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Certification of Designated Fingerprinting Services [61 FR 28003] [FR 31-96]
FR 31 - 96
FEDERAL REGISTER CITE:
61 FR 28003
June 4, 1996
BILLING CODE 4410-10-M
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103 and 299
[INS No. 1666-94]
RIN 1115 - AD75
Certification of Designated Fingerprinting Services
Immigration and Naturalization Service, Justice.
This rule amends the Immigration and Naturalization Service(Service) regulations by certifying designated fingerprinting services (DFS) to take fingerprints of applicants for immigration benefits. This rule establishes the eligibility requirements and application procedures for DFS certification. When the rule is implemented, it will facilitate the processing of applications for immigration benefits, protect the integrity of the fingerprinting process, and relieve the strain on Service personnel resources
This rule is effective July 5, 1996. Entities desiring to continue providing fingerprint services for immigration benefits without interruption must file an application for DFS status in accordance with the standards of this rule no later than November 1, 1996. After December 31, 1996, the Service will not accept fingerprints taken by entities who have not filed an application for DFS certification and been approved by the Service.
FOR FURTHER INFORMATION CONTACT:
Jack Rasmussen, Adjudications Officer, or Kathleen Hatcher, Adjudications Officer, Adjudications Division, Immigration and Naturalization Service, 425 I Street, NW., Room 3214, Washington D.C. 20536, telephone (202) 514-3240; Kim Managan, Adjudications Officer, Immigration and Naturalization Service, 2901 Metro Dr., Suite 100, Bloomington, MN 55425, Telephone (612) 335-2234; Delia Ramirez, Adjudications Officer, Immigration and Naturalization Service, EOFP 6th Fl., P.O. Box 30080, Laguna Niguel, CA 92607-0
080, Telephone (714) 360-3314; or Yolanda Sanchez, Adjudications Officer, Immigration and Naturalization Service, 509 N.Belt, Houston, TX 77060, Telephone (713) 229-2833. These are not toll-free numbers.
Applicants for various types of immigration benefits are required to submit a set of fingerprints along with their applications. These fingerprints are forwarded to the Federal Bureau of Investigation (FBI) for criminal history records clearance. The Service's field offices frequently have been unable to provide timely fingerprinting services due to the fluctuating demand in many localities. As a result of these fluctuating fingerprinting demands, applicants for immigration benefits frequently sought fing
erprinting services from outside enterprises. Initially, the Service gauged the quality of outside fingerprinting through reviewing and evaluating individual application fingerprint documents. However, with increasing volume of applications requiring fingerprints, this approach proved to be less than effective. In addition, concerns were raised about the integrity of fingerprints submitted with many applications. In February of 1994, the Inspector General of the Department of Justice completed a study rega
rding the Service's fingerprint controls. The study identified two major deficiencies as follows: (1) the Service relies on unknown and untrained outside entities to prepare fingerprints and (2) the Service does not know if the fingerprints submitted by the applicants are their own. Additionally, the Office of Inspector General (OIG) pointed out that fingerprint cards submitted by the applicants were often of poor quality and had to be rejected by the FBI. The OIG recommended that the Service establish pro
cedures to institute control and oversight of the fingerprint process.
Following the OIG report, the General Accounting Office (GAO) conducted an audit of the Service's fingerprint collection process and ratified the OIG's findings. Furthermore, on July 14, 1994, the Senate Committee on Appropriations included language directing that the Service implement a fingerprint collection system which permits only trained Service employee, recognized law enforcement agencies, or Service-certified outside entities to take fingerprints.
The Service responded by revising and refining its policies and publishing these in a notice of proposed rule making in the
on May 15, 1995 (60 FR 25856) with a 60-day public comment period. The public comment period ended on July 14, 1995. The notice of proposed rulemaking presented a certification process that included eligibility criteria, certification requirements, application procedures, and a date on which the Service will stop accepting fingerprint cards prepared by unauthorized organizations.
Name Change From DOE TO DFS.
In the proposed rule the Service referred to organizations certified to take fingerprints as "DOEs" (Designated Outside Entities). The Service has made a technical name change from "DOE" (Designated Outside Entity) to "DFS" (Designated Fingerprinting Services) in order to minimize confusion and ambiguity with other organization(s) performing functions "outside" the Service. This technical name change to "DFS" (Designated Fingerprinting Services) more accurately describes the specific function or services b
eing provided by the certified and designated organization(s). Furthermore, the Service desires to increase outside or community-based partnership roles in other areas related to immigration forms or documents, and many immigration-related service organizations have expressed concern that the certification given these outside entities may have been interpreted beyond the intended fingerprinting role.
