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DHS
Publishes Interim Final Rule Implementing US VISIT
January 5, 2004
[Federal Register: January 5, 2004
(Volume 69, Number 2)]
[Rules and Regulations]
[Page 467-481]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja04-14]
[[Page 467]]
Part IV
Department of Homeland Security
8 CFR Parts 214, 215 and 235
Implementation of the United States Visitor and Immigrant Status
Indicator Technology Program (``US-VISIT''); Biometric Requirements;
Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United
States Visitor and Immigrant Status Indicator Technology System;
Interim Final Rule and Notice
[[Page 468]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 214, 215 and 235
[BTS 03-01]
RIN 1651-AA54
Implementation of the United States Visitor and Immigrant Status
Indicator Technology Program (``US-VISIT''); Biometric Requirements
AGENCY: Border and Transportation Security Directorate, Department of
Homeland Security.
ACTION: Interim final rule with request for comments.
SUMMARY: The Department of Homeland Security (Department or DHS) has
established the United States Visitor and Immigrant Status Indicator
Technology Program (US-VISIT) in accordance with several Congressional
mandates requiring that the Department create an integrated, automated
entry exit system that records the arrival and departure of aliens;
that equipment be deployed at all ports of entry to allow for the
verification of aliens' identities and the authentication of their
travel documents through the comparison of biometric identifiers; and
that the entry exit system record alien arrival and departure
information from these biometrically authenticated documents. This rule
provides that the Secretary of Homeland Security or his delegate may
require aliens to provide fingerprints, photographs or other biometric
identifiers upon arrival in or departure from the United States. The
arrival and departure provisions are authorized by sections 214, 215
and 235 of the Immigration and Nationality Act (INA).
The Department will apply this rule's requirements only to aliens
seeking to be admitted pursuant to a nonimmigrant visa who travel
through designated air and sea ports. The rule exempts: aliens admitted
on A-1, A-2, C-3 (except for attendants, servants or personal employees
of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3,
NATO-4, NATO-5 or NATO-6 visas, unless the Secretary of State and the
Secretary of Homeland Security jointly determine that a class of such
aliens should be subject to the rule; children under the age of 14;
persons over the age of 79; classes of aliens the Secretary of Homeland
Security and the Secretary of State jointly determine shall be exempt;
and an individual alien the Secretary of Homeland Security, the
Secretary of State, or the Director of Central Intelligence determines
shall be exempt. A Federal Register notice identifying the air and sea
ports where biometrics may be collected at time of entry and departure
has been published simultaneously with this rule. This rule authorizes
the Secretary to establish pilot programs for the collection of
biometric information at time of departure and at a limited number of
ports of entry, to be identified through notice in the Federal
Register. The biometrics provided by the aliens will be entered into
the automated identification system (IDENT) system, which will be
integrated with the entry exit system component of US-VISIT. The
alien's biometric and other information will be checked against law
enforcement and intelligence data to determine whether the alien is a
threat to national security or public safety, or is otherwise
inadmissible. An alien's failure to comply with this rule's
requirements may result in a finding that he or she is inadmissible to
the United States, has violated the terms of his or her admission and
maintenance of status, or is ineligible for future visas, admission or
discretionary immigration benefits. Due to heightened security concerns
related to a continued threat of terrorist acts in the United States,
the Department has determined that immediate implementation of this
rule is necessary with request for public comments.
DATES: Interim rule effective on January 5, 2004. Written comments must
be submitted on or before February 4, 2004.
ADDRESSES: Written comments may be submitted to Patrice Ward, Chief
Inspector, Air and Sea Exit Manager, US-VISIT, Border and
Transportation Security; Department of Homeland Security; 1616 North
Fort Myer Drive, 5th Floor, Arlington, VA 22209. Submitted comments may
be inspected at 425 I St NW., Room 4034, Washington, DC 20536 during
regular business hours. Arrangements to inspect submitted comments
should be made in advance by calling (202) 298-5200. Comments submitted
will be available for public inspection in accordance with the Freedom
of Information Act, 5 U.S.C. 552.
FOR FURTHER INFORMATION CONTACT: For US-VISIT requirements under this
rule: Patrice Ward, Chief Inspector, Air and Sea Exit Manager, US-
VISIT, Border and Transportation Security; Department of Homeland
Security; 1616 North Fort Myer Drive, 5th Floor, Arlington, VA 22209,
at (202) 927-5200.
SUPPLEMENTARY INFORMATION:
What Is the US-VISIT Program?
The US-VISIT program is a high priority initiative of the
Department that is designed to improve overall border management
through the collection of arrival and departure information on foreign
visitors and immigrants who travel through our nation's air, sea and
land ports. The goals of US-VISIT are to enhance the security of the
United States, its citizens, permanent residents and visitors; to
expedite legitimate travel and trade; to ensure the integrity of the
U.S. immigration system; and to safeguard the personal privacy of
foreign visitors and residents. By recording more complete arrival and
departure information, the US-VISIT program will not only meet various
Congressional mandates for an integrated, interoperable, and automated
entry exit system for aliens as discussed below, but it will also
enhance the security and safety of citizens, residents and visitors by
verifying foreign national travelers' identities through the comparison
of biometric identifiers, by authenticating their travel documents, and
by checking their data against appropriate law enforcement and
intelligence systems. The terrorist attacks of September 11, 2001,
highlighted the need to improve national security by returning
integrity to the U.S. immigration system. This requires developing
better methods for identifying aliens who are inadmissible to the
country as well as those who overstay their lawful admission periods.
At the same time, the country needs procedures and systems that
facilitate legitimate travel, commerce, tourism, education,
international communication, and other benefits that flow from
welcoming law-abiding citizens of other countries into the United
States. The US-VISIT Program was created to help DHS meet all of these
law enforcement and service goals.
What Is the Statutory Authority for the Entry Exit System Component of
the US-VISIT Program and for the Collection of Biometric Identifiers
From Aliens?
The principal law that mandates the creation of an automated entry
exit system that integrates electronic alien arrival and departure
information is the Immigration and Naturalization Service Data
Management Improvement Act of 2000 (DMIA), Public Law 106-215 (2000),
114 Stat. 339, codified as amended at 8 U.S.C. 1365a. DMIA amended
previous legislative requirements for an entry exit system that would
record the arrival and departure of every alien who crosses the U.S.
borders. See section 110 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996,
[[Page 469]]
Div. C, Public Law 104-208 (1996), 110 Stat. 3009-558, codified in
scattered sections of 8 U.S.C. (later amended by DMIA). DMIA requires
that the entry exit system consist of the integration of all authorized
or required alien arrival and departure data that is maintained in
electronic format in Department of Justice (DOJ) (now DHS) or
Department of State (DOS) databases. 8 U.S.C. 1365a. This integrated
entry exit system must be implemented at all air and sea ports of entry
by December 31, 2003 using available air and sea alien arrival and
departure data as described in the statute. DMIA also states that the
system must be implemented at the 50 most highly trafficked land border
ports of entry by December 31, 2004, and at all ports of entry by
December 31, 2005 with all available electronic alien arrival and
departure information. DMIA also requires DHS to use the entry exit
system to match the available arrival and departure data on aliens and
to prepare and submit to Congress various reports on the numbers of
aliens who have overstayed their periods of admission and on
implementation of the system. 8 U.S.C. 1365a(e). DMIA authorizes the
Secretary of Homeland Security, in his discretion, to permit other
Federal, State, and local law enforcement officials to have access to
the entry exit system for law enforcement purposes. 8 U.S.C. 1365a(f).
In addition, section 217(h) of the Visa Waiver Permanent Program
Act of 2000 (VWPPA), Public Law 106-396 (2000), 114 Stat. 1637,
codified as amended at 8 U.S.C. 1187(h), requires the creation of a
system that contains a record of the arrival and departure of every
alien admitted under the Visa Waiver Program (VWP) who arrives and
departs by air or sea. The requirements of DMIA effectively result in
the integration of this VWP arrival/departure information into the
primary entry exit system component of the US-VISIT program.
In late 2001 and 2002, Congress passed two additional laws
affecting the development of the entry exit system, in part, in
response to the events of September 11, 2001. Section 403(c) of the
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT Act), Public
Law 107-56 (2001), 115 Stat. 353, codified as amended at 8 U.S.C. 1379,
required the Attorney General and the Secretary of State jointly,
through the National Institute of Standards and Technology (NIST), and
in consultation with the Secretary of the Treasury and other
appropriate Federal law enforcement and intelligence agencies, and in
consultation with Congress, to develop and certify a technology
standard, including appropriate biometric identifier standards, that
can be used to verify the identity of visa applicants and persons
seeking to enter the United States pursuant to a visa and to do
background checks on such aliens. In developing the entry exit system
required by DMIA, section 414(b) of the USA PATRIOT Act directed the
Attorney General and the Secretary of State to ``particularly focus on
the utilization of biometric technology; and the development of tamper-
resistant documents readable at ports of entry.'' 8 U.S.C. 1365a note.
The legislative requirements for biometric identifiers to be
utilized in the context of the entry exit system were significantly
strengthened with passage of the Enhanced Border Security and Visa
Entry Reform Act of 2002 (``Border Security Act'' or EBSVERA), Public
Law 107-173 (2002), 116 Stat. 553, codified in scattered sections of 8
U.S.C. 302(a)(1) of the Border Security Act states that the entry exit
system must use the technology and biometric standards required to be
certified by section 403(c) of the USA PATRIOT Act. Section 303(b)(1)
requires that ``[n]o later than October 26, 2004,'' only machine-
readable, tamper-resistant visas and other travel and entry documents
that use biometric identifiers may be issued to aliens by DHS and DOS.
