Daily Rules, Proposed Rules, and Notices of the Federal Government
On August 31, 2004, the Department promulgated an interim final rule that expanded the US-VISIT program to include aliens seeking admission under the Visa Waiver Program and travelers arriving at designated land border ports of entry. This rule also finalizes that interim final rule and addresses public comments received during that rulemaking action.
The Department of Homeland Security (DHS) established the United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT) in accordance with several statutory mandates that collectively require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens; biometrically compares the identities of aliens; and authenticates travel documents presented by such aliens through the comparison of biometric identifiers. Aliens subject to US-VISIT may be required to provide fingerscans, photographs, or other biometric identifiers upon arrival in, or departure from, the United States. DHS views US-VISIT as a biometrically-driven program designed to enhance the security of United States citizens and visitors, while expediting legitimate travel and trade, ensuring the integrity of the immigration system, and protecting the privacy of our visitors' personal information.
The statutes that authorize DHS to establish US-VISIT include, but are not limited to:
• Section 2(a) of the Immigration and Naturalization Service Data Management Improvement Act of 2000 (DMIA), Public Law 106-215, 114 Stat. 337 (June 15, 2000);
• Section 205 of the Visa Waiver Permanent Program Act of 2000, Public Law 106-396, 114 Stat. 1637, 1641 (Oct. 30, 2000);
• Section 414 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56, 115 Stat. 271, 353 (Oct. 26, 2001);
• Section 302 of the Enhanced Border Security and Visa Entry Reform Act of
• Section 7208 of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA), Public Law 108-458, 118 Stat. 3638, 3817 (December 17, 2004); and
• Section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-52, 121 Stat. 266 (Aug. 3, 2007).
DHS provided detailed abstracts of the particular sections of the statutes that established and authorized the US-VISIT program in prior rulemakings and the proposed rule.
On January 5, 2004, DHS implemented the first phase of the US-VISIT biometric component by publishing an interim final rule in the
• Aliens admitted on an 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 visa;
• Children under the age of 14;
• Persons over the age of 79;
• Taiwan officials admitted on an E-1 visa and members of their immediate families admitted on E-1 visas.
The US-VISIT program, through U.S. Customs and Border Protection (CBP) officers, collects biometrics (digital fingerprints and photographs) from aliens seeking admission to the United States. 73 FR 22066. The US-VISIT program also receives biometric data collected by Department of State (DOS) consular offices in the visa application process. DHS checks biometric data on those applying for admission to the United States against government databases to identify suspected terrorists, known criminals, or individuals who have previously violated U.S. immigration laws. These procedures assist DHS in determining whether an alien seeking to enter the United States is, in fact, admissible to the United States under existing law. Biometric data collected by US-VISIT assists DOS consular officers in the verification of the identity of a visa applicant and the determination of the applicant's eligibility for a visa.DHS's ability to establish and verify the identity of an alien and to determine whether that alien is admissible to the United States is critical to the security of the United States and the enforcement of the laws of the United States. By linking the alien's biometric information with the alien's travel documents, DHS reduces the likelihood that another individual could assume the identity of an alien already recorded in US-VISIT or use an existing recorded identity to gain admission to the United States.
From its inception on January 5, 2004 to the present, US-VISIT has biometrically screened more than 130 million aliens at the time they applied for admission to the United States. DHS has taken adverse action against more than 3,800 aliens based on information obtained through the US-VISIT biometric screening process. By “adverse action,” DHS means that the alien was:
• Arrested pursuant to a criminal arrest warrant;
• Denied admission, placed in expedited removal, or returned to the country of last departure; or
• Otherwise detained and denied admission to the United States.
In addition, by quickly verifying identity and validity of documents, US-VISIT has expedited the travel of millions of legitimate entrants. Expanding the population of aliens required subject to US-VISIT requirements will allow DHS to identify additional aliens who are inadmissible or who otherwise may present security and criminal threats, including those who may be traveling improperly on previously established identities.
On July 27, 2006, DHS published a notice of proposed rulemaking (NPRM or proposed rule) proposing to expand the population of aliens subject to US-VISIT requirements. The NPRM proposed to require enrollment of any alien in US-VISIT, with the exception of those Canadian citizens applying for admission as B-1/B-2 visitors for business or pleasure, and those specifically exempted under DHS regulations. Under the proposed rule, the following classes of aliens, among others, would become subject to US-VISIT requirements:
• Lawful Permanent Residents (LPRs).
• Aliens seeking admission on immigrant visas.
• Refugees and asylees.
