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Dinsmore | Immigration
Jan 05, 2007

USCIS Changes Practice Regarding FBI "Name Checks" and Mandamus Actions

Because of the security clearances that are applicable to all U.S. immigration petition and applications, some applications and petitions (often I-485 adjustment of status applications and N-400 applications for naturalization) are extraordinarily delayed because of the need for a security clearance known as an "FBI name check." These FBI name checks are time-consuming and somewhat complicated. If there is a "hit" on a particular person's name it can take the FBI years to resolve the hit and determine that the hit was a "false positive." For the past several years, persons subject to lengthy FBI name check delays sometimes have sued U.S. Citizenship and Immigration Services (USCIS) by filing mandamus lawsuits in U.S. district court. USCIS often has responded by asking the FBI to expedite the long-pending name check. According to a December 2006 update from USCIS, USCIS will no longer ask the FBI to expedite name check clearances when USCIS is sued. The USCIS statement on this change is reproduced below.

USCIS Change in Practice Regarding Mandamus Actions

In the interest of fairness and processing cases chronologically, USCIS will no longer routinely request the Federal Bureau of Investigation (FBI) expedite a name check when a mandamus action has been filed against USCIS seeking adjudication of immigration applications in which the delay is related to an FBI name check. USCIS may still request the FBI to expedite a name check for an applicant who meets at least on of the following criteria:

  • Military deployment
  • Age-out cases not covered by the Child Status Protection Act (CSPA)
  • Applications affected by the sunset provision, such as Diversity Visas (DVfs)
  • Loss of Social Security benefits or other subsistence benefits (at the discretion of the District Director)
  • Compelling reasons (e.g. critical medical condition)
A mandamus action is not required nor recommended, if one of the above criteria exists. This change in practice became effective December 21, 2006, and included both N-400 and I-485 applicants.

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