If your I-485 adjustment of status application is being unreasonably delayed due to a pending FBI name check, you may want to consider filing a mandamus lawsuit (formally called a writ of mandamus) to force U.S. Citizenship and Immigration Services (USCIS) to make a decision on your application.
A mandamus lawsuit for a delayed I-485 adjustment of status application is a federal lawsuit filed pursuant to the Administrative Procedures Act (APA). The APA states that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” The APA goes on to state that a federal district court “shall . . . compel agency action unlawfully withheld or unreasonably delayed.”
According to the Immigration and Nationality Act (INA) and its implementing regulations, the duty of USCIS to make a decision on an I-485 Adjustment of Status application is mandatory. This means that immigration officials have an obligation to act on an adjustment of status application and that this action must be taken within a reasonable time. Federal courts around the country have confirmed that USCIS has a nondiscretionary duty to make a decision on an adjustment of status application within a reasonable time.
If your I-485 adjustment of status application is being delayed significantly beyond normal processing times and your inquiries to USCIS are repeatedly answered with a statement that your application is pending a background check, a mandamus lawsuit may be the only way to get the government to proceed with the processing of your application. With a mandamus lawsuit, you are asking the judge to order the FBI to complete your background check and to order USCIS to make a decision on your application. To discuss whether a mandamus lawsuit would be appropriate for your delayed I-485 adjustment of status application, please contact us.
To read more about mandamus lawsuits for delayed naturalization applications, please see Delays/Denials of Naturalization/Citizenship Applications.