Analysis of Recent USCIS Policy Changes for the FBI Name Check

As many of our readers are aware, on February 4, 2008, the USCIS issued a memorandum implementing a policy that directed USCIS officers to approve I-485, I-601, I-687, and I-698 cases if the name check request for the case was still pending after 180 days and the case was otherwise approvable.  The aim of this policy was to eliminate the large number of backlogged cases that were simply waiting for FBI name check results for final approval.

In a recent memorandum from Donald Neufeld, Acting Associate Director of Domestic Operations for the USCIS, the Service has changed its policy on how to handle cases that have been pending the FBI name check for over 180 days.  Under this new policy, USCIS adjudicators will no longer automatically approve cases after 180 days.  Instead, when an otherwise approvable case has been pending the FBI name check for 150 days, the adjudicator shall notify USCIS headquarters.  Headquarters will then contact the FBI to determine the reason for the name check processing delay.  After receiving an explanation from the FBI, USCIS headquarters will then provide guidance to the adjudicating officer on whether to approve the case.  According to the memorandum, this new policy was implemented since “[f]ew if any, name checks remain pending at the FBI for 180 days”.

USCIS had made it clear that new memo supersedes Feb. 8, 2008 memo and is effective immediately from Feb. 9, 2009.

ANALYSIS

Since February 4, 2008, our office has observed a welcome decrease in the number of cases that have been delayed by the FBI name check; however, we still receive a significant number of inquiries from clients who wish to initiate Writ of Mandamus (WOM) actions against the government for long delays due to the FBI name check.  In light of the number of WOM cases our office still files, it is puzzling why the USCIS would choose to revise its FBI name check policy as it seems that the policy change can only serve to increase processing times.

Under the former 180-day policy, the USCIS reserved the right to rescind an application approval if negative information was subsequently found in the FBI name check.  In our opinion, this was the fairest method to ensure reasonable processing times for applications while still safeguarding the nation’s security. Under this new policy, for certain percentage of cases, an adjudicating officer would have to wait for USCIS headquarters to contact the FBI and then continue to wait until the FBI communicated back to headquarters the reason for the name check delay.  After receiving such information, USCIS headquarters would then need to decide how to proceed with the case and then finally instruct the adjudicating officer on what to do.  This policy is unnecessarily complicated and is a potential recipe for disaster; it requires excessive inter-agency communication, as well as a final decision from an already inundated USCIS headquarters.  A case delayed by the name check can now take years to clear all the bureaucratic hurdles erected by this new policy.

We hope that the USCIS will reconsider this new policy or very soon we will see a sharp increase in the number of cases with excessive delays due to the FBI name check.


For questions or comments regarding this article, please contact Attorney Fok at: jfok@jclawoffice.com

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