8 U.S.C. 1732(b)(1). This section, however, does not invalidate
unexpired travel documents that have been issued by the U.S. government
that do not use biometrics. Section 303(b)(1) further states that the
Secretaries of Homeland Security and State must jointly establish
document authentication and biometric identifier standards for alien
travel documents from among those recognized by domestic and
international standards organizations. Id.
Section 303(b)(2) requires that ``[n]o later than October 26,
2004,'' all ports of entry must have equipment and software installed
``to allow biometric comparison and authentication of all United States
visas and other travel and entry documents issued to aliens, and
passports'' that are required to be issued by VWP countries. 8 U.S.C.
1732(b)(2). The current statutory language also requires that by that
same date, VWP countries must have a program in place to issue tamper-
resistant, machine-readable, biometric passports that comply with
biometric and document identifying standards established by the
International Civil Aviation Organization (ICAO). 8 U.S.C. 1732(c)(1).
The statute also states that on or after October 26, 2004, any alien
applying for admission under the VWP must present a passport that is
machine-readable, tamper-resistant and that uses ICAO-compliant
biometric identifiers, unless the unexpired passport was issued prior
to that date. 8 U.S.C. 1732(c)(2). The entry exit system must include a
database that contains alien arrival and departure data from the
machine-readable visas, passports, and other travel and entry
documents. 8 U.S.C. 1731(a)(2). In developing the entry exit system,
the Secretaries of Homeland Security and State must also make
interoperable all security databases relevant to making determinations
of alien admissibility. 8 U.S.C. 1731(a)(3).
In addition, the entry exit system component must share information
with other systems required by the Border Security Act. Section 202 of
the Border Security Act addresses requirements for an interoperable law
enforcement and intelligence data system and requires the integration
of all databases and data systems that process or contain information
on aliens.
The US-VISIT program requirements that foreign nationals provide
biometric identifiers when they seek admission to the United States are
further supported by the Department's broad authority to inspect aliens
contained in section 235 of the INA, 8 U.S.C. 1225. Pursuant to section
215(a) of the INA, the President also has the authority to regulate the
departure of aliens, as well as their arrival. President Bush has
issued Executive Order titled Assignment of Functions Relating to
Arrivals In and Departures From the United States delegating his
authority to promulgate regulations governing the departure of aliens
from the United States. In accordance with section 215 and with this
new Executive Order, the Secretary of Homeland Security, with the
concurrence of the Secretary of State, has the authority to issue this
rule which requires certain aliens to provide requested biometric
identifiers and other relevant identifying information as they depart
the United States. For nonimmigrant aliens, the Department may also
make compliance with the departure procedures a condition of their
admission and maintenance of status while in the country under INA,
section 214.
Many other provisions within the INA also support the
implementation of the US-VISIT program, such as the grounds of
inadmissibility in section 212, the grounds of removability in section
237, the requirements for the VWP program in section 217, the
electronic passenger manifest requirements in section 231,
[[Page 470]]
and the authority for alternative inspection services in sections
286(q) and 235 of the INA and section 404 of the Border Security Act.
These are but a few of the most significant provisions that support US-
VISIT from among numerous other immigration and customs statutes.
Is DHS Meeting the December 31, 2003 DMIA Deadline for Implementing the
Integrated Entry Exit System at the Air and Sea Ports of Entry?
Yes. By integrating all the available arrival and departure data on
aliens who arrive through the air and sea ports of entry that currently
exists in the electronic systems of DHS and DOS and deploying the
integrated system at those ports of entry, the Department has met the
first DMIA deadline of December 31, 2003. The Department is
accomplishing this first phase through the integration of the arrival
and departure data contained in the Advance Passenger Information
System (APIS) and the Arrival Departure Information System (ADIS), as
well as other systems related to air and sea inspections. APIS and ADIS
include the information captured from electronic passenger manifest
data received from carriers, information on VWP aliens, and information
on visa applicants and recipients received through the DataShare
program with DOS.
What Changes Does This Interim Rule Make?
Through an amendment to 8 CFR 235.1(d), the Department may require
aliens who are arriving at United States air and sea ports of entry to
provide fingerprints, photographs, or other biometric identifiers to
the inspecting officer. The Department will collect fingerprints and
photographs from aliens applying for admission pursuant to a
nonimmigrant visa upon their arrival at air and sea ports of entry and
upon departure if they exit through certain locations. Departure
inspection will be conducted through pilot programs at a limited number
of departure ports, identified by notice in the Federal Register. The
rule exempts: (i) Aliens admitted on A-1, A-2, C-3 (except for
attendants, servants or personal employees of accredited officials), G-
1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6
visas, unless the Secretary of State and the Secretary of Homeland
Security jointly determine that a class of such aliens should be
subject to the rule, (ii) children under the age of 14, (iii) persons
over the age of 79, (iv) classes of aliens the Secretary of Homeland
Security and the Secretary of State jointly determine shall be exempt,
and (v) an individual alien the Secretary of Homeland Security, the
Secretary of State, or the Director of Central Intelligence determines
shall be exempt. Although the biometric requirements in this rule will
initially only apply to nonimmigrant visa-holders who travel through
designated air and sea ports, the Department anticipates expanding the
program, through separate rulemaking to include other groups of aliens
and more ports in order to eventually have the capability to verify the
identities of most foreign national travelers through biometric
comparisons as envisioned by the USA PATRIOT Act and the Border
Security Act.
At amended 8 CFR 235.1(d)(ii), the rule states that failure by an
alien to provide the requested biometrics necessary to verify his or
her identity and to authenticate travel documents may result in a
determination that the alien is inadmissible under section 212(a)(7) of
the INA for lack of proper documents, or other relevant grounds in
section 212 of the Act.
New rule 8 CFR 215.8 states that the Secretary of Homeland Security
may establish pilot programs at up to fifteen air or sea ports of
entry, designated through notice in the Federal Register, through which
the Secretary may require aliens who are departing from the United
States from those ports to provide fingerprints, photographs, or other
biometric identifiers, documentation, and such other such evidence as
may be requested to determine an alien's identity and whether he or she
has properly maintained his or her status while in the United States.
This rule also amends 8 CFR 214.1(a) to state that if a
nonimmigrant alien is required under section 235.1(d) to provide
biometric identifiers, the alien's admission is conditioned on
compliance with any such requirements. Similarly, if the alien is
required to provide biometrics and other information upon departure
pursuant to 8 CFR 215.8, the nonimmigrant alien's failure to comply may
constitute a failure of the alien to maintain the terms of his or her
immigration status.
Finally, the rule makes clear by amending 8 CFR 235.1(f) that all
nonimmigrant aliens will be issued the Form I-94, Arrival Departure
Record regardless of whether they come through an air, sea or land port
of entry, unless they are otherwise exempted from the I-94 requirement.
This amendment clarifies that air and sea carrier passengers will
continue to be issued I-94s which must be surrendered upon departure
unless the I-94 was issued for multiple entries by the alien.
What Is a ``Biometric Identifier?''
As used in this rule, a ``biometric identifier'' is a physical
characteristic or other attribute unique to an individual that can be
collected, stored, and used to verify the claimed identity of a person
who presents himself or herself to a border inspector. To verify
identity, a similar physical characteristic or attribute is taken from
the person who presents himself or herself and it is compared against
the previously collected identifier. Examples of biometric identifiers
include, but are not limited to, the face (i.e., captured in a
photograph), fingerprints, hand geometry measurements, handwriting
samples, iris scans, retina scans, voice patterns, and other unique
characteristics.
Why Is This Interim Final Rule Necessary and Why Was It Not Issued as a
Proposed Rule for Notice and Comment?
The Department has determined that the national security and public
safety interests of the nation necessitate the implementation of this
rule as an immediately effective interim rule with provision for public
comment after the effective date. The collection of biometrics from
foreign nationals seeking to enter or depart the United States will
greatly enhance the Government's ability to identify persons who are a
threat to the public and to national security. The longer the
Department delays in collecting biometrics from visa-holders and
eventually other foreign nationals, the greater chance that a person
who has been previously identified as a threat to the public may not be
timely identified through his fingerprints, photographs or other
biometrics and may enter the United States without his true identity
being detected.
The Department has further determined that this rule is necessary
to give effect to the legislative mandates for utilization of biometric
identifiers in the entry exit system component of the US-VISIT program
as described in the USA PATRIOT Act and the Border Security Act, as
previously discussed. Unless it collects biometric identifiers from the
aliens who present themselves at inspection and on departure, the
Department would be unable to compare the biometrics associated with
the travel document presented (e.g., a visa) against the bearer's
characteristics or against DHS or DOS records of any previously taken
biometrics associated with the alien's name. In other words,
[[Page 471]]
the Department would not be able to verify the alien's identity fully
or authenticate his documents as envisioned by Congress when it passed
the two laws.
Congress has stated that ``no later than October 26, 2004,''
biometrics must be utilized with all travel and entry documents that
DHS and DOS issue to aliens and that machines capable of verifying the
identities of foreign travelers and authenticating their documents
through biometrics must be at all ports of entry. 8 U.S.C. 1732(b). The
Secretary of Homeland Security has determined that waiting until the
last minute (i.e., October 26, 2004) to begin collecting biometrics and
verifying the documents and identities of aliens who cross our borders
would be highly detrimental to the security of the country. Moreover,
the Department believes that it makes practical sense to implement the
integrated entry exit system with air and sea arrival/departure data on
foreign travelers at the same time as a biometric component is
introduced to the system to provide the enhanced security benefits that
biometrics will provide to verify identity. For these reasons, the
Department has determined that it must immediately begin collecting
biometrics from a limited group of aliens, i.e., nonimmigrant visa
holders who enter through the air and sea ports, and expand to other
categories and locations as rapidly as possible.
