Richard A. Sloan
Director
Policy Directives and Instructions Branch
U.S. Immigration and Naturalization Service
Room 5307
425 I Street, NW
Washington, DC 20536

Attention: Public Comment Clerk

Re: Comments to INS Interim Rule Regarding Adjustment of Fingerprinting Applicants and Petitioners for Immigration Benefits [INS No. 1891-97; RIN 1115-AF03 (63 Federal Register 12979, March 17, 1998)]

Dear Mr. Sloan:

These comments are submitted on behalf of the American Immigration Lawyers Association in response to the publication of an interim rule to amend existing regulations relating to fingerprinting applicants and petitioners for benefits under the INA.

The American Immigration Lawyers Association (AILA) is a voluntary bar association of approximately 5,000 attorneys and law professors who practice and teach in the field of immigration and nationality law. AILA’s objectives include the advancement of law pertaining to immigration, nationality and naturalization, to promote reforms and facilitate justice in this field.

Through its members, AILA has significant experience with the administration of U.S. immigration law and policy by the federal and state agencies charged with this task. In particular, we have significant collective expertise in the area of immigration benefits and are uniquely qualified to evaluate the impact of this rule on the individuals, families and businesses who will be affected by it.

In general, we understand the Service’s mandate to issue revisions to its regulations pursuant to changes made by the Department of Justice Appropriations Act of 1998 (Public Law 105-119) to fingerprinting requirements, particularly in the naturalization context. We appreciate the Service’s desire for uniform procedures with regard to producing fingerprints for all benefits for which fingerprints are required. However, we are concerned that the haste with which this regulation was promulgated will adversely affect thousands of applicants for immigration benefits who are caught having to meet these requirements. Our specific concerns follow.

1. The lack of adequate time between publication and implementation adversely affected certain classes of people. As discussed in the Supplementary Information, the Department of Justice Appropriations Act of 1998 was enacted on November 26, 1997. Among other things, this legislation ended the Designated Fingerprinting Services (DFS) program, the program under which fingerprints for all immigration applications requiring fingerprints were taken. It required that the Service accept only fingerprints taken by a Service office, a registered State or law enforcement agency, or a U.S. consular or military office abroad. The Service mobilized at that time to accelerate the opening of its Application Support Centers (ASCs) to fulfill the Service’s ability to take fingerprints.

The Service does not mention, however, that the legislation made a significant distinction between applications for naturalization and those for non-naturalization benefits also requiring fingerprints. The Service was given only seven days to implement the requirement that it take the fingerprints of every naturalization applicant. However, no such requirement was imposed on those seeking benefits other than naturalization. For most members of the affected public, in fact, the only viable option through early 1998 was the use of registered law enforcement agencies (LEAs) and not ASCs, which have opened slowly and steadily through the spring of 1998.

With the publication of the interim rule, however, all applicants for non-naturalization benefits were given twelve days’ notice that their LEA fingerprints must be received by the Service or be rejected. While this may not have adversely affected would-be applicants, it has had a significant impact on those who had applications or petitions pending at the time of the change, whose fingerprints had been rejected at one point in their processing. These applicants were working on a request to resubmit prints from the service. Once this rule became effective, however, those requests became invalid, unknown to the applicants. AILA has since learned that the Service has no way to identify these individuals to apprise them of the need to have fingerprints retaken at an ASC, nor any way to schedule them for the now-required appointments.

Another class of persons affected are those derivative beneficiaries of applications for adjustment of status who are in danger of “aging out.” These persons are close to their 21st birthdays, and have filed applications pursuant to a parent’s adjustment. However, the change in the obtaining of fingerprints mandated by the interim rule will cause some of these applicants to require an appointment at an ASC to obtain new fingerprints, which may take months to schedule (see below). As a result, these individuals may turn 21 and lose their right to the immigrant status sought.

2. The Service was unprepared, and remains unprepared, to implement fully the now- mandatory requirement for Service-issued fingerprints. The Service required in the interim rule that all non-naturalization applicants must now obtain fingerprints at an ASC, submitting in advance (with underlying application) a fee of $25.00 per fingerprint card. In theory, the Service Centers are to fee in these fingerprinting “requests” and schedule appointments for each applicant at the ASC nearest their residence. In reality, however, the Service can do neither of these things.

AILA has been advised (and subsequent practice has shown) that the Service Centers have not been able to accept the $25.00 fingerprinting fee. The software in use at the Service Centers was not modified to allow acceptance of the fingerprinting fee with any application. This oversight has caused confusion and the return of the fee in some cases. The Service Centers have been able to override this software difficulty only to a limited degree through manual issuance of receipts. The software has, to date, not been modified to accommodate the fee. The lack of proper planning to accommodate the fee has further stretched the limited resources of the Service Centers.

The Service Centers have also had additional difficulties in coordinating the scheduling of appointments at the ASCs. The software is again, apparently, at fault. There is no compatibility between the functions responsible for the ASC scheduling and the Service Centers. As a result, manual connections and human intervention to circumvent the problem have had to be used, wasting precious human resources and considerably slowing the process, as well as the amount of time required to adjudicate the petitions. This only exacerbates current Service problems with delays in adjudications and the adverse (and sometimes permanent) effect delays have on applicants.

Conclusion

Accordingly, AILA submits that a final rule must take into account these concerns and adjust Service practices to accommodate these adverse consequences. Until the Service has the ability to fully implement the mechanics of the rule, AILA suggests that the rule be revoked for those seeking non-naturalization benefits. These applicants should be able to revert to the former practice of obtaining fingerprints at an LEA and submitting the fingerprints with the application. This should continue to be the practice until (1) the Service can accommodate the entering of the fee into its computer system and (2) actually schedule appointments at the ASCs for all applicants without human intervention. In the alternative, we suggest that the Service Centers appoint ombudsmen to work with the public in identifying and resolving crisis cases, in particular those who will face an aging-out process (or permit these applicants to be grandfathered for a limited period of time to complete the process). Applicants seeking benefits at the Service should not under any circumstances be permanently barred from obtaining the benefits they seek because of the Service’s inability to act because of computer difficulties.

We appreciate the opportunity to present these views and remain available for further discussions at the Service’s convenience. Sincerely,

American Immigration Lawyers Association
Elissa McGovern
Associate Director for Liaison

23RE7005