By Parviz Malakouti-Fitzgerald, Esq.
This article is part of our series on mobility concept & strategy explainers
In the world of global mobility, “if you don’t have your docs, you can’t pack your socks.”
If you’re an American applying for second citizenship or residency, there’s a good chance you’ll have to submit an FBI background check as part of your document package. Sometimes it’s called a “rap sheet” or “criminal history.” The official name for the background check is an FBI Identity History Summary (“IdHS”).
Here, we’ll call it either the FBI IdHS or the FBI background check.
In this article, we’ll go over the important basics of what exactly the FBI IdHS is, the information it contains, who houses the records, how they get the information, and of course, most importantly how to make corrections, especially if they’ll benefit your second citizenship application.
Article Outline
The report typically spans 2-6 pages in length and sports an acronym-rich economy of expression that one might expect from the FBI. An explainer on how to decipher the acronyms can be found here.
Applicants who have walked the straight and narrow have two-page reports that state there is “no arrest data at the FBI” whereas freewheeling former frat boys may have four, five or six page reports.
An FBI IdHS from a subject with no criminal record. Hopefully yours looks like this.
How to Get your FBI IdHS
The three ways to get your FBI background check are a) by fingerprinting at an approved USPS location, b) via an FBI approved channeler or c) by mailing old fashioned paper fingerprint cards.
If you’re going to tussle with paper and ink, you’ll need an FD-1164 (shown below). Make sure you have plenty of wet paper towels and patience.
FD-1164
Step-by-step guides on how to order the report can be found here and here. Instructions to apostille the report can be found here.
FBI CJIS Administers Reports & Keeps Records
One can request their FBI IdHS from the FBI Criminal Justice Information Services (“CJIS”) Division, which, of course, is part of the FBI. The FBI in turn, is a sub-agency of the U.S. Department of Justice (“DOJ”).
The FBI CJIS houses the data on the FBI IdHS and receives the request for a copy of the FBI IdHS.
However, the FBI CJIS is not the source of the data appearing on the IdHS. The data on the FBI IdHS is submitted by local, state, and federal criminal justice agencies. These include law enforcement agencies, courts, prosecuting agencies, and parole agencies. This is an important point because if one seeks to correct any data relating to an arrest, charging or conviction on the FBI IdHS, the request for correction must be made to the criminal data repository for the state the criminal justice agency that submitted the data to the FBI CJIS is located in (for state-level criminal justice agencies). We'll explain this point further below and give an example.
How Your Information is Reported to the FBI CJIS
When a person is fingerprinted by a local, state or federal criminal justice agency, their criminal data (arrest, charge or conviction) is communicated to the FBI CJIS.
A typical example might be a person being arrested by the LA County Sheriff’s Department for reckless driving (VC § 23103(a))
The person arrested might be fingerprinted pursuant to the arrest. The arrest and fingerprint data would then be communicated to the California state-wide repository for criminal justice data, the CalDOJ, as well as to the FBI CJIS. It’s critical to understand how this data is reported to then understand how the data’s accuracy can be challenged and corrected after an expungement , vacatur, or other post-conviction dismissal (discussed below).
Information Included: Arrests, Charges, or Convictions?
The FBI IdHS comes with a watermarked copy of the seal of the FBI on the background of each page. To the surprise of many, the report does not typically come with a raised or embossed seal of any kind. It is printed on regular paper.
The person whose data is listed on the report is the “subject.” Subjects who have been arrested at least once may have a report that contains physical biological data such sex, race, height, weight, eye color and hair color, depending on the discretion of the reporting criminal justice agency (some report more information about physical attributes than others).
In theory, an FBI IdHS should include data related to arrests, charges, and the final disposition (whether conviction, dismissal, or acquittal at trial). However, in practice, sometimes the FBI IdHS will only contain arrest and charge data without the final disposition.
Below is an example of charging data from an FBI IdHS, with final disposition data. The California charge PC § 422(A) was dismissed “in the furtherance of justice” which basically means the charge was dismissed and there was not a conviction.
However, below is an example of charging data from an FBI IdHS without any final disposition data. On this report, there is no further mention of the charge whatsoever so the reader is left only knowing that there was an arrest and charge, but without any knowledge of whatever became of the charge.
For Americans applying for second citizenship and residency abroad, the office receiving the application (whether a citizenship by investment processing unit or a country’s citizenship affairs office) will usually rely on the “final disposition” or “minutes of hearing” to know what the final result of criminal charges were.
These are the court documents that show whether the charges resulted in a dismissal, acquittal at trial, conviction at trial or conviction pursuant to plea bargain. The name of this document can vary from court to court.
Strategy: Legal Opinion Letter
This combination of FBI idHS and court records requested for can be confusing to an adjudicator trying to decide whether an American should be granted or denied citizenship based on a criminal record. Most citizenship and residency adjudicators are not lawyers.
To that end, one tool that can be used to explain the arrest, charge, and conviction information in digestible terms is a legal opinion letter written by a lawyer from the jurisdiction of the arrest. Additionally, the legal opinion letter can also serve two other critical roles.
