Can I sue for a naturalization delay when I haven’t had my interview?
Hi, I’m Jim Hacking, immigration lawyer practicing law throughout the United States at our offices in San Diego, Washington, DC, and our St. Louis, Missouri headquarters. In today’s video we’re going to talk about immigration delays specifically in the naturalization context. Now most people who follow our videos or know what’s going on, know that there’s a requirement that if you’ve had your naturalization interview and your testing, and 120 days have gone by (i.e. four months). If four months have passed since you had your N-400 interview, you can go into a federal court on the 121st day and ask a federal judge to either naturalize you or to order USCIS to decide your case.
Now this is a very powerful tool because once they’ve had that interview, they’re on the clock and there aren’t any other immigration cases that I know of that there’s an actual hard deadline built into the statute, into the Immigration and Nationality Act, that protects applicants and forces USCIS to decide a case in four months flat. And so this is a very powerful tool. Of course, we know that one of the ways USCIS gets around this rule is by just simply refusing to schedule someone for a naturalization interview, because they figured out that it’s the interview itself, the completion of the interview, that starts that 120 day clock in, and being their lazy selves as usual have figured out that well, if we don’t do the interview, then the clock never starts. Or at least that’s the position that they like to take, and they tell you to just keep waiting.
This is especially true in the days of COVID, and one of our recent emailers asked me about this and wanted to know can I still sue them even if I haven’t had my interview? And the answer to that is yes. And the reason that the answer for that is yes is because in that situation, you are then like other people applying for immigration benefits, not able to take advantage of that 120 day rule. What I mean by that is that the law says in all immigration cases, all cases in front of any federal agency, including USCIS or the state department, that they have to decide a case in a “reasonable amount of time” and that any agency can’t simply just sit on a case. And so that rule also applies to long pending naturalization cases.
So if you have applied for citizenship and if more than a year has gone by, I believe that that is unreasonable, maybe a year and a half, but certainly anything more than that. If you’ve waited that long and they haven’t scheduled you for an interview, go ahead and sue them. And with these lawsuits, what’ll happen when you sue them is you’ll get your interview notice. And one good thing is we haven’t really, knock on wood, knock knock, had them push back and say, “Oh, you haven’t waited long enough.” They just want to make it go away. They want the thing to go faster, so they just go ahead and schedule the person for an interview. And then of course, that’s when the real 120 day clock starts. But usually in these lawsuits, they don’t even take those 120 days, they just interview you and then they might take another month or two to decide the case, and then we just dismiss the lawsuit. So yes, you can file a mandamus lawsuit against USCIS for delayed naturalization case even if you have not had your interview.