You Can Win Your Mandamus / APA Delay Case, But You Need to Do It The Right Way

by Heidi Meyers | Sep 24, 2026 | Articles

By Heidi J Meyers, copyright 2025 © all rights reserved.

If your USCIS petition or application is unreasonably delayed, you may petition a federal judge to order USCIS to adjudicate your case. However, you must invest time, effort and expense in doing a thorough job with the complaint, and perhaps the additional step of filing a motion for summary judgment.

1. It May Not Be As Easy As the Internet Would Have You Believe. Moreover, filing a federal mandamus/APA delay action does not guarantee a particular result.

You often see articles or promotional materials on the Internet that talk about the petition for writ of mandamus as a magic bullet, as if as soon as you file your petition or complaint in federal court, you will automatically get your USCIS petition or benefit application adjudicated, without much effort. Remember these are often for the purpose of sales, and exaggerate how quick and easy it will be.

For example, there are online DIY programs that companies sell, encouraging you to fill a form online and do it yourself.

Filing a petition for writ or mandamus/APA unreasonable delay complaint, does not always result in an immediate decision on your case. Keep in mind, the mandamus action is just to get USCIS to adjudicate your case, and so USCIS may then hurry up and deny it too. You are not asking the federal district court for a certain result, only that USCIS make a decision.

2. What can go wrong? The DOJ may delay in assigning an AUSA, request more time, file a motion to dismiss, and the judge may order status reports and conferences, resulting in extensive time and effort after the complaint is filed. Also, the federal judge may deny your case.

The perfect scenario: you file your complaint, serve the defendants, and right away get an AUSA assigned to the case, who contacts you and says they have contacted USCIS and, for example, your marriage petition is approved. How can your case deviate from the ideal scenario?

If you file a short, flimsy complaint, it is quite possible that the US Attorney’s Office will not want to settle at all, and may file a motion to dismiss, due to lack of subject-matter jurisdiction under F.R.C.P. 12(b)(1), or argue that you have failed to state a claim upon which relief may be granted, so even if the facts you put in your complaint are true, you are not entitled to relief and your federal case should be dismissed, under F.R.C.P. 12(b)(6). You will then have to file an opposition to the motion to dismiss.

Another problem that may arise is, the US Attorneys Office does not assign an AUSA to work on the case until close to the end of the 60 days they have to respond to your complaint after being served, and then ask for more time.

In the meantime, the federal judge orders a joint status report and status conferences.

Quick and easy no more!

3. What is the solution? A thorough administrative record, detailed complaint, and good communication with the AUSA or OIL DOJ Attorney. You may need to file a motion for a preliminary injunction.

When you initially file your petition/complaint, who are you trying to convince? You are trying to convince the US Attorneys Office and AUSA assigned to your case (or in DC, perhaps the OIL DOJ attorney) that it is not worthwhile fighting you and that they should simply contact USCIS to get them to locate the file and issue a decision on your case, or say, get your interview on your marriage petition scheduled.

You want to reach out to the US Attorneys Office. If no AUSA has yet been assigned, you can address your email or phone calls to whoever is in charge of civil immigration litigation. Otherwise, contact the AUSA assigned and see if you can convince them to settle.

Additionally, you need to make sure that before you file in federal court, you have submitted all the evidence in your case to USCIS, and that the USCIS file is thorough and complete. You cannot add new evidence when you file in federal court, the case is based on what was already filed with the administrative agency. Show you have followed up with inquiries and requested an expedite in your case.

While commonly called mandamus cases, you should include not only a claim under the Mandamus and Venue Act, 28 U.S.C. §1361, but also APA claims under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.

You also need to take some time and pay attention to procedural issues, such as standing. To have standing, a plaintiff must show that: (1) he has suffered an injury in fact; (2) that the injury is fairly traceable to the defendant's challenged conduct; and (3) that a favorable decision would likely redress the injury. Friends of the Earth, Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).

For example, if you will lose your work authorization, due to a long delay in adjudicating your work permit, your chronically-ill spouse will lose their health insurance, will not be able to continue essential medical treatment, and you will be unable to support your family.

Another option if an AUSA is not assigned right away, and you do not want to wait the 60 days, is to file a motion for a preliminary injunction. This is additional work, but if you are very pressed for time, such as running out of work authorization, it is an effective option.

