Biometrics Is Coming
Provisions of the USA Patriot Act ("Patriot Act") and the Enhanced Border Security and Visa Entry Reform Act ("Border Security Act") accelerated efforts to streamline visa processing and to identify and eliminate vulnerabilities in the visa processing system. As part of these efforts, biometric identifiers will be widely used in nonimmigrant and immigrant visas as well as passports. The introduction of biometric identifiers is likely to wreak havoc on the existing consular processing system.
Section 303 of the Border Security Act mandates the use of biometric identifiers in all U.S. visas by October 26, 2004. A biometric or biometric identifier is an objective measurement of a physical characteristic or personal behavior trait of an individual, which when captured in a database, can be used to verify identity or check against other entries in a database. Some examples of features that can be measured for these purposes include the face, fingerprints, hand geometry, handwriting, iris, retina and voice.
DOS, in conjunction with DHS, DOJ and the National Institute of Standards and Technology (NIST) studied the potential of biometric technologies in screening visa applicants and determined that the biometric identifier will consist of facial recognition (digital photographs) and fingerprint (two index fingerprints) technologies. These biometric identifiers can be used to conduct background checks and confirm the identity of visa applicants, and to ensure that an applicant has not received a visa under a different name.
DOS began deployment of the Biometric Visa Program in September 2003. As of April 2004, over 125 of the 211 consular posts have been collecting biometrics on all visa applicants, with worldwide deployment required by the congressionally mandated deadline of October 26, 2004.  According to DOS, the inkless fingerprint scanning generally takes approximately 30 seconds. As soon as the fingerprints are enrolled, they are sent electronically, along with the digital photograph and biographic data, to the Consular Consolidated Database (CCD) in Washington. The CCD relays the fingerprint files to DHS's Automated Biometric Fingerprint Identification System (IDENT)  system over a reliable, direct transmission line, which sends the results back to the CCD for relay back to the post. The current turnaround time is approximately seven to eight minutes. To date, seven pilot posts (Sanaa, Riyadh, Kuwait City, Jeddah, San Salvador, Hong Kong and Recife) are checking against the IDENT database and DOS is bringing the others on-line as quickly as possible. For those pilot posts, the visa cannot be issued until a response of no derogatory information found is returned from the IDENT system. Until that information from IDENT is received, the visa system is locked with regard to that visa application. For the remaining posts, the IDENT checks are being reviewed in the Department and posts are notified of any hits.
If the fingerprints match fingerprints provided by the FBI in the IDENT lookout database, the IDENT system returns to the post an FBI file number. At present, consular posts do not have access to the FBI record associated with that file number. As an interim procedure, DOS is processing such cases through the National Visa Center, where an FBI official receives and analyzes the FBI's records and then forwards the information to the post. If there is no match in the IDENT system, then the visa applicant's fingerprints are stored in the US-VISIT database in IDENT and a fingerprint identification number (FIN) is returned to the post. Once the visa has been issued, the nonimmigrant visa system sends to the DHS' Interagency Border Inspection System (IBIS) the issued visa data, including the visa applicant's photo and fingerprint identification number.
The Biometric Visa Program commences with consular posts abroad and complements and reinforces DHS' new program, the United States Visitor and Immigrant Status Indicator Technology program (US-VISIT) - an automated entry/exit system launched on January 5, 2004. Upon arrival in the United States, a foreign national who is subject to US-VISIT is inspected by CBP inspectors at a port-of-entry. The individual's travel documents are scanned, a digital photograph and inkless fingerprints of both index fingers are taken. If a foreign national has received a nonimmigrant visa from a post collecting biometrics, BCBP inspectors will have access to three windows through the database. The first contains the same digital photograph that was taken as part of the initial visa application at a consular post and the CBP inspector is able to tell if the traveler has altered the photo on the visa. If the visa is a complete counterfeit, nothing will appear on the CBP inspector's screen. The second screen contains the biographic data and the third reflects if there is a fingerprint on file. If the applicant has been fingerprinted as part of the visa application process at a post abroad, the BCBP officer will use the FIN to match the visa in the file with IDENT and will compare the visa holder's fingerprints with those on file. This one-to-one fingerprint comparison is designed to ensure that the person presenting the visa at the port-of-entry is the same person to whom the visa was issued. If there are no fingerprints, the officer will collect the 2 index prints and add it to the record. The individual's name is also checked against the Interagency Border Inspection Service (IBIS) database and the wants and warrants section of the National Crime Information Center (NCIC) database. IBIS contains certain terrorist watch list information from the TIPOFF system maintained by DOS. Both the IBIS and NCIC checks are text-based checks and not biometric checks.
