[Federal Register Volume 61, Number 108 (Tuesday, June 4, 1996)]
[Rules and Regulations]
[Pages 28003-28020]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 96-13856]



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DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 103 and 299

[INS No. 1666-94]
RIN 1115-AD75


Certification of Designated Fingerprinting Services

AGENCY: Immigration and Naturalization Service, Justice.

ACTION: Final rule.

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SUMMARY: This rule amends the Immigration and Naturalization Service 
(Service) regulations by certifying designated fingerprinting services 
(DFS) to take fingerprints of applicants for immigration benefits. This 
rule establishes the eligibility requirements and application 
procedures for DFS certification. When the rule is implemented, it will 
facilitate the processing of applications for immigration benefits, 
protect the integrity of the fingerprinting process, and relieve the 
strain on Service personnel resources.

EFFECTIVE DATE: This rule is effective July 5, 1996. Entities desiring 
to continue providing fingerprint services for immigration benefits 
without interruption must file an application for DFS status in 
accordance with the standards of this rule no later than November 1, 
1996. After December 31, 1996, the Service will not accept fingerprints 
taken by entities who have not filed an application for DFS 
certification and been approved by the Service.

FOR FURTHER INFORMATION CONTACT:
Jack Rasmussen, Adjudications Officer, or Kathleen Hatcher, 
Adjudications Officer, Adjudications Division, Immigration and 
Naturalization Service, 425 I Street, NW., Room 3214, Washington, DC 
20536, telephone (202) 514-3240; Kim Mangan, Adjudications Officer, 
Immigration and Naturalization Service, 2901 Metro Dr., Suite 100, 
Bloomington, MN 55425, telephone (612) 335-2234; Delia Ramirez, 
Adjudications Officer, Immigration and Naturalization Service, EOFP 6th 
Fl., P.O. Box 30080, Laguna Niguel, CA 92607-0080, telephone (714) 360-
3314; or Yolanda Sanchez, Adjudications Officer, Immigration and 
Naturalization

[[Page 28004]]

Service, 509 N. Belt, Houston, TX 77060, telephone (713) 229-2833. 
These are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

Background

    Applicants for various types of immigration benefits are required 
to submit a set of fingerprints along with their applications. These 
fingerprints are forwarded to the Federal Bureau of Investigation (FBI) 
for criminal history records clearance. The Service's field offices 
frequently have been unable to provide timely fingerprinting services 
due to the fluctuating demand in many localities. As a result of these 
fluctuating fingerprinting demands, applicants for immigration benefits 
frequently sought fingerprinting services from outside enterprises. 
Initially, the Service gauged the quality of outside fingerprinting 
through reviewing and evaluating individual application fingerprint 
documents. However, with increasing volume of applications requiring 
fingerprints, this approach proved to be less than effective. In 
addition, concerns were raised about the integrity of fingerprints 
submitted with many applications. In February of 1994, the Inspector 
General of the Department of Justice completed a study regarding the 
Service's fingerprint controls. The study identified two major 
deficiencies as follows: (1) the Service relies on unknown and 
untrained outside entities to prepare fingerprints and (2) the Service 
does not know if the fingerprints submitted by the applicants are their 
own. Additionally, the Office of Inspector General (OIG) pointed out 
that fingerprint cards submitted by applicants were often of poor 
quality and had to be rejected by the FBI. The OIG recommended that the 
Service establish procedures to institute control and oversight of the 
fingerprint process.
    Following the OIG report, the General Accounting Office (GAO) 
conducted an audit of the Service's fingerprint collection process and 
ratified the OIG's findings. Furthermore, on July 14, 1994, the Senate 
Committee on Appropriations included language directing that the 
Service implement a fingerprint collection system which permits only 
trained Service employee, recognized law enforcement agencies, or 
Service-certified outside entities to take fingerprints.
    The Service responded by revising and refining its policies and 
publishing these in a notice of proposed rule making in the Federal 
Register on May 15, 1995 (60 FR 25856) with a 60-day public comment 
period. The public comment period ended on July 14, 1995. The notice of 
proposed rulemaking presented a certification process that included 
eligibility criteria, certification requirements, application 
procedures, and a date on which the Service will stop accepting 
fingerprint cards prepared by unauthorized organizations.

Name Change From DOE to DFS

    In the proposed rule the Service referred to organizations 
certified to take fingerprints as ``DOEs'' (Designated Outside 
Entities). The Service has made a technical name change from ``DOE'' 
(Designated Outside Entity) to ``DFS'' (Designated Fingerprinting 
Services) in order to minimize confusion and ambiguity with other 
organizations performing functions ``outside'' the Service. This 
technical name change to ``DFS'' (Designated Fingerprinting Services) 
more accurately describes the specific function or services being 
provided by the certified and designated organization(s). Furthermore, 
the Service desires to increase outside or community-based partnership 
roles in other areas related to immigration forms or documents, and 
many immigration-related service organizations have expressed concern 
that the certification given these outside entities may have been 
interpreted beyond the intended fingerprinting role.

Discussion of Comments

    Forty-four individuals or groups submitted comments. Most 
commenters strongly supported the fingerprinting certification process. 
Many expressed an interest in seeking DFS status. Only three commenters 
preferred the current fingerprinting procedures over the new 
certification process. The following is a summarized discussion of 
those comments and the Service's response.

Section 103.2(e)(1)  Fingerprinting by the Service

    One commenter stated that the purpose of this regulation is to 
establish oversight of organizations that charge a fee for 
fingerprinting services. This commenter indicated that this purpose 
should be clearly stated in the regulation. The Service believes that 
the proposed regulation was clear on this point but has added language 
to the last sentence of the general statement in the introductory text 
of paragraph (e) to make the purpose of this regulation more explicit.
    Another commenter suggested that the Service stop providing 
fingerprinting service altogether and, instead, rely entirely on 
certified DFS(s). The intent of the proposed rule was to make available 
to INS customers high quality fingerprinting services. In areas where 
there may not be sufficient business interest in the DFS process, 
Service personnel will continue to offer fingerprinting services. 
Accordingly, INS local offices have the flexibility to make decisions 
based on local conditions.
    In Sec. 103.2(e)(2) of the proposed rule, the Service provided that 
when district offices do not have the resources to provide 
fingerprinting services, they shall certify ``one or multiple outside 
entities'' as DFS(s) to provide the service. One commenter asked INS to 
clarify whether this provision gave the district director broad 
discretionary authority to limit the number of DFS(s) he or she would 
certify. On closer review of this provision, the proposed language 
could be misleading or improperly construed as allowing the district 
director to designate a single or a discretionary number of DFS(s) for 
the entire immigration district. This particular interpretion of the 
proposed provision would be at odds with the Service's expectation that 
all district directors certify as many DFS(s) as there are qualified 
applicants. In the final rule, the Service revised the language in the 
proposed Sec. 103.2(e)(2) and merged it with Sec. 103.2(e)(1) to 
clearly reflect this policy. The text in Sec. 103.2(e)(1) now includes 
the provision that ``the district director shall consider all qualified 
applicants for DFS certification and certify applicants who meet the 
regulatory standards to supplement the district's efforts.''

Section 103.2(e)(2)  Designated Fingerprinting Services

    The Service has renamed the new Sec. 103.2(e)(2) as ``Designated 
fingerprinting services'' and clarified the different procedures 
involving the two classes of designated fingerprinting services: (1) 
Designated law enforcement agencies (Federal, state, and local police 
or military police); and (2) other businesses, organizations, and 
individuals. As a law enforcement agency, a Federal, state, or local 
police department may register with the Service to gain automatic DFS 
status but is exempted from the requirements in this paragraph 
regarding operating licenses, identification and training of employees, 
attestation, inspections, or application fees. On the other hand, all 
other designated fingerprinting services, including businesses, 
individuals, or not-for-profit organizations, must abide by the 
regulations and procedures established in Sec. 103.2(e).

