201512081504532336By Attorney Gregory J. Boult & Nancy E. Miller

Many individuals seeking an immigration benefit in the United States encounter inexplicably long delays in receiving a final decision on a pending application or petition.  Too often, individuals who find themselves experiencing such a delay are frustrated and uncertain as to what, if anything, can be done to pry loose their case and get a decision.  Many simply resign themselves to waiting for the government to act.  However, there are options beyond simply waiting indefinitely.  One such option is to sue the government in the United States District Court (USDC) aka federal court.

Not all petitions and applications for immigration benefits in the United States are processed in the same fashion.  Some petitions or applications require interviews.  And no decision is made until all the applicant’s files are located and given to the adjudicating officer.  As a result, some cases will naturally take longer than others.  However, that does not mean that United States Citizenship & Immigration Services (USCIS) has carte blanche to take as long as it sees fit to process a request for a benefit.  Ultimately, there comes a point in time when a petition or application has simply been pending too long.  And while administrative means exist to follow-up a pending matter with USCIS, often such action yields little or no results.  It is at this point in time when an individual should consider exercising his or her rights in federal court.

When an individual files a petition or an application for an immigration benefit, there is an expectation and a requirement that the government will timely process the submission.  In effect, the government cannot simply let an application or petition languish – the government must make a decision within a reasonable period of time.  USCIS posts its normal processing time on its official website.  These processing times typically state how many months it is currently taking to process various petitions and applications at its numerous offices.  When a petition or an application is pending beyond its posted processing time, it is appropriate to consider additional action, including a lawsuit in federal court.

Unreasonable delays and erroneous actions by the U.S government are nothing new.  In fact, Congress passed the Administrative Procedure Act (APA) in 1946 to deal with these same problems.  This act was specially designed as a “bill of rights” for individuals who have been aggrieved by certain conduct by the government.  Specifically, the APA entitles individuals to sue the government when it unlawfully withholds action or when it unreasonably delays action.  As an agency of the government, USCIS can be sued by an individual when it unlawfully withholds action, or unreasonably delays action, in rendering a decision on an individual’s pending petition or application.

In addition to suing the government under the APA, an individual can also seek to compel the government to act upon an unreasonably delayed petition or application through a lawsuit for a Writ of Mandamus.  When filing a Writ of Mandamus in federal court, an individual must establish a clear and certain claim, an administrative duty which is plainly prescribed, and establish that no other administrative remedy through governmental process is available.  In most instances this legal standard is met by showing the unreasonable delay by USCIS.  While a Writ of Mandamus is a separate and distinct legal action from one undertaken under the APA, the result sought in both of these types of actions is identical – to compel the government to act when it has failed to do so in a reasonable period of time.

Unfortunately, too many individuals who are victims of unreasonable delays by the government are unaware of their rights or afraid to exercise them.  However, prompt action can save months or even years of unnecessary waiting.  Filing a U.S. District Court action for relief under the APA or a complaint for a Writ of Mandamus are both very effective in compelling USCIS to act on an unreasonably delayed petition or application.

It is important to note that neither an action under the Administrative Procedures Act nor a Writ of Mandamus orders USCIS to make a specific decision.  The U.S. District Court Judge orders the USCIS to make a decision.  That in itself is beneficial because, even if the decision is not positive, the applicant may be able to appeal it or renew it in another venue.  An action seeking that the federal court Judge order USCIS to make a specific decision is called a complaint for declaratory relief.

Some delay is a normal part of the process when dealing with the federal government but inordinate delays are not.  An experienced and knowledgeable immigration attorney can help get your case “unstuck”.

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