• Certain Canadian citizens who receive a Form I-94 at inspection or who require a waiver of inadmissibility.
• Aliens paroled into the United States.
• Aliens applying for admission under the Guam Visa Waiver Program.
This rule also addresses comments received on the August 31, 2004, interim final rule and finalizes that rule. For ease of reference, DHS responds separately to the comments submitted on the interim rule and the proposed rule.
DHS received 71 comments on the July 27, 2006, notice of proposed rulemaking. Some comments were positive, while other comments were negative or asked that the regulation be withdrawn. The comments raised a number of issues, including the relationship with other DHS initiatives, suggesting that US-VISIT should not proceed until other initiatives have been completed. One commenter noted that there have been several GAO reports that have been critical of US-VISIT and DHS has addressed those concerns as discussed in the published reports. DHS continues to address all of these concerns and recommendations as US-VISIT is developed. The most common issue raised by the comments was the inclusion of lawful permanent residents (LPRs) in US-VISIT enrollment and verification.
Some comments were very general, such as those suggesting that DHS concentrate on removing illegal aliens present in the United States. DHS believes that US-VISIT plays an important role in preventing illegal immigration in the first place by requiring biometric information from travelers seeking to enter the United States. DHS continues to concentrate on intercepting aliens who are in the United States without authorization. These priorities do not conflict.
Similarly, a commenter asked how DHS is benchmarking or measuring the success of US-VISIT. DHS provides performance measures to the Executive Office of the President and to the Office of Management and Budget (OMB) using OMB's Program Assessment Rating Tool (PART). Some of the factors included in the Fiscal Year (FY) 2006 PART assessment were: Cumulative and annual percentage baseline cost and schedule overrun on US-VISIT Increment Development and Deployment, Reduction in Review Time for Privacy Redress, Ratio of Adverse Actions to Total Biometric Watch List Hits at Ports of Entry, Percentage of Exit Records Matched to Entry Records, and other factors. OMB rated US-VISIT as “moderately effective.” DHS accepts OMB's view on these performance measures and is taking steps to achieve better results. The comment, however, does not raise issues relating to the proposed rule.
Thirty-two commenters urged that LPRs be exempt from US-VISIT, based on their status as LPRs, because they have previously been subject to significant security checks in order to obtain LPR status. Similarly, some commenters stated that there is no evidence that LPRs pose a threat to the level that they “should be grouped with” nonimmigrants who are subject to US-VISIT. One commenter stated that DHS has a flawed process in that it is willing to trust in an LPR's first use of US-VISIT for initial capture of fingerprints, rather than compare against the records captured during the initial adjustment of status process.
DHS agrees that LPRs receive an extensive background check to become LPRs, including a criminal background check using the applicant's fingerprints. United States Citizenship and Immigration Services (USCIS) conducts an extensive investigation prior to granting adjustment of status to that of an LPR, and the DOS undertakes significant investigation of an alien applying for an immigrant visa. Also, DHS agrees that there is not necessarily evidence to support the notion that LPRs—as a class—pose risks not posed by nonimmigrants—as a class.
DHS does not, however, believe that this point is entirely relevant for the purposes of this rule for several significant reasons. DHS and DOJ continue to uncover significant immigration document fraud, particularly in relation to permanent resident cards (Form I-551). Common examples include giving or selling a permanent resident card to someone else, altering a lost permanent resident card, and using a fraudulently created permanent resident card. DHS has substantially increased the security features on permanent resident cards in recent years, but security features are not foolproof.
The Immigration and Naturalization Service (INS), predecessor to a number of DHS functions, issued resident alien cards without expiration dates until 1989. Permanent resident cards issued after 1989 are valid only for ten years. Additionally, INS upgraded the Form I-551 significantly, including more secure features, in September 1997. 62 FR 44146 (Aug. 19, 1997). Many LPRs possess permanent resident cards that have limited security features and no expiration date. Trafficking in these cards is inhibited by the fact that the card must appear to be aged to the date of its issue, but otherwise these cards provide limited security from assumed identity. DHS is taking steps to recall all such cards. 72 FR 46922 (Aug. 22, 2007).
Including LPRs within the scope of US-VISIT processing will enable DHS to detect, deter, and act against those who attempt fraud through the biometric match of the person presenting the Form I-551 against the record of the person to whom that card was issued. Accordingly, the inclusion of LPRs within US-VISIT is consistent with other security programs initiated by DHS.
LPRs are still subject to entry, documentation, and removability requirements to the United States. LPRs are aliens.
