Defending the Non-Citizen Client

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Some Special Conditions Merit Expedited Background Checks for Residency, Citizenship
Immigration Lawyers Can Help Applicants Negotiate Complex System

For immigrants to the United States who are mere steps from completion of their residency or citizenship applications, the wait has become agony.

Background checks form the bottleneck that slows this process to an average of eight months for all applicants. The U.S. Citizenship and Immigration Service (USCIS) requires an FBI fingerprint check, FBI name check, and an IBIS name check on applicants for residency. IBIS is a database that allows USCIS to check names against approximately 20 different federal agencies’ records.

The FBI receives more than 60,000 name check requests each week, and there is still a backload of unprocessed requests numbering more than 2 million.

Because federal law requires that applicants receive notification of the decision on a residency application within 120 days of the interview, some applicants have successfully filed suit when the process has stretched beyond this time limit due to background checks. In fact, the FBI now considers a "lawsuit pending in Federal Court" as grounds for expediting stalled background checks. The number of such lawsuits grew in 2005, with immigrants citing long waits on their applications for citizenship or residency.

USCIS officials are now refusing to schedule citizenship interviews and tests unless an applicant’s background checks are already complete, effectively circumventing the 120-day time limit.

There are a few circumstances under which the USCIS will expedite a background check. These are:

• When the applicant is about to be deployed by the U.S. Armed Forces.
• When an applicant is close to “aging-out.” An example would be when a child who had filed for residency through a parent is about to turn 21. Because the child is about to become too old to remain in the category under which he or she filed, USCIS may consider expediting the background check.
• When the applicant shows a compelling reason that necessitates speeding up his or her name check—such as a critical medical condition.
• When a Refugee or Asylee has applied for residency within two years of gaining asylum or refugee status. In this case, the applicant can request that USCIS expedite the name check if he or she has already waited at least one year for FBI security clearance, and there are no other obstacles to residency.
• When the applicant, through an attorney, files a mandamus action. A writ of mandamus essentially forces the government to make a decision in a case. A mandamus action does not guarantee a decision in the applicant’s favor, but it can speed up the background check.

A qualified immigration attorney can help individuals determine if their case meets any of the criteria necessary to expedite the FBI name check. If such conditions do not exist, the USCIS will refuse to make the FBI expedite the process unless it is sued. Your attorney can also review your case to determine if, or when, such action might be advisable.

“I understand the frustration many applicants feel with the slow pace of this process. Even just checking on the status of your application can be a complicated endeavor,” said Rekha Sharma-Crawford, a Kansas City-based immigration lawyer. “We urge immigrants to talk to an immigration lawyer. They can help applicants stay current on any changes in the law that might affect them, and help to avoid delays in the process if possible.”