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[Federal Register: January 5, 2004 (Volume 69, Number 2)]
[Rules and Regulations]               
[Page 467-481]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja04-14]                         


[[Page 467]]

-----------------------------------------------------------------------

Part IV





Department of Homeland Security





-----------------------------------------------------------------------



8 CFR Parts 214, 215 and 235



Implementation of the United States Visitor and Immigrant Status 
Indicator Technology Program (``US-VISIT''); Biometric Requirements; 
Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United 
States Visitor and Immigrant Status Indicator Technology System; 
Interim Final Rule and Notice


[[Page 468]]


-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 214, 215 and 235

[BTS 03-01]
RIN 1651-AA54

 
Implementation of the United States Visitor and Immigrant Status 
Indicator Technology Program (``US-VISIT''); Biometric Requirements

AGENCY: Border and Transportation Security Directorate, Department of 
Homeland Security.

ACTION: Interim final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (Department or DHS) has 
established the United States Visitor and Immigrant Status Indicator 
Technology Program (US-VISIT) in accordance with several Congressional 
mandates requiring that the Department create an integrated, automated 
entry exit system that records the arrival and departure of aliens; 
that equipment be deployed at all ports of entry to allow for the 
verification of aliens' identities and the authentication of their 
travel documents through the comparison of biometric identifiers; and 
that the entry exit system record alien arrival and departure 
information from these biometrically authenticated documents. This rule 
provides that the Secretary of Homeland Security or his delegate may 
require aliens to provide fingerprints, photographs or other biometric 
identifiers upon arrival in or departure from the United States. The 
arrival and departure provisions are authorized by sections 214, 215 
and 235 of the Immigration and Nationality Act (INA).
    The Department will apply this rule's requirements only to aliens 
seeking to be admitted pursuant to a nonimmigrant visa who travel 
through designated air and sea ports. The rule exempts: aliens admitted 
on A-1, A-2, C-3 (except for attendants, servants or personal employees 
of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, 
NATO-4, NATO-5 or NATO-6 visas, unless the Secretary of State and the 
Secretary of Homeland Security jointly determine that a class of such 
aliens should be subject to the rule; children under the age of 14; 
persons over the age of 79; classes of aliens the Secretary of Homeland 
Security and the Secretary of State jointly determine shall be exempt; 
and an individual alien the Secretary of Homeland Security, the 
Secretary of State, or the Director of Central Intelligence determines 
shall be exempt. A Federal Register notice identifying the air and sea 
ports where biometrics may be collected at time of entry and departure 
has been published simultaneously with this rule. This rule authorizes 
the Secretary to establish pilot programs for the collection of 
biometric information at time of departure and at a limited number of 
ports of entry, to be identified through notice in the Federal 
Register. The biometrics provided by the aliens will be entered into 
the automated identification system (IDENT) system, which will be 
integrated with the entry exit system component of US-VISIT. The 
alien's biometric and other information will be checked against law 
enforcement and intelligence data to determine whether the alien is a 
threat to national security or public safety, or is otherwise 
inadmissible. An alien's failure to comply with this rule's 
requirements may result in a finding that he or she is inadmissible to 
the United States, has violated the terms of his or her admission and 
maintenance of status, or is ineligible for future visas, admission or 
discretionary immigration benefits. Due to heightened security concerns 
related to a continued threat of terrorist acts in the United States, 
the Department has determined that immediate implementation of this 
rule is necessary with request for public comments.

DATES: Interim rule effective on January 5, 2004. Written comments must 
be submitted on or before February 4, 2004.

ADDRESSES: Written comments may be submitted to Patrice Ward, Chief 
Inspector, Air and Sea Exit Manager, US-VISIT, Border and 
Transportation Security; Department of Homeland Security; 1616 North 
Fort Myer Drive, 5th Floor, Arlington, VA 22209. Submitted comments may 
be inspected at 425 I St NW., Room 4034, Washington, DC 20536 during 
regular business hours. Arrangements to inspect submitted comments 
should be made in advance by calling (202) 298-5200. Comments submitted 
will be available for public inspection in accordance with the Freedom 
of Information Act, 5 U.S.C. 552.

FOR FURTHER INFORMATION CONTACT: For US-VISIT requirements under this 
rule: Patrice Ward, Chief Inspector, Air and Sea Exit Manager, US-
VISIT, Border and Transportation Security; Department of Homeland 
Security; 1616 North Fort Myer Drive, 5th Floor, Arlington, VA 22209, 
at (202) 927-5200.

SUPPLEMENTARY INFORMATION:

What Is the US-VISIT Program?

    The US-VISIT program is a high priority initiative of the 
Department that is designed to improve overall border management 
through the collection of arrival and departure information on foreign 
visitors and immigrants who travel through our nation's air, sea and 
land ports. The goals of US-VISIT are to enhance the security of the 
United States, its citizens, permanent residents and visitors; to 
expedite legitimate travel and trade; to ensure the integrity of the 
U.S. immigration system; and to safeguard the personal privacy of 
foreign visitors and residents. By recording more complete arrival and 
departure information, the US-VISIT program will not only meet various 
Congressional mandates for an integrated, interoperable, and automated 
entry exit system for aliens as discussed below, but it will also 
enhance the security and safety of citizens, residents and visitors by 
verifying foreign national travelers' identities through the comparison 
of biometric identifiers, by authenticating their travel documents, and 
by checking their data against appropriate law enforcement and 
intelligence systems. The terrorist attacks of September 11, 2001, 
highlighted the need to improve national security by returning 
integrity to the U.S. immigration system. This requires developing 
better methods for identifying aliens who are inadmissible to the 
country as well as those who overstay their lawful admission periods. 
At the same time, the country needs procedures and systems that 
facilitate legitimate travel, commerce, tourism, education, 
international communication, and other benefits that flow from 
welcoming law-abiding citizens of other countries into the United 
States. The US-VISIT Program was created to help DHS meet all of these 
law enforcement and service goals.

What Is the Statutory Authority for the Entry Exit System Component of 
the US-VISIT Program and for the Collection of Biometric Identifiers 
From Aliens?

    The principal law that mandates the creation of an automated entry 
exit system that integrates electronic alien arrival and departure 
information is the Immigration and Naturalization Service Data 
Management Improvement Act of 2000 (DMIA), Public Law 106-215 (2000), 
114 Stat. 339, codified as amended at 8 U.S.C. 1365a. DMIA amended 
previous legislative requirements for an entry exit system that would 
record the arrival and departure of every alien who crosses the U.S. 
borders. See section 110 of the Illegal Immigration Reform and 
Immigrant Responsibility Act of 1996,

[[Page 469]]

Div. C, Public Law 104-208 (1996), 110 Stat. 3009-558, codified in 
scattered sections of 8 U.S.C. (later amended by DMIA). DMIA requires 
that the entry exit system consist of the integration of all authorized 
or required alien arrival and departure data that is maintained in 
electronic format in Department of Justice (DOJ) (now DHS) or 
Department of State (DOS) databases. 8 U.S.C. 1365a. This integrated 
entry exit system must be implemented at all air and sea ports of entry 
by December 31, 2003 using available air and sea alien arrival and 
departure data as described in the statute. DMIA also states that the 
system must be implemented at the 50 most highly trafficked land border 
ports of entry by December 31, 2004, and at all ports of entry by 
December 31, 2005 with all available electronic alien arrival and 
departure information. DMIA also requires DHS to use the entry exit 
system to match the available arrival and departure data on aliens and 
to prepare and submit to Congress various reports on the numbers of 
aliens who have overstayed their periods of admission and on 
implementation of the system. 8 U.S.C. 1365a(e). DMIA authorizes the 
Secretary of Homeland Security, in his discretion, to permit other 
Federal, State, and local law enforcement officials to have access to 
the entry exit system for law enforcement purposes. 8 U.S.C. 1365a(f).
    In addition, section 217(h) of the Visa Waiver Permanent Program 
Act of 2000 (VWPPA), Public Law 106-396 (2000), 114 Stat. 1637, 
codified as amended at 8 U.S.C. 1187(h), requires the creation of a 
system that contains a record of the arrival and departure of every 
alien admitted under the Visa Waiver Program (VWP) who arrives and 
departs by air or sea. The requirements of DMIA effectively result in 
the integration of this VWP arrival/departure information into the 
primary entry exit system component of the US-VISIT program.
    In late 2001 and 2002, Congress passed two additional laws 
affecting the development of the entry exit system, in part, in 
response to the events of September 11, 2001. Section 403(c) of the 
Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism (USA PATRIOT Act), Public 
Law 107-56 (2001), 115 Stat. 353, codified as amended at 8 U.S.C. 1379, 
required the Attorney General and the Secretary of State jointly, 
through the National Institute of Standards and Technology (NIST), and 
in consultation with the Secretary of the Treasury and other 
appropriate Federal law enforcement and intelligence agencies, and in 
consultation with Congress, to develop and certify a technology 
standard, including appropriate biometric identifier standards, that 
can be used to verify the identity of visa applicants and persons 
seeking to enter the United States pursuant to a visa and to do 
background checks on such aliens. In developing the entry exit system 
required by DMIA, section 414(b) of the USA PATRIOT Act directed the 
Attorney General and the Secretary of State to ``particularly focus on 
the utilization of biometric technology; and the development of tamper-
resistant documents readable at ports of entry.'' 8 U.S.C. 1365a note.
    The legislative requirements for biometric identifiers to be 
utilized in the context of the entry exit system were significantly 
strengthened with passage of the Enhanced Border Security and Visa 
Entry Reform Act of 2002 (``Border Security Act'' or EBSVERA), Public 
Law 107-173 (2002), 116 Stat. 553, codified in scattered sections of 8 
U.S.C. 302(a)(1) of the Border Security Act states that the entry exit 
system must use the technology and biometric standards required to be 
certified by section 403(c) of the USA PATRIOT Act. Section 303(b)(1) 
requires that ``[n]o later than October 26, 2004,'' only machine-
readable, tamper-resistant visas and other travel and entry documents 
that use biometric identifiers may be issued to aliens by DHS and DOS. 
8 U.S.C. 1732(b)(1). This section, however, does not invalidate 
unexpired travel documents that have been issued by the U.S. government 
that do not use biometrics. Section 303(b)(1) further states that the 
Secretaries of Homeland Security and State must jointly establish 
document authentication and biometric identifier standards for alien 
travel documents from among those recognized by domestic and 
international standards organizations. Id.
    Section 303(b)(2) requires that ``[n]o later than October 26, 
2004,'' all ports of entry must have equipment and software installed 
``to allow biometric comparison and authentication of all United States 
visas and other travel and entry documents issued to aliens, and 
passports'' that are required to be issued by VWP countries. 8 U.S.C. 
1732(b)(2). The current statutory language also requires that by that 
same date, VWP countries must have a program in place to issue tamper-
resistant, machine-readable, biometric passports that comply with 
biometric and document identifying standards established by the 
International Civil Aviation Organization (ICAO). 8 U.S.C. 1732(c)(1). 
The statute also states that on or after October 26, 2004, any alien 
applying for admission under the VWP must present a passport that is 
machine-readable, tamper-resistant and that uses ICAO-compliant 
biometric identifiers, unless the unexpired passport was issued prior 
to that date. 8 U.S.C. 1732(c)(2). The entry exit system must include a 
database that contains alien arrival and departure data from the 
machine-readable visas, passports, and other travel and entry 
documents. 8 U.S.C. 1731(a)(2). In developing the entry exit system, 
the Secretaries of Homeland Security and State must also make 
interoperable all security databases relevant to making determinations 
of alien admissibility. 8 U.S.C. 1731(a)(3).
    In addition, the entry exit system component must share information 
with other systems required by the Border Security Act. Section 202 of 
the Border Security Act addresses requirements for an interoperable law 
enforcement and intelligence data system and requires the integration 
of all databases and data systems that process or contain information 
on aliens.
    The US-VISIT program requirements that foreign nationals provide 
biometric identifiers when they seek admission to the United States are 
further supported by the Department's broad authority to inspect aliens 
contained in section 235 of the INA, 8 U.S.C. 1225. Pursuant to section 
215(a) of the INA, the President also has the authority to regulate the 
departure of aliens, as well as their arrival. President Bush has 
issued Executive Order titled Assignment of Functions Relating to 
Arrivals In and Departures From the United States delegating his 
authority to promulgate regulations governing the departure of aliens 
from the United States. In accordance with section 215 and with this 
new Executive Order, the Secretary of Homeland Security, with the 
concurrence of the Secretary of State, has the authority to issue this 
rule which requires certain aliens to provide requested biometric 
identifiers and other relevant identifying information as they depart 
the United States. For nonimmigrant aliens, the Department may also 
make compliance with the departure procedures a condition of their 
admission and maintenance of status while in the country under INA, 
section 214.
    Many other provisions within the INA also support the 
implementation of the US-VISIT program, such as the grounds of 
inadmissibility in section 212, the grounds of removability in section 
237, the requirements for the VWP program in section 217, the 
electronic passenger manifest requirements in section 231,