DHS compares the fingerprints collected as part of the adjustment of status or immigrant visa process with the fingerscans of the LPR seeking entry, when those fingerprints are available in DHS's Automated Biometric Identification System (IDENT). The addition of data from adjustment of status and immigrant visa applications to the IDENT system will substantially reduce the initial enrollment of LPRs, but LPRs, as aliens, should be enrolled in US-VISIT.
Finally, the statutes underlying the development of US-VISIT have never distinguished between immigrants and nonimmigrants. For the purpose of data collection and biometric comparison,
Five commenters suggested that LPRs should not be subject to US-VISIT because they are so similar to United States citizens, and United States citizens are not subject to US-VISIT by the terms of this rule. DHS does not agree that the difference between an LPR and a United States citizen is minor. The INA defines the term “alien” as “any person not a citizen or national of the United States.” See section 101(a)(3) of the INA (8 U.S.C. 1101(a)(3)).
Similarly, some commenters suggested that the distinction between LPRs and United States citizens in terms of US-VISIT processing should be “all or nothing.” In other words, these commenters stated that either both LPRs and United States citizens should be subject to US-VISIT, or neither should. Generally, these comments tend to suggest that passports are just as likely to be used fraudulently as permanent resident cards and that there are no significant legal differences between LPRs and United States citizens. A corollary argument was made by other commenters: DHS should increase significantly the security features of the Form I-551 in order to make them equivalent to passports in terms of security.
As a legal matter, LPRs, although allowed to stay and work in the United States permanently, are still “aliens” and subject to immigration law. Unlike United States citizens,
• The status of LPRs can be rescinded under section 246 of the INA (8 U.S.C. 1256) and LPRs can be removed from the United States under section 237 of the INA (8 U.S.C. 1227);
• LPRs are required to acquire and carry evidence of their status (Form I-551) and replace it when it is lost or expires under section 264 of the INA (8 U.S.C. 1304) and 8 CFR 264.5(b);
• LPRs must present specific documentation as a condition for admission and re-admission to the United States under section 211 of the INA (8 U.S.C. 1181) and 8 CFR 211.1(a);
• LPRs must notify DHS of each change of address and new address within ten days of the date of the change of address under section 265(a) of the INA (8 U.S.C. 1305(a)) and 8 CFR 265.1;
• LPRs may be deemed to have abandoned their status when outside of the United States for more than one year, unless they obtain a re-entry permit, in line with the documentary requirements at 8 CFR 211.1(a) and (b)(3); and
• LPRs must apply for naturalization to obtain citizenship, demonstrating good moral character and at least five years of continuous residence under section 316 of the INA (8 U.S.C. 1427), as well as an understanding of the English language and a knowledge and understanding of the fundamentals of the history and of the principles and form of government of the United States under section 312 of the INA (8 U.S.C. 1423).
These requirements, and others, clearly differentiate LPRs from United States citizens. Moreover, LPR status does not grant an alien a variety of benefits accorded to a citizen of the United States, including the most fundamental right to vote for federally elected officials.
Finally, DHS has a specific and unique responsibility with respect to ensuring that LPRs comply with the requirements of their status. DHS does not accept the argument that LPR status is so equivalent to United States citizenship that US-VISIT processing must be the same or similar for both. DHS recognizes that most LPRs do not pose a threat to the United States and do not commit crimes that would subject them to removal, and has accommodated the free flow of travel by LPRs by instructing them to seek inspection at airports by joining the “United States Citizen” inspection line. This accommodation does not mean that LPRs are, or will otherwise be treated as, United States citizens.
DHS is taking steps to improve the security of permanent resident cards, but that does not necessarily mean that they should remain exempt from contemporaneous biometric identification under US-VISIT. As noted above, DHS has proposed to invalidate all permanent resident cards without an expiration date; this action will facilitate upgrading card security and evidence of LPR status legitimacy and security. 72 FR 46922 (Aug. 22, 2007). US-VISIT is only one step in the ongoing efforts by DHS to improve the security of the United States and enforce the immigration laws of the United States.
DHS believes that US-VISIT creates better protections against the fraudulent use of immigration documentation than does mere document examination, and does so in a way that is cost-effective. Using US-VISIT, a CBP officer can match an LPR's biometric features against a database where those features are stored based on the processing done to obtain the benefit of LPR status (either an immigrant visa or an adjustment of status application). This greatly diminishes the possibility that a Form I-551 can be used fraudulently to obtain entry to the United States because there is an automated comparison to the biometric characteristics and an examination of the card itself. Thus, the security features on the Form I-551 itself are extremely helpful, but it is the biometric checks that provide the best security against immigration fraud, as this also prevents legitimate cards from being used by those to whom a card was not issued. DHS believes that because it has the biometric data collected for LPRs and the capability to technically, quickly, and easily compare those data to a person seeking to enter a port of entry, DHS has a responsibility to use those data to ensure that the person seeking admission is using his or her documentation legitimately.
