January 12, 2009: Is USCIS Violating the Law by Delaying Action on I-751
Is USCIS Violating the Law by Delaying Action on I-751
I filed a joint I-751 about two months ago within the 90 day window. I got a biometric appointment one month after filing, which went without any problem. I called the 800 number to check on the application status, and I was told that the normal processing time at the Vermont Service Center, where I filed, was six months. However, 8 CFR 216.4 says that a decision about either granting approval or conducting an interview must be made within ninety days of the form being filed. So, is the law (216.4) being violated here or is there another explanation?
You raise a very interesting point. Section Code of Federal Regulations section 216.4(b)(1) “Interview – Authority to waive interview” specifically states that “the director must either waive the requirement for an interview and adjudicate the petition or arrange for an interview within 90 days of the date on which the petition was properly filed.” A plain reading of the law suggests that it is being violated because more than 90 days has elapsed and your petition has not been adjudicated nor has an interview been scheduled.
Practically speaking, however, the United States Citizenship and Immigration Services (USCIS) will explain to you that it is understaffed and overworked and cannot process all of the cases it receives within the time frame outlined in the Regulation. On average, the I-751 joint petition takes approximately one year (sometimes 6 months, sometimes more than one year) to be adjudicated and or scheduled for an interview. Its explanation, however, does not necessarily absolve it from following the law.
In other types of cases such as Applications for Naturalization or Lawful Permanent Residency, where a pending background check is the sole reason for the delay of adjudication, a complaint can be filed in a U.S. District Court challenging the legality of the delay. In those types of cases where there is a delay, there are severe negative consequences such as an inability to petition for a spouse or parent so they can obtain a green card or the loss of job opportunities, among other reasons. In the case of a pending I-751, your receipt notice is proof of your lawful permanent residency. It is proof that you are authorized to work and travel. Also, you are eligible to file, if otherwise qualified, for citizenship in two years and nine months from the date you were granted residency without receiving a decision on the I-751.
In short, the delay in adjudication of the I-751 does not necessarily prevent you from carrying on with your daily life or prevent you from seeking future immigration benefits. If you are interested in challenging the USCIS delay in your I-751 processing, then you should consult with an attorney who specializes in suing USCIS in Federal Court to see if your case is actionable.
Michael Shane and Evan Shane, Immigration Attorneys