[Federal Register Volume 61, Number 108 (Tuesday, June 4, 1996)]
[Rules and Regulations]
[Pages 28003-28020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13856]
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DEPARTMENT OF JUSTICE
Immigration and Naturalization Service
8 CFR Parts 103 and 299
[INS No. 1666-94]
RIN 1115-AD75
Certification of Designated Fingerprinting Services
AGENCY: Immigration and Naturalization Service, Justice.
ACTION: Final rule.
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SUMMARY: This rule amends the Immigration and Naturalization Service
(Service) regulations by certifying designated fingerprinting services
(DFS) to take fingerprints of applicants for immigration benefits. This
rule establishes the eligibility requirements and application
procedures for DFS certification. When the rule is implemented, it will
facilitate the processing of applications for immigration benefits,
protect the integrity of the fingerprinting process, and relieve the
strain on Service personnel resources.
EFFECTIVE DATE: This rule is effective July 5, 1996. Entities desiring
to continue providing fingerprint services for immigration benefits
without interruption must file an application for DFS status in
accordance with the standards of this rule no later than November 1,
1996. After December 31, 1996, the Service will not accept fingerprints
taken by entities who have not filed an application for DFS
certification and been approved by the Service.
FOR FURTHER INFORMATION CONTACT:
Jack Rasmussen, Adjudications Officer, or Kathleen Hatcher,
Adjudications Officer, Adjudications Division, Immigration and
Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC
20536, telephone (202) 514-3240; Kim Mangan, Adjudications Officer,
Immigration and Naturalization Service, 2901 Metro Dr., Suite 100,
Bloomington, MN 55425, telephone (612) 335-2234; Delia Ramirez,
Adjudications Officer, Immigration and Naturalization Service, EOFP 6th
Fl., P.O. Box 30080, Laguna Niguel, CA 92607-0080, telephone (714) 360-
3314; or Yolanda Sanchez, Adjudications Officer, Immigration and
Naturalization
[[Page 28004]]
Service, 509 N. Belt, Houston, TX 77060, telephone (713) 229-2833.
These are not toll-free numbers.
SUPPLEMENTARY INFORMATION:
Background
Applicants for various types of immigration benefits are required
to submit a set of fingerprints along with their applications. These
fingerprints are forwarded to the Federal Bureau of Investigation (FBI)
for criminal history records clearance. The Service's field offices
frequently have been unable to provide timely fingerprinting services
due to the fluctuating demand in many localities. As a result of these
fluctuating fingerprinting demands, applicants for immigration benefits
frequently sought fingerprinting services from outside enterprises.
Initially, the Service gauged the quality of outside fingerprinting
through reviewing and evaluating individual application fingerprint
documents. However, with increasing volume of applications requiring
fingerprints, this approach proved to be less than effective. In
addition, concerns were raised about the integrity of fingerprints
submitted with many applications. In February of 1994, the Inspector
General of the Department of Justice completed a study regarding the
Service's fingerprint controls. The study identified two major
deficiencies as follows: (1) the Service relies on unknown and
untrained outside entities to prepare fingerprints and (2) the Service
does not know if the fingerprints submitted by the applicants are their
own. Additionally, the Office of Inspector General (OIG) pointed out
that fingerprint cards submitted by 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.
Following the OIG report, the General Accounting Office (GAO)
conducted an audit of the Service's fingerprint collection process and
ratified the OIG's findings. Furthermore, on July 14, 1994, the Senate
Committee on Appropriations included language directing that the
Service implement a fingerprint collection system which permits only
trained Service employee, recognized law enforcement agencies, or
Service-certified outside entities to take fingerprints.
The Service responded by revising and refining its policies and
publishing these in a notice of proposed rule making in the Federal
Register on May 15, 1995 (60 FR 25856) with a 60-day public comment
period. The public comment period ended on July 14, 1995. The notice of
proposed rulemaking presented a certification process that included
eligibility criteria, certification requirements, application
procedures, and a date on which the Service will stop accepting
fingerprint cards prepared by unauthorized organizations.
Name Change From DOE to DFS
In the proposed rule the Service referred to organizations
certified to take fingerprints as ``DOEs'' (Designated Outside
Entities). The Service has made a technical name change from ``DOE''
(Designated Outside Entity) to ``DFS'' (Designated Fingerprinting
Services) in order to minimize confusion and ambiguity with other
organizations performing functions ``outside'' the Service. This
technical name change to ``DFS'' (Designated Fingerprinting Services)
more accurately describes the specific function or services being
provided by the certified and designated organization(s). Furthermore,
the Service desires to increase outside or community-based partnership
roles in other areas related to immigration forms or documents, and
many immigration-related service organizations have expressed concern
that the certification given these outside entities may have been
interpreted beyond the intended fingerprinting role.
Discussion of Comments
Forty-four individuals or groups submitted comments. Most
commenters strongly supported the fingerprinting certification process.
Many expressed an interest in seeking DFS status. Only three commenters
preferred the current fingerprinting procedures over the new
certification process. The following is a summarized discussion of
those comments and the Service's response.
Section 103.2(e)(1) Fingerprinting by the Service
One commenter stated that the purpose of this regulation is to
establish oversight of organizations that charge a fee for
fingerprinting services. This commenter indicated that this purpose
should be clearly stated in the regulation. The Service believes that
the proposed regulation was clear on this point but has added language
to the last sentence of the general statement in the introductory text
of paragraph (e) to make the purpose of this regulation more explicit.
Another commenter suggested that the Service stop providing
fingerprinting service altogether and, instead, rely entirely on
certified DFS(s). The intent of the proposed rule was to make available
to INS customers high quality fingerprinting services. In areas where
there may not be sufficient business interest in the DFS process,
Service personnel will continue to offer fingerprinting services.
Accordingly, INS local offices have the flexibility to make decisions
based on local conditions.
In Sec. 103.2(e)(2) of the proposed rule, the Service provided that
when district offices do not have the resources to provide
fingerprinting services, they shall certify ``one or multiple outside
entities'' as DFS(s) to provide the service. One commenter asked INS to
clarify whether this provision gave the district director broad
discretionary authority to limit the number of DFS(s) he or she would
certify. On closer review of this provision, the proposed language
could be misleading or improperly construed as allowing the district
director to designate a single or a discretionary number of DFS(s) for
the entire immigration district. This particular interpretion of the
proposed provision would be at odds with the Service's expectation that
all district directors certify as many DFS(s) as there are qualified
applicants. In the final rule, the Service revised the language in the
proposed Sec. 103.2(e)(2) and merged it with Sec. 103.2(e)(1) to
clearly reflect this policy. The text in Sec. 103.2(e)(1) now includes
the provision that ``the district director shall consider all qualified
applicants for DFS certification and certify applicants who meet the
regulatory standards to supplement the district's efforts.''
