United States Visitor and Immigrant Status Indicator Technology Program (“US-VISIT”); Enrollment of Additional Aliens in US-VISIT; Authority To Collect Biometric Data From Additional Travelers and Expansion to the 50 Most Highly Trafficked Land Border Ports of Entry, 77473-77491 [E8-30095]

Agencies

• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Rules and Regulations]
[Pages 77473-77491]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30095]



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Rules and Regulations
                                                Federal Register
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to and codified in the Code of Federal Regulations, which is published 
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Prices of new books are listed in the first FEDERAL REGISTER issue of each 
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Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 / 
Rules and Regulations

[[Page 77473]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 215 and 235

[DHS-2005-0037]
RIN 1601-AA35; RIN 1600-AA00


United States Visitor and Immigrant Status Indicator Technology 
Program (``US-VISIT''); Enrollment of Additional Aliens in US-VISIT; 
Authority To Collect Biometric Data From Additional Travelers and 
Expansion to the 50 Most Highly Trafficked Land Border Ports of Entry

AGENCY: National Protection and Programs Directorate, DHS.

ACTION: Final rule.

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

SUMMARY: The Department of Homeland Security (DHS) established the 
United States Visitor and Immigrant Status Indicator Technology Program 
(US-VISIT) in 2003 to verify the identities and travel documents of 
aliens. Aliens subject to US-VISIT may be required to provide 
fingerscans, photographs, or other biometric identifiers upon arrival 
at the United States. Currently, aliens arriving at a United States 
port of entry with a nonimmigrant visa, or those traveling without a 
visa as part of the Visa Waiver Program, are subject to US-VISIT 
requirements with certain limited exceptions. This final rule expands 
the population of aliens who will be subject to US-VISIT requirements 
to nearly all aliens, including lawful permanent residents. Exceptions 
include Canadian citizens seeking short-term admission for business or 
pleasure under B visas and individuals traveling on A and G visas, 
among others.
    On August 31, 2004, the Department promulgated an interim final 
rule that expanded the US-VISIT program to include aliens seeking 
admission under the Visa Waiver Program and travelers arriving at 
designated land border ports of entry. This rule also finalizes that 
interim final rule and addresses public comments received during that 
rulemaking action.

DATES: This final rule is effective January 18, 2009.

FOR FURTHER INFORMATION, CONTACT: Helen deThomas, Senior Policy 
Analyst, US-VISIT, Department of Homeland Security, 1616 Fort Myer 
Drive, 18th Floor, Arlington, Virginia 22209, (202) 298-5200.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
    A. Program Development
    B. Program Operation
    C. Notice of Proposed Rulemaking
II. Comments on the Notice of Proposed Rulemaking
    A. Status of LPRs in US-VISIT
    1. Past Security Checks
    2. Relationship to United States Citizens
    3. Relationship to Canadian Citizens
    4. Travel Concerns in United States Air and Sea Ports
    5. Travel Concerns at Land Border Inspections
    6. Privacy Concerns of LPRs
    7. Ten-Print Enrollment
    B. Canadian Citizens
    1. Western Hemisphere Travel Initiative
    2. Preclearance Sites in Canada
    3. Canadians Requiring a Waiver of Inadmissibility
    4. Canadians in Transit through the United States
    5. Crew Members
    C. Mexican Citizens
    D. Operational Issues
    1. Clarification of Procedures for Returning Nonimmigrants
    2. REAL ID Act of 2005
    3. Advance Passenger Information System
    4. Connection to IDENT/IAFIS Interoperability
    5. Biometric Identifiers
    6. Age Restrictions
    7. Exemption of Individual Aliens
    E. Privacy and Information Retention
    F. International Conventions
    G. United States Citizen Voluntary Enrollment
    H. Economic Impact
    I. Attorney Representation
    J. Pacific Rim Issues
III. Comments on the August 31, 2004 Interim Rule
    A. General
    B. Outreach to the Affected Public
    C. Use of Interim Rules
    D. Facilities
    E. Interaction With Existing Programs
    G. Travel and Delays
    H. Health Risks
    I. Program Exemptions
    J. Privacy
    K. Fees
IV. Statutory and Regulatory Review
    A. Regulatory Flexibility Act
    B. Executive Order 12866--Regulatory Planning and Review
    C. Executive Order 13132--Federalism
    D. Unfunded Mandates Reform Act
    E. Small Business Regulatory Enforcement and Fairness Act
    F. Trade Impact Assessment
    G. National Environmental Policy Act
    H. Paperwork Reduction Act
    I. Public Privacy Interests

I. Background

A. Program Development

    The Department of Homeland Security (DHS) established the United 
States Visitor and Immigrant Status Indicator Technology Program (US-
VISIT) in accordance with several statutory mandates that collectively 
require DHS to create an integrated, automated biometric entry and exit 
system that records the arrival and departure of aliens; biometrically 
compares the identities of aliens; and authenticates travel documents 
presented by such aliens through the comparison of biometric 
identifiers. Aliens subject to US-VISIT may be required to provide 
fingerscans, photographs, or other biometric identifiers upon arrival 
in, or departure from, the United States. DHS views US-VISIT as a 
biometrically-driven program designed to enhance the security of United 
States citizens and visitors, while expediting legitimate travel and 
trade, ensuring the integrity of the immigration system, and protecting 
the privacy of our visitors' personal information.
    The statutes that authorize DHS to establish US-VISIT include, but 
are not limited to:
     Section 2(a) of the Immigration and Naturalization Service 
Data Management Improvement Act of 2000 (DMIA), Public Law 106-215, 114 
Stat. 337 (June 15, 2000);
     Section 205 of the Visa Waiver Permanent Program Act of 
2000, Public Law 106-396, 114 Stat. 1637, 1641 (Oct. 30, 2000);
     Section 414 of the Uniting and Strengthening America by 
Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism Act of 2001 (USA PATRIOT Act), Public Law 107-56, 115 Stat. 
271, 353 (Oct. 26, 2001);
     Section 302 of the Enhanced Border Security and Visa Entry 
Reform Act of

[[Page 77474]]

2002 (Border Security Act) Public Law 107-173, 116 Stat. 543, 552 (May 
14, 2002);
     Section 7208 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (IRTPA), Public Law 108-458, 118 Stat. 3638, 
3817 (December 17, 2004); and
     Section 711 of the Implementing Recommendations of the 9/
11 Commission Act of 2007, Public Law 110-52, 121 Stat. 266 (Aug. 3, 
2007).
    DHS provided detailed abstracts of the particular sections of the 
statutes that established and authorized the US-VISIT program in prior 
rulemakings and the proposed rule. See 69 FR 468 (Jan. 5, 2004); 69 FR 
53318 (Aug. 31, 2004); 71 FR 42605 (July 27, 2006); 73 FR 22065 (Apr. 
24, 2008).
    On January 5, 2004, DHS implemented the first phase of the US-VISIT 
biometric component by publishing an interim final rule in the Federal 
Register providing that aliens seeking admission into the United States 
through nonimmigrant visas must provide fingerprints, photographs, or 
other biometric identifiers upon arrival in, or departure from, the 
United States at air and sea ports of entry. 69 FR 468 (Jan. 5, 2004). 
Effective September 30, 2004, nonimmigrants seeking to enter the United 
States without visas under the Visa Waiver Program (VWP) \1\ also are 
required to provide biometric information to US-VISIT. 69 FR 53318 
(Aug. 31, 2004). US-VISIT is now operational for entry at 115 airports, 
15 seaports, and 154 land border ports of entry. The following 
categories of aliens currently are expressly exempt from US-VISIT 
requirements by DHS regulations:
---------------------------------------------------------------------------

