- Federal law provides the United States Citizenship and Immigration Services (USCIS) up to 120 days to accept or reject a particular applicant’s request for US citizenship after the applicant has provided the required documentation, been fingerprinted and interviewed.
- Since the terrorist attacks of September 11, 2001, USCIS requires an expanded search of FBI records, known as a “name check,” for adjudication of applications for naturalization.
- The backlog resulting from this expanded check is leaving legitimate applicants in a legal limbo, sometimes for years. As of early March, 2008 some 365,000 applications are backlogged.
- USCIS has made the unfortunate decision to stop granting citizenship interviews to applicants whose “name checks” have not cleared. Rather than forming a partnership with those who support the long-standing American tradition of granting citizenship to deserving applicants, USCIS’s decision makes the situation with immigration rights advocates more combative, resulting in a number of lawsuits.
- On January 17th, 2008 the House Judiciary Committee Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law held a hearing titled “Naturalization Delays: Causes, Consequences and Solutions”.1 At that Hearing USCIS Director Emilio Gonzales said, “Our goal is to resolve this current processing delay as immediately as possible without taking shortcuts in the process that compromise national security or the agency’s integrity.
- On March 5, 2008 FBI Director Mueller testified before the Senate Judiciary Committee that the agency expects most of its backlog to be cleared by July, 2008. Mueller added that the emphasis was on clearing out those cases with the longest delays.
What is Being Asked of Members of Congress?
- Keep pressure on the FBI and USCIS to naturalize these backlogged applicants by July 4th, 2008. A letter sent to the respective directors will be very helpful in reminding them that Congress is interested in seeing those who have followed the rules of the application process rewarded with the right to vote in an important Presidential election.
- If applicants remain delayed until mid-October but then get cleared, (such as many of those who applied prior to last year’s fee increase, which caused a spike in applications) arrangements should be made to allow them to register to vote for in the general election [Each state has different cut-off dates to register; some have a different one for naturalized citizens. Let them register to qualify to vote for this year’s Presidential election.]
Reasons to Support Ending Citizenship Delays
The DHS Citizenship and Immigration Services Ombudsman told Congress the name check backlog problem is “pervasive and serious,” accounting for “approximately 25 percent” of written complaints. The Ombudsman also noted that the problem is “worsening” and “may not achieve [its] intended national security objectives.”
- In his June, 2007 annual report to Congress the Ombudsman listed FBI names checks among the Department of Homeland Security’s “pervasive and serious” problems. He notes, “Resolving the FBI name check issue is included in the Ombudsman’s top five priorities posted on the office website.”
- FBI name checks “continue to significantly delay adjudication of immigration benefits for many customers, hinder backlog reduction 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, and the problem of long-pending FBI name check cases worsened during the reporting period.” (Underlines added.)
- The Ombudsman notes, “As of May 2007, USCIS reported a staggering 329,160 FBI names check cases pending with approximately 64 percent (211,341) of those cases pending more than 90 days and approximately 32 percent (106, 738) pending more than one year.”
- The Ombudsman also reveals, “During the reporting period, processing delays due to FBI name checks were an issue in approximately 25 percent of all written case problems received by the Ombudsman.”
Lawsuits Waste Tax Dollars and Divert the Attention of U.S. Attorneys Away From Criminal Prosecutions
- “Since 2005, the backlog of legal U.S. immigrants whose application for naturalization and other benefits are stuck on hold awaiting FBI name checks has doubled to 329,160, prompting a flood of lawsuits in federal courts…” (Washington Post, 6/17/2007)
- “U.S. Attorney for Colorado Troy Eid estimated that for the amount of time his staff has devoted this year to defending the FBI, it could “be putting 50 or more bad guys behind bars.” (Denver Post, 12/10/2006)
- Applicants are seeing that lawsuits get results, encouraging more litigation. A Department of Homeland Security memo reveals that the FBI considers a “lawsuit pending in Federal Court” as grounds for speeding up stalled background checks.” (Denver Post, 12/10/2006)
If There Are Real Security Concerns About These People, Lengthy Background Checks Do Not Serve the Public Good
- If it is a national security issue, an expedited process or a properly funded program would more quickly identify and remove threats.
- Background checks taking more than 120 days are neither efficient nor good for security.
- People applying for citizenship have already been in the country for at least 5 years. Additionally, they have already been subjected to extensive background checks when applying for permanent residency.