Section 103.2(e)(2) Designated Fingerprinting Services
The Service has renamed the new Sec. 103.2(e)(2) as ``Designated
fingerprinting services'' and clarified the different procedures
involving the two classes of designated fingerprinting services: (1)
Designated law enforcement agencies (Federal, state, and local police
or military police); and (2) other businesses, organizations, and
individuals. As a law enforcement agency, a Federal, state, or local
police department may register with the Service to gain automatic DFS
status but is exempted from the requirements in this paragraph
regarding operating licenses, identification and training of employees,
attestation, inspections, or application fees. On the other hand, all
other designated fingerprinting services, including businesses,
individuals, or not-for-profit organizations, must abide by the
regulations and procedures established in Sec. 103.2(e).
[[Page 28005]]
Section 103.2(e)(3) Transition to use Designated Fingerprinting
Services
The Service has decided to implement the DFS Certification Program
in two stages: (1) As of 120 days from the effective date of this final
rule, the Service will require that all fingerprints submitted must be
taken by a Service employee, a DFS fingerprinter, a recognized law
enforcement agency, or an intending DFS who has completed and filed an
application for certification with the Service; and (2) As of 180 days
after the effective date of the final rule, the Service will no longer
accept fingerprint cards for immigration benefits that are taken by
unauthorized fingerprinters. However, the Service inadvertently
misstated in paragraph (e)(3)(iii) that an intending DFS or
organization would have only 90 days to file an application for DFS
certification instead of 120 days. This has been corrected in the final
rule under paragraph (e)(3)(i).
Two commenters were concerned that possible delays in the
processing of applications for DFS certification or renewal would
interrupt the applicants' businesses. They suggested that where delayed
adjudication occurred, the Service grant the applicants an automatic
grace period provided that the applications were timely filed (in the
case of initial certification, within the 120-day window, in the case
of renewal, 90 days before the certification expires). The Service
recognizes these concerns and has stressed the importance of timely
processing to its field personnel during training sessions on DFS
certification. The Service is confident that DFS applications will be
processed quickly, but agrees that in case of lengthy processing
delays, the district director may, on a case-by-case basis, grant
discretionary relief to applicants of a timely filed application to
avoid interruption to their businesses.
Section 103.2(e)(4) Eligibility for DFS
The Service proposed that DFS(s) be U.S. citizens or lawful
permanent residents (LPRs), and in the case of a business entity, that
the majority ownership of the business be held by U.S. citizens and
LPRs. One commenter opposed this requirement, arguing that people with
other immigration status could also be entrusted with this
responsibility. Another commenter said that the majority-ownership
requirement would require not-for-profit organizations to inquire into
the legal status of their volunteer officers, and that these inquiries
could be perceived as an invasion of privacy and deter interested
individuals from participating in volunteering work.
The U.S. citizens and LPR requirements were designed for security
purposes. Since the Service will have to rely on the DFS(s) to ensure
the integrity of the fingerprinting process, the status of United
States citizen or permanent resident creates a reasonable presumption
of allegiance and loyalty. While the Service is not persuaded that not-
for-profit organizations should be exempted from the U.S. citizen and
LPR requirement, the ownership provision may pose an undue burden on
private organizations. Specifically, the burden imposed by this
requirement does not result in an equal or better enhancement to
security needs. Therefore, and until the DFS certification program may
be evaluated over time, the Service has now determined that the
ownership provision is not necessary. The ownership language was
removed.
Section 103.2(e)(5) Criminal History Records Check
The same commenter also requested that not-for-profit organizations
and their employees be exempt from the FBI fingerprint check, arguing
that this requirement would invade their privacy and deter
participation by volunteers who are usually prominent and accomplished
members of the society. Another commenter asked for a waiver of the FBI
fingerprint check for not-for-profit entities approved by the Board of
Immigration Appeals under the provisions of 8 CFR 292.2. Although it is
true that persons affiliated with BIA-approved entities under
Sec. 292.2 generally are respected and accomplished individuals, this
is also likely to be true of other outside fingerprinters. Since there
is no objective way to pre-determine any individual's moral character,
it would be unfair for the Service to selectively exempt groups of DFS
applicants from the FBI fingerprint check. The objective of this
fingerprint check is to strengthen and restore the integrity of this
security process. Information obtained from the fingerprint check will
not be shared with any entity other than the organization seeking
certification or a law enforcement agency should there be an
outstanding warrant.
The Service proposed to bar from DFS status any individuals who
have been convicted of an aggravated felony or a crime involving
dishonesty or false statement, or who have been subjected to a civil
penalty for fraud. However, exceptions could be made for an employee of
an outside entity if convincing mitigating factors exist--for example,
the person's youth at the time of the crime or the number of years that
have elapsed since the offense. Two commenters objected to this
provision, arguing that there are no uniform standards that can be used
to determine rehabilitation of a convicted felon. These commenters
urged that all convicted felons be barred from taking fingerprints
regardless of when the crime was committed. As a rule, the Service will
not approve a convicted felon as a DFS fingerprinter. However, if a
convicted felon can demonstrate that he or she has since been
rehabilitated and has led a productive, constructive and law-abiding
life in his or her community and our society for many years, the
district director may approve such an individual as a fingerprinter.
However, the Service believes that cases like this should be evaluated
on a case-by-case basis. In any case, the district director will not
approve a DFS fingerprinter with a felony conviction unless the
individual can satisfactorily and clearly demonstrate a record of
rehabilitation. The burden of proof rests solely with the applicant.
Section 103.2(e)(6) Requirements
Paragraph (e)(6)(ii)
The commenters were evenly divided on the issue of unannounced on-
site inspections. Three commenters, all would-be DFS(s), were opposed
to the requirement that a DFS permit unannounced on-site inspections by
the Service to ensure compliance with regulatory requirements. These
commenters felt that Government oversight of their businesses was not
needed because they regularly monitor their own employees. One
commenter was concerned that surprise visits by the Service would be
disruptive to DFS activities and violate the confidentiality of
individuals seeking legal assistance. On the other hand, several
commenters praised the Service's initiative in this regard. One
commenter pointed out that his organization enjoyed a good rapport with
the Service's field personnel when working with them during the
Legalization Program, and is looking forward to working closely with
the Service again as a DFS.
