L179

. SECURITY NAME CHECKS (ALSO CALLED BACKGROUND CHECKS)
For public safety & welfare and national security reasons, all visa petitions under current regulation and procedure are placed through security name checks at three (3) locations: 1. USCIS office, 2. National Visa Center (NVC) and 3. the U.S. Consulate where the visa is ultimately issued.
There can be not one but several levels of security checking: There is an initial security name check done rountinely on all in-coming petitions. If the results produce a "lookout hit" or "red flag hit", the petition is placed in line for additional more intensive customized security screening, which could include a request for full fingerprints and which obviously has the undesirable effect of extending processing time for adjudication. While security checking is widely focused on the visa beneficiary, petitioners and even attorneys and consultants involved in a case are subject to security screening.
A Lookout Hit or Red Flag Hit can be generated on a visa petition, among other reasons, for any the following:
*Past arrest record
*Past criminal conviction record
*Past firearms record
*Past record of domestic violence or sexual offenses
*Past fingerprint record with any law enforcement agency
*Past visa or immigration history
*Watch List or Pending Charges "Hit": Petitioner or Beneficiary is currently on watch list or wanted on pending charges with any law enforcement or other government agency, (local, state, federal, FBI, INTERPOL, Homeland Security, State Department designated terrorist group list)
*Common or Similar Last Name with others in the database who have
past arrest or conviction records (sometimes called a "False Hit")
Under post 09-11 legislation such as USA Patriot Act, Border Security Act and Intelligence Reform Act, our Immigration Service, the Consulates, and Customs and Border Protection, have worked to significantly upgrade their technological capabilites, increase inter-agency data-sharing and coordinate investigative activities. The current policy directive is "zero tolerance" policy for security issues. The on-going U.S.Visit program is one example. Another important example is the implementation of a critical software upgrade which effectively links up Immigration and Consular databases with many local law enforcement data bases and the FBI criminal database.
Obviously, any security name check is only as good as the accuracy and completeness of the database upon which the check the done. Here is a sample of the principal databases upon which an immigration and consular security check can be done currently:
*NCIC (National Crime Information Center)(also called FBI criminal database)
*IBIS (Interagency Border Inspection System)
[Click Here for More Information on Security Checks with IBIS.]
*NIIS (Non-Immigrant Information System)
*CLASS (Consular Lookout and Support System)(This name-check database
in particular has been greatly expanded, now storing up to 18 million records.)
*CCD ( Consular Consolidated Date Base)(Stores 75 million records of past visa applications and outcomes)
*TIPOFF (Classified DOS Bureau of Intelligence database)
*NAILS (National Automated Immigration Lookout System)
*TECS II (Treasury Enforcement and Communucation System)
*TSC and TTIC databases (DOS Terrorist Screening system)
At USCIS (Homeland Security Department) stage, currently, NCIC, IBIS and NIIS database checks are done, with the option, if warranted, to do additional database checks.
At National Visa Center (State Department) stage, a separate independent NCIC database check is done by in-house FBI staff in connection with information supplied in the DS-230. Based on results, NVC has the option to request full fingerprints to be taken at post. NVC checks can usually be completed in 24 hours. In some limited cases involving high-risk visa applicants meeting certain specific criteria, NVC also does Security Advisory Opinions (SOAs) before sending the file to Consular Post.
At Consular stage, there are three (3) Visa Security name checks done: CONDOR, MANTIS AND MORE ANOTHER NCIC (via CLASS)
[Consulate has option, if warranted, to run full gamut of checks, such as CCD (past visa applications & results), TIPOFF (DOS Bureau of Intelligence), NAILS (Nat'l Automated Immigration Lookout System), TECS II (Treasury Dept. database), TSC & TTIC (DOS Terrorist screening)].
