Long delays in FBI name checks may come to an end soon

Department of Homeland Security, Secretary Michael Chertoff has indicated that USCIS and the FBI will be modifying the “name check” process in order to speed up immigration processing. This is expected to substantially eliminate a large proportion of the backlog of cases which have been delayed due to the slow pace of processing these FBI checks. Experts believe that “name check” clearances will be required to be completed within a prescribed amount of time. Then, if the clearance is not completed within the designated timeframe, the USCIS may then be allowed to approve the case. This change appears to be prompted by the large volume of cases filed against the USCIS in federal courts due to long delays caused by excessive name check delays. Delays caused by such FBI name checks can delay USCIS approvals by many months. For instance, in adjustment of status cases, an applicant may attend his or her residency interview, only to find out that even though all qualification were met in order to receive residency, since the FBI name check had not come back as “cleared”, no residency will be approved by the officer at the interview. After the interview, it may take between 2 -8 months for the FBI to finally provide the clearance. At that point, the applicant receives the “Welcome” letter in the mail and the actual Green Card a few weeks later.

THIS WEEK’S IMMIGRATION QUESTIONS

Question: Hi there. When I arrived in Miami this last June on a Tourist visa, the immigration officer gave me 6 months to stay in US, which will expire on December 24th. I applied in late October for a four month extension to stay and spend Christmas and New Year here in Florida with my family friends. I know this extension request is really late, so I want to know will happen if the application is denied. Will there be some kind of problem for me to come back to the U.S. again? I am getting really worried now that my I-94 is so close to expiring and I still don't have an answer from the USCIS.

Answer: This is a very good question. Many visitors do not realize that extensions to stay in the U.S. for longer than the initial 6 months the immigration officer gives at the port of entry are not automatic. More importantly, extension decisions on Form I-539 can take from 60-180 days. In most extension cases, the I-94 expires long before the decision from the USCIS is received. That is why the best advice is to apply as early as 2-3 months before the I-94 expires, and be sure to document the reason for the request. For instance if you are requesting 4 more months to travel inside the U.S., always include copies of airline tickets, hotel reservations, etc. This will substantially increase the chance of receiving an Approval of the extension request. If the extension is approved, it does not matter that the I-94 has expired during the USCIS processing of the I-539, since applicants are allowed to remain in the U.S. pending the processing of the request. However, if the USCIS ultimately denies a request for an extension to stay in the U.S., and the I-94 has expired, individuals can experience problems the next time they attempt to re-enter the U.S.. Immigration Officers have the discretion to refuse entry and even to cancel out tourist/visitor visas and tell the foreign national that he or she must apply for a new U.S. visa in their home country U.S. Consulate. Further, there is something referred to as a "Reentry Bars" that applies once a foreign national has overstayed his or her I-94 expiration by six months or longer and has left the U.S. and tries to re-enter. In this case, there is a 3 yr bar to re-entering the U.S. if the foreign national overstayed for 180 days up to 364 days. A 10 yr bar applies when there has been an overstay for 365 days or more. In cases where an extension is denied, the days begin to count from the day the extension is denied.

*This column is published for the purposes of providing a general understanding of immigration legal issues, as a public service and is not intended to establish an attorney client relationship. Consideration given to any immigration issue is not intended in any way to substitute for individual legal consultation with a licensed attorney. Readers should understood that this column and the foregoing illustrations are subject to different interpretations in each particular immigration case that may arise and no one reading this column should attempt to apply his own particular situation to the principles described herein. Readers with specific legal immigration issues should consult their attorney. If you have an immigration issue and do not know an attorney, you may call The American Immigration Lawyer’s Association's Lawyer Referral Service at:1-800-954-0254.