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New FBI Name Check Policy for I-485 Applicants

February 29th, 2008 Leave a comment Go to comments

On February 4th, USCIS issued a memo outlining a new policy for FBI name checks on I-485 applicants.

The memo in a nutshell,

Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance. [full pdf]

This is good news. But we need some questions and answer to fill in the gaps.

USCIS finally (re)issued its revised Questions and Answers today. They are pasted below.

Short on time? Skip to questions 7 ↓ and 9 ↓.

BACKGROUND CHECK POLICY UPDATE

Q1. What applications are affected by this policy change?
A1. Applications included in this policy are:
• I-485, Application to Register Permanent Residence or Adjust Status;
• I-601, Application for Waiver of Ground of Inadmissibility;
• I-687, Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act; and
• I-698, Application to Adjust from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603).

Q2. How has USCIS changed its national security requirements?

A2. USCIS has not changed its background check policies for naturalization applications. Recently, the agency did modify its existing guidance for certain applications (see above) where the immigration laws allow for the detention and removal of individuals if actionable information from a FBI name check response is received after approval.

No application for lawful permanent residence will be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. (Please refer to the USCIS Immigration Security Checks fact sheet on the USCIS website for more information.)

Q3. How has USCIS changed its adjudications requirements?

A3. For these forms, including applications for lawful permanent residence, USCIS will adjudicate the application based on all required evidence outlined in applicable law and regulation if the application is otherwise approvable, outside of normal processing times, and the FBI name check request has been pending for more than 180 days.

Q4. What happens if USCIS later receives adverse information from an FBI name check?
A4. In the unlikely event that Department of Homeland Security, (DHS) receives actionable adverse information from the FBI name check after the application is adjudicated, DHS may detain the applicant and initiate removal proceedings.

Q5. Why is this policy being implemented?

A5. This policy change responds to a 2005 DHS Inspector General recommendation that USCIS better align its background check screening policies with those of U.S. Immigration and Customs Enforcement.

Q6. Is this policy consistent with the national security priorities of USCIS and the Department of Homeland Security?

A6. Yes. Applications for lawful permanent residence will not be approved until a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) check are completed and resolved favorably. In addition, in the unlikely event that DHS receives actionable adverse information after the application is approved, removal proceedings may be initiated.

Q7. How many applications for lawful permanent residence are immediately affected by this policy change?
A7. USCIS is aware of approximately 47,000 applications for permanent residence (I-485) cases that are otherwise approvable but have an FBI name check pending. A portion of these cases are both outside normal processing times and have an FBI name check that has been pending for more than 180 days. These cases will be subject to processing under the new policy. USCIS anticipates the majority of the cases that can now be adjudicated will be processed by mid-March 2008.

Q8. Does this policy change affect naturalization applications?
A8. No. There is no change in the requirement that FBI name check, FBI fingerprint and Interagency Border Inspection Services (IBIS) check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400).

Q9. How long will it take for USCIS to work through the cases affected by the policy change?
A9. USCIS has begun identifying cases affected by this policy modification in each field office and service center. Each office will evaluate the pending cases and will adjust their workload accordingly. USCIS anticipates the majority of the cases subject to this policy modification will be processed by mid- March 2008. We recommend customers wait until March 10 before inquiring about their cases. This will allow each office sufficient time to identify and adjudicate pending cases.

Q10. The memorandum identifies I-485, I-601, I-687 and I-698 forms. Is there a plan to include other forms, specifically nonimmigrant and naturalization, in this policy?
A10. No.

Q11. Should customers contact USCIS through the 1-800 customer service number or make an INFOPASS appointment to visit their local office if their case is outside of normal processing times and they believe their application meets the criteria of this new policy?
A11. For pending applications outside of normal processing times, we recommend that customers wait until March 10, 2008, before inquiring about cases affected by this policy modification. This will allow each office sufficient time to identify and adjudicate the relevant pending cases. If no action is taken by mid-March, we recommend inquiring with the USCIS customer service line at 1-800-375-5283. This procedure is for customers who have been previously informed that their case is pending due to the FBI name check. (Cases that are still pending within the processing times will be completed when the related adjudication actions are completed.)

