U.S. Visitor and Immigrant Status Indicator Technology (US-VISIT) Program
CRS Report for Congress
U.S. Visitor and Immigrant Status Indicator
Technology (US-VISIT) Program
Updated January 26, 2006
Lisa M. Seghetti
Specialist in Social Legislation
Domestic Social Policy Division
Stephen R. Viña
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
U.S. Visitor and Immigrant Status Indicator Technology
(US-VISIT) Program
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.
Contents
In troduction ......................................................1
Volume of Entries.............................................2
U.S. Ports ...................................................2
The Arrival/Departure Record, Form I-94...........................2
Exit Control..................................................3
Statutory History and Other Related Laws..............................3
Mandate to Create an Automated Entry and Exit Data System...........4
Significant Modifications in the Automated Entry and Exit Data System..5
Related Provisions.............................................5
Enhancements to the Automated Entry and Exit Data System...........6
Related Requirements..........................................7
Machine-Readable Travel Documents..........................7
Electronic Passenger Manifest................................7
Requirement for Biometric Identifiers..............................8
Technology Standards......................................8
Status of US-VISIT ................................................9
Implementation Phases.........................................9
Current Operations............................................12
Electronic Manifest Requirements................................13
Visa Waiver Program..........................................14
The 9/11 Commission Report.......................................15
Legislation in the 108th Congress.....................................15
The Intelligence Reform and Terrorism Prevention Act of 2004
(P.L. 108-458)...........................................15
Selected Issues...................................................17
Visa Waiver Program......................................17
New Documentary and Data Collection Requirements............18
Possible Documentary Exemptions and Exceptions..............19
US VISIT and Canadian and Mexican Nationals................20
Implementation Issues.........................................23
Infrastructure and Facility Needs at the Border..................23
Interior Enforcement......................................24
Privacy Issues............................................25
Information Technology Interoperability.......................25
Databases ...............................................26
Training Needs and Resources...............................27
Facilitation of Travel and Commerce.........................27
Feasibility of Implementation and Policy Questions..............27
Appendix I: Summary of Authority for Biometric Identifiers in
Travel Documents............................................28
Appendix II: Electronic Manifest Requirements........................30
Appendix III: Visa Holders That Are Exempt from the
Fingerprinting and Photographing Requirements Under
DHS Regulation 8 C.F.R. §235.1................................31
Appendix IV: Comparison of Current Law Deadlines and
the Administration’s Implementation.............................32
Appendix V: Comparison of the Mexican Laser Visa Requirements
with Canadian Documentary Requirements.........................35
U.S. Visitor and Immigrant Status Indicator
Technology (US-VISIT) Program
Introduction
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).1 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 Status2
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) program3 and the
1 §110 of IIRIRA is located in Division C of the Omnibus Consolidated Appropriations Act
of FY1997.
2 An October 2003 Department of Homeland Security Press Release refers to the program
as the United States Visitor and Immigrant Status Indicator Technology. In May 2003, Asa
Hutchinson, Under Secretary of the Border and Transportation Security Division in the
Department of Homeland Security had announced the Administration’s intent to rename the
automated entry and exit data system the U.S. Visitor and Immigrant Status Indication
Technology Program or US-VISIT. See U.S. Department of State, “Ridge Announces New
U.S. Entry-Exit System,” press release, Apr. 29, 2003, at [http://usinfo.state.gov/
regional/nea/sasia/ins/texts.htm]. The terms US-VISIT program and automated entry and
exit data system will be used interchangeably throughout this report.
3 For additional information on NSEERS, see CRS Report RL31570, Immigration Alien
Registration, by Andorra Bruno.
Student and Exchange Visitor Information System (SEVIS) program,4 — which
reportedly will be incorporated into the automated entry and exit data system.
Volume of Entries
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.
U.S. Ports
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.
The Arrival/Departure Record, Form I-94
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
4 For additional information on SEVIS, see CRS Report RL32188, Monitoring Foreign
Students in the United States: The Student and Exchange Visitor Information System, by
Alison Siskin.
contains information that is later keyed into the Nonimmigrant Information System
(NIIS ). 5
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.6
Exit Control
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.7 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).