Discussion of Comments
Forty-four individuals or groups submitted comments. Most commenters strongly supported the fingerprinting certification process. Many expressed an interest in seeking DFS status. Only three commenters preferred the current fingerprinting procedures over the new certification process. The following is a summarized discussion of those comments and the Service's response.
Section 103.2(e)(1) Fingerprinting by the Service
One commenter stated that the purpose of this regulation is to establish oversight of organizations that charge a fee for fingerprinting services. This commenter indicated that this purpose should be clearly stated in the regulation. The Service believes that the proposed regulation was clear on this point but has added language to the last sentence of the general statement in the introductory text of paragraph (e) to make the purpose of this regulation more explicit.
Another commenter suggested that the Service stop providing fingerprinting service altogether and, instead, rely entirely on certified DFS(s). The intent of the proposed rule was to make available to INS customers high quality fingerprinting services. In areas where there may not be sufficient business interest in the DFS process, Service personnel will continue to offer fingerprinting services. Accordingly, INS local offices have the flexibility to make decisions based on local conditions.
In §103.2(e)(2) of the proposed rule, the Service provided that when district offices do not have the resources to provide fingerprinting services, they shall certify "one or multiple outside entities" as DFS(s) to provide the service. One commenter asked INS to clarify whether this provision gave the district director broad discretionary authority to limit the number of DFS(s) he or she would certify. On closer review of this provision, the proposed language could be misleading or improperly construed as a
llowing the district director to designate a single or a discretionary number of DFS(s) for the entire immigration district. This particular interpretion of the proposed provision would be at odds with the Service's expectation that all district directors certify as many DFS(s) as there are qualified applicants. In the final rule, the Service revised the language in the proposed §103.2(e)(2) and merged it with §103.2(e)(1) to clearly reflect this policy. The text in §103.2(e)(1) now includes the provision t
hat "the district director shall consider all qualified applicants for DFS certification and certify applicants who meet the regulatory standards to supplement the district's efforts."
Section 103.2(e)(2) Designated Fingerprinting Services
The Service has renamed the new §103.2(e)(2) as "Designated fingerprinting services" and clarified the different procedures involving the two classes of designated fingerprinting services: (1) Designated law enforcement agencies (Federal, state, and local police or military police); and (2) other businesses, organizations, and individuals. As a law enforcement agency, a Federal, state, or local police department may register with the Service to gain automatic DFS status but is exempted from the requirements
in this paragraph regarding operating licenses, identification and training of employees, attestation, inspections, or application fees. On the other hand, all other designated fingerprinting services, including businesses, individuals, or not-for-profit organizations, must abide by the regulations and procedures established in §103.2(e).
Section 103.2(e)(3) Transition to use Designated Fingerprinting Services
The Service has decided to implement the DFS Certification Program in two stages: (1) As of 120 days from the effective date of this final rule, the Service will require that all fingerprints submitted must be taken by a Service employee, a DFS fingerprinter, a recognized law enforcement agency, or an intending DFS who has completed and filed an application for certification with the Service; and (2) As of 180 days after the effective date of the final rule, the Service will no longer accept fingerprint car
ds for immigration benefits that are taken by unauthorized fingerprinters. However, the Service inadvertently misstated in paragraph (e)(3)(iii) that an intending DFS or organization would have only 90 days to file an application for DFS certification instead of 120 days. This has been corrected in the final rule under paragraph (e)(3)(i).
Two commenters were concerned that possible delays in the processing of applications for DFS certification or renewal would interrupt the applicants' businesses. They suggested that where delayed adjudication occurred, the Service grant the applicants an automatic grace period provided that the applications were timely filed (in the case of initial certification, within the 120-day window: in the case of renewal, 90 days before the certification expires). The Service recognizes these concerns and has stress
ed the importance of timely processing to its field personnel during training sessions on DFS certification. The Service is confident that DFS applications will be processed quickly, but agrees that in case of lengthy processing delays, the district director may, on a case-by-case basis, grant discretionary relief to applicants of a timely filed application to avoid interruption to their businesses.
Section 103.2(e)(4) Eligibility for DFS
The Service proposed that DFS(s) be U.S. citizens or lawful permanent residents (LPRs), and in the case of a business entity, that the majority ownership of the business be held by U.S. citizens and LPRs. One commenter opposed this requirement, arguing that people with other immigration status could also be entrusted with this responsibility. Another commenter said that the majority-ownership requirement would require not-for-profit organizations to inquire into the legal status of their volunteer officers
, and that these inquiries could be perceived as an invasion of privacy and deter interested individuals from participating in volunteering work.
