U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program
Released: 2006-01-26T00:00:00

Summary:
Congress first mandated that the former Immigration and Naturalization Service (INS) implement an automated entry and exit data system that would track the arrival and departure of every alien in §110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). The objective was, in part, to develop a mechanism that would be able to track nonimmigrants who overstayed their visas as part of a broader emphasis on immigration control. Following the September 11, 2001 terrorist attacks there was a shift in priority for implementing the system. While the tracking of nonimmigrants who overstayed their visas remained an important goal, border security has become the paramount concern.
Legislation enacted from 1997 to 2000 changed the scope and delayed implementation of §110 of IIRIRA. For example, the INS Data Management Improvement Act rewrote §110 to require the development of a system using data currently collected with no new documentary requirements. The Visa Waiver Permanent Program Act of 2000 required the development and implementation of a "fully automated entry and exit control system" covering all aliens who enter the United States under the Visa Waiver Program (VWP) at airports and seaports.
Following the terrorist attacks, several provisions in the USA PATRIOT Act and the Border Security Act, however, required the immediate implementation of an automated entry and exit data system and called for enhancements in its development. More recently, the Intelligence Reform and Terrorism Prevention Act of 2004 implements the 9/11 Commission recommendations, including those recommendations that pertain to the integrated entry and exit data system and biometric identifiers in travel documents.
Tracking the entry and exit of foreign nationals at U.S. ports of entry is not a small undertaking. In FY2005, there were over 428 million inspections conducted at U.S. ports of entry, with the majority of the inspections conducted on foreign nationals. Implementing the requirements of an automated entry and exit data system, however, is not without controversy. Some observers fear that the full implementation of US-VISIT will cause massive delays at U.S. ports of entry, primarily at land ports of entry. Some believe that the cost of implementing such a system would outweigh the benefits. Others express concern about the inadequacy of current infrastructure, and the lack of consensus with respect to the type of biometric technology that should be used in travel documents. Many continue to question the purpose of such a system. Some argue that resources should be directed at immigration interior enforcement, rather than on an expensive system whose capability is not fully known.
The automated entry and exit data system was administratively renamed the United States Visitor and Immigrant Status Indicator Technology (US-VISIT). It is being implemented in phases over the next several years. This report will be updated to reflect new developments.

subsections: section_title: Introduction
paragraphs: Congress first mandated that the former Immigration and Naturalization Service (INS) implement an automated entry and exit data system that would track the arrival and departure of every alien in §110 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA; P.L. 104-208 ). The objective for an automated entry and exit data system was, in part, to develop a mechanism that would be able to track nonimmigrants who overstayed their visas as part of a broader emphasis on immigration control. Following the September 11, 2001 terrorist attacks there was a marked shift in priority for implementing an automated entry and exit data system. While the tracking of nonimmigrants who overstayed their visas remained an important goal of the system, border security has become the paramount concern with respect to implementing the system.
This report provides a summary of the statutory history of the automated entry and exit data system, which was renamed the U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program by the Bush Administration. It also discusses other laws that affect the implementation of the system and provides an analysis of the documentary requirements under current law. The report also discusses efforts to implement the program and selected issues associated with its development and implementation. This report will not discuss two related programs—National Security Entry-Exit Registration System (NSEERS) program and the Student and Exchange Visitor Information System (SEVIS) program, —which reportedly will be incorporated into the automated entry and exit data system.
subsections: section_title: Volume of Entries
paragraphs: Tracking the entry and exit of most foreign nationals at U.S. ports of entry is not a small undertaking. In FY2005, there were over 428 million inspections conducted at U.S. ports of entry, with the majority of the inspections conducted on foreign nationals. Most observers contend that implementing an automated entry and exit data system at the nation's ports of entry poses a variety of logistical problems, as discussed below.
section_title: U.S. Ports
paragraphs: There are 280 air, land, and sea ports of entry in the United States. The majority of travelers enter the United States at a land port of entry. Land borders are unique because traffic at these crossings could consist in varying combinations of cars, pedestrians, bicycles, trucks, buses, and rail. Moreover, land ports of entry pose various challenges to the creation of an automated alien tracking system due to their location, infrastructure, geography and traffic volume, which can vary extensively among ports of entry.
Air and sea ports are faced with some of the same challenges present at land ports. However, the impact is not as intense as it is at land ports of entry. While land ports of entry have heavy traffic volume that could make fully implementing such a program difficult, some air port officials and observers express concern that implementing the system could also disrupt the flow of traffic at air ports of entry. Airports have tried to delay the implementation of an automated entry and exit data system (and reportedly they were effective in pushing back the implementation date of the Administration's first increment of the program to January 5, 2004), primarily due to concerns of the potential slow down in the flow of traffic at the nation's air ports of entry. In addition to possible congestion at the nation's air ports of entry, some fear that the exit process may not be fully developed due to inadequate space.
Sea ports also pose challenges to the implementation of an automated entry and exit data system. Similar to other ports, sea ports do not have the necessary infrastructure. Moreover, some sea ports of entry are not staffed full-time with immigration or customs inspectors.
section_title: The Arrival/Departure Record, Form I-94
paragraphs: For many years, the former INS had recorded nonimmigrant arrivals at airports on Form I-94, the Arrival/Departure Record, which is a paper-based system that contains information that is later keyed into the Nonimmigrant Information System (NIIS).
Form I-94 is a perforated numbered card and is composed of an arrival portion collected upon entry and a departure portion that is returned to the alien passenger. Upon departure, the reverse-side of the departure portion is completed by the departure carrier and submitted to the Department of Homeland Security (DHS) at the port of departure. Under current regulations, the outbound carrier has 48 hours to submit the departure Form I-94 to DHS.
Due to the cumbersome nature of this process and its unreliability, Congress required that commercial carriers transporting passengers to or from the U.S. deliver arrival and departure manifest information electronically to DHS no later than January 1, 2003. These reports are to be integrated with data systems maintained by the Department of Justice (DOJ) and the Department of State (DOS) at ports of entry or at consular offices.
section_title: Exit Control
paragraphs: The I-94 Arrival/Departure Record is routinely collected from applicable foreign nationals at air and sea ports. Reportedly, it is rarely collected from applicable foreign nationals exiting at land ports. According to many, implementing the exit process of an automated entry and exit data system at most ports of entry will entail expanding the infrastructure, which may be challenging at some ports (see discussion in " Selected Issues " section). The Administration is currently in the third phase of implementation of the system, and reportedly the exit process is operable at selected ports of entry. The full implementation of the exit process will be one of the challenges to the successful development of an automated entry and exit data system (see discussion in Implementation of US-VISIT).
section_title: Statutory History and Other Related Laws
paragraphs: There are five principal laws that extend and refine §110 of IIRIRA to require the development and implementation of an integrated entry and exit data system:
The INS Data Management Improvement Act (DMIA; P.L. 106-215 ); The Visa Waiver Permanent Program Act (VWPPA; P.L. 106-396 ); The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act; P.L. 107-56 ); The Enhanced Border Security and Visa Entry Reform Act (Border Security Act; P.L. 107-173 ); and The Intelligence Reform and Terrorism Prevention Act of 2004 ( P.L. 108-458 ).
