US-VISIT Regulation

Monday,
January 5, 2004

Part IV

Department of
Homeland Security
8 CFR Parts 214, 215 and 235
Implementation of the United States
Visitor and Immigrant Status Indicator
Technology Program (‘‘US–VISIT’’);
Biometric Requirements; Notice to
Nonimmigrant Aliens Subject To Be
Enrolled in the United States Visitor and
Immigrant Status Indicator Technology
System; Interim Final Rule and Notice

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Federal Register / Vol. 69, No. 2 / Monday, January 5, 2004 / Rules and Regulations

DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 214, 215 and 235
[BTS 03–01]
RIN 1651–AA54

Implementation of the United States
Visitor and Immigrant Status Indicator
Technology Program (‘‘US–VISIT’’);
Biometric Requirements
AGENCY: Border and Transportation
Security Directorate, Department of
Homeland Security.
ACTION: Interim final rule with request
for comments.
SUMMARY: The Department of Homeland
Security (Department or DHS) has
established the United States Visitor
and Immigrant Status Indicator
Technology Program (US–VISIT) in
accordance with several Congressional
mandates requiring that the Department
create an integrated, automated entry
exit system that records the arrival and
departure of aliens; that equipment be
deployed at all ports of entry to allow
for the verification of aliens’ identities
and the authentication of their travel
documents through the comparison of
biometric identifiers; and that the entry
exit system record alien arrival and
departure information from these
biometrically authenticated documents.
This rule provides that the Secretary of
Homeland Security or his delegate may
require aliens to provide fingerprints,
photographs or other biometric
identifiers upon arrival in or departure
from the United States. The arrival and
departure provisions are authorized by
sections 214, 215 and 235 of the
Immigration and Nationality Act (INA).
The Department will apply this rule’s
requirements only to aliens seeking to
be admitted pursuant to a nonimmigrant
visa who travel through designated air
and sea ports. The rule exempts: aliens
admitted on A–1, A–2, C–3 (except for
attendants, servants or personal
employees of accredited officials), G–1,
G–2, G–3, G–4, NATO–1, NATO–2,
NATO–3, NATO–4, NATO–5 or NATO–
6 visas, unless the Secretary of State and
the Secretary of Homeland Security
jointly determine that a class of such
aliens should be subject to the rule;
children under the age of 14; persons
over the age of 79; classes of aliens the
Secretary of Homeland Security and the
Secretary of State jointly determine
shall be exempt; and an individual alien
the Secretary of Homeland Security, the
Secretary of State, or the Director of
Central Intelligence determines shall be
exempt. A Federal Register notice

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identifying the air and sea ports where
biometrics may be collected at time of
entry and departure has been published
simultaneously with this rule. This rule
authorizes the Secretary to establish
pilot programs for the collection of
biometric information at time of
departure and at a limited number of
ports of entry, to be identified through
notice in the Federal Register. The
biometrics provided by the aliens will
be entered into the automated
identification system (IDENT) system,
which will be integrated with the entry
exit system component of US–VISIT.
The alien’s biometric and other
information will be checked against law
enforcement and intelligence data to
determine whether the alien is a threat
to national security or public safety, or
is otherwise inadmissible. An alien’s
failure to comply with this rule’s
requirements may result in a finding
that he or she is inadmissible to the
United States, has violated the terms of
his or her admission and maintenance
of status, or is ineligible for future visas,
admission or discretionary immigration
benefits. Due to heightened security
concerns related to a continued threat of
terrorist acts in the United States, the
Department has determined that
immediate implementation of this rule
is necessary with request for public
comments.
DATES: Interim rule effective on January
5, 2004. Written comments must be
submitted on or before February 4, 2004.
ADDRESSES: Written comments may be
submitted to Patrice Ward, Chief
Inspector, Air and Sea Exit Manager,
US–VISIT, Border and Transportation
Security; Department of Homeland
Security; 1616 North Fort Myer Drive,
5th Floor, Arlington, VA 22209.
Submitted comments may be inspected
at 425 I St NW., Room 4034,
Washington, DC 20536 during regular
business hours. Arrangements to inspect
submitted comments should be made in
advance by calling (202) 298–5200.
Comments submitted will be available
for public inspection in accordance with
the Freedom of Information Act, 5
U.S.C. 552.
FOR FURTHER INFORMATION CONTACT: For
US–VISIT requirements under this rule:
Patrice Ward, Chief Inspector, Air and
Sea Exit Manager, US–VISIT, Border
and Transportation Security;
Department of Homeland Security; 1616
North Fort Myer Drive, 5th Floor,
Arlington, VA 22209, at (202) 927–5200.
SUPPLEMENTARY INFORMATION:
What Is the US–VISIT Program?
The US–VISIT program is a high
priority initiative of the Department that

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is designed to improve overall border
management through the collection of
arrival and departure information on
foreign visitors and immigrants who
travel through our nation’s air, sea and
land ports. The goals of US–VISIT are to
enhance the security of the United
States, its citizens, permanent residents
and visitors; to expedite legitimate
travel and trade; to ensure the integrity
of the U.S. immigration system; and to
safeguard the personal privacy of
foreign visitors and residents. By
recording more complete arrival and
departure information, the US–VISIT
program will not only meet various
Congressional mandates for an
integrated, interoperable, and automated
entry exit system for aliens as discussed
below, but it will also enhance the
security and safety of citizens, residents
and visitors by verifying foreign
national travelers’ identities through the
comparison of biometric identifiers, by
authenticating their travel documents,
and by checking their data against
appropriate law enforcement and
intelligence systems. The terrorist
attacks of September 11, 2001,
highlighted the need to improve
national security by returning integrity
to the U.S. immigration system. This
requires developing better methods for
identifying aliens who are inadmissible
to the country as well as those who
overstay their lawful admission periods.
At the same time, the country needs
procedures and systems that facilitate
legitimate travel, commerce, tourism,
education, international
communication, and other benefits that
flow from welcoming law-abiding
citizens of other countries into the
United States. The US–VISIT Program
was created to help DHS meet all of
these law enforcement and service
goals.
What Is the Statutory Authority for the
Entry Exit System Component of the
US–VISIT Program and for the
Collection of Biometric Identifiers From
Aliens?
The principal law that mandates the
creation of an automated entry exit
system that integrates electronic alien
arrival and departure information is the
Immigration and Naturalization Service
Data Management Improvement Act of
2000 (DMIA), Public Law 106–215
(2000), 114 Stat. 339, codified as
amended at 8 U.S.C. 1365a. DMIA
amended previous legislative
requirements for an entry exit system
that would record the arrival and
departure of every alien who crosses the
U.S. borders. See section 110 of the
Illegal Immigration Reform and
Immigrant Responsibility Act of 1996,

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Federal Register / Vol. 69, No. 2 / Monday, January 5, 2004 / Rules and Regulations
Div. C, Public Law 104–208 (1996), 110
Stat. 3009–558, codified in scattered
sections of 8 U.S.C. (later amended by
DMIA). DMIA requires that the entry
exit system consist of the integration of
all authorized or required alien arrival
and departure data that is maintained in
electronic format in Department of
Justice (DOJ) (now DHS) or Department
of State (DOS) databases. 8 U.S.C.
1365a. This integrated entry exit system
must be implemented at all air and sea
ports of entry by December 31, 2003
using available air and sea alien arrival
and departure data as described in the
statute. DMIA also states that the system
must be implemented at the 50 most
highly trafficked land border ports of
entry by December 31, 2004, and at all
ports of entry by December 31, 2005
with all available electronic alien arrival
and departure information. DMIA also
requires DHS to use the entry exit
system to match the available arrival
and departure data on aliens and to
prepare and submit to Congress various
reports on the numbers of aliens who
have overstayed their periods of
admission and on implementation of the
system. 8 U.S.C. 1365a(e). DMIA
authorizes the Secretary of Homeland
Security, in his discretion, to permit
other Federal, State, and local law
enforcement officials to have access to
the entry exit system for law
enforcement purposes. 8 U.S.C.
1365a(f).
In addition, section 217(h) of the Visa
Waiver Permanent Program Act of 2000
(VWPPA), Public Law 106–396 (2000),
114 Stat. 1637, codified as amended at
8 U.S.C. 1187(h), requires the creation of
a system that contains a record of the
arrival and departure of every alien
admitted under the Visa Waiver
Program (VWP) who arrives and departs
by air or sea. The requirements of DMIA
effectively result in the integration of
this VWP arrival/departure information
into the primary entry exit system
component of the US–VISIT program.
In late 2001 and 2002, Congress
passed two additional laws affecting the
development of the entry exit system, in
part, in response to the events of
September 11, 2001. Section 403(c) of
the Uniting and Strengthening America
by Providing Appropriate Tools
Required to Intercept and Obstruct
Terrorism (USA PATRIOT Act), Public
Law 107–56 (2001), 115 Stat. 353,
codified as amended at 8 U.S.C. 1379,
required the Attorney General and the
Secretary of State jointly, through the
National Institute of Standards and
Technology (NIST), and in consultation
with the Secretary of the Treasury and
other appropriate Federal law
enforcement and intelligence agencies,

