Adjustment of status delays: Solution in sight?

The United States Citizenship & Immigration Services (USCIS) has sped up the processing time for some of the I-485 Applications to Adjust Status petitions which were delayed because of Federal Bureau of Investigation’s (FBI) name-check system.

On February 4, 2008 USCIS issued an interoffice memorandum with the subject “Revised National Security Adjudication and Reporting Requirements.” which states that if an Application for Adjustment of Status is delayed only due lack of name check clearance from FBI and the name check has been pending over 180 days, USCIS must approve the application.

However, the applicant is still required have the clearance for FBI fingerprint check and an Interagency Border Inspection Systems (IBIS) check before his or her I-485 can be approved. The FBI name check clearance must also be obtained before a person can become a U.S. citizen.

If the FBI name check doesn’t provide clearance for the applicant at a later stage, it will up to the USCIS to either revoke the alien’s permanent residence status or start removal proceedings.

USCIS facing an avalanche of Mandamus Lawsuits

The memo came in the heel of an increasing number of Mandamus Lawsuits – lawsuits filed by plaintiffs against the USCIS or FBI for unreasonably delaying the cases. According to data provided by USA Today, approximately 4,400 such lawsuits were filed against the agency in 2007 alone.

While this move comes as a welcome relief to many who have been stuck for two or three years because of these procedures, there still remains other factors like security check delays. Moreover, naturalization applicants are still stuck in the legal limbo owing to these factors. 

No Silver Lining for Delayed Naturalization Cases Yet

Naturalization applicants facing similar delays haven’t received any reprieve yet. In a landmark case recently, twenty-five plaintiffs from Florida filed a mandamus lawsuit against the USCIS (Adil Amrani v. Dugas), claiming that their naturalization applications have been delayed for around four year because of their Muslim faith., alleges that the FBI failed to complete required name checks, resulting in naturalization delays of up to four years.

Accoring to the law, a determination must be made on any naturalization applications within 120 days of the “examination.” Otherwise, the applicant can file a mandamus lawsuit based on INA § 336(b) seeking either judicial adjudication of the application i.e. requestinf the court to holds a naturalization hearing or request the court to order USCIS to finish processing the petition in time. 

Conclusion

The USCIS memo has been welcomed by thousands of applicants who have been stuck in the legal limbo for years now. Since processing of some of the delayed cases was started on March 1, 2008, we will probably see the results of these changes within a few weeks. We are hoping USCIS will soon address other delaying factors such as security checks etc in a similar manner to provide relief for the thousands of legal immigrant we have faithfully followed the long drawn path to US citizenship for years.