Statutory History and Other Related Laws
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-
!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);
5 NIIS provides limited data on the arrivals and departures of non-immigrants admitted for
short visits such as those individuals traveling for pleasure or business. NIIS interfaces with
several other immigration databases.
6 8 U.S.C. 1365a(b).
7 According to the Administration, the exit component is at 14 air and sea ports.
!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.
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.
Mandate to Create an Automated Entry and Exit Data System
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, 1998.8 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.
8 P.L. 104-208, Div. C, Title I, §110 (formally codified at 8 U.S.C. §1221 note) (currently
codified at 8 U.S.C. §1365a).
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
pl ace. 9
Significant Modifications in the Automated Entry and Exit
Data System
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.
Related Provisions
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 under10
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 the11
VWP must have machine-readable passports. It has been stipulated by DHS that
9 P.L. 105-277, Tit. I (Dept. of Justice), §116, 112 Stat. 2681-68.
10 P.L. 106-396, §205 (codified at 8 U.S.C. §1187).
11 The USA Patriot Act and the Border Security Act added and modified various
requirements in the Visa Waiver Permanent Program Act. For a more thorough discussion
on the Visa Waiver Program, as amended, see CRS Report RL32221, Visa Waiver Program,
by Alison Siskin.
the VWP arrival/departure information has effectively been incorporated into the
broader entry-exit system component mandated by the DMIA.12
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).
Enhancements to the Automated Entry and Exit Data
System 13
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.14 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.15 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 compliance16
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
12 Carrier Arrival and Departure Electronic Manifest Requirements, 68 Federal Register
13 For additional information on immigration-related border security provisions in the USA
PATRIOT Act and the Border Security Act, see CRS Report RL31727, Border Security:th
Immigration Issues in the 108 Congress, by Lisa M. Seghetti.
14 According to the act, the Attorney General and the Secretary of State were to develop and
certify a technology standard through the National Institute of Standards and Technology
(NIST) and in consultation with the Secretary of the Treasury, federal law enforcement and
intelligence agencies, and the Congress.
15 Ibid., at §414.
16 Section 403(c) of the USA PATRIOT Act requires the development and certification of
a technology standard that can be used to verify the identity of persons (1) applying for a
U.S. visa or (2) seeking entry into the United States pursuant to a visa.
the intelligence community databases in order to obtain relevant information to make
visa and admissibility determinations.17
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 108th Congress” section.
Related Requirements
Machine-Readable Travel Documents. 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).18 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,
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 four20
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.
Electronic Passenger Manifest. The Border Security Act required airline
carriers to provide the Attorney General with electronic passenger manifests before
17 The interoperable data system is also known as Chimera.
18 In May 2003, ICAO finalized standards for biometric identifiers, which asserted that facial
recognition is the globally interoperable biometric for machine readable documents with
respect to identifying a person.
19 Border Crossing Cards are issued to Mexican nationals under specified conditions, see
discussion below.
20 The act also required that an additional language algorithm be implemented annually for
three years following the implementation of the highest priority languages.
arriving in or departing from the United States and repealed a provision that required
airport inspections to be completed within 45 minutes of arrival.21
Requirement for Biometric Identifiers22
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.
Technology Standards. 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 I for a
21 The Aviation and Transportation Security Act (P.L. 107-71) also required the electronic
transmission of passenger manifests prior to an aircraft or vessel’s arrival at a U.S. port of
entry.
22 The US-VISIT program incorporates the use of biometric technology in travel documents
to track foreign visitors moving through the nation’s air, land, and sea points of entry. A
biometric identifier is a physical characteristic or other attribute unique to an individual
(such as a fingerprint, a facial photograph or an iris scan) that can be collected, stored, and
used to verify the claimed identity of a person. To verify identity, a similar physical
characteristic or attribute is taken from the person who presents himself and it is compared
against the previously collected identifier.
discussion on the authority and implementation of the biometric identifier
requirements). 23
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,24 to
have a passport or other combination of documents by January 1, 2008.
