DHS Proposes Broad Expansion of Biometrics Collection and Use

The Department of Homeland Security (DHS) has released a proposed regulation that seeks to broadly expand the collection and use of biometrics in the enforcement and administration of immigration laws.  The rule would subject foreign nationals to periodic biometrics collection and continuous vetting after they enter the United States. It would eliminate age limits on the collection of biometrics, and would subject immigration sponsors and their authorized signatories – including U.S. citizens – to biometrics collection.

An advance copy of the proposed rule is now available. The rule will be published in the Federal Register on September 11, 2020. The agency will accept public comments on the proposed rule for 30 days after publication, and will accept comments on associated USCIS immigration form revisions for 60 days after publication.

A closer look

The DHS proposal includes the following changes to biometrics collection and use:

• Would require foreign nationals who have been granted an immigration benefit to provide periodic biometrics and be subject to screening and vetting throughout their stay in the United States until they naturalize to U.S. citizenship.
• Would expand biometrics collection to any individual filing or associated with an immigration benefit or request, including U.S. citizens, without regard to age (unless DHS waives or exempts the requirement).  Individuals subject to biometrics would include petitioners, authorized petitioner signatories, sponsors, and beneficiaries. Currently, U.S. citizens and children under 14 are exempt from the biometrics requirement.
• Would expand the types of biometrics techniques used by DHS to include an individual’s palm print, iris (iris image), voice (voice print), and/or DNA (partial DNA profile), subject to certain limitations.  Currently, biometrics generally only includes fingerprints, photographs and signatures.
• Would authorize biometric collection, without regard to age, upon arrest of an alien for purposes of processing, care, custody, and initiation of removal proceedings.
• Proposes that DHS may require, request, or accept DNA test results, which include a partial DNA profile, to prove the existence of a claimed genetic relationship, most relevant in family-based immigration cases.  Currently, DHS may not require DNA test results in order to prove a claimed relationship.
• Proposes that DHS may use and store DNA test results for the relevant adjudications or to perform any other functions necessary for administering and enforcing immigration and naturalization laws.
• Would expand the purposes for which biometrics are collected from individuals filing immigration applications or petitions, to include not only criminal history and national security background checks, but also identity enrollment, verification, and management; secure document production, and other uses to administer and enforce immigration and naturalization laws.
• Would authorize DHS to terminate conditional permanent residence for EB-5 investors and for foreign spouses if they fail to appear for an interview in connection with an application to remove conditions on residence.

What the proposal means for employment-based immigration filings

If finalized as proposed, the regulation would expand biometrics collection for a number of key employment-based immigration case types:

• Foreign nationals present in the United States after they are granted an immigration benefit – including sponsored employees and their foreign national dependents – would be subject to regular biometrics collection and background screenings at any time until they become U.S. citizens.
• Sponsoring employers and their authorized signatories for certain employment-based filings – such as a Form I-140 immigrant worker petition or a Supplement J confirmation of a job offer or portability request for an employment-based application for adjustment of status – could be subject to biometrics collection, though details are not yet clear.

What’s next for the proposed rule

After publication in the Federal Register on September 11, the public will have 30 days to comment on the rule and 60 days to comment on U.S. Citizenship and Immigration Services forms that would be revised to reflect enhanced biometrics requirements.

After the public comment period, DHS will review the feedback and prepare to issue a final rule in the Federal Register. Some aspects of the rule could be revised based on public feedback. There is no set timeframe for publication of a final rule, though the process typically takes several months.

Due to the sensitive privacy implications of expanded biometrics collection, retention and screening, there is likely to be robust public feedback. If a final regulation is issued, legal challenges are possible.