A district court may issue a preliminary injunction, if the plaintiff shows:

1. That he is likely to suffer irreparable harm in the absence of preliminary relief;
2. Either a) likelihood of success on the merits; OR b) sufficiently serious questions going to the merits to make them a fair ground for litigation;
3. A balance of equities tipping in the Plaintiff’s favor;
4. An injunction is in the public interest.

These are effective means to get your desired result in federal court. Certainly, you will need a competent immigration attorney to assist you.

Waivers of Inadmissibility and Exemptions from Bars to Immigration are Still Available.

by Heidi Meyers | Sep 24, 2026 | Articles

By Heidi J Meyers, copyright 2026 © all rights reserved.

THE GOOD NEWS, WAIVERS OF INADMISSIBILITY ARE STILL AVAILABLE!

As of this writing, January 18 2026, waivers of inadmissibility are still available and getting approved (who knows if this will change next week or next month).

The good news is, that waivers are still available and USCIS and DOS are still processing waiver applications. Our firm has had a number of I-212 and I-601A waivers approved and the clients departed the US for consular processing in various countries in Latin America and returned to the US with their immigrant visas as permanent residents, from the Summer 2025, up to this January 2026. Additionally an immigrant visa applicant with a long history of fraud in the US but with very sympathetic factors in his case, was also able to obtain his immigrant visa in South Asia and return to the US after being abroad for a number of years, with an approved I-601 waiver under INA 212(i). While there may now be more push-back by USCIS and reluctance, you may still have your waiver application approved if you have a strong case that is presented properly.

THE DIFFERENCE BETWEEN A WAIVER AND AN EXEMPTION.

Waivers in immigration law differ from exemptions. An exemption is written into the statute, the Immigration and Nationality Act (INA) and if you qualify, you are, well, exempted from whatever rule or ground of inadmissibility. You do not have to make a separate application to USCIS or DOS for an exemption.

EXAMPLES OF EXEMPTIONS FROM BARS IN THE STATUTE

An example of an exemption would be, that immediate relatives of US citizens are exempt from the statutory bars to adjustment of status to permanent residency if they have fallen out of status or worked without authorization. It is written into the statute, and is an exemption, see INA 245(c)(2), 8 USC 1255(c)(2). You do not need to file any form with USCIS or DOS. As long as you can prove that you were inspected by CBP and admitted or paroled into the US, you are eligible for approval of Form I-485 and adjustment to permanent resident as the immediate relative of a US citizen regardless of having overstayed or worked without a work permit.

Another exemption is INA 245(k), 8 USC 1255(k) for applicants adjusting with an approved I-140 employment petition, where the applicant has not continuously maintained their lawful nonimmigrant status or has worked without authorization, if you can prove that it was for 180 days or less, in the aggregate. There is no separate waiver application, but the applicant must extensively document that his or her violation of status or unauthorized work was for a brief period, 180 days or less in the aggregate (meaning USCIS adds up the total of separate periods of say, working without authorization). This documentation is included in the I-485 adjustment application.

Example: Jimmy Jamil has H-1B status through his employer, who has obtained an approved Form I-140 on his behalf. After the I-140 is approved, Jimmy decides to pick up some extra work on the side as an independent contractor, not through his employer. He does these side gigs for 60 days, and then files for adjustment. He has to report the additional income on his Forms 1040 income tax returns. He continues working without authorization on these side jobs and then receives his work permit, EAD card, 30 days after filing for adjustment. He has accumulated an aggregate of 90 days of working without authorization and is eligible for the 245(k) exemption.

EXAMPLES OF WAIVERS

Waivers differ from exemptions in that even if you qualify to apply for a waiver, you still must make an extensively-documented application with USCIS or DOS and the waiver may still be denied. Simply qualifying to apply for a waiver is no guarantee that the waiver will be approved. Unlike an exemption to a bar, USCIS or DOS may deny a waiver in the exercise of discretion.

There is no magic, each waiver application needs to be extensively documented. Also the standards and factors considered may differ depending upon the type of waiver.

For example, if you are in the US on a J-1 and are subject to INA 212(e), the two-year foreign residency requirement, you may apply for a waiver based on exceptional hardship to your US citizen or permanent resident spouse or child, or else based on persecution due to race, religion or political opinion, by filing the Form I-612 with USCIS, which will then send its recommendation to DOS (there are also other waivers available of the 212(e) requirement, such no objection, Conrad 30 etc, which we will not discuss). USCIS sends its waiver recommendation to the DOS Waiver Review Division. DOS then sends back its own recommendation to USCIS.

