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Before You Apply: Understanding Government Background Checks
Security Clearance Adjudicative Process
Drug Use and Bad Debt
Honesty is the Best Policy
Avoiding Conflicts of Interest
About the Department of Justice
About the U.S. Attorney’s Office
Speak with a CDO Counselor
Every year, many Yale Law School students apply for summer, permanent, and volunteer legal positions with various agencies in the U.S. government, including the Central Intelligence Agency and the Departments of Defense, Energy, Justice, State, Treasury, and Veteran’s Affairs. Applicants for these positions are required to complete a questionnaire and undergo a suitability review and, for some positions, a security clearance. The vast majority of students will have no problems with these requirements and many of the issues other students have encountered can be avoided with a little advance preparation. The more you know about the process, the less confusing it will be.
All applicants for federal positions, including summer interns and volunteers, must undergo a suitability review. Suitability differs from assessing whether a person is qualified for a federal job in terms of experience, education, knowledge, and skills. The suitability review is an evaluation of a person’s character traits and conduct to decide whether that individual is likely to act with integrity and efficiency in their job (e.g. should an individual who violated the law by using drugs be allowed to work for an agency whose responsibility is to enforce the law?).
The agency first determines whether a position is sensitive or non-sensitive. If it is non-sensitive, the agency then designates position as Low, Moderate, or High Risk, depending on the position’s potential for adverse impact to the integrity and efficiency of that office. Low Risk positions involve duties that have limited impact on the integrity and efficiency of the agency. Moderate Risk positions have the potential for serious impact, while High Risk positions have the potential for exceptionally serious impact. Both Moderate and High Risk positions are designated as Public Trust positions.
The kind of investigation conducted for a suitability review varies with the level of risk. The minimum investigation required for a Low Risk position is the National Agency Check with Inquiries (NACI), which entails a National Agency Check, law enforcement check, records search, credit check, and written inquiries of pervious/current employers, education, residence, and references. Moderate Risk positions require a Minimum Background Investigation (MBI), which is essentially a NACI plus a candidate interview. High Risk positions require a full Background Investigation (BI), which is a MBI plus a review of the candidate’s employment, residential, and educational history for the preceding five years with the possibility that some of information sources will be interviewed in person.
The suitability review begins with the candidate filling out a “Standard Form (SF)” as well as submitting to name and fingerprint checks and consenting to a credit report. Federal agencies are drug free workplaces and even paid summer interns will often be asked to undergo a urinalysis for drug testing; drug testing for volunteers is discretionary with the agency and not typically required. Neither volunteers nor summer interns are ordinarily required to have BIs. A suitability determination does not convey access to classified information.
A security clearance is different than a suitability review. A security clearance is designed to determine eligibility for access to classified national security information and entails an evaluation of whether an individual is a security threat (e.g. is the person likely to reveal classified information to a foreign government?). While the suitability review focuses on the individual’s personal conduct, the security clearance is more extensive and also looks into the conduct of associates, relatives, and other contacts. The security clearance process typically includes an FBI reference check of former employers, coworkers, friends, neighbors, landlords, and schools along with a review of credit, tax, and police records.
The process for obtaining a security clearance begins, after a provisional offer has been made, with the submission of the applicant’s SF by the sponsoring agency to an investigative agency. The sponsoring agency decides the level of clearance needed and requests the appropriate level of investigation. The scope of the background investigation varies depending on the level of clearance required. The results of these investigations are sent to the sponsoring agency, which will either approve or deny the clearance based on the information in the background investigation.
There are three levels of security clearances which correspond to the sensitivity of the information to which the applicant will have access. The three levels, in ascending order of sensitivity are: Confidential (information that could cause damage to national security); Secret (information that could cause serious damage to national security), and Top Secret (information that could cause exceptionally grave damage to national security). While most agencies use this three level classifications system, the Department of Energy classifies security clearances as “L”, which is equivalent to Secret, and “Q”, which is equivalent to Top Secret. In addition, there are some Special Access Programs that are commonly associated with higher levels of security, which require access to information that is particularly vulnerable and demand even greater security clearance; Sensitive Compartmented Information is one common category of information requiring greater scrutiny before access can be approved.
Security clearance decisions regarding eligibility for access to classified information seek to assess a candidate’s trustworthiness. The adjudication examines a sufficient period of the candidate’s life to make an affirmative determination that the person is an acceptable security risk; the number of years in the candidate’s life covered by an investigation increases as the position’s level of security increases. The assessment considers factors that could cause a conflict of interest and place a person in a position of having to choose between commitment to the United States, including commitment to protect classified information, and another compelling loyalty. The clearance process for Secret level access uses an investigation called the National Agency Check with Law and Credit that goes back five years, while the clearance process for Top Secret uses a Single Scope Background Investigation that goes back ten years.
