On September 11, 2020, the Department of Homeland Security (DHS) will release a new regulation for notice-and-comment that proposes to expand the collection of biometric data and give DHS increased flexibility to deal with emerging needs. Here are a few highlights from the draft 328-page rule.

  • Unless waived by DHS, any applicant, petitioner, sponsor, beneficiary, or individual filing or associated with an immigration benefit or request, including U.S. citizens, must appear for biometrics collection – regardless of age.
  • There will be new biometrics modalities including iris scans, palm prints and voice prints.
  • DHS may require DNA results to prove the existence of a claimed genetic relationship.
  • Foreign nationals who are granted immigration benefits will be subject to continued and subsequent vetting and biometric evaluation until granted U.S. citizenship.
  • New forms will be produced including the new biometrics requirements.

For employers, this may mean that authorized signatories or others associated with a petition filing could be subject to biometrics screenings – even if they are U.S. citizens. It also means that foreign national employees and their dependents will be subject to continuing surveillance and may need to attend numerous biometrics screenings, even absent a new petition or application. In addition, given the increase in biometrics processing and the new proposed modalities, including more DNA screenings, privacy issues will be of great concern for employers and employees alike.

DHS estimates that the draft rule would increase the number of annual biometrics screenings from 3.9 million to 6.07 million. Currently there is a 46% collection rate across all forms. Under the new rule, that would rise to 71%. This increase would be difficult to implement any time soon given the current backlogs at Application Support Centers.

Many observations and critiques will likely be submitted once the Notice-and-Comment Period opens. Jackson Lewis will continue to follow the rulemaking process and provide updates as they become available.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.