March 11, 2009

Foreign Nationals Face Tougher Restrictions Under the U.K. Points Based System

On February 9, 2009, Donald Neufeld, Acting Associate Director, Domestic Operations of the U.S. Citizenship & Immigration Services (USCIS) issued a memorandum that updates the guidance on security checks. The February 9, 2009 memorandum supersedes the February 4, 2008 memorandum and retracts the January 22, 2009 memorandum.

On February 4, 2008, the USCIS issued a memorandum instructing its officers that if certain applications were otherwise approvable and the FBI name check request remained pending for more than 180 days, the application should be approved. These applications included the I-485 (Application for Adjustment of Status), I-601 (Application for Waiver of Ground of Inadmissibility), I-687 (Application for Temporary Resident Status under §245A of the Immigration and Nationality Act), and I-698 (Application to Adjust Status from Temporary to Permanent Resident).

Since February 2008, however, the FBI has improved its processing times for the name check requests and results are now returned to the USCIS on average in 90 days. As a result of the dramatic reduction in the name check processing times, the USCIS issued this revised guidance.

Effective immediately, USCIS adjudicators are required to contact DHS Headquarters to obtain authorization to approve an I-485, I-601, I-687 or I-698 application prior to receiving the results of the FBI name check. Where such an application is otherwise approvable but the name check has been pending for more than 150 days, the USCIS adjudicator is required to notify Headquarters for guidance. Headquarters will then contact the FBI to determine the reason for the delay and provide the adjudicator with case-specific guidance, which may include authorization to approve the application prior to receiving the FBI name check results. If the FBI name check results are later returned showing adverse or derogatory information, the USCIS will determine if rescission of the approval and/or removal proceedings are warranted.