    \1\ Pursuant to section 217 of the Immigration and Nationality 
Act (INA), 8 U.S.C. 1187, the Secretary of Homeland Security (the 
Secretary), in consultation with the Secretary of State, may 
designate certain countries as Visa Waiver Program (VWP) countries 
if certain requirements are met. Citizens and eligible nationals of 
VWP countries may apply for admission to the United States at a U.S. 
port of entry as nonimmigrant aliens for a period of ninety (90) 
days or less for business or pleasure without first obtaining a 
nonimmigrant visa, provided that they are otherwise eligible for 
admission under applicable statutory and regulatory requirements. 
The list of countries which currently are eligible to participate in 
VWP is set forth in 8 CFR 217.2(a).
---------------------------------------------------------------------------

     Aliens admitted on an 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 
visa;
     Children under the age of 14;
     Persons over the age of 79;
     Taiwan officials admitted on an E-1 visa and members of 
their immediate families admitted on E-1 visas.

8 CFR 235.1(f)(1)(iv).\2\ In addition, the Secretary of State and 
Secretary of Homeland Security may jointly exempt classes of aliens 
from US-VISIT. The Secretaries of State and Homeland Security, as well 
as the Director of the Central Intelligence Agency, also may exempt any 
individual from US-VISIT. 8 CFR 235.1(f)(1)(iv)(B).
---------------------------------------------------------------------------

    \2\ Effective January 23, 2007, 8 CFR 235(d)(1)(iv) was 
redesignated as 8 CFR 235.1(f)(1)(iv). 71 FR 68412 (Nov. 24, 2006).
---------------------------------------------------------------------------

B. Program Operation

    The US-VISIT program, through U.S. Customs and Border Protection 
(CBP) officers, collects biometrics (digital fingerprints and 
photographs) from aliens seeking admission to the United States. 73 FR 
22066. The US-VISIT program also receives biometric data collected by 
Department of State (DOS) consular offices in the visa application 
process. DHS checks biometric data on those applying for admission to 
the United States against government databases to identify suspected 
terrorists, known criminals, or individuals who have previously 
violated U.S. immigration laws. These procedures assist DHS in 
determining whether an alien seeking to enter the United States is, in 
fact, admissible to the United States under existing law. Biometric 
data collected by US-VISIT assists DOS consular officers in the 
verification of the identity of a visa applicant and the determination 
of the applicant's eligibility for a visa. DHS's ability to establish 
and verify the identity of an alien and to determine whether that alien 
is admissible to the United States is critical to the security of the 
United States and the enforcement of the laws of the United States. By 
linking the alien's biometric information with the alien's travel 
documents, DHS reduces the likelihood that another individual could 
assume the identity of an alien already recorded in US-VISIT or use an 
existing recorded identity to gain admission to the United States.
    From its inception on January 5, 2004 to the present, US-VISIT has 
biometrically screened more than 130 million aliens at the time they 
applied for admission to the United States. DHS has taken adverse 
action against more than 3,800 aliens based on information obtained 
through the US-VISIT biometric screening process. By ``adverse 
action,'' DHS means that the alien was:
     Arrested pursuant to a criminal arrest warrant;
     Denied admission, placed in expedited removal, or returned 
to the country of last departure; or
     Otherwise detained and denied admission to the United 
States.
    In addition, by quickly verifying identity and validity of 
documents, US-VISIT has expedited the travel of millions of legitimate 
entrants. Expanding the population of aliens required subject to US-
VISIT requirements will allow DHS to identify additional aliens who are 
inadmissible or who otherwise may present security and criminal 
threats, including those who may be traveling improperly on previously 
established identities.

C. Notice of Proposed Rulemaking

    On July 27, 2006, DHS published a notice of proposed rulemaking 
(NPRM or proposed rule) proposing to expand the population of aliens 
subject to US-VISIT requirements. The NPRM proposed to require 
enrollment of any alien in US-VISIT, with the exception of those 
Canadian citizens applying for admission as B-1/B-2 visitors for 
business or pleasure, and those specifically exempted under DHS 
regulations. Under the proposed rule, the following classes of aliens, 
among others, would become subject to US-VISIT requirements:
     Lawful Permanent Residents (LPRs). \3\
---------------------------------------------------------------------------

    \3\ The authorizing statutes, which all refer to ``aliens'' 
without differentiation, support the inclusion of lawful permanent 
residents (LPRs) into the US-VISIT program. See section 101(a)(3) of 
the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 
1101(a)(3) (``The term `alien' means any person not a citizen or 
national of the United States'').
---------------------------------------------------------------------------

     Aliens seeking admission on immigrant visas.
     Refugees and asylees.
     Certain Canadian citizens who receive a Form I-94 at 
inspection or who require a waiver of inadmissibility.
     Aliens paroled into the United States.
     Aliens applying for admission under the Guam Visa Waiver 
Program.

DHS received 69 comments on the 2004 interim final rule during the 30-
day notice and comment period. DHS has considered the comments received 
in the development of this final rule. This final rule adopts the 
proposed rule without change.
    This rule also addresses comments received on the August 31, 2004, 
interim final rule and finalizes that rule. For ease of reference, DHS 
responds separately to the comments submitted on the interim rule and 
the proposed rule.

[[Page 77475]]

II. Comments on the Notice of Proposed Rulemaking

    DHS received 71 comments on the July 27, 2006, notice of proposed 
rulemaking. Some comments were positive, while other comments were 
negative or asked that the regulation be withdrawn. The comments raised 
a number of issues, including the relationship with other DHS 
initiatives, suggesting that US-VISIT should not proceed until other 
initiatives have been completed. One commenter noted that there have 
been several GAO reports that have been critical of US-VISIT and DHS 
has addressed those concerns as discussed in the published reports. DHS 
continues to address all of these concerns and recommendations as US-
VISIT is developed. The most common issue raised by the comments was 
the inclusion of lawful permanent residents (LPRs) in US-VISIT 
enrollment and verification.
    Some comments were very general, such as those suggesting that DHS 
concentrate on removing illegal aliens present in the United States. 
DHS believes that US-VISIT plays an important role in preventing 
illegal immigration in the first place by requiring biometric 
information from travelers seeking to enter the United States. DHS 
continues to concentrate on intercepting aliens who are in the United 
States without authorization. These priorities do not conflict.
    Similarly, a commenter asked how DHS is benchmarking or measuring 
the success of US-VISIT. DHS provides performance measures to the 
Executive Office of the President and to the Office of Management and 
Budget (OMB) using OMB's Program Assessment Rating Tool (PART). Some of 
the factors included in the Fiscal Year (FY) 2006 PART assessment were: 
Cumulative and annual percentage baseline cost and schedule overrun on 
US-VISIT Increment Development and Deployment, Reduction in Review Time 
for Privacy Redress, Ratio of Adverse Actions to Total Biometric Watch 
List Hits at Ports of Entry, Percentage of Exit Records Matched to 
Entry Records, and other factors. OMB rated US-VISIT as ``moderately 
effective.'' DHS accepts OMB's view on these performance measures and 
is taking steps to achieve better results. The comment, however, does 
not raise issues relating to the proposed rule.

