Visa Integrity and Security Act of 2016 (HR 5203, 114th Congress)
What it does
Expands background checks to include DNA testing and other measures to improve immigration security and detect visa fraud.
Immigration and border security are hotly contested policy areas with implications for the economy and national security. The stated goal of this legislation is to reform the visa screening process to reduce the risk of terrorism and fraud. The bill aims to augment immigration policy by (1) expanding background checks to require cross-departmental (e.g., Department of Homeland Security, Federal Bureau of Investigation) investigation of applicants from specific nations for terrorist affiliations, social media reviews of all applicants, and DNA testing to verify claimed biological relationships, (2) detecting visa fraud through software analytics and benefits assessments, and (3) funding visa security through the State Department.
HR 5203 amends Chapter 2 of Title II of the Immigration and Nationality Act. Although the basic immigration process remains the same for aliens (individuals who are not U.S. citizens) submitting applications (to receive an immigration benefit for themselves) or petitions (when an American citizen or legal alien resident sponsors an individual from another country, who is known as the beneficiary), HR 5203 would:
- Revise the application/petition process by:
- Requiring applications and/or petitions to be completed in their entirety and signed by all involved parties (e.g., both the petitioner and beneficiary) (immigrant visa applications must be signed in the presence of a consular officer and verified by the applicant under oath);
- Disqualifying applications that include information in a foreign language unless accompanied by a full English translation provided by a certified translator; and
- Mandating that additional information requests made by the Secretary of Homeland Security and consular offices be fully completed in a timely fashion.
- Expand background checks by:
- Mandating comprehensive screening for both the petitioners and their beneficiaries as a prerequisite to visa issuance or immigration approval (previously all individuals were screened, HR 5203 codifies the practice);
- Requiring security advisory opinions for nationals from 1) Iran, Iraq, Libya, Somalia, Syria, Sudan, Yemen, or 2) any country deemed appropriate by the Secretary of State (exceptions are permitted for compliance with the United Nations and other international agreements, among others);
- Requiring review of an alien’s public internet presence, including social media activity;
- Mandating DNA testing if admission into the U.S. is dependent on claims of biological relationships between petitioners and beneficiaries; and
- Requiring an in-person interview at the Department of Homeland Security, which may be waived at the Secretary’s discretion if the alien is younger than 10 years of age at the time of the interview.
The bill also aims to prevent fraud by planning for implementation of proactive software analytics to investigate benefit fraud (e.g. falsifying visa applications). The Fraud Detection and Nationality Security Directorate shall complete benefit fraud assessments across eight specific visa categories, reporting their findings and recommendations to Congress.
Beginning in fiscal year 2016, the bill also mandates Visa Security Program funding by authorizing a surcharge on passport and visa fees, as well as Diplomatic and Consular Program fees. Each fiscal year, 20 percent of these monies will be directed toward repayment of the $120 million direct appropriation provided to support the “expeditious expansion of assignment of Homeland Security employees to diplomatic and consular posts” that issues visas.
The Comptroller General of the U.S. is required to review the visa application process and report on its security to Congress within 18 months after the enactment.
DNA is the molecule containing our genetic code. Because we get half of our DNA from each parent, individuals who are related share specific variable genetic patterns that unrelated people might not share. DNA tests can verify biological relationships (e.g., paternity) with 99.5% accuracy or greater. DNA testing involves the isolation of DNA from biological sample (e.g., blood, saliva) and the creation of a DNA profile that is a unique identifier of an individual. DNA testing can be a valuable biometric in immigration processes since it’s the only biometric that captures relationships and not just identity.
The majority of DNA testing done by the U.S. authorities falls under two categories:
- Law Enforcement
- Authorities use DNA tests when solving crimes (e.g., sexual assault cases)
- Federal Bureau of Investigation (FBI) maintains a database of offenders’ DNA profiles to assist with crime investigations (Combined DNA Index System)
- Analysis of crime scene evidence and offenders’ profiles must be performed by authorized laboratories (e.g., the FBI’s DNA Casework Unit) that adhere to government-mandated regulations for CODIS
- DNA is collected for CODIS from individuals (both U.S. and non-U.S. citizens) detained upon entry into the U.S. DNA profiling of detainees is done by law enforcement
- If a petition for a visa is predicated on a biological relationship between a petitioner and beneficiary, the State Department allows consular officers to request a DNA test to verify a relationship claim
- While DNA testing to demonstrate a biological relationship is currently voluntary under most circumstances, it would be mandated under H.R. 5203
- DNA testing to verify a claimed biological relationship is currently required for the Priority-3 Family Reunification Program (certain categories of refugees) and the Central American Minors Refugee/Parole (CAM) visa programs; these programs affect only a couple thousand applicants each year
- DNA testing for immigration applications is not done by law enforcement or government authorities; petitioners instead must order testing through a private laboratory that has been accredited by the American Association of Blood Banks (AABB)
This distinction is important. §14135A of Title 42 of the U.S. Code permits the collection of DNA from detainees for the purposes of law enforcement, with the collection, testing, and storage process run and regulated by a government entity. However, DNA collection and testing for immigration currently is run by private companies and overseen by a non-profit standards body (AABB), not the government. The policies governing non-U.S. detainees do not carry over from law enforcement to visa applications.
Sara Katsanis, MS is a Duke University instructor in the Duke Initiative for Science & Society. Her research focuses on policies for DNA testing in law enforcement and human rights contexts.
“Regarding the DNA testing aspect, this bill provides a mechanism for DNA testing to prevent fraudulent claims of human traffickers posing as migrant family members. But like the P-3 and CAM programs, the processes for reviewing visa petitions that may be denied based on a failed DNA test need full transparency. We do not want the term “family” within governmental policies to be narrowly defined by a biological relationship. Moreover, disclosure of failed DNA tests to family members may threaten the safety of a petitioner or the beneficiary, for instance when a woman is raped and hides paternity from her husband to avoid abuse or shame on the family. H.R. 5203 is silent on who would be conducting the proposed DNA testing: whether governmental or through private laboratories. It does not specify whether DNA will be retained, how the results of DNA testing would affect visa applications, nor who receives results of the testing. It also does not include provisions for federal oversight of a mandatory visa DNA testing program.”
Endorsements & Opposition
This bill has faced opposition from Democrats on the House Judiciary Committee, citing discrimination, privacy intrusions and lack of safeguards.
At present, there have not been any publicly reported endorsements of this bill. House supporters cite the need to strengthen the immigration system to detect potential terrorists entering the U.S. under false pretenses.
- The American Civil Liberties Union (ACLU) opposed H.R. 5203 in an open letter, specifically denouncing the bill’s expansion of federally-mandated DNA testing. The ACLU stated that “collecting and retaining DNA from individuals for the sole purpose of investigating biological relationships would amount to population surveillance that subverts our notions of a free and autonomous citizenry. DNA testing involves a bodily intrusion for an individual’s genetic blueprint and reveals highly sensitive, private information that discloses information about disease predisposition and other health attributes. Therefore, any measure that requires DNA collection must include comprehensive, carefully crafted rules addressing the retention, access, sharing, security, and deletion of this information. H.R. 5203, however, contains no such safeguards and would therefore require the indefinite retention of DNA involving thousands of U.S. citizens, immigrants, and family members.”
- The U.S. Chamber of Commerce issued a press release expressing concern about the bill’s “top-down, one-size-fits-all approach” to reforming immigration. With regards to the provision on DNA-testing, the Chamber “appreciate[d] the Committee’s concern with fraud,” but stated that “without further clarification as to how this requirement will be implemented, our doubts regarding this provision’s workability remain.”