Collection and Use of Biometrics by U.S. Citizenship and Immigration Services; Withdrawal

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Proposed Rules Federal Register Vol. 86, No. 88

Monday, May 10, 2021

This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: On proposed rule was intended to provide contains notices to the public of the proposed September 11, 2020, DHS published a DHS with the flexibility to change its issuance of rules and regulations. The notice of proposed rulemaking (NPRM biometrics collection practices and purpose of these notices is to give interested or proposed rule) titled ‘‘Collection and policies to ensure that necessary persons an opportunity to participate in the Use of Biometrics by U.S. Citizenship adjustments can be made to meet rule making prior to the adoption of the final rules. and Immigration Services’’ in the emerging needs, enhance the use of Federal Register (85 FR 56338). This biometrics beyond background checks rule proposed to amend DHS and document production to include DEPARTMENT OF HOMELAND regulations concerning the use and identity verification and management in SECURITY collection of biometrics in the the immigration lifecycle, enhance enforcement and administration of vetting to lessen the dependence on U.S. Citizenship and Immigration immigration laws by U.S. Citizenship paper documents to prove identity and Services and Immigration Services (USCIS), U.S. familial relationships, preclude Customs and Border Protection (CBP), imposters, and improve the consistency 8 CFR Parts 1, 103, 204, 207, 208, 209, and U.S. Immigration and Customs in biometrics terminology within DHS. 210, 212, 214, 215, 216, 235, 236, 240, Enforcement (ICE). DHS is withdrawing DHS still supports the goals of the 244, 245, 245a, 264, 287, 316, 333 and the September 11, 2020, NPRM for a NPRM to have flexibility in its 335 number of reasons. immigration benefit administration [CIS No. 2644–19; DHS Docket No. USCIS– In response to the NPRM, DHS biometrics collection practices and 2019–0007] received 5,147 comments during the 30- policies and enhance the use of day public comment period, and 192 biometrics for identity verification and RIN 1615–AC14 comments on the rule’s information management but not in a way that Collection and Use of Biometrics by collection requirements before the conflicts with Executive Order 14012. U.S. Citizenship and Immigration comment period ended. Commenters DHS, USCIS, CBP, and ICE remain Services; Withdrawal consisted of individuals, advocacy committed to national security, identity groups, legal service providers, management, fraud prevention and AGENCY: U.S. Citizenship and professional associations, State or local program integrity, and will continue to Immigration Services, DHS. governments, and social organizations. require the submission of biometrics ACTION: Proposed rule; withdrawal. The majority of commenters expressed where appropriate. See, e.g., INA general opposition to the rule, section 333 and 335 (requiring SUMMARY: The U.S. Department of mentioning immigration policy submission of photographs and a Homeland Security (DHS) is concerns, general privacy concerns, and personal investigation before an withdrawing a proposed rule that economic concerns (both to individuals application for naturalization may be published on September 11, 2020. The and communities). Many commenters approved); INA section 264(a) (directing notice of proposed rulemaking proposed wrote that the rule was unnecessary, the collection of fingerprints for the to amend DHS regulations concerning offensive, an invasion of privacy, would purpose of registering aliens); 8 U.S.C. the use and collection of biometrics in infringe on freedoms, and violate the 1732(b)(1) (requiring that alien visas and the enforcement and administration of respect, privacy rights, and civil other travel and entry documents use immigration laws by U.S. Citizenship liberties of U.S. citizens, legal biometric identifiers); 8 U.S.C. 1365a– and Immigration Services, U.S. Customs immigrants, noncitizens, victims of 1365b (requiring creation of a biometric and Border Protection, and U.S. domestic violence, other vulnerable data system for national security Immigration and Customs Enforcement. parties, and children. Many commenters purposes). DHS may engage in a future DATES: DHS withdraws the proposed stated that the rule was overly broad, rulemaking to enhance our biometrics rule as of May 10, 2021. highly invasive, and would impose requirements while not hindering access ADDRESSES: The docket for this excessive monetary costs on applicants to the immigration system and withdrawn proposed rule is available at and result in administrative delays in protecting privacy and civil liberties. http://www.regulations.gov. Please adjudicating immigration benefit However, commenters suggested that search for docket number USCIS–2019– requests that are already subjected to the breadth of the biometrics 0007. backlogs and long waits. submission requirements that were FOR FURTHER INFORMATION CONTACT: Executive Order 14012, ‘‘Restoring proposed in the proposed rule are more Steven Kvortek, Security and Public Faith in Our Legal Immigration Systems than what is necessary to meet the Safety Division Acting Chief, Office of and Strengthening Integration and requirements of the adjudication of Policy and Strategy, U.S. Citizenship Inclusion Efforts for New Americans,’’ immigration and naturalization benefits. and Immigration Services, DHS, 5900 in section 3(a)(i), instructs the Secretary DHS has considered the commenters Capital Gateway Drive, Camp Springs, of Homeland Security to identify concerns, and believe some of them may MD 20746; telephone 240–721–3000 barriers that impede access to be justified and require additional (this is not a toll-free number). immigration benefits. 86 FR 8277, (Feb. deliberation. Accordingly, DHS is Individuals with hearing or speech 5, 2021) (‘‘E.O. 14012’’). Having withdrawing the NPRM and will impairments may access the telephone reviewed the public comments received analyze the entirety of the NPRM in the numbers above via TTY by calling the in response to the NPRM in light of context of the directive in E.O. 14012 toll-free Federal Information Relay Executive Order 14012, DHS has and what changes may be appropriate Service at 1–877–889–5627 (TTY/TDD). decided to withdraw the NPRM. The and consistent with DHS’s needs,