Status of US-VISIT
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 from25
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.26
Implementation Phases
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
23 The Border Security Act also requires the installation of biometric identifier readers and
scanners at all ports of entry by Oct. 26, 2004. It requires that the biometric data readers and
scanners be accurate according to domestic and international standards and that they be able
to authenticate documents.
24 Under §212(d)(4)(B) of the INA.
25 See generally, 8 U.S.C. §§1187, 1365a and note, 1379, 1731-31.
26 DHS currently reports the following entities to be key participants in the implementation
of US-VISIT: The Departments of State, Transportation, Justice, and Commerce, the
General Services Administration, the CIA, other countries, state and local law enforcement
and within the DHS — the Bureau of Immigration and Customs Enforcement, the Science
and Technology Directorate, the Bureau of Customs and Border Protection, the
Transportation and Security Administration, the U.S. Coast Guard, the Federal Law
Enforcement Training Center, the Citizenship and Immigration Service, and the Data
Management Improvement Act Taskforce.
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.”27 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 ....”28
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.29 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.30 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.31 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.32
27 GAO Report GAO-03-563, “Information Technology: Homeland Security Needs to
Improve Entry Exit System Expenditure Planning,” June 2003.
28 Ibid.
29 Interim Final Rule, Implementation of the United States Visitor and Immigrant Status
Indicator Technology Program (“US-VISIT”); Biometric Requirements, 69 Federal Register
30 Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United States Visitor and
Immigrant Status Indicator Technology System, 69 Federal Register 482, (Jan. 5, 2004).
31 Notice to Aliens Included in the United States Visitor and Immigrant Status Indicator
Technology System (US-VISIT), 69 Federal Register 46556 (Aug. 3, 2004). The airports
added were: Newark International; O’Hare International; William B. Hartsfield
International; Philadelphia International; Dallas/Fort Worth International; Detroit
Metropolitan Wayne County; Agana International Airport, Guam; McCarren International
Airport, Las Vegas; Luis Munoz Marin International in San Juan, Puerto Rico; Phoenix Sky
Harbor International; San Francisco International; and Denver International. The seaport
added was Los Angeles, California (including San Pedro and Long Beach, California).
32 Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United States Visitor and
Immigrant Status Indicator Technology System (US-VISIT), 69 Federal Register 51695
(Aug. 20, 2004) (adding: Albany International Airport, New York; St. Petersburg/Clearwater
International Airport, Florida; Port Everglades seaport, Florida; Andrews Air Force Base,
(continued...)
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.33 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.34 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.35 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, 2004.36 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.37
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).38 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.
32 (...continued)
Maryland; New York City seaport, New York; and Port Canaveral, Terminal 10, Florida);
(eliminating Alfred Whitted Airport in St. Petersburg, Florida and the seaport in
Jacksonville, Florida); and (exchanging Agana International Airport, Guam, and McCarren
International Airport, Las Vegas, for Seattle/Tacoma International Airport and Ft.
Lauderdale/Hollywood Airport, Florida).
33 Interim Final Rule, Authority to Collect Biometric Data From Additional Travelers and
Expansion to the 50 Most Highly Trafficked Land Border Ports of Entry, 69 Federal
Register 53318 (Aug. 31, 2004).
34 Originally, the provision only allowed exit pilot programs to be established at the 15 air
and sea ports.
35 69 Federal Register 53318, 53321.
36 Notice to Aliens Included in the United States Visitor and Immigrant Status Indicator
Technology System (US-VISIT), 69 Federal Register 64964 (Nov. 9, 2004).
37 Notice on Automatic Identification of Certain Nonimmigrants Exiting the United States
at Select Land Border Ports-of-Entry, 70 Federal Register 44934 (Aug. 4, 2005). DHS will
begin issuing RFID embedded Forms I-94 or Forms I-94W on or around August 4, 2005, at
the following land border ports-of-entry crossing locations: Pacific Highway, Washington;
Peace Arch, Washington; Alexandria Bay, New York; Nogales East, Arizona;
Mariposa-Nogales West, Arizona.
38 Notice to Aliens Included in the United States Visitor and Immigrant Status Indicator
Technology System (US-VISIT), 70 Federal Register 54398 (Sept. 14, 2005).
