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.
- 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.
- 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!
- 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:
- That he is likely to suffer irreparable harm in the absence of preliminary relief;
- 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;
- A balance of equities tipping in the Plaintiff’s favor;
- 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.