Proposed Rule2025-19747
Collection and Use of Biometrics by U.S. Citizenship and Immigration Services
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 3, 2025
Issuing agencies
Homeland Security Department
Abstract
The U.S. Department of Homeland Security (DHS) proposes to amend its regulations governing biometrics use and collection. DHS proposes to require submission of biometrics by any individual, regardless of age, filing or associated with an immigration benefit request, other request, or collection of information, unless exempted; expand biometrics collection authority upon alien arrest; define "biometrics;" codify reuse requirements; codify and expand DNA testing, use and storage; establish an "extraordinary circumstances" standard to excuse a failure to appear at a biometric services appointment; modify how VAWA self-petitioners and T nonimmigrant status applicants demonstrate good moral character; and clarify biometrics collection purposes.
Full Text
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[Federal Register Volume 90, Number 210 (Monday, November 3, 2025)]
[Proposed Rules]
[Pages 49062-49145]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-19747]
[[Page 49061]]
Vol. 90
Monday,
No. 210
November 3, 2025
Part II
Department of Homeland Security
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8 CFR Parts 1, 103, et al.
Collection and Use of Biometrics by U.S. Citizenship and Immigration
Services; Proposed Rule
Federal Register / Vol. 90, No. 210 / Monday, November 3, 2025 /
Proposed Rules
[[Page 49062]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 1, 103, 204, 207, 208, 209, 210, 212, 214, 215, 216,
235, 236, 240, 244, 245, 245a, 264, 287, 333 and 335
[CIS No. 2814-25; DHS Docket No. USCIS-2025-0205]
RIN 1615-AC99
Collection and Use of Biometrics by U.S. Citizenship and
Immigration Services
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Homeland Security (DHS) proposes to
amend its regulations governing biometrics use and collection. DHS
proposes to require submission of biometrics by any individual,
regardless of age, filing or associated with an immigration benefit
request, other request, or collection of information, unless exempted;
expand biometrics collection authority upon alien arrest; define
``biometrics;'' codify reuse requirements; codify and expand DNA
testing, use and storage; establish an ``extraordinary circumstances''
standard to excuse a failure to appear at a biometric services
appointment; modify how VAWA self-petitioners and T nonimmigrant status
applicants demonstrate good moral character; and clarify biometrics
collection purposes.
DATES: Submission of Public Comments: Written comments on the proposed
rule must be submitted on or before January 2, 2026. Comments on the
information collection described in the Paperwork Reduction Act section
of this proposed rule must be received on or before January 2, 2026.
The electronic Federal Docket Management System will accept comments
prior to midnight eastern time at the end of that day.
ADDRESSES: You may submit comments on the entirety of this proposed
rulemaking package, identified by DHS Docket No. USCIS-2025-0205,
through the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the website instructions for submitting comments.
Comments must be submitted in English, or an English translation
must be provided. Comments that will provide the most assistance to
USCIS will reference a specific portion of the proposed rule, explain
the reason for any recommended change, and include data, information,
or authority that support such recommended change. Comments submitted
in a manner other than the one listed above, including emails or
letters sent to DHS or USCIS officials, will not be considered comments
on the proposed rule and may not receive a response from DHS. Please
note that DHS and USCIS will not accept or consider any comments that
are hand-delivered, couriered, or sent by mail. In addition, USCIS
cannot accept comments contained on any form of digital media storage
devices, such as CDs/DVDs and USB drives. If you cannot submit your
comment by using <a href="http://www.regulations.gov">http://www.regulations.gov</a>, please contact the
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at (240) 721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Security and Public Safety Division,
Office of Policy and Strategy, U.S. Citizenship and Immigration
Services, Department of Homeland Security, 5900 Capital Gateway Drive,
Camp Springs, MD 20746; telephone (240) 721-3000.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Summary of Costs and Benefits
III. Background and Purpose
A. Legal Authority and Guidance for DHS Collection and Use of
Biometrics
1. Background Checks
2. Secure Document Production
3. Biometric Collection From U.S. Citizens, U.S. Nationals, and
Lawful Permanent Residents
4. Required Biometric Collections
5. Administrative Guidance
B. The Use of Biometrics by DHS
IV. Discussion of Proposed Changes
A. Use of Biometrics for Identity Management and Enhanced
Vetting
1. Identity Management
2. Enhanced and Continuous Vetting
B. Verify Identity, Familial Relationships, and Preclude
Imposters
1. Use of DNA Evidence
2. Special Treatment of DNA Evidence
3. Identity Management
C. Flexibility in Biometrics Requirements
1. Definition of Biometrics
2. Additional Modalities
3. Amend Related Regulations To Align With the Purposes of This
Proposed Rule and To Facilitate Electronic Filing
D. Biometrics Requirement for U.S. Citizens, U.S. Nationals, and
Lawful Permanent Residents
1. The Adam Walsh Child Protection and Safety Act of 2006
2. The International Marriage Broker Regulation Act (IMBRA)
3. Certain Family-Based Petitioners
4. Violence Against Women Act (VAWA) Self-Petitioners
5. T Nonimmigrant Adjustment of Status Applicants
6. Persons Involved With EB-5 Regional Center Program
7. Collection of Biometrics From Other Individuals Associated
With a Benefit Request, Other Request, or Collection of Information
E. Biometrics Services Appointments and Interviews
1. Biometric Services Appointments
2. Interviews for Benefits
3. Interviews for Alien Spouses
F. Proposed Implementation
1. Phased-In Additional Biometrics Collection
2. Collection of the Biometric Services Fee
G. Evidence of Age and Birth Parentage for an Adopted Child
V. Statutory and Regulatory Requirements
A. Executive Orders 12866 (Regulatory Planning and Review),
13563 (Improving Regulation and Regulatory Review), and 14192
(Unleashing Prosperity Through Deregulation)
1. Summary
2. Background and Purpose of the Proposed Rule
3. Population
4. Costs and Benefits of the Proposed Rule
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act of 1996
(Congressional Review Act)
D. Unfunded Mandates Reform Act of 1995
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Paperwork Reduction Act
H. Family Assessment
I. National Environmental Policy Act
J. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
K. National Technology Transfer and Advancement Act
L. Executive Order 12630 (Governmental Actions and Interference
With Constitutionally Protected Property Rights)
M. Executive Order 13045 (Protection of Children From
Environmental Health Risks and Safety Risks)
N. Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use)
Table of Abbreviations
AAC accompanied alien children
ABIS Automated Biometric Identification System
ADIT Alien Documentation, Identification and Telecommunication
APA Administrative Procedure Act
ASC Application Support Center
AWA Adam Walsh Child Protection and Safety Act of 2006
BIA Board of Immigration Appeals
BCR Biometrics Collection Rate
BLS U.S. Bureau of Labor Statistics
CBP U.S. Customs and Border Protection
CFRP Cuban Family Reunification Parole
CHRI Criminal History Record Information
CJIS FBI Criminal Justice Information Services
[[Page 49063]]
CNMI Commonwealth of the Northern Mariana Islands
CPI-U Consumer Price Index for All Urban Consumers
CPMS Customer Profile Management System
DACA Deferred Action for Childhood Arrivals
DHS Department of Homeland Security
DNA deoxyribonucleic acid
DoD U.S. Department of Defense
DOJ U.S. Department of Justice
DOS U.S. Department of State
EAD employment authorization document
ELIS Electronic Immigration System
EOIR Executive Office for Immigration Review
FBI Federal Bureau of Investigation
FWVP Filipino World War II Veterans Parole
FY Fiscal Year
GSA General Services Administration
HFRP Haitian Family Reunification Parole
HLA human leukocyte antigen
HSI Homeland Security Investigations
HSPD Homeland Security Presidential Directive
ICE U.S. Immigration and Customs Enforcement
IDENT Automated Biometric Identification System
IdHS Identity History Summary
IIRIRA Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IMBRA International Marriage Broker Regulation Act
INS Immigration and Naturalization Service
IRIS Immigration Records and Identity Services Directorate
LPR lawful permanent resident
INA Immigration and Nationality Act
NASS National Appointment Scheduling System
NATO North Atlantic Treaty Organization
NEPA National Environmental Policy Act
NGI Next Generation Identification
NPD National Production Dataset
NPRM Notice of Proposed Rulemaking
NTA Notice to Appear (issued to initiate removal proceedings under
INA sec. 240)
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OPQ Office of Performance and Quality
PRA Paperwork Reduction Act of 1995
RAIO Refugee, Asylum, and International Operations
RFA Regulatory Flexibility Act of 1980
RIA regulatory impact analysis
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SEVP Student and Exchange Visitor Program
TPS Temporary Protected Status
UAC Unaccompanied Alien Children
UMRA Unfunded Mandates Reform Act of 1995
USCIS U.S. Citizenship and Immigration Services
VAWA Violence Against Women Act
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments and arguments on
all aspects of this proposed rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this proposed rule. Comments must be submitted in English,
or an English translation must be provided. Comments that will provide
the most assistance to USCIS will reference a specific portion of the
proposed rule, explain the reason for any recommended change, and
include data, information, or authority that support such recommended
change. Comments submitted in a manner other than the one listed above,
including emails or letters sent to DHS or USCIS officials, will not be
considered comments on the proposed rule and may not receive a response
from DHS.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2025-0205 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Docket: For access to the docket and to read background documents
or comments received, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>, referencing DHS
Docket No. USCIS-2025-0205. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
II. Executive Summary
DHS proposes to amend its regulations concerning the use and
submission of biometrics in the administration and enforcement of
immigration and naturalization laws and the adjudication of any
immigration application, petition, or benefit or any other related
request or collection of information. This section summarizes the
changes made by this proposed rule, which are described in detail in
section IV of this preamble.
A. Purpose and Summary of the Regulatory Action
As detailed in section III.A of this preamble, DHS has broad
statutory authority \1\ to collect or require submission of biometrics
from: applicants, petitioners, and beneficiaries for immigration
benefits; any individual filing or associated with a benefit request,
other request, or collection of information; and from aliens upon their
arrest for purposes of processing, care, custody, and initiation of
removal proceedings.<SUP>2 3 4</SUP> DHS currently collects, stores,
and uses biometrics for various purposes, including but not limited to:
conducting background checks to determine eligibility for a benefit
request, other request, or collection of information; document
production associated with an application, petition, or other request
for certain immigration
[[Page 49064]]
and naturalization benefits or other actions; and performing other
functions related to administering and enforcing the immigration and
naturalization laws, such as identity verification upon issuance of a
Notice to Appear (NTA) for removal proceedings undersection 240 of the
INA, 8 U.S.C. 1229a.
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\1\ The applicable statutory sections of each provision are
explained in the body of the preamble which follows this Executive
Summary.
\2\ This rule proposes changes to the regulations governing
collection of biometrics for benefit and other requests administered
by USCIS. It also impacts U.S. Customs and Border Protection (CBP)
and U.S. Immigration and Customs Enforcement (ICE), which have
immigration enforcement responsibilities that may require
collection, use, and storage of biometrics and use of USCIS systems
or forms for which biometrics would be required by this rule. For
example, ICE, Student and Exchange Visitor Program (SEVP) uses USCIS
Form I-539, Application to Extend/Change Nonimmigrant Status, and
Form I-765, Application for Employment Authorization Document.
However, this rule generally does not propose to authorize CBP or
ICE to expand biometrics collections beyond either agency's
independent authorities, aside from authorizing the collection of
additional biometrics modalities and authorizing the expansion of
CBP and ICE authority to collect biometrics from aliens under the
age of 14, within their respective statutorily authorized mission
spaces. The applicable provisions are discussed further below.
\3\ On October 27, 2025, CBP published the final rule,
``Collection of Biometric Data from Aliens Upon Entry to and
Departure from the United States,'' 90 FR 48604 (Oct. 27, 2025) (CBP
Final Rule). DHS considered the CBP Final Rule during the drafting
of this NPRM and notes that the CBP Final Rule specifically amends
DHS regulations relating to aliens' photographs when entering or
exiting the United States. While the CBP Final Rule states that
exemptions in current biometrics collections based on age (i.e.,
under 14 and over 79) will continue to apply to biometrics other
than facial images, 90 FR at 48609, DHS is now proposing to amend
such exemptions for the reasons stated throughout this rule.Found 1
occurrence(s) in 1 file(s)
\4\ In this notice, the terms ``benefit request'' or ``other
request'' or ``collection of information'' refers to all requests
processed by USCIS, including those that do not meet the definition
of ``benefit request'' at 8 CFR 1.2 (``any application, petition,
motion, appeal, or other request relating to an immigration or
naturalization benefit''). For example, deferred action is solely an
exercise of prosecutorial discretion by DHS, whereby an alien can
request that DHS defer removal action for a certain period of time,
and not an immigration benefit. Accordingly, a request for deferred
action is not a ``benefit request,'' but is instead a request
processed by USCIS.
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DHS is precluded in many cases from approving, granting, or
providing immigration benefits to individuals with a record of certain
criminal offenses or administrative violations, or who may pose risks
to national security or public safety. Criminal histories are relevant
because they are used to determine eligibility for immigration benefits
and are part of the totality of the circumstances that USCIS considers
when making a discretionary determination. Therefore, DHS must include
national security considerations and criminal history background checks
in its adjudications. Several statutes authorize DHS to conduct
biometrics collections in relation to national security and public
safety purposes, as well as for document production.\5\ Additionally,
DHS is authorized to collect the biometrics of U.S. citizen and lawful
permanent resident petitioners of family-based immigrant and
nonimmigrant fianc[eacute](e) petitions to determine if a petitioner
has been convicted of certain crimes. Therefore, DHS requires a robust
system for biometrics collection, storage, and use related to
adjudicating immigration benefits and other requests and performing
other functions necessary for administering and enforcing immigration
and naturalization laws.
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\5\ See section III.A. of this preamble for a detailed
description of DHS's statutory authorities to collect biometrics.
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Current regulations also provide general authorities for the
collection of biometrics in connection with administering immigration
and naturalization benefits requests and in connection with
administering and enforcing immigration laws. For example, any
applicant, petitioner, sponsor, beneficiary, or individual filing a
benefit request, other request, or collection of information request
may be required to appear for biometrics collection. See 8 CFR
103.2(b)(9). DHS currently has authority to require an individual to
submit biometric information to conduct background and security checks
and perform other functions related to administering and enforcing
immigration laws. See 8 CFR 103.16(a).
The immigration benefit request adjudication process requires DHS
to verify the identity of an individual applying for or seeking to
receive any benefit and requires that national security and criminal
history background checks be conducted to determine if such an
individual is statutorily eligible for the benefit. In general,
adjudication of an immigration benefit request, other request, or
collection of information includes a review of the individual's current
immigration status, current and past immigration filings, and whether
previous benefits were granted or denied. Immigration laws preclude DHS
from granting many immigration and naturalization benefits to
individuals with certain criminal or administrative violations, or with
certain disqualifying characteristics, while also providing DHS
discretion in granting an immigration benefit in many instances. DHS
conducts checks to determine if an individual has a history that could
render him or her inadmissible or removable, including a criminal
record or association or involvement with human rights violations or
terrorist activities or organizations. The current DHS biometric
collection process for adjudication of immigration benefit requests or
other requests or collections of information often begins with the
collection of an individual's photograph, fingerprints, and signature
at an authorized biometrics collection site. Collections outside the
United States may be conducted on behalf of DHS by other federal
agencies.
While DHS has the authority to collect biometrics from any
applicant, petitioner, sponsor, beneficiary, requestor, or individual
filing or associated with a benefit request, other request, or
collection of information, or to perform other functions related to
administering and enforcing the immigration and naturalization laws,
submission of biometrics is currently only mandatory for certain
benefit requests and enforcement actions. For all other benefit
requests or other requests or collections of information and
enforcement actions, DHS has discretion, in accordance with its
statutory and regulatory authorities, to determine if the circumstances
of the specific request or enforcement action warrant the collection of
biometrics. If DHS determines that biometrics are needed in the
individual case, DHS issues a notice to the individual with
instructions for submitting biometrics and an explanation of the
general purposes for which they may be used.
DHS has determined that it is necessary to expand its routine
biometric collections to include individuals associated with
immigration benefit requests or other requests or collection of
information, and to perform other functions related to administering
and enforcing the immigration and naturalization laws, such as
verifying identity. Using biometrics for identity verification \6\ and
management will assist DHS's efforts to combat trafficking, confirm the
results of biographical criminal history checks, and deter fraud.
Therefore, DHS proposes in this rule that any applicant, petitioner,
sponsor, supporter, derivative, dependent, beneficiary, or individual
filing or associated \7\ with a benefit request or other request or
collection of information,\8\ including U.S. citizens, U.S. nationals
and lawful permanent residents, and without regard to age, must submit
biometrics unless DHS otherwise exempts the requirement. For the same
reasons, the proposed rule proposes to authorize DHS to require
biometrics for all aliens subject to section 240 removal proceedings,
as well as aliens processed through other removal pathways including
expedited removal under section 235 of the INA, 8 U.S.C. 1225, and
aliens being processed for removal under section 238(b) of the INA, 8
U.S.C. 1228(b). This rule also proposes that DHS may collect biometrics
from aliens subject to reinstatement of a prior removal order under
section 241 of the INA, 8 U.S.C. 1231, and aliens subject to removal
under the Visa Waiver Program, INA sec. 217, 8 U.S.C. 1187.
Additionally, DHS proposes to remove the age restrictions for
biometrics submission when issuing an NTA for section 240 removal
proceedings or when processing aliens for removal
[[Page 49065]]
through other pathways. See proposed 8 CFR 236.5.
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\6\ See <a href="https://www.dhs.gov/biometrics">https://www.dhs.gov/biometrics</a> (last updated Jan. 24,
2025).
\7\ By ``associated,'' DHS means a person with substantial
involvement or participation in the immigration benefit request,
other request, or collection of information, such as a named
derivative, beneficiary, petitioner's signatory, sponsor, or co-
applicant. The terms ``file,'' ``submit,'' ``associated with'' or
variations thereof, as used throughout this rule, do not relate to
attorneys and accredited representatives, although attorneys and
accredited representatives may file or submit a request on behalf of
a client. DHS, at this time, is not proposing biometrics submission
by attorneys and accredited representatives.
\8\ A ``collection of information'' includes forms filed with
USCIS that do not request an immigration benefit, but which provide
information, typically in support of someone who is requesting an
immigration benefit. For example, certain immigration benefits
require proof of sufficient financial resources or support (such as
parole based on urgent humanitarian reasons or significant public
benefit) for the duration of the alien's stay in the United States.
In such instances, Form I-134, Declaration of Financial Support, is
filed by an individual who agrees to provide financial support to
the alien who requested the benefit, but the supporter is not
requesting a benefit.
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The purpose of this rule is to establish a standard and provide
notice that every individual filing or associated with a benefit
request, other request, or collection of information is subject to the
biometrics requirement, unless DHS exempts a category of requests or
individuals, or a specific individual. This includes any alien
apprehended, arrested or encountered by DHS in the course of performing
its functions related to administering and enforcing the immigration
and naturalization laws of the United States. As it relates to benefit
requests, other requests and collections of information, notice of this
requirement will be added in the form instructions for the relevant
forms, as needed.
Under this proposed rule, if finalized, DHS will use biometrics for
identity management in the immigration lifecycle,\9\ which will assist
DHS in transitioning to a person-centric model to organize and manage
its records, manage unique identities, and verify immigration records.
Critically, it will also allow DHS to reduce reliance on biographic
data for identity management. In general, biographic data is associated
with an individual and is not intrinsically unique to that individual,
at least as such biographic data relates to identification. For
example, thousands of individuals may share the same name.
Additionally, biographic data possesses inherent characteristics that
limit its suitability for identity management, such that it can be
changed over time. A person's name could have multiple spellings, a
name can be legally changed, the digits in a date of birth could be
transposed, and any identifier could relate to multiple individuals.
