On February 4, 2008, USCIS issued a memorandum modifying existing guidance regarding background and security checks on certain applicants, petitioners, and beneficiaries seeking certain immigration benefits. Under this new policy, USCIS must approve an application that otherwise is approvable, where the FBI name check has been pending for more than 180 days, provided that a definitive FBI fingerprint check and Interagency Border Inspection Services (IBIS) have been completed and resolved favorably. If negative information is obtained from the FBI after case approval, USCIS will then determine whether the permanent residence status should be rescinded or the individual should be placed in removal proceedings. The new policy only applies to I-485, I-601, I-687 and I-698 applications, but not citizenship applications (Form N-400).

The new policy will definitely alleviate the agony and uncertainty for many I-485 applicants, who have been waiting for several years because of FBI name check, and should facilitate and result in the approval of many long-delayed cases. However, applicants should not expect their cases to be approved immediately or anytime soon because of the backlog instantly created by the new policy and USCIS’s limited resources to adjudicate these cases. In addition, applicants must still satisfy all other I-485 requirements and remain at the mercy of the whimsical visa number availability and retrogression fluctuations.

On February 20, 2008, USCIS posted in its FAQs that there were approximately 47,000 Adjustment of Status (AOS) applications that were otherwise approvable but for the fact that an FBI name check is pending. However, in a telephone conversation with the Nebraska Service Center (NSC), the representative informed an attorney in this office that as of April 18, 2008, there were approximately 200,000 pending AOS applications, half of which has been pulled for review and adjudication as a result of the February 4, 2008 memo. Our attorney was told that there are only 40 officers working on these cases; thus, NSC would not be able to provide any progress update until the end of August 2008.

On April 2, 2008, USCIS and FBI announced a joint plan to eliminate the backlog of FBI name checks. The target schedules for processing name checks are:

May 2008 Process all name checks pending more than three years
July 2008 Process all name checks pending more than two years
Nov. 2008 Process all name checks pending more than one year
Feb. 2009 Process all name checks pending more than 180 days
June 2009 Process 98 percent of all name checks within 30 days and process the remaining two percent within 90 days.