[Federal Register Volume 68, Number 82 (Tuesday, April 29, 2003)]
[Rules and Regulations]
[Pages 23010-23012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10442]



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Part IV





Department of Homeland Security





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8 CFR Part 103



Electronic Signature on Applications and Petitions for Immigration and 
Naturalization Benefits; Interim Final Rule

  Federal Register / Vol. 68, No. 82 / Tuesday, April 29, 2003 / Rules 
and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 103

[CIS No. 2224-02]
RIN 1615-AA83


Electronic Signature on Applications and Petitions for 
Immigration and Naturalization Benefits

AGENCY: Department of Homeland Security.

ACTION: Interim final rule with request for comments.

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SUMMARY: On March 1, 2003, the Immigration and Naturalization Service 
(Service) transferred from the Department of Justice to the Department 
of Homeland Security (DHS), pursuant to the Homeland Security Act of 
2002, Public Law 107-296. The Service's immigration services function 
transferred to the Bureau of Citizenship and Immigration Services 
(BCIS) of the DHS. This rule amends the DHS regulations concerning the 
signature requirement for applications and petitions filed with the 
BCIS by specifically permitting applicants and petitioners to sign 
electronically. This change is necessary to allow the BCIS to begin 
accepting electronically filed applications and petitions as required 
by law. By accepting electronically filed applications and petitions, 
the BCIS expects to streamline its information collection processes, 
improve customer service, move towards fulfilling the mandates of the 
Government Paperwork Elimination Act (GPEA), and support the 
feasibility study for online filing mandated by the Public Law 107-296. 
The BCIS requests comments on this rule and particularly on how it can 
best implement electronic signature and filing.

DATES: Effective date: This rule is effective on May 29, 2003.
    Comment date: Written comments must be submitted on or before June 
30, 2003.

ADDRESSES: Please submit written comments to the Director, Regulations 
and Forms Services Division, Bureau of Citizenship and Immigration 
Services, 425 I Street NW., Room 4034, Washington, DC 20536. To ensure 
proper handling please reference CIS No. 2224-02 on your 
correspondence. Comments may also be submitted electronically to the 
Bureau at [email protected]. When submitting comments electronically to 
the Bureau, you must include CIS No. 2224-02 in the subject box so that 
the comments can be routed to the appropriate office for review. 
Comments are available for public inspection at the above address by 
calling (202) 514-3291 to arrange an appointment.

FOR FURTHER INFORMATION CONTACT: Ann Palmer, Special Assistant, Bureau 
of Citizenship and Immigration Services, 800 K Street NW., Room 1000, 
Washington, DC 20536, telephone (202) 514-6442.

SUPPLEMENTARY INFORMATION: 

Background

Why Is the BCIS Amending the Regulations to Specifically Permit 
Electronic Signatures on Applications and Petitions?

    The BCIS has embarked on a 10-year effort to modernize the 
immigration services program. This effort is designed to improve the 
efficiency, integrity, and customer service of the program. A part of 
this effort is to provide for electronic filing of immigration and 
naturalization applications and petitions to minimize the requisite 
reporting burden on the public. Central to the electronic filing 
initiative is the ability to provide for an electronic signature on the 
required benefit applications and petitions. Electronic filing and the 
acceptance of electronic signatures is authorized by the GPEA (44 
U.S.C. 3504). The GPEA provides that the Office of Management and 
Budget (OMB) must ensure that no later than 5 years from October 21, 
1998, executive agencies provide for the option of electronic 
submission of information, when practicable, as a substitute for paper. 
To implement the GPEA, this interim rule adopts a regulatory change to 
permit electronic filing and signatures. It also provides for the use 
and acceptance of electronic signatures, when practicable.
    Moreover, section 461 of the Homeland Security Act of 2002 
(effective January 24, 2003) provides that the Secretary of Homeland 
Security shall conduct a study of the feasibility of online filing. 
Information received in reply to this publication as well as evaluation 
of this initial phase of the program will be used in conducting the 
feasibility study as mandated in the Homeland Security Act of 2002. 
Section 461 of the Homeland Security Act of 2002 also provides that the 
Secretary shall establish an electronic tracking system for 
applications in order to provide applicants with access to the status 
of their applications. This system was brought online on September 28, 
2002.
    Accordingly, to successfully accomplish the electronic immigration 
benefit filing initiative the current DHS's regulations must be 
amended. Current regulations at 8 CFR 103.2(a)(2) require that all 
applications and petitions filed with the BCIS be signed. However, they 
do not specify the format of the required signature. The BCIS currently 
collects all application and petition information, including 
signatures, on paper, but is preparing to begin offering the electronic 
filing of certain immigration benefit applications in order to meet the 
goals of the 10-year immigration services modernization program and the 
obligations under GPEA. In addition, courts appear to recognize 
electronic signatures supported by appropriate authentication 
safeguards if the governing statute or rule specifically permits them. 
Therefore, this rule amends the regulations at 8 CFR 103.2(a)(2) to 
specifically permit applicants and petitioners to electronically sign 
their applications or petitions filed electronically with the BCIS. 
This change will allow the BCIS to accept electronically filed 
applications and petitions without diminishing the certification made 
under penalty of perjury by applicants and petitioners that the 
application or petition, and all evidence submitted with it is true and 
correct.

