Proposed Biometrics Rule Could Lead to Visa Delays

DNA among new biometrics proposed for collection

Roy Maurer By Roy Maurer September 17, 2020
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​The U.S. Department of Homeland Security (DHS) issued a proposed regulation Sept. 11 that would expand the collection of biometric data from foreign workers and their U.S. employer sponsors.

The proposed rule would significantly increase the collection of personal biometric data in immigration processing beyond fingerprints and photographs to include voice, iris and facial recognition scans and, in cases where a genetic relationship is claimed, DNA samples. Currently, DHS cannot require DNA test results in order to prove a claimed relationship.

The proposal is likely to raise privacy concerns and, if implemented, could further delay immigration processing even as visa wait times have spiked.

The proposal would give DHS the authority to require biometrics for every application, petition or related immigration request, whereas presently biometrics are only required for applications that require background checks.

"Unless waived by DHS, any applicant, petitioner, sponsor, beneficiary or individual [who is] filing or associated with an immigration benefit or request, including U.S. citizens, must appear for biometrics collection, regardless of age," said Forrest Read, an attorney in the Raleigh, N.C., office of Jackson Lewis. "For employers, this may mean that authorized signatories or others associated with a petition filing could be subject to biometrics screenings," Read said.

Sponsoring organizations for employment-based permanent residence filings or for adjustment of status to permanent residence could be subject to the expanded biometrics collection.

Foreign nationals would also be required to submit to ongoing vetting and biometric evaluation while in the country until granted U.S. citizenship.

"Foreign national employees and their dependents will be subject to continuing surveillance and may need to attend numerous biometrics screenings, even absent a new petition or application," Read said. "In addition, given the increase in biometrics processing and the new proposed modalities, including more DNA screenings, privacy issues will be of great concern for employers and employees alike."

Raw DNA will not be stored, but the results of the test will be saved in an immigrant's official file, DHS said.

According to the agency, the proposed rule would modernize biometrics collection, improve the screening process and establish a defined purpose for biometrics.

"This proposed rule eliminates any ambiguity surrounding the department's use of biometrics, setting clear standards for how and why we collect and use this information," said Ken Cuccinelli, the DHS senior official performing the duties of deputy secretary. "Leveraging readily available technology to verify the identity of an individual we are screening is responsible governing," he said. "The collection of biometric information also guards against identity theft and thwarts fraudsters who are not who they claim to be."

The rule would also give DHS officials the authority to use emerging technologies still in development.

Backlogs Could Increase

Adding new biometrics requirements to visa processing could lengthen delays at U.S. Citizenship and Immigration Services (USCIS) offices that are already backlogged because of the coronavirus pandemic. USCIS application support centers closed to the public in March and reopened in July. Work continued remotely, but in-person biometrics appointments were postponed and now make up large backlogs.

DHS estimates that the rule would increase the number of annual biometrics screenings from nearly 4 million to 6 million. "This increase would be difficult to implement any time soon given the current backlogs," Read said.

Timeline

DHS said that implementing the proposed rule is a top priority, but it will likely take months to become a reality. The standard regulatory process includes 30 days of public comment and typically additional months for the agency to review the feedback and prepare a final rule.  

The proposal is likely to generate a lot of public comment and, if a final rule is published, legal challenges will probably be filed to block its implementation.

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