Exclusive reliance on biographic data may result in errors,
misidentification of individuals, and the potential that immigration
benefits may be granted to ineligible or incorrect individuals or
imposters.
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\9\ Immigration lifecycle refers to the processing period
between an alien's first benefit request, other request, or
collection of information submission, encounter, or apprehension,
through naturalization or removal.
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In contrast to biographic data, using biometrics for identity
verification and management in the immigration lifecycle will help
ensure that an individual's immigration records pertain only to that
specific individual. Biometrics-based identity management will also
help DHS locate, maintain, and update the individual's immigration
status, previously submitted identity documentation, as well as certain
biographic data. DHS proposes to collect biometrics at any age to
ensure the immigration records created for children can be related to
their adult records later, and to help combat child trafficking,
smuggling, and labor exploitation by facilitating identity
verification, while also confirming the absence of criminal history or
associations with terrorist organizations or gang membership.
In sum, the changes proposed in this rule will help DHS transition
towards a biometric based system for identity verification and
management. This will ensure that DHS can carry out its various
responsibilities under the INA related to the administration and
enforcement of the immigration and naturalization laws. It will also
help ensure that DHS grants immigration-related benefits only to
individuals who are statutorily eligible to receive them and will
enable DHS to more effectively enforce the immigration laws against
aliens who are potentially subject to removal.
DHS also plans to implement a program of continuous immigration
vetting and require that aliens receive continued and subsequent
evaluation to ensure they continue to present no risks to national
security or public safety subsequent to their entry. This rule proposes
that any individual alien who is present in the United States following
an approved immigration benefit may be required to submit biometrics--
without regard to any immigration filing--until they obtain or acquire
U.S. citizenship. The rule further proposes that a U.S. citizen, U.S.
national or lawful permanent resident may be required to submit
biometrics if he or she filed a benefit request, other request, or
collection of information in the past and it was either reopened or the
previous approval is relevant to a benefit request, other request, or
collection of information currently pending with DHS. The changes to
the use and collection of biometrics and expanded scope of populations
also are pertinent to CBP, ICE, and the Executive Office for
Immigration Review (EOIR), a component of the U.S. Department of
Justice (DOJ), given that immigration judges and the Board of
Immigration Appeals (BIA) are prohibited from granting relief or
protection from removal to an alien 14 years of age or older unless an
ICE attorney reports that all required ``identity, law enforcement, or
security investigations or examinations'' have been completed. See INA
sec. 262, 8 U.S.C. 1302, and 8 CFR 1003.1(d)(6) and 1003.47(g) (related
to fingerprinting biometrics specifically). ICE attorneys rely, in
part, on USCIS' biometric collection to confirm and report this.
Further, DHS has leeway in terms of which background and security
checks are performed in this regard. See ``Background and Security
Investigations in Proceedings Before Immigration Judges and the Board
of Immigration Appeals,'' 70 FR 4743, 4744 (2005) (``There is no need
for this rule to specify the exact types of background and security
checks that DHS may conduct with respect to aliens in proceedings.'').
As a result, this rule will help to ensure that ICE, immigration
judges, and the BIA are timely and fully informed of the results of all
identity, law enforcement, and security investigations prior to EOIR
granting an alien relief or protection from removal.
DHS recognizes that it is removing the age restrictions associated
with biometrics collection in DHS regulations, without DOJ making
conforming changes and removing the age restrictions associated with
biometrics collection in DOJ EOIR regulations. DHS and DOJ have
disparate authorities and processes for collecting biometrics.
Notwithstanding any conflict between DHS and DOJ authorities, DHS
regulatory provisions control all DHS biometrics collections, since DHS
can only collect biometrics under its own authorities, even if the
benefit is pending with DOJ. DHS collects biometrics on behalf of DOJ
as a courtesy to DOJ because of the existence of DHS/USCIS Application
Support Centers. However, DHS is not authorized to operate or collect
biometrics under DOJ authorities, and the rule does not seek to change
that. Each Department is bound by their respective authorities and
regulations. Noting that the expansion of the DHS regulations to
encompass a broader scope does not constrain, supersede, or diminish
the authority or application of the DOJ regulations in any respect. The
agencies will continue to resolve any conflicts that result from
disparate practices related to the collection and submission of
biometrics through operational guidance and intra-governmental
agreements when appropriate.
DHS anticipates that by removing age restrictions on the collection
of biometrics this rule will enhance the ability of ICE and CBP to
identify fraudulently claimed genetic relationships at the border and
upon encounter.\10\ Under the current interpretation of the Flores
Settlement Agreement, DHS is required to release
[[Page 49066]]
or transfer to a licensed facility as expeditiously as possible any
minor apprehended with a parent or legal guardian. This has led in the
past to the practice of DHS releasing families together if their cases
could not be fully resolved within approximately 20 days.\11\ This has
encouraged the proliferation of fraudulent family unit schemes wherein
unrelated adults and children claim genetic relationships in order to
secure prompt release into the United States. Alien smuggling
organizations are aware of this loophole and are taking full advantage
of it, placing children into the hands of adult strangers, so they can
pose as families and be released from immigration custody after
crossing the border, creating another safety issue for these
children.\12\ DHS's ability to collect biometrics, including DNA,
regardless of a minor's age, will allow DHS to accurately prove or
disprove claimed genetic relationships among apprehended aliens and
ensure that unaccompanied alien children (UAC) are properly identified
and cared for.\13\ Under the authority granted by the proposed rule, if
finalized, individual DHS components may establish an age threshold as
necessary for biometric collection specific to a particular component's
operational needs.
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\10\ To clarify, DHS is not proposing mandatory DNA collection
at U.S. ports of entry.
\11\ Flores v. Reno, 85-4544-RJK (C.D. CA, 1997) stipulated
settlement agreement.
\12\ See <a href="https://www.dhs.gov/archive/news/2018/02/15/unaccompanied-alien-children-and-family-units-are-flooding-border-because-catch-and">https://www.dhs.gov/archive/news/2018/02/15/unaccompanied-alien-children-and-family-units-are-flooding-border-because-catch-and</a> (last updated Apr. 10, 2025).
\13\ DHS, ``Privacy Impact Assessment for the Rapid DNA
Operational Use,'' DHS/ICE/PIA-050 (June 25, 2019), <a href="https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-rapiddna-june2019_3.pdf">https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-rapiddna-june2019_3.pdf</a>.
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Under this proposed rule, DHS may also require, request, or accept
raw DNA (deoxyribonucleic acid) or DNA test results, which include a
partial DNA profile,\14\ as evidence of genetic relationship, to
determine eligibility for immigration and naturalization benefits or to
perform any other functions necessary for administering and enforcing
immigration and naturalization laws. Where evidence of a relationship
is required, this rule proposes to grant DHS express authority to
require, request, or accept raw DNA or DNA test results (which include
a partial DNA profile) from relevant parties such as applicants,
petitioners, derivatives, dependents, and beneficiaries, to prove or
disprove the existence of a claimed, or unclaimed, genetic relationship
or biological sex.\15\ DHS recognizes that there are qualifying family
members, such as adopted children, who do not have a genetic
relationship to the individual who makes an immigration benefit request
on their behalf. To the extent the rule discusses using DNA evidence to
establish claimed or unclaimed relationships in support of certain
immigration benefit requests, it refers only to genetic relationships
that can be demonstrated through DNA testing. Current regulations
generally require documentary evidence such as marriage and birth
certificates, and secondary evidence such as medical records, school
records, religious documents, and affidavits to support claims based on
familial relationships. DHS currently does not have regulatory
provisions in place to require, request, or accept DNA testing results
to prove or disprove the existence of claimed or unclaimed genetic
relationships, but because documentary evidence may be unreliable or
unavailable, in some situations, individuals are allowed to voluntarily
submit DNA test results. Under this rule, DHS may expressly require,
request, or accept raw DNA or DNA test results which include a partial
DNA profile to prove or disprove the existence of a claimed, or
unclaimed, genetic relationship.
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\14\ See Section IV--Discussion of Proposed Changes, Section B
for a discussion of ``partial DNA profile.''
\15\ This proposed rule is not concerned with, and creates no
authority to limit, DNA sample collection required by 34 U.S.C.
40702(a)(1)(A) and 28 CFR 28.12 from individuals who are arrested,
facing charges, or convicted and from non-United States persons who
are detained under the authority of the United States.
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Similarly, under this rule, DHS may expressly require, request, or
accept raw DNA or DNA test results (which include a partial DNA
profile) as evidence to determine eligibility for immigration and
naturalization benefits or to perform any other functions necessary for
administering and enforcing immigration and naturalization laws. For
example, DHS may request DNA evidence to prove or disprove an
individual's biological sex in instances where that determination will
impact benefit eligibility. DHS currently does not have regulatory
provisions in place to require, request, or accept DNA testing results
for such purposes, but because documentary evidence may be unreliable
or unavailable, in some situations, individuals may voluntarily submit
DNA test results.
DHS proposes to collect, treat, and locate raw DNA (the physical
sample taken from the applicable individual) that is taken as a
biometric modality distinct from the other biometric modalities it is
authorized to collect, at a DHS or DHS-authorized facility and further
proposes to not handle, store or share any raw DNA for any reason
beyond the original purpose of submission (e.g., to prove or disprove
the existence of a claimed or unclaimed genetic relationship or
biological sex), unless DHS is required to share by law.\16\ DNA test
results, which include a partial DNA profile, like other evidence,
becomes part of the record, and DHS will store and share DNA test
results for adjudication purposes, including to determine eligibility
for immigration benefits or to perform any other functions necessary
for administering and enforcing immigration and naturalization laws, to
the extent permitted by law.\17\
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\16\ See <a href="https://www.uscis.gov/tools/reports-and-studies/understanding-our-data">https://www.uscis.gov/tools/reports-and-studies/understanding-our-data</a> (last updated Dec. 2, 2020).
\17\ Id.
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In recent years, government agencies have grouped together
identifying features and actions, such as fingerprints, photographs,
and signatures under the broad term, biometrics. The terms, biometric
``information,'' ``identifiers,'' or ``data,'' are used to refer to all
of these modalities, including additional features such as ocular
image, palm print, voice print, and DNA. As a result, DHS has adopted
the practice of referring to fingerprints, photographs, and signature
collectively as ``biometrics,'' ``biometric information,'' or
``biometric services.'' With the exception of fingerprints, most laws
on the subject do not specify individual biometric modalities such as
ocular image, palm print, voice print, DNA, and/or any other biometric
modalities that may be collected from an individual in the future. DHS
is proposing to update the terminology in the applicable regulations to
uniformly use the term ``biometrics.'' DHS seeks to utilize a single,
inclusive term comprehensively throughout regulations and form
instructions. DHS proposes to define the term ``biometrics'' to clarify
and fully explain its authority to collect more than just
``fingerprints'' in connection with administering and enforcing the
immigration and naturalization benefits or other services, and to
expressly define ``biometrics'' to include a wider range of modalities
than just fingerprints, photographs and signatures. DHS proposes to
define the term ``biometrics'' to mean ``measurable biological
(anatomical, physiological or molecular structure) or behavioral
characteristics of an individual,'' and include a list of modalities of
biometric collection. See proposed 8 CFR 1.2. DHS
[[Page 49067]]
proposes the following biometrics as authorized biometric modalities
that DHS may request, require, or accept from individuals in connection
with services provided by DHS and to perform other functions related to
administering and enforcing the immigration and naturalization laws:
<bullet> Facial imagery (digital image, specifically for facial
recognition and facial comparison);
<bullet> Prints (including fingerprints and palm prints);
<bullet> Signature (handwritten);
<bullet> Ocular imagery (to include iris, retina and sclera);
<bullet> Voice (voice print, vocal signature, and voice
recognition); and/or
<bullet> DNA (including partial DNA profile).
The proposed definition of biometrics would authorize the
collection of specific biometric modalities and the use of biometrics
for: identity enrollment, verification, and management in the
immigration lifecycle; national security and criminal history
background checks to support determinations of eligibility for
immigration and naturalization benefits; the production of secure
identity documents; to prove or disprove the existence of a claimed or
unclaimed genetic relationship; establish biological sex (in
circumstances when needed to determine benefit eligibility) and to
perform other functions related to administering and enforcing the
immigration and naturalization laws. To conform to the proposed
definition, DHS proposes to remove individual references to
``fingerprints,'' ``photographs,'' and ``signatures'' in various
provisions of its regulations and replace them with the term
``biometrics.''
DHS has internal procedural safeguards to ensure technology used to
collect, assess, and store the differing modalities is accurate,
reliable, and valid.\18\ Further, as to any USCIS adjudication subject
to 8 CFR 103.2(b)(16), if a decision will be adverse to an applicant,
petitioner, or requestor, and is based on unclassified derogatory
information the agency considered, including information obtained
through biometrics, he or she shall be advised of that fact and offered
an opportunity to rebut the information. DNA, while a biometric, would
only be collected in limited circumstances, for example to prove or
disprove existence of a claimed, or unclaimed, genetic relationship or
biological sex, to determine eligibility for immigration and
naturalization benefits, or perform any other function necessary for
administering and enforcing immigration and naturalization laws.
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\18\ See <a href="https://www.dhs.gov/biometrics">https://www.dhs.gov/biometrics</a> (last updated Jan 24,
2025).
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DHS originally codified restrictions on the ages of individuals
from whom biometrics could be collected based on the Department
policies, practice, and on technological limitations. For biometrics
use to expand to allow for identity management and verification through
the entire immigration lifecycle, this rule would allow for biometric
collection from any individual, without age limitation. Therefore, DHS
proposes to remove all age limitations or restrictions on biometrics
collection from current regulations in the context of both immigration
benefit requests, other requests, or collection of information,
entering or exiting the United States, NTA issuance, and to perform
other functions related to administering and enforcing the immigration
and naturalization laws.
DHS also proposes to consolidate sections of 8 CFR providing what
USCIS can or will do with an immigration benefit request, other
request, or collection of information, when required biometrics are not
submitted and how biometrics appointments may be rescheduled. DHS is
clarifying that it may reschedule a biometrics appointment in its
discretion. In instances when an individual has informed DHS of an
address change prior to the biometrics appointment, and the individual
did not receive a notification of appointment to that new address,
USCIS will reschedule the appointment.
DHS also proposes to incorporate a new standard that must be met if
an individual seeks to reschedule a biometric services appointment.
Under the proposed rule, an individual may reschedule their biometric
services appointment one time prior to the date of their scheduled
biometric services appointment for any reason. However, after the first
reschedule, the individual must meet the standard of ``extraordinary
circumstances'' to justify rescheduling a subsequent biometrics
services appointment any additional times. DHS also proposes to apply
the ``extraordinary circumstances'' standard if the individual fails to
appear at any biometric services appointment that was not
rescheduled.\19\ DHS believes in most cases the current ``good cause''
standard in 8 CFR 103.2(b)(9)(ii) does not create a high enough
standard for rescheduling a biometrics appointment. The current ``good
cause'' standard allows appointments to be frequently rescheduled and
creates operational inefficiencies in the biometric submission process.
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\19\ Upon publication of this rule, USCIS will issue policy
guidance providing examples of ``extraordinary circumstances'' that
meet the standard for rescheduling a biometric services appointment.
USCIS similarly does not define the term ``good cause'' in the
current text of 8 CFR 103.2(b)(9) but has issued accompanying policy
guidance in the USCIS Policy Manual. See USCIS Policy Manual, Volume
1, Part C, Chapter 2--Biometrics Collection, A--Biometric Services
Appointments.
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DHS further proposes to define instances that justify USCIS
biometric reuse for an individual who may have a pending benefit
request, other request, or collection of information that requires
biometric submission and has previously submitted biometrics for
another benefit request, other request, or collection of information.
In those situations, USCIS must obtain a positive biometric-based
identity verification before reusing an individual's previously
submitted biometrics to process a benefit request, other request, or
collection of information. Identity verification based solely upon a
comparison of the individual's name or other non-unique biographic
identification characteristics or data, or combinations thereof, does
not constitute positive identity verification and will not be permitted
to justify biometric reuse.
DHS is also proposing to remove or replace language that applies to
paper filings with language that encourages electronic filing.
References to position titles, form numbers, mailing addresses, copies,
and office jurisdiction are proposed to be removed. In addition, DHS is
proposing to remove internal USCIS processes from the regulatory text.
DHS is also proposing to eliminate outdated requirements for submitting
photographs for certain immigration benefit requests. The photograph
submission and use requirements specified in the INA may be met by the
collection and storage of digital images.
DHS is also proposing to require biometrics from U.S. citizens,
U.S. nationals, or lawful permanent residents, including when they
submit a family-based visa petition. This will assist in compliance
with the Adam Walsh Child Protection and Safety Act of 2006 (AWA),\20\
which prohibits DHS from approving family-based immigrant visa
petitions and nonimmigrant fianc[eacute](e) visa petitions if the
petitioner has been convicted of certain offenses. In addition, the
International Marriage
[[Page 49068]]
Broker Regulation Act (IMBRA) \21\ provides that petitioners for an
alien fianc[eacute](e) or alien spouse must submit criminal conviction
information for certain crimes. The DHS proposal will allow DHS to
review a Federal Bureau of Investigation (FBI) report of the
petitioner's criminal history to comply with the AWA and IMBRA. The
proposed requirement would extend to family-based petitions for a
spouse, fianc[eacute](e), parent, unmarried child under 21 years of
age, unmarried son or daughter 21 years of age or over, married son or
daughter of any age, sibling, and any derivative beneficiary of an
immigrant or nonimmigrant visa based on a familial relationship.
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\20\ Public Law 109-248, section 402; 120 Stat. 587, 622 (July
27, 2006); INA secs. 204(a)(1)(A)(viii) and (B)(i)(I).
\21\ Violence Against Women and Department of Justice
Reauthorization Act of 2005 (VAWA 2005), Public Law 109-162, 119
Stat. 2960 (2006); and (VAWA 2013), Public Law 113-4, sections 807-
8, 127 Stat. 54, 112-17; 8 U.S.C. 1375a); INA secs. 214(d)(1) and
(3).
---------------------------------------------------------------------------
Consistent with this, DHS proposes to require that Violence Against
Women Act (VAWA) self-petitioners appear for biometric collection, and
to remove the language advising self-petitioners who have resided in
the United States for at least the 3-year period immediately preceding
the filing of the self-petition to submit police clearance letters as
evidence of good moral character, as well as the requirement that VAWA
self-petitioners submit an affidavit as primary evidence of their good
moral character. DHS will no longer need such police clearances or the
self-petitioner's affidavit because it will be able to obtain the self-
petitioner's criminal history using the submitted biometrics, reducing
the burden on both DHS and many self-petitioners.
VAWA self-petitioners are currently required to demonstrate that
they are persons of good moral character in order to be eligible for a
VAWA self-petition. USCIS generally looks at the 3-year period
immediately preceding the date the self-petition is filed, and may
consider any conduct, behavior, acts, or convictions. Good moral
character may be established by primary evidence, such as the self-
petitioner's affidavit and local police clearances, or state-issued
criminal background checks from each locality or state in the United
States where the self-petitioner has been physically present or resided
for 6 or more months during the 3 years before filing. While self-
petitioners are encouraged to submit primary evidence, when possible,
USCIS must consider any credible evidence relevant to the petition. DHS
proposes to require biometrics from VAWA self-petitioners to obtain the
self-petitioner's official FBI criminal history; support identity
enrollment, verification, and management in the immigration lifecycle;
and conduct national security and criminal history background checks.
The proposed change will reduce the evidence required to establish good
moral character for many self-petitioners. Law enforcement clearances
or background checks will be required for self-petitioners who resided
outside the United States or were physically present for 6 months or
more, during the 3-year period immediately preceding the filing of the
self-petition. DHS proposes to require the self-petitioner submit
arrest reports which occurred during the 3 years prior to filing the
self-petition, regardless of the petitioner residing or being
physically present in the jurisdiction for 6 or more months. In
addition, DHS proposes in certain cases to consider VAWA self-
petitioners' conduct beyond the 3 years immediately before filing where
earlier conduct is relevant to establishing the good moral character
for a VAWA self-petitioner. See proposed 8 CFR 204.2(c)(2)(v),
(e)(2)(v), and (j)(2)(v).
