One of the most common questions we receive from clients is whether there is anything we can do to “speed up” either a security clearance investigation or the adjudication of a denial. Having held clearances myself, I empathize. The process is like watching paint dry.
The irony of the security clearance delay is not lost on me either – especially because most agencies demand rapid completion of the SF-86 form and even quicker appeals of denials. “Hurry up and wait” is how one of our clients aptly summed it up.
In some cases, the undue delays in investigation and adjudication work against the applicant. We have seen plenty of cleared jobs lost due to employers who couldn’t afford waiting any longer to fill the position. We also hear weekly stories from desperate applicants stuck in “Loss of Jurisdiction” status from an unresolved denial or JPAS incident report. Many of these individuals find themselves permanently locked out of their career field due to bureaucratic red tape.
Yet for those applicants who have issues in their background and an employer with patience, delays in the security clearance process can actually sometimes work to their favor. Here is how:
Time for Resolution
If you anticipate a clearance denial on, for example, financial grounds, the months of time during an investigation can provide the time necessary to get your financial house in order. For example, you can get on payment plans with creditors, dispute erroneous debts on your credit report, and get credit counseling. By the time you reach adjudication, you may have a sufficient track record established to demonstrate that the issues have been resolved.
Buying Time to Change Jobs
Although it is rare, there are times when a prospective client presents our firm with a denial case that he or she has virtually no chance of winning. When that happens, we feel it is our duty to provide a reality check to the applicant right off the bat. But in cases where the applicant is already employed with the hiring agency or company, the delay between an initial (proposed) denial and final adjudication can sometimes still be beneficial and worth the effort of a credible appeal. This is because the delay frequently affords the applicant time to have a meaningful conversation with their employer about lateraling into an un-cleared role. If a lateral move is not possible, the applicant often at least has the security of a paycheck pending final adjudication and while searching for a new job elsewhere.
Establishing Irrelevancy
The federal government has established a de facto policy that most (but not all) derogatory information that is more than 7 years old is irrelevant to a current security determination. Hence the 7 year reporting window for many issues on the SF-86 form.
In cases where the information occurred just inside that 7 year window, it is often now outside the reporting period at the time of adjudication. We have successfully argued irrelevancy in past cases on the grounds that had the applicant applied for his or her clearance now, he would not have even been required to report the information.
In one of our recent cases, the security conduct at issue was something that the government had been sitting on for literally five (5) years since it was first self-reported by the applicant. At trial, the government’s case quickly lost steam when we pointed out that the applicant’s conduct could not have presented the security risk the government claimed given that reality.
The bottom line here is that the circumstances of each case are unique and warrant an individualized analysis. But applicants who play their cards right will sometimes find that the federal bureaucracy is a useful problem.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
