FBI Name Check

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The FBI Name Check is a background check procedure performed by the Federal Bureau of Investigation for federal agencies, components within the legislative, judicial, and executive branches of the federal government; foreign police and intelligence agencies; and state and local law enforcement agencies within the criminal justice system. The FBI Name Check is performed by the FBI as a part of the National Name Check Program, which dates back to Executive Order 10450 that was issued during the Eisenhower Administration. [1] The FBI Name Check for an individual involves a search of the FBI's Central Records System Universal Index for any appearance of the name of the individual, as well as close phonetic variants and permutations of that name, in any of the records stored in the Universal Index. If any such occurrences are found, the Name Check also involves retrieval and analysis of the relevant paper and electronic files from local FBI offices and from other law-enforcement agencies.

Contents

FBI Name Checks are performed in relation to government employment and appointments, security clearances, admissions to the bar, attending White House functions, federal and state criminal investigations, counterintelligence and counterterrorism activities as well as applications for visas, green cards, and for naturalization.

One of the biggest customers of the National Name Check Program (NNCP) is USCIS (formerly INS) which, since late 2002 requires comprehensive FBI Name Checks for all applicants for permanent residence (green card) and for naturalization.

Details of the FBI name check process

The FBI website and congressional testimony by the FBI officials [2] [3] provide a detailed step-by-step description of the Name Check Process:

Use of name checks for immigration purposes

There is no federal law that specifically requires that FBI Name Check be used for any type of immigration benefits. Federal law does require that applicants for various types of immigration benefits undergo background checks, but the specific procedures to be used are not explicitly mandated. The specific procedures to be used are determined by USCIS (not the FBI) as a matter of internal policy.

Until 2002 INS used a limited form of a Name Check for applicants for asylum, permanent resident status, and naturalization: the applicant's fingerprints were checked against existing criminal databases for records of arrests and criminal convictions, and UNI was searched for "main files" to determine if the applicant has been the target of an FBI investigation. In late 2002 INS discovered a case where an individual, who has been naturalized, was involved, as a secondary party, in a terrorism investigation. [5] Subsequently, INS changed its policy and started requiring that maximally comprehensive FBI Name Check, including the search and detailed examination of all the "reference files", be completed for all naturalization applicants before their applications are granted. Soon thereafter a similar policy was adopted for the adjustment of status and asylum applicants. [6]

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. [7] [8] [9] [10]

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 criticized the USCIS policy. [8] [11] [12] [13] The lawsuits have been widely reported in the press and have been discussed in various congressional hearings. [8] [14] [15] [16] [17] [18]

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". [19] 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. [20]

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. [21] Most people affected by FBI Name Check delays are already authorized to work and stay in the United States 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 United States 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." [8]

A similar point is raised in the 2007 annual report of the CIS Ombudsman. [22]

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. [23]

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. [24]

Recent developments

February 2008 USCIS policy change

In a February 4, 2008 memorandum, Michael Aytes, Director of Domestic Operations at USCIS, announced a change in policy regarding FBI Name Checks in relation to the adjustment of status (green card) applicants. [25] Under the new policy, if a Name Check for an adjustment of status applicant has been pending for over 180 days, USCIS may approve the adjustment of status application. The FBI Name check will still be required to be completed in such cases and, if upon completion of the check, serious adverse information is discovered, USCIS may revoke the green card of the individual in question and may deport that individual. Naturalization applications are not affected by this change in policy. For these applications the FBI Name Check is still required to be completed before an application is approved. [26]

In a March 3, 2008 round table DHS Secretary Michael Chertoff put forward the rationale for this policy change by stating that the new policy poses minimal risk to national security while providing relief to thousands of law-abiding green card applicants. [27]

USCIS officials stated that the new policy does not apply to citizenship applications since it is much harder to revoke a naturalization than a green card. [28]

Joint USCIS–FBI effort on reducing the Name Check backlog

On April 2, 2008, USCIS and FBI announced a joint plan eliminating the backlog of FBI Name Checks [29] The plan calls for putting additional resources into processing of FBI Name Checks requested by the USCIS and sets the following Name Check backlog elimination schedule:

Immigration advocacy groups welcomed this effort but expressed skepticism that the timetable for backlog reduction set by USCIS and FBI is realistic. [30] On September 9, 2008, the CIS Ombudsman announced that USCIS and FBI have met the goal of processing all FBI name checks pending for more than two years by July 2008. [31]

See also

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References

  1. ↑ National Name Check Program. Federal Bureau of Investigation. Accessed May 4, 2008
  2. ↑ Testimony of Robert J. Garrity, Jr., Acting Assistant Director, Records Management Division, FBI Before the House of Representatives, Committee on Government Reform. July 10, 2003 "The FBI's VISA Name Check Process". Federal Bureau of Investigation. Accessed May 4, 2008.
  3. ↑ Testimony of Robert J. Garrity, Jr., Deputy Assistant Director, Records Management Division, FBI Before the House of Representatives, Committee on Science. February 25, 2004. Federal Bureau of Investigation. Accessed May 4, 2008.
  4. ↑ Testimony of Robert J. Garrity, Jr., Deputy Assistant Director, Records Management Division, FBI Before the House of Representatives, Committee on Science. February 25, 2004. Federal Bureau of Investigation. Accessed May 4, 2008. Quote: "By way of explanation, a main file name is that of an individual who is, himself, the subject of an FBI investigation, whereas a reference is someone whose name appears in an FBI investigation. References may be associates, witnesses, conspirators, or a myriad of other reasons may exist to explain why an FBI Agent believed it important to index a particular name in an investigation for later recovery. The names are searched in a multitude of combinations, switching the order of first, last, middle names, as well as combinations with just the first and last, first and middle, and so on. It also searches different phonetic spelling variations of the names, especially important considering that many names in our indices have been transliterated from a language other than English."
  5. ↑ "FBI Name Check Cited In Naturalization Delays", The Washington Post , June 17, 2007. Accessed May 4, 2008. Quote: "FBI name checks, in particular, were intensified after errors and a lack of cooperation between the FBI and immigration authorities in Newark led to the October 2002 naturalization of a man suspected of ties to Hezbollah, which is designated a terrorist group. A policy decision was made to check applicants' names not only against the list of individuals under investigation by the FBI but also against the list of those named in investigative files for any reason".
  6. ↑ A Review of U.S. Citizenship and Immigration Services' Alien Security Checks. DHS Office Inspector General Report. November 2005. Archived 2011-08-13 at the Wayback Machine Department of Homeland Security. Accessed May 4, 2008.; pages 4, 11
  7. ↑ "One family's nightmare", USA Today , September 26, 2007
  8. 1 2 3 4 "Citizenship path sometimes rocky", The Philadelphia Inquirer , February 5, 2008
  9. ↑ OUR VAST IMMIGRATION BACKLOG. New York Post . June 27, 2007. Accessed May 4, 2008
  10. ↑ FBI name checks blamed for immigration benefits delays Archived 2008-03-20 at the Wayback Machine Government Executive. June 22, 2007. Accessed May 4, 2008
  11. ↑ Lauren E. Sasser, "Waiting in Immigration Limbo: The Federal Court Split over Suits to Compel Action on Stalled Adjustment of Status Applications Archived May 22, 2011, at the Wayback Machine ", Fordham Law Review. Vol. 76, No. 5. April 2008. Accessed May 5, 2008
  12. ↑ Naturalizations Delay Litigation. Archived April 12, 2008, at the Wayback Machine American Immigration Law Foundation, Accessed May 4, 2008.
  13. ↑ Victor Mocanu v. Robert S. Mueller, et al. Archived 2008-11-21 at the Wayback Machine www.bibdaily.com. Accessed May 4, 2008
  14. ↑ Yemeni in Newport News takes U.S. citizenship case to court", The Virginian-Pilot , January 8, 2005. Accessed May 4, 2008
  15. ↑ "Wrong name, a long wait?" Deseret News , November 13, 2006. Accessed May 4, 2008
