Our law firm regularly handles writ of mandamus lawsuits. We provide this guide which goes over typically asked questions such as visa requirements and more.
If you are tired of waiting for USCIS or a US consulate to process your visa application or petition, a Writ of Mandamus action may be a potential solution. This legal action can compel an administrative agency to act within a reasonable time frame.
The Mandamus Act, 28 USC § 1361, allows individuals to file a Writ of Mandamus action against an officer or employee of the United States or agency to perform a duty owed to the plaintiff. This act grants the district courts original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or agency to perform a duty owed to the plaintiff.
It is important to note that the Mandamus Act only gives courts the authority to compel the agency to act on a case. It does not apply to the substance of a case. Therefore, although it can be used to force USCIS or a consulate to make a decision, it does not necessarily guarantee an approval. If the decision made is a denial, an appeal or possibly a motion to reconsider or reopen may be filed.
You, as the plaintiff, have to show that you have i) a right to the relief requested, ii) that the defendant (USCIS, for example) has a duty to perform the action demanded of them, and iii) no other adequate remedy is available.
As an applicant, you have the right to a decision on an application, and the defendant, USCIS, has a duty to perform their responsibility to adjudicate applications within a reasonable amount of time. So how do we determine what is a “reasonable” amount of time? At the very least, we can look at the current processing times. At times, the ordinary processing time can be arguably said to be unreasonable, but if we go by the default that the ordinary processing time is reasonable, a bit of a delay past that wouldn’t typically be sufficient to file a writ of mandamus action. The typical answer to what is beyond reasonable is if USCIS takes over a year past the ordinary processing time to adjudicate a case, or if a consulate puts an application on hold for over a year.
As for the question of whether you have an adequate remedy, the plaintiff should go through the process of exhausting remedies by at least taking some escalation steps, and show that these have not been fruitful. So if a case is beyond normal processing time, the applicant should first do a case inquiry. The inquiry can be done here: https://egov.uscis.gov/e-request/Intro.do
If USCIS does not give an adequate response and simply says the case is undergoing background checks, then give USCIS a reasonable amount of time, and do another service request, perhaps 4-6 months later. If USCIS still says the case is undergoing background checks, it may be advisable to contact a congressperson, who can be found here: https://www.house.gov/representatives
The congressperson is likely to be unhelpful and simply repeat what USCIS has been telling you. The congress person would also be the first and perhaps only escalation point in the case of a delay at a US consulate or embassy on a visa application. The petitioner/sponsor should be the party contacting the consulate for visa delays.
Keep documentation of all the efforts made. At the 1-year mark, then consider filing a writ of mandamus action to compel a decision. This action could prevent potentially years of waiting in some cases which appear to be held up indefinitely. The mandamus action holds government agencies accountable.
The complaint must be filed with the local district court that has proper jurisdiction. If the underlying immigration case is pending at the San Francisco or Santa Clara field office, for example, then the proper federal district will be the Northern District Court. The complaint will assert jurisdiction, list defendants, state facts, explain how remedies have been exhausted, state the cause of action and assert a prayer of relief. It then gets filed and the defendant (US government in this case), has 60 days to answer where they may oppose the mandamus complaint. Often, the government settles the issue with an assurance to the court that they will issue a decision within a specified period.
If you filed for naturalization, and you’ve already done your interview, and they your oath ceremony doesn’t get scheduled within 120 days, then pursuant to INA § 336(b), USC § 1447(b), you may request for judicial review. The regulation states:
If there is a failure to make a determination under [INA] § 335 [8 USC § 1446] before the end of the 120-day period after the date on which the examination 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 jurisdiction over the matter and may either determine the matter or remand the matter, with appropriate instructions to the Service to determine the matter.
The results of such a complaint would be either i) an adjudication of the naturalization application in court and by the court, or ii) a remand to USCIS for immediate adjudication.
USCIS, the United States Citizenship and Immigration Services agency, is responsible for processing immigration applications and petitions. Unfortunately, many applicants face long processing delays that can cause significant hardship. Here are some interesting statistics and facts about USCIS processing delays.
In 2021, USCIS had a backlog of over 1.3 million applications and petitions. The average processing time for some applications has increased by 75% since 2014. In some cases, applicants have waited years for their cases to be resolved. The delays have been attributed to a variety of factors, including increased security checks, policy changes, and the COVID-19 pandemic.
US presidents have recognized the problem of USCIS processing delays. In 2019, President Trump issued an executive order aimed at reducing processing times for employment-based immigrant visas. The order directed USCIS to prioritize cases that had been pending for more than 12 months and to improve communication with applicants.
The backlog and delays have significant impacts on families and businesses. Immigrants waiting for their cases to be resolved may be unable to work or travel, and may be separated from their families. Employers may face delays in hiring needed workers, impacting their ability to grow their businesses.
USCIS has taken some steps to address the backlog and reduce processing times. In 2020, USCIS increased fees for certain applications to help fund hiring additional staff and modernizing technology. Additionally, USCIS has expanded its Premium Processing program, which allows applicants to pay an additional fee for expedited processing.
While USCIS processing delays continue to be a significant issue, it is encouraging to see both President Trump and President Biden taking steps to address the problem. Hopefully, USCIS will continue to take action to reduce processing times and improve communication with applicants.
If you’re experiencing USCIS processing delays in your immigration case, filing a Writ of Mandamus may be your best option to obtain a decision from USCIS. A Writ of Mandamus is a legal action that compels a government agency to take a particular action. While you can file a Writ of Mandamus on your own, it can be a complex and time-consuming process. That’s why you should consider hiring a Mandamus law firm or attorney to help you prepare your case.
Mandamus attorneys specialize in immigration law and have extensive experience with USCIS processing delays. They can provide you with valuable insights and guidance on how to present your case to the court in the best possible light. They can also help you navigate the complex legal process, including filing the complaint, serving the defendants, and arguing your case in court.
One of the most significant advantages of hiring a Mandamus law firm or attorney is their ability to help you gather the evidence needed to support your case. They can help you obtain USCIS records, correspondence, and other documents that are critical to proving your case. They can also help you identify and work with expert witnesses who can provide testimony and opinions to support your case.
Hiring a Mandamus attorney can also give you peace of mind. USCIS processing delays can be frustrating and stressful, and it can be challenging to know how to proceed. An experienced attorney can help you understand your options and develop a legal strategy that maximizes your chances of success. They can also provide you with emotional support and guidance throughout the process.
In conclusion, filing a Writ of Mandamus can be an effective way to obtain a decision from USCIS in your immigration case. However, it is a complex legal process that requires extensive knowledge of immigration law and USCIS procedures. Hiring a Mandamus law firm or attorney can help you navigate this process and increase your chances of success. Contact a reputable Mandamus attorney today to discuss your case.
According to Forbes, “Immigration law is incredibly complex, and navigating it without expert assistance is not advisable. An immigration attorney can be an indispensable asset in your journey toward citizenship or permanent residency in the United States.”
Our firm handles mandamus actions at highly competitive rates. Click here to reach our legal fee schedule .
To discuss writ of mandamus and other options with an experienced immigration attorney from the American Visa Law Group, feel free click the contact us tab and fill out the inquiry form or call us at 510-500-1155.
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