US border biometrics changes sent back to public review as visa delays criticized

The U.S. Department of Homeland Security (DHS)

U.S. Customs and Border Protection (CBP) has reopened a public commenting period for the Department of Homeland Security’s (DHS) “Collection of Biometric Data from Aliens Upon Entry to and Departure from the United States,” via the Notice of Proposed Rulemaking (NPRM). The proposed rule was part of the Trump administration’s drive to collect biometric information from non-citizens at all points of entry across the country, Law360 reports.

“As a testament to CBP’s steadfast commitment to privacy principles and transparency, CBP reopened the comment period to the biometric entry and exit proposed rule for an additional 30 days,” says William A. Ferrara, executive assistant commissioner of field operations with U.S. Customs and Border Protection. “We welcome the public’s input to the rule as we work to further secure and enhance a touchless, seamless travel experience through facial biometrics.”

Non-U.S. citizens traveling to and from the United States would be required to take a facial photograph on entry into and exit from the country (however the process is voluntary for citizens, who can request a manual document check). The face biometrics data collection has been in a pilot phase, but under the proposed rule, would be introduced nationwide.

The rule however has come under major criticism from rights groups who are arguing against what they allege is the unreliable nature of facial recognition, as well as the possibility of privacy rights violations. They sent an open letter expanding on reasons why the proposed ruling should be withdrawn. Civil society and rights groups cite China’s extensive surveillance and collection of facial biometric data from the minority Uyghur population as an example of civil rights risks not being properly considered.

Through the first round of public comments in December, the DHS received concerned feedback regarding the system’s use infringing on human rights, civil liberties, citing discriminatory issues in facial imaging technology which can discriminate against certain ethnicities, a view which Amnesty International, among several others including the New York City Mayor’s Office, have echoed according to Law360. Airlines for America, which represents a number of major airlines, is however behind the proposal.

Currently, CBP can only collect biometric information at select entry and exit points, from a limited population, and only where travelers are already required to present proof of identity.

Over 62 million people have participated in the biometric facial comparison process, and the over 400 fraudulent entry attempts using genuine identity documents have been prevented, according to CBP’s press release.

New photos of U.S. citizens will be deleted within 12 hours, while photos of foreign travelers will be recorded in a secure Department of Homeland Security system. Furthermore, CBP has reduced the quantity of personally identifiable information used with the biometric facial recognition.

CBP has said the system “uses a high-quality facial comparison algorithm that shows virtually no measurable differential performance in results based on demographic factors.”

However, U.S. Representative for Mississippi and Chair of the Committee on Homeland Security, Bennie G. Thompson, says that the proposal gave no assurance that an individual’s personal information would not be compromised. Thompson’s concern referred to the data breach of traveler information during a 2019 cybersecurity attack on a CBP contractor that resulted in pilot data being leaked onto the dark web.

The DHS proposed regulations in November which aimed to end biometric data collection exemptions of young people and diplomatic visa holders, through which the agency sought to expand the department’s collection of photographic records of noncitizens. This would mean that immigrant children’s’ records would be traceable through to adulthood.

“The Biden administration is right to closely scrutinize this Trump-era proposal, but it needs to go further,” says Ashley Gorski, a senior staff attorney with the ACLU’s National Security Project, who also said that the CBP should not use the biometric technology.

The CBP currently retains biographic records for 15 years for U.S. citizens and lawful permanent residents and 75 years for non-immigrant aliens, according to the U.S. government’s federal register.

The comment period extension lasts from Wednesday February 10th until Friday March 12th, 2021.

US visa applicants waiting two years for biometrics processing

Wait times for processing applications to meet U.S. Citizenship and Immigration Services’ (USCIS) biometric requirement policies, which include gaining biometrics from spouses of temporary visa holders to grant them legal temporary residence, have ballooned to two years, reports Forbes.

“On March 30, 2019, the Agency’s Senior Policy Council determined it would begin collecting biometrics for H-4 extension applications filed on Form I-539,” according to the plaintiffs in Kolluri v. USCIS, citing that the purpose of the policies were to make working more difficult for spouses.

Without visa extension approval, spouses of H-1B visa holders cannot legally work. ‘H-1B’ spouses are usually in ‘H-4’ status, and the work authorization is called ‘H-4 EAD’ (employment authorization document). The policies are a legacy of the Trump-administration which are preventing spouses of temporary visa holders from working while waiting for approval.

The plaintiffs note that “the agency’s bad faith insistence on biometrics for H-4 visa holders is telling, especially when ‘DHS is not aware of any risk factors – such as fraud, criminal activity, or threats to public safety or national security – associated with H–4 dependent spouses as a whole that would support imposing [additional burdens].’”

Attorney Jon Wasden of Wasden Banias quotes cases where biometrics had been collected but no action had been taken several months later. While Forbes cites a lawsuit which argues that wait times for extensions for spouses of H-1B visas far exceed those of other applicants for extensions, it is yet unclear whether processing times will change under the new Biden administration.

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