GREEN CARDS IN 180 DAYS?!

By Michael J. Gurfinkel, Esq.

        On February 4, 2008, the USCIS announced a dramatic policy change in the way it handles adjustment of status applications. From now on, “where the [adjustment of status] application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485 [adjustment of status application]… and proceed with the green card issuance.”

    By way of background, whenever a person is applying for adjustment of status (interviewed for a green card in the U.S.), the person is fingerprinted and their fingerprints are sent to the FBI for “clearance”. This means that the FBI checks its various databases to determine whether the person has any kind of criminal record or other kind of derogatory information that might affect the person’s eligibility for a green card. However, the FBI has sometimes taken a very long time to perform fingerprint checks. (After all, the FBI is already busy investigating terrorists and other major criminal matters, such that green card applicants are not a “high priority” compare to other more important matters).

    The USCIS’s previous policy was that it would not grant green cards to people unless and until the results of the FBI fingerprint clearance were received. But, if it took years for the FBI to finally get around to performing the fingerprint check, adjustment of status applicants would remain “in limbo”.

    This new USCIS policy states, in essence, a person’s fingerprints will be sent to the FBI, and if no response is received from the FBI within 180 days of submission, then the USCIS could go ahead and approve the adjustment of status and grant the green card (assuming there are no other grounds for ineligibility for the green card).

    If, once the FBI performs the fingerprint check, it is determined that a person is not eligible for the green card (i.e. a criminal record is discovered) then the USCIS could revoke the green card and start removal/deportation proceedings against the person. In other words, the USCIS could grant the green card, but if it later turns out that the person is not eligible, the green card could be taken away.

    This new 180 day policy for FBI processing of fingerprint clearance does not apply to naturalization applicants. This is because once a person is granted citizenship, the USCIS could not easily “revoke” citizenship and/or deport the person. The 180 day time limit applies only to immigrant’s applications.

    But still, this is welcome news, in that now many long-stagnating adjustment of status applications can finally be approved, since the USCIS no longer needs to wait for a definitive response from FBI. Of course this 180 day "approval" applies only to cases where: (a) a petition has been approved (whether family or employer), (b) the priority date is current, (c) the adjustment of status application has been filed, and (d) a person was fingerprinted more than 180 days ago.