DHS further proposes to remove the automatic presumption of good
moral character for VAWA self-petitioners under 14 years of age and
require VAWA self-petitioners under 14 to submit biometrics like any
other VAWA self-petitioner. Similarly, DHS proposes to eliminate the
requirement that VAWA self-petitioners submit police clearance letters,
unless they lived outside the United States during the requisite
period. Adjudicators would assess good moral character based on the
applicant's criminal history, national security background check, and
any other credible and relevant evidence submitted. DHS also proposes
to amend 8 CFR 245.23(g) to refer to the relevant ``continuous period''
rather than ``continued presence,'' and to provide that USCIS would be
able to consider the applicant's conduct beyond the requisite period,
where earlier conduct is relevant to the applicant's moral character
and conduct during the requisite period does not reflect a reform of
character.
DHS also proposes to remove the presumption of good moral character
for T nonimmigrant adjustment of status applicants under 14 years of
age. The rule proposes that such applicants submit biometrics that
USCIS will use in the determination of good moral character and
provides USCIS with the authority to require additional evidence of
good moral character. See proposed 8 CFR 245.23(g). The proposed
changes would remove the superfluous need for police clearance letters
from T nonimmigrant adjustment applicants.
DHS proposes to continue its existing practice and collect
biometrics and perform background checks on U.S. citizens, lawful
permanent residents, and any other persons involved with an EB-5
regional center, new commercial enterprise or job-creating entity. See
INA sec. 203(b)(5)(H)(iii), 8 U.S.C. 1152(b)(5)(H)(iii). USCIS proposes
to also continue its existing practice to review the results of
national security and criminal history background checks to decide
whether such persons involved with such entities, and the entities
themselves, are bona fide and eligible to participate in the regional
center program. Id.
DHS also proposes to remove 8 CFR 216.4(b)(1), ``Authority to waive
interview,'' and 8 CFR 216.4(b)(2), ``Location of interview'' as they
apply to a joint petition to remove the conditional basis of lawful
permanent resident status filed by the alien and the alien's spouse. As
any decision to waive the mandatory interview is purely discretionary,
and 8 CFR 216.4(b)(1) simply reiterates this discretion, it serves no
purpose, especially since determining whether the eligibility
requirements for removal of conditions in 8 CFR 216.4(c) were
established is central to the adjudication of the petition itself.
Additionally, the limitation on who can conduct an interview and who
has jurisdiction over an interview created by 8 CFR 216.4(b)(2) is
unnecessary and creates operational restrictions that interfere with
USCIS' ability to adjudicate the Form I-751, Petition to Remove
Conditions on Residence. The decision to assign an interviewer and the
location of an interview is a purely operational and procedural
decision, and one that should be made upon the adjudicative priorities
and operational resources available to USCIS.
DHS does not plan to immediately expand all of its programs to
provide that all new biometrics modalities would be required of all
individuals as of the effective date of a potential final rule. Only
those revised forms that propose to add a particular biometric
collection or DNA submission requirement in conjunction with this rule
(as described in the Paperwork Reduction Act section of this preamble)
will be immediately subject to new biometrics, modalities, or DNA
requirements.\22\ DHS proposes that DHS component agencies may expand
or contract their biometrics submission requirements described within
this rule
[[Page 49069]]
in the future by notice in the Federal Register, updated form
instructions, or otherwise consistent with the Administrative Procedure
Act (APA) and the PRA.
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\22\ Under this proposed rule USCIS maintains the right to
request biometrics, as needed, via individualized notice to the
individual.
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USCIS is authorized to collect biometric services fees and has
generally incorporated the biometric services costs into most of the
underlying immigration benefit request fees for which biometric
services are applicable in its most recent rule addressing the USCIS
fee schedule (89 FR 6194, Jan. 31, 2024 (Fee Rule)).
In 2020, DHS previously published a similar Notice of Proposed
Rulemaking (NPRM) proposing to amend DHS regulations governing the use
and collection of biometrics in the enforcement and administration of
immigration laws (85 FR 56338, Sept. 11, 2020), however that NPRM was
later withdrawn in May 2021 consistent with E.O. 14012 (86 FR 8277,
Feb. 5, 2021), and the priorities of the administration at that time
(86 FR 24750, May 10, 2021). On January 20, 2025, E.O. 14012 was
rescinded by President Trump, and DHS intends to continue its previous
efforts to enhance biometric submission, while also ensuring that all
aliens seeking admission to the United States, or who are already in
the United States, are vetted and screened (E.O. 14159, 90 FR 8443,
Jan. 29, 2025; E.O. 14161, 90 FR 8451, Jan. 30, 2025).
B. Summary of Costs and Benefits
The proposed rule would enable DHS to conduct the administration
and adjudication of immigration benefit requests with increased
fidelity and is conducive to the evolution to a person-centric model
for organizing and managing its records, enhanced and continuous
vetting, and reduced dependence on paper documents, as is described
more fully in the preamble. DHS estimates that about 1.12 million more
biometrics submissions will be collected annually, and the resulting
biometrics-submitting population will increase from a current baseline
of 2.07 million to 3.19 million.
DHS estimates that the annual costs for individuals who will submit
biometrics under the proposed rule will be $231.5 million. This
includes costs to petitioners of family-based requests, costs to VAWA
self-petitioners and T nonimmigrant petitioners submitting evidence to
demonstrate good moral character, costs to potential persons involved
with regional centers, and fee costs incurred by Temporary Protected
Status (TPS) registrants and individuals in EOIR proceedings. DHS
estimates costs to the government of $55,040 for fees that the FBI will
collect for providing fingerprint-based Criminal History Record
Information (CHRI) checks prior to issuing NTAs. Combining the
biometrics portion, which includes the biometric services fees and fees
charged by the FBI related to CHRI checks (noted above), plus $57.1
million in the DNA submission costs, the total monetized costs of this
proposed rule will potentially be $288.7 million annually. To compare
costs over a 10-year period of analysis Fiscal Year (FY) 2026 through
FY 2035, DHS applies 3 percent and 7 percent discount rates to the
total estimated costs of the proposed rule. DHS estimates the 10-year
total costs of the proposed rule to be $2.5 billion discounted at 3
percent, and $2.0 billion discounted at 7 percent.
The proposed rule will benefit the public by reducing the
evidentiary burden of VAWA self-petitioners and T nonimmigrant
petitioners who will in most cases no longer have to gather evidence
such as police clearance reports and affidavits to demonstrate good
moral character. It will provide individuals requesting or associated
with immigration and naturalization benefits a more reliable system for
verifying their identity when submitting a benefit request. This will
limit the potential for identity theft while also reducing the
likelihood that DHS will be unable to verify an individual's identity
and consequently deny the benefit. DHS is unable to quantify this
benefit because it has no data on how often these events happen under
existing regulations. Increasing the types of biometrics collected will
allow for better identification of individuals because each modality
increases the unique physical, biological or behavioral characteristics
that USCIS can use to identify the individual.
Finally, the allowance of individuals to use DNA testing as
evidence to demonstrate the existence of a claimed genetic relationship
provides them the opportunity to demonstrate a genetic relationship
using quicker, less intrusive, and more effective technology than the
blood tests provided for in past regulations. See 8 CFR
204.2(d)(2)(vi). Similarly, the use of DNA test results as evidence to
establish biological sex will also allow applicants to provide proof
without the need to produce additional documentation such as birth
records, or other information.
The proposed rule will benefit the U.S. Government by providing it
with the necessary tools to tackle and limit identity fraud and improve
USCIS identity management systems. The proposed rule will enable DHS to
have more fidelity and efficiency in identity management in the
immigration lifecycle and vetting of individuals seeking certain
immigration and naturalization benefits. Expanding the population
subject to biometrics submission provides DHS with the ability to
better identify and limit fraud because biometrics comprise unique
physical or behavioral characteristics that are difficult to falsify
and are less likely to change over time the way biographical
information does in the majority of cases. Biometrics will also help to
reduce the administrative burden involved in identity verification and
the performance of criminal history checks, by reducing the need for
manual document review and name-based security checks. The proposed
rule will also enhance the U.S. Government's capability to identify
criminal activity and protect vulnerable groups by extending the
submission of biometrics to populations under certain benefit requests.
The removal of age restrictions and the collection of biometrics from
all aliens under the age of 14 will assist DHS in its mission to combat
human trafficking, child sex trafficking, forced labor exploitation,
and alien smuggling.
III. Background and Purpose
A. Legal Authority and Guidance for DHS Collection and Use of
Biometrics
As discussed in detail below in section IV of this preamble, DHS is
proposing to amend its regulations governing its use and collection of
biometrics by USCIS and other DHS components. In short, the key
proposed changes include:
<bullet> Requiring any individual filing or associated with an
immigration-related benefit request or other request adjudicated by
DHS, regardless of age, to appear for biometrics submission unless
exempted.
<bullet> Clarifying the purposes for which biometrics are
collected, stored, and utilized and when they can be reused, including
for enhanced and continuous vetting.
<bullet> Expanding biometrics collection authority upon alien
arrest or encounter.
<bullet> Defining the term ``biometrics'' as the measurable
biological (anatomical, physiological and molecular structure) or
behavioral characteristics of an individual. Modalities meeting this
definition of biometrics include but are not limited to DHS-approved:
facial imagery (digital image, specifically for facial recognition and
facial comparison), prints (including fingerprints and palm prints),
signature (handwritten), ocular imagery (to include iris, retina, and
sclera), voice (including voice print, vocal signature,
[[Page 49070]]
and voice recognition), and DNA (partial DNA profile).
<bullet> Specifying that DHS may require, request, or accept the
submission of raw DNA or DNA test results to prove or disprove the
existence of a claimed or unclaimed genetic relationship or as evidence
of biological sex when a relationship or biological sex is relevant to
an individual's statutory eligibility for an immigration-related
benefit.
<bullet> Using biometrics for VAWA self-petitioners and T
nonimmigrant status applicants for assessing good moral character; and
<bullet> Establishing an ``extraordinary circumstances'' standard
to govern an individual's request to reschedule a biometric services
appointment in certain circumstances, or when an individual fails to
appear for appointment.
DHS has broad statutory authority under the INA to make these
proposed changes. First, INA sec. 103(a)(1), 8 U.S.C. 1103(a)(1),
provides DHS with expansive authority to administer and enforce the
nation's immigration and naturalization laws, and INA sec. 103(a)(3), 8
U.S.C. 1103(a)(3), provides the Secretary of Homeland Security (``the
Secretary'') with the authority to issue forms, regulations,
instructions, other papers, and perform such other acts the Secretary
deems necessary to carry out DHS's functions under the INA. See also 6
U.S.C. 202 (authorities of the Secretary). Under the INA, DHS, through
USCIS, has authority to adjudicate most immigration-related
benefits,\23\ and DHS components including ICE and CBP have authority
related to the apprehension, inspection and admission, detention, and
removal of aliens encountered in the interior of the United States or
at or between the U.S. ports of entry.\24\ Accordingly, the Secretary
has broad authority to issue regulations necessary to carry out DHS's
functions related to immigration benefits and enforcement of the
immigration laws. Establishing and verifying an individual's identity
using biometrics falls within this authority.
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\23\ Section 415(b) of the Homeland Security Act of 2002
(``HSA''), Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 271(b)
transferred authority from DOJ to DHS to adjudicate most
immigration-related benefits under INA, and charged USCIS, under the
direction of the Secretary and the Director of USCIS with exercising
this function. See also DHS, ``Delegation to The Bureau of
Citizenship and Immigration Services,'' Delegation of Authority
0150.1, <a href="https://www.hsdl.org/?view&did=234775">https://www.hsdl.org/?view&did=234775</a>.
\24\ See INA secs. 235, 236, 241, 8 U.S.C. 1225, 1226, 1231.
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Section 287(b) of the INA, 8 U.S.C. 1357(b), also provides DHS with
authority for this proposed rule. That statute provides DHS with broad
discretion and authority to ``take and consider evidence concerning the
privilege of any person to enter, reenter, pass through, or reside in
the United States, or concerning any matter which is material or
relevant to the enforcement of this chapter and the administration of
the Service.'' \25\ Id. DHS's authority to adjudicate benefits under
the INA necessarily includes an obligation to ensure that benefits are
granted only to those individuals who are statutorily eligible and
warrant a favorable exercise of discretion. If finalized, this proposed
rule would enhance DHS's ability to take and use evidence, through
biometrics, to better ensure that USCIS grants benefits only to
eligible individuals and identifies criminal or other threat actors
attempting to obtain immigration benefits.
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\25\ Prior to the HSA, the legacy Immigration and Naturalization
Service (``INS'') administered the provisions of the INA related to
immigration enforcement and benefits adjudication. In 2002, Congress
abolished the INS and transferred these functions to the then-newly
created DHS. By operation of the HSA, certain references to the
``Attorney General'' and the ``Service'' in the INA are understood
to refer to the ``Secretary'' and ``DHS''. HSA 1517, 6 U.S.C. 557.
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As explained below in section IV of the preamble, this proposed
rule, if finalized, would allow DHS to collect and use biometrics more
robustly to help verify and manage an individual's identity to deter
fraud and provide DHS with increased fidelity in benefits
adjudications. It would also enhance DHS's ability to complete
background, criminal history, and other immigration history checks
necessary to adjudicate certain benefits consistent with law. The
expanded use of DNA would enable DHS to confirm or non-confirm
eligibility for certain family-based immigration-benefit requests where
relevant. This rule, if finalized, would also support DHS's efforts to
use biometrics more robustly through enhanced and continuous vetting to
ensure that aliens who have been granted benefits under the INA should
continue to have the ``privilege'' of ``residing'' in the United States
and are not a risk to national security or the public safety. It would
also support DHS's ability to collect and use or reuse biometrics to
establish identity throughout the immigration lifecycle which will
increase the effective and efficient ``administration'' of DHS
functions related to benefits adjudications. Therefore, this proposed
rule fits within the authority granted under INA sec. 287(b), 8 U.S.C.
1357(b).
For similar reasons, INA sec. 235(d)(3), 8 U.S.C. 1225(d)(3),
provides additional authority for this proposed rule. This statute
provides that the Secretary and immigration officers shall:
have power . . . to take and consider evidence of or from any person
touching the privilege of any alien or person he believes or
suspects to be an alien to enter, reenter, transit through, or
reside in the United States or concerning any matter which is
material and relevant to the enforcement of this chapter and the
administration of the Service.
This statute, in addition to the other statutes discussed above,
provides authority to collect biometrics from all inadmissible and
deportable aliens, regardless of age, that are subject to section 240
removal proceedings or other proceedings under INA secs. 235 (expedited
removal) and 238(b) (aggravated felon removal), 8 U.S.C. 1225, 1238(b),
in addition to certain other removable aliens, as proposed in this
rule.
Accordingly, DHS is proposing to issue this regulation pursuant to
the Secretary's broad authority under INA sec. 103(a), 8 U.S.C.
1103(a), to issue regulations necessary to carry out DHS's various
functions and authorities under the INA, including under INA secs.
287(b) and 235(d)(3), 8 U.S.C. 1357(b) and 1225(d)(3), and the various
statutes in the INA related to benefits administered and adjudicated by
DHS.
1. Background Checks
In addition to DHS's broad authorities discussed above, various
provisions of the INA governing immigration benefits impose an
obligation on USCIS to confirm that an alien has not been convicted of
a disqualifying offense and does not pose a threat to national security
or public safety. Indeed, DHS is precluded in many cases from
approving, granting, or providing immigration benefits to aliens with a
record of certain criminal offenses or administrative violations.\26\
Whether granting a benefit is discretionary or not, criminal histories
are relevant because they are used to determine eligibility for
benefits and are part of the totality of the circumstances that USCIS
considers when making a discretionary determination. Additionally, DHS
is mandated to protect the American public from ``aliens who intend to
commit terrorist attacks, threaten our national security, espouse
hateful ideology, or otherwise exploit the immigration laws for
malevolent purposes'' and to ``vet and screen to the maximum degree
possible all aliens
[[Page 49071]]
who intend to be admitted, enter, or are already inside the United
States.'' See E.O. 14161 secs. 1(a) and 2(a), 90 FR 8451, (Jan. 20,
2025). Therefore, DHS adjudications must include national security
considerations and criminal history background checks.
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\26\ DHS would like to note that limitations on biometric
collection or use in this proposed rule would not impact existing
law enforcement authorities or other national security or
intelligence gathering activities.
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For example, one statute precludes the filing of a family-based
immigrant petition by someone who has been convicted of a ``specified
offense against a minor.'' See INA sec. 204(a)(1)(A)(viii), 8 U.S.C.
1154(a)(1)(A)(viii). The criminal and security-related grounds of
inadmissibility found in INA secs. 212(a)(2) through (3), 8 U.S.C.
1182(a)(2) through (3), apply to many benefits, such as adjustment to
lawful permanent resident status, refugee status, and TPS. The INA
provides that refugee applicants must be admissible as immigrants and
the criminal, security, and terrorism-related grounds of
inadmissibility apply to refugee applicants. See INA sec. 207(c)(1), 8
U.S.C. 1157(c)(1); INA sec. 212, 8 U.S.C. 1182. The INA provides that
asylum may be granted on a discretionary basis. See INA sec.
208(a)(1)(A), 8 U.S.C. 1158(a)(1)(A). It provides that asylum
applicants are subject to mandatory criminal and security bars. See INA
sec. 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A). Sections of the INA apply
the criminal, security, and terrorism-related bars to TPS applicants,
including the mandatory asylum bars above. See INA secs.
244(c)(2)(A)(iii) through (B), 8 U.S.C. 1254a(c)(2)(A)(iii) through
(B). Various INA sections require that adjustment of status applicants
be admissible in order to qualify. See, e.g., INA secs. 245(a)(2) and
209(b)(5), 8 U.S.C. 1255(a)(2) and 8 U.S.C. 1159(b)(5). The INA also
provides a good moral character requirement for any applicant to be
naturalized. See INA sec. 316(a)(3), 8 U.S.C. 1427(a)(3).
As discussed further below in section III.B. of this preamble,
USCIS has long required aliens and certain other individuals associated
with benefits applications to submit certain biometrics. USCIS needs
these biometrics to run background checks to verify that an individual
is not statutorily ineligible for the requested benefit and to protect
national security and public safety. This proposed rule, if finalized,
would enhance DHS's ability to establish an individual's identity
through required biometrics collections and expanded modalities, which
in turn will increase USCIS' ability to run background checks more
quickly and with greater accuracy as discussed below.
Other statutes explicitly authorize DHS to conduct biometric
services in relation to national security and public safety purposes.
For example, Congress directed in 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.
354 (2001), reauthorized by Public Law 114-23, 129 Stat. 268 (2015)
(codified at note to 8 U.S.C. 1365a, that ``biometric technology''
should be utilized in the development of the integrated entry-exit
system originally mandated by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Public Law 104-208, 110
Stat. 3009 (1996) (codified at 8 U.S.C. 1365a). The Intelligence Reform
and Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat.
3638 (2004) (codified as amended at 8 U.S.C. 1365b), required the
completion of a biometric data system to facilitate efficient
immigration benefits processing and to protect the United States by
preventing the entry of terrorists. These statutes reflect that
Congress has recognized the importance and value of biometrics to the
administration and enforcement of immigration laws, including to make
the process of identifying aliens more efficient and accurate, and to
protect national security. Although the primary focus of this proposed
rule is biometrics collection and use for immigration-related benefits
and processes, the rule is consistent with these overall goals. For
USCIS, any limitations on the collection or use of biometrics in this
proposed rule does not impact DHS law enforcement authorities or other
national security or intelligence gathering activities.
