Delay In The Age Of Security - Employee Green Card Woes

Tuesday, January 1, 2008 - 00:00

Many human resources representatives who handle immigration matters are well aware that dealing with the U.S. Citizenship and Immigration Services (USCIS) can be confusing and at times frustrating. The agency has volumes of regulations, policies, decisions and guidelines governing the admission and employment of foreign nationals. Understanding the agency's requirements can be an overwhelming task. In addition, the agency's decision process is often obscure, leaving employers and foreign nationals guessing about the procedures that affect them directly.

Added to the confusion is the baffling situation of the excessively long-delayed adjudication of green card and naturalization applications. Employers spend a lot of time and money to sponsor valued foreign national employees only to find that the last stage of the process (adjustment of status or "green" card) is bogged down within a quagmire of endless and seemingly unexplainable delay. Applicants for green cards can face delays up to seven years or more. From an HR perspective, the situation is frustrating: all of the employee's appropriate paperwork has been filed, but the USCIS simply refuses to act on the application. Employers and foreign nationals make inquires with the USCIS only to be told that their applications are being held up because of "security" issues.

What "security" issues? Many foreign nationals are upset by this response, because they know that they have never had any contacts with law enforcement. Just because a foreign national is caught in security clearance delays does not necessarily mean that the person has had problems with law enforcement authorities. In the vast majority of cases, it simply means that the foreign national's name matches in some way a name in an FBI administrative file. Only after the USCIS confirms that the foreign national is not the same individual who is listed in the FBI administrative file will the USCIS proceed with the adjudication of the green card or naturalization application. It sounds simple enough, so why does this process take so long?

Congress requires the USCIS to perform criminal background checks on foreign nationals applying to become permanent residents (green card holders) or naturalized citizens of the United States. In addition to the Congressionally mandated criminal background check, DHS performs two other background checks on foreign nationals applying for green cards or citizenship. The criminal background check is a relatively easy and fast check: the USCIS obtains a fingerprint impression from the foreign national and checks this fingerprint image against the FBI's Criminal Master File. This check is usually completed within 48 hours, as it is largely a computer automated system. The second type of check, the Interagency Border Inspection System (IBIS) check, is also very quick. The IBIS check is based on a database containing information from 26 different federal agencies that includes information on persons of "interest" to law enforcement. This check is usually completed immediately upon entering the foreign national's name into a computer database.

The problem arises with the third and final background check, known as the "name check." Although Congress does not require name checks, in 2002 legacy INS began requesting name checks for all green card and citizenship applications as part of its post-9/11 heightening of security. A "name check" is performed by taking every permutation of the foreign national's full name and comparing those various permutations against the FBI's "Universal Index," which references the FBI's Central Records System, a voluminous archive of administrative, personnel and investigative files. Of course, foreign nationals with common names will usually "match" an FBI file. In addition, a foreign national's name need not necessarily match a "main" file name, containing, for example, a suspect's name, but may match "reference" names, including informants and witnesses. Hence, the universe of possible matches is very large.

Although the FBI usually responds to a USCIS request for a name check within two weeks, if there is a "hit" or match between one or more permutations of the foreign national's name, a more extensive search must be completed. If a secondary search does not clear the foreign national's name, the USCIS requests a manual investigation of the relevant FBI case files. Since a "match" ultimately leads to a manual inspection of physical files. The process is time and labor intensive. One of the main reasons for the excessive delays in this arena is the lack of resources devoted to the manual inspection of files. To date, the USCIS and FBI currently have more than 340,000 cases in the name check backlog, according to the U.S. Citizenship and Immigration Services Ombudsman.

As a result, a foreign national stuck in the name check backlog can expect to wait a very long time - a matter of years - before expecting a final adjudication of his or her application for a green card or citizenship. In some cases, a final resolution never occurs. It is not unusual to find applicants with unresolved cases that are more than five years old.

Recently, the U.S. Citizenship and Immigration Services Ombudsman cited "name check" delays as a major problem for the agency in his 2007 annual report. The Ombudsman questioned the utility and effectiveness of the name check process, noting that "[n]ame check[s] are not conducted by the FBI as part of an ongoing investigation or from a need to learn more about an individual because of any threat or risk perceived by the FBI." Furthermore, the Ombudsman suggested that the name check program does not comply with DHS Secretary Chertoff's risk management modeling, because the cost of name checks far outweighs the purported national security benefit: "Considering the protection the FBI name check provides, the cost of government resources used, and mental and actual hardships to applicants and their families, USCIS should reassess the continuation of its policy to require FBI name checks in their current form." Notwithstanding the Ombudsman's criticism of the name check program, other high-level USCIS officials continue to support the process, so it appears that name checks will remain a part of green card and naturalization applications.

USCIS delays have become so excessive in this arena that many foreign nationals have sought relief in federal court. The Administrative Procedure Act of 1946 (APA), which governs federal agency actions and decisions, requires that an agency resolve a matter presented to it within a "reasonable" time frame. See 8 U.S.C. 555(b). Using the APA, foreign nationals have argued that waiting for two or more years for a decision on an immigration application is "unreasonable" under the statute. The cases are divided, but a majority of courts have agreed that making a foreign national wait years and years just for a decision on his or her application is unreasonable. As a result, many judges have ordered the FBI and USCIS to complete pending name check cases within 60 or 90 days where a foreign national has been waiting for two or more years. Some judges have noted that security concerns are not to be taken lightly, but this only reinforces the fact that such issues should be resolved in a matter of weeks as opposed to years.