As explained earlier, the Service undertook this rulemaking to
restore integrity and establish oversight of the fingerprint process.
The unannounced on-site inspection requirement is a quality control
feature designed to ensure compliance with the DFS(s) certification
requirements. At the same time, on-site inspections provide the Service
with the opportunity to stay in active communication with the DFS(s),
[[Page 28006]]
enabling the Service to evaluate the effectiveness of the DFS
certification program. Only by observing DFS(s) at work during their
regular business hours can the Service determine whether the objectives
of the DFS certification are being met. The Service will conduct these
inspections in a reasonable and nonintrusive manner in order to
minimize disruption to DFS operations.
Paragraph (e)(6)(iii)
The Service proposed that outside entities be trained in
fingerprinting techniques and procedures by the FBI or the Service
before receiving certification, but that exceptions could be made for
an individual who could demonstrate proficiency in fingerprinting
techniques. One commenter pointed out that an individual who is
proficient in taking fingerprints may not be knowledgeable about the
various DFS responsibilities and requirements. Since the training
focuses both on fingerprinting techniques and certification
requirements, including completion of the attestation form and proper
photo-ID verification, it was recommended that only those who have had
``equivalent training'' be exempt from the training requirement. The
commenter's point is well taken and has been adopted.
Paragraph (e)(6)(iv)
The Service proposed that DFS applicants notify the Service of the
completion of any scheduled training prior to the approval of their
applications. One commenter recommended that DFS(s) be required to
complete any scheduled training within 60 days of the submission of the
application. The Service considered this suggestion, but decided that a
time limit is not necessary since a DFS employee is not permitted to
take fingerprints until he or she has been approved by the Service. A
DFS employee who fails to complete the scheduled training in a timely
manner will only delay his or her employment. To clarify that the
Service will not approve a DFS employee unless he or she completes the
required training, paragraph (e)(6)(iv) has been modified to require
DFS(s) to ``notify the district director, where the application was
filed, and when the completion of fingerprinting training occurred
prior to the approval of the application, if such training was not
completed but was in progress or had been scheduled at the filing of
the application.'' Additionally, a correction has been made in
paragraph (e)(6)(v) to insert the word ``and,'' which was inadvertently
left out in the proposed rule, between ``(exceptions can be made for
those who have received training from the FBI or the Service)'' and
``to conduct periodic refresher training as needed.''
Paragraph (e)(6)(vii)
The proposed rule would require DFS(s) to offer free retakes if
they prepared illegible fingerprints that were rejected by the FBI. One
commenter suggested that the Service include a statement on its fee
receipts to benefit applicants that DFS(s) are obligated to retake
illegible fingerprints free of charge. Two other commenters were
concerned that the benefit applicants would need some kind of proof to
show who took the rejected fingerprints. Another commenter stated that
Federal, state, and local police registered as DFS(s) should also give
free retakes since they too charge a fee for taking fingerprints.
Recognizing that benefit applicants will need to show proof of
rejection by the FBI to the responsible DFS(s) in order to receive free
retakes, the Service suggests that claimants for free retakes show the
notice they will receive from INS that they must resubmit their
fingerprints along with a sales receipt from the responsible DFS.
Police agencies registered with the Service as DFS(s) are subject to
the same free retake requirement if they charge a fingerprinting fee.
Paragraph (e)(6)(viii)
The proposed rule would require the DFS(s) to submit fingerprints
on FD-258 and other Service-designated forms. One commenter wondered if
DFS(s) would be expected to take fingerprints for applicants seeking to
replace their Alien Registration Cards on Form I-90. Form I-90,
Application for Replacement of Alien Registration Card, and Form I-765,
Application for Employment Authorization Document, will be included in
the group of fingerprint forms DFS(s) are authorized to prepare after
they have been revised to incorporate a fingerprint block and a DFS
attestation. But the Service will have to undertake rulemaking before
implementing these planned revisions.
Paragraph (e)(6)(xi)
The Service proposed that DFS(s) verify the identification of the
individuals they fingerprint by comparing their photo-IDs with the
information on their fingerprint cards. The proposed rule would require
DFS(s) to accept only passports, alien registration cards (green cards)
or other Service-issued photo-IDs for identification verification. Six
commenters protested that this requirement was to restrictive because
it excluded many people who were in lawful status but who did not
possess either a passport or a Service-issued photo-ID, such as
refugees, asylees, or even some United States citizens. The commenters
recommended that DFS(s) be allowed to accept state-issued photo-IDs,
such as a driver's license. The Service's intent in this requirement
was two-fold: (1) to exclude photo-IDs that can be easily
counterfeited; and (2) to keep the verification process as simple and
clear as possible. But the Service agrees that the list of acceptable
photo-IDs may be expanded without compromising the integrity of the
photo-ID verification process to include other valid photo-IDs.
Therefore, foreign national identification documents have been added to
the list of acceptable documents. Two (2) examples of national
identification documents which may be acceptable are those issued by
the Government of Hong Kong and Taiwan. Likewise, military
identification documents issued by the Northern Atlantic Treaty
Organization would be acceptable. Additionally, drivers' licenses and
state-issued photo identification documents have been added to the list
of acceptable documents. The final rule has been revised to reflect
these changes.
Paragraph (e)(6)(xiii)
It was proposed that the DFS provide specific information on the
fingerprint card, FD-258, or other Service- designated documents. The
specific information to be provided by the DFS included the following:
(1) The DFS had been certified by the Service; (2) The name and address
of the DFS; (3) The DFS certification number, including the expiration
date; and (4) The fingerprinter's name and employee Identification
number. One commenter recommended that DFS(s) be required to put this
information on a rubber stamp. The Service agrees that a standardized
rubber stamp would be more efficient insofar as the information needed
from the DFS. Accordingly, the DFS may use a rubber stamp if he or she
desires. The regulation requires that stamped or written information be
placed on the backside of the fingerprint card in the space reserved.
Should the DFS use a rubber stamp it is recommended that the stamped
information be clearly legible and fit into the space (four inches
[4''] wide, and one and one quarter inches [1\1/4\''] high). The
specific information provided on a rubber stamp must contain the
information listed as items (1) through (4) in this paragraph.
