the 50 most highly trafficked land border ports of entry by December 31, 2004. Biometric data collection at time of departure will be implemented at land border ports, through a limited number of pilot programs at locations designated by notice in the Federal Register . The classes of aliens required to provide biometrics are the same regardless of whether the application for admission takes place at an air, sea or land port of entry.

    DHS expects to comply with the December 31, 2004 DMIA deadline for implementing the integrated entry exit system at the 50 most highly trafficked land border ports of entry. This compliance will include integration of all available arrival and departure data on aliens that currently exist in the electronic systems of DHS and DOS. This includes information from Advance Passenger Information System (APIS) and the Arrival/Departure Information System, (ADIS), as well as other systems related to air and sea ins pections as well as law enforcement purposes. APIS and ADIS include information captured from passenger manifest data received from carriers and information on visa applicants and recipients received through the DataShare program with DOS.

    At this time, DHS has not designated any land border ports of entry where biometric data collection is required. DHS will implement the biometric data requirements, taken at the time of alien arrival, at the 50 most highly trafficked land ports of entry within the next few months. Those land border ports will be identified through notice(s) in the Federal Register . Staggering the implementation of US-VISIT, starting with a few initial locations, will enable DHS to test the system and identify areas where the process for collection of biometric information may be improved. Subsequent to implementation of biometric data collection at time of entry at the 50 busiest ports, DHS will implement biometric data collection at time of departure through a limited number of pilot programs at locations designated by notice in the Federal Register .

    This interim rule is expected to have minimal effect on the overall inspection process or inspection times for travelers at land border ports of entry. DHS, through Bureau of Customs and Border Protection (CBP) personnel, have carefully monitored the impact of US-VISIT biometric data collection on the inspection of air and sea applicants for admission, and has determined that this process takes, on average, approximately 15 additional seconds during the inspection. Similar results are expected at land borde r ports of entry, given the population to whom this process will apply and how it will be conducted. However, DHS, through CBP, will continue to carefully monitor the effect of US-VISIT on overall inspection times at all locations at which US-VISIT has been deployed, and will make operational adjustments as necessary.

    Similarly, this interim rule is expected to have little effect on trans-border commerce. Minimal additional time or effort will be spent in the US-VISIT process and no delays or interruptions of shipments are expected as a result of this rule.

    DMIA requires that DHS implement US-VISIT at the 50 most highly trafficked land border ports of entry in the United States no later than December 31, 2004. This interim rule authorizes the Secretary of DHS to extend the US-VISIT biometric data collection requirements to the 50 most highly trafficked land border ports of entry and to identify the specific land border ports separately by notice in the Federal Register .

    This interim rule makes no changes to current regulations that control the issuance and use of the Form I-94. All current valid Forms I-94 remain in effect. DHS will verify an alien's identity using biometrics at the time of issuance of a Form I-94, or at any time DHS determines such verification is necessary. The goal of the US-VISIT program, once fully implemented, is to verify an alien's identity using biometric identifiers upon each entry and departure through any air, land, or sea port of entry.

    The fee required under 8 CFR 103.7(b)(1) and 8 CFR 235.1(f) for the issuance of a Form I-94 at a land border port of entry will still be required. This interim rule does not change any of the fee requirements. As previously stated, this interim rule merely adds designated land border ports-of-entry as a location for the collection of biometrics upon the entry of aliens required by regulation to provide them. Multiple-entry Forms I-94 will still be issued as before, with no change in the fees.

B. Inclusion of Visa Waiver Program Participants

    Pursuant to section 217 of the INA, the Secretary of DHS, in consultation with the Secretary of State, may designate certain countries as VWP program countries if certain requirements are met. Those requirements include, without limitation, (i) the rate of nonimmigrant visa refusal for nationals of the country, (ii) whether the government certifies that it has a program to issue machine readable, tamper-resistant passports that comply with ICAO standards, (iii) whether the country's designation would negati vely affect U.S. law enforcement and security interests, and (iv) whether the government certifies that it reports to the United States on a timely basis the theft of blank passports. The statute also sets forth requirements for continued eligibility and, where appropriate, emergency termination of program countries. Nationals of VWP countries, who are otherwise admissible, may travel to the United States and be admitted in the B-1/B-2 categories without a visa for up to ninety days.

    Travelers seeking entry to the United States through the VWP comprise nearly 50% of the total number of nonimmigrant aliens who apply for admission each year by air or sea. Individual travelers are limited by statute in both purpose and duration of visit, as well as other benefits potentially available to travelers holding visas. VWP applicants must also waive any right to appeal the admissibility determination or to contest, other than on the basis of an application for asylum, any action for removal of th e alien.

    DHS has determined that enrolling VWP aliens in the US-VISIT program will improve public safety, national security, and the integrity of the immigration process. As with any traveler to the United States, it is important to verify the true identity of the alien and to ensure that the alien is admissible. Enrolling VWP travelers in US-VISIT reduces the risk that the VWP traveler's identity could be used by other individuals to enter the United States. By linking the alien's biometric information with the ali en's travel documents, DHS reduces the likelihood that another alien could later assume the identity of an enrolled individual to gain admission to the United States. Since US-VISIT was initiated on January 5, 2004, the program has been very successful in identifying aliens whom the officer would not have known were inadmissible. Through June 2004, US-VISIT has prevented the admission of more than 196 persons traveling under non-immigrant visas that were inadmissible, including known or suspected criminals. Adding the VWP population to US-VISIT should result in additionally success in preventing criminal aliens from being admitted.

    Although the Secretary of DHS may have determined that the rate of visa refusal for nationals of VWP countries is low and that the country's participation in the VWP program is consistent with U.S. law enforcement and security programs, the importance of identification verification and other security concerns require that VWP travelers be enrolled in US-VISIT.

