Asian Journal- The Filipino-American Community Newspaper

Earlier this year, USCIS Associate Director of Domestic Operations, Michael Aytes, issued a memorandum revising CIS’ policy of requiring complete background clearances before an application for adjustment of status may be approved. The Memo sets forth the new policy, in which the CIS, in cooperation with the FBI, will render final decisions on pending I-485 and I-601 (waiver applications) will be adjudicated within 180 days of receipt. This policy is in accord with Congressional mandate and will greatly reduce the waiting period for adjustment of status in most cases.

In the aftermath of 9-11, the Department of Homeland Security (DHS) implemented strict procedures to screen out inadmissible aliens during the adjudication of applications fro US immigration benefits, such as adjustment of status, work authorization and naturalization. By regulation, DHS made FBI fingerprint and name checks, as well as Intragency Border Inspection Services (IBIS) checks mandatory prior to the approval of these immigration benefits. As a result, foreign nationals were subjected to delays of several months, and in some cases years, for the adjudication of their green card applications.

Applicants weary of such delays could seek mandamus relief in the Federal Courts, enlisting the intervention of a US District Court Judge to order the CIS and related agencies to complete the background checks within a "reasonable time" as required under the Administrative Procedure Act (APA). While Mandamus remains a viable tool to obtain long overdue adjudication of green card applications, CIS’ new policy may obviate the need for such litigation in many cases.

CIS will continue to initiate the required background checks upon the receipt of applications for adjustment of status. Once the application has been pending 180 days, however, if the application is other wise approvable, CIS will adjudicate the application and issue the green card without the background check results. Under this new policy, CIS will retain the files of cases where the application has been adjudicated pending the results of the background clearance. If the background clearance reveals a criminal history or other potential basis for ineligibility, DHS will render a determination as to whether rescission or removal proceedings should be initiated against the alien.

The CIS will continue its requirement that all applicable background clearances must be obtained before adjudicating N-400, Applications for Naturalization. An applicant for naturalization, however, may seek the intervention of a US District Court Judge if more than 120 days have passed since the interview and no decision has been rendered.

Applicants for adjustment of status can now look forward to receiving a decision from CIS within 180 days. If more than 180 days elapses with no decision forthcoming, the applicant may consider filing a lawsuit seeking Mandamus relief to enforce the new CIS policy. Of course, litigation is generally a last resort and an applicant’s Immigration Attorney should exercise diplomacy with the CIS to obtain a favorable resort for any applicant prior to marching into Federal Court.

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Daniel P. Hanlon is a California State Bar Certified Specialist in Immigration and Nationality Law and a principal of Hanlon & Greene, a Professional Corporation, located at 225 S. Lake Ave., 11th Floor in Pasadena, California; tel. No. (626) 585-8005. Hanlon & Greene is an immigration and full-service law firm. E-mail: This e-mail address is being protected from spambots. You need JavaScript enabled to view it and www.hanlon-greene.com

( www.asianjournal.com )

( Published on December 20, 2008 in Asian Journal Los Angeles p. C3 )