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In a February 4, 2008 USCIS memorandum, "Revised National Security Adjudication and Reporting Requirements," Michael Aytes, Associate Director of USCIS, announced a major shift in the agency's approach to FBI name checks of pending applications. According to the memo, after a FBI fingerprint and IBIS check have been completed, and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the application and proceed with the card issuance. This new procedure will apply to Applications for Adjustment of Status (I-485); Applications for Waiver of ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687), or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698). USCIS will still require name check clearance for Applications for Naturalization (N-400).

The memo does not indicate that the new policy only applies prospectively. Therefore, the memo affects all applicants whose FBI name check requests have been pending for 180 days. This group also includes applicants with pending district court or court of appeals actions challenging delays in the adjudication of applications.

All applicants with pending court actions to which the memo applies may contact the attorney representing the government in their case and ask that he or she agree to a stipulated remand. If possible, try to include in the stipulated remand to USCIS an agreed-upon time period in which the application will be adjudicated by the agency. Without a timeframe for adjudication, the client could experience another long delay before the agency. If the government does not agree to a remand with a specific agreed-upon timeframe, it may still be a good idea to move the court to remand the case to USCIS for adjudication within a specific timeframe or to ask the court to hold the case in abeyance until USCIS has a reasonable opportunity to implement the new policy by adjudicating your client's case. You will want to demonstrate in the motion that all prerequisites for immediate adjudication under the new policy have been met: 1) the application is covered by the memo, e.g., it is an Application for Adjustment of Status (I-485); 2) the FBI and IBIS check have been completed and; 3) the FBI name check request has been pending for 180 days.

USCIS has informed AILA that it already has begun to identify these cases and hopes to have taken action on them by April 30, 2008. USCIS also has asked AILA members not to submit liaison requests about these cases until after April 30, 2008 to give it time to identify and adjudicate these cases. Applicants who have not filed district court actions, but otherwise meet the requirements outlined in the memo, may wish to send a demand letter to the agency with the memo attached requesting immediate adjudication of their application if they have not heard anything by April 30, 2008. This demand letter may cause the agency to move more quickly to adjudicate the application. If it does not instigate action, the letter may be helpful if the applicant then decides to file a mandamus/APA action because the agency is not implementing its new policy.

If an applicant is unsure whether the delay in the adjudication of his or her application is caused by FBI name check delays, it may still be a good idea to send a demand letter to USCIS with the memo attached.