Following the terrorist attacks, several provisions in the USA PATRIOT Act, the Border Security Act and the Intelligence Reform and Terrorism Prevention Act of 2004, however, required the immediate implementation of an automated entry and exit data system and called for enhancements in its development. The provisions in these Acts have several common elements:
encouraged a more expeditious development of the automated entry and exit data system; required that biometric identifiers be used in all visas and other travel documents; and required that the system be interoperable with other law enforcement and national security databases.
Accordingly, implementation of the relevant provisions in these six laws together are intended to result in an integrated, automated entry and exit data system that now includes the use of biometric identifiers.
subsections: section_title: Mandate to Create an Automated Entry and Exit Data System
paragraphs: Section 110 of IIRIRA required the Attorney General to develop an automated data system that would record the entry and exit of every alien arriving in and departing from the United States by September 30, 1998. Under this initial authorization, the Attorney General was required to develop an automated entry and exit control system not later than two years after the enactment of IIRIRA in 1996. The automated entry and exit data system would have created a record for every alien arriving in the U.S. and paired it with the record for the alien departing the United States. The automated entry and exit data system was also supposed to enable the Attorney General to identify, through online searching procedures, lawfully admitted nonimmigrants who remained in the United States beyond the period authorized by the Attorney General.
The act also mandated that the Attorney General report to Congress annually after the development of an automated entry and exit data system on the following:
the number of recorded departures by country of nationality; the number of recorded departures matching recorded arrivals of nonimmigrants by country of nationality; and the number of aliens who arrived as nonimmigrants or visitors under the visa waiver program and have overstayed their visas.
Congress amended §110 of IIRIRA in P.L. 105-259 to require the implementation of the system before October 15, 1998. Congress further amended §110 in the FY1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act ( P.L. 105-277 ) by extending the deadline for the implementation of the automated entry and exit data system to March 30, 2001, for land border ports of entry and sea ports of entry (but otherwise leaving the October 15, 1998 deadline for air ports of entry); and prohibiting significant disruption of trade, tourism or other legitimate cross-border traffic once the automated entry and exit data system was in place.
section_title: Significant Modifications in the Automated Entry and Exit Data System
paragraphs: In June of 2000, Congress substantially amended §110 of IIRIRA in the Immigration and Naturalization Service Data Management Improvement Act of 2000. This act renamed the automated entry and exit data system the "Integrated Entry and Exit Data System" and included provisions that (1) rewrote IIRIRA §110 to require the development of a system using data currently collected with no new documentary requirements; (2) set staggered deadlines for the implementation of the system at air, sea, and land border ports of entry; (3) established a task force to evaluate the implementation of the system and other measures to improve legitimate cross-border traffic; and (4) expressed a sense of Congress that federal departments charged with border management should consult with foreign governments to improve cooperation.
section_title: Related Provisions
paragraphs: While statutorily distinct from §110, the Visa Waiver Permanent Program Act of 2000 also mandated the development and implementation of a "fully automated entry and exit control system" covering all aliens who enter the United States under the Visa Waiver Program (VWP) at airports and seaports. Under the VWP, nationals from certain countries are allowed to enter the United States as temporary visitors (nonimmigrants) for business or pleasure for up to 90 days without first obtaining a visa from a U.S. consulate abroad.
The Visa Waiver Permanent Program Act included many provisions designed to strengthen documentary and reporting requirements. Most notably, the VWPPA included a provision that mandated that by October 1, 2007, all entrants under the VWP must have machine-readable passports. It has been stipulated by DHS that the VWP arrival/departure information has effectively been incorporated into the broader entry-exit system component mandated by the DMIA.
In late 2001 and 2002, Congress passed two additional laws affecting the development of the automated entry and exit data system, particularly with respect to the use of use biometric identifiers: the USA PATRIOT Act ( P.L. 107-56 ) and the Border Security Act ( P.L. 107-173 ).
section_title: Enhancements to the Automated Entry and Exit Data System13
paragraphs: In the USA PATRIOT Act, Congress required the Attorney General and the Secretary of State to jointly develop and certify a technology standard with the capacity to verify the identity of persons applying for a U.S. visa or such persons seeking to enter the United States pursuant to a visa. The USA PATRIOT Act also encouraged the full implementation of the integrated, automated entry and exit data system "with all deliberate speed and as expeditiously as practicable" and called for the immediate establishment of the Integrated Entry and Exit Data System Task Force, as described in §3 of the DMIA. The act also directed the Attorney General and Secretary of State to focus on the utilization of biometric technology and tamper resistant documents in the development of the integrated, automated entry and exit data system.
The Border Security Act further advanced requirements set forth in IIRIRA by requiring the Attorney General to implement an integrated entry and exit data system. In developing the entry and exit data system, the act required: (1) the Attorney General and the Secretary of State to implement a technology standard in compliance with the USA PATRIOT Act at U.S. ports of entry and at consular posts abroad; (2) the establishment of a database containing the arrival and departure data from machine-readable visas, passports and other alien travel documents; (3) the integration of all INS databases and data systems that process or contain information on aliens; and (4) the development and implementation of an interoperable electronic data system that provides real time access to federal law enforcement agencies and the intelligence community databases in order to obtain relevant information to make visa and admissibility determinations.
More recently, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004 ( P.L. 108-458 ). See discussion below, in the " Legislation in the 108 th Congress " section.
section_title: Related Requirements
subsections: section_title: Machine-Readable Travel Documents
paragraphs: The Border Security Act required the Attorney General and the Secretary of State to issue machine-readable, tamper-resistant visas and travel documents that will utilize biometric identifiers by October 26, 2004. The act required all U.S. ports of entry to have equipment and software installed by October 26, 2004 that will allow biometric comparison and the authentication of all visas and other travel and entry documents issued to aliens. The act also required by the same date that all VWP countries have a program in place to issue tamper-resistant, machine-readable, biometric passports that comply with the biometric and document identifying standards established by the International Civil Aviation Organization (ICAO). P.L. 108-299 , however, extended the deadline to October 26, 2005. In essence, on or after October 26, 2005, any alien applying for admission under the VWP must present a passport that is tamper-resistant, machine-readable, and uses ICAO-compliant biometric identifiers (unless the unexpired passport was issued prior to that date). With respect to Laser Visas (previously referred to as Mexican Border Crossing Cards), the act extended until September 30, 2002, the deadline for such visas to contain a biometric identifier that matches the biometric characteristic of the card holder.