[[Page 28005]]

Section 103.2(e)(3)  Transition to use Designated Fingerprinting 
Services

    The Service has decided to implement the DFS Certification Program 
in two stages: (1) As of 120 days from the effective date of this final 
rule, the Service will require that all fingerprints submitted must be 
taken by a Service employee, a DFS fingerprinter, a recognized law 
enforcement agency, or an intending DFS who has completed and filed an 
application for certification with the Service; and (2) As of 180 days 
after the effective date of the final rule, the Service will no longer 
accept fingerprint cards for immigration benefits that are taken by 
unauthorized fingerprinters. However, the Service inadvertently 
misstated in paragraph (e)(3)(iii) that an intending DFS or 
organization would have only 90 days to file an application for DFS 
certification instead of 120 days. This has been corrected in the final 
rule under paragraph (e)(3)(i).
    Two commenters were concerned that possible delays in the 
processing of applications for DFS certification or renewal would 
interrupt the applicants' businesses. They suggested that where delayed 
adjudication occurred, the Service grant the applicants an automatic 
grace period provided that the applications were timely filed (in the 
case of initial certification, within the 120-day window, in the case 
of renewal, 90 days before the certification expires). The Service 
recognizes these concerns and has stressed the importance of timely 
processing to its field personnel during training sessions on DFS 
certification. The Service is confident that DFS applications will be 
processed quickly, but agrees that in case of lengthy processing 
delays, the district director may, on a case-by-case basis, grant 
discretionary relief to applicants of a timely filed application to 
avoid interruption to their businesses.

Section 103.2(e)(4)  Eligibility for DFS

    The Service proposed that DFS(s) be U.S. citizens or lawful 
permanent residents (LPRs), and in the case of a business entity, that 
the majority ownership of the business be held by U.S. citizens and 
LPRs. One commenter opposed this requirement, arguing that people with 
other immigration status could also be entrusted with this 
responsibility. Another commenter said that the majority-ownership 
requirement would require not-for-profit organizations to inquire into 
the legal status of their volunteer officers, and that these inquiries 
could be perceived as an invasion of privacy and deter interested 
individuals from participating in volunteering work.
    The U.S. citizens and LPR requirements were designed for security 
purposes. Since the Service will have to rely on the DFS(s) to ensure 
the integrity of the fingerprinting process, the status of United 
States citizen or permanent resident creates a reasonable presumption 
of allegiance and loyalty. While the Service is not persuaded that not-
for-profit organizations should be exempted from the U.S. citizen and 
LPR requirement, the ownership provision may pose an undue burden on 
private organizations. Specifically, the burden imposed by this 
requirement does not result in an equal or better enhancement to 
security needs. Therefore, and until the DFS certification program may 
be evaluated over time, the Service has now determined that the 
ownership provision is not necessary. The ownership language was 
removed.

Section 103.2(e)(5)  Criminal History Records Check

    The same commenter also requested that not-for-profit organizations 
and their employees be exempt from the FBI fingerprint check, arguing 
that this requirement would invade their privacy and deter 
participation by volunteers who are usually prominent and accomplished 
members of the society. Another commenter asked for a waiver of the FBI 
fingerprint check for not-for-profit entities approved by the Board of 
Immigration Appeals under the provisions of 8 CFR 292.2. Although it is 
true that persons affiliated with BIA-approved entities under 
Sec. 292.2 generally are respected and accomplished individuals, this 
is also likely to be true of other outside fingerprinters. Since there 
is no objective way to pre-determine any individual's moral character, 
it would be unfair for the Service to selectively exempt groups of DFS 
applicants from the FBI fingerprint check. The objective of this 
fingerprint check is to strengthen and restore the integrity of this 
security process. Information obtained from the fingerprint check will 
not be shared with any entity other than the organization seeking 
certification or a law enforcement agency should there be an 
outstanding warrant.
    The Service proposed to bar from DFS status any individuals who 
have been convicted of an aggravated felony or a crime involving 
dishonesty or false statement, or who have been subjected to a civil 
penalty for fraud. However, exceptions could be made for an employee of 
an outside entity if convincing mitigating factors exist--for example, 
the person's youth at the time of the crime or the number of years that 
have elapsed since the offense. Two commenters objected to this 
provision, arguing that there are no uniform standards that can be used 
to determine rehabilitation of a convicted felon. These commenters 
urged that all convicted felons be barred from taking fingerprints 
regardless of when the crime was committed. As a rule, the Service will 
not approve a convicted felon as a DFS fingerprinter. However, if a 
convicted felon can demonstrate that he or she has since been 
rehabilitated and has led a productive, constructive and law-abiding 
life in his or her community and our society for many years, the 
district director may approve such an individual as a fingerprinter. 
However, the Service believes that cases like this should be evaluated 
on a case-by-case basis. In any case, the district director will not 
approve a DFS fingerprinter with a felony conviction unless the 
individual can satisfactorily and clearly demonstrate a record of 
rehabilitation. The burden of proof rests solely with the applicant.

Section 103.2(e)(6)  Requirements

Paragraph (e)(6)(ii)
    The commenters were evenly divided on the issue of unannounced on-
site inspections. Three commenters, all would-be DFS(s), were opposed 
to the requirement that a DFS permit unannounced on-site inspections by 
the Service to ensure compliance with regulatory requirements. These 
commenters felt that Government oversight of their businesses was not 
needed because they regularly monitor their own employees. One 
commenter was concerned that surprise visits by the Service would be 
disruptive to DFS activities and violate the confidentiality of 
individuals seeking legal assistance. On the other hand, several 
commenters praised the Service's initiative in this regard. One 
commenter pointed out that his organization enjoyed a good rapport with 
the Service's field personnel when working with them during the 
Legalization Program, and is looking forward to working closely with 
the Service again as a DFS.
    As explained earlier, the Service undertook this rulemaking to 
restore integrity and establish oversight of the fingerprint process. 
The unannounced on-site inspection requirement is a quality control 
feature designed to ensure compliance with the DFS(s) certification 
requirements. At the same time, on-site inspections provide the Service 
with the opportunity to stay in active communication with the DFS(s),

[[Page 28006]]