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and in consultation with Congress, to
develop and certify a technology
standard, including appropriate
biometric identifier standards, that can
be used to verify the identity of visa
applicants and persons seeking to enter
the United States pursuant to a visa and
to do background checks on such aliens.
In developing the entry exit system
required by DMIA, section 414(b) of the
USA PATRIOT Act directed the
Attorney General and the Secretary of
State to ‘‘particularly focus on the
utilization of biometric technology; and
the development of tamper-resistant
documents readable at ports of entry.’’
8 U.S.C. 1365a note.
The legislative requirements for
biometric identifiers to be utilized in the
context of the entry exit system were
significantly strengthened with passage
of the Enhanced Border Security and
Visa Entry Reform Act of 2002 (‘‘Border
Security Act’’ or EBSVERA), Public Law
107–173 (2002), 116 Stat. 553, codified
in scattered sections of 8 U.S.C.
302(a)(1) of the Border Security Act
states that the entry exit system must
use the technology and biometric
standards required to be certified by
section 403(c) of the USA PATRIOT Act.
Section 303(b)(1) requires that ‘‘[n]o
later than October 26, 2004,’’ only
machine-readable, tamper-resistant
visas and other travel and entry
documents that use biometric identifiers
may be issued to aliens by DHS and
DOS. 8 U.S.C. 1732(b)(1). This section,
however, does not invalidate unexpired
travel documents that have been issued
by the U.S. government that do not use
biometrics. Section 303(b)(1) further
states that the Secretaries of Homeland
Security and State must jointly establish
document authentication and biometric
identifier standards for alien travel
documents from among those
recognized by domestic and
international standards organizations.
Id.
Section 303(b)(2) requires that ‘‘[n]o
later than October 26, 2004,’’ all ports of
entry must have equipment and
software installed ‘‘to allow biometric
comparison and authentication of all
United States visas and other travel and
entry documents issued to aliens, and
passports’’ that are required to be issued
by VWP countries. 8 U.S.C. 1732(b)(2).
The current statutory language also
requires that by that same date, VWP
countries must have a program in place
to issue tamper-resistant, machinereadable, biometric passports that
comply with biometric and document
identifying standards established by the
International Civil Aviation
Organization (ICAO). 8 U.S.C.
1732(c)(1). The statute also states that

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on or after October 26, 2004, any alien
applying for admission under the VWP
must present a passport that is machinereadable, tamper-resistant and that uses
ICAO-compliant biometric identifiers,
unless the unexpired passport was
issued prior to that date. 8 U.S.C.
1732(c)(2). The entry exit system must
include a database that contains alien
arrival and departure data from the
machine-readable visas, passports, and
other travel and entry documents. 8
U.S.C. 1731(a)(2). In developing the
entry exit system, the Secretaries of
Homeland Security and State must also
make interoperable all security
databases relevant to making
determinations of alien admissibility. 8
U.S.C. 1731(a)(3).
In addition, the entry exit system
component must share information with
other systems required by the Border
Security Act. Section 202 of the Border
Security Act addresses requirements for
an interoperable law enforcement and
intelligence data system and requires
the integration of all databases and data
systems that process or contain
information on aliens.
The US–VISIT program requirements
that foreign nationals provide biometric
identifiers when they seek admission to
the United States are further supported
by the Department’s broad authority to
inspect aliens contained in section 235
of the INA, 8 U.S.C. 1225. Pursuant to
section 215(a) of the INA, the President
also has the authority to regulate the
departure of aliens, as well as their
arrival. President Bush has issued
Executive Order titled Assignment of
Functions Relating to Arrivals In and
Departures From the United States
delegating his authority to promulgate
regulations governing the departure of
aliens from the United States. In
accordance with section 215 and with
this new Executive Order, the Secretary
of Homeland Security, with the
concurrence of the Secretary of State,
has the authority to issue this rule
which requires certain aliens to provide
requested biometric identifiers and
other relevant identifying information as
they depart the United States. For
nonimmigrant aliens, the Department
may also make compliance with the
departure procedures a condition of
their admission and maintenance of
status while in the country under INA,
section 214.
Many other provisions within the INA
also support the implementation of the
US–VISIT program, such as the grounds
of inadmissibility in section 212, the
grounds of removability in section 237,
the requirements for the VWP program
in section 217, the electronic passenger
manifest requirements in section 231,

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and the authority for alternative
inspection services in sections 286(q)
and 235 of the INA and section 404 of
the Border Security Act. These are but
a few of the most significant provisions
that support US–VISIT from among
numerous other immigration and
customs statutes.
Is DHS Meeting the December 31, 2003
DMIA Deadline for Implementing the
Integrated Entry Exit System at the Air
and Sea Ports of Entry?
Yes. By integrating all the available
arrival and departure data on aliens who
arrive through the air and sea ports of
entry that currently exists in the
electronic systems of DHS and DOS and
deploying the integrated system at those
ports of entry, the Department has met
the first DMIA deadline of December 31,
2003. The Department is accomplishing
this first phase through the integration
of the arrival and departure data
contained in the Advance Passenger
Information System (APIS) and the
Arrival Departure Information System
(ADIS), as well as other systems related
to air and sea inspections. APIS and
ADIS include the information captured
from electronic passenger manifest data
received from carriers, information on
VWP aliens, and information on visa
applicants and recipients received
through the DataShare program with
DOS.
What Changes Does This Interim Rule
Make?
Through an amendment to 8 CFR
235.1(d), the Department may require
aliens who are arriving at United States
air and sea ports of entry to provide
fingerprints, photographs, or other
biometric identifiers to the inspecting
officer. The Department will collect
fingerprints and photographs from
aliens applying for admission pursuant
to a nonimmigrant visa upon their
arrival at air and sea ports of entry and
upon departure if they exit through
certain locations. Departure inspection
will be conducted through pilot
programs at a limited number of
departure ports, identified by notice in
the Federal Register. The rule exempts:
(i) Aliens admitted on A–1, A–2, C–3
(except for attendants, servants or
personal employees of accredited
officials), G–1, G–2, G–3, G–4, NATO–
1, NATO–2, NATO–3, NATO–4, NATO–
5 or NATO–6 visas, unless the Secretary
of State and the Secretary of Homeland
Security jointly determine that a class of
such aliens should be subject to the
rule, (ii) children under the age of 14,
(iii) persons over the age of 79, (iv)
classes of aliens the Secretary of
Homeland Security and the Secretary of

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State jointly determine shall be exempt,
and (v) an individual alien the Secretary
of Homeland Security, the Secretary of
State, or the Director of Central
Intelligence determines shall be exempt.
Although the biometric requirements in
this rule will initially only apply to
nonimmigrant visa-holders who travel
through designated air and sea ports, the
Department anticipates expanding the
program, through separate rulemaking
to include other groups of aliens and
more ports in order to eventually have
the capability to verify the identities of
most foreign national travelers through
biometric comparisons as envisioned by
the USA PATRIOT Act and the Border
Security Act.
At amended 8 CFR 235.1(d)(ii), the
rule states that failure by an alien to
provide the requested biometrics
necessary to verify his or her identity
and to authenticate travel documents
may result in a determination that the
alien is inadmissible under section
212(a)(7) of the INA for lack of proper
documents, or other relevant grounds in
section 212 of the Act.
New rule 8 CFR 215.8 states that the
Secretary of Homeland Security may
establish pilot programs at up to fifteen
air or sea ports of entry, designated
through notice in the Federal Register,
through which the Secretary may
require aliens who are departing from
the United States from those ports to
provide fingerprints, photographs, or
other biometric identifiers,
documentation, and such other such
evidence as may be requested to
determine an alien’s identity and
whether he or she has properly
maintained his or her status while in the
United States.
This rule also amends 8 CFR 214.1(a)
to state that if a nonimmigrant alien is
required under section 235.1(d) to
provide biometric identifiers, the alien’s
admission is conditioned on compliance
with any such requirements. Similarly,
if the alien is required to provide
biometrics and other information upon
departure pursuant to 8 CFR 215.8, the
nonimmigrant alien’s failure to comply
may constitute a failure of the alien to
maintain the terms of his or her
immigration status.
Finally, the rule makes clear by
amending 8 CFR 235.1(f) that all
nonimmigrant aliens will be issued the
Form I–94, Arrival Departure Record
regardless of whether they come
through an air, sea or land port of entry,
unless they are otherwise exempted
from the I–94 requirement. This
amendment clarifies that air and sea
carrier passengers will continue to be
issued I–94s which must be surrendered

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upon departure unless the I–94 was
issued for multiple entries by the alien.
What Is a ‘‘Biometric Identifier?’’
As used in this rule, a ‘‘biometric
identifier’’ is a physical characteristic or
other attribute unique to an individual
that can be collected, stored, and used
to verify the claimed identity of a
person who presents himself or herself
to a border inspector. To verify identity,
a similar physical characteristic or
attribute is taken from the person who
presents himself or herself and it is
compared against the previously
collected identifier. Examples of
biometric identifiers include, but are not
limited to, the face (i.e., captured in a
photograph), fingerprints, hand
geometry measurements, handwriting
samples, iris scans, retina scans, voice
patterns, and other unique
characteristics.
Why Is This Interim Final Rule
Necessary and Why Was It Not Issued
as a Proposed Rule for Notice and
Comment?
The Department has determined that
the national security and public safety
interests of the nation necessitate the
implementation of this rule as an
immediately effective interim rule with
provision for public comment after the
effective date. The collection of
biometrics from foreign nationals
seeking to enter or depart the United
States will greatly enhance the
Government’s ability to identify persons
who are a threat to the public and to
national security. The longer the
Department delays in collecting
biometrics from visa-holders and
eventually other foreign nationals, the
greater chance that a person who has
been previously identified as a threat to
the public may not be timely identified
through his fingerprints, photographs or
other biometrics and may enter the
United States without his true identity
being detected.
The Department has further
determined that this rule is necessary to
give effect to the legislative mandates
for utilization of biometric identifiers in
the entry exit system component of the
US–VISIT program as described in the
USA PATRIOT Act and the Border
Security Act, as previously discussed.
Unless it collects biometric identifiers
from the aliens who present themselves
at inspection and on departure, the
Department would be unable to
compare the biometrics associated with
the travel document presented (e.g., a
visa) against the bearer’s characteristics
or against DHS or DOS records of any
previously taken biometrics associated
with the alien’s name. In other words,