A. Status of LPRs in US-VISIT

1. Past Security Checks
    Thirty-two commenters urged that LPRs be exempt from US-VISIT, 
based on their status as LPRs, because they have previously been 
subject to significant security checks in order to obtain LPR status. 
Similarly, some commenters stated that there is no evidence that LPRs 
pose a threat to the level that they ``should be grouped with'' 
nonimmigrants who are subject to US-VISIT. One commenter stated that 
DHS has a flawed process in that it is willing to trust in an LPR's 
first use of US-VISIT for initial capture of fingerprints, rather than 
compare against the records captured during the initial adjustment of 
status process.
    DHS agrees that LPRs receive an extensive background check to 
become LPRs, including a criminal background check using the 
applicant's fingerprints. United States Citizenship and Immigration 
Services (USCIS) conducts an extensive investigation prior to granting 
adjustment of status to that of an LPR, and the DOS undertakes 
significant investigation of an alien applying for an immigrant visa. 
Also, DHS agrees that there is not necessarily evidence to support the 
notion that LPRs--as a class--pose risks not posed by nonimmigrants--as 
a class.
    DHS does not, however, believe that this point is entirely relevant 
for the purposes of this rule for several significant reasons. DHS and 
DOJ continue to uncover significant immigration document fraud, 
particularly in relation to permanent resident cards (Form I-551). 
Common examples include giving or selling a permanent resident card to 
someone else, altering a lost permanent resident card, and using a 
fraudulently created permanent resident card. DHS has substantially 
increased the security features on permanent resident cards in recent 
years, but security features are not foolproof.
    The Immigration and Naturalization Service (INS), predecessor to a 
number of DHS functions, issued resident alien cards without expiration 
dates until 1989. Permanent resident cards issued after 1989 are valid 
only for ten years. Additionally, INS upgraded the Form I-551 
significantly, including more secure features, in September 1997. 62 FR 
44146 (Aug. 19, 1997). Many LPRs possess permanent resident cards that 
have limited security features and no expiration date. Trafficking in 
these cards is inhibited by the fact that the card must appear to be 
aged to the date of its issue, but otherwise these cards provide 
limited security from assumed identity. DHS is taking steps to recall 
all such cards. 72 FR 46922 (Aug. 22, 2007).
    Including LPRs within the scope of US-VISIT processing will enable 
DHS to detect, deter, and act against those who attempt fraud through 
the biometric match of the person presenting the Form I-551 against the 
record of the person to whom that card was issued. Accordingly, the 
inclusion of LPRs within US-VISIT is consistent with other security 
programs initiated by DHS.
    LPRs are still subject to entry, documentation, and removability 
requirements to the United States. LPRs are aliens. See sections 101, 
212, 237 of the INA (8 U.S.C. 1101, 1182, 1227) and 8 CFR 235.1(b), 
(f)(1)(i). Although LPRs are not technically regarded as seeking 
admission to the United States if they are returning from a stay of 
less than 180 days under section 101(a)(13)(C)(ii) of the INA (8 U.S.C. 
1101(a)(13)(C)(ii)), they remain subject to the admissibility 
requirements of section 212 of the INA (8 U.S.C. 1182) because of their 
status as an alien and not a United States citizen. Accordingly, DHS 
must determine whether an LPR is admissible to the United States 
whenever the LPR arrives at a port of entry, as well as determine 
whether an LPR is removable from the United States based on intervening 
facts since the time LPR status was granted, and initial background 
checks conducted, which may have been many years ago. US-VISIT enables 
DHS to determine if an LPR seeking entry has been convicted of any 
crime that would render him or her subject to removal from the United 
States. In addition, DHS is concerned about attempts by terrorist and 
transnational criminal organizations to recruit LPRs, who are perceived 
to be subject to less scrutiny in travel. See section 101(a)(13)(C)(v) 
of the INA (8 U.S.C. 1101(a)(13)(C)(v). Accordingly, the processing of 
LPRs through US-VISIT serves an important purpose: Identifying aliens 
who pose a security risk, have a disqualifying criminal or immigration 
violation, or are otherwise inadmissible at the time that they present 
themselves for entry into the United States as LPRs.
    DHS compares the fingerprints collected as part of the adjustment 
of status or immigrant visa process with the fingerscans of the LPR 
seeking entry, when those fingerprints are available in DHS's Automated 
Biometric Identification System (IDENT). The addition of data from 
adjustment of status and immigrant visa applications to the IDENT 
system will substantially reduce the initial enrollment of LPRs, but 
LPRs, as aliens, should be enrolled in US-VISIT.
    Finally, the statutes underlying the development of US-VISIT have 
never distinguished between immigrants and nonimmigrants. For the 
purpose of data collection and biometric comparison,

[[Page 77476]]

the law requires the collection of data from all aliens.
2. Relationship to United States Citizens
    Five commenters suggested that LPRs should not be subject to US-
VISIT because they are so similar to United States citizens, and United 
States citizens are not subject to US-VISIT by the terms of this rule. 
DHS does not agree that the difference between an LPR and a United 
States citizen is minor. The INA defines the term ``alien'' as ``any 
person not a citizen or national of the United States.'' See section 
101(a)(3) of the INA (8 U.S.C. 1101(a)(3)).
    Similarly, some commenters suggested that the distinction between 
LPRs and United States citizens in terms of US-VISIT processing should 
be ``all or nothing.'' In other words, these commenters stated that 
either both LPRs and United States citizens should be subject to US-
VISIT, or neither should. Generally, these comments tend to suggest 
that passports are just as likely to be used fraudulently as permanent 
resident cards and that there are no significant legal differences 
between LPRs and United States citizens. A corollary argument was made 
by other commenters: DHS should increase significantly the security 
features of the Form I-551 in order to make them equivalent to 
passports in terms of security.
    As a legal matter, LPRs, although allowed to stay and work in the 
United States permanently, are still ``aliens'' and subject to 
immigration law. Unlike United States citizens,
     The status of LPRs can be rescinded under section 246 of 
the INA (8 U.S.C. 1256) and LPRs can be removed from the United States 
under section 237 of the INA (8 U.S.C. 1227); \4\
---------------------------------------------------------------------------