enabling the Service to evaluate the effectiveness of the DFS 
certification program. Only by observing DFS(s) at work during their 
regular business hours can the Service determine whether the objectives 
of the DFS certification are being met. The Service will conduct these 
inspections in a reasonable and nonintrusive manner in order to 
minimize disruption to DFS operations.
Paragraph (e)(6)(iii)
    The Service proposed that outside entities be trained in 
fingerprinting techniques and procedures by the FBI or the Service 
before receiving certification, but that exceptions could be made for 
an individual who could demonstrate proficiency in fingerprinting 
techniques. One commenter pointed out that an individual who is 
proficient in taking fingerprints may not be knowledgeable about the 
various DFS responsibilities and requirements. Since the training 
focuses both on fingerprinting techniques and certification 
requirements, including completion of the attestation form and proper 
photo-ID verification, it was recommended that only those who have had 
``equivalent training'' be exempt from the training requirement. The 
commenter's point is well taken and has been adopted.
Paragraph (e)(6)(iv)
    The Service proposed that DFS applicants notify the Service of the 
completion of any scheduled training prior to the approval of their 
applications. One commenter recommended that DFS(s) be required to 
complete any scheduled training within 60 days of the submission of the 
application. The Service considered this suggestion, but decided that a 
time limit is not necessary since a DFS employee is not permitted to 
take fingerprints until he or she has been approved by the Service. A 
DFS employee who fails to complete the scheduled training in a timely 
manner will only delay his or her employment. To clarify that the 
Service will not approve a DFS employee unless he or she completes the 
required training, paragraph (e)(6)(iv) has been modified to require 
DFS(s) to ``notify the district director, where the application was 
filed, and when the completion of fingerprinting training occurred 
prior to the approval of the application, if such training was not 
completed but was in progress or had been scheduled at the filing of 
the application.'' Additionally, a correction has been made in 
paragraph (e)(6)(v) to insert the word ``and,'' which was inadvertently 
left out in the proposed rule, between ``(exceptions can be made for 
those who have received training from the FBI or the Service)'' and 
``to conduct periodic refresher training as needed.''
Paragraph (e)(6)(vii)
    The proposed rule would require DFS(s) to offer free retakes if 
they prepared illegible fingerprints that were rejected by the FBI. One 
commenter suggested that the Service include a statement on its fee 
receipts to benefit applicants that DFS(s) are obligated to retake 
illegible fingerprints free of charge. Two other commenters were 
concerned that the benefit applicants would need some kind of proof to 
show who took the rejected fingerprints. Another commenter stated that 
Federal, state, and local police registered as DFS(s) should also give 
free retakes since they too charge a fee for taking fingerprints. 
Recognizing that benefit applicants will need to show proof of 
rejection by the FBI to the responsible DFS(s) in order to receive free 
retakes, the Service suggests that claimants for free retakes show the 
notice they will receive from INS that they must resubmit their 
fingerprints along with a sales receipt from the responsible DFS. 
Police agencies registered with the Service as DFS(s) are subject to 
the same free retake requirement if they charge a fingerprinting fee.
Paragraph (e)(6)(viii)
    The proposed rule would require the DFS(s) to submit fingerprints 
on FD-258 and other Service-designated forms. One commenter wondered if 
DFS(s) would be expected to take fingerprints for applicants seeking to 
replace their Alien Registration Cards on Form I-90. Form I-90, 
Application for Replacement of Alien Registration Card, and Form I-765, 
Application for Employment Authorization Document, will be included in 
the group of fingerprint forms DFS(s) are authorized to prepare after 
they have been revised to incorporate a fingerprint block and a DFS 
attestation. But the Service will have to undertake rulemaking before 
implementing these planned revisions.
Paragraph (e)(6)(xi)
    The Service proposed that DFS(s) verify the identification of the 
individuals they fingerprint by comparing their photo-IDs with the 
information on their fingerprint cards. The proposed rule would require 
DFS(s) to accept only passports, alien registration cards (green cards) 
or other Service-issued photo-IDs for identification verification. Six 
commenters protested that this requirement was to restrictive because 
it excluded many people who were in lawful status but who did not 
possess either a passport or a Service-issued photo-ID, such as 
refugees, asylees, or even some United States citizens. The commenters 
recommended that DFS(s) be allowed to accept state-issued photo-IDs, 
such as a driver's license. The Service's intent in this requirement 
was two-fold: (1) to exclude photo-IDs that can be easily 
counterfeited; and (2) to keep the verification process as simple and 
clear as possible. But the Service agrees that the list of acceptable 
photo-IDs may be expanded without compromising the integrity of the 
photo-ID verification process to include other valid photo-IDs. 
Therefore, foreign national identification documents have been added to 
the list of acceptable documents. Two (2) examples of national 
identification documents which may be acceptable are those issued by 
the Government of Hong Kong and Taiwan. Likewise, military 
identification documents issued by the Northern Atlantic Treaty 
Organization would be acceptable. Additionally, drivers' licenses and 
state-issued photo identification documents have been added to the list 
of acceptable documents. The final rule has been revised to reflect 
these changes.
Paragraph (e)(6)(xiii)
    It was proposed that the DFS provide specific information on the 
fingerprint card, FD-258, or other Service- designated documents. The 
specific information to be provided by the DFS included the following: 
(1) The DFS had been certified by the Service; (2) The name and address 
of the DFS; (3) The DFS certification number, including the expiration 
date; and (4) The fingerprinter's name and employee Identification 
number. One commenter recommended that DFS(s) be required to put this 
information on a rubber stamp. The Service agrees that a standardized 
rubber stamp would be more efficient insofar as the information needed 
from the DFS. Accordingly, the DFS may use a rubber stamp if he or she 
desires. The regulation requires that stamped or written information be 
placed on the backside of the fingerprint card in the space reserved. 
Should the DFS use a rubber stamp it is recommended that the stamped 
information be clearly legible and fit into the space (four inches 
[4''] wide, and one and one quarter inches [1\1/4\''] high). The 
specific information provided on a rubber stamp must contain the 
information listed as items (1) through (4) in this paragraph. 
Additionally, it is required that the specific information provided on 
the rubber stamp also include a space for

[[Page 28007]]

the fingerprinter's signature and the date the fingerprints were taken. 
The DFS may also imprint a blank stamp, with DFS(s) original signature 
and date, on a sealed envelope which contains the completed fingerprint 
document. When the envelope containing the completed fingerprint 
document is sealed, that envelope may not be opened or altered. The 
Services has revised paragraph (e)(6) in the final rule to reflect 
these changes.
Paragraph (e)(6)(xiv)
    It was proposed that DFS(s) be allowed to charge a reasonable fee 
for providing fingerprinting services and that the fees be published in 
a list distributed by each INS district office. Two commenters 
recommended that, in order to keep the fee reasonable, the Service 
should impose a limit on fees. Another commenter suggested that the 
Service was proposing to control the fees DFSs charge by disclosing 
that information to competitors, and maintained that DFS fees should be 
determined entirely by competition in the marketplace. The Service's 
position on the fee issue is motivated by two policies: (1) DFS(s) 
should be allowed to set prices and compete for business; and (2) the 
consumers' interests are to be protected. In including the fee 
information on the DFS list, the Service is ensuring that consumers 
will have the information they need while allowing DFS(s) to compete 
for customers by offering the best value and service.
Paragraph (e)(6)(xv)
    One commenter suggested that the Service define the term 
``immediately'' as used in the proposed rule, which would require 
DFS(s) to immediately report to the Service any changes in personnel 
responsible for taking fingerprints. Since DFS(s) may not employ any 
fingerprints without prior approval by the Service, this reporting 
requirement is really intended to provide notice to the Service when 
fingerprinters are no longer employed in those positions. The approval 
of a DFS fingerprinter is conditioned on his or her continued 
employment with a particular DFS employer. To protect the integrity of 
the Service's master DFS listings, it is important that DFS(s) report 
personnel changes as soon as they take place. For the purpose of this 
paragraph, a DFS is encouraged to report personnel changes in advance 
where feasible, and is required to notify the district director having 
jurisdiction over the DFS(s) business location of a personnel change 
within 2 working days. The final rule reflects this change.
    The Service also considered and rejected a suggestion that it 
require DFS(s) to post a $500 bond to guarantee retakes for benefit 
applicants who were provided with poor quality fingerprints. The 
Service believes that the DFS regulation provides sufficient 
performance incentives. A requirement to post a performance bond would 
be too much of a burden on the DFS(s) and the Service.
Paragraph (e)(6)(xviii)
    One commenter suggested that the Service remove the requirement to 
maintain ``clean and suitable agencies that are accessible to the 
public,'' asking ``who will determine what is clean and suitable or 
whether there is sufficient access to the public?'' The commenter 
raised a valid point. Since all businesses must comply with various 
public safety and health regulations imposed by the relevant Federal, 
state, and local governments, the Service agrees that it should defer 
to the responsible governments in this case. However, since the DFS(s) 
are certified to provide fingerprinting services to applicants for 
immigration benefits, they must operate at permanent business locations 
that are accessible to the public. Moreover, except in situations where 
DFS(s) have made advance arrangements to process groups of applicants 
off-site, DFS(s) are expected to conduct their fingerprinting 
businesses at the addresses given on their applications for 
certification. Accordingly, paragraph (e)(6)(xviii) was revised to 
include the joint requirement that DFS(s) ``maintain facilities which 
are permanent and accessible to the public.'' The use of this joint 
requirement specifically excludes facilities described as private 
homes, vans or automobiles, mobile carts, and removable stands or 
portable storefronts.

