\ fr \ Federal Register Publications (CIS, ICE, CBP) \ Federal Register Publications (Legacy INS) - 1995 \ FEDERAL REGISTER PROPOSED REGULATIONS - 1995 \ Certification of Designated Outside Entities to Take Fingerprints [60 FR 25856][FR 20-95]
Previous Document Next Document
Certification of Designated Outside Entities to Take Fingerprints [60 FR 25856][FR 20-95]
FEDERAL REGISTER CITE:
60 FR 25856
May 15, 1995
BILLING CODE: 4410-10
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
[INS No. 1666 - 94]
RIN 1115 - AD75
Certification of Designated Outside Entities to Take Fingerprints
Immigration and Naturalization Service, Justice.
: The Immigration and Naturalization Service (Service) is proposing to certify designated outside entities (DOEs) to take fingerprints of applicants for immigration benefits. This rule would establish eligibility criteria and application procedures to certify DOEs. The proposed rule would facilitate processing of applications for immigration benefits and protect the integrity of the fingerprinting process, while relieving the strain on Service resources.
Written comments must be received on or before July 14, 1995.
Please submit written comments, in triplicate, to the
Policy Directives and Instructions Branch, Immigration and Naturalization Service, 425 I Street, NW., Room 5307, Washington, DC 20536, Attn: Public Comment Clerk. To ensure proper handling, please reference INS No. 1666-94 in your correspondence.
Comments are available for public inspection at this location by calling (202)-514-3048 to arrange an appointment.
FOR FURTHER INFORMATION CONTACT:
Pearl Chang, Senior Examiner, Jack Rasmussen, Senior Examiner, or Ray Jaroneski, Senior Examiner, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 20536, telephone (202) 514-3240. This is not a toll-free number.
Applicants for various types of immigration benefits are required to submit a set of fingerprints on Form FD-258, Applicant Fingerprint Card, along with their applications. The applicants' fingerprints are forwarded to the Federal Bureau of Investigation (FBI) for checks for criminal history that may render an alien ineligible for immigration benefits.
Traditionally, applicants for immigration benefits have been fingerprinted at Service local offices. Over the past few years, because of resource shortages and uncontrollable overcrowding, most Service field offices have been forced to stop fingerprinting applicants for immigration benefits. Since other law enforcement agencies have not been able to meet the demand, applicants have turned to private enterprises for fingerprints. Under these circumstances, the Service typically does not know the identity
of the person or organization that prepared the fingerprints.
In a February 1994 inspection report, the Office of Inspector General (OIG) of the Department of Justice identified two major deficiencies in the current fingerprinting process that required corrective action: the reliance on unknown and untrained outside entities to prepare fingerprints; and the lack of identity verification of the individuals fingerprinted. In addition, the OIG pointed out that fingerprint cards submitted by the applicants were often of poor quality and had to be rejected by the FBI. T
he OIG recommended that the Service establish procedures to institute control and oversight of the fingerprint process. The Committee on Appropriation of the United States Senate also expressed concern about the current fingerprint process and directed in its report dated July 14, 1994, that the Service implement a fingerprint collection system which accepts only fingerprints taken by authorized entities, including trained Service employees, recognized law enforcement agencies, or Service certified outside
In May 1994, the Service convened a working group, which was comprised of representatives from various Service components along with advisors from the FBI and the OIG, to recommend solutions. After considering various options, the working group recommended that the Service adopt a policy of encouraging Service local offices to provide fingerprinting services. Where that was not feasible, the working group recommended that the district director designate outside entities to do the job. The district direct
or would assess the unique local situation prior to deciding whether to certify DOEs or to renew them when the initial certification of 3 years expires. The working group concluded that certification of DOEs is the most cost-effective way to restore integrity to the process in the short term and that it should be implemented as soon as possible. Based on these recommendations, the Service is undertaking rulemaking to establish eligibility criteria, certification requirements, application procedures, and a
date on which the Service will stop accepting fingerprint cards prepared by unauthorized entities.
The Service is aware that the objectives of the proposed DOE-certification program cannot be fulfilled unless the outside entities are carefully screened and monitored. The Service is contemplating three complementary methods for the monitoring of DOEs: on-site review of DOE operations; completion of an attestation form (discussed later) which the applicant is to submit to the Service with the fingerprint cards; and, in many cases, physical verification of benefit-applicants' fingerprints during their inte
rviews with Service officers. The latter is possible because the Service has been developing imaging capability in its Computer Linked Adjudication and Information Management System (CLAIMS). This imaging capability can be used to capture, store, and reproduce the digitalized image of the fingerprints submitted by applicants for benefits. At interview time, the adjudicating officer will be able to compare a system-generated image of the applicant's right index fingerprint with a freshly taken print of the
interviewee's right index finger to ascertain that they belong to the same person.
It should be emphasized that the working group gave serious thought to the feasibility of resuming fingerprinting services at all Service field offices. However, acquiring additional staff and facilities is a time-consuming process. Even with a fee increase, it would take up to 3 years to implement a fully functional fingerprinting operation at all local Service offices. It is simply not feasible for all Service field offices to resume the fingerprinting service in a short time. The working group believ
ed that the establishment of an automated fingerprint information system would ultimately resolve the current problems, yet it is not a solution that could be implemented immediately. Thus, the fingerprint working group recommended the use of DOEs as an interim solution while the Service is actively working on automating the fingerprinting process.
