A COMMON question that is asked by a person who has a pending immigration petition or application is “how much longer until USCIS makes a decision?” The question is understandable, in that an unreasonable delay in the USCIS’ adjudication of a petition or application can have adverse effects, including loss of employment and employment opportunities, possible termination of employment, and difficulties in obtaining student and credit loans.
While an immigration filing is pending, the typical response by USCIS upon inquiry is that further time (usually 90 or 180 days) is needed to make a decision. However, often that 90 or 180 days that USCIS needs to make a decision turns into months and sometimes years. What option does a petitioner or applicant have to compel the USCIS to act on his or her case?
Pursuant to the Mandamus and Venue Act of 1962, a Writ of Mandamus action can be filed in the US District Courts to compel the Department of Homeland Security (DHS) and the USCIS, DHS’s bureau, to act on a petition or application for which adjudication has been unreasonably delayed. The statute allows for an “action to compel an officer of the United States to perform his duty.”
The legal duty for USCIS to promptly act on a pending petition or application can be found in the Administrative Procedures Act (“APA”), 8 USC Sec. 1571, and 5 USC Sec. 555(b). These statutes form the basis of Writ of Mandamus relief.
The APA gives the court authority to “compel agency action unlawfully held and unreasonable delayed.” The policy for processing immigration applications is set forth under 8 USC Sec. 1571, which states that “the processing of an immigration benefit application should be completed no later than 180 days after the initial filing of the application.” Further, 5 USC Sec. 555(b) states that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.”
A typical case in which Writ of Mandamus relief is a viable option is in a green card application based on marriage. I have had several inquiries in recent months concerning delays in processing of these cases. Typically, the green card applicant along with his or her US Citizen spouse is interviewed by a USCIS officer and at the end of the interview, the green card applicant is advised that additional time is needed by USCIS to make a decision. The timeframe given to make a decision is 180 days; however, more than 180 days pass and no decision is made. The applicant then seeks to get updated status of the application via an Infopass appointment, and is advised that the case is still under consideration and more time is needed.
In such a case, a writ of mandamus can be filed in Federal Court to compel the USCIS to act on the application. Often, a decision is made on the case after the Writ of Mandamus is filed in that the unreasonable delay is brought to the attention of the USCIS. A prompt decision is often made by USCIS after filing to avoid the use of government resources in having to defend the meritorious action.
It is important to keep in mind that Writ of Mandamus relief is available to a variety of pending petitions and applications, not just green card applications based on marriage. To determine whether Writ of Mandamus relief is a good option in your pending immigration case, it is recommended that you seek the advice of an experienced attorney.
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Darrick V. Tan, Esq. is admitted to practice law in California and Nevada. Mr. Tan is a graduate of UCLA and Southwestern University School of Law. He is a member of the Consumers Attorney Association of Los Angeles and is a former member of the Board of Governors of the Philipp ine American Bar Association.
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LAW OFFICES OF DARRICK V. TAN, 3580 Wilshire Boulevard, Suite 900, Los Angeles, CA 90010. Tel: (323) 639-0277. Email: [email protected].