The FBI Maintains That the Reason For The Delay Is Expanded Requirements To Complete The Background Checks But Limited Resources
- According to FBI Director Mueller (3/05/2008), the agency received $20 million to help alleviate the delays. The agency has hired 220 contractors to speed up the process and expects to have the majority of the backlogged applicants cleared by July, 2008.
- FBI spokespeople routinely say the name check program is understaffed and inadequately funded.
- In a fact sheet released on August 10, 2007, DHS reports, “The Administration is investing substantial new funds to address the backlog, and the FBI and USCIS are working to reduce waiting times without sacrificing security.” However, USCIS has repeatedly made this promise since at least its 2004 Backlog Reduction Plan.
- In August, 2007, the United States Government Accountability Office (GAO) DHS progress report found that Immigrations Services’ performance expectations to reduce application times to six months and automate background checks were both “generally not achieved.”
Applicants for Citizenship Have Followed The Rules And Done Everything That Was Asked Of Them; The Government Is Failing Them
- “For now tens of thousands of legal residents remain in limbo, exacting a toll on them and their employers.” (Washington Post, 6/17/2007)
- Leaving people in a legal limbo for years is a sad return for the immigrant’s patriotism and belief in America’s democratic values.
- Leaving them in limbo and then putting them in a position where suing is the only way to get resolution is bad management, penalizes the applicant for the government’s failure to address citizenship delays and is expensive for both the new citizens and the government.
- The United States Citizenship and Immigration Service (USCIS) is the agency with overall responsibility for applications for naturalization.
- The Federal Bureau of Investigation is the agency responsible for conducting background checks on applicants for Naturalization.
- Before the attacks on September 11, USCIS had 3 months to complete a thorough background check on all applicants for citizenship. After the attacks on September 11, CIS required all applicants to obtain National Security Clearance, in addition to the standard background check it conducted, to obtain citizenship status.
- National Security Clearance checks are conducted by the FBI. In addition to the standard fingerprint check, the FBI runs the name of the person against another list of persons with criminal history. Names that produce “hits” do not necessarily mean that the person being searched has a criminal record, but that their name may have a spelling or sound match with someone who has a criminal record. If such a “hit” is produced, each record that is “hit” must be pulled up and examined to determine whether the individual being searched is the individual with the criminal record. According to the FBI, delays occur when several hits are produced, and in waiting or trying to locate the records that are “hit.”
- Consequently, the 3 month limit that USCIS had to conduct the background check was lifted. There is now no time limit to adhere to when conducting background checks. (Note: CIS still has a time limit on making a decision on an application – see 8 U.S.C. §1447(b)
- In December 21, 2006, Michael L. Aytes, Associate Director, Domestic Operations, USCIS, reported that an expedite request can be made by an official in the following circumstances: Military deployment; age-out cases not covered under the provision of the Child Status Protection Act (CSPA) and applications affected by sunset provisions such as Diversity Visas (DVs); compelling reasons as provided by the requesting office (e.g. critical medical conditions); and loss of social security benefits or other subsistence in the discretion of the District Director.
- USCIS’s failure to adjudicate the applications due to delays in “name checks” violates the Immigration and Nationality Act and the Administrative Procedures Act. The Administrative Procedures Act requires administrative agencies to conclude matters presented to them “within a reasonable time.” See 5 U.S.C. §555.
- Citizenship delays have a significant human impact. Many of those caught in this limbo have lost out on Social Security benefits, federal jobs and contracts, and cannot fully participate in civic life. Some have even been separated from spouses and children abroad because they cannot easily bring them to the United State, which can be an immense strain on a family.
- Are Muslims being targeted? It is hard to say. In its April, 2007 report Americans on Hold, the New York School of Law Center for Human Rights and Global Justice asserts, “Profiling in citizenship applications is part of a broader pattern of discrimination that has affected the rights of Muslims or those perceived to be Muslims to practice and manifest their religion.” During a January 17th, 2008 the House Judiciary Committee Subcommittee on Immigration, Citizenship, Refugees, Border Security and International Law on the issue of naturalization delays Illinois Coalition for Immigrant and Refugee Rights Policy Director Fred Tsao testified, “Immigrants from Russia, India, and disproportionately the Middle East now must endure waits of years for their names to clear.”