The U.S. citizens and LPR requirements were designed for security purposes. Since the Service will have to rely on the DFS(s) to ensure the integrity of the fingerprinting process, the status of United States citizen or permanent resident creates a reasonable presumption of allegiance and loyalty. While the Service is not persuaded that not-for-profit organizations should be exempted from the U.S. citizen and LPR requirement, the ownership provision may pose an undue burden on private organizations. Specif
ically, the burden imposed by this requirement does not result in an equal or better enhancement to security needs. Therefore, and until the DFS certification program may be evaluated over time, the Service has now determined that the ownership provision is not necessary. The ownership language was removed.
Section 103.2(e)(5) Criminal History Records Check
The same commenter also requested that not-for-profit organizations and their employees be exempt from the FBI fingerprint check, arguing that this requirement would invade their privacy and deter participation by volunteers who are usually prominent and accomplished members of the society. Another commenter asked for a waiver of the FBI fingerprint check for not-for-profit entities approved by the Board of Immigration Appeals under the provisions of 8 CFR 292.2. Although it is true that persons affiliated
with BIA-approved entities under § 292.2 generally are respected and accomplished individuals, this is also likely to be true of other outside fingerprinters. Since there is no objective way to pre-determine any individual's moral character, it would be unfair for the Service to selectively exempt groups of DFS applicants from the FBI fingerprint check. The objective of this fingerprint check is to strengthen and restore the integrity of this security process. Information obtained from the fingerprint ch
eck will not be shared with any entity other than the organization seeking certification or a law enforcement agency should there be an outstanding warrant.
The Service proposed to bar from DFS status any individuals who have been convicted of an aggravated felony or a crime involving dishonesty or false statement, or who have been subjected to a civil penalty for fraud. However, exceptions could be made for an employee of an outside entity if convincing mitigating factors exist - for example, the person's youth at the time of the crime or the number of years that have elapsed since the offense. Two commenters objected to this provision, arguing that there are
no uniform standards that can be used to determine rehabilitation of a convicted felon. These commenters urged that all convicted felons be barred from taking fingerprints regardless of when the crime was committed. As a rule, the Service will not approve a convicted felon as a DFS fingerprinter. However, if a convicted felon can demonstrate that he or she has since been rehabilitated and has led a productive, constructive and law-abiding life in his or her community and our society for many years, the dis
trict director may approve such an individual as a fingerprinter. However, the Service believes that cases like this should be evaluated on a case-by-case basis. In any case, the district director will not approve a DFS fingerprinter with a felony conviction unless the individual can satisfactorily and clearly demonstrate a record of rehabilitation. The burden of proof rests solely with the applicant.
Section 103.2(e)(6) Requirements
The commenters were evenly divided on the issue of unannounced on-site inspections. Three commenters, all would-be DFS(s), were opposed to the requirement that a DFS permit unannounced on-site inspections by the Service to ensure compliance with regulatory requirements. These commenters felt that Government oversight of their businesses was not needed because they regularly monitor their own employees. One commenter was concerned that surprise visits by the Service would be disruptive to DFS activities and
violate the confidentiality of individuals seeking legal assistance. On the other hand, several commenters praised the Service's initiative in this regard. One commenter pointed out that his organization enjoyed a good rapport with the Service's field personnel when working with them during the Legalization Program, and is looking forward to working closely with the Service again as a DFS.
As explained earlier, the Service undertook this rulemaking to restore integrity and establish oversight of the fingerprint process. The unannounced on-site inspection requirement is a quality control feature designed to ensure compliance with the DFS(s) certification requirements. At the same time, on-site inspections provide the Service with the opportunity to stay in active communication with the DFS(s), enabling the Service to evaluate the effectiveness of the DFS certification program. Only by observin
g DFS(s) at work during their regular business hours can the Service determine whether the objectives of the DFS certification are being met. The Service will conduct these inspections in a reasonable and nonintrusive manner in order to minimize disruption to DFS operations.