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the Department would not be able to
verify the alien’s identity fully or
authenticate his documents as
envisioned by Congress when it passed
the two laws.
Congress has stated that ‘‘no later than
October 26, 2004,’’ biometrics must be
utilized with all travel and entry
documents that DHS and DOS issue to
aliens and that machines capable of
verifying the identities of foreign
travelers and authenticating their
documents through biometrics must be
at all ports of entry. 8 U.S.C. 1732(b).
The Secretary of Homeland Security has
determined that waiting until the last
minute (i.e., October 26, 2004) to begin
collecting biometrics and verifying the
documents and identities of aliens who
cross our borders would be highly
detrimental to the security of the
country. Moreover, the Department
believes that it makes practical sense to
implement the integrated entry exit
system with air and sea arrival/
departure data on foreign travelers at the
same time as a biometric component is
introduced to the system to provide the
enhanced security benefits that
biometrics will provide to verify
identity. For these reasons, the
Department has determined that it must
immediately begin collecting biometrics
from a limited group of aliens, i.e.,
nonimmigrant visa holders who enter
through the air and sea ports, and
expand to other categories and locations
as rapidly as possible.
The Department does encourage and
welcome public comments on this rule
and the manner in which it will be
implemented. The Department will fully
consider all comments submitted by the
comment period as it prepares a final
rule and before it expands the program
to other categories of foreign nationals.
See discussion of the ‘‘Good Cause
Exceptions’’ below.
What Categories of Aliens Are Affected
by This Rule?
This interim rule applies only to
aliens applying for admission pursuant
to a nonimmigrant visa who arrive in or
depart from the United States through
designated air and sea ports. The rule
exempts: (i) Aliens admitted on A–1, A–
2, C–3 (except for attendants, servants or
personal employees of accredited
officials), G–1, G–2, G–3, G–4, NATO–
1, NATO–2, NATO–3, NATO–4, NATO–
5 or NATO–6 visas, unless the Secretary
of State and the Secretary of Homeland
Security jointly determine that a class of
such aliens should be subject to the
rule, (ii) children under the age of 14,
(iii) persons over the age of 79, (iv)
classes of aliens the Secretary of
Homeland Security and the Secretary of

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State jointly determine shall be exempt,
and (v) an individual alien the Secretary
of Homeland Security, the Secretary of
State, or the Director of Central
Intelligence determines shall be exempt.
However, as a routine matter, only
nonimmigrant visa-holders will be
affected by this rule.
What Biometrics Will Be Collected and
Will They Ever Change?
The Department initially plans to take
a digital photograph and two
fingerprints from each nonimmigrant
alien who presents a visa at designated
air or sea ports of entry. The
Department, however, reserves its right
to expand the types of biometric
identifiers required in the future where
doing so will improve the border
management, national security, and
public safety purposes of the entry exit
system. Additional biometric
requirements will be implemented in
compliance with section 403(c) of the
USA PATRIOT Act.
How Did DHS Determine Which
Biometric Identifiers Would Be
Collected for US–VISIT Purposes?
The Department has chosen to collect
two fingerprints and photographs, in
part, because they currently are less
intrusive than other forms of biometric
collections and because the combination
of these biometric identifiers are an
effective means for verifying a person’s
identity. Also, historically fingerprints
and photographs have been the
biometrics of choice within the law
enforcement communities and the travel
industry. As the deployment of more
comprehensive technologies becomes
feasible, however, the Department may
collect additional biometric data to
improve its ability to verify the identity
and determine the admissibility of
nonimmigrant aliens.
As required by section 403(c) of the
USA PATRIOT Act and section 302(a)(1)
of the Border Security Act, the
Department of Justice and the former
Immigration and Naturalization Service
(INS) worked closely with NIST, DOS,
other agencies and Congress to study
and select fingerprints and digital
photographs as the biometric identifiers
that will be used in conjunction with
the entry exit system. A report on the
biometric standards selected was
delivered to Congress in January 2003.
See ‘‘Use of Technology Standards and
Interoperable Databases with MachineReadable, Tamper-Resistant Travel
Documents,’’ Report to Congress from
U.S. Department of Justice, U.S.
Department of State, and the National
Institute of Standards and Technology
(January 2003).

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How Will a Person’s Fingerprints and
Photographs Be Collected?
On arrival at air and sea ports of
entry, inspectors will scan two
fingerprints of the foreign national with
an inkless device and will take a digital
photograph of the person. This
information, as well as other
information that the person provides,
will then be used to assist the border
inspector in determining whether or not
to admit the traveler. Upon exit from the
United States at designated air and sea
ports, the foreign national traveler will
go to a work station or kiosk to scan his
travel documents, have his photograph
compared, and to provide his
fingerprints on the same type of inkless
device that is used at entry.
What If an Individual Cannot Provide
Clear Fingerprints or Photographs or Is
Disabled in Such a Way That He or She
Is Unable To Provide the Biometric
Information?
The Department will make reasonable
efforts that are also consistent with the
Government’s need to verify an alien’s
identity to accommodate any person
with disabilities which prevent him or
her from complying with the
requirements of this rule for
fingerprinting, photographs or other
biometric collections. We will follow all
required procedures that are applicable
to government action under the
Americans With Disabilities Act,
codified as amended at 42 U.S.C. 12101
et seq. and the Federal Rehabilitation
Act, codified as amended at 29 U.S.C.
701 et seq. In cases where a satisfactory
fingerprint, for example, cannot be
taken, the inspecting officer may accept
another biometric identifier that will
reasonably identify the person or
sufficient additional information from
the alien from which the officer can
determine the individual’s identity. In
some instances where the identity of a
person with disabilities does not appear
to be truly at issue, the requirement for
fingerprints or other biometric identifier
may be waived in the discretion of the
inspecting officer. The Department will
ensure that procedures for handling the
collection of biometric information from
persons with disabilities are covered in
any internal field guidance it may issue
to implement this rule. In addition, the
Department welcomes public comment
on methods for properly handling
situations where persons with
disabilities are not able to provide the
requested biometrics, but that still
permit the Department to make the
necessary identity and admissibility
determinations.

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How Will the Biometric Information Be
Used?
The fingerprints and photograph(s) of
the alien will be entered initially into an
existing system called IDENT The
alien’s fingerprints and photographs
will be compared against the biometric
information already stored in IDENT to
determine whether there is any
information that would indicate the
alien is an imposter or otherwise
inadmissible. In addition, IDENT and
the other technology associated with
US–VISIT will permit the inspecting
officer to compare the alien’s
fingerprints and photographs with any
such biometric information previously
captured.
DOS is currently implementing a
program on a phased-in basis for taking
fingerprints of many categories of visa
applicants who have been approved or
denied and storing those fingerprints
and photographs in IDENT. This DOScollected biometric information may
also be accessed through the Interagency
Border Inspection System (IBIS) by
inspectors at the ports of entry in the
United States. The inspecting officer
will be able to compare the biometrics
associated with the person who applied
for the visa at the consular office abroad
against the biometrics of the person who
is present at the port of entry. Once the
machine readers are in place at the ports
of entry, this process will be fully
automated and the visas and certain
other travel documents will be capable
of being scanned and compared
electronically. An alien’s name,
biometric information and other
identifying information will also be
checked against various law
enforcement and intelligence data for
information that may identify him or
her as inadmissible to the United States
or as a threat to national security or the
public safety. In the air and sea context,
much of the information on the alien is
already collected via the electronic
passenger manifest process required by
section 402 of the Border Security Act,
codified as amended at INA, section
231; 8 U.S.C. 1221. Customs and Border
Protection (CBP) officers currently have
access to the passenger’s complete
name, nationality, date of birth,
citizenship, gender, passport number
and country of issuance, U.S. visa
number, if applicable, alien registration
number, if applicable, country of
residence, and complete address while
in the United States. U.S. inspectors
receive the information prior to the
alien’s arrival through the Advance
Passenger Information System (APIS)
and the Arrival Departure Information
System (ADIS), and it is run against the

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IBIS which contains ‘‘lookouts’’ on
individuals submitted by more than 20
law enforcement and intelligence
agencies. Thus, by the time the person
gets to an air or sea port of entry,
inspectors have identified aliens that
need to be scrutinized more closely as
well as aliens who may be inadmissible
and whether other law enforcement
agencies should be notified of any
individual’s presence.
Are Travelers Who Come Under the
Visa Waiver Program (VWP) Affected
by This Rule?
At this time, travelers who seek to
enter under the VWP are not affected by
this rule. However, under current law,
an alien will not be admitted under the
VWP on or after October 26, 2004,
without a machine-readable, tamperresistant passport that meets ICAO
biometric standards for photographs,
unless his passport is unexpired and
was issued prior to that date. 8 U.S.C.
1732(c)(2). The machines that DHS must
have in place at all ports of entry by that
same date will also be capable of
reading the ICAO-compliant biometrics
in any VWP alien’s passport. 8 U.S.C.
1732(b)(2).
Will Canadian or Mexican Citizens
Have To Provide Biometric Identifiers
When They Travel To or From the
United States?
This rule does not affect foreign
nationals entering the U.S. through land
ports of entry. Aliens entering through
land ports of entry need only meet the
current requirements in the law.
However, the rule does apply to
Canadian and Mexican citizens who
enter through air and sea ports of entry
as outlined below. At present, the
Department will not apply the biometric
collection requirements of this rule to
those Canadian citizens who travel on
temporary visits to the United States
and who do not apply for admission
pursuant to a nonimmigrant visa. As
usual, Canadians who are lawful
permanent residents of the United
States must possess a Permanent
Resident Card (PRC) or other evidence
of their permanent resident status; they
will not, however, be routinely
fingerprinted or photographed. The
Department, as it always has, reserves
the right to require fingerprints or other
identifying information from any
individual whom it has reason to
believe may not be who he or she
claims.
Mexicans currently must present
visas, Border Crossing Cards (BCC), or
other appropriate evidence of their
immigration status to enter the United
States. Since October 1, 2002, the law

