On September 11, 2020, the Department of Homeland Security (DHS) will release a new regulation for notice-and-comment that proposes to expand the collection of biometric data and give DHS increased flexibility to deal with emerging needs. Here are a few highlights from the draft 328-page rule.
- Unless waived by DHS, any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with an immigration benefit or request, including U.S. citizens, must appear for biometrics collection – regardless of age.
- There will be new biometrics modalities including iris scans, palm prints and voice prints.
- DHS may require DNA results to prove the existence of a claimed genetic relationship.
- Foreign nationals who are granted immigration benefits will be subject to continued and subsequent vetting and biometric evaluation until granted U.S. citizenship.
- New forms will be produced including the new biometrics requirements.
For employers, this may mean that authorized signatories or others associated with a petition filing could be subject to biometrics screenings – even if they are U.S. citizens. It also means that foreign national employees and their dependents will be subject to continuing surveillance and may need to attend numerous biometrics screenings, even absent a new petition or application. In addition, given the increase in biometrics processing and the new proposed modalities, including more DNA screenings, privacy issues will be of great concern for employers and employees alike.
DHS estimates that the draft rule would increase the number of annual biometrics screenings from 3.9 million to 6.07 million. Currently there is a 46% collection rate across all forms. Under the new rule, that would rise to 71%. This increase would be difficult to implement any time soon given the current backlogs at Application Support Centers.
Many observations and critiques will likely be submitted once the Notice-and-Comment Period opens. Jackson Lewis will continue to follow the rulemaking process and provide updates as they become available.
Originally published by Jackson Lewis P.C., October 2020
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