Commonly Asked Questions

Answers to some of the most common questions we hear from clients and issues addressed by adjudicators.

 

Applying for a Clearance

 

When can I apply for a Security Clearance?

 

The application process for a security clearance is controlled by the federal government: a person cannot apply for a clearance until the government (or the federal contractor employer) requests that they do so. For a new hire, the SCA requirements come after a tentative job offer has been made. For someone with a clearance, the request to update the SCA comes periodically, currently five or six years for a Top Secret (TS) and ten years for a Secret clearance. However, if you are enrolled in continuous evaluation (CE), your periodic reinvestigation might be deferred in no security-relevant issues exist.

 

Who decides what level clearance I apply for or receive?

 

The need for a clearance is determined by the position, not the person. Each position in the federal government is assessed for its potential damage to national security, and that assessment leads to a determination of whether the holder of the position must have a clearance, and, if so, its level.

 

How do I know when to fill out the security clearance application?

 

For a new hire who will need a security clearance, the SCA usually arrives from HR, through an email with a link to e-QIP, the online system that most agencies use to process SCAs, together with instructions. For a reinvestigation, the request to update the SCA may come from Personnel Security or the Facility Security Officer.

 

I see on the web a lot of different security applications – how do I know which to use? Is the form unique for my agency?

 

While there are different SCA forms depending on the security/risk level of a particular position, once that level is determined, the forms themselves are standard across the federal government. The SF-86 is the form used for applicants for a security clearance. The SF-85P is used for those who will serve in a moderate or high-risk Public Trust position. The SF-85 is used for Non-Sensitive positions, including low risk Public Trust. A new hire generally also will complete the Optional Form (OF) 306, Declaration for Federal Employment. Information on this form is used to initiate a suitability background investigation. The agency or employer will provide the applicant with the appropriate form for the position they will or currently hold.


What is continuous evaluation?

Continuous evaluation is an ongoing screening process that involves continuously reviewing the background of an individual with a clearance or who has access to sensitive information to determine whether that individual continues to meet the requirements for eligibility for access to classified information. This involves ongoing checks of commercial databases, government databases, and other information lawfully available to security officials. Currently, CE data sources fall include:

 

  1. clearance eligibility
  2. terrorism
  3. foreign travel
  4. suspicious financial activity
  5. criminal activity
  6. credit reports
  7. commercial public records

CE does not involve review of social media.

 

Maintaining Your Security Clearance

 

Can using CBD affect my security clearance?

Yes. Unfortunately, as far as the federal government is concerned, a positive drug test is a positive drug test and using drugs while holding a clearance will usually result in the clearance being pulled or denied. At least for now. In a June 2019 memorandum addressing some of the confusion regarding CBD and federal employment, SAMHSA makes it clear: “. . .  there is no legitimate medical explanation for a marijuana positive test result other than a verified prescription for [specific FDA-approved drugs] or generic equivalent.” The U.S. Food and Drug Administration (FDA) warns that it has approved only one “cannabis-derived” and three “cannabis-related” drug products, all of which require a medical prescription.

 

To be sure, marijuana is still illegal under federal law and a positive drug test could have serious consequences for federal employees with or without a security clearance— even in states where recreational marijuana is legal under state law.

 

On December 21, 2021, particularly in response to the changing landscape of marijuana use under state law, Director of National Intelligence Avril Haines issued a memorandum clarifying the guidance provided to adjudicative agencies regarding an individual’s involvement with marijuana. This guidance addresses:

 

  1. Recency of recreational marijuana use;
  2. Use of cannabidiol (“CBD”) products, such as CBD oils; and
  3. Investment in marijuana-related businesses.

To learn more about how CBD use can affect your security clearance, read our blog “While Marijuana Use Has Been Legalized in Some Places, New Guidance Reminds Security Clearance Applicants That Use Can Still Be Disqualifying.”

Security Clearance Blogs

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Security Clearance Practice


Elaine L. Fitch


Photo of Mary E. Kuntz, Partner, DC employment law firm KCNF

Mary E. Kuntz

Co-chair of the Security Clearance Practice


Photo of Elizabeth M. Baker, associate with DC employment law firm KCNF

Elisabeth Baker-Pham

Co-chair of the Security Clearance Practice


Photo of Aaron Herreras Szot, associate with DC employment law firm KCNF

Aaron Herreras-Szot


Photo of Elizabeth I. Newman, Retired Partner, DC employment lawyers of Kalijarvi, Chuzi, Newman and Fitch

Elizabeth L. Newman

Retired (2015)