    \4\ Even after an LPR is naturalized as a United States citizen, 
such naturalization can be revoked under section 340 of the INA (8 
U.S.C. 1451). [Suggest adding language to make clear there are very 
limited bases for revocation. Otherwise, this may be misleading.]
---------------------------------------------------------------------------

     LPRs are required to acquire and carry evidence of their 
status (Form I-551) and replace it when it is lost or expires under 
section 264 of the INA (8 U.S.C. 1304) and 8 CFR 264.5(b);
     LPRs must present specific documentation as a condition 
for admission and re-admission to the United States under section 211 
of the INA (8 U.S.C. 1181) and 8 CFR 211.1(a);
     LPRs must notify DHS of each change of address and new 
address within ten days of the date of the change of address under 
section 265(a) of the INA (8 U.S.C. 1305(a)) and 8 CFR 265.1;
     LPRs may be deemed to have abandoned their status when 
outside of the United States for more than one year, unless they obtain 
a re-entry permit, in line with the documentary requirements at 8 CFR 
211.1(a) and (b)(3); and
     LPRs must apply for naturalization to obtain citizenship, 
demonstrating good moral character and at least five years of 
continuous residence under section 316 of the INA (8 U.S.C. 1427), as 
well as an understanding of the English language and a knowledge and 
understanding of the fundamentals of the history and of the principles 
and form of government of the United States under section 312 of the 
INA (8 U.S.C. 1423).
    These requirements, and others, clearly differentiate LPRs from 
United States citizens. Moreover, LPR status does not grant an alien a 
variety of benefits accorded to a citizen of the United States, 
including the most fundamental right to vote for federally elected 
officials. See 18 U.S.C. 611 (criminal penalties for alien voting). 
Aliens, whether immigrants or nonimmigrants, may not serve on a federal 
jury. See 28 U.S.C. 1861 (declaration of policy that citizens sit on 
juries), 1862 (discrimination against citizens on account of race, 
color, religion, sex, national origin, or economic status prohibited 
for jury service), 1865(b)(1) (requirement of citizenship for jury 
service); 18 U.S.C. 243 (discrimination on basis of race or color 
against citizens prohibited in jury selection). Accordingly, obtaining 
LPR status is not equivalent to citizenship and DHS is not constrained 
to treat aliens in LPR status and citizens alike.
    Finally, DHS has a specific and unique responsibility with respect 
to ensuring that LPRs comply with the requirements of their status. DHS 
does not accept the argument that LPR status is so equivalent to United 
States citizenship that US-VISIT processing must be the same or similar 
for both. DHS recognizes that most LPRs do not pose a threat to the 
United States and do not commit crimes that would subject them to 
removal, and has accommodated the free flow of travel by LPRs by 
instructing them to seek inspection at airports by joining the ``United 
States Citizen'' inspection line. This accommodation does not mean that 
LPRs are, or will otherwise be treated as, United States citizens.
    DHS is taking steps to improve the security of permanent resident 
cards, but that does not necessarily mean that they should remain 
exempt from contemporaneous biometric identification under US-VISIT. As 
noted above, DHS has proposed to invalidate all permanent resident 
cards without an expiration date; this action will facilitate upgrading 
card security and evidence of LPR status legitimacy and security. 72 FR 
46922 (Aug. 22, 2007). US-VISIT is only one step in the ongoing efforts 
by DHS to improve the security of the United States and enforce the 
immigration laws of the United States.
    DHS believes that US-VISIT creates better protections against the 
fraudulent use of immigration documentation than does mere document 
examination, and does so in a way that is cost-effective. Using US-
VISIT, a CBP officer can match an LPR's biometric features against a 
database where those features are stored based on the processing done 
to obtain the benefit of LPR status (either an immigrant visa or an 
adjustment of status application). This greatly diminishes the 
possibility that a Form I-551 can be used fraudulently to obtain entry 
to the United States because there is an automated comparison to the 
biometric characteristics and an examination of the card itself. Thus, 
the security features on the Form I-551 itself are extremely helpful, 
but it is the biometric checks that provide the best security against 
immigration fraud, as this also prevents legitimate cards from being 
used by those to whom a card was not issued. DHS believes that because 
it has the biometric data collected for LPRs and the capability to 
technically, quickly, and easily compare those data to a person seeking 
to enter a port of entry, DHS has a responsibility to use those data to 
ensure that the person seeking admission is using his or her 
documentation legitimately.
3. Relationship to Canadian Citizens
    Twelve commenters suggested that it was unfair to exempt Canadian 
tourists from US-VISIT, but require LPRs to be enrolled and processed 
by US-VISIT. Another commenter opposed LPR enrollment in US-VISIT, but 
supported the enrollment of all Canadian citizens regardless of the 
purpose of their trip to the United States.
    DHS understands that the ``staged'' implementation of US-VISIT can 
carry the perception of unfairness. However, the distinction between 
LPRs and Canadian temporary visitors is not based on the notion that 
one is inherently more of a ``threat'' than the other. Logistical 
difficulties in implementation of biometric checks at primary 
inspection in the land border environment and foreign policy issues 
govern the continued exemption of

[[Page 77477]]