CONDOR refers to a check done mostly of information supplied on Form DS-157, and focuses on visa applicants with a potential terrorist, firearms or weapons background. CONDOR in most cases should be completed in 90 days or less. If not, contact the VO Public Inquiry line at Tel: 202-663-1225 or usvisa@state.gov
MANTIS refers to when potentially sensitive technologies might be used by the visa applicant in her visit to the U.S. If the visa applicant might employ a "critical-fields" technology in the U.S. which could have a "dual-use" such military or national security application, this check will be done to screen out a high-risk applicant. Most MANTIS checks can be done in 30 days. If not, contact the SAO Problem Resolution Unit at saoinquiries@state.gov.
NCIC (via CLASS) refers to the name check procedure done by the Consulate with the NCIC criminal database at FBI. This procedure screens visa applicants by name to see if there is a "hit" with the criminal database: that is, a person in the criminal database has the same or very similar name to the visa applicant.
"False Hits" Problem: Consular posts however have recently been inundated with "false hits" from 7 million new names added to the NCIC database, including persons with convictions for minor offenses such as simple DUIs and shoplifting. Many visa applicants with common names with those in the database get a "false hit": the refers to when a visa applicant's name matches a name in the datebase but is NOT actually that same person in the database, just a person with a common or very similar name. This places the case into what is called "Administrative Review". Under current rules, the Consulate is required in this circumstance to receive full clearance from FBI (via the NVC) before Consulate can issue the visa. It may require a full fingerprint check and customized investigation. Full clearance from FBI (via the NVC) in most cases can take 4 to 6 weeks, but in some cases much longer and even months.
"False hits" have become a major problem for some visa applicants. There are reportedly an alarming number of false hits caused by similar or identical or very similar names, or errors, inconsistencies or discrepencies in listed names in official documents. This is true especially in countries, such as the Latin countries, where there are only a few surnames and name-similarity is common, or record-keeping accuracy in official documents is dubious. Reportedly, approximately half of all names in the NCIC database are Latino, and this has resulted in a high number of false hits for individuals with common or very similar last names at Consulates in the Latin countries. Applicants presently are not allowed the opportunity to prove that they are not the same person as that on the database, nor is there a way to initiate security checking in advance of the visa application.
Thus, the best protection for visa applicants to avoid name check problems and delays resulting from Administrative Review at the Consulates and USCIS is: providing full, accurate and truthful name information (first, last, middle, and other) in all forms and documents, timely submission of local police clearance reports and promptly complying with any request for full fingerprints.
*SPECIAL NOTE ON EFFORTS TO AVOID OR CIRCUMVENT "FALSE HIT" BACKGROUND SECURITY CHECK*: Except in the most extra-ordinary circumstances, advance efforts to avoid or circumvent "false hit" before it happens, or complete a background security check in advance, such early submission to the Consulate of the DS-156 and DS-157 or police, arrest or fingerprint records, will probably not be fruitful. As stated by AILA: "Although attorneys have attempted to be pro-active and expedite the process by submitting copies of arrest records, final court-dispositions and attorney-initiated FBI results [and DS-156 and 157], at the initial visa application, consular officers are required to obtain fingerprints in a NCIC name check "hit". Once a post has received a response from the FBI via the National Visa Center (NVC), it may at the consular officer's discretion accept documentation from the applicant that matches the extract provided by the FBI. However, consular posts will not accept submission of all related documents in lieu of initiating required security checks and fingerprinting." See 22 CFR Section 41.105(B)(2), and "DOS Answers to AILA's Questions" (Oct. 02, 2002), published on AILA InfoNet at Doc. No. 02100340 (posted Oct. 03, 2002).
*SPECIAL NOTE ON NEW SOFTWARE TO EXPEDITE "FALSE HIT" CLEARANCES*: Department of State (DOS) has initiated worldwide deployment of new computer software that is expected to greatly reduced the clearance time for applicants who have been the subject of "false hits" in the visa security check process. The new software will allow posts to capture the applicant's digital fingerprints and check them electronically with the FBI's NCIC database within 24 hours. DOS has launched this new software through a pilot program at consular posts in Mexico City, and reports that the pilot program has been able to clear "false hits" in as little as same day (sometimes in one or two hours). Worldwide deployment of the new software to expected to be finalized once the Technical Communications Security Office approves the program. See "DOS Answers to AILA'S Questions" (March 23, 2006), published on AILA InfoNet at Doc. No. 06041060 (posted Apr. 10, 2006).