Once the foreign national is enrolled in US-VISIT, the individual's arrival information will be stored in the IDENT biometric database. The enrollment process takes approximately 10-15 seconds. The speed of this process is attributed to the fact that BCBP officers only run a text-based name check at the time of admission. The IDENT security check, which is interfaced with the applicable biometric database, only occurs after the foreign national is admitted to the U.S. If BCBP ran the IDENT checks during the admissions process, it would approximately five minutes to every US-VISIT enrollment, which would wreak havoc at any port-of-entry.
Visa Waiver Country Applicants
Section 303 (c) of the Border Security Act also contained a separate provision requiring the use of biometric identifiers for passports of applicants from Visa Waiver Program (VWP) countries. This biometric identifier requirement was chosen to coincide with a second requirement that requires VWP travelers to present a machine-readable passport (MRP) when applying for visa-free entry into the United States. It is therefore important to note that the machine-readable passport requirement is a separate obligation to the biometric
The International Civil Aviation Organization (ICAO)  determined that facial recognition, in the form of a facial image stored in a contactless chip embedded in passports as the preferred biometric identifier. VWP countries must establish a program to issue ICAO-compliant passports by October 26, 2004. Travelers from VWP countries, whose passports are issued on or after October 26, 2004, must present a machine-readable passport with the appropriate biometric identifier or must otherwise apply for a nonimmigrant visa at a consular post in order to enter the United States after October 26, 2004.
Unlike the MRP requirement which applies to all VWP arrivals beginning on October 26, 2004, the biometric requirement applies only to VWP travelers whose passports were issued on or after that day. A passport issued on or before October 25, 2004, will be valid for VWP entry to the U.S. after October 26, 2004 as long as it is machine-readable. If it is not machine-readable, the VWP traveler must obtain a nonimmigrant visa. A passport issued on or after October 26, 2004 must not only be machine-readable, but must also contain the biometric identifier, or the traveler is not eligible to use the VWP and must obtain a nonimmigrant visa.
There is no waiver available for the production deadline to issue ICAO compliant passports with the appropriate biometric identifiers. Although all VWP countries are making varying degrees of progress toward compliance with the requirement to have a program in place to issue biometric passports, only one or two countries may have production capability in place by October 26, 2004. None of the larger countries, (Japan, the United Kingdom, France, Germany, Ireland, Italy or Spain) will begin issuing passports with the ICAO biometric by October 26, 2004. Japan and the United Kingdom anticipate that they will begin in late 2005; others may not come on-line until 2006. Most of these countries simply cannot overcome the hard-technology hurdles of designing, testing, and rolling out biometric passports on a large scale. Given these legitimate concerns, on April 2, 2004, the DHS and DOS announced that they have asked Congress to pass legislation that would extend the deadline for another 2 years to allow countries to comply with this mandate.
Biometrics Will Affect Consular Processing
The implementation of the biometric requirements by October 26, 2004 will severely impact the choices that visa applicants have when applying for a nonimmigrant visa.
With the anticipated introduction of the new biometric requirements, consular posts will require the physical presence of virtually all applicants to comply with the fingerprinting and photo requirement. Consular resources will be impacted because consular officers are required to take the fingerprints, supervise the process and follow up on the IDENT checks after the interview. These delays will likely mark the end of same-day visa issuance, placing additional burdens on consular officers without the necessary corresponding staff increases at posts to meet the increased demands in a timely manner. Based on these additional procedures, posts anticipate that they will not be able to issue visas on the same day, except in emergency situations. In addition to processing delays, applicants will face significant changes and delays in the scheduling of interview appointments.
Additionally, posts in VWP countries will likely face additional scheduling and processing backlogs based on the two VWP requirements (machine-readable passports and biometric passports) mentioned previously. DOS estimates that the demand for nonimmigrant visas will increase significantly over FY 2005 to over five million applications, nearly double FY 2003's workload. DOS has already acknowledged that it will not have the capacity to handle the increase in the workload caused by the anticipated surge in applications. However, if Congress provides relief from this deadline, it may alleviate some of the pressure on consular posts in VWP countries.
We expect that the biometric requirements will also affect TCN processing in Canada and Mexico, which have also begun to implement the Biometric Visa Program for the collection of biometrics. All the Canadian posts started collecting biometrics in January 2004. The post in Ciudad Juarez began collecting biometrics in March 2004; Nogales is scheduled to start in July 2004 and Tijuana in August 2004. These border posts have already begun to warn TCN applicants that visa issuance could possibly take 2-3 days as a result of the biometrics requirements, although they expect the majority of visas to be issued within a day.
Finally, the requirement for use of biometric identifiers in visas by October 26, 2004 will ultimately end the visa revalidation program. Although DOS has not issued guidance, it is likely to stop receiving visa revalidation applications in summer of 2004 to allow the 10 to 12 weeks to process any remaining applications by October 26, 2004. Despite suggestions to evaluate the option of using Application Support Center-type facilities to capture the photographs and fingerprints, it is unlikely that DHS will have capacity to take on the additional obligations on behalf of the DOS.