As previously mentioned, the Border Security Act required the automated entry and exit data system be interoperable with other federal law enforcement agencies and the intelligence community data systems. The act required the interoperable data system to have the capacity to compensate for disparate name formats among the various databases and be able to search names that are linguistically sensitive. It required linguistically sensitive algorithms to be implemented for at least four languages designated as high priorities by the Secretary of State. The act required the President to establish a commission by October 26, 2002, to oversee the development and progress of the interoperable data system.
section_title: Electronic Passenger Manifest
paragraphs: The Border Security Act required airline carriers to provide the Attorney General with electronic passenger manifests before arriving in or departing from the United States and repealed a provision that required airport inspections to be completed within 45 minutes of arrival.
section_title: Requirement for Biometric Identifiers22
paragraphs: Congress first mandated biometrics in travel documents in IIRIRA by requiring Border Crossing Cards (BCCs, now referred to as Laser Visas) for Mexican nationals to have a biometric identifier that is machine readable. The act required that the biometric identifier match the biometric characteristic of the card holder in order for the alien to enter the United States. In addition to IIRIRA, the USA PATRIOT Act and the Border Security Act both required the use of biometrics in travel documents.
subsections: section_title: Technology Standards
paragraphs: The USA PATRIOT Act required the Attorney General and the Secretary of State, through the National Institute of Standards and Technology (NIST), to develop and certify a technology standard, such as fingerprints and facial photographs, that can be used to verify the identity of persons seeking a visa to enter the United States. With respect to developing and certifying a technology standard, the act also required the Attorney General and the Secretary of State to consult with the Secretary of the Treasury and other relevant federal law enforcement and intelligence agencies. The act required the technology standard to be a "cross-agency, cross-platform electronic system" that is fully integrated with other federal law enforcement and intelligence agencies' databases. It also required the technology standard to be accessible to all consular officers who are responsible for issuing visas, all federal inspection agents at U.S. ports of entry, and all law enforcement and intelligence officers who are determined by regulations to be responsible for investigating or identifying aliens admitted to the United States through a visa.
The Border Security Act, in advancing requirements set forth in IIRIRA, authorized the funding and implementation of a technology standard (e.g., biometrics). The act required the Attorney General and the Secretary of State to issue machine-readable, tamper-resistant visas and travel documents that have biometric identifiers by October 26, 2004. On January 5, 2004, DHS promulgated an interim final rule that amended portions of 8 C.F.R. §§214.1, 215.8, and 235.1 to include language for the biometric requirements of US-VISIT (see Appendix A for a discussion on the authority and implementation of the biometric identifier requirements).
The Intelligence Reform and Terrorism Prevention Act of 2004 ( P.L. 108-458 ) contains a provision that requires every person traveling to the United States to possess documentation. The act, however, does not explicitly require that the travel documents contain biometrics. The act requires the Secretary of Homeland Security, in consultation with the Secretary of State, to develop and implement a plan that requires persons traveling to the United States, including U.S. citizens and other persons for whom documentation requirements have previously been waived, to have a passport or other combination of documents by January 1, 2008.
section_title: Status of US-VISIT
paragraphs: The US-VISIT program was established to respond to several congressional mandates that required DHS to create an integrated, automated entry and exit data system that (1) uses available data to produce reports on alien arrivals and departures; (2) deploys equipment 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 (3) records alien arrival and departure information from biometrically authenticated documents. The program is reportedly going to be implemented in phases over the next several years in compliance with congressional mandates and include resources and services from a number of federal, state, local, and foreign entities to meet these requirements.
subsections: section_title: Implementation Phases
paragraphs: The Administration announced plans to implement the program in four increments, with the first three increments constituting a temporary system. While details are not available, the US-VISIT Fact Sheet states the first three increments will include the interfacing, enhancement and deployment (at air, sea and land ports of entry) of existing system capabilities, which is in line with a Government Accountability Office (GAO) report. According to a GAO report, "DHS has preliminary plans showing that it intends to acquire and deploy a system that has functional and performance capabilities that satisfy the general scope of capabilities required under various laws ... [to include] the capability to (1) collect and match alien arrival and departure data electronically; (2) be accessible to the border management community ...; and (3) support machine readable, tamper-resistant documents with biometric identifiers at ports of entry." GAO observed, however, that the initial plan lacks sufficient information with respect to "... what specific capabilities and benefits [that] will be delivered, by when, and at what cost ...."
On January 5, 2004, DHS implemented the first phase of US-VISIT by publishing an Interim Final Rule in the Federal Register authorizing DHS to require certain aliens to provide fingerprints, photographs, or other biometric identifiers upon arrival in or departure from the United States at air and sea ports of entry. The January 5 Interim Final Rule also authorized the Secretary of DHS to establish exit pilot programs at up to 15 air or sea ports of entry, to be identified by Notice in the Federal Register . A separate January 5, 2004, Federal Register Notice identified 115 airports and 14 sea ports of entry that would be implementing US-VISIT entry procedures, and two locations—Baltimore/Washington International Airport and Miami, Florida sea port—that would be implementing exit pilot programs. On August 3, 2004, DHS announced its plans to increase the exit pilot programs to 12 additional air ports and 1 additional sea port, expanding the US-VISIT exit program to its full authorization of 15 air or sea ports. A Notice issued on August 20, 2004, added six new ports of entry and eliminated two ports that were listed in the January 5, 2004, Notice, for ports processing arrivals , and exchanged two airports that were inadvertently included in the August 3, 2004, Notice for two others.
On August 31, 2004, DHS implemented the second increment of US-VISIT by publishing an Interim Final Rule authorizing DHS to require certain aliens to provide fingerprints, photographs, or other biometric identifiers upon arrival in the United States at the 50 most trafficked land ports of entry . This Interim Rule also amended 8 C.F.R. §215.8(a)(1) to allow DHS to establish exit pilot programs at land border ports of entry. DHS staggered the implementation of US-VISIT at the land ports of entry to test the system and identify areas where the process for collection of biometric information may be improved. A November 9, 2004, Federal Register Notice listed the 50 most trafficked land ports of entry and provided estimated staggered implementation dates starting on November 15, 2004, and ending on December 27, 2004. As a further enhancement to the second stage of implementation, DHS published a Federal Register Notice on August 4, 2005, stating that it was intending to test exit and entry control through the use of passive radio frequency identification (RFID) technology at five U.S. land border locations.
DHS implemented the third increment of US-VISIT on September 14, 2005, with the announcement that it was applying entry procedures at all other land border ports of entry by December 31, 2005 (for a total of 154 land ports of entry). DHS will announce, through a separate Notice in the Federal Register , the biometric data collection program for processing aliens upon departure from the United States at a limited number of sites.
section_title: Current Operations
paragraphs: Under the US-VISIT program, 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. Initially, DHS plans to take a digital photograph and two fingerprints from each nonimmigrant alien who presents a visa at designated ports of entry. DHS reportedly chose to collect two fingerprints and a photograph of the alien's face, in part, because they are currently less intrusive than other forms of biometric collections and because of the effectiveness of such techniques. Moreover, NIST, in consultation with DOJ and DOS, has determined that two fingerprints and facial photographs are sufficient forms of biometrics for the purpose of the US-VISIT program. DHS has commented, however, that it will soon begin to collect 10 flat fingerprints.