Canadians visitors for business or pleasure for the time being.
    All LPRs and Canadians arriving at land border ports of entry are 
treated the same--those who are sent to secondary inspection are 
processed through US-VISIT; those who are inspected at primary 
inspection are not. Aliens requiring a Form I-94 (select Canadians, in 
this case) will actually be referred to secondary inspection more often 
than LPRs, because they must secure a new Form I-94, in most cases, 
every six to eight months in addition to those instances where such 
referrals may be made for any other reason. In some instances, such as 
classifications with extended duration of status, a single Form I-94 
may be valid for an extended period, those aliens must renew their Form 
I-94 at least every six to eight months. This result is simply a 
function of the need for additional technological advancements in order 
to build an operational system that can function as a biometric entry 
system without significantly impairing the efficiency of inspections.
4. Travel Concerns in United States Air and Sea Ports
    Seven commenters mentioned the current structure of most United 
States airports and seaports, where ``United States Citizens/LPRs'' are 
directed into one inspection line and ``Visitors'' are directed to a 
different inspection line. They suggested that placing LPRs in the 
``Visitors'' line merely for the sake of US-VISIT processing would 
cause significant delays for them and could separate families traveling 
together. DHS has deployed US-VISIT equipment in virtually all lanes at 
United States airports and seaports where US-VISIT is functional. This 
deployment allows CBP the flexibility to quickly change ``Citizen/LPR'' 
lanes to ``Visitors'' lanes and vice versa, as there is a need to 
balance and rebalance the time spent in the queue and process all 
arrivals efficiently and effectively. Because of almost universal lane 
availability, DHS will be able to process LPRs and others in the 
existing lane determinations. LPRs will remain within the ``United 
States Citizen/LPR'' lanes and will not be shifted into the 
``Visitors'' lane unless such action could expedite processing. 
Additionally, LPRs are processed in the same lanes as United States 
citizen lanes, in many instances, to process entire families more 
expeditiously; DHS continues to recognize and attempt to accommodate 
families traveling together.
    One commenter stated that this would cause delays for United States 
citizens, as the lanes dedicated to LPRs and United States citizens 
will slow down. DHS will monitor delays in processing carefully, but 
does not believe that US-VISIT will add to such delays. The United 
States averages roughly 33 million air/sea port arriving United States 
citizen travelers per year and approximately 4.4 million air/sea port 
arriving LPR travelers per year. Further, many ports of entry use 
dedicated ``United States Passport only'' lanes even within the 
``United States Citizen/LPR'' lanes. DHS believes that the application 
of US-VISIT to LPRs will not impact United States citizens' travel to a 
significant degree.
    One commenter questioned whether, given that DHS does not currently 
possess electronically searchable fingerprints on all LPRs, LPRs would 
be required to provide a full set of ten fingerprints (or ``10 
prints'') through US-VISIT at the point in which US-VISIT transfers to 
10-print enrollment. DHS began transitioning to 10-print devices and 
capture at primary inspection in December 2007.
    The process for LPR enrollment and verification will be the same as 
for other aliens. If entering the United States at a port with 
available 10-print devices, LPRs will be enrolled though the 10-print 
enrollment process. Thus, an alien will need to submit 10 fingerprints 
only one time (whether at a port of entry or at a USCIS Application 
Support Center), and all subsequent times, in whatever environment, the 
alien will provide less than 10 fingerprints for verification. DHS will 
possess a higher percentage of 10 prints in its biometric database for 
LPRs, because LPRs generally must renew their permanent resident card 
every 10 years and are required to submit 10 fingerprints as part of 
the renewal process.
5. Travel Concerns at Land Border Inspections
    One commenter implied that the treatment of LPRs is unfair due to 
lack of radio frequency identification (RFID) chips in the Form I-551. 
This comment refers to a DHS proof of concept program in which five 
land border ports of entry have used RFID technology to track exits and 
pre-position information on entry for nonimmigrants. See 70 FR 44934 
(Aug. 4, 2005). This proof of concept has now been concluded. While 
Form I-551 does not provide, at this time, an RFID chip, treatment of 
non-immigrants, immigrants, and citizens does not, and has never, 
required parity.
    DHS agrees that documentation issued to different aliens should be 
consistent to the extent practical and to the extent that consistency 
serves security and efficiency goals. DHS is examining integration of 
data processes to provide both better security and better efficiency. 
Accordingly, DHS will consider additional opportunities to include LPRs 
in these initiatives in addition to United States citizens and Canadian 
travelers.
    LPRs at the land border, however, are less likely than nonimmigrant 
aliens to be referred to secondary inspection as discussed above. LPRs 
will be referred to secondary inspection only when a CBP officer in 
primary inspection determines that further investigation is required 
before admission, as is the current practice. There is no reason to 
believe that LPRs, as a result of the promulgation of this rule, will 
be referred to secondary inspection more frequently or will spend 
significantly more time while in secondary inspection. Nonimmigrant 
aliens, on the other hand, are referred to secondary inspection 
routinely at least every six to eight months to renew their Form I-94.
6. Privacy Concerns of LPRs
    Five commenters suggested that promulgation of the rule as proposed 
would violate, in a very generic way, the privacy rights of LPRs. One 
commenter objected to the retention of travel information on LPRs.
    DHS complies with the Privacy Act, 5 U.S.C. 552a. In addition, the 
Homeland Security Act of 2002, in creating DHS, established a Privacy 
Officer who is tasked with assuring full compliance with the Privacy 
Act, advising the Secretary and DHS on the privacy of personal 
information, and conducting privacy impact assessments on DHS 
regulations. See Homeland Security Act of 2002, Public Law 107-296, 
tit. II, Sec.  222, 116 Stat. 2135, 2155 (Nov. 25, 2002) (as amended, 
found at 6 U.S.C. 142). DHS has published the privacy impact analysis 
for this rule. See 71 FR 42653. DHS continues to be concerned about the 
privacy of all persons in the United States and compliance with the 
laws affecting privacy.
    However, the US-VISIT programmatic statutes all refer to ``aliens'' 
without differentiation. DHS believes the intent of these statutes is 
clear: LPRs are to be included within US-VISIT as much as practical and 
consistent with other legal obligations relating to travel documents 
issued by the United States, including those issued by DHS and DOS. 
Most LPRs travel internationally on DHS-issued documents; therefore, 
LPRs are directly impacted by these requirements. Additionally, DHS has 
a legitimate need for maintaining some information on LPR travel. DHS 
has collected travel information on LPRs for many years, originally as 
part of the

[[Page 77478]]

Treasury Enforcement Communications System (TECS) that was transferred 
to DHS in 2003. See 66 FR 52984, at 53029 (Notice of Privacy Act 
systems of record). Per DHS regulations, an LPR can be deemed to have 
abandoned his or her status if he or she stays outside of the United 
States for longer than one year. See 8 CFR 211.1(a), (b)(3) (imposing 
certain documentary requirements or waiver applications on LPRs only if 
returning from a temporary absence of less than a year).
7. Ten-Print Enrollment
    One commenter inquired whether LPRs for whom DHS has no electronic 
biometric record will have ten-print or two-print fingerscan enrollment 
upon being processed in US-VISIT in the primary lane. DHS began 
transitioning to a ten-print enrollment process in December 2007. These 
processes will not be limited to LPRs, however, and DHS is confident 
that it can use technology to minimize the potential for delay as a 
result of the change.

