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U.S. Moves to Reap Immigrant, American Biometrics (Corrected)

Sept. 21, 2020, 9:23 AM; Updated: Oct. 1, 2020, 10:33 PM

Six million would-be U.S. immigrants face expanded collection of their biometric data, including iris scans, palm-, and voice-prints, facial recognition images, and DNA, under a proposed federal rule. The Department of Homeland Security also for the first time would gather that data from American citizens sponsoring or benefiting from a visa application.

Years in the making, the biometrics immigration rule has garnered more than 160 comments since its Sept. 11 publication. The 30-day comment period closes on Oct 13. A final version could be in place by Inauguration Day.

Immigration and privacy advocates have voiced concerns over who will have to comply with the new requirements, why President Donald Trump is making this push so late in his term, and what it means for a federal agency already claiming a lack of resources.

“The only words to describe this proposed rule is breathtaking,” said Doug Rand, who worked on technology and immigration policy in the Obama White House and then joined the Federation of American Scientists. “It’s clearly designed to drastically expand surveillance of immigrants, U.S. citizens, employers.”

The 300-plus-page plan updates current biometrics requirements so that “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 without regard to age unless the agency waives or exempts the requirement.”

The DHS estimates an additional 2.17 million new biometrics submissions will be collected annually, an increase from the current 3.9 million, under the rule.

“If we want to bring some integrity to our immigration system in terms of who we give benefits to, then I would say this is long-needed,” said Lora Ries, a former acting deputy chief of staff at the U.S. Citizenship and Immigration Services. “There have been holes, whether loopholes, or just gaps that can be exploited, or that we’re giving benefits to folks who shouldn’t be getting them. And this closes one of those. So, opponents can call that overly broad, supporters would call it long-needed,” said Ries, now a senior research fellow at the conservative Heritage Foundation.

New Frontiers

The DHS already collects fingerprints from some visa applicants. The new rule would expand that biometrics-gathering to iris images, palm- and voice- prints. The agency wants authority to require or request DNA testing to prove familial relationships where kinship is in question. The DNA data could be stored indefinitely, under the proposed rule.

The current immigration tracking system is “a mess” Ries said, citing paper records that go missing or the same immigrant tracking number being assigned to more than one person, among other problems. A biometric, “person-centric” system will make it more efficient and reduce confusion from misspellings or other human error, she said.

Privacy advocates disagree. The agency does little in its proposed rule to “tether” the expanded use of biometrics to any particular need or necessity, said Vera Eidelman, staff attorney for the American Civil Liberties Union’s Speech, Privacy and Technology Project.

The proposal is expanding that scope to “the most unique and sensitive biometric information that you can get from a person,” said Saira Hussain, a staff attorney for the Electronic Frontier Foundation’s civil liberties team.

“That piece is extremely alarming.”

The ACLU’s Eidelman also doubts the new proposal will be more efficient. For instance, it might actually be less so because of flaws in the way facial recognition technology misidentifies minorities, the elderly, and women, she said.

Under a new regulation from the Justice Department, the DHS is collecting DNA samples from immigrant detainees, which involves storing DNA profiles in the Federal Bureau of Investigation’s CODIS database, Hussain said.

The potential influx of millions of biometrics submissions raises the question of whether the DHS has the infrastructure to store, secure, and retain this sensitive data, and with whom it will be shared, she said.

The DHS didn’t respond to several emails sent over several weeks with questions about how long it intends to hold onto the accrued data or whether U.S. law enforcement or intelligence agencies will be able to gain access to it.

Employer Impact

While the current proposal doesn’t expressly reference employers, that doesn’t mean it couldn’t be applied to employer-backed visa holders down the road, said Michael Nowlan, co-leader of Clark Hill’s Immigration Business unit. “It’s just amazing to me how broad this is.”

One potential scenario for employers petitioning for visa-holding workers or sponsoring foreign workers for green cards is that legal counsel or even a human resources officer may be required to submit biometrics on the company’s behalf.

Typically, employers have a designated signatory for all their foreign worker petitions, and it’s generally a human resources or legal representative, said immigration attorney Blake Miller, a partner with Fragomen in Irvine, Calif.

The intended object of the DHS initiative appears to be family-based petitions, Miller and Ries said separately.

The DHS also didn’t respond to questions about whether U.S. employers would be required to submit biometrics data for visa workers.

Unveiling its proposal earlier this month, the agency said the intent was 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.”

‘Burning Down the House’

The regulatory window to overhaul how and when biometric data are collected is rapidly closing.

“This is the hallmark of an administration that bit off more than it could chew and is facing an impending deadline,” said Rand, who is also president and co-founder of Boundless Immigration Inc., a company that helps people navigate the system. “Every administration does this, so they’re in triage mode with this huge queue of regulations.”

The DHS essentially has until Dec. 20 to review and respond to public comments and draft a final proposal, Rand said. “They’re really running out of time. And the fact that you’d put out a final regulation on such a far-ranging new policy that touches the lives of millions of people, you’re opening up to huge legal vulnerability because any plaintiff can point to the comment period of only 30 days.”

Should Trump win re-election, his administration can use this period of uncertainty to accelerate this regulation and carry it out in the new year. If Trump loses, and his team makes it final it before Democrat Joe Biden takes office, it’s a “huge headache” for the next administration, Rand said.

“It’s basically like burning down the house on your way out,” Rand said.

While the regulatory repeal process mirrors the steps required to create federal rules, a Biden administration could move to modify the biometrics collection measures or limit their enforcement, and Congress could vote to overturn them.

According to Ries, the rule’s timing reflects the draft having “bounced around” agencies: the USCIS, Customs and Border Protection, and Immigration and Customs Enforcement.

“ICE was working on it, CBP was working on it and that slowed everything down,” Ries said. “That plays, unfortunately, a big reason why it’s taken this long to get it out the door.”

(Corrected in 14th graph to reflect that immigrant detainee DNA profiles will be stored in the FBI's CODIS database. Story originally published on Sept. 21. )

To contact the reporters on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com; Shaun Courtney in Washington at scourtney@bgov.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Robin Meszoly at rmeszoly@bgov.com

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