Current Operations
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.39 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).40 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.41
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.
39 U.S. consular officers overseas also enroll foreign nationals in US-VISIT at the time of
issuance of a new visa.
40 IDENT was piloted in 1994 and has been used by border patrol agents (CBP) and ICE
agents to more positively identify aliens that are apprehended along the border and in the
interior of the country. Immigration inspectors use IDENT during primary inspections and
as a part of the US — VISIT program to check the admissibility of foreign nationals seeking
entry to the United States.
41 Reportedly, DHS has a pilot program in place at several land ports of entry. The pilot
program tests radio frequency identification (RFID) technology to record the entries of
selected foreign nationals who are issued a Form I-94. See
[http://www.dhs.gov/interweb/assetlibrary/USVISIT_RFIDFactSheet.pdf], accessed on
January 26, 2006.
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.42 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.43 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 III). 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.
Electronic Manifest Requirements
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) for44
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
42 69 Federal Register 468, 470.
43 69 Federal Register 53318.
44 Current law already requires that passenger manifests be submitted electronically prior
to an aircraft or vessel’s arrival at a U.S. port of entry. Section 402 of P.L. 107-173 and
§115 of P.L. 107-71.
have identified the aliens that need to be scrutinized more closely or that may be
inadmissible.45
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 II). 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. §231.2,46
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 United47
States directly from Canada, or departing to Canada.
Visa Waiver Program
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.
45 69 Federal Register 468, 471.
46 On Jan. 3, 2003, DOJ proposed a rule that would require commercial carriers transporting
any person by air to any port within the U.S. from any place outside the U.S. to submit an
electronic arrival passenger manifest to federal officials no later than 15 minutes after the
flight departs from the last foreign port or place and for departure manifest, no later than 15
minutes before the flight or vessel has departed the U.S. See Manifest Requirements Under
Section 231 of the act, 68 Federal Register 292, 294 (Jan. 3, 2003).
47 8 C.F.R. §§231.1 (Arrival manifest for passengers) and 231.2 (Departure Manifest for
passengers).
The 9/11 Commission Report
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.”48 The 9/11 Commission published its report49
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).50
Legislation in the 108th Congress
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.51 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.
The Intelligence Reform and Terrorism
Prevention Act of 2004 (P.L. 108-458)
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
48 The commission was established pursuant to P.L. 107-306.
49 A staff report, titled “9/11 and Terrorist Travel” was released in Aug. 2004
50 See [http://www.9-11commission.gov/].
51 Registered traveler programs include NEXUS and Secure Electronic Network for
Travelers’ Rapid Inspection (SENTRI).
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.
Selected Issues
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.
Visa Waiver Program. 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.52 With respect to biometrics, travelers entering the United States pursuant
52 Previously, the elements required to be submitted by VWP passengers in support of the
entry-exit system mandated by 8 C.F.R. §217.7 had been different from a carrier’s obligation
to submit arrival and departure manifests under US-VISIT. DHS claimed, nonetheless, that
the VWP elements had effectively been included in the general electronic manifest
(continued...)
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.53
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.”54
New Documentary and Data Collection Requirements. 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 or55
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 provision56
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
52 (...continued)
requirements. The programs were officially combined pursuant to, Final Rule, Electronic
Transmission of Passenger and Crew Manifests for Vessels and Aircraft, 70 Federal
Register 17820 (Apr. 7, 2005).
53 8 U.S.C. §1732(c)(2). The deadline was originally Oct. 26, 2004, but was extended a year
by P.L. 108-299.
54 DHS, Office of Inspector General, Implementation of the United States Visitor and
Immigrant Status Indicator Technology Program at Land Ports of Entry, OIG-05-11, Feb.
55 In addition, §110 does not permit the Attorney General or the Secretary of State to require
documents or data from aliens that are inconsistent with the North American Free Trade
Agreement.
56 8 U.S.C. 1365a(c)(2).
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.57
DHS claims there is no conflict between the requirement for biometric
identifiers and DMIA’s prohibition on new documentary or data collection
requirements.58 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.”59 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.