Additionally, it is required that the specific information provided on
the rubber stamp also include a space for
[[Page 28007]]
the fingerprinter's signature and the date the fingerprints were taken.
The DFS may also imprint a blank stamp, with DFS(s) original signature
and date, on a sealed envelope which contains the completed fingerprint
document. When the envelope containing the completed fingerprint
document is sealed, that envelope may not be opened or altered. The
Services has revised paragraph (e)(6) in the final rule to reflect
these changes.
Paragraph (e)(6)(xiv)
It was proposed that DFS(s) be allowed to charge a reasonable fee
for providing fingerprinting services and that the fees be published in
a list distributed by each INS district office. Two commenters
recommended that, in order to keep the fee reasonable, the Service
should impose a limit on fees. Another commenter suggested that the
Service was proposing to control the fees DFSs charge by disclosing
that information to competitors, and maintained that DFS fees should be
determined entirely by competition in the marketplace. The Service's
position on the fee issue is motivated by two policies: (1) DFS(s)
should be allowed to set prices and compete for business; and (2) the
consumers' interests are to be protected. In including the fee
information on the DFS list, the Service is ensuring that consumers
will have the information they need while allowing DFS(s) to compete
for customers by offering the best value and service.
Paragraph (e)(6)(xv)
One commenter suggested that the Service define the term
``immediately'' as used in the proposed rule, which would require
DFS(s) to immediately report to the Service any changes in personnel
responsible for taking fingerprints. Since DFS(s) may not employ any
fingerprints without prior approval by the Service, this reporting
requirement is really intended to provide notice to the Service when
fingerprinters are no longer employed in those positions. The approval
of a DFS fingerprinter is conditioned on his or her continued
employment with a particular DFS employer. To protect the integrity of
the Service's master DFS listings, it is important that DFS(s) report
personnel changes as soon as they take place. For the purpose of this
paragraph, a DFS is encouraged to report personnel changes in advance
where feasible, and is required to notify the district director having
jurisdiction over the DFS(s) business location of a personnel change
within 2 working days. The final rule reflects this change.
The Service also considered and rejected a suggestion that it
require DFS(s) to post a $500 bond to guarantee retakes for benefit
applicants who were provided with poor quality fingerprints. The
Service believes that the DFS regulation provides sufficient
performance incentives. A requirement to post a performance bond would
be too much of a burden on the DFS(s) and the Service.
Paragraph (e)(6)(xviii)
One commenter suggested that the Service remove the requirement to
maintain ``clean and suitable agencies that are accessible to the
public,'' asking ``who will determine what is clean and suitable or
whether there is sufficient access to the public?'' The commenter
raised a valid point. Since all businesses must comply with various
public safety and health regulations imposed by the relevant Federal,
state, and local governments, the Service agrees that it should defer
to the responsible governments in this case. However, since the DFS(s)
are certified to provide fingerprinting services to applicants for
immigration benefits, they must operate at permanent business locations
that are accessible to the public. Moreover, except in situations where
DFS(s) have made advance arrangements to process groups of applicants
off-site, DFS(s) are expected to conduct their fingerprinting
businesses at the addresses given on their applications for
certification. Accordingly, paragraph (e)(6)(xviii) was revised to
include the joint requirement that DFS(s) ``maintain facilities which
are permanent and accessible to the public.'' The use of this joint
requirement specifically excludes facilities described as private
homes, vans or automobiles, mobile carts, and removable stands or
portable storefronts.
Section 103.2(e)(7) Attestation
Four commenters thought that the requirement of a DFS attestation
on Form I-850A for each person fingerprinted was unnecessary and unduly
burdensome. Two of the commenters recommended that the attestation be
stamped on or incorporated into the fingerprint card, FD-258, instead.
Two other commenters suggested that DFS(s) be required to retain copies
of their attestations for 1 year instead of 3 months. One of these
commenters said that DFS(s) should keep copies of the attestations
longer than 3 months as a way of tracking their own customers in cases
where free retakes were needed.
The fingerprint card, FD-258, is a Federal Bureau of Investigation
(FBI) form that can only be revised by that agency. Any change to the
design of the form will have an effect on the FBI's automated
fingerprint classification process. The Service will refer this
suggestion to the FBI for its consideration. The Service is reluctant
to increase the administrative burdens by lengthening the period for
which DFS(s) must keep copies of their attestations on file. The
rationale for the 3-month requirement is to provide the Service with a
sample of the quality of the DFS' work. However, any DFS is free to
maintain copies of attestations for a longer period as a way to verify
fingerprinting sales and reconcile requests for retakes.
Paragraph (e)(7)(ii)
It was also suggested that the terms ``the original copy'' and
``the second copy'' as used in the proposed rule be changed to ``the
original'' and ``the copy.'' The suggestion was adopted and paragraph
(e)(7)(ii) was amended to reflect this change. Finally, due to the
expansion of the types of photo-IDs acceptable for identification
verification purposes as prescribed by paragraph (e)(6)(xi) of the
final rule, parallel changes have been made to paragraph (e)(7)(i)(C)
to ensure consistency.
Section 103.2(e)(8) Application
Three commenters asked whether there was a limited application
period and whether DFS(s) certified by a given Service local office
were limited to providing service to people who resided within the
jurisdiction of that office. An outside organization may file an
application for DFS certification at any time after the final rule
takes effect. However, only those currently providing fingerprinting
services who file within the initial 120 days may continue to take
fingerprints without interruption. Those who file after the 120-day
window will have to wait until their applications are approved to begin
taking fingerprints. Once an organization obtains DFS certification,
the DFS is not limited to taking fingerprints of benefit applicants who
reside in the same jurisdiction. A certified DFS may take fingerprints
of applicants who reside in other jurisdictions, but any completed
fingerprint card must bear the specific code for the Service office
where the fingerprint card will be filed. For example, a DFS certified
by the New York District Office may fingerprint a visitor from San
Francisco on an FD-258 fingerprint card if the correct Originating
Agency Identifier (ORI) code for San Francisco is entered in the block
labeled ORI. At the same time, a DFS
[[Page 28008]]
with multiple locations which fall under the jurisdiction of the same
Service district director may file a single application, with one fee,
by including all the business locations and employees. However, DFS(s)
with cross-jurisdiction locations will have to file separate
applications for business offices that fall under the jurisdiction of
different district directors. Each application must include the
required fee and information on all business locations and employees in
that jurisdiction.
