USCIS new policy on FBI background checks does not apply to Naturalization applications

The USCIS recently clarified its new policy regarding issuing residency to applicants who’s adjustment of status cases have been held up due to the delay caused by FBI background clearance checks. Its clarification states that only I-485 adjustment of status cases are included. Naturalization (N-400) cases which have been held up for excessive delays are not included and continue to be backlogged. Further, due to the large volume of applications received in mid-2007, the USCIS does not anticipate any quick movement on pending and new cases in the coming years. Applicants whose cases have been pending for more than eight months or so should go to the local Naturalization to do an inquiry. When a case has been pending over one year, contacting your local congressional office may also provide some assistance. To find out representatives in your area, go online to: Congress.org

Immigration Q & A

Question: I’m an American citizen and I filed a petition to sponsor my husband Jose for his Green Card over two years ago using form I-130. We got a receipt, but nothing else and he never received his work permit or social security number. He came to the US legally as a tourist, but never left. We are wondering why it is taking so long to get his immigration marriage interview and his work permit. Thanks.

Answer: Spouses of U.S. Citizens who enter the U.S. with inspection and receive an I-94 card are generally eligible to apply for adjustment of status (I-485) and work authorization at the same time that the I-130 family petition is filed (Exceptions include foreign nationals who enter as a C/D crewman). Filing the I-130 alone will not result in an immigration residency interview, since an I-130 is not an application to adjust status to U.S. residency. Without the I-485 adjustment and I-765 work authorization applications being filed along with all the required documentation and related forms, there is no way for a foreign spouse to obtain a work permit, social security number and Green Card in the U.S.

From the facts you have given, as long as Jose entered the U.S. with inspection and received an I-94 card and he did not enter as a C/D crewman, there is no reason why you cannot file the I-485 package (with includes all the required documentation and related forms including the I-765 request for work authorization). Once the adjustment is filed, within several weeks Jose will receive the USCIS showing he is pending for residency. He can use the I-485 receipt to have his Driver’s License renewed and should receive his Work Authorization card within 90 days. Once he receives his Work Authorization card, he can take it along with his receipts and passport to the Social Security office to apply for a social security number (which takes about 3 weeks to receive). Finally, you’ll be receiving an appointment for his residency interview within 6 to 12 months or so. It might be a good idea for you to consult with an immigration attorney at this point, even if you decide to file the case yourselves. That way, you can get a good overview of the process and ask any questions you might have before you start. Additionally, there are very important issues you’ll need to know early on regarding documentation which you’ll need to have from the time of filing the I-485 until the residency interview. It’s always best to be informed.

Question: Hi, I lost my entry card (I think it’s an I94) so I was told I can’t file for my Green Card, even though my husband is a U.S. Citizen. Is that true? Is there anything I can do? I’m so confused.

Answer: As long as you entered the U.S. legally and received an I-94 (Arrival/Departure) card, you can file for a replacement. Be sure that you know the exact date you entered and are able to provide a copy of the entry stamp in your passport (if available) and complete the form accurately when applying for a replacement using form I-102, otherwise the request could be denied and you will lose your filing fee. You may also file the I-102 and then file for your adjustment using the I-102 receipt so that you can begin processing for your Green Card without delay. However, I would consult with an immigration attorney before proceeding just to be on the safe side.

*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 your state’s attorney Bar Association.

** For Past Issues of This Column, go to: www.carolypedersen.com