07 May 2021

United States

DHS Withdraws Proposal to Expand Biometrics Requirements

In September 2020, the U.S. Department of Homeland Security (DHS) published a Notice of Proposed Rulemaking regarding the collection and use of biometrics by U.S. Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE). The proposed rule would have required the collection of biometric data from every applicant, petitioner, sponsor, beneficiary, or individual associated with any request for an immigration benefit—without regard to age or U.S. citizenship—unless explicitly waived or exempted by DHS. It would have also expanded biometric modalities—to include iris images, palm prints, voice prints, and other measurable biological characteristics—as well as authorized the collection and use of DNA profiles and genetic test results.  

On May 7, 2021, DHS announced that it had withdrawn the proposed rule. More than 5,000 public comments were received, with the majority expressing opposition and describing the rule as unnecessary, an invasion of privacy, an infringement on civil liberties, and an imposition of excessive costs and administrative delays in the adjudicating immigration benefits that are already subject to backlogs and delays. DHS also indicated that the proposed rule was inconsistent with Executive Order 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.” 

While DHS may engage in future rulemaking to enhance its biometrics program, the May 7, 2021 announcement states that the current biometrics collection practices and policies are sufficient to meet the statutory and regulatory requirements for vetting immigration benefits requests.  

Notice of the withdrawal will be published on May 10, 2021. This announcement from DHS and associated materials in the Federal Register are unrelated to the existing biometrics collection requirement for individuals filing a Form I-539, Application to Change or Extend Nonimmigrant Status, with USCIS. That requirement—which was imposed through a revision to the Form I-539 in February 2019—is expected to be suspended on or about May 17, 2021, for a period of two years, although the policy has not yet been formally announced.   

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