Yes, when the government has unreasonably delayed a decision on an immigration petition, you can sue to force the government to act. The specific name for this legal action is a mandamus.
What is a “mandamus” action?
Mandamus is a Latin term meaning “we command.” A mandamus action asks a court to order the government to do a specific thing that it is obligated to do by law. To quote the law underpinning the mandamus action, 28 U.S. Code Section 1361: “The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.” In the context of business immigration, the “plaintiff” is typically the petitioner (usually the employer).
In the context of immigration law, there are many things the government is required by law to do. When it fails to do those things, we can typically ask a district court to command the government to do them. It is important to understand that a mandamus action only compels the government to act – it does not command the government how to act.
What does a mandamus action look like in practice?
Mandamus actions have been successfully used to compel the government to process a variety of petitions and claims, including immigrant and nonimmigrant petitions (including H-1B, J, and L visas), requests for employment authorization, scheduling of naturalization interviews, and adjustment of status claims. A mandamus action can be particularly helpful where the government has either not responded to your requests for updates, or has provided vague reasons for delay. In these and other examples, by filing a mandamus action, the employer asks a district court to command the government to reach a decision on the application.
Can I use a mandamus action to compel the government to grant my petition?
No. Remember that a mandamus action cannot be used to require the government to decide one way or the other. In other words, through a mandamus action the employer cannot ask the court to tell the government to grant the petition – only to reach a decision. The government may very well decide to deny the petition. (If you’d like to learn more about what options exist if your petition is denied – including suing the government – click here.
My delayed application is with a U.S. consulate. Can I file a mandamus action against a consulate?
Yes, you can file a mandamus action against a consulate.
What is an “unreasonable delay”?
There are a number of considerations that go into answering this question. To start, check whether the agency in question (for example, USCIS) has posted processing times for the specific application you have filed. Sometimes the agency will explicitly state how long an application should take. The agency’s website is usually a good place to start.
If no agency processing times have been posted, there might be timelines established by law (for example, timelines have been established for the processing of petitions for employment authorization).
The best approach, however, is to speak with a qualified immigration lawyer if you believe your petition has been unreasonably delayed.
What do I need to show in order to win a mandamus action?
As the plaintiff in a mandamus action, you must show three things:
- That you have a clear right to the “relief,” or government action, you are requesting,
- That the government has a clear duty or obligation to perform that action, and
- That there is no other remedy available to you. This means that you have “exhausted” all other reasonable alternatives available to you, including, for example, reaching out to the supervisor at the government office at issue, and to your local congressional office. A qualified immigration lawyer can help you navigate these alternative approaches before filing a mandamus action.
How long does it take for a mandamus action to be decided?
It is important to remember that “resolution” of a mandamus action does not require that the judge reach a decision – many of these cases resolve through settlement and the government deciding to act on your application. There tends to be a benefit to having a federal judge who does not work for the immigration agency or the executive branch take an objective look at your case. Many times even the threat of a lawsuit and judicial oversight is all that is needed to motivate the government to act.
If the case does move forward, the amount of time needed for a mandamus action varies depending on a number of factors, including the judge and how the government opposes the suit. Remember, however, that the case is in your hands. If you decide not to move forward at any point, you can withdraw the case.
Won’t the government simply deny my petition, or retaliate against me if I sue them?
This is a common concern, and it is important to know that, in spite of pursuing a mandamus action, you might continue to experience delay or denial of your petition. That being said, mandamus actions are not uncommon, whether inside or outside the context of immigration, and are a useful, effective tool for forcing the government to act. At a minimum, mandamus actions are an opportunity to invite a judge to oversee what the government is doing.
By and large, we are seeing that mandamus actions do not tend to result in denials. The government has reason to act with integrity as it responds to these suits – a clear pattern or practice of prejudice or abuse by the government against plaintiffs could expose the government to liability, particularly when a judge is actively exercising oversight as a result of your lawsuit.
That being said, if there is an underlying issue that justifies delay of your case, this could very well result in a denied petition. One of the important things a qualified immigration lawyer should do is assess whether your case is appropriate for a mandamus action, based on the integrity of the underlying petition.
Should I work with a lawyer if I decide to file a mandamus action against the government?
Yes. It is critical that a lawyer not only assist with navigating federal court litigation, but also that they assess whether your case is a good one to sue on. There are many cases that seem like good candidates but are actually not. We can help you make that determination.
My case has been denied. What are my options in this case?
To learn more about your options after the government has denied your immigration petition, click here.
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