DOS began issuing biometric immigrant visas in February 2004, beginning in Hong Kong and will also have the Biometric Visa Program deployed at all posts by October 26, 2004. The process for the biometric immigrant visa is very similar to the nonimmigrant visa process. The visa itself will be printed on a tamper-resistant document. There will be a reliable datashare with DHS so that a CBP inspector at a port-of-entry can verify the identity of the traveler and the authenticity of that individual's status as a new immigrant.
The IDENT system is a legacy INS database, based on two fingerprints and a digital photograph. The IDENT system was created in 1994 and widely deployed from 1997 to 1998. It originally contained a recidivist database and a lookout database including all foreign nationals apprehended by the INS.
On October 7, 2003, the DOS granted a postponement until October 26, 2004, as the date by which VWP travelers from 21 countries must present a tamper-resistant machine-readable passport incorporating biometric identifiers at a U.S. port of entry to be admitted under the VWP program. The countries for which postponements have been granted include Australia, Austria, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Spain, Sweden, Switzerland and the United Kingdom. Each country to which a postponement was granted made a formal request and certified that it is making progress toward ensuring that machine-readable passports are available to its nationals and it has taken appropriate measures to protect against the misuse of its non-machine-readable passports. Five other eligible countries did not request a postponement of the effective date because virtually all of their citizens already have machine-readable passports. These countries include Andorra, Brunei, Liechtenstein, Luxembourg and Slovenia. As of October 1, 2003, visa waiver travelers from these five countries must present a machine-readable passport or a nonimmigrant visa. Belgium was not eligible to receive this extension and must possess a machine-readable passport or U.S. visitor visa.
A machine-readable passport is one that can be "read" mechanically when swiped through a passport reader. It contains two lines of text on the bottom of the data page which, when read, populate the bio-data fields for Consular Officers or CBP officers.
ICAO is a specialized agency of the United Nations, founded to "secure international cooperation and the highest possible degree of uniformity in regulations and standards, procedures, and organization regarding civil aviation matters.
Australia and New Zealand may make the October 26, 2004 deadline. Some countries have indicated that implementing a biometric program may have been possible by the deadline, but they are putting on the brakes because of questions of interoperability (can a U.S. POE scanner read a Danish biometric chip?) that remain unresolved.
Even the United States will not be able to comply with this deadline and will likely only introduce the new biometric U.S. passport by then end of 2005.
For example, in FY 2003, Japan (including Tokyo, Osaka, Kobe and Naha) processed approximately 111,000 nonimmigrant visas. These posts estimate that between October 26, 2004 and the introduction of their biometric bearing passport, projected for November 2005, between 1.2 to 1.5 million Japanese will need nonimmigrant visas. Most posts however, expect that once VWP countries begin issuing passports with biometrics, the increased workload will disappear and drop back down to current levels.
About The Author
Bernard P. Wolfsdorf, Esq. is running for Secretary in this year's AILA election. See http://www.bernieforailasecretary.org
Vote in the AILA Election - ballots available Wednesday 6/9 and Thursday 6/10 at the Membership Booth - AILA Central Exhibit Hall. Ballots can be picked up in the AILA Central Exhibit Hall at the Membership Booth in the Marriot Hotel on Wed 6/9 from 5-9:30pm or Thur 6/10 from 7:30am-4pm or prior to the 5pm at the Annual Membership meeting on the 5th floor of the Marriott Grand Ballroom C-D. Ballots may be returned until 4pm on Thursday at the Exhibit Hall and not later than 5:15pm at the Annual Membership meeting. Mr. Wolfsdorf practices exclusively in the area of immigration and nationality law in Los Angeles. He is a California state bar-certified specialist in immigration and nationality law and is listed in Martindale Hubbell's Pre-eminent Specialist Directory, and in the International Who's Who of Corporate Immigration Lawyers. He currently serves on AILA's Board of Governors. He has previously served on several AILA liaison committees, including the AILA-CSC Liaison Committee, AILA/DOS Liaison Committee and the AILA/INS Enforcement Committee. Mr. Wolfsdorf is a frequent lecturer on consular processing and can be contacted at Bernard@wolfsdorf.com.
Tien-Li Loke Walsh is a senior attorney with Wolfsdorf Associates who practices exclusively in the area of immigration and nationality law. She currently serves on the AILA/DOS Liaison Committee and previously served two terms on the AILA/CSC Liaison Committee. She has published extensively and spoken at numerous conferences. She completed her undergraduate studies at the University of Sydney, Australia and received her J.D. from Boston University School of Law. She can be contacted at firstname.lastname@example.org.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.
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