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DHS Proposes Significant Changes Concerning the Use and Collection of Biometrics

Posted September 9, 2020Cheryl Kilborn - Sr. AssociateArticles

The Department of Homeland Security (DHS) has released a notice of proposed rulemaking that would significantly change current biometrics regulations. The proposed rule, according to DHS, is meant to provide the agency with enhanced flexibility in the collection and management of biometrics information throughout the “immigration lifecycle.” If enacted, the proposed rule would expand the type of information that can be collected, who it can be collected from, and for what purposes it can be used.

Current regulations:

  • The current DHS biometric collection process for benefits adjudication for an applicant/beneficiary begins with the collection of an individual’s photograph, fingerprints, and signature at an authorized biometric collection site
  • Current regulations generally require documentary evidence such as marriage and birth certificates, and secondary evidence such as medical records, school records, religious documents, and affidavits to support claims based on familial relationships. In some situations, individuals are allowed to voluntarily submit DNA test results
  • For all other benefit requests and enforcement actions, DHS must decide, in accordance with its statutory and regulatory authorities, if the request or enforcement action justifies collection of biometrics and notify the individual where they will be collected when a collection is warranted and for what purposes they will be used

DHS proposes to change the regulations in a number of ways including:

  • DHS proposes that any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with a certain benefit or request, including U.S. citizens and without regard to age, must appear for biometrics collection unless DHS waives or exempts the requirement
  • DHS proposes to increase the biometric modalities that DHS collects, to include iris image, palm print, and voice print
  • DHS proposes that any individual alien who is present in the United States following an approved immigration benefit may be required to submit biometrics unless and until they are granted U.S. citizenship
  • Under the proposed rule, DHS may expressly require, request, or accept DNA evidence to demonstrate the existence of the claimed genetic relationship. Further, DHS proposes to require biometrics from U.S. citizens or lawful permanent residents when they submit a family-based visa petition
  • DHS proposes to collect biometrics and perform background checks on U.S. citizen and lawful permanent resident principals of a regional center (EB-5)

Firm Insight:

If enacted, the proposed rule would expand the type of information that can be collected, who it can be collected from, and for what purposes it can be used including:

  • Most significantly, petitioners and sponsors, whether family-based or employment, could be required to provide biometrics as opposed to just the applicant/beneficiary
  • Collection of biometrics, including DNA could be required, regardless of a minor’s age
  • Foreign nationals and legal permanent residents could be required to continue to provide biometrics up until the point of becoming a U.S. citizen
  • Harsher scrutiny of EB-5 regional centers by performing background checks on U.S. citizens and lawful permanent residents to determine whether the regional center itself is bona fide and capable of promoting economic growth

The proposed rule will be published in the Federal Register on September 11, 2020 and will be available for public comment. It generally takes no less than 120 days for a new rule to go into effect.

Meltzer Hellrung will continue to monitor the proposal and provide updates as they become available.

Please reach out to your designated Meltzer Hellrung attorney or email us at consultation@meltzerhellrung.com, with questions.