Various reasons exist why someone may be denied a security clearance. Some of the most important factors in an investigation are the individual’s honesty, candor, and thoroughness in the completion of their security forms. There are 13 adjudicative guidelines that have been established for making these individual assessments under 5 CFR 731.202 (b). The guidelines include: allegiance to the United States, foreign influence, foreign preference, sexual behavior, personal conduct, financial considerations, alcohol consumption, drug involvement, psychological conditions, criminal conduct, security violations, outside activities, and misuse of information technology systems. Under 5 CFR 721.202 (c), the process is an evaluation of the whole person, weighing a number of variables and taking into consideration mitigating factors, such as whether the candidate voluntarily reported the information, sought assistance with the matter, resolved the security concern, or demonstrated positive changes in behavior. As a result, negative information about one area of concern may not be sufficient for an unfavorable determination. Despite this approach, a security clearance will likely be denied if the information available shows a recent or recurring pattern of dishonesty, questionable judgment, irresponsible behavior, emotional/mental instability, or association with undesirable persons.
The Office of Personnel Management performs the majority of background checks and oversees 90% of the federal government’s investigations for over 100 federal agencies. Investigations that require other record checks, reference interviews, or subject interviews are sent to field investigators, either federal agents or contract investigators. Some agencies, notably the CIA and Department of Defense (DOD), have jurisdiction to conduct their own investigations; the DOD investigations are conducted by its Defense Security Service. The FBI conducts agency BI investigations as well as investigations on high level Presidential appointments, cabinet officers, agency heads, and White House staff.
The questionnaire or SF that initiates a background check will be mailed to successful applicants. However, you may wish to review these questionnaires prior to applying to make sure that you are comfortable with the inquiry and to raise any questions you may have in a timely manner. To review the forms, go to www.opm.gov/forms select General Services Administration, Standard and Optional Forms Management Program; under the Standard Forms or SF tab, click on the appropriate numbered form.
The questionnaires vary with the different divisions and the types of positions. The shortest and least intrusive form is the SF-85, “Questionnaire for Non-Sensitive Positions.” The SF-85 is used to request NACI investigations to support Low Risk positions. The SF-85P, “Questionnaire for Public Trust Positions,” is used to request a MBI investigation on Moderate Risk positions. It is the form most commonly required from law student interns. Some agencies will use the SF-85P-S, “Supplemental Questionnaire for Selected Positions,” for Public Trust positions that have unique requirements. The SF-86, “Questionnaire for National Security Positions, “is used for High Risk Public Trust positions and for all three levels of security clearance. It asks for personal identifying data as well as criminal records, illegal drug involvements, financial delinquencies, mental health counseling, alcohol related incidents and counseling, civil court actions, misuse of computer systems, and subversive activities for seven to ten year with some questions having no time limit. The SF-86 is the form commonly used by Department of Justice to request investigations for its attorneys.
The most common suitability issues that arise during the suitability review process are past unlawful use of drugs and failure to comply with financial obligations. SF-85, for example, requests information regarding illegal drug use, supplying, possession, or manufacture in the last year. Other more sensitive forms request more extensive information on illegal drug activity, possibly extending back for seven to ten years. Credit checks are also done routinely.
If you have either of these or other issues on your record, it can slow down the process but it does not automatically preclude you from employment. The outcome is decided on a case by case basis and is based, in part, on the severity and frequency of the occurrence, the circumstances surrounding the occurrence, how recent the occurrence is, and the steps taken to cure the issue.
Although the government generally wants law abiding citizens to work for them, they are most concerned with recent or current illegal activity and repeated use of hard narcotics, such as cocaine. The standards regarding past misdeeds are somewhat flexible. However, it appears to us that any illegal drug use, within one year of application, will disqualify an applicant. For the FBI, that period may be longer, three years for marijuana and ten years for hard drugs.
Inconsistencies and omissions on the SF and other forms are a common problem. As in all your activities seeking employment and your activities as a lawyer, you must answer all questionnaires honestly. In addition to the ethical implications of lying, an investigation may be conducted based on the forms, and dishonesty on the forms is a federal offense subject to fine or imprisonment, not to mention a basis for finding you unfit for federal government employment. You could be found unfit for federal employment because you did not reveal activities which, if properly disclosed, might not have been barrier to employment. And remember, simply waiting a year before applying will often solve your problem since the government is less concerned with past indiscretions than with your behavior in law school and the recent past.
Legal positions in the federal government almost always require that the applicant be a U.S. citizen or an individual who owes permanent allegiance to the Unites States; rarely, in situations where no citizen is available, non-citizens who possess a unique expertise that is urgently needed can be cleared to work under a Limited Access Authorization. Naturalized citizens are treated the same as non-naturalized citizens.
Applications from dual citizens are reviewed on a case by case basis, considering such issues as whether you possess a foreign passport, military service for a foreign country, or residence in a foreign country to meet citizenship requirements. Applications from dual citizens frequently encounter delays.