Since it is a waiver and not an exemption, you must file a Form I-612 waiver application, and then file for adjustment. They are two separate applications.

Similarly, with the Form I-601A provisional unlawful presence waiver, you will need an approval of your unlawful presence waiver prior to departing the US to attend your immigrant visa interview with the US Embassy or consulate abroad. The immigrant visa application, Form DS-260, I-864 and immigrant visa processing with CEAC of the State Dept is a separate process from applying for the I-601A waiver with USCIS.

Even if you meet the basic minimum eligibility requirements to file, i.e. you have an approved I-130, I-140 or I-360 petition, are not in removal proceedings, or removal proceedings have been administratively closed, and you have a qualifying family member, either a spouse or a parent who is a US citizen or permanent resident, that does not necessarily mean that you will be able to show extreme hardship to your qualifying family member or that USCIS will grant your waiver.

There are many different waivers of inadmissibility and exemptions to bars to immigration, these are just a few examples. These remain available to those who may have a ground of inadmissibility or a bar to adjustment or other immigration status.

How to Prepare FOIAs and Get Your Client’s Files: Lessons from the Prince Harry Case

by Heidi Meyers | Sep 24, 2026 | Articles

By Heidi J Meyers, [email protected]

Lessons from the Prince Harry case: FOIA (Freedom of Information Act) litigation over the decision to grant Prince Harry a visa.

After Prince Harry revealed his drug use in his book Spare, including cocaine, psychedelic mushrooms and pot, there was a brouhaha about whether he had revealed his extensive use of drugs in his visa application. The Heritage Foundation tried to find out if Prince Harry had concealed his drug use in his immigration applications or if he had received a waiver. We can learn from our opponent some important lessons re FOIA requests.

The case, Heritage Foundation v. DHS, 1:23-cv-01198-CJN (DDC, filed 05/01/2023), while brought by the anti-immigration Heritage Foundation, has helpful lessons for immigration attorneys filing FOIA requests and advocating for our clients in federal court.

First, request not only the A# file but also all records with the applicant’s name, including other applications and supporting documents that are not in the A# file. Make a detailed list.

The Prince Harry Complaint lays out the extensive FOIA request filed by the plaintiffs. This list is quite helpful to immigration attorneys. Request all records within the Alien File (A#-File), as well as any applications and supporting documents, and documents not included in the A# file, including but not limited to:

• Any and all applications for immigration benefits filed, whether or not adjudicated; ·
• Any and all Forms I-213;
• Any and all Forms I-275; and
• Any and all Forms I-877.

Id. You may use this high level of detail as a basis for your own FOIA requests, but modify it.

IRAP has found that certain applications and documents may not be included in the A file, such as Forms I-765, I-131 and stand-alone Forms I-130, so you may modify this language to include all applications and supporting documents related to the subject or with the subject’s name, even if not included in the A file.

Second, include a list of databases to be searched in your FOIA request, and various versions of your client’s name.

Their Prince Harry FOIA requests continued, listing various databases:

Section 2) All records pertaining to the Duke of Sussex in the following system of records maintained by CBP and DHS:

• Automated Targeting System (ATS, DHS/CBP-006);
• Advance Passenger Information System (APIS, DHS/CBP-005);
• Border Crossing Information System (BCIS, DHS/CBP-007);
• U.S. Customs and Border Protection TECS (DHS/CBP-011);
• Non-Federal Entity Data System (NEDS, DHS/CBP-008);
• DHS Use of the Terrorist Screening Database (TSDB) System of Records (DHS/ALL-030);
• CBP Intelligence Records System (CIRS, DHS/CBP-024);
• DHS Automated Biometric Identification System (IDENT, DHS/USVISIT-004); · Electronic System for Travel Authorization (ESTA, DHS/CBP-009);
• Non immigrant Information System (NIIS, DHS/CBP-016);
• Arrival and Departure Information System (ADIS, DHS/CBP-021);and
• Electronic Visa Update System (EVUS., DHS/CBP-022).

Section 3) All records relating to any requests for waiver pursuant to Section 212(d)(3) of the Immigration and Nationality Act including, but not limited to, email communications within the DHS Office of the Secretary, the USCIS Office of the Director, the CBP Office of the Commissioner, or any subordinate office within those named departments or agency or a record of any communication between any of those named entities…”

Id. This highly-detailed list of requests for FOIAs to DHS is extremely helpful if you are trying to obtain your clients’ files. Again, review IRAP’s helpful lists of databases the agencies use for searches.

