Once again, the USCIS has changed its policy with respect to background clearances on applicants for green cards in the US. Last year, the USCIS announced that it would issue approvals on applications for “Adjustment of Status” pending at least 180 days, even if the background clearances from the FBI and other agencies had not been completed. Under the new policy, the USCIS will not automatically approve applications for adjustment of status after 180 days, but will require USCIS adjudicators to obtain “authorization from Headquarters” to approve a pending case before the background clearance is obtained.
In announcing the previous policy on February 4, 2008, USCIS Associate Director of Domestic Operations, Michael Aytes, issued a memorandum revising USCIS’ policy of requiring complete background clearances before an application for adjustment of status may be approved. The Memo set forth policy, in which the USCIS, in cooperation with the FBI, would render final decisions on pending I-485 and I-601 (waiver applications) within 180 days of receipt. This policy was in accord with Congressional mandate and greatly reduced the waiting period for adjustment of status in most cases.
The February 2008 policy was sorely needed to clear a growing mass of unadjudicated applications. In the aftermath of 9-11, the Department of Homeland Security (DHS) implemented strict procedures to screen out inadmissible aliens during the adjudication of applications fro US immigration benefits, such as adjustment of status, work authorization and naturalization. By regulation, DHS made FBI fingerprint and name checks, as well as Intragency Border Inspection Services (IBIS) checks mandatory prior to the approval of these immigration benefits. As a result, foreign nationals were subjected to delays of several months, and in some cases years, for the adjudication of their green card applications.
Applicants weary of such delays could seek “mandamus” relief in the Federal Courts, enlisting the intervention of a US District Court Judge to order the USCIS and related agencies to complete the background checks within a “reasonable time” as required under the Administrative Procedure Act (APA). While Mandamus remains a viable tool to obtain long overdue adjudication of green card applications, USCIS’ new policy may help individuals avoid litigation in many cases.
Under the revised policy of February 2009, the USCIS will continue to initiate the required background checks upon the receipt of applications for adjustment of status. Where the application is otherwise approvable and has been pending at least 150 days, the USCIS adjudicator must contact USCIS headquarters to determine the reasons for the background check delay. Case-by-case, USCIS Headquarters will authorize approval of the application for adjustment of status. As with the previous policy, USCIS will retain the files of cases where the application has been adjudicated pending the results of the background clearance. If the background clearance reveals a criminal history or other potential basis for ineligibility, USCIS will render a determination as to whether rescission or removal proceedings should be initiated against the alien.
The USCIS will continue its requirement that all applicable background clearances must be obtained before adjudicating N-400, Applications for Naturalization. An applicant for naturalization, however, may seek the intervention of a US District Court Judge if more than 120 days have passed since the interview and no decision has been rendered.
Applicants for adjustment of status may still look forward to receiving a decision from USCIS within 180 days. If more than 180 days elapses with no decision forthcoming, the applicant may consider filing a lawsuit seeking Mandamus relief to enforce the new CIS policy. Of course, litigation is generally a last resort and an applicant’s Immigration Attorney should exercise diplomacy with the USCIS to obtain a favorable resort for any applicant prior to filing suit in Federal Court.
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