Background checks are also required by EOIR regulation for aliens
who apply for relief and protection in removal proceedings.
Specifically, immigration judges and the BIA are prohibited from
granting relief and protection to an alien unless an ICE attorney
reports that all required ``identity, law enforcement, or security
investigations or examinations'' have been completed. See 8 CFR
1003.1(d)(6) and 1003.47(g). Indeed, as pertaining to asylum
applications, there is a statutory basis for such background checks as
well. See INA sec. 208(d)(5)(A)(i), 8 U.S.C. 1158(d)(5)(A)(i); See also
8 CFR 1208.10. To the extent that any controversy may arise
interpreting DHS and DOJ regulations regarding the removal of age
restrictions for biometrics collection, DHS is not authorized to
operate or collect biometrics under DOJ authorities, and this rule does
not seek to change that. Each department is bound by their respective
regulations. The agencies will continue to resolve any conflicts that
result from disparate practices related to the collection and
submission of biometrics through operational guidance and intra-
governmental agreements when appropriate.
2. Secure Document Production
Still other statutes require the collection of biometrics for
secure document production. For example, photographs are required by
statute to create certificates of naturalization. See INA sec. 333(a),
8 U.S.C. 1444(a). Additionally, an alien granted asylum will be granted
an employment authorization document (EAD) that shall at a minimum
contain the fingerprint and photograph of such alien. See 8 U.S.C.
1738. Relatedly, the Enhanced Border Security and Visa Entry Reform Act
of 2002 (Border Security Act), Public Law 107-173, 116 Stat. 543
(2002), requires that DHS issue aliens machine-readable, tamper-
resistant visas and other travel and entry documents using biometric
identifiers. See 8 U.S.C. 1732(b)(1).
3. Biometric Collection From U.S. Citizens, U.S. Nationals, and Lawful
Permanent Residents
DHS is also authorized to collect the biometrics of U.S. citizens,
U.S. nationals and lawful permanent resident petitioners of family-
based immigrant petitions, and U.S. citizen petitioners of nonimmigrant
fianc[eacute](e) petitions, to determine if a petitioner has been
convicted of certain crimes pursuant to the AWA, Public Law 109-248,
120 Stat. 587 (2006) (codified as amended in scattered sections of 18
and 42 U.S.C.) See INA secs. 402(a) and (b) (applicable immigration
provisions), and IMBRA, Public Law 109-162, 119 Stat. 2960 (2006)
(codified as amended at 8 U.S.C. 1375a). The AWA:
<bullet> Prohibits U.S. citizens, U.S. nationals and lawful
permanent residents who have been convicted of any ``specified offense
against a minor'' from filing a family-based immigrant visa petition on
behalf of any beneficiary, unless the Secretary determines, in his or
her sole and unreviewable discretion, that the petitioner poses ``no
risk'' to the beneficiary. INA secs. 204(a)(1)(A)(viii)(I) and
(B)(i)(II); 8 U.S.C. 1154(a)(1)(A)(viii)(I) and (B)(i)(II).
<bullet> Renders ineligible to file ``K'' nonimmigrant
fianc[eacute](e) petitions those U.S. citizens convicted of such
offenses, unless the Secretary determines, in his or her sole and
unreviewable discretion,
[[Page 49072]]
that the petitioner poses ``no risk'' to the fianc[eacute](e)
beneficiary. INA sec. 101(a)(15)(K), 8 U.S.C. 1101(a)(15)(K).
Independent of the AWA, USCIS is also required to disclose
information regarding certain violent arrests and convictions for some
U.S. citizen petitioners who file K-visas for fianc[eacute]s or spouses
in accordance with IMBRA, 8 U.S.C. 1375a.
4. Required Biometric Collections
Several sections of the INA also require DHS to collect certain
biometrics from certain aliens for specific purposes. For example:
<bullet> INA sec. 203(b)(5)(H)(iii), 8 U.S.C. 1153(b)(5)(H)(iii),
requires the Secretary to collect ``fingerprints or other biometrics''
from certain purposes related to the EB-5 visa category, specifically
the regional center program.
<bullet> INA secs. 333 and 335, 8 U.S.C. 1444 and 1446, require the
submission of photographs and a personal investigation before an
application for naturalization, citizenship or other similar requests
may be approved.
<bullet> INA sec. 262(a) of the INA, 8 U.S.C. 1302(a), generally
requires aliens aged 14 and older, in the United States, to register
with DHS and be fingerprinted, and INA sec. 264, 8 U.S.C. 1302,
generally directs DHS to prepare registration and fingerprinting forms
for such aliens.
<bullet> INA sec. 287(f), 8 U.S.C. 1357(f), requires DHS to
fingerprint and photograph each alien 14 years of age or older when DHS
issues an NTA.
These statutes require DHS to, at minimum, collect certain
biometrics for certain populations, but they do not preclude or limit
DHS from collecting additional modalities or expanding the populations
subject to biometric requirements. Under this proposed rule, DHS will
continue to collect the required biometrics from the individuals and
aliens covered by these statutes. However, this rule proposes to expand
the biometric modalities that DHS may collect from these individuals
and others covered by the rule. Moreover, upon publication of this
rule, DHS may require the submission of biometrics without regard to
age from aliens against whom proceedings based on inadmissibility under
section 212(a) of the INA or deportability under section 237 of the Act
are initiated, including proceedings under sections 235, 238(b), and
240 of the INA. See proposed 8 CFR 236.5.
As discussed above in this section of the preamble, DHS has broad
authority and discretion, including under INA secs. 103(a), 287(b), and
235(d)(3), 8 U.S.C. 1103(a), 1357(b) and 1225(d)(3), to collect
biometrics from any person to establish and verify an individual's
identity, eligibility for a benefit, and for other purposes material
and relevant to DHS's benefits adjudication and enforcement functions
under the INA. This authority also includes taking measures like the
biometrics requirements proposed in this rule that are necessary for
the effective and efficient administration of these functions.
Therefore, Congress's decision to require certain biometric modalities
from certain populations, does not limit DHS's broad authority to
collect additional biometrics or expand the populations subject to
biometrics submission requirements.
5. Administrative Guidance
This proposed rule is also consistent with non-statutory guidance
on effective mechanisms for foreign national vetting, screening, and
identification. DHS was directed by executive branch guidance to take
actions that require a robust system for biometrics collection,
storage, and use related to providing adjudication and naturalization
services of immigration benefits. For example, with respect to secure
documents, Homeland Security Presidential Directive (HSPD) 11,
``Comprehensive Terrorist-Related Screening Procedures,'' (Aug. 27,
2004) directs DHS to ``incorporate security features . . . that resist
circumvention to the greatest extent possible.'' DHS is directed to
consider the ``. . . information individuals must present, including,
as appropriate, the type of biometric identifier[s] or other form of
identification or identifying information to be presented, at
particular screening opportunities.'' DHS was also directed to expand
the use of biometrics, consistent with applicable law, to identify and
screen for individuals who may pose a threat to national security by
HSPD 24, ``Biometrics for Identification and Screening to Enhance
National Security,'' (June 5, 2008). Further, National Security
Presidential Memorandum--9 established the DHS-led National Vetting
Center to improve vetting ``to identify potential threats to national
security, border security, homeland security, and public safety'', and
included expanding biometric integration, sharing, and use to that
end.\27\ More recently, DHS is directed, by E.O. 14161, to ``identify
all resources that may be used to ensure that all aliens seeking
admission to the United States, or who are already in the United
States, are vetted and screened to the maximum degree possible'' with
the intended goal to ``protect its citizens from aliens who intend to
commit terrorist attacks, threaten our national security, espouse
hateful ideology, or otherwise exploit the immigration laws for
malevolent purposes.''
---------------------------------------------------------------------------
\27\ ``Optimizing the Use of Federal Government Information in
Support of the National Vetting Enterprise'' (Aug.5, 2018). <a href="https://www.dhs.gov/sites/default/files/publications/NSPM-9%20Implementation%20Plan.pdf">https://www.dhs.gov/sites/default/files/publications/NSPM-9%20Implementation%20Plan.pdf</a>.
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B. The Use of Biometrics by DHS
Current regulations provide both general authorities for the
collection of biometrics in connection with administering immigration
and naturalization benefits as well as requirements specific to certain
benefit types.\28\ Moreover, USCIS has authority under its current
regulations to require an applicant, petitioner, sponsor, beneficiary,
or individual filing a benefit request, other request, or collection of
information to appear for biometrics. See 8 CFR 103.2(b)(9). In
addition, DHS has the authority to require biometrics and payment of
any associated biometric services fee from any applicant, petitioner,
sponsor, beneficiary, or requestor, or individual filing or seeking a
benefit request, other request, or collection of information on a case-
by-case basis, through form instructions, or through a Federal Register
notice. Id.
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\28\ See, e.g., 8 CFR 103.16(a), 204.2(a)(2) (requiring evidence
of the claimed relationship), 204.3(c)(3) (requiring
fingerprinting), 204.2(d)(2)(vi) (authorizing blood testing),
245a.2(d) (requiring photographs and a completed fingerprint card),
and 316.4(a) (referring to form instructions which may require
photographs and fingerprinting).
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The former INS first used fingerprints for immigration processing
solely for the purpose of performing criminal history background checks
related to applications for which eligibility required good moral
character or non-existence of a record of certain criminal offenses.
See, e.g., 63 FR 12979 (Mar. 17, 1998) (prohibiting the former INS from
accepting fingerprints for the purpose of conducting criminal
background checks unless collected by certain U.S. Government
entities). The beneficiary or applicant would submit fingerprints which
were then checked against FBI databases to determine if they matched
any criminal activity on file. The fingerprints were not retained by
the INS and delays in processing would often result in individuals
needing to submit fingerprints multiple times for the same application.
Photographs were not historically collected by INS as a biometric
identifier. For those immigration benefit requests that required a
photograph to produce a resulting identity document, the regulations
required submission of a
[[Page 49073]]
passport-style photograph. See, e.g., 8 CFR 204.2, 8 CFR 2210.5, and 8
CFR 264.2.
Today, DHS handles biometrics differently. Biometrics are still
used in criminal history background checks to determine eligibility for
immigration benefits and for public safety, fraud, and national
security vetting. In addition, biometrics may be stored by DHS and used
to verify an individual's identity in subsequent encounters with DHS.
These encounters could vary from travel to and from the United States
where an individual may encounter CBP officers, to arrest and detention
by law enforcement components such as ICE, or to initiate removal
proceedings.
DHS also uses collected biometric information for document
production related to immigration benefits and status, including but
not limited to: Travel Documents (Form I-512L), Permanent Resident
Cards (Form I-551), Employment Authorization Documents (Form I-766),
Certificates of Citizenship (Form N-560), Certificates of
Naturalization (Form N-550), Replacement Certificates of Citizenship
(Form N-561), and Replacement Certificates of Naturalization (Form N-
570).\29\ Most of these secure documents are created using the digital
photograph (and signature) that is taken by DHS at an ASC, and not the
paper photograph mailed with the benefit request.\30\
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\29\ See Form I-485 Application to Register Permanent Residence
or Adjust Status; Form I-90, Application to Replace Permanent
Resident Card; Form I-765, Application for Employment Authorization;
Form N-600, Application for Certificate of Citizenship; Form N-400,
Application for Naturalization; Form N-565, Application for
Replacement Naturalization/Citizenship Document; See also, 8 U.S.C.
1732(b) (Machine-readable, tamper-resistant entry and exit
documents, Requirements) and 8 CFR 264.1(b) (Registration and
fingerprinting).
\30\ The paper photograph is retained and may be used to verify
the identity of an applicant who is required to be interviewed by
comparing it to the digitally captured photograph or the applicant's
motor vehicle operator's license.
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As part of the benefit adjudications process, DHS must first verify
the identity of an individual applying for or seeking any benefit.
Biometric identity verification helps protect against fraud and
imposters in subsequent encounters or filings for immigration benefits.
Second, DHS must determine if the individual is eligible to receive the
requested benefit. That determination may focus on the criminal,
national security, and immigration history of the individual, depending
on the eligibility requirements for the particular benefit type, and is
accomplished through national security and criminal history background
checks.
The immigration history review includes a review of the
individual's current immigration status, current and past immigration
filings, and whether previous immigration benefits were granted or
denied. DHS conducts national security and criminal history background
checks on individuals applying for an immigration benefit because U.S.
immigration laws preclude DHS from granting many immigration and
naturalization benefits to individuals with certain criminal or
administrative violations, or with certain disqualifying
characteristics (e.g., certain communicable diseases, association with
terrorist organizations, or lack of good moral character), while also
providing DHS discretion in granting an immigration benefit in many
instances.\31\
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\31\ See, e.g., INA sec 208(b)(2)(A), 8 U.S.C. 1158(b)(2)(A)
(mandatory bars to asylum); INA secs. 245(a) through (k), 8 U.S.C.
1255(a)(2) (admissibility requirements for adjustment of status
applicants); INA sec. 316(a)(3), 8 U.S.C. 1427(a)(3) (good moral
character requirement for naturalization).
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DHS conducts multiple types of national security and criminal
history background checks, including but not limited to: (1) biographic
information-based checks such as the FBI Name Check, and (2) biometrics
checks against the DHS Automated Biometric Identification System
(IDENT), the FBI Next Generation Identification (NGI) system, and the
Department of Defense (DoD) Automated Biometric Identification System
(ABIS).<SUP>32 33 34</SUP> DHS also uses biometrics to determine if an
individual has ties in their background, to activities such as an
association with human rights violations, involvement in terrorist
activities, or affiliation with terrorist organizations rendering them
inadmissible. To that end, DHS may vet an individual's biometrics
against data sets of foreign partners in accordance with international
arrangements.\35\
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\32\ IDENT will be replaced by a system called the Homeland
Advanced Recognition Technology (HART). DHS will use the term
``IDENT'' in this rule to refer to both the current and successor
systems.
\33\ The FBI NGI system is operated by the FBI's Criminal
Justice Information Services (CJIS) Division and provides the
criminal justice community with multi-modal biometric and criminal
history information. See ``Privacy Impact Assessment Update for
Biometric Interoperability Between the U.S. Department of Homeland
Security and the U.S. Department of Justice,'' (Oct. 13, 2011),
<a href="https://www.dhs.gov/sites/default/files/publications/privacy_pia_nppd_visit_update-b.pdf">https://www.dhs.gov/sites/default/files/publications/privacy_pia_nppd_visit_update-b.pdf</a>. FBI's NGI database, in turn,
also provides access to DoD's ABIS database.
\34\ DoD's ABIS system is operated by the DoD and contains
biometric records of individuals encountered overseas by the DoD
that include known or suspected terrorists. The biographic and
biometric data from ABIS is also transferred to the DoD's Special
Operations Force Exhibition (SOFEX) Portal for additional biometric
matching. Once complete, the NGI system forwards responses back from
both the NGI and the ABIS systems to the IDENT system. When data is
initially submitted and processed through IDENT, NGI, and ABIS, an
ICE Analyst conducts biometric and biographic checks against other
law enforcement and classified Intelligence Community databases
before processing, exploiting, summarizing, and disseminating
findings to the relevant ICE Attach[eacute] and Biometric
Identification Transnational Migration Alert Program (BITMAP) PMT.
\35\ See DHS, ``Privacy Impact Assessment for the International
Biometric Information Sharing Program (IBIS),'' DHS/ALL/PIA-095,
<a href="https://www.dhs.gov/publication/dhsallpia-095-international-biometric-information-sharing-program-ibis">https://www.dhs.gov/publication/dhsallpia-095-international-biometric-information-sharing-program-ibis</a>; DHS, ``Privacy Impact
Assessment for the Immigration Benefits Background Check System
(IBBCS),'' DHS/USCIS/PIA-033, <a href="https://www.dhs.gov/publication/immigration-benefits-background-check-systems-ibbcs">https://www.dhs.gov/publication/immigration-benefits-background-check-systems-ibbcs</a>; ``Statement of
Mutual Understanding on Information Sharing,'' <a href="https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/statement-mutual-understanding-information-sharing/statement.html">https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/statement-mutual-understanding-information-sharing/statement.html</a> (last
updated Feb. 19, 2003); ``Canada (13-1121)--Agreement for the
Sharing of Visa and Immigration Information,'' (Dec. 21, 2013),
<a href="https://www.state.gov/13-1121">https://www.state.gov/13-1121</a>; ``Agreement between the United States
of America and the United Kingdom of Great Britain and Northern
Ireland, Amending the agreement of April 18, 2013, as amended,''
(Dec. 31, 2020), <a href="https://www.state.gov/wp-content/uploads/2021/06/20-1231.3-Consular-Affairs-Visa-UK.pdf">https://www.state.gov/wp-content/uploads/2021/06/20-1231.3-Consular-Affairs-Visa-UK.pdf</a>.
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The DHS biometrics process for benefits adjudication purposes
generally begins with the collection of an individual's biometrics at
an authorized biometrics collection site, including DHS offices, ASCs,
military installations, U.S. consular offices abroad, and, in some
cases, Federal, State, and local law enforcement installations.
Biometrics may also be collected digitally by an agency-approved
technology. Domestically, DHS established a robust program to allow
individuals to provide biometrics at ASC facilities, where individuals
are generally scheduled to appear at a location close to their address
of record. DHS has also established mobile biometrics collection
capabilities domestically for certain limited scenarios (e.g., those
who are homebound or reside in certain remote locations). For
collections outside the United States, biometrics may be handled
differently. When biometrics are required by DHS and DHS does not have
a presence in that country, the Department of State (DOS) will continue
to collect biometrics on behalf of DHS. In cases where DOS will issue a
boarding foil, immigrant visa, or non-immigrant visa associated with a
DHS form, DOS will continue to collect biometrics under its existing
authority.
Currently, USCIS biometrics consist of a photograph, fingerprints,
and signature to conduct identity, eligibility, national security, and
criminal history background checks, and in certain
[[Page 49074]]
situations, voluntary DNA testing to verify a claimed genetic
relationship. For certain family-based benefit requests, where other
evidence proves inconclusive, USCIS accepts, but does not require, DNA
test results obtained from approved laboratories (along with other
necessary identifiers, such as a name and date of birth), as evidence
to assist in establishing the existence of genetic relationships. In
these limited cases where DNA test results are voluntarily submitted,
USCIS requires that DNA test results establish a sufficient probability
of the existence of the alleged relationship to be accepted as evidence
of that relationship.
DHS is bound by the confidentiality provisions of section 1367 of
title 8 of the U.S. Code, ``Penalties for disclosure of information''
(originally enacted as section 384 of IIRIRA). Unless certain statutory
exceptions apply (e.g., the alien was convicted of a crime or crimes
listed at INA 237(a)(2), etc.), all DHS officers and employees are
generally prohibited from permitting use by or disclosure to anyone
other than a sworn officer or employee of DHS, DOS, or DOJ of any
information relating to a beneficiary of a pending or approved request
for certain victim-based immigration benefits, such as an abused spouse
waiver of the joint filing requirement to remove conditions on
residence, a VAWA self-petition by an abused spouse or child of a U.S.
citizen or lawful permanent resident, VAWA cancellation of removal or
suspension of deportation, or application or petition for T or U
nonimmigrant status, including the fact that they have requested such a
benefit. Importantly, the protection against disclosure extends to all
records or other information, including those that do not specifically
identify the individual as an applicant, petitioner, or beneficiary of
the T visa, U visa, or VAWA protections, and only ends when the benefit
request is denied and all opportunities for appeal of the denial have
been exhausted. Therefore, the biometric collection contemplated here
would also be protected from disclosure during that period in
accordance with the requirements and exceptions found in 8 U.S.C. 1367.
Thus, DHS has not separately codified the section 1367 protections in
this proposed rule.