Third, follow agency instructions, and submit the Form G-28, Form G-639 and/or notarized release from your client. If the agency claims they do not have any files, do not believe them, and do not get discouraged. File an administrative appeal, which is often helpful.

The Prince Harry complaint details all the expected high jinks and delays of the various agencies under DHS in responding to the FOIA request.

CBP denied the FOIA request because it was from a third-party with no signed G-28 or G-639 or notarized release. It issued a boilerplate denial that did not consider any of the reasons put forth by the Heritage Foundation. They promptly filed an administrative appeal with the CBP Appeal Office. While CBP is required to respond to a FOIA appeal in 20 business days. 5 U.S.C. § 552(a)(6)(A)(ii); 6 C.F.R. § 5.8(d), CBP never responded. Paras 58-60.

Often FOIA administrative appeals can be helpful, but not in this case.

USCIS claimed that they had misplaced or lost Prince Harry’s file. Now, knowing how USCIS operates, it is not terribly surprising when they misplace Joe Shmo’s file. But Prince Harry? How could you lose Prince Harry’s file? Plaintiff then explained to USCIS Counsel that the file may be under several different versions of Prince Harry’s name. Paras 61-63.

The various DHS agencies failed to respond timely to Plaintiffs’ requests for expedite processing. Indeed, after emailing them with additional evidence in support of the expedite, CBP inexplicably claimed not receiving the email attachments and requested that they be re-sent. Paras 67-73.

Finally, plaintiffs received a letter from DHS, stating that plaintiffs had not described the records they were seeking: “After careful review of your FOIA request, we determined that your request is too broad in scope, did not specifically identify the records which you are seeking, or only posed questions to the agency. Records must be described in reasonably sufficient detail…” It was a form letter that did not reflect any consideration of the particular request.

Fourth, rather than be discouraged or exhausted by DHS’s dilatory and frustrating tactics, plaintiffs promptly filed in federal court.

Plaintiffs filed in federal court under the Freedom of Information Act, 5 USC §552 and federal question jurisdiction, 28 USC §1331, claiming the following causes of action:

• Failure to conduct adequate searches for responsive records;
• Wrongful withholding of non-exempt responsive records;
• Wrongful denial of fee waiver;
• Statutory bar against charging fees;
• And wrongful denial of expedited processing.

The federal suit over the FOIA for Prince Harry’s immigration records and decision to grant a visa are full of helpful lessons and nuggets of information for immigration attorneys advocating on behalf of their clients.

Copyright 2025 © Heidi J Meyers, all rights reserved. This article is for informational purposes only and is not meant as legal advice.

Immigrant Entrepreneurs and Protection of Intellectual Property (IP)

by Heidi Meyers | Sep 24, 2026 | Articles

By Heidi J Meyers

Immigrant entrepreneurs need to protect their IP, not just to fortify your immigration petitions but also for your future success in the U.S. For those in creative fields, your intellectual property (IP) may constitute almost the entire value of your business.

Trademarks, patents and copyrights are important not just for your immigration status, but for the success of your business and career. Employers who protect their intellectual property (IP) will have an edge in getting their immigration petitions on behalf of foreign employees approved.

Immigrants coming to the U.S. for work or business need to protect their intellectual property. A patent protects inventions. Inventions are technological advancements that are useful, new and not obvious. A copyright protects original works of authorship, including literary works, graphic, plastic, musical, dramatic, audio and visual creations. Computer programs can also be copyrighted. A trademark identifies your brand, and signifies the origin of the merchandise or services.

The US Patent and Trademark Office (USPTO) is the US government agency in charge of trademarks and patents. If you want to file a trademark on your own, without an attorney, you will have to prove your identity through ID.me. Foreign nationals who reside abroad must use a U.S. lawyer, and are prohibited from filing with the USPTO on their own. See, Examination Guide 4-19 (Revised) Requirement of U.S.-Licensed Attorney for Foreign-Domiciled Trademark Applicants and Registrants (September 2019).

Additionally, the trademark application form, at the beginning, asks if the owner of the mark is a U.S. citizen. Foreign nationals should generally use US lawyers to file their trademarks on their behalf. In order to register with the USPTO as an attorney, you must be admitted to practice and provide your bar registration number for the state you are licensed in. Thus, foreign lawyers with an LLM but no bar license will be unable to represent clients and file trademarks on their behalf.

