Failures of immigration security checks were blamed for allowing some of the September 11 airplane hijackers to remain undetected in the United States to plot out their 2001 attack. The 9/11 Commission reported that all 19 hijackers had broken U.S. immigration laws and that as many as seven of them had fraudulent or manipulated passports. After 9/11, the U.S. Citizenship & Immigration Services (USCI) intensified its criminal and national security background checks on all applicants for U.S. immigration benefits, regardless of race, ethnicity, religion or national origin. The expansion of security checks and the need to properly screen each applicant have led to backlogs, causing delays in the processing of petitions and applications – sometimes by one year or longer.
Applicants must pass the background check before the USCIS can adjudicate their petition or application for an immigrant benefit. For most applicants, security checks are done in a timely manner and without incident. But for those affected by the delays, feelings of uncertainty, anxiety, and frustration are part of the adjudication process.
Why Are Security Checks Conducted?
The security checks help to identify individuals who pose a threat to the U.S.’s national security or who seek to procure immigration benefits by fraud or misrepresentation. The USCIS states that the security checks have uncovered applicants involved in violent crimes, sex crimes, crimes against children, drug trafficking, and individuals with known links to terrorism.
How Are Security Checks Conducted?
The USCIS conducts the following three background checks on applicants for immigration benefits, but may use other types of background checks, if needed:
(1) The Interagency Border Inspection System (IBIS) Name Check – IBIS is a multi-agency effort, with a central system that combines information from multiple agencies, databases, and system interfaces to compile data relating to national security risk, public safety and other law enforcement concerns. IBIS name checks are a relatively quick way of checking information, from multiple government agencies, that affects the decision in a specific case. The results are usually available immediately, but it may take more time to follow up on information found by the IBIS check.
(2) FBI Fingerprint Check – For many applications, the FBI conducts fingerprint checks that provide information relating to criminal background within the United States. The FBI usually forwards responses to USCIS within 24 to 48 hours. If there is a record match, the FBI provides the criminal history (RAP sheet) to USCIS. The USCIS then reviews the information to see if it affects the applicant’s eligibility for benefits.
The USCIS notes that anyone with prior arrests must provide complete information and court-certified evidence of the disposition to avoid delays or denial resulting from misrepresentation about criminal history. The USCIS states that expunged or vacated convictions must also be reported. Therefore, it is important to consult an immigration attorney to determine how an arrest, charge or conviction affects your immigration status or eligibility for benefits, and what information you must disclose on an application.
(3) FBI Name Checks – The FBI Name Check is different from the fingerprint check. The name check includes a review of administrative, applicant, criminal, personnel and other files compiled by law enforcement. Initial responses to these checks generally take about two weeks.
No match is found in about 80 percent of these cases. The remaining 20 percent is usually resolved within six months, and less than one percent of these take longer than six months.
What Are the Consequences of the Delays?
While only a small percentage of applicants are affected, the sheer volume of cases means that thousands of individuals suffer from delays in security checks. The delays further add to the already long timeframes for adjudicating petitions and applications.
Moreover, the delays may undermine the very purpose of the security checks. Some applicants, such as those who have a Form I-485 Application for Adjustment of Status pending, may lawfully remain in the United States during the time it takes the USCIS to complete the checks. A background check that languishes for one year or more allows a person, who is a threat to national security, to remain in the United States for a longer time. Thus, security checks not only need to be thorough, but also timely.
Mandamus Actions in Extreme Cases
The USCIS will not grant an immigration benefit unless the security checks are complete, regardless of the length of the delays. Background checks are not complete until the FBI or other agency provides its final response to the USCIS, and the USCIS investigates or reviews the response.
The USCIS states that it is working with the FBI and other agencies to speed the security check process. Nevertheless, in extreme cases, mandamus actions in federal district court may be necessary to compel the USCIS to take action.
Recently, Herbert Igbanugo, immigration attorney, filed a mandamus action with the U.S. District Court of Minnesota to compel the USCIS to adjudicate a Form N-400, Application for Naturalization, that was pending for almost two years. The USCIS claimed it could not adjudicate the Form N-400 because the applicant’s FBI name check was not completed. In May 2006, the presiding judge ordered the USCIS to resolve the naturalization application within 30 days. One month later, the applicant became a naturalized U.S. citizen.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.
About Igbanugo Partners International Law Firm
Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.
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