Mandamus Lawsuit

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Understanding Immigration Delays and Mandamus Lawsuits

  • A mandamus lawsuit requests a federal court judge to order the government to take action in a case. It does not and cannot request the judge to actually approve the case. If the judge believes that the delay is unreasonable, the judge may order the FBI to complete clearances and/or the USCIS to adjudicate the application within a specified period of time. Although the time specified by the judge may vary, it is often 30 to 90 days.

  • There is no correct or incorrect time. Certainly, it would be inadvisable to file before the expiration of normal processing times. Generally, we recommend waiting at least 1 ½ years after filing an adjustment of status application. Since many adjustment of status applications with pending security or name check clearances are approved within eighteen to thirty months after filing, the expense of a mandamus case may be saved by waiting longer than eighteen months. Our experience is that applications that are pending more than 2 ½ years often never get adjudicated or at least may be delayed for several more years. Another factor to be considered is that the longer the application has been pending, the greater the chance that a judge may consider the delay to be unreasonable.

  • Hire Green Card Guys Law Group to help you file a federal lawsuit called Mandamus to stop any further processing delays. Unfortunately, it can be a common scenario for applicants to experience unreasonable delays in the adjudication of their immigration applications. Many people who have properly filed their applications and supporting documents experience horrendous delays at USCIS, with very little information from USCIS about the status of their applications, with many under “administrative review.” This results in families being separated, applicants unable to work, and most importantly, the stress of an unresolved immigration case. Applicants in these situations are often unable to continue living productive lives because their immigration benefits are still on hold or “pending.” In some cases, USCIS will simply allow an application to remain pending indefinitely.

     

    There is a remedy for those who find themselves in this frustrating situation. A “mandamus” action may be filed in court to compel USCIS, or any administrative agency, to act where there has been an unreasonable delay that causes harm to the applicant. What a mandamus lawsuit can do is force an administrative agency to take action. What it cannot do is order the administrative agency to rule in any particular way on your specific application. This lawsuit must be filed in U.S. District Court. If successful, a federal judge will order USCIS to issue a decision on your case. Filing a mandamus action is serious. Often, just the filing of this action in U.S. District Court results in USCIS issuing a decision to avoid further litigation.

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    If you have experienced an unreasonable delay and believe you have a right to the immigration relief you requested, and have exhausted other administrative remedies to compel a decision, please contact us. We can help you find resolution, so that you may continue on with your life and not have to face another day of unnecessary delay.

  • The application is filed in federal district court in one of two places: either the federal district court with jurisdiction over the place where the foreign national lives or the federal district court in Washington, D.C. The only exception is on a naturalization case where the permanent resident alien has already been interviewed (called a “336(b) case”), which must be filed in the federal district court with jurisdiction over the place where the permanent resident lives.

  • We have been successful on a very high percentage of these cases, but not 100%. Most judges agree that the grant of the relief in mandamus is appropriate with a long delayed application, but some judges do not. Also, the length of time in which the application is delayed may be a relevant issue affecting the chances of success.

  • This is a common question. After we file lawsuit, we file a request for summons. This is a legal document

  • This is a common question. I am here to remove your concern. No, if the government was going to deny you, they would have done that already. Normally the government will either provide what we want which is normally the decision (or interview if not had that) or they can issue a request for more evidence. Yes it is strange that they could ask for information that you already provided but it is important to provide it quickly, so you can get your legal status. That is what we consider a successful outcome. Whether you decide to hire our team or someone else, I feel better when we know we shared the solution that you took action on. Please keep us updated even if it is 1 year later. All you need to do is decide if you want legal status now.

  • The key thing to remember is that this lawsuit works when everyone believes that the delay you have been waiting is considered an unreasonable amount of time. However, we would not file the lawsuit if we believe it is still reasonable amount of time to process. But most likely, by the time you contacted us, you have been more than enough time. If the lawsuit is contested by a US attorney, that typically means they think that the processing is still within a reasonable timeframe or if the case was filed in the wrong court location based on where you live. In our experience this is rare but it could happen. This is why, as a courtesy, we conduct a preliminary legal analysis to see if you are eligible to apply for what you applied for. We can decide together to refile the lawsuit at a more proper time. Whether you decide to hire our team or someone else, I feel better when we know we shared the solution that you took action on. Please keep us updated even if it is 1 year later. All you need to do is decide if you want legal status now. Don’t be shy. Give us a call if you have any questions.

