FBI Name Check Policy Revised For Adjustment of Status (AOS) Applications, How does this Affect You?
Submitted by the staff of Immigration Law Associates, P.C.

The USCIS Background Check Process
Every individual that applies for a U.S. immigration benefit must go through a criminal and national security background check to confirm eligibility. This background check process usually involves three stages. The first and fastest of these is The Interagency Border Inspection System (IBIS) name check. The IBIS is a database that stores the law enforcement information of multiple agencies and the information is usually immediately available. 

Once the IBIS name check has been completed, and there are no issues to resolve, the next step is the FBI fingerprint check. This check shows any criminal history within the United States, and results are forwarded to the USCIS within 1-2 days. If the check shows criminal activity, the adjudicator resolves any issues and decides if the applicant is eligible for the benefit sought. Once this step is completed, the applicant undergoes a third background check.

The third stage is the FBI name check which includes administrative, applicant, criminal, personnel, and other types of files. This name check should normally take two weeks, however, the USCIS states that in some cases, issues may take 6 months or more to resolve. This stage of the process is what is leading to several thousand delays in AOS applications. 

Revision to the FBI Name Check Policy
On February 4, 2008, The United States Citizenship and Immigration Services (USCIS) announced that the FBI name check policy would be revised for Adjustment of Status (AOS) applicants. The policy change allows AOS applications to be granted before the FBI name check has been completed, whereas in the past, applicants’ petitions could be delayed years due to a pending name check. However, there are still criteria an AOS application must meet before it is granted through this revised policy:

1. The application must be otherwise approvable (completion of IBIS name check and FBI fingerprint check, etc.);
2. The application is outside of normal processing times;
3. The FBI name check has been pending for more than 180 days; and
4. The application in question is one of the following:

· I-485, Application to Register Permanent Residence or Adjust Status;
· I-601, Application for Waiver of Ground of Inadmissibility;
· I-687, Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act; or
· I-698, Application to Adjust from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603).

Note that although this new guidance changes at what stage an AOS application may be approved, FBI name checks are still initiated in these cases. If the FBI name check returns with “actionable information” after an AOS application has been approved under the new policy, the USCIS may initiate deportation proceedings against the applicant. Additionally, only the applications listed above are affected by this guidance, N-400 applications for naturalization and other such petitions must await the results of the FBI name check.

My AOS Application Fits the Criteria, What Can I do Now?
The USCIS announcement affects all AOS applicants that fit the criteria above, including those that are currently involved in court proceedings due do application delays. To date, the USCIS has identified 47,000 applicants that are eligible to receive permanent residency under this new policy. For those that believe that they are one of the eligible applicants, there are some options.

One of the simpler options is to wait until March 10, 2008, and see whether their adjustment of status is granted. This date is the USCIS’s target date to process those applications that they have identified as eligible. Applicants that do not hear from the USCIS by the above date may inquire about their applications with the USCIS at (800) 375-5283.

A second option for applicants is to send a letter to the USCIS requesting that the application be granted immediately, and attaching the February 4th announcement. In some cases, this letter may encourage the USCIS to approve the petition rapidly. If the letter is ignored and no action is taken on an application that meets the above criteria, a third option would be to file a mandamus action in court against the USCIS. Many judges are taking the side of applicants and showing their disdain for the delays in application processing.   

Applicants that are already involved in court proceedings based on the delay of their AOS applications may want to file a motion that includes the USCIS memo. The motion should include reasons why the plaintiff qualifies for immediate adjustment and request that the judge have the USCIS grant the application immediately.

Immigration Law Associates, P.C. has years of experience with adjustment of status cases and delays with the USCIS.  Our attorneys can provide an assessment of your AOS application and advise you on the best course of action for you to take. For more information please call (847) 763-8500 or e-mail info@immig-chicago.com.