Adjustment Cases Delayed by Name Checks - February 2008
Posted Feb 22, 2008 | updated Feb 22, 2008; 11:30am (Eastern Time)
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There was a stir created in the immigration community, resulting from the revised procedures for security checks, as reported February 7, 2008 in our NewsFlash, Faster Security Clearances for I-485s and Other Applications. Many of those individuals with cases that have been delayed, sometimes for years, due to lack of name check clearances, have sought action in their cases based upon the February 4, 2008 Michael Aytes memo. The U.S. Citizenship and Immigration Services (USCIS) has announced steps that are being taken to identify eligible cases, essentially asking everyone for patience as these cases are processed over the course of the next several months.
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Remedy Available under the February 2008 Aytes Memo
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As background, the new procedures allow for approval of pending I-485, Application for Adjustment of Status ("green card"), cases even without the FBI response to the "name check" portion of the series of background checks that are required in I-485 cases. The name check is requested in all cases, and the USCIS must wait 180 days for the results. If there is no response after 180 days, and the case is otherwise approvable, then the USCIS must approve the case. This is a significant change from the prior procedure that required the USCIS to wait, no matter how long it took, for a response from the FBI.
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USCIS Requests Patience
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As is understandable, many requests for action, on a "me first" basis, have reached the USCIS. In response, the USCIS has confirmed that sweeps are being conducted to identify all eligible I-485 cases, and has asked for time to do so. They initially requested that inquiries into eligible cases wait until after April 30, 2008. On February 21, an announcement indicated that the date for inquiries changed to March 30, 2008. However, on the same day, FAQs on the Security Check memo were withdrawn by the USCIS. Therefore, it appears that some aspects of this new procedure are in flux. More information will be provided as it becomes available.
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Ongoing Service Center Sweeps
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The USCIS is conducting the sweeps at the service centers. This essentially means that they systematically search their records for eligible cases. Since many of these cases have been reviewed and otherwise processed, they, hopefully, will be approved once identified. Of course, some may need to submit updated information, such as employment letters or fingerprints. Some Requests for Evidence (RFEs) may also result from the sweeps.
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What Exactly Does this Mean for a Long Pending Security Delayed I-485?
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It is less clear what is occurring with pending cases at the local offices. Further information may be forthcoming. For the time being, as explained above, the USCIS has asked attorneys and applicants to wait, presumably until March 30, 2008, before submitting further requests for action based upon the new policy. They anticipate identifying and taking action on cases by that date. It is unclear if "taking action" means issuing final approvals, as, given the volume of cases, this would seem to be a significant task. Of course, as evidenced last summer, the USCIS has the ability to move great numbers of I-485 cases quickly when it is a priority.
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It should be noted that it appears as though congressional offices have received a great number of requests for action based upon the new policy, as well. It seems that those requests also will have to wait for the results of the USCIS sweeps.
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Conclusion
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Given the ongoing delays in case processing, many people continue to file writs of mandamus against the FBI and the USCIS. They can now include the recent Aytes memo as part of their arguments in efforts to expedite their cases. In instances where priority dates are not current, individuals must continue to wait. While this memo is beneficial to many employment-based applicants in the long run, it cannot assist with problems created by the lack of available visa numbers.
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