Upon development of an automated fingerprint information system, the Service will decide if there is a continued need for the DOEs' services and, if so, whether they should switch to newer technologies, such as acquiring automated fingerprinting equipment that meet the Service's specifications. In either event, the Service shall issue a public notification or make a new rule, as appropriate.
During the deliberation of the fingerprinting options, the Service explored contracting as a possible solution, but determined that contracting was not viable. A controlled procurement contract requires the contracting agency and the contractor to enter into a binding agreement involving appropriated funds, and these required conditions do not exist. On the other hand, section 103(a) and (b) of the Immigration and Nationality Act ("the Act") confers upon the Attorney General, and the Commissioner of the S
ervice by delegation, the authority to establish regulations necessary for carrying out the provisions of the Act. For reasons explained earlier in this preamble, rulemaking appears to be a reasonable and practical way to solve the fingerprinting problem.
In this rulemaking, the Service is proposing the creation of a new paragraph (e) in 8 CFR 103.2, to establish eligibility standards, responsibilities, and application procedures for DOE certification.
Public comments are encouraged and must be received by the Service on or before July 14, 1995. It has also been suggested that DOEs certified as a result of this rulemaking could ultimately be endorsed and utilized by other federal, state, or local government agencies which require fingerprints from applicants for various types of benefits or programs under their jurisdiction. Comments are also solicited on the feasibility of such an expansion in the role of DOEs and on what changes to the rule would
be necessary to accommodate that broader role.
Proposed Regulation for Certification of DOEs.
As stated earlier, the purpose of the fingerprints-clearance requirement is to ensure that the applicants for immigration benefits (e.g., adjustment to permanent residence, citizenship, adoption of foreign orphans, etc.), do not have criminal records that would render them ineligible. Because the validity of the fingerprints is an essential premise for carrying out the Service's obligation to identify and deny benefits to ineligible aliens, it is important that the fingerprinting process is not entrusted t
o persons whose past criminal conduct or other wrongdoing makes them unsuitable for such responsibility.
Thus, the proposed regulation would preclude from certification as outside entities those applicants who have been convicted of any aggravated felony as defined in section 101(a)(43) of the Act or of any crime involving dishonesty or false statement, who have been subjected to a civil penalty for fraud under section 274C of the Act or any other law. (If the applicant is an organization, these standards would also be applied to its principal officers, directors, or partners.) Moreover, an outside entity's
employee who has been convicted of an aggravated felony or a crime involving dishonesty or false statement, or subjected to a civil penalty for fraud, would not be eligible to take fingerprints, unless the outside entity can establish to the Service's satisfaction that the circumstances are such (because of the person's youth at the time of the conduct, the number of years that have passed since then, or other convincing factors) that there can be no reasonable questions as to the person's reliability in ta
king fingerprints in conformity with these rules.
In interpreting the terms "dishonesty or false statement", the Service may take general guidance to the degree that it is appropriate by analogy to the judicial interpretations of crimes involving "dishonesty or false statement" as that phrase is used in Rule 609(a)(2) of the Federal Rules of Evidence and prior cases. For example,
Government of Virgin Islands v. Toto
, 529 F.2d 278 (3d Cir. 1976), includes criminal convictions involving "perjury or subornation of perjury, false statement, criminal fraud, embezzlement, false pretense, or any other offense which involves some element of deceitfulness, untruthfulness or falsification". The Service invites comments from the public on these issues.
Since the FBI fingerprint-check is the only practical means available to the Service to positively identify any known criminal history, this rule would require outside entity employees with fingerprinting responsibility to submit their own fingerprints for an FBI check. Fingerprints submitted to support applications for certification as a DOE would have to be taken by designated Service personnel at local offices.
The proposed rule would also provide for a streamlined registration process for Federal, state, or local law enforcement facilities and military police facilities which provide fingerprinting service. These local police stations and military police facilities would be automatically eligible for DOE status provided that they register with the Service on Form I-850, Application for Certification as Designated Outside Entity to Take Fingerprints. No FBI fingerprint check, application fee, or additional traini
ng would be required of their personnel charged to take fingerprints. Once registered, the Service would include these police stations and military police facilities on the listing of DOEs and make available to them the Service's fingerprinting regulations and instructions.
As set forth in Sec. 103.2(e) of the proposed regulation, a DOE would be required to take legible and classifiable fingerprints of applicants, or be required to retake the fingerprints deemed to be illegible free of charge. A DOE would be allowed to charge an additional fee, however, if a good set of fingerprints is rendered illegible due to improper handling by the applicant. As part of the fingerprinting procedures, a DOE would be required to check the identification of the person being fingerprinted b
y comparing the information on the fingerprint cards with that of his or her passport, alien registration card, or any other Service issued photo-ID. The DOE would be required to maintain clean and suitable facilities that are accessible to the general public. The DOE would be required to use only fingerprint cards (Forms FD-258) or any other forms that are specified and supplied by the Service. Reproduced copies of Form FD-258 would be rejected.