Upon arrival at a designated port of entry, inspectors will scan two fingerprints of the foreign national with an inkless device and will take a digital photograph of the person. Initially, the biometric information collected will be entered into an existing system called Automated Biometric Fingerprint Identification System (IDENT). The alien's fingerprint and photographs are compared against the biometric information already stored in IDENT to determine whether there is any information that would indicate the alien is inadmissible. For nonimmigrants subject to US-VISIT requirements entering the country through a land port of entry, this process is conducted in secondary inspection.
For departures 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 provide his fingerprints on the same type of device used at entry. The departure information that a traveler provides will be verified and matched against any available information that he or she provided upon inspection and that was previously stored in the systems that comprise US-VISIT. Generally, all the information collected will be used to (1) identify persons who have overstayed their authorized periods of admission; (2) compile the overstay reports required by DMIA; and, (3) help DOS and DHS make determinations as to whether the person is eligible for future visas, admission, or other discretionary immigration benefits.
Although the biometric requirements initially only apply to nonimmigrant visa-holders who travel through designated air and sea ports, DHS anticipates expanding the program, through separate rulemaking to include other groups of aliens and more ports, including land border ports of entry. As mentioned above, the Secretary has the authority under current regulations to establish exit pilot programs at up to 15 air or sea ports of entry and any number of land ports of entry.
Under DHS' initial regulations, biometric identifiers are not required for U.S. citizens, lawful permanent residents of the United States or for travelers who seek to enter the United States through the VWP. Subsequent DHS regulations, however, now require VWP participants to submit to the requirements of the US-VISIT program. With respect to Canadian citizens who enter through the designated air and sea ports of entry, biometric identifiers will be required, unless the Canadian citizen is temporarily visiting the United States and does not apply for admission pursuant to a nonimmigrant visa. Nonimmigrant Mexican visa holders must also present biometric identifiers if they enter through the designated air and sea ports of entry, but not at land ports of entry along the southwest border. Current DHS regulations also exempt 18 other categories of individuals from providing biometric identifiers upon entry to or exit from the United States (see Appendix C ). An inspector retains the discretion, however, to collect an alien's biometric information in order to determine the exact age of the alien and whether he or she is exempt from the biometric requirements.
section_title: Electronic Manifest Requirements
paragraphs: One of the basic legislative mandates of US-VISIT is that the system integrate the available alien arrival and departure data that exist in any Department of Justice (now DHS) or DOS database system. This includes the systems that incorporate carrier manifest data on passengers and crew members who are entering or leaving the United States via air or sea—generally, the Advance Passenger Information System (APIS) for arrivals and the Arrival Departure Information System (ADIS) for departures.
In addition to the information captured by the electronic manifests, APIS and ADIS include information gathered from VWP aliens and information on visa applications and recipients received through the DataShare program with DOS. The information provided by the APIS and ADIS databases are run against the Interagency Border Inspection System (IBIS) which contains "lookouts" on individuals submitted by more than 20 law enforcement and intelligence agencies. According to DHS, by the time a traveler gets to an air or sea port of entry, inspectors have identified the aliens that need to be scrutinized more closely or that may be inadmissible.
Under current regulations, a commercial aircraft or vessel must electronically transmit arrival and departure manifests to DHS officials for passengers or crew members not currently exempt from the manifest requirements pursuant to 8 C.F.R. §231.1 or §231.2. These manifests must contain the data elements (e.g., name, passport number) specified in INA §231, as described in regulations 19 C.F.R. §4.7b (passengers and crew members onboard vessels) §122.49a (passengers onboard aircraft) and §122.49b (crew members onboard aircraft) (see Appendix B ). Arrival manifests must be submitted electronically to DHS prior to the arrival of the commercial aircraft or vessel. Electronic departure manifests, under 8 C.F.R. §231.2, must be submitted to DHS officials within 48 hours of departure . Under current regulations, arrival and departure manifest data are not required to be submitted by U.S. citizens, a returning lawful permanent resident alien of the United States, and new immigrants to the United States or aircraft and vessels arriving in the United States directly from Canada, or departing to Canada.
section_title: Visa Waiver Program
paragraphs: The entry-exit system must also include the arrival and departure for any visitor who transits through the air and seaports and is admitted under the Visa Waiver Program. The VWP allows nationals from 27 countries to enter the United States as temporary visitors for business or pleasure without first obtaining a visa from a U.S. consulate abroad. The VWPPA states that no alien arriving by air or sea may be granted a visa waiver under INA §217, on or after October 1, 2002, unless the carrier is submitting passenger information electronically to the VWP entry-exit system, as required by the Secretary. According to 8 C.F.R. §217.7, carriers must electronically transmit arrival manifest data in accordance with the elements spelled out in 19 C.F.R. §4.7b or 19 C.F.R. §122.49a for every applicant for admission under the VWP that the carrier transports by air or sea to a U.S. port of entry. Carriers are only required to transmit departure passenger information for those departing VWP passengers who were admitted to the United States under the VWP after arriving at a port of entry. As of September 30, 2004, travelers entering the United States pursuant to the VWP are enrolled in US-VISIT.
section_title: The 9/11 Commission Report
paragraphs: The National Commission on Terrorist Attacks Upon the United States (9/11 Commission) was created to investigate "facts and circumstances relating to the terrorist attacks of September 11, 2001." The 9/11 Commission published its report in July 2004. In its report, the 9/11 Commission noted the following with respect to the US-VISIT system:
Since September 11, the United States has built the first phase of a biometric screening program, called US VISIT... So far, however, only visitors who acquire visas to travel to the United States are covered. While visitors from "visa waiver" Countries will be added to the program, beginning this year, covered travelers will still constitute only about 12 percent of all noncitizens crossing the U.S. borders...