Q12. Will USCIS automatically notify an applicant to appear at an Application Support Center, (ASC) if his or her fingerprints have expired?
A12. Applicants will be notified through an appointment notice if new or updated fingerprint checks are needed.

Source: USCIS.gov

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  1. Mel
    March 3rd, 2008 at 12:39 | #1

    Hello John, thanks for posting this! I have several questions:

    – Is the 180 days counted from receipt date or notice date?
    – What does “outside of normal processing times” mean? My application was filed in Nebraska on August 2007. Does this mean processing time should be within or over August ’07 ?
    – Is priority date also a requirement?

    Again, my sincere thanks for all the help.

  2. Mel
    March 5th, 2008 at 07:43 | #2

    Hi john, if I find an employer who is willing to file an I140 for me, do I have to work for them if it gets approved or is it possible for me to find another employer and still retain my priority number with the initial employer… I’ve been reading on the 180 days rule but, i need it to be explained in simple terms. thanks so much john, you have been very helpful!

  3. March 5th, 2008 at 08:40 | #3

    @Mel: Hi. 180 days is counted from receipt date. Notice date is almost always irrelevant. Outside of normal processing means that your application is not being processed within the posted times. Here is a link to the USCIS processing times. Select the Nebraska Service Center from the dropdown box and then look for your application form.

    On your second question, the employer must have a bona fide intention to hire you when they file an I-140 petition on your behalf. To transfer an I-140 to another employer, an I-485 (application for adjustment of status) must have been filed and should be pending for more than 180 days. But don’t be confused because that 180 day rule (allowing change of employers) is not the same as this 180 day rule (speeding up FBI name checks).

    The change of employers is covered under AC21 aka the American Competitiveness in the Twenty-first Century Act. I don’t have the AC21 statutes posted on this site, but I did post a memo that addresses some of the issues. See I-140 portability memo // AC21. Scroll down to the first section called “Processing Form I-140 petitions and Form I-485 applications in connection with the I-140 portability provision of §106(c) of AC21” and read through the questions and answers.

  4. AT
    March 9th, 2008 at 19:09 | #4

    Hi… My wife is a US citizen and she sponsored to get my green card. I’m an Iranian citizen and I have been in US since 1993 and my last visa statues before marriage was H1-B in 2005 we filled form I-130 and I-485 concurrently. My I-485 is pending for namecheck. Last week we received ate approval notice for I-130. But since I filled my I-485 in 2005 I do not know what to do with I-130 approval. Can you help me with that?

  5. Ben
    March 14th, 2008 at 03:14 | #5

    AT — you don’t need to do anything with your I-130. It is just a step needed for your I 485 process. They allowed you to file both at the same time, but really I 130 comes first, then once approved you file the I 485. ( that is what I had to do since my wife was outside the country). Either way – it is a good sign – one step forward, and now with this new FBI check rule, things should go faster. We have been going on though this mess since 2004. I 485 pending due to name check – at least now it is looking better at the horizon.

  6. fernando
    March 17th, 2008 at 17:56 | #6

    Hi. My receipt notice is from Dec 06, and I had my fingerprints taken in May 07. In Jan 08, I called to inquire about the status of my pending green card and I just received a letter saying that “my case needs more time for a review to be completed”. Is this the standard boilerplate for FBI name checks or does that mean that my application may have been delayed due to something else? Thanks.

  7. Salman
    April 15th, 2008 at 14:52 | #7

    Does anyone know how much time do FBI have to do the name check once the I-485 has been approved?

    Re Question 4 above, is it an indefinite thing?

  8. sanu
    May 23rd, 2008 at 23:17 | #8

    Can anyone please tell me what will be checked during i-140 and I-485 processings? What is difference between I-140 and I-485?

  9. sunil
    May 23rd, 2008 at 23:59 | #9

    my labor just got approved (in 60 days). Now, my lawyers just filed I-140 and I-485 concurrently and visa is current current for Nepal (others). So, someone please tell me how long will it take to get I-140 and I-485 approved? I am worry as my H1 final 1 yr is going to expire in October.
    Thanks in advance.

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