[[Page 470]]

and the authority for alternative inspection services in sections 
286(q) and 235 of the INA and section 404 of the Border Security Act. 
These are but a few of the most significant provisions that support US-
VISIT from among numerous other immigration and customs statutes.

Is DHS Meeting the December 31, 2003 DMIA Deadline for Implementing the 
Integrated Entry Exit System at the Air and Sea Ports of Entry?

    Yes. By integrating all the available arrival and departure data on 
aliens who arrive through the air and sea ports of entry that currently 
exists in the electronic systems of DHS and DOS and deploying the 
integrated system at those ports of entry, the Department has met the 
first DMIA deadline of December 31, 2003. The Department is 
accomplishing this first phase through the integration of the arrival 
and departure data contained in the Advance Passenger Information 
System (APIS) and the Arrival Departure Information System (ADIS), as 
well as other systems related to air and sea inspections. APIS and ADIS 
include the information captured from electronic passenger manifest 
data received from carriers, information on VWP aliens, and information 
on visa applicants and recipients received through the DataShare 
program with DOS.

What Changes Does This Interim Rule Make?

    Through an amendment to 8 CFR 235.1(d), the Department may require 
aliens who are arriving at United States air and sea ports of entry to 
provide fingerprints, photographs, or other biometric identifiers to 
the inspecting officer. The Department will collect fingerprints and 
photographs from aliens applying for admission pursuant to a 
nonimmigrant visa upon their arrival at air and sea ports of entry and 
upon departure if they exit through certain locations. Departure 
inspection will be conducted through pilot programs at a limited number 
of departure ports, identified by notice in the Federal Register. The 
rule exempts: (i) Aliens admitted on A-1, A-2, C-3 (except for 
attendants, servants or personal employees of accredited officials), G-
1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 
visas, unless the Secretary of State and the Secretary of Homeland 
Security jointly determine that a class of such aliens should be 
subject to the rule, (ii) children under the age of 14, (iii) persons 
over the age of 79, (iv) classes of aliens the Secretary of Homeland 
Security and the Secretary of State jointly determine shall be exempt, 
and (v) an individual alien the Secretary of Homeland Security, the 
Secretary of State, or the Director of Central Intelligence determines 
shall be exempt. Although the biometric requirements in this rule will 
initially only apply to nonimmigrant visa-holders who travel through 
designated air and sea ports, the Department anticipates expanding the 
program, through separate rulemaking to include other groups of aliens 
and more ports in order to eventually have the capability to verify the 
identities of most foreign national travelers through biometric 
comparisons as envisioned by the USA PATRIOT Act and the Border 
Security Act.
    At amended 8 CFR 235.1(d)(ii), the rule states that failure by an 
alien to provide the requested biometrics necessary to verify his or 
her identity and to authenticate travel documents may result in a 
determination that the alien is inadmissible under section 212(a)(7) of 
the INA for lack of proper documents, or other relevant grounds in 
section 212 of the Act.
    New rule 8 CFR 215.8 states that the Secretary of Homeland Security 
may establish pilot programs at up to fifteen air or sea ports of 
entry, designated through notice in the Federal Register, through which 
the Secretary may require aliens who are departing from the United 
States from those ports to provide fingerprints, photographs, or other 
biometric identifiers, documentation, and such other such evidence as 
may be requested to determine an alien's identity and whether he or she 
has properly maintained his or her status while in the United States.
    This rule also amends 8 CFR 214.1(a) to state that if a 
nonimmigrant alien is required under section 235.1(d) to provide 
biometric identifiers, the alien's admission is conditioned on 
compliance with any such requirements. Similarly, if the alien is 
required to provide biometrics and other information upon departure 
pursuant to 8 CFR 215.8, the nonimmigrant alien's failure to comply may 
constitute a failure of the alien to maintain the terms of his or her 
immigration status.
    Finally, the rule makes clear by amending 8 CFR 235.1(f) that all 
nonimmigrant aliens will be issued the Form I-94, Arrival Departure 
Record regardless of whether they come through an air, sea or land port 
of entry, unless they are otherwise exempted from the I-94 requirement. 
This amendment clarifies that air and sea carrier passengers will 
continue to be issued I-94s which must be surrendered upon departure 
unless the I-94 was issued for multiple entries by the alien.

What Is a ``Biometric Identifier?''

    As used in this rule, a ``biometric identifier'' is a physical 
characteristic or other attribute unique to an individual that can be 
collected, stored, and used to verify the claimed identity of a person 
who presents himself or herself to a border inspector. To verify 
identity, a similar physical characteristic or attribute is taken from 
the person who presents himself or herself and it is compared against 
the previously collected identifier. Examples of biometric identifiers 
include, but are not limited to, the face (i.e., captured in a 
photograph), fingerprints, hand geometry measurements, handwriting 
samples, iris scans, retina scans, voice patterns, and other unique 
characteristics.

Why Is This Interim Final Rule Necessary and Why Was It Not Issued as a 
Proposed Rule for Notice and Comment?

    The Department has determined that the national security and public 
safety interests of the nation necessitate the implementation of this 
rule as an immediately effective interim rule with provision for public 
comment after the effective date. The collection of biometrics from 
foreign nationals seeking to enter or depart the United States will 
greatly enhance the Government's ability to identify persons who are a 
threat to the public and to national security. The longer the 
Department delays in collecting biometrics from visa-holders and 
eventually other foreign nationals, the greater chance that a person 
who has been previously identified as a threat to the public may not be 
timely identified through his fingerprints, photographs or other 
biometrics and may enter the United States without his true identity 
being detected.
    The Department has further determined that this rule is necessary 
to give effect to the legislative mandates for utilization of biometric 
identifiers in the entry exit system component of the US-VISIT program 
as described in the USA PATRIOT Act and the Border Security Act, as 
previously discussed. Unless it collects biometric identifiers from the 
aliens who present themselves at inspection and on departure, the 
Department would be unable to compare the biometrics associated with 
the travel document presented (e.g., a visa) against the bearer's 
characteristics or against DHS or DOS records of any previously taken 
biometrics associated with the alien's name. In other words,

[[Page 471]]

the Department would not be able to verify the alien's identity fully 
or authenticate his documents as envisioned by Congress when it passed 
the two laws.
    Congress has stated that ``no later than October 26, 2004,'' 
biometrics must be utilized with all travel and entry documents that 
DHS and DOS issue to aliens and that machines capable of verifying the 
identities of foreign travelers and authenticating their documents 
through biometrics must be at all ports of entry. 8 U.S.C. 1732(b). The 
Secretary of Homeland Security has determined that waiting until the 
last minute (i.e., October 26, 2004) to begin collecting biometrics and 
verifying the documents and identities of aliens who cross our borders 
would be highly detrimental to the security of the country. Moreover, 
the Department believes that it makes practical sense to implement the 
integrated entry exit system with air and sea arrival/departure data on 
foreign travelers at the same time as a biometric component is 
introduced to the system to provide the enhanced security benefits that 
biometrics will provide to verify identity. For these reasons, the 
Department has determined that it must immediately begin collecting 
biometrics from a limited group of aliens, i.e., nonimmigrant visa 
holders who enter through the air and sea ports, and expand to other 
categories and locations as rapidly as possible.
    The Department does encourage and welcome public comments on this 
rule and the manner in which it will be implemented. The Department 
will fully consider all comments submitted by the comment period as it 
prepares a final rule and before it expands the program to other 
categories of foreign nationals. See discussion of the ``Good Cause 
Exceptions'' below.

