New USCIS Policy on FBI Name Check

USCIS and FBI have been working together in the past year to reduce the backlog of immigration-related FBI name checks. In an announcement released today, USCIS claimed the achievement of a major milestone: the backlog of FBI name checks pending six months or more has been eliminated.

It is indeed good news.

Along with the good news, however, USCIS also revised its policy since February 4, 2008, which allowed approval of I-485 cases without FBI name check clearance, as long as the cases are otherwise approvable and name check requests have been pending for 180 days.

The new policy, revealed in a memo from Donald Neufeld, Acting Associate Director of USCIS, now requires that adjudicators must contact USCIS Headquarters before approving I-485, I-601, I-687, or I-698 cases if FBI name check results have not been received. The Headquarters will then contact FBI to determine the reason for the delay, and provide guidance to field adjudicators on a case by case basis. This policy took effect on February 9, 2009.

So theoretically an I-485 case may still be approved prior to the clearance of long-pending FBI name check, but it now requires USCIS Headquarter authorization.

The reason for this policy change is that the FBI is now processing USCIS name check requests on average within 90 days. Very few take more than 180 days, according to the memo. So if a case is stuck in FBI name check for six months or more, USCIS wants to find out why before approving it. It is reasonable.

Note that FBI fingerprint check and IBIS name check still must be cleared before a case can be approved. They are different from FBI name checks, which often confuse a lot of people, including immigration attorneys.

A little background information:

Shortly after 9/11/2001, all applicants and beneficiaries must go through extensive background checks before receiving immigration benefits. One of the security checks is called FBI Name Check, which, for a variety of reasons, quickly became a bottleneck in the already heavily backlogged immigration pipeline.

How bad was the situation? As of May 2007, there were 329,160 cases pending the outcome of FBI name checks. Among them, 106,000 had been waiting for more than one year. In fact there were even cases pending for more than five years! Keep in mind that this was in addition to all the “regular” delays in a legal immigrant’s road to green card.

It got worse, and more and more people started filing law suits, called WOM, against USCIS. It was costly and time consuming to both sides.

Under tremendous pressure, USCIS made various attempts to speed up FBI name check process. One thing that apparently helped was the allocation of more funding to the program, with the overall fee increase in 2007. Then in February, 2008, USCIS adopted a policy that essentially set a cap of six months for FBI name checks. It was a huge relief for long-suffering immigrants at that time.

USCIS and the FBI together made great progress in 2008, reducing the average wait time to be about 90 days. By June 2009, they hope to be able to process 98 percent of all name checks within 30 days. Although visa retrogression still means a multi-year struggle for many legal immigrants, at least FBI name check is less of a concern now.

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