A DOE could charge a reasonable fee for taking the fingerprints. Even though the Service has not imposed a fee limitation, a DOE would be required to make its fee known to the Service at the time its application for DOE-certification is filed and when there is a fee change. The Service believes that competition in the marketplace would keep the DOEs' fees at a reasonable level. Each local Service office would compile a list of the DOEs in its jurisdiction, giving their names, addresses, telephone numbers,
and fees, and make the list available to the public to encourage healthy competition.
A DOE would be required to immediately notify the Service director having jurisdiction over his or her place of business of any changes in personnel who take fingerprints. All DOE personnel charged with the responsibility to take fingerprints would be required to undergo and pass an FBI criminal history check, as discussed.
A DOE would be required to ensure that its employees receive adequate training in fingerprinting techniques and photo-ID verification procedures. A qualifying outside entity applying for certification would be required to show that all of its personnel charged with the fingerprinting responsibility have been trained by the Service or the FBI, are scheduled to receive such training prior to the approval of the application, or can otherwise demonstrate proficiency.
After certification, a DOE, however, would be allowed to train its new employees, provided that the trainer was initially trained by the Service or the FBI. The proposed rule would condition the grant of DOE status to the entity's successful completion of the required training.
Training could be arranged through local Service offices. An applicant who has been previously trained in fingerprinting by the Service or the FBI, or who can otherwise demonstrate proficiency, could be exempt from this training requirement.
A DOE would be required to immediately notify the Service of any conviction for an aggravated felony or a criminal offense involving dishonesty or false statement or of any civil penalty for fraud committed by an employee charged to take fingerprints. Since these types of activities cast doubt on an individual's credibility as a responsible person, the Service would need to be alerted.
A DOE would be required to permit the Service to make periodical on-site inspection of its operations to ensure compliance with required procedures. If a DOE was found to be in violation of the established regulations and procedures, and in the absence of evidence of willful misconduct, it would be given the opportunity to submit rebuttal evidence or request a reinspection following corrective actions. If the DOE failed to submit evidence of rebuttal or take corrective actions within a 30-day period, or i
f unsatisfactory conditions persisted at the second inspection, the Service could revoke its DOE status.
To assure the Service of the integrity of the fingerprint cards submitted, the proposed rule would require all DOE fingerprinters to fill out an attestation each time they take fingerprints for an immigration benefit applicant. In turn, applicants for immigration benefits would file this attestation together with the fingerprint card. The attestation must be signed and dated by the fingerprinter and state: (1) that he or she has properly checked the identity of the person being fingerprinted and entered, o
n the form, information pertaining to the individual's passport, alien registration card, or other acceptable Service issued photo-ID; (2) that he or she is an employee of a certified DOE, giving the DOE's name, address, certification number (as assigned by the Service) and expiration date; (3) that he or she understands the fingerprinting requirements as established by this rulemaking and has received adequate training to perform his or her responsibilities, giving his or her name and ID number (as assig
ned by the Service); and (4) the name, signature, and identification provided by the person being fingerprinted (the benefit applicant). The DOE's fingerprinters would be required to execute the attestations in duplicate in the presence of the benefit applicants. The original copy would be given to the person being fingerprinted, to be filed with the Service along with the fingerprint cards. The second copy, which may be a reproduced copy of the first one, would be kept on file by the DOE for at least 3 mon
ths for Service inspection. The Service would provide a standardized attestation, Form I-850A, Attestation by Designated Outside Entities Certified to Take Fingerprints, to DOEs for their convenience. The DOEs would be allowed to use reproduced copies of Form I-850A. Most of the information on the form could be pre-printed, except for the fingerprinter's signature, the date, and the information pertaining to the person being fingerprinted.
To obtain certification as a DOE, a qualifying outside entity would be required to file an application on Form I-850, including the required fee, with the district director having jurisdiction over the applicant's place of business. A DOE would also use Form I-850 to apply for renewal of its certification, to change its address or fee, or to seek approval for new or replacement employees to take fingerprints. The district director would consider all supporting materials submitted and request other evidence
of eligibility for certification as he or she may deem necessary. The initial certification is valid for three years and, if the district director finds a continuing need, may be renewed by applying to the district director having jurisdiction over the DOE's place of business on a new Form I-850, with the required fee, at least 90 days before it expires.
As previously mentioned, an application for DOE certification would be filed on Form I-850, with the required fee of $370. (The fee for filing an application for renewal of DOE certification would be $200.) The application fee would underwrite the Service's processing and administrative costs incurred in the DOE certification process, such as staffing, training of Service personnel on the DOE certification process, adjudication of applications, oversight of DOEs, as well as providing fingerprinting trainin
g (including instructional material and training videos) to DOEs. The proposed fee amount is based on estimates of these costs and is supported by a fee analysis, which is available upon request. Since the FBI fingerprint-check and related processing currently costs the Service $23 per person, an employer would also be required to pay an additional fee of $23 for each of its employees submitted for the Service's approval to take fingerprints. A fee would not be charged for filing a request for adding new
employees to a prior approved list, but the employer would have to pay the fingerprint-check fee of $23 for each of the new employees.