Twelve commenters suggested that it was unfair to exempt Canadian tourists from US-VISIT, but require LPRs to be enrolled and processed by US-VISIT. Another commenter opposed LPR enrollment in US-VISIT, but supported the enrollment of all Canadian citizens regardless of the purpose of their trip to the United States.
DHS understands that the “staged” implementation of US-VISIT can carry the perception of unfairness. However, the distinction between LPRs and Canadian temporary visitors is not based on the notion that one is inherently more of a “threat” than the other. Logistical difficulties in implementation of biometric checks at primary inspection in the land border environment and foreign policy issues govern the continued exemption of
All LPRs and Canadians arriving at land border ports of entry are treated the same—those who are sent to secondary inspection are processed through US-VISIT; those who are inspected at primary inspection are not. Aliens requiring a Form I-94 (select Canadians, in this case) will actually be referred to secondary inspection more often than LPRs, because they must secure a new Form I-94, in most cases, every six to eight months in addition to those instances where such referrals may be made for any other reason. In some instances, such as classifications with extended duration of status, a single Form I-94 may be valid for an extended period, those aliens must renew their Form I-94 at least every six to eight months. This result is simply a function of the need for additional technological advancements in order to build an operational system that can function as a biometric entry system without significantly impairing the efficiency of inspections.
Seven commenters mentioned the current structure of most United States airports and seaports, where “United States Citizens/LPRs” are directed into one inspection line and “Visitors” are directed to a different inspection line. They suggested that placing LPRs in the “Visitors” line merely for the sake of US-VISIT processing would cause significant delays for them and could separate families traveling together. DHS has deployed US-VISIT equipment in virtually all lanes at United States airports and seaports where US-VISIT is functional. This deployment allows CBP the flexibility to quickly change “Citizen/LPR” lanes to “Visitors” lanes and vice versa, as there is a need to balance and rebalance the time spent in the queue and process all arrivals efficiently and effectively. Because of almost universal lane availability, DHS will be able to process LPRs and others in the existing lane determinations. LPRs will remain within the “United States Citizen/LPR” lanes and will not be shifted into the “Visitors” lane unless such action could expedite processing. Additionally, LPRs are processed in the same lanes as United States citizen lanes, in many instances, to process entire families more expeditiously; DHS continues to recognize and attempt to accommodate families traveling together.
One commenter stated that this would cause delays for United States citizens, as the lanes dedicated to LPRs and United States citizens will slow down. DHS will monitor delays in processing carefully, but does not believe that US-VISIT will add to such delays. The United States averages roughly 33 million air/sea port arriving United States citizen travelers per year and approximately 4.4 million air/sea port arriving LPR travelers per year. Further, many ports of entry use dedicated “United States Passport only” lanes even within the “United States Citizen/LPR” lanes. DHS believes that the application of US-VISIT to LPRs will not impact United States citizens' travel to a significant degree.
One commenter questioned whether, given that DHS does not currently possess electronically searchable fingerprints on all LPRs, LPRs would be required to provide a full set of ten fingerprints (or “10 prints”) through US-VISIT at the point in which US-VISIT transfers to 10-print enrollment. DHS began transitioning to 10-print devices and capture at primary inspection in December 2007.
The process for LPR enrollment and verification will be the same as for other aliens. If entering the United States at a port with available 10-print devices, LPRs will be enrolled though the 10-print enrollment process. Thus, an alien will need to submit 10 fingerprints only one time (whether at a port of entry or at a USCIS Application Support Center), and all subsequent times, in whatever environment, the alien will provide less than 10 fingerprints for verification. DHS will possess a higher percentage of 10 prints in its biometric database for LPRs, because LPRs generally must renew their permanent resident card every 10 years and are required to submit 10 fingerprints as part of the renewal process.
One commenter implied that the treatment of LPRs is unfair due to lack of radio frequency identification (RFID) chips in the Form I-551. This comment refers to a DHS proof of concept program in which five land border ports of entry have used RFID technology to track exits and pre-position information on entry for nonimmigrants.
DHS agrees that documentation issued to different aliens should be consistent to the extent practical and to the extent that consistency serves security and efficiency goals. DHS is examining integration of data processes to provide both better security and better efficiency. Accordingly, DHS will consider additional opportunities to include LPRs in these initiatives in addition to United States citizens and Canadian travelers.
