Open cases referred to ICE for investigation. When USCIS refers an open case to ICE for investigation, staff said long delays often occur before they receive clearance to complete the adjudication or another definitive response. In 2004, FDNS reviewed the IBIS national security/terrorism-related hit referral process and found that ICE was capable of resolving only about a quarter of the USCIS referrals in a timely manner. We observed rows of files USCIS staff shelved, pending a response from ICE. 8 C.F.R. § 103.2(b)(18) allows USCIS to place cases in formal abeyance and withhold adjudication when there is an ongoing investigation relating to the petitioner’s eligibility and disclosure to the petitioner would jeopardize the investigation.
• 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.
• 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. 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 Immigration and Naturalization Service’s Premium Processing Program, DOJ OIG Report No. 03-14, abeyance; 8 C.F.R. § 103.2(b)(18) does not apply unless the investigation relates to the pending application.
