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DHS Reaffirm Its Policy Not to Approve
Applications Without FBI Name Check Results

1/15/2008

The current security management environment is different from those in pre-9/11 era and does not allow any government actions that can seriously undermine the nation's homeland security regardless of any other issues that press a political or administrative action. This includes the immigration backlog.

Department of Homeland Security (DHS) Secretary Michael Chertoff indicated in a recent meeting with the American Immigration Lawyers Association (AILA) and other organizations that the U.S. Citizenship and Immigration Services (USCIS) and the Federal Bureau of Investigation (FBI) will make significant changes to the existing name-check process.

The goal of these changes is to clear the backlog of immigration cases that are pending due to name-check delays. In addition to clearing the backlog, the changed procedures should permit further expedited processing of such cases, to prevent future name-check delay backlogs. Secretary Chertoff, however, warned that some checks would still be delayed by investigations, but this number should be significantly reduced.

The USCIS' criteria will expedite cases stalled due to FBI name-check delays including:

military deployment;

age-out cases not covered under the Child Status Protection Act (CSPA);

applications affected by sunset provisions such as green card lottery;

significant and compelling reasons, such as a critical medical condition; and

loss of social security benefits or other subsistence at the discretion of the USCIS district director.

A large number of applicants and petitioners, however, continue to benefit from filing writ of mandamus against the government in U.S. federal courts. This still appears to be a valuable mechanism to compel the government to expedite adjudication of delayed cases.

It remains to be seen whether the changes in procedures will be sufficient for the FBI to succeed in expediting the name-check process and clearing the backlog. Even if the backlog of cases is cleared, however, there will still be cases delayed due to ongoing investigations. Individuals affected by these types of delays may still benefit from requesting expedited treatment of their cases through administrative and legal procedures.




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