The Service proposed that outside entities be trained in fingerprinting techniques and procedures by the FBI or the Service before receiving certification, but that exceptions could be made for an individual who could demonstrate proficiency in fingerprinting techniques. One commenter pointed out that an individual who is proficient in taking fingerprints may not be knowledgeable about the various DFS responsibilities and requirements. Since the training focuses both on fingerprinting techniques and certifi
cation requirements, including completion of the attestation form and proper photo-ID verification, it was recommended that only those who have had "equivalent training" be exempt from the training requirement. The commenter's point is well taken and has been adopted.
The Service proposed that DFS applicants notify the Service of the completion of any scheduled training prior to the approval of their applications. One commenter recommended that DFS(s) be required to complete any scheduled training within 60 days of the submission of the application. The Service considered this suggestion, but decided that a time limit is not necessary since a DFS employee is not permitted to take fingerprints until he or she has been approved by the Service. A DFS employee who fails to
complete the scheduled training in a timely manner will only delay his or her employment. To clarify that the Service will not approve a DFS employee unless he or she completes the required training, paragraph (e)(6)(iv) has been modified to require DFS(s) to "notify the district director, where the application was filed, and when the completion of fingerprinting training occurred prior to the approval of the application, if such training was not completed but was in progress or had been scheduled at the fi
ling of the application." Additionally, a correction has been made in paragraph (e)(6)(v) to insert the word "and," which was inadvertently left out in the proposed rule, between "(exceptions can be made for those who have received training from the FBI or the Service)" and "to conduct periodic refresher training as needed."
The proposed rule would require DFS(s) to offer free retakes if they prepared illegible fingerprints that were rejected by the FBI. One commenter suggested that the Service include a statement on its fee receipts to benefit applicants that DFS(s) are obligated to retake illegible fingerprints free of charge. Two other commenters were concerned that the benefit applicants would need some kind of proof to show who took the rejected fingerprints. Another commenter stated that Federal, state, and local police r
egistered as DFS(s) should also give free retakes since they too charge a fee for taking fingerprints.Recognizing that benefit applicants will need to show proof of rejection by the FBI to the responsible DFS(s) in order to receive free retakes, the Service suggests that claimants for free retakes show the notice they will receive from INS that they must resubmit their fingerprints along with a sales receipt from the responsible DFS. Police agencies registered with the Service as DFS(s) are subject to the s
ame free retake requirement if they charge a fingerprinting fee.
The proposed rule would require the DFS(s) to submit fingerprints on FD-258 and other Service-designated forms. One commenter wondered if DFS(s) would be expected to take fingerprints for applicants seeking to replace their Alien Registration Cards on Form I-90. Form I-90, Application for Replacement of Alien Registration Card, and Form I-765, Application for Employment Authorization Document, will be included in the group of fingerprint forms DFS(s) are authorized to prepare after they have been revised to
incorporate a fingerprint block and a DFS attestation. But the Service will have to undertake rulemaking before implementing these planned revisions.
The Service proposed that DFS(s) verify the identification of the individuals they fingerprint by comparing their photo-IDs with the information on their fingerprint cards. The proposed rule would require DFS(s) to accept only passports, alien registration cards (green cards) or other Service-issued photo-IDs for identification verification. Six commenters protested that this requirement was too restrictive because it excluded many people who were in lawful status but who did not possess either a passport
or a Service-issued photo-ID, such as refugees, asylees, or even some United States citizens. The commenters recommended that DFS(s) be allowed to accept state-issued photo-IDs, such as a driver's license. The Service's intent in this requirement was two-fold: (1) to exclude photo-IDs that can be easily counterfeited; and (2) to keep the verification process as simple and clear as possible. But the Service agrees that the list of acceptable photo-IDs may be expanded without compromising the integrity of the
photo-ID verification process to include other valid photo-IDs. Therefore, foreign national identification documents have been added to the list of acceptable documents. Two (2) examples of national identification documents which may be acceptable are those issued by the Government of Hong Kong and Taiwan. Likewise, military identification documents issued by the Northern Atlantic Treaty Organization would be acceptable. Additionally, drivers' licenses and state-issued photo identification documents have
been added to the list of acceptable documents. The final rule has been revised to reflect these changes.
