Homeland Security Addresses Name Check Delays
February 28, 2008

In what appears to be a significant victory for customers of the Citizenship and Immigration Service (CIS), the U.S. Department of Homeland Security has announced its plan to eliminate systemic delays currently plaguing decision-making for many immigration applications, most notably I-485 applications for adjustment of status to permanent residence.

Large numbers of applicants for U.S. permanent residence and naturalization have faced significant, sometimes multi-year, delays in the adjudication of their applications as a result of delays in the FBI name check process. In recent years, the FBI name check and other security protocols have become integral aspects of the processing of applications for permanent residence and naturalization. But shortcomings in the way the FBI and other government agencies process security clearance requests and share information have brought decisionmaking to a halt in tens, if not hundreds, of thousands of cases across the U.S.

Due in no small part to the outbreak of federal litigation initiated by applicants to push for decisions in long pending cases, Homeland Security officials have announced a new rule for various applications, including I-485 applications for permanent residence: “where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve (the application), and proceed with card issuance…(and) (i)f derogatory or adverse information is received from the FBI after the application is approved, CIS will determine if rescission or removal proceedings are warranted.”

It is important to note that the FBI name checks are supposed to be initiated by CIS at the time the application is first received. However, cases delayed for reasons other than the FBI name check, (e.g. marriage fraud concerns, criminal convictions impacting eligibility, etc.) are not subject to this 180 day rule.

Additionally, the new rule does not yet impact the processing of Applications for Naturalization, although the most recent Homeland Security memo on the issue hints that funding to address the problem in this context might very well be on its way. Citing legal complexities with issuing reversals for, or denaturalizing, approved applicants for U.S. citizenship, the 180 day rule being implemented for I-485 applicants for permanent residence was not deemed appropriate for the processing of applications for naturalization.

The impact: applicants with long pending I-485 adjustment of status applications who are merely awaiting FBI name check results and are otherwise approvable should very soon be receiving notices to appear for updated biometrics, and shortly thereafter permanent residence cards (‘green cards’). On the other hand, for long pending U.S. citizenship applicants, federal court action continues to remain the only avenue of redress at this time.