Often times, immigration cases are not being processed by the USCIS in a timely manner. In many occasions, the government does not act upon asylum petitions, work authorization documents, naturalization, adjustment of status applications or on visa applications. In these instances, there is essentially only one action that the applicant can take to force the agency to act — file a lawsuit. This type of lawsuit, known as a “writ of mandamus”, is to compel the government to perform a duty owed to the plaintiff, namely, take action on the pending application. 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 a year, it may be time to consider such action.
Filing a suit against the USCIS or appropriate US Consulate may be the only way to get your case processed because the Federal Court can oblige the USCIS or US Consulate 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. These lawsuits force the government to finally take action. It is important to remember that the court cannot force the USCIS or the consulate to make a decision in your favor.
Steps to filing a writ of mandamus
- Step 1: The first step to take when processing a case that has gone beyond the stated time is to make inquiries with the USCIS or consulate. It is best to document these inquiries.
- Step 2: If a resolution is not reached, the next step is to notify USCIS or the consulate, as well as the local US attorney in the jurisdiction, of your intention to file a lawsuit if resolution is not forthcoming within 30 days. This step will often have the desired effect. Even if it does not lead to a decision immediately, it often prompts the USCIS or consulate to begin working on the matter.
- 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.