IV. Discussion of Proposed Changes
A. Use of Biometrics for Identity Management and Enhanced Vetting
DHS requires the submission of biometrics for certain immigration
benefit requests \36\ and for law enforcement purposes, including
functions incident to apprehending, arresting, processing, and care and
custody of aliens.\37\ In addition, DHS has the authority to require
biometrics and a biometric services fee from any applicant, petitioner,
sponsor, beneficiary, or requestor, or individual filing a request on a
case-by-case basis via individual notice. Notice of this requirement
may also be made through law, regulation, form instructions or as
provided in a Federal Register notice. See 8 CFR 103.2(b)(9),
103.7(b)(1)(i)(C), and 103.17. Under this construct, although DHS has
the authority to collect biometrics from any applicant, petitioner,
sponsor, beneficiary, or requestor, or individual filing a request,
biometrics are only mandatory for certain benefit requests. For all
others, DHS must decide if the benefit requested, or circumstances of
the request, justifies collection of biometrics and, if so, notify an
individual that their biometrics are required along with when and where
they will be collected.
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\36\ See, e.g., 8 CFR 204.310(b), 210.2(c)(2)(i), 210.5(b)(2),
212.7(e)(3)(ii), 214.2(w)(16), 245.15(g)(1), 245a.2(d),
245a.4(b)(4).
\37\ See e.g., 8 CFR 236.5 (2025).
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The primary purpose of this proposed rule is to flip the current
construct from one where biometrics may be collected based on past
practices, individual notice, regulations, or the form instructions for
a particular benefit, to a system under which biometrics are required
for any immigration benefit request, other request, or collection of
information unless DHS determines that biometrics are unnecessary for a
specific population or benefit.
To this end, DHS is proposing to revise 8 CFR 103.16 to require
that any applicant, petitioner, sponsor, beneficiary, or individual
filing or associated with a benefit request, other request, or
collection of information, to include U.S. citizens, U.S. nationals,
and lawful permanent residents, and without regard to age, must submit
biometrics, unless DHS otherwise exempts the requirement. See proposed
8 CFR 103.16(a)(1).\38\ This proposed rule would also give DHS
discretion to require any individual associated with such requests or
collections of information to submit or update biometrics while the
request is pending with DHS for adjudication. See proposed 8 CFR
103.16(c)(1). DHS also proposes to establish standards related to
scheduling, rescheduling, and failure to appear at biometrics
appointments to better ensure that biometrics collections do not slow
down USCIS' adjudication of benefits requests, other requests, and
collections of information as discussed below in section IV.E of this
preamble.\39\
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\38\ As explained more fully later in this preamble, DHS is not
proposing that the requirement that any applicant, petitioner,
sponsor, beneficiary, or individual filing or associated with a
benefit request or other request, U.S. citizens, U.S. nationals and
lawful permanent residents, and without regard to age, must appear
for biometrics collection will apply to DNA.
\39\ DHS will make reasonable efforts that are consistent with
the Government's need for biometrics in certain contexts and will
comply with all requirements that are applicable under the Americans
with Disabilities Act and the Federal Rehabilitation Act.
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As discussed further below, these proposed changes, if finalized,
would increase DHS's ability to collect and use biometrics to establish
and verify, with greater certainty, the identity of individuals
requesting or associated with immigration-related benefits. DHS
believes that the proposed changes, if finalized, would enhance DHS's
ability to ensure that benefits are granted only to those who are
eligible and to identify fraud, national security, and public safety
risks during the benefits adjudication process, while also improving
services to those who submit such benefit requests. USCIS' use of
biometrics for criminal history background checks and document
production is outdated.
As outlined above, DHS has broad statutory authority to administer
and enforce immigration laws and adjudicate immigration-related
benefits. This authority necessarily includes the use of tools, such as
biometrics, needed to better verify identity and statutory eligibility,
and to determine whether or not the individual poses a risk to national
security or public safety in those instances where these factors may
impact eligibility for an immigration benefit. Moreover, this proposed
rule is intended to increase the collection and use of biometric
information beyond benefits eligibility determinations. To this end,
DHS proposes to expand the population of aliens who are subject to
biometrics collection upon apprehension, arrest, or encounter by: (1)
clarifying that DHS may require biometrics for all aliens subject to
section 240 removal proceedings, as well as aliens processed through
other removal pathways including expedited removal under section 235 of
the INA, 8 U.S.C. 1225, and aliens subject to reinstatement of a prior
removal order under section 241 of the INA, 8 U.S.C. 1231 and (2)
removing age restrictions on biometrics as discussed further below in
section IV.C.3 of this preamble. See proposed 8 CFR 236.5.
Biometrics collection upon apprehension, arrest, or encounter by
[[Page 49075]]
DHS will allow DHS in subsequent encounters or filings to accurately
identify the individuals encountered, and can prove or disprove any
claimed, or unclaimed, genetic relationship. This in turn will allow
DHS to make better informed decisions as to the processing,
transporting, and managing the custody of aliens subject to DHS's law
enforcement authorities. Having more reliable data about the identities
of aliens in DHS custody will increase the safety of DHS facilities in
which aliens are held in custody for both DHS law enforcement officers
and aliens. It would also eliminate an incentive that currently exists
for unscrupulous aliens to jeopardize the health and safety of minors
to whom they are unrelated, transporting the minors on a dangerous
journey across the United States border, and claiming to be the parents
of unrelated minors in order to claim to be a ``family unit'' and thus
obtain a relatively quick release from DHS custody.
This rule also supports DHS's efforts to implement a program of
continuous immigration vetting. Under this proposed rule, any alien who
is present in the United States following an approved immigration
benefit request, other request, or collection of information may be
required to submit biometrics or undergo biometric-based screening and
vetting unless and until they are granted U.S. citizenship. See
proposed 8 CFR 103.16(a)(3), (c)(2). To further implement continuous
vetting, the rule proposes to clarify that DHS may store biometrics
(other than raw DNA) submitted by an individual in connection with an
immigration-related benefits request or other collection of information
and use or reuse biometrics to conduct background checks to verify
continued eligibility for immigration and naturalization-related
benefits and for administering and enforcing the immigration laws. See
proposed 8 CFR 103.16(d)(1).
In sum, these proposed changes and others discussed throughout this
preamble, are intended to enhance DHS's ability to collect and use
biometrics throughout the immigration lifecycle, i.e., the period
between an alien's first benefit request, other request, or collection
of information submission, encounter, or apprehension, through
naturalization or removal.
However, DHS does not propose to impose an absolute biometrics
collection requirement in all instances for all forms filed with the
USCIS.\40\ There may be circumstances where biometric collection would
be unnecessary or duplicative. A particular application or petition
(e.g., an inadmissibility waiver request) may not require its own
complete biometric collection when it is filed in conjunction with
another benefit request, other request, or collection of information
that already carries a biometrics collection requirement, and/or DHS
determines it may reuse previously collected biometrics after a
biometric-based verification. Under appropriate circumstances, DHS
proposes to retain discretion to exempt certain forms from the complete
biometric collection requirement because it would result in waste or
redundancy to both the agency and the public. For example, when an
alien files Form I-485, Application to Register Permanent Residence or
Adjust Status, biometrics are collected from all applicants. However,
if the same applicant also files Form I-601, Application for Waiver of
Grounds of Inadmissibility, due to an inadmissibility concern, that
form is associated with the Form I-485. In most cases, there is no need
to independently require complete biometrics collection in conjunction
with Form I-601 because DHS is already collecting biometrics in
association with Form I-485. Form I-601 would never be filed without an
associated form carrying a biometrics collection requirement (i.e., an
immigrant visa application, adjustment of status application, certain
non-immigrant visa applications, etc.). In instances such as this, DHS
will simply reuse and associate the biometrics collected on the Form I-
485 to the Form I-601. If the Form I-601 was not concurrently filed
with the Form I-485, USCIS would first obtain a positive biometrics-
based identity verification and a biographic data match to the
previously submitted Form I-485 before associating different biometrics
to the Form I-601. Identity verification based solely upon a comparison
of the individual's name or other non-unique biographic identification
characteristics or data, or combinations thereof, would never
constitute positive identity verification for purposes of USCIS
biometric reuse.
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\40\ Only certain family-based or other benefit requests would
be impacted by the proposed provision to allow, request, or require
DNA evidence to prove or disprove the existence of a claimed or
unclaimed genetic relationship or biological sex.
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Further, DHS recognizes that there is no value in imposing a
biometric collection for forms that are only filed in conjunction with
other forms that already require biometrics collection. Consequently,
the DHS forms that are being revised and posted in accordance with the
PRA for public comments do not include an absolute requirement for
biometrics collection. Instead, the revised form instructions put the
individual on notice that (1) every applicant, petitioner, sponsor,
supporter, derivative, dependent, and beneficiary of an immigration
benefit request, other request, or collection of information submitted
to DHS is required to provide biometrics unless DHS otherwise exempts
the requirement, and (2) that the individual will be notified of the
time and place for the appointment. For most forms for which DHS
proposes to mandate biometrics as proposed under this rule, DHS has
incorporated any costs and fees associated with a biometric services
appointment within the filing fee for the immigration benefit being
sought.\41\ See the PRA section of this rule for information on how to
comment on the proposed form instructions for implementing the changes
proposed in this rule.
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\41\ See 8 CFR part 106.
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1. Identity Management
DHS is proposing to use biometrics for identity management, during
the entire course of the immigration lifecycle for several reasons.
This will facilitate DHS's transition to a person-centric model for
organizing and managing its records.\42\ DHS plans to begin using
biometrics to establish and manage unique identities as it organizes
and verifies immigration records in a highly reliable, on-going, and
continuous manner. Currently, USCIS relies on declared biographic data
for identity management in the immigration lifecycle. Once an identity
has been enrolled in IDENT \43\ and established within DHS, future
activities and encounters may be added to the original enrollment and
will be confirmed through identity verification at various points in
the immigration lifecycle. Biometric-based identity verification may be
done outside of the United States (by DHS or DOS) or within the United
States (at ASCs, USCIS offices, or as prescribed by DHS in accordance
with law). Biometric-based identity verification also allows the reuse
of enrolled identity data (both biometric and biographic) that has
already been
[[Page 49076]]
vetted. Such reuse reduces the amount of erroneous or conflicting data
that can be entered into systems and reduces the cost and complexity of
repetitive collection and verification. After an identity has been
biometrically verified, reusable fingerprints allow for more immediate
and recurrent background checks, and reusable photographs allow for
quick production of documents with high consistency and integrity.
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\42\ See DHS, ``Privacy Impact Assessment for the Person Centric
Identity Services (PCIS) Initiative,'' DHS Reference No. DHS/USCIS/
PIA-087 (Dec. 7, 2022), <a href="https://www.dhs.gov/sites/default/files/2022-12/privacy-pia-uscis-pia087-pcis-december2022.pdf">https://www.dhs.gov/sites/default/files/2022-12/privacy-pia-uscis-pia087-pcis-december2022.pdf</a>.
\43\ See <a href="https://www.dhs.gov/exchanging-biometric-data">https://www.dhs.gov/exchanging-biometric-data</a> (last
updated Apr. 4, 2025).
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In this proposed rule, DHS recognizes that biometric reuse is
acceptable only when there is a biometric-based identity
verification.\44\ See proposed 8 CFR 103.16(a)(4). DHS has a duty to
the public to ensure that immigration benefits are granted only to
those who are eligible for them, to ensure that no benefit is provided
to the wrong individual, and to verify that individuals entering the
country are who they say they are. See generally INA sec. 103, 8 U.S.C.
1103 (charging DHS with the administration and enforcement of the INA).
Further, DHS's responsibility is reinforced by E.O. 14161, which
directs the Secretary of Homeland Security to ``determine the
information needed from any country to adjudicate any visa, admission,
or other benefit under the INA for one of its nationals, and to
ascertain whether the individual seeking the benefit is who the
individual claims to be and that the individual is not a security or
public-safety threat.''
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\44\ USCIS has allowed biometric reuse in specific situations
including during the COVID-19 pandemic to address public health
concerns. See <a href="https://www.uscis.gov/archive/uscis-to-continue-processing-applications-for-employment-authorization-extension-requests-despite">https://www.uscis.gov/archive/uscis-to-continue-processing-applications-for-employment-authorization-extension-requests-despite</a> (last updated Mar. 30, 2020).
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A biometrically-based, person-centric records model ensures that an
individual's records are complete and pertain only to that individual.
Under this model, DHS would be able to easily locate, maintain, and
update the correct individual's information such as: results from
national security and criminal history background checks, current
address (physical and mailing), immigration status, or to associate
previously submitted identity documentation, such as birth certificates
and marriage licenses, in future adjudications thereby reducing
duplicative biographic or other evidentiary collections.
Biometrics are unique to each individual and provide USCIS with
tools for identity management, which is critical to better ensuring
benefits are granted only to those who are eligible, while improving
the services provided to those who submit immigration benefit requests.
With regard to age, DHS proposes to reserve the authority to collect
biometrics at any age to ensure the immigration records created for
children can more assuredly be related to their subsequent adult
records despite changes to their physical appearance and biographic
information. USCIS notes that with respect to these biometrics, as with
any other agency decision subject to 8 CFR 103.2(b)(16), if a decision
will be adverse to an applicant, petitioner, or requestor, and is based
on unclassified derogatory information the agency considered, he or she
shall be advised of that fact and offered an opportunity to rebut the
information.
Another key driver for eliminating the age restrictions for
biometric collection is the number of UAC and accompanied alien
children (AAC) that have been intercepted at the border in recent
years. The DHS proposal to remove age restrictions will help combat
human trafficking, specifically human trafficking of children,
including the trafficking and exploitation of children forced to
accompany adults traveling to the United States with the goal of
avoiding detention and exploiting immigration laws.
Beginning in May 2019, ICE Homeland Security Investigations (HSI)
and CBP conducted a pilot program where, with consent from aliens
presenting themselves as family units, officers used Rapid DNA \45\
testing technologies as a precise and focused investigative tool to
identify suspected fraudulent families and vulnerable children who may
be potentially exploited. Between June 2019 and September 2021, ICE HSI
and CBP completed 3,516 Rapid DNA tests in instances where a parent-
child relationship was suspect. Of those tested, 300 instances resulted
in a negative finding, counter to the claimed parent-child relationship
and indicating possible fraud (8.5 percent). The pilot program was
concluded in May 2021 due to decreased testing attributable to
Coronavirus Disease 2019 pandemic-related travel restrictions, among
other considerations.\46\
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\45\ DHS, ``Privacy Impact Assessment for the Rapid DNA
Operational Use,'' DHS/ICE/PIA-050 (June 25, 2019), <a href="https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-rapiddna-june2019_3.pdf">https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-rapiddna-june2019_3.pdf</a>.
\46\ Office of Inspector General, DHS, ``CBP Officials
Implemented Rapid DNA Testing to Verify Claimed Parent-Child
Relationships,'' OIG-22-27 (Feb. 8, 2022), <a href="https://www.oig.dhs.gov/sites/default/files/assets/2022-02/OIG-22-27-Feb22.pdf">https://www.oig.dhs.gov/sites/default/files/assets/2022-02/OIG-22-27-Feb22.pdf</a>.
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Collecting biometrics on children that DHS encounters would assist
in enabling definitive identification of them and may show that they
have been reported missing. Generally, DHS plans to use the biometric
information collected from children for identity management in the
immigration lifecycle only, but will retain the authority for other
uses in its discretion, such as background checks and for law
enforcement purposes. DHS components have different statutory
authorities and mission spaces; while ICE or CBP may elect to submit
UAC or AAC collected biometrics to the FBI for criminal history
background checks, USCIS would not routinely do so. Rather, for USCIS
the biometrics collected from the majority of these children would be
stored in IDENT \47\ to help DHS with future encounters. USCIS is
authorized to share relevant information with law enforcement or other
DHS components, including ``biometrics'' for identity verification and,
consequently, it may share DNA test results, which include a partial
DNA profile, with other agencies as it does other record information
pursuant to existing law.
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\47\ IDENT is the DHS enterprise repository for biometrics and
provides biometric identification management services to DHS
Components with technology for matching, storing, and sharing
biometric data. DHS Office of Biometric Identity Management (OBIM)
is the lead designated provider of biometric identity services for
DHS and maintains the largest biometric repository in the U.S.
government. See <a href="https://www.dhs.gov/obim">https://www.dhs.gov/obim</a> (last updated Dec. 10,
2024).
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DHS will have the express authority to send UAC or AAC biometrics
to the FBI for criminal history background checks, but depending on the
DHS component encountering the subject may only send biometrics to the
FBI if DHS has some articulable derogatory information on the subject
and needs to confirm criminal history or an association with other
illegal or terrorist organizations in the interests of public safety
and national security. Biometrics collected to identify or refute
claimed or unclaimed genetic relationships at the border would be
maintained in law enforcement systems for future identity verification,
subject to the restrictions found in proposed 8 CFR 103.16.
2. Enhanced and Continuous Vetting
Individuals with certain types of criminal convictions, or those
who present a threat to national security or public safety are not
eligible for certain benefits. Benefit eligibility determinations in
these cases often focus on the criminal, national security, and
immigration history of the individual. The immigration history review
considers the individual's current immigration status, past immigration
filings, and whether previous benefits were granted or
[[Page 49077]]
denied. DHS conducts national security and criminal history background
checks on individuals applying for or seeking an immigration benefit
because U.S. immigration laws preclude DHS from granting many
immigration and naturalization benefits to individuals with certain
criminal or administrative violations, or with certain disqualifying
characteristics (e.g., lack of good moral character, certain
communicable diseases, or association with terrorist organizations),
while also providing DHS discretion in granting an immigration benefit
in many instances. See, e.g., INA sec. 208(b)(2)(A), 8 U.S.C.
1158(b)(2)(A) (mandatory bars to asylum); INA sec. 245(a)(2), 8 U.S.C.
1255(a)(2) (admissibility requirements for adjustment of status
applicants and agency discretion); and INA sec. 316(a)(3), 8 U.S.C.
1427(a)(3) (good moral character requirement for naturalization).
This proposed rule would enhance DHS's ability to collect and use
biometrics throughout the immigration lifecycle, from first benefit
request, encounter, or apprehension to naturalization or removal. In
the enforcement context, biometric collection when an individual is
first encountered can establish an identity that can be relied upon in
future encounters and interactions with the Federal government, help
officers identify individuals in subsequent encounters, detect
fraudulent identities, and confirm relationships between adults and
children. Establishing and being able to match and confirm identities
through biometric collection helps in the identification of scenarios
and encounters involving child smuggling, trafficking, and
exploitation. It can also help identify when an adult who has been
previously encountered is posing as a child. Collection of biometrics
during removal proceedings is primarily to verify that the individual
is the correct individual being removed.
As part of the adjudication process for immigration benefits, DHS
requires robust processes and procedures to administer the collection
and use of biometrics from foreign nationals who enter the United
States to ensure, as directed by the President, ``that admitted aliens
and aliens otherwise already present in the United States do not bear
hostile attitudes toward its citizens, culture, government,
institutions, or founding principles, and do not advocate for, aid, or
support designated foreign terrorists and other threats to our national
security.'' See E.O. 14161 sec. 1, 90 FR 8451 (Jan. 30, 2025). To
accomplish this the President has directed the Secretary of Homeland
Security to ``vet and screen to the maximum degree possible all aliens
who intend to be admitted, enter, or are already inside the United
States, particularly those aliens coming from regions or nations with
identified security risks.'' Id. at sec. 2. The President also directed
the Secretary to ``take all appropriate action to use any available
technologies and procedures to determine the validity of any claimed
familial relationship between aliens encountered or apprehended by the
Department of Homeland Security'' See E.O. 14165 sec. 9, 90 FR 8467,
8468 (Jan. 20, 2025).
