How can you take advantage of the USCIS memo this week that certain applications, including those for green cards, may be approved if name checks have been pending for more than 180 days?
AILF offers the following suggestion: If your application has been pending for more than 180 days, and otherwise meets the prerequisites described in the new policy, you may send a demand letter to the agency with the new policy memo attached requesting immediate adjudication of your application.
AILF explains that this demand letter may cause the agency to move more quickly to finish processing your case. On the other hand, if it does not prompt any action, AILF points out that the letter may be helpful if you later decide to file a mandamus lawsuit on the grounds that the agency is not implementing its new policy.
In addition, if you have a pending court action, such as a mandamus action, to which the memo would apply, AILF suggests filing a motion with the court with the USCIS memo attached so as to alert the court to the change in agency policy. The motion should state that all prerequisites for immediate adjudication have been met as required by the new policy:
1) the application is covered by the memo, e.g., it is an Application for Adjustment of Status (I-485);
2) the FBI fingerprint and IBIS check have been completed and;
3) the FBI name check request has been pending for 180 days.
The motion may request that the court issue an order remanding to the agency for immediate adjudication of the application.
AILF further advises that if you are unsure whether the delay in the adjudication of your application is caused by FBI name check delays, you may nevertheless consider sending a demand letter to USCIS with the new policy memo attached.
AILF’s suggestion stems from its observation that the memo does not say that the new policy only applies prospectively. Therefore, AILF explains, the memo affects all applicants whose FBI name check requests have been pending for 180 days.
To read the memo outlining the new policy, click here.
In addition to green cards (I-485, Applications for Adjustment of Status), the new policy applies to: Applications for Waiver of ground of Inadmissibility (I-601); Applications for Status as a Temporary Resident Under Section 245A of the Immigrant and Nationality Act (I-687), or Applications to Adjust Status from Temporary Permanent Resident (Under Section 245A of Public Law 99-603) (I-698).
Unfortunately, it does not apply to Applications for Naturalization (N-400), which has also been the victim of lengthy delays and the subject of numerous mandamus lawsuits across the country.
For more information see our article CIS Policy Change: Green Cards May Be Approved Despite Pending FBI Name Checks.