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Proposed Rule Requires Increase in Biographical Collection with No Proof of Increased Protection

On September 11, 2020, the Department of Homeland Security (“DHS”) released a proposed rule that will dramatically expand the biographical information collected from individuals involved in submitting immigration petitions and applications. Comments on the rule are due by October 13, 2020.

I. Proposed Changes

The proposed rule makes changes in three primary areas:

  1. Drastically expands the types of biographical information that will be taken;

  2. Expands who must provide biographical information; and

  3. Removes protections for children and victims.

The changes in each of these areas are so expansive that it is clear the purpose of the rule is to create an additional hurdle for immigrants trying to obtain legal status.

  • Expanding Types of Biographical Information Collected

Under current immigration laws, an individual who is the applicant, derivative, or beneficiary of an immigration petition or application must provide biographical information to U.S. Citizenship and Immigration Services (“USCIS”) as a part of the application process. The current information collected from the individual is:

a) Copies of Passports;

b) Birth Certificates;

c) Fingerprints; and

d) Photographs.

The current information collected allows USCIS to obtain personal information such as travel history, criminal records, and documents related to the individual’s immigration history.

The proposed rule dramatically increases the type of information that will be collected from individual to include the following:

a) Palm Prints;

b) Photographs to use for Facial Recognition Scanning;

c) Voice Prints;

d) Iris Scans; and

e) DNA samples.

This will be a drastic increase in the collection of information. DHS states the purpose of these increases are to prevent “imposters” from being granted immigration benefits.

However, the proposed rule provides no data to show that “imposters” regularly obtain immigration benefits under the current rule.

  • Expansion of Who Provides Biographical Information

Under the current rule, the following individuals who are over 14 years old must provide biographical information to USCIS as part of the process of obtaining an immigration benefit:

a) applicants;

b) beneficiaries; and

c) derivatives.

Under the proposed rule, the individuals that must provide biographical information expands to include:

Anyone who files or is associated with these requests including, U.S. Citizens and without regard to age.”

Therefore, not only will the person who is receiving the immigration benefit have to provide such expansive amount of personal biographical information to the government, but U.S. Citizens who are petitioning for their family members will have to provide this information as well. The new rule also removes the exception for anyone under the age of 14 years old, and requires anyone, no matter their age, to submit biographical information.

Additionally, under the current rule, an individual provides their biographical information only when they are in process of obtaining an immigration benefit. The new rule will require that noncitizens continue submitting biometrics on a regular basis until they become U.S. citizens. Requiring individuals to constantly provide personal information such as voice analysis on a regular basis is a serious intrusion into the privacy of everyone who will be subject to this new rule.

  • Removing Protections for Children Who Are Victims of Domestic Violence

Under the current rules, when a child under the age of 14 years old is abused by a parent who is U.S. Citizen or Lawful Permanent Resident, he or she can apply for an immigration benefit as victim of abuse. In the application process, the child is exempted from having to provide evidence to prove his or her good moral character. The reason for such an exemption is to enable children of domestic abuse to feel free to come forward, and to obtain immigration benefits quicker.

The proposed rule eliminates these protections and requires that anyone of any age applying for an immigration benefit as a victim of domestic abuse must provide evidence of their good moral character.

The proposed rule states that its reasoning for such changes is to prevent human trafficking of children. However, it is not clear how the rule will achieve this goal, and the rule only adds to the amount of evidence the young child must provide to obtain the assistance needed due to being a victim of such tracking and/or violence.

II. Issues With the Proposed Rule

1) Costs

Because the proposed changes will result in more information being collected from more people, it is unsurprisingly that the costs associated will be immense. Specifically, the proposed rule is predicted to cost $300 million dollars annually.

This additional annual expense comes at the same time USCIS is struggling to pay its employees. At the end of August, USCIS released memos stating that it would be forced to furlough over 13,000 employees nationally due to a budget shortfall. Ultimately, USCIS was able to avoid the national furlough, but some local USCIS offices still had to furlough employees due to financial issues. USCIS’ struggles to pay its employees stands in stark, unexplainable contrast to DHS’ proposed rule that will cost the same agency over $300 million dollars a year to implement.

2) Backlog in Adjudication

Currently, there is a historical backlog in the time it takes for immigration cases to be adjudicated. Individuals trying to follow our immigration laws are already struggling due to the hardships that are placed on them while they wait years for USCIS to process their immigration cases.

The proposed rule will slow cases down even further due to the additional processing steps. In order for an immigration case to be adjudicated, the individual must first have their biometrics taken, after receiving an appointment notice from USCIS telling them the date and time for their biometric appointment. Under the proposed rule, the number of individuals who must have their biometrics taken will increase from 3.9 million to 6.07 million people. This increase in the numbers of individuals who must have their biometrics taken means that it will take longer for USCIS to schedule biometric appointments, which ultimately will cause adjudication of the cases to take longer.

Individuals attempting to follow our immigration laws already find it very difficult to wait while their immigration cases are pending. Many times, these individuals are fleeing violent countries, and are here in the U.S. with no ability to work or are stuck in violent situations in their current homes. Prolonged adjudication times means that it will take longer for these people to obtain the lawful status they need to work and live safely in the United States.

Any rule or policy change that causes a longer adjudication backlog hurts the U.S. Immigration system by making it more difficult for individuals to obtain immigration benefits, and in turn makes it more likely individuals will stop applying for such options because of the difficulties associated with backlogs.

3) No Evidence Such Changes are Needed

Under the current rules, individuals already provide extensive documentation proving their identity with every application. Any discrepancies in different names or dates on the documents must be explained with additional certified government documents. After submitting these documents, USCIS oftentimes sends “Request for Evidence” asking for additional government documents to ensure all the individual’s identity documents are true and correct.

In addition to government documents, the individual also must present themselves at a USCIS office with identification documents to have photographs and fingerprints taken. These photos and fingerprints are sent through multiple systems that perform background checks on these individuals. These background checks inform USCIS: when and how many times the individual has entered the United States; if the individual has applied for an immigration benefit in the past; and if the individual has been charged with any crime in the United States.

The proposed rule provides no data on how the additional information collected will provide meaningful information to prevent “imposters” from obtaining immigration benefits at a higher rate than they are with the data already being collected. Therefore, this increase in biographical information collection is not worth the inevitable increase in cost

and adjudication times.

III. Summary

This proposed rule is another in a series of changes that has been made under the current administration that is draped in the false narrative of providing extra protection to U.S. citizens while the actual purpose of the change is create additional hurdles to individual seeking to obtain immigration benefits under our immigration laws.

The public has until October 13, 2020 to make comments on this rule. After that date, DHS will review and consider the comments prior to releasing the rule. We will make sure to keep you updated on any changes that are made in the future.

If you have questions on how this rule can impact your immigration case, or any immigration question at all, please contact Chapman Law Firm to schedule an appointment with one of our attorneys.




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