It was proposed that the DFS provide specific information on the fingerprint card, FD-258, or other Service-designated documents. The specific information to be provided by the DFS included the following: (1) The DFS had been certified by the Service; (2) The name and address of the DFS; (3) The DFS certification number, including the expiration date; and (4) The fingerprinter's name and employee Identification number. One commenter recommended that DFS(s) be required to put this information on a rubber st
amp. The Service agrees that a standardized rubber stamp would be more efficient insofar as the information needed from the DFS. Accordingly, the DFS may use a rubber stamp if he or she desires. The regulation requires that stamped or written information be placed on the backside of the fingerprint card in the space reserved. Should the DFS use a rubber stamp it is recommended that the stamped information be clearly legible and fit into the space (four inches [4"] wide, and one and one quarter inches [1 1/
4" ] high). The specific information provided on a rubber stamp must contain the information listed as items (1) through (4) in this paragraph. Additionally, it is required that the specific information provided on the rubber stamp also include a space for the fingerprinter's signature and the date the fingerprints were taken. The DFS may also imprint a blank stamp, with the DFS(s) original signature and date, on a sealed envelope which contains the completed fingerprint document. When the envelope containi
ng the completed fingerprint document is sealed, that envelope may not be opened or altered. The Service has revised paragraph (e)(6) in the final rule to reflect these changes.
It was proposed that DFS(s) be allowed to charge a reasonable fee for providing fingerprinting services and that the fees be published in a list distributed by each INS district office. Two commenters recommended that,in order to keep the fee reasonable, the Service should impose a limit on fees. Another commenter suggested that the Service was proposing to control the fees DFSs charge by disclosing that information to competitors, and maintained that DFS fees should be determined entirely by competition in
the marketplace. The Service's position on the fee issue is motivated by two policies: (1) DFS(s) should be allowed to set prices and compete for business; and (2) the consumers'interests are to be protected. In including the fee information on the DFS list, the Service is ensuring that consumers will have the information they need while allowing DFS(s) to compete for customers by offering the best value and service.
One commenter suggested that the Service define the term "immediately" as used in the proposed rule, which would require DFS(s) to immediately report to the Service any changes in personnel responsible for taking fingerprints. Since DFS(s) may not employ any fingerprinters without prior approval by the Service, this reporting requirement is really intended to provide notice to the Service when fingerprinters are no longer employed in those positions. The approval of a DFS fingerprinter is conditioned on hi
s or her continued employment with a particular DFS employer. To protect the integrity of the Service's master DFS listings, it is important that DFS(s) report personnel changes as soon as they take place. For the purpose of this paragraph, a DFS is encouraged to report personnel changes in advance where feasible, and is required to notify the district director having jurisdiction over the DFS(s) business location of a personnel change within 2 working days. The final rule reflects this change.
The Service also considered and rejected a suggestion that it require DFS(s) to post a $500 bond to guarantee retakes for benefit applicants who were provided with poor quality fingerprints. The Service believes that the DFS regulation provides sufficient performance incentives. A requirement to post a performance bond would be too much of a burden on the DFS(s) and the Service.
One commenter suggested that the Service remove the requirement to maintain "clean and suitable agencies that are accessible to the public,"asking" who will determine what is clean and suitable or whether there is sufficient access to the public?" The commenter raised a valid point. Since all businesses must comply with various public safety and health regulations imposed by the relevant Federal, state, and local governments, the Service agrees that it should defer to the responsible governments in this ca
se. However, since the DFS(s) are certified to provide fingerprinting services to applicants for immigration benefits, they must operate at permanent business locations that are accessible to the public. Moreover, except in situations where DFS(s) have made advance arrangements to process groups of applicants off-site, DFS(s) are expected to conduct their fingerprinting businesses at the addresses given on their applications for certification. Accordingly, paragraph (e)(6)(xviii) was revised to include the
joint requirement that DFS(s) "maintain facilities which are permanent and accessible to the public." The use of this joint requirement specifically excludes facilities described as private homes, vans or automobiles, mobile carts, and removable stands or portable storefronts.
Section 103.2(e)(7) Attestation
Four commenters thought that the requirement of a DFS attestation on Form I-850A for each person fingerprinted was unnecessary and unduly burdensome. Two of the commenters recommended that the attestation be stamped on or incorporated into the fingerprint card, FD-258, instead. Two other commenters suggested that DFS(s) be required to retain copies of their attestations for 1 year instead of 3 months. One of these commenters said that DFS(s) should keep copies of the attestations longer than 3 months as a w
ay of tracking their own customers in cases where free retakes were needed.
The fingerprint card, FD-258, is a Federal Bureau of Investigation (FBI) form that can only be revised by that agency. Any change to the design of the form will have an effect on the FBI's automated fingerprint classification process. The Service will refer this suggestion to the FBI for its consideration. The Service is reluctant to increase the administrative burdens by lengthening the period for which DFS(s) must keep copies of their attestations on file. The rationale for the 3-month requirement is to p
rovide the Service with a sample of the quality of the DFS' work. However, any DFS is free to maintain copies of attestations for a longer period as a way to verify fingerprinting sales and reconcile requests for retakes.
