Writ of Mandamus (Federal lawsuit against USCIS)
Has your case been pending with U.S.C.I.S. for an extensive amount of time?
You filed your immigration application, you paid the USCIS fees, you have already done bio-metrics but you haven’t heard anything from USCIS regarding your Application. You attempted to follow up with USCIS by filing case status requests, by calling the 1-800 number several times to speak to a customer representative, by attempting to try to schedule InfoPass appointments however you always get the same answer: security checks are still pending or your case needs additional review.
Law office of Raymond Lo can help you get your application moving!
For many cases, it may be appropriate to file a Federal lawsuit against U.S.C.I.S, to force them to act on your application. There is an act known as the Administrative Procedures Act (5 U.S.C. §500 et seq, the “APA”). This act allows applicants to file a lawsuit against USCIS and other related federal agencies to compel to take action or make a decision on your case. Congress stipulated that USCIS when adjudicating a application, must be made within a reasonable time. Although, every case is different, you may not know that you have a option to force USCIS to act. The APA allows applicants the right to file a lawsuit against USCIS. Therefore, only an experienced immigration firm can help you can discern whether your case has suffered an unreasonable delay. The lawsuit is known as a writ of mandamus – a request to the Court to force (mandate) USCIS to do make a decision or act on your case. Please note that this does not mean your case will be approved by USCIS, since the approval is contingent on your original application; rather a Writ of Mandamus forces USCIS to adjudicate (decide or act on your pending application)
This means that your case could be approved or denied. The Law Office of Raymond Lo can discuss your chances whether your application is more likely to be approved or denied.
The truth is that filing a writ of mandamus is the option of last resort when have been given a round around by USCIS. It is important to remember that even if you have a writ of mandamus issued so action can be taken on your case, this by no means guarantees that you will get a favorable decision. The court can order the USCIS officer to make some decision on your case but cannot order them to make a specific decision.
There Are Two Types of Writs of Mandamus
- Peremptory Writ of Mandamus: There are court orders issued against USCIS, telling them they must act according to their lawful duty.
- Alternative Writ of Mandamus: These are court orders that force USCIS to take a certain action or, alternatively, show the judge why it does not have to obey.
Either way, the writ will force some action on your case. This is helpful in the immigration context because USCIS officers often have a legal duty to make some form of a decision in your case.
How to Get a Writ of Mandate Issued
In order to get a mandamus issued, we must generally show the court that:
- you have a clear right to the relief request;
- the defendant (in this case USCIS) has a clear duty to perform the action you want to be ordered; and
- you do not have any other adequate remedies available and you have exhausted every possible option to them to act
Examples of when a Writ of Mandamus can be applied:
In cases where you have applied for citizenship and have passed the English and civics tests, USCIS must make a decision within 120 days of the interview date. However, it is not uncommon for years to pass without a decision. In those cases, you or your lawyer can file a writ of mandamus to order USCIS to decide on your case.
I-130: Petition for Alien Relative (U.S. Citizen spouse or parent filing a petition for immediate relative)
If you are a U.S. Citizen who filed a petition for a immediate relative (spouse or child) who is eligible to adjust status in the U.S. based on a legal entry. You can file a Writ of Mandamus if your petition has been pending for more than 2 years.
I-485: Permanent Residence/ Adjustment of Status
If you submitted an I-485 after either an I-130 Petition for Alien Relative or I-140 Immigration Petition for Alien Workers, you also have a clear right to a determination. However, the timing is a little different compared to naturalization. In these cases, courts will generally consider a delay unreasonable after two years pass from filing. It is also generally advisable to first file a “Notice of Intention to File for a Writ of Mandamus and Declaratory Judgment” with USCIS in the hopes that it encourages them to act before they are legally forced to. If not, then you can go ahead and file the petition for a writ of mandamus with the court.
I-730: Application for Refugee or Asylee Relative Petition
If you have filed a refugee or asylee petition for your spouse or children and you have been waiting more than 2 years for their I-730 consular interviews, you can force USCIS to act on the petition and schedule a interview for your love ones at the U.S. consulate.