What Categories of Aliens Are Affected by This Rule?

    This interim rule applies only to aliens applying for admission 
pursuant to a nonimmigrant visa who arrive in or depart from the United 
States through designated air and sea ports. The rule exempts: (i) 
Aliens admitted on A-1, A-2, C-3 (except for attendants, servants or 
personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-
1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas, unless the Secretary 
of State and the Secretary of Homeland Security jointly determine that 
a class of such aliens should be subject to the rule, (ii) children 
under the age of 14, (iii) persons over the age of 79, (iv) classes of 
aliens the Secretary of Homeland Security and the Secretary of State 
jointly determine shall be exempt, and (v) an individual alien the 
Secretary of Homeland Security, the Secretary of State, or the Director 
of Central Intelligence determines shall be exempt. However, as a 
routine matter, only nonimmigrant visa-holders will be affected by this 
rule.

What Biometrics Will Be Collected and Will They Ever Change?

    The Department initially plans to take a digital photograph and two 
fingerprints from each nonimmigrant alien who presents a visa at 
designated air or sea ports of entry. The Department, however, reserves 
its right to expand the types of biometric identifiers required in the 
future where doing so will improve the border management, national 
security, and public safety purposes of the entry exit system. 
Additional biometric requirements will be implemented in compliance 
with section 403(c) of the USA PATRIOT Act.

How Did DHS Determine Which Biometric Identifiers Would Be Collected 
for US-VISIT Purposes?

    The Department has chosen to collect two fingerprints and 
photographs, in part, because they currently are less intrusive than 
other forms of biometric collections and because the combination of 
these biometric identifiers are an effective means for verifying a 
person's identity. Also, historically fingerprints and photographs have 
been the biometrics of choice within the law enforcement communities 
and the travel industry. As the deployment of more comprehensive 
technologies becomes feasible, however, the Department may collect 
additional biometric data to improve its ability to verify the identity 
and determine the admissibility of nonimmigrant aliens.
    As required by section 403(c) of the USA PATRIOT Act and section 
302(a)(1) of the Border Security Act, the Department of Justice and the 
former Immigration and Naturalization Service (INS) worked closely with 
NIST, DOS, other agencies and Congress to study and select fingerprints 
and digital photographs as the biometric identifiers that will be used 
in conjunction with the entry exit system. A report on the biometric 
standards selected was delivered to Congress in January 2003. See ``Use 
of Technology Standards and Interoperable Databases with Machine-
Readable, Tamper-Resistant Travel Documents,'' Report to Congress from 
U.S. Department of Justice, U.S. Department of State, and the National 
Institute of Standards and Technology (January 2003).

How Will a Person's Fingerprints and Photographs Be Collected?

    On arrival at air and sea ports of entry, inspectors will scan two 
fingerprints of the foreign national with an inkless device and will 
take a digital photograph of the person. This information, as well as 
other information that the person provides, will then be used to assist 
the border inspector in determining whether or not to admit the 
traveler. Upon exit from the United States at designated air and sea 
ports, the foreign national traveler will go to a work station or kiosk 
to scan his travel documents, have his photograph compared, and to 
provide his fingerprints on the same type of inkless device that is 
used at entry.

What If an Individual Cannot Provide Clear Fingerprints or Photographs 
or Is Disabled in Such a Way That He or She Is Unable To Provide the 
Biometric Information?

    The Department will make reasonable efforts that are also 
consistent with the Government's need to verify an alien's identity to 
accommodate any person with disabilities which prevent him or her from 
complying with the requirements of this rule for fingerprinting, 
photographs or other biometric collections. We will follow all required 
procedures that are applicable to government action under the Americans 
With Disabilities Act, codified as amended at 42 U.S.C. 12101 et seq. 
and the Federal Rehabilitation Act, codified as amended at 29 U.S.C. 
701 et seq. In cases where a satisfactory fingerprint, for example, 
cannot be taken, the inspecting officer may accept another biometric 
identifier that will reasonably identify the person or sufficient 
additional information from the alien from which the officer can 
determine the individual's identity. In some instances where the 
identity of a person with disabilities does not appear to be truly at 
issue, the requirement for fingerprints or other biometric identifier 
may be waived in the discretion of the inspecting officer. The 
Department will ensure that procedures for handling the collection of 
biometric information from persons with disabilities are covered in any 
internal field guidance it may issue to implement this rule. In 
addition, the Department welcomes public comment on methods for 
properly handling situations where persons with disabilities are not 
able to provide the requested biometrics, but that still permit the 
Department to make the necessary identity and admissibility 
determinations.

[[Page 472]]

How Will the Biometric Information Be Used?

    The fingerprints and photograph(s) of the alien will be entered 
initially into an existing system called IDENT The alien's fingerprints 
and photographs will be compared against the biometric information 
already stored in IDENT to determine whether there is any information 
that would indicate the alien is an imposter or otherwise inadmissible. 
In addition, IDENT and the other technology associated with US-VISIT 
will permit the inspecting officer to compare the alien's fingerprints 
and photographs with any such biometric information previously 
captured.
    DOS is currently implementing a program on a phased-in basis for 
taking fingerprints of many categories of visa applicants who have been 
approved or denied and storing those fingerprints and photographs in 
IDENT. This DOS-collected biometric information may also be accessed 
through the Interagency Border Inspection System (IBIS) by inspectors 
at the ports of entry in the United States. The inspecting officer will 
be able to compare the biometrics associated with the person who 
applied for the visa at the consular office abroad against the 
biometrics of the person who is present at the port of entry. Once the 
machine readers are in place at the ports of entry, this process will 
be fully automated and the visas and certain other travel documents 
will be capable of being scanned and compared electronically. An 
alien's name, biometric information and other identifying information 
will also be checked against various law enforcement and intelligence 
data for information that may identify him or her as inadmissible to 
the United States or as a threat to national security or the public 
safety. In the air and sea context, much of the information on the 
alien is already collected via the electronic passenger manifest 
process required by section 402 of the Border Security Act, codified as 
amended at INA, section 231; 8 U.S.C. 1221. Customs and Border 
Protection (CBP) officers currently have access to the passenger's 
complete name, nationality, date of birth, citizenship, gender, 
passport number and country of issuance, U.S. visa number, if 
applicable, alien registration number, if applicable, country of 
residence, and complete address while in the United States. U.S. 
inspectors receive the information prior to the alien's arrival through 
the Advance Passenger Information System (APIS) and the Arrival 
Departure Information System (ADIS), and it is run against the IBIS 
which contains ``lookouts'' on individuals submitted by more than 20 
law enforcement and intelligence agencies. Thus, by the time the person 
gets to an air or sea port of entry, inspectors have identified aliens 
that need to be scrutinized more closely as well as aliens who may be 
inadmissible and whether other law enforcement agencies should be 
notified of any individual's presence.

Are Travelers Who Come Under the Visa Waiver Program (VWP) Affected by 
This Rule?

    At this time, travelers who seek to enter under the VWP are not 
affected by this rule. However, under current law, an alien will not be 
admitted under the VWP on or after October 26, 2004, without a machine-
readable, tamper-resistant passport that meets ICAO biometric standards 
for photographs, unless his passport is unexpired and was issued prior 
to that date. 8 U.S.C. 1732(c)(2). The machines that DHS must have in 
place at all ports of entry by that same date will also be capable of 
reading the ICAO-compliant biometrics in any VWP alien's passport. 8 
U.S.C. 1732(b)(2).

Will Canadian or Mexican Citizens Have To Provide Biometric Identifiers 
When They Travel To or From the United States?

    This rule does not affect foreign nationals entering the U.S. 
through land ports of entry. Aliens entering through land ports of 
entry need only meet the current requirements in the law. However, the 
rule does apply to Canadian and Mexican citizens who enter through air 
and sea ports of entry as outlined below. At present, the Department 
will not apply the biometric collection requirements of this rule to 
those Canadian citizens who travel on temporary visits to the United 
States and who do not apply for admission pursuant to a nonimmigrant 
visa. As usual, Canadians who are lawful permanent residents of the 
United States must possess a Permanent Resident Card (PRC) or other 
evidence of their permanent resident status; they will not, however, be 
routinely fingerprinted or photographed. The Department, as it always 
has, reserves the right to require fingerprints or other identifying 
information from any individual whom it has reason to believe may not 
be who he or she claims.
    Mexicans currently must present visas, Border Crossing Cards (BCC), 
or other appropriate evidence of their immigration status to enter the 
United States. Since October 1, 2002, the law has required that a 
biometric characteristic (e.g., face, fingerprint) of a bearer of a BCC 
must be matched against the biometric on the BCC before the bearer may 
be admitted. See 8 CFR 212.1(c)(3). This requirement remains applicable 
at all ports of entry. Machines have been deployed at the ports of 
entry to allow for the automated comparison of the fingerprints of BCC 
bearers against their documents. Under this rule and the Department's 
first implementation phase for US-VISIT biometrics collection, 
nonimmigrant Mexican visa holders will be required to provide 
fingerprints and photographs if they enter or exit at the designated 
ports.

Which United States Ports of Entry Will Be Involved in the Collection 
of Biometrics and in Verifying the Identities of Aliens and 
Authenticating Their Documents?