What Method of Electronic Signature Does the BCIS Intend To Implement?

    When electronic filing is implemented, the electronic versions of 
the applications and petitions will display a statement that by 
selecting the ``Signature'' block, the applicant or petitioner is 
certifying under penalty of perjury that the application or petition is 
true and correct. The applicant or petitioner would then be required to 
select the ``Signature'' block of his or her application or petition in 
order to submit it to the BCIS. The applicant or petitioner would 
receive a confirmation number electronically to acknowledge that the 
BCIS has accepted the application and electronic signature. The 
applicant or petitioner would also be encouraged, but not required, to 
print, sign, and date in permanent ink the application or petition, and 
maintain a paper copy of the electronic submission for his or her 
records.

How Does the BCIS Plan To Implement Electronic Filing?

    The GPEA directs agencies to offer customers the option of 
electronic submission of information, when practicable, as a substitute 
for paper. However, the BCIS does not currently have the technology 
necessary to support full implementation of electronic filing for all 
applications and petitions for immigration and

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naturalization benefits. The BCIS will begin deploying such technology 
in fiscal year (FY) 2004. Therefore, until the technology exists to 
support comprehensive electronic filing, the BCIS is identifying a 
limited number of high volume applications and petitions that the BCIS 
determines to be practicable for electronic filing. This approach will 
allow the BCIS to minimize disruptions to current business practices 
while it pursues the parallel strategy of integrating modern technology 
necessary to support full implementation of electronic filing for 
immigration and naturalization benefits.

Which Forms Does the BCIS Plan to Offer for Electronic Filing?

    The BCIS currently has approximately 50 forms that are applications 
or petitions for immigration and naturalization benefits. Twelve of 
these 50 forms represent 90 to 95 percent of the immigration benefit 
workload filed with the BCIS annually. These 12 forms are:

1. Form I-90, Application to Replace Permanent Resident Card;
2. Form I-129, Petition for Nonimmigrant Worker;
3. Form I-130, Immigrant Petition for Alien Relative;
4. Form I-131, Application for Travel Document;
5. Form I-140, Immigrant Petition for Alien Worker;
6. Form I-485, Application to Adjust Status;
7. Form I-539, Application to Extend/Change Status;
8. Form I-751, Petition to Remove Conditions on Residence;
9. Form I-765, Application for Employment Authorization;
10. Form I-821, Application for Temporary Protected Status;
11. Form N-400, Application for Naturalization; and
12. Form N-600/N-643, Application for Certificate of Citizenship.

Of the remaining forms, none represents more than 1 percent of the BCIS 
's annual immigration benefit workload.
    In recent years, the Forms I-90 and I-765 have represented 
approximately 30 percent of the annual immigration benefit workload. In 
addition, the BCIS believes these forms are good candidates for 
electronic filing because they:
    [sbull] Are relatively short and easy to complete;
    [sbull] Are applications for renewals, replacements, or 
authorizations based on immigration status so that the BCIS can verify 
against existing data;
    [sbull] Require capture of biometrics (photograph, fingerprint, and 
signature) at an Application Support Center where the BCIS will be able 
to increase process integrity by verifying the identity of the 
applicants. Although some applicants who have not previously needed to 
appear at the Application Support Center will now be required to do so, 
they will no longer need to appear at the district office to file their 
application and/or will no longer be required to submit passport style 
photographs to the BCIS; and
    [sbull] Require little or no supporting documentation that would 
have to be submitted in paper.
    For these reasons, the BCIS is identifying the Forms I-90 and I-765 
as the first forms to offer for electronic filing. By scheduling 
implementation of the remaining 10 high volume applications and 
petitions over the following 3 years, the BCIS believes it will achieve 
the goal of GPEA by facilitating the electronic filing of applications 
and petitions while continuing to accept paper applications and 
petitions. The BCIS invites comments from the public on choosing Forms 
I-90 and I-765 as applications appropriate for electronic submission 
and on how it intends to accept electronic signatures.
    Forms I-90 and I-765 require that an alien appear before the BCIS, 
at which time the alien's identity is verified. The ability to file 
applications electronically, therefore, both improves the BCIS's 
ability to verify the eligibility of the alien for the benefit sought, 
and clear the alien through the appropriate databases, but does not 
increase the exposure of the immigration system to fraud.
    The BCIS is planning to implement e-filing of Forms I-129, I-131, 
I-140, I-539 and I-821 by the end of FY 2003.

