How You Can Use The New CIS Name Check Policy To Jump Start Your Stalled Case

How can you take advantage of the USCIS memo this week that certain applications, including those for green cards, may be approved if name checks have been pending for more than 180 days?

AILF offers the following suggestion: If your application has been pending for more than 180 days, and otherwise meets the prerequisites described in the new policy, you may send a demand letter to the agency with the new policy memo attached requesting immediate adjudication of your application.

AILF explains that this demand letter may cause the agency to move more quickly to finish processing your case. On the other hand, if it does not prompt any action, AILF points out that the letter may be helpful if you later decide to file a mandamus lawsuit on the grounds that the agency is not implementing its new policy.

In addition, if you have a pending court action, such as a mandamus action, to which the memo would apply, AILF suggests filing a motion with the court with the USCIS memo attached so as to alert the court to the change in agency policy. The motion should state that all prerequisites for immediate adjudication have been met as required by the new policy:

1) the application is covered by the memo, e.g., it is an Application for Adjustment of Status (I-485);

2) the FBI fingerprint and IBIS check have been completed and;

3) the FBI name check request has been pending for 180 days.

The motion may request that the court issue an order remanding to the agency for immediate adjudication of the application.

AILF further advises that if you are unsure whether the delay in the adjudication of your application is caused by FBI name check delays, you may nevertheless consider sending a demand letter to USCIS with the new policy memo attached.

AILF’s suggestion stems from its observation that the memo does not say that the new policy only applies prospectively. Therefore, AILF explains, the memo affects all applicants whose FBI name check requests have been pending for 180 days.

To read the memo outlining the new policy, click here.

In addition to green cards (I-485, Applications for Adjustment of Status), the new policy applies to: Applications for Waiver of ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687), or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698).

Unfortunately, it does not apply to Applications for Naturalization (N-400), which has also been the victim of lengthy delays and the subject of numerous mandamus lawsuits across the country.

For more information see our article CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.

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6 Responses to How You Can Use The New CIS Name Check Policy To Jump Start Your Stalled Case

  1. Jef says:

    What would a demand letter look like? Is it just a simple letter mentioning the new memo and asking the service center to adjudicate the pending I-485 application where Name check was pending for more than 180 days?

    Is there a special wording that needs to be used for a demand letter?

    Thanks
    Jeff

  2. Vonda K. Vandaveer says:

    Thank you for your question. USCIS does not impose a mandatory form for a demand letter. The elements of such a letter would typically include describing the facts of your situation, stating the law, explaining how the law applies to the specific facts of your situation, then making your demand as to what you want the agency to do.

    As you can see, writing a demand letter is case specific, so you will want to talk to your attorney about your particular case to see whether the law applies to it and if there are any other issues you should be aware of before taking any action.

  3. Sergey says:

    Hi,

    Do you have any estimates, however unofficial, as to how long it is likely to take USCIS to adjudicate applications subject to the new policy? Something like total number of cases pending due to name check divided by the average number of applications adjudicated in one month?

    Thank you.

    Sergey

  4. Vonda K. Vandaveer says:

    Our articles here addresses this question in part.
    https://vkvisalaw.wordpress.com/2008/02/21/status-update-on-processing-of-employment-based-green-cards-under-new-uscis-policy-on-pending-fbi-name-checks/ and
    https://vkvisalaw.wordpress.com/2008/02/14/cis-sweeping-files-for-green-card-cases-eligible-for-processing-under-new-policy/

    USCIS says it is in the process of searching its files for eligible green card cases and has given a target day of April 30, 2008 for identifying and acting on such cases. It then revised the date this week for employment-based green card applications, saying it will accept status checks for these starting after March 30, 2008.

    Stay tuned. We will update readers with the status of these types of cases as we learn more.

  5. Vonda K. Vandaveer says:

    In my experience, that term “administrative review” often means your name is similar to a name on the government watch list. In other words they got a “hit” when they ran your name. To proceed they need to verify you are not the same person identified on the list. That can take days, weeks, months, etc. to clear. Of course it also could be entirely some other problem with the application.

  6. Vonda K. Vandaveer says:

    Regarding the status of USCIS sweeps for pending AOS cases in light of the new policy, we have not received any updates from USCIS regarding its progress. We will update our blog as soon as we have any news so stay tuned!

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