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What Should I Do If I Receive a Preliminary Determination of Ineligibility from TSA?

As part of the Transportation Worker Identification Credential (TWIC) application process, the Transportation Security Administration (TSA) will conduct a thorough background check.  This background check will look at your criminal record maintained through the FBI as well as records contained within immigration databases.  If your background check reveals a disqualifying criminal offenses or any other concerns, the TSA will issue you a letter known as a “Preliminary Determination of Ineligibility.”

Upon receipt of such a letter, we advise you to immediately have an attorney review the letter on your behalf.  The letter will explain the reason for the TSA’s initial determination.  After reviewing your Preliminary Determination of Ineligibility letter, a TWIC lawyer will be able to advise you as to whether or not you should:

  1. Request the records that the TSA relied on in making their determination;
  2. File a request for a waiver;
  3. File an appeal; or
  4. File both an appeal and a request for a waiver.

At Brett O’Brien Law, LLC we will review your Preliminary Determination of Ineligibility letter free of charge and thereafter advise you on which method is appropriate in your situation.

Often times, the information contained within the Preliminary Determination of Ineligibility will be incorrect.  This is because the FBI criminal history database relied on by the TSA contains many errors including inaccurate and incomplete information.  For example, the TWIC lawyers at Brett O’Brien Law, LLC have frequently found that FBI records fail to contain the outcome of arrests and/or information regarding whether or not the offense has been expunged.  Such missing information often times will affect your TWIC eligibility.

If the information contained within the Preliminary Determination of Ineligibility is inaccurate, an appeal will be advised.  In addition, it will also be recommended that you request a copy of the materials the TSA relied on in making its initial determination.  It is important to note that, if you fail to respond to the Preliminary Determination of Ineligibility within 60 days, the initial determination will become a “Final Determination of Threat Assessment.”  This means that you will no longer be able to contest errors through the appeal process (although you will still be eligible to apply for a waiver).

The vast majority of appeals filed on behalf of workers are granted.  Thus, if an appeal is recommended, it is highly suggested that you take advantage of the opportunity to appeal your determination.

If the information relied on by the TSA is accurate and does in fact constitute a disqualifying offense, however, a request for a waiver (as opposed to an appeal) should be filed.  The request for a waiver is your opportunity to demonstrate that, although you do have a disqualifying conviction on your record, you are not a terrorism risk.  A TWIC lawyer will be able to review your case in order to determine if you are eligible to apply for a waiver.  The TSA encourages applicants who are eligible to apply for a waiver to do so.  Like appeals, the vast majority of waiver requests that are filed on behalf of workers will be granted.

In some instances, both an appeal and a request for a waiver will be necessary.  For example, if you do have a disqualifying criminal conviction on your record and some of the information contained in the Preliminary Determination of Ineligibility is incorrect, you should file for both an appeal and a waiver.  Additionally, if you have more than one criminal offense on your record, an appeal may be necessary for one of those offenses while a waiver would be required for the other.

Experienced TWIC Lawyers

If you have further questions about your Preliminary Determination of Ineligibility or if you would like us to review your letter, contact us today for a free consultation.

About the Author

Brett O'Brien, Esq.
Brett O'Brien, Esq.
author

Brett O’Brien specializes in security clearance appeals. He has dedicated his career to learning the entire security clearance process from start to finish. He started his journey by working for the federal government before entering private practice. Learn more about Brett here.