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American Bar Association - Defending Liberty, Pursuing Justice

Summer 2008

Vol. 4, No. 4

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Immigration Security Checks: How the Process Works

Many have asked for an explanation of the USCIS security check program, as it has been blamed for delaying the finalization of many immigration filings. Below is an overview of the requirements.

Background

All applicants filing for a U.S. immigration benefit are subject to criminal and national security background checks to ensure they are eligible for that benefit. U.S. Citizenship and Immigration Services (USCIS), the federal agency that oversees immigration benefits, performs checks on every applicant, regardless of ethnicity, national origin, or religion. Since 2002, USCIS has increased the number and scope of relevant background checks, processing millions of security checks without incident. However, in some cases, USCIS customers and immigrant advocates have expressed frustration over delays in processing applications, noting that in some cases individual customers have waited a year or longer for the completion of their adjudication pending the outcome of security checks. Although the percentage of applicants who find their cases delayed by pending background checks is relatively small, USCIS recognizes that for those affected individuals, the additional delay and uncertainty can cause great anxiety. Although USCIS cannot guarantee the prompt resolution of every case in its communications with the public, USCIS assures the public that applicants are not singled out based on race, ethnicity, religion, or national origin. Currently, USCIS reports more than 300,000 applications are on hold nationwide, with more than 100,000 pending more than one (1) year due to security checks.

USCIS strives to balance the need for timely, fair, and accurate service with the need to ensure a high level of integrity in the decision-making process. The information appearing below is taken from an informational that bulletin outlines the framework of the immigration security check process, explaining its necessity, as well as factors contributing to delays in resolving pending cases.

Why USCIS Conducts Security Checks

USCIS conducts security checks for all cases involving a petition or application for an immigration service or benefit. This is done both to enhance national security and ensure the integrity of the immigration process. USCIS is responsible for ensuring that our immigration system is not used as a vehicle to harm our nation or its citizens by screening out people who seek immigration benefits improperly or fraudulently. These security checks have yielded information about applicants involved in violent crimes, sex crimes, crimes against children, drug trafficking, and individuals with known links to terrorism. Completing these investigations require time, resources, and patience, and USCIS recognizes that the process is slower for some customers than it would like. Because of that, USCIS is working closely with the FBI and other agencies to speed the background check process.

Immigration Security Checks-How and Why the Process Works

How Immigration Security Checks Work

To ensure that immigration benefits are given only to eligible applicants, USCIS adopted background security check procedures that address a wide range of possible risk factors. Different kinds of applications receive different levels of scrutiny. USCIS normally uses the following three background check mechanisms but maintains the authority to conduct other background investigations as necessary:

  • The Interagency Border Inspection System (IBIS) Name Check—IBIS is a multiagency 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. USCIS can quickly check information from these multiple government agencies to determine if the information in the system affects the adjudication of the case. Results of an IBIS check are usually available immediately. In some cases, information found during an IBIS check will require further investigation. The IBIS check is not deemed completed until all eligibility issues arising from the initial system response are resolved.
  • FBI Fingerprint Check—FBI fingerprint checks are conducted for many applications. The FBI fingerprint check provides information relating to criminal background within the United States. Generally, the FBI forwards responses to USCIS within 24–48 hours. If there is a 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 benefit. Although the vast majority of inquiries yield no record or match, about 10 percent do uncover criminal history (including immigration violations). In cases involving arrests or charges without disposition, USCIS requires the applicant to provide court certified evidence of the disposition. Customers with prior arrests must provide complete information and certified 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.
  • FBI Name Checks—FBI name checks are also required for many applications. The FBI name check is totally different from the FBI fingerprint check. The records maintained in the FBI name check process consist of administrative, applicant, criminal, personnel, and other files compiled by law enforcement. Initial responses to this check generally take about two weeks. In about 80 percent of the cases, no match is found. Of the remaining 20 percent, most are resolved within six months. Fewer than one percent of cases subject to an FBI name check remain pending longer than six months. Some of these cases involve complex, highly sensitive information and cannot be resolved quickly. Even after FBI has provided an initial response to USCIS concerning a match, the name check is not complete until full information is obtained and eligibility issues arising from it are resolved.

For most applicants, the process outlined above allows USCIS to quickly determine if there are criminal or security-related issues in the applicant’s background that affect eligibility for immigration benefits. Most cases proceed without incident. However, due to both the sheer volume of security checks USCIS conducts, and the need to ensure that each applicant is thoroughly screened, some delays on individual applications are inevitable. Background checks may still be considered pending when either the FBI or relevant agency has not provided the final response to the background check or when the FBI or agency has provided a response, but the response requires further investigation or review by the agency or USCIS. Resolving pending cases is time consuming and labor intensive; some cases legitimately take months or even several years to resolve. Every USCIS District Office performs regular reviews of the pending caseload to determine when cases have cleared and are ready to be decided.

Note: USCIS does not share information about the records match or the nature or status of any investigation with applicants or their representatives.

In some cases you may want to consider using various procedures available to expedite a pending security check. To discuss eligibility and options, you should contact your legal representative.

Neil S. Dornbaum and Kathleen Peregoy are members of Dornbaum & Peregoy LLC Newark, New Jersey. Their practice is limited to immigration and naturalization with special emphasis on employment-based immigration. The firm is listed in Martindale-Hubbell’s “Preeminent Lawyers,” and both members are listed in “Best Lawyers in America.” They also appear in New Jersey Magazine’s listing of “Top Lawyers” for their work in immigration law, and the “Super Lawyers” publications.

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