The Department does encourage and welcome public comments on this
rule and the manner in which it will be implemented. The Department
will fully consider all comments submitted by the comment period as it
prepares a final rule and before it expands the program to other
categories of foreign nationals. See discussion of the ``Good Cause
Exceptions'' below.
What Categories of Aliens Are Affected by This Rule?
This interim rule applies only to aliens applying for admission
pursuant to a nonimmigrant visa who arrive in or depart from the United
States through designated air and sea ports. The rule exempts: (i)
Aliens admitted on A-1, A-2, C-3 (except for attendants, servants or
personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-
1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas, unless the Secretary
of State and the Secretary of Homeland Security jointly determine that
a class of such aliens should be subject to the rule, (ii) children
under the age of 14, (iii) persons over the age of 79, (iv) classes of
aliens the Secretary of Homeland Security and the Secretary of State
jointly determine shall be exempt, and (v) an individual alien the
Secretary of Homeland Security, the Secretary of State, or the Director
of Central Intelligence determines shall be exempt. However, as a
routine matter, only nonimmigrant visa-holders will be affected by this
rule.
What Biometrics Will Be Collected and Will They Ever Change?
The Department initially plans to take a digital photograph and two
fingerprints from each nonimmigrant alien who presents a visa at
designated air or sea ports of entry. The Department, however, reserves
its right to expand the types of biometric identifiers required in the
future where doing so will improve the border management, national
security, and public safety purposes of the entry exit system.
Additional biometric requirements will be implemented in compliance
with section 403(c) of the USA PATRIOT Act.
How Did DHS Determine Which Biometric Identifiers Would Be Collected
for US-VISIT Purposes?
The Department has chosen to collect two fingerprints and
photographs, in part, because they currently are less intrusive than
other forms of biometric collections and because the combination of
these biometric identifiers are an effective means for verifying a
person's identity. Also, historically fingerprints and photographs have
been the biometrics of choice within the law enforcement communities
and the travel industry. As the deployment of more comprehensive
technologies becomes feasible, however, the Department may collect
additional biometric data to improve its ability to verify the identity
and determine the admissibility of nonimmigrant aliens.
As required by section 403(c) of the USA PATRIOT Act and section
302(a)(1) of the Border Security Act, the Department of Justice and the
former Immigration and Naturalization Service (INS) worked closely with
NIST, DOS, other agencies and Congress to study and select fingerprints
and digital photographs as the biometric identifiers that will be used
in conjunction with the entry exit system. A report on the biometric
standards selected was delivered to Congress in January 2003. See ``Use
of Technology Standards and Interoperable Databases with Machine-
Readable, Tamper-Resistant Travel Documents,'' Report to Congress from
U.S. Department of Justice, U.S. Department of State, and the National
Institute of Standards and Technology (January 2003).
How Will a Person's Fingerprints and Photographs Be Collected?
On arrival at air and sea ports of entry, inspectors will scan two
fingerprints of the foreign national with an inkless device and will
take a digital photograph of the person. This information, as well as
other information that the person provides, will then be used to assist
the border inspector in determining whether or not to admit the
traveler. Upon exit from the United States at designated air and sea
ports, the foreign national traveler will go to a work station or kiosk
to scan his travel documents, have his photograph compared, and to
provide his fingerprints on the same type of inkless device that is
used at entry.
What If an Individual Cannot Provide Clear Fingerprints or Photographs
or Is Disabled in Such a Way That He or She Is Unable To Provide the
Biometric Information?
The Department will make reasonable efforts that are also
consistent with the Government's need to verify an alien's identity to
accommodate any person with disabilities which prevent him or her from
complying with the requirements of this rule for fingerprinting,
photographs or other biometric collections. We will follow all required
procedures that are applicable to government action under the Americans
With Disabilities Act, codified as amended at 42 U.S.C. 12101 et seq.
and the Federal Rehabilitation Act, codified as amended at 29 U.S.C.
701 et seq. In cases where a satisfactory fingerprint, for example,
cannot be taken, the inspecting officer may accept another biometric
identifier that will reasonably identify the person or sufficient
additional information from the alien from which the officer can
determine the individual's identity. In some instances where the
identity of a person with disabilities does not appear to be truly at
issue, the requirement for fingerprints or other biometric identifier
may be waived in the discretion of the inspecting officer. The
Department will ensure that procedures for handling the collection of
biometric information from persons with disabilities are covered in any
internal field guidance it may issue to implement this rule. In
addition, the Department welcomes public comment on methods for
properly handling situations where persons with disabilities are not
able to provide the requested biometrics, but that still permit the
Department to make the necessary identity and admissibility
determinations.
[[Page 472]]
How Will the Biometric Information Be Used?
The fingerprints and photograph(s) of the alien will be entered
initially into an existing system called IDENT The alien's fingerprints
and photographs will be compared against the biometric information
already stored in IDENT to determine whether there is any information
that would indicate the alien is an imposter or otherwise inadmissible.
In addition, IDENT and the other technology associated with US-VISIT
will permit the inspecting officer to compare the alien's fingerprints
and photographs with any such biometric information previously
captured.
DOS is currently implementing a program on a phased-in basis for
taking fingerprints of many categories of visa applicants who have been
approved or denied and storing those fingerprints and photographs in
IDENT. This DOS-collected biometric information may also be accessed
through the Interagency Border Inspection System (IBIS) by inspectors
at the ports of entry in the United States. The inspecting officer will
be able to compare the biometrics associated with the person who
applied for the visa at the consular office abroad against the
biometrics of the person who is present at the port of entry. Once the
machine readers are in place at the ports of entry, this process will
be fully automated and the visas and certain other travel documents
will be capable of being scanned and compared electronically. An
alien's name, biometric information and other identifying information
will also be checked against various law enforcement and intelligence
data for information that may identify him or her as inadmissible to
the United States or as a threat to national security or the public
safety. In the air and sea context, much of the information on the
alien is already collected via the electronic passenger manifest
process required by section 402 of the Border Security Act, codified as
amended at INA, section 231; 8 U.S.C. 1221. Customs and Border
Protection (CBP) officers currently have access to the passenger's
complete name, nationality, date of birth, citizenship, gender,
passport number and country of issuance, U.S. visa number, if
applicable, alien registration number, if applicable, country of
residence, and complete address while in the United States. U.S.
inspectors receive the information prior to the alien's arrival through
the Advance Passenger Information System (APIS) and the Arrival
Departure Information System (ADIS), and it is run against the IBIS
which contains ``lookouts'' on individuals submitted by more than 20
law enforcement and intelligence agencies. Thus, by the time the person
gets to an air or sea port of entry, inspectors have identified aliens
that need to be scrutinized more closely as well as aliens who may be
inadmissible and whether other law enforcement agencies should be
notified of any individual's presence.
Are Travelers Who Come Under the Visa Waiver Program (VWP) Affected by
This Rule?
At this time, travelers who seek to enter under the VWP are not
affected by this rule. However, under current law, an alien will not be
admitted under the VWP on or after October 26, 2004, without a machine-
readable, tamper-resistant passport that meets ICAO biometric standards
for photographs, unless his passport is unexpired and was issued prior
to that date. 8 U.S.C. 1732(c)(2). The machines that DHS must have in
place at all ports of entry by that same date will also be capable of
reading the ICAO-compliant biometrics in any VWP alien's passport. 8
U.S.C. 1732(b)(2).
Will Canadian or Mexican Citizens Have To Provide Biometric Identifiers
When They Travel To or From the United States?
This rule does not affect foreign nationals entering the U.S.
through land ports of entry. Aliens entering through land ports of
entry need only meet the current requirements in the law. However, the
rule does apply to Canadian and Mexican citizens who enter through air
and sea ports of entry as outlined below. At present, the Department
will not apply the biometric collection requirements of this rule to
those Canadian citizens who travel on temporary visits to the United
States and who do not apply for admission pursuant to a nonimmigrant
visa. As usual, Canadians who are lawful permanent residents of the
United States must possess a Permanent Resident Card (PRC) or other
evidence of their permanent resident status; they will not, however, be
routinely fingerprinted or photographed. The Department, as it always
has, reserves the right to require fingerprints or other identifying
information from any individual whom it has reason to believe may not
be who he or she claims.
Mexicans currently must present visas, Border Crossing Cards (BCC),
or other appropriate evidence of their immigration status to enter the
United States. Since October 1, 2002, the law has required that a
biometric characteristic (e.g., face, fingerprint) of a bearer of a BCC
must be matched against the biometric on the BCC before the bearer may
be admitted. See 8 CFR 212.1(c)(3). This requirement remains applicable
at all ports of entry. Machines have been deployed at the ports of
entry to allow for the automated comparison of the fingerprints of BCC
bearers against their documents. Under this rule and the Department's
first implementation phase for US-VISIT biometrics collection,
nonimmigrant Mexican visa holders will be required to provide
fingerprints and photographs if they enter or exit at the designated
ports.
Which United States Ports of Entry Will Be Involved in the Collection
of Biometrics and in Verifying the Identities of Aliens and
Authenticating Their Documents?
