HOUSTON– LAWFUEL – Law Newswire –Americans can apply for a six-figure mortgage and close it in a few months or less. Companies run background checks on new employees in a matter of days or weeks. So why do some immigration background checks drag on for months, sometimes years?
For one thing, Immigration is forced to depend on other agencies, like the FBI, CIA and many others, to check immigrants’ names against numerous databases and “watch lists.” If there is a “hit” on a name, Immigration has to wait for the agency to clear it—and the case comes to a halt until clearance arrives, according to Dallas immigration lawyer Elise Healy of Epstein Becker Green Wickliff & Hall, P.C. in Dallas.
“In other words, U.S. Citizenship and Immigration Services (USCIS) does not control the process,” said Healy. “I have heard of lawsuits filed against USCIS over a 4-year delay in issuing a green card, and the USCIS won. On the other hand, in another case not long ago—which had not been completed in 8 years—the court ordered Immigration to grant permanent residence. But that is rare.”
While the USCIS has provided a set of circumstances in which it will expedite a background check, few are able to meet the standard, according to immigration attorney Leigh Ganchan, of Epstein Becker Green Wickliff and Hall’s Houston office.
Since 2002, USCIS has increased the number and scope of relevant background checks ostensibly to enhance national security and ensure the integrity of the immigration process. Background security check procedures address a wide range of risk factors.
“However, so much scrutiny creates massive delays,” said Ganchan. “Background checks get bogged down in miles of red tape and become a mockery of their intended purpose.”
In one notable case, inefficiency put a Harvard Medical School biophysicist’s $750,000 grant for breast cancer research from the National Cancer Institute at risk.
According to a Boston Globe report, after repeated calls to the USCIS and intercession by Members of Congress failed to produce results, the scientist sued the DHS and FBI in an attempt to dislodge her case from a two year wait, and thereby preserve her research grant.
Different application types are subject to different levels of scrutiny. USCIS normally uses three background check mechanisms: The Interagency Border Inspection System (IBIS) Name Check, the FBI Fingerprint Check, and FBI Name Checks.
According to Ganchan, there are a few circumstances under which the USCIS will consider expediting a background check:
When the applicant is about to be deployed by the U.S. Armed Forces;
When a child is about to become too old to remain in the category under which he or she filed;
When the applicant shows a compelling reason that necessitates speeding up his or her name check, such as a critical medical condition;
When a Refugee or Asylee has applied for residency within two years of gaining asylum or refugee status;
In order to expedite the process, the USCIS has proposed the addition of a new system of records entitled “Background Check Service.”
“The Background Check Service would allow authorized USCIS representatives to request background checks and access the data stored in the Background Check Service during the adjudication process,” said Ganchan.
However, the ultimate usefulness of this proposal in resolving long delays is difficult to predict. “Even so,” says Ganchan,” those whose careers and families have been impacted by this background check ‘black hole’ would welcome a mechanism to improve efficiency and communication.” Unfortunately, the government has delayed implementation of the program itself after having promised that it would be in place during the first quarter of 2007.
“In the interim, if your case has been pending a background check for an excessive amount of time it is advisable to contact qualified immigration counsel to determine if you should pursue a ‘case expedite request’ or take some other action,” said Ganchan.
Founded in 1973, Epstein Becker & Green, P.C., is a law firm with more than 380 attorneys practicing in 11 offices throughout the U.S. — Atlanta, Chicago, Dallas, Houston, Los Angeles, Miami, New York, Newark, San Francisco, Stamford, and Washington, D.C. — and affiliations worldwide. The firm’s size, diversity, and global affiliations allow our attorneys to address the needs of both small entrepreneurial ventures and large multinational corporations on a worldwide basis. EBG focuses on Business Law, Health Care and Life Sciences, Labor and Employment, Litigation and Real Estate.