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USCIS ‘background clearances’ should be complete in 180 days or less

By Atty. Daniel Hanlon

Recently, I have consulted an alarming number of people with applications for adjustment of status pending for more than 6 months; and in some cases several years, allegedly for no other reason than the USCIS background clearances have not been completed.  The USCIS is routinely ignoring the inquiries of such people at their “InfoPass” appointments to follow-up the status of their cases, telling them that they must simply wait.  This type of customer service is unacceptable, especially in light of the USCIS’ stated policy of completing action on such cases within 180 days.

Nearly three years ago, USCIS Associate Director of Domestic Operations, Michael Aytes, issued a memorandum revising CIS’ policy of requiring complete background clearances before an application for adjustment of status may be approved.  The Memo sets forth the USCIS’ policy, in which the USCIS, in cooperation with the FBI, will render final decisions on pending I-485 and I-601 (waiver applications) within 180 days of receipt.  This policy is in accord with Congressional mandate and should have reduced the waiting period for adjustment of status in most cases.

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.

Prior to the policy shift, 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 CIS 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, the USCIS’ 2008 policy should have obviated the need for such litigation in many cases.

Under the 2008 policy memorandum, the USCIS is supposed to initiate the required background checks upon the receipt of applications for adjustment of status.  Once the application has been pending 180 days, however, if the application is other wise approvable, the USCIS should adjudicate the application and issue the green card without the background check results.  Under this policy, USCIS retains 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, DHS would then render a determination as to whether rescission or removal proceedings should be initiated against the applicant.

The USCIS policy memorandum seems to have been lost in the shuffle of late, as many people are forced to endure inordinate delays in the processing of their applications for adjustment of status.  USCIS is informing many of these people that the “background clearance” is to blame for the delay.  Given the USCIS’ official policy, if more than 180 days elapses with no decision forthcoming, applicants for adjustment of status should consider filing a lawsuit seeking Mandamus relief to enforce the USCIS 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 marching into Federal Court.

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Daniel P. Hanlon has been practicing Immigration and Nationality Law exclusively since his admission to the California State Bar in 1993.  Mr. Hanlon is the founder of Hanlon Law Group, a P.C.  He has argued many important immigration appeals before the United States Court of Appeals for the Ninth Circuit, and successfully challenged INS rulings in the United States District Court for the Central District of California.

Mr. Hanlon’s experience spans several years, and covers a broad range of immigrant and nonimmigrant visa petitions, including those for working professionals, multi-national managers, treaty-traders, investors, athletes and entertainers.  Mr. Hanlon also has vast experience in all family-based Petitions and in labor certification applications under both Department of Labor-supervised recruitment and Reduction in Recruitment methods.
Over the past several years, Mr. Hanlon has tried thousands of cases in Immigration Court involving Requests for Asylum in the United States, Cancellation of Removal, and Waivers of Grounds of Removability.

Mr. Hanlon graduated “With Distinction””from the University of Michigan at Ann Arbor in April 1988, with a Bachelor of Arts degree in English. In May 1993, Mr. Hanlon graduated from Loyola Law School in Los Angeles.   He is a member of the American Immigration Lawyers Association, of which he sits on the Investors Committee.  Mr. Hanlon has also appeared as a speaker before the Los Angeles County Bar Association, Immigration Section, on the 1996 immigration law amendments.  Hanlon Law Group, P.C. is headquartered at 225 S. Lake Avenue, Suite 1100, Pasadena, CA 91101, tel: (626) 585-8005, fax: (626) 585-8595, website:  www.hanlonlawgroup.com, email: visas@hanlonlawgroup.com.

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