One commenter suggested that the Service make DFS applications a
part of the public record. This suggestion was not adopted because
applications contain, in part, information that is private or
proprietary. Those portions that are subject to release are available
under the Freedom of Information Act, 5 U.S.C. 552.
Section 103.2(e)(9) Registration of Police Stations or Military Police
Agencies
One commenter proposed that local police in rural areas be allowed
to continue their fingerprinting services since certified DFS(s) might
be a long distance away. Two commenters complained that the police were
not adequately regulated, attaching alleged examples of poor quality
fingerprinting work by local police stations. Another commenter wanted
college and university campus police to be granted DFS status without
registration. The Service understands that people living in remote
areas rely on the local police for fingerprinting service, and has
always intended to include the police as DFS(s). The DFS regulation
provides that Federal, state, and local police, as well as military
police, can automatically become DFS(s) if they register with the
Service. Once registered, they will be placed on the DFS list and
receive updates of the DFS regulation and requirements. Further, campus
police who have general arrest authority pursuant to a state statute,
and who have met the training requirements established for law
enforcement officers, are exempted from the DFS requirements and may
follow the streamlined registration procedures reserved for law
enforcement agencies. Clarifying language has been added to
Sec. 103.2(e)(2)(i) to explain this point.
Section 103.2(e)(11) Approval of Application
The Service has made typographical corrections in the second
sentence of the introductory text to paragraph (e)(11) by: (1)
inserting the word ``number'' between the word ``certification'' and
the word ``to;'' and (2) replacing the word ``fingerprints'' with
``fingerprints.'' That sentence now reads: ``When the application has
been approved, the district director shall assign a certification
number to the DFS and individual ID numbers to its approved
fingerprints.''
Section 103.2(e)(12) Denial of the Application
Three commenters asked the Service to clarify the appeals process
available to DFS applicants whose applications are denied. DFS
applicants are entitled to appeal rights as provided by 8 CFR 103.3 and
8 CFR 103.5. DFS applicants who wish to appeal a denial decision may
file an appeal on Form I-290B, with the required fee, with the
Service's Administrative Appeals Office (AAO) within 30 days of the
decision. DFS applicants may also file a motion to reopen or reconsider
with the Service district office having jurisdiction.
Section 103.2(e)(17) Change of Address or in Fee
Under the proposed rule, a DFS was required to report promptly, to
the district director having jurisdiction over the DFS(s) place of
business, any change in address or in fee. One commenter thought that
the proposed requirement was inadequate in that it did not require the
DFS to report these changes in advance. This commenter argued that it
would be difficult to preserve fair competition among DFS(s) and
protect the consumers unless DFS(s) were required to report changes in
address or in fee in advance. In order to give the Service sufficient
time to update its DFS listings and to make that information available
to the public, the commenter suggested that DFS(s) be required to
report these changes at least 10 working days before they occur. The
Service concurs that the public should be protected from possible fee
manipulation by DFS(s) and that the DFS listings will not have the
intended effect unless the public is provided with accurate information
about DFS fees and locations. Accordingly, the Service has adjusted the
final rule to require a 10-working day advance notice for changes in
address or fee. DFS(s) who make unreported fee changes are subject to
revocation of their DFS status as provided by paragraph (e)(17). Note
that the requirement of a permanent address does not preclude a DFS
from processing groups of applicants off site, such as processing
applicants for naturalization at a school auditorium.
Miscellaneous Items
1. Opposing Views
Three commenters preferred the current system, stating that the
proposed regulation was unnecessary and burdensome. One commenter
challenged the OIG report, arguing that there had been no known report
of fraud in the submission of fingerprints. As explained in the
background section of the supplemental information, the Service
initiated this rulemaking to provide integrity to its benefits
adjudications process and to address the concerns of the Senate
Committee on Appropriations and the Department of Justice's Office of
Inspector General (OIG). It has been established that 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. In drafting this rule, the Service has
carefully considered the policies of Executive Order 12866 and the
Regulatory Flexibility Act and has attempted to ensure that the
intended objectives are met without unduly burdening the affected small
businesses.
2. Application Fee
Three commenters protested the application fee of $370. One of them
suggested that the Service underwrite the costs of administering the
DFS certification program, including training. The other two said the
estimated costs for training and monitoring were too high. However,
another commenter said the Service underestimated the program costs,
maintaining that the proposed application fee of $370 was not enough to
offset the administrative costs of the program.
The Service's Adjudications program does not receive any
appropriated funds from Congress. Instead, it is authorized by Congress
to collect user fees to support its functions. In order to determine
the appropriate application fee for the DFS Certification Program, the
Service conducted a fee analysis based on estimated processing and
administrative costs, such as staffing, training of Service personnel
on the DFS certification process, adjudication of applications,
oversight of DFS(s), and providing fingerprinting training. The actual
cost of running the DFS Certification Program will not be known until
it has been fully implemented. At that time, the Service will determine
whether the fee structure needs to be adjusted.
One other commenter recommended that the Service make special
provisions
[[Page 28009]]
for outside entities with multiple business locations across the
country. This commenter suggested that businesses with multiple
locations be allowed to file a single application with a single
application fee, and that a site fee of $35 be charged for each
additional location to cover administrative and monitoring costs. While
the regulation allows DFS(s) with multiple business locations within
the jurisdiction of the same Service district to file a single
application with a single fee, it does not provide for certification of
a national fingerprinting service with cross-jurisdiction business
locations. However, the Service agrees that outside entities with
multiple locations in the jurisdiction of the same district office will
incur greater administrative and monitoring costs and should be
required to pay a site fee for each location. Because the public has
not been offered the opportunity to comment on the concept of a site
fee, the Service has decided to defer the consideration of a site fee
until after the full implementation of the DFS certification program.
If it is evident then that the application fee was below cost, the
Service will make appropriate adjustments to the application fee
structure through rulemaking.
As noted in our earlier discussions regarding Sec. 103.2(e)(8), due
to regulatory limitations placed on the district director's authority,
a district director cannot approve DFS(s) operating outside of his or
her jurisdiction. Therefore, while DFS(s) with multiple business
locations in the same INS district only needs to file one application
with one fee, DFS(s) with multiple business operations in different INS
districts must file a separate application, with the required fee, with
each district director having jurisdiction over the business
location(s).
