FBI name check

[udacha6]

My husband's case is pending in Chicago. It is been 16 months after filing and 7 months after the interview (more than 120 days). Does it make sense to file 1447(b) if we know for a fact that his name check isn't completed? What decision can USCIS make if the decision isn't really theirs?

What complicates his story is the fact that his GC application took over 9 years and was also stuck in name check. The only reason it was approved was due to a temporary waiver in place in late 2008 when the cases with pending name checks were being approved if everything else was ok. So I assume his name check was never really completed even in the GC stage.

Our lawyer says that given his history 1447(b) isn't really an option. His case may get denied if we force USCIS to make a decision on a case that is out of their control.

What do you think? Are there any options related to the FBI?

 

[Jackolantern]

When under pressure from the court, USCIS can urge the FBI to prioritize the name check and get it done quickly. The name check delay is not a reason to avoid 1447(b); it is the reason why it is important to file 1447(b), because cases delayed due to name check typically languish for YEARS unless there is legal action or at least the impending intention of legal action (i.e. sometimes a letter to USCIS notifying them of the intention to file 1447 on xx/xx/xxxx date will result in them expediting the case, in order to avoid the cost and hassle of an actual 1447(b) lawsuit).

 

[Jackolantern]

Our lawyer says that given his history 1447(b) isn't really an option.

What history? Does he have a criminal record that may legitimately result in denial or deportation?

His case may get denied if we force USCIS to make a decision on a case that is out of their control.

Once 1447(b) is properly filed, the case is under the supervision of the court and USCIS cannot deny it without the consent of the court.

 

[udacha6]

What history? Does he have a criminal record that may legitimately result in denial or deportation?

No criminal history whatsoever. By history I meant our numerous unsuccessful attempts to expedite his name check in 2004-2008 through AILA, USCIS liasons and direct FBI lawsuit that was dismissed. His case was a poster case for the waiver within the USCIS, according to the liason, and was one of the first to get approved when the waiver went into action. So understandably our lawyer (different lawyer from GC times, same firm in Chicago) doesn't want to try anything yet. According to them FBI cannot be made to complete the name check, expedited or not and more likely than not his original GC name check tgat was started in 2002 is still pending....

Our cases were always filed together. GC and immigration. I was the GC primary filer (EB2). Both of my cases (I-485 and N-400) took a lot less than typical to get completed. For example my N-400 took less than three months, including the oath. So it is really a mystery why his name gets singled out like that.

 

[udacha6]

According to an e-mail we received from our lawyer, the name check expedite process can be requested only in four cases: military deployment, age-out cases with kids, medical conditions and loss of social security benefits. We don't qualify for any such conditions or any other general hardship conditions. The only thing that lack of USC affects is his ability to travel visa-free to European countries.

Do we need a different lawyer? Where do I look up unsuccessful 1447(b) cases and what made vulnerable...?

 

[Jackolantern]

No criminal history whatsoever. By history I meant our numerous unsuccessful attempts to expedite his name check in 2004-2008 through AILA, USCIS liasons and direct FBI lawsuit that was dismissed.

Directly suing the FBI won't work. For green card delays, you file WoM (Writ of Mandamus), and then USCIS when under pressure from the court will convince the FBI to expedite the name check. Also, before filing WoM you must demonstrate that you sought assistance from various parties such as the USCIS Ombudsman, your Congressman/woman, and Senator, and given them at least a couple months to take action.

Did he file WoM back then, including seeking the relevant assistance before filing WoM? If not, that is why his green card case didn't get expedited.

Eligibility for 1447(b) is a lot more clear-cut; there is no need to contact other authorities for assistance, and a pending name check is not valid grounds to get USCIS off the hook when the court orders them to decide the case by a deadline. To qualify for 1447(b) you only need to have waited 120 days after the interview without a decision. It is a lot easier to get results via 1447(b) than WoM.

There are only 2 choices here: File 1447(b), or wait 50 years. This case is not going to be decided without 1447(b) or at least the impending threat of it.