B. Canadian Citizens

1. Western Hemisphere Travel Initiative
    The Western Hemisphere Travel Initiative (WHTI) requires that the 
Secretary of Homeland Security, in consultation with the Secretary of 
State, develop and implement a plan to require travelers entering the 
United States to present a passport, other document, or combination of 
documents which is ``deemed by the Secretary of Homeland Security to be 
sufficient to denote identity and citizenship'' by June 1, 2009. See 
section 7209 of IRTPA, Public Law 108-458, 118 Stat. at 3823, as 
amended by the Department of Homeland Security Appropriations Act, 
2007, Public Law 109-295, sec. 546, 120 Stat. 1355, 1386 (Oct. 4, 
2006), found at 8 U.S.C. 1185 note. DHS and DOS have implemented this 
requirement effective January 23, 2007, for air ports of entry. 70 FR 
52037 (Sept. 1, 2005) (Western Hemisphere Travel Initiative, ANPRM); 71 
FR 46155 (Aug. 11, 2006) (same, NPRM); 71 FR 68412 (Nov. 24, 2006) 
(same; air ports of entry; Final Rule).
    One commenter to this rule asked whether the Canadian border issues 
that have been addressed through WHTI were being taken into account in 
the promulgation of this rule. DHS has been working very closely with 
Canadian authorities in order to secure better the border between the 
United States and Canada without sacrificing the close ties between the 
two countries. In March 2005, the Administration launched the Security 
and Prosperity Partnership (SPP) as a trilateral effort with Canada and 
Mexico premised on the mutual reinforcement of our security and 
economic prosperity. See https://www.spp.gov/Security_Fact_Sheet.pdf. 
Through this effort and others, the United States and Canada are 
engaged in greater cooperation and information sharing, while being 
mindful of the privacy laws of each country. Together, the United 
States and Canada are exploring ways to facilitate legitimate travel 
and trade while assuring the security of our border. All of these 
efforts were considered in the promulgation of this rule.
    Another commenter suggested that the NPRM fails to consider the 
impact of WHTI and this US-VISIT expansion at the same time. This rule 
is being implemented on January 18, 2009, and the first phase of WHTI 
(requiring a passport or other document to demonstrate identity and 
citizenship at air ports of entry) began on January 23, 2007. The 
second phase of WHTI (land borders and sea ports) was published as a 
final rule on April 3, 2008, and will be effective June 1, 2009. 73 FR 
18384.
    This expansion of US-VISIT procedures deals with the type of 
immigration processing certain aliens will require at all ports of 
entry, with the differences described elsewhere based on the type of 
port of entry. One of the main reasons for exempting Canadians who do 
not require a separate admissibility determination through Form I-94 in 
this rulemaking is to coordinate the timing of the WHTI land border 
port of entry procedures, before DHS can determine what, if any, 
additional steps should be taken for US-VISIT processing of these 
aliens at land border ports of entry. DHS and DOS are carefully 
coordinating the implementation of multiple initiatives to improve the 
security of the United States and ensure efficient border management.
2. Preclearance Sites in Canada
    Three commenters expressed concern that the preclearance sites in 
Canada would see a dramatic increase in the numbers of aliens subject 
to US-VISIT and be unable to handle the increase in time and traffic. 
One commenter also noted that unlike the traditional environment of 
immigration processing where the flights have already landed, in the 
preclearance environment, persons are trying to board a flight before 
it is too late, and that, therefore, the delays would be much more 
costly.
    DHS acknowledges the concerns with preclearance flight locations in 
Canada. However, DHS notes that Canadians not requiring visas--which 
include those transiting the United States or applying for admission to 
the United States as visitors for business or pleasure--are not 
required to be processed in US-VISIT. Accordingly, the increased volume 
of preclearance travelers in US-VISIT may not be as high as the 
commenters suggest. Nonetheless, DHS has existing mitigation strategies 
in effect to respond to overcrowded inspection facilities. DHS will pay 
close attention to these preclearance locations to determine whether 
implementing these strategies is appropriate, especially during the 
first few weeks after this final rule becomes effective.
3. Canadians Requiring a Waiver of Inadmissibility
    One commenter expressed concern about Canadian B-1/B-2 travelers 
who frequently travel over the land border and require a waiver of 
inadmissibility under section 212 of the INA (8 U.S.C. 1182) to be 
admitted to the United States. DHS is currently considering alternative 
administrative processes for simplified handling of waivers and their 
application to US-VISIT, but until DHS implements these processes, DHS 
will maintain the same procedures for Canadian B-1/B-2 travelers 
requiring a waiver of inadmissibility as it has with all Canadians 
requiring a waiver of inadmissibility and given a multiple entry Form 
I-94: US-VISIT secondary processing every six months or when sent to 
secondary by a CBP officer. Canadian B-1/B-2 applicants for admission 
requiring a waiver of admissibility will not be required to be 
processed in US-VISIT every time they cross a United States land 
border.
4. Canadians in Transit Through the United States
    Three commenters raised concerns about Canadians in transit through 
the United States, two in the land context and one in the air context. 
In the air context, one commenter suggested that Canadian B-1/B-2 
travelers will be exempt from US-VISIT processing if flying to the 
United States, but not if they are flying through the United States. 
DHS agrees with the commenter that this would be an illogical result if 
this were in fact what had been proposed. The proposed rule provided 
that Canadians are subject to US-VISIT procedures only if they are 
required to obtain a visa or be issued a Form I-94. Typically, 
Canadians may transit through the United States by air without a visa 
and are not required to obtain a Form I-94. See 8 CFR 212.1(a)(1) (no 
visa required); 8 CFR 235.1(h)(1)(i) (no Form I-94 required). Canadians 
needing a waiver of inadmissibility are required to obtain a visa even 
if transiting the

[[Page 77479]]

United States. Thus, only these Canadians transiting the United States 
but needing such a waiver and visa are subject to US-VISIT as a result 
of publication of this final rule. Accordingly, the number of Canadians 
transiting the United States by air who will be subject to US-VISIT is 
small.
    In the land context, another commenter suggested essentially the 
same point, explaining a scenario in which a Canadian truck driver 
entering the United States as a visitor for business (and who is thus 
visa-exempt) would not be subject to US-VISIT processing, but where the 
same person transiting through the United States to Mexico would be 
subject to US-VISIT processing. The commenter conceded that this was 
not currently a concern due to restrictions in hauling cargo between 
the three countries, but that it could be a concern in the future. DHS 
does not believe this scenario requires US-VISIT processing for the 
same reason as in the air environment. The driver in the scenario posed 
above--a truck driver taking cargo from Canada to Mexico--would not 
require a visa to enter the United States, nor would he be issued a 
Form I-94, regardless of whether he is ultimately driving to Mexico. 
Thus, transiting aliens who do not otherwise require US-VISIT 
processing would not be subject to US-VISIT processing as a result of 
this final rule.
5. Crew Members
    Two commenters suggested that Canadian airline crew members be 
exempt from US-VISIT requirements. These commenters stated that crew 
members are subject to significant levels of scrutiny to begin with, 
including checks made by Transport Canada and placement on the Master 
Crew lists provided to CBP 48 hours prior to departure. They also 
stated that the same reasoning applied to the continuing exemption for 
Canadian B1/B2 travelers appears to apply here, as each group is 
staying for a limited period of time. Finally, they said that any 
security benefits from these checks are insignificant compared to the 
costs that Canadian airlines would incur as a result of the inclusion 
of crew members in US-VISIT.
    In promulgating this final rule, DHS is attempting to treat all 
aliens as equally as operationally possible in US-VISIT processing. In 
other words, crew from all other foreign carriers (D visa holders) 
currently are required to be processed in US-VISIT, and in nearly all 
airports there is a special crew lane designated especially for air 
crew members' use. Based on observations from the four years that US-
VISIT has been operational, DHS does not believe that any delay for 
crew travel has been so significant as to justify continuing to not 
process airline crews through US-VISIT based on country of origin or 
nationality. Second, DHS does not believe that the connection to 
Canadian B1/B2 travelers is equivalent, as the exemption for those 
travelers is meant to account for the unique operational concerns of 
the land border environment. In addition, the extra checks that are 
mentioned by the commenter are biographic checks, and not the biometric 
checks that US-VISIT processing would provide.
    However, the commenter also identifies an inequity faced by 
Canadian crew with respect to biometric exit procedures. Because of the 
large number of United States preclearance sites in Canada, Canadian 
airlines often fly into United States domestic airport terminals. The 
commenter states that if one of these airlines were to fly into a 
United States airport where biometric exit processing were operational, 
the Canadian crewmember would be required to leave the domestic 
terminal, go to the international terminal, record his exit 
biometrically, and then return to the domestic terminal for the next 
flight.
    DHS agrees with the commenter that under these specific 
circumstances it may be unreasonable for Canadian airline crew members 
to biometrically register their departure. The exit pilot program has 
been terminated and, therefore, no pilots are being required to provide 
to register their departure.