While the 9/11 Commission called for the expeditious implementation of the US-VISIT program, it noted the following with respect to biometrics: "biometrics have been introduced into an antiquated computer environment" and that "replacement of these systems and improved biometric systems will be required." The 9/11 Commission also recommended the consolidation of the various border screening systems with the US-VISIT system, including frequent traveler programs such as NEXUS and the Secure Electronic Network for Travelers' Rapid Inspections (SENTRI).
section_title: Legislation in the 108th Congress
paragraphs: As stated above, the 9/11 Commission called for the expeditious implementation of the US-VISIT program. It also called for the replacement of the "antiquated computer environment" in which biometrics have been introduced. The 9/11 Commission recommended the consolidation of the various border screening systems with the US-VISIT system, including frequent traveler programs. In an effort to implement the 9/11 Commission's recommendations, Congress passed " The Intelligence Reform and Terrorism Prevention Act of 2004 ( P.L. 108-458 ) " as discussed below.
subsections: section_title: The Intelligence Reform and Terrorism Prevention Act of 2004 (P.L. 108-458)
paragraphs: The Intelligence Reform and Terrorism Prevention Act of 2004 ( P.L. 108-458 ) called for the Secretary of DHS (Secretary) to develop a plan to accelerate the full implementation of an automated biometric entry and exit data system and submit a report to Congress on the plan by July 17, 2005. The act required the plan to describe the functionality of the entry and exit data system that includes the following:
a listing of ports of entry and other DHS and DOS locations with biometric entry data systems in use and whether the systems are located at primary or secondary inspections areas; a listing of ports of entry and other DHS and DOS locations with biometric exit data systems in use; a listing of databases and data systems that are interoperable with the entry and exit data system; a description of identified deficiencies with respect to the accuracy or integrity of the information contained in the entry and exit data system; a description of identified deficiencies with respect to the technology used to process individuals through the system; a description of programs and policies to correct such deficiencies; and an assessment of the effectiveness of the system in fulfilling its intended purposes.
The act also required the plan to describe factors that are relevant to the accelerated implementation of the system, including the earliest estimated date for full implementation of the program, among other things. The plan must also describe the following: (1) any improvements needed with respect to the technology used to process individuals through the system; (2) improved or added interoperability with other databases or data systems; and (3) the manner in which the US-VISIT program meets the goals of a comprehensive entry and exit screening system and how the program fulfills its statutory obligations.
As specified in previously enacted legislation, the act required the entry and exit data system to collect "biometric exit data for all categories of individuals who are required to provide biometric entry data." The act also required the integration of all databases and data systems that process or contain information on aliens by December 2006. In doing so, the act specified the following agencies to comply with the mandate:
DHS' U.S. Immigration and Customs Enforcement; DHS' U.S. Customs and Border Protection; DHS' U.S. Citizenship and Immigration Services; DOJ's Executive Office for Immigration Review; and DOS' Bureau of Consular Affairs.
The act required the integrated data system to be an interoperable component of the entry and exit data system. The act further required the Secretary to fully implement the interoperable electronic data system as specified in the Border Security Act. The act also required the Secretary and heads of other agencies that have databases or data systems that are linked to the entry and exit data system to establish policies and procedures for maintaining the entry and exit data system's accuracy and integrity and establish guidelines for collecting and removing data, among other things. The act also required the training of front line personnel with respect to the integrated system (as well as to the goals of the system).
In addition to the integration of the entry and exit data system with other databases and data systems, the act required the Secretary to develop and implement a plan to expedite the processing of registered travelers through a single registered traveler program that can be integrated into the broader automated biometric entry and exit data system.
With respect to maintaining accuracy and integrity of the system, the act required the following: (1) the establishment of policies and procedures for maintaining the entry and exit data system's accuracy and integrity; (2) the establishment of guidelines for collecting and removing data; (3) the training of training of personnel who are authorized to access information maintained in the databases and data system; and (4) the establishment of a clearinghouse within DHS to streamline the process through which one can seek corrections to inaccurate information.
In addition to the plan mentioned above, the act required the Secretary to submit several reports to Congress, including a report on the status of implementing the integrated databases and data systems as defined under current law; an individual and joint (with other relevant agency heads) status report on compliance with the act; and a report that describes DHS' progress and implementation of a single registered traveler program. The act authorized such sums as necessary for each fiscal year, FY2005 through FY2009, to carry out the provisions.
section_title: Selected Issues
paragraphs: While the Administration has seemingly gone to great lengths to clarify the processes involved with the US-VISIT program, many concerns have surfaced. Some have questioned the integration of US-VISIT with the VWP, while others have found the existence of too many potential exceptions problematic. Some observers have suggested that the program may not be in compliance with congressional mandates. Generally, the specific requirements and procedures that a traveler must abide by to enter the United States through the US-VISIT program are detailed in agency regulations.
subsections: section_title: Visa Waiver Program
paragraphs: The VWP, while statutorily distinct, is linked to US-VISIT's components and implementation in many respects. For example, VWP regulations for manifest requirements have now been merged with the electronic manifest requirements for all passengers arriving on commercial aircraft from foreign countries. With respect to biometrics, travelers entering the United States pursuant to the VWP are enrolled in US-VISIT starting September 30, 2004. Moreover, foreign nationals who participate in the VWP will not be admitted under the program on or after October 26, 2005, without a machine-readable, tamper-resistant passport that meets ICAO biometric standards for photographs, unless the passport has not expired and was issued prior to that date.
As previously discussed, the Administration in 2004 began to require VWP foreign nationals who enter the United States to enroll in US-VISIT due to the lack of biometrics in the participating countries' passports. It is not clear that if once the VWP participating countries meet the biometrics requirement whether the U.S. government will continue to require the foreign nationals to enroll in US-VISIT. Some have expressed concerns with respect to this, primarily due to the different type of technology that will be in the passports. According to DHS' Inspector General, "...the technology embedded in passports will be different from technology employed by US-VISIT. Until the two technologies for verifying a traveler's identity and admissibility are integrated, VWP countries should remain enrolled in US-VISIT."
section_title: New Documentary and Data Collection Requirements
paragraphs: The scope of §110 of IIRIRA as amended is much narrower than originally enacted since it does not require the development of a system that would record the entry and exit of every alien arriving and departing from the United States. Instead, §110 of IIRIRA as amended by the DMIA, requires that a system be developed to record alien arrivals and departures, without establishing additional documentary requirements. Nothing in the amended §110 of IIRIRA should be interpreted as requiring the Attorney General or the Secretary of State to collect new types of documents or data from aliens, particularly aliens who have had document requirements waived under §212(d)(4)(B) of the INA by the Attorney General and the Secretary of State acting jointly on the basis of reciprocity with respect to foreign contiguous territories or adjacent islands.
Nonetheless, IIRIRA §110 does not "reduce or curtail any authority of the Secretary of Homeland Security or the Secretary of State under any other provision of law" to require new documentary or data collection information. Thus, while §110 of IIRIRA restricts the Attorney General and the Secretary of State from imposing new documentary or data collection requirements upon aliens under §110 of IIRIRA, it does not reduce the authority of the Attorney General or the Secretary of State from developing new documentary or data collection requirements from other provisions of law.
DHS claims there is no conflict between the requirement for biometric identifiers and DMIA's prohibition on new documentary or data collection requirements. DHS supports its conclusion with the "no reduction in authority" clause of the DMIA, claiming the biometric requirements found in the Interim Final Rule are supported by statutory authority "outside the four corners of DMIA." For example, DHS cites §403(c) and §414 of the USA PATRIOT Act and §§ 302-303 of the Border Security Act, as laws passed after the DMIA that encourage and require DHS to develop and utilize a biometric technology for the implementation of the automated entry and exit data system. While these provisions do not appear to give the Secretary of DHS or DOS the explicit authority to promulgate new data collection or documentary requirements under §110 per se , the broad grant of authority in these provisions to implement an integrated entry-exit system that utilizes biometric technology, combined with the generous discretion that is often afforded agencies implementing congressionally mandated programs by courts, seemingly provides strong support for the use of biometric identifiers.