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policies, and applicable law. In the Against Torture and Other Cruel, employers related to labor turnover and meantime, DHS’ current biometrics Inhuman or Degrading Treatment or the proposed E-Verify requirement. collection practices and policies are Punishment (CAT). Various state and local agencies, sufficient to meet the statutory and DATES: DHS withdraws the NPRM as of including Attorneys General from 15 regulatory requirements for document May 10, 2021. states, also opposed the rule on the basis production and the vetting of any ADDRESSES: The docket for this it would decrease tax revenue, deny applicant, petitioner, sponsor, withdrawn proposed rule is available at states various revenue streams, and beneficiary, or individual filing or http://www.regulations.gov. Please increase costs related to state-funded associated with an immigration benefit search for docket number USCIS–2019– public benefit programs. Many or request, including United States 0024. commenters also disagreed with the citizens. FOR FURTHER INFORMATION CONTACT: NPRM’s assertion that the proposed changes would incentivize individuals Authority Steven P. Kvortek, Acting Chief, Security and Public Safety Division, with final orders of removal to leave the As stated in the NPRM, DHS has Office of Policy and Strategy, U.S. United States. They argued that the general and specific statutory authority Citizenship and Immigration Services, majority of individuals who have a final to collect or require submission of DHS, 5900 Capital Gateway Drive, Camp order of removal and are released on an biometrics from applicants, co- Springs, MD 20746; telephone 240–721– order of supervision are in the United applicants, petitioners requestors, 3000 (this is not a toll-free number). States with DHS’s acknowledgment, as derivatives, beneficiaries and others Individuals with hearing or speech reflected by their release on an order of directly associated with a request for impairments may access the telephone supervision, and that DHS’s inability to immigration benefits; and for purposes numbers above via TTY by calling the remove them primarily stems not from incident to apprehending, arresting, toll-free Federal Information Relay inaction on the individual’s part but due processing, and care and custody of Service at 1–877–889–5627 (TTY/TDD). to the unwillingness of foreign aliens. 85 FR 56347. DHS is governments to issue them travel SUPPLEMENTARY INFORMATION: On documents and cooperate in their withdrawing the NPRM using those November 19, 2020, DHS published an same authorities. repatriation. NPRM titled ‘‘Employment The NPRM stemmed from two Alejandro N. Mayorkas, Authorization for Certain Classes of executive orders issued by President Secretary, U.S. Department of Homeland Aliens With Final Orders of Removal.’’ Trump, which have been revoked since Security. (85 FR 74196). This NPRM proposed to the publication of the NPRM. DHS [FR Doc. 2021–09671 Filed 5–7–21; 8:45 am] eliminate employment authorization initiated the regulatory action pursuant under 8 CFR 274a.12(c)(18) for BILLING CODE 9111–97–P to Executive Order 13768, ‘‘Enhancing individuals who have a final order of Public Safety in the Interior of the removal and are released on an order of United States’’ (Jan. 24, 2017) and DEPARTMENT OF HOMELAND supervision with a