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has required that a biometric
characteristic (e.g., face, fingerprint) of a
bearer of a BCC must be matched against
the biometric on the BCC before the
bearer may be admitted. See 8 CFR
212.1(c)(3). This requirement remains
applicable at all ports of entry.
Machines have been deployed at the
ports of entry to allow for the automated
comparison of the fingerprints of BCC
bearers against their documents. Under
this rule and the Department’s first
implementation phase for US–VISIT
biometrics collection, nonimmigrant
Mexican visa holders will be required to
provide fingerprints and photographs if
they enter or exit at the designated
ports.
Which United States Ports of Entry Will
Be Involved in the Collection of
Biometrics and in Verifying the
Identities of Aliens and Authenticating
Their Documents?
The notice that is published
elsewhere in this issue of the Federal
Register identifies the airports and the
seaports where nonimmigrants who
apply for admission pursuant to a
nonimmigrant visa will be required to
provide biometric information at time of
arrival and departure. The names of all
the affected ports of entry will not be
repeated here for the sake of brevity.
The Department intends to implement
departure inspection through pilot
programs at a limited number of
departure ports. The Department has
identified thirty departure ports as
candidates at which it will next
implement biometric collection. The
Department anticipates that, within the
next few months, it will implement
departure biometric collection at
approximately fifteen of those ports of
entry. This rule therefore authorizes the
Secretary to establish pilot programs for
departure inspection at up to fifteen air
and sea ports, to be identified through
notice in the Federal Register.
Through those pilot programs, the
Department will test different methods
to collect the required information from
nonimmigrant aliens as they depart the
United States through the designated
ports of entry. The Department is
currently exploring several different
methods and processes, including but
not limited to self-serve kiosks and
hand-held scanners. The pilot program
will enable the Department to conduct
a cost benefit analysis of the different
processes. The Department welcomes
comments on how to implement
biometric collection at time of
departure. After reviewing the
reliability, efficiency, and cost of those
pilot programs, and receiving comments
from the public regarding the departure

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inspection process, the Department will
undertake new rulemaking to allow the
Secretary to expand biometric collection
to all departure ports.
Will Foreign Travelers’ Biometrics Be
Collected, Their Identities Verified, and
Their Documents Authenticated on
Departure From the United States?
Yes. Aliens subject to this rule who
exit through designated air and sea ports
where pilot programs are implemented
will be required to ‘‘check out’’ at work
stations in those air and sea ports and
to provide requested information and
biometrics. The information that a
traveler provides on departure will be
verified and matched against any
available information that he or she
provided upon inspection and that was
stored in the systems that comprise US–
VISIT. This information will also be
used to identify persons who have
overstayed their authorized periods of
admission, to compile the overstay
reports required by DMIA, and where
applicable, considered in DOS and DHS
determinations on whether the person is
eligible for future visas, admission or
other discretionary immigration
benefits.
Will There Be Any Assistance for
Travelers During the Exit Process?
The exit collection mechanism at
special work stations or kiosks will be
structured to include international
instructional icons, illustrating how the
alien will submit biometrics and travel
documents for scanning. DHS or
contract personnel will be available, at
initial stages, to assist travelers covered
by the first increment of US–VISIT in
learning how the exit process works.
Is a Nonimmigrant Visa Holder
Required To Enter or Exit Through One
of the Ports Designated for Biometric
Processing in the Federal Register
Notice?
Certain individuals remain subject to
the National Security Entry Exit
Registration System (NSEERS)
regulations to depart through specific
ports and undergo special departure
procedures. See 8 CFR 264.1(f)(8). The
most recent Federal Register notice
listing the NSEERS ports of departure
can be found at 68 FR 8967. This rule
does not alter or amend that list.
Nonimmigrant visa holders, except
those subject to NSEERS, may continue
to depart the United States through any
port, even those locations where
biometrics are not currently being
collected on exit. The Department
recommends that any alien whom the
Secretary designates to be covered by
this rule’s departure requirements and

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who chooses to depart from a location
where US–VISIT departure procedures
are not in place may wish to preserve
any evidence that he or she did indeed
depart the United States. Such evidence
could include a passport stamp of
admission to another country or a used
airline ticket showing the person left the
United States in a timely manner. Such
information may be useful to show to a
consular or immigration officer in case
there is ever any future question about
whether the alien properly left the
United States. Individuals who have an
I–94 Arrival Departure Record that must
be surrendered upon departure should
be certain to return this form promptly
to the appropriate DHS division as
required on the form to ensure that the
individual’s departure will be entered
into appropriate DHS systems. In
addition, the departure of individuals
who leave on air or sea carriers that
submit electronic passenger departure
manifests to DHS/CBP will be recorded
in DHS systems and should help to
prove when the alien departed.
However, not all carriers are currently
able to submit this information
electronically. The Department
recognizes that there may be some
interim confusion about whether
covered foreign nationals overstayed
their last periods of admission where
there is no evidence in the US–VISIT
systems of their departure. The
Department anticipates that as departure
procedures are expanded to all air, sea
and land border ports, such confusion
and potential for inaccurate
determinations that a person overstayed
will be significantly reduced.
Are There Any Additional Fees
Imposed Upon Travelers as a Result of
This Rule?
No, there are no additional fees for
travelers required by this interim rule.
DOS and DHS may need to adjust the
fees for visas and other immigration
documents that utilize biometrics in the
future, but the Departments will follow
all required Administrative Procedure
Act (APA) procedures for notice and
comment and any other applicable legal
requirements if the fees change.
How Much Will the Biometric
Collection Procedures Cost DHS and
What Is the Source of the Funding?
In FY 2003, the US–VISIT program
spent $190 million for the biometrics
portion of the program. For FY 2004, the
cost of implementing the biometric
collection and verification procedures at
air and sea ports of entry and departure
locations is anticipated to be
approximately $103 million. The funds
for the equipment and other

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requirements to support the biometric
procedures come from the
approximately $380 million that
Congress appropriated in FY 2003 for
development of the entry exit system
component of US–VISIT and from the
$330 million total appropriated for FY
2004.
What May Happen If an Alien Refuses
To Provide the Required Biometric
Identifiers at Time of Entry?
This rule provides that an alien who
refuses to provide biometric identifiers
when seeking admission to the United
States in order to assist inspectors in
verifying his or her identity and
authenticating his or her travel
documents may be deemed inadmissible
under INA, section 212(a)(7) (failure to
provide appropriate documents), or
other applicable grounds of
inadmissibility in INA, section 212. For
example, the inspector may deny
admission under INA, section 212(a)(7)
if he or she is unable to determine
whether the applicant is presenting a
document that is truly his and the
inspector is unable to collect a biometric
that can be verified against the
fingerprints and photographs associated
with the document. The rule does not
attempt to identify every ground of
inadmissibility that may apply because
each case may present different
circumstances that skilled inspectors are
trained to assess and adjudicate. The
rule does not change any of the existing
criteria for inadmissibility, but allows
inspectors to consider a failure to
provide requested biometric identifiers
as a factor in their admissibility
determinations. In some circumstances,
such as an individual who cannot
physically provide clear fingerprints, a
failure to do so will not necessarily
result in an inadmissibility
determination, provided that the
inspector is otherwise satisfied that the
person is who he claims to be and has
appropriate authorization to enter the
country. This rule also amends 8 CFR
214.1(a) to state that if a nonimmigrant
alien is required under 8 CFR 235.1(d)
to provide biometric identifiers, the
alien’s admission is conditioned on
compliance with any such
requirements.
What May Happen If an Alien Fails To
Provide the Required Biometric
Identifiers at the Time of Departure
From the United States?
An alien who fails to comply with the
departure requirements may be found in
violation of the terms of his or her
admission, parole, or other immigration
status. This rule states that an alien who
is covered by the requirements to

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provide biometrics on departure at new
8 CFR 215.8 may be found to have
overstayed the period of his or her last
admission if the available evidence
indicates that he or she did not leave the
United States when required to do so. A
determination that the alien previously
overstayed may result in a finding of
inadmissibility for accruing prior
unlawful presence in the United States
under section 212(a)(9) of the INA,
provided that the accrued unlawful time
and other prerequisites of that statute
are met, or that the alien is otherwise
ineligible for a visa or other
authorization to reenter the United
States. An overstay finding could also
trigger consequences for a
nonimmigrant visa holder under section
222(g) of the INA. If the person is
deemed to have overstayed his
authorized period of admission, his visa
(including a multiple entry visa) would
be deemed void under section 222(g).
Section 222(g) further states that where
a visa is void because the alien
overstayed, he or she is ineligible to be
readmitted to the United States as a
nonimmigrant except on another visa
issued in the consular office located in
the country of the alien’s nationality, or
where there is no DOS office in the
country, in such other consular office as
the Secretary of State shall specify. The
requirement of obtaining a new visa
from the consular office in the country
of the alien’s nationality may be waived
where extraordinary circumstances are
found. 8 U.S.C. 1202(g).
The Department intends to focus its
enforcement of departure requirements
in this rule on cases where the alien
willfully and unreasonably fails to
comply with this regulation. The rule
provides that an alien’s failure to follow
the departure procedures may be
considered by an immigration or
consular officer in making a
discretionary decision on whether to
approve or deny the alien’s application
for a future immigration benefit. The
rule does not, however, state that an
alien’s failure to comply with departure
procedures in every instance will
necessarily result in a denial of a future
visa, admission or other immigration
benefit. For example, no alien will be
penalized for failing to provide
biometrics on departure where the
Department has not yet implemented
the departure facilities or procedures at
the specific port where the person
chooses to depart. There may well be
instances where a consular officer or
inspector, in his or her discretion and
after reviewing the totality of the
circumstances, determines that an
alien’s previous failure to comply with

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the departure procedures does not result
in a finding of inadmissibility or the
denial of an immigration benefit.
Will Biometric Collection Create
Inspection Delays at Ports of Entry and
Departure?
The Department is aware of this
concern and is taking all possible steps
to prevent congestion and delays in
immigration and customs processing at
the ports of entry and the departure
locations. On entry, the Department
anticipates that an average of only 15
additional seconds per nonimmigrant
visa holder will be needed to complete
processing as a result of the added
biometric procedures. The Department
arrived at this estimate after piloting the
process on a voluntary compliance basis
at Atlanta’s Hartsfield International
Airport. Individuals who are not
required to provide biometrics at this
time (e.g., U.S. citizens, permanent
residents, persons not required to have
visas) may be routed through separate
processing lines at the air and seaports
so as to further alleviate congestion.
Individuals who require more in depth
scrutiny will, as usual, be taken to
secondary inspection areas so as not to
delay primary inspection processing for
other travelers. The Department does
not believe that significant delays will
occur at the air and sea ports as a result
of the new biometric collection and
verification procedures. The Department
further believes that the limited
departure processing at the air and sea
ports can be accommodated within the
pre-boarding time period that carriers
currently recommend travelers allow
before their scheduled departure and
that their travel should not be delayed.
While the Department does not
anticipate longer wait times at ports of
entry due to US–VISIT processing, a
number of mitigation strategies have
been developed, not unlike those
already available to CBP under other
conditions which result in backups.
However, as the US–VISIT program
expands, the Department will
continually reassess the issue of delays
to reduce any negative effects.
Will Legitimate Travel, Commerce, and
Tourism Be Negatively Affected by This
Rule?
As noted above, the Department does
not believe that immigration and
customs processing will be significantly
delayed at the ports of entry or the
departure locations. The Department
believes that over time, the US–VISIT
system will facilitate travel for those
with biometrically-enhanced travel
documents and others for whom the
system contains travel records. Public