    The notice that is published elsewhere in this issue of the Federal 
Register identifies the airports and the seaports where nonimmigrants 
who apply for admission pursuant to a nonimmigrant visa will be 
required to provide biometric information at time of arrival and 
departure. The names of all the affected ports of entry will not be 
repeated here for the sake of brevity.
    The Department intends to implement departure inspection through 
pilot programs at a limited number of departure ports. The Department 
has identified thirty departure ports as candidates at which it will 
next implement biometric collection. The Department anticipates that, 
within the next few months, it will implement departure biometric 
collection at approximately fifteen of those ports of entry. This rule 
therefore authorizes the Secretary to establish pilot programs for 
departure inspection at up to fifteen air and sea ports, to be 
identified through notice in the Federal Register.
    Through those pilot programs, the Department will test different 
methods to collect the required information from nonimmigrant aliens as 
they depart the United States through the designated ports of entry. 
The Department is currently exploring several different methods and 
processes, including but not limited to self-serve kiosks and hand-held 
scanners. The pilot program will enable the Department to conduct a 
cost benefit analysis of the different processes. The Department 
welcomes comments on how to implement biometric collection at time of 
departure. After reviewing the reliability, efficiency, and cost of 
those pilot programs, and receiving comments from the public regarding 
the departure

[[Page 473]]

inspection process, the Department will undertake new rulemaking to 
allow the Secretary to expand biometric collection to all departure 
ports.

Will Foreign Travelers' Biometrics Be Collected, Their Identities 
Verified, and Their Documents Authenticated on Departure From the 
United States?

    Yes. Aliens subject to this rule who exit through designated air 
and sea ports where pilot programs are implemented will be required to 
``check out'' at work stations in those air and sea ports and to 
provide requested information and biometrics. The information that a 
traveler provides on departure will be verified and matched against any 
available information that he or she provided upon inspection and that 
was stored in the systems that comprise US-VISIT. This information will 
also be used to identify persons who have overstayed their authorized 
periods of admission, to compile the overstay reports required by DMIA, 
and where applicable, considered in DOS and DHS determinations on 
whether the person is eligible for future visas, admission or other 
discretionary immigration benefits.

Will There Be Any Assistance for Travelers During the Exit Process?

    The exit collection mechanism at special work stations or kiosks 
will be structured to include international instructional icons, 
illustrating how the alien will submit biometrics and travel documents 
for scanning. DHS or contract personnel will be available, at initial 
stages, to assist travelers covered by the first increment of US-VISIT 
in learning how the exit process works.

Is a Nonimmigrant Visa Holder Required To Enter or Exit Through One of 
the Ports Designated for Biometric Processing in the Federal Register 
Notice?

    Certain individuals remain subject to the National Security Entry 
Exit Registration System (NSEERS) regulations to depart through 
specific ports and undergo special departure procedures. See 8 CFR 
264.1(f)(8). The most recent Federal Register notice listing the NSEERS 
ports of departure can be found at 68 FR 8967. This rule does not alter 
or amend that list.
    Nonimmigrant visa holders, except those subject to NSEERS, may 
continue to depart the United States through any port, even those 
locations where biometrics are not currently being collected on exit. 
The Department recommends that any alien whom the Secretary designates 
to be covered by this rule's departure requirements and who chooses to 
depart from a location where US-VISIT departure procedures are not in 
place may wish to preserve any evidence that he or she did indeed 
depart the United States. Such evidence could include a passport stamp 
of admission to another country or a used airline ticket showing the 
person left the United States in a timely manner. Such information may 
be useful to show to a consular or immigration officer in case there is 
ever any future question about whether the alien properly left the 
United States. Individuals who have an I-94 Arrival Departure Record 
that must be surrendered upon departure should be certain to return 
this form promptly to the appropriate DHS division as required on the 
form to ensure that the individual's departure will be entered into 
appropriate DHS systems. In addition, the departure of individuals who 
leave on air or sea carriers that submit electronic passenger departure 
manifests to DHS/CBP will be recorded in DHS systems and should help to 
prove when the alien departed. However, not all carriers are currently 
able to submit this information electronically. The Department 
recognizes that there may be some interim confusion about whether 
covered foreign nationals overstayed their last periods of admission 
where there is no evidence in the US-VISIT systems of their departure. 
The Department anticipates that as departure procedures are expanded to 
all air, sea and land border ports, such confusion and potential for 
inaccurate determinations that a person overstayed will be 
significantly reduced.

Are There Any Additional Fees Imposed Upon Travelers as a Result of 
This Rule?

    No, there are no additional fees for travelers required by this 
interim rule. DOS and DHS may need to adjust the fees for visas and 
other immigration documents that utilize biometrics in the future, but 
the Departments will follow all required Administrative Procedure Act 
(APA) procedures for notice and comment and any other applicable legal 
requirements if the fees change.

How Much Will the Biometric Collection Procedures Cost DHS and What Is 
the Source of the Funding?

    In FY 2003, the US-VISIT program spent $190 million for the 
biometrics portion of the program. For FY 2004, the cost of 
implementing the biometric collection and verification procedures at 
air and sea ports of entry and departure locations is anticipated to be 
approximately $103 million. The funds for the equipment and other 
requirements to support the biometric procedures come from the 
approximately $380 million that Congress appropriated in FY 2003 for 
development of the entry exit system component of US-VISIT and from the 
$330 million total appropriated for FY 2004.

What May Happen If an Alien Refuses To Provide the Required Biometric 
Identifiers at Time of Entry?

    This rule provides that an alien who refuses to provide biometric 
identifiers when seeking admission to the United States in order to 
assist inspectors in verifying his or her identity and authenticating 
his or her travel documents may be deemed inadmissible under INA, 
section 212(a)(7) (failure to provide appropriate documents), or other 
applicable grounds of inadmissibility in INA, section 212. For example, 
the inspector may deny admission under INA, section 212(a)(7) if he or 
she is unable to determine whether the applicant is presenting a 
document that is truly his and the inspector is unable to collect a 
biometric that can be verified against the fingerprints and photographs 
associated with the document. The rule does not attempt to identify 
every ground of inadmissibility that may apply because each case may 
present different circumstances that skilled inspectors are trained to 
assess and adjudicate. The rule does not change any of the existing 
criteria for inadmissibility, but allows inspectors to consider a 
failure to provide requested biometric identifiers as a factor in their 
admissibility determinations. In some circumstances, such as an 
individual who cannot physically provide clear fingerprints, a failure 
to do so will not necessarily result in an inadmissibility 
determination, provided that the inspector is otherwise satisfied that 
the person is who he claims to be and has appropriate authorization to 
enter the country. This rule also amends 8 CFR 214.1(a) to state that 
if a nonimmigrant alien is required under 8 CFR 235.1(d) to provide 
biometric identifiers, the alien's admission is conditioned on 
compliance with any such requirements.

What May Happen If an Alien Fails To Provide the Required Biometric 
Identifiers at the Time of Departure From the United States?

    An alien who fails to comply with the departure requirements may be 
found in violation of the terms of his or her admission, parole, or 
other immigration status. This rule states that an alien who is covered 
by the requirements to

[[Page 474]]

provide biometrics on departure at new 8 CFR 215.8 may be found to have 
overstayed the period of his or her last admission if the available 
evidence indicates that he or she did not leave the United States when 
required to do so. A determination that the alien previously overstayed 
may result in a finding of inadmissibility for accruing prior unlawful 
presence in the United States under section 212(a)(9) of the INA, 
provided that the accrued unlawful time and other prerequisites of that 
statute are met, or that the alien is otherwise ineligible for a visa 
or other authorization to reenter the United States. An overstay 
finding could also trigger consequences for a nonimmigrant visa holder 
under section 222(g) of the INA. If the person is deemed to have 
overstayed his authorized period of admission, his visa (including a 
multiple entry visa) would be deemed void under section 222(g). Section 
222(g) further states that where a visa is void because the alien 
overstayed, he or she is ineligible to be readmitted to the United 
States as a nonimmigrant except on another visa issued in the consular 
office located in the country of the alien's nationality, or where 
there is no DOS office in the country, in such other consular office as 
the Secretary of State shall specify. The requirement of obtaining a 
new visa from the consular office in the country of the alien's 
nationality may be waived where extraordinary circumstances are found. 
8 U.S.C. 1202(g).
    The Department intends to focus its enforcement of departure 
requirements in this rule on cases where the alien willfully and 
unreasonably fails to comply with this regulation. The rule provides 
that an alien's failure to follow the departure procedures may be 
considered by an immigration or consular officer in making a 
discretionary decision on whether to approve or deny the alien's 
application for a future immigration benefit. The rule does not, 
however, state that an alien's failure to comply with departure 
procedures in every instance will necessarily result in a denial of a 
future visa, admission or other immigration benefit. For example, no 
alien will be penalized for failing to provide biometrics on departure 
where the Department has not yet implemented the departure facilities 
or procedures at the specific port where the person chooses to depart. 
There may well be instances where a consular officer or inspector, in 
his or her discretion and after reviewing the totality of the 
circumstances, determines that an alien's previous failure to comply 
with the departure procedures does not result in a finding of 
inadmissibility or the denial of an immigration benefit.

Will Biometric Collection Create Inspection Delays at Ports of Entry 
and Departure?

    The Department is aware of this concern and is taking all possible 
steps to prevent congestion and delays in immigration and customs 
processing at the ports of entry and the departure locations. On entry, 
the Department anticipates that an average of only 15 additional 
seconds per nonimmigrant visa holder will be needed to complete 
processing as a result of the added biometric procedures. The 
Department arrived at this estimate after piloting the process on a 
voluntary compliance basis at Atlanta's Hartsfield International 
Airport. Individuals who are not required to provide biometrics at this 
time (e.g., U.S. citizens, permanent residents, persons not required to 
have visas) may be routed through separate processing lines at the air 
and seaports so as to further alleviate congestion. Individuals who 
require more in depth scrutiny will, as usual, be taken to secondary 
inspection areas so as not to delay primary inspection processing for 
other travelers. The Department does not believe that significant 
delays will occur at the air and sea ports as a result of the new 
biometric collection and verification procedures. The Department 
further believes that the limited departure processing at the air and 
sea ports can be accommodated within the pre-boarding time period that 
carriers currently recommend travelers allow before their scheduled 
departure and that their travel should not be delayed.
    While the Department does not anticipate longer wait times at ports 
of entry due to US-VISIT processing, a number of mitigation strategies 
have been developed, not unlike those already available to CBP under 
other conditions which result in backups. However, as the US-VISIT 
program expands, the Department will continually reassess the issue of 
delays to reduce any negative effects.