3. Free Space for Photographing and Fingerprinting Studios
One commenter protested that the Service gives preferential
treatment to not-for-profit organizations. This commenter cited as an
example the free use of studio space (for fingerprinting and/or
photographing services), in the Service's local offices, by certain
not-for-profit organizations. The commenter argued that this practice,
as provided by 8 CFR 332.2, unfairly disadvantaged other competing
business entities and had to be changed. Indeed, 8 CFR 332.2 provides
that district directors may make available, free of charge, space
within district offices for the ``establishment and operation of
studios providing photographic services, fingerprinting services or
both.'' It further provides that these studios must be ``operated by
sponsoring organizations on a nonprofit basis solely for the benefit of
persons seeking to comply with the requirements of the immigration and
naturalization laws.'' During the implementation period of the
legalization program, as provided by the Immigration Reform and Control
Act (IRCA) of 1986, the Service's local Legalization offices often had
studios operated by not-for-profit organizations. However, due to
overcrowding and lack of resources, most district offices have ended
this practice over the past few years. Moreover, the remaining agencies
operating under Sec. 332.2 remain subject to the separate restrictions
of these regulations. This new program addresses a larger group of
organizations which is largely not subject to Sec. 332.2.
4. Not-For-Profit Organizations and Entities Approved by the Board of
Immigration Appeals (BIA) under 8 CFR Part 292
Twenty-one of the commenters are not-for-profit organizations which
were accredited for representation of others by the BIA. They asked
that they be granted automatic DFS status, without fee. These
commenters argued that they should not have to apply for DFS status
because they had already been approved by the BIA. They further argued
that not-for-profit organizations were typically under-funded, and the
proposed application fee of $370 would pose a significant financial
burden for them. They also argued that they were limited to charging
only a ``nominal fee'' that could not be used to supplement their
administrative costs.
The Service is sympathetic to these commenters' financial
difficulties and is willing to assist where feasible. But because the
Service's benefit programs are all supported by user fees, the DFS
Certification Program must also be funded by its user--the DFS
applicants. Waiving the fee or the application requirement for not-for-
profit organizations would be perceived as giving preferential
treatment to special interest groups. Moreover, the Service would be
obligated to charge other DFS applicants a higher fee to offset the
costs incurred by the not-for-profit organizations.
When the $370 application fee is apportioned for 3 years, the
period during which a DFS certification remains valid, the annual
certification cost is $123, which can easily be passed on to the users
as a service charge. The Service is of the opinion that entities
accredited for representation by the BIA are not in violation of the
``nominal fee'' provision of 8 CFR 292.2, when they charge a reasonable
fee for fingerprinting services.
Some commenters proposed that the Service exclude from DFS
certification any entity which has had a history of offering assistance
in matters involving the immigration law without a license. They were
concerned that these practitioners would exploit unknowing aliens if
authorized to provide fingerprinting services. One commenter suggested
that DFS applicants be required to sign a statement on the application
form attesting to compliance with the requirements of 8 CFR 292, which
prescribes the authority to represent applicants for immigration
benefits. This commenter also suggested that the Service require DFS
applicants to list all other services that they provide in addition to
fingerprinting to ensure that they were not ``practicing law without
authorization.''
The sole purpose of the DFS regulation (8 CFR 103.2(e)) is to
establish eligibility requirements and application procedures for
outside entities who wish to be approved as fingerprinters. The
authority granted to outside entities certified under 8 CFR 103.2(e) is
limited to providing fingerprinting services. Meanwhile, 8 CFR 292
provides for the accreditation of individuals or organizations that
wish to represent aliens before the Service and/or the Board of
Immigration Appeals (BIA). Qualified individuals or organizations must
apply to the BIA for accreditation. Since the governing regulations
clearly define the scope and conditions of each of these two types of
authorizations, it is unlikely that there will be confusion about their
purposes. However, to avoid the possibility that outside entities might
exploit their DFS status, the Service has added a new paragraph (e)(18)
in the final rule to prohibit them from engaging in any kind of
advertisement or presentation which may create a false impression that
they are authorized by the Service to do more than fingerprinting.
DFS(s) are prohibited from using images of the Service's logo type or
official seal on any of their stationery, information flyers, or
advertisements. When dealing with the public or advertising for
business, a DFS is required to refer to itself as ``an INS-Authorized
Fingerprinting Service.'' Violators are subject to revocation of their
DFS status as provided by 8 CFR 103.2(e)(18).
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
[[Page 28010]]
collections are contained in 8 CFR 299.5, Display of Control Numbers.
Regulatory Flexibility Act
The Commissioner of the Immigration and Naturalization Service, in
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has
reviewed this regulation and, by approving it, certifies that the rule
will not have a significant economic impact on a substantial number of
small entities. The Service has drafted this rule in a way to minimize
the impact that it has on small business while meeting its intended
objectives.
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 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 rule.
The Service has considered significant alternatives to this 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 agencies. 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 taken be legible and
classifiable; that DFS personnel charged with the responsibility to
take fingerprints pass an FBI criminal history records check; and that
such DFS personnel be trained in fingerprinting or otherwise be able to
demonstrate their proficiency.
Executive Order 12866
The Immigration and Naturalization Service, Department of Justice,
considers this rule be a ``significant regulatory action'' as defined
by section 3(f) of Executive Order 12866. With perhaps as many as 3,000
entities likely to file for DFS certification, this rule may lead to
the collection of application fees that would ``materially alter the
budgetary impact of * * * user fees * * * or the rights and obligations
of recipients'' of the related services. The Office of Management and
Budget has conducted the necessary review of this rule.
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. The objectives of this
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
cerrtification of designated fingerprinting services to take
fingerprints. The legal basis for this rule is the authority conferred
upon the Attorney General and delegated to the Service under section
103 (a) and (b) of the Immigration and Nationality Act to establish
regulations needed to carry out its functions. 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.
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.
List of Subjects
8 CFR Part 103
Administrative practice and procedure, Authority delegations
(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 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, 11201, 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. Section 103.1 is amended by:
a. Removing the ``and'' from paragraph (f)(3)(iii)(LL),
b. Removing the ``.'' from the end of paragraph (f)(3)(iii)(MM) and
replacing it with a ``; and'', and by
c. Adding a new paragraph (f)(3)(iii)(NN), to read as follows:
Sec. 103.1 Delegations of Authority.
* * * * *
(f) * * *
(3) * * *
(iii) * * *
(NN) Application for Certification For Designated Fingerprinting
Services under Sec. 103.2(e) of this chapter.
3. 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. To ensure they have access to reputable
fingerprinting services, the fingerprinting of these benefit applicants
must be carried out pursuant to the fingerprinting service provisions
established in this paragraph.
