In order for a foreign national to obtain the approval of an Adjustment of Status (“green card”) or Naturalization application, the USCIS will send the applicants’ SSN and other identifying information to the FBI to perform a “Name Check.” The FBI is then supposed to perform a search based on that information against certain criminal databases and then certify and send the results back to the USCIS.
In most cases, the name check process is completed in a timely manner and the report is conveyed to the USCIS. The USCIS will then adjudicate the applicant’s case. In other cases, either the FBI refuses to perform the name check or the USCIS refuses to acknowledge that the name check has been performed.
When this happens the foreign national has three (3) options:
- Wait and hope that the issue becomes resolved;
- Request that the USCIS expedite the name check if he or she is qualified to make such a request; or
- File a mandamus action in federal court and demand that the FBI and the USCIS adjudicate their case in a timely manner.
Adjustment of Status and Naturalization applicants who have been waiting more than one year for their case to be adjudicated.
The chances of winning a mandamus action where the applicant has been waiting for 2 years or longer are good. Many courts have taken the position that the USCIS must adjudicate the applicant’s petition in a reasonable amount of time. However there are courts that have taken a contrary position.