On February 4, 2008, Michael Aytes, Associate Director for Domestic Operations, U.S. Citizenship and Immigration Services (USCIS) issued a memorandum to all USCIS offices, advising them of a major change in the adjudication policy for I-485 Adjustment of Status (AOS) applications.  Effective immediately, AOS cases that are otherwise approvable, but are held up due to the FBI name check, can be approved if the FBI name check has been pending for more than 180 days.  Any AOS case approved without receipt of the FBI name check will be reviewed again by USCIS when the FBI name check results are received.  If USCIS receives derogatory or adverse information from the FBI name check after the AOS approval, USCIS will determine whether rescission or removal proceedings are warranted.

Background:  When adjudicating AOS applications, USCIS is required to complete security and background checks before approving any AOS application.  These include requesting FBI fingerprint checks (i.e., criminal records or rap sheets) and Interagency Border Inspection Services (IBIS) checks.  In addition to these two checks, USCIS further requires that a third FBI "name check", which involves a search and review of various government databases for any other information that might be a basis for denying the AOS application.  For a variety of reasons, some AOS applicants have waited months or even years for their FBI name check to be completed, leaving their AOS cases on hold during that time.  This delay has meant huge costs to applicants, as they must annually renew their EAD and AP documents, among other inconveniences.

Under this new policy, USCIS must still obtain clearance on the FBI fingerprint checks and IBIS checks for each AOS application before approval.  However, if the FBI name check remains pending for more than 180 days, USCIS may approve the AOS application without receipt of the name check.  Should the FBI name check ultimately return information on the AOS applicant that would have rendered the individual ineligible for permanent resident status, USCIS retains the right to reopen the AOS case and revoke the approval.

Please note that while the USCIS may now approve AOS applications without receipt of the FBI name check, USCIS will still require receipt of the FBI name check for any N-400, Application for Naturalization.  Individuals who have N-400s on hold due to a delay in the FBI name check will not be impacted by this change.

In considering this policy change, it is important to note that all AOS applicants must still meet all other requirements for adjustment of status, such as submission of completed medical exams as well as birth and marriage documentation.  Any underlying basis of eligibility for AOS, such as a pending I-140 or I-130 petition must be approved before the AOS can be approved.  Further, the priority date must be current in order for the AOS application to be approved.  This change does not mean that AOS applications will be approved 180 days after filing with USCIS. 

A critical implication of this policy change is that we may see significant backlogs and retrogression in many employment-based (EB) immigrant visa categories as more AOS cases are approved, and more green cards are issued.  When USCIS begins clearing and approving many of the AOS cases that have languished while waiting for an FBI name check, annual immigrant visa number quotas may rapidly become exhausted.  Once all immigrant visa numbers for the fiscal year have been claimed, no other AOS applications may be approved until the new fiscal year begins, and a new allotment of employment-based immigrant visas become available.

Jackson & Hertogs will continue to provide updates to clients as we learn more about this new policy change and its implementation.

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