It was also suggested that the terms "the original copy" and "the second copy" as used in the proposed rule be changed to "the original" and "the copy." The suggestion was adopted and paragraph (e)(7)(ii) was amended to reflect this change. Finally, due to the expansion of the types of photo-IDs acceptable for identification verification purposes as prescribed by paragraph (e)(6)(xi) of the final rule, parallel changes have been made to paragraph (e)(7)(i)(C) to ensure consistency.
Section 103.2(e)(8) Application
Three commenters asked whether there was a limited application period and whether DFS(s) certified by a given Service local office were limited to providing service to people who resided within the jurisdiction of that office. An outside organization may file an application for DFS certification at any time after the final rule takes effect. However, only those currently providing fingerprinting services who file within the initial 120 days may continue to take fingerprints without interruption. Those who f
ile after the 120-day window will have to wait until their applications are approved to begin taking fingerprints. Once an organization obtains DFS certification, the DFS is not limited to taking fingerprints of benefit applicants who reside in the same jurisdiction. A certified DFS may take fingerprints of applicants who reside in other jurisdictions, but any completed fingerprint card must bear the specific code for the Service office where the fingerprint card will be filed. For example, a DFS certifie
d by the New York District Office may fingerprint a visitor from San Francisco on an FD-258 fingerprint card if the correct Originating Agency Identifier (ORI) code for San Francisco is entered in the block labeled ORI. At the same time, a DFS with multiple locations which fall under the jurisdiction of the same Service district director may file a single application, with one fee, by including all the business locations and employees. However, DFS(s) with cross-jurisdiction locations will have to file sepa
rate applications for business offices that fall under the jurisdiction of different district directors. Each application must include the required fee and information on all business locations and employees in that jurisdiction.
One commenter suggested that the Service make DFS applications a part of the public record. This suggestion was not adopted because applications contain, in part, information that is private or proprietary. Those portions that are subject to release are available under the Freedom of Information Act, 5 U.S.C. 552.
Section 103.2(e)(9) Registration of Police Stations or Military Police Agencies
One commenter proposed that local police in rural areas be allowed to continue their fingerprinting services since certified DFS(s) might be a long distance away. Two commenters complained that the police were not adequately regulated, attaching alleged examples of poor quality fingerprinting work by local police stations. Another commenter wanted college and university campus police to be granted DFS status without registration. The Service understands that people living in remote areas rely on the local p
olice for fingerprinting service, and has always intended to include the police as DFS(s). The DFS regulation provides that Federal, state, and local police, as well as military police, can automatically become DFS(s) if they register with the Service. Once registered, they will be placed on the DFS list and receive updates of the DFS regulation and requirements. Further, campus police who have general arrest authority pursuant to a state statute, and who have met the training requirements established for l
aw enforcement officers, are exempted from the DFS requirements and may follow the streamlined registration procedures reserved for law enforcement agencies. Clarifying language has been added to §103.2(e)(2)(i) to explain this point.
Section 103.2(e)(11) Approval of Application
The Service has made typographical corrections in the second sentence of the introductory text to paragraph (e)(11) by: (1) inserting the word "number" between the word "certification" and the word "to;" and (2) replacing the word "fingerprints" with "fingerprinters." That sentence now reads: "When the application has been approved, the district director shall assign a certification number to the DFS and individual ID numbers to its approved fingerprinters."
Section 103.2(e)(12) Denial of the application
Three commenters asked the Service to clarify the appeals process available to DFS applicants whose applications are denied. DFS applicants are entitled to appeal rights as provided by 8 CFR 103.3 and 8 CFR 103.5. DFS applicants who wish to appeal a denial decision may file an appeal on Form I-290B, with the required fee, with the Service's Administrative Appeals Office (AAO) within 30 days of the decision. DFS applicants may also file a motion to reopen or reconsider with the Service district office having
Section 103.2(e)(17) Change of Address or in Fee
Under the proposed rule, a DFS was required to report promptly, to the district director having jurisdiction over the DFS(s) place of business, any change in address or in fee. One commenter thought that the proposed requirement was inadequate in that it did not require the DFS to report these changes in advance. This commenter argued that it would be difficult to preserve fair competition among DFS(s) and protect the consumers unless DFS(s) were required to report changes in address or in fee in advance. I
n order to give the Service sufficient time to update its DFS listings and to make that information available to the public, the commenter suggested that DFS(s) be required to report these changes at least 10 working days before they occur. The Service concurs that the public should be protected from possible fee manipulation by DFS(s) and that the DFS listings will not have the intended effect unless the public is provided with accurate information about DFS fees and locations. Accordingly, the Service has
adjusted the final rule to require a 10-working day advance notice for changes in address or fee. DFS(s) who make unreported fee changes are subject to revocation of their DFS status as provided by paragraph (e)(17). Note that the requirement of a permanent address does not preclude a DFS from processing groups of applicants off site, such as processing applicants for naturalization at a school auditorium.