Possible Documentary Exemptions and Exceptions.60 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
57 Congressional Record, daily edition, vol. 146, (May 23, 2000), pp. H3570-H3571.
58 69 Federal Register 468, 475.
59 Ibid.
60 For a fuller discussion on documentary exemptions and exceptions, see CRS
Congressional Distribution Memorandum, Waiving the Documentary Requirements for
Visas and Passports to Enter the United States, by Ruth E. Wasem and Andorra Bruno, Oct.
countries may also be exempt from providing a passport or visa under 8 C.F.R.
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.61 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.62 In addition, certain aliens whose presence in the United
States warrants monitoring for national security reasons remain subject to the
NSEERS special registration procedures.63 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.64 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.
US VISIT and Canadian and Mexican Nationals.65 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,
61 Sale v. Haitian Ctrs., Council, 509 U.S. 155 (1993) (upholding an executive order that
directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to
the United States and to return those passengers to Haiti without first determining whether
they may qualify as refugees, partly on 8 U.S.C. §1182, which provides the President with
the authority to suspend the entry of “any class of aliens”).
62 69 Federal Register 468, 472.
63 8 C.F.R. 264.1(f).
64 See 69 Federal Register 468, 474; see also Paul Sperry, “New Anti-terror Program
Contains Hidden Loophole,” WorldNetDaily, Jan. 8, 2004 (describing a DHS memorandum
that requires the collection of biometrics be ceased, if processing wait times exceed one
hour), available at [http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=36511].
65 For a comparison of documentary requirements for Canadian and Mexican nationals to
enter into the United States, see Appendix V.
Canadian nationals and some Canadian landed immigrants are not required to present
a passport, and are often not required to obtain a visa.66 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.67 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.68 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.69 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.70
66 Section 212(d)(4) of the INA permits the Attorney General and the Secretary of State
acting jointly to exempt certain foreign nationals from the documentary requirements to
enter the United States. See also 22 U.S.C. §41.2 (allowing the Secretary of State and AG
to waive Canadian nationals’ visa and passport requirements if they have not visited outside
the Western Hemisphere).
67 8 C.F.R. §235.1(f)(i) (exempting aliens described in 8 C.F.R. §212.1 and 22 C.F.R. §41.33
(Canadian Border Identification Crossing Card)).
68 See 68 Federal Register 292, 293 (citing 8 C.F.R. §212.1).
69 69 Federal Register 468, 472.
70 A Data Management Improvement Act (DMIA) Task Force report published in January
!Canadian citizens or British subjects with residence in Bermuda or
Canada — oral declaration and identification; or proof of citizenship and
residence in Bermuda or Canada;
!Canadian landed immigrant with British common nationality —
identification and proof of landed immigrant status; and
!Canadian landed immigrant without British common nationality —
passport with nonimmigrant visa.
See DMIA Task Force First Annual Report to Congress, Dec. 2002. Appendix C of the
DMIA Report lists those nationals that are considered to have common nationality with
citizens of Britain.
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 IV).71 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-172
(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 the73
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.74 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
71 Although no longer called a border crossing card (BCC), the statutory authority for the
laser visa derives in part from the provision in the Immigration and Nationality Act (INA)
that defines “border crossing card”:
... a document of identity bearing that designation issued to an alien who is
lawfully admitted for permanent residence, or to an alien who is a resident in
foreign contiguous territory, by a consular officer or to an immigration officer
for the purpose of crossing over the borders between the United States and
foreign contiguous territory in accordance with such conditions for its issuance
and use as may be prescribed by regulations ... (§101(a)(6))
The other key provision is §212(a)(7)(B)(i) of INA, which declares “any nonimmigrant not
in possession of a passport valid for a minimum of six months and ... is not in possession of
a valid nonimmigrant visa or border crossing identification card at the time of application
for admission, is inadmissible.” This provision makes the BCC an official document on par
with the nonimmigrant visa to enter the United States.
72 From 1992 to 1998, border crossing cards were also issued to Canadian citizens. DOS and
the former Immigration and Naturalization Service ceased issuing the BCC and the
combination B-1/B-2 visa and BCC to Canadian citizens, British subjects who reside in
Canada and landed immigrants in 1988.
