Criticism and Controversy
The Name Check process and the way in which it is used are blamed some by immigration advocates, political commentators and government officials for creating substantial delays in the processing of green card and citizenship applications.
Immigrants affected by green card and naturalization delays due to pending FBI Name Checks have filed numerous lawsuits against the government trying to compel action on their applications. These lawsuits have had varying degrees of success but in many cases federal judges criticised the USCIS policy. The lawsuits have been widely reported in the press and have been discussed in various congressional hearings.
According to the 2007 annual report of the CIS Ombudsman, as of May 2007, "USCIS reported 329,160 FBI name check cases pending. Approximately 64% (211,341) of those cases have been pending more than 90 days and approximately 32% (106,738) have been pending more than one year. There are now 93,358 more name check cases pending than last year, and 31,144 FBI name check cases pending more than 33 months." . The report also states: "FBI name checks, one of the security screening tools used by USCIS, may be the single biggest obstacle to the timely and efficient delivery of immigration benefits."The delays due to pending FBI Name Checks for naturalization applications are expected to increase due to a substantial surge in the number of naturalization applications in the spring-summer of 2007 that happened before a significant increase in the USCIS application fees.
Many immigration advocacy groups maintain that the use of the FBI Name Check process by USCIS is unproductive and even counter-productive in accomplishing the stated national security goals of the USCIS policy while at the same time causing unreasonable delays for large numbers of applicants. Most people affected by FBI Name Check delays are already authorized to work and stay in the U.S. while their applications are pending. Critics assert that the current USCIS policy does not result in identifying and detaining genuinely dangerous individuals quickly but rather allows them to legally remain in the U.S. essentially indefinitely, while at the same time causing unreasonable delays in the processing of applications of tens of thousands law-abiding applicants. This view is also expressed in a number of court decisions related to the FBI Name Check delays. Thus in a 2008 ruling in a lawsuit by a Romanian naturalization applicant, U.S. District Judge Michael Baylson wrote: "If these individuals are potentially dangerous to the United States, it would seem their applications should be expedited over all other work. ... Some plaintiffs in these cases have been waiting over three years for a decision. ... Delaying their citizenship status does not eliminate the danger they may pose to the United States. ... It would seem that this group, estimated at 1 percent of all applicants, should be investigated more quickly, not more slowly, than everyone else." A similar point is raised in the 2007 annual report of the CIS Ombudsman.
The November 2005 report by the DHS Office of Inspector General criticised the internal processes and procedures used by USCIS in relation to FBI name checks and suggested developing a risk assessment based approach in conducting the FBI Name Checks.
In various public statements and congressional testimony USCIS and DHS officials acknowledge that delays due to pending FBI Name Checks place significant burdens on many law-abiding applicants for immigration benefits. Nevertheless, USCIS maintains that there is considerable national security value in performing full FBI Name Checks since they often do reveal more detailed information than the more limited background checks used previously. In its response to the 2006 USCIS Ombudsman's Report, USCIS stated:
| “ | Although these security checks may require a more lengthy processing time, USCIS believes that performing them is essential to identifying national security and public safety concerns that would not have been uncovered by other means. This is particularly true given that in, a few cases, the information obtained from the FBI through this process has reflected very significant issues and risks. FBI name checks disclose information to USCIS that is otherwise not available. Information contained in 39% of the FBI positive responses (letterhead memoranda) received in FY 06 was not contained in IBIS/TECS, USCIS’ primary background check tool. Upon receiving authorization from the FBI, this information is used to interview applicants seeking immigration benefits and to make adjudicative decisions. For that reason, although a heavy price is paid in inquiries, mandamus actions, and other forms of litigation, USCIS is committed to effective background checks, and thus is committed to the FBI name check. | ” |
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