narrow exception. Executive Order 13788, ‘‘Buy American SECURITY DHS also proposed to amend its and Hire American’’ (Apr. 18, 2017). regulations to clearly indicate that These executive orders directed DHS to U.S. Citizenship and Immigration individuals who have been granted CAT revise or rescind any regulations Services deferral of removal would be inconsistent with these orders. DHS employment authorized based on their issued the NPRM after determining that 8 CFR Parts 106, 241, and 274a grant of CAT deferral of removal. the current regulations at 8 CFR In response to the NPRM, DHS 274a.12(c)(18) could be inconsistent [CIS No. 2653–19; DHS Docket No. USCIS– received more than 302 comments 2019–0024] with the above-mentioned executive during the 30-day public comment orders. RIN 1615–AC40 period. Nearly 98 percent of On January 20, 2021, President Biden commenters opposed the proposed rule issued Executive Order 13993, Employment Authorization for Certain with several commenters specifically Classes of Aliens With Final Orders of ‘‘Revision of Civil Immigration requesting that DHS withdraw the Enforcement Policies and Priorities,’’ Removal; Withdrawal 1 NPRM. Less than 2 percent expressed which revoked Executive Order 13768. AGENCY: U.S. Citizenship and support for the rule with such Further, on January 25, 2021, President Immigration Services, DHS. commenters generally supporting the Biden issued Executive Order 14005, rule because they believed it would ACTION: Proposed rule; withdrawal. ‘‘Ensuring the Future Is Made in All of deter illegal immigration and protect America by All of America’s Workers,’’ SUMMARY: The U.S. Department of U.S. workers. The commenters who which revoked Executive Order 13788. Homeland Security (DHS) is opposed the NPRM argued that it would Executive Orders 13993 and 14005 withdrawing a notice of proposed significantly limit the ability of directed agencies to review, revise, or rulemaking (NPRM) that published on individuals who have a final order of rescind any agency actions or guidance November 19, 2020. The NPRM removal and are released on an order of inconsistent with the executive orders. proposed to revise DHS regulations supervision to legally work, be self- Having reviewed the NPRM and the governing employment authorization for sufficient, and support their families, public comments in light of Executive individuals who have a final order of which may include U.S. citizen children Orders 13993 and 14005, DHS has removal and are released from DHS and lawful permanent resident spouses decided to withdraw the NPRM. The custody on an order of supervision. The or partners. Several commenters also original bases and rationale for NPRM also proposed to amend DHS noted the proposed rule would impose promulgating the NPRM no longer align regulations to clearly indicate the exorbitant costs and burdens on U.S. with the current Administration’s employment eligibility of individuals immigration enforcement priorities. 1 Comments may be viewed at the Federal Docket who have been granted deferral of Management System (FDMS) at http:// This Administration is focused on removal based on the United States’ www.regulations.gov, docket number USCIS–2019– protecting the interests of American obligations under the Convention 0024. workers by ensuring the ‘‘[Federal

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