DOE certification would be automatically revoked when the DOE withdraws its application, or goes out of business prior to the expiration of the approval. The district director may also revoke on notice the certification of a DOE that is providing poor quality prints, cannot provide adequate assurance as to the identity of persons being fingerprinted or the integrity of its employees, or otherwise has violated the fingerprinting requirements. In that case, the district director would issue a notice of intent
to revoke detailing the reasons for the intended action. Within 30 days of the receipt of the notice, the DOE could submit evidence of rebuttal. If the district director is not satisfied with the evidence of rebuttal or if the DOE fails to respond within the 30-day period, the district director would notify the DOE of the revocation, and of its right to appeal. If the violations are egregious, such as failure to verify the identity of the individuals seeking fingerprinting, the district director could iss
ue a suspension order and place the DOE on immediate suspension. If the reason for suspension is correctable, the DOE under suspension could submit evidence of corrective action to the district director within 30 days and request a second inspection. Upon approval by the district director, the DOE would be allowed to resume fingerprinting on probation pending the results of the reinspection.
Section 264(b) of the Act provides that all registration and fingerprint records made under Title II are confidential and may be made available only (1) to Federal, State, and local law enforcement agencies, upon request, pursuant to section 287(f)(2) of the Act, and (2) to such persons and agencies as may be designated by the Attorney General. To preserve confidentiality, the proposed regulation would prohibit a DOE from releasing the fingerprints taken pursuant to the provisions of 8 CFR 103.2(e), other
than to the Service or to the subject or as otherwise provided in the Service's regulations.
This restriction is not intended to preclude law enforcement agencies registered under 8 CFR 103.2(e) from using the fingerprints they have collected for immigration purposes in other law enforcement pursuits.
Upon publication of the final regulation in the
, qualifying outside entities may apply to the district director having jurisdiction over the location of their businesses for certification as a DOE. During the initial certification phase, the Service will allow an overlapping period to give outside entities sufficient time to obtain certification. To facilitate a smooth transition to the new fingerprinting environment, the Service intends to implement the certification process, within a 6-month period, in two stages: (1) As of 120 days from the date o
f publication of the final rule in the
, the Service would require that all fingerprints submitted by immigration benefit applicants be taken by either a Service employee, a DOE fingerprinter, or an outside entity who has completed and filed an application for certification with the Service; and (2) As of 180 days from the date of publication of the final rule in the
, the Service would phase out all uncertified fingerprinters.
As indicated, the Service does not plan to implement the new fingerprinting process to a full scale until 6 months after the final rule has taken effect, but it would begin to implement the attestation provision of the proposed regulation before the end of the transitional period. As of 90 days from the date of publication of the final rule in the
, the Service would require that all fingerprint cards submitted by benefit applicants be accompanied by an attestation on Form I-850A by the fingerprinter. An outside entity that has completed and filed an application for DOE status prior to 90 days from the date of publication of the final rule in the Federal Register may, pending the Service's action upon its application, take fingerprints and complete the Form I-850A, indicating that its application for DOE status is pending. This provisional authority
will cease if its application is denied or as of 180 days from the date of publication of the final rule in the
The information collection requirements contained in this rule have been cleared by the Office of Management and Budget, under the provisions of the Paperwork Reduction Act. Clearance numbers for these collections will be contained in 8 CFR 299.5, Display of Control Numbers.
Regulatory Flexibility Act
The Service has examined the impact of this proposed rule in light of Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C. 603, et seq.) and has drafted this rule in a way to minimize the impact that it has on small business while meeting its intended objectives.
As set forth more fully elsewhere in the preceding supplemental information, the current fingerprinting process does not adequately ensure either the quality or the integrity of fingerprints submitted to the Service by applicants for immigration benefits. This rulemaking action is being conducted in order to address the concerns of the Justice Department's Office of the Inspector General (OIG) and the Committee on Appropriations of the United States Senate regarding the current fingerprinting process. Acc
ording to an OIG report issued in February 1994, 11% of the total number of fingerprint cards submitted by the Service to the FBI during fiscal year 1993 were rejected by the FBI as unclassifiable. That is a high level of rejection based on the quality of the fingerprints, resulting in unnecessary burdens on the Service, the FBI, and the applicants. Moreover, in the absence of a system to designate entities to take fingerprints, the Service often does not know who took the fingerprints and lacks ready mea
ns to determine if the fingerprints are actually those of the person submitting them.
The objectives of this proposed rule are to facilitate processing of applications for immigration benefits, protect the integrity of the fingerprinting process, and relieve strain on Service resources by establishing criteria for the certification of designated outside entities to take fingerprints. The legal basis for this rule is the authority conferred upon the Attorney General and, by delegation, upon the Service by section 103(a) and (b) of the Immigration and Nationality Act to establish such regulat
ions as are necessary to carry out its provision. This rule will substantially promote the Service's ability to identify and deny benefits to ineligible aliens, and to promptly and effectively administer the immigration laws of the United States by reducing unnecessary delays caused by poor fingerprint cards.
