U.S. Citizenship and Immigration Services (USCIS), the component of the Department of Homeland Security (DHS) responsible for administering the nation's lawful immigration system, operates in an antiquated manner. With limited exceptions, immigration applications and petitions are completed on paper forms and mailed to USCIS facilities for sorting and adjudicating. While this paper-based system is bureaucratic inefficiency at its finest, the hindrance is generally limited to the alien, immigrant, or employer seeking the immigration benefit.
However, when it comes to thoroughly screening and vetting all individuals involved in the immigration benefit process, the outdated and incomplete measures currently in place expose the country to fraud, exploitation, public safety, and national security concerns. USCIS tried to modernize its methods for screening and vetting by regulation, but was unable to get the final rule published in the Federal Register before the end of the Trump administration. According to my DHS sources, the Biden political team has killed this effort by putting the rule on hold "indefinitely". This is a grave mistake and the current administration should reconsider this move.
On September 11, 2020, DHS published a proposed rule entitled, "Collection and Use of Biometrics by U.S. Citizenship and Immigration Services". In general, this rule would modernize biometrics collections by establishing a uniform definition of "biometrics" for all of DHS, replacing the patchwork of specified identifying modalities (e.g., fingerprint, photograph) used for various DHS purposes. By contrast, the current practice of using "name and date of birth" identifiers or submitting documents to establish identity are unreliable and can be easily misrepresented or counterfeited.
In fact, the DHS Office of Inspector General (OIG) issued an alarming report in 2017 about how past reliance on "name and date of birth" identifiers instead of fingerprints gave rise to massive fraud where a significant number of aliens used multiple identities in order to obtain immigration benefits they were not eligible for. Beyond the concerning flaws of "name and date of birth" identifiers, it is also not uncommon for identity documents to be unreliable due to their having been issued by a failed state (e.g., Yemen, Somalia) or unavailable if the alien was fleeing persecution.
In addition to defining "biometrics", the rule provides permissive authority for DHS to collect iris image, palm print, and voice print to improve identity and records management. Importantly, the rule would require biometrics for every application, petition, or related immigration request, eliminating the misguided current regulatory prohibition of collecting from those under the age of 14. Additionally, the rule would codify DHS's DNA collection authority to perform functions necessary for administering and enforcing immigration laws, combat fraudulent families at the southern border, and strengthen DHS's response against human trafficking and human smuggling.
As USCIS explained in the proposed rule, these changes are intended to "Provide DHS with the flexibility to change its biometrics collection practices and policies to ensure that necessary adjustments can be made to meet emerging needs, enhance the use of biometrics beyond background checks and document production to include identity verification and management in the immigration lifecycle, enhance vetting to lessen the dependence on paper documents to prove identity and familial relationships, preclude imposters, and improve the consistency in biometrics terminology within DHS." Put more succinctly by then Acting Deputy Secretary Ken Cuccinelli, "Leveraging readily available technology to verify the identity of an individual we are screening is responsible governing. The collection of biometric information also guards against identity theft and thwarts fraudsters who are not who they claim to be."
Of all the Trump administration immigration rules that fell just short of completion, the biometrics one came the closest to making it across the regulatory finish line. After considering substantial public feedback from the comment period, USCIS staff drafted a final rule that fully adopted the rule as proposed. The final rule was then cleared by USCIS and DHS leadership, and OIRA concluded review on January 13, 2021. Disappointingly, the Federal Register failed to publish the rule by January 19 for reasons unknown. It was subsequently withdrawn from the Federal Register upon Biden's inauguration.
If the Biden administration is serious about protecting the homeland and ensuring immigration benefits only go to those who are eligible for them, they should immediately resubmit this final rule to the Federal Register for publication.