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Frequently Asked Questions

  • Although on occasion the reason for government adjudication delay may be an investigation of a particular factual or legal issue or even the government’s mishandling or losing of a file, the very large percentage of delayed application are delayed because of pending security, name check or criminal clearances.  Since these clearances are considered a matter of national security, the government will not provide any details regarding the type of clearances that are pending or any likely date for resolution of the clearances.

  • None.

  • When the problem is a delayed clearance, the only other alternative is filing a mandamus case in federal court. Even congressional or senatorial intervention will do nothing to expedite the clearance process.

  • The answer varies greatly depending upon the Assistant U.S. Attorney (“AUSA”) assigned to the case and the judge assigned to the case. Some AUSAs will work with us to try to get the case resolved quickly. Some judges will get involved with the case quickly and force action. Although we have had some cases resolved in less than a month after filing of the complaint in federal court, three to six months after filing is more normal.

  • If the government is convinced that there are “compelling circumstances” that require expediting, the AUSA will make efforts to try to get the case expedited. Examples of this could be medical issues, issues of the person losing eligibility for the benefit if there is a further delay, issues regarding the national interest, etc. In addition, even when there are no “compelling circumstances,” our experience is that many applications get expedited after the filing of the complaint and before the judge has to get involved without any formal notification that the case is being expedited.

  • This is highly unlikely, especially since there are so many mandamus cases being filed. In addition, the government cannot just deny a case for no reason. Before we file a mandamus case, we review carefully the applicant’s eligibility for the benefit sought (permanent residence or naturalization) to make certain that there is no basis for a denial.

  • All government agencies involved in the adjudication of the application could be named. Normally, this includes USCIS (and often the local district director, the regional center director and the commissioner of USICS in Washington), the Department of Homeland Security and the Attorney General of the United States. It is also often a good idea to include as a defendant the FBI, which has the mandate to process the clearances.

  • The official response is usually a Motion to Dismiss in which the government attempts to convince the judge that a mandamus case is not appropriate for an adjustment of status or a naturalization application. In some cases, the application is completed before the government files its Motion to Dismiss.

  • Although some judges agree with the reasons given to dismiss the application, our experience is that most judges agree with the legal argument that we provide in our Reply to the Motion to Dismiss and refuse to dismiss the mandamus case.

  • In that event, the case is dismissed; and the mandamus possibility is gone. The foreign national remains in the exact same position he was in before the filing of the mandamus case.

  • In most cases, the government voluntarily adjudicates the application before receiving a judge’s order requiring it to do so. If that does not happen, we request the judge to issue such an order requiring the adjudication of the application within a specified period of time.

  • No. The judge can only order the FBI to complete the clearances and order USCIS to adjudicate the application within a specified period of time.

  • The government usually raises some combination of the following defenses:

    • cases involving national security are not appropriate for action by the federal court;

    • the court should not allow the mandamus applicant to “jump ahead” of others standing in line;

    • the government has complete discretion regarding how long to take in adjudicating  an application, and its discretion is not subject to court review;

    • the government has no duty to adjudicate the application;

    • the amount of delay in a particular case is not “unreasonable.”

  • ​If the judge issues an order in favor of the plaintiff (the foreign national) the judge can order the government to pay the foreign national’s attorneys fees under the Equal Access to Justice Act. But there is no guarantee that a judge will grant this in your favor.

  • Although the issues are a little bit different, a mandamus case can be filed for a long-pending naturalization applicant just as for a long-pending adjustment of status applicant. There are special provisions available if the naturalization applicant was interviewed and if no decision was made on the application for more than 120 days following the interview. In that event, the federal court judge can be requested to not only order USCIS to adjudicate the application but actually to have the federal court judge hold a hearing and decide the naturalization application.

  • When the mandamus case seeks action on a petition in which the employer (including a university) is the petitioner, the employer can and must be a plaintiff in the litigation.

  • This is a common question. I am here to remove your concern. No it does not unfortunately. It does not hurt to submit an inquiry but it further delays your decision to get your legal status with the only legally viable option which is to sue the US immigration agency. This is a common option and the last legal option to get the status you deserve. Filing an inquiry to Congressional office if anything results in an update. We have clients who decide to authorize us to guide them also after Congressional office tells them waiting for security check and that was the same thing you found out on your own. How frustrating is that.

    Whether you decide to hire our team or someone else, I feel better when we know we shared the solution that you took action on. Please keep us updated even if it is 1 year later. All you need to do is decide if you want legal status now.