The Service believes that there are approximately 3,000 outside entities which are taking fingerprints for immigration benefit applicants. Because the entities providing fingerprinting services at present are primarily small businesses, the Service has developed and reviewed this proposed rule with the needs and circumstances of small businesses specifically in mind. The Service is not aware of any relevant Federal rules which duplicate, overlap or conflict with this proposed rule.
The Service has considered significant alternatives to this proposed rule which accomplish the objectives and which minimize any significant economic impact of this rule on small entities, including the use of contracting or greater use of Service facilities. The Service has sought to avoid burdens on outside entities beyond those requirements needed to improve the quality of the fingerprints taken and to provide assurance to the Service that the fingerprints it receives are genuine. As appropriate, requi
rements have been drafted as performance standards, for example: that the fingerprints DOEs take be legible and classifiable; that DOE personnel charged with the responsibility to take fingerprints pass an FBI criminal history records check; and that such DOE personnel be trained in fingerprinting or otherwise be able to demonstrate their proficiency.
The Service considered the purposes for certification and made the following determinations:
1. This rule must improve the quality of fingerprints taken for immigration benefit applicants by providing for the training of persons taking fingerprints or by their demonstration of proficiency in doing so. A beneficial result of improving the quality of fingerprints will be to reduce amount of time wasted by the applicant and by the Service in the processing and retaking of smeared or otherwise unusable fingerprints. This rule must also improve the integrity of the fingrprint process. This is accompl
ished by the licensing of DOE's and by the requirement that attestations be submitted along with the fingrprints. A beneficial result of improving the integrity will be to reduce the number of immigration benefits improperly granted.
Many outside entities currently taking fingerprints do so with acceptable standards of quality control and applicant verification. The Service believes that such entities will have no difficulty qualifying under this rule. The eligibility criteria of this rule have been minimized as far as possible while remaining consistent with the achieving of Service objectives in order to allow outside entities which at present do not meet acceptable standards to raise their standards to acceptable levels without und
2. Training requirements should be flexible in order to avoid unduly burdening DOEs. Accordingly, the Service will exempt from the training requirement those individuals who have been previously trained by the Service or the FBI, or who can otherwise demonstrate proficiency. Furthermore, the Service will allow a DOE to train its new employees with an employee who was initially trained by the Service or the FBI.
3. DOEs should decide for themselves what is a reasonable fee for the services they provide. Instead of setting a fingerprinting fee for the DOEs, the Service believes that the appropriate amount should be determined by the marketplace. Therefore, the proposed regulation would require that a DOE make its fee known to the Service when applying for certification. The Service would encourage healthy competition by compiling a DOE fee list and making it available to the public.
4. The regulation is a mechanism for setting guidelines for quality control and should be educational in nature. The regulation is designed to stress training and voluntary compliance. In the absence of willful misconduct, the DOEs found to be in violation of the established regulations are not subject to sanctions until they had been given an opportunity for a rebuttal or a second inspection within 30 days. The Service will only take actions against those DOEs which have failed to submit evidence of reb
uttal or take corrective actions within the 30-day period.
5. There should be a three-month transitional period during which an outside entity may continue to take fingerprints. Entities that apply for certification during this three-month period will be grandfathered, pending the Service's decision to grant or deny certification. This will allow the Service to regain control of the fingerprinting process at the earliest possible date without disrupting an outside entity's ability to conduct routine business. After the transitional period, an outside entity whic
h has applied for certification before the end of the transitional period may continue to take fingerprints until the Service acts on its application, as long as it completes a standard attestation, Form I-850A, for each of the immigration benefit applicants it fingerprints and indicates that its application for certification is pending.
The Service has designed the attestation form to allow the DOEs to partially fill in the information concerning the DOE, then provide reproduced copies of the partially completed form for its fingerprinters to use. The person who actually takes the fingerprints would then easily be able to complete the form with the information specific to the person being fingerprinted.
6. The Service will charge DOEs an application fee that is based on actual cost. The Service is proposing to charge $370 for an initial application and $200 for a renewal to underwrite the processing and administrative costs incurred in the DOE certification process. The proposed fee, which is supported by an estimated fee analysis, is based on costs relating to staffing, training of Service personnel on DOE certification process, adjudication of applications, oversight of DOEs, as well as providing fingerp
rinting training to DOES. In addition, due to concerns for national security, the Service is proposing to require all employees of outside entities responsible for taking fingerprints to pass an FBI fingerprint-check. Since the fingerprint check and related processing currently costs the Service about $23 per person, an employer will also be required to pay an additional fee of $23 for each of its employees submitted for approval or each change of employees. Although this rule imposes a fee on qualified sma
ll business entities to conduct fingerprinting services, the fee is minimal and will not have a significant economic impact on small entities. DOEs will be able to recoup the cost of the fee through the fees they charge for their fingerpriting services.
7. In addition to the cost of certification and renewals, it is estimated that each applicant would be required to expend approximately two and half hours every three years completing the appropriate application for certification or renewal of certification. The Service is not asking the applicants to provide more information than what is necessary for adjudicating their applications.