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comments are invited on ways that
delays and negative effects on travel,
trade, commerce, tourism and other
desired aspects of immigration can be
alleviated or minimized.
Are United States Citizens and Lawful
Permanent Residents Required To
Provide Biometric Identifiers?
No, United States citizens and lawful
permanent residents will not be
required to provide biometric identifiers
under this rule. U.S. citizens must
continue to present passports as
required by 22 CFR 53, unless an
exception under that regulation applies.
Lawful permanent residents must
present documents evidencing their
status as described in 8 CFR 211.
Will Other Countries Impose Similar
Biometric Requirements on United
States Citizens?
Each country maintains the right to
establish its own procedures and
requirements for entry by foreign
visitors. The Department, in
coordination with DOS, will work with
other governments that wish to institute
programs of biometric identification in
order to ensure that they are fair,
efficient, accurate and no more intrusive
than necessary.
Will Any Visa-Holders Be Exempt From
the Fingerprinting and Photographing
Requirements of This Rule?
The rule exempts: (i) Aliens admitted
on A–1, A–2, C–3 (except for attendants,
servants or personal employees of
accredited officials), G–1, G–2, G–3, G–
4, NATO–1, NATO–2, NATO–3, NATO–
4, NATO–5 or NATO–6 visas, unless the
Secretary of State and the Secretary of
Homeland Security jointly determine
that a class of such aliens should be
subject to the rule, (ii) children under
the age of 14, (iii) persons over the age
of 79, (iv) classes of aliens the Secretary
of Homeland Security and the Secretary
of State jointly determine shall be
exempt, and (v) an individual alien the
Secretary of Homeland Security, the
Secretary of State, or the Director of
Central Intelligence determines shall be
exempt. An immigration inspector
retains discretion to collect an alien’s
biometrics if, in the inspector’s
discretion, such action is necessary to
determine the exact age of the alien and
whether he or she is exempt from the
requirements of this rule.

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Will Other Nonimmigrants for Whom
Ten-Print Fingerprinting for
Registration Purposes Has Been Waived
by Existing Regulations be Required to
Provide Two-Print Fingerprints and a
Photograph Under This Rule Governing
Identity Verification on Arrival and
Departure From the United States?
The Department has determined that
most nonimmigrant visa-holders for
whom ten-print fingerprinting has been
waived for registration purposes under
8 CFR 264.1(e)(1–2) must nevertheless
comply with the requirements of this
interim rule for the collection of
biometrics (two fingerprints and a
photograph) for purposes of entry and
exit inspection. This includes
nonimmigrants who are in the United
States for less than one year, as well as
nonimmigrants who are citizens of
countries that do not fingerprint U.S.
citizens who temporarily reside in their
countries.
The ten-print fingerprinting that has
been waived for these categories of
nonimmigrants under 8 CFR 264.1(e)
(1–2) is done for purposes of alien
registration under INA, sections 262–
266 and is not the same as the collection
of two fingerprints and a photograph for
identity verification and document
authentication at arrival and departure
inspection that is required under this
interim rule. The biometric collections
for arrival and departure inspection
purposes are authorized instead by INA,
section 235, 214, 215, and are further
supported by the mandates for
biometrics in section 303 of the Border
Security Act and sections 403(c) and
414 of the USA PATRIOT Act.
DHS believes that the national
security of the country, public safety
and the integrity of the immigration
system necessitate requiring most
nonimmigrant visa holders to provide
fingerprints and photographs for
identity checks, law enforcement
background checks, and determinations
of admissibility.
Do the Requirements for the Collection
of Biometric Identifiers Violate the
Statutory ‘‘No New Documents or Data
Collection’’ Prohibition in the DMIA?
No, the Department has determined
that there is no conflict between this
rule and DMIA. DMIA does state that
‘‘[n]othing in this section [codified at 8
U.S.C. 1365a] may be construed ‘‘to
permit the [Secretary of Homeland
Security] or the Secretary of State to
impose any new documentary or data
collection requirements on any person
in order to satisfy the requirements of
this section * * *.’’ 8 U.S.C.
1365a(c)(1). However, the provision in

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DMIA that immediately follows that
subsection states that ‘‘[n]othing in this
section shall be construed to reduce or
curtail any authority of the [Secretary of
Homeland Security] or the Secretary of
State under any other provision of law.’’
8 U.S.C. 1365a(c)(2)(emphasis added).
The biometric requirements of this
interim rule are supported by statutory
authority outside of the four corners of
DMIA and thus fall within DMIA’s own
‘‘no reduction of authority’’ provision.
Most importantly, Congress has
expressly stated in sections 403(c) and
414 of the USA PATRIOT Act and
sections 302–303 of the Border Security
Act, laws passed after DMIA and after
the terrorist attacks on September 11,
2001, that DHS and DOS should
‘‘particularly focus on the utilization of
biometric technology’’ in developing the
entry exit system; that alien identities be
verified through biometric comparisons
based on certified biometric standards
developed through NIST; that travel and
entry documents issued to aliens utilize
biometrics; and that those documents be
authenticated by machine-readers at
ports of entry that will capture
information on the aliens’ arrival and
departure for inclusion in the entry exit
system. In addition, this rule is
supported by other authority in sections
214, 215 and 235 of the INA, which has
not been curtailed or reduced by DMIA.
For these reasons, this rule does not
violate the proscription against new
documentary or data collections in
DMIA.
What Persons or Entities Will Have
Access to the Biometric and Other
Information Collected on Aliens Under
the US–VISIT Program?
The biometric and other information
available in IDENT, APIS, ADIT and the
other systems associated with the US–
VISIT program will be available to CBP
officers at ports of entry, special agents
in the Bureau of Immigration and
Customs Enforcement (ICE),
adjudications staff at U.S. Citizenship
and Immigration Services (USCIS), to
DOS consular officers and other staff
involved with the adjudication of visa
applications at overseas posts, and to
other DHS, BTS, ICE, CIS, CBP,
appropriate officers of the United States
Intelligence Community, and DOS
personnel and attorneys when needed
for the performance of their duties.
Other employees and divisions of DHS,
such as the Transportation Security
Administration (TSA), may also have
access to the biometric and other
information on aliens. In addition,
section 414(c) of the USA PATRIOT Act
directs that the information in the entry
exit system component of the US–VISIT

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program must be available to other
federal law enforcement officers, such
as agents of the Federal Bureau of
Investigation (FBI), through system
interfaces or other technology means for
purposes of identifying and detaining
individuals who are threats to United
States national security. The Secretary
of Homeland Security, in his discretion,
may also make the information available
to State and local law enforcement
agencies, to assist them in carrying out
their law enforcement responsibilities.
See 8 U.S.C. 1365a(f); see also 8 U.S.C.
1722(a)(5). The Department will only
share biometric information with other
foreign governments where permitted by
law and necessary for intelligence and
law enforcement interests consistent
with United States interests.
How Will DHS Protect the Biometric
and Other Information Provided by
Foreign Travelers and Ensure That
Their Privacy Interests Are Not
Violated?
US–VISIT records will be protected
consistent with all applicable privacy
laws and regulations. Personal
information will be kept secure and
confidential and will not be discussed
with, nor disclosed to, any person
within or outside the US–VISIT program
other than as authorized by law and as
required for the performance of official
duties. In addition, careful safeguards,
including appropriate security controls,
will ensure that the data is not used or
accessed improperly. The DHS Chief
Privacy Officer will review pertinent
aspects of the program to ensure that
these proper safeguards and security
controls are in place. The information
will also be protected in accordance
with the Department’s published
privacy policy for US–VISIT.
The Department’s Privacy Office will
exercise oversight of the US–VISIT
program to ensure that the information
collected and stored in IDENT and other
systems associated with US–VISIT is
being properly protected under the
privacy laws and guidance. US–VISIT
will also have its own Privacy Officer to
handle specific inquiries and to provide
additional oversight of the program.
Finally, the Department will maintain
secure computer systems that will
ensure that the confidentiality of
individuals’ personal information is
maintained. In doing so, the Department
and its information technology
personnel will comply with all laws and
regulations governing government
systems, such as the Federal
Information Security Management Act
of 2002, Title X, Public Law 107–296,
116 Stat. 2259–2273 (2002) (codified in
scattered sections of 6, 10, 15, 40, and

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44 U.S.C.); Information Management
Technology Reform Act (Clinger-Cohen
Act), Public Law 104–106, Div. E,
codified at 40 U.S.C. 11101 et seq.;
Computer Security Act of 1987, Public
Law 100–235, 40 U.S.C. 1441 et seq. (as
amended); Government Paperwork
Elimination Act, Title XVII, Public Law
105–277, 112 Stat. 2681–749—2681–751
(1998) (codified, as amended, at 44
U.S.C. 101; 3504 note); and Electronic
Freedom of Information Act of 1996,
Public Law 104–231, 110 Stat. 3048
(1996) (codified, as amended, at 5 U.S.C.
552.)
How Is the US–VISIT Program Different
From the National Security Entry Exit
Registration System (NSEERS) Program
and Are Any Aspects of NSEERS
Continued Under US–VISIT?
Foreign nationals who are subject to
the US–VISIT biometric collection
requirements of this rule are only
required to follow the specified
procedures on entry and exit where the
Department has implemented the
procedures and publicly announced
them, as it has with respect to
nonimmigrant visa-holders who travel
through designated air and sea ports.
Certain aliens whose presence in the
United States warrants monitoring for
national security or law enforcement
reasons remain subject to the NSEERS
special registration procedures at 8 CFR
264.1(f) and its implementing notices.
See 68 FR 67578. The special entry and
exit registration procedures under
NSEERS will meet the requirements of
this US–VISIT rule for entry and exit
inspection for persons who are also
subject to NSEERS.
Under the original NSEERS program,
special registrants had to comply with
both arrival and departure requirements
for biometrics collection and additional
questioning, and also with a
requirement to re-register after 30 days
and on an annual basis. The mandatory
30-day and annual re-registrations were
suspended on December 2, 2003. See 68
FR 67578. In addition, when the
NSEERS program began, it included a
requirement that foreign nationals from
NSEERS-delineated countries already in
the United States comply with a
domestic or ‘‘call-up’’ registration. The
‘‘call-up’’ component has expired.
Neither the re-registration or ‘‘call-up’’
registration is relevant to the US–VISIT
program at this time.
However, nonimmigrants subject to
NSEERS and to this US–VISIT rule who
do not comply with the procedures for
fingerprinting and photographing run
similar risks that they could be deemed
ineligible for future visas, admission or
other discretionary immigration