The notice that is published elsewhere in this issue of the Federal
Register identifies the airports and the seaports where nonimmigrants
who apply for admission pursuant to a nonimmigrant visa will be
required to provide biometric information at time of arrival and
departure. The names of all the affected ports of entry will not be
repeated here for the sake of brevity.
The Department intends to implement departure inspection through
pilot programs at a limited number of departure ports. The Department
has identified thirty departure ports as candidates at which it will
next implement biometric collection. The Department anticipates that,
within the next few months, it will implement departure biometric
collection at approximately fifteen of those ports of entry. This rule
therefore authorizes the Secretary to establish pilot programs for
departure inspection at up to fifteen air and sea ports, to be
identified through notice in the Federal Register.
Through those pilot programs, the Department will test different
methods to collect the required information from nonimmigrant aliens as
they depart the United States through the designated ports of entry.
The Department is currently exploring several different methods and
processes, including but not limited to self-serve kiosks and hand-held
scanners. The pilot program will enable the Department to conduct a
cost benefit analysis of the different processes. The Department
welcomes comments on how to implement biometric collection at time of
departure. After reviewing the reliability, efficiency, and cost of
those pilot programs, and receiving comments from the public regarding
the departure
[[Page 473]]
inspection process, the Department will undertake new rulemaking to
allow the Secretary to expand biometric collection to all departure
ports.
Will Foreign Travelers' Biometrics Be Collected, Their Identities
Verified, and Their Documents Authenticated on Departure From the
United States?
Yes. Aliens subject to this rule who exit through designated air
and sea ports where pilot programs are implemented will be required to
``check out'' at work stations in those air and sea ports and to
provide requested information and biometrics. The information that a
traveler provides on departure will be verified and matched against any
available information that he or she provided upon inspection and that
was stored in the systems that comprise US-VISIT. This information will
also be used to identify persons who have overstayed their authorized
periods of admission, to compile the overstay reports required by DMIA,
and where applicable, considered in DOS and DHS determinations on
whether the person is eligible for future visas, admission or other
discretionary immigration benefits.
Will There Be Any Assistance for Travelers During the Exit Process?
The exit collection mechanism at special work stations or kiosks
will be structured to include international instructional icons,
illustrating how the alien will submit biometrics and travel documents
for scanning. DHS or contract personnel will be available, at initial
stages, to assist travelers covered by the first increment of US-VISIT
in learning how the exit process works.
Is a Nonimmigrant Visa Holder Required To Enter or Exit Through One of
the Ports Designated for Biometric Processing in the Federal Register
Notice?
Certain individuals remain subject to the National Security Entry
Exit Registration System (NSEERS) regulations to depart through
specific ports and undergo special departure procedures. See 8 CFR
264.1(f)(8). The most recent Federal Register notice listing the NSEERS
ports of departure can be found at 68 FR 8967. This rule does not alter
or amend that list.
Nonimmigrant visa holders, except those subject to NSEERS, may
continue to depart the United States through any port, even those
locations where biometrics are not currently being collected on exit.
The Department recommends that any alien whom the Secretary designates
to be covered by this rule's departure requirements and who chooses to
depart from a location where US-VISIT departure procedures are not in
place may wish to preserve any evidence that he or she did indeed
depart the United States. Such evidence could include a passport stamp
of admission to another country or a used airline ticket showing the
person left the United States in a timely manner. Such information may
be useful to show to a consular or immigration officer in case there is
ever any future question about whether the alien properly left the
United States. Individuals who have an I-94 Arrival Departure Record
that must be surrendered upon departure should be certain to return
this form promptly to the appropriate DHS division as required on the
form to ensure that the individual's departure will be entered into
appropriate DHS systems. In addition, the departure of individuals who
leave on air or sea carriers that submit electronic passenger departure
manifests to DHS/CBP will be recorded in DHS systems and should help to
prove when the alien departed. However, not all carriers are currently
able to submit this information electronically. The Department
recognizes that there may be some interim confusion about whether
covered foreign nationals overstayed their last periods of admission
where there is no evidence in the US-VISIT systems of their departure.
The Department anticipates that as departure procedures are expanded to
all air, sea and land border ports, such confusion and potential for
inaccurate determinations that a person overstayed will be
significantly reduced.
Are There Any Additional Fees Imposed Upon Travelers as a Result of
This Rule?
No, there are no additional fees for travelers required by this
interim rule. DOS and DHS may need to adjust the fees for visas and
other immigration documents that utilize biometrics in the future, but
the Departments will follow all required Administrative Procedure Act
(APA) procedures for notice and comment and any other applicable legal
requirements if the fees change.
How Much Will the Biometric Collection Procedures Cost DHS and What Is
the Source of the Funding?
In FY 2003, the US-VISIT program spent $190 million for the
biometrics portion of the program. For FY 2004, the cost of
implementing the biometric collection and verification procedures at
air and sea ports of entry and departure locations is anticipated to be
approximately $103 million. The funds for the equipment and other
requirements to support the biometric procedures come from the
approximately $380 million that Congress appropriated in FY 2003 for
development of the entry exit system component of US-VISIT and from the
$330 million total appropriated for FY 2004.
What May Happen If an Alien Refuses To Provide the Required Biometric
Identifiers at Time of Entry?
This rule provides that an alien who refuses to provide biometric
identifiers when seeking admission to the United States in order to
assist inspectors in verifying his or her identity and authenticating
his or her travel documents may be deemed inadmissible under INA,
section 212(a)(7) (failure to provide appropriate documents), or other
applicable grounds of inadmissibility in INA, section 212. For example,
the inspector may deny admission under INA, section 212(a)(7) if he or
she is unable to determine whether the applicant is presenting a
document that is truly his and the inspector is unable to collect a
biometric that can be verified against the fingerprints and photographs
associated with the document. The rule does not attempt to identify
every ground of inadmissibility that may apply because each case may
present different circumstances that skilled inspectors are trained to
assess and adjudicate. The rule does not change any of the existing
criteria for inadmissibility, but allows inspectors to consider a
failure to provide requested biometric identifiers as a factor in their
admissibility determinations. In some circumstances, such as an
individual who cannot physically provide clear fingerprints, a failure
to do so will not necessarily result in an inadmissibility
determination, provided that the inspector is otherwise satisfied that
the person is who he claims to be and has appropriate authorization to
enter the country. This rule also amends 8 CFR 214.1(a) to state that
if a nonimmigrant alien is required under 8 CFR 235.1(d) to provide
biometric identifiers, the alien's admission is conditioned on
compliance with any such requirements.
What May Happen If an Alien Fails To Provide the Required Biometric
Identifiers at the Time of Departure From the United States?
An alien who fails to comply with the departure requirements may be
found in violation of the terms of his or her admission, parole, or
other immigration status. This rule states that an alien who is covered
by the requirements to
[[Page 474]]
provide biometrics on departure at new 8 CFR 215.8 may be found to have
overstayed the period of his or her last admission if the available
evidence indicates that he or she did not leave the United States when
required to do so. A determination that the alien previously overstayed
may result in a finding of inadmissibility for accruing prior unlawful
presence in the United States under section 212(a)(9) of the INA,
provided that the accrued unlawful time and other prerequisites of that
statute are met, or that the alien is otherwise ineligible for a visa
or other authorization to reenter the United States. An overstay
finding could also trigger consequences for a nonimmigrant visa holder
under section 222(g) of the INA. If the person is deemed to have
overstayed his authorized period of admission, his visa (including a
multiple entry visa) would be deemed void under section 222(g). Section
222(g) further states that where a visa is void because the alien
overstayed, he or she is ineligible to be readmitted to the United
States as a nonimmigrant except on another visa issued in the consular
office located in the country of the alien's nationality, or where
there is no DOS office in the country, in such other consular office as
the Secretary of State shall specify. The requirement of obtaining a
new visa from the consular office in the country of the alien's
nationality may be waived where extraordinary circumstances are found.
8 U.S.C. 1202(g).
The Department intends to focus its enforcement of departure
requirements in this rule on cases where the alien willfully and
unreasonably fails to comply with this regulation. The rule provides
that an alien's failure to follow the departure procedures may be
considered by an immigration or consular officer in making a
discretionary decision on whether to approve or deny the alien's
application for a future immigration benefit. The rule does not,
however, state that an alien's failure to comply with departure
procedures in every instance will necessarily result in a denial of a
future visa, admission or other immigration benefit. For example, no
alien will be penalized for failing to provide biometrics on departure
where the Department has not yet implemented the departure facilities
or procedures at the specific port where the person chooses to depart.
There may well be instances where a consular officer or inspector, in
his or her discretion and after reviewing the totality of the
circumstances, determines that an alien's previous failure to comply
with the departure procedures does not result in a finding of
inadmissibility or the denial of an immigration benefit.
Will Biometric Collection Create Inspection Delays at Ports of Entry
and Departure?
The Department is aware of this concern and is taking all possible
steps to prevent congestion and delays in immigration and customs
processing at the ports of entry and the departure locations. On entry,
the Department anticipates that an average of only 15 additional
seconds per nonimmigrant visa holder will be needed to complete
processing as a result of the added biometric procedures. The
Department arrived at this estimate after piloting the process on a
voluntary compliance basis at Atlanta's Hartsfield International
Airport. Individuals who are not required to provide biometrics at this
time (e.g., U.S. citizens, permanent residents, persons not required to
have visas) may be routed through separate processing lines at the air
and seaports so as to further alleviate congestion. Individuals who
require more in depth scrutiny will, as usual, be taken to secondary
inspection areas so as not to delay primary inspection processing for
other travelers. The Department does not believe that significant
delays will occur at the air and sea ports as a result of the new
biometric collection and verification procedures. The Department
further believes that the limited departure processing at the air and
sea ports can be accommodated within the pre-boarding time period that
carriers currently recommend travelers allow before their scheduled
departure and that their travel should not be delayed.
