My Background Check is taking forever!

Question: I am in removal proceedings and the case has been delayed for them to do some type of security/background check. Can you let me know what is going on?

Answer: The regulations help ensure that persons who are seeking relief from removal, such as adjustment of status to that of lawful permanent resident, cancellation of removal, withholding of removal, asylum, or other relief described in the regulations, are eligible for the benefit that they seek and do not pose a threat to national security or public safety. The regulations also provide that failures of a person in removal proceedings to provide required biometrics and biographical information to DHS within the time specified by the immigration judge, except for good cause, will constitute abandonment of pending applications for relief or protection from removal. EOIR immigration judges and the Board of Immigration Appeals (BIA) cannot grant any of the forms of relief covered by the regulations until the Department of Homeland Security (DHS) reports that the required identity, background and security checks have been completed.

Question: What procedures has DHS implemented to ensure that the identity, background and security checks are completed and do not delay the EOIR proceedings?

Answer: Since April 1, 2005, the Immigration and Customs Enforcement (ICE) attorney provides written instructions at the Master Calendar hearing to persons in deportation proceedings, and their representatives, who express their intent to file certain applications for relief that, if granted, would lead to attaining permanent residence, asylum, withholding of removal, or certain other benefits. These pre-order instructions inform the individual that he or she must submit copies of the specified applications to either the USCIS Texas or Nebraska Service Centers, as indicated in the instructions, pay any relevant application and biometric fees, and attend an appointment at a USCIS Application Support Center (ASC) for biometrics collection. USCIS will send the individual an application receipt notice (often called a “fee notice” where fees are required) and an ASC biometrics appointment notice after receipt of the application. Once the individual provides biometrics, USCIS will send the fingerprints to the Federal Bureau of Investigation (FBI) for criminal history checks. ICE will have access to the results of those criminal history checks. USCIS also will initiate other checks in advance of the EOIR merits hearing for an applicant. ICE will ensure that the remainder of the background checks, such as checks of the Interagency Border Inspection System (IBIS), has been conducted before EOIR is ready to decide the case. By initiating these checks as soon as possible after the alien submits the copies of the applications to USCIS and provides biometrics, DHS anticipates that significant delays in the EOIR proceedings will be avoided in the vast majority of cases.

Question: What are the principal applications that must be submitted to the USCIS service centers? Can I also submit copies of applications for Section 212(c) waivers and for other waivers of grounds of inadmissibility that I must file with EOIR?

Answer: Copies (without supporting documentation), not originals, of the following applications must be submitted to the USCIS Texas Service Center, with the appropriate application and biometric fees: Form I-485 (Application to Register Permanent Residence or Adjust Status); Form EOIR-40 (Application for Suspension of Deportation); Form EOIR-42A(Application for Cancellation of Removal for Certain Permanent Residents); Form EOIR-42B(Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents); Form I-881 (Application for Suspension of Deportation or Special Rule Cancellation of Removal); Form I-191 (Application for Advance Permission to Return to Unrelinquished Domicile); Form I-601 (Application for Waiver of Grounds of Excludability); and Form I-602 (Application by Refugee for Waiver of Grounds of Excludability).

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Brian D. Lerner is a Certified Specialist in Immigration and Nationality Law by the California State Bar Board of Legal Specialization. He is admitted to the U.S. Supreme Court and the 1^st, 2^nd, 3^rd, 4^th, 5th, 6^th, 8^th, 9^th, 10^th and 11^th Circuit Courts of Appeal. He is also admitted to the California Supreme Court. This firm handles cases both nationally and worldwide. This firm does every aspect of immigration law including family and employment based petitions, deportation defense and criminal related immigration issues, asylum, naturalization, citizenship, appeals, nonimmigrant visas, immigrant visas, and all other areas of immigration law. An appointment can be made by calling (866) 495-0554 or (562) 495-0554. The Firm website is www.eimmigration.org.