8. The Service will give the public sufficient time to comment on the proposal for rulemaking, especially, those small business entities that will be affected by it. To that end, the Service has set a 60-day comment period. The Service will consider all comments received within the comment period and make changes, as appropriate.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration and Naturalization Service, to be a "significant regulatory action" under Executive Order 12866, section 3(f), Regulatory Planning and Review, and has been reviewed by the Office of Management and Budget. As noted in the supplementary section of the rule, this action is intended to facilitate processing of applications for immigration benefits and protect the integrity of the fingerprinting process, while relieving the strain on Service reso
Executive Order 12612
The regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 12612, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service certifies that she has addressed this rule in light of the criteria in Executive Order 12606 and has determined that it will not have any impact on family well-being.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations (Government agencies), Reporting and recordkeeping requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF SERVICE RECORDS
1. The authority citation for part 103 continues to read as follows:
5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252 note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. In Sec. 103.2, a new paragraph (e) is added to read as follows:
Sec. 103.2 Applications, petitions, and other documents.
* * * * *
. Service regulations require that applicants for various types of immigration benefits submit their fingerprints with the applications. The fingerprinting of these benefit applicants must be carried out pursuant to the provisions contained in this paragraph (e).
Fingerprinting by the Service.
Where feasible, a Service local office shall provide fingerprinting service to applicants for immigration benefits. The district director shall assess available resources in his or her district office to determine whether the district office can provide such service.
Certification of designated outside entities
. Where the district director determines that the district office does not have the resources to provide fingerprinting services, the district director may certify one or multiple outside entities as a designated outside entity (DOE) to provide the service. Where a district office does not have the resources to fingerprint all applicants, the district director may certify outside entities to take fingerprints to supplement the district's efforts.
Transition to use designated outside entities
. As of 180 days from the date of publication of the final rule in the
, the Service will not accept fingerprint cards for immigration benefits unless they are taken by:
(i) Designated Service employees;
(ii) A DOE accompanied by a completed attestation, Form I-850A; or
(iii) An outside entity that has completed and filed an application for DOE status prior to 90 days from the date of publication of the final rule in the
may, pending the Service's action upon its application, take fingerprints and complete the Form I-850A, indicating that its application for DOE status is pending. This provisional authority for an outside entity shall cease if its application is denied or as of 180 days from the date of publication of the final rule in the
, whichever occurs first.
Eligibility for DOE
. An outside entity applying for DOE status may be either a business, a not-for-profit organization, a Federal, state, or local law enforcement facility, or an individual.
(i) An individual must establish that he or she is a United States citizen or lawful permanent resident, and has not been convicted of an aggravated felony or any crime involving dishonesty or false statement or subjected to a civil penalty for fraud.
(ii) A business or a not-for-profit organization must establish that it is of no known disrepute, that the majority (more than 50%) of its ownership is comprised of United States citizen(s) or lawful permanent resident(s), and that its principal officers, directors or partners meet the standard for individual applicants. Subsidiaries of foreign corporations may be exempted from the ownership requirement, provided that the subsidiary is incorporated in the United States.
(iii) A Federal, state or local law enforcement facility may register as a designated outside entity but does not need to comply with the requirements in this paragraph regarding operating licenses, identification and training of employees or application fees.
Criminal history records check
(i) An identification and criminal history record check is required for each person listed on the application for DOE certification. The district director shall designate Service personnel of the district office to obtain and transmit fingerprints to the Federal Bureau of Investigation (FBI) for such checks. If a DOE needs to add new or replacement employees to the personnel approved by the Service, it must file a new application, with the required fee for the FBI fingerprint check, with the district dire
ctor having jurisdiction over the DOE's place of business. The Service will accept fingerprints from an applicant for DOE-certification only if the fingerprints were taken by designated Service personnel.
(ii) An employee who has been convicted of an aggravated felony or a crime involving dishonesty or false statement, or subjected to a civil penalty for fraud, may not be assigned to take fingerprints, unless the DOE can establish to the Service's satisfaction that the circumstances of the crime are such (because of the person's youth at the time of the conduct, and/or the number of years that have passed since then) that there can be no reasonable doubt as to the person's reliability in taking fingerprints
in conformity with these rules.