LPRs at the land border, however, are less likely than nonimmigrant aliens to be referred to secondary inspection as discussed above. LPRs will be referred to secondary inspection only when a CBP officer in primary inspection determines that further investigation is required before admission, as is the current practice. There is no reason to believe that LPRs, as a result of the promulgation of this rule, will be referred to secondary inspection more frequently or will spend significantly more time while in secondary inspection. Nonimmigrant aliens, on the other hand, are referred to secondary inspection routinely at least every six to eight months to renew their Form I-94.
Five commenters suggested that promulgation of the rule as proposed would violate, in a very generic way, the privacy rights of LPRs. One commenter objected to the retention of travel information on LPRs.
DHS complies with the Privacy Act, 5 U.S.C. 552a. In addition, the Homeland Security Act of 2002, in creating DHS, established a Privacy Officer who is tasked with assuring full compliance with the Privacy Act, advising the Secretary and DHS on the privacy of personal information, and conducting privacy impact assessments on DHS regulations.
However, the US-VISIT programmatic statutes all refer to “aliens” without differentiation. DHS believes the intent of these statutes is clear: LPRs are to be included within US-VISIT as much as practical and consistent with other legal obligations relating to travel documents issued by the United States, including those issued by DHS and DOS. Most LPRs travel internationally on DHS-issued documents; therefore, LPRs are directly impacted by these requirements. Additionally, DHS has a legitimate need for maintaining some information on LPR travel. DHS has collected travel information on LPRs for many years, originally as part of the
One commenter inquired whether LPRs for whom DHS has no electronic biometric record will have ten-print or two-print fingerscan enrollment upon being processed in US-VISIT in the primary lane. DHS began transitioning to a ten-print enrollment process in December 2007. These processes will not be limited to LPRs, however, and DHS is confident that it can use technology to minimize the potential for delay as a result of the change.
The Western Hemisphere Travel Initiative (WHTI) requires that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a plan to require travelers entering the United States to present a passport, other document, or combination of documents which is “deemed by the Secretary of Homeland Security to be sufficient to denote identity and citizenship” by June 1, 2009.
One commenter to this rule asked whether the Canadian border issues that have been addressed through WHTI were being taken into account in the promulgation of this rule. DHS has been working very closely with Canadian authorities in order to secure better the border between the United States and Canada without sacrificing the close ties between the two countries. In March 2005, the Administration launched the Security and Prosperity Partnership (SPP) as a trilateral effort with Canada and Mexico premised on the mutual reinforcement of our security and economic prosperity.
Another commenter suggested that the NPRM fails to consider the impact of WHTI and this US-VISIT expansion at the same time. This rule is being implemented on January 18, 2009, and the first phase of WHTI (requiring a passport or other document to demonstrate identity and citizenship at air ports of entry) began on January 23, 2007. The second phase of WHTI (land borders and sea ports) was published as a final rule on April 3, 2008, and will be effective June 1, 2009. 73 FR 18384.
This expansion of US-VISIT procedures deals with the type of immigration processing certain aliens will require at all ports of entry, with the differences described elsewhere based on the type of port of entry. One of the main reasons for exempting Canadians who do not require a separate admissibility determination through Form I-94 in this rulemaking is to coordinate the timing of the WHTI land border port of entry procedures, before DHS can determine what, if any, additional steps should be taken for US-VISIT processing of these aliens at land border ports of entry. DHS and DOS are carefully coordinating the implementation of multiple initiatives to improve the security of the United States and ensure efficient border management.
Three commenters expressed concern that the preclearance sites in Canada would see a dramatic increase in the numbers of aliens subject to US-VISIT and be unable to handle the increase in time and traffic. One commenter also noted that unlike the traditional environment of immigration processing where the flights have already landed, in the preclearance environment, persons are trying to board a flight before it is too late, and that, therefore, the delays would be much more costly.
DHS acknowledges the concerns with preclearance flight locations in Canada. However, DHS notes that Canadians not requiring visas—which include those transiting the United States or applying for admission to the United States as visitors for business or pleasure—are not required to be processed in US-VISIT. Accordingly, the increased volume of preclearance travelers in US-VISIT may not be as high as the commenters suggest. Nonetheless, DHS has existing mitigation strategies in effect to respond to overcrowded inspection facilities. DHS will pay close attention to these preclearance locations to determine whether implementing these strategies is appropriate, especially during the first few weeks after this final rule becomes effective.
