Mandamus Lawsuit for Delays
Litigation: Bringing Mandamus Lawsuits Against Consulates and USCIS for Substantial Processing Delays
No one likes litigation, but if the government is not taking any action on your application or petition, you may have no choice. Many clients seek legal assistance from White & Associates when their immigration cases are not being processed by the consulate overseas or USCIS in a timely manner. Sometimes, the government does not act upon visa, naturalization, or adjustment of status 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, other than waiting, there is essentially only one action that the applicant can take to force the government to act — file a lawsuit. This type of lawsuit, known as a “writ of mandamus”, is a request to the US Federal District Court to compel the government to perform a duty owed to the plaintiff: take action on the pending application or petition. You paid the processing fees and submitted the requested documents. In turn the government must make a decision: it has an affirmative obligation to make that decision within a “reasonable” time. These obligations and the judicial power to enforce these obligations are spelled out in the law (28 U.S.C. § 1361 and in the Administrative Procedures Act at 5 U.S.C. §§ 702, 706).
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 12–24 months or is time sensitive, it may be time to consider such action. Filing a lawsuit against the appropriate US Consulate or USCIS may be the only way to get your case processed. This is because the Federal Court can oblige the US Consulate or USCIS 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. Often, the Assistant US Attorney (AUSA) charged with defending the lawsuit will contact the consulate or USCIS, find out the problem, and work to resolve it — sometimes within days of receiving the lawsuit. The AUSA may have hundreds of lawsuits to defend, so it may be in his/her and the government’s interest to resolve the application rather than engage in time-consuming litigation.
One important note: in a mandamus lawsuit, the court can only compel a decision. It cannot force the USCIS or the consulate to make that decision in your favor.
What types of visa and immigration cases are eligible for such a lawsuit?
There are no restrictions on the type of visa or immigration application or petition. If applying for a visa, any visa category is appropriate for such a lawsuit: nonimmigrant visas such as B visitor, E treaty trader or investor, F student, H professional employment, K fiancée, L intracompany transferee, O extraordinary ability, and other nonimmigrant categories, as well as immigrant visas such as for a spouse, parent, or other family members, EB-1 extraordinary ability, EB-2 national interest waiver, EB-3 workers, EB-5 investor immigration, Diversity Lottery, and special immigrant visas, such as Afghan translators and religious workers. If you submitted a petition or application to USCIS, there are no restrictions on the category: naturalization (form N-400), adjustment of status (I-485), family immigration (I-130, I-751), fiancée (I-129 °F), employment-based nonimmigrant (I-129) and immigrant (I-140, I-526, I-829), and special immigrant categories (I-360). While it can be helpful to have a compelling reason or purpose for applying for the visa or immigration benefit, it is not mandatory. In other words, a 3-year delay in processing a B visitor visa to visit friends in the US is more likely to have a successful mandamus outcome than a 4-month delay in processing a fiancé visa.
What is a “reasonable” time to process a visa application or petition?
Every case is different. The context of the delay is important. For example, if there is a deadline to qualify for the visa, such as with an immigrant visa application made under the DV Lottery program, a delay of a couple of months can be fatal to the application, so mandamus may be appropriate. Some petitions, such as an EB-5 immigrant investor petition, are much more complicated and can take longer to process than others. In such cases, a 1–2 year timeframe for USCIS to process a petition may not be considered to be unreasonable.
Individuals from the Middle East, Pakistan, or working in a high-tech field may be subjected to long security checks. While a 1–2 year security check for such individuals may not be considered unreasonable, security checks extending beyond that are less likely to have a sympathetic hearing from a judge. That is why when we filed a writ of mandamus for a physicist after an extraordinary 4-year wait on his adjustment of status application the Assistant US Attorney immediately took action in resolving the delay. That is why in another one of our cases a judge compelled a consulate to make a visa decision within 60 days of an immigrant visa application pending for more than 3 years.
“Reasonable” is a “rubber-band” term, stretching with various interpretations. Courts diverge in their interpretation as to what constitutes a “reasonable” delay: one judge may find that a delay is “reasonable”, while another may find a similar delay “unreasonable." Courts will look to a variety of factors in making that decision. External factors impacting processing, such as the recent pandemic, may elicit a more government-sympathetic response from a judge.
Courts and AUSAs may be more likely to intervene at an earlier stage for certain types of applications, such as naturalization, because of the stakes for the individuals involved. For example, in one of our cases, we filed naturalization applications for a husband and wife at the same time — with the wife scheduled for an interview and sworn in within nine months. When the husband was not interviewed within 1 year, a mandamus lawsuit was filed and within days, he was scheduled his interview and subsequently sworn in as a US citizen.
Another issue to keep in mind is that officially published processing times do not dictate what is “reasonable." For example, just because USCIS indicates on its website that it is taking 40–60 months to process I-829 condition removal petitions or 30–50 months to process I-526 petitions for investors, this does not mean that those processing times are “reasonable”. A court will undertake its own analysis as to whether it is reasonable.
When is mandamus not appropriate?
Because each case is different, it is important to discuss the viability of such a lawsuit in advance. There are times when the filing of such a lawsuit may not be appropriate. For example, if it has only been 2 months since the immigrant visa interview and it remains pending under 221(g), it is highly unlikely that a court would find this unreasonable — regardless of the emotional suffering of being separated from a loved one. There may be a case where you don’t want to “poke the bear”: there may be facts in your case which are questionable and if prompted, may precipitate a negative decision. Of course, some individuals may want closure, and litigation does provide that.
It is also important to note that the government agency cannot retaliate against you for filing a lawsuit. In our experience, the government tends to be more careful and cautious in such cases because it knows that it may be answerable to a judge if it acts in bad faith. This is one additional benefit of litigation: it is more likely to ensure a proper application of the law because there is a neutral third party involved.
Can I get my legal fees reimbursed?
Yes, if the case goes to a decision and the judge rules in your favor, the judge can also award you reimbursement of your legal fees if the government’s position was not “substantially justified” and there are no “special circumstances” making such an award unjust. This reimbursement, under the Equal Access to Justice Act (EAJA), ensures that the government acts properly. With this Act, Congress sought to remove the financial disincentive for individuals to hold the government accountable through such litigation.
What are the steps to filing such a lawsuit?
Step 1: The first step to take is to make written inquiries with the USCIS or consulate. It is best to document these inquiries.
Step 2: If a resolution is not reached, one can notify USCIS or the consulate of the intention to file a lawsuit if resolution is not forthcoming within 30 days.
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?
Of course you are interested in receiving your visa or obtaining an immigration benefit. No one wants to sue the US government. But there may come a time when the government’s inaction on your case has left you no alternative.
White & Associates has more than 20 years of litigation experience, having undertaken immigration-related class actions and successfully representing plaintiffs in mandamus cases and compelling government action on stalled immigration and visa applications. Filing a writ of mandamus against a consulate or USCIS is complicated, and best handled with professional legal assistance. We are one of the very, very few law firms to have a judge rule against a US consulate abroad in a mandamus visa delay case.
The first step is to schedule a consultation. During the consultation, we can discuss the nuances of your situation, analyze the strength of your case, and weigh your options. This will give you a better understanding of the feasibility of such a lawsuit and how to proceed in ensuring that the government fulfills its obligation to you.