whole report
F. Name Checks and Other Security Checks
FBI name checks, one of the security screening tools used by USCIS, significantly delay
adjudication of immigration benefits for many customers, hinder backlog reductions efforts, and may not achieve their intended national security objectives.
Currently, USCIS conducts several security checks to: (1) determine whether applicants
have a history of criminal or terrorist activity that would make them ineligible for a benefit; and
(2) notify law enforcement agencies of the presence and intentions of individuals who might be
of interest. The Ombudsman receives numerous inquiries about FBI name check delays. During
the reporting period, processing delays due to FBI name checks were an issue in 15.7 percent of
all written case problems received. Stakeholder organizations and USCIS personnel across the
country also regularly raise the issue of FBI name check delays as the most pervasive problem
preventing completion of cases.
CASE PROBLEM
The principal applicant and his wife (the derivative beneficiary) filed their
employment-based green card applications in October 2001. At the time of
inquiry with the Ombudsman in March 2006, their applications remained pending
due to FBI name checks.
CASE PROBLEM
An applicant filed a naturalization application in March 1999 with a USCIS
service center that had jurisdiction over the case. In August 2003, USCIS
transferred the application to the applicant’s local USCIS district office for the
applicant to be interviewed. The interviewing officer requested additional
evidence at the interview, which the applicant provided in a timely fashion. When
the Ombudsman received the inquiry in April 2006, the application remained
pending due to an outstanding FBI name check and additional security checks.
The FBI provides information to USCIS as a paying customer on anyone who is the
principal subject of an investigation or is a person referenced in a file. USCIS adjudicators and
the Fraud Detection and National Security (FDNS) unit use this information to determine if
applicants are ineligible for benefits. The name checks are not sought by the FBI as part of
ongoing investigations or from a need to learn more about an individual because of any threat or
risk perceived by the FBI. Instead, the name checks are a fee-for-service that the FBI provides to
USCIS at its request. Moreover, the FBI does not record any additional information about the
names USCIS s and does not routinely take any further action. Instead, the FBI reviews
its files much like a credit reporting entity would verify and report on information to commercial
entities requesting credit validations.
Some types of background and security checks return results within a few days and do
not significantly prolong USCIS processing times or hinder backlog reduction goals. However,
while the overall percentage of long-pending cases is small, as of May 2006, USCIS reported
235,802 FBI name checks pending, with approximately 65 percent (153,166) of those cases
pending more than 90 days and approximately 35 percent (82,824) pending more than one year.
In November 2005, based on earlier data, the DHS IG reported that FBI name checks take more
than a month to complete for six percent of submissions and more than six months to complete
for one percent of submissions.44 The longer time is required because the FBI must conduct a
manual review of its files to verify that the applicant is actually the subject of an FBI file. This
review can include the FBI reporting on fragments of names on people who are not necessarily
central or directly related to a case.
USCIS has limited capability to produce reports detailing the status of long-pending FBI
name check cases. In addition, USCIS systems do not automatically indicate when a delayed
name check is complete and the case can be adjudicated. Often, this leads to a situation where
the validity of other checks expire before USCIS reviews the case. Those checks then need to be
reinitiated, adding financial and time costs for applicants and USCIS. The high volume of FBI
name check cases and the relatively limited resources devoted to background and security checks
are major problems. The FBI’s manual processing exacerbates delays. USCIS’ planned
Background Check Service (BCS), a new IT system that will track the status of background and
security checks for pending cases, needs to be implemented as soon as possible. The
Ombudsman looks forward to more information from USCIS on the BCS implementation
schedule.
Considering the cost and inconveniences caused by the delays, the value of the FBI name
check process should be reexamined. In almost every name check case that the FBI conducts for
USCIS, the foreign national is physically present in the United States during the name check
process. Thus, delays in the name check process actually prolong an individual’s presence
(albeit in an interim status) in the United States while the check is pending. In that sense, the
current USCIS name check policy may increase the risk to national security by prolonging the
time a potential criminal or terrorist remains in the country. Further, checks do not differentiate
whether the individual has been in the United States for many years or a few days, is from and/or
has traveled frequently to a country designated as a State Sponsor of Terrorism, or is a member
of the U.S. military. Most individuals subject to lengthy name checks are either already green
card holders or have been issued EADs allowing them to receive Social Security cards and state
drivers’ licenses. Additionally, most green card applicants are also eligible to receive advance
parole to enable them to travel outside the United States and return as long as their cases are
pending, which can be for years under the current process.
USCIS requires that the FBI name check be completed before issuing a green card.
However, in removal proceedings before an Immigration Judge, the judge will require
confirmation of all background and security checks by DHS before the judge can grant any relief
(for example, ordering USCIS to issue a green card). Immigration and Customs Enforcement
(ICE – another DHS agency) attorneys indicate to the judge that all background and security
checks have been initiated. The judge proceeds with issuing an order which grants green card
status to the individual. Based on this order, USCIS, as the producer of the actual card, must
issue the green card despite the outstanding FBI name check. These two policies need to be
harmonized.
On March 16, 2005, Secretary Chertoff outlined a risk-based approach to homeland
security threats, vulnerabilities, and consequences:
Risk management must guide our decision-making as we examine
how we can best organize to prevent, respond, and recover from an
attack . . . . Our strategy is, in essence, to manage risk in terms of
these three variables – threat, vulnerability, consequence. We seek
to prioritize according to these variables, to fashion a series of
preventive and protective steps that increase security at multiple
levels.45
In addition, the IG recommended that USCIS establish a comprehensive, risk-based plan
for the selection and completion of security checks.46 Despite Secretary Chertoff’s statement and
the IG’s recommendation, USCIS recently stated that “[r]esolving pending cases is timeconsuming
and labor-intensive; some cases legitimately take months or even several years to
resolve.”47 Unfortunately, the process is not working and consideration should be given to reengineering
it to include a risk-based approach to immigration screening and national security.
RECOMMENDATION AR 2006 --04
The Ombudsman encourages USCIS to adopt the recommendation from the DHS
Secretary’s Second Stage Review to establish an adjudication process in which all
security checks are completed prior to submission of the petition or application
for an immigration benefit.