The success or failure of litigation in this arena ultimately turns on the court's reading of a jurisdiction-stripping provision embedded in the Immigration and Nationality Act (INA), as amended by the Real ID Act of 2005. The INA precludes judicial review of any "decision or action" of the USCIS that is "specified [under INA] to be in the discretion" of the USCIS. See 8 U.S.C. 1252(a)(2)(B)(ii). In defending challenges to delayed applications, the U.S. Attorney's office has argued that the adjudication of a green card application, including the pace of adjudication, is committed to the sole discretion of the USCIS, because the INA specifies that a decision to approve or deny a green card application is within the discretion of the USCIS. See 8 U.S.C. 1255(a).

None of the circuit courts have ruled on this issue, but the relationship between USCIS delay and the role of the judiciary has become a "national judicial debate" at the district court level. See Saleem v. Keisler , 2007 U.S. Dist. LEXIS 80044 (W.D. Wis. Oct. 26, 2007). Some courts have bought the government's argument, holding that a discretionary "action" includes every interim action taken along the way leading up to an ultimate decision on an application. See Safadi v. Howard , 466 F.Supp. 2d 696, 699 (E.D. Vir. 2006). Under this theory, a stalled name check is simply action along the way to a final decision. The majority of courts have rejected this reading of the statute, holding that USCIS' discretion only applies to the ultimate decision on an application, not the pace of its adjudication. As one court stated, "it would require Orwellian twisting of the word ["action"] to conclude that it means a failure to adjudicate." Saleem v. Keisler, supra. Similarly, U.S. District Judge Stewart Dalzell recognized that the INA grants discretion to the USCIS to grant or deny a green card application, but "national security does not require that it also have absolute discretion to delay such an application to Dickensian lengths." Cao v. Upchurch , 496 F.Supp. 2d 569, 574 (E.D. Pa 2007). Put simply, "there is a difference between the [USCIS'] discretion over how to resolve an application and the [USCIS'] discretion over whether it resolves an application." Singh v. Still , 470 F. Supp. 2d 1064, 1068 (N.D. Cal. 2007).

The U.S. Attorney's office has also argued that the USCIS is not required to make a decision on green card or naturalization applications since the INA does not specify a time frame for the agency's decision. See Assadzadeh v. Mueller , 2007 U.S. Dist. LEXIS 80915 (E.D. Pa. Oct. 31, 2007). The government's argument is based on Norton v. So. Utah Wilderness Alliance , 542 U.S. 55 (2004), where the U.S. Supreme Court held that a plaintiff can succeed in compelling an agency to act under the APA if and only if the action sought to be compelled is a "discrete action" that the agency is "legally required" to take. Under the government's theory, the USCIS cannot be compelled to act where its organic statute fails to require it to make a decision. But, under Norton , an agency's regulation with the force of law can create a legal duty. Arguably, the USCIS is legally required to act on applications presented to it, as its own regulations provide that it inform applicants of its decisions. See 8 C.F.R. 245.2(a)(5)(i) (green card applications); 8 C.F.R. 316.14(b)(1) (naturalization applications). Most judges in the Eastern District of Pennsylvania appear to accept this argument. For example, in Kaplan v. Chertoff , 481 F. Supp. 2d 370, 399 (E.D. Pa. 2007), Judge Eduardo Robreno held that the USCIS has a duty to adjudicate green card and naturalization applications, based, in part, on the agency's own regulations.

Once a court determines that its jurisdiction is not stripped under the INA, it usually faces little difficulty finding a cause of action under the APA. Of course, determining whether an agency has acted unreasonably is a fact-intensive inquiry, but the government's position does not look promising where the USCIS has failed to perform three distinct background checks for two or more years without any indication of special circumstances. See, e.g., Saleem v. Keisler, supra . The government has argued that flagging agency resources are to blame, but many courts find little sympathy for such posturing. In addressing the issue of agency resources, one court stated that the USCIS should take its complaints up with Congress. See Liang v. Attorney General , 07-cv-2349-CW (N.D. Cal. Oct. 30, 2007). "The executive branch must decide for itself how best to meet its statutory duties; this Court can only decide whether or not those duties have been met." Id . Even factoring in flagging appropriations, the court held that a two-and-a-half-year delay is unreasonable as a matter of law. Id .

With more than 340,000 cases in the name check backlog, it is not clear when some foreign nationals will ever have their cases resolved at the agency level. At least with the advantageous decisions handed down from the federal district courts, foreign nationals have the hope of going into court to request an expeditious resolution to their name checks. In the majority of situations, it appears that litigation is the only option, but at least an option exists.

Geoffrey Forney is an Associate in WolfBlock's Employment Services Practice Group and is a member of the group's Immigration Services Team. Geoffrey handles all aspects of immigration and nationality law, including employment- and family-based immigration, removal (deportation) defense and asylum.

Please email the author at gforney@wolfblock.com with questions about this article.