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My I-829 application to remove conditions is delayed but still within USCIS’s estimated processing times. Can I sue the government?

By April 13, 2023Immigration
a man wondering if he can sue the government.

For those who have been waiting an unreasonably long time for the government to adjudicate their petitions, suing the government often proves to be an effective solution. We have posted several blog posts on these lawsuits, which are called mandamus actions. You can learn more about mandamus actions here, and about what makes a strong mandamus case here.

Several of our prior posts on this topic have focused on delays affecting the Form I-526 Immigrant Petition by an Investor, which is the first petition filed in the process of applying for an EB-5 investor green card. Unfortunately, the unreasonable delays that impact adjudication of the I-526 petition also plague other steps in the EB-5 process, including adjudication of the Form I-829 Petition to Remove Conditions on Permanent Resident Status. (For more information on the EB-5 process and the requirement to first secure conditional permanent resident status before applying to have those conditions removed, see here).

USCIS currently provides an estimated processing time for the Form I-829 of 61 months. That’s right – USCIS wants us to believe that it needs more than five years to decide whether to remove the conditions on an applicant’s permanent resident status.

An individual with conditional permanent resident status becomes eligible to apply for naturalization as a U.S. citizen less than five years after obtaining conditional permanent resident status. However, since they can only apply to naturalize once their I-829 petition has been approved, USCIS’s estimated processing time of 61 months would prevent individuals from enjoying and exercising the rights of U.S. citizens, such as obtaining a U.S. passport and voting in elections.

We believe that a 61-month delay is entirely unreasonable, and that those applicants who have waited far shorter than 61 months may have a firm basis on which to sue the government. Below, we explain why by following a similar format as our prior post on Form I-526 delays.

What do the USCIS posted processing times mean?

USCIS provides “processing times” for a variety of petitions on its website here. Upon running a quick search on the Form I-829, the website informs us that “80% of cases are completed within 61 months.”

This 61-month figure is not an average processing time or a median processing time. Instead, it is the amount of time that USCIS took to decide 80% of the petitions that it adjudicated during the most recent six-month window. Let’s break that down to better understand how USCIS arrived at this figure.

According to USCIS, they first count all of the I-829 petitions that they adjudicated during the most recent six-month window. Let’s say that number is 1,000 petitions. They then calculate how long it took them to adjudicate 80% of those petitions – in our example, this would be the first 800 petitions. If it took them six months to adjudicate those 800 petitions, the website would display “6 months” as the processing time.

What is the inquiry date that USCIS provides?

If you keep reading below the processing time, you will see a box and a question asking “When is your receipt date?” Once you have entered your receipt date (the date your petition was received by USCIS) into this box, the website will inform you whether, in USCIS’s opinion, you have waited long enough to even warrant the ability to ask USCIS what is going on with your petition.

If I were to input an I-829 receipt date 61 months ago (again, this is USCIS’s published processing time), the response is interesting. The website tells me that I must wait another eight months before I can even contact USCIS to ask about what in the world is taking so long. Apparently, the inquiry date reflects processing times that are longer than the 61-month processing time.

USCIS confirms this to be the case. They explain that the inquiry date reflects the amount of time it takes USCIS to adjudicate not 80% of petitions, but rather 93% of petitions.

Is 93% an arbitrary value? We think so. Is it reasonable to tell an applicant that they need to wait almost six years before asking USCIS why it isn’t doing its job and adjudicating the I-829 petition? We think not. Below, we explain why.

First, courts have found that USCIS processing times are not necessarily reasonable.

As noted in our earlier blog post here, courts have held that the posted processing times are not inherently reasonable. By doing so, these courts have emphasized that there is an opportunity to challenge USCIS on its posted processing times.

Our firm has had success in federal court arguing that USCIS’s processing times are not inherently reasonable. This outcome has been echoed by courts around the country. For example, a federal court in California recently held that while the posted processing times provide context, “they don’t prove that the delays at issue are reasonable as a matter of law. For depending on the grounds for the delays, even processing times at the low end of the range could be unreasonable.” Another federal court in Illinois reached the same conclusion, stating that “an unreasonable delay that applies to every applicant is still unreasonable.”

Second, the government’s own data shows that USCIS’s published processing times are unreasonable.

USCIS has posted the historical national average processing times for specific petitions here, including data for the I-829 petition. Their data shows that over the past six years, the median processing times for I-829 petitions has increased by 205% — a factor of three:

Fiscal Year Median I-829 Processing Time (in Months)
2016 14.9
2017 18.2
2018 21.8
2019 25.9
2020 24.8
2021 34.5
2022 45.5


These figures are very different (and fortunately far shorter) from the 61-month estimated processing time, which suggests that 61 months is actually not a reasonable representation of the amount of time applicants should be expected to wait for their I-829 petitions to be processed. On the other hand, if the estimated processing times are accurate, they show that USCIS has suffered a sharp decline in efficiency, for which it should be expected to provide an explanation.

Were these growing delays caused by an increase in the number of I-829 petitions USCIS received? Not according to USCIS. In fact, according to USCIS’s data, the number of I-829 petitions USCIS received annually over this period actually declined:

Fiscal Year Number of I-829 Petitions Received
2016 3,474
2017 2,625
2018 3,283
2019 3,756
2020 3,096
2021 3,301
2022 1,270

Public statements by DHS suggest that USCIS has the resources to more efficiently process I-829 petitions.

There is a legitimate argument to be made that USCIS has the resources to hire sufficient staff to timely adjudicate I-826 petitions. USCIS is primarily supported by fees, rather than by government funding, and has the discretion to hire additional staff. USCIS has disclosed, in a 2019 Notice of Proposed Rulemaking (NPRM), that the average number of hours it takes a USCIS employee to process an I-829 petition is 8.15 hours. The filing fees for an I-829 petition totals $3,750. That works out to USCIS receiving more than $460 per hour to process an I-829 petition. In spite of this, there apparently remain staffing shortages and other inefficiencies that result in the extreme I-829 processing delays. This may be due in part to the way in which USCIS inefficiently allocates filing fees (which is also discussed in the NPRM mentioned before).

Finally, Congress suggests USCIS should adjudicate petitions in a timeframe far shorter than the estimated processing time of 61 months.

According to 8 USC section 1571(b), Congress estimates that immigrant petitions should be processed “not later than 180 days after the initial filing of the application,” and that nonimmigrant visas should be processed “not later than 30 days after the filing of the petition.”

In 2022, Congress reiterated its expectation that USCIS would adjudicate I-829 petitions within a timeframe far shorter than 61 months when it passed the EB-5 Reform and Integrity Act and reauthorized the EB-5 program. In doing so, Congress directed USCIS to adjust fees for the purpose of processing an applicant’s I-829 petition within 240 days, on average.


One of the benefits of filing a mandamus action is that it takes away from USCIS the exclusive power to decide whether the delay you have experienced is reasonable. Instead, a mandamus action gives that authority to a neutral federal judge. Not surprisingly, many federal judges have agreed that, in light of the facts we have shared here, USCIS’s processing delays are not as reasonable as the government would have us think.

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