How do I force the USCIS to move forward with my case?

Most people who have ever had to deal with the United States Citizenship and Immigration Services (formerly the INS) know that the agency does not always move forward with a case even when the individual has taken all the correct steps. When this happens, the aggrieved party ultimately has the option of filing a lawsuit. This usually is the only option available to you when the CIS refuses to move forward on your case.

This type of lawsuit is known as a “writ of mandamus”
(Writ). A Writ is a form of civil action designed to compel a government official to perform a duty owed to the plaintiff. In this type of lawsuit you are the plaintiff and the government is the defendant. It is important to note that mandamus only forces the USCIS to take action that it is legally obligated to take. It is not used to force the USCIS to reach a favorable result, and it can possibly result in a denial of the application.

Before filing the lawsuit

There are several initial steps that should be taken so that when the suit is filed, the plaintiff has clearly done everything he or she can — short of filing a lawsuit — to resolve the problem. A plaintiff who appears in court without having tried to resolve the situation in other ways will not be particularly sympathetic.

The first step

The first step to take when processing on a case that has gone beyond the stated time is to make inquiries with the USCIS. Members of the American Immigration Lawyers Association (AILA) have access to fax numbers that can be used to make these inquiries at the USCIS Service Centers, as well as numbers for local USCIS offices that are not always publicly available.

The American Immigration Lawyers Association (AILA) also has a liaison system that can be used to make inquiries. Although there are no requirements for inquiries at local offices, it is advisable to make a couple of inquiries before proceeding with a lawsuit.

The second step

If no resolution is reached, the next step is to draw up the legal complaint that will be filed in court. The suit will be filed in the federal court with jurisdiction over the petitioner or applicant.

There are a number of formal requirements for the complaint, including a statement that jurisdiction and venue are properly filed with the court. The lawsuit must also lay out the facts of the case. Some of these facts should include efforts that have been taken to resolve it. It is a good idea initially to send a copy of the complaint to the USCIS office handling the case, with a letter explaining the situation and noting that if the case is not resolved within a certain period, generally 30 days, further action will be taken.

This step will often have the desired effect, if not producing a decision, of at least prompting the USCIS to begin working on the matter. If the USCIS asks for additional evidence (which can sometimes function as a delaying tactic) and still will not take action after the requested documentation is supplied, the mandamus process should be resumed.

If sending the complaint does not produce results, it should be rewritten to include the latest efforts to resolve the case and sent to the USCIS again as well as to the appropriate U.S. Attorney. This is when most cases are resolved. The U.S. Attorney does not want to spend time in court defending the USCIS’ failure to take action. Consequently, the U.S. Attorney often contacts the USCIS office and advises that it should act.

Filing the complaint

If after a month there is still no action on the case, the complaint should be updated. Next the case should be prepared for actual filing. Procedures vary from jurisdiction to jurisdiction, but the general process is the same. The complaint is taken to the Clerk of Court, where it is registered as filed. When a suit is filed against the government, a copy of the complaint must be sent to the government official who has failed to act (the head of the USCIS office involved), the proper U.S. Attorney and the U.S. Attorney General. This action often has the effect of prompting the USCIS to take action. If not, the parties proceed with the case. As in any federal case, the first step is a conference with the judge assigned to the case, the plaintiff’s attorney and the U.S. Attorney representing the government. At the conference, the judge makes efforts to help the parties resolve the dispute.

If this effort fails, the case then proceeds to trial. Given the large caseload of federal courts, this process can take many months. A few months after the trial, the judge issues a decision. If the decision is favorable to the plaintiff, the decision will also include an order compelling the USCIS to take action on the application. If the USCIS fails to act, officers of the agency are subject to being held in contempt of court. Only rarely is there an excessive delay that does not have a favorable outcome, at least at the trial stage of a mandamus case. The good news is that most of these cases can be resolved with favorable results without having to go to court.

Contact a U.S. Immigration Attorney to learn more about filing a Writ of Mandamus.

Private Immigration Bills

When there is no other form of relief available you may want to consider a Private Immigration Bill. Private bills are a rare form of relief from immigration laws. Additionally, these bills are generally reserved for the most compelling cases, when all other immigration options have been exhausted. In the legislative process, private bills are treated like any other law, going through the committee process to a vote by the full Congress. However, getting a private bill introduced is not easy. The immigration subcommittees in both the House of Representatives and the Senate have detailed rules on what is required for the introduction of such a bill.

The most important step in obtaining a private bill is finding a member of Congress willing to sponsor it. Following the introduction of the bill, detailed information about the person it will benefit needs to be supplied to the chair of the immigration subcommittee by the member of Congress sponsoring it. The procedure from there is similar to other legislation, although once passed by both houses of Congress and signed by the President, the bill becomes a private, not public, law. The members of Congress who support private bills do a tremendous amount of work to ensure their success and, without their efforts, the beneficiary of the bill would not have other immigration options.