The United States Citizenship and Immigration Services (USCIS) and the United States Department State (State Department) process millions of applications a year. While many applications move through the adjudication process smoothly and on time, some applications are delayed for any number of reasons.
Featured Videos for Immigration Delay Litigation
Why is my immigration application delayed?
Reasons for Immigration Delays
- Applications make their way to the bottom of the pile due to the number of new applications constantly coming in
- Sometimes applications get lost or misplaced
- Multiple agencies may have to review an application, and it may be delayed at one of those agencies
- USCIS sometimes relies on paper files, and it can take time to find those files and get the information where it needs to go to process the application
- Agencies may need additional information to process the application
- Applications can be delayed while waiting for background or security checks
What is considered an “unreasonable” delay for an immigration application? This depends on the application. Generally, the process for determining if the government has unreasonably delayed deciding your application contains several steps, including: (1) looking at federal law and regulations; (2) looking at USCIS/State Department processing times; and (3) researching the case law where the lawsuit would be filed. In some cases, the analysis is relatively straightforward.
For example, federal law requires USCIS to decide naturalization applications within 120 days of the interview. Anything longer than that is considered an unreasonable delay. Other applications require more analysis. For example, courts differ on how long an application can be in administrative processing. Some cases get resolved when a case has been in administrative processing for 1-½ to 2 years while some courts do not consider the delay to be unreasonable until the application has been in administrative processing for 4 to 5 years. And some courts even differ as to whether they even have the power to hear Mandamus Petitions for some kinds of immigration applications.
Can a lawsuit help move my immigration application forward?
Mandamus Petitions
A Petition for a Writ of Mandamus or Administrative Procedure Act (APA) Lawsuit—commonly known as a Mandamus Petition—is a lawsuit filed in U.S. District Court asking a federal judge for an order directing the government to perform a mandatory task. In immigration, this is an order directing USCIS and/or the State Department to make a decision about an immigration application that has been pending for an unreasonable period of time. The court will not tell the Agency how to decide the application. The court will only order the agency to make a decision.
To receive this order, a petitioner generally needs to show that the government has taken an unreasonable amount of time to decide the application. In addition, a petitioner needs to show:
- A clear right to the relief sought;
- A plainly defined and peremptory duty on the part of the defendant to do the act in question; AND
- There is no other adequate remedy available
Will this help with MY immigration delay case? Mandamus Petitions can assist with most immigration delay cases. This includes applications filed with USCIS and the State Department.
Is there anything else I can do? An immigration lawyer may be able to work with the U.S. Department of Justice to resolve your case before filing a lawsuit. In other cases, a lawyer can tell USCIS that you will file a lawsuit if the matter is not resolved. A decision to utilize these pre-lawsuit tools depends on the facts of the case.
How does the immigration delay litigation process work?
What to do BEFORE filing a Mandamus Petition
As Mandamus Petitions and APA Lawsuits are generally considered a last resort, it is helpful to do other things first—like contacting the agency and reaching out to a member of Congress—before filing a lawsuit. By doing these other things, you can show the court that you have done your best to resolve this matter and that the only option left is to file the lawsuit.
How to File a Mandamus Petition
U.S. law governs where someone can file a lawsuit. Generally, you file a Mandamus Petition in one of three places:
- Where a defendant (a United States officer or employee) resides;
- Where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; OR
- Where the plaintiff resides if no real property is involved
28 U.S.C § 1391(e)(1)
This is a legal question, and an attorney can advise on the best place to file the Mandamus Petition.
Do I need a lawyer to file a lawsuit? The law does not require you to have an attorney to file a Mandamus Petition—but they are federal lawsuits, which are governed by a number of rules. If you don’t follow these rules, your case could be dismissed. Therefore, while not required, having a lawyer is highly recommended. If you choose to hire a lawyer to handle your case, they will handle all the required paperwork for the Mandamus Petition, and, where possible, work with the Department of Justice and USCIS to resolve your case.
Can multiple people file a single Mandamus Petition? Yes—but like most things in this area, it is important to consult an attorney to make sure that everyone is entitled to the relief sought and to determine if this is the best strategy.
Can someone outside the United States file a Mandamus Petition? Yes. An individual waiting outside the United States for an embassy or consulate to make a decision about a visa application can file a Mandamus Petition in the United States.
Is there a deadline by which I have to file a lawsuit? Unlike almost everything else in immigration, the answer is no. You control when you file the Mandamus Petition. There is no deadline you have to meet to file the mandamus petition.
Can I file a lawsuit if I am in administrative processing? Currently, you can file a Mandamus Petition to get out of administrative processing. Most courts have held that administrative processing is not a final decision on your visa application. Therefore, you can file a Mandamus Petition.
Can I file a lawsuit if I have already decided a final denial of my immigration application? No. A Mandamus Petition is used to force the government to make a decision about your application. Therefore, if the government has already made a decision about your application, you cannot file a Mandamus Petition. Depending on the application, you may file an appeal of that decision in federal court in some cases. But this is a different kind of lawsuit.
What happens once my immigration delay lawsuit has been filed?
What happens AFTER filing a Mandamus Petition
Most of the time, Mandamus Petitions simply act as a reminder to the government that an immigration application is pending. Many Mandamus Petitions can be resolved within a matter of months of filing. But in other cases, the government may push back in the form of a motion to dismiss or a motion for summary judgment, in which case the lawsuit can take longer.
Will I need to go to court if I file a lawsuit? Usually, no. Many Mandamus Petitions are resolved without every having to go to court. And even if your attorney needs to go to court, usually you will not.
Will the government retaliate if I sue them?The short answer is no. It is illegal for the government to retaliate against you for filing a lawsuit against it.