While the Department does not anticipate longer wait times at ports
of entry due to US-VISIT processing, a number of mitigation strategies
have been developed, not unlike those already available to CBP under
other conditions which result in backups. However, as the US-VISIT
program expands, the Department will continually reassess the issue of
delays to reduce any negative effects.
Will Legitimate Travel, Commerce, and Tourism Be Negatively Affected by
This Rule?
As noted above, the Department does not believe that immigration
and customs processing will be significantly delayed at the ports of
entry or the departure locations. The Department believes that over
time, the US-VISIT system will facilitate travel for those with
biometrically-enhanced travel documents and others for whom the system
contains travel records. Public comments are invited on ways that
delays and negative effects on travel, trade, commerce, tourism and
other desired aspects of immigration can be alleviated or minimized.
Are United States Citizens and Lawful Permanent Residents Required To
Provide Biometric Identifiers?
No, United States citizens and lawful permanent residents will not
be required to provide biometric identifiers under this rule. U.S.
citizens must continue to present passports as required by 22 CFR 53,
unless an exception under that regulation applies. Lawful permanent
residents must present documents evidencing their status as described
in 8 CFR 211.
Will Other Countries Impose Similar Biometric Requirements on United
States Citizens?
Each country maintains the right to establish its own procedures
and requirements for entry by foreign visitors. The Department, in
coordination with DOS, will work with other governments that wish to
institute programs of biometric identification in order to ensure that
they are fair, efficient, accurate and no more intrusive than
necessary.
Will Any Visa-Holders Be Exempt From the Fingerprinting and
Photographing Requirements of This Rule?
The rule exempts: (i) Aliens admitted on A-1, A-2, C-3 (except for
attendants, servants or personal employees of accredited officials), G-
1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6
visas, unless the Secretary of State and the Secretary of Homeland
Security jointly determine that a class of such aliens should be
subject to the rule, (ii) children under the age of 14, (iii) persons
over the age of 79, (iv) classes of aliens the Secretary of Homeland
Security and the Secretary of State jointly determine shall be exempt,
and (v) an individual alien the Secretary of Homeland Security, the
Secretary of State, or the Director of Central Intelligence determines
shall be exempt. An immigration inspector retains discretion to collect
an alien's biometrics if, in the inspector's discretion, such action is
necessary to determine the exact age of the alien and whether he or she
is exempt from the requirements of this rule.
[[Page 475]]
Will Other Nonimmigrants for Whom Ten-Print Fingerprinting for
Registration Purposes Has Been Waived by Existing Regulations be
Required to Provide Two-Print Fingerprints and a Photograph Under This
Rule Governing Identity Verification on Arrival and Departure From the
United States?
The Department has determined that most nonimmigrant visa-holders
for whom ten-print fingerprinting has been waived for registration
purposes under 8 CFR 264.1(e)(1-2) must nevertheless comply with the
requirements of this interim rule for the collection of biometrics (two
fingerprints and a photograph) for purposes of entry and exit
inspection. This includes nonimmigrants who are in the United States
for less than one year, as well as nonimmigrants who are citizens of
countries that do not fingerprint U.S. citizens who temporarily reside
in their countries.
The ten-print fingerprinting that has been waived for these
categories of nonimmigrants under 8 CFR 264.1(e) (1-2) is done for
purposes of alien registration under INA, sections 262-266 and is not
the same as the collection of two fingerprints and a photograph for
identity verification and document authentication at arrival and
departure inspection that is required under this interim rule. The
biometric collections for arrival and departure inspection purposes are
authorized instead by INA, section 235, 214, 215, and are further
supported by the mandates for biometrics in section 303 of the Border
Security Act and sections 403(c) and 414 of the USA PATRIOT Act.
DHS believes that the national security of the country, public
safety and the integrity of the immigration system necessitate
requiring most nonimmigrant visa holders to provide fingerprints and
photographs for identity checks, law enforcement background checks, and
determinations of admissibility.
Do the Requirements for the Collection of Biometric Identifiers Violate
the Statutory ``No New Documents or Data Collection'' Prohibition in
the DMIA?
No, the Department has determined that there is no conflict between
this rule and DMIA. DMIA does state that ``[n]othing in this section
[codified at 8 U.S.C. 1365a] may be construed ``to permit the
[Secretary of Homeland Security] or the Secretary of State to impose
any new documentary or data collection requirements on any person in
order to satisfy the requirements of this section * * *.'' 8 U.S.C.
1365a(c)(1). However, the provision in DMIA that immediately follows
that subsection states that ``[n]othing in this section shall be
construed to reduce or curtail any authority of the [Secretary of
Homeland Security] or the Secretary of State under any other provision
of law.'' 8 U.S.C. 1365a(c)(2)(emphasis added). The biometric
requirements of this interim rule are supported by statutory authority
outside of the four corners of DMIA and thus fall within DMIA's own
``no reduction of authority'' provision. Most importantly, Congress has
expressly stated in sections 403(c) and 414 of the USA PATRIOT Act and
sections 302-303 of the Border Security Act, laws passed after DMIA and
after the terrorist attacks on September 11, 2001, that DHS and DOS
should ``particularly focus on the utilization of biometric
technology'' in developing the entry exit system; that alien identities
be verified through biometric comparisons based on certified biometric
standards developed through NIST; that travel and entry documents
issued to aliens utilize biometrics; and that those documents be
authenticated by machine-readers at ports of entry that will capture
information on the aliens' arrival and departure for inclusion in the
entry exit system. In addition, this rule is supported by other
authority in sections 214, 215 and 235 of the INA, which has not been
curtailed or reduced by DMIA. For these reasons, this rule does not
violate the proscription against new documentary or data collections in
DMIA.
What Persons or Entities Will Have Access to the Biometric and Other
Information Collected on Aliens Under the US-VISIT Program?
The biometric and other information available in IDENT, APIS, ADIT
and the other systems associated with the US-VISIT program will be
available to CBP officers at ports of entry, special agents in the
Bureau of Immigration and Customs Enforcement (ICE), adjudications
staff at U.S. Citizenship and Immigration Services (USCIS), to DOS
consular officers and other staff involved with the adjudication of
visa applications at overseas posts, and to other DHS, BTS, ICE, CIS,
CBP, appropriate officers of the United States Intelligence Community,
and DOS personnel and attorneys when needed for the performance of
their duties. Other employees and divisions of DHS, such as the
Transportation Security Administration (TSA), may also have access to
the biometric and other information on aliens. In addition, section
414(c) of the USA PATRIOT Act directs that the information in the entry
exit system component of the US-VISIT program must be available to
other federal law enforcement officers, such as agents of the Federal
Bureau of Investigation (FBI), through system interfaces or other
technology means for purposes of identifying and detaining individuals
who are threats to United States national security. The Secretary of
Homeland Security, in his discretion, may also make the information
available to State and local law enforcement agencies, to assist them
in carrying out their law enforcement responsibilities. See 8 U.S.C.
1365a(f); see also 8 U.S.C. 1722(a)(5). The Department will only share
biometric information with other foreign governments where permitted by
law and necessary for intelligence and law enforcement interests
consistent with United States interests.
How Will DHS Protect the Biometric and Other Information Provided by
Foreign Travelers and Ensure That Their Privacy Interests Are Not
Violated?
US-VISIT records will be protected consistent with all applicable
privacy laws and regulations. Personal information will be kept secure
and confidential and will not be discussed with, nor disclosed to, any
person within or outside the US-VISIT program other than as authorized
by law and as required for the performance of official duties. In
addition, careful safeguards, including appropriate security controls,
will ensure that the data is not used or accessed improperly. The DHS
Chief Privacy Officer will review pertinent aspects of the program to
ensure that these proper safeguards and security controls are in place.
The information will also be protected in accordance with the
Department's published privacy policy for US-VISIT.
The Department's Privacy Office will exercise oversight of the US-
VISIT program to ensure that the information collected and stored in
IDENT and other systems associated with US-VISIT is being properly
protected under the privacy laws and guidance. US-VISIT will also have
its own Privacy Officer to handle specific inquiries and to provide
additional oversight of the program.
Finally, the Department will maintain secure computer systems that
will ensure that the confidentiality of individuals' personal
information is maintained. In doing so, the Department and its
information technology personnel will comply with all laws and
regulations governing government systems, such as the Federal
Information Security Management Act of 2002, Title X, Public Law 107-
296, 116 Stat. 2259-2273 (2002) (codified in scattered sections of 6,
10, 15, 40, and
[[Page 476]]
44 U.S.C.); Information Management Technology Reform Act (Clinger-Cohen
Act), Public Law 104-106, Div. E, codified at 40 U.S.C. 11101 et seq.;
Computer Security Act of 1987, Public Law 100-235, 40 U.S.C. 1441 et
seq. (as amended); Government Paperwork Elimination Act, Title XVII,
Public Law 105-277, 112 Stat. 2681-749--2681-751 (1998) (codified, as
amended, at 44 U.S.C. 101; 3504 note); and Electronic Freedom of
Information Act of 1996, Public Law 104-231, 110 Stat. 3048 (1996)
(codified, as amended, at 5 U.S.C. 552.)
How Is the US-VISIT Program Different From the National Security Entry
Exit Registration System (NSEERS) Program and Are Any Aspects of NSEERS
Continued Under US-VISIT?