Section 103.2(e)(7)  Attestation

    Four commenters thought that the requirement of a DFS attestation 
on Form I-850A for each person fingerprinted was unnecessary and unduly 
burdensome. Two of the commenters recommended that the attestation be 
stamped on or incorporated into the fingerprint card, FD-258, instead. 
Two other commenters suggested that DFS(s) be required to retain copies 
of their attestations for 1 year instead of 3 months. One of these 
commenters said that DFS(s) should keep copies of the attestations 
longer than 3 months as a way of tracking their own customers in cases 
where free retakes were needed.
    The fingerprint card, FD-258, is a Federal Bureau of Investigation 
(FBI) form that can only be revised by that agency. Any change to the 
design of the form will have an effect on the FBI's automated 
fingerprint classification process. The Service will refer this 
suggestion to the FBI for its consideration. The Service is reluctant 
to increase the administrative burdens by lengthening the period for 
which DFS(s) must keep copies of their attestations on file. The 
rationale for the 3-month requirement is to provide the Service with a 
sample of the quality of the DFS' work. However, any DFS is free to 
maintain copies of attestations for a longer period as a way to verify 
fingerprinting sales and reconcile requests for retakes.
Paragraph (e)(7)(ii)
    It was also suggested that the terms ``the original copy'' and 
``the second copy'' as used in the proposed rule be changed to ``the 
original'' and ``the copy.'' The suggestion was adopted and paragraph 
(e)(7)(ii) was amended to reflect this change. Finally, due to the 
expansion of the types of photo-IDs acceptable for identification 
verification purposes as prescribed by paragraph (e)(6)(xi) of the 
final rule, parallel changes have been made to paragraph (e)(7)(i)(C) 
to ensure consistency.

Section 103.2(e)(8)  Application

    Three commenters asked whether there was a limited application 
period and whether DFS(s) certified by a given Service local office 
were limited to providing service to people who resided within the 
jurisdiction of that office. An outside organization may file an 
application for DFS certification at any time after the final rule 
takes effect. However, only those currently providing fingerprinting 
services who file within the initial 120 days may continue to take 
fingerprints without interruption. Those who file after the 120-day 
window will have to wait until their applications are approved to begin 
taking fingerprints. Once an organization obtains DFS certification, 
the DFS is not limited to taking fingerprints of benefit applicants who 
reside in the same jurisdiction. A certified DFS may take fingerprints 
of applicants who reside in other jurisdictions, but any completed 
fingerprint card must bear the specific code for the Service office 
where the fingerprint card will be filed. For example, a DFS certified 
by the New York District Office may fingerprint a visitor from San 
Francisco on an FD-258 fingerprint card if the correct Originating 
Agency Identifier (ORI) code for San Francisco is entered in the block 
labeled ORI. At the same time, a DFS

[[Page 28008]]

with multiple locations which fall under the jurisdiction of the same 
Service district director may file a single application, with one fee, 
by including all the business locations and employees. However, DFS(s) 
with cross-jurisdiction locations will have to file separate 
applications for business offices that fall under the jurisdiction of 
different district directors. Each application must include the 
required fee and information on all business locations and employees in 
that jurisdiction.
    One commenter suggested that the Service make DFS applications a 
part of the public record. This suggestion was not adopted because 
applications contain, in part, information that is private or 
proprietary. Those portions that are subject to release are available 
under the Freedom of Information Act, 5 U.S.C. 552.

Section 103.2(e)(9)  Registration of Police Stations or Military Police 
Agencies

    One commenter proposed that local police in rural areas be allowed 
to continue their fingerprinting services since certified DFS(s) might 
be a long distance away. Two commenters complained that the police were 
not adequately regulated, attaching alleged examples of poor quality 
fingerprinting work by local police stations. Another commenter wanted 
college and university campus police to be granted DFS status without 
registration. The Service understands that people living in remote 
areas rely on the local police for fingerprinting service, and has 
always intended to include the police as DFS(s). The DFS regulation 
provides that Federal, state, and local police, as well as military 
police, can automatically become DFS(s) if they register with the 
Service. Once registered, they will be placed on the DFS list and 
receive updates of the DFS regulation and requirements. Further, campus 
police who have general arrest authority pursuant to a state statute, 
and who have met the training requirements established for law 
enforcement officers, are exempted from the DFS requirements and may 
follow the streamlined registration procedures reserved for law 
enforcement agencies. Clarifying language has been added to 
Sec. 103.2(e)(2)(i) to explain this point.

Section 103.2(e)(11)  Approval of Application

    The Service has made typographical corrections in the second 
sentence of the introductory text to paragraph (e)(11) by: (1) 
inserting the word ``number'' between the word ``certification'' and 
the word ``to;'' and (2) replacing the word ``fingerprints'' with 
``fingerprints.'' That sentence now reads: ``When the application has 
been approved, the district director shall assign a certification 
number to the DFS and individual ID numbers to its approved 
fingerprints.''

Section 103.2(e)(12)  Denial of the Application

    Three commenters asked the Service to clarify the appeals process 
available to DFS applicants whose applications are denied. DFS 
applicants are entitled to appeal rights as provided by 8 CFR 103.3 and 
8 CFR 103.5. DFS applicants who wish to appeal a denial decision may 
file an appeal on Form I-290B, with the required fee, with the 
Service's Administrative Appeals Office (AAO) within 30 days of the 
decision. DFS applicants may also file a motion to reopen or reconsider 
with the Service district office having jurisdiction.

Section 103.2(e)(17)  Change of Address or in Fee

    Under the proposed rule, a DFS was required to report promptly, to 
the district director having jurisdiction over the DFS(s) place of 
business, any change in address or in fee. One commenter thought that 
the proposed requirement was inadequate in that it did not require the 
DFS to report these changes in advance. This commenter argued that it 
would be difficult to preserve fair competition among DFS(s) and 
protect the consumers unless DFS(s) were required to report changes in 
address or in fee in advance. In order to give the Service sufficient 
time to update its DFS listings and to make that information available 
to the public, the commenter suggested that DFS(s) be required to 
report these changes at least 10 working days before they occur. The 
Service concurs that the public should be protected from possible fee 
manipulation by DFS(s) and that the DFS listings will not have the 
intended effect unless the public is provided with accurate information 
about DFS fees and locations. Accordingly, the Service has adjusted the 
final rule to require a 10-working day advance notice for changes in 
address or fee. DFS(s) who make unreported fee changes are subject to 
revocation of their DFS status as provided by paragraph (e)(17). Note 
that the requirement of a permanent address does not preclude a DFS 
from processing groups of applicants off site, such as processing 
applicants for naturalization at a school auditorium.

Miscellaneous Items

1. Opposing Views

    Three commenters preferred the current system, stating that the 
proposed regulation was unnecessary and burdensome. One commenter 
challenged the OIG report, arguing that there had been no known report 
of fraud in the submission of fingerprints. As explained in the 
background section of the supplemental information, the Service 
initiated this rulemaking to provide integrity to its benefits 
adjudications process and to address the concerns of the Senate 
Committee on Appropriations and the Department of Justice's Office of 
Inspector General (OIG). It has been established that the current 
fingerprinting process does not adequately ensure either the quality or 
the integrity of fingerprints submitted to the Service by applicants 
for immigration benefits. In drafting this rule, the Service has 
carefully considered the policies of Executive Order 12866 and the 
Regulatory Flexibility Act and has attempted to ensure that the 
intended objectives are met without unduly burdening the affected small 
businesses.

