N-400 no decision 120 days after the interview: how to sue USCIS under 8 U.S.C. § 1447(b)

Last updated 2026-10-01 · General information, not legal advice

If your naturalization interview is done and 120 days have passed with no decision, 8 U.S.C. § 1447(b) lets you apply to the federal district court where you live, and that court can decide your N-400 itself or send it back to USCIS with instructions. The 120 days run from the examination, which is your interview date; the receipt date plays no part. If no interview has been scheduled yet, § 1447(b) does not apply: that stretch runs on ordinary mandamus under 28 U.S.C. § 1361, where our threshold is 12 months. Both routes ask for a decision, and neither makes approval more likely.

Key facts at a glance

What is different about an N-400

An N-400 can stall in two places, and the law treats them differently. Before the interview there is no statutory deadline, and since the policy alert of 25 August 2026 there is a second gate: the Policy Manual says the neighborhood investigation under 8 U.S.C. § 1446(a) applies to all applicants unless waived and "will generally be conducted and completed" before the interview is scheduled (our news section covers the alert). That time lands before the interview, where the test is whether the wait is unreasonable; after it, the statute sets a fixed number of days.

The 120 days start at the examination, and the examination is your interview. The statute counts from "the date on which the examination is conducted", and 8 C.F.R. § 335.3(a) requires a decision "within 120-days after the date of the initial examination". Under United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc), the initial interview date triggers the period, as restated in Yith v. Nielsen (E.D. Cal. 26 October 2018). Passing the tests and then hearing nothing after "a decision cannot yet be made" sits squarely inside § 1447(b). Our 60-second check uses the receipt date, so for an N-400 it is only a rough screen.

The court can decide the application itself. On every other form the most a court orders is a decision by the agency. Once you file, the district court has exclusive jurisdiction over the application, so USCIS decides it again only if the court remands it: the Ninth Circuit said so in Hovsepian, quoted in Yith, and the Fourth Circuit in Etape v. Chertoff, 497 F.3d 379 (4th Cir. 2007), applied in Dilone v. Nielsen (D. Md. 1 February 2019). Remand with a deadline is the usual outcome: Gill v. Crawford, 2016 WL 880952 (E.D. Cal. 8 March 2016), quoted in Yith, says the vast majority of district courts remand to USCIS, although the Yith court itself refused a remand because of the delay already run. No lawyer can promise which option a court will take.

"Security checks pending" does not stop the clock. Nothing in § 1447(b) or 8 C.F.R. § 335.3(a) pauses the 120 days for it, and under 8 C.F.R. § 335.2(b) the FBI criminal check was supposed to be finished before the interview was scheduled. A court may weigh an open check when choosing between deciding and remanding.

The law this rests on

8 U.S.C. § 1447(b) governs after the interview: on "a failure to make a determination" within "the 120-day period after the date on which the examination is conducted", you may apply to the district court where you reside, which "may either determine the matter or remand the matter, with appropriate instructions". The examination is the interview under 8 U.S.C. § 1446(b).

Before the interview, the complaint pleads 28 U.S.C. § 1361 (mandamus to compel a federal officer "to perform a duty owed to the plaintiff"), 5 U.S.C. § 555(b) (an agency must conclude a matter "within a reasonable time") and 5 U.S.C. § 706(1) (the court shall "compel agency action unlawfully withheld or unreasonably delayed"). 8 U.S.C. § 1571(b) adds the sense of Congress that a benefit application "should be completed not later than 180 days after the initial filing".

Courts then weigh the six factors of Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984), known as TRAC: a rule of reason behind the agency's pace; any timetable from Congress; the human welfare at stake; the effect on other applicants; the interests prejudiced; and no need to show bad faith. On a pre-interview N-400 the first, second and fifth carry the weight: USCIS has written its own sequence in 8 C.F.R. § 335.2(b) and the Policy Manual, so a court can ask where in it your file has sat; the 180-day goal is the timetable; and you cannot vote until the application is decided.

8 U.S.C. § 1429 bars the agency from considering an application while "a removal proceeding pursuant to a warrant of arrest" is pending; what a court may do under § 1447(b) then is a question for a lawyer. And under 8 U.S.C. § 1448(a) an approval, from USCIS or a court, is not citizenship until you take the oath in a public ceremony.

What to do, step by step

Step 1: Find which stall you are in, and the date

Interviewed: count 120 days from the date on the I-797C interview notice and the results sheet. No interview yet: compare the Received Date on your receipt notice with the time USCIS publishes for your field office on the processing-times page.

Step 2: Rule out the blockers specific to an N-400

Was the interview continued? Under 8 C.F.R. § 335.3(b), USCIS may continue the examination once so you can supply documents, with the re-examination within the 120 days. Did you fail the English or civics test? 8 C.F.R. § 312.5 gives a second try within 90 days; a later date requires a written waiver of the 120-day requirement under § 312.5(b). A pending removal proceeding bars USCIS from deciding under 8 U.S.C. § 1429, and a denial is a decision that goes to Form N-336 instead.