One commenter expressed concern about Canadian B-1/B-2 travelers who frequently travel over the land border and require a waiver of inadmissibility under section 212 of the INA (8 U.S.C. 1182) to be admitted to the United States. DHS is currently considering alternative administrative processes for simplified handling of waivers and their application to US-VISIT, but until DHS implements these processes, DHS will maintain the same procedures for Canadian B-1/B-2 travelers requiring a waiver of inadmissibility as it has with all Canadians requiring a waiver of inadmissibility and given a multiple entry Form I-94: US-VISIT secondary processing every six months or when sent to secondary by a CBP officer. Canadian B-1/B-2 applicants for admission requiring a waiver of admissibility will not be required to be processed in US-VISIT every time they cross a United States land border.
Three commenters raised concerns about Canadians in transit through the United States, two in the land context and one in the air context. In the air context, one commenter suggested that Canadian B-1/B-2 travelers will be exempt from US-VISIT processing if flying to the United States, but not if they are flying through the United States. DHS agrees with the commenter that this would be an illogical result if this were in fact what had been proposed. The proposed rule provided that Canadians are subject to US-VISIT procedures only if they are required to obtain a visa or be issued a Form I-94. Typically, Canadians may transit through the United States by air without a visa and are not required to obtain a Form I-94.
In the land context, another commenter suggested essentially the same point, explaining a scenario in which a Canadian truck driver entering the United States as a visitor for business (and who is thus visa-exempt) would not be subject to US-VISIT processing, but where the same person transiting through the United States to Mexico would be subject to US-VISIT processing. The commenter conceded that this was not currently a concern due to restrictions in hauling cargo between the three countries, but that it could be a concern in the future. DHS does not believe this scenario requires US-VISIT processing for the same reason as in the air environment. The driver in the scenario posed above—a truck driver taking cargo from Canada to Mexico—would not require a visa to enter the United States, nor would he be issued a Form I-94, regardless of whether he is ultimately driving to Mexico. Thus, transiting aliens who do not otherwise require US-VISIT processing would not be subject to US-VISIT processing as a result of this final rule.
Two commenters suggested that Canadian airline crew members be exempt from US-VISIT requirements. These commenters stated that crew members are subject to significant levels of scrutiny to begin with, including checks made by Transport Canada and placement on the Master Crew lists provided to CBP 48 hours prior to departure. They also stated that the same reasoning applied to the continuing exemption for Canadian B1/B2 travelers appears to apply here, as each group is staying for a limited period of time. Finally, they said that any security benefits from these checks are insignificant compared to the costs that Canadian airlines would incur as a result of the inclusion of crew members in US-VISIT.
In promulgating this final rule, DHS is attempting to treat all aliens as equally as operationally possible in US-VISIT processing. In other words, crew from all other foreign carriers (D visa holders) currently are required to be processed in US-VISIT, and in nearly all airports there is a special crew lane designated especially for air crew members' use. Based on observations from the four years that US-VISIT has been operational, DHS does not believe that any delay for crew travel has been so significant as to justify continuing to not process airline crews through US-VISIT based on country of origin or nationality. Second, DHS does not believe that the connection to Canadian B1/B2 travelers is equivalent, as the exemption for those travelers is meant to account for the unique operational concerns of the land border environment. In addition, the extra checks that are mentioned by the commenter are biographic checks, and not the biometric checks that US-VISIT processing would provide.
However, the commenter also identifies an inequity faced by Canadian crew with respect to biometric exit procedures. Because of the large number of United States preclearance sites in Canada, Canadian airlines often fly into United States domestic airport terminals. The commenter states that if one of these airlines were to fly into a United States airport where biometric exit processing were operational, the Canadian crewmember would be required to leave the domestic terminal, go to the international terminal, record his exit biometrically, and then return to the domestic terminal for the next flight.
DHS agrees with the commenter that under these specific circumstances it may be unreasonable for Canadian airline crew members to biometrically register their departure. The exit pilot program has been terminated and, therefore, no pilots are being required to provide to register their departure.
Two commenters stated there should be no continued exemption for Mexican citizens, as the BCC and Form I-551 are the same. Currently, Mexican citizens who use a BCC to meet the documentary requirements of 8 CFR 212.1, if staying in the United States for 72 hours or less within a specified distance from the United States/Mexico border, are not required to obtain Form I-94 and, therefore, are not subject to US-VISIT. See 8 CFR 235.1(h)(1)(iii), (v). The commenter is correct that, from a security standpoint, BCCs are equivalent to Forms I-551 carried by LPRs. DHS anticipates that procedures for interacting with these two populations will be very similar. At air or sea ports of entry, both populations will be biometrically checked on every encounter. At land borders, under this final rule, LPRs and BCC holders will be checked as appropriate by CBP officers. This final rule adds LPRs to the list of travelers who, upon being referred to secondary inspection at land border ports of entry, will be processed in US-VISIT. Thus, this rule places LPRs and BCC holders in equivalent circumstances.