73 See 8 C.F.R. §212.1(c)(3).
74 69 Federal Register 53318
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.
Implementation Issues
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.75 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.
Infrastructure and Facility Needs at the Border. 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
75 NIST published a Report to Congress in Jan. 2003 that contends that two fingerprints and
facial photograph are adequate biometrics.
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.76
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.
Interior Enforcement. 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 on77
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
76 This fear may be unwarranted because under current law and DHS regulations, Canadian
nationals and legal permanent residents of Canada would be exempt from the requirements
of the US-VISIT program.
77 Testimony of INS Commissioner James Ziglar, in U.S. House, Committee on
Appropriations, Subcommittee on Commerce, Justice, State and the Judiciary, hearing on
the President’s FY2003 Budget Request, Mar. 7, 2002.
Transportation Security in the Department of Homeland Security (DHS) has brought
the number of agents to over 5,500.78
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.
Privacy Issues. 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 observers79
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 secondary80
(e.g., medical, health-related) information).
Information Technology Interoperability. 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
78 Michael Garcia, Director of the Bureau of Immigration and Customs Enforcement, July
79 The E-Government Act of 2002 (P.L. 107-347).
80 U.S. Department of Justice, U.S. Department of State and NIST Report to Congress, Jan.
Readable, Tamper — Resistant Travel Documents.
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.81 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.
Databases. 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.
81 See for example a series of GAO reports: U.S. Government Accountability Office, INS:
Overview of Recurring Management Challenges, GAO Report 02-168T, Oct. 17, 2001 and
Securing America’s Borders: INS Faces Information Technology Planning and
Implementation Challenges, GAO Report 02-148T, Oct. 11, 2001.
Training Needs and Resources. 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.
Facilitation of Travel and Commerce. 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 FY2002.82 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.
Feasibility of Implementation and Policy Questions. 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.
82 Congressional Research Service analysis of the former Immigration and Naturalization
Service workload data.
Appendix I: 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).83 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.84 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.85
Initially, this rule only applies to nonimmigrant visa-holders who travel through the
designated air and sea ports listed in DHS Regulations.86
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
83 See 69 Federal Register 468, 469.
84 E.O. 13323; 69 Federal Register 241, Jan. 2, 2004.
85 69 Federal Register 468.
86 Notice to Nonimmigrant Aliens Subject To Be Enrolled in the United States Visitor and
Immigrant Status Indicator Technology System, 69 Federal Register 482 (Jan. 5, 2004).
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.87
87 69 Federal Register 51695.
Appendix II: Electronic Manifest Requirements
Contents of electronicElectronic manifest requirementsfor passengers onboard commercial
arrival/departure manifestsaircraft
(INA §231(c))(19 C.F.R. §122.49a)
Complete nameComplete name
Date of birthDate of birth
Citizenship Citizenship
SexGender
Passport number and country ofPassport number, country of issuance,
issuanceexpiration date
Country of residenceCountry of residence
U.S. visa number, date, and place of
issuance, where applicable
Alien registration number, whereAlien registration number, where
appl i cabl e appl i cabl e
U.S. address while in the U.S. U.S. address while in the U.S.