Will Legitimate Travel, Commerce, and Tourism Be Negatively Affected by 
This Rule?

    As noted above, the Department does not believe that immigration 
and customs processing will be significantly delayed at the ports of 
entry or the departure locations. The Department believes that over 
time, the US-VISIT system will facilitate travel for those with 
biometrically-enhanced travel documents and others for whom the system 
contains travel records. Public comments are invited on ways that 
delays and negative effects on travel, trade, commerce, tourism and 
other desired aspects of immigration can be alleviated or minimized.

Are United States Citizens and Lawful Permanent Residents Required To 
Provide Biometric Identifiers?

    No, United States citizens and lawful permanent residents will not 
be required to provide biometric identifiers under this rule. U.S. 
citizens must continue to present passports as required by 22 CFR 53, 
unless an exception under that regulation applies. Lawful permanent 
residents must present documents evidencing their status as described 
in 8 CFR 211.

Will Other Countries Impose Similar Biometric Requirements on United 
States Citizens?

    Each country maintains the right to establish its own procedures 
and requirements for entry by foreign visitors. The Department, in 
coordination with DOS, will work with other governments that wish to 
institute programs of biometric identification in order to ensure that 
they are fair, efficient, accurate and no more intrusive than 
necessary.

Will Any Visa-Holders Be Exempt From the Fingerprinting and 
Photographing Requirements of This Rule?

    The rule exempts: (i) Aliens admitted on A-1, A-2, C-3 (except for 
attendants, servants or personal employees of accredited officials), G-
1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 
visas, unless the Secretary of State and the Secretary of Homeland 
Security jointly determine that a class of such aliens should be 
subject to the rule, (ii) children under the age of 14, (iii) persons 
over the age of 79, (iv) classes of aliens the Secretary of Homeland 
Security and the Secretary of State jointly determine shall be exempt, 
and (v) an individual alien the Secretary of Homeland Security, the 
Secretary of State, or the Director of Central Intelligence determines 
shall be exempt. An immigration inspector retains discretion to collect 
an alien's biometrics if, in the inspector's discretion, such action is 
necessary to determine the exact age of the alien and whether he or she 
is exempt from the requirements of this rule.

[[Page 475]]

Will Other Nonimmigrants for Whom Ten-Print Fingerprinting for 
Registration Purposes Has Been Waived by Existing Regulations be 
Required to Provide Two-Print Fingerprints and a Photograph Under This 
Rule Governing Identity Verification on Arrival and Departure From the 
United States?

    The Department has determined that most nonimmigrant visa-holders 
for whom ten-print fingerprinting has been waived for registration 
purposes under 8 CFR 264.1(e)(1-2) must nevertheless comply with the 
requirements of this interim rule for the collection of biometrics (two 
fingerprints and a photograph) for purposes of entry and exit 
inspection. This includes nonimmigrants who are in the United States 
for less than one year, as well as nonimmigrants who are citizens of 
countries that do not fingerprint U.S. citizens who temporarily reside 
in their countries.
    The ten-print fingerprinting that has been waived for these 
categories of nonimmigrants under 8 CFR 264.1(e) (1-2) is done for 
purposes of alien registration under INA, sections 262-266 and is not 
the same as the collection of two fingerprints and a photograph for 
identity verification and document authentication at arrival and 
departure inspection that is required under this interim rule. The 
biometric collections for arrival and departure inspection purposes are 
authorized instead by INA, section 235, 214, 215, and are further 
supported by the mandates for biometrics in section 303 of the Border 
Security Act and sections 403(c) and 414 of the USA PATRIOT Act.
    DHS believes that the national security of the country, public 
safety and the integrity of the immigration system necessitate 
requiring most nonimmigrant visa holders to provide fingerprints and 
photographs for identity checks, law enforcement background checks, and 
determinations of admissibility.

Do the Requirements for the Collection of Biometric Identifiers Violate 
the Statutory ``No New Documents or Data Collection'' Prohibition in 
the DMIA?

    No, the Department has determined that there is no conflict between 
this rule and DMIA. DMIA does state that ``[n]othing in this section 
[codified at 8 U.S.C. 1365a] may be construed ``to permit the 
[Secretary of Homeland Security] or the Secretary of State to impose 
any new documentary or data collection requirements on any person in 
order to satisfy the requirements of this section * * *.'' 8 U.S.C. 
1365a(c)(1). However, the provision in DMIA that immediately follows 
that subsection states that ``[n]othing in this section shall be 
construed to reduce or curtail any authority of the [Secretary of 
Homeland Security] or the Secretary of State under any other provision 
of law.'' 8 U.S.C. 1365a(c)(2)(emphasis added). The biometric 
requirements of this interim rule are supported by statutory authority 
outside of the four corners of DMIA and thus fall within DMIA's own 
``no reduction of authority'' provision. Most importantly, Congress has 
expressly stated in sections 403(c) and 414 of the USA PATRIOT Act and 
sections 302-303 of the Border Security Act, laws passed after DMIA and 
after the terrorist attacks on September 11, 2001, that DHS and DOS 
should ``particularly focus on the utilization of biometric 
technology'' in developing the entry exit system; that alien identities 
be verified through biometric comparisons based on certified biometric 
standards developed through NIST; that travel and entry documents 
issued to aliens utilize biometrics; and that those documents be 
authenticated by machine-readers at ports of entry that will capture 
information on the aliens' arrival and departure for inclusion in the 
entry exit system. In addition, this rule is supported by other 
authority in sections 214, 215 and 235 of the INA, which has not been 
curtailed or reduced by DMIA. For these reasons, this rule does not 
violate the proscription against new documentary or data collections in 
DMIA.

What Persons or Entities Will Have Access to the Biometric and Other 
Information Collected on Aliens Under the US-VISIT Program?

    The biometric and other information available in IDENT, APIS, ADIT 
and the other systems associated with the US-VISIT program will be 
available to CBP officers at ports of entry, special agents in the 
Bureau of Immigration and Customs Enforcement (ICE), adjudications 
staff at U.S. Citizenship and Immigration Services (USCIS), to DOS 
consular officers and other staff involved with the adjudication of 
visa applications at overseas posts, and to other DHS, BTS, ICE, CIS, 
CBP, appropriate officers of the United States Intelligence Community, 
and DOS personnel and attorneys when needed for the performance of 
their duties. Other employees and divisions of DHS, such as the 
Transportation Security Administration (TSA), may also have access to 
the biometric and other information on aliens. In addition, section 
414(c) of the USA PATRIOT Act directs that the information in the entry 
exit system component of the US-VISIT program must be available to 
other federal law enforcement officers, such as agents of the Federal 
Bureau of Investigation (FBI), through system interfaces or other 
technology means for purposes of identifying and detaining individuals 
who are threats to United States national security. The Secretary of 
Homeland Security, in his discretion, may also make the information 
available to State and local law enforcement agencies, to assist them 
in carrying out their law enforcement responsibilities. See 8 U.S.C. 
1365a(f); see also 8 U.S.C. 1722(a)(5). The Department will only share 
biometric information with other foreign governments where permitted by 
law and necessary for intelligence and law enforcement interests 
consistent with United States interests.

How Will DHS Protect the Biometric and Other Information Provided by 
Foreign Travelers and Ensure That Their Privacy Interests Are Not 
Violated?

    US-VISIT records will be protected consistent with all applicable 
privacy laws and regulations. Personal information will be kept secure 
and confidential and will not be discussed with, nor disclosed to, any 
person within or outside the US-VISIT program other than as authorized 
by law and as required for the performance of official duties. In 
addition, careful safeguards, including appropriate security controls, 
will ensure that the data is not used or accessed improperly. The DHS 
Chief Privacy Officer will review pertinent aspects of the program to 
ensure that these proper safeguards and security controls are in place. 
The information will also be protected in accordance with the 
Department's published privacy policy for US-VISIT.
    The Department's Privacy Office will exercise oversight of the US-
VISIT program to ensure that the information collected and stored in 
IDENT and other systems associated with US-VISIT is being properly 
protected under the privacy laws and guidance. US-VISIT will also have 
its own Privacy Officer to handle specific inquiries and to provide 
additional oversight of the program.
    Finally, the Department will maintain secure computer systems that 
will ensure that the confidentiality of individuals' personal 
information is maintained. In doing so, the Department and its 
information technology personnel will comply with all laws and 
regulations governing government systems, such as the Federal 
Information Security Management Act of 2002, Title X, Public Law 107-
296, 116 Stat. 2259-2273 (2002) (codified in scattered sections of 6, 
10, 15, 40, and

[[Page 476]]

44 U.S.C.); Information Management Technology Reform Act (Clinger-Cohen 
Act), Public Law 104-106, Div. E, codified at 40 U.S.C. 11101 et seq.; 
Computer Security Act of 1987, Public Law 100-235, 40 U.S.C. 1441 et 
seq. (as amended); Government Paperwork Elimination Act, Title XVII, 
Public Law 105-277, 112 Stat. 2681-749--2681-751 (1998) (codified, as 
amended, at 44 U.S.C. 101; 3504 note); and Electronic Freedom of 
Information Act of 1996, Public Law 104-231, 110 Stat. 3048 (1996) 
(codified, as amended, at 5 U.S.C. 552.)

How Is the US-VISIT Program Different From the National Security Entry 
Exit Registration System (NSEERS) Program and Are Any Aspects of NSEERS 
Continued Under US-VISIT?

