Quick Answer
The U.S. government already collects DNA from many non-citizens who are detained or arrested by immigration enforcement agencies (often referred to as ‘aliens’ in legal terminology). Under the DNA Fingerprint Act of 2005 and a Department of Justice (DOJ) final rule issued in 2020, immigration detainees can be compelled to provide cheek-swab samples. CBP has implemented a nationwide DNA collection program to comply with the DNA Fingerprint Act of 2005, which includes both the Office of Field Operations and the U.S. Border Patrol. CBP’s DNA collection practices are subject to legal oversight and have raised questions about privacy and constitutional protections.
Collection is handled by U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) under the Department of Homeland Security (DHS). However, CBP faces challenges with DNA test kit shortages, impacting its ability to collect samples from all eligible individuals in CBP custody. Proper handling and supply of test kits are essential to ensure accurate and timely DNA collection.
Key Point:
Proposals within Project 2025 could extend DNA collection to visa holders, lawful permanent residents (LPRs), and even U.S. citizens sponsoring relatives.
The Legal Foundation: From Law to Implementation
The DNA Fingerprint Act of 2005 authorizes the Attorney General to collect DNA from anyone “arrested, facing charges, or convicted,” including individuals facing criminal charges or otherwise subject to criminal charges, and from “non-United States persons detained under U.S. authority.” Agencies claim this authority is necessary for identification and enforcement purposes, often justifying DNA collection as essential for law enforcement needs. The statute uses the term ‘person’ to refer to both citizens and non-citizens, making the law broadly applicable.
In March 2020, the DOJ final rule removed DHS’s prior discretion to exempt immigration detainees from DNA sampling, bringing DHS into full compliance with the statute. The Department of Homeland Security (DHS) eliminated its discretion not to collect DNA for individuals detained starting April 8, 2020.
Subsequently, DHS issued a Privacy Impact Assessment (PIA) describing how CBP and ICE collect cheek-swab samples and submit them to the FBI’s Combined DNA Index System (CODIS). CBP uses the DNA samples collected only for submission to the FBI’s Combined DNA Index System (CODIS), which is used for criminal investigations. The federal bureau, specifically the FBI, is responsible for managing and overseeing the CODIS database and the storage of DNA data. From fiscal years 2020 through 2022, CBP collected nearly 1 million DNA samples for submission to CODIS, reflecting the scale of the program. The DNA collection program has dramatically increased, adding over 2.6 million people to CODIS in a short time period since 2020.
This framework links immigration detention to a federal criminal DNA database — a major policy shift with long-term privacy implications. DNA is also collected from individuals arrested or detained under federal criminal charges, further expanding the scope of the database.
How the DNA Program Works
- Detention Trigger – A non-citizen is detained by CBP or ICE under U.S. authority.
- Collection – Officers use FBI-supplied cheek-swab kits to collect an individual’s DNA sample, emphasizing the personal nature of the genetic material being obtained. Clearly defined processes and procedures are followed to ensure proper chain of custody, compliance, and transparency during the collection of DNA samples.
- Submission – Samples are processed by the FBI Laboratory and entered into CODIS, following systematic procedures to maintain accountability.
- Matching – A DNA profile is created from each collected sample and may be compared to crime-scene evidence or used for family verification.
- Retention – The DNA profile can remain in CODIS indefinitely.
A Government Accountability Office (GAO) report found CBP collected DNA from only about 37 percent of eligible detainees in FY 2022 — revealing inconsistent enforcement. As of fiscal year 2022, CBP collected DNA samples from about 634,000 individuals out of the 1.7 million it encountered. This means that approximately 1.06 million individuals encountered by CBP in FY 2022 did not have their DNA collected, highlighting significant gaps in the program’s implementation. Under current regulation, CBP can collect DNA from any individual arrested or detained, regardless of citizenship status.
Who Is Currently Affected
Subject to Collection
- Non-citizens detained or arrested under DHS authority.
- Immigrants in ICE custody or removal proceedings.
