U.S. Department of State Issues Increased Criminal History Screening Regulations

The events of September 11, 2001 resulted in the USA Patriot Act which, among many other directives, requires the Federal Bureau of Investigation ("FBI") to give the U.S. Department of State ("State Department") access to certain criminal history records and other databases maintained and controlled by the FBI.

On February 25, 2002, the State Department issued an interim final rule, effective immediately, regarding its new procedures for obtaining and using criminal history information from the FBI for immigrant and nonimmigrant visa applications.

The interim final rule amends the State Department regulations regarding fingerprinting and establishes regulations to control the use, protection, dissemination, and destruction of any of the records provided to the State Department by the FBI.

The State Department will now have access, through its automated Lookout database, to criminal history record extracts from the FBI’s National Crime Information Center ("NCIC"). All visa applicants and applicants to admission to the U.S. will be subject to name-check queries against the extract information in order to determine if the applicant may have a criminal history or other record.

If the extract information indicates that an applicant may have a criminal history, the State Department will require the applicant to submit fingerprints and pay the $25.00 fingerprint processing fee. The State Department will then send the fingerprints to the FBI for purposes of verifying that the information shown in the extract matches the applicant in question. Once the identification is confirmed, the FBI will forward to the State Department the full content criminal history record.

This criminal history information is considered law enforcement sensitive and is subject to conditions for its use and procedures for its destruction. Therefore, the interim final rule requires the State Department to: 1) limit the re-dissemination of the information, 2) use the information solely to determine whether or not to issue a visa to an alien or to admit the alien to the U.S., 3) ensure the security, confidentiality and destruction of such information, and 4) protect the privacy rights of individuals who have NCIC criminal history records.

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