2. Application Fee

    Three commenters protested the application fee of $370. One of them 
suggested that the Service underwrite the costs of administering the 
DFS certification program, including training. The other two said the 
estimated costs for training and monitoring were too high. However, 
another commenter said the Service underestimated the program costs, 
maintaining that the proposed application fee of $370 was not enough to 
offset the administrative costs of the program.
    The Service's Adjudications program does not receive any 
appropriated funds from Congress. Instead, it is authorized by Congress 
to collect user fees to support its functions. In order to determine 
the appropriate application fee for the DFS Certification Program, the 
Service conducted a fee analysis based on estimated processing and 
administrative costs, such as staffing, training of Service personnel 
on the DFS certification process, adjudication of applications, 
oversight of DFS(s), and providing fingerprinting training. The actual 
cost of running the DFS Certification Program will not be known until 
it has been fully implemented. At that time, the Service will determine 
whether the fee structure needs to be adjusted.
    One other commenter recommended that the Service make special 
provisions

[[Page 28009]]

for outside entities with multiple business locations across the 
country. This commenter suggested that businesses with multiple 
locations be allowed to file a single application with a single 
application fee, and that a site fee of $35 be charged for each 
additional location to cover administrative and monitoring costs. While 
the regulation allows DFS(s) with multiple business locations within 
the jurisdiction of the same Service district to file a single 
application with a single fee, it does not provide for certification of 
a national fingerprinting service with cross-jurisdiction business 
locations. However, the Service agrees that outside entities with 
multiple locations in the jurisdiction of the same district office will 
incur greater administrative and monitoring costs and should be 
required to pay a site fee for each location. Because the public has 
not been offered the opportunity to comment on the concept of a site 
fee, the Service has decided to defer the consideration of a site fee 
until after the full implementation of the DFS certification program. 
If it is evident then that the application fee was below cost, the 
Service will make appropriate adjustments to the application fee 
structure through rulemaking.
    As noted in our earlier discussions regarding Sec. 103.2(e)(8), due 
to regulatory limitations placed on the district director's authority, 
a district director cannot approve DFS(s) operating outside of his or 
her jurisdiction. Therefore, while DFS(s) with multiple business 
locations in the same INS district only needs to file one application 
with one fee, DFS(s) with multiple business operations in different INS 
districts must file a separate application, with the required fee, with 
each district director having jurisdiction over the business 
location(s).

3. Free Space for Photographing and Fingerprinting Studios

    One commenter protested that the Service gives preferential 
treatment to not-for-profit organizations. This commenter cited as an 
example the free use of studio space (for fingerprinting and/or 
photographing services), in the Service's local offices, by certain 
not-for-profit organizations. The commenter argued that this practice, 
as provided by 8 CFR 332.2, unfairly disadvantaged other competing 
business entities and had to be changed. Indeed, 8 CFR 332.2 provides 
that district directors may make available, free of charge, space 
within district offices for the ``establishment and operation of 
studios providing photographic services, fingerprinting services or 
both.'' It further provides that these studios must be ``operated by 
sponsoring organizations on a nonprofit basis solely for the benefit of 
persons seeking to comply with the requirements of the immigration and 
naturalization laws.'' During the implementation period of the 
legalization program, as provided by the Immigration Reform and Control 
Act (IRCA) of 1986, the Service's local Legalization offices often had 
studios operated by not-for-profit organizations. However, due to 
overcrowding and lack of resources, most district offices have ended 
this practice over the past few years. Moreover, the remaining agencies 
operating under Sec. 332.2 remain subject to the separate restrictions 
of these regulations. This new program addresses a larger group of 
organizations which is largely not subject to Sec. 332.2.

4. Not-For-Profit Organizations and Entities Approved by the Board of 
Immigration Appeals (BIA) under 8 CFR Part 292

    Twenty-one of the commenters are not-for-profit organizations which 
were accredited for representation of others by the BIA. They asked 
that they be granted automatic DFS status, without fee. These 
commenters argued that they should not have to apply for DFS status 
because they had already been approved by the BIA. They further argued 
that not-for-profit organizations were typically under-funded, and the 
proposed application fee of $370 would pose a significant financial 
burden for them. They also argued that they were limited to charging 
only a ``nominal fee'' that could not be used to supplement their 
administrative costs.
    The Service is sympathetic to these commenters' financial 
difficulties and is willing to assist where feasible. But because the 
Service's benefit programs are all supported by user fees, the DFS 
Certification Program must also be funded by its user--the DFS 
applicants. Waiving the fee or the application requirement for not-for-
profit organizations would be perceived as giving preferential 
treatment to special interest groups. Moreover, the Service would be 
obligated to charge other DFS applicants a higher fee to offset the 
costs incurred by the not-for-profit organizations.
    When the $370 application fee is apportioned for 3 years, the 
period during which a DFS certification remains valid, the annual 
certification cost is $123, which can easily be passed on to the users 
as a service charge. The Service is of the opinion that entities 
accredited for representation by the BIA are not in violation of the 
``nominal fee'' provision of 8 CFR 292.2, when they charge a reasonable 
fee for fingerprinting services.
    Some commenters proposed that the Service exclude from DFS 
certification any entity which has had a history of offering assistance 
in matters involving the immigration law without a license. They were 
concerned that these practitioners would exploit unknowing aliens if 
authorized to provide fingerprinting services. One commenter suggested 
that DFS applicants be required to sign a statement on the application 
form attesting to compliance with the requirements of 8 CFR 292, which 
prescribes the authority to represent applicants for immigration 
benefits. This commenter also suggested that the Service require DFS 
applicants to list all other services that they provide in addition to 
fingerprinting to ensure that they were not ``practicing law without 
authorization.''
    The sole purpose of the DFS regulation (8 CFR 103.2(e)) is to 
establish eligibility requirements and application procedures for 
outside entities who wish to be approved as fingerprinters. The 
authority granted to outside entities certified under 8 CFR 103.2(e) is 
limited to providing fingerprinting services. Meanwhile, 8 CFR 292 
provides for the accreditation of individuals or organizations that 
wish to represent aliens before the Service and/or the Board of 
Immigration Appeals (BIA). Qualified individuals or organizations must 
apply to the BIA for accreditation. Since the governing regulations 
clearly define the scope and conditions of each of these two types of 
authorizations, it is unlikely that there will be confusion about their 
purposes. However, to avoid the possibility that outside entities might 
exploit their DFS status, the Service has added a new paragraph (e)(18) 
in the final rule to prohibit them from engaging in any kind of 
advertisement or presentation which may create a false impression that 
they are authorized by the Service to do more than fingerprinting. 
DFS(s) are prohibited from using images of the Service's logo type or 
official seal on any of their stationery, information flyers, or 
advertisements. When dealing with the public or advertising for 
business, a DFS is required to refer to itself as ``an INS-Authorized 
Fingerprinting Service.'' Violators are subject to revocation of their 
DFS status as provided by 8 CFR 103.2(e)(18).
    The information collection requirements contained in this rule have 
been cleared by the Office of Management and Budget, under the 
provisions of the Paperwork Reduction Act. Clearance numbers for these

[[Page 28010]]

collections are contained in 8 CFR 299.5, Display of Control Numbers.