(1) Fingerprinting by the Service. Where feasible, a local Service
office shall provide fingerprinting service to applicants for
immigration benefits. Also, the district director shall consider all
qualified applicants for DFS certification and certify applicants who
meet the regulatory standards to supplement the district's efforts.
Where district Service personnel are providing fingerprinting services,
the district director may end such services when he or she determines
that there are sufficient outside or private fingerprinting services
available at a reasonable fee.
(2) Designated fingerprinting services. (i) Law enforcement
agencies. Federal, state, or local police, or military police, in the
United States are not required to apply for DFS certification. However,
it is essential that any Federal, state, and local police, or military
police, that provide fingerprinting services to applicants for
immigration benefits be familiar with the Service's fingerprinting
regulations and requirements. In order to receive updates on such
regulations and requirements, a policy agency that does provide such
services must register with the Service pursuant to procedures
prescribed by Sec. 103.2(e)(9). Campus police departments having
general arrest powers pursuant to a State statute and meeting training
requirements
[[Page 28011]]
established by law or ordinance for law enforcement officers are
included within the category of state or local police departments for
purposes of Sec. 103.2(e).
(ii) Other business entities or individuals. Businesses and
individuals who apply and qualify shall, subject to the requirements of
Sec. 103.2(e), be approved by the Service to provide fingerprinting
services.
(3) Transition to use designated fingerprinting services. As of
December 31, 1996, the Service will not accept fingerprint cards for
immigration benefits unless they are taken by:
(i) A DFS accompanied by a completed attestation, Form I-850A,
Attestation by Designated Fingerprinting Services Certified to Take
Fingerprints;
(ii) An intending DFS or organization that has completed an filed
an application for DFS status prior to November 1, 1996 which may,
pending the Service's action upon its application, take fingerprints
and complete the Form I-850A, indicating that its application for DFS
status is pending. This provisional authority for an outside entity
shall cease if its application is denied or as of December 31, 1996
whichever occurs first.
(iii) A recognized law enforcement agency that is registered as a
DFS; or
(iv) Designated Service employees.
(4) Eligibility for DFS. An outside entity applying for DFS status
may be a business, a not-for-profit organization, 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 related to dishonesty or false
statements involving a civil penalty for fraud.
(ii) A business or a not-for-profit organization must establish the
identity of its chief operations officer, who exercises primary and
oversight control over the organization's operations, and its
fingerprinting employees; and the business or a not-for-profit
organization must establish that the chief operations officer and
fingerprinting employees are United States citizens or lawful permanent
resident(s), and that its principal officers, directors, or partners
meet the standard for individual applicants.
(iii) A Federal, state, or local law enforcement agency may
register as a designated fingerprinting service. However, a law
enforcement agency is not required to comply with the operating
license(s), identification and training of employees, criminal record
history check, attestation, or application fee provisions in this
paragraph.
(5) Criminal history records check.
(i) An identification and criminal history record check is required
for each employee or person as otherwise described in paragraphs (e)(4)
(i) and (ii) of this section who will take fingerprints listed on the
application for DFS 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 DFS needs to add new or replacement employees to the
personnel approved by the Service, it must file a new application with
the district director having jurisdiction over the DFS's place of
business. That new application must be accompanied by the required fee
for the FBI fingerprint check. The Service will accept fingerprints
from an applicant for DFS certification only it the fingerprints were
taken by designated Service personnel.
(ii) An employee who has been convicted of an aggravated felony or
a crime involving dishonestly or false statement, or who has been
subjected to a civil penalty for fraud, may not be assigned to take
fingerprints unless the DFS can establish to the Service's satisfaction
that the circumstances of the offense are such (because of the person's
youth at the time of the offense, and/or the number of years that have
passed since its commission) 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) of this
section, an outside entity seeking certification as a DFS must agree
that it will:
(i) Abide by Service regulations governing certification of DFS(s);
(ii) Permit Service personnel and Service contract 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 equivalent
training);
(iv) Notify the district director where the application was filed
when the completion of fingerprinting training occurred prior to the
approval of the application, if such training was not completed but was
in progress or had been scheduled at the filing of the application;
(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) and 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 DFS
initially fails to take legible and classifiable prints;
(viii) Use only the fingerprint card(s), Form(s) FD-258, or other
Service-designated documents to take fingerprints for immigration
purposes;
(ix) Ensure that the fingerprint card(s) or other Service-
designated fingerprint documents are completed in accordance with the
instructions provided, using FBI prescribed personal descriptor codes;
(x) Ensure that the fingerprint card(s) or other Service-designated
forms 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-designated forms with the applicant's passport, national
ID, military ID, driver's license or state-issued photo-ID, alien
registration card, or other acceptable Service-issued photo-ID;
(xii) Complete an attestation on Form I-850A, Attestation by
Designated Fingerprinting Service Certified to Take Fingerprints, and
provide it to the person being fingerprinted;
(xiii) Note (legibly by hand or using a rubber stamp) on the back
of the fingerprint card, Form FD-258, or a Service designated
fingerprint document, the DFS's name and address, certification number,
expiration date, the DFS fingerprinter's ID number and signature, and
the date on which the fingerprints are taken. The DFS fingerprint shall
seal the completed fingerprint card or fingerprint document, and sign
or imprint a stamp with an original signature crossing the sealed area.
(xiv) Charge only reasonable fees for fingerprinting services, and
the current fee status is to be made known to the Service;
(xv) Notify the director having jurisdiction over the applicant's
place of business within 2 working days, on Form I-850 without fee, 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
[[Page 28012]]
(e) (4), (5), (6), (8), and (9) of this section;
(xvii) Notify the Service of any conviction for an aggravated
felony or for a crime involving dishonesty or false statement, or of
any civil penalty for fraud subsequent to the DFS certification of an
employee authorized to take fingerprints; and
(xviii) Maintain facilities which are permanent and accessible to
the public. The use of the terms permanent and accessible to the public
shall not include business or organizational operations in private
homes, vans or automobiles, mobile carts, and removable stands or
portable storefronts.
(7) Attestation.
(i) To ensure the integrity of the fingerprint cards submitted by
applicants for benefits, all DFS fingerprinters must fill out an
attestation on Form I-850A each time they take fingerprints for an
immigration benefit applicant. Such attestation mut 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 DFS certification;
(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, national ID, military ID, driver's license or
state-issued photo-ID, alien registration card, or other acceptable
Service-issued photo-ID; and
(D) That it is signed and dated by the benefit applicant.
