|IV & FBI Namechecks|
Immigration Voice members who are victims of namechecks have questioned us several times about our position and efforts in solving this issue. IV recognizes this as a major hurdle for some of our members. After the July Visa Bulletin, many members have filed their AOS application and we anticipate more concern from a lot of our members. This page will serve as an update and source of information for our members stuck in namechecks.
Immigration Voice Efforts on solving the Namechecks Issue:
Update: Feb 7, 2008
Update: Nov 28, 2007
IV has met officials from agencies and has raised this issue in the recent past. We have been informed that there is an effort being undertaken to significantly reduce name check backlogs in the next 6 months. IV has been bringing this issue to the attention of lawmakers and administration officials and we are happy to report this news to our members.==================================
IV has also been closely monitoring the progress on the bill sponsored Congressman Clarke to fix the namecheck issue. There are indications that this may also move with the year end bills. Namecheck victims must continue to meet their congressmen and Senators and talk to them about this issue. Send us your feedback from these meetings to email@example.com so that we can continue to follow up with the lawmakers.
Immigration Voice has been mentioning the issue of namechecks with our meetings with lawmakers, administration and media. In the early September, 2007 we had successful meeting with the sponsor of H.R. 3828: Citizenship and Immigration Backlog Reduction Act. This bill is now introduced in October 2007 in the house. We are watching its progress closely and will be updating our members. IV is also closely working with administration officials on this issue. In mid October 2007, Immigration Voice met senior officials and we have been informed about some plans being undertaken to process namechecks faster. We will be updating our members on its progress in the next 6 weeks. We are anticipating good news on this front in the next 6 weeks for our members. Members too will themselves see their namechecks clearing faster.FBI NAME CHECK OVERVIEW
Immigration voice would continue to press forward in order to solve this issue. We request our members to contribute financially to Immigration voice so that we can lobby harder. Please also continue to meet your lawmakers in your area and inform us of your meetings.
All applicants for a green card, are subject to criminal and national security background checks to ensure they are eligible for that benefit. So what is in a name? The purpose of the name check is to enhance national security and ensure the integrity of the immigration process. These security measures are used to identify applicants involved in violent crimes, sex crimes, child pornography, drug trafficking and terrorism etc.
MAJOR STEPS IN NAME CHECK PROCESS
The FBI conducts manual and electronic searches of the Central Records System (CRS) and Universal Index (UNI) for all instances of applicant’s name and date of birth in main case files or references. A main file name is that of an individual who is the subject of an FBI investigation whereas a reference is someone whose name appears in an FBI investigation.
1. Search Request
USCIS submits a request to the FBI’s NNCP. Submissions are accepted via magnetic tape, hard copy, telephone, or fax.2. Primary Search
Electronic submissions are searched against the UNI. Majority of batch names are electronically returned as ‘no record’ within 48-72 hours.3. Secondary Search
A secondary “manual” search is done for names with possible reference or entries from the “hits” (possible matches) of the primary search.4. Manual Review
Remaining paper and electronic files are reviewed to ensure they are relevant to the name check request.5. Disclosure of Search Results
Identifiable files (“Idents”) are then analyzed for relevant or derogatory information that may be disseminated to USCIS.
EXPLANATION OF SEARCH RESULTS
1. “No record”
A “no record” indicates that the UNI database contains no identifiable information regarding a particular individual. Due to time factors in approving visa requests, a “No Record” translates in to a “No Objection” to the issuance of a visa.2. “Hit” (Possible Match)
If there is a match with a name in a FBI record, it is designated as a “Hit”, meaning that the system has stopped on a possible match with the name being checked, but now a human being must review the file to further refine the names “Hit” upon.3. “Ident” (Match)
If the search develops a name and birth date match of a “hit”, it is designated as an “Ident” which is then analyzed for relevant or derogatory information.4. Further investigation is needed
Additional review is required for searches that were not immediately eliminated as a “No Record” due to a name and birth date not being enough to positively match the file with an individual. A secondary manual search is done to determine a “no record” or a possible “hit”.
SIGNIFICANT DELAYS ASSOCIATED WITH NAME CHECK USCIS Ombudsman Report 2007
http://www.dhs.gov/xlibrary/assets/CISOMB_Annual%20Report_2007.pdf reported on page 55 that "Name Checks and Other Security Checks FBI name checks, one of several security screening tools used by USCIS, continue to significantly delay adjudication of immigration benefits for many customers, hinder backlog reductions efforts, and may not achieve their intended national security objectives. FBI name checks may be the single biggest obstacle to the timely and efficient delivery of immigration benefits. The problem of long-pending FBI name check cases worsened during the reporting period"
Recent declaration of Michael Cannon, filed in a civil case in Georgia reinforces the fear that the name check process if not based on first in - first out principle: "Another exception to the first-in, first-served policy is a near-term effort agreed to by USClS and the FBI to reduce the number of pending USCIS name check requests by prioritizing "single hit" name checks". Moreover, if a request is pending a long time, it may be required to go through the process again multiple times! As Mr. Cannon says: "Please note that additional searches against the FBI's Universal Index, additional manual name searches, and/or additional file review of a name check request, depending on the length of time a name check request is pending in the processing queue, may occur periodically during the name check process to ensure that stale information is updated". Therefore, if you have more than one hit the only recourse to avoid waiting for years and years is to file a lawsuit against the USCIS.
