DHS reinterprets foreign worker fees to fund biometric border system

The U.S. Department of Homeland Security has proposed a way to fund its Customs and Border Protection Agency’s Biometric Entry-Exit program by changing the fee structure for applications to extend the stay of people on work visas.

CBP has been working on its Biometric Entry and Exit program for nearly a decade. Similarly, Transportation Security Administration (TSA) Administrator David Pekoske warned that TSA’s biometric systems could take 25 years to roll out, specifically attributed the lengthy rollout process to the diversion of funds from a separate 9/11 security fee in a House committee hearing last month.

The 9-11 Response & Biometric Entry-Exit Fee, shortened as the 9-11 Biometric Fee, applies when a work visa is issued, and when extensions are granted due to a change in employer. In other words, if an American company hires a foreign national employee away from a competitor and wants to extend that employee’s stay in the country, they must pay the fee.

A notice of proposed rulemaking sets out a change in which extensions would require the employer to pay the H-1B and L1 fees, regardless of whether of whether the extension-of-stay petition involves a change of employer.

The notice provides an extensive history lesson about the creation of the fees by Congress and the funding for its biometric border program. How exactly the fees were intended to work was always somewhat ambiguous, DHS argues. Public Law 114-113 was passed by Congress at the end of 2015, clarifying some aspects. However, DHS says it “could still be reasonably considered ambiguous concerning the issue of whether covered employers filing extension-of-stay petitions must pay the 9-11 Biometric Fee for all extension petitions or only those involving a change in employer.”

DHS still interpreted the 9-11 Biometric Fee as applying only when the Fraud Fee applies. This was not sufficient, however, as Public Law 114-113 set out that “Congress expressly intended for the 9-11 Biometric Fee to fund the biometric entry and exit programs it mandated earlier in order to improve security, combat visa and travel document fraud, and protect our country against terrorism.”

DHS reviews the intended benefits of biometric border checks, and states that they have proven successful in improving national security and public safety. But the current interpretation of the fees leaves a funding shortfall, DHS says. The Congressional Budget Office estimated $380 million would be collected in 2016, but only $158 million came in, for example.

“Actual collections have fallen short of both anticipated collections and what is necessary to maintain and expand biometric operations” to all air, land, and sea border crossings.

With its proposed change, DHS expects to collect an additional $157.3 million annually, finally allowing it to maintain and expand its biometric border operations to the level mandated by Congress.

This post was updated at 3:20pm Eastern on June 13, 2024 to clarify the distinction between CBP’s proposed funding change and the TSA’s funding shortfall.

Article Topics

biometric exit  |  biometrics  |  border security  |  DHS  |  U.S. Government  |  visas