Such other information the Secretary, Airline International Air
in consultation with the Secretary ofTransport Association (IATA)
State and the Secretary of the Treasurycarrier code or vessel
determines as being necessary for the Travel document type
identification of the persons Passenger Name Record locator, if
transported and for the enforcement ofapplicable
the immigration laws and to protect Port of departure, port of arrival,port of final destination for in-
safety and national security. transit passengers
Airline carrier code
Flight number
Date of aircraft arrival
Appendix III: Visa Holders That Are Exempt from the
Fingerprinting and Photographing Requirements
Under DHS Regulation 8 C.F.R. §235.1
Exempt categoryExplanation of category
A-1a Diplomatic or Consular officers, close relatives
A-2Other foreign government officials or Employees,
close relatives
C-3 In Transit-foreign government officials, close
relatives
G-1Principal recognized foreign government
representative to an international organization,
staff, spouse, and children
G-2Other recognized foreign government
representative to an international organization,
staff and close relatives
G-3Nonrecognized foreign government
representative to an international organization,
and close relatives
G-4International organization officers or employees
and close relatives
NATO-1Principal permanent representative to NATO and
staff, spouses and children
NATO-2Other representative to NATO and staff, spouses
and children
NATO-3Official clerical staff accompanying NATO
representatives, spouses and children
NATO-4“Officials” of NATO, spouses and children
NATO-5NATO experts, spouses and children
NATO-6NATO civilians, spouses and children
Certain Taiwan officials and their
immediate family members who
hold E-1 visas
Children under the age of 14
Persons over the age of 79
Classes of aliens the Secretary of
DHS and Secretary of State
jointly determine shall be exempt
An individual alien the Secretary
of DHS, the Secretary of State, or
the Director of CIA determines
shall be exempt
a. Exemptions for categories A-1, A-2, and C-3 do not include attendants, servants, or personal
employees of accredited officials. Exemptions for categories A-1 and 2, C-3, G-1 to 4, NATO-1
to 6, and E-1 will not be provided if the Secretary of State and the Secretary of DHS jointly
determine that a class of such aliens should be subject to the biometric identifier requirements.
CRS-32
ppendix IV: Comparison of Current Law Deadlines and the Administration’s Implementation
Provision of the lawProvisionCurrent law deadlineImplementation
Requires the development and certification of a technologyOctober 26, 2003; however,The National Institute of Science and
standard that can be used to verify the identity of personsP.L. 107-173 set a January 26,Technology (NIST) published a
iometrics)aseeking a visa to enter the United States.2003 deadline.Report to Congress in January 2003
biometrics that should be used. The
173bAdministration published an Interim
Final Rule that amends portions of
iki/CRS-RL322348C.F.R. §214.1, 215.8 and 235.1.
g/w
s.orRequires the technology standard that is developed to be aOctober 26, 2003See above.
leak“cross-agency, cross-platform electronic system” that is
://wikiiometrics)56afully integrated with law enforcement and intelligenceinformation relevant to confirming the identity of persons
httpapplying for a visa to enter the U.S. or seeking entry into
the country.
Requires a report that describes the development,April 26, 2003See NIST’s Report to Congress,c
implementation, efficacy and privacy implications of the (18 months after enactmentpublished in January 2003.
ing Requirementtechnology standard and database system.of the act, thereafter every
iometrics)two years)
CRS-33
Provision of the lawProvisionCurrent law deadlineImplementation
With respect to developing an integrated entry/exit dataOctober 26, 2004 (per P.L.See 69 Federal Register 468.
try/Exit Data System: system, requires the issuance of visas with biometric107-173)
identifiers that are tamper-resistant.
Requires the entry/exit data system interface with federalNone specifiedThe Administration maintains that
try/Exit Data Systemalaw enforcement databases.the US-VISIT program includes the
iki/CRS-RL3223456interfacing, enhancement anddeployment of existing system
g/w capabilities.
s.or
leakRequires a report to Congress on the assessment of actionsNovember 14, 2002See NIST report referenced above.
://wikinecessary to fully achieve the implementation of biometricidentifiable, machine-readable, tamper-resistant visas and(180 days after enactment)
httpother travel documents, and the installation of equipment
173band software at all U.S. ports of entry that reads and
authenticates the biometric identifiable documents by
Requires the installation of biometric data readers andOctober 26, 2004Requirement has not been met.
scanners at all ports of entry.
CRS-34
Provision of the lawProvisionCurrent law deadlineImplementation
Requires the transmission of an electronic arrival andJanuary 1, 20038 C.F.R. §231.2
departure manifest to an immigration officer for all
commercial vessels or aircraft bringing passengers to or
CRS summary of selected provisions in P.L. 107-56 and P.L. 107-173.
he Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act OF 2001.
he Enhanced Border Security and Visa Entry Reform Act of 2002.
iki/CRS-RL32234.S. Department of Justice, U.S. Department of State and NIST Report to Congress, Jan. 2003, Use of Technology Standards and Interoperable Databases with Machine-Readable,Tamper -Resistant Travel Documents.
g/w
s.or
leak
://wiki
http
CRS-35
Appendix V: Comparison of the Mexican Laser Visa Requirements
with Canadian Documentary Requirements
AgencyMexican Border Crossing CardCanadian Border Crossing Card
22 CFR 41.32 Nonresident alien Mexican border crossing identification cards;22 CFR 41.33 Nonresident alien Canadian border crossing
combined border crossing identification cards and B-1/B-2 visitor visas identification card (BCC)
“Consular officers assigned to a consular office in Mexico ... may issue a border crossing
identification card ... in combination with a B-1/B-2 nonimmigrant visitor visa (B-1/B-2No longer in effect.
Visa/BCC), to a nonimmigrant alien who is a citizen and resident of Mexico; seeks to enter
the United States as a temporary visitor for business or pleasure as defined in INA
iki/CRS-RL32234101(a)(15((B) for periods of stay not exceeding six months; and is otherwise eligible for
g/wa B-1 or B-2 temporary visitor visa or is the beneficiary of a waiver under INA
s.or212(d)(3)(A) of a ground of ineligibility, which waiver is valid for multiple applications for
leakadmission into the United States and for a period of at least ten years and which containsno restriction as to extensions of temporary stay or itinerary.”
://wiki8 CFR 212.6 Border crossing identification cards8 CFR 212.6(b) Border crossing identification cards
http“(a) Application for Form DSP-150, B-1/B-2 Visa and Border Crossing Card, issued by
DOS. A citizen of Mexico, who seeks to travel temporarily to the United States forNo longer in effect.
business or pleasure without a visa and passport, must apply to DOS ...”
8 CFR 235.1(f) Form I-94, Arrival Departure RecordNo similar regulation
“(1) Unless otherwise exempted, each arriving nonimmigrant who is admitted to the United
States shall be issued ... a Form I-94 as evidence of the terms of admission. A Form I-94
issued at a land border port-of-entry shall be considered issued for multiple entries unless
specifically annotated for a limited number of entries ...”
CRS-36
AgencyMexican Border Crossing CardCanadian Border Crossing Card
8 CFR 235.1(f) Form I-94, Arrival Departure Record8 CFR 235.1(f) Form I-94, Arrival Departure Record
“(1)(iii) ... Form I-94 is not required by... any Mexican national who is ... in possession of“(1)(i) ... Form I-94 is not required by citizens of Canada” (see
a Form DSP — 150, B-1/B-2 Visa and BCC, containing a machine-readable biometric8 CFR 212.1(a)) who is admitted as a visitor for business or
identifier, issued by DOS and is applying for admission as a temporary visitor for businesspleasure or admitted to proceed in direct transit through the
or pleasure from contiguous territory” (see CFR 212.1(c)(i)).United States.”
8 CFR 235.1(f) Form I-94, Arrival Departure RecordNo similar regulation
“(1)(iii) ... Form I-94 is not required by ... any Mexican national who is ... entering soley
for the purpose of applying for a Mexican passport or other official Mexican document at
a Mexican consular office on the United States side of the border” (see CFR 212.1(c)(ii)).
iki/CRS-RL322348 CFR 235.1(f) Form I-94, Arrival Departure RecordNo similar regulation
g/w“(1)(iii) ... Form I-94 is not required by ... any Mexican national who is in possession of a
s.orpassport and valid visa who is admitted as a nonimmigrant visitor for a period not to exceed
leak72 hours to visit within 25 miles of the border.”
://wiki8 CFR 235.1(f) Form I-94, Arrival Departure RecordNo similar regulation
http“(1)(iv) ... Form I-94 is not required by ... bearers of Mexican diplomatic or official
passports ...”
8 CFR 235.1(f) Form I-94, Arrival Departure RecordNo similar regulation
“(1)(iii) ... Form I-94 is not required by ... any Mexican national who is exempt from a visa
and passport ... or is in possession of a passport and valid visa who is admitted as a
nonimmigrant visitor at the Mexican border Port of entries in the state of Arizona at Sasabe,
Nogales, Mariposa, Naco, or Douglas for a period not to exceed 72 hours to visit within the
state of Arizona and within 75 miles of the border.”
CRS presentation of selected DHS regulations.