 

[udacha6]

We filed WOM after our FBI lawsuit failed. Before that we tried everything, including Barack Obama who was our senator in 2006-2008. Two separate inquiries from his office. WOM didn't go to court and was dismissed too because USCIS Ombudsman created this waiver at around the same time and his case was approved before the WOM proceedings began so our attorney pulled the paperwork. USCIS knew about the WOM though, so it did reach some critical stage, because it came up during his GC interview (case was transferred to Chicago local office from Vermont service center in 2004 and remained there for four years). By that time he had seven EADs and six advanced paroles which we all brought to the interview. The interviewer asked us whether we knew the reason for why his name check was still pending and when we answered no she approved it immediately, right there and then.

So that's what I meant by "history". I can't imagine going through this again.

Currently his N-400 case is with Ombudsman but based on the previous results with him we don't expect much... The last official response from USCIS (a letter in response to an infopass appointment) is that they don't have an estimate for when his case will approve.

 

[Jackolantern]

So it looks like the WoM did make some progress, it's just that he was approved before the court hearing so the court didn't get involved.

1447(b) is a lot easier than WOM because of the hard 120-day deadline written into law.

 

[baikal3]

My husband's case is pending in Chicago. It is been 16 months after filing and 7 months after the interview (more than 120 days). Does it make sense to file 1447(b) if we know for a fact that his name check isn't completed? What decision can USCIS make if the decision isn't really theirs?

What complicates his story is the fact that his GC application took over 9 years and was also stuck in name check. The only reason it was approved was due to a temporary waiver in place in late 2008 when the cases with pending name checks were being approved if everything else was ok. So I assume his name check was never really completed even in the GC stage.

Our lawyer says that given his history 1447(b) isn't really an option. His case may get denied if we force USCIS to make a decision on a case that is out of their control.

What do you think? Are there any options related to the FBI?

As Jackolantern says, you should file a 1447(b) lawsuit, and the sooner the better. I would also say that you need to get a different lawyer ASAP.
The idea that "his case may get denied if we force USCIS to make a decision on a case that is out of their control" is complete nonsense, for several reasons.

First, the name check situation is NOT out of the USCIS control, not at all. The FBI performs name checks for USCIS as a for-fee-service and the USCIS has considerable degree of control over the process if it chooses to exercise such control. "According to an e-mail we received from our lawyer, the name check expedite process can be requested only in four cases: military deployment, age-out cases with kids, medical conditions and loss of social security benefits." The circumstances listed in the lawyer's e-mail are those where the USCIS provides the applicant with an opportunity to request that the name check be expedited. But the USCIS can (and does) request expedited name check processing by the FBI for any case the USCIS sees fit. In fact, that's exactly what usually happens when people file lawsuits (in cases where an N-400 application is stuck in the name check). Such cases rarely go to trial before a judge exactly because the USCIS field office and the relevant U.S. Attorney's office that would have to represent the USCIS in court will usually have the FBI expedite the name check (if that's the reason for delay) in order to avoid a court case.

Literally thousands of people had their N-400 applications unstuck by filing lawsuits against USCIS, and I have never ever, not a once, heard of case where the USCIS denied an application because it was forced to make a decision before the name check is complete.

Also, unlike with WOM lawsuits, for 1447(b) lawsuits the law formally transfers the jurisdiction to the federal judge hearing the case once the trial process actually starts. The judge will have more or less complete discretion on how to proceed, including approving the N-400 application himself/herself; ordering the USCIS to approve it; giving the USCIS specific instructions and deadline for how to proceed, etc.

I am not even sure that the USCIS could legally deny an application based on the name check not being completed even if it wanted to. There is nothing in the text of the law specifically mandating that the FBI name check be performed at all. It is just an internal procedure that the USCIS itself has adopted for processing N-400 applications.

Not filing a 1447(b) lawsuit in your husband's situation would be completely crazy, unless you are prepared to wait a few decades for the case to be completed on its own. A 1447(b) is the only viable option for getting the case unstuck and approved in any reasonable amount of time.
So fire your current lawyer, get a new, competent one and file a 1447(b) lawsuit.