The changes proposed in this rule would assist DHS in developing
appropriate means for ensuring the proper collection of all information
necessary for a rigorous evaluation of any grounds of inadmissibility
or grounds for the denial of an immigration benefit request, other
request, or collection of information. Notably, expanding biometrics
collection will provide DHS with more comprehensive biometric-based
information, including criminal and immigration history information
that may be missed if biometrics submission is only required from a
limited population and in a less expansive way than proposed by this
rule. For example, enhanced biometric submission may reveal a history
of crimes involving moral turpitude, activities related to terrorism,
fraud or misrepresentation, or derogatory immigration history such as
illegal entries and immigration violations.\48\ There are documented
instances where biographical information was provided to USCIS, and
relied upon in an adjudication, and subsequent biometric-based
screening and vetting revealed additional derogatory information.\49\
The rule proposes to broaden the population required to submit
biometrics, expands biometric modalities and enhances subject
identification and the detection of possible threats to national
security and public safety. Collectively, information obtained via
biometric submission per this proposed rule will improve national
security and public safety while ensuring that only eligible
individuals are granted immigration benefits and are permitted to
maintain a previously granted benefit.
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\48\ See generally INA sec. 212, 8 U.S.C. 1182, Grounds of
Inadmissibility.
\49\ See, e.g., ``Individuals with Multiple Identities in
Historical Fingerprint Enrollment Records Who Have Received
Immigration Benefits,'' Department of Homeland Security, Office of
Inspector General, Office of Inspections and Special Reviews, OIG-
17-111 (Sept. 2017); ``Potentially Ineligible Individuals Have Been
Granted U.S. Citizenship Because of Incomplete Fingerprint
Records,'' Department of Homeland Security, Office of Inspector
General, Office of Inspections and Special Reviews, OIG-16-130
(Sept. 2016); ``Review of U.S. Citizenship and Immigration Services'
Alien Security Checks, Department of Homeland Security,'' Office of
Inspector General, Office of Inspections and Special Reviews, OIG-
06-06 (Nov. 2005).
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DHS plans to implement a program of continuous immigration vetting
during the entirety of the immigration lifecycle. Under continuous
vetting, DHS may require aliens to be subject to continued and
subsequent evaluation of eligibility for their immigration benefits to
ensure they continue to present no risk of causing harm subsequent to
their entry and are maintaining and complying with any terms of
admission or conditions required of their nonimmigrant or immigrant
status. This rule proposes that any individual alien who is present in
the United States following an approved immigration benefit request,
other request, or collection of information may be required to submit
biometrics or undergo biometric-based screening and vetting unless and
until they are granted U.S. citizenship.\50\ DHS also proposes, at its
discretion and in conformance with the requirements articulated in this
NPRM, to reuse previously submitted biometrics in certain circumstances
to perform continuous vetting if DHS is able to obtain a positive
biometrics based identity verification based on the individual's stored
biometrics. See proposed 103.16(a)(4), (d)(1). DHS does not anticipate
the implementation of continuous vetting to have an adverse effect on
DHS's ability to timely adjudicate its pending benefit requests, or
other requests or collections of information as the individuals subject
to continuous vetting will have previously submitted biometrics that
USCIS may reuse at its discretion after a biometric based identity
verification.\51\ The rule further proposes that a U.S. citizen, U.S.
national, or lawful permanent resident may be required to submit
biometrics if he or she filed an immigration-related application,
petition, or request in the past, and it was either reopened or the
previous approval is relevant to the benefit request, other request, or
collection of information pending with USCIS. See proposed 8 CFR
103.16(c)(2). For example, if an alien lost an approval notice from a
previously approved visa petition, he or she would have to file a Form
I-824, Application for Action on an Approved Application or Petition.
Biometrics
[[Page 49078]]
would be necessary to better verify the identity of the individual
filing the Form I-824. In another example, if a United States citizen
petitioner had a previously approved visa petition for a spouse and DHS
discovered the potential existence of a ``specified offense against a
minor'' it could result in a revocation of the approved visa petition--
even where the conviction occurred prior to the visa petition approval
or the enactment of the Adam Walsh Act.\52\ For any such case, DHS
would begin by requesting biometrics for the United States citizen
petitioner in order to confirm the existence of any potentially
disqualifying criminal history information.
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\50\ See DHS, ``Privacy Impact Assessment for Continuous
Immigration Vetting,'' DHS/USCIS/PIA-076 (Feb. 14, 2019), <a href="https://www.dhs.gov/sites/default/files/publications/pia-uscis-fdnsciv-february2019_0.pdf">https://www.dhs.gov/sites/default/files/publications/pia-uscis-fdnsciv-february2019_0.pdf</a>.
\51\ Id.
\52\ See Matter of Jackson and Erandio, 26 I&N Dec. 314 (BIA
2014).
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DHS welcomes public comment on the increased use of biometrics
beyond criminal history background checks, to include identity
management in the immigration lifecycle and enhanced vetting or other
purposes, as well as any relevant data, information, or proposals.
B. Verify Identity, Familial Relationships, and Preclude Imposters
1. Use of DNA Evidence \53\
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\53\ The DNA Fingerprint Act authorizes the Attorney General to
collect DNA from individuals arrested, facing charges, convicted, or
from non-U.S. persons who are detained under the authority of the
United States. 34 U.S.C. 40702. The implementing DOJ regulations
require any agency of the United States that arrests or detains
individuals or supervises individuals facing charges to collect DNA
samples from individuals who are arrested, facing charges, or
convicted, and from non-United States persons who are detained under
the authority of the United States. 28 CFR 28.12(b). DHS notes that
the DNA collection requirements of 34 U.S.C. 40702 and 28 CFR part
28, subpart B are for law enforcement identification purposes,
whereas this rule proposes to establish the authority for the use of
DNA to prove or disprove the existence of a claimed or unclaimed
genetic relationships in the adjudication of immigration benefit
requests.
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U.S. citizens, U.S. nationals, and lawful permanent residents
petitioning for a family member, or individuals seeking to include a
family member as a dependent or derivative (accompanying or follow-to-
join) in an application for an immigration benefit, must demonstrate
the existence of claimed genetic relationship or legal relationship in
the case of gestational parentage. Current regulations generally
require documentary evidence such as marriage and birth certificates as
primary evidence of such a claimed relationship.\54\ In the absence of
primary evidence, acceptable secondary evidence includes medical
records, school records, religious documents, and affidavits. See,
e.g., 8 CFR 204.2(d)(2). However, documentary evidence may be
unreliable or unavailable, and individuals need additional means to
establish claimed genetic relationships, in cases where a genetic
relationship is claimed, to avoid denial of a benefit request, other
request, or collection of information. USCIS currently accepts DNA test
results from laboratories accredited by the AABB (formerly the American
Association of Blood Banks) as proof of the existence of a claimed
genetic relationship where other evidence is unavailable.\55\
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\54\ See, e.g., 8 CFR 103.2(b)(2)(i), 204.2(c)(2)(ii), (d)(2)(i)
through (iii), (d)(5)(ii), (f)(2)(i) through (iii), (g)(2)(i)
through (iii), 207.7(e), 208.21(f), 245.11(b), 245.15(l)(2), and
254.24(h)(1)(iii).
\55\ Although most of the collection of DNA samples is performed
by the AABB-accredited laboratory conducting the testing, for
individuals residing overseas, DHS or the Department of State
facilitate collection and transmission of the DNA sample to the
laboratory to ensure regularity in the collection and proper chain
of custody of the DNA sample.
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DHS proposes to revise its regulations to provide that DNA genetic
testing can be required, requested, or accepted as evidence, either
primary or secondary, to prove or disprove the existence of a claimed
or unclaimed genetic relationship where necessary.\56\ See proposed 8
CFR 103.16(d)(2). DNA is the only biometric that can verify a genetic
relationship. Current regulations allow USCIS to require Blood Group
Antigen or Human Leukocyte Antigen (HLA) tests to prove parentage only
after other forms of evidence were inconclusive. See 8 CFR
204.2(d)(2)(vi). But those tests are no longer widely available and are
not as reliable as a DNA test because, while blood-typing can be used
as proof that an individual is not a child's biological parent, it
cannot be used to confirm the individual is the child's parent.\57\
According to the AABB, DNA testing provides the most reliable
scientific test available to resolve a genetic relationship and
replaced older serological testing such as blood typing and serological
HLA typing.\58\ Blood tests are also more invasive than DNA tests, as
DNA collection generally does not require blood to be drawn from any
individuals tested, and the most common method is a noninvasive buccal
(mouth) swab.
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\56\ This includes requiring, requesting, or accepting DNA
testing to establish a genetic relationship with a birth parent in
the context of a petition to classify a beneficiary as an orphan
under INA sec. 101(b)(1)(F) or as a Convention adoptee under INA
sec. 101(b)(1)(G).
\57\ Gunther Geserick & Ingo Wirth, ``Genetic Kinship
Investigation from Blood Groups to DNA Markers,'' Transfus Med
Hemother 39(3):163-75 (May 11, 2012), <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3375130/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3375130/</a>.
\58\ AABB, ``Standards for Relationship Testing Laboratories,''
Appendix 9 Immigration Testing, 16th ed (Jan. 1, 2024).
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DHS proposes to define the term ``DNA'' in regulation as
``deoxyribonucleic acid, which carries the genetic instructions used in
the growth, development, functioning, and reproduction of all known
living organisms.'' See proposed 8 CFR 1.2. When DHS uses the term
``DNA'' in this rule it is a reference to the raw genetic material,
typically saliva, collected via buccal swab from an individual in order
to facilitate DNA testing to prove or disprove genetic relationships or
biological sex.\59\ DHS will only require, request, or accept DNA
testing to prove or disprove a claimed, or unclaimed genetic
relationship or to confirm biological sex. DHS will only store or share
raw DNA or biological samples to facilitate DNA testing (by using a DHS
or DHS-authorized facility, an on-site automated machine, or
transmitting to the AABB-accredited laboratory conducting the testing),
unless DHS is required to share by law. See proposed 8 CFR
103.16(d)(2).
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\59\ <a href="https://www.uscis.gov/tools/reports-and-studies/understanding-our-data">https://www.uscis.gov/tools/reports-and-studies/understanding-our-data</a> (last updated Dec. 2, 2020).
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For DHS, there are two different means of testing the raw DNA to
prove or disprove the existence of a claimed or unclaimed genetic
relationship. After DNA samples are collected, an individual's raw DNA
material will be tested at a DHS facility or DHS authorized facility
(locally by an automated machine (i.e., Rapid DNA) \60\ or mailed to a
traditional AABB-accredited laboratory for testing). This testing
allows for the comparison of partial DNA profiles to determine the
statistical probability that the individuals tested have or do not have
a genetic relationship. In either case, a partial DNA profile would be
produced as a result of the test. When DHS uses the term ``partial DNA
profile'' it is a reference to a visual or printed partial
representation of a small portion of an individual's particular DNA
characteristics.\61\ An individual's partial DNA profile is a biometric
identifier as unique as their fingerprints. Significantly, when an
individual's DNA is tested in order to prove or disprove the existence
of a claimed or unclaimed genetic relationship, the test
[[Page 49079]]
does not reveal medical or hereditary conditions.\62\ The particular
genetic markers profiled for relationship testing are markers
specifically used to illustrate the existence of a genetic
relationship. More specifically, the partial DNA profile created for
relationship testing is a very small portion of an individual's full
DNA characteristics. At present, DHS relationship tests profile between
16 and 24 genetic markers out of the nearly 2 million genetic markers
typically contained in human DNA. In contrast with raw DNA or
biological samples, which will not be shared or stored under any
circumstances unless required to share by law, DHS may store or share
DNA test results, which include a partial DNA profile, with other law
enforcement agencies to the extent permitted by and necessary to
enforce and administer the immigration and naturalization laws. See
proposed 8 CFR 103.16(d)(2). For example, if a claimed genetic
relationship is fraudulent and USCIS denies a petition, the DNA test
results would be retained in the alien's A-file, the same as a rap
sheet or a birth certificate; and if that alien is placed in removal
proceedings EOIR would need to review the basis for the denial and any
finding of fraud.
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\60\ The DHS Science and Technology Directorate has been working
in conjunction with DoD and DOJ to fund the development of cost-
effective Rapid DNA equipment to allow non-technical users with
appropriate training to analyze the DNA of individuals in a field
setting and receive reliable results in about one hour.
\61\ <a href="https://www.uscis.gov/tools/reports-and-studies/understanding-our-data">https://www.uscis.gov/tools/reports-and-studies/understanding-our-data</a> (last updated Dec. 2, 2020).
\62\ Id.
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The testing entity conducts the DNA test, either automatically by
machine or in a traditional laboratory environment and generates a DNA
test result. The term ``DNA test result'' is a reference to the
ultimate scientific conclusion made by DHS or DHS authorized AABB-
accredited testing entity as to the claimed or unclaimed genetic
relationship or determination of biological sex.\63\ The DNA test
result is represented by a probability or percentage of the likelihood
of the existence of the genetic relationship as a result of comparing
at least two partial DNA profiles. DHS has established by policy what
minimum threshold probability for the relationship that it would accept
in proving or disproving the existence of a genetic relationship,
depending on the particular relationship in question (i.e., parent,
full-sibling, half-sibling, etc.).\64\ DNA test results which include a
partial DNA profile, where they indicate a sufficient probability of
the existence of the relationship tested, are now accepted as evidence
to establish parent and sibling genetic relationships. See Matter of
Ruzku, 26 I&N Dec. 731 (BIA 2016).
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\63\ Id.
\64\ See USCIS, DHS, ``DNA Evidence of Sibling Relationships,''
PM 602.0106.1, (April 17, 2018) (establishing the threshold
probabilities for full and half sibling relationships); USCIS, DHS,
``Genetic Relationship Testing; Suggesting DNA Tests Revisions to
the Adjudicators Field Manual (AFM) Chapter 21 (AFM Update AD07-
25),'' (Mar. 19, 2008) (establishing voluntary or suggested nature
of DNA testing to verify claimed relationships and citing AABB
testing standards); DOS, ``Foreign Affairs Manual,'' 9 FAM 601.11-
1(A)(a)(2), CT: VISA-1276 (May 12, 2021) (stating that DNA ``test
results reporting a 99.5 percent or greater degree of certainty''
may be accepted by consular officers as ``sufficient to support a
biological relationship between a parent and child in visa cases'');
See also DOJ, ``Matter of Nejat Ibrahim RUZKU, Beneficiary of a visa
petition filed by Abdalla Ibrahim Ruzku, Petitioner,'' 26 I&N Dec.
731 (BIA 2016) (Mar. 29, 2016) (holding direct sibling-to-sibling
DNA test results reflecting a 99.5 percent degree of certainty or
higher that a full sibling biological relationship exists should be
accepted and considered to be evidence of the relationship).
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This rule further proposes to grant DHS express authority to
require, request, or accept raw DNA or DNA test results, which include
a partial DNA profile, from relevant parties, such as applicants,
petitioners, derivatives, dependents, and beneficiaries, to determine
eligibility for immigration and naturalization benefits, or to perform
any other functions necessary for administering and enforcing
immigration and naturalization laws. See proposed 8 CFR 103.16(a)(1)
and (d)(2)(i)(A), (B). It is in DHS' and the public's interests to
protect the integrity of the immigration system and ensure that any
individual who receives an immigration benefit is eligible for that
benefit. The use of DNA as evidence to support eligibility, where
applicable, may assist in the adjudication of certain benefit requests,
other requests or collection of information where documentary evidence
may be unreliable or unavailable. For example, DHS currently does not
have regulatory provisions in place to require DNA testing results to
prove or disprove an individual's biological sex as it pertains to
eligibility for a non-immigrant visa under INA sec.
101(a)(15)(P)(i)(a), 8 U.S.C. 1101(a)(15)(P)(i)(a), for certain
athletes coming to the United States to compete in a sporting event and
when documentary evidence may be unreliable or unavailable.\65\ In some
situations, individuals are allowed to voluntarily submit DNA test
results. Under this proposed rule, DHS may expressly require, request,
or accept raw DNA or DNA test (to include a partial DNA profile) to
prove or disprove an individual's biological sex in instances where
that determination will impact benefit eligibility. See proposed 8 CFR
103.16(d)(2)(i) and (ii). DHS proposes to collect, treat and locate raw
DNA (the physical sample taken from the applicable individual), at a
DHS or DHS-authorized facility. DHS will not handle or share any raw
DNA for any reason beyond the original purpose of submission (e.g., to
prove or disprove an individual's biological sex), unless DHS is
required to share by law. DNA test results, which include a partial DNA
profile, become part of the record, and DHS will store and share DNA
test results, for adjudication purposes, including to determine
eligibility for immigration and naturalization benefits or to perform
any other functions necessary for administering and enforcing
immigration and naturalization laws, to the extent permitted by law.
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\65\ See E.O. 14201, Keeping Men Out of Women's Sports, section
1, 90 FR 9279 (Feb. 5, 2025).
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Consistent with current practice, the DNA test results, which
include a partial DNA profile, obtained by DHS and showing the ultimate
probability of relationship or biological sex, would be retained in the
individual's Alien file (A-file) and made part of the record. Under
this proposed rule, if finalized, DHS may use and store DNA test
results as necessary to administer and enforce the immigration and
naturalization laws, and share said DNA results with other law
enforcement agencies to the extent permitted by law. See proposed 8 CFR
103.16(d)(2)(iii).
Currently, DHS allows individuals in certain situations to
voluntarily submit DNA test results from AABB-accredited laboratories
\66\ where other documentary evidence is inconclusive or
unavailable.\67\ This rule proposes to clarify and codify that DHS may
require, request, or accept raw DNA or DNA test results, which include
a partial DNA profile, from relevant parties, such as applicants,
petitioners, derivatives, dependents, and beneficiaries, to an
immigration-related benefit request, other request, or collection of
information as evidence of a claimed, or unclaimed genetic relationship
or biological sex. It also proposes to clarify that DHS may consider
DNA test results in adjudicating certain immigration benefits as a
means of proving or disproving a claimed, or unclaimed genetic
relationship, biological sex or to establish eligibility for the
requested benefit. And the rule proposes to clarify DHS's authority to
collect raw DNA from relevant parties, such as applicants, petitioners,
derivatives, dependents, and beneficiaries, and
[[Page 49080]]
either perform a DNA test at a DHS or DHS-authorized facility or send
the raw DNA to a traditional AABB-accredited lab. DHS requests comments
on all aspects of this proposal, including the collection, use, and
retention of DNA evidence.
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\66\ See <a href="https://www.aabb.org/home">https://www.aabb.org/home</a> (last visited Apr. 3, 2025).
\67\ See USCIS, DHS, ``Genetic Relationship Testing; Suggesting
DNA Tests Revisions to the Adjudicators Field Manual (AFM) Chapter
21 (AFM Update AD07-25),'' (Mar. 19, 2008) (establishing voluntary
or suggested nature of DNA testing to verify claimed relationships
and citing AABB testing standards).
---------------------------------------------------------------------------
2. Special Treatment of DNA Evidence
While DNA is fundamentally a biometric identifier, DHS recognizes
the increased sensitivity surrounding the use of genetic information.
DHS believes the other biometric modalities that will be collected are
sufficient for most of the goals of this rule. See proposed 8 CFR 1.2
(definition of biometrics); proposed 8 CFR 103.16(a) (biometric
collection). Therefore, DHS proposes to treat raw DNA as a biometric
modality distinct from the other biometric modalities it is authorized
to collect. See proposed 8 CFR 1.2 (definition of DNA); proposed 8 CFR
103.16(d)(2). For purposes of DNA collected under this rule, DHS
proposes that it will not handle or share any raw DNA for any reason
beyond the original purpose of submission (i.e., to prove or disprove
the existence of a claimed or unclaimed genetic relationship or
biological sex), unless DHS is required to share by law. DHS would only
store, use, and share DNA test results, which include a partial DNA
profile derived from the raw DNA,\68\ as provided by the testing entity
or as produced by DHS, for adjudication purposes and would retain the
results to perform any other functions necessary for administering and
enforcing immigration and naturalization laws, to the extent permitted
by law. DHS would also only use the raw DNA and DNA test results, which
include a partial DNA profile, for the original purpose of submission
(i.e., to prove or disprove the existence of a claimed or unclaimed
genetic relationship or an individual's biological sex) or as
authorized by the immigration and naturalization laws. DHS components
are authorized to share relevant information with law enforcement or
other DHS components and, consequently, it may share DNA test results,
which include a partial DNA profile, with other agencies when there are
national security, public safety, fraud, or other investigative needs,
but always pursuant to existing law. See proposed 8 CFR 103.16(d). DHS
especially welcomes comments on these proposed provisions.