Step 3: File a case inquiry

Once your receipt date is earlier than the inquiry date USCIS publishes for your office, submit a case inquiry (see the case inquiry guide) and keep the reply. A court does not require this step; the reply records what the agency said and when.

Step 4: Ask your member of Congress or the CIS Ombudsman

Your representative's office sends inquiries to USCIS for constituents at no charge; the congressional inquiry guide explains what to send. The CIS Ombudsman takes a case assistance request once you have contacted USCIS within the last 90 days and given it at least 60 days to respond.

Step 5: Write down what the wait is costing you

Write down, with dates, what the wait has cost you: an election you could not vote in, or a relative you cannot petition for until you are a citizen. Dated notes carry the fifth TRAC factor before the interview and help a court set a remand deadline after it.

Step 6: Get a free review at day 120, or at 12 months

Start the free case review; we then ask for your receipt notice and interview notice by email. We confirm the route, the clock, anything in the file that changes the case, and the district from your county; the when-to-sue guide gives the general test for the pre-interview route.

Step 7: After the complaint is filed and served

The complaint is served under Fed. R. Civ. P. 4(i) on the United States Attorney, the Attorney General and the agency and officers named. The government then has 60 days to respond under Fed. R. Civ. P. 12(a)(2); on a § 1447(b) case that is often a motion to remand with a deadline.

A worked timeline (example)

This timeline is an example: Mateo (example) is an invented applicant.

Common mistakes

• Counting the 120 days from the receipt date. The statute counts from the examination; a petition filed with the interview still ahead invites a motion to dismiss.
• Pleading § 1447(b) with no interview yet. That stretch runs on 28 U.S.C. § 1361 and 5 U.S.C. § 706(1), where the court asks whether the delay is unreasonable.
• Forgetting a continuance or a signed test waiver. A re-examination under 8 C.F.R. § 335.3(b) or a written waiver under 8 C.F.R. § 312.5 is in your file.
• Expecting the suit to produce an approval. Whoever decides applies the eligibility rules to your facts, and an approval is not citizenship until the oath under 8 U.S.C. § 1448(a).
• Throwing away the interview paperwork. The interview notice and the results sheet prove the date the clock started.

Frequently asked questions

Can I sue if I have not had my N-400 interview yet?

Yes, under ordinary mandamus and the Administrative Procedure Act, since 8 U.S.C. § 1447(b) starts only after the examination. The court asks whether the wait is unreasonable, measured against the time USCIS publishes for your field office and the 180-day goal in 8 U.S.C. § 1571(b). Our threshold is 12 months from the Received Date.

Do the 120 days start at the interview or when the background check is finished?

They start at the interview. 8 U.S.C. § 1447(b) counts from "the date on which the examination is conducted", and under United States v. Hovsepian, 359 F.3d 1144 (9th Cir. 2004) (en banc), the initial interview date is the trigger. An unfinished FBI check does not pause the period.

Will suing USCIS hurt my naturalization application?

8 U.S.C. § 1447(b) is a remedy Congress wrote for applicants, and using it asserts a right the law gives you. Whoever decides, USCIS on remand or the court, applies the same eligibility rules to the same facts.

I failed the civics test at my first interview. When do the 120 days start?

The initial examination is still the first interview; under 8 C.F.R. § 335.3(b) the retest must be scheduled within the 120 days after it, and 8 C.F.R. § 312.5 gives you the second try within 90 days. Delaying it past 90 days requires a written waiver of the 120-day requirement (8 C.F.R. § 312.5(b)). How the period runs after a retest is a question for a lawyer.

My N-400 was denied. Can I use § 1447(b)?

No. § 1447(b) covers a failure to decide, and a denial is a decision. Request a hearing before an immigration officer under 8 U.S.C. § 1447(a) on Form N-336, within 30 days of receiving the decision (8 C.F.R. § 336.2; the USCIS N-336 page counts 30 calendar days, or 33 if the decision was mailed). If the denial stands, 8 U.S.C. § 1421(c) gives you de novo review in the district court where you live.

What SpeedUpVisa does for a stuck N-400

At day 120 after the interview, or at 12 months with no interview scheduled, we prepare and file the case for a flat $3,500.

• Confirm the route and the clock from your interview notice or your I-797C receipt notice.
• Check the file for a continuance, a written test waiver, a removal proceeding or a denial.
• Confirm the venue from your ZIP code, so the petition lands in the district where you reside.
• Name the right defendants and serve the United States under Fed. R. Civ. P. 4(i).
• Track the 60-day response clock under Fed. R. Civ. P. 12(a)(2), answer a remand motion, and keep you informed in the client portal.

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