. Except as provided under paragraph (e)(9), an outside entity seeking certification as a DOE must agree that it will:
(i) Abide by Service regulations governing certification of DOEs;
(ii) Permit Service personnel to make on-site inspections to ensure compliance with required procedures;
(iii) Ensure that the personnel responsible for taking fingerprints received training in fingerprinting procedures by the Service or FBI (exceptions can be made for those who have previously received training from the FBI or the Service or who can otherwise demonstrate proficiency);
(iv) If training in fingerprinting is in progress or has been scheduled and will be conducted prior to the approval of the application, notification of completion of training must be made to the district director where the application was filed;
(v) Use only FBI or Service-trained employees to train its new employees on fingerprinting procedures (exceptions can be made for those who have previously received training from the FBI or the Service) to conduct periodic refresher training as needed;
(vi) Make every reasonable effort to take legible and classifiable fingerprints, using only black ink;
(vii) Retake the applicants' prints free of charge if the DOE initially fails to take legible and classifiable prints;
(viii) Use only fingerprint cards (Forms FD-258 or other Service specified forms) that were provided by the Service for all fingerprints taken for immigration purposes;
(ix) Ensure that the fingerprint cards are correctly completed using FBI prescribed identity codes;
(x) Ensure that the fingerprint cards are signed by the applicants in their presence, and by the fingerprinter;
(xi) Verify the identification of the person being fingerprinted by comparing the information on the fingerprint card, Form FD-258, or other Service specified forms with the applicant's passport, alien registration card, or other acceptable Service issued photo-ID;
(xii) Complete an attestation on Form I-850A and provide it to the person being fingerprinted along with the fingerprint cards;
(xiii) Note on the fingerprint card, Form FD-258, or other Service specified forms that it has been certified by INS as a DOE, giving its DOE certification number (including the fingerprinter's ID number), expiration date, name, and address;
(xiv) Charge no more than a reasonable fee, if a fee is charged, and make that amount known to the Service;
(xv) Immediately notify the director having jurisdiction over the applicant's place of business of any changes in personnel responsible for taking fingerprints;
(xvi) Request approval for any new personnel to take fingerprints according to the procedures set forth in paragraphs (e)(4),(5),(6), (8), and (9) of this section;
(xvii) Notify the Service of any conviction for a crime involving dishonesty or false statement or civil penalty for fraud subsequent to the DOE's certification of an employee authorized to take fingerprints; and
(xviii) Maintain clean and suitable facilities that are accessible to the general public.
(i) To ensure the integrity of the fingerprint cards submitted by applicants for benefits, all DOE fingerprinters must fill out an attestation on Form I-850A each time they take fingerprints for an immigration benefit applicant. Such attestation must be signed and dated by the fingerprinter and show:
(A) The fingerprinter's name and ID number (as assigned by the Service) and a statement that the requirements of Sec. 103.2(e) have been met;
(B) The name, address, certification number (as assigned by the Service) and expiration date of the certified DOE;
(C) That he or she has checked the identity of the person he or she fingerprinted and has listed the identification number from the individual's passport, alien registration card, or other acceptable Service issued photo-ID; and
(D) That it is signed and dated by the benefit applicant.
(ii) DOE fingerprinters must execute the attestations in duplicate in the presence of the applicant. The original copy must be given to the applicant to be filed with the Service with his or her fingerprint card, and the second copy, which may be a reproduced copy of the first one, must be kept on file at the DOE for at least three months for Service inspection.
. An outside entity seeking certification as a DOE, or a DOE seeking approval for personnel change, must submit an application on Form I-850, Application for Certification as a Designated Outside Entity to Take Fingerprints, to the director having jurisdiction over the applicant's place of business. The application must include the following:
(i) The required fee;
(ii) A copy of all business licenses or permits required for its operations;
(iii) The names and signatures of personnel who will take fingerprints of applicants for immigration benefits;
(iv) A set of fingerprints taken by a Service employee on Form FD-258 for each employee whose name appears on the application form pursuant to paragraph (e)(4) of this section, and the required fee (for each employee) for the FBI criminal history record check;
(v) A statement on Form I-850 indicating the fee, if any, it will charge for the fingerprinting service; and
(vi) A signed statement on Form I-850 attesting that it will abide by the Service regulation governing fingerprinting and the certification of DOEs.
Registration of police stations or military police facilities.
(i) Federal, state, or local police stations or military police facilities may individually register to take fingerprints of applicants for immigration benefits by filing a Form I-850, Application for Certification as Designated Outside Entity to Take Fingerprints, completing only the relevant parts of the form. No fee or fingerprint cards need to be submitted for their personnel charged with the fingerprinting responsibility; nor are these personnel required to have additional training in fingerprinting t
echniques and procedures. Furthermore, law enforcement agencies registered to take fingerprints under this paragraph are not subject to on-site inspections by the Service. The Service will communicate with these agencies through regular liaison channels at the local level.
(ii) A police department may request registration on behalf of all of its subordinate stations on a single application by listing their precinct numbers and addresses. Once registered, the Service will include the individual police stations and military police facilities on the DOE listings and make available to them the Service's fingerprinting regulations and instructions.
. A DOE is prohibited from releasing fingerprints taken pursuant to certification, other than to the Service or to the applicant or as otherwise provided in the Service's regulations. Law enforcement agencies enumerated under paragraph (e)(9) of this section are not precluded from using the fingerprints they have collected for immigration purposes in other law enforcement efforts.
Approval of application
. The district director shall consider all supporting documents submitted and may request additional documentation as he or she may deem necessary. When the application has been approved, the district director shall assign a certification to the DOE and individual ID numbers to its approved fingerprinters. The approval will be valid for a period of 3 years and may be renewed in accordance with paragraph (e)(13) of this section. The district director shall notify the applicant of the approval and includ
e in the notice of approval the following items:
(i) Instructions on how to prepare Applicant Fingerprint Cards, Form FD-258;
(ii) A listing of acceptable Service issued photo-IDs; and
(iii) A statement detailing the DOE's responsibilities and rights, including the renewal and revocation procedures as provided by paragraph (e) of this section.
