Delay in Immigration Case Processing
USCIS processing delays are common. Sometimes, there’s nothing is wrong, you just need to wait out the processing time and be patient. However, sometimes, things could go wrong, and you need to fix the delay. For example, delays may happen when USCIS is missing information or documents. Other reasons for delay could be if the case is too complex or involves complicated legal issues, which may prompt the reviewing officer to seek guidance from their supervisors or lawyers at their agency. If your case has been pending beyond its normal processing time, here are a few things you may be able to do:
The first step as always is to check your case status online. If there is nothing helpful when you check the case status, and your case has fallen outside the normal processing times, you can submit an e-Request – Self Service Tools – USCIS Case Status on USCIS website. After you submit an online request, you will receive a letter or email telling you that your case inquiry has been received and that you need to wait for a period of time.
If after the period passes and there is still no answer, you can call USCIS at 1-800-375-5283 and speak to a representative about the delays in your case.
If all the above steps fail, then consider contacting the USCIS ombudsman. The process for requesting case assistance through the ombudsman is online. Keep in mind that the ombudsman is not meant to be the first step you take, the ombudsman will only assist you if you’ve already made an effort to use the USCIS system to resolve the issue.
If your case is still unresolved and you’re still experiencing delay, DOCUMENT ALL THE ABOVE STEPS, noting date, times, etc. before exploring your legal options.
Contacting an Immigration Lawyer
No immigration lawyer has a magic wand to resolve any case delay, but they should be able to navigate the legal system in a way that you may not.
For example, an immigration lawyer can help you file a lawsuit against the government agency that has delayed your case far longer than necessary. This is called a petition for writ of mandamus, which is a basically asking a court to make USCIS do its job as required by law.
If the delay involves your application for naturalization, then you have the option to pursue a 1447(b) claim as briefly explained below.
Naturalization Delay Lawsuits
Under 8 U.S.C. § 1447(b), USCIS must avoid excessive delays in informing you whether your naturalization application is granted or denied. The statute requires USCIS to decide your application within the 120-day period after your initial naturalization interview. If USCIS fails to render a decision within 120 days, you may file a lawsuit (known as a § 1447(b) lawsuit) against USCIS. However, § 1447(b) lawsuits only provide relief for USCIS’s delays after your initial interview. If USCIS causes other delays during your naturalization process, such as delaying holding a hearing or delaying scheduling your initial interview, you cannot file a § 1447(b) lawsuit. You will have to pursue other remedies, such as a writ of mandamus or an Administrative Procedure Act action in a U.S. Federal District Court. In these actions, the federal court cannot determine your application itself. Instead, it can only order USCIS to make a timely decision.
Under the Equal Access to Justice Act (“EAJA”), you may apply for attorney fees if the district court grants your naturalization application or if USCIS adjudicates the application upon remand. The EAJA requires you to file for attorney fees within 30 days of the court’s final judgment. To be granted attorney fees, you must establish that you were the prevailing party, USCIS failed to show its failure to act was substantially justified; and the requested fees and costs are reasonable.
Keep in mind, however, that a lawsuit against the government should always be reserved and utilized as last resort. This is especially true if the course of action involves pursuing a writ of mandamus, which is a complicated process that is best handled by a competent attorney who must usually and carefully run a meticulous analysis before moving forward.