    Further, there is evidence that VWP passports are attractive to individuals seeking to avoid the security and immigration screening provided by the visa issuance process. Security concerns outside of identity fraud also have led DHS to the conclusion that enrolling VWP travelers in US-VISIT is warranted.

C. Additional Classes of Aliens Affected by Changes to the January 5, 2004 Interim Final Rule

1. TECRO Aliens

    In establishing diplomatic relations with the People's Republic of China (PRC) in 1979, the U.S. Government recognized the PRC as the sole legal government of China. Both sides agreed that, within this context, the people of the United States would maintain cultural, commercial, and other unofficial relations with the people in Taiwan.

    The Taiwan Relations Act (TRA) (Pub. L. 96-8) provides the legal framework for the conduct of these unofficial relations. This law provides that the Taipei Economic and Cultural Representative Office (TECRO), a private organization, is responsible for the unofficial relations between the people of the United States and the people in Taiwan. In keeping with this special status, Taiwan representatives of the TECRO, and their dependents, are added as an additional class of aliens exempt from the collection of biometric information under US-VISIT at this time. This interim rule now exempts certain officials of TECRO from US-VISIT, through amendments to 8 CFR 252.8(a)(2)(ii) and 235(d)(iv)(B).

2. Alien Crewmembers

    Pursuant to section 101(a)(15)(D) of the INA, an alien may be admitted into the United States temporarily to work as a crewmember. Current DHS regulations at 8 CFR 252.1(b) provide that crewmembers are examined under the provisions of 8 CFR parts 235 and 240. This interim rule clarifies that every alien crewman applying for landing privileges in the United States is subject to the collection of biometric information pursuant to 8 CFR 235.1(d)(1)(ii) and (iii).

3. Mexican Nationals Who Present a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC)

    Mexican nationals who travel to and from the United States may apply for a Form DSP-150, B-1/B-2 Visa and Border Crossing Card (BCC). Pursuant to 8 CFR 212.1(c)(1)(i), a visa and passport are not required of a Mexican national who is in possession of a BCC containing a machine-readable biometric identifier and who is applying for admission as a temporary visitor for business or pleasure from a contiguous territory. If the BCC traveler is applying for admission from other than a contiguous territory, he or s he must present a valid passport. See 8 CFR 212.1(c)(2).

    Prior to issuing a BCC to a Mexican national, DOS obtains fingerprints and a photograph from the individual and conducts a background check on the individual using biographic and biometric identifying information. Once the individual is approved, the fingerprints and photograph of the Mexican national are then embedded into the BCC. Upon admission to the United States, a CBP officer inspects the holder of a BCC to determine that he or she is the rightful bearer of the document.

    Whether a BCC traveler is issued a Form I-94 Arrival/Departure Record at time of admission depends on how long the Mexican national will remain in the United States and where the Mexican national will travel while in the United States. Pursuant to 8 CFR 235.1(f)(1)(iii), if the Mexican national's admission will not exceed 30 days and the visit will be within 25 miles of the border, it is not required that the alien be issued a Form I-94 Arrival/Departure Record. The distance restriction is increased to 75 m iles if the Mexican national is admitted at a port of entry in the state of Arizona. See 8 CFR 235.1(f)(1)(v).

    Pursuant to this interim rule, the Secretary of DHS or his delegate may require Mexican nationals who present a BCC at time of admission at a designated air, sea or land port of entry to provide fingerprints, photographs, or other biometric identifiers at time of entry into or departure from the United States. However, under 8 CFR parts 215.8(a)(2)(iii) and 235.1(d)(1)(iv)(C), the Secretaries of DHS and State may jointly exempt classes of aliens from the US-VISIT biometric data requirements. This interim ru le constitutes notice that the Secretaries of DHS and State have jointly determined that the US-VISIT departure requirements in 8 CFR part 215.8(a)(1), and inspection requirements in 8 CFR 235.1(d)(ii), shall apply only to Mexican nationals for whom a Form I-94 is issued under 8 CFR 235.1(f)(1)(iii) or (v). This means that Mexican nationals who present a BCC at time of admission, who will stay within 25 miles of the border (75 miles if admitted at a port of entry in Arizona) and whose stay will be shorter t han 30 days, are not subject to the US-VISIT biometric data collection requirements. The Secretaries of DHS and State have determined that this class of aliens should be exempt because the biometric data (fingerprints and photographs) of BCC travelers have already been captured by DOS at time of the BCC issuance, and the biometric photograph of the traveler on the BCC is compared to the facial appearance of the traveler upon admission. This exemption is temporary. DHS expects that the exemption will be phas ed out as US-VISIT capabilities and technologies improve.

    Mexican nationals who present a BCC and who will travel beyond the geographic restrictions or remain in the United States for longer than 30 days are currently issued a Form I-94, Arrival/Departure Record and will now be subject to US-VISIT biometric requirements if they apply for admission at a designated air, sea, or land port of entry. If a BCC traveler is issued a multiple-entry Form I-94, Arrival/Departure Record, the traveler will be subject to US-VISIT biometric data requirements the next time the tr aveler is issued a Form I-94, Arrival/Departure Record.

A. Summary of Comments

    DHS received 21 comments on the January 5, 2004 interim rule. The commenters included representatives of the travel industry, including airports, airlines, and travel or transport associations. Other commenters included a national business association, a privacy organization, attorneys and an attorney association, two universities, an educational association, a personnel association, a trucking association, a manufacturer of smart cards, and a foreign government.

    The following is discussion of the comments received and the Department's response.