II. ADMINISTRATIVE REVIEW
"Administrative Review" refers to a Consular Official placing the case "on hold" because the Visa Petitioner or Beneficiary FAILED TO PASS the security name check or background check, or because the Consulate or State Department or Homeland Security NEEDS TO INVESTIGATE some issue or matter in the case more closely. Cases placed into Administrative Review can ADD WEEKS OR EVEN MONTHS to processing time and final decision on visa issuance, typically in most cases AT LEAST 4 to 8 weeks additional time. Under current regulation, there is no right of appeal within State Department or Homeland Security for administrative review status. It is suggested that visa petitioners and beneficiaries keep track of the status of their case as best as possible, and secure, if possible, the reason or reasons their case has been placed into administrative review, which at least helps to relieve some anxiety during the waiting time.
**STATUS CHECK OF CASES IN ADMINISTRATIVE REVIEW: Status Checks of cases in administrative review should first be addressed to the Consulate in question. Click Here for List of Consulates. The State Department's Office of Visa Services can also assist in status checking of cases which are unusually delayed. Tel: 202-663-1225 (Punch 1, Then 0, Avg. Wait Time Approx. 15 minutes to Speak with a Live "Visa Specialist", ET 8:30 AM to 5:00PM). E-Mail: usvisa@state.gov Click Here for More Information. For people who want to be active during the painful waiting period, especially if it becomes protracted, here are two suggestions: 1. Request in Writing Information from Immigration Service and the State Department under the Freedom of Information Act (FOIA) regarding the reason for the Administrative Delay. See: USCIS Freedom of Information Act Request. and State Department Freedom of Information Request. 2. Order the Visa Applicant's FBI record directly from the FBI and have it ready in case the Embassy requests same. See: FBI Criminal History Record.
**WRIT OF MANDAMUS: What is this Writ and How is it Obtained?
"Writ of Mandamus" refes to a federal court order signed by a federal district judge which directs the Consular Official in the State Department's U.S. Consulate abroad to decide whether to issue a visa or not within a short time. It is appropriate ONLY in a limited number of extra-ordinary cases, where the visa applicant's waiting time has been extremely long. It requires that the U.S. Citizen Visa Petitioner be prepared to spend the time, effort and money to file a federal court lawsuit, namely, an Action for Writ of Mandamus, in the District Court where the Petitioner resides. It is also generally required that reasonable documented efforts be made with Immigration Service or U.S. Consulate and State Department BEFORE filing suit in court.
As explained by the U.S. Court of Appeals, 9th Circuit:
"Mandamus is an extraordinary remedy and is available to compel a federal official to perform a duty only if: (1) the individual's claim is clear and certain; (2) the official's duty is nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt, and (3) no other adequate remedy is available. Azurin v. Von Raab, 803 F.2d 993, 995 (9th Cir.1986)."
A Writ of Mandamus is usually not appropriate for a Visa Petitioner and Applicant whose case has been placed into Administrative Review for only a few days, weeks or even months. However, it may be appropriate for a case which has been waiting for many, many months and even years. See: Patel v. Reno (U.S. Court of Appeals, 9th Cir., No. 96-55359a, Jan. 16, 1998)(Court issues Writ of Mandamus to Consular Officials at U.S. Consulate in Bombay, India because "consulate had a duty to act" when Petitioner's family visa applications were under administrative review for EIGHT (8) years without decision). For more general information, see: Writ of Mandamus Process Practice Advisory from AILF.
*INTERNATIONAL MARRIAGE BROKER REGULATION ACT ("IMBRA")*: Security Name Checks at USCIS and the Consulates have reportedly intensified due to the passage of IMBRA, which effectively requires more security checks of both Petitioner and Beneficiary, including check for Abuse Protections Orders, court-restraining or "no-contact" orders and past domestic violence history, and a check on the number of a past K Visa petitions a Petitioner has submitted.
For more on IMBRA, see: IMBRA