Citizenship Application Pending For A Long Time? Sue The Immigration And FBI
Sometimes, there are unusual delays in getting the citizenship applications approved. The applicant has met the qualifications and passed the interview. And, at the end of the interview, he or she gets a letter that the case can not be approved because the fingerprints have not cleared. Subsequent inquiries avail no result.
A lot of it comes from the US CIS officers being extremely busy and not being able to go back to the cases which might be pending for one reason or the other. The reasons for a case to go to a pending stage vary and include, but not limited to, collection of some information about the applicant, etc. One of the primary reason causing a delay is lack of security clearance report from the FBI. US CIS can not approve the application unless they have such report.
After 9/11, FBI has been inundated with security clearance issues. They are short-staffed and overworked. As a result, security clearances are held up. Majority of the security clearances can be done within 72 hours (at least that is what the author has been told by reliable government resources) and all the US CIS has to do is look up the information in their database. However, in the remaining percentage of cases, the security clearances take a long time and as a result the case remains pending.
To follow up, the administrative procedure is to make an appointment through US CIS Infopass (http://infopass.uscis.gov/) and make an inquiry in person. Letters seem to go in a black hole. However, when an inquiry is made you are met with same cold faces and one receives same cold response: we are waiting for security clearance.
Most people are also aware that they can contact their local senator or representative and through their immigration liaison make an inquiry. Under the law, US CIS has to respond within 90 days. However the response does not equal action. And typical response is the same. About 10% of the clients have success using this method.
The law requires that USCIS make a determination (i.e. grants or denies) within 120 days of the examination. So, what do you do? Well, there is a solution: you can go to Federal Court and file a Petition for Hearing. You can win and get the desired adjudication. And if they delay further, the Court can even award attorney fees and costs. Yes, read on.....................
According to Title 8, U.S. Code of Federal Rules §335.3 (a): A decision to grant or deny the application for naturalization shall be made at the time of the initial examination or within 120 days after the date of the initial examination of the application for naturalization under §335.2; Administrative Procedure Act, Title 5 U.S.C.§555(b).
As long as the applicant meets the statutory requirements to qualify for the citizenship, the application must be adjudicated within 120 days. Requirements for citizenship primarily are: if, immediately preceding the date of your naturalization application, you have resided continuously; after being lawfully admitted for permanent residence within the United States for more than 5 years or 3 years as applicable; you have resided in your state where you filed your naturalization application for more than three months; you are a person of good moral character; you have met the civics and English language requirements prescribed by the USCIS, and you are not otherwise disqualified, then USCIS is required to adjudicate the application within 120 days of completion of examination.
The court has the jurisdiction to grant your naturalization application as provided by law. In my experience, soon after the Petition is filed with the Federal Court and govt. is served with the legal papers, they start moving. By law, the government has to file a response (to the Petition) with the Court within 60 days. And a case management conference is scheduled with the Judge at 90 days- and that is when "the rubber meets the road". And government typically approves the application within those 90 days.
One of the main reasons the government approves such petition quickly at that time is that if the Court decides the case and approves the citizenship application, the court also has the authority to award attorney fees and costs to the applicant/petitioner (person whose application is pending with the US CIS and who has filed the petition with the Court). It means that government has to not only approve the petition but also pay the attorney fees and costs increasing their financial burden.
So, my advice to all who consult me: either keep waiting and don't complain or take action and get the application approved. You can buy peace of mind and if Immigration keeps on delaying you might recover the attorney fees and costs.