A US Lawful Permanent Resident filed for citizenship while she was still married to a US Citizen.  After filing, she and her husband separated (but did not get divorced).  Eventually, she appeared for a citizenship interview with the Washington Field Office, 2675 Prosperity Avenue, Fairfax, Virginia.  Our office explained that despite being separated from her US Citizen husband, our client still qualified for 3-year citizenship.  After this interview, USCIS failed to adjudicate this Citizenship Application and the client began to feel frustrated by the process.

THE LAW:

The approval or denial of N-400 Applications is the responsibility of USCIS under the INA and federal regulations.  See 8 U.S.C. § 1427; 8 C.F.R. §§ 334, 335.  Under 8 C.F.R. § 335.3(a), USCIS is required to make a decision on an N-400 Application within 120 days of the applicant’s initial examination.  A failure to render a decision within this 120 day timeline gives the Applicant the right to file a complaint with the Federal District Court having jurisdiction over where they live.

8 USC Sec. 1447(b) states in relevant part:

If there is a failure to make a determination under section 1446 of this title before the end of the 120-day period after the date on which the examination is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter (emphasis added).

This mechanism is a powerful way to “force” USCIS to adjudicate (not necessarily approve) a severely delayed N-400 Application, and can sometimes be the best way to seek resolution of a pending or delayed citizenship application (Form N-400).

THE RESULT:

In this case, Mr. Miller prepared a filed the appropriate paperwork at the US District Court and received a prompt response from the government attorney assigned to the case.  The government scheduled a second N-400 interview and agreed that the case merited approval.

After the interview, USCIS agreed to quickly approve the case, and we agreed to remand the case to USCIS for adjudication in 60 days.  Although upon remand USCIS does NOT have to approve a citizenship application, in this case USCIS granted citizenship the same day it was returned to USCIS.

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