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The Security Clearance Fiasco:. USCIS. FBI. Unraveling The Maze. CITIZENSHIP!. Why Security Clearance?.

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The Security Clearance Fiasco:



Unraveling The Maze


Chaudry Immigration Law, LLC July, 2007

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Why Security Clearance?

  • Since 2003, USCIS mandated every applicant for an immigration benefit undergo national security and background checks. These checks are meant to detect applicants who are security risks, deter benefits fraud, and ensure only eligible applicants receive benefits

Chaudry Immigration Law, LLC July, 2007

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IBIS – Interagency Border Inspection System

IAFIS –Integrated Automated Fingerprint Identification System

IDENT – Automated Biometric Identification System

FBI National Name Check Program

The Four Clearances

Chaudry Immigration Law, LLC July, 2007

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  • The Interagency Border Inspection System is a database of lookouts, warrants, wants, arrests, and convictions

  • Name-based clearance

  • Data collected from over 20 agencies

  • Complete IBIS check includes a concurrent check of FBI files from the National Criminal Information Center

  • Average of 3.7 nameschecked/application

Chaudry Immigration Law, LLC July, 2007

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  • The Integrated Automated Fingerprint Identification System is run by the FBI

  • IAFIS matches criminal history records from federal, state, and military apprehensions

  • USCIS collects the fingerprints and submits to FBI for clearance

Chaudry Immigration Law, LLC July, 2007

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  • The Automated Biometric Identification System is used by asylum offices

  • IDENT is an automated fingerprint ID system

  • IDENT screens fingerprints against 3 databases: previously enrolled asylum applicants, criminal aliens, and repeat immigration offenders

Chaudry Immigration Law, LLC July, 2007

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FBI National Name Check

  • Partially automated

  • Name-based

  • Searches 86 million files that document those individuals who have ever been referenced in or the subject of an FBI investigation

  • Names electronically submitted by USCIS

Chaudry Immigration Law, LLC July, 2007

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CIS Ombudsman Report

  • Ombudsman’s Office is Congressionally mandated to assist individuals/employers with problems with the USCIS

  • USCIS Ombudsman is Prakash Khatri; his first three reports focused on delays in providing immigration benefits and customer complaints

  • According to the 2007 report “FBI name checks may be the single biggest obstacle to the timely and efficient delivery of immigration benefits” and called the status quo unacceptable

Chaudry Immigration Law, LLC July, 2007

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CIS Ombudsman Report

  • Value of the FBI name checks: the report “agrees with…many case workers and supervisors at USCIS field offices and service centers that the FBI name check process has limited value…”

  • Ironically, the delays actually end up allowing a potentially dangerous individual to stay in the US for an extended period of time

Chaudry Immigration Law, LLC July, 2007

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Closer look at FBI Name Checks

  • Required for forms: I-485, I-589, I-601, I-698, and N-400, I-881, I-600, I-817, I-914A, I-192

  • As of May 2007, FBI reported backlog of 329,160 names pending, with 64% over 90 days old and 32% pending over a year.

  • 25% of all cases received by the Ombudsman related to FBI name checks; other checks are all returned within a matter of days or sometimes minutes

Chaudry Immigration Law, LLC July, 2007

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Closer look at FBI Name Check

  • Checks are conducted on name and DOB; both are checked with all possible variations

  • A name with three parts will be checked in 12 different ways and all phonetically similar names will also be checked

  • ie, Imran Ahmed Khan will be checked as Imran Khan Ahmed, Ahmed Imran Khan, Khan Imran Ahmed, etc.

Chaudry Immigration Law, LLC July, 2007

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Remedies to Delays

  • Expedited checks: According to a Dec. 2006 USCIS internal memo, “cases with significant and compelling issues can have the name check expedited”. Expedite requests can only be for the following: military deployment, age-out cases not covered by the CSPA, applicants affected by sunset provisions such as diversity visas, compelling reasons provided by the requesting officer such as medical conditions, and loss of social security benefits or other subsistence in the discretion of the Dist. Director

Chaudry Immigration Law, LLC July, 2007

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Remedies to Delays

  • Ombudsman intervention: theoretically possible, but discussions with the FBI have resulted in the FBI stating that it lacks the resources to perform the function in a timely manner

Chaudry Immigration Law, LLC July, 2007

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Remedies to Delays

  • Going to Court: Plaintiffs have two causes of action in suing the USCIS/FBI for name check delays: The Administrative Procedures Act and the Mandamus Act

  • The Mandamus Act authorizes an “action to compel an Officer of the United States to perform his duty”

  • The Administrative Procedures Act states that every agency “within a reasonable time…proceed to conclude any matter presented to it”.

  • Delay must be unreasonable and all administrative remedies must be exhausted

Chaudry Immigration Law, LLC July, 2007

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Getting the Reports

  • To receive the USCIS Ombudsman Report for 2007 and DHS OIG Review of Security Checks email [email protected]

Chaudry Immigration Law, LLC July, 2007