The USPTO initiated an identity verification process in response to scammers from China, Pakistan and other countries filing numerous trademark applications using false information. See, https://www.uspto.gov/blog/director/entry/safeguarding-the-trademark-community-against. In order to file a trademark application with the USPTO, you must initially verify your identity with ID.me using a government-issued identity document and undergoing facial recognition. This only has to be done once.

Foreign nationals who want to start a business or work in the United States, increase their chances of getting their immigration application approved, and also increase the chances of success of their business and/or career by protecting their intellectual property. It is equally important for companies sponsoring foreign employees. For E-1 (treaty trader), E-2 (treaty investor), L-1A (managerial or executive transferee), L-1B (specialized knowledge), O-1 (alien of extraordinary ability) or H-1B (temporary professional), demonstrating that you have IP will help you get your E, L, O or H-1B petition approved. It is even more crucial when applying for the NIW (National Interest Waiver) or EB-1A (alien of extraordinary ability) for the green card.

First, if you are a foreign national seeking an NIW or EB-1A, protecting your IP will help you prove the innovations and contributions you have made in your field. For the NIW (National Interest Waiver), showing that you have patents, trademarks and copyrights helps to prove that you are well-positioned to advance the proposed endeavor.

Second, if you have just started a new business, or you have an ongoing small business, you want to show USCIS that your business is sufficiently capitalized and has enough assets to continue operating and pay your future employee an appropriate wage. If you are sponsoring an H-1B, you must prove to USCIS that your company is able to pay the prevailing wage. For other work-related visas, such as Es, Ls, or Os, the employer needs to show that it has enough income and assets to be able to pay the employee for the full period of time requested.

For an E-2 (treaty investor), you have to show a substantial investment in the business, and IP can be included as part of your total investment in the business. Trademarks, patents and copyrights are assets and can be included when you are calculating the assets of your firm. For example, computer programs and databases can be copyrighted or patented, if you have your own proprietary software product. If you have a fashion design company, you can copyright your special and unique patterns and designs. Even though it may be difficult to prove the monetary value of your IP protected assets if they are new or you are just starting out, it creates the perception of value.

Third, in the case of H-1B or L-1B employees who will work at your client’s work site, and not at your own firm’s offices, you need to show that you, the petitioning employer, control your employee’s work and that your client is not directing your employee. If the employee is implementing the company’s own proprietary product, for which you have IP protection, be it copyright or patent, or even if you have trademarked the name of your product, then you can show that it is your firm that is supervising your employee, because it is your firm that has knowledge of its own proprietary product, and not the client.

Fourth, when sponsoring an employee as an L-1B (specialized knowledge worker), the company must show that the employee has special knowledge of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures. While USCIS keeps repeating that it is not necessary that the sponsoring company have proprietary products of which the employee has specialized knowledge, the fact of the matter is that a company with its own proprietary products protected by patents, copyright, trade secrets and trademarks, has a much better chance of getting its L-1B petition approved than a company which either does not bother to protect its IP or else does not have any proprietary products. For example, a fashion design company may sponsor for the L-1B an important designer who has been working for the company abroad and is responsible for many of its special designs to come to the U.S. If the fashion company has copyrighted its particular designs and patterns, has design patents for its shoes, handbags and jewelry, or has certain lines which have been trademarked or have a certain trade dress, the chances of having the case approved is higher. Another example would be an engineering company, which has its own patents for particular machinery it has developed, which wants to bring one of its engineers from abroad, who is highly experienced in the patented machinery.

A similar category to the L-1B specialized knowledge worker is the E-1 or E-2 essential skills worker, where the company has to show the employee has a certain expertise and unique skills. The employer has to show that US workers do not have these particular skills and expertise. An employee who has expertise and experience in proprietary products of the employer which are protected by copyright, patents, trademarks or as trade secrets, has a better chance of having their petition or visa application approved than does a similar application by a company which does not protect its intellectual property. E-1 includes trade in services, which may include for example, a fashion or creative company abroad, which licenses its copyrighted products, or brand of fashion and apparel in the U.S., for manufacturing, marketing and distribution.

Thus, both immigrants and their company sponsors stand a better chance of having their immigration petitions approved if they have protected their intellectual property. Moreover, for you and your business’s long-term success in the U.S., you need to register your trademarks, copyrights and patents, and protect them vigorously.

Huawei: Update on Export Controls & Economic Sanctions with China, Dec 2020

by Heidi Meyers | Dec 18, 2020 | Articles