1. Opposing Views.
Three commenters preferred the current system, stating that the proposed regulation was unnecessary and burdensome. One commenter challenged the OIG report, arguing that there had been no known report of fraud in the submission of fingerprints. As explained in the background section of the supplemental information, the Service initiated this rulemaking to provide integrity to its benefits adjudications process and to address the concerns of the Senate Committee on Appropriations and the Department of Justic
e's Office of Inspector General (OIG). It has been established that 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. In drafting this rule, the Service has carefully considered the policies of Executive Order 12866 and the Regulatory Flexibility Act and has attempted to ensure that the intended objectives are met without unduly burdening the affected small businesses.
2. Application Fee
Three commenters protested the application fee of $370. One of them suggested that the Service underwrite the costs of administering the DFS certification program, including training. The other two said the estimated costs for training and monitoring were too high. However, another commenter said the Service underestimated the program costs, maintaining that the proposed application fee of $370 was not enough to offset the administrative costs of the program.
The Service's Adjudications program does not receive any appropriated funds from Congress. Instead, it is authorized by Congress to collect user fees to support its functions. In order to determine the appropriate application fee for the DFS Certification Program, the Service conducted a fee analysis based on estimated processing and administrative costs, such as staffing, training of Service personnel on the DFS certification process, adjudication of applications, oversight of DFS(s), and providing fingerp
rinting training. The actual cost of running the DFS Certification Program will not be known until it has been fully implemented. At that time, the Service will determine whether the fee structure needs to be adjusted.
One other commenter recommended that the Service make special provisions for outside entities with multiple business locations across the country. This commenter suggested that businesses with multiple locations be allowed to file a single application with a single application fee, and that a site fee of $35 be charged for each additional location to cover administrative and monitoring costs. While the regulation allows DFS(s) with multiple business locations within the jurisdiction of the same Service dist
rict to file a single application with a single fee, it does not provide for certification of a national fingerprinting service with cross-jurisdiction business locations. However, the Service agrees that outside entities with multiple locations in the jurisdiction of the same district office will incur greater administrative and monitoring costs and should be required to pay a site fee for each location. Because the public has not been offered the opportunity to comment on the concept of a site fee, the Se
rvice has decided to defer the consideration of a site fee until after the full implementation of the DFS certification program. If it is evident then that the application fee was below cost, the Service will make appropriate adjustments to the application fee structure through rulemaking.
As noted in our earlier discussions regarding §103.2(e)(8), due to regulatory limitations placed on the district director's authority, a district director cannot approve DFS(s) operating outside of his or her jurisdiction. Therefore, while DFS(s) with multiple business locations in the same INS district only needs to file one application with one fee, DFS(s) with multiple business operations in different INS districts must file a separate application, with the required fee, with each district director havin
g jurisdiction over the business location(s).
3. Free Space for Photographing and Fingerprinting Studios
One commenter protested that the Service gives preferential treatment to not-for-profit organizations. This commenter cited as an example the free use of studio space (for fingerprinting and/or photographing services), in the Service's local offices, by certain not-for-profit organizations. The commenter argued that this practice, as provided by 8 CFR 332.2, unfairly disadvantaged other competing business entities and had to be changed. Indeed, 8 CFR 332.2 provides that district directors may make availabl
e, free of charge, space within district offices for the "establishment and operation of studios providing photographic services, fingerprinting services or both." It further provides that these studios must be "operated by sponsoring organizations on a nonprofit basis solely for the benefit of persons seeking to comply with the requirements of the immigration and naturalization laws." During the implementation period of the legalization program, as provided by the Immigration Reform and Control Act (IRCA)
of 1986, the Service's local Legalization offices often had studios operated by not-for-profit organizations. However, due to overcrowding and lack of resources, most district offices have ended this practice over the past few years. Moreover, the remaining agencies operating under §332.2 remain subject to the separate restrictions of these regulations. This new program addresses a larger group of organizations which is largely not subject to §332.2.