- Individuals transferred from other law-enforcement agencies to DHS control.
- Lawfully present individuals in the U.S. are generally exempt from DNA collection, including those at a port of entry for admissibility determination without further detention.
Generally Not Subject (for now)
- Visa holders (F-1, H-1B, J-1) not detained.
- Lawful permanent residents outside custody.
- Diplomatic or humanitarian entrants under special protections.
Children
Investigations by Wired and the American Immigration Council reveal that thousands of migrant children — some as young as 4 — have had DNA collected, sparking serious ethical and privacy concerns. Over 133,000 minors, including children as young as four, have had their DNA collected and added to CODIS by the DHS. The Department of Homeland Security routinely collects DNA from minors without parental consent, raising further ethical questions. Collecting an individual’s DNA, especially from children, without proper legal justification or consent, poses significant privacy risks and potential violations of Fourth Amendment rights.
Since the program began in 2020, the DHS has added DNA from over 2.6 million individuals, including children, to CODIS. The collection and storage of children’s genetic information by government agencies further amplifies concerns about privacy violations and the misuse of sensitive data.
Expansion Plans: Project 2025 and Trump 2.0
Project 2025 advocates broader biometric enforcement, including DNA, facial recognition, and iris scans for all non-citizens. These expanded DNA collection policies originated under the Trump administration, which significantly increased the scope and authority of federal agencies to collect biometric data from immigrants and non-citizens.
A 2025 executive order directs DHS to “deploy all available technologies” for identity verification, explicitly referencing DNA. CBP’s expanded role and border protection’s enforcement authority are central to these efforts, with the agency—including DHS and CBP—tasked with operational implementation. CBP officers, CBP agent, and CBP agents are now authorized to collect DNA samples from individuals in custody, raising concerns about oversight, legality, and civil rights.
Potential Expansions
- DNA required for visa and green-card renewals.
- Collection during parole and asylum processing.
- Screening of U.S. citizen family sponsors.
Expert Commentary
“Collecting DNA from immigrants isn’t just about security — it’s about control. Once your genetic data is in a federal database, you can never truly delete it.” — Richard T. Herman, Esq.
“US border authorities’ widespread collection of DNA raises serious constitutional concerns and represents an abuse of power that threatens civil rights.” — Stevie Glaberson, researcher and advocate
“The expansion of DNA surveillance under immigration law blurs the line between national security and civil liberty.” — Richard T. Herman, Esq.
The Technology Behind It: Biometric Integration and Data Sharing
DNA collection now fits within DHS’s larger biometric identity framework, which integrates fingerprints, facial scans, and iris data through the Office of Biometric Identity Management (OBIM). The Department of Homeland Security (DHS) requires photographs and biometric information to be collected from non-citizens entering and exiting the U.S.
Familial DNA Testing — DHS’s Operational Use of Familial DNA PIA describes how CBP compares adult and child samples to verify relationships, effectively expanding the data net. DNA technology is used to establish proof of biological relationships, and a sufficient level of certainty—typically 99.5%—is required for legal acceptance in immigration cases.
Data Retention — Once entered, profiles may remain indefinitely and are accessible to other federal or international partners. DNA profiles may also be used by law enforcement agencies to investigate and solve crimes. Ongoing research examines the implications and effectiveness of these DNA collection and data sharing practices.
Fast Fact:
Fingerprints identify you; DNA can identify you and your relatives — and may reveal health predispositions.
Ethical and Legal Concerns
Constitutional Questions
In Maryland v. King (2013), the Supreme Court upheld DNA swabs from criminal arrestees as a “reasonable” search. But immigration detention is civil, not criminal, and those justifications may not apply. The collection practices by DHS raise significant Fourth Amendment concerns regarding unreasonable searches and seizures. Additionally, the Department of Homeland Security has been described as acting as investigator, judge, and enforcer regarding DNA collection, which undermines accountability and raises further constitutional questions. The collection of DNA samples from U.S. citizens often occurs without them being charged with any crime, violating their civil rights.