First, it can be used to include relevant positive information about the applicant’s history that can help color the adjudicator’s impression of what might otherwise be negative (criminal history) information.
Second, it can be used to compare the U.S. conviction to what would be the analogous conviction in the jurisdiction that is evaluating the second citizenship. A comparison of convictions is often required under the domestic law of the foreign country to determine whether an American applicant’s criminal record must result in a denial for his citizenship or residency application.
How to Correct an FBI IdHS
Sometimes FBI background checks need to be corrected because either a) wrong information was reported on them or b) there’s a new development on the subject’s case after the arrest, charge or conviction. A new development could be a pre-trial dismissal, acquittal at trial or an expungement or vacatur after a conviction.
A subject of the FBI background check has the right to challenge the accuracy of the data on the background check and request a correction.
It’s important to note that whether a post-conviction dismissal can be entirely removed from an FBI IdHS depends on the law of the jurisdiction (usually a U.S. state) in which the conviction occurred. The result is that in some cases, a conviction may be entirely removed from the FBI IdhS, whereas in other cases, it may only be possible to update the FBI IdHS to reflect the post-conviction dismissal.
Let’s take an example of a person with a state-level criminal arrest, charge and conviction. Johnny Livefast (“Johnny”), a U.S. citizen, is arrested, charged and convicted in California for DUI (VC § 23152(a)).
Throughout Johnny's brush with the legal system, the data related to Johnny’s arrest, charge and conviction was reported by various California criminal justice agencies Johnny comes into contact with to the FBI CJIS. Johnny then discovers his due process rights were violated in his California trial. He hires a lawyer who files a request to vacate his conviction (i.e. “clear” his record for having been wrongfully convicted) by filing a motion under PC § 1473.7.
Johnny’s motion to vacate is granted so the DUI conviction is dismissed.
Now, Johnny, turned off by his experience with the U.S. criminal justice system, wants to apply for citizenship by investment in another country. Unfortunately, his darn FBI IdHS still reflects the arrest, charge and conviction for DUI. He wants it cleared from his FBI IdHS so he has the best chance of approval for citizenship.
To have his FBI IdHS corrected, Johnny needs to request the correction from the CalDOJ first, then make sure the CalDOJ communicates the update to the FBI CJIS, who in turn will (ideally) correct Johnny’s FBI IdHS. With an updated accurate FBI IdHS.
Johnny now feels comfortable to apply for citizenship by investment.
In summary, to make a correction to the FBI IdHS and obtain a new copy for a foreign citizenship application, the steps are as follows:
Step 1 - Obtain the expungement, vacatur, record seal or other post-conviction relief of the conviction;
Step 2 - Request correction/update of the applicant’s record from the local or state criminal data repository (oftentimes the state's department of justice);
Step 3 - Request that the local or state law criminal data repository communicate the record correction to the FBI CJIS;
Step 4 - Request a new, updated FBI IdHS;
Step 5 - Apply for (and hopefully be approved) second citizenship and become a dual citizen.
Note: the FBI CJIS does have a process to challenge the FBI IdHS directly with CJIS. This is most applicable when the information challenged is pursuant to a federal arrest, charge or conviction. In my experience, the vast majority of Americans pursuing second citizenship with a criminal record have a state-level criminal conviction, which would require the correction process mentioned above in the case of Johnny Livefast.
Request Consultation with Malakouti Law
Updating the FBI IdHS is one of the strategies available to help Americans with a criminal record pursue second citizenship. There are other strategies as well.
At Malakouti Law, we help Americans pursue second citizenship options. To request a consultation, click here.
Frequently Asked Questions (FAQs)
Q: How long is the FBI IdHS?
A: Usually 2-6 pages, depending on the subject’s record.
Q: How long does it take to correct an FBI IdHS?
A: Depends on the person’s case, and the relevant jurisdiction. It can take several months.
Q: What’s the fastest way to get an FBI IdHS?
A: Via fingerprinting at a qualified USPS location.
Q: Can you have negative information removed from an FBI IdHS?
A: Generally only if the arrest or conviction is sealable in state of conviction. Sometimes, the FBI IdHS can only be corrected to reflect the dismissal, which can still be a strong advantage for the subject’s citizenship or residency application?
Q: Does every country require FBI IdHS from Americans for a citizenship or residency application?
A: No, but I won’t publicly list which countries do not require them.
Q: If I have a state-level arrest or conviction, can I request a correction of my FBI IdHS directly with the CJIS?
Technically, you can make the correction directly with the FBI IdHS but they will, in turn, only request guidance from the relevant state criminal data repository. In any case, the correction must be made from the relevant state-level criminal data repository and then communicated to the FBI IdHS.
Click here to read more about FBI background checks.
Each immigration and citizenship case is particular and you should consult with a qualified, licensed immigration lawyer about your case before taking any steps. The Law Office of Parviz Malakouti does not guarantee the accuracy of information presented nor assume responsibility for actions taken in reliance of this information. The information in this page could become outdated. Attorney marketing.