Foreign nationals who are subject to the US-VISIT biometric
collection requirements of this rule are only required to follow the
specified procedures on entry and exit where the Department has
implemented the procedures and publicly announced them, as it has with
respect to nonimmigrant visa-holders who travel through designated air
and sea ports. Certain aliens whose presence in the United States
warrants monitoring for national security or law enforcement reasons
remain subject to the NSEERS special registration procedures at 8 CFR
264.1(f) and its implementing notices. See 68 FR 67578. The special
entry and exit registration procedures under NSEERS will meet the
requirements of this US-VISIT rule for entry and exit inspection for
persons who are also subject to NSEERS.
Under the original NSEERS program, special registrants had to
comply with both arrival and departure requirements for biometrics
collection and additional questioning, and also with a requirement to
re-register after 30 days and on an annual basis. The mandatory 30-day
and annual re-registrations were suspended on December 2, 2003. See 68
FR 67578. In addition, when the NSEERS program began, it included a
requirement that foreign nationals from NSEERS-delineated countries
already in the United States comply with a domestic or ``call-up''
registration. The ``call-up'' component has expired. Neither the re-
registration or ``call-up'' registration is relevant to the US-VISIT
program at this time.
However, nonimmigrants subject to NSEERS and to this US-VISIT rule
who do not comply with the procedures for fingerprinting and
photographing run similar risks that they could be deemed ineligible
for future visas, admission or other discretionary immigration
benefits. Compliance with this rule, as with the NSEERS regulations, is
deemed a condition of a nonimmigrant's admission and maintenance of
status for purposes of INA, section 214. The information that NSEERS
aliens provide on arrival and departure is kept in IDENT and a special
NSEERS system that will be integrated with all of the other foreign
national arrival and departure data that are required to be kept in the
entry exit system component of US-VISIT.
Will the Public Be Permitted To Comment on This Rule and Its
Implementation?
Yes. The Department welcomes and encourages the public to comment
on all aspects of this rule and its implementation, as well as other
aspects of the US-VISIT program that may not be covered by the rule
itself. We will consider all comments carefully and anticipate that
many of them will help us to improve the program. The Department is
particularly interested in comments on the clarity of this rule and how
it may be made easier to understand; methods for meeting the US-VISIT
program goals; means to communicate the procedures to the public,
including any expansions in the application of this rule; ways to
reduce any potentially negative effects of the rule on legitimate
travel, trade and tourism; uses for the biometric information to be
collected; privacy protections for the information; methods for
ensuring accuracy of the information collected; procedures for
situations where persons with disabilities cannot provide the requested
biometric identifiers; and ways to enhance national security and public
safety interests.
Members of the public may also wish to follow the activities and
recommendations of the congressionally-mandated DMIA Task Force through
its Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=
leavingFR.html&log=linklog&to=http://uscis.gov/graphics/shared/lawenfor/
bmgmt/inspect/dmia.htm.
The DMIA Task Force, which is comprised of 17 public
and private representatives from government, industry, tourism, air and
sea carriers, and other areas, makes regular reports on its
recommendations for the entry exit system component of US-VISIT, and
these reports are transmitted to Congress by the Secretary of Homeland
Security in accordance with 8 U.S.C. 1365a(g). The DMIA Task Force also
welcomes regular public comments. In addition, members of the public
may keep up to date on the progress of the US-VISIT program through the
DHS Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=
leavingFR.html&log=linklog&to=http://www.dhs.gov/us-visit.
Good Cause Exceptions for Implementation of Interim Final Rule
Implementation of this rule as an interim final rule with a request
for post-effective date public comments is based upon the ``good
cause'' exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3). Pursuant
to the provisions of 5 U.S.C. 553(b)(3)(B), the Department has
determined that delaying implementation of this rule to await public
notice and comment is unnecessary, as well as contrary to the public
interest and the national security of the nation. It is in the public
interest and furthers our national security to implement requirements
immediately that will allow for the collection and comparison of
biometrics of aliens seeking admission in to the United States. These
requirements will greatly enhance the ability of the Department to
confirm the identities of nonimmigrant aliens seeking admission into
the United States, and will allow for improved biometrics-based
searches of watch lists, including law enforcement and intelligence
data bases containing information on known and suspected terrorists.
Such tools will increase the border security of the United States by
helping DHS officers to identify persons who pose a threat to the
nation. Before further expansion of the rule's implementation to more
categories of aliens, the Department anticipates that it will have
sufficient opportunity to consider the public comments generated by
this interim rule, as well as to publish a final rule. For the same
reasons, pursuant to the provisions of 5 U.S.C. 553(d)(3), the
Department finds that there is good cause for making the rule
immediately effective. Therefore this rule is immediately effective
upon publication in the Federal Register. Although the Department has
determined that pre-effective date public notice and comment would be
contrary to national security and public safety, the Department
strongly encourages the public to comment on the provisions of this
rule so that such comments may be carefully considered in the drafting
of a final rule.
Executive Order 12866
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993), requires a determination as to whether a
regulatory action is ``significant'' and therefore subject to review by
the Office of Management and Budget (OMB) and to the requirements of
the Executive Order. The Department has determined that this rule is a
``significant regulatory action'' under Executive Order 12866,
[[Page 477]]
section 3(f) because there is significant public interest in security
issues. Accordingly, this rule has been reviewed and approved by the
OMB.
The Department has performed a preliminary analysis of the expected
costs and benefits of this interim final rule. The anticipated benefits
of the rule include: (1) Improved biometric identification of foreign
national travelers who may present threats to public safety and the
national security of the United States; (2) enhancement of the
Government's ability to match an alien's fingerprints and photographs
to other law enforcement or intelligence data associated with identical
biometrics; (3) improved identification of individuals who may be
inadmissible to the United States; (4) improved cooperation across
international, Federal, State, and local agencies through better access
to data on foreign nationals; (5) facilitation of legitimate travel and
commerce by improving the timeliness and accuracy of the determination
of a traveler's immigration status or his or her inadmissibility; (6)
ensuring the integrity of the United States immigration system through
enhanced enforcement of immigration laws, including collection of more
complete arrival and departure data on aliens; and (7) reductions in
fraud, undetected imposters and identity theft.
The costs associated with implementation of this rule for
nonimmigrant visa holders at air and sea ports of entry include an
increase of approximately 15 seconds in inspection processing time per
nonimmigrant visa holder over the current approximately one minute. By
December 31, 2004, approximately 24 million nonimmigrant visa holders
are anticipated to be affected at air and sea ports. This number is
comprised of approximately 19.3 million air travelers and approximately
4.5 million sea travelers. The limited 15 second time increase is not
anticipated to delay significantly the overall processing of air and
sea passengers because persons not required to provide biometrics
(e.g., U.S. citizens, lawful permanent residents, and visa-exempt
nonimmigrants) may be routed through different inspection lines,
thereby easing any impact of the biometrics collection process. While
the Department does not anticipate longer wait times at ports of entry
due to US-VISIT processing, a number of mitigation strategies have been
developed, not unlike those already available to CBP under other
conditions which result in backups. The additional costs to the
Government and the taxpayers of implementing the requirements of this
rule for the pilot period are estimated to be $28.5 million for FY
2004. These costs include operation and maintenance for the entry
program for three months and the cost of developing ten to fifteen exit
sites. The Department believes that the costs described above are
outweighed by the benefits of the rule's biometric requirements for
immigration enforcement and the potential reduction in threats to
national security and public safety. The Department will continually
assess its procedures to ensure that any negative effects on legitimate
travel, commerce and law abiding foreign visitors and permanent
residents will be minimized.
The Department conducted analyses for both the entry and exit
components. Based on those analyses, the Department determined which
alternatives were best suited for this initial increment of the
program.
Entry
Benefits: The goals and benefits of this rule have been defined as:
[sbull] Enhance National Security by (1) preventing entry of high-
threat or inadmissible nonimmigrant aliens through improved and/or
advanced access to data prior to the nonimmigrant's arrival; (2)
reducing threat of terrorist attack and illegal immigration through
improved identification of national security threats and inadmissible
aliens; and (3) improving cooperation across federal, state and local
agencies through improved access to nonimmigrant alien data.
[sbull] Facilitate legitimate trade and travel through (1) improved
facilitation of legitimate travel and commerce by improved timeliness
and accuracy of determination of nonimmigrant traveler status; and (2)
improved accuracy and timeliness of the determination of nonimmigrant
alien's inadmissibility.
[sbull] Ensure integrity of our immigration system through (1)
improved enforcement of immigration laws through improved data accuracy
and completeness; (2) reduction in nonimmigrant aliens remaining in the
country under unauthorized circumstances; and (3) utilization of
existing IT systems (no new systems) and enhancing information
exchanges with federal, state, and local law enforcement and
intelligence communities.
[sbull] Deploy the Program in accordance with existing privacy laws
and policies.
Impact
The impact this rule on the traveling public has been measured by
(1) the number of foreign national travelers affected, (2) the expected
average processing time, (3) travelers which are not affected, (4) the
effects on the ability of airlines to off-load passengers and assist
them through immigration processing, and (5) the additional costs to
the traveling public. The number of foreign national travelers affected
by implementation of this regulation will be approximately 3 million
nonimmigrant visa travelers.
This rule will affect only all travelers who apply for admission or
are admitted pursuant to a nonimmigrant visa, subject to the exemptions
outlined in this preamble and the codified text of the rule.
