Philadelphia Immigration Lawyer Blog

On February 5, 2008, the USCIS issued new guidance on the issue of adjudicating certain applications, including I-485 adjustment of status applications, where an application is otherwise approvable and the FBI name check has been pending for more than 180 days. The new guidance was issued in the context of the settlement of a lawsuit in federal court in Philadelphia that challenged the government on the issue of unreasonably long delays in FBI name checks.

The new guidance directs adjudicators to approve the I-485 and proceed with issuing the green card even without the completed FBI name check.

The new guidance also directs adjudicators to do the same for I-601 waiver applications, I-687 applications for temporary status under Section 245A and I-698 applications for permanent residency under Section 245A.

Importantly, the new guidance does NOT apply to delays in adjudicating N-400 applications for naturalization. That’s because, according to the USCIS, if an I-485, for example, is approved but the FBI name check later reveals a problem, the USCIS can always revoke the approval and, if necessary, start removal proceedings against the applicant. With an approved N-400 naturalization, however, it is extremely difficult for the USCIS to go back after a problem is found, to then try to denaturalize the U.S. citizen.

This is a welcome change in policy. What would also be a welcome change would be a real commitment on the part of the government to completing FBI background checks for N-400 naturalization applicants in a more timely manner so that their lengthy adjudicating delays can be avoided too.

As an update edit to this posting here is a February 20, 2008 USCIS Question and Answer sheet on the new policy.