 

[udacha6]

Thank you for your comments.

I had another e-mail conversation with our lawyer this morning. Here are some of the things that were said that caught my attention. I would appreciate your feedback on this.

1) During the time when the name check waiver was active there were fewer than 100 cases that were approved by USCIS without the FBI name check actually being completed. The vast majority were approved quickly due to the expedited name checks. They are familiar with two of these cases (one of them is us). Neither case has been naturalized yet due to the name check delays again, so the GC delay wasn't a fluke. They say they would reach out to other firms to find out if there was any successful 1447(b) cases with previously incomplete name checks. The waiver was only for GC cases and never for N-400 because there are internal Homeland security regulations that absolutely require completion of the name check before an oath can take place. In fact the same regulations prohibit USCIS officers from scheduling interviews before the name check is completed to avoid the 120-day trap. So it is possible that as a result of this lawsuit the USCIS would just state that the interview was scheduled by mistake and take a position that they would schedule another one when the name check is completed (to follow the rules this time). In their view it would be a bigger violation for USCIS to approve a case without the name check than to violate the 120-day rule.
"The choice by USCIS to favor national security in requiring a full check of the background of a citizenship applicant over a self-imposed 120-day deadline, regardless of whether the interview was prematurely granted here, cannot be unreasonable" See more at: http://caselaw.findlaw.com/us-1st-circuit/1026670.html#sthash.dYnhQYji.dpuf

2) While USCIC officially stated in September 2008 that all name checks pending for more than two years were processed by July 2008, that was actually not true, because when we were interviewed later that year (October 2008) his name check was still pending (even though it was pending for more than 6 years by that time). So obviously the USCIS Ombudsman didn't mind lying in the past about his case.

3) We filed our case with the USCIS Ombudsman and need to wait for his/her response before taking our next step.

4) If successful, (USCIS approves the case within 40-60 days), the 1447(b) lawsuit will cost around $6000 in court representation and filing fees that cannot be re-reimbursed because of the previous court decisions (when the 1447(b) winners filed for attorney's fees and lost). If unsuccessful, it could take years and thousands because we would need to appeal and re-appeal....

So they recommend to wait for at least until the Ombudsman returns his opinion and then think very hard whether we want to take this on or not...

 

[udacha6]

More information from my lawyer.... Apparently 1447(b) isn't as easy as you describe it and by no means guarantees an approval or an expedited FBI name check.

The statute is very specific in identifying precisely when a naturalization applicant can ask the district court to intervene due to agency delay: when the agency fails to make a decision on the application within 120 days after the “date on which the examination is conducted under [§ 1446].” 8 U.S.C. § 1447(b).

The meaning of the term “examination” is critical to determining when a § 1447(b) action can be brought, since it is only after the “examination” has taken place that the 120 day period begins to run.

The majority of courts – including the only courts of appeals to decide the issue – have held that “examination” refers to the initial interview scheduled under 8 U.S.C. § 1446. See, e.g., Walji v. Gonzales, 500 F.3d 432, 436 and n. 5 (5th Cir. 2007) (citing cases); U.S.A. v. Hovsepian, 359 F.3d 1144, 1151 (9th Cir. 2004) (en banc); Omar v. USA, 552 F. Supp. 2d 713 (M.D. Tenn. 2008); Shendaj v. Dedvukaj, 543 F. Supp. 2d 724 (E.D. Mich. 2008); Imran v. Keisler, 516 F.Supp.2d 967 (S.D. Iowa 2007); see also 8 C.F.R. § 335.2. These and other courts hold that a § 1447(b) action can be brought if USCIS has failed to make a decision within 120 days after the initial interview. In Walji, the Fifth Circuit reached this conclusion based upon the statutory language of § 1447(b) (indicating that the “examination” was a distinct, single event); the statutory structure (distinguishing between the examination and the investigation of a naturalization application); the agency’s own regulations; and the legislative history of § 1447(b). Walji, 500 F.3d at 436-38.