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benefits. Compliance with this rule, as
with the NSEERS regulations, is deemed
a condition of a nonimmigrant’s
admission and maintenance of status for
purposes of INA, section 214. The
information that NSEERS aliens provide
on arrival and departure is kept in
IDENT and a special NSEERS system
that will be integrated with all of the
other foreign national arrival and
departure data that are required to be
kept in the entry exit system component
of US–VISIT.
Will the Public Be Permitted To
Comment on This Rule and Its
Implementation?
Yes. The Department welcomes and
encourages the public to comment on all
aspects of this rule and its
implementation, as well as other aspects
of the US–VISIT program that may not
be covered by the rule itself. We will
consider all comments carefully and
anticipate that many of them will help
us to improve the program. The
Department is particularly interested in
comments on the clarity of this rule and
how it may be made easier to
understand; methods for meeting the
US–VISIT program goals; means to
communicate the procedures to the
public, including any expansions in the
application of this rule; ways to reduce
any potentially negative effects of the
rule on legitimate travel, trade and
tourism; uses for the biometric
information to be collected; privacy
protections for the information; methods
for ensuring accuracy of the information
collected; procedures for situations
where persons with disabilities cannot
provide the requested biometric
identifiers; and ways to enhance
national security and public safety
interests.
Members of the public may also wish
to follow the activities and
recommendations of the
congressionally-mandated DMIA Task
Force through its Web site at http://
uscis.gov/graphics/shared/lawenfor/
bmgmt/inspect/dmia.htm. The DMIA
Task Force, which is comprised of 17
public and private representatives from
government, industry, tourism, air and
sea carriers, and other areas, makes
regular reports on its recommendations
for the entry exit system component of
US–VISIT, and these reports are
transmitted to Congress by the Secretary
of Homeland Security in accordance
with 8 U.S.C. 1365a(g). The DMIA Task
Force also welcomes regular public
comments. In addition, members of the
public may keep up to date on the
progress of the US–VISIT program
through the DHS Web site at
www.dhs.gov/us-visit.

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Good Cause Exceptions for
Implementation of Interim Final Rule
Implementation of this rule as an
interim final rule with a request for
post-effective date public comments is
based upon the ‘‘good cause’’ exceptions
found at 5 U.S.C. 553(b)(3)(B) and (d)(3).
Pursuant to the provisions of 5 U.S.C.
553(b)(3)(B), the Department has
determined that delaying
implementation of this rule to await
public notice and comment is
unnecessary, as well as contrary to the
public interest and the national security
of the nation. It is in the public interest
and furthers our national security to
implement requirements immediately
that will allow for the collection and
comparison of biometrics of aliens
seeking admission in to the United
States. These requirements will greatly
enhance the ability of the Department to
confirm the identities of nonimmigrant
aliens seeking admission into the
United States, and will allow for
improved biometrics-based searches of
watch lists, including law enforcement
and intelligence data bases containing
information on known and suspected
terrorists. Such tools will increase the
border security of the United States by
helping DHS officers to identify persons
who pose a threat to the nation. Before
further expansion of the rule’s
implementation to more categories of
aliens, the Department anticipates that it
will have sufficient opportunity to
consider the public comments generated
by this interim rule, as well as to
publish a final rule. For the same
reasons, pursuant to the provisions of 5
U.S.C. 553(d)(3), the Department finds
that there is good cause for making the
rule immediately effective. Therefore
this rule is immediately effective upon
publication in the Federal Register.
Although the Department has
determined that pre-effective date
public notice and comment would be
contrary to national security and public
safety, the Department strongly
encourages the public to comment on
the provisions of this rule so that such
comments may be carefully considered
in the drafting of a final rule.
Executive Order 12866
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ (58 FR 51735,
October 4, 1993), requires a
determination as to whether a regulatory
action is ‘‘significant’’ and therefore
subject to review by the Office of
Management and Budget (OMB) and to
the requirements of the Executive Order.
The Department has determined that
this rule is a ‘‘significant regulatory
action’’ under Executive Order 12866,

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section 3(f) because there is significant
public interest in security issues.
Accordingly, this rule has been
reviewed and approved by the OMB.
The Department has performed a
preliminary analysis of the expected
costs and benefits of this interim final
rule. The anticipated benefits of the rule
include: (1) Improved biometric
identification of foreign national
travelers who may present threats to
public safety and the national security
of the United States; (2) enhancement of
the Government’s ability to match an
alien’s fingerprints and photographs to
other law enforcement or intelligence
data associated with identical
biometrics; (3) improved identification
of individuals who may be inadmissible
to the United States; (4) improved
cooperation across international,
Federal, State, and local agencies
through better access to data on foreign
nationals; (5) facilitation of legitimate
travel and commerce by improving the
timeliness and accuracy of the
determination of a traveler’s
immigration status or his or her
inadmissibility; (6) ensuring the
integrity of the United States
immigration system through enhanced
enforcement of immigration laws,
including collection of more complete
arrival and departure data on aliens; and
(7) reductions in fraud, undetected
imposters and identity theft.
The costs associated with
implementation of this rule for
nonimmigrant visa holders at air and
sea ports of entry include an increase of
approximately 15 seconds in inspection
processing time per nonimmigrant visa
holder over the current approximately
one minute. By December 31, 2004,
approximately 24 million nonimmigrant
visa holders are anticipated to be
affected at air and sea ports. This
number is comprised of approximately
19.3 million air travelers and
approximately 4.5 million sea travelers.
The limited 15 second time increase is
not anticipated to delay significantly the
overall processing of air and sea
passengers because persons not required
to provide biometrics (e.g., U.S. citizens,
lawful permanent residents, and visaexempt nonimmigrants) may be routed
through different inspection lines,
thereby easing any impact of the
biometrics collection process. While the
Department does not anticipate longer
wait times at ports of entry due to US–
VISIT processing, a number of
mitigation strategies have been
developed, not unlike those already
available to CBP under other conditions
which result in backups. The additional
costs to the Government and the
taxpayers of implementing the

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requirements of this rule for the pilot
period are estimated to be $28.5 million
for FY 2004. These costs include
operation and maintenance for the entry
program for three months and the cost
of developing ten to fifteen exit sites.
The Department believes that the costs
described above are outweighed by the
benefits of the rule’s biometric
requirements for immigration
enforcement and the potential reduction
in threats to national security and
public safety. The Department will
continually assess its procedures to
ensure that any negative effects on
legitimate travel, commerce and law
abiding foreign visitors and permanent
residents will be minimized.
The Department conducted analyses
for both the entry and exit components.
Based on those analyses, the
Department determined which
alternatives were best suited for this
initial increment of the program.
Entry
Benefits: The goals and benefits of
this rule have been defined as:
• Enhance National Security by (1)
preventing entry of high-threat or
inadmissible nonimmigrant aliens
through improved and/or advanced
access to data prior to the
nonimmigrant’s arrival; (2) reducing
threat of terrorist attack and illegal
immigration through improved
identification of national security
threats and inadmissible aliens; and (3)
improving cooperation across federal,
state and local agencies through
improved access to nonimmigrant alien
data.
• Facilitate legitimate trade and travel
through (1) improved facilitation of
legitimate travel and commerce by
improved timeliness and accuracy of
determination of nonimmigrant traveler
status; and (2) improved accuracy and
timeliness of the determination of
nonimmigrant alien’s inadmissibility.
• Ensure integrity of our immigration
system through (1) improved
enforcement of immigration laws
through improved data accuracy and
completeness; (2) reduction in
nonimmigrant aliens remaining in the
country under unauthorized
circumstances; and (3) utilization of
existing IT systems (no new systems)
and enhancing information exchanges
with federal, state, and local law
enforcement and intelligence
communities.
• Deploy the Program in accordance
with existing privacy laws and policies.
Impact
The impact this rule on the traveling
public has been measured by (1) the

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477

number of foreign national travelers
affected, (2) the expected average
processing time, (3) travelers which are
not affected, (4) the effects on the ability
of airlines to off-load passengers and
assist them through immigration
processing, and (5) the additional costs
to the traveling public. The number of
foreign national travelers affected by
implementation of this regulation will
be approximately 3 million
nonimmigrant visa travelers.
This rule will affect only all travelers
who apply for admission or are
admitted pursuant to a nonimmigrant
visa, subject to the exemptions outlined
in this preamble and the codified text of
the rule. Additionally, where possible
and practical, aliens subject to this rule
will be routed through separate lines.
Overall, the processing time for aliens
subject to this rule will not impact
significantly the processing time for the
traveling public. There will be little
effect on the airlines’ abilities to off-load
passengers and get these travelers
processed through immigration
resulting from implementation of this
rule. Moreover, there will be no
additional costs to the traveling public,
airlines or airports resulting from the
implementation of this rule.
The expected average processing time
per person for whom biometrics will be
taken is approximately one minute and
fifteen seconds at entry. This compares
to one minute for travelers not being
processed through the biometric
requirements of US–VISIT. The average
processing time upon exit is
approximately one minute. DHS does
not anticipate significant delays in
processing on arrival or departure for
the traveling public.
Cost Benefit Analysis
Entry
A Cost Benefit Analysis (CBA) was
completed in February 2003 and will be
updated in February 2004. This update
will incorporate lessons learned about
any benefits recognized from the initial
operating capability provided by
Increment 1, implemented pursuant to
this rule.
Increment 1, Full Air and Sea and
Limited Land Performance with
Biographic and Biometric Capabilities,
delivers air and sea entry capabilities,
constrained by budgetary resources, in
accordance with the law and on time.
Other alternatives that were examined
were (1) Full Operating Capability with
Unlimited Budgetary Resources, (2) Full
Air and Sea with Biographic
Capabilities Only, and (3) Air and Sea
Entry and Exit Capabilities Constrained
by Budgetary Resources. This

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alternative was chosen, because it
provides the best capabilities within the
funding constraints. Additionally, it was
selected because it:
1. Implements Increment 1 capability
to air and sea POEs within the statutory
timeframe;
2. Delivers biographic to all primary
points of inspection and biometric data
to all secondary POEs points of
inspection;
3. Meets budgetary constraints; and
4. Is more desirable because the data
collection includes both biographic and
biometric data collection that provides
for a more thorough identity review
than biographic data alone.