Check this document -- http://immigrationvoice.org/media/forums/iv/others/fbi_namecheck_exposed.pdf obtained as part of discovery in a civil case in Oregon. The document sheds more light on how the decision was made by FBI to search both main and reference files for all name check requests submitted by the USCIS. It also has more details about the name check process. All requests from the USCIS get the Priority Level 3 - requests from major customers without specific deadlines.
These links have detailed information about the FBI/USCIS name check:
How do I know whether I am still in name check by FBI
• 1.USCIS infopass/inquiry. Call the USCIS customer service and ask to talk to an immigration officer.
• 2. Send inquiry to the CIS Ombudsman. Visit http://www.dhs.gov/ximgtn/programs/editorial_0497.shtm for details.
• 3. Send inquiry to your congressman/senator.
NAME CHECK EXPEDITE CRITERIA
There have been two Memos by USCIS that explain the criteria to expedite name check. The 2005 Memo http://immigrationvoice.org/media/forums/iv/others/Exhibit5FBINamecheckexpeditecriteria.pdf indicates a pending writ of mandamus lawsuit as a condition for expedited name check. Later on USCIS had another Memo dated Feb 20, 2007 http://immigrationvoice.org/media/forums/iv/others/ExpediteNameChk022007.pdf which removes the lawsuit as a condition to expedite name check.
CAUGHT IN A BUREAUCRATIC BLACK HOLE
By Anna Gorman
The Los Angeles Times
Monday 10 September 2007
Applicants seeking US citizenship languish for years as the FBI conducts cumbersome records checks. Lawsuits are a result. Seeking to become a U.S. citizen, Biljana Petrovic filed her application, completed her interview and passed her civics test. More than three years later, she is still waiting to be naturalized - held up by an FBI name-check process that has been criticized as slow, inefficient and a danger to national security. Petrovic, a stay-at-home mother in Los Altos, Calif., who has no criminal record, has sued the federal government to try to speed up the process. She said it's as if her application has slipped into a "black hole." "It's complete frustration," said Petrovic, who is originally from the former Yugoslavia and is a naturalized Canadian citizen. "It's not like I am applying to enter the country. I have been here for 19 years."
Nearly 320,000 people were waiting for their name checks to be completed as of Aug. 7, including more than 152,000 who had been waiting for more than six months, according to the U.S. Bureau of Citizenship and Immigration Services. More than 61,000 had been waiting for more than two years. Applicants for permanent residency or citizenship have lost jobs, missed out on student loans and in-state tuition, and been unable to vote or bring relatives into the country. The delays have prompted scores of lawsuits around the country.
Already this fiscal year, more than 4,100 suits have been filed against the citizenship and immigration agency, compared with 2,650 last year and about 680 in 2005. The mandamus suits ask federal judges to compel immigration officials to adjudicate the cases. The majority of the cases were prompted by delays in checking names, spokesman Chris Bentley said.
"There is nothing in immigration law that says that a citizenship application should take two, three, four years. That's absurd," said Ranjana Natarajan, an ACLU staff attorney who filed a class-action lawsuit in Southern California last year on behalf of applicants waiting for their names to be checked. "People who have not been any sort of threat ... have been caught up in this dragnet."
In addition to the bureaucratic nightmare that the lengthy delays present, attorneys and government officials say there is a far more serious concern: They could be allowing potential terrorists to stay in the country.
Fallout From 9/11
The backlog began after 9/11, when Citizenship and Immigration Services officials reassessed their procedures and learned that the FBI checks were not as thorough as they had believed. So "out of an abundance of caution," the agency resubmitted 2.7 million names in 2002 to be checked further, Bentley said. Rather than simply determining if the applicants were subjects of FBI investigations, the bureau checked to see if their names showed up in any FBI files, including being listed as witnesses or victims. About 90% of the names did not appear in the agency's records, FBI spokesman Bill Carter said. But for the 10% who were listed, authorities carefully reviewed the files to look for any "derogatory" information, Carter said. Because many documents aren't electronic and are in the bureau's 265 offices nationwide, that process can take months, if not years.
"It is not a check of your name," said Chuck Roth, director of litigation for the National Immigrant Justice Center in Chicago, which also filed a class-action suit. "It is a file review of anywhere your name happens to appear. It has just created a giant bureaucratic mess."