Regulatory Flexibility Act

    The Commissioner of the Immigration and Naturalization Service, in 
accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has 
reviewed this regulation and, by approving it, certifies that the rule 
will not have a significant economic impact on a substantial number of 
small entities. The Service has drafted this rule in a way to minimize 
the impact that it has on small business while meeting its intended 
objectives.
    The Service believes that there are approximately 3,000 outside 
entities which are taking fingerprints for immigration benefit 
applicants. Because the entities providing fingerprinting services at 
present are primarily small businesses, the Service has developed and 
reviewed this rule with the needs and circumstances of small businesses 
specifically in mind. The Service is not aware of any relevant Federal 
rules which duplicate, overlap, or conflict with this rule.
    The Service has considered significant alternatives to this rule 
which accomplish the objectives and which minimize any significant 
economic impact of this rule on small entities, including the use of 
contracting or greater use of Service agencies. The Service has sought 
to avoid burdens on outside entities beyond those requirements needed 
to improve the quality of the fingerprints taken and to provide 
assurance to the Service that the fingerprints it receives are genuine. 
As appropriate, requirements have been drafted as performance 
standards, for example: that the fingerprints taken be legible and 
classifiable; that DFS personnel charged with the responsibility to 
take fingerprints pass an FBI criminal history records check; and that 
such DFS personnel be trained in fingerprinting or otherwise be able to 
demonstrate their proficiency.

Executive Order 12866

    The Immigration and Naturalization Service, Department of Justice, 
considers this rule be a ``significant regulatory action'' as defined 
by section 3(f) of Executive Order 12866. With perhaps as many as 3,000 
entities likely to file for DFS certification, this rule may lead to 
the collection of application fees that would ``materially alter the 
budgetary impact of * * * user fees * * * or the rights and obligations 
of recipients'' of the related services. The Office of Management and 
Budget has conducted the necessary review of this rule.
    This rulemaking action is being conducted in order to address the 
concerns of the Justice Department's Office of the Inspector General 
(OIG) and the Committee on Appropriations of the United States Senate 
regarding the current fingerprinting process. The objectives of this 
rule are to facilitate processing of applications for immigration 
benefits, protect the integrity of the fingerprinting process, and 
relieve strain on Service resources by establishing criteria for the 
cerrtification of designated fingerprinting services to take 
fingerprints. The legal basis for this rule is the authority conferred 
upon the Attorney General and delegated to the Service under section 
103 (a) and (b) of the Immigration and Nationality Act to establish 
regulations needed to carry out its functions. This rule will 
substantially promote the Service's ability to identify and deny 
benefits to ineligible aliens, and to promptly and effectively 
administer the immigration laws of the United States by reducing 
unnecessary delays caused by poor fingerprint cards.

Executive Order 12612

    The regulation will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 12612, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

List of Subjects

8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(Government agencies), Reporting and recordkeeping requirements.

8 CFR Part 299

    Immigration, Reporting and recordkeeping requirements.

    Accordingly, chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 103--POWERS AND DUTIES OF SERVICE OFFICERS; AVAILABILITY OF 
SERVICE RECORDS

    1. The authority citation for part 103 continues to read as 
follows:

    Authority: 5 U.S.C. 552, 552a; 8 U.S.C. 1101, 1103, 11201, 1252 
note, 1252b, 1304, 1356; 31 U.S.C. 9701; E.O. 12356, 47 FR 14874, 
15557, 3 CFR, 1982 Comp., p. 166; 8 CFR part 2.

    2. Section 103.1 is amended by:
    a. Removing the ``and'' from paragraph (f)(3)(iii)(LL),
    b. Removing the ``.'' from the end of paragraph (f)(3)(iii)(MM) and 
replacing it with a ``; and'', and by
    c. Adding a new paragraph (f)(3)(iii)(NN), to read as follows:


Sec. 103.1  Delegations of Authority.

* * * * *
    (f) * * *
    (3) * * *
    (iii) * * *
    (NN) Application for Certification For Designated Fingerprinting 
Services under Sec. 103.2(e) of this chapter.
    3. In Sec. 103.2, a new paragraph (e) is added to read as follows:


Sec. 103.2  Applications, petitions, and other documents.

* * * * *
    (e) Fingerprinting. Service regulations require that applicants for 
various types of immigration benefits submit their fingerprints with 
the applications. To ensure they have access to reputable 
fingerprinting services, the fingerprinting of these benefit applicants 
must be carried out pursuant to the fingerprinting service provisions 
established in this paragraph.
    (1) Fingerprinting by the Service. Where feasible, a local Service 
office shall provide fingerprinting service to applicants for 
immigration benefits. Also, the district director shall consider all 
qualified applicants for DFS certification and certify applicants who 
meet the regulatory standards to supplement the district's efforts. 
Where district Service personnel are providing fingerprinting services, 
the district director may end such services when he or she determines 
that there are sufficient outside or private fingerprinting services 
available at a reasonable fee.
    (2) Designated fingerprinting services. (i) Law enforcement 
agencies. Federal, state, or local police, or military police, in the 
United States are not required to apply for DFS certification. However, 
it is essential that any Federal, state, and local police, or military 
police, that provide fingerprinting services to applicants for 
immigration benefits be familiar with the Service's fingerprinting 
regulations and requirements. In order to receive updates on such 
regulations and requirements, a policy agency that does provide such 
services must register with the Service pursuant to procedures 
prescribed by Sec. 103.2(e)(9). Campus police departments having 
general arrest powers pursuant to a State statute and meeting training 
requirements

[[Page 28011]]

