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Naturalization applicants who have waited more than 120 days for a decision have the option under Section 336(b) of the Immigration and National Act, 8 USC § 1447(b), to file a lawsuit in federal court. The statute is very specific in identifying precisely when a naturalization applicant can ask a federal court to intervene due to agency delay: when the agency fails to make a decision on the application within 120 days after the “date on which the examination is conducted under [§ 1446].” 8 U.S.C. § 1447(b). But what does “examination” mean? In other words, when does the 120 period start?
Some courts have said that “examination” is a “process” that includes any applicant interview (as well as any subsequent interview) as well as any investigation of the application itself, such as FBI security checks. Under this interpretation, courts have dismissed such suits as “premature” because security checks were still pending. However, the majority of courts have held that “examination” refers to the initial interview scheduled under INA § 335 (8 U.S.C. § 1446). These courts have said that “examination” is a distinct, single event, different from an “investigation.”
Accordingly, for those applicants who are waiting more than 120 since their “initial interview” filing a 1447(b) lawsuit should be seriously considered if the delays are causing a hardship.