For those of you who are not aware:
The CIS Security Background Check Process
One of the most controversial aspects of CIS processing involves the often invoked excuse that a particular application or petition cannot be adjudicated "due to incomplete background security checks." Notwithstanding the fact that the State Department routinely completes virtually all required security background checks within fifteen days, the CIS maintains that a substantial percentage of the cases they handle cannot be completed due to missing "background security checks.
In late 2005, the Office of the Inspector General of the Department of Homeland Security issued a report on the efficiency of the CIS with respect to these types of checks. Among the more interesting findings were the following:
At page17:
“DHS could do more to coordinate screening between its components. For example, USCIS and ICE disagree about the cost-benefit of holding a case until the FBI finalizes a pending response to name check hits, which takes over six months for one percent of cases.” [Emphasis added]
At page 24
“Pending FBI name checks. Unlike other USCIS checks that return results within a few days at most, the FBI name check takes more than a month to complete for six percent of submissions. For one percent, the FBI takes more than six months to compile the hit information and verify that the initial hit matches the identity of the applicant. In December 2002, USCIS (then INS) resubmitted 2.4 million applicant names for expanded checks,30 almost double the number USCIS typically submits in a year’s time. As of February 2005, USCIS reported 171,428 FBI name checks pending, including approximately 8,500 remaining from the December 2002 rerun. USCIS may pay the FBI double to “expedite” up to a few hundred FBI name checks per month. USCIS restricts these requests to certain cases, such as when the alien is about to become ineligible due to age, the applicant files writ of mandamus lawsuits to compel USCIS to complete adjudication, or other humanitarian factors. The “expedite” requests are insufficient to clear the backlog of FBI name checks.” [Emphasis added]
. . .
“Inconclusive results from checks and referrals. Senior officials and staff said that security checks and supplementary information from FBI, ICE, or other record owners can sometimes be vague, inconclusive, or difficult to relate to the case adjudication. At one district office, staff said they shelved cases with complete, positive FBI name check responses for months, pending guidance on how to adjudicate them.” [Emphasis added]
. . .
“Legally inapplicable security check results. In a 2003 audit, the DOJ OIG reported that INS could not deny the petition of an alien otherwise eligible for temporary worker benefits based on an IBIS hit.31 Unlike the adjudicative standards in the Immigration and Nationality Act for most benefits, the standards for adjudicating employment- and family-based petitions require USCIS to evaluate only the authenticity of the employment offer or family relationship, without regard to whether the person evokes security concerns. These employment- and family-based petitions serve simply to document the relationship, but they enable approved aliens to apply for other benefits such as legal permanent residence and visas from the Department of State. Nevertheless, USCIS would prefer not to approve any petition when security concerns have been identified. USCIS sometimes withholds adjudication through an informal abeyance; 8 C.F.R. § 103.2(b)(18) does not apply unless the investigation relates to the pending application.”
This last comment is cause for particular concern. Even though the CIS has no legal basis for doing so, they follow a practice of not adjudicating applications that do not require background security checks until the actually complete background security checks for them.
The CIS published a memorandum, describing which applications and petitions require security checks. They have also published another memorandum, describing their criteria for expediting stalled FBI name checks.
Copyright© 2007 The Gotcher Law Group, PC - All Rights Reserved
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