established by law or ordinance for law enforcement officers are 
included within the category of state or local police departments for 
purposes of Sec. 103.2(e).
    (ii) Other business entities or individuals. Businesses and 
individuals who apply and qualify shall, subject to the requirements of 
Sec. 103.2(e), be approved by the Service to provide fingerprinting 
services.
    (3) Transition to use designated fingerprinting services. As of 
December 31, 1996, the Service will not accept fingerprint cards for 
immigration benefits unless they are taken by:
    (i) A DFS accompanied by a completed attestation, Form I-850A, 
Attestation by Designated Fingerprinting Services Certified to Take 
Fingerprints;
    (ii) An intending DFS or organization that has completed an filed 
an application for DFS status prior to November 1, 1996 which may, 
pending the Service's action upon its application, take fingerprints 
and complete the Form I-850A, indicating that its application for DFS 
status is pending. This provisional authority for an outside entity 
shall cease if its application is denied or as of December 31, 1996 
whichever occurs first.
    (iii) A recognized law enforcement agency that is registered as a 
DFS; or
    (iv) Designated Service employees.
    (4) Eligibility for DFS. An outside entity applying for DFS status 
may be a business, a not-for-profit organization, or an individual.
    (i) An individual must establish that he or she is a United States 
citizen or lawful permanent resident, and has not been convicted of an 
aggravated felony or any crime related to dishonesty or false 
statements involving a civil penalty for fraud.
    (ii) A business or a not-for-profit organization must establish the 
identity of its chief operations officer, who exercises primary and 
oversight control over the organization's operations, and its 
fingerprinting employees; and the business or a not-for-profit 
organization must establish that the chief operations officer and 
fingerprinting employees are United States citizens or lawful permanent 
resident(s), and that its principal officers, directors, or partners 
meet the standard for individual applicants.
    (iii) A Federal, state, or local law enforcement agency may 
register as a designated fingerprinting service. However, a law 
enforcement agency is not required to comply with the operating 
license(s), identification and training of employees, criminal record 
history check, attestation, or application fee provisions in this 
paragraph.
    (5) Criminal history records check.
    (i) An identification and criminal history record check is required 
for each employee or person as otherwise described in paragraphs (e)(4) 
(i) and (ii) of this section who will take fingerprints listed on the 
application for DFS certification. The district director shall 
designate Service personnel of the district office to obtain and 
transmit fingerprints to the Federal Bureau of Investigation (FBI) for 
such checks. If a DFS needs to add new or replacement employees to the 
personnel approved by the Service, it must file a new application with 
the district director having jurisdiction over the DFS's place of 
business. That new application must be accompanied by the required fee 
for the FBI fingerprint check. The Service will accept fingerprints 
from an applicant for DFS certification only it the fingerprints were 
taken by designated Service personnel.
    (ii) An employee who has been convicted of an aggravated felony or 
a crime involving dishonestly or false statement, or who has been 
subjected to a civil penalty for fraud, may not be assigned to take 
fingerprints unless the DFS can establish to the Service's satisfaction 
that the circumstances of the offense are such (because of the person's 
youth at the time of the offense, and/or the number of years that have 
passed since its commission) that there can be no reasonable doubt as 
to the person's reliability in taking fingerprints in conformity with 
these rules.
    (6) Requirements. Except as provided under paragraph(e)(9) of this 
section, an outside entity seeking certification as a DFS must agree 
that it will:
    (i) Abide by Service regulations governing certification of DFS(s);
    (ii) Permit Service personnel and Service contract personnel to 
make on-site inspections to ensure compliance with required procedures;
    (iii) Ensure that the personnel responsible for taking fingerprints 
received training in fingerprinting procedures by the Service or FBI 
(exceptions can be made for those who have previously received training 
from the FBI or the Service or who can otherwise demonstrate equivalent 
training);
    (iv) Notify the district director where the application was filed 
when the completion of fingerprinting training occurred prior to the 
approval of the application, if such training was not completed but was 
in progress or had been scheduled at the filing of the application;
    (v) Use only FBI or Service-trained employees to train its new 
employees on fingerprinting procedures (exceptions can be made for 
those who have previously received training from the FBI or the 
Service) and to conduct periodic refresher training as needed;
    (vi) Make every reasonable effort to take legible and classifiable 
fingerprints, using only black ink;
    (vii) Retake the applicants' prints free of charge if the DFS 
initially fails to take legible and classifiable prints;
    (viii) Use only the fingerprint card(s), Form(s) FD-258, or other 
Service-designated documents to take fingerprints for immigration 
purposes;
    (ix) Ensure that the fingerprint card(s) or other Service-
designated fingerprint documents are completed in accordance with the 
instructions provided, using FBI prescribed personal descriptor codes;
    (x) Ensure that the fingerprint card(s) or other Service-designated 
forms are signed by the applicants in their presence and by the 
fingerprinter;
    (xi) Verify the identification of the person being fingerprinted by 
comparing the information on the fingerprint card, Form FD-258, or 
other Service-designated forms with the applicant's passport, national 
ID, military ID, driver's license or state-issued photo-ID, alien 
registration card, or other acceptable Service-issued photo-ID;
    (xii) Complete an attestation on Form I-850A, Attestation by 
Designated Fingerprinting Service Certified to Take Fingerprints, and 
provide it to the person being fingerprinted;
    (xiii) Note (legibly by hand or using a rubber stamp) on the back 
of the fingerprint card, Form FD-258, or a Service designated 
fingerprint document, the DFS's name and address, certification number, 
expiration date, the DFS fingerprinter's ID number and signature, and 
the date on which the fingerprints are taken. The DFS fingerprint shall 
seal the completed fingerprint card or fingerprint document, and sign 
or imprint a stamp with an original signature crossing the sealed area.
    (xiv) Charge only reasonable fees for fingerprinting services, and 
the current fee status is to be made known to the Service;
    (xv) Notify the director having jurisdiction over the applicant's 
place of business within 2 working days, on Form I-850 without fee, of 
any changes in personnel responsible for taking fingerprints;
    (xvi) Request approval for any new personnel to take fingerprints 
according to the procedures set forth in paragraphs

[[Page 28012]]

(e) (4), (5), (6), (8), and (9) of this section;
    (xvii) Notify the Service of any conviction for an aggravated 
felony or for a crime involving dishonesty or false statement, or of 
any civil penalty for fraud subsequent to the DFS certification of an 
employee authorized to take fingerprints; and
    (xviii) Maintain facilities which are permanent and accessible to 
the public. The use of the terms permanent and accessible to the public 
shall not include business or organizational operations in private 
homes, vans or automobiles, mobile carts, and removable stands or 
portable storefronts.
    (7) Attestation.
    (i) To ensure the integrity of the fingerprint cards submitted by 
applicants for benefits, all DFS fingerprinters must fill out an 
attestation on Form I-850A each time they take fingerprints for an 
immigration benefit applicant. Such attestation mut be signed and dated 
by the fingerprinter and show:
    (A) The fingerprinter's name and ID number (as assigned by the 
Service) and a statement that the requirements of Sec. 103.2(e) have 
been met;
    (B) The name, address, certification number (as assigned by the 
Service), and expiration date of the DFS certification;
    (C) That he or she has checked the identity of the person he or she 
fingerprinted and has listed the identification number from the 
individual's passport, national ID, military ID, driver's license or 
state-issued photo-ID, alien registration card, or other acceptable 
Service-issued photo-ID; and
    (D) That it is signed and dated by the benefit applicant.
    (ii) DFS fingerprinters must execute the attestations in duplicate 
in the presence of the applicant. The original must be given to the 
applicant to be filed with the Service with his or her fingerprint 
card, and the copy, which may be a reproduced copy of the original, 
must be kept on file at the DFS for at least 3 months for Service 
inspection.
    (8) Application. An outside organization seeking certification as a 
DFS, or a DFS seeking approval for personnel change, must submit an 
application on Form I-850, Application for Certification for Designated 
Fingerprinting Services, to the district director having jurisdiction 
over the applicant's place of business. The application must include 
the following:
    (i) The required fee;
    (ii) A copy of all business licenses or permits required for its 
operations and if the organization is a not-for-profit entity, 
documented evidence of such status;
    (iii) The names and signatures of personnel who will take 
fingerprints of applicants for immigration benefits;
    (iv) A set of fingerprints taken by a Service employee on Form FD-
258 for each employee whose name appears on the application form 
pursuant to paragraph (e)(4) of this section, and the required fee (for 
each employee) for the FBI criminal history record check;
    (v) A statement on Form I-850 indicating the fee, if any, it will 
charge for the fingerprinting service; and
    (vi) A signed statement on Form I-850 attesting that the DFS will 
abide by the Service regulation governing fingerprinting and the 
certification of designated fingerprinting services.
    (9) Registration of police stations or military police agencies.
    (i) Federal, state, or local police stations, or military police 
agencies, may individually register to take fingerprints of applicants 
for immigration benefits by filing a Form I-850, application for 
Certification for Designated Fingerprinting Services, completing only 
the relevant parts of the form. No fee or fingerprint cards need to be 
submitted for their personnel charged with the fingerprinting 
responsibility; nor are these personnel required to have additional 
training in fingerprinting techniques and procedures. Furthermore, law 
enforcement agencies registered to take fingerprints under this 
paragraph are not subject to on-site inspections by the Service. The 
Service will communicate with these agencies through regular liaison 
channels at the local level.
    (ii) A police department may request registration on behalf of all 
of its subordinate stations on a single application by listing their 
precinct numbers and addresses. Once registered, the Service will 
include the individual police stations and military police agencies on 
the Service's list of DFS organizations. The Service will make 
available to these agencies the fingerprinting regulations, related 
instruction material or other relevant information when appropriate.
    (10) Confidentiality. A DFS is prohibited from releasing 
fingerprints taken pursuant to certification, other than to the Service 
or to the applicant or as otherwise provided in the Service's 
regulations. Law enforcement agencies enumerated under paragraph (e)(9) 
of this section are not precluded from using the fingerprints they have 
collected for immigration purposes in other law enforcement efforts.
    (11) Approval of application. The district director shall consider 
all supporting documents submitted and may request additional 
documentation as he or she may deem necessary. When the application has 
been approved, the district director shall assign a certification 
number to the DFS and individual ID numbers to its approved 
fingerprinters. The approval will be valid for a period of 3 years and 
may be renewed in accordance with paragraph (e)(13) of this section. 
The district director shall notify the applicant of the approval and 
include in the notice of approval the following items:
    (i) Instructions on how to prepare Applicant Fingerprint Cards, 
Form FD-258;
    (ii) A listing of acceptable Service-issued photo-IDs; and
    (iii) A statement detailing the DFS(s) responsibilities and rights, 
including the renewal and revocation procedures as provided by 
paragraphs (e) (12) and (13) of this section.
    (12) Denial of the application. The applicant shall be notified of 
the denial of an application, the reasons for the denial, and the right 
to appeal to the AAO under 8 CFR part 103.
    (13) Renewal (i) Subject to paragraph (e)(13)(ii) of this section, 
a DFS must apply for renewal of its certification at least ninety (90) 
days prior to the expiration date to prevent interruption in its 
ability to provide fingerprinting services. An application for renewal 
must be made on Form I-850 with the required fee and documentation as 
contained in paragraph (e)(8) of this section. In considering an 
application for renewal, the Service will give appropriate weight to 
the volume, nature, and the substance of complaints or issues raised in 
the past regarding that particular DFS and or relevant circumstances 
which are made known to the Service by the general public, other 
governmental or private organizations, or through Service inspections. 
Also, the Service will favorably consider the absence of such 
complaints or issues. Each renewal shall be valid for 3 years. Failure 
to apply for renewal will result in the expiration of the outside 
entity's DFS status.
    (ii) The Service will certify and renew DFS(s) as long as the need 
for their service exists. Following the development of an automated 
fingerprint information system, the Service will determine if there is 
a continued need for the DFS' services and, if so, whether they should 
switch to newer technologies, such as acquiring compatible automated 
fingerprinting

