Mark A Ivener, A Law Corporation

DHS Proposes Biometric Airport and Seaport Exit Procedures

The U.S. Department of Homeland Security (DHS) proposed a rule on April 22, 2008, that would establish biometric exit procedures at all U.S air and sea ports of departure. The majority of non-U.S. citizens and non-permanent residents, except for Canadians, are already required to submit digital fingerprints and a digital photograph for admission into the country. The US-VISIT exit proposal would require non-U.S. citizens who provide biometric identifiers for admission to provide digital fingerprints when departing the U.S. from any air or sea ports of departure.

The DHS said that visitors departing the U.S. should continue to return their paper Form I-94 or Form I-94W to airline or ship representatives. The DHS completed a test of biometric exit procedures at several U.S. airports and seaports last year. Based on the results, the DHS determined that biometric exit procedures must be integrated into the existing traveler process to ensure compliance and provide visitors with a consistent experience from port to port.

The proposed rule would require commercial air carriers and cruise line owners and operators to collect and transmit international visitors’ biometric information to DHS within 24 hours of leaving the U.S. Carriers are already required to transmit biographic information to DHS for all passengers before their departure from the U.S. The proposed rule does not designate a specific location within the port of departure for biometric collection and does not apply to small carriers or vessel owners and operators, or to general aviation.

The rule proposes a performance standard that requires the carriers to collect biometric information on the premises of the facility from which the passenger departs the U.S., but provides the carriers with some discretion in the manner of collection and submission to allow the carriers to meet the requirements in the most efficient and cost-effective manner.

The DHS requests public comments on all of the alternatives discussed in the proposed rule and the underlying assumptions and analyses. Although the proposed rule identifies means for collection of biometrics, personnel, and methods of transmission, the agency said it also welcomes proposals on alternatives that have not been proposed in the rule. The most useful proposals or alternatives, the DHS said, would include information on how the proposed alternative would reduce the burden on travelers and the travel industry without sacrificing accuracy in the collection of biometric information.

The DHS intends to implement air and sea biometric exit procedures by January 2009, fulfilling a key provision of the Implementing the Recommendations of the 9/11 Commission Act of 2007. The DHS said the proposed rule will enable the DHS to retain the necessary authority to manage the Visa Waiver Program effectively. If the exit program has not been implemented by June 30, 2009, the department may not be able to extend Visa Waiver Program privileges to new countries. The agency said the waiver authority is critical for the U.S. to invite more of its allies to participate in the Visa Waiver Program.

Comments may be submitted via:

  • Federal Rulemaking Portal: Follow the instructions for submitting comments. All submissions received must include the agency name and docket number (DHS-2008-0039) for this rulemaking. All comments received will be posted without change to, including any personal information provided.
  • Mail: Written comments may be submitted to: Michael Hardin, Senior Policy Advisor, US–VISIT, Department of Homeland Security; 1616 North Fort Myer Drive, 18th Floor, Arlington, Virginia 22209. Submissions must include the agency name and docket number (DHS-2008-0039).

The proposed rule was published in the Federal Register. Following the 60day public comment period and review, a final rule will be published outlining the new requirements and their effective date.

Meanwhile, Sen. Patrick Leahy (D-Vt.) held an oversight hearing on the Department of Homeland Security. The sole witness was Secretary Michael Chertoff. Among other things, Sen. Leahy discussed his concerns about the Department’s implementation of the Western Hemisphere Travel Initiative. “The Department must now make good use of the time Congress has given to make sure that implementation goes smoothly, and to minimize disruption in Americans’ lives and in our relationships with our good neighbors to the north and south,” he said. Sen. Leahy added that “I also share the view of many on both sides of the aisle and across the country about the so-called REAL ID Act and its unfunded mandates for States.” In advance of the hearing, Sen. Leahy said, “The good news is that the Bush administration will not fight the new law that moves the passport requirement to next year. The bad news is that there is little reason to believe DHS will be ready even then.” Statements from Sen. Leahy and Secretary Chertoff are available.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.