One commenter professed confusion with the proposed regulation's treatment of nonimmigrants returning through a land border port of entry, suggesting that DHS should clearly state whether it plans to conduct US-VISIT processing of all returning nonimmigrants arriving at a land port who, during primary inspection, present a valid visa and a current, multiple-entry Form I-94.
Nonimmigrant visa holders have been subject to US-VISIT processing in secondary inspection at the 50 most trafficked land border ports of entry since December 2004, and at all land border ports of entry since December 2005. These procedures have been in place for three years, and the additional alien classifications added by this final rule do not change any existing land border procedures. Nonimmigrant aliens requiring completion of a Form I-94 may be referred to secondary inspection at any time at the discretion of the CBP officer at primary inspection, but at least every six to eight months for renewal of the Form I-94, regardless of the time remaining on the validity of the document or whether it is issued for duration of status (D/S). Forms I-94 issued following US-VISIT processing are marked with the date on which the alien's period of admission expires (or duration of status, if applicable) and the date on which the person was processed in US-VISIT. At primary inspection, the alien is referred to secondary inspection for US-VISIT processing if six to eight months have passed since the last time the alien was processed in US-VISIT (depending on the level of activity at the port of entry at that moment, the capacity to efficiently process the alien, and other factors). If no adverse information is found relating to that alien, the alien is admitted under the existing terms of the original Form I-94.
The commenter characterizes this procedure as “recurrent readjudication of previously approved nonimmigrant status.” DHS does not agree with this characterization. Under the INA, each nonimmigrant alien applies for admission to the United States by approaching a port of entry and presenting identification for inspection, and DHS determines whether that nonimmigrant alien is admissible to the United States. See sections 101(a)(13),
The commenter suggested also that the proposed regulation would inject uncertainty and inefficiency into the process, as a Canadian would need to carry the entire documentation for their visa classification, as well as payroll records and employment records to prove whatever the examining officer might decide is required to establish maintenance of status. DHS policy does not currently require such complex presentations on existing Forms I-94, nor does DHS anticipate changing this policy as a result of this final rule. Experience has established that the program is not being executed in the way the commenter fears. Under the INA, an alien may be required to present all of the appropriate evidence necessary to establish admissibility at any inspection or at any time. See e.g. section 264(e) of the INA, 8 U.S.C. 1304(e).
One commenter suggested that the expansion of alien categories in US-VISIT, in conjunction with the REAL ID Act of 2005, would have an impact on the states' relationship with the federal government under Executive Order 13132 because the REAL ID Act will require states to issue driver's licenses with effective dates that do not exceed the time permitted on the alien's admission period on the Form I-94. DHS disagrees.
The REAL ID Act of 2005 prohibits federal agencies from accepting a state driver's license or personal identification card for any “official purpose” unless it has been issued by a state that has certified to, and been determined by DHS to meet, the minimum document requirements, minimum issuance standards, and other requirements of the REAL ID Act.
One commenter suggested that the proposed expansion of US-VISIT was inconsistent with previous DHS regulatory statements regarding the possible elimination of the Form I-94. DHS understands this concern and believes that it is pursuing a consistent long-term goal that may result in elimination of the Form I-94.
DHS currently requires the electronic transmission of manifest information for passengers (passenger name record or “PNR”) and crew members to CBP in advance of those flights.
One commenter questioned the inter-connections between US-VISIT under the changes in the regulations as proposed and IDENT, and the Federal Bureau of Investigation's (FBI's) Integrated Automated Fingerprint Identification System (IAFIS). The commenter expressed concern that IDENT database entries might be made available in the IAFIS database and opposed any plan to place civil immigration violations in a criminal database. Finally, the commenter requested an update on the ability of the systems to timely reflect changes and extensions of status. The commenter suggested that the proposal to expand US-VISIT to additional alien populations should wait for full IDENT/IAFIS integration.
IDENT is a DHS-wide electronic record system for the collection and processing of biometric and limited biographic information in connection with the national security, law enforcement, immigration, intelligence, and other mission-related functions of DHS, as well as for any associated testing, training, management reporting, planning and analysis, or other administrative uses.