Other authority cited by DHS, includes INA §§ 214, 215 and 235. Of particular importance is INA §215 which allows the President to promulgate regulations for alien departure and arrival. The President pursuant to Executive Order 13323 delegated his authority to promulgate these regulations to the Secretary of DHS. This delegation, and its result—the Secretary's new authority to promulgate regulations for the entry and exit of aliens—would likely correct any apparent deficiency in the authority cited by DHS. Still, the fact that DHS claims that it may collect additional biometric data as the deployment of more comprehensive technologies becomes feasible may raise questions as to whether these new requirements are truly consistent with §110's mandate that no new documentary or data collection requirements be imposed.
section_title: Possible Documentary Exemptions and Exceptions 60
paragraphs: Under some circumstances not all the information required by US-VISIT must be submitted. For example, visa information may be omitted in the event a passenger is traveling pursuant to the VWP (though the VWP has its own requirements). Visa and/or passport requirements may be waived upon the joint determination of the Attorney General and the Secretary of State under 22 C.F.R. §41.2. Individuals from certain countries may also be exempt from providing a passport or visa under 8 C.F.R. 212.1.
With respect to biometrics, seventeen categories of individuals are exempt from providing this kind of information. Determining an exemption may become a highly complicated task for a potentially under-manned and untrained staff. While no particular nation is completely exempted from biometrics, there may be one exception that could provide the avenue for exempting very large numbers of aliens. Under 8 C.F.R. §235.1(d)(iv)(C), the Secretary of Homeland Security and the Secretary of State may jointly determine that a "class of aliens" are exempted from the biometric requirements. Though it is unclear from the regulations how broadly a "class of aliens" may be defined, case law demonstrates that the phrase has been accepted to include all aliens from certain nations. Moreover, this exception could potentially lead to a listing of persons similar to the listed individuals who are already exempted from the visa and passport requirements under 22 C.F.R §41.2 and 8 C.F.R. 212.1.
Notwithstanding US-VISIT's formal regulations and guidelines, applicants may be processed in a manner different than anticipated due to a number of reasons, some of which may include national security concerns, emergencies, and travel delays. For example, DHS reserves the right to require identifying information from any individual whom it has reason to believe may not be who he or she claims or feels is not entitled to enter. In addition, certain aliens whose presence in the United States warrants monitoring for national security reasons remain subject to the NSEERS special registration procedures. Mitigation strategies—to speed-up the screening process—have also been developed by DHS in the event immigration and customs processing are hampered by significant delays. The mitigation strategies have caused some controversy as some believe that if used, they could be a loophole for some foreign nationals to enter the United States.
section_title: US VISIT and Canadian and Mexican Nationals 65
paragraphs: The Canadian government has expressed strong opposition to implementation of an automated entry and exit data system at northern ports of entry. Notwithstanding, Canadian citizens are exempt from some of the US-VISIT program requirements. For example, Canadian nationals and some Canadian landed immigrants are not required to present a passport, and are often not required to obtain a visa. Moreover, Canadian nationals are generally not required to obtain an I-94 form if they are entering the United States temporarily for business or pleasure. Canadians who enter the United States for purposes other than business or pleasure (e.g., employment, trade and diplomatic activities, etc.) are issued an I-94 form but may be able to omit their passport number and visa information from the I-94 pursuant to 8 C.F.R. §212.1, if they have not visited outside the Western Hemisphere. Upon departure, the Canadian government collects the I-94 departure records for U.S. immigration officials.
With respect to biometrics, Canadians arriving at the designated air or sea port of entry must, in general, comply with the biometric requirements. However, those Canadian citizens who travel on temporary visits to the United States and who do not apply for admission pursuant to nonimmigrant visas do not have to supply the biometric information currently required by law. Finally, manifests are not required from aircraft or vessels arriving directly from Canada. Accordingly, a Canadian citizen who is exempt from the passport and visa requirements under 8 C.F.R. §212.1, has arrived in the United States on an aircraft originating in Canada (i.e., no manifest required by vessel), and intends to travel temporarily in the United States without applying for admission pursuant to nonimmigrant visas (i.e., no biometrics required) is exempted from the documentation requirements of the US-VISIT program; however, such an individual would still be subject to routine inspection by federal officials at the border. It is not clear, however, what documents would be examined to verify Canadian citizenship.
The Mexican government and some observers have long complained about the difference in treatment of its nationals at the border when compared to Canadian nationals. Mexican nationals applying for admission to the United States as visitors are required to obtain a visa or hold a Mexican Border Crossing Card, now referred to as the Mexican "laser visa" (for a comparison of the Mexican Laser Visa requirements with Canadian documentary requirements see Appendix D ). The laser visa is used by citizens of Mexico to gain short-term entry (up to six months) for business or tourism into the United States. It may be used for multiple entries and is good for 10 years. Mexican citizens can get a laser visa from the Department of State (DOS) Bureau of Consular Affairs if they are otherwise admissible as B-1 (business) or B-2 (tourism) nonimmigrants. Under existing regulations, a biometric characteristic of a bearer of a laser visa must be matched against the biometric on the laser visa before the bearer may be admitted. This requirement applies at all ports of entry, including land borders. If the individual intends to go 25 miles or further inland or stay longer than 30 days, they are also required to obtain a Form I-94. Upon departure, Mexican nationals who had to complete an I-94 form are to deposit them into boxes at ports of entry.
According to DHS regulations, Mexican nationals who present a laser visa at time of admission, who will stay within 25 miles of the border (75 miles if admitted in Arizona) and whose stay will be shorter than 30 days, are temporarily not subject to US-VISIT biometric data collection requirements. The Secretaries of DHS and State, pursuant to their regulatory authority in 8 C.F.R. parts 215.8(a)(2)(iii) and 235(d)(1)(iv)C) to jointly exempt classes of aliens from the biometric requirements of US-VISIT, have decided to temporarily exempt such short-term Mexican laser visa travelers. The Secretaries have determined that this class of aliens should be exempt because their biometric data has already been captured by DOS at the issuance of the laser visa and the photograph of the traveler can be compared to the facial appearance of the traveler upon admission. Those Mexican travelers who present a laser visa that intend to travel beyond the geographic restrictions or remain beyond the time limitations will be subject to US-VISIT biometric requirements if they apply for admission at a designated air, sea, or land port of entry.
section_title: Implementation Issues
paragraphs: In its most basic form US-VISIT is an automated entry and exit data system that tracks the arrival and departure of most foreign nationals to and from the United States. The 2001 terrorist attacks, however, have led many to view US-VISIT as more than a tracking system. Although not formally described as the following, some have pegged US-VISIT as a travel log, a mechanism to collect data, a risk assessment tool, a mechanism to reduce document fraud, and a terrorist and criminal watch list.