C. Mexican Citizens

    Two commenters stated there should be no continued exemption for 
Mexican citizens, as the BCC and Form I-551 are the same. Currently, 
Mexican citizens who use a BCC to meet the documentary requirements of 
8 CFR 212.1, if staying in the United States for 72 hours or less 
within a specified distance from the United States/Mexico border, are 
not required to obtain Form I-94 and, therefore, are not subject to US-
VISIT. See 8 CFR 235.1(h)(1)(iii), (v). The commenter is correct that, 
from a security standpoint, BCCs are equivalent to Forms I-551 carried 
by LPRs. DHS anticipates that procedures for interacting with these two 
populations will be very similar. At air or sea ports of entry, both 
populations will be biometrically checked on every encounter. At land 
borders, under this final rule, LPRs and BCC holders will be checked as 
appropriate by CBP officers. This final rule adds LPRs to the list of 
travelers who, upon being referred to secondary inspection at land 
border ports of entry, will be processed in US-VISIT. Thus, this rule 
places LPRs and BCC holders in equivalent circumstances.

D. Operational Issues

1. Clarification of Procedures for Returning Nonimmigrants
    One commenter professed confusion with the proposed regulation's 
treatment of nonimmigrants returning through a land border port of 
entry, suggesting that DHS should clearly state whether it plans to 
conduct US-VISIT processing of all returning nonimmigrants arriving at 
a land port who, during primary inspection, present a valid visa and a 
current, multiple-entry Form I-94.
    Nonimmigrant visa holders have been subject to US-VISIT processing 
in secondary inspection at the 50 most trafficked land border ports of 
entry since December 2004, and at all land border ports of entry since 
December 2005. These procedures have been in place for three years, and 
the additional alien classifications added by this final rule do not 
change any existing land border procedures. Nonimmigrant aliens 
requiring completion of a Form I-94 may be referred to secondary 
inspection at any time at the discretion of the CBP officer at primary 
inspection, but at least every six to eight months for renewal of the 
Form I-94, regardless of the time remaining on the validity of the 
document or whether it is issued for duration of status (D/S). Forms I-
94 issued following US-VISIT processing are marked with the date on 
which the alien's period of admission expires (or duration of status, 
if applicable) and the date on which the person was processed in US-
VISIT. At primary inspection, the alien is referred to secondary 
inspection for US-VISIT processing if six to eight months have passed 
since the last time the alien was processed in US-VISIT (depending on 
the level of activity at the port of entry at that moment, the capacity 
to efficiently process the alien, and other factors). If no adverse 
information is found relating to that alien, the alien is admitted 
under the existing terms of the original Form I-94.
    The commenter characterizes this procedure as ``recurrent 
readjudication of previously approved nonimmigrant status.'' DHS does 
not agree with this characterization. Under the INA, each nonimmigrant 
alien applies for admission to the United States by approaching a port 
of entry and presenting identification for inspection, and DHS 
determines whether that nonimmigrant alien is admissible to the United 
States. See sections 101(a)(13),

[[Page 77480]]

212(a), 214, and 235(a)(3) of the INA (8 U.S.C. 1101(a)(13), 1182(a), 
1184, and 1225(a)(3). DHS is not persuaded that requiring some 
nonimmigrant aliens to undergo an abbreviated review every six to eight 
months at the land border ports of entry is somehow illegitimate or 
unfair to the nonimmigrant alien who is being inspected and admitted, 
or denied admission. The DHS policy of requiring the alien to be 
processed every six to eight months responds to the precise problem 
raised by the commenter--a CBP officer has a two-month ``gap'' in which 
to refer multiple entry aliens to secondary inspection for US-VISIT 
processing in order to best select a time that would be the least 
burdensome on the alien. DHS feels strongly that the balancing test 
here--the need for additional security and an additional tool to combat 
immigration fraud against what is, at worst, a minor inconvenience to 
the alien--favors the proposed policy.
    The commenter suggested also that the proposed regulation would 
inject uncertainty and inefficiency into the process, as a Canadian 
would need to carry the entire documentation for their visa 
classification, as well as payroll records and employment records to 
prove whatever the examining officer might decide is required to 
establish maintenance of status. DHS policy does not currently require 
such complex presentations on existing Forms I-94, nor does DHS 
anticipate changing this policy as a result of this final rule. 
Experience has established that the program is not being executed in 
the way the commenter fears. Under the INA, an alien may be required to 
present all of the appropriate evidence necessary to establish 
admissibility at any inspection or at any time. See e.g. section 264(e) 
of the INA, 8 U.S.C. 1304(e).
2. Real ID Act of 2005
    One commenter suggested that the expansion of alien categories in 
US-VISIT, in conjunction with the REAL ID Act of 2005, would have an 
impact on the states' relationship with the federal government under 
Executive Order 13132 because the REAL ID Act will require states to 
issue driver's licenses with effective dates that do not exceed the 
time permitted on the alien's admission period on the Form I-94. DHS 
disagrees.
    The REAL ID Act of 2005 prohibits federal agencies from accepting a 
state driver's license or personal identification card for any 
``official purpose'' unless it has been issued by a state that has 
certified to, and been determined by DHS to meet, the minimum document 
requirements, minimum issuance standards, and other requirements of the 
REAL ID Act. See REAL ID Act of 2005, Public Law 109-13, Div. B, tit. 
II, section 202, 119 Stat. 231, 302, 312 (May 11, 2005) (49 U.S.C. 
30301 note). Nothing in the REAL ID Act or final rule pertains to the 
expansion of the population of persons subject to US-VISIT requirements 
under this final rule. The commenter's concern that under the REAL ID 
Act and implementing regulations, states will issue REAL-ID compliance 
licenses to aliens that track with period of the aliens lawful status 
in the United States is outside the scope of this rulemaking action. 
The present regulatory action to expand US-VISIT makes no regulatory 
change that has a direct impact on the states. See 72 FR 10819.
3. Advance Passenger Information System
    One commenter suggested that the proposed expansion of US-VISIT was 
inconsistent with previous DHS regulatory statements regarding the 
possible elimination of the Form I-94. DHS understands this concern and 
believes that it is pursuing a consistent long-term goal that may 
result in elimination of the Form I-94.
    DHS currently requires the electronic transmission of manifest 
information for passengers (passenger name record or ``PNR'') and crew 
members to CBP in advance of those flights. Electronic Transmission of 
Passenger and Crew Manifests for Vessels and Aircraft, 70 FR 17820 
(Apr. 7, 2005) (Advance Passenger Information System or ``APIS'' final 
rule); Advance Electronic Transmission of Passenger and Crew Member 
Manifests for Commercial Aircraft and Vessels, 72 FR 48320 (Aug. 23, 
2007) (``APIS Quick Query or ``AQQ'' final rule''). As noted in the 
APIS final rule, DHS continues to study whether, and the extent to 
which, the transmission of APIS data can replace the submission of 
paper forms. At that time, DHS indicated that preliminary analysis 
suggested that Forms I-94 and I-418 could be significantly reduced, if 
not eliminated. That evaluation is ongoing as DHS pursues a 
consolidated data analysis approach--beginning with applications for 
visas to the DOS and machine-readable passports, through advance 
passenger information, to inspection admission verification, and to 
exit verification. As technological capacity further develops, DHS 
believes that a unified system is possible and preferable. This 
expansion of US-VISIT is one step toward that unified and streamlined 
goal. As further steps become possible and are taken, appropriate 
regulatory changes will be adopted and obsolete forms eliminated.
4. Connection to IDENT/IAFIS Interoperability
    One commenter questioned the inter-connections between US-VISIT 
under the changes in the regulations as proposed and IDENT, and the 
Federal Bureau of Investigation's (FBI's) Integrated Automated 
Fingerprint Identification System (IAFIS). The commenter expressed 
concern that IDENT database entries might be made available in the 
IAFIS database and opposed any plan to place civil immigration 
violations in a criminal database. Finally, the commenter requested an 
update on the ability of the systems to timely reflect changes and 
extensions of status. The commenter suggested that the proposal to 
expand US-VISIT to additional alien populations should wait for full 
IDENT/IAFIS integration.
    IDENT is a DHS-wide electronic record system for the collection and 
processing of biometric and limited biographic information in 
connection with the national security, law enforcement, immigration, 
intelligence, and other mission-related functions of DHS, as well as 
for any associated testing, training, management reporting, planning 
and analysis, or other administrative uses. See 71 FR 42651 (July 27, 
2006) (systems of records notice for IDENT).
    IAFIS is a national fingerprint and criminal history system 
maintained by the Criminal Justice Information Services (CJIS) Division 
of the FBI. IAFIS provides automated fingerprint search capabilities, 
latent searching capability, electronic image storage, and electronic 
exchange of fingerprints and responses. As a result of submitting 
fingerprints electronically, agencies receive electronic responses to 
criminal ten-print fingerprint submissions within two hours and within 
24 hours for civil fingerprint submissions.
    DHS, DOJ, and DOS are collaborating to achieve interoperability 
between IAFlS and IDENT. See 71 FR 67884, 67885 (Nov. 24, 2006) 
(Interim Data Sharing Model). Interoperability is defined as the 
sharing of alien immigration history, criminal history, and terrorist 
information based on positive identification and the interoperable 
capabilities of IDENT and IAFIS. Interoperability between the two 
systems is expected by late 2009. DHS and FBI already share information 
for the most egregious offense data sets held by the FBI, including 
known or suspected terrorists, wanted persons,