Although many of those stuck in the backlog are from predominantly Muslim countries, there are also people from Russia, China, India and elsewhere. They include government employees and Iraq war veterans. Many have been in the U.S. legally for decades.
In one case decided in Washington, D.C., recently, a federal judge wrote that a Chinese man's four-year wait for permanent residency was unreasonable and ordered the government to decide on the application within three months. Petrovic, who has two U.S.-born teenagers, doesn't know what delayed her application. The only explanation she can think of is that her name is common in her native country. She and her husband, Ihab Abu-Hakima, also a Canadian citizen, applied for citizenship in April 2003 and had their interviews in February 2004. Her husband was sworn in that summer, while her application continued to languish. She checked the mail daily.
When she still didn't hear anything, Petrovic contacted immigration officials, who told her that the FBI had her file and that it was still active. She also contacted her representative and her senator, whose offices asked Citizenship and Immigration Services to expedite the application. She filed a Freedom of Information Act request for her FBI file, which simply showed that she had never been arrested.
"I have a feeling that the system has broken down," she said.
Joining a Different Group
In August, Petrovic joined an American Civil Liberties Union lawsuit filed in Northern California against the federal government. She is waiting to become a U.S. citizen so she can sponsor her elderly parents, who live in Canada and visit often. "Every time they leave, I feel bad," she said. "This is their life here, more than there." The problem extends beyond the disruption of personal lives.
In his yearly report to Congress in June, immigration services ombudsman Prakash Khatri wrote that the policy on checking names "may increase the risk to national security by extending the time a potential criminal or terrorist remains in the country." Khatri questioned the overall value of the process, writing that it was the "single biggest obstacle to the timely and efficient delivery of immigration benefits."
The Department of Homeland Security has acknowledged the threat, last month announcing plans to work with the FBI to address the backlog and reduce delays. Citizenship and Immigration Services will reassess the way name checks are done and earmark $6 million toward streamlining the process, Bentley said. Though 99% of the agency's name checks are completed within six months, Bentley said, the lengthy delays for some applicants is "unacceptable." "That requires a lot of patience on the part of an applicant because they have to wait sometimes multiple years," he said. Nevertheless, he said, no benefit will be approved until that name check comes back clear. Security checks have produced information about sex crimes, drug trafficking and individuals with known links to terrorism, according to the agency.--------
Carter, the FBI spokesman, said he understands that applicants waiting for answers are anxious, but he said the process is complicated and involves dozens of agencies and databases - and, in some cases, foreign governments. "The FBI's No. 1 priority remains to protect the United States from terrorist attack," Carter said. "To that end, we must ensure the proper balance between security and efficiency." In addition to clearing the backlog and processing the 27,000 new name checks it receives each week from immigration officials, the FBI is trying to accelerate the process by making more documents electronic. It is also adding more staff and moving resources to a new records facility in Virginia, Carter said.
Mark Krikorian, executive director of the conservative Center for Immigration Studies, said the government needs to make sure that it carefully checks every application. And working with foreign governments is inevitably going to slow the process down, he said. "We correctly have much more stringent standards for immigration," he said. "I am not really sure that there is any way to do this kind of deep background check efficiently."
But attorneys said that because of the inefficiency, the program isn't serving its purpose.
"Let's say this guy is a terrorist or a criminal," Los Angeles immigration attorney Carl Shusterman said. "Why wouldn't the FBI rush the case?"
Mervyn Sam, a South African native who got a green card in 1998, has been waiting more than four years for the FBI to complete his name check. Sam said his career has been affected by the delay. He lives in Anaheim and is a project manager at a software company but cannot work on certain government projects because he is not a U.S. citizen. He has sued the federal government. "I am not sure what the hiccup is on my end," he said. "It is very, very frustrating." Shusterman, whose office is representing Sam, said applicants waste their time by contacting the immigration services agency, the FBI or their legislators.
"There is only one thing that works, and that is suing them in federal court," he said.
Senate latest news October 16, 2007
Senate Approves Levin Amendment to Improve Oversight of FBI Background Checks
House latest news October 16, 2007
H.R. 3828: Citizenship and Immigration Backlog Reduction Act
Garrity Testimony Feb 2004
Cannon Affidavit March 2006 (Abatani case)
Cannon Declaration Feb 2006 ( Trujillo case; provides details on delays in even getting to the application)
USCIS Fact Sheet April 2006
Aytes Dec 2006 Memo
Aytes No Expedite for Mandamus Memo, Feb 20 2007
Ombudsman’s Report 2007 (see Section F)
USCIS Transformation Plan, Mar 2007 (read pgs 16-17 and 47-48 which give clues about how requests are generated and results tracked at USCIS)
USCIS issues memorandum concerning FBI name check delays
Government Executive June 22, 2007 article
DHS OIG Report on Security Checks (Nov 2005)
Toxsci's Excellent FAQ