---------------------------------------------------------------------------
\68\ <a href="https://www.uscis.gov/tools/reports-and-studies/understanding-our-data">https://www.uscis.gov/tools/reports-and-studies/understanding-our-data</a> (last updated Dec. 2, 2020).
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3. Identity Management
DHS must ensure that immigration benefits are not fraudulently
obtained and are granted to the rightful person, and that individuals
entering the country are who they say they are. As part of the benefit
adjudications process, USCIS must verify the identity of an individual
applying for or seeking any benefit to protect against fraud and
imposters. In all circumstances, DHS must identify persons using
aliases after prior immigration encounters and assist in efforts to
prevent human smuggling and trafficking. Currently DHS relies mainly on
paper-based documentary evidence when evaluating or verifying identity
in administering its programs. Unfortunately, there is no guaranteed
way to prevent the manufacturing, counterfeiting, alteration, sale, and
use of fraudulent identity documents or other fraudulent documents to
circumvent immigration laws or for identity theft. On the other hand,
biometric identifiers are not transferable and may provide confirmation
or non-confirmation of an individual's claimed identity. Therefore, DHS
believes that the best approach to address the vulnerabilities in the
immigration process, preclude imposters, and deter fraud would be to
rely more on biometrics for identity management in the immigration
lifecycle.
C. Flexibility in Biometrics Requirements
1. Definition of Biometrics
In recent years, government agencies have grouped together
identifying features and actions, such as fingerprints, photographs,
and signatures under the broad term, biometrics.\69\ The terms
biometric ``information,'' ``identifiers,'' or ``data'' are used to
refer to all of these features, including additional features such as
ocular image (iris, retina and sclera), palm print, DNA, and voice
print.\70\ For example, authorities such as 18 U.S.C. 1028(d)(7)(B) and
17 CFR 162.30(b)(8) refer to identifying information, including
``unique biometric data, such as fingerprint, voice print or iris
image, or other unique physical representation.'' The term
``biometrics'' is also used in other laws and regulations. See, e.g.,
18 U.S.C. 1028(d)(7)(B), 17 CFR 162.30(b)(8)(ii), 21 CFR 11.3(b)(3),
and 27 CFR 73.3. As a result, DHS has adopted the practice of referring
to fingerprints and photographs collectively as ``biometrics,''
``biometric information,'' or ``biometric services.''
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\69\ See FBI, ``Next Generation Identification (NGI),'' <a href="https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi">https://www.fbi.gov/services/cjis/fingerprints-and-other-biometrics/ngi</a>
(last visited Apr. 11, 2025).
\70\ See FBI, ``Biometrics and Fingerprints,'' <a href="https://le.fbi.gov/science-and-lab/biometrics-and-fingerprints">https://le.fbi.gov/science-and-lab/biometrics-and-fingerprints</a> (last visited
Apr. 11, 2025).
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For example, the instructions for Form I-90, Application to Replace
Permanent Resident Card, refer to a ``biometric services appointment,''
while the Form I-589, Application for Asylum and for Withholding of
Removal, refers to ``biometrics, including fingerprints and
photographs.'' Many forms also include a signature as a type of
biometric identifier. See instructions for Form I-485 which references
providing ``biometrics'' which is described as ``fingerprints,
photograph, and/or signature.'' Most laws on the subject do not specify
individual biometric modalities such as ocular image (iris, retina and
sclera), palm print, voice print, DNA, and/or any other biometric
modalities that may be collected from an individual in the future. See,
e.g., 8 U.S.C. 1732(b)(1) (requiring the issuance of travel documents
that use biometric identifiers recognized by international standards
organizations). By proposing to update the terminology in the
regulations to uniformly use the term ``biometrics'' DHS seeks to
utilize a single, inclusive term comprehensively throughout regulations
and form instructions.
DHS proposes to define the term ``biometrics'' to clarify and
expand its regulatory authority to collect more than just fingerprints
while administering and enforcing immigration and naturalization
benefits or other services or perform any other function necessary for
administering and enforcing immigration and naturalization laws. To do
this, DHS proposes to expressly define ``biometrics'' to mean ``the
measurable biological (anatomical, physiological and molecular
structure) or behavioral characteristics of an individual.'' See
proposed definition of Biometrics in 8 CFR 1.2. Further, DHS proposes
the following biometrics as authorized biometric modalities that may be
requested or required from individuals in connection with the
administration and enforcement of immigration and naturalization laws:
<bullet> Facial imagery (digital image, specifically for facial
recognition and facial comparison);
<bullet> Prints (including fingerprints and palm prints);
<bullet> Signature (handwritten);
<bullet> Ocular imagery (to include iris, retina, and sclera);
<bullet> Voice (voice print, vocal signature, and voice
recognition); and/or
[[Page 49081]]
<bullet> DNA (including partial DNA profile).
The term ``biometric modality'' is used to describe a type or class
of a biometric. The collection of a biometric implies its use in a
system used to identify an individual; hence the use of the term
``modality.'' ``Modality'' is often interchanged, or used in
conjunction, with the term ``biometric'' because the collection of a
biometric implies automation. For example, an individual's face is a
biometric, but DHS intends to collect a digital image of an
individual's face, making a facial digital image the modality.
Similarly, ocular imagery is a biometric, but DHS intends to collect an
image of an individual's iris, retina or sclera, making the iris,
retina or sclera image the ``modality.'' An individual's voice is a
``biometric,'' but DHS intends to collect an audible recording of an
individual's voice, making a voice print the ``modality.'' Finally, an
individual's raw DNA is a ``biometric,'' but upon testing, the partial
DNA profile becomes the ``modality'' and the DNA test result is the
memorialization or evidence to prove or disprove the existence of a
claimed, or unclaimed, genetic relationship or an individual's
biological sex, to determine eligibility for immigration and
naturalization benefits, or perform any other function necessary for
administering and enforcing immigration and naturalization laws. DHS
will collect a photograph (facial image), fingerprint, palm print,
audible recording, DNA, etc., for use in facial recognition,
fingerprint and palm print recognition, ocular image recognition, voice
recognition, DNA testing, etc.
The proposed definition of biometrics would codify and authorize
the collection of specific biometric modalities and the use of
biometrics for: identity enrollment, verification, and management in
the immigration lifecycle; national security and criminal history
background checks; determinations of eligibility for immigration and
naturalization benefits; and the production of secure identity
documents. See proposed 8 CFR 1.2. DNA, while a biometric, would be
collected by USCIS in limited circumstances to prove or disprove the
existence of a claimed, or unclaimed, genetic relationship, or
biological sex and to determine eligibility for immigration and
naturalization benefits or to perform any other functions necessary for
administering and enforcing immigration and naturalization laws. Such
examples include instances to verify a genetic relationship between a
claimed biological parent and biological child or to prove or disprove
an individual's biological sex in instances where that determination
will impact benefit eligibility. Additionally, DNA evidence could be
used to identify fraud in instances where DHS establishes the
likelihood of a genetic relationship that invalidates eligibility for
the benefit sought, such as the discovery of a parent-child or sibling
relationship affiliated with a fraudulent claim of a marital
relationship. See proposed 8 CFR 1.2 and 8 CFR 103.16(d)(2).
2. Additional Modalities
In addition to the current use of fingerprints \71\ and photographs
\72\ (facial images) as biometric modalities, DHS proposes to begin
requesting biometric collection (now and through emerging technologies)
with the following additional biometric modalities: ocular (iris,
retina, and sclera), palm print, voice, and DNA.\73\ See proposed
Definition of Biometrics in 8 CFR 1.2. The technology for collecting
and using biometrics has undergone constant and rapid change.\74\ DHS
needs to keep up with technological developments that will be used by
the FBI and agencies with which we will be sharing and comparing
biometrics and adjust collection and retention practices for both
convenience and security, and to ensure the maximum level of service
for all stakeholders. USCIS also has internal procedural safeguards to
ensure technology used to collect, assess, and store the differing
modalities is accurate, reliable, and valid. Additionally, as with any
other USCIS petition or application, if a decision will be adverse to
an applicant or petitioner and is based on unclassified derogatory
information the agency considered, he or she shall be advised of that
fact and offered an opportunity to rebut the information per current 8
CFR 103.2(b)(16). Therefore, DHS proposes that, as of the effective
date of this rule, if finalized, it may begin collecting new biometrics
modalities as follows.
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\71\ Currently USCIS does not routinely use signatures for
identity verification purposes other than for document production
and visual verification.
\72\ DHS, ``Privacy Impact Assessment for the Customer Profile
Management System,'' DHS Reference No. DHS/USCIS/PIA-060(d) (Sept.
27, 2024) <a href="https://www.dhs.gov/sites/default/files/2024-11/24_0930_priv_pia-dhs-uscis-cpms-060d.pdf">https://www.dhs.gov/sites/default/files/2024-11/24_0930_priv_pia-dhs-uscis-cpms-060d.pdf</a>.
\73\ While DNA is included in the list of additional modalities,
USCIS is addressing DNA as a distinct modality and discusses DNA
separately.
\74\ FBI, ``Science and Technology,'' <a href="https://www.fbi.gov/how-we-investigate/science-and-technology">https://www.fbi.gov/how-we-investigate/science-and-technology</a> (last visited Apr. 11, 2025).
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a. Ocular Image
DHS proposes to collect and use ocular images as a biometric
modality. The term ocular image refers to the eye and the structures
within the eye to include the iris, retina and sclera. Ocular structure
as a biometric modality is a valuable identifier especially for
individuals whose fingerprints are unclassifiable or unattainable
through loss of fingers, hand amputation, normal wear in the ridges and
patterns over time (e.g., due to age, types of employment, etc.), or
deliberate eradication/distortion of fingerprint ridges to avoid
identification and detection. Ocular scanning biometric technology
measures the unique characteristics and patterns within the iris,\75\
retina and sclera to verify and authenticate identity. Biometric ocular
recognition is fast, accurate, and offers a form of identification
verification that requires no physical contact to collect. DHS may
collect ocular images as part of the biometric enrollment process to
enroll and verify identity against IDENT, as well as to assist in the
adjudication process by verifying against previous immigration
encounters.
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\75\ See DHS, ``Biometric Technology Report,'' (Dec. 26, 2024)
<a href="https://www.dhs.gov/sites/default/files/2024-12/24_1230_st_13e-Final-Report-2024-12-26.pdf">https://www.dhs.gov/sites/default/files/2024-12/24_1230_st_13e-Final-Report-2024-12-26.pdf</a>.
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b. Palm Print
DHS proposes to add palm prints as a biometrics modality in this
rule. This proposal is consistent with what the FBI has announced as
part of its NGI initiative for the development of the requirements for
and deployment of an integrated National Palm Print Service.\76\ Law
enforcement agencies indicate that at least 30 percent of the prints
lifted from crime scenes--from knife hilts, gun grips, steering wheels,
and window panes--are of palms, not fingers. For this reason, capturing
and scanning latent palm prints is becoming an area of increasing
interest among the law enforcement community. The National Palm Print
Service \77\ is being
[[Page 49082]]
developed to improve law enforcement's ability to exchange a more
complete set of biometric information, make additional identifications,
and improve the overall accuracy of identification through criminal
history records. Collecting palm prints would permit DHS to align our
background checks capability with the total available records at the
FBI's CJIS Division, keep current with the changing records of law
enforcement, and make sure immigration benefit background checks are as
accurate and complete as possible. Therefore, DHS proposes to reserve
the authority to incorporate palm prints into its biometrics
collection.
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\76\ See Subcommittee on Biometrics, Committee on Homeland and
National Security, Committee on Technology, National Science and
Technology Council, Executive Office of the President, ``Palm Print
Recognition,'' <a href="https://ucr.fbi.gov/fingerprints_biometrics/biometric-center-of-excellence/files/palm-print-recognition.pdf">https://ucr.fbi.gov/fingerprints_biometrics/biometric-center-of-excellence/files/palm-print-recognition.pdf</a>
(last visited Apr. 11, 2025). For a basic explanation of NGI, see
<a href="https://le.fbi.gov/science-and-lab/biometrics-and-fingerprints/biometrics/next-generation-identification-ngi">https://le.fbi.gov/science-and-lab/biometrics-and-fingerprints/biometrics/next-generation-identification-ngi</a> (last visited Apr. 11,
2025).
\77\ CJIS Division, FBI, ``National Palm Print System,
Repository Available for Law Enforcement Access,'' (Apr. 30, 2019)
<a href="https://le.fbi.gov/cjis-division/cjis-link/national-palm-print-system">https://le.fbi.gov/cjis-division/cjis-link/national-palm-print-system</a> (last accessed June 10, 2025).
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c. Facial Image
DHS proposes to expand the use of facial photographs to reduce the
burden of visiting an ASC for individuals previously biometrically
enrolled by USCIS. For example, 1:1 facial biometric verification can
be used in determining whether an applicant is who he or she is
claiming to be and allows the reuse of previously collected
fingerprints. Facial recognition can also be used to verify an identity
if fingerprints are unobtainable subsequent to the initial biometric
enrollment at an ASC. DHS would also use facial images and facial
recognition technology for fraud, public safety or criminal history
background checks, and national security screening and vetting. Facial
photographs, as a biometric modality, are already collected by DHS for
purposes such as secure document production and in some instances may
be used to compare an individual to a claimed identity. DHS has
collected facial photographs both manually and digitally for some time,
such as for identity verification at ports of entry. DHS is proposing
to increase the authorized use of previously collected biometrics,
(such as facial photographs or fingerprints), but only after a
biometric-based identity verification. DHS proposes to expand the use
of facial recognition systems for those biometric-based identity
verifications.\78\
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\78\ See DHS, ``Privacy Impact Assessment for the Customer
Profile Management System,'' (Sept. 27, 2024) <a href="https://www.dhs.gov/sites/default/files/2024-11/24_0930_priv_pia-dhs-uscis-cpms-060d.pdf">https://www.dhs.gov/sites/default/files/2024-11/24_0930_priv_pia-dhs-uscis-cpms-060d.pdf</a>.
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d. Voice Print
DHS proposes to collect and use voice print as a biometric
modality. DHS can use voice as a biometric in several ways to improve
identity verification in several business processes. First, when
immigration benefit requests are submitted electronically, an
individual's voice print can be used to indicate that the individual
who submitted the application is the same person who subsequently
returns to access or change information.
Second, an individual's voice print can be used for integration
into the call center process to accomplish faster, automated
identification. Collecting and using an individual's voice print may
reduce concerns about the caller's identity. With simpler
identification and less effort, individuals will be able to call for
assistance or inquire about the status of a pending immigration benefit
request, other request, or collection of information more effectively.
The current identity verification process is typically more time-
consuming than voice; in fiscal year 2023, USCIS contact centers
received 14 million calls for assistance from the public.\79\ This
equates to an average of 53,846 calls to USCIS contact centers each
day.\80\ The use of a voice biometric holds the promise of
significantly reducing the time to verify a person's identity. Voice
biometrics can be passive, where the user can say anything and a match
is made from the voice to a voiceprint, or it can be active, where the
caller is asked to recite a previously captured passphrase. In either
option, the process is a natural, effortless way to identify the
caller.
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\79\ Annual Statistics Report: FY2023, U.S. Citizenship and
Immigration Services (2024), <a href="https://www.uscis.gov/sites/default/files/document/reports/fy2023_annual_statistical_report.pdf">https://www.uscis.gov/sites/default/files/document/reports/fy2023_annual_statistical_report.pdf</a> (last
accessed June 1, 2025).
\80\ Calculation: 14,000,000 annual calls received/approximately
260 operational working days in a year = 53,846 calls received per
operational working day (rounded).
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Third, voice verification could be used for identity verification
in remote locations where an interview is required to adjudicate a
benefit being sought, reducing the need for an applicant to travel to a
USCIS Office. Finally, USCIS may also use voice prints, where
applicable, to identify indicia of fraud, screen for public safety or
criminal history, and vet potential national security issues.
DHS welcomes public comment on the various proposed modalities,
reliability of technology, suggestions for alternative modalities, as
well as its proposal for future modalities.
3. Amend Related Regulations To Align With the Purposes of This
Proposed Rule and To Facilitate Electronic Filing
a. Clarify Terms
To conform with the proposed changes to expand biometric collection
as previously discussed, DHS proposes to remove restrictive language
elsewhere in regulations. Therefore, DHS proposes to remove individual
references to ``fingerprints,'' ``photographs,'' and ``signatures''
where appropriate, and replace them with the more appropriate term
``biometrics.'' Further, DHS proposes to remove references to Blood
Group Antigen tests as DHS seeks to expand biometric collection
abilities to require, request or accept DNA or DNA test results. DHS
proposes the following changes on account of proposed 8 CFR 103.16:
<bullet> Removing and Reserving 204.2(d)(2)(vi);
<bullet> Deleting 8 CFR 204.3(c)(3), which requires biometric
submissions from prospective adoptive parent(s), or adult members of
the adoptive parents' household, and outlining potential waivers;
<bullet> Removing the fingerprint requirement at 8 CFR 204.4(d)(1),
and references to fingerprint and completed background checks as
elements specifically mentioned in 8 CFR 204.4(g)(2)(ii) regarding the
determination that a sponsor is of good moral character;
<bullet> Deleting biometric submission requirement in 8 CFR
204.5(p)(4);
<bullet> Deleting and reserving 8 CFR 204.310(b), which outlines
the biometrics, waiver, and alternative evidentiary requirements for
Form I-800A, Application for Determination of Suitability to Adopt a
Child from a Convention Country;
<bullet> Replacing ``fingerprint processing'' in the second
sentence of 8 CFR 208.10 with ``biometric submission requirements;''
<bullet> Removing and reserving 8 CFR 210.1(b);
<bullet> Replacing ``must be fingerprinted for the purpose of
issuance of Form I-688A'' with ``submit biometrics'' pursuant to 8 CFR
103.16 and replacing ``shall'' with ``will'' in proposed 8 CFR
210.2(c)(2)(iv);
<bullet> Replacing ``shall'' with ``will'' and ``presentation or
completion of Form FD-258 (Fingerprint Card)'' with ``biometric
submission'' in proposed 8 CFR 210.2(c)(3)(iv);
<bullet> Replacing ``shall'' with ``will'' and ``complete Form FD-
258 (Fingerprint Card)'' with ``appear for biometric submission'' in
proposed 8 CFR 210.2(c)(4)(iii).
<bullet> Removing biometrics content at 8 CFR 212.7(e)(6).
<bullet> Replacing ``biometric information would be required'' with
``biometric information will be required'' at 8 CFR 215.9.
<bullet> Replacing ``fingerprints on Form FD-258'' with ``biometric
collection'' in 8 CFR 235.7(a)(3) and replacing
[[Page 49083]]
``fingerprints'' with ``biometrics'' in 8 CFR 235.7(a)(4)(vi).
<bullet> Replacing references to fingerprints and photographs with
``submission of biometrics'' at 8 CFR 236.5.
<bullet> Replaces ``Fingerprinting requirements'' with ``Interview
and biometric collection'' and replaces references to fingerprints and
FD-258s with biometrics at 8 CFR 240.67(a).
<bullet> Replacing reference to ``fingerprinting'' with
``biometrics'' in 8 CFR 240.68.