Additionally, where possible and practical, aliens subject to this rule
will be routed through separate lines. Overall, the processing time for
aliens subject to this rule will not impact significantly the
processing time for the traveling public. There will be little effect
on the airlines' abilities to off-load passengers and get these
travelers processed through immigration resulting from implementation
of this rule. Moreover, there will be no additional costs to the
traveling public, airlines or airports resulting from the
implementation of this rule.
The expected average processing time per person for whom biometrics
will be taken is approximately one minute and fifteen seconds at entry.
This compares to one minute for travelers not being processed through
the biometric requirements of US-VISIT. The average processing time
upon exit is approximately one minute. DHS does not anticipate
significant delays in processing on arrival or departure for the
traveling public.
Cost Benefit Analysis
Entry
A Cost Benefit Analysis (CBA) was completed in February 2003 and
will be updated in February 2004. This update will incorporate lessons
learned about any benefits recognized from the initial operating
capability provided by Increment 1, implemented pursuant to this rule.
Increment 1, Full Air and Sea and Limited Land Performance with
Biographic and Biometric Capabilities, delivers air and sea entry
capabilities, constrained by budgetary resources, in accordance with
the law and on time. Other alternatives that were examined were (1)
Full Operating Capability with Unlimited Budgetary Resources, (2) Full
Air and Sea with Biographic Capabilities Only, and (3) Air and Sea
Entry and Exit Capabilities Constrained by Budgetary Resources. This
[[Page 478]]
alternative was chosen, because it provides the best capabilities
within the funding constraints. Additionally, it was selected because
it:
1. Implements Increment 1 capability to air and sea POEs within the
statutory timeframe;
2. Delivers biographic to all primary points of inspection and
biometric data to all secondary POEs points of inspection;
3. Meets budgetary constraints; and
4. Is more desirable because the data collection includes both
biographic and biometric data collection that provides for a more
thorough identity review than biographic data alone.
Exit
The US-VISIT Program wishes to pilot alternative information
collection systems at selected air and seaports in FY 2004. Three
alternative systems have been:
[sbull] Alternative 1
Gate Solution: Staffing and equipment would be located at all
international departure gates. The estimated costs include $43 million
for implementation plus $72 million annually for system maintenance
including 1,350 additional TSA employees.
[sbull] Alternative 2
Checkpoint Solution: Staffing and equipment located at airport
security checkpoints (746 nationwide). The estimated costs include $62
million for implementation plus $109 million for system maintenance,
including 1,800 TSA employees.
[sbull] Alternative 3
Workstation (Kiosk) Solution: Equipment and contractors to provide
travelers assistance located in departure areas after the security
checkpoint. The estimated costs include $22 million for implementation
plus $37 million for system maintenance including contractor costs.
Alternative 3, Workstation (Kiosk) Solution, was selected as the
initial pilot because it was significantly more cost effective than the
other two, was less manpower intensive, and eliminated the major
concerns of airlines and airport authorities about boarding processes
and time issues at gates.
Quantitative Benefits
The intent of this rule is to address identified operational
deficiencies and legislative mandates associated with management of the
entry and exit of international travelers through the U.S. ports. Among
its qualitative benefits, the US-VISIT System will improve the accuracy
and consistency of detecting fraudulent travel documents, verifying
traveler identity, determining traveler admissibility, and determining
the status of aliens through the use of more complete and accurate data
to include the use of biometric data.
The quantitative benefits are targeted as a more effective solution
that will allow the most optimal level of throughput and security for
travelers. Some of these benefits can be measured, but not in financial
terms. We will begin to quantify these benefits as we develop our
performance analysis system for delivery in February 2004.
Executive Order 13132 (Federalism)
Executive Order 13132 requires the Department to develop a process
to ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' ``Policies that have federalism implications'' are
defined in the Executive Order to include rules that 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.'' The
Department has analyzed this interim final rule in accordance with the
principles and criteria in the Executive Order and has determined that
it does not have federalism implications or a substantial direct effect
on the States. This rule provides for the collection by the federal
Government of biometric identifiers from nonimmigrant aliens with visas
seeking to enter or depart the United States for purposes of improving
the administration of federal immigration laws. States do not conduct
activities with which this rule would interfere. For these reasons,
this rule does not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
Executive Order 12988 (Civil Justice Reform)
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988. That Executive
Order requires agencies to conduct reviews on civil justice and
litigation impact issues before proposing legislation or issuing
proposed regulations. The order requires agencies to exert reasonable
efforts to ensure that the regulation identifies clearly preemptive
effects, effects on existing federal laws or regulations, identifies
any retroactive effects of the regulation, and other matters. The
Department has determined that this regulation meets the requirements
of E.O. 12988 because it does not involve retroactive effects,
preemptive effects, or the other matters addressed in the Executive
Order.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, requires Federal agencies to prepare a written
assessment of the costs, benefits, and other effects of proposed or
final rules that include a Federal mandate likely to result in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector, of more than $100 million in any one year
(adjusted for inflation with 1995 base year). Before promulgating a
rule for which a written statement is needed, section 205 of the UMRA
generally requires DHS to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome alternative that achieves the objective
of the rule. Section 205 allows the Department to adopt an alternative
other than the least costly, most cost-effective, or least burdensome
alternative if the agency publishes an explanation with the final rule.
This interim final rule will not result in the expenditure by State,
local, or tribal governments, or by the private sector, of more than
$100 million annually. Thus, the Department is not required to prepare
a written assessment under the UMRA.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. This rule will not result in an annual effect on the economy of
$100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Environmental Analysis
The Department has analyzed this interim final rule for purposes of
compliance with the National Environmental Policy Act (NEPA), 42 U.S.C.
4321 et seq. The Department has prepared a nationwide environmental
assessment for the implementation of this program at airports and has
determined that it will not result in any significant environmental
impacts. The
[[Page 479]]
Department has also prepared a nationwide environmental assessment for
seaports. The analysis of potential impacts at seaports indicated that
the proposed action is not likely to result in significant
environmental impacts. The Department is initially implementing this
rule only at air and sea ports, as indicated in the first Federal
Register notice that accompanies publication of this rule. The
Department will comply with any applicable NEPA and any other
applicable environmental requirements prior to the implementation of
this rule at the land ports of entry.
Trade Impact Assessment
The Trade Agreement Act of 1979, 19 U.S.C. 2531-2533, prohibits
Federal agencies from engaging in any standards or related activities
that create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. The Department has determined
that this rule will not create unnecessary obstacles to the foreign
commerce of the United States and that any minimal impact on trade that
may occur is legitimate in light of this rule's benefits for the
national security and public safety interests of the United States.
Paperwork Reduction Act
This rule permits the Secretary of Homeland Security or his
delegate to require that aliens who cross United States borders must
provide fingerprints, photograph(s), and potentially other biometric
identifiers upon their arrival in or departure from this country. These
requirements constitute an information collection under the Paperwork
Reduction Act (PRA), 44 U.S.C. 507 et seq., and OMB's implementing
regulations at 5 CFR 1320. Accordingly, the Department has submitted an
information collection request to OMB for emergency review and
clearance under the PRA. If granted, the emergency approval is only
valid for 180 days. Under the PRA, an agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless the collection of information displays a valid
control number. The OMB control number for the biometric information
that will be collected pursuant to this rule is OMB 1600-0006.
Overview of this information collection:
(1) Type of information collection: New.
(2) Title of Form/Collection: No form. Collection of biometrics
will be in electronic or photographic format.
(3) Agency form number, if any, and the applicable component of the
DHS sponsoring the collection: No form number 1600-0006, Border and
Transportation Security Directorate, DHS.
(4) Affected public who will be asked or required to respond, as
well as a brief abstract: Individual aliens. The categories of aliens
are identified in this rule. The first group of affected aliens is
nonimmigrant visa holders who seek admission to the United States at
the air and sea ports of entry, and certain departure locations,
designated in the notice published elsewhere in this issue of the
Federal Register. The biometric information to be collected is
necessary for the Department to begin its compliance with the mandates
in section 303 of the Border Security Act, 8 U.S.C. 1732 and sections
403(c) and 414(b) of the USA PATRIOT Act, 8 U.S.C. 1365a note and 1379,
for biometric verification of the identities of alien travelers and
authentication of their biometric travel documents through the use of
machine readers installed at all ports of entry. The arrival and
departure inspection procedures are authorized by 8 U.S.C. 1225 and
1185.
(5) An estimate of the total number of respondents and the amount
of time estimated for an average respondent to respond: From January 5,
2004 to January 5, 2005 the number of nonimmigrant visa-holders
required to provide biometrics at the air and sea ports of entry is
anticipated to be approximately 24 million, comprised of approximately
19.3 million air travelers and 4.5 million sea travelers. The expected
average processing time per person for whom biometrics will be
collected is approximately one minute and fifteen seconds at entry,
with the fifteen seconds being the additional time added for biometric
collection over and above the normal inspection processing time. The
average additional processing time upon exit is estimated at one minute
per person. There are no additional fees for the traveling aliens to
pay.
(6) An estimate of the total of public burden (in hours) associated
with the collection: Approximately 100,800 burden hours.
If additional information is required contact Steve Yonkers,
Privacy Officer, US-VISIT, Border and Transportation Security,
Department of Homeland Security; 1616 North Fort Myer Drive, 5th Floor,
Arlington, VA 22209 at (202) 927-5200.
During the first 60 days of the period authorized by OMB for this
information collection under emergency procedures, the Department will
undertake a regular review of the collection pursuant to the PRA.