Explanation of Changes in This Rule

    The DHS is amending the regulations at 8 CFR 103.2(a)(2) to specify 
that the signature requirement that applies to all applications and 
petitions filed with the BCIS can be met by either a handwritten 
signature for paper filings or an electronic signature for electronic 
filings. This change will have no effect on the signature requirements 
set forth in other provisions of 8 CFR that do not relate to 
applications or petitions for immigration and naturalization benefits 
filed with the BCIS.

Request for Comments

    The BCIS is seeking public comments regarding this interim rule. 
The BCIS requests that parties interested in commenting on the 
provisions contained within this rule do so on or before June 30, 2003.

Good Cause Exception to the Administrative Procedure Act

    The DHS's implementation of this rule as an interim rule, with 
provisions for post-promulgation public comments, is based on the 
``good cause'' exceptions found at 5 U.S.C. 553(b)(B). Under the GPEA, 
agencies must offer by October 2003 the optional use and acceptance of 
electronic documents and signatures, and electronic recordkeeping, 
where practicable. This interim rule only provides for an additional 
avenue for the filing of certain documents by permitting electronic 
signatures. In implementing the GPEA, individuals affected by this rule 
are given greater ability to make filings, and does not limit their 
ability to make filings. As such, the DHS believes that there are no 
parties who could be aggrieved by this rule.
    This rule is also an internal rule of administration in the sense 
that it only changes the manner in which a signature may be affixed on 
a document. This rule will have the effect of reducing, for some 
applicants, the costs of filing and will not increase the costs of 
filing for any applicant. Accordingly, the BCIS finds that it is 
impracticable and contrary to the public interest to publish this rule 
with prior notice and comment period normally required under 5 U.S.C. 
553.

Regulatory Flexibility Act

    The Secretary of Homeland Security, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this 
regulation and, by approving it, certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities. This rule simply permits electronic signatures on 
applications and petitions for immigration and naturalization benefits 
that are submitted by individual petitioners and applicants. This rule 
does not have an impact on small entities as that term is defined in 5 
U.S.C. 601(6).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, and it will not significantly or 
uniquely effect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

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Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Executive Order 12866

    This rule is considered by the Department of Homeland Security, 
Bureau of Citzenship and Immigration Services, to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Accordingly this rule has been 
submitted to the OMB for review.

Executive Order 13132

    This rule 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 section 6 of 
Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Executive Order 12988 Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

Paperwork Reduction Act

    This rule will allow the BCIS to begin accepting electronically 
filed applications for the Forms I-90 and I-765. By accepting 
electronically filed applications, the BCIS expects to streamline the 
information collection process for its applicants, thereby reducing the 
burden on the public. Accordingly, the BCIS has submitted the required 
Paperwork Reduction Change Worksheet (OMB-83C) to the Office of 
Management and Budget (OMB) reflecting the reduction in burden hours 
for Forms I-90 and I-765, and the OMB has approved the changes.

List of Subjects in 8 CFR Part 103

    Administrative practice and procedure, Authority delegations 
(government agencies), Fees, Forms, Freedom of information, Privacy, 
Reporting and recordkeeping requirements, Surety bonds.


0
Accordingly, part 103 of chapter I of title 8 of the Code of Federal 
Regulations is amended as follows:

PART 103--POWERS AND DUTIES; AVAILABILITY OF RECORDS

0
1. The authority citation for part 103 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 
1356; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 
et seq.); E.O. 12356, 47 FR 14874, 15557, 3 CFR, 1982 Comp., p. 166; 
8 CFR part 2.


0
2. Section 103.2 is amended by revising paragraph (a)(2) to read as 
follows:


Sec.  103.2  Applications, petitions, and other documents.

    (a) * * *
    (2) Signature. An applicant or petitioner must sign his or her 
application or petition. However, a parent or legal guardian may sign 
for a person who is less than 14 years old. A legal guardian may sign 
for a mentally incompetent person. By signing the application or 
petition, the applicant or petitioner, or parent or guardian certifies 
under penalty of perjury that the application or petition, and all 
evidence submitted with it, either at the time of filing or thereafter, 
is true and correct. Unless otherwise specified in this chapter, an 
acceptable signature on an application or petition that is being filed 
with the BCIS is one that is either handwritten or, for applications or 
petitions filed electronically as permitted by the instructions to the 
form, in electronic format.
* * * * *

    Dated: April 22, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-10442 Filed 4-24-03; 9:26 am]
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