Dual nationals and applicants who have close family ties to a particular country are advised NOT to seek an internship in that country. In such cases, there is a strong possibility that the applicant will not receive the clearance in time to participate in the program or may be denied clearance. Dual citizens are often required to relinquish their foreign passport and/or renounce their foreign citizenship. Indicating your willingness to do so or surrendering your passport may help expedite the process.
Applicants who have been outside the country for more than two of the last five years will be barred from most federal positions, including summer internships. Please note that the two years are cumulative and need not be consecutive to act as a prohibition. It is important to calculate the time spent outside the country carefully. This rule is strictly applied and you do not want go through the whole hiring process only to be prevented from working at the last minute because you were out of the country for slightly over two years. Federal or military employees serving overseas, or their dependents, are excepted from this requirement.
Suitability reviews and background checks do not begin until a candidate has been given a provisional offer and then they can be quite slow. A NACI check can take at least two to three months; the bulk of Secret or Top Secret security clearances can take from two to six months, with some taking over a year. Waiting for the results can be stressful and candidates are often concerned about what will happen if the process is not successfully completed in a timely enough manner. There are, however, things that you can do to reduce the chance of delay.
The most important thing you can do is to be as complete and accurate as possible with the information you provide; don’t forget about short-term residences, employment, or education as this can cause discrepancies in the investigation that delay the process. Make sure you give the correct zip codes whenever asked or materials can be sent to the wrong place and the wrong officers might be assigned to the investigation. Avoid, if possible, listing a relative in any sections that ask for the names of persons who knew you and try not to list the same person more than once on your application. Review your credit report well in advance of completing the questionnaire in case it contains something you are not aware of. Applicants who have had mental health or substance abuse counseling are well advised to contact the counseling provider/facility to determine if they accept a standard government form for release of medical information; if not, obtain a copy of the provider’s release and give that to the investigator during your interview.
Students should be mindful that in every jurisdiction the Rules of Professional Conduct, or other applicable ethical rules, impose the obligation to avoid conflicts of interest. This could arise in a clinic, externship, or internship if you are “on the other side” from your future employer in a case or transaction. Legal employers are responsible for inquiring about possible conflicts of interest, but you should consider whether your past legal work or ongoing legal work may present a conflict and bring any potential issue to the attention of the agency as soon as it is feasible. It is better to air questions in advance of accepting a position than to encounter problems that can delay your start date or prevent you from being able to work.
All applicants for attorney and intern positions with DOJ will have a suitability review and determination made by the Office of Attorney Recruitment and Management (OARM). If a candidate’s position requires access to classified information, the Department’s Security Staff will determine whether to grant a security clearance. Both the suitability review and the security clearance are based on information provided to DOJ by the candidate on the completed SF and information contained in background checks. A BI is only required for those candidates who work at DOJ for six months or more. For most law students, given the short duration of their time at DOJ, the suitability review will be limited to a fingerprint check, credit check, drug test, and review of their forms, which includes a check of their prior employers.
OARM’s decisions on potential suitability for employment are made after careful consideration of the totality of the circumstances, including any aggravating and/or mitigating factors. Because the final decision is fact-specific, the use of terms like disqualifying can be misleading. Do not prematurely opt out of the application process. Check the DOJ website for answers to common questions and concerns.
After you have received a provisional offer of employment, you may anonymously contact the DOJ OARM at (202) 514-8900 and ask to speak with an attorney for advice regarding background checks.
Applicants to a USAO are also applying for work with the DOJ and must go through the same type of suitability review and, if needed, security clearance. Some USAO offices, however, have enacted slightly more stringent requirements than other offices by choosing a tougher SF or adding their own suitability form. For instance, some offices in New York require internship candidates to complete the SF-85P requiring disclosure, among other things, of drug use within the past seven years, while other offices may use the SF-85, which only requires one year of disclosure.
Some students have occasionally been prevented from starting work at a USAO due to problems with the timeliness of their background checks. To avoid this unfortunate event, we suggest that you request and fill out the SF immediately upon receiving a provisional offer from the USAO. Return the form to the office and request, ever so politely, that they express mail it to the DOJ for review. Some of the delay problems occur when a USAO holds the forms until all summer interns are selected and have submitted their forms. As you attempt to expedite the process, feel free to tell them that your Career Development Office suggested that you request these procedures in order to make sure you are able to start on time.
The CIA and FBI require polygraph tests of some permanent employees. In addition, the CIA has each candidate for permanent employment meet with a security clearance representative to talk frankly and confidentially about anything that may be in their record that could interfere with their security clearance. The National Security Agency clearing process can be quite lengthy, depending on the number of interviews required. The Bureau of Diplomatic Security, through its Office of Personnel Security and Suitability, manages the State Department’s personnel security clearance program.
Please do not hesitate to discuss any of these matters confidentially with a CDO counselor at any time.
-Updated September 2016