(ii) DFS fingerprinters must execute the attestations in duplicate
in the presence of the applicant. The original must be given to the
applicant to be filed with the Service with his or her fingerprint
card, and the copy, which may be a reproduced copy of the original,
must be kept on file at the DFS for at least 3 months for Service
inspection.
(8) Application. An outside organization seeking certification as a
DFS, or a DFS seeking approval for personnel change, must submit an
application on Form I-850, Application for Certification for Designated
Fingerprinting Services, to the district 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 and if the organization is a not-for-profit entity,
documented evidence of such status;
(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 the DFS will
abide by the Service regulation governing fingerprinting and the
certification of designated fingerprinting services.
(9) Registration of police stations or military police agencies.
(i) Federal, state, or local police stations, or military police
agencies, may individually register to take fingerprints of applicants
for immigration benefits by filing a Form I-850, application for
Certification for Designated Fingerprinting Services, 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 agencies on
the Service's list of DFS organizations. The Service will make
available to these agencies the fingerprinting regulations, related
instruction material or other relevant information when appropriate.
(10) Confidentiality. A DFS 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
number to the DFS and individual ID numbers to its approved
fingerprinters. 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 DFS(s) responsibilities and rights,
including the renewal and revocation procedures as provided by
paragraphs (e) (12) and (13) 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 to the AAO under 8 CFR part 103.
(13) Renewal (i) Subject to paragraph (e)(13)(ii) of this section,
a DFS must 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
contained in paragraph (e)(8) of this section. In considering an
application for renewal, the Service will give appropriate weight to
the volume, nature, and the substance of complaints or issues raised in
the past regarding that particular DFS and or relevant circumstances
which are made known to the Service by the general public, other
governmental or private organizations, or through Service inspections.
Also, the Service will favorably consider 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 DFS status.
(ii) The Service will certify and renew DFS(s) 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 DFS' services and, if so, whether they should
switch to newer technologies, such as acquiring compatible automated
fingerprinting
[[Page 28013]]
equipment. In either event, the Service shall issue a public
notification or issue a new rule, as appropriate. Nothing in this
paragraph shall preclude the Service, in its discretion, from
discontinuing the DFS certification program after the initial 3 years
or from requiring, as a condition of continued certification, that the
DFS incorporate automated fingerprinting equipment.
(14) Revocation of certification. The district director shall
revoke an approval of application for DFS status under the following
circumstances:
(i)Automatic revocation. The approval of any application is
automatically revoked if the DFS:
(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 DFS which has violated the regulations governing the
fingerprinting process as established in paragraph (e) of this section.
(A) If the district director finds that a DFS has failed 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 DFS may submit evidence in 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 DFS or the results of a
reinspection.
(B) For flagrant 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 DFS on
immediate suspension. During the suspension period, the DFS may not
take fingerprints, and the Service will not accept fingerprints taken
by the suspended DFS. The DFS 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 DFS to resume fingerprinting on probation pending the
results of the reinspection and the Service will resume accepting
submitted fingerprints. The district director shall cancel the
suspension order if he or she finds the results of a reinspection
satisfactory.
(C) If the DFS 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 DFS of the revocation decision, detailing the reasons, and of its
right to appeal.
(D) The district director shall consider all timely submitted
evidence and decide whether to revoke the DFS approval. The district
director shall also decide whether any such revocation shall preclude
accepting fingerprints taken by that DFS (or any of its offices or
employees) during some or all of the period of its certification.
(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 (Penalties for
Document Fraud), or 18 U.S.C. 1001 (false statement), or for other
appropriate enforcement action.
(15) Appeal of revocation of approval. The revocation of approval
may be appealed to the Service's Administrative Appeals Office (AAO).
There is no appeal from an automatic revocation.
(16) List of DFS(s). Each district office shall make available a
list of the DFS(s) it has certified to take fingerprints. Such list
shall contain the name, address, telephone number, if available, and
the fingerprinting fee charge, if any, of each DFS certified in the
district.
(17) Change of address or in fee. A DFS shall notify the Service,
on Form I-850, without an application fees, of any change(s) of address
or change(s) in the fee charged for fingerprinting at least 10 working
days before such a change takes place. The district office shall update
its DFS list, including any fingerprinting fee changes, upon receipt of
the notice of change(s).
(18) False advertising or misrepresentation by a DFS. Designated
fingerprinting services are prohibited form exploiting their DFS status
by creating the impression that they are authorized by the Service to
do more than fingerprinting. DFS(s) are prohibited from using the
Service logo on their stationery, flyers, or advertisements. When
dealing with the public or advertising for business, a DFS may refer to
itself only as ``an INS-Authorized Fingerprinting Service.'' DFS(s)
found in violation of this requirement are subject to suspension or
revocation actions pursuant to Sec. 103.2(e)(14).
4. In Sec. 103.7, paragraph (b)(1) is amended by adding to the
listing of forms, in proper numerical sequence, the entry for ``Form I-
850'' to read as follows:
Sec. 103.7 Fees.
* * * * *
(b) * * *
(1) * * *
* * * * *
Form I-850. For filing an application for certification as a
designated fingerprinting service--$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,
military police or campus police agencies registering pursuant to
Sec. 103.2(e)(9).
* * * * *
PART 229--IMMIGRATION FORMS
5. The authority citation for part 299 continues to read as
follows:
Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.
6. Section 299.1 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. 299.1 Prescribed forms.
* * * * *
------------------------------------------------------------------------
Edition
Form No. date Title
------------------------------------------------------------------------
* * * * *
I-850....................... 05-21-96 Application for Certification
for Designated Fingerprint
Services.
I-850A...................... 05-21-96 Attestation by Designated
Fingerprinting Service
Certified to Take
Fingerprints.
* * * * *
------------------------------------------------------------------------
7. 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
assigned
INS form No. INS form title OMB control
No.
------------------------------------------------------------------------
* * * * *
I-850....................... Application for Certification 1115-0193
for Designated
Fingerprinting Services.
I-850A...................... Attestation by Designated 1115-0194
Fingerprinting Service
Certified to Take
Fingerprints.
* * * * *
------------------------------------------------------------------------
[[Page 28014]]
Dated: February 28, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.
[Note: Appendix A and B will not appear in the Code of Federal
Regulations]
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[FR Doc. 96-13856 Filed 6-3-96; 8:45 am]
BILLING CODE 4410-10-C