Many observers have expressed concern with the implementation of US-VISIT. Observers fear that the full implementation of US-VISIT will cause massive delays at U.S. ports of entry, primarily at land ports of entry. Some believe that the cost of implementing such a system would outweigh the benefits. Others expressed concern about the inadequacy of current infrastructure, and the lack of consensus with respect to the type of biometric technology that should be used in travel documents. Many continue to question the purpose of such a system. Some argue that resources should be directed at immigration interior enforcement, rather than on an expensive system whose capability is not fully known.
Some may also argue that the implementation of US-VISIT is not in compliance with its statutory deadlines. For example, while the entry system appears to be in place at all ports of entry, the exit process is not fully developed. Some might argue that the lack of an exit system at all ports of entry is contrary to the program's authorizing language, which requires the Secretary of DHS to "fully implement the integrated entry and exit data system" by December 31, 2005 [emphasis added]. Others, however, might contend that the language is ambiguous and that full implementation of exit features at some ports of entry is sufficient to meet the statute's mandate. A number of issues may complicate this issue and the actual time line for implementation, including the use of pilot programs, new or varying technologies between ports, and funding levels.
subsections: section_title: Infrastructure and Facility Needs at the Border
paragraphs: Many maintain that the successful development of an automated entry and exit data system may require the United States and quite possibly its neighbors (Canada and Mexico) to expand infrastructure at land border crossings. The current infrastructure at most U.S. ports of entry reportedly is not sufficient to accommodate the demands of an automated entry and exit data system. For example, according to some observers, at many land ports of entry additional lanes may be necessary to accommodate the number of individuals seeking entry into the United States who will need to be processed through the system. Moreover, in order to record the departure of every alien leaving the United States through a land port entry, there needs to be a "port of exit" that has sufficient lanes, staff and resources. Additionally, the sending or receiving countries (i.e., Canada and Mexico) may not have the same number of lanes or the necessary infrastructure to create additional lanes that would accommodate the amount of traffic entering and leaving the country via a United States port of entry. Some contend that this could lead to significant delays as travelers try to make their way through ports of entry. Others assert that the cost of expanding the infrastructure would be great.
With respect to air and sea ports of entry, concerns similar to those about land ports of entry have been expressed. For example, securing adequate space and facilities may prove challenging at many air and sea ports of entry, particularly for the exit process. Moreover, in many instances passengers are inspected on board vessels because of inadequate or nonexistent inspection areas at sea ports of entry.
With respect to the northern border, many businesses as well as the Canadian government fear that the implementation of such a system would clog the border. There have been reports that the Canadian government may introduce a plan that would have Canadian Customs officials collect exit information on non-citizens and pass it on to United States officials. Such a plan could further aid the United States in identifying non-citizens who may enter the country. Moreover, as the United States begins to implement the US-VISIT program, the demand for improved infrastructure may be critical for its development. It is unclear if Canada will facilitate such a system by extending its infrastructure at the relevant border crossings.
section_title: Interior Enforcement
paragraphs: One of the purposes of the US-VISIT program is to track nonimmigrants who overstay the terms of their visas. It is not clear if the Bureau of Immigration and Customs Enforcement (ICE) will have adequate resources to track down those who overstay their visas once the US-VISIT program is implemented. Many have argued that enforcement of immigration law within the interior of the country has lacked sufficient resources. Prior to the September 11, 2001 terrorist attacks, the Immigration and Nationalization Service (INS) had less than 2,000 immigration agents to enforce immigration laws within the United States; and during a 2002 hearing, the former INS Commissioner, James Ziglar, testified that the terrorist attacks prompted the INS to reassign many investigators to work on terrorism investigations. Although that number has not changed since the terrorist attacks, the merging of the interior enforcement function of the former INS and the investigative arm of the U.S. Customs Service (Customs) within the Bureau of Immigration and Customs Enforcement (ICE) under the Directorate of Border and Transportation Security in the Department of Homeland Security (DHS) has brought the number of agents to over 5,500.
Although the number of interior enforcement agents has doubled since the consolidation of the former INS and Customs, many continue to express concerns that the number is insufficient to adequately enforce immigration laws. Moreover, although the consolidation increased the number of interior enforcement agents, Customs needs to continue to carry out its interior enforcement missions of stemming the flow of illicit drugs and deterring money laundering, among other things. These critics argue that if the intent of the entry and exit system is to document nonimmigrants who overstay their visas, then more resources should be directed at interior enforcement and integrating existing immigration databases rather than on developing and implementing a new system.
section_title: Privacy Issues
paragraphs: The US-VISIT Program's Increment I Privacy Impact Assessment was made available to the public on December 18, 2003. Many observers stress the importance of having individual's privacy rights protected due to the potential for unauthorized use of personal information. While some observers maintain that current law requires a privacy impact assessment before developing and purchasing new technology that will collect or store personal information electronically, the Administration maintains that it is using existing databases during the first phase of the program's implementation. Some observers, however, view the introduction of biometrics as evidence that the Administration is using new technology. The Administration published a privacy impact assessment prior to the actual implementation of the program. And, according to the National Institutes of Standards and Technology (NIST) in its report to Congress:
... the biometric data that the U.S. government would collect from foreign nationals ... disclose a limited amount of personal information ... and do not raise significant privacy concerns. Specifically, the personal information disclosed by the biometric data relates to the identity.... Facial photographs do not disclose information that the person does not routinely disclose to the general public, and their use to verify identity obviously raises no serious privacy concerns. Moreover, fingerprints disclose very little other information about a person other than the person's identity. Accordingly, their use as a biometric does not raise the sorts of privacy concerns that might arise from the use of other biometrics that, in addition to verifying identity, could also conceivably disclose secondary (e.g., medical, health-related) information).
section_title: Information Technology Interoperability
paragraphs: The USA PATRIOT Act called for the automated entry and exit data system to interface with federal law enforcement databases. It also called for the integration of IDENT and the Federal Bureau of Investigation's (FBI) Integrated Automated Fingerprint Identification System (IAFIS). Additionally, the USA PATRIOT Act along with the Border Security Act required the former INS to integrate all of its databases. Several GAO studies criticized the former INS for having antiquated databases and failing to integrate its system. Reportedly, the Administration is currently using the IDENT system to capture two, flat fingerprints instead of 10 fingerprints. While the two fingerprint system is sufficient for identifying a person, some contend that two fingerprints may not be sufficient to return a match from the Federal Bureau of Investigation's ten fingerprint system.