    Foreign nationals who are subject to the US-VISIT biometric 
collection requirements of this rule are only required to follow the 
specified procedures on entry and exit where the Department has 
implemented the procedures and publicly announced them, as it has with 
respect to nonimmigrant visa-holders who travel through designated air 
and sea ports. Certain aliens whose presence in the United States 
warrants monitoring for national security or law enforcement reasons 
remain subject to the NSEERS special registration procedures at 8 CFR 
264.1(f) and its implementing notices. See 68 FR 67578. The special 
entry and exit registration procedures under NSEERS will meet the 
requirements of this US-VISIT rule for entry and exit inspection for 
persons who are also subject to NSEERS.
    Under the original NSEERS program, special registrants had to 
comply with both arrival and departure requirements for biometrics 
collection and additional questioning, and also with a requirement to 
re-register after 30 days and on an annual basis. The mandatory 30-day 
and annual re-registrations were suspended on December 2, 2003. See 68 
FR 67578. In addition, when the NSEERS program began, it included a 
requirement that foreign nationals from NSEERS-delineated countries 
already in the United States comply with a domestic or ``call-up'' 
registration. The ``call-up'' component has expired. Neither the re-
registration or ``call-up'' registration is relevant to the US-VISIT 
program at this time.
    However, nonimmigrants subject to NSEERS and to this US-VISIT rule 
who do not comply with the procedures for fingerprinting and 
photographing run similar risks that they could be deemed ineligible 
for future visas, admission or other discretionary immigration 
benefits. Compliance with this rule, as with the NSEERS regulations, is 
deemed a condition of a nonimmigrant's admission and maintenance of 
status for purposes of INA, section 214. The information that NSEERS 
aliens provide on arrival and departure is kept in IDENT and a special 
NSEERS system that will be integrated with all of the other foreign 
national arrival and departure data that are required to be kept in the 
entry exit system component of US-VISIT.

Will the Public Be Permitted To Comment on This Rule and Its 
Implementation?

    Yes. The Department welcomes and encourages the public to comment 
on all aspects of this rule and its implementation, as well as other 
aspects of the US-VISIT program that may not be covered by the rule 
itself. We will consider all comments carefully and anticipate that 
many of them will help us to improve the program. The Department is 
particularly interested in comments on the clarity of this rule and how 
it may be made easier to understand; methods for meeting the US-VISIT 
program goals; means to communicate the procedures to the public, 
including any expansions in the application of this rule; ways to 
reduce any potentially negative effects of the rule on legitimate 
travel, trade and tourism; uses for the biometric information to be 
collected; privacy protections for the information; methods for 
ensuring accuracy of the information collected; procedures for 
situations where persons with disabilities cannot provide the requested 
biometric identifiers; and ways to enhance national security and public 
safety interests.
    Members of the public may also wish to follow the activities and 
recommendations of the congressionally-mandated DMIA Task Force through 
its Web site at http://uscis.gov/graphics/shared/lawenfor/bmgmt/inspect/dmia.htm.
 The DMIA Task Force, which is comprised of 17 public 

and private representatives from government, industry, tourism, air and 
sea carriers, and other areas, makes regular reports on its 
recommendations for the entry exit system component of US-VISIT, and 
these reports are transmitted to Congress by the Secretary of Homeland 
Security in accordance with 8 U.S.C. 1365a(g). The DMIA Task Force also 
welcomes regular public comments. In addition, members of the public 
may keep up to date on the progress of the US-VISIT program through the 
DHS Web site at http://www.dhs.gov/us-visit.


Good Cause Exceptions for Implementation of Interim Final Rule

    Implementation of this rule as an interim final rule with a request 
for post-effective date public comments is based upon the ``good 
cause'' exceptions found at 5 U.S.C. 553(b)(3)(B) and (d)(3). Pursuant 
to the provisions of 5 U.S.C. 553(b)(3)(B), the Department has 
determined that delaying implementation of this rule to await public 
notice and comment is unnecessary, as well as contrary to the public 
interest and the national security of the nation. It is in the public 
interest and furthers our national security to implement requirements 
immediately that will allow for the collection and comparison of 
biometrics of aliens seeking admission in to the United States. These 
requirements will greatly enhance the ability of the Department to 
confirm the identities of nonimmigrant aliens seeking admission into 
the United States, and will allow for improved biometrics-based 
searches of watch lists, including law enforcement and intelligence 
data bases containing information on known and suspected terrorists. 
Such tools will increase the border security of the United States by 
helping DHS officers to identify persons who pose a threat to the 
nation. Before further expansion of the rule's implementation to more 
categories of aliens, the Department anticipates that it will have 
sufficient opportunity to consider the public comments generated by 
this interim rule, as well as to publish a final rule. For the same 
reasons, pursuant to the provisions of 5 U.S.C. 553(d)(3), the 
Department finds that there is good cause for making the rule 
immediately effective. Therefore this rule is immediately effective 
upon publication in the Federal Register. Although the Department has 
determined that pre-effective date public notice and comment would be 
contrary to national security and public safety, the Department 
strongly encourages the public to comment on the provisions of this 
rule so that such comments may be carefully considered in the drafting 
of a final rule.

Executive Order 12866

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), requires a determination as to whether a 
regulatory action is ``significant'' and therefore subject to review by 
the Office of Management and Budget (OMB) and to the requirements of 
the Executive Order. The Department has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866,

[[Page 477]]

section 3(f) because there is significant public interest in security 
issues. Accordingly, this rule has been reviewed and approved by the 
OMB.
    The Department has performed a preliminary analysis of the expected 
costs and benefits of this interim final rule. The anticipated benefits 
of the rule include: (1) Improved biometric identification of foreign 
national travelers who may present threats to public safety and the 
national security of the United States; (2) enhancement of the 
Government's ability to match an alien's fingerprints and photographs 
to other law enforcement or intelligence data associated with identical 
biometrics; (3) improved identification of individuals who may be 
inadmissible to the United States; (4) improved cooperation across 
international, Federal, State, and local agencies through better access 
to data on foreign nationals; (5) facilitation of legitimate travel and 
commerce by improving the timeliness and accuracy of the determination 
of a traveler's immigration status or his or her inadmissibility; (6) 
ensuring the integrity of the United States immigration system through 
enhanced enforcement of immigration laws, including collection of more 
complete arrival and departure data on aliens; and (7) reductions in 
fraud, undetected imposters and identity theft.
    The costs associated with implementation of this rule for 
nonimmigrant visa holders at air and sea ports of entry include an 
increase of approximately 15 seconds in inspection processing time per 
nonimmigrant visa holder over the current approximately one minute. By 
December 31, 2004, approximately 24 million nonimmigrant visa holders 
are anticipated to be affected at air and sea ports. This number is 
comprised of approximately 19.3 million air travelers and approximately 
4.5 million sea travelers. The limited 15 second time increase is not 
anticipated to delay significantly the overall processing of air and 
sea passengers because persons not required to provide biometrics 
(e.g., U.S. citizens, lawful permanent residents, and visa-exempt 
nonimmigrants) may be routed through different inspection lines, 
thereby easing any impact of the biometrics collection process. While 
the Department does not anticipate longer wait times at ports of entry 
due to US-VISIT processing, a number of mitigation strategies have been 
developed, not unlike those already available to CBP under other 
conditions which result in backups. The additional costs to the 
Government and the taxpayers of implementing the requirements of this 
rule for the pilot period are estimated to be $28.5 million for FY 
2004. These costs include operation and maintenance for the entry 
program for three months and the cost of developing ten to fifteen exit 
sites. The Department believes that the costs described above are 
outweighed by the benefits of the rule's biometric requirements for 
immigration enforcement and the potential reduction in threats to 
national security and public safety. The Department will continually 
assess its procedures to ensure that any negative effects on legitimate 
travel, commerce and law abiding foreign visitors and permanent 
residents will be minimized.
    The Department conducted analyses for both the entry and exit 
components. Based on those analyses, the Department determined which 
alternatives were best suited for this initial increment of the 
program.

Entry

    Benefits: The goals and benefits of this rule have been defined as:
    [sbull] Enhance National Security by (1) preventing entry of high-
threat or inadmissible nonimmigrant aliens through improved and/or 
advanced access to data prior to the nonimmigrant's arrival; (2) 
reducing threat of terrorist attack and illegal immigration through 
improved identification of national security threats and inadmissible 
aliens; and (3) improving cooperation across federal, state and local 
agencies through improved access to nonimmigrant alien data.
    [sbull] Facilitate legitimate trade and travel through (1) improved 
facilitation of legitimate travel and commerce by improved timeliness 
and accuracy of determination of nonimmigrant traveler status; and (2) 
improved accuracy and timeliness of the determination of nonimmigrant 
alien's inadmissibility.
    [sbull] Ensure integrity of our immigration system through (1) 
improved enforcement of immigration laws through improved data accuracy 
and completeness; (2) reduction in nonimmigrant aliens remaining in the 
country under unauthorized circumstances; and (3) utilization of 
existing IT systems (no new systems) and enhancing information 
exchanges with federal, state, and local law enforcement and 
intelligence communities.
    [sbull] Deploy the Program in accordance with existing privacy laws 
and policies.

Impact

    The impact this rule on the traveling public has been measured by 
(1) the number of foreign national travelers affected, (2) the expected 
average processing time, (3) travelers which are not affected, (4) the 
effects on the ability of airlines to off-load passengers and assist 
them through immigration processing, and (5) the additional costs to 
the traveling public. The number of foreign national travelers affected 
by implementation of this regulation will be approximately 3 million 
nonimmigrant visa travelers.
    This rule will affect only all travelers who apply for admission or 
are admitted pursuant to a nonimmigrant visa, subject to the exemptions 
outlined in this preamble and the codified text of the rule. 
Additionally, where possible and practical, aliens subject to this rule 
will be routed through separate lines. Overall, the processing time for 
aliens subject to this rule will not impact significantly the 
processing time for the traveling public. There will be little effect 
on the airlines' abilities to off-load passengers and get these 
travelers processed through immigration resulting from implementation 
of this rule. Moreover, there will be no additional costs to the 
traveling public, airlines or airports resulting from the 
implementation of this rule.
    The expected average processing time per person for whom biometrics 
will be taken is approximately one minute and fifteen seconds at entry. 
This compares to one minute for travelers not being processed through 
the biometric requirements of US-VISIT. The average processing time 
upon exit is approximately one minute. DHS does not anticipate 
significant delays in processing on arrival or departure for the 
traveling public.