4. Not-For-Profit Organizations and Entities Approved by the Board of Immigration Appeals (BIA) under 8 CFR part 292
Twenty-one of the commenters are not-for-profit organizations which were accredited for representation of others by the BIA. They asked that they be granted automatic DFS status, without fee. These commenters argued that they should not have to apply for DFS status because they had already been approved by the BIA. They further argued that not-for-profit organizations were typically under-funded, and the proposed application fee of $370 would pose a significant financial burden for them. They also argued t
hat they were limited to charging only a "nominal fee" that could not be used to supplement their administrative costs.
The Service is sympathetic to these commenters' financial difficulties and is willing to assist where feasible. But because the Service's benefit programs are all supported by user fees, the DFS Certification Program must also be funded by its users - the DFS applicants. Waiving the fee or the application requirement for not-for-profit organizations would be perceived as giving preferential treatment to special interest groups. Moreover, the Service would be obligated to charge other DFS applicants a higher
fee to offset the costs incurred by the not-for-profit organizations.
When the $370 application fee is apportioned for 3 years, the period during which a DFS certification remains valid, the annual certification cost is $123, which can easily be passed on to the users as a service charge. The Service is of the opinion that entities accredited for representation by the BIA are not in violation of the "nominal fee" provision of 8 CFR 292.2, when they charge a reasonable fee for fingerprinting services.
Some commenters proposed that the Service exclude from DFS certification any entity which has had a history of offering assistance in matters involving the immigration law without a license. They were concerned that these practitioners would exploit unknowing aliens if authorized to provide fingerprinting services. One commenter suggested that DFS applicants be required to sign a statement on the application form attesting to compliance with the requirements of 8 CFR 292, which prescribes the authority to r
epresent applicants for immigration benefits. This commenter also suggested that the Service require DFS applicants to list all other services that they provide in addition to fingerprinting to ensure that they were not "practicing law without authorization."
The sole purpose of the DFS regulation (8 CFR 103.2(e)) is to establish eligibility requirements and application procedures for outside entities who wish to be approved as fingerprinters. The authority granted to outside entities certified under 8 CFR 103.2(e) is limited to providing fingerprinting services. Meanwhile, 8 CFR 292 provides for the accreditation of individuals or organizations that wish to represent aliens before the Service and/or the Board of Immigration Appeals (BIA). Qualified individuals
or organizations must apply to the BIA for accreditation. Since the governing regulations clearly define the scope and conditions of each of these two types of authorizations, it is unlikely that there will be confusion about their purposes. However, to avoid the possibility that outside entities might exploit their DFS status, the Service has added a new paragraph (e)(18) in the final rule to prohibit them from engaging in any kind of advertisement or presentation which may create a false impression that
they are authorized by the Service to do more than fingerprinting. DFS(s) are prohibited from using images of the Service's logo type or official seal on any of their stationery, information flyers, or advertisements. When dealing with the public or advertising for business, a DFS is required to refer to itself as "an INS-Authorized Fingerprinting Service. "Violators are subject to revocation of their DFS status as provided by 8 CFR 103.2(e)(18).
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 are contained in 8 CFR 299.5, Display of Control Numbers.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605 (b)), has reviewed this regulation and, by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Service has drafted this rule in a way to minimize the impact that it has on small business while meeting its intended objectives.
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 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 rule.
The Service has considered significant alternatives to this 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 agencies. 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, requirements have
been drafted as performance standards, for example: that the fingerprints taken be legible and classifiable; that DFS personnel charged with the responsibility to take fingerprints pass an FBI criminal history records check; and that such DFS personnel be trained in fingerprinting or otherwise be able to demonstrate their proficiency.
Executive Order 12866
The Immigration and Naturalization Service, Department of Justice, considers this rule to be a "significant regulatory action" as defined by section 3(f) of Executive Order 12866. With perhaps as many as 3,000 entities likely to file for DFS certification, this rule may lead to the collection of application fees that would "materially alter the budgetary impact of ...user fees...or the rights and obligations of recipients" of the related services. The Office of Management and Budget has conducted the necess
ary review of this rule. 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. The objectives of this 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 certificat
ion of designated fingerprinting services to take fingerprints. The legal basis for this rule is the authority conferred upon the Attorney General and delegated to the Service under section 103(a) and (b) of the Immigration and Nationality Act to establish regulations needed to carry out its functions. 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.
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.
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 amended as follows: