[Federal Register Volume 60, Number 93 (Monday, May 15, 1995)]
[Proposed Rules]
[Pages 25856-25868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11733]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 60, No. 93 / Monday, May 15, 1995 / Proposed
Rules
[[Page 25856]]
DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103 and 299
[INS No. 1666-94]
RIN 1115-AD75
Certification of Designated Outside Entities to Take Fingerprints
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Proposed rule.
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SUMMARY: The Immigration and Naturalization Service (Service) is
proposing to certify designated outside entities (DOEs) to take
fingerprints of applicants for immigration benefits. This rule would
establish eligibility criteria and application procedures to certify
DOEs. The proposed rule would facilitate processing of applications for
immigration benefits and protect the integrity of the fingerprinting
process, while relieving the strain on Service resources.
DATES: Written comments must be received on or before July 14, 1995.
ADDRESSES: Please submit written comments, in triplicate, to the Policy
Directives and Instructions Branch, Immigration and Naturalization
Service, 425 I Street NW., Room 5307, Washington, DC 20536, Attn:
Public Comment Clerk. To ensure proper handling, please reference INS
No. 1666-94 in your correspondence. Comments are available for public
inspection at this location by calling (202)-514-3048 to arrange an
appointment.
FOR FURTHER INFORMATION CONTACT:
Pearl Chang, Senior Examiner, Jack Rasmussen, Senior Examiner, or Ray
Jaroneski, Senior Examiner, Adjudications Division, Immigration and
Naturalization Service, 425 I Street NW., Room 3214, Washington, DC
20536, telephone (202) 514-3240. This is not a toll-free number.
SUPPLEMENTARY INFORMATION:
Background
Applicants for various types of immigration benefits are required
to submit a set of fingerprints on Form FD-258, Applicant Fingerprint
Card, along with their applications. The applicants' fingerprints are
forwarded to the Federal Bureau of Investigation (FBI) for checks for
criminal history that may render an alien ineligible for immigration
benefits.
Traditionally, applicants for immigration benefits have been
fingerprinted at Service local offices. Over the past few years,
because of resource shortages and uncontrollable overcrowding, most
Service field offices have been forced to stop fingerprinting
applicants for immigration benefits. Since other law enforcement
agencies have not been able to meet the demand, applicants have turned
to private enterprises for fingerprints. Under these circumstances, the
Service typically does not know the identity of the person or
organization that prepared the fingerprints.
In a February 1994 inspection report, the Office of Inspector
General (OIG) of the Department of Justice identified two major
deficiencies in the current fingerprinting process that required
corrective action: the reliance on unknown and untrained outside
entities to prepare fingerprints; and the lack of identity verification
of the individuals fingerprinted. In addition, the OIG pointed out that
fingerprint cards submitted by the applicants were often of poor
quality and had to be rejected by the FBI. The OIG recommended that the
Service establish procedures to institute control and oversight of the
fingerprint process. The Committee on Appropriation of the United
States Senate also expressed concern about the current fingerprint
process and directed in its report dated July 14, 1994, that the
Service implement a fingerprint collection system which accepts only
fingerprints taken by authorized entities, including trained Service
employees, recognized law enforcement agencies, or Service certified
outside entities.
In May 1994, the Service convened a working group, which was
comprised of representatives from various Service components along with
advisors from the FBI and the OIG, to recommend solutions. After
considering various options, the working group recommended that the
Service adopt a policy of encouraging Service local offices to provide
fingerprinting services. Where that was not feasible, the working group
recommended that the district director designate outside entities to do
the job. The district director would assess the unique local situation
prior to deciding whether to certify DOEs or to renew them when the
initial certification of 3 years expires. The working group concluded
that certification of DOEs is the most cost-effective way to restore
integrity to the process in the short term and that it should be
implemented as soon as possible. Based on these recommendations, the
Service is undertaking rulemaking to establish eligibility criteria,
certification requirements, application procedures, and a date on which
the Service will stop accepting fingerprint cards prepared by
unauthorized entities.
The Service is aware that the objectives of the proposed DOE-
certification program cannot be fulfilled unless the outside entities
are carefully screened and monitored. The Service is contemplating
three complementary methods for the monitoring of DOEs: on-site review
of DOE operations; completion of an attestation form (discussed later)
which the applicant is to submit to the Service with the fingerprint
cards; and, in many cases, physical verification of benefit-applicants'
fingerprints during their interviews with Service officers. The latter
is possible because the Service has been developing imaging capability
in its Computer Linked Adjudication and Information Management System
(CLAIMS). This imaging capability can be used to capture, store, and
reproduce the digitalized image of the fingerprints submitted by
applicants for benefits. At interview time, the adjudicating officer
will be able to compare a system-generated image of the applicant's
right index fingerprint with a freshly taken print of the interviewee's
right index finger to ascertain that they belong to the same person.
It should be emphasized that the working group gave serious thought
to the feasibility of resuming fingerprinting services at all Service
field offices. However, acquiring additional staff and facilities is a
time-consuming process. Even with a fee increase, it would take up to 3
years to implement a fully [[Page 25857]] functional fingerprinting
operation at all local Service offices. It is simply not feasible for
all Service field offices to resume the fingerprinting service in a
short time. The working group believed that the establishment of an
automated fingerprint information system would ultimately resolve the
current problems, yet it is not a solution that could be implemented
immediately. Thus, the fingerprint working group recommended the use of
DOEs as an interim solution while the Service is actively working on
automating the fingerprinting process.
Upon development of an automated fingerprint information system,
the Service will decide if there is a continued need for the DOEs'
services and, if so, whether they should switch to newer technologies,
such as acquiring automated fingerprinting equipment that meet the
Service's specifications. In either event, the Service shall issue a
public notification or make a new rule, as appropriate.
During the deliberation of the fingerprinting options, the Service
explored contracting as a possible solution, but determined that
contracting was not viable. A controlled procurement contract requires
the contracting agency and the contractor to enter into a binding
agreement involving appropriated funds, and these required conditions
do not exist. On the other hand, section 103 (a) and (b) of the
Immigration and Nationality Act (``the Act'') confers upon the Attorney
General, and the Commissioner of the Service by delegation, the
authority to establish regulations necessary for carrying out the
provisions of the Act. For reasons explained earlier in this preamble,
rulemaking appears to be a reasonable and practical way to solve the
fingerprinting problem.
In this rulemaking, the Service is proposing the creation of a new
paragraph (e) in 8 CFR 103.2, to establish eligibility standards,
responsibilities, and application procedures for DOE certification.
Public comments are encouraged and must be received by the Service
on or before July 14, 1995. It has also been suggested that DOEs
certified as a result of this rulemaking could ultimately be endorsed
and utilized by other federal, state, or local government agencies
which require fingerprints from applicants for various types of
benefits or programs under this jurisdiction. Comments are also
solicited on the feasibility of such an expansion in the role of DOEs
and on what changes to the rule would be necessary to accommodate that
broader role.
Proposed Regulation for Certification of DOEs
1. DOE Eligibility
As stated earlier, the purpose of the fingerprints-clearance
requirement is to ensure that the applicants for immigration benefits
(e.g., adjustment to permanent residence, citizenship, adoption of
foreign orphans, etc.), do not have criminal records that would render
them ineligible. Because the validity of the fingerprints is an
essential premise for carrying out the Service's obligation to identify
and deny benefits to ineligible aliens, it is important that the
fingerprinting process is not entrusted to persons whose past criminal
conduct or other wrongdoing makes them unsuitable for such
responsibility.
Thus, the proposed regulation would preclude from certification as
outside entities those applicants who have been convicted of any
aggravated felony as defined in section 101(a)(43) of the At or of any
crime involving dishonesty or false statement, who have been subjected
to a civil penalty for fraud under section 274C of the Act or any other
law. (If the applicant is an organization, these standards would also
be applied to its principal officers, directors, or partners.)
Moreover, an outside entity's employee who has been convicted of an
aggravated felony or a crime involving dishonesty or false statement,
or subjected to a civil penalty for fraud, would not be eligible to
take fingerprints, unless the outside entity can establish to the
Service's satisfaction that the circumstances are such (because of the
person's youth at the time of the conduct, the number of years that
have passed since then, or other convincing factors) that there can be
no reasonable questions as to the person's reliability in taking
fingerprints in conformity with these rules.
In interpreting the terms ``dishonesty or false statement'', the
Service may take general guidance to the degree that it is appropriate
by analog to the judicial interpretations of crimes involving
``dishonesty or false statement'' as that phrase is used in Rule
609(a)(2) of the Federal Rules of Evidence and prior cases. For
example, Government of Virgin Islands v. Toto, 529 F.2d 278 (3d Cir.
1976), includes criminal convictions involving ``perjury or subornation
of perjury, false statement, criminal fraud, embezzlement, false
pretense, or any other offense which involves some element of
deceitfulness, untruthfulness or falsification''. The Service invites
comments from the public on these issues.
Since the FBI fingerprint-check is the only practical means
available to the Service to positively identify any known criminal
history, this rule would require outside entity employees with
fingerprinting responsibility to submit their own fingerprints for an
FBI check. Fingerprints submitted to support applications for
certification as a DOE would have to be taken by designated Service
personnel at local offices.
The proposed rule would also provide for a streamlined registration
process for Federal, state, or local law enforcement facilities and
military police facilities which provide fingerprinting service. These
local police stations and military police facilities would be
automatically eligible for DOE status provided that they register with
the Service on Form I-850, Application for Certification as Designated
Outside Entity to Take Fingerprints. No FBI fingerprint check,
application fee, or additional training would be required of their
personnel charged to take fingerprints. Once registered, the Service
would include these police stations and military police facilities on
the listing of DOEs and make available to them the Service's
fingerprinting regulations and instructions.
2. Requirements
As set forth in Sec. 103.2(e) of the proposed regulation, a DOE
would be required to take legible and classifiable fingerprints of
applicants, or be required to retake the fingerprints deemed to be
illegible free of charge. A DOE would be allowed to charge an
additional fee, however, if a good set of fingerprints is rendered
illegible due to improper handling by the applicant. As part of the
fingerprinting procedures, a DOE would be required to check the
identification of the person being fingerprinted by comparing the
information on the fingerprint cards with that of his or her passport,
alien registration card, or any other Service issued photo-ID. The DOE
would be required to maintain clean and suitable facilities that are
accessible to the general public. The DOE would be required to use only
fingerprint cards (Forms FD-258) or any other forms that are specified
and supplied by the Service. Reproduced copies of Form FD-258 would be
rejected.
A DOE could charge a reasonable fee for taking the fingerprints.
Even though the Service has not imposed a fee limitation, a DOE would
be required to make its fee known to the Service at the time its
application for DOE-certification is filed and when there is a fee
change. The Service believes that [[Page 25858]] competition in the
marketplace would keep the DOEs' fees at a reasonable level. Each local
Service office would compile a list of the DOEs in its jurisdiction,
giving their names, addresses, telephone numbers, and fees, and make
the list available the public to encourage healthy competition.
A DOE would be required to immediately notify the Service director
having jurisdiction over his or her place of business of any changes in
personnel who take fingerprints. All DOE personnel charged with the
responsibility to take fingerprints would be required to undergo and
pass an FBI criminal history check, as discussed.
A DOE would be required to ensure that its employees receive
adequate training in fingerprinting techniques and photo-ID
verification procedures. A qualifying outside entity applying for
certification would be required to show that all of its personnel
charged with the fingerprinting responsibility have been trained by the
Service or the FBI, are scheduled to receive such training prior to the
approval of the application, or can otherwise demonstrate proficiency.
After certification, a DOE, however, would be allowed to train its
new employees, provided that the trainer was initially trained by the
Service or the FBI. The proposed rule would condition the grant of DOE
status to the entity's successful completion of the required training.
Training could be arranged through local Service offices. An applicant
who has been previously trained in fingerprinting by the Service or the
FBI, or who can otherwise demonstrate proficiency, could be exempt from
this training requirement.
A DOE would be required to immediately notify the Service of any
conviction for an aggravated felony or a criminal offense involving
dishonesty or false statement or of any civil penalty for fraud
committed by an employee charged to take fingerprints. Since these
types of activities cast doubt on an individual's credibility as a
responsible person, the Service would need to be alerted.
A DOE would be required to permit the Service to make periodical
on-site inspection of its operations to ensure compliance with required
procedures. If a DOE was found to be in violation of the established
regulations and procedures, and in the absence of evidence of willful
misconduct, it would be given the opportunity to submit rebuttal
evidence or request a reinspection following corrective actions. If the
DOE failed to submit evidence of rebuttal or take corrective actions
within a 30-day period, or if unsatisfactory conditions persisted at
the second inspection, the Service could revoke its DOE status.
3. Attestation
To assure the Service of the integrity of the fingerprint cards
submitted, the proposed rule would require all DOE fingerprints to fill
out an attestation each time they take fingerprints for an immigration
benefit applicant. In turn, applicants for immigration benefits would
file this attestation together with the fingerprint card. The
attestation must be signed and dated by the fingerprinter and state:
(1) That he or she has properly checked the identity of the person
being fingerprinted and entered, on the form, information pertaining to
the individual's passport, alien registration card, or other acceptable
Service issued photo-ID; (2) that he or she is an employee of a
certified DOE, giving the DOE's name, address, certification number (as
assigned by the Service) and expiration date; (3) that he or she
understands the fingerprinting requirements as established by this
remaking and has received adequate training to perform his or her
responsibilities, giving his or her name and ID number (as assigned by
the Service); and (4) the name, signature, and identification provided
by the person being fingerprinted (the benefit applicant). The DOE's
fingerprinters would be required to execute the attestations in
duplicate in the presence of the benefit applicants. The original copy
would be given to the person being fingerprinted, to be filed with the
Service along with the fingerprint cards. The second copy, which may be
a reproduced copy of the first one, would be kept on file by the DOE
for at least 3 months for Service inspection. The Service would provide
a standardized attestation, Form I-850A, Attestation by Designated
Outside Entities Certified to Take Fingerprints, to DOEs for their
convenience. The DOEs would be allowed to use reproduced copies of Form
I-850A. Most of the information on the form could be preprinted, except
for the fingerprinter's signature, the date, and the information
pertaining to the person being fingerprinted.
4. Application
To obtain certification as a DOE, a qualifying outside entity would
be required to file an application on Form I-850, including the
required fee, with the district director having jurisdiction over the
applicant's place of business. A DOE would also use Form I-850 to apply
for renewal of its certification, to change its address or fee, or to
seek approval for new or replacement employees to take fingerprints.
The district director would consider all supporting materials submitted
and request other evidence of eligibility for certification as he or
she may deem necessary. The initial certification is valid for three
years and, if the district director finds a continuing need, may be
renewed by applying to the district director having jurisdiction over
the DOE's place of business on a new Form I-850, with the required fee,
at least 90 days before it expires.
5. Fee
As previously mentioned, an application for DOE certification would
be filed on Form I-850, with the required fee of $370. (The fee for
filing an application for renewal of DOE certification would be $200.)
The application fee would underwrite the Service's processing and
administrative costs incurred in the DOE certification process, such as
staffing, training of Service personnel on the DOE certification
process, adjudication of applications, oversight or DOEs, as well as
providing fingerprinting training (including instructional material and
training videos) to DOEs. The proposed fee amount is based on estimates
of these costs and is supported by a fee analysis, which is available
upon request. Since the FBI fingerprint-check and related processing
currently costs the Service $23 per person, an employer would also be
required to pay an additional fee of $23 for each of its employees
submitted for the Service's approval to take fingerprints. A fee would
not be charged for filing a request for adding new employees to a prior
approved list, but the employer would have to pay the fingerprint-check
fee of $23 for each of the new employees.
6. Revocation
DOE certification would be automatically revoked when the DOE
withdraws its application, or goes out of business prior to the
expiration of the approval. The district director may also revoke on
notice the certification of a DOE that is providing poor quality
prints, cannot provide adequate assurance as to the identity of persons
being fingerprinted or the integrity of its employees, or otherwise has
violated the fingerprinting requirements. In that case, the district
director would issue a notice of intent to revoke detailing the reasons
for the intended action. Within 30 days of the receipt of the notice,
the DOE could submit evidence of rebuttal. If the district director is
not satisfied with the evidence of rebuttal or if the DOE fails to
respond within the 30-day period, the district director would notify
[[Page 25859]] the DOE of the revocation, and of its right to appeal.
If the violations are egregious, such as failure to verify the identity
of the individuals seeking fingerprinting, the district director could
issue a suspension order and place the DOE on immediate suspension. If
the reason for suspension is correctable, the DOE under suspension
could submit evidence of corrective action to the district director
within 30 days and request a second inspection. Upon approval by the
district director, the DOE would be allowed to resume fingerprinting on
probation pending the results of the reinspection.
7. Confidentiality
Section 264(b) of the Act provides that all registration and
fingerprint records made under Title II are confidential and may be
made available only (1) to Federal, State, and local law enforcement
agencies, upon request, pursuant to section 287(f)(2) of the Act, and
(2) to such persons and agencies as may be designated by the Attorney
General. To preserve confidentiality, the proposed regulation would
prohibit a DOE from releasing the fingerprints taken pursuant to the
provisions of 8 CFR 103.2(e), other than to the Service or to the
subject or as otherwise provided in the Service's regulations.
This restriction is not intended to preclude law enforcement
agencies registered under 8 CFR 103.2(e) from using the fingerprints
they have collected for immigration purposes in other law enforcement
pursuits.
8. Effective Date
Upon publication of the final regulation in the Federal Register,
qualifying outside entities may apply to the district director having
jurisdiction over the location of their businesses for certification as
a DOE. During the initial certification phase, the Service will allow
an overlapping period to give outside entities sufficient time to
obtain certification. To facilitate a smooth transition to the new
fingerprinting environment, the Service intends to implement the
certification process, within a 6-month period, in two stages: (1) As
of 120 days from the date of publication of the final rule in the
Federal Register, the service would require that all fingerprints
submitted by immigration benefit applicants be taken by either a
Service employee, a DOE fingerprinter, or an outside entity who has
completed and filed an application for certification with the Service;
and (2) As of 180 days from the date of publication of the final rule
in the Federal Register, the Service would phase out all uncertified
fingerprinters.
As indicated, the Service does not plan to implement the new
fingerprinting process to a full scale until 6 months after the final
rule has taken effect, but it would begin to implement the attestation
provision of the proposed regulation before the end of the transitional
period. As of 90 days from the date of publication of the final rule in
the Federal Register, the Service would require that all fingerprint
cards submitted by benefit applicants be accompanied by an attestation
on Form I-850A by the fingerprinter. An outside entity that has
completed and filed an application for DOE status prior to 90 days from
the date of publication of the final rule in the Federal Register may,
pending the Service's action upon its application, take fingerprints
and complete the Form I-850A, indicating that its application for DOE
status is pending. This provisional authority will cease if its
application is denied or as of 180 days from the date of publication of
the final rule in the Federal Register.
The information collection requirements contained in this rule have
been cleared by the Office of Management and Budget, under the
provisions of the Paperwork Reduction Act. Clearance numbers for these
collections will be contained in 8 CFR 299.5, Display of Control
Numbers.
Regulatory Flexibility Act
The Service has examined the impact of this proposed rule in light
of Executive Order 12866 and the Regulatory Flexibility Act (5 U.S.C.
603, et seq.) and has drafted this rule in a way to minimize the impact
that it has on small business while meeting its intended objectives.
As set forth more fully elsewhere in the preceding supplemental
information, the current fingerprinting process does not adequately
ensure either the quality or the integrity of fingerprints submitted to
the Service by applicants for immigration benefits. This rulemaking
action is being conducted in order to address the concerns of the
Justice Department's Office of the Inspector General (OIG) and the
Committee on Appropriations of the United States Senate regarding the
current fingerprinting process. According to an OIG report issued in
February 1994, 11% of the total number of fingerprint cards submitted
by the Service to the FBI during fiscal year 1993 were rejected by the
FBI as unclassifiable. That is a high level of rejection based on the
quality of the fingerprints, resulting in unnecessary burdens on the
Service, the FBI , and the applicants. Moreover, in the absence of a
system to designate entities to take fingerprints, the Service often
does not know who took the fingerprints and lacks ready means to
determine if the fingerprints are actually those of the person
submitting them.
The objectives of this proposed rule are to facilitate processing
of applications for immigration benefits, protect the integrity of the
fingerprinting process, and relieve strain on Service resources by
establishing criteria for the certification of designated outside
entities to take fingerprints. The legal basis for this rule is the
authority conferred upon the Attorney General and, by delegation, upon
the Service by section 103 (a) and (b) of the Immigration and
Nationality Act to establish such regulations as are necessary to carry
out its provision. This rule will substantially promote the Service's
ability to identify and deny benefits to ineligible aliens, and to
promptly and effectively administer the immigration laws of the United
States by reducing unnecessary delays caused by poor fingerprint cards.
The Service believes that there are approximately 3,000 outside
entities which are taking fingerprints for immigration benefit
applicants. Because the entities providing fingerprinting services at
present are primarily small businesses, the Service has developed and
reviewed this proposed rule with the needs and circumstances of small
businesses specifically in mind. The Service is not aware of any
relevant Federal rules which duplicate, overlap or conflict with this
proposed rule.
The Service has considered significant alternatives to this
proposed rule which accomplish the objectives and which minimize any
significant economic impact of this rule on small entities, including
the use of contracting or greater use of Service facilities. The
Service has sought to avoid burdens on outside entities beyond those
requirements needed to improve the quality of the fingerprints taken
and to provide assurance to the Service that the fingerprints it
receives are genuine. As appropriate, requirements have been drafted as
performance standards, for example: that the fingerprints DOEs take be
legible and classifiable; that DOE personnel charged with the
responsibility to take fingerprints pass an FBI criminal history
records check; and that such DOE personnel be trained in fingerprinting
or otherwise be able to demonstrate their proficiency.
The Service considered the purposes for certification and made the
following determinations: [[Page 25860]]
1. This rule must improve the quality of fingerprints taken for
immigration benefit applicants by providing for the training of persons
taking fingerprints or by their demonstration of proficiency in doing
so. A beneficial result of improving the quality of fingerprints will
be to reduce amount of time wasted by the applicant and by the Service
in the processing and retaking of smeared or otherwise unusable
fingerprints. This rule must also improve the integrity of the
fingerprint process. This is accomplished by the licensing of DOE's and
by the requirement that attestations be submitted along with the
fingerprints. A beneficial result of improving the integrity will be to
reduce the number of immigration benefits improperly granted.
Many outside entities currently taking fingerprints do so with
acceptable standards of quality control and applicant verification. The
Service believes that such entities will have no difficulty qualifying
under this rule. The eligibility criteria of this rule have been
minimized as far as possible while remaining consistent with the
achieving of Service objectives in order to allow outside entities
which at present do not meet acceptable standards to raise their
standards to acceptable levels without undue burden.
2. Training requirements should be flexible in order to avoid
unduly burdening DOEs. Accordingly, the Service will exempt from the
training requirement those individuals who have been previously trained
by the Service or the FBI, or who can otherwise demonstrate
proficiency. Furthermore, the Service will allow a DOE to train its new
employees with an employee who was initially trained by the Service or
the FBI.
3. DOEs should decide for themselves what is a reasonable fee for
the services they provide. Instead of setting a fingerprinting fee for
the DOEs, the Service believes that the appropriate amount should be
determined by the marketplace. Therefore, the proposed regulation would
require that a DOE make its fee known to the Service when applying for
certification. The Service would encourage healthy competition by
compiling a DOE fee list and making it available to the public.
4. The regulation is a mechanism for setting guidelines for quality
control and should be educational in nature. The regulation is designed
to stress training and voluntary compliance. In the absence of willful
misconduct, the DOEs, found to be in violation of the established
regulations are not subject to sanctions until they had been given an
opportunity for a rebuttal or a second inspection within 30 days. The
Service will only take actions against those DOEs which have failed to
submit evidence of rebuttal or take corrective actions within the 30-
day period.
5. There should be a three-month transitional period during which
an outside entity may continue to take fingerprints. Entities that
apply for certification during this three-month period will be
grandfathered, pending the Service's decision to grant or deny
certification. This will allow the Service to regain control of the
fingerprinting process at the earliest possible date without disrupting
an outside entity's ability to conduct routine business. After the
transitional period, an outside entity which has applied for
certification before the end of the transitional period may continue to
take fingerprints until the Service acts on its application, as long as
it completes a standard attestation, Form I-850A, for each of the
immigration benefit applicants it fingerprints and indicates that its
application for certification is pending.
The Service has designed the attestation form to allow the DOEs to
partially fill in the information concerning the DOE, then provide
reproduced copies of the partially completed form for its
fingerprinters to use. The person who actually takes the fingerprints
would then easily be able to complete the form with the information
specific to the person being fingerprinted.
6. The Service will charge DOEs an application fee that is based on
actual cost. The Service is proposing to charge $370 for an initial
application and $200 for a renewal to underwrite the processing and
administrative costs incurred in the DOE certification process. The
proposed fee, which is supported by an estimated fee analysis, is based
on costs relating to staffing, training of Service personnel on DOE
certification process, adjudication of applications, oversight of DOEs,
as well as providing fingerprinting training to DOEs. In addition, due
to concerns for national security, the Service is proposing to require
all employees of outside entities responsible for taking fingerprints
to pass an FBI fingerprint-check. Since the fingerprint check and
related processing currently costs the Service about $23 per person, an
employer will also be required to pay an additional fee of $23 for each
of its employees submitted for approval or each change of employees.
Although this rule imposes a fee on qualified small business entities
to conduct fingerprinting services, the fee is minimal and will not
have a significant economic impact on small entities. DOEs will be able
to recoup the cost of the fee through the fees they charge for their
fingerprinting services.
7. In addition to the cost of certification and renewals, it is
estimated that each applicant would be required to expend approximately
two and half hours every three years completing the appropriate
application for certification or renewal of certification. The Service
is not asking the applicants to provide more information than what is
necessary for adjudicating their applications.
8. The Service will give the public sufficient time to comment on
the proposal for rulemaking, especially, those small business entities
that will be affected by it. To that end, the Service has set a 60-day
comment period. The Service will consider all comments received within
the comment period and make changes, as appropriate.
Executive Order 12866
This rule is considered by the Department of Justice, Immigration
and Naturalization Service, to be a ``significant regulatory action''
under Executive Order 12866, section 3(f), Regulatory Planning and
Review, and has been reviewed by the Office of Management and Budget.
As noted in the supplementary section of the rule, this action is
intended to facilitate processing of applications for immigration
benefits and protect the integrity of the fingerprinting process, while
reviewing the strain on Service resources.
Executive Order 12612
The regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12606
The Commissioner of the Immigration and Naturalization Service
certifies that she has addressed this rule in light of the criteria in
Executive Order 12606 and has determined that it will not have any
impact on family well-being.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
[[Page 25861]] (Government agencies), Reporting and recordkeeping
requirements.
8 CFR Part 299
Immigration, Reporting and recordkeeping requirements.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations is proposed to be amended as follows:
PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF
SERVICE RECORDS
1. The authority citation for part 103 continues to read as
follows:
Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 1201, 1252
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.
2. In Sec. 103.2 a new paragraph (e) is added to read as follows:
Sec. 103.2 Applications, petitions, and other documents.
(e) Fingerprinting. Service regulations require that applicants for
various types of immigration benefits submit their fingerprints with
the applications. The fingerprinting of these benefit applicants must
be carried out pursuant to the provisions contained in this paragraph
(e).
(1) Fingerprinting by the Service. Where feasible, a Service local
office shall provide fingerprinting service to applicants for
immigration benefits. The district director shall assess available
resources in his or her district office to determine whether the
district office can provide such service.
(2) Certification of designated outside entities. Where the
district director determines that the district office does not have the
resources to provide fingerprinting services, the district director may
certify one or multiple outside entities as a designated outside entity
(DOE) to provide the service. Where a district office does not have the
resources to fingerprint all applicants, the district director may
certify outside entities to take fingerprints to supplement the
district's efforts.
(3) Transition to use designated outside entities. As of 180 days
from the date of publication of the final rule in the Federal Register,
the Service will not accept fingerprint cards for immigration benefits
unless they are taken by:
(i) Designated Service employees;
(ii) A DOE accompanied by a completed attestation, Form I-850A; or
(iii) An outside entity that has completed and filed an application
for DOE status prior to 90 days from the date of publication of the
final rule in the Federal Register may, pending the Service's action
upon its application, take fingerprints and complete the Form I-850A,
indicating that its application for DOE status is pending. This
provisional authority for an outside entity shall cease if its
application is denied or as of 180 days from the date of publication of
the final rule in the Federal Register, whichever occurs first.
(4) Eligibility for DOE. An outside entity applying for DOE status
may be either a business, a not-for-profit organization, a Federal,
state, or local law enforcement facility, or an individual.
(i) An individual must establish that he or she is a United States
citizen or lawful permanent resident, and has not been convicted of an
aggravated felony or any crime involving dishonesty or false statement
or subjected to a civil penalty for fraud.
(ii) A business or a not-for-profit organization must establish
that it is of no known disrepute, that the majority (more than 50%) of
its ownership is comprised of United States citizen(s) or lawful
permanent resident(s), and that its principal officers, directors or
partners meet the standard for individual applicants. Subsidiaries of
foreign corporations may be exempted from the ownership requirement,
provided that the subsidiary is incorporated in the United States.
(iii) A Federal, state or local law enforcement facility may
register as a designated outside entity but does not need to comply
with the requirements in this paragraph regarding operating licenses,
identification and training of employees or application fees.
(5) Criminal history records check.
(i) An identification and criminal history record check is required
for each person listed on the application for DOE certification. The
district director shall designate Service personnel of the district
office to obtain and transmit fingerprints to the Federal Bureau of
Investigation (FBI) for such checks. If a DOE needs to add new or
replacement employees to the personnel approved by the Service, it must
file a new application, with the required fee for the FBI fingerprint
check, with the district director having jurisdiction over the DOE's
place of business. The Service will accept fingerprints from an
applicant for DOE-certification only if the fingerprints were taken by
designated Service personnel.
(ii) An employee who has been convicted of an aggravated felony or
a crime involving dishonesty or false statement, or subjected to a
civil penalty for fraud, may not be assigned to take fingerprints,
unless the DOE can establish to the Service's satisfaction that the
circumstances of the crime are such (because of the person's youth at
the time of the conduct, and/or the number of years that have passed
since then) that there can be no reasonable doubt as to the person's
reliability in taking fingerprints in conformity with these rules.
(6) Requirements. Except as provided under paragraph (e)(9), an
outside entity seeking certification as a DOE must agree that it will:
(i) Abide by Service regulations governing certification of DOEs;
(ii) Permit Service personnel to make on-site inspections to ensure
compliance with required procedures;
(iii) Ensure that the personnel responsible for taking fingerprints
received training in fingerprinting procedures by the Service or FBI
(exceptions can be made for those who have previously received training
from the FBI or the Service or who can otherwise demonstrate
proficiency);
(iv) If training in fingerprinting is in progress or has been
scheduled and will be conducted prior to the approval of the
application, notification of completion of training must be made to the
district director where the application was filed;
(v) Use only FBI or Service-trained employees to train its new
employees on fingerprinting procedures (exceptions can be made for
those who have previously received training from the FBI or the
Service) to conduct periodic refresher training as needed;
(vi) Make every reasonable effort to take legible and classifiable
fingerprints, using only black ink;
(vii) Retake the applicants' prints free of charge if the DOE
initially fails to take legible and classifiable prints;
(viii) Use only fingerprint cards (Forms FD-258 or other Service
specified forms) that were provided by the Service for all fingerprints
taken for immigration purposes;
(ix) Ensure that the fingerprint cards are correctly completed
using FBI prescribed identity codes;
(x) Ensure that the fingerprint cards are signed by the applicants
in their presence, and by the fingerprinter;
(xi) Verify the identification of the person being fingerprinted by
comparing the information on the fingerprint card, Form FD-258, or
other Service specified forms with the applicant's passport, alien
registration card, or other acceptable Service issued photo-ID;
(xii) Complete an attestation on Form I-850A and provide it to the
person being fingerprinted along with the fingerprint
cards; [[Page 25862]]
(xiii) Note on the fingerprint card, Form FD-258, or other Service
specified forms that it has been certified by INS as a DOE, giving its
DOE certification number (including the fingerprinter's ID number),
expiration date, name, and address;
(xiv) Charge no more than a reasonable fee, if a fee is charged,
and make that amount known to the Service;
(xv) Immediately notify the director having jurisdiction over the
applicant's place of business of any changes in personnel responsible
for taking fingerprints;
(xvi) Request approval for any new personnel to take fingerprints
according to the procedures set forth in paragraphs (e) (4), (5), (6),
(8), and (9) of this section;
(xvii) Notify the Service of any conviction for a crime involving
dishonesty or false statement or civil penalty for fraud subsequent to
the DOE's certification of an employee authorized to take fingerprints;
and
(xviii) Maintain clean and suitable facilities that are accessible
to the general public.
(7) Attestation.
(i) To ensure the integrity of the fingerprint cards submitted by
applicants for benefits, all DOE fingerprinters must fill out an
attestation on Form I-850A each time they take fingerprints for an
immigration benefit applicant. Such attestation must be signed and
dated by the fingerprinter and show:
(A) The fingerprinter's name and ID number (as assigned by the
Service) and a statement that the requirements of Sec. 103.2(e) have
been met;
(B) The name, address, certification number (as assigned by the
Service) and expiration date of the certified DOE;
(C) That he or she has checked the identity of the person he or she
fingerprinted and has listed the identification number from the
individual's passport, alien registration card, or other acceptable
Service issued photo-ID; and
(D) That it is signed and dated by the benefit applicant.
(ii) DOE fingerprinters must execute the attestations in duplicate
in the presence of the applicant. The original copy must be given to
the applicant to be filed with the Service with his or her fingerprint
card, and the second copy, which may be a reproduced copy of the first
one, must be kept on file at the DOE for at least three months for
Service inspection.
(8) Application. An outside entity seeking certification as a DOE,
or a DOE seeking approval for personnel change, must submit an
application on Form I-850, Application for Certification as a
Designated Outside Entity to Take Fingerprints, to the director having
jurisdiction over the applicant's place of business. The application
must include the following:
(i) The required fee;
(ii) A copy of all business licenses or permits required for its
operations;
(iii) The names and signatures of personnel who will take
fingerprints of applicants for immigration benefits;
(iv) A set of fingerprints taken by a Service employee on Form FD-
258 for each employee whose name appears on the application form
pursuant to paragraph (e)(4) of this section, and the required fee (for
each employee) for the FBI criminal history record check;
(v) A statement on Form I-850 indicating the fee, if any, it will
charge for the fingerprinting service; and
(vi) A signed statement on Form I-850 attesting that it will abide
by the Service regulation governing fingerprinting and the
certification of DOEs.
(9) Registration of police stations or military police facilities.
(i) Federal, state, or local police stations or military police
facilities may individually register to take fingerprints of applicants
for immigration benefits by filing a Form I-850, Application for
Certification as Designated Outside Entity to Take Fingerprints,
completing only the relevant parts of the form. No fee or fingerprint
cards need to be submitted for their personnel charged with the
fingerprinting responsibility; nor are these personnel required to have
additional training in fingerprinting techniques and procedures.
Furthermore, law enforcement agencies registered to take fingerprints
under this paragraph are not subject to on-site inspections by the
Service. The Service will communicate with these agencies through
regular liaison channels at the local level.
(ii) A police department may request registration on behalf of all
of its subordinate stations on a single application by listing their
precinct numbers and addresses. Once registered, the Service will
include the individual police stations and military police facilities
on the DOE listings and make available to them the Service's
fingerprinting regulations and instructions.
(10) Confidentiality. A DOE is prohibited from releasing
fingerprints taken pursuant to certification, other than to the Service
or to the applicant or as otherwise provided in the Service's
regulations. Law enforcement agencies enumerated under paragraph (e)(9)
of this section are not precluded from using the fingerprints they have
collected for immigration purposes in other law enforcement efforts.
(11) Approval of application. The district director shall consider
all supporting documents submitted and may request additional
documentation as he or she may deem necessary. When the application has
been approved, the district director shall assign a certification to
the DOE and individual ID numbers to its approved fingerprints. The
approval will be valid for a period of 3 years and may be renewed in
accordance with paragraph (e)(13) of this section. The district
director shall notify the applicant of the approval and include in the
notice of approval the following items:
(i) Instructions on how to prepare Applicant Fingerprint Cards,
Form FD-258;
(ii) A listing of acceptable Service issued photo-IDs; and
(iii) A statement detailing the DOE's responsibilities and rights,
including the renewal and revocation procedures as provided by
paragraph (e) of this section.
(12) Denial of the application. The applicant shall be notified of
the denial of an application, the reasons for the denial, and the right
to appeal under 8 CFR part 103.
(13) Renewal.
(i) Subject to paragraph (e)(13)(ii) of this section, a DOE may
apply for renewal of its certification at least ninety (90) days prior
to the expiration date to prevent interruption in its ability to
provide fingerprinting services. An application for renewal must be
made on Form I-850 with the required fee and documentation as continued
in paragraph (e)(8) of this section. In considering an application for
renewal, the Service will give particular weight to the volume and
nature of complaints or issues that have been raised in the past with
respect to the DOE, by the Service, the FBI, or the public, or the
absence of such complaints or issues. Each renewal shall be valid for 3
years. Failure to apply for renewal will result in the expiration of
the outside entity's DOE status.
(ii) The Service will certify and renew DOEs as long as the need
for their service exists. Following the development of an automated
fingerprint information system, the Service will determine if there is
a continued need for the DOEs' services, and if so, whether they should
switch to newer technologies, such as acquiring compatible automated
fingerprinting equipment. In either event, the Service shall issue a
public notification or make a new rule, as appropriate. Nothing in this
paragraph shall preclude the [[Page 25863]] Service from discontinuing
the DOE certification program after the initial three years.
(14) Revocation of certification. The district director shall
revoke an approval of application for DOE status under the following
circumstances:
(i) Automatic revocation. The approval of any application is
automatically revoked if the DOE:
(A) Goes out of business prior to the expiration of the approval;
or
(B) Files a written withdrawal of the application.
(ii) Revocation on notice. The Service shall revoke on notice the
certification of a DOE which has violated the regulations governing the
fingerprinting process as established in paragraph (e) of this section.
(A) If the district director finds a DOE fails to meet the required
standards, he or she will issue a notice of intent to revoke detailing
reasons for the intended revocation. Within 30 days of the receipt of
the notice, the DOE may submit evidence of rebuttal or request an
inspection following corrective actions. The district director shall
cancel the notice of intent to revoke if he or she is satisfied with
the evidence presented by the DOE or the results of a reinspection.
(B) For egregious violations, such as failure to verify the
identity of the persons seeking fingerprinting, the district director
may, in his or her discretion, issue a suspension order and place the
DOE on immediate suspension. The DOE under suspension may submit a plan
for corrective action to the district director within 30 days and
request a reinspection. If the district director approves the plan, he
or she shall permit the DOE to resume fingerprinting on probation
pending the results of the reinspection. The district director shall
cancel the suspension order if he or she finds the results of a
reinspection satisfactory.
(C) If the DOE fails to submit evidence of rebuttal or corrective
actions within the 30-day period, or if unsatisfactory conditions
persist at the second inspection, the district director shall notify
the DOE of the revocation decision, detailing the reasons, and of its
rights to appeal.
(D) The district director shall consider all timely submitted
evidence and decide whether to revoke the DOE's approval.
(iii) If the Service's investigation uncovers evidence of material
misconduct, the Service may, in addition to revocation, refer the
matter for action pursuant to section 274C of the Act (civil document
fraud), 18 U.S.C. 1001 (false statement), or other appropriate
enforcement action.
(15) Appeal of revocation of approval. The revocation of approval
may be appealed to the Associate Commissioner for Examinations under 8
CFR part 103. There is no appeal from an automatic revocation.
(16) List of DOEs. Each district office shall make available a list
of the DOEs it has certified to take fingerprints. Such list shall
contain the name, address, telephone number, if available, and the fee
of each DOE certified in the district.
(17) Change of address or in fee. A DOE shall promptly report to
the Service, on Form I-850, any change of address or in the fee it is
charging. The district office shall update the list of DOEs and their
fees upon receipt of the notice of changes.
3. In Sec. 103.7, paragraph (b)(1) is amended by adding to the
listing of forms, in numerical sequence, the entry for ``Form I-850''
to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-850. For filing application for certification as designated
outside entity--$370 plus $23 for each fingerprint check for initial
certification; $200 for renewal of certification; and $23 for each
fingerprint check for adding or replacing employees. No fee will be
charged to police stations or military police facilities registering
pursuant to Sec. 103.2(e)(9).
* * * * *
PART 299--IMMIGRATION FORMS
4. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
5. Section 299.1 is amended by adding to the listing of forms, in
numerical sequence, the entry for Forms ``I-850 and I-850A'' to read as
follows:
Sec. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Form No. Edition date Title
------------------------------------------------------------------------
* * * * *
I-850....... XXXXX....... Application for Certification as Designated
Outside Entity to Take Fingerprints.
I-850A...... XXXXX....... Attestation by Designated Outside Entities
Certified to Take Fingerprints.
------------------------------------------------------------------------
* * * * *
6. Section 299.5 is amended by adding to the listing of forms, in
proper numerical sequence, the entry for Forms ``I-850 and I-850A'' to
read as follows:
Sec. 299.5 Display of control numbers.
* * * * *
------------------------------------------------------------------------
Currently
INS form No. INS form title assigned
OMB
------------------------------------------------------------------------
* * * * *
I-850....... Application for Certification as Designated 1115-0166
Outside Entity to Take Fingerprints.
I-850A...... Attestation by Designated Outside Entities 1115-0194
Certified to Take Fingerprints.
------------------------------------------------------------------------
* * * * *
Dated: March 24, 1995.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
Note: Appendix A and B will not appear in the Code of Federal
Regulation.
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