QuestionMar 29, 2021 - 17:11
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US Office of Biometric Identity Management: statutory and regulatory authority?
The US records fingerprints of foreign visitors formerly used a system called US-VISIT, and now known as the Office of Biometric Identity Management. It might be implied that this process is performed under the authority of 8 USC, Chapter 12, Subchapter II, Part VII, Registration of Aliens. However, it is indicated that Title 8 and associated regulations do not describe the operation of OBIM. For instance, in accordance to 8 CFR 264.1(e)(2), fingerprinting is waived for essentially every nonimmigrant who remains in the US for less than a year: (e) Fingerprinting waiver. (1) Fingerprinting is waived for nonimmigrant aliens admitted as foreign government officials and employees; international organization representatives, officers and employees; NATO representatives, officers, and employees, and holders of diplomatic visas while they maintain such nonimmigrant status. Fingerprinting is also waived for other nonimmigrant aliens, while they maintain nonimmigrant status, who are nationals of countries which do not require fingerprinting of United States citizens temporarily residing therein. (2) Fingerprinting is waived for every nonimmigrant alien not included in paragraph (e)(1) of this section who departs from the United States within one year of his admission, provided he maintains his nonimmigrant status during that time; each such alien not previously fingerprinted shall apply therefor at once if he remains in the United States in excess of one year. Based on my personal experience, I can attest that individuals falling under paragraph (1) are not fingerprinted; however, most other nonimmigrants are fingerprinted at the border contrary to paragraph (2). Under what authority is that fingerprinting performed?"
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