Question: I applied for Naturalization over 2 years ago and cannot get a decision. Every time I ask for an update they simply say it is pending. Is there anything I can do?
Answer: Section 336(b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1447(b), specifically provides for direct judicial review of delays in adjudicating naturalization applications by the United States Citizenship and Immigration Services (USCIS). It
gives a district court jurisdiction to intervene in a case where USCIS has failed to make a decision on the naturalization application within 120 days of the applicant’s “examination” by USCIS. Because of extensive delays in naturalization application processing in recent years – caused in large part by delayed security checks – dozens of naturalization applicants have sought federal court review under § 1447(b).
Question: When exactly can I file this matter in Court?
Answer: The statute is very specific in identifying precisely when a naturalization applicant can ask the district court to intervene due to agency delay: when the agency fails to make a decision on the application within 120 days after the “date on which the examination is
conducted”. The meaning of the term “examination” is critical to determining when a § 1447(b) action
can be brought, since it is only after the “examination” has taken place that the 120 day period begins to run. The majority of courts – including the only two courts of appeals to decide the issue – have held that “examination” refers to the initial interview.
Question: Once this is filed in District Court, what will happen?
Answer: A court may “determine the matter” by granting or denying the naturalization application, or it may “remand the matter” for a determination by USCIS. Despite the statutory grant of authority to decide the naturalization
application, the majority of district courts are reluctant to do so, particularly when security checks are still pending. A few district courts have decided naturalization applications
Question: Can I recover my attorney fees if I have to file such an action?
Answer: Several courts have awarded plaintiffs attorneys fees under the Equal Access to Justice Act (EAJA). Under EAJA, the plaintiff must establish the following to be eligible for an award of attorneys fees from the
government: (1) that the plaintiff is the prevailing party in the matter; (2) that the government failed to show that its position was substantially justified or that special
circumstances make an award unjust; and (3) that the requested fees and costs are reasonable.
There is no need to keep awaiting a decision after 120 days. You have a right to have it adjudicated and bringing USCIS to Federal Court is the answer.