SOLVING THE WAITING GAME: MANDAMUS ACTIONS

Perhaps the single most important requirement for a successful immigration application is- patience. Long delays are a regular part of the process and these waits can stretch out for many months, or even years. A US citizen seeking to sponsor a sibling can expect a wait of more than 10 years; an asylum applicant can expect to wait more than 2 years before the initial interview with an asylum officer and in most parts of the country, a hearing before an immigration judge, if required will take an additional 2-4 years.

Some of these delays are actually the result of waiting periods required by law. So, for example, there is an annual cap on the number of green cards issued in most preference categories. If you are filing for an employee or a family member in any of these categories, (like the sibling category mentioned above) you will need to “get in line” behind everybody who has already filed in that category (or preference.)Other delays are the result of processing times which are a normal part of the adjudication process. So, for example, if you have filed an I-130 petition for a family member and the current processing times (as published by DHS) is 8 months, you can anticipate that it will take at least 8 months for a decision on your application. In the absence of an extreme emergency, there is no way to “jump the line” and move ahead of other, previously filed applications.

Occasionally, delays stretch far beyond the required waiting periods or the normal processing times. This may happen if DHS is investigating your case because of suspected errors or fraudulent documentation. In some areas of the world where terrorist or criminal activities are common and names are similar, the delays may be caused by security investigations. In other situations, however, these delays are unacceptable and are the result of officer neglect, laziness or actual incompetence. When this happens and the delays extend well beyond the norm, we often recommend going into federal court to get a judge to order the Service or the consulate to adjudicate your case promptly.

These cases are called Mandamus actions and can be very effective under the right circumstances. A mandamus action commands the government to decide your case, it does not command the government to approve your case and if your case is without merit, a mandamus case will likely result in a quick denial. A mandamus action is a serious (and expensive) federal lawsuit and should not be undertaken unless all other efforts to resolve your case have failed.