Critical to the success of border security is the ability to process information in real time quickly enough to accommodate the pace and volume of work. Without information obtained in real time, there is a potential for a backlog to occur. The issue of making real time information available to the immigration inspectors processing foreign nationals seeking entry at U.S. ports of entry is highlighted at many of the nation's sea ports of entry. As previously mentioned, many inspections of travelers seeking entry into the United States at a sea port of entry occurs on board the vessel. Immigration inspectors use the Portable Automated Lookout System (PALS), which is a laptop computer that contains a CD-ROM that is updated monthly and contains lookout information on individuals who are deemed inadmissible to the United States. Although some may view this method as problematic, primarily due to the potential for the information to be outdated, sea vessels like their air carrier counterparts, are required under law to submit passenger manifests in advance to their arrival at a U.S. port of entry. Submitting the passenger information in advance of arrival, allows the immigration inspector to query real time databases.
section_title: Databases
paragraphs: While some observers question the ability of US-VISIT to carry out its mission, many agree that the program's usefulness will depend, in large part, on the quality and accuracy of the various watchlists that are integrated with the immigration databases that comprise US-VISIT. It is unclear, however, how many watchlists are included in US-VISIT and whether they are integrated.
In addition to the first hand knowledge immigration inspectors must have, they also must be familiar with the numerous databases. Moreover, DOS and DHS use IDENT to store the biometrics for those foreign national travelers who are subject to the US-VISIT program requirements. Some contend that the IDENT database, which contains recidivism and lookout data on foreign nationals who have previously been apprehended, should not be used to store the biometrics of admissible foreign nationals. They argue that in addition to the number of databases that are accessed through the US-VISIT program, the inclusion of biometrics on inadmissible foreign nationals with those who are admissible in IDENT may confuse the inspector.
section_title: Training Needs and Resources
paragraphs: Prior to the transfer of immigration and customs functions to DHS, the agencies (INS and the U.S. Customs Service) cross-trained their inspectors to perform primary inspections. Upon referral to secondary inspections, however, a more experienced inspector with the designated agency would perform the inspection (i.e., an immigration matter would be referred to an immigration inspector and a customs matter would be referred to a customs inspector). Some have expressed concern that the discretion given to immigration inspectors and the complexity of immigration law requires substantial training. Moreover, inspectors must have knowledge of the various documents and databases that are used to determine admissibility. Inspectors at U.S. ports of entry must make an immediate determination that an undocumented alien, or someone who has questionable documents, should be excluded or detained for further processing by an immigration court.
Now that DHS has implemented its "one face at the border" initiative, some have questioned the adequacy of training that is provided to the non-immigration inspectors. Observers view the US-VISIT program as one more layer of technology that must be mastered by the immigration inspector. While some contend that the first increment of the program has not introduced new technology, others contend that inspectors who may not already be familiar with current immigration databases are now expected to be competent with the US-VISIT database.
section_title: Facilitation of Travel and Commerce
paragraphs: Many contend that programs such as NEXUS, the Secure Electronic Network for Travelers Rapid Inspection (SENTRI) and the Free and Secure Trade (FAST) program that facilitate the speedy passage of low risk, frequent travelers and commerce are essential. The number of travelers who took advantage of automated inspections has risen over the recent years, peaking to 2.6 million in FY2002. It is not clear how these programs will be incorporated into US-VISIT; and how participants of these programs will be vetted through the system.
section_title: Feasibility of Implementation and Policy Questions
paragraphs: Many have questioned the feasibility of implementing the US-VISIT program. While many observers question the ability of the administration to meet the congressionally mandated time line, others question the financial burden of implementing such a system. Some contend that until the limits and capabilities of US-VISIT are determined, it will be difficult to assess its progress towards its mission. Proponents, however, point to the success stories that have been reported since the implementation of US-VISIT as providing proof that the program is achieving its mission.
Appendix A. Summary of Authority for Biometric Identifiers in Travel Documents
DHS maintains that the requirement that foreign nationals provide biometric identifiers when they seek admission to the United States is apparently supported by the Department's broad authority to inspect aliens contained in the Immigration and Nationality Act (INA) §235 (Inspection by Immigration Officers). DHS also claims various other provisions in the INA support the use of biometric identifiers, including §212 (grounds of inadmissibility); §217 (requirements for the VWP); §231 (the electronic passenger manifest requirements); §237 (grounds of removability); and §286(q) in combination with INA §235 and §404 of the Border Security Act (authority for alternative inspection services).
DHS also cites INA §215 as a provision that can require foreign nationals to provide biometric identifiers when they seek admission to the U.S. Section 215(a) of the INA allows the President to regulate the arrival and departure of aliens. On January 2, 2004, however, President Bush signed an Executive Order titled Assignment of Functions Relating to Arrivals in the Departures From the United States, delegating his authority to promulgate regulations governing the departure of aliens to the Secretary of DHS. In essence, under §215 and with this new delegation of authority, the Secretary of Homeland Security, with the concurrence of the Secretary of State, has the authority to issue new rules and regulations which may require certain aliens to provide biometric identifiers.
This delegation became increasingly significant in light of the Interim Final Rule promulgated by DHS on January 5, 2004, which allows the Secretary of DHS to require certain aliens to provide finger prints, photographs, or other biometric identifiers upon arrival in or departure from certain air and sea ports in the U.S. Initially, this rule only applies to nonimmigrant visa-holders who travel through the designated air and sea ports listed in DHS Regulations.
In general, the Interim Final Rule amends portions of 8 C.F.R. §§ 214.1, 215.8, and 235.1 to include language for biometric requirements. For example, §235.1(d), which provides for the scope of the examination of persons applying for admission, was amended to provide the Secretary of DHS with the authority to now require finger prints, photographs or other biometric identifiers during the inspection process from nonimmigrant aliens seeking admission pursuant to nonimmigrant visas. In addition, under amended §235.1(d), the failure of an applicant for admission to comply with the biometric requirements may result in a determination of "inadmissibility" under INA 212(a)(7). Section 235.1 was also amended to exclude a number of categories of travelers. Section 235.1(f) was amended to clarify that all nonimmigrant aliens will be issued the Form I-94, Arrival Departure Record, regardless of whether they come through air, sea, or land ports of entry (unless otherwise exempted).
Under amended §214.1(a), which addresses requirements for admission, extension, and maintenance of status, an alien's admission is now conditioned on compliance with the entry-exit examination process described by 8 C.F.R. §235.1, if applicable to the nonimmigrant alien. Furthermore, if the alien is required to provide biometrics and other information upon departure pursuant to 8 C.F.R. 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.
8 C.F.R. §215.8 was created to provide the Secretary of Homeland Security the right to establish pilot programs at up to 15 air or sea ports of entry (to be designated through further 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. DHS published a regulation on August 3, 2004, to extend the departure capability of US-VISIT to 15 air and seaports.
Appendix B. Electronic Manifest Requirements
Appendix C. Visa Holders That Are Exempt from the Fingerprinting and Photographing Requirements Under DHS Regulation 8 C.F.R. §235.1
Appendix D. Comparison of Current Law Deadlines and the Administration's Implementation
Appendix E. Comparison of the Mexican Laser Visa Requirements with Canadian Documentary Requirements