February 04, 2008 - On February 4, 2008, U.S. Citizenship and Immigration Services (USCIS) announced a revision to its policy governing the timeframe that USCIS must wait before approving certain applications that are subject to mandatory FBI background checks and Interagency Border Inspection Services (IBIS) checks. For all Applications to Adjust Status (I-485), Applications for Waiver of Ground of Inadmissibility (I-601), Applications for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (I-687), and Applications to Adjust Status from Temporary to Permanent Resident Under Section 245A of Public Law 99-603 (I-698), USCIS will continue to request an FBI background check as soon as the case is received by the agency, but will approve the application if the FBI check has been pending for 180 days and the case is otherwise approvable. USCIS has confirmed that the FBI has committed to providing background check results to USCIS within 180 days.

Pursuant to the new policy, USCIS will approve an I-485 application, and the other applications named above, even if the FBI has not completed the background check within 180 days, if the case is otherwise approvable. However, USCIS has indicated that if the FBI background check is later received by the USCIS adjudicating office and deemed to be adverse to the applicant, USCIS may rescind the approved application and commence removal proceedings against the applicant, if warranted.

USCIS has also made clear that Applications for Naturalization (N-400) will not benefit from the new policy. Naturalization applicants must continue to wait for all FBI checks to be completed and cleared before USCIS will approve their applications.

BAL Comment: The revision to the previous USCIS policy that applicants must wait for the FBI background check to clear before their applications could be approved is most likely in response to the growing pressure put on USCIS by applicants who have waited years for their applications to be approved. Increasingly applicants and their attorneys filed mandamus actions in federal court to compel USCIS and the FBI to complete the background check and approve the pending case. This new policy should provide some relief on USCIS in terms of responding to these mandamus actions.

The new policy will also certainly benefit thousands of applicants whose applications have been approvable by USCIS for years but for the pending FBI background check. USCIS has not released any specific information on the procedure it plans to implement regarding the identification of applications will benefit from the new policy. BAL expects that in the coming months USCIS adjudicating offices will review the memo and start identifying which pending cases can be approved. This task will probably take longer at USCIS service centers than at local district offices. For those cases that have been pending for a significantly longer period of time, it is possible that USCIS will have to call in applicants to recapture their fingerprints.

BAL reminds applicants that this policy only applies to applications that are approvable but for the FBI background check. Applications to Adjust Status (I-485) are approvable when: an underlying immigration petition (e.g. I-140, I-130, I-360) has been approved; an immigrant visa is available (i.e. priority date is current, if applicable); fingerprints and photographs have been captured at a USCIS Application Support Center; and all the proper supporting documentation has been submitted and is acceptable to USCIS. If you have questions concerning how this new policy might impact your case, please contact your BAL attorney.