Litigation: Bringing Mandamus Lawsuits Against USCIS and Consulates for Substantial Processing Delays
When your case is not being processed
Many clients seek legal assistance from White & Associates when their immigration cases are not being processed by the USCIS or consulate in a timely manner. Often, the government does not act upon naturalization, adjustment of status applications or on visa applications. Cases may also be delayed by FBI background checks. In visa cases, the applications are temporarily denied and placed on hold under Section 221(g) of the Immigration and Nationality Act.
In these instances, there is essentially only one action that the applicant can take to force the agency to act — file a lawsuit. This type of lawsuit, known as a “writ of mandamus”, is to compel the government to perform a duty owed to the plaintiff, namely, take action on the pending application. There is no law or strict rule on how long a person must wait before filing a lawsuit. However, if your application is pending for more than a year, it may be time to consider such action.
Filing a suit against the USCIS or appropriate US Consulate may be the only way to get your case processed because the Federal Court can oblige the USCIS or US Consulate to review your application/petition and make a final decision within a short period of time (usually within sixty days). Upon receiving a complaint filed with the Federal Court, the government must answer within sixty days of the complaint. These lawsuits force the government to finally take action. It is important to remember that the court cannot force the USCIS or the consulate to make a decision in your favor.
Steps to filing a writ of mandamus
Step 1: The first step to take when processing a case that has gone beyond the stated time is to make inquiries with the USCIS or consulate. It is best to document these inquiries.
Step 2: If a resolution is not reached, the next step is to notify USCIS or the consulate, as well as the local US attorney in the jurisdiction, of your intention to file a lawsuit if resolution is not forthcoming within 30 days. This step will often have the desired effect. Even if it does not lead to a decision immediately, it often prompts the USCIS or consulate to begin working on the matter.
Step 3: If a month has passed with no action on the case, the lawsuit should be filed and served upon the relevant defendants (the government agencies which have not acted) and the local US attorney.
How does White & Associates help?
White & Associates has many years of litigation experience, having successfully represented plaintiffs in mandamus cases and compelling government action on stalled immigration and visa applications. Filing a writ of mandamus against the USCIS or a consulate is complicated, and best handled with professional legal assistance. We are one of the very, very few law firms to have a reported mandamus decision against a US consulate abroad in an immigrant visa delay case. In another recent example, a client’s naturalization application was pending for more than a year without the scheduling of an interview. After the filing of the mandamus lawsuit, USCIS appointed an interview within 60 days, conducted the naturalization interview, and 30 days later, issued an approval notice. The client is now a US citizen.
If the lawsuit is resolved by a judge’s decision in favor of the client, we also request the court to direct the government to reimburse the client for legal fees.
Please contact us so that we may help you.