Employers and their employees with H-1B, Ls or Os pending for many months or more than a year have the option of going into federal district court in order to get their petitions adjudicated by USCIS. Similarly, foreign nationals and their US citizen husbands or wives with marriage cases (or other relative petitions), as well as applications for adjustment to permanent residency, that have been delayed for years have the option of going into federal court. The employer or individuals, though an attorney, may file a petition for a writ of mandamus in the federal district court in order to force USCIS to promptly make a decision on the case. See 28 U.S.C. 1361.
The petition for a writ of mandamus may also be used effectively with large groups of immigrants negatively affected by US government processing delays. An example would be the preliminary injunction issued by the federal judge in Afghan and Iraqi Allies v. Pompeo, 1:18-cv-01388-TSC (D. District of Columbia) where the government was taking more than three to five years (since the case has been ongoing, it is now four to six years) to adjudicate SIV (Special Immigrant Visa) applications on behalf of Afghans and Iraqis who had worked on behalf of the US government, for example as interpreters for the US Armed Forces, in very dangerous conditions. These brave individuals had risked their lives in the service of the US government, how could the same US government delay their applications to come to the US for three or more years?
Regarding petitions for writ of mandamus filed by employers or individual family members, the US Attorneys Office often tries to settle these cases, and just have USCIS adjudicate the case and quickly issue a decision. Thus, it is an effective means to get an answer on a case where the government has been sitting and not doing its job. You will not see much published case law on writs of mandamus precisely for that reason, that the government is usually anxious to settle.
What do you need to be able to file for a writ of mandamus? First, you need a meritorious case that is thoroughly documented. The writ of mandamus only gets the government to adjudicate your case, the petition does not ask that it be approved. Basically, you are saying that it is the government’s job to adjudicate immigration cases, this case has been pending for an unreasonable amount of time, and the judge should tell the government to do its job and make a decision on the case.
Second, you need to show that you have made many efforts to get the USCIS or DHS to adjudicate your case – by writing letters, calling, making infopass appointments, etc., but the USCIS has still not given you an answer. One of the requirements for a writ of mandamus is to show “exhaustion of administrative remedies”. This means that, before going into federal court, you made every effort to repeatedly try to get the government to made a decision on your case, so you have “exhausted” every other avenue and going to federal court is a last resort.
Third, you need to show that the delay is “unreasonable”. How long a delay must be to be “unreasonable” depends on the particular facts of the case. In certain cases, the case may be delayed months or years past what USCIS has published is their current processing time (you can find processing times on their web site at USCIS.gov). However, the posted USCIS processing time may itself be unreasonable if it is contrary to Congress’s intention in the statute or longer than specified by federal regulations. A delay may also be unreasonable where the petitioner employer, beneficiary employee or family member petitioners or applicants may be harmed because of the delay. For example, with our brave Afghan and Iraqi interpreters and other personnel who worked for the US military and government, they or their family members may be gravely injured or killed by the Taliban or other anti-American groups while the US government dawdles in adjudicating their cases. Another example is an employer who needs an H-1B worker to start a project by a certain date, otherwise the company will suffer a great economic loss, not only on the particular project but perhaps also lose future business of the client.
Fourth, as mentioned above, you cannot ask the federal court for an approval, you can only ask under the writ of mandamus for a decision. Should the case be denied, you would have to file separately in federal court to challenge the denial.
Filing in federal court is complex and time consuming, and you will need a competent immigration attorney to assist you.
Copyright 2019 © Heidi J Meyers, all rights reserved.