  16. ↑ "Immigrants' lives in limbo", Dallas Morning News , March 15, 2006. Accessed May 4, 2008
  17. ↑ "Immigrants file lawsuits over citizenship delays Archived September 7, 2008, at the Wayback Machine ", Seattle Times , July 8, 2007. Accessed May 4, 2008
  18. ↑ Lawsuit Loosens Citizenship Backlog Archived April 25, 2008, at the Wayback Machine Tampa Bay Online, April 19, 2008. Accessed May 4, 2008
  19. ↑ CIS Ombudsman's 2007 Annual Report to Congress, Report Highlights Accessed February 27, 2008
  20. ↑ "FBI Name Check Cited In Naturalization Delays", The Washington Post , June 17, 2007. Accessed May 4, 2008.
  21. ↑ FBI name checks blamed for immigration benefits delays Archived 2008-03-20 at the Wayback Machine , Government Executive, June 22, 2007. Accessed February 28, 2008
  22. ↑ "CIS Ombudsman's 2007 Annual Report to Congress Archived 2011-05-28 at the Wayback Machine ", Accessed February 28, 2008. From page 10: "The Ombudsman agrees with the assessment of many case workers and supervisors at USCIS field offices and service centers that the FBI name check process has limited value to public safety or national security, especially because in almost every case the applicant is in the United States during the name check process, living or working without restriction".
  23. ↑ A Review of U.S. Citizenship and Immigration Services' Alien Security Checks. DHS Office Inspector General Report. November 2005. Archived 2011-08-13 at the Wayback Machine Department of Homeland Security. Accessed May 4, 2008.
  24. ↑ RESPONSE TO THE CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN'S 2006 REPORT. Department of Homeland Security. Accessed May 4, 2008
  25. ↑ Interoffice Memorandum: Revised National Security Adjudication and Reporting Requirements. Archived 2008-05-18 at the Wayback Machine USCIS. February 4, 2008. Accessed May 4, 2008
  26. ↑ USCIS Q&A on the Name Check Policy Change. February 28, 2008. Archived December 6, 2008, at the Wayback Machine USCIS. Accessed May 4, 2008
  27. ↑ "Remarks by Homeland Security Secretary Michael Chertoff at Roundtable With Bloggers Archived 2012-02-12 at the Wayback Machine ". Department of Homeland Security. March 3, 2008. Accessed May 4, 2008. Quote: "Now why did we do that—because I got criticized, "Oh, you're sacrificing national security". Here's why. First of all, if you haven't been—if it's going to take longer than six months, it's clear that you're not on a Terrorist Watch List, you haven't been convicted of a crime, you haven't been indicted for a crime. In other words, most of the major things you would worry about—it's a very easy thing to determine whether you've had a problem or not. What you're not going to get in that six months is the guy whose name came up in a file somewhere. And the vast majority of those are benign mentions. Secondly, you're here. If you're going to do something bad, you're still here legally. The green card—it's not like we're bringing you in from overseas. So if you think about it logically, the risk of giving you the green card with the understanding that it can be pulled away if something turns up, it's a minimal risk. It's a minimal, marginal risk. Whereas the customer service value of giving someone the green card is high. That's an example of trying to be more cost-benefit in the system."
  28. ↑ U.S. to Skirt Green-Card Check. The Washington Post . February 12, 2008. Accessed May 4, 2004.
  29. ↑ USCIS and FBI Release Joint Plan to Eliminate Backlog of FBI Name Checks Archived December 6, 2008, at the Wayback Machine ", USCIS. April 2, 2008. Accessed May 4, 2008.
  30. ↑ Lawsuit Loosens Citizenship Backlog. Archived April 25, 2008, at the Wayback Machine Tampa Tribune . April 19, 2008. Accessed May 4, 2008.
  31. ↑ Update on Pending FBI Name Checks and Projected Naturalization Processing Times. Archived 2012-02-21 at the Wayback Machine Press release, Department of Homeland Security, September 9, 2008. Accessed September 10, 2008
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