Dept. of Homeland Security Changes Policy about FBI Name Checks

A recent Memorandum issued by the Dept of Homeland Security announces a new change underway at the USCIS regarding the long delays caused by FBI background and name checks.

These FBI security procedures have caused long delays in many family I-485 and other adjustment of status cases which were otherwise approvable except for the final determination on the FBI name check. The result was an often 2 – 12 month delay in Green Card issuance, due to delays in the FBI issuing a clearance on the individuals name check.

Background on FBI Checks:

Briefly, all applicants for a U.S. residency (Green Cards) are subject to criminal and national security background checks to ensure they are eligible. These security checks involve screening applicants for involvement in violent crimes, sex crimes, crimes against children, drug trafficking and individuals with known links to terrorism. The USCIS normally uses the following three background checks: 1) Interagency Border Inspection System (IBIS) Name Check— IBIS is a multi-agency effort with a central system that combines information from multiple agencies, databases and system interfaces to compile data relating to national security risks, public safety issues and other law enforcement concerns. Results of an IBIS check are usually available immediately. 2) FBI Fingerprint Check provides information relating to criminal background within the U S., generally, forwarding the information to the USCIS within 24-48 hours. If there is a criminal record match, the FBI forwards an electronic copy of the criminal history (RAP sheet) to USCIS. At that point, a USCIS adjudicator reviews the information to determine what effect it may have on eligibility for the immigration case. Immigrants with prior arrests must provide complete information and certified police reports and court disposition records at the time of filing to avoid adjudication delays or denial resulting from misrepresentation about criminal history. Even expunged or vacated convictions must be reported for immigration purposes and finally, the notorious 3) FBI Name Checks which consist of searches of governmental administrative, applicant, criminal, personnel and other files compiled by law enforcement. This check is the most problematic and the cause of hundreds of thousands of delayed cases to date.

According to the recent policy change, the USCIS will now issue U.S. Residency (Green Cards) to all applicants who have passed the first two FBI checks and whose FBI name check remains pending after 180 days. This is welcome news for immigrants and I applaud this new measure. Let’s see if it works in its application – stay tuned!

Question: Hi, my brother just became a US Citizen and wants to file for my Green Card. I’ve been here on a tourist visa, but my I-94 card won’t expire until May 2008. Since my brother is filing for me, can I file the I-130 together with Form I-485 and Form I-765 for a work permit? Or do I have to file Form I-130 alone and wait for its approval? How long does it take? If I file the I-130 alone, how can I get an employment card before I get the green card?

Answer: Unfortunately, Siblings (Brothers/Sisters) of US citizens are in the longest immigration line to wait for a Green Card (called: 4^th Preference). It takes about 12 years after the I-130 is filed for an immigrant sibling to be able to immigrate and obtain a green card in the US. If you are in the U.S., the filing of the I-130 by your brother will not have any immediate immigration benefits to you and if you allow your I-94 to expire, you will not be able to change to any other status in the U.S. and if you leave after that, you will likely be denied re-entry. This is among the most misunderstood areas of immigration law and one that causes misery for so many who don’t understand its ramifications. The I-130 won’t get you anything except a receipt and a Driver’s License - nothing more. No work permit or social security number. Since you are still in legal status, you might consider filing to change your status to a non-immigrant visa in the U.S. which will allow you to live here under a legal visa. An F-1 student visa or H-1B work visa are options, but there are others, depending upon your qualifications and circumstances. The most important thing to remember is never to let your I-94 expire. Either file to change status well before it expires, or leave the U.S. before it expires.

*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.

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