Immigration Security Checks: How the Process Works
By Neil S. Dornbaum and Kathleen M. Peregoy
Many have asked for an explanation of the USCIS security check program,
as it has been blamed for delaying the finalization of many immigration filings. Below
is an overview of the requirements.
Background
All applicants filing for a U.S. immigration benefit are subject to criminal
and national security background checks to ensure they are eligible for
that benefit. U.S. Citizenship and Immigration Services (USCIS), the federal
agency that oversees immigration benefits, performs checks on every applicant,
regardless of ethnicity, national origin, or religion. Since 2002, USCIS
has increased the number and scope of relevant background checks, processing
millions of security checks without incident. However, in some cases, USCIS
customers and immigrant advocates have expressed frustration over delays
in processing applications, noting that in some cases individual customers
have waited a year or longer for the completion of their adjudication pending
the outcome of security checks. Although the percentage of applicants who
find their cases delayed by pending background checks is relatively small,
USCIS recognizes that for those affected individuals, the additional delay
and uncertainty can cause great anxiety. Although USCIS cannot guarantee
the prompt resolution of every case in its communications with the public, USCIS assures the public that applicants
are not singled out based on race, ethnicity, religion, or national origin.
Currently, USCIS reports more than 300,000 applications are on hold nationwide, with
more than 100,000 pending more than one (1) year due to security checks.
USCIS strives to balance the need for timely, fair, and accurate service
with the need to ensure a high level of integrity in the decision-making
process. The information appearing below is taken from an informational
that bulletin outlines the framework of the immigration security check process,
explaining its necessity, as well as factors contributing to delays in resolving
pending cases.
Why USCIS Conducts Security Checks
USCIS conducts security checks for all cases involving a petition or application
for an immigration service or benefit. This is done both to enhance
national security and ensure the integrity of the immigration process.
USCIS is responsible for ensuring that our immigration system is
not used as a vehicle to harm our nation or its citizens by screening
out people who seek immigration benefits improperly or fraudulently.
These security checks have yielded information about applicants
involved in violent crimes, sex crimes, crimes against children,
drug trafficking, and individuals with known links to terrorism.
Completing these investigations require time, resources, and patience,
and USCIS recognizes that the process is slower for some customers
than it would like. Because of that, USCIS is working closely
with the FBI and other agencies to speed the background check process.
Immigration Security Checks-How and Why the Process Works
How Immigration Security Checks Work
To ensure that immigration benefits are given only to eligible
applicants, USCIS adopted background security check procedures
that address a wide range of possible risk factors. Different
kinds of applications receive different levels of scrutiny. USCIS
normally uses the following three background check mechanisms
but maintains the authority to conduct other background investigations
as necessary:
- The Interagency Border Inspection System
(IBIS) Name Check—IBIS is a multiagency effort
with a central system that combines information from multiple
agencies, databases, and system interfaces to compile data
relating to national security risks, public safety issues,
and other law enforcement concerns. USCIS can quickly check
information from these multiple government agencies to determine
if the information in the system affects the adjudication of
the case. Results of an IBIS check are usually available immediately.
In some cases, information found during an IBIS check will
require further investigation. The IBIS check is not deemed
completed until all eligibility issues arising from the initial
system response are resolved.
- FBI Fingerprint Check—FBI
fingerprint checks are conducted for many applications. The FBI
fingerprint check provides information relating to criminal background
within the United States. Generally, the FBI forwards responses
to USCIS within 24–48 hours. If there is a record match,
the FBI forwards an electronic copy of the criminal history (RAP
sheet) to USCIS. At that point, a USCIS adjudicator reviews the
information to determine what effect it may have on eligibility
for the benefit. Although the vast majority of inquiries yield
no record or match, about 10 percent do uncover criminal history
(including immigration violations). In cases involving arrests
or charges without disposition, USCIS requires the applicant
to provide court certified evidence of the disposition. Customers
with prior arrests must provide complete information and certified
disposition records at the time of filing to avoid adjudication
delays or denial resulting from misrepresentation about criminal
history. Even expunged or vacated convictions must be reported
for immigration purposes.
- FBI Name Checks—FBI name
checks are also required for many applications. The FBI name
check is totally different from the FBI fingerprint check. The
records maintained in the FBI name check process consist of administrative,
applicant, criminal, personnel, and other files compiled by law
enforcement. Initial responses to this check generally take about
two weeks. In about 80 percent of the cases, no match is found.
Of the remaining 20 percent, most are resolved within six months.
Fewer than one percent of cases subject to an FBI name check
remain pending longer than six months. Some of these cases involve
complex, highly sensitive information and cannot be resolved
quickly. Even after FBI has provided an initial response to USCIS
concerning a match, the name check is not complete until full
information is obtained and eligibility issues arising from it
are resolved.
For most applicants, the process outlined above allows USCIS
to quickly determine if there are criminal or security-related
issues in the applicant’s background that affect eligibility
for immigration benefits. Most cases proceed without
incident. However, due to both the sheer volume of security checks
USCIS conducts, and the need to ensure that each applicant is
thoroughly screened, some delays on individual applications are
inevitable. Background checks may still be considered pending
when either the FBI or relevant agency has not provided the final
response to the background check or when the FBI or agency has
provided a response, but the response requires further investigation
or review by the agency or USCIS. Resolving pending cases is
time consuming and labor intensive; some cases legitimately take
months or even several years to resolve. Every USCIS District
Office performs regular reviews of the pending caseload to determine
when cases have cleared and are ready to be decided.
Note: USCIS does not share information about the records match
or the nature or status of any investigation with applicants
or their representatives.
In some cases you may want to consider using various procedures
available to expedite a pending security check. To discuss eligibility
and options, you should contact your legal representative.
Neil S. Dornbaum and Kathleen Peregoy are members
of Dornbaum & Peregoy
LLC Newark, New Jersey. Their practice is limited to immigration
and naturalization with special emphasis on employment-based
immigration. The firm is listed in Martindale-Hubbell’s “Preeminent
Lawyers,” and both members are listed in “Best Lawyers
in America.” They also appear in New Jersey Magazine’s
listing of “Top Lawyers” for their work in immigration
law, and the “Super Lawyers” publications.
© Copyright 2008, American Bar Association.