Denial of the application
. The applicant shall be notified of the denial of an application, the reasons for the denial, and the right to appeal under 8 CFR part 103.
(i) Subject to paragraph (e)(13)(ii) of this section, a DOE may apply for renewal of its certification at least ninety (90) days prior to the expiration date to prevent interruption in its ability to provide fingerprinting services. An application for renewal must be made on Form I-850 with the required fee and documentation as contained in paragraph (e)(8) of this section. In considering an application for renewal, the Service will give particular weight to the volume and nature of complaints or issues t
hat have been raised in the past with respect to the DOE, by the Service, the FBI, or the public, or the absence of such complaints or issues. Each renewal shall be valid for 3 years. Failure to apply for renewal will result in the expiration of the outside entity's DOE status.
(ii) The Service will certify and renew DOEs as long as the need for their service exists. Following the development of an automated fingerprint information system, the Service will determine if there is a continued need for the DOEs' services, and if so, whether they should switch to newer technologies, such as acquiring compatible automated fingerprinting equipment. In either event, the Service shall issue a public notification or make a new rule, as appropriate. Nothing in this paragraph shall preclu
de the Service from discontinuing the DOE certification program after the initial three years.
Revocation of certification
. The district director shall revoke an approval of application for DOE status under the following circumstances:
The approval of any application is automatically revoked if the DOE:
(A) Goes out of business prior to the expiration of the approval; or
(B) Files a written withdrawal of the application.
Revocation on notice
. The Service shall revoke on notice the certification of a DOE which has violated the regulations governing the fingerprinting process as established in paragraph (e) of this section.
(A) If the district director finds a DOE fails to meet the required standards, he or she will issue a notice of intent to revoke detailing reasons for the intended revocation. Within 30 days of the receipt of the notice, the DOE may submit evidence of rebuttal or request an inspection following corrective actions. The district director shall cancel the notice of intent to revoke if he or she is satisfied with the evidence presented by the DOE or the results of a reinspection.
(B) For egregious violations, such as failure to verify the identity of the persons seeking fingerprinting, the district director may, in his or her discretion, issue a suspension order and place the DOE on immediate suspension. The DOE under suspension may submit a plan for corrective action to the district director within 30 days and request a reinspection. If the district director approves the plan, he or she shall permit the DOE to resume fingerprinting on probation pending the results of the reinspe
ction. The district director shall cancel the suspension order if he or she finds the results of a reinspection satisfactory.
(C) If the DOE fails to submit evidence of rebuttal or corrective actions within the 30-day period, or if unsatisfactory conditions persist at the second inspection, the district director shall notify the DOE of the revocation decision, detailing the reasons, and of its right to appeal.
(D) The district director shall consider all timely submitted evidence and decide whether to revoke the DOE's approval.
(iii) If the Service's investigation uncovers evidence of material misconduct, the Service may, in addition to revocation, refer the matter for action pursuant to section 274C of the Act (civil document fraud), 18 U.S.C. 1001 (false statement), or other appropriate enforcement action.
Appeal of revocation of approval
. The revocation of approval may be appealed to the Associate Commissioner for Examinations under 8 CFR part 103. There is no appeal from an automatic revocation.
List of DOEs
. Each district office shall make available a list of the DOEs it has certified to take fingerprints. Such list shall contain the name, address, telephone number, if available, and the fee of each DOE certified in the district.
Change of address or in fee
. A DOE shall promptly report
to the Service, on Form I-850, any change of address or in the fee it is charging. The district office shall update the list of DOEs and their fees upon receipt of the notice of changes.
3. In Sec. 103.7, paragraph (b)(1) is amended by adding to the listing of forms, in numerical sequence, the entry for "Form I-850" to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-850. For filing application for certification as designated outside entity - $370 plus $23 for each fingerprint check for initial certification; $200 for renewal of certification; and $23 for each fingerprint check for adding or replacing employees. No fee will be charged to police stations or military police facilities registering pursuant to Sec. 103.2(e)(9).
* * * * *
PART 299 -- IMMIGRATION FORMS
4. The authority citation for part 299 continues to read as follows:
8 U.S.C. 1101, 1103; 8 CFR part 2.
5. Section 299.1 is amended by adding to the listing of forms, in numerical sequence, the entry for Forms "I-850 and I-850A" to read as follows:
Sec. 299.1 Prescribed forms.
* * * * *
* * * * *
Application for Certification as Designated Outside Entity to Take Fingerprints.
Attestation by Designated Outside Entities Certified to Take Fingerprints.
* * * * *
6. Section 299.5 is amended by adding to the listing of forms, in proper numerical sequence, the entry for Forms "I-850 and I-850A" to read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
INS form No.
INS form title
Currently assigned OMB control No.
* * * * *
Application for Certification.... as Designated Outside Entity to Take Fingerprints
Attestation by Designated........ Outside Entities Certified to Take Fingerprints
* * * * *
March 24, 1995
Commissioner,Immigration and Naturalization Service.
Appendix A and B will not appear in the Code of Federal Regulation.
, Application for Certification as a Designated Outside Entity