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On February 7, 2008, we reported on the new U.S. Citizenship and
Immigration Services (USCIS)
memorandum governing the processing of adjustment of status
applications (AOS) that are "otherwise approvable" but are held
up due to the FBI name checks. The USCIS announced that AOS
applications would be approved if the name checks have been
pending for more than six months AND the case is "otherwise
approvable". The USCIS noted that any AOS applications approved
without receipt of the FBI name check will be reviewed again by
USCIS when the FBI name check results are received. The USCIS
warned that if the agency receives derogatory or adverse
information from the FBI name check after the AOS approval,
USCIS will determine whether rescission or removal proceedings
are warranted. The key question for all of our clients is what
impact this will have on their AOS applications. Here is what we
have learned as of February 20, 2008:
- The USCIS is conducting sweeps of its AOS applications to
determine which cases will benefit from the new policy. A case
will be adjudicated if it is "otherwise approvable" but waiting
only for the FBI name check.
- The USCIS has asked attorneys to refrain from making
inquiries via the liaison process until after April 30, 2008 to
give USCIS time to identify and process cases covered by this
new policy. If USCIS must answer inquiries about the new policy
from attorneys and the general public, it will waste time
responding to inquiries rather than identifying and adjudicating
cases. Please note that even though USCIS set March 30 as the
target date, it is possible that they will change this date
depending on their own internal resources.
Even though the new policy may eliminate one reason for I-485
delays, it is important to note that an AOS application cannot
be processed unless it is "otherwise approvable". Several issues
other than FBI name checks may still render AOS applications
subject to delay including:
- A visa number is not currently available. If an AOS
applicant's priority date is not current, the AOS cannot be approved.
- The results of fingerprint checks are only valid for 15
months. If the fingerprint checks have expired, an AOS applicant
will be called in for a new biometrics appointment.
- Other security and background checks remain pending. The
FBI fingerprint check (i.e., criminal records or rap sheets) and
Interagency Border Inspection Services (IBIS) check must both
have been completed before this policy can apply.
Jackson & Hertogs will provide updates to our website as they
become available.
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