Writ of Mandamus

In general, an immigration applicant may be able to file a Writ of Mandamus to request judicial relief in order to speed up the processing of a long-pending application or petition with the USCIS. The applicant may submit a Writ of Mandamus in the US federal court having jurisdiction over the petitioner or applicant if the USCIS has not responded to a properly filed immigration application after a reasonable amount of time.

A Writ of Mandamus is a type of legal action used to persuade a public official to perform an obligation to the plaintiff, such as deciding an outcome of a long-pending petition. The USCIS is not required to get to a favorable conclusion by means of a Writ of Mandamus. Instead, a Writ of Mandamus is used to force USCIS to act more quickly than it currently is required to by law.

Before filing the lawsuit, a number of measures must be conducted. Before submitting the Petition of Mandamus, the Plaintiff should try all possible options for resolving the problem. A Writ of Madamus should only be used as a final resort after all other possibilities have been tried. Where it is clear that applicants have failed to try resolution through other means, federal courts have been inclined to dismiss cases. An applicant should first contact the USCIS directly if their case has taken longer than expected to process. The USCIS website lists the "processing times." Please check the processing times at https://egov.uscis.gov/processing-times/ to determine if your case is now within a "reasonable" wait time.

Please be aware that the American Immigration Lawyers Association (AILA) has a liaison mechanism that enables members to contact USCIS directly through routes that are not open to the public with specific questions about delayed cases. Wherever possible, you should also choose this route. The next suggested action is to inform USCIS or the embassy that you intend to file a lawsuit if you are unable to resolve the issue through communication. You can do this by asking action within 30 days along with a copy of the complaint you intend to file. This letter should also describe the applicant's prior attempts to get in touch with USCIS regarding the processing delay. This step frequently has the result of starting the application's procedure with USCIS or the consulate. The proper US Attorney may also receive the complaint. The US Attorney frequently contacts the USCIS and asks them to take action.

But, because every case is unique, it is best to ask your lawyer for guidance on whether this is wise given your circumstances. The USCIS, the relevant US Attorney, and the US Attorney General should be served with the case after a period of thirty days has passed with no resolution. Please be aware that filing requirements can change depending on the jurisdiction. The Federal Judge will convene a conference with the parties involved following the filing and appropriate service of the case in an effort to settle the conflict. Only if and when this effort is unsuccessful does the case go to trial. After that, a trial date will be set, which could take several months due to the heavy caseload of federal courts. After reviewing the case, the court could issue an order forcing USCIS to decide this application within a certain amount of time (i.e. 30 to 90 days). 

Please be aware that the court may also dismiss or end the case if it appears that the applicant does not satisfy the petition/application requirements or if it determines that the USCIS's delay is reasonable, necessary, or permitted. In the extremely unlikely event that USCIS ignores a court order issued by a federal judge, the organization could be found in contempt of court. Hence, even while a Writ of Mandamus may lead to the adjudication of your case, it does not ensure a successful outcome and should be carefully reviewed by an attorney before submission.