IAFIS is a national fingerprint and criminal history system maintained by the Criminal Justice Information Services (CJIS) Division of the FBI. IAFIS provides automated fingerprint search capabilities, latent searching capability, electronic image storage, and electronic exchange of fingerprints and responses. As a result of submitting fingerprints electronically, agencies receive electronic responses to criminal ten-print fingerprint submissions within two hours and within 24 hours for civil fingerprint submissions.
DHS, DOJ, and DOS are collaborating to achieve interoperability between IAFlS and IDENT.
It is unclear from the comments why the proposal to expand the classifications of aliens subject to US-VISIT should wait for full IDENT/IAFIS interoperability. DHS currently receives substantial benefits from screening without interoperability because US-VISIT identifies existing aliens requiring further review (e.g. criminal warrants, prior deportations, etc.).
Whether immigration violations are made available to law enforcement officers through IAFIS is not germane to this final rule. As IDENT/IAFIS interoperability moves forward, any such determination will be discussed in the appropriate PIAs by the appropriate Department if and when contemplated.
Finally, although not germane to the rulemaking, DHS notes that biographic data from USCIS are transmitted to the Arrival Departure Information System (ADIS) so that changes to immigration status are reflected in US-VISIT in near-real time. Accordingly, US-VISIT has the capability to ensure that aliens who are in lawful status are not determined to have stayed past their original periods of admission if that period has been extended by USCIS.
One commenter inquired about the language in the proposed rule that reserves the ability for DHS to collect “other biometric identifiers” in addition to photograph and fingerprints. This language is prophylactic. At this time, DHS has no plans to collect biometric identifiers in addition to photographs and fingerprints. However, DHS also recognizes that historically, other biometric identifiers such as height, weight, color of hair, color of eyes, etc., have been recorded, and this language continues to reflect that historic fact. Moreover, technological development may provide the capacity for use of other biometric identifiers in the future. DHS will make, as appropriate, changes in Privacy Impact Assessments and Systems of Records Notices for these systems.
Another commenter suggested that visual comparison of photographs is sufficient for identification. DHS disagrees. Document fraud, in some instances, has been effective in creating a false identity that defeats simple visual inspection of photographs with the face of the bearer. In addition, the commenter's suggestion overlooks the purpose of positive freezing of an identity with fingerscans to determine whether the individual is admissible to the United States or has committed criminal or terrorist acts that bar admission.
One commenter stated that the age limitations on the requirement to be processed in US-VISIT were too narrow, saying the program should be applicable to no one over the age of 60 years old, as opposed to over the age of 79. Another commenter suggested the opposite, saying that the age range should be expanded to cover those between the ages of 10 and 85.
US-VISIT processing is currently required of aliens who are between the ages of 14 and 79 and otherwise required to enroll and be verified in US-VISIT. Technically, it is possible to include more individuals who are younger and older than these age limitations. However, this age range is consistent with longstanding DHS and legacy INS policy concerning the fingerprinting of those seeking immigration benefits, including adjustment of status to permanent resident and naturalization. DHS uses exemptions consistent with these limitations. DHS may reconsider these age ranges in the future, but does not do so as part of this regulation. The current exemptions will continue to apply equally to all of the aliens enrolled in US-VISIT.
One commenter objected to language in the proposed 8 CFR 215.8(a)(2)(iv) and 8 CFR 235.1(f)(1)(iv)(D) that allows the Secretary of Homeland Security, the Secretary of State, or the Director of Central Intelligence to exempt any individual alien from the biometric entry or exit processes. Each of these three departments has specific reasons why a particular person should be exempt from the biometric collection process that is integral for their core mission. The individualized decision to exempt an alien is based on the interests of the United States in managing its foreign and military affairs and poses no risk to the security of the United States.
Several commenters raised concerns relating to privacy, particularly the privacy of particular groups of aliens and DHS compliance with the Privacy Act, 5 U.S.C. 552a.
One commenter stated that DHS has not met its responsibilities under the Privacy Act by failing to publish a Privacy Impact Assessment (PIA). DHS has published a PIA. 71 FR 42653 (July 27, 2006). Though not legally required to do so because nonimmigrants are not covered by the Privacy Act, DHS, as a matter of policy, has considered all aliens subject to US-VISIT as warranting Privacy Act analysis. DHS has published numerous PIAs and System of Record Notices (SORNs) for the systems making up US-VISIT. The PIAs published by US-VISIT list the principal users for, and uses of, the data contained within US-VISIT/DHS systems. The PIAs also identify the extent