USCIS Feb 2009 Update on Name Check Delays
Posted Mar 13, 2009
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The U.S. Citizenship and Immigration Services (USCIS) recently revoked a blanket policy regarding the adjudication of Applications for Adjustment of Status (I-485 forms) delayed for more than 180 days, awaiting completion of the FBI National Name Check Program (FBI NNCP). This updated policy is included in a February 9, 2009 memorandum, available to the public online (PDF 92.2KB). The USCIS explanation for the change in policy is simply that it is no longer needed. According to the USCIS, the FBI NNCP checks are now completed much more quickly. Thus, it is no longer necessary to move forward with I-485s in the absence of completed name checks.
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Policy Changes Due to FBI Efforts : Fewer Delays
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In the February 2009 memorandum issued by Donald Neufeld, Acting Associate Director, Domestic Operations, USCIS, the prior USCIS policy of adjudicating all I-485s lacking only the FBI NNCP clearance was canceled. This new memorandum notes that the FBI has worked diligently to reduce the number of I-485 applications delayed by FBI NNCP checks and that such checks now are completed in an average of 90 days. It also states that few I-485 cases are delayed more than 180 days by incomplete FBI NNCP checks. Because these delays are no longer systemic, USCIS has revoked its blanket policy permitting adjudication of any I-485 delayed for more than 180 days due to the FBI NNCP clearance.
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Background of the USCIS Policy on Name Checks
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The USCIS change in policy supersedes a February 4, 2008 memorandum reported to MurthyDotCom and MurthyBulletin readers in our March 7, 2008 article, New Developments in Mandamus Lawsuits. The earlier policy was instituted, in part, to address the growing number of lawsuits against the USCIS for unacceptable delays in processing applications and petitions. These suits were made in the form of writs of mandamus by law firms across the U.S., including the Murthy Law Firm.
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New Policy Requires Case-by-Case Approval
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Under the new memorandum, when an I-485 application is otherwise approvable, with the exception of the completion of an FBI NNCP check, a decision is to be made on a case-by-case basis. This is permitted if the FBI NNCP has been pending for more than 150 days. In that case, the USCIS adjudicator will notify a central point of contact at USCIS headquarters in Washington DC, which will then contact the FBI to determine the reason for the delay. Depending upon the FBI's response, USCIS headquarters may authorize the adjudication of the I-485 to proceed before completion of the FBI NNCP clearance.
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Other Applications Covered by Feb 2009 USCIS Memo
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In addition to I-485s, this new policy applies to the following applications that can be delayed due to incomplete FBI NNCP clearances: Application for Waiver of Ground of Inadmissibility (I-601), Application for Status as a Temporary Resident under Section 245A of the INA (I-687), and the Application to Adjust Status from Temporary to Permanent Resident (under Section 245A of Public Law 99-603) (I-698).
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Potential Rescission of Green Card Still Possible
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One aspect of the prior February 4, 2008 memorandum remains intact. If an I-485 is approved before the FBI NNCP clearance is completed, and the results of the check reveal derogatory information, the USCIS will determine whether to refer the I-485 applicant for rescission of the permanent resident (green card) status or for removal (formerly called deportation) proceedings. A discussion of rescission is included in our January 28, 2005 article entitled, Risk of GC Rescission for Failure to Notify Change of Job / Employer.
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Conclusion
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The Murthy Law Firm applauds the USCIS and FBI for their efforts to reduce or eliminate the backlog of I-485 cases caused by long FBI NNCP clearance processes. While these efforts have greatly reduced the number of long-delayed I-485 cases, there continue to be cases that are well outside of normal processing times. The Feb 2009 Neufeld Memorandum does not address these problems and now changes the procedures to a case-by-case decision, requiring multiple levels of inquiry. Those cases that have extended delays still have the option of filing a writ of mandamus as one of the few effective means available to remedy processing delays.
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