US–VISIT System will improve the
accuracy and consistency of detecting
fraudulent travel documents, verifying
traveler identity, determining traveler
admissibility, and determining the
status of aliens through the use of more
complete and accurate data to include
the use of biometric data.
The quantitative benefits are targeted
as a more effective solution that will
allow the most optimal level of
throughput and security for travelers.
Some of these benefits can be measured,
but not in financial terms. We will begin
to quantify these benefits as we develop
our performance analysis system for
delivery in February 2004.

Exit

Executive Order 13132 (Federalism)
Executive Order 13132 requires the
Department to develop a process to
ensure ‘‘meaningful and timely input by
State and local officials in the
development of regulatory policies that
have federalism implications.’’ ‘‘Policies
that have federalism implications’’ are
defined in the Executive Order to
include rules that have ‘‘substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ The Department
has analyzed this interim final rule in
accordance with the principles and
criteria in the Executive Order and has
determined that it does not have
federalism implications or a substantial
direct effect on the States. This rule
provides for the collection by the federal
Government of biometric identifiers
from nonimmigrant aliens with visas
seeking to enter or depart the United
States for purposes of improving the
administration of federal immigration
laws. States do not conduct activities
with which this rule would interfere.
For these reasons, this rule does not
have sufficient federalism implications
to warrant the preparation of a
Federalism Assessment.

The US–VISIT Program wishes to
pilot alternative information collection
systems at selected air and seaports in
FY 2004. Three alternative systems have
been:
• Alternative 1
Gate Solution: Staffing and equipment
would be located at all international
departure gates. The estimated costs
include $43 million for implementation
plus $72 million annually for system
maintenance including 1,350 additional
TSA employees.
• Alternative 2
Checkpoint Solution: Staffing and
equipment located at airport security
checkpoints (746 nationwide). The
estimated costs include $62 million for
implementation plus $109 million for
system maintenance, including 1,800
TSA employees.
• Alternative 3
Workstation (Kiosk) Solution:
Equipment and contractors to provide
travelers assistance located in departure
areas after the security checkpoint. The
estimated costs include $22 million for
implementation plus $37 million for
system maintenance including
contractor costs.
Alternative 3, Workstation (Kiosk)
Solution, was selected as the initial
pilot because it was significantly more
cost effective than the other two, was
less manpower intensive, and
eliminated the major concerns of
airlines and airport authorities about
boarding processes and time issues at
gates.
Quantitative Benefits
The intent of this rule is to address
identified operational deficiencies and
legislative mandates associated with
management of the entry and exit of
international travelers through the U.S.
ports. Among its qualitative benefits, the

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Executive Order 12988 (Civil Justice
Reform)
This regulation meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988. That
Executive Order requires agencies to
conduct reviews on civil justice and
litigation impact issues before proposing
legislation or issuing proposed
regulations. The order requires agencies
to exert reasonable efforts to ensure that
the regulation identifies clearly
preemptive effects, effects on existing
federal laws or regulations, identifies
any retroactive effects of the regulation,
and other matters. The Department has

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determined that this regulation meets
the requirements of E.O. 12988 because
it does not involve retroactive effects,
preemptive effects, or the other matters
addressed in the Executive Order.
Unfunded Mandates Reform Act of
1995
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA),
2 U.S.C. 1531–1538, requires Federal
agencies to prepare a written assessment
of the costs, benefits, and other effects
of proposed or final rules that include
a Federal mandate likely to result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of more than $100
million in any one year (adjusted for
inflation with 1995 base year). Before
promulgating a rule for which a written
statement is needed, section 205 of the
UMRA generally requires DHS to
identify and consider a reasonable
number of regulatory alternatives and
adopt the least costly, most costeffective, or least burdensome
alternative that achieves the objective of
the rule. Section 205 allows the
Department to adopt an alternative other
than the least costly, most cost-effective,
or least burdensome alternative if the
agency publishes an explanation with
the final rule. This interim final rule
will not result in the expenditure by
State, local, or tribal governments, or by
the private sector, of more than $100
million annually. Thus, the Department
is not required to prepare a written
assessment under the UMRA.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rule is not a major rule as
defined by section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, 5 U.S.C. 804. This
rule will not result in an annual effect
on the economy of $100 million or
more; a major increase in costs or prices;
or significant adverse effects on
competition, employment, investment,
productivity, innovation, or on the
ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
Environmental Analysis
The Department has analyzed this
interim final rule for purposes of
compliance with the National
Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq. The Department has
prepared a nationwide environmental
assessment for the implementation of
this program at airports and has
determined that it will not result in any
significant environmental impacts. The

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Department has also prepared a
nationwide environmental assessment
for seaports. The analysis of potential
impacts at seaports indicated that the
proposed action is not likely to result in
significant environmental impacts. The
Department is initially implementing
this rule only at air and sea ports, as
indicated in the first Federal Register
notice that accompanies publication of
this rule. The Department will comply
with any applicable NEPA and any
other applicable environmental
requirements prior to the
implementation of this rule at the land
ports of entry.
Trade Impact Assessment
The Trade Agreement Act of 1979, 19
U.S.C. 2531–2533, prohibits Federal
agencies from engaging in any standards
or related activities that create
unnecessary obstacles to the foreign
commerce of the United States.
Legitimate domestic objectives, such as
safety, are not considered unnecessary
obstacles. The statute also requires
consideration of international standards
and, where appropriate, that they be the
basis for U.S. standards. The
Department has determined that this
rule will not create unnecessary
obstacles to the foreign commerce of the
United States and that any minimal
impact on trade that may occur is
legitimate in light of this rule’s benefits
for the national security and public
safety interests of the United States.
Paperwork Reduction Act
This rule permits the Secretary of
Homeland Security or his delegate to
require that aliens who cross United
States borders must provide
fingerprints, photograph(s), and
potentially other biometric identifiers
upon their arrival in or departure from
this country. These requirements
constitute an information collection
under the Paperwork Reduction Act
(PRA), 44 U.S.C. 507 et seq., and OMB’s
implementing regulations at 5 CFR
1320. Accordingly, the Department has
submitted an information collection
request to OMB for emergency review
and clearance under the PRA. If granted,
the emergency approval is only valid for
180 days. Under the PRA, an agency
may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless the
collection of information displays a
valid control number. The OMB control
number for the biometric information
that will be collected pursuant to this
rule is OMB 1600–0006.
Overview of this information
collection:

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(1) Type of information collection:
New.
(2) Title of Form/Collection: No form.
Collection of biometrics will be in
electronic or photographic format.
(3) Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: No form
number 1600–0006, Border and
Transportation Security Directorate,
DHS.
(4) Affected public who will be asked
or required to respond, as well as a brief
abstract: Individual aliens. The
categories of aliens are identified in this
rule. The first group of affected aliens is
nonimmigrant visa holders who seek
admission to the United States at the air
and sea ports of entry, and certain
departure locations, designated in the
notice published elsewhere in this issue
of the Federal Register. The biometric
information to be collected is necessary
for the Department to begin its
compliance with the mandates in
section 303 of the Border Security Act,
8 U.S.C. 1732 and sections 403(c) and
414(b) of the USA PATRIOT Act, 8
U.S.C. 1365a note and 1379, for
biometric verification of the identities of
alien travelers and authentication of
their biometric travel documents
through the use of machine readers
installed at all ports of entry. The arrival
and departure inspection procedures are
authorized by 8 U.S.C. 1225 and 1185.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: From January 5, 2004 to
January 5, 2005 the number of
nonimmigrant visa-holders required to
provide biometrics at the air and sea
ports of entry is anticipated to be
approximately 24 million, comprised of
approximately 19.3 million air travelers
and 4.5 million sea travelers. The
expected average processing time per
person for whom biometrics will be
collected is approximately one minute
and fifteen seconds at entry, with the
fifteen seconds being the additional
time added for biometric collection over
and above the normal inspection
processing time. The average additional
processing time upon exit is estimated
at one minute per person. There are no
additional fees for the traveling aliens to
pay.
(6) An estimate of the total of public
burden (in hours) associated with the
collection: Approximately 100,800
burden hours.
If additional information is required
contact Steve Yonkers, Privacy Officer,
US–VISIT, Border and Transportation
Security, Department of Homeland
Security; 1616 North Fort Myer Drive,

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5th Floor, Arlington, VA 22209 at (202)
927–5200.
During the first 60 days of the period
authorized by OMB for this information
collection under emergency procedures,
the Department will undertake a regular
review of the collection pursuant to the
PRA. Written comments from the public
are encouraged and will be accepted
until March 5, 2004. Your comments
should address one or more of the
following points: (a) Whether the
collection of information is necessary
for the proper performance of the
functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden of the
collection of information; (c) ways to
enhance the quality, utility, and clarity
of the information to be collected; (d)
ways to minimize the burden of the
collection of information on
respondents, including through the use
of automated collection techniques or
other forms of information technology;
and (e) estimates of capital or start-up
costs and costs of operations,
maintenance, and purchase of services
to provide information. Comments
should be directed to Steve Yonkers,
Privacy Officer, US–VISIT, Border and
Transportation Security, Department of
Homeland Security; 1616 North Fort
Myer Drive, 5th Floor, Arlington, VA
22209 at (202) 927–5200.
List of Subjects
8 CFR Part 214
Aliens, Immigration, Registration,
Reporting and recordkeeping
requirements.
8 CFR Part 215
Control of Aliens Departing from the
United States.
8 CFR Part 235
Aliens, Immigration, Registration,
Reporting and Recordkeeping
Requirements.
Amendments to the Regulations
For the reasons set forth in the
Supplementary Information section,
parts 214, 215, and 235 of Title 8 of the
Code of Federal Regulations are
amended as set forth below:

■

PART 214—NONIMMIGRANT CLASSES
1. The authority citation for part 214 is
revised to read as follows:

■

Authority: 8 U.S.C. 1101, 1102, 1103, 1182,
1184, 1185 (pursuant to Executive Order
13323, published January 2, 2004), 1186a,
1187, 1221, 1281, 1282, 1301–1305; 1372;
1379; 1731–32; sec. 643, Pub. L. 104–208;
110 Stat. 3009–708; section 141 of the

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Compacts of Free Association with the
Federated States of Micronesia and the
Republic of the Marshall Islands, and with
the Government of Palau, 48 U.S.C. 1901,
note, and 1931, note, respectively.