A minority of courts hold that the term “examination” encompasses a “process” which includes both the interview and the investigation of the application, including FBI security checks. See, e.g., Danilov v. Aguirre, 370 F. Supp. 2d 441 (E.D. Va. 2005); Yarovitskiy v. Hansen, No. 07-1174, 2007 U.S. Dist. LEXIS 57734 (N.D. Ohio Aug. 8, 2007); Kassemi v. DHS, No. 06-1010, 2006 U.S. Dist. LEXIS 74516 (D.N.J. Oct. 13, 2005). Under this interpretation, these courts dismissed § 1447(b) suits as premature – even though they were filed more than 120 days after the initial interview – because security checks were still pending.

The ratio dismissals/approvals is around 25% and growing... It depends on the judge and what side he would take. The percentage is much higher for cases where the FBI name checks are pending due to the national security concerns and cases filed within the first year after the interview.

 

[Jackolantern]

The bottom line in this is case is this: No 1447(b) (or at least the impending notice of it), no citizenship for the next 50 years.

Don't just look at the raw ratio of dismissals. First of all, most 1447(b) cases don't end up being seen by a judge, because USCIS will usually find a way to decide the case before it goes to court. So of the cases that actually are seen by a judge, those are more likely to include cases where USCIS thinks it can win. Some of those cases would involve situations where the delay past 120 days is at least partially due to the applicant's own delay in providing documents to USCIS, or the applicant did not have the help of a lawyer and filed it incorrectly.

$6000 seems too high for 1447(b). Ask the lawyer what it would cost to (1) send a letter to USCIS with the lawyer's letterhead and signature declaring the intention to file 1447(b) on a certain date in the future and (2) to file the 1447(b) and then let your husband handle the court appearance (if necessary) by himself. If that new quote is still too high, find another lawyer. Remember the majority of 1447(b) cases are decided without going to court, and some are decided even before the 1447(b) is actually filed because USCIS acted quickly after receiving notice of the intention to file 1447(b).

 

[udacha6]

I agree about 1447(b) being the only option, but I think waiting more and allowing Ombudsman's review to complete is the right approach here, because once the first 1447(b) is dismissed you can't re-file it - sort of a double-jeopardy case - unless there is new information on the case. Also I have to do this in Illinois and that being a democratic state we have a lower chance of winning it because the democratic judges usually side with the government side, understandably.

About $6000 estimate. I'll follow up on the intent-to-file letter. Last night I also looked at different cases where the plaintiffs tried to sue for attorney's fees after winning 1447(b) and the exact amounts are somewhere in the ballpark of $4900-$8000 after all was said and done in 2005-2007 (after that such lawsuits stopped because they were unsuccessful), so $6000 in 2014 isn't that far off. I think the initial estimate could be lower but the actual cost of doing this is somewhat higher.

Anyway, I appreciate your help. I'll update here when/if there are changes to the case.

 

[jwdkhan]

I've been following this thread and everything explained here seems very similar to my case: Originally applied for greencard in 2001, all company wide applications denied in 2003 due to the dotcom crash, fresh application submitted in 2004. Multiple name checks and corresponding delays at every possible juncture including H1B renewals and work visa extensions. Greencard finally approved in early 2009. Now it's been almost 13 months since having submitted our N-400s and still waiting for an interview call.

No criminal record of any kind, never ever out of status, always paid taxes on time etc. As you can see from my signature, I've already made multiple service request calls, been to several Infopass appointments, wrote through Senator and Congresswoman, received reply saying that my case is pending an extended name check. Now waiting to hear back from Ombudsman's office before I notify USCIS of my intention to file WOM.

Looking at udacha6's case, it seems there's a good chance I too should expect another long wait even after I am called for an interview.

 

[Jackolantern]

About $6000 estimate. I'll follow up on the intent-to-file letter. Last night I also looked at different cases where the plaintiffs tried to sue for attorney's fees after winning 1447(b) and the exact amounts are somewhere in the ballpark of $4900-$8000 after all was said and done in 2005-2007 (after that such lawsuits stopped because they were unsuccessful), so $6000 in 2014 isn't that far off. I think the initial estimate could be lower but the actual cost of doing this is somewhat higher.

