With the transition to the Trump administration in the White House, the processing times for some applications pending at the US Citizenship & Immigration Services (“USCIS”) are longer than ever before. The USCIS holds a monopoly over all immigrants applying for green cards, citizenship and other applications, since the USCIS is the only agency authorized to adjudicate requests for immigration benefits. The USCIS cannot, however, force applicants to suffer through “unreasonable delays” for their applications to be completed. Individuals who have had enough waiting may safely seek the intervention of the United States District Court as a “last resort” to have their cases adjudicated fairly.
In order to obtain a green card, become a United States Citizen or seek any other benefit available under US immigration Law, individuals must file applications or petitions with the USCIS. The USCIS has been criticized for the long delays in processing cases, which can cause people hardship in restricting their ability to travel and seek new employment opportunities.
The rules applicable to all Federal Agencies in the United States require that the agencies act on applications within a “reasonable time.” The measure of what length of time is “reasonable” is dependent on many factors, including the average processing time for similar applications. The average processing time alone, however, cannot justify outrageous delays, and, at a certain point, may be unreasonable itself. At present, USCIS is taking over one year to process an I-140 Petition for Immigrant Worker. This length of time is unreasonable for a person who has less than six months time to remain in the United States in his current status, because he could lose eligibility for adjustment of status if he stays in the US for more than six months after his status expires.
In the Los Angeles District, interviews for basic applications are scheduled within 6-8 months of filing; however, the USCIS does not approve many cases for months following the interview date. The USCIS attributes much of reason for delays to due to progressive security clearances and fingerprint checks, but these checks are conducted electronically and should not require more than 60-90 days to complete.
Several years ago, USCIS Associate Director of Domestic Operations, Michael Aytes, issued a memorandum revising CIS’ policy of requiring complete background clearances before an application for adjustment of status may be approved. The Memo sets forth the new policy, in which the CIS, in cooperation with the FBI, will render final decisions on pending I-485 and I-601 (waiver applications) will be adjudicated within 180 days of receipt. This policy is in accord with Congressional mandate and will greatly reduce the waiting period for adjustment of status in most cases.
CIS continues to initiate the required background checks upon the receipt of applications for adjustment of status. Once the application has been pending 180 days, however, if the application is other wise approvable, CIS will adjudicate the application and issue the green card without the background check results. Under this new policy, CIS will retain the files of cases where the application has been adjudicated pending the results of the background clearance. If the background clearance reveals a criminal history or other potential basis for ineligibility, DHS will render a determination as to whether rescission or removal proceedings should be initiated against the alien.
The CIS also has continued its requirement that all applicable background clearances must be obtained before adjudicating N-400, Applications for Naturalization. An applicant for naturalization, however, may seek the intervention of a US District Court Judge if more than 120 days have passed since the interview and no decision has been rendered.
With Naturalization, if no interview has been scheduled within six months of filing, an applicant can seek an order from a Federal Judge requiring the USCIS to schedule an interview. Once the interview is complete, the Immigration & Nationality Act requires that the USCIS grant or deny an application within 120 days. After that time, the Applicant may file a motion to have a Federal Judge decide the Naturalization case.
Whether Federal Court intervention is appropriate depends on the facts and circumstances of each case. The question of how long is too long merely depends on the individual applicant’s desire to have his case finished once it has been pending beyond a reasonable time.