By: Justin G. Fok, Esq.
On February 20, 2007, the United States Citizenship and Immigration Services released a memo entitled USCIS Clarifies Criteria to Expedite FBI Name Check, which states that, "U.S. Citizenship and Immigration Services (USCIS) is no longer routinely requesting the FBI to expedite a name check when the only reason for the request is that a mandamus (or other federal court petition) is filed in the case." According to our conversations with several Assistant United States Attorneys, this policy was implemented December 21, 2006.
The policy change contained in this memo has caused some confusion as to whether a Writ of Mandamus (WOM) is still an effective means to expedite the FBI Name Check. Some believe that the new policy change means that a WOM will no longer be able to expedite the Name Check. This is not true. In many jurisdictions, including California, it is still possible to force USCIS to issue an expedite request to the FBI for delayed I-485 applications.
The memo states that USCIS will no longer automatically give an expedite request to the FBI simply because there is a lawsuit pending. In practice, what this means is that nation-wide, USCIS attorneys will now routinely file motions against all I-485 mandamus cases and attempt to get these cases dismissed from court. An experienced attorney can get these motions denied and can file his or her own motions to force USCIS to issue the expedite request and complete adjudication of the I-485.
Even after December 21, 2006, our office has been consistently securing approvals for our I-485 clients delayed by the FBI Name Check. The only significant difference we are seeing now is that WOM cases take slightly longer due to the additional court procedures required to combat USCIS's new policy. Here in California, we have been able to secure the final approval of our clients' I-485 within five months of filing the WOM in nearly all cases. In many jurisdictions, a Writ of Mandamus remains a viable means to expedite I-485 cases that have been delayed by the FBI Name Check.
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For questions or comments regarding this article, please email Attorney Fok at: jfok@jclawoffice.com