Expect Delays in Processing Due to Security Checks
Posted May 03, 2002

The Vermont Service Center (VSC) advised the American Immigration Lawyers Association that all files must now undergo security checks. We presume that the process described by VSC is part of a nationwide policy, though the VSC is the first Service Center to address the issue specifically.

The security checks affect every type of case filing except N-400 Naturalization Applications. Even Employment Authorization Documents for F-1 practical training will be delayed somewhat due to the checks. The VSC stated that the greatest delays would be with I-130 petitions for relatives. Marriage-based cases in which fraud is suspected will also receive a lower priority in processing and will be delayed.

The current estimated delay is at least one month in final adjudication and transmission of approval notices. There is no delay in processing of Requests for Evidence (RFEs).

Premium processing cases for employment-based non-immigrants will continue to be adjudicated within 15 days. However, if the security check results in a "hit" (i.e. an indication that further investigation is needed), the case will be transferred for investigation and the 15-day "clock" will stop, pending the investigation.

If the INS stops counting days while the investigation is pending, then it appears that they intend to keep the $1,000 even though the case may take significant time for processing beyond 15 calendar days. To the extent that the "hits" may result from name similarities and antiquated INS databases and technology, it would not be fair for the INS to retain the $1,000 fee while it sorts out information. Although the need for security checks and support for the INS' efforts to locate persons who threaten to our country is understandable, the question remains whether it is fair for INS to keep the $1,000 for expedited processing when they cannot provide that expedited service for which they were paid.

In light of the anticipated delays, we recommend that our readers take all necessary steps to file their cases as early as possible. This is particularly important for those who need approvals in order to work. Those requesting extensions of work authorizations should allow at least an additional month to assure that their authorizations do not expire prior to renewal. Students graduating in May or June need to request their Optional Practical Training (OPT) without delay. Those students who obtained OPT last year and intend to change to H1B status must have their employers file the H1B case promptly in order to avoid a lapse in permission to work.

On a more positive note, the additional delay may serve to increase the number of persons eligible for "portability" based on the processing of I-485 (Application for Adjustment of Status) having exceeding 180 days.

Note that, contrary to rumors, INS has NOT stopped issuing I-485 approvals. Furthermore, since I-485 processing times have decreased significantly at all Service Centers over the past year, an additional month for a security check may not have a very noticeable effect on the overall processing time.