<bullet> Removing ``fingerprinting'' and replacing with
``biometrics'' in 8 CFR 240.70(d)(4).
<bullet> Removing reference to ``photographs,'' ``a completed
fingerprint card (Form FD-258)'' and ``fingerprint'' and replacing with
``biometrics'' at 8 CFR 245a.2(d), d(2)(ii), and (e)(1).
<bullet> Removing reference to fingerprints in 8 CFR
245a.3(b)(1)(e).
<bullet> Removing reference to ``photographs'' and ``a completed
fingerprint card (Form FD-258))'' in 8 CFR 245a.4(b)(4) and removal of
``Form FD-258 (Applicant Card)'' with biometrics in 8 CFR 245a.4(b)(5).
<bullet> Removing references to fingerprinting and replacing them
with biometrics in 8 CFR 264.1(e)(1), (2), (3), (3)(g), and 3(g)(1).
<bullet> Removing and reserving 8 CFR 264.2(d) which addressed
fingerprinting.
<bullet> Removing and reserving 8 CFR 264.5(i) which addressed
photographs and fingerprinting.
<bullet> Removing ``fingerprints'' and replacing with
``biometrics'' in 8 CFR 287.11(b)(3).
<bullet> Removing ``fingerprint'' and replacing with ``biometrics
or biometric data'' in 8 CFR 335.2.
b. Remove Age Restrictions
DHS originally codified several of its regulatory biometric
submission requirements with restrictions on the ages of individuals
from whom biometrics could be collected. The codified ages were based
on the policies, procedures, and practices in place at that time, such
as not running criminal history background checks on children \81\ or
technological limitations on collecting fingerprints from elderly
persons.\82\ As stated earlier, DHS is proposing to expand the use of
biometrics beyond criminal history background checks to include
identity management and verification in the immigration lifecycle.
Identity verification and management in the immigration lifecycle via
biometrics is even more important in the case of children because their
physical appearances can change relatively rapidly, and children often
lack identity documents. The Department of State tacitly recognizes the
same principle in issuing passports for individuals under the age of
16, which are only valid for 5 years.\83\ Passports for individuals
over 16 are valid for a period of 10 years.\84\ The validity periods
and collection practices do not render the biometric submission
inaccurate, the photograph of the child is accurate the day it is
collected, but over time the accuracy and reliability of the photograph
diminishes. For those reasons, the removal of age restrictions may lead
to more frequent biometric collections compared to adults.\85\
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\81\ ``Children'' and ``minor'' are used interchangeably here
and without regard to any single or specific INA definition.
\82\ See Michael Pearson, ``Fingerprint Waiver Policy for All
Applicants for Benefits Under the Immigration and Naturalization Act
and Procedures for Applicants Whose Fingerprint Responses Expire
after the Age Range During Which Fingerprints are Required,''
Headquarters Office of Field Operations, Immigration and
Naturalization Service, United States Department of Justice, (July
20, 2001) (waiving general fingerprinting requirements for certain
ages and classifications of individuals otherwise required under
regulation).
\83\ DOS, ``Apply for a Child Under 16,'' <a href="https://travel.state.gov/content/travel/en/passports/need-passport/under-16.html">https://travel.state.gov/content/travel/en/passports/need-passport/under-16.html</a> (last updated Feb. 11, 2025).
\84\ DOS, ``Application for a U.S. Passport,'' <a href="https://eforms.state.gov/Forms/ds11_pdf.PDF">https://eforms.state.gov/Forms/ds11_pdf.PDF</a> (last visited Apr. 11, 2025).
\85\ DHS acknowledges that some biometric data are more subject
to change over time in children than adults, which may result in
lower accuracy match rates. For example, matches resulting from
facial images of children, when using facial recognition tools, may
have lower accuracy rates than adults due to changes attributed to
growth and development. However, this potential issue can be
mitigated with more frequent image collection, similar to the
Department of State's approach to the validity period of child
passport photos. See generally, U.S. Department of State website,
<a href="https://travel.state.gov/content/travel/en/passports/passport-help/after-getting-passport.html">https://travel.state.gov/content/travel/en/passports/passport-help/after-getting-passport.html</a>, (``If you were age 16 or older when we
issued your passport, your passport is valid for 10 years'' but ``If
you were under 16 when we issued your passport, your passport is
valid for 5 years.''). Further, additional biometric modalities,
such as fingerprints, have been determined to be reliable for the
identification of children long-term. See also, <a href="https://biometrics.cse.msu.edu/Publications/Fingerprint/Jainetal_ChildFingerprintRecognition_TechRep_MSU-CSE-16-5.pdf">https://biometrics.cse.msu.edu/Publications/Fingerprint/Jainetal_ChildFingerprintRecognition_TechRep_MSU-CSE-16-5.pdf</a> (last
visited Jul. 24, 2025).
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Consistent with this determination, DHS is removing the age
restrictions for biometric collection writ large, including those for
NTA issuance. See proposed 8 CFR 236.5. DHS has authority, under the
immigration laws,\86\ to issue Forms I-862, Notices to Appear and Forms
I-863, Notices of Referral to Immigration Judge, which are thereafter
filed with the Immigration Court to commence removal proceedings under
the INA. In removing the age restrictions for biometric collection
relating to NTA issuance, DHS is ensuring that every individual's
identity is established or verified--regardless of age--when they are
placed in removal proceedings under the INA. Just as with the granting
of immigration benefits, biographical identifiers are of limited use
when verifying identity because individuals share common names and an
individual may misrepresent his or her identity when facing immigration
enforcement action. Furthermore, with respect to children under the age
of 14 who are issued NTAs, the collection of biometric information to
determine identity will significantly assist DHS in its mission to
combat human trafficking, child sex trafficking, forced labor
exploitation, and alien smuggling, while simultaneously promoting
national security, public safety, and the integrity of the immigration
system.
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\86\ See, e.g., INA secs. 103(a) and 239; 8 CFR 2.1 and 239.1.
---------------------------------------------------------------------------
DHS is authorized to share relevant information internally, with
other law enforcement agencies, and as otherwise permitted under law,
including ``biometrics'' and, consequently, is proposing that it may
share DNA test results, which include a partial DNA profile, with other
agencies where there are national security, public safety, fraud, or
other investigative needs, but always consistent with any legal
limitations on such information sharing. Therefore, because the
proposed requirements in this rule, requiring appearance for biometric
collection or interview would apply to any individual, without age
limitation, DHS proposes to remove all age limitations or restrictions
on biometrics collection. However, DHS also proposes that the biometric
collection may be exempted at DHS's discretion. See proposed 8 CFR
103.16.
Under the authority granted by the proposed rule, individual DHS
components will be able to establish an age threshold for biometric
collection specific to a particular component's operational needs.
Immigration officers may collect biometrics, pursuant to the authority
granted by INA sec. 287(b), 8 U.S.C. 1357(b) from individuals under the
age of 14 categorically or on a case-by-case basis, depending on the
circumstances. Section 287(f)(1) of the INA 8 U.S.C. 1357(f)(1)
provides that through regulation DHS shall provide for the
fingerprinting and photographing of each alien 14 years of age or older
placed into removal proceedings. While this requires DHS to fingerprint
and photograph any alien who is 14 years or older who is placed into
removal
[[Page 49084]]
proceedings, it does not limit or prohibit DHS authority to collect
biometrics from aliens younger than 14 when authorized by other laws.
Removing the age restrictions associated with biometric collections
from the regulations will permit DHS components maximum flexibility in
their day-to-day operations.
DHS reviewed statutes containing requirements for individuals to
submit biometrics to DHS at a certain age and determined those statutes
do not restrict or limit the collection of biometrics to these ages.
First, INA sec. 262(b), 8 U.S.C. 1302, states ``Whenever any alien
attains his fourteenth birthday in the United States he shall, within
30 days thereafter, apply in person for registration and to be
fingerprinted.'' Second, INA sec. 264(a), 8 U.S.C. 1304, provides that
the Secretary is authorized ``to prepare forms for the registration and
fingerprinting of aliens'' aged 14 and older in the United States, as
required by INA sec. 262, 8 U.S.C. 1302. While section 264(a) of the
INA, 8 U.S.C. 1304(a) requires that biometrics be submitted by lawful
permanent residents aged 14 and older, it does not limit or prohibit
DHS authority from requiring anyone, including lawful permanent
residents or individuals seeking immigration benefits who are under the
age of 14, from submitting biometrics as authorized by other laws.
In addition to removing the age limit on biometrics, DHS proposes
to update the regulations at 8 CFR 207.2(a) to provide that, at its
discretion, USCIS may conduct interviews for refugee applicants under
the age of 14. This proposed change will clarify that applicants for
refugee status may be subject to the same interview requirements
provided in proposed 8 CFR 103.2(b)(9), allowing USCIS, at its
discretion to require an interview for any applicant, regardless of
age. In applying this provision, if finalized, USCIS will exercise its
discretion on a case-by-case basis, consistent with USCIS guidance and
training materials related to interviewing and adjudicating claims
involving children.
c. Remove Redundant Provisions
DHS proposes in this rule to have one regulatory provision that
governs the requirement to submit biometrics for all immigration
benefit requests or other requests or collections of information. See
proposed 8 CFR 103.16. As discussed in section IV.E of this preamble,
this new provision will also include the standard for rescheduling a
biometrics services appointment and the consequences for failure to
submit required biometrics, unless exempted. Id. Because proposed 8 CFR
103.16 will apply to all immigration benefit requests or other requests
or collections of information adjudicated by USCIS, there is no need
for separate provisions for rescheduling of biometric service
appointments and biometrics submission requirements.\87\ Therefore, DHS
is proposing to either revise separate provisions regarding failure to
submit biometrics to cross-reference 8 CFR 103.16 or remove them
entirely. See proposed 8 CFR 103.2(b)(9), 103.16(b), 208.10, 240.68,
and 240.70(d)(4).
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\87\ Note that to avoid a disparate standard between USCIS
asylum adjudications and asylum proceedings in the EOIR context, the
current ``exceptional circumstances'' standard for asylum
applicants, as established under 8 CFR 208.10 will be maintained as
status quo. Failure to appear for an asylum interview or biometric
services appointment in connection with an asylum claim will be
excused if the applicant demonstrates that such failure to appear
was the result of exceptional circumstances.
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d. Remove Unnecessary Procedures and Requirements
DHS is proposing changes in this rule consistent with continued
efforts to provide flexibility for applicants, petitioners, requestors
and associated individuals to submit biometrics, file benefit requests
or other requests or collections of information, and provide supporting
documentation, as well as for USCIS to receive and process those
requests in an electronic environment. In sections of the regulations
governing biometrics submission requirements, DHS is also proposing to
remove or replace language that applies solely to paper filings and
benefit requests or other requests or collections of information with
language that is applicable in both a paper and electronic environment.
For example, references to position titles, form numbers, mailing,
copies, and office jurisdiction are proposed to be removed, replacing
``the director,'' ``service office having jurisdiction over the prior
petition,'' ``service legalization office,'' ``legalization office,''
``service office designated for this purpose,'' ``successor form,'' and
``The INS,'' with ``USCIS'' or ``DHS'' in 8 CFR 204.4(d)(1),
210.2(c)(2)(iv), 210.2(c)(4)(iii), 210.5(b), 235.7(a), 245a.2; 245a.3,
245a.4, 245a.12, 214.2(k)(1) and 287.11(b)(3). In proposed 8 CFR
204.4(d)(1), the internal USCIS process is removed from the regulatory
text, by replacing the requirement that petitioners submit documents
within 1 year of the date requested, with a deadline provided in the
request. Similarly, in proposed 8 CFR 207.7(f)(2) and 208.21(d), the
specific procedure regarding transmissions to the U.S. Embassy or
consulate is deleted from the regulatory text. In other sections,
requirements to provide a paper fingerprint card or FD-258 are revised
to simply require ``biometrics.'' See 8 CFR 210.2(c)(3)(iv),
210.2(c)(4)(iii), 240.67(a), 245a.2(d), and (e)(1).
To promote electronic filing and lessen dependence on paper, DHS is
also proposing to eliminate references to the ``ADIT [Alien
Documentation, Identification and Telecommunication]-style'' photograph
requirement as outdated and revising any requirement for submitting
photographs with immigration benefit requests or other requests or
collections of information to reference photographs ``in a notice to
the individual,'' ``meeting the requirements in the instructions to the
relevant form,'' or ``in the manner prescribed by biometrics notice or
other notification by USCIS.'' See proposed 8 CFR 103.16, 204.2(a)(2),
210.5(b), and 333.1(a).
DHS believes that the photograph submission and use requirements in
the INA are met by digital photographs collected by USCIS as a
biometric identifier. INA sec. 333, 8 U.S.C. 1444, states:
(a) Three identical photographs of the applicant shall be signed by
and furnished by each applicant for naturalization or citizenship. One
of such photographs shall be affixed by the Attorney General to the
original certificate of naturalization issued to the naturalized
citizen and one to the duplicate certificate of naturalization required
to be forwarded to the Service.
(b) Three identical photographs of the applicant shall be furnished
by each applicant for--
(1) a record of lawful admission for permanent residence to be made
under INA sec. 249;
(2) a certificate of derivative citizenship; (3) a certificate of
naturalization or of citizenship;
(4) a special certificate of naturalization;
(5) a certificate of naturalization or of citizenship, in lieu of
one lost, mutilated, or destroyed;
(6) a new certificate of citizenship in the new name of any
naturalized citizen who, subsequent to naturalization, has had his name
changed by order of a court of competent jurisdiction or by marriage;
and
(7) a declaration of intention.
One such photograph shall be affixed to each such certificate
issued by the Attorney General and one shall be affixed to the copy of
such certificate retained by the Service.
[[Page 49085]]
There is nothing in INA sec. 333 that prohibits the submission of
photographs electronically or with a digital image. A digital
photograph collected at an ASC satisfies all of the requirements of INA
sec. 333. Therefore, DHS proposes to revise 8 CFR 333.1 to provide that
every applicant under section 333 of the Act must provide a photograph
in the manner prescribed in his or her biometrics notice or other
notification by USCIS.
e. Technical Edits and Edits for Clarity
DHS is also proposing technical edits to update or remove
references to position titles, form numbers, mailing addresses, copies,
and office jurisdiction, edits to regulatory text for clarity, and
edits that remove unnecessary operational or procedural constraints
that have become technologically or organizationally outdated. For
example, proposed 8 CFR 207.7(d) uses the correct form name for
``Refugee/Asylee Relative Petition,'' but updates the regulatory text
by replacing ``revoke'' with ``reopened and denied'' to accurately
describe the procedural disposition of the ``Refugee/Asylee Relative
Petition'' under the scenario governed by 8 CFR 207.7(d). DHS also
proposes to amend its regulations to remove 8 CFR 216.4(b)(1) and (2)
because the two sections are purely operational and are superfluous
given the statutory requirements and regulatory revisions proposed to 8
CFR 103.2(b)(9). See INA sec. 216; 8 U.S.C. 1186a. The proposed changes
would not alter regulatory eligibility requirements but rather would
clarify certain interview procedures for conditional permanent
residents to reduce potential redundancies and ensure greater
uniformity within USCIS operations. Additionally, DHS is proposing
edits to update terms and cross-references resulting from the revisions
of this proposed rule. See proposed 8 CFR 103.2(b)(9), 208.21(f),
209.1(b), 209.2(c), 214.2(e)(23)(viii), 214.2(k)(1), 214.15(f)(1),
240.21(b)(2)(ii), 244.6(a), 244.17(a), and 245a.12(b) and (d).
D. Biometrics Requirement for U.S. Citizens, U.S. Nationals, and Lawful
Permanent Residents
DHS proposes that any individual filing or associated with a
benefit request, other request, or collection of information, must
submit biometrics. In certain circumstances this will include U.S.
citizens, U.S. nationals and lawful permanent residents (LPRs). See
proposed 8 CFR 103.16(a)(1). Under current regulations, biometrics from
U.S. citizens are generally mandatory only in connection with adoption-
based petitions and applications. See 8 CFR 204.3(c)(3); 8 CFR
204.310(b). The regulations do not generally require biometrics from
U.S. citizens or LPRs filing family-based petitions. See generally 8
CFR 204.1 and 214.2(k). As discussed below, DHS has determined that
U.S. citizens, U.S. nationals and LPR petitioners must submit
biometrics in connection with certain benefit requests in order for DHS
to better ensure that it can comply with existing laws.
1. The Adam Walsh Child Protection and Safety Act of 2006
The Adam Walsh Child Protection and Safety Act of 2006 (AWA)
amended the INA to prohibit a U.S. citizen or LPR from filing a family-
based immigrant visa petition or nonimmigrant fianc[eacute](e) visa
petition if he or she has been convicted of a ``specified offense
against a minor,'' unless the Secretary first determines, in the
Secretary's sole and unreviewable discretion, that the petitioner poses
``no risk'' to the beneficiary. See Adam Walsh Child Protection and
Safety Act of 2006, Public Law 109-248 (July 27, 2006), codified at INA
secs. 204(a)(1)(A)(viii)(I) and (B)(i)(II), 8 U.S.C.
1154(a)(1)(A)(viii)(I) and (B)(i)(II), and INA sec. 101(a)(15)(K), 8
U.S.C. 1101(a)(15)(K). To comply with the AWA, USCIS has determined
that the AWA requires that DHS must determine whether the petitioner
poses ``no risk'' to any derivative beneficiaries.
The AWA defines ``specified offense against a minor'' as an offense
against a minor (defined as a person who has not yet attained 18 years
of age) that involves any of the following: \88\
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\88\ Adam Walsh Child Protection and Safety Act of 2006 sec.
111(7), Public Law 109-248 (2006) (codified at 34 U.S.C. 20911(7)
after editorial reclassification).
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<bullet> An offense (unless committed by a parent or guardian)
involving kidnapping;
<bullet> An offense (unless committed by a parent or guardian)
involving false imprisonment;
<bullet> Solicitation to engage in sexual conduct;
<bullet> Use in a sexual performance;
<bullet> Solicitation to practice prostitution;
<bullet> Video voyeurism, as described in 18 U.S.C. 1801;
<bullet> Possession, production, or distribution of child
pornography;
<bullet> Criminal sexual conduct involving a minor, or the use of
the internet to facilitate or attempt such conduct; or
<bullet> Any conduct that by its nature is a sex offense against a
minor.\89\
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\89\ ``Sex offense'' is defined in section 111(5)(A) of the Adam
Walsh Act, Public Law 109-248 (2006), codified at 34 U.S.C.
20911(5).
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2. The International Marriage Broker Regulation Act (IMBRA)
IMBRA \90\ requires U.S. citizen petitioners for an alien
fianc[eacute](e) (K-1) or alien spouse (K-3) nonimmigrant to submit
with his or her Form I-129F, Petition for Alien Fianc[eacute](e),
criminal conviction information on any of the following ``specified
crimes'':
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\90\ International Marriage Broker Regulation Act of 2005,
Public Law 109-162 (Jan. 5, 2006), codified at INA secs. 214(d)(1),
(r)(1), and (r)(4), 8 U.S.C. 1184(d)(1), (r)(1), and (r)(4).
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<bullet> Domestic violence, sexual assault, child abuse and
neglect, dating violence, elder abuse, and stalking, or an attempt to
commit any of these crimes;
<bullet> Homicide, murder, manslaughter, rape, abusive sexual
contact, sexual exploitation, incest, torture, trafficking, peonage,
holding hostage, involuntary servitude, slave trade, kidnapping,
abduction, unlawful criminal restraint, false imprisonment, or an
attempt to commit any of these crimes; and
<bullet> Crimes relating to a controlled substance or alcohol where
the petitioner has been convicted on at least three occasions and where
such crimes did not arise from a single act.\91\
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\91\ INA secs. 214(d), (r), 8 U.S.C. 1184(d), (r).
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It also requires petitioners to submit inf
[…truncated; see source link]Indexed from Federal Register on November 3, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.