Cost Benefit Analysis

Entry

    A Cost Benefit Analysis (CBA) was completed in February 2003 and 
will be updated in February 2004. This update will incorporate lessons 
learned about any benefits recognized from the initial operating 
capability provided by Increment 1, implemented pursuant to this rule.
    Increment 1, Full Air and Sea and Limited Land Performance with 
Biographic and Biometric Capabilities, delivers air and sea entry 
capabilities, constrained by budgetary resources, in accordance with 
the law and on time. Other alternatives that were examined were (1) 
Full Operating Capability with Unlimited Budgetary Resources, (2) Full 
Air and Sea with Biographic Capabilities Only, and (3) Air and Sea 
Entry and Exit Capabilities Constrained by Budgetary Resources. This

[[Page 478]]

alternative was chosen, because it provides the best capabilities 
within the funding constraints. Additionally, it was selected because 
it:
    1. Implements Increment 1 capability to air and sea POEs within the 
statutory timeframe;
    2. Delivers biographic to all primary points of inspection and 
biometric data to all secondary POEs points of inspection;
    3. Meets budgetary constraints; and
    4. Is more desirable because the data collection includes both 
biographic and biometric data collection that provides for a more 
thorough identity review than biographic data alone.

Exit

    The US-VISIT Program wishes to pilot alternative information 
collection systems at selected air and seaports in FY 2004. Three 
alternative systems have been:

[sbull] Alternative 1

    Gate Solution: Staffing and equipment would be located at all 
international departure gates. The estimated costs include $43 million 
for implementation plus $72 million annually for system maintenance 
including 1,350 additional TSA employees.

[sbull] Alternative 2

    Checkpoint Solution: Staffing and equipment located at airport 
security checkpoints (746 nationwide). The estimated costs include $62 
million for implementation plus $109 million for system maintenance, 
including 1,800 TSA employees.

[sbull] Alternative 3

    Workstation (Kiosk) Solution: Equipment and contractors to provide 
travelers assistance located in departure areas after the security 
checkpoint. The estimated costs include $22 million for implementation 
plus $37 million for system maintenance including contractor costs.
    Alternative 3, Workstation (Kiosk) Solution, was selected as the 
initial pilot because it was significantly more cost effective than the 
other two, was less manpower intensive, and eliminated the major 
concerns of airlines and airport authorities about boarding processes 
and time issues at gates.

Quantitative Benefits

    The intent of this rule is to address identified operational 
deficiencies and legislative mandates associated with management of the 
entry and exit of international travelers through the U.S. ports. Among 
its qualitative benefits, the US-VISIT System will improve the accuracy 
and consistency of detecting fraudulent travel documents, verifying 
traveler identity, determining traveler admissibility, and determining 
the status of aliens through the use of more complete and accurate data 
to include the use of biometric data.
    The quantitative benefits are targeted as a more effective solution 
that will allow the most optimal level of throughput and security for 
travelers. Some of these benefits can be measured, but not in financial 
terms. We will begin to quantify these benefits as we develop our 
performance analysis system for delivery in February 2004.

Executive Order 13132 (Federalism)

    Executive Order 13132 requires the Department to develop a process 
to ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have federalism 
implications.'' ``Policies that have federalism implications'' are 
defined in the Executive Order to include rules that have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' The 
Department has analyzed this interim final rule in accordance with the 
principles and criteria in the Executive Order and has determined that 
it does not have federalism implications or a substantial direct effect 
on the States. This rule provides for the collection by the federal 
Government of biometric identifiers from nonimmigrant aliens with visas 
seeking to enter or depart the United States for purposes of improving 
the administration of federal immigration laws. States do not conduct 
activities with which this rule would interfere. For these reasons, 
this rule does not have sufficient federalism implications to warrant 
the preparation of a Federalism Assessment.

Executive Order 12988 (Civil Justice Reform)

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988. That Executive 
Order requires agencies to conduct reviews on civil justice and 
litigation impact issues before proposing legislation or issuing 
proposed regulations. The order requires agencies to exert reasonable 
efforts to ensure that the regulation identifies clearly preemptive 
effects, effects on existing federal laws or regulations, identifies 
any retroactive effects of the regulation, and other matters. The 
Department has determined that this regulation meets the requirements 
of E.O. 12988 because it does not involve retroactive effects, 
preemptive effects, or the other matters addressed in the Executive 
Order.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 
U.S.C. 1531-1538, requires Federal agencies to prepare a written 
assessment of the costs, benefits, and other effects of proposed or 
final rules that include a Federal mandate likely to result in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector, of more than $100 million in any one year 
(adjusted for inflation with 1995 base year). Before promulgating a 
rule for which a written statement is needed, section 205 of the UMRA 
generally requires DHS to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome alternative that achieves the objective 
of the rule. Section 205 allows the Department to adopt an alternative 
other than the least costly, most cost-effective, or least burdensome 
alternative if the agency publishes an explanation with the final rule. 
This interim final rule will not result in the expenditure by State, 
local, or tribal governments, or by the private sector, of more than 
$100 million annually. Thus, the Department is not required to prepare 
a written assessment under the UMRA.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. This rule will not result in an annual effect on the economy of 
$100 million or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Environmental Analysis

    The Department has analyzed this interim final rule for purposes of 
compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. 
4321 et seq. The Department has prepared a nationwide environmental 
assessment for the implementation of this program at airports and has 
determined that it will not result in any significant environmental 
impacts. The

[[Page 479]]

Department has also prepared a nationwide environmental assessment for 
seaports. The analysis of potential impacts at seaports indicated that 
the proposed action is not likely to result in significant 
environmental impacts. The Department is initially implementing this 
rule only at air and sea ports, as indicated in the first Federal 
Register notice that accompanies publication of this rule. The 
Department will comply with any applicable NEPA and any other 
applicable environmental requirements prior to the implementation of 
this rule at the land ports of entry.

Trade Impact Assessment

    The Trade Agreement Act of 1979, 19 U.S.C. 2531-2533, prohibits 
Federal agencies from engaging in any standards or related activities 
that create unnecessary obstacles to the foreign commerce of the United 
States. Legitimate domestic objectives, such as safety, are not 
considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. The Department has determined 
that this rule will not create unnecessary obstacles to the foreign 
commerce of the United States and that any minimal impact on trade that 
may occur is legitimate in light of this rule's benefits for the 
national security and public safety interests of the United States.

Paperwork Reduction Act

    This rule permits the Secretary of Homeland Security or his 
delegate to require that aliens who cross United States borders must 
provide fingerprints, photograph(s), and potentially other biometric 
identifiers upon their arrival in or departure from this country. These 
requirements constitute an information collection under the Paperwork 
Reduction Act (PRA), 44 U.S.C. 507 et seq., and OMB's implementing 
regulations at 5 CFR 1320. Accordingly, the Department has submitted an 
information collection request to OMB for emergency review and 
clearance under the PRA. If granted, the emergency approval is only 
valid for 180 days. Under the PRA, an agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless the collection of information displays a valid 
control number. The OMB control number for the biometric information 
that will be collected pursuant to this rule is OMB 1600-0006.
    Overview of this information collection:
    (1) Type of information collection: New.
    (2) Title of Form/Collection: No form. Collection of biometrics 
will be in electronic or photographic format.
    (3) Agency form number, if any, and the applicable component of the 
DHS sponsoring the collection: No form number 1600-0006, Border and 
Transportation Security Directorate, DHS.
    (4) Affected public who will be asked or required to respond, as 
well as a brief abstract: Individual aliens. The categories of aliens 
are identified in this rule. The first group of affected aliens is 
nonimmigrant visa holders who seek admission to the United States at 
the air and sea ports of entry, and certain departure locations, 
designated in the notice published elsewhere in this issue of the 
Federal Register. The biometric information to be collected is 
necessary for the Department to begin its compliance with the mandates 
in section 303 of the Border Security Act, 8 U.S.C. 1732 and sections 
403(c) and 414(b) of the USA PATRIOT Act, 8 U.S.C. 1365a note and 1379, 
for biometric verification of the identities of alien travelers and 
authentication of their biometric travel documents through the use of 
machine readers installed at all ports of entry. The arrival and 
departure inspection procedures are authorized by 8 U.S.C. 1225 and 
1185.
    (5) An estimate of the total number of respondents and the amount 
of time estimated for an average respondent to respond: From January 5, 
2004 to January 5, 2005 the number of nonimmigrant visa-holders 
required to provide biometrics at the air and sea ports of entry is 
anticipated to be approximately 24 million, comprised of approximately 
19.3 million air travelers and 4.5 million sea travelers. The expected 
average processing time per person for whom biometrics will be 
collected is approximately one minute and fifteen seconds at entry, 
with the fifteen seconds being the additional time added for biometric 
collection over and above the normal inspection processing time. The 
average additional processing time upon exit is estimated at one minute 
per person. There are no additional fees for the traveling aliens to 
pay.
    (6) An estimate of the total of public burden (in hours) associated 
with the collection: Approximately 100,800 burden hours.
    If additional information is required contact Steve Yonkers, 
Privacy Officer, US-VISIT, Border and Transportation Security, 
Department of Homeland Security; 1616 North Fort Myer Drive, 5th Floor, 
Arlington, VA 22209 at (202) 927-5200.
    During the first 60 days of the period authorized by OMB for this 
information collection under emergency procedures, the Department will 
undertake a regular review of the collection pursuant to the PRA. 
Written comments from the public are encouraged and will be accepted 
until March 5, 2004. Your comments should address one or more of the 
following points: (a) Whether the collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information shall have practical utility; (b) the 
accuracy of the agency's estimate of the burden of the collection of 
information; (c) ways to enhance the quality, utility, and clarity of 
the information to be collected; (d) ways to minimize the burden of the 
collection of information on respondents, including through the use of 
automated collection techniques or other forms of information 
technology; and (e) estimates of capital or start-up costs and costs of 
operations, maintenance, and purchase of services to provide 
information. Comments should be directed to Steve Yonkers, Privacy 
Officer, US-VISIT, Border and Transportation Security, Department of 
Homeland Security; 1616 North Fort Myer Drive, 5th Floor, Arlington, VA 
22209 at (202) 927-5200.

