9/20/2007

In November 2005, based on earlier data, the DHS IG reported that FBI name checks take more than a month to complete for six percent of submissions and more than six months to complete for one percent of submissions. The longer time is required because the FBI must conduct a manual review of its files to verify that the applicant is actually the subject of an FBI file. This review can include the FBI reporting on fragments of names on people who are not necessarily central or directly related to a case.

USCIS has limited capability to produce reports detailing the status of long-pending FBI name check cases. In addition, USCIS systems do not automatically indicate when a delayed name check is complete and the case can be adjudicated. Often, this leads to a situation where the validity of other checks expire before USCIS reviews the case. Those checks then need to be reinitiated, adding financial and time costs for applicants and USCIS. The high volume of FBI name check cases and the relatively limited resources devoted to background and security checks are major problems. The FBI’s manual processing exacerbates delays.

USCIS’ planned Background Check Service (BCS), a new IT system that will track the status of background and security checks for pending cases, needs to be implemented as soon as possible. The Ombudsman looks forward to more information from USCIS on the BCS implementation schedule. Considering the cost and inconveniences caused by the delays, the value of the FBI name check process should be reexamined. In almost every name check case that the FBI conducts for USCIS, the foreign national is physically present in the United States during the name check process. 

Thus, delays in the name check process actually prolong an individual’s presence (albeit in an interim status) in the United States while the check is pending. In that sense, the current USCIS name check policy may increase the risk to national security by prolonging the time a potential criminal or terrorist remains in the country. Further, checks do not differentiate whether the individual has been in the United States for many years or a few days, is from and/or has traveled frequently to a country designated as a State Sponsor of Terrorism, or is a member of the U.S. military.

Most individuals subject to lengthy name checks are either already green card holders or have been issued EADs allowing them to receive Social Security cards and state drivers’ licenses. Additionally, most green card applicants are also eligible to receive advance parole to enable them to travel outside the United States and return as long as their cases are pending, which can be for years under the current process. USCIS requires that the FBI name check be completed before issuing a green card. 

However, in removal proceedings before an Immigration Judge, the judge will require confirmation of all background and security checks by DHS before the judge can grant any relief (for example, ordering USCIS to issue a green card). Immigration and Customs Enforcement (ICE – another DHS agency) attorneys indicate to the judge that all background and security checks have been initiated. The judge proceeds with issuing an order which grants green card status to the individual. Based on this order, USCIS, as the producer of the actual card, must issue the green card despite the outstanding FBI name check. These two policies need to be harmonized.