Suing the USCIS for Naturalization Delay

There has been an increasing number of lawsuits against the United States Citizenship and Immigration Service (USCIS) in the past few years because of the long delays in the processing of naturalization applications.

Last year, over 2,500 lawsuits were filed compared to about 680 in 2005. In the current fiscal year, over 4,000 cases have already been filed.

In most of these lawsuits, the naturalization applicants have passed their immigration interviews but they have not taken their citizenship oaths because the FBI name checks have not been completed.

A name check is different from a criminal check which takes a much shorter time to complete. Name checks require checking the applicant’s name and date of birth. The search involves searching possible combinations of the first, middle and last names. It is an “around the clock” search.

Name checks were instituted after the 9/11 tragedy as an added security measure. In December 2002, the USCIS sent to the FBI for additional background checks 2.7 million names of immigration applicants.

In about 5 percent of the name checks, potential problems are found. About one percent of these cases are further subjected to scrutiny because of a “positive response” finding.

Over 300,000 name checks are currently in the pipeline. More than 60,000 of these cases have been waiting for more than 2 years.

The unreasonable delay has caused hardship to the applicants and this had led them to file lawsuits. One of these cases was a class action lawsuit filed in San Francisco, California in February 2007.

The California lawsuit sought to enforce a federal law that required the USCIS to decide their citizenship applications within 120 days of their naturalization interview. One of the plaintiffs stated that because of the delay in adjudicating his naturalization application he had not been able to bring his wife and four children to the U.S. for the last several years. Another plaintiff said that he had been prevented from enjoying the rights of citizenship.

Suing the USCIS is an available remedy for applicants who have been waiting for a long period of time. The Immigration and Naturalization Act specifically provides that if there is a failure to make a determination of the naturalization application before the end of the 120 day period on which the examination is conducted, then the applicant may apply to the U.S. District Court for a hearing on the matter.

The law further says that the court may decide the case, or remand the case to the USCIS for immediate adjudication.

The USCIS has argued that the 120 day period does not begin to run until the entire process, including the FBI check, is completed. The majority of the courts, however, have ruled that the 120 days are counted from the time of the initial interview.

This is also the ruling last September 14 by the Fifth Circuit Court. The court had previously sided with the USCIS but in a surprising turnabout, it held that indeed the 120 days start to run from the date of the interview.