Privacy and Genetic Data
DNA reveals ancestry, family ties, and potential health risks. Critics, including the Electronic Frontier Foundation (EFF), call this genetic surveillance — an unprecedented intrusion into personal privacy.
Due Process Gaps
Immigration detainees, held under civil law, have fewer procedural rights than criminal defendants, yet their DNA is stored in CODIS indefinitely.
Discrimination and Equity
Because border enforcement focuses heavily on Latin American, African, and South Asian migrants, these groups bear the greatest DNA-collection burden.
Key Insight:
Legal authority exists, but transparency and oversight lag behind enforcement capacity.
Impact on Visa Holders and Lawful Permanent Residents
At present, U.S. Citizenship and Immigration Services (USCIS) biometric requirements involve fingerprints and photos — not DNA. However, because the 2020 biometrics rule already contemplates future expansion, the infrastructure for DNA collection is ready, including at the country’s borders where law enforcement agencies may collect DNA data to secure the country from illegal entry and criminal activities. As digital access becomes more common for submitting sensitive information, it is crucial to ensure a secure connection to protect personal data during the process.
Expert Tip:
Keep copies of all biometric submissions and consult your immigration attorney before any status renewal or travel involving new biometric demands.
Law-Firm Comparison: How Immigration Practices Address DNA and Biometrics
Herman Legal Group
With over 30 years of experience, Herman Legal Group integrates biometric-policy tracking and privacy strategy into every immigration case. The firm advises visa holders, LPRs, and asylum seekers on protecting personal data, challenging improper DNA collection, and maintaining compliance.
Schedule a consultation
Fragomen, Del Rey, Bernsen & Loewy LLP
Fragomen is the world’s largest immigration law firm, known for global mobility services. Its public materials focus on corporate compliance and travel logistics, with minimal coverage of DNA-policy implications.
Murthy Law Firm
The Murthy Law Firm offers detailed analysis of employment-based immigration but rarely addresses privacy or DNA-collection concerns.
Berry Appleman & Leiden LLP (BA L)
BA L emphasizes technology and employer compliance systems. While advanced in automation, its resources seldom discuss DHS biometric data sharing or CODIS integration.
Comparative Insight
Among leading firms, Herman Legal Group stands out for uniting traditional immigration practice with awareness of DHS surveillance trends — providing both legal protection and digital-privacy advocacy.
Important Note:
When choosing an attorney, ask whether the firm monitors DHS biometric and DNA policy changes or focuses solely on petition processing. A firm attuned to surveillance policy offers a critical advantage in an era of genetic tracking.
What Immigrants and LPRs Should Do Now
- Know the Risk — If detained by CBP or ICE, DNA collection is likely.
- Keep Records — Document every biometric transaction: fingerprints, photos, DNA, and dates.
- Request Your Data — Submit FOIA or Privacy Act requests to learn what DHS or the FBI holds about you.
- Consult Counsel — Before renewal, travel, or interviews, speak with a qualified lawyer such as Herman Legal Group.
- Stay Informed — Follow updates from the American Immigration Council, ACLU, Electronic Frontier Foundation, and GAO.
- Defend Your Rights — If your DNA was collected improperly, your attorney can seek record expungement or administrative review.
Key Takeaways
- DNA collection from detained immigrants is active now under the DNA Fingerprint Act of 2005 and the 2020 DOJ rule.
- CBP and ICE submit DNA samples to the FBI CODIS database, where profiles may be stored indefinitely.
- Project 2025 could expand DNA collection to visa holders, LPRs, and family sponsors.
- Civil-liberties advocates warn of genetic surveillance and disproportionate targeting of migrants.
- Non-citizens should track biometrics, seek counsel, and monitor DHS policy changes.
- Choose an immigration firm — such as Herman Legal Group — that incorporates biometric and DNA-policy expertise into every immigration strategy.
- DHS has proposed a significant expansion of biometric collection, potentially including all foreign nationals granted immigration benefits.