[[Page 77481]]

and sex offenders, as well as serious immigration violators.
    It is unclear from the comments why the proposal to expand the 
classifications of aliens subject to US-VISIT should wait for full 
IDENT/IAFIS interoperability. DHS currently receives substantial 
benefits from screening without interoperability because US-VISIT 
identifies existing aliens requiring further review (e.g. criminal 
warrants, prior deportations, etc.).
    Whether immigration violations are made available to law 
enforcement officers through IAFIS is not germane to this final rule. 
As IDENT/IAFIS interoperability moves forward, any such determination 
will be discussed in the appropriate PIAs by the appropriate Department 
if and when contemplated.
    Finally, although not germane to the rulemaking, DHS notes that 
biographic data from USCIS are transmitted to the Arrival Departure 
Information System (ADIS) so that changes to immigration status are 
reflected in US-VISIT in near-real time. Accordingly, US-VISIT has the 
capability to ensure that aliens who are in lawful status are not 
determined to have stayed past their original periods of admission if 
that period has been extended by USCIS.
5. Biometric Identifiers
    One commenter inquired about the language in the proposed rule that 
reserves the ability for DHS to collect ``other biometric identifiers'' 
in addition to photograph and fingerprints. This language is 
prophylactic. At this time, DHS has no plans to collect biometric 
identifiers in addition to photographs and fingerprints. However, DHS 
also recognizes that historically, other biometric identifiers such as 
height, weight, color of hair, color of eyes, etc., have been recorded, 
and this language continues to reflect that historic fact. Moreover, 
technological development may provide the capacity for use of other 
biometric identifiers in the future. DHS will make, as appropriate, 
changes in Privacy Impact Assessments and Systems of Records Notices 
for these systems.
    Another commenter suggested that visual comparison of photographs 
is sufficient for identification. DHS disagrees. Document fraud, in 
some instances, has been effective in creating a false identity that 
defeats simple visual inspection of photographs with the face of the 
bearer. In addition, the commenter's suggestion overlooks the purpose 
of positive freezing of an identity with fingerscans to determine 
whether the individual is admissible to the United States or has 
committed criminal or terrorist acts that bar admission.
6. Age Restrictions
    One commenter stated that the age limitations on the requirement to 
be processed in US-VISIT were too narrow, saying the program should be 
applicable to no one over the age of 60 years old, as opposed to over 
the age of 79. Another commenter suggested the opposite, saying that 
the age range should be expanded to cover those between the ages of 10 
and 85.
    US-VISIT processing is currently required of aliens who are between 
the ages of 14 and 79 and otherwise required to enroll and be verified 
in US-VISIT. Technically, it is possible to include more individuals 
who are younger and older than these age limitations. However, this age 
range is consistent with longstanding DHS and legacy INS policy 
concerning the fingerprinting of those seeking immigration benefits, 
including adjustment of status to permanent resident and 
naturalization. DHS uses exemptions consistent with these limitations. 
DHS may reconsider these age ranges in the future, but does not do so 
as part of this regulation. The current exemptions will continue to 
apply equally to all of the aliens enrolled in US-VISIT.
7. Exemption of Individual Aliens
    One commenter objected to language in the proposed 8 CFR 
215.8(a)(2)(iv) and 8 CFR 235.1(f)(1)(iv)(D) that allows the Secretary 
of Homeland Security, the Secretary of State, or the Director of 
Central Intelligence to exempt any individual alien from the biometric 
entry or exit processes. Each of these three departments has specific 
reasons why a particular person should be exempt from the biometric 
collection process that is integral for their core mission. The 
individualized decision to exempt an alien is based on the interests of 
the United States in managing its foreign and military affairs and 
poses no risk to the security of the United States.

E. Privacy and Information Retention

    Several commenters raised concerns relating to privacy, 
particularly the privacy of particular groups of aliens and DHS 
compliance with the Privacy Act, 5 U.S.C. 552a.
    One commenter stated that DHS has not met its responsibilities 
under the Privacy Act by failing to publish a Privacy Impact Assessment 
(PIA). DHS has published a PIA. 71 FR 42653 (July 27, 2006). Though not 
legally required to do so because nonimmigrants are not covered by the 
Privacy Act, DHS, as a matter of policy, has cons