[[Page 28013]]

equipment. In either event, the Service shall issue a public 
notification or issue a new rule, as appropriate. Nothing in this 
paragraph shall preclude the Service, in its discretion, from 
discontinuing the DFS certification program after the initial 3 years 
or from requiring, as a condition of continued certification, that the 
DFS incorporate automated fingerprinting equipment.
    (14) Revocation of certification. The district director shall 
revoke an approval of application for DFS status under the following 
circumstances:
    (i)Automatic revocation. The approval of any application is 
automatically revoked if the DFS:
    (A) Goes out of business prior to the expiration of the approval; 
or
    (B) Files a written withdrawal of the application.
    (ii)Revocation on notice. The Service shall revoke on notice the 
certification of a DFS which has violated the regulations governing the 
fingerprinting process as established in paragraph (e) of this section.
    (A) If the district director finds that a DFS has failed to meet 
the required standards, he or she will issue a notice of intent to 
revoke detailing reasons for the intended revocation. Within 30 days of 
the receipt of the notice, the DFS may submit evidence in rebuttal or 
request an inspection following corrective actions. The district 
director shall cancel the notice of intent to revoke if he or she is 
satisfied with the evidence presented by the DFS or the results of a 
reinspection.
    (B) For flagrant violations, such as failure to verify the identity 
of the persons seeking fingerprinting, the district director may, in 
his or her discretion, issue a suspension order and place the DFS on 
immediate suspension. During the suspension period, the DFS may not 
take fingerprints, and the Service will not accept fingerprints taken 
by the suspended DFS. The DFS under suspension may submit a plan for 
corrective action to the district director within 30 days and request a 
reinspection. If the district director approves the plan, he or she 
shall permit the DFS to resume fingerprinting on probation pending the 
results of the reinspection and the Service will resume accepting 
submitted fingerprints. The district director shall cancel the 
suspension order if he or she finds the results of a reinspection 
satisfactory.
    (C) If the DFS fails to submit evidence of rebuttal or corrective 
actions within the 30-day period, or if unsatisfactory conditions 
persist at the second inspection, the district director shall notify 
the DFS of the revocation decision, detailing the reasons, and of its 
right to appeal.
    (D) The district director shall consider all timely submitted 
evidence and decide whether to revoke the DFS approval. The district 
director shall also decide whether any such revocation shall preclude 
accepting fingerprints taken by that DFS (or any of its offices or 
employees) during some or all of the period of its certification.
    (iii) If the Service's investigation uncovers evidence of material 
misconduct, the Service may, in addition to revocation, refer the 
matter for action pursuant to section 274C of the Act (Penalties for 
Document Fraud), or 18 U.S.C. 1001 (false statement), or for other 
appropriate enforcement action.
    (15) Appeal of revocation of approval. The revocation of approval 
may be appealed to the Service's Administrative Appeals Office (AAO). 
There is no appeal from an automatic revocation.
    (16) List of DFS(s). Each district office shall make available a 
list of the DFS(s) it has certified to take fingerprints. Such list 
shall contain the name, address, telephone number, if available, and 
the fingerprinting fee charge, if any, of each DFS certified in the 
district.
    (17) Change of address or in fee. A DFS shall notify the Service, 
on Form I-850, without an application fees, of any change(s) of address 
or change(s) in the fee charged for fingerprinting at least 10 working 
days before such a change takes place. The district office shall update 
its DFS list, including any fingerprinting fee changes, upon receipt of 
the notice of change(s).
    (18) False advertising or misrepresentation by a DFS. Designated 
fingerprinting services are prohibited form exploiting their DFS status 
by creating the impression that they are authorized by the Service to 
do more than fingerprinting. DFS(s) are prohibited from using the 
Service logo on their stationery, flyers, or advertisements. When 
dealing with the public or advertising for business, a DFS may refer to 
itself only as ``an INS-Authorized Fingerprinting Service.'' DFS(s) 
found in violation of this requirement are subject to suspension or 
revocation actions pursuant to Sec. 103.2(e)(14).
    4. In Sec. 103.7, paragraph (b)(1) is amended by adding to the 
listing of forms, in proper numerical sequence, the entry for ``Form I-
850'' to read as follows:


Sec. 103.7  Fees.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Form I-850. For filing an application for certification as a 
designated fingerprinting service--$370 plus $23 for each 
fingerprint check for initial certification; $200 for renewal of 
certification; and $23 for each fingerprint check for adding or 
replacing employees. No fee will be charged to police stations, 
military police or campus police agencies registering pursuant to 
Sec. 103.2(e)(9).
* * * * *

PART 229--IMMIGRATION FORMS

    5. The authority citation for part 299 continues to read as 
follows:

    Authority: 8 U.S.C. 1101, 1103; 8 CFR part 2.

    6. Section 299.1 is amended by adding to the listing of forms, in 
proper numerical sequence, the entry for Forms ``I-850 and I-850A'' to 
read as follows:


Sec. 299.1  Prescribed forms.

* * * * *

------------------------------------------------------------------------
                                Edition                                 
          Form No.               date                  Title            
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
I-850.......................    05-21-96  Application for Certification 
                                           for Designated Fingerprint   
                                           Services.                    
I-850A......................    05-21-96  Attestation by Designated     
                                           Fingerprinting Service       
                                           Certified to Take            
                                           Fingerprints.                
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------

    7. Section 299.5 is amended by adding to the listing of forms, in 
proper numerical sequence, the entry for Forms ``I-850 and I-850A'' to 
read as follows:


Sec. 299.5  Display of control numbers.

* * * * *

------------------------------------------------------------------------
                                                              Currently 
                                                               assigned 
        INS form No.                  INS form title         OMB control
                                                                 No.    
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
I-850.......................  Application for Certification    1115-0193
                               for Designated                           
                               Fingerprinting Services.                 
I-850A......................  Attestation by Designated        1115-0194
                               Fingerprinting Service                   
                               Certified to Take                        
                               Fingerprints.                            
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------


[[Page 28014]]


    Dated: February 28, 1996.
Doris Meissner,
Commissioner, Immigration and Naturalization Service.

[Note: Appendix A and B will not appear in the Code of Federal 
Regulations]

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[FR Doc. 96-13856 Filed 6-3-96; 8:45 am]
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