2. Part 214.1(a)(3) is revised to read as
follows:

■

§ 214.1 Requirements for admission,
extension, and maintenance of status.

(a) * * *
(3) General requirements. (i) Every
nonimmigrant alien who applies for
admission to, or an extension of stay in,
the United States, must establish that he
or she is admissible to the United States,
or that any ground of inadmissibility
has been waived under section 212(d)(3)
of the Act. Upon application for
admission, the alien must present a
valid passport and valid visa unless
either or both documents have been
waived. A nonimmigrant alien’s
admission to the United States is
conditioned on compliance with any
inspection requirement in § 235.1(d) or
of this chapter. The passport of an alien
applying for admission must be valid for
a minimum of six months from the
expiration date of the contemplated
period of stay, unless otherwise
provided in this chapter, and the alien
must agree to abide by the terms and
conditions of his or her admission. An
alien applying for extension of stay
must present a passport only if
requested to do so by the Department of
Homeland Security. The passport of an
alien applying for extension of stay
must be valid at the time of application
for extension, unless otherwise
provided in this chapter, and the alien
must agree to maintain the validity of
his or her passport and to abide by all
the terms and conditions of his
extension.
(ii) At the time of admission or
extension of stay, every nonimmigrant
alien must also agree to depart the
United States at the expiration of his or
her authorized period of admission or
extension of stay, or upon abandonment
of his or her authorized nonimmigrant
status, and to comply with the departure
procedures at section 215.8 of this
chapter if such procedures apply to the
particular alien. The nonimmigrant
alien’s failure to comply with those
departure requirements, including any
requirement that the alien provide
biometric identifiers, may constitute a
failure of the alien to maintain the terms
of his or her nonimmigrant status.
(iii) At the time a nonimmigrant alien
applies for admission or extension of
stay, he or she must post a bond on
Form I–352 in the sum of not less than
$500, to ensure the maintenance of his
or her nonimmigrant status and

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departure from the United States, if
required to do so by the Commissioner
of CBP, the Director of U.S. Citizenship
and Immigration Services, an
immigration judge, or the Board of
Immigration Appeals.
*
*
*
*
*
PART 215—CONTROLS OF ALIENS
DEPARTING FROM THE UNITED
STATES
3. The authority citation for part 215 is
revised to read as follows:

■

Authority: 8 U.S.C. 1104; 1184; 1185
(pursuant to Executive Order 13323,
published January 2, 2004), 1365a note, 1379,
1731–32.

4. Part 215 is amended by adding new
§ 215.8, to read as follows:

■

§ 215.8 Requirements for biometric
identifiers from aliens on departure from
the United States.

(a)(1) The Secretary of Homeland
Security may establish pilot programs at
up to fifteen air or sea ports of entry,
designated through notice in the
Federal Register, through which the
Secretary or his delegate may require an
alien admitted pursuant to a
nonimmigrant visa who departs the
United States from a designated air or
sea port of entry to provide fingerprints,
photograph(s) or other specified
biometric identifiers, documentation of
his or her immigration status in the
United States, and such other evidence
as may be requested to determine the
alien’s identity and whether he or she
has properly maintained his or her
status while in the United States.
(2) The requirements of paragraph
(a)(1) shall not apply to:
(i) Aliens younger than 14 or older
than 79 on date of departure;
(ii) Aliens admitted on A–1, A–2, C–
3 (except for attendants, servants or
personal employees of accredited
officials), G–1, G–2, G–3, G–4, NATO–
1, NATO–2, NATO–3, NATO–4, NATO–
5 or NATO–6 visas and maintaining
such status at time of departure, unless
the Secretary of State and the Secretary
of Homeland Security jointly determine
that a class of such aliens should be
subject to the requirements of paragraph
(a)(1);
(iii) Classes of aliens to whom the
Secretary of Homeland Security and the
Secretary of State jointly determine it
shall not apply; or
(iv) An individual alien to whom the
Secretary of Homeland Security, the
Secretary of State, or the Director of
Central Intelligence determines it shall
not apply.
(b) An alien who is required to
provide biometric identifiers at

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departure pursuant to paragraph (a)(1)
and who fails to comply with the
departure requirements may be found in
violation of the terms of his or her
admission, parole, or other immigration
status. In addition, failure of a covered
alien to comply with the departure
requirements could be a factor in
support of a determination that the alien
is ineligible to receive a future visa or
other immigration status
documentation, or to be admitted to the
United States. In making this
determination, the officer will consider
the totality of the circumstances,
including, but not limited to, all
positive and negative factors related to
the alien’s ability to comply with the
departure procedures.
(c) A covered alien who leaves the
United States without complying with
the departure requirements in this
section may be found to have overstayed
the period of his or her last admission
where the available evidence clearly
indicates that the alien did not depart
the United States within the time period
authorized at his or her last admission
or extension of stay. A determination
that the alien previously overstayed the
terms of his admission may result in a
finding of inadmissibility for accruing
prior unlawful presence in the United
States under section 212(a)(9) of the
Immigration and Nationality Act or that
the alien is otherwise ineligible for a
visa or other authorization to reenter the
United States, provided that all other
requirements of section 212(a)(9) have
been met. A determination that an alien
who was admitted on the basis of a
nonimmigrant visa has remained in the
United States beyond his or her
authorized period of stay may result in
such visa being deemed void pursuant
to section 222(g) of the Act (8 U.S.C.
1202(g)) where all other requirements of
that section are also met.
PART 235—INSPECTION OF PERSONS
APPLYING FOR ADMISSION
5. The authority citation for part 235 is
revised to read as follows:

■

Authority: 8 U.S.C. 1101 and note, 1103,
1183, 1185 (pursuant to E.O. 13323,
published January 2, 2004), 1201, 1224, 1225,
1226, 1228, 1365a note, 1379, 1731–32.

6. Section 235.1(d)(1) and (f)(1)
introductory text are revised to read as
follows:

■

§ 235.1

Scope of examination.

*

*
*
*
*
(d) Alien applicants for admission. (1)
Each alien seeking admission at a
United States port-of-entry must present
whatever documents are required and
must establish to the satisfaction of the

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Federal Register / Vol. 69, No. 2 / Monday, January 5, 2004 / Rules and Regulations
inspecting officer that the alien is not
subject to removal under the
immigration laws, Executive Orders, or
Presidential Proclamations, and is
entitled, under all of the applicable
provisions of the immigration laws and
this chapter, to enter the United States.
(i) A person claiming to have been
lawfully admitted for permanent
residence must establish that fact to the
satisfaction of the inspecting officer and
must present proper documents in
accordance with § 211.1 of this chapter.
(ii) The Secretary of Homeland
Security or his delegate may require
nonimmigrant aliens seeking admission
pursuant to a nonimmigrant visa at an
air or sea port of entry designated by a
notice in the Federal Register to provide
fingerprints, photograph(s) or other
specified biometric identifiers during
the inspection process. The failure of an
applicant for admission to comply with
any requirement to provide biometric
identifiers may result in a determination
that the alien is inadmissible under
section 212(a)(7) of the Immigration and
Nationality Act, or other relevant
grounds in section 212 of the Act.

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(iii) Aliens who are required under
paragraph (d)(1)(ii) to provide biometric
identifier(s) at inspection may also be
subject to the departure requirements
for biometrics contained in § 215.8 of
this chapter, unless otherwise
exempted.
(iv) The requirements of paragraph
(d)(1)(ii) shall not apply to:
(A) Aliens younger than 14 or older
than 79 on date of admission;
(B) Aliens admitted on A–1, A–2, C–
3 (except for attendants, servants or
personal employees of accredited
officials), G–1, G–2, G–3, G–4, NATO–
1, NATO–2, NATO–3, NATO–4, NATO–
5 or NATO–6 visas, unless the Secretary
of State and the Secretary of Homeland
Security jointly determine that a class of
such aliens should be subject to the
requirements of paragraph (d)(1)(ii);
(C) Classes of aliens to whom the
Secretary of Homeland Security and the
Secretary of State jointly determine it
shall not apply; or
(D) An individual alien to whom the
Secretary of Homeland Security, the
Secretary of State, or the Director of

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481

Central Intelligence determines it shall
not apply.
*
*
*
*
*
(f) Form I–94, Arrival-Departure
Record. (1) Unless otherwise exempted,
each arriving nonimmigrant who is
admitted to the United States will be
issued a Form I–94 as evidence of the
terms of admission. For land border
admission, a Form I–94 will be issued
only upon payment of a fee, and will be
considered issued for multiple entries
unless specifically annotated for a
limited number of entries. A Form I–94
issued at other than a land border portof-entry, unless issued for multiple
entries, must be surrendered upon
departure from the United States in
accordance with the instructions on the
form. Form I–94 is not required by:
*
*
*
*
*
Dated: December 30, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03–32331 Filed 12–31–03; 11:51
am]
BILLING CODE 4410–10–U

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