On September 1, 2020, the Department of Homeland Security announced that it will be publishing a “Notice of proposed rulemaking” that proposes expanding their authorities and methods for collecting biometric data. The proposed rules would potentially bring the following relevant changes to biometric information collection:
- Any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with an immigration benefit or request, including U.S. citizens, MUST appear for biometrics collection. Age will not be considered for exemption of this data collection.
- DHS wants to authorize biometric collection for anyone, regardless of age, upon arrest of an alien for purposes of processing, care, custody, and initiation of removal proceedings.
- DHS proposes to define biometrics as: “the measurable biological (anatomical and physiological) or behavioral characteristics used for identification of an individual.” The purpose is to make it clear that DHS can gather more biometric information than just fingerprints.
- DHS wants to expand the information they gather to include iris image, palm print, and voice print.
- DHS wants to be able to require, request, or accept DNA test results to prove the existence of a claimed genetic relationship. Additionally, DHS wants to be able to use and store the DNA test results for “relevant adjudications or to perform any other functions necessary for administering and enforcing immigration and naturalization laws.”
- DHS wants to change how VAWA and T nonimmigrant petitioners show good moral character. They also want to remove the presumption of good moral character for those under the age of 14. These changes have the effect of allowing DHS to demand more biometric information from these individuals as part of the application process. VAWA petitioners are currently only required to provide (1) a personal statement from the self-petitioner, (2) police clearance letters from the self petitioner’s places of residence for the three years before filing, and (3) other credible evidence, including affidavits from third parties attesting to the self-petitioner’s good moral character. This change will require VAWA self-petitioners to provide biometrics so DHS can run more background checks. The change for those under 14 years of age also means that they will have to provide biometric information, whereas they are currently exempt due to the presumption of good moral character.
- DHS wants the valid purposes for biometrics to include criminal history and national background checks; identity enrollment, verification, and management; secure document production, and to help DHS administer and enforce immigration laws.
These proposed rules mark a significant increase in the biometric information that DHS will collect if this proposed rule goes through without amendment. The proposed rule was published in the Federal Register on September 11, 2020 and the public has 30 days to comment on its potential implications. The administration will then have to address the comments and concerns when it issues the final rule. If you would like to submit a comment, you may do so by following the link to the Federal Register’s website.