List of Subjects

8 CFR Part 214

    Aliens, Immigration, Registration, Reporting and recordkeeping 
requirements.

8 CFR Part 215

    Control of Aliens Departing from the United States.

8 CFR Part 235

    Aliens, Immigration, Registration, Reporting and Recordkeeping 
Requirements.

Amendments to the Regulations

0
For the reasons set forth in the Supplementary Information section, 
parts 214, 215, and 235 of Title 8 of the Code of Federal Regulations 
are amended as set forth below:

PART 214--NONIMMIGRANT CLASSES

0
1. The authority citation for part 214 is revised to read as follows:

    Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1184, 1185 (pursuant 
to Executive Order 13323, published January 2, 2004), 1186a, 1187, 
1221, 1281, 1282, 1301-1305; 1372; 1379; 1731-32; sec. 643, Pub. L. 
104-208; 110 Stat. 3009-708; section 141 of the

[[Page 480]]

Compacts of Free Association with the Federated States of Micronesia 
and the Republic of the Marshall Islands, and with the Government of 
Palau, 48 U.S.C. 1901, note, and 1931, note, respectively.

0
2. Part 214.1(a)(3) is revised to read as follows:


Sec.  214.1  Requirements for admission, extension, and maintenance of 
status.

    (a) * * *
    (3) General requirements. (i) Every nonimmigrant alien who applies 
for admission to, or an extension of stay in, the United States, must 
establish that he or she is admissible to the United States, or that 
any ground of inadmissibility has been waived under section 212(d)(3) 
of the Act. Upon application for admission, the alien must present a 
valid passport and valid visa unless either or both documents have been 
waived. A nonimmigrant alien's admission to the United States is 
conditioned on compliance with any inspection requirement in Sec.  
235.1(d) or of this chapter. The passport of an alien applying for 
admission must be valid for a minimum of six months from the expiration 
date of the contemplated period of stay, unless otherwise provided in 
this chapter, and the alien must agree to abide by the terms and 
conditions of his or her admission. An alien applying for extension of 
stay must present a passport only if requested to do so by the 
Department of Homeland Security. The passport of an alien applying for 
extension of stay must be valid at the time of application for 
extension, unless otherwise provided in this chapter, and the alien 
must agree to maintain the validity of his or her passport and to abide 
by all the terms and conditions of his extension.
    (ii) At the time of admission or extension of stay, every 
nonimmigrant alien must also agree to depart the United States at the 
expiration of his or her authorized period of admission or extension of 
stay, or upon abandonment of his or her authorized nonimmigrant status, 
and to comply with the departure procedures at section 215.8 of this 
chapter if such procedures apply to the particular alien. The 
nonimmigrant alien's failure to comply with those departure 
requirements, including any requirement that the alien provide 
biometric identifiers, may constitute a failure of the alien to 
maintain the terms of his or her nonimmigrant status.
    (iii) At the time a nonimmigrant alien applies for admission or 
extension of stay, he or she must post a bond on Form I-352 in the sum 
of not less than $500, to ensure the maintenance of his or her 
nonimmigrant status and departure from the United States, if required 
to do so by the Commissioner of CBP, the Director of U.S. Citizenship 
and Immigration Services, an immigration judge, or the Board of 
Immigration Appeals.
* * * * *

PART 215--CONTROLS OF ALIENS DEPARTING FROM THE UNITED STATES

0
3. The authority citation for part 215 is revised to read as follows:

    Authority: 8 U.S.C. 1104; 1184; 1185 (pursuant to Executive 
Order 13323, published January 2, 2004), 1365a note, 1379, 1731-32.


0
4. Part 215 is amended by adding new Sec.  215.8, to read as follows:


Sec.  215.8  Requirements for biometric identifiers from aliens on 
departure from the United States.

    (a)(1) The Secretary of Homeland Security may establish pilot 
programs at up to fifteen air or sea ports of entry, designated through 
notice in the Federal Register, through which the Secretary or his 
delegate may require an alien admitted pursuant to a nonimmigrant visa 
who departs the United States from a designated air or sea port of 
entry to provide fingerprints, photograph(s) or other specified 
biometric identifiers, documentation of his or her immigration status 
in the United States, and such other evidence as may be requested to 
determine the alien's identity and whether he or she has properly 
maintained his or her status while in the United States.
    (2) The requirements of paragraph (a)(1) shall not apply to:
    (i) Aliens younger than 14 or older than 79 on date of departure;
    (ii) Aliens admitted on A-1, A-2, C-3 (except for attendants, 
servants or personal employees of accredited officials), G-1, G-2, G-3, 
G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas and 
maintaining such status at time of departure, unless the Secretary of 
State and the Secretary of Homeland Security jointly determine that a 
class of such aliens should be subject to the requirements of paragraph 
(a)(1);
    (iii) Classes of aliens to whom the Secretary of Homeland Security 
and the Secretary of State jointly determine it shall not apply; or
    (iv) An individual alien to whom the Secretary of Homeland 
Security, the Secretary of State, or the Director of Central 
Intelligence determines it shall not apply.
    (b) An alien who is required to provide biometric identifiers at 
departure pursuant to paragraph (a)(1) and who fails to comply with the 
departure requirements may be found in violation of the terms of his or 
her admission, parole, or other immigration status. In addition, 
failure of a covered alien to comply with the departure requirements 
could be a factor in support of a determination that the alien is 
ineligible to receive a future visa or other immigration status 
documentation, or to be admitted to the United States. In making this 
determination, the officer will consider the totality of the 
circumstances, including, but not limited to, all positive and negative 
factors related to the alien's ability to comply with the departure 
procedures.
    (c) A covered alien who leaves the United States without complying 
with the departure requirements in this section may be found to have 
overstayed the period of his or her last admission where the available 
evidence clearly indicates that the alien did not depart the United 
States within the time period authorized at his or her last admission 
or extension of stay. A determination that the alien previously 
overstayed the terms of his admission may result in a finding of 
inadmissibility for accruing prior unlawful presence in the United 
States under section 212(a)(9) of the Immigration and Nationality Act 
or that the alien is otherwise ineligible for a visa or other 
authorization to reenter the United States, provided that all other 
requirements of section 212(a)(9) have been met. A determination that 
an alien who was admitted on the basis of a nonimmigrant visa has 
remained in the United States beyond his or her authorized period of 
stay may result in such visa being deemed void pursuant to section 
222(g) of the Act (8 U.S.C. 1202(g)) where all other requirements of 
that section are also met.

PART 235--INSPECTION OF PERSONS APPLYING FOR ADMISSION

0
5. The authority citation for part 235 is revised to read as follows:

    Authority: 8 U.S.C. 1101 and note, 1103, 1183, 1185 (pursuant to 
E.O. 13323, published January 2, 2004), 1201, 1224, 1225, 1226, 
1228, 1365a note, 1379, 1731-32.


0
6. Section 235.1(d)(1) and (f)(1) introductory text are revised to read 
as follows:


Sec.  235.1  Scope of examination.

* * * * *
    (d) Alien applicants for admission. (1) Each alien seeking 
admission at a United States port-of-entry must present whatever 
documents are required and must establish to the satisfaction of the

[[Page 481]]

inspecting officer that the alien is not subject to removal under the 
immigration laws, Executive Orders, or Presidential Proclamations, and 
is entitled, under all of the applicable provisions of the immigration 
laws and this chapter, to enter the United States.
    (i) A person claiming to have been lawfully admitted for permanent 
residence must establish that fact to the satisfaction of the 
inspecting officer and must present proper documents in accordance with 
Sec.  211.1 of this chapter.
    (ii) The Secretary of Homeland Security or his delegate may require 
nonimmigrant aliens seeking admission pursuant to a nonimmigrant visa 
at an air or sea port of entry designated by a notice in the Federal 
Register to provide fingerprints, photograph(s) or other specified 
biometric identifiers during the inspection process. The failure of an 
applicant for admission to comply with any requirement to provide 
biometric identifiers may result in a determination that the alien is 
inadmissible under section 212(a)(7) of the Immigration and Nationality 
Act, or other relevant grounds in section 212 of the Act.
    (iii) Aliens who are required under paragraph (d)(1)(ii) to provide 
biometric identifier(s) at inspection may also be subject to the 
departure requirements for biometrics contained in Sec.  215.8 of this 
chapter, unless otherwise exempted.
    (iv) The requirements of paragraph (d)(1)(ii) shall not apply to:
    (A) Aliens younger than 14 or older than 79 on date of admission;
    (B) Aliens admitted on A-1, A-2, C-3 (except for attendants, 
servants or personal employees of accredited officials), G-1, G-2, G-3, 
G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5 or NATO-6 visas, unless the 
Secretary of State and the Secretary of Homeland Security jointly 
determine that a class of such aliens should be subject to the 
requirements of paragraph (d)(1)(ii);
    (C) Classes of aliens to whom the Secretary of Homeland Security 
and the Secretary of State jointly determine it shall not apply; or
    (D) An individual alien to whom the Secretary of Homeland Security, 
the Secretary of State, or the Director of Central Intelligence 
determines it shall not apply.
* * * * *
    (f) Form I-94, Arrival-Departure Record. (1) Unless otherwise 
exempted, each arriving nonimmigrant who is admitted to the United 
States will be issued a Form I-94 as evidence of the terms of 
admission. For land border admission, a Form I-94 will be issued only 
upon payment of a fee, and will be considered issued for multiple 
entries unless specifically annotated for a limited number of entries. 
A Form I-94 issued at other than a land border port-of-entry, unless 
issued for multiple entries, must be surrendered upon departure from 
the United States in accordance with the instructions on the form. Form 
I-94 is not required by:
* * * * *

    Dated: December 30, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-32331 Filed 12-31-03; 11:51 am]
BILLING CODE 4410-10-U




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