Waiting to Take Oath

Q: My wife and I applied for U.S. citizenship in April 2003. After that we got fingerprinted in May 2003 and were interviewed in November 2003. In November 2003, my wife was given a date to take the oath, while I was told that my application was “pending background checks” and that I would get a letter asking me to appear for the oath ceremony within two months. It has been three years since, and whenever I enquire, I am told that the application is still pending. I even took an appointment through InfoPass and met the officer in San Francisco, but there’s no progress so far. What is my way out of this? I heard that there is a rule that if there is no refusal, I can approach a federal judge to rule in the case and he can direct USCIS to let me take the oath. Is that true?

A: Yes, many people have been successful at getting either a decision or an oath ceremony (depending on what stage CIS has been lagging on) by filing a petition with the federal court. If CIS does not make a decision within 120 days of the examination, under 8 USC 1447(b) the alien can file a petition in federal court and ask the judge to decide the naturalization. The petition for hearing on naturalization is a matter filed pursuant to 8 USC 1447(b), §336 of the Act, which provides: “If there is a failure to make a determination under section 1446 [335] before the end of the 120-day period after the date on which the examination [interview] is conducted under such section, the applicant may apply to the United States district court for the district in which the applicant resides for a hearing on the matter. Such court has [exclusive] jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions, to the Service to determine the matter.”

Q: I have a green card and have applied for U.S. citizenship. During this period can I travel out of the United States on my Indian passport?

A: Yes. This is from the USCIS website (www.uscis.gov): “A Permanent Resident of the United States can travel freely outside of the U.S. A passport from the country of citizenship is normally all that is needed. To reenter the U.S. a Permanent Resident normally needs to present the green card (Permanent Resident Card, Form I-551) for readmission. A reentry permit is needed for reentry for trips greater than one year but less than two years in duration.”

Q: My husband is in the United States on an L-1 visa, which is stamped for one year. Can he apply for change of status to H-1?

A: Although he can apply for change of status, he is not part of the H-1B quota for this year. He would have to apply in April for next October. Also note: time spent on an L visa is counted towards the H (i.e. towards how many years a person can remain in the United States on an H visa).

Q: I am a green-card holder, and got married in January 2006. My husband lives in Pakistan. If I apply for him, how long will it take for him to get a green card?

A: Per the November Visa Bulletin, they are now processing cases with a filing date of Sept. 1, 2001 for the 2A Preference Category. Note: When you become a citizen, his preference category will move to Immediate Relative.

James E. Root, Esq., manages an exclusive immigration law practice with two offices in L.A. and Orange counties. (888) ROOT-LAW. www.RootLaw.com

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