Written comments from the public are encouraged and will be accepted
until March 5, 2004. Your comments should address one or more of the
following points: (a) Whether the collection of information is
necessary for the proper performance of the functions of the agency,
including whether the information shall have practical utility; (b) the
accuracy of the agency's estimate of the burden of the collection of
information; (c) ways to enhance the quality, utility, and clarity of
the information to be collected; (d) ways to minimize the burden of the
collection of information on respondents, including through the use of
automated collection techniques or other forms of information
technology; and (e) estimates of capital or start-up costs and costs of
operations, maintenance, and purchase of services to provide
information. Comments should be directed to Steve Yonkers, Privacy
Officer, US-VISIT, Border and Transportation Security, Department of
Homeland Security; 1616 North Fort Myer Drive, 5th Floor, Arlington, VA
22209 at (202) 927-5200.
List of Subjects
8 CFR Part 214
Aliens, Immigration, Registration, Reporting and recordkeeping
requirements.
8 CFR Part 215
Control of Aliens Departing from the United States.
8 CFR Part 235
Aliens, Immigration, Registration, Reporting and Recordkeeping
Requirements.
Amendments to the Regulations
0
For the reasons set forth in the Supplementary Information section,
parts 214, 215, and 235 of Title 8 of the Code of Federal Regulations
are amended as set forth below:
PART 214--NONIMMIGRANT CLASSES
0
1. The authority citation for part 214 is revised to read as follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant
to Executive Order 13323, published January 2, 2004), 1186a, 1187,
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 643, Pub. L.
104-208; 110 Stat. 3009-708; section 141 of the
[[Page 480]]
Compacts of Free Association with the Federated States of Micronesia
and the Republic of the Marshall Islands, and with the Government of
Palau, 48 U.S.C. 1901, note, and 1931, note, respectively.
0
2. Part 214.1(a)(3) is revised to read as follows:
Sec. 214.1 Requirements for admission, extension, and maintenance of
status.
(a) * * *
(3) General requirements. (i) Every nonimmigrant alien who applies
for admission to, or an extension of stay in, the United States, must
establish that he or she is admissible to the United States, or that
any ground of inadmissibility has been waived under section 212(d)(3)
of the Act. Upon application for admission, the alien must present a
valid passport and valid visa unless either or both documents have been
waived. A nonimmigrant alien's admission to the United States is
conditioned on compliance with any inspection requirement in Sec.
235.1(d) or of this chapter. The passport of an alien applying for
admission must be valid for a minimum of six months from the expiration
date of the contemplated period of stay, unless otherwise provided in
this chapter, and the alien must agree to abide by the terms and
conditions of his or her admission. An alien applying for extension of
stay must present a passport only if requested to do so by the
Department of Homeland Security. The passport of an alien applying for
extension of stay must be valid at the time of application for
extension, unless otherwise provided in this chapter, and the alien
must agree to maintain the validity of his or her passport and to abide
by all the terms and conditions of his extension.
(ii) At the time of admission or extension of stay, every
nonimmigrant alien must also agree to depart the United States at the
expiration of his or her authorized period of admission or extension of
stay, or upon abandonment of his or her authorized nonimmigrant status,
and to comply with the departure procedures at section 215.8 of this
chapter if such procedures apply to the particular alien. The
nonimmigrant alien's failure to comply with those departure
requirements, including any requirement that the alien provide
biometric identifiers, may constitute a failure of the alien to
maintain the terms of his or her nonimmigrant status.
(iii) At the time a nonimmigrant alien applies for admission or
extension of stay, he or she must post a bond on Form I-352 in the sum
of not less than $500, to ensure the maintenance of his or her
nonimmigrant status and departure from the United States, if required
to do so by the Commissioner of CBP, the Director of U.S. Citizenship
and Immigration Services, an immigration judge, or the Board of
Immigration Appeals.
* * * * *
PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES
0
3. The authority citation for part 215 is revised to read as follows:
Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive
Order 13323, published January 2, 2004), 1365a note, 1379, 1731-32.
0
4. Part 215 is amended by adding new Sec. 215.8, to read as follows:
Sec. 215.8 Requirements for biometric identifiers from aliens on
departure from the United States.
(a)(1) The Secretary of Homeland Security may establish pilot
programs at up to fifteen air or sea ports of entry, designated through
notice in the Federal Register, through which the Secretary or his
delegate may require an alien admitted pursuant to a nonimmigrant visa
who departs the United States from a designated air or sea port of
entry to provide fingerprints, photograph(s) or other specified
biometric identifiers, documentation of his or her immigration status
in the United States, and such other evidence as may be requested to
determine the alien's identity and whether he or she has properly
maintained his or her status while in the United States.
(2) The requirements of paragraph (a)(1) shall not apply to:
(i) Aliens younger than 14 or older than 79 on date of departure;
(ii) Aliens admitted on A-1, A-2, C-3 (except for attendants,
servants or personal employees of accredited officials), G-1, G-2, G-3,
G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas and
maintaining such status at time of departure, unless the Secretary of
State and the Secretary of Homeland Security jointly determine that a
class of such aliens should be subject to the requirements of paragraph
(a)(1);
(iii) Classes of aliens to whom the Secretary of Homeland Security
and the Secretary of State jointly determine it shall not apply; or
(iv) An individual alien to whom the Secretary of Homeland
Security, the Secretary of State, or the Director of Central
Intelligence determines it shall not apply.
(b) An alien who is required to provide biometric identifiers at
departure pursuant to paragraph (a)(1) and who fails to comply with the
departure requirements may be found in violation of the terms of his or
her admission, parole, or other immigration status. In addition,
failure of a covered alien to comply with the departure requirements
could be a factor in support of a determination that the alien is
ineligible to receive a future visa or other immigration status
documentation, or to be admitted to the United States. In making this
determination, the officer will consider the totality of the
circumstances, including, but not limited to, all positive and negative
factors related to the alien's ability to comply with the departure
procedures.
(c) A covered alien who leaves the United States without complying
with the departure requirements in this section may be found to have
overstayed the period of his or her last admission where the available
evidence clearly indicates that the alien did not depart the United
States within the time period authorized at his or her last admission
or extension of stay. A determination that the alien previously
overstayed the terms of his admission may result in a finding of
inadmissibility for accruing prior unlawful presence in the United
States under section 212(a)(9) of the Immigration and Nationality Act
or that the alien is otherwise ineligible for a visa or other
authorization to reenter the United States, provided that all other
requirements of section 212(a)(9) have been met. A determination that
an alien who was admitted on the basis of a nonimmigrant visa has
remained in the United States beyond his or her authorized period of
stay may result in such visa being deemed void pursuant to section
222(g) of the Act (8 U.S.C. 1202(g)) where all other requirements of
that section are also met.
PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION
0
5. The authority citation for part 235 is revised to read as follows:
Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226,
1228, 1365a note, 1379, 1731-32.
0
6. Section 235.1(d)(1) and (f)(1) introductory text are revised to read
as follows:
Sec. 235.1 Scope of examination.
* * * * *
(d) Alien applicants for admission. (1) Each alien seeking
admission at a United States port-of-entry must present whatever
documents are required and must establish to the satisfaction of the
[[Page 481]]
inspecting officer that the alien is not subject to removal under the
immigration laws, Executive Orders, or Presidential Proclamations, and
is entitled, under all of the applicable provisions of the immigration
laws and this chapter, to enter the United States.
(i) A person claiming to have been lawfully admitted for permanent
residence must establish that fact to the satisfaction of the
inspecting officer and must present proper documents in accordance with
Sec. 211.1 of this chapter.
(ii) The Secretary of Homeland Security or his delegate may require
nonimmigrant aliens seeking admission pursuant to a nonimmigrant visa
at an air or sea port of entry designated by a notice in the Federal
Register to provide fingerprints, photograph(s) or other specified
biometric identifiers during the inspection process. The failure of an
applicant for admission to comply with any requirement to provide
biometric identifiers may result in a determination that the alien is
inadmissible under section 212(a)(7) of the Immigration and Nationality
Act, or other relevant grounds in section 212 of the Act.
(iii) Aliens who are required under paragraph (d)(1)(ii) to provide
biometric identifier(s) at inspection may also be subject to the
departure requirements for biometrics contained in Sec. 215.8 of this
chapter, unless otherwise exempted.
(iv) The requirements of paragraph (d)(1)(ii) shall not apply to:
(A) Aliens younger than 14 or older than 79 on date of admission;
(B) Aliens admitted on A-1, A-2, C-3 (except for attendants,
servants or personal employees of accredited officials), G-1, G-2, G-3,
G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas, unless the
Secretary of State and the Secretary of Homeland Security jointly
determine that a class of such aliens should be subject to the
requirements of paragraph (d)(1)(ii);
(C) Classes of aliens to whom the Secretary of Homeland Security
and the Secretary of State jointly determine it shall not apply; or
(D) An individual alien to whom the Secretary of Homeland Security,
the Secretary of State, or the Director of Central Intelligence
determines it shall not apply.
* * * * *
(f) Form I-94, Arrival-Departure Record. (1) Unless otherwise
exempted, each arriving nonimmigrant who is admitted to the United
States will be issued a Form I-94 as evidence of the terms of
admission. For land border admission, a Form I-94 will be issued only
upon payment of a fee, and will be considered issued for multiple
entries unless specifically annotated for a limited number of entries.
A Form I-94 issued at other than a land border port-of-entry, unless
issued for multiple entries, must be surrendered upon departure from
the United States in accordance with the instructions on the form. Form
I-94 is not required by:
* * * * *
Dated: December 30, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-32331 Filed 12-31-03; 11:51 am]
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