Bear in mind that those costs are for cases that went the whole way from filing to being completed in court, so those would cost more than the typical case which is resolved before the court gets a chance to do anything.

 

[udacha6]

Jwdkhan,
If your case was approved in early 2009 after a long wait, it is possible it was approved on the name check waiver too. The waiver was active only for 6-8 months in 2008-2009. Were you interviewed in 2009?

Based on the lawsuits the name check delays affect disproportionately males from Russia, China and India, plus some Muslim populations. Females fly through this without delays so it isn't a specific name, it is something else. Are you from one of these groups? My husband is Russian so there is no surprise, I guess. Likewise - no criminal history, no tax evasion or anything that can even remotely interest authorities... And yet....

My husband's case was already called for interview but it was a mistake. That would allow us to file 1447(b) instead of WoM when the time comes.

 

[jwdkhan]

Hi udacha6. I was not interviewed for my greencard but the approval did come out of nowhere all of a sudden in early 2009 and from your description it seems most likely that it was due to the waiver.

I am from Pakistan, and have experienced name check delays at every possible step when interacting with USCIS. But I've been living in the US longer than I have in Pakistan, and I'd have thought with all these previous name checks, at least by now they'd have gathered sufficient information to process our N-400s faster. I applied for my wife and myself together, and we had hoped that she would be spared from any potential name check delays and get called for an interview much earlier, which has not happened.

 

[baikal3]

I agree about 1447(b) being the only option, but I think waiting more and allowing Ombudsman's review to complete is the right approach here, because once the first 1447(b) is dismissed you can't re-file it - sort of a double-jeopardy case - unless there is new information on the case.

Waiting for the Ombudsman is basically a waste of time. The Ombudsman never ever ever provides any meaningful help in such situations. All you'll eventually get from the Ombudsman is the same uninformative response you get from doing a USCIS service request (only with the dubious "benefit" that getting this response from the Ombudsman takes much longer): that the processing of your case is delayed due to the necessary background checks.
I myself received just such a response from the Ombudsman when my N-400 application was stuck in the name check. There were lots of similar cases reported in this forum, with exactly the same result. I have never heard Ombudsman doing more than this in the cases of a name check N-400 delay.
Even if, in a highly hypothetical situation, the Ombudsman did want to get involved in your case in a substantive way, the Ombudsman lacks any real power to force the USCIS' hand in a meaningful way, the way a court can.

Waiting for the Ombudsman's response is sometimes advisable in the writ of mandamus cases (where there is an unreasonably long delay in actually scheduling the naturalization interview), because it may be helpful there for the applicant to demonstrate that he/she has taken all the reasonable due diligence steps in trying to get the USCIS to act. But in 1447(b) cases there is no need for that, since after 120 days from the interview the applicant acquires a categorical statutory right to file a 1447(b) lawsuit and have the jurisdiction over the applicant's N-400 application transferred from the USCIS to a federal judge.

This stuff is explained in detail in lots of places, e.g.
http://www.legalactioncenter.org/si...d_naturalization_application_fin_10-23-13.pdf

Also I have to do this in Illinois and that being a democratic state we have a lower chance of winning it because the democratic judges usually side with the government side, understandably.

Federal judges are appointed by the President of the U.S. and confirmed by the U.S. Senate. It makes little or no difference whether you live in a blue or a red state in terms of how sympathetic the federal judge hearing your case
will be to the government's case.

 

[golferfas]

Hello All,

Bring this thread back on top ! Wanted to know updated progress or any success in cases discussed above. Anyone else stuck in a Name check for N-400 application ?

Regards.

 

[waitingforgcard]

Hi there, i applied for my case on March 31st, it was received by April 2nd, 2015. So far no interview letter received. Checked with infopass, they mentioned my case is stuck in background checks.

I am talking with a lawyer to see what are my options. Please note that I had to file WoM to get my green card. I had help from attorney.