Just like the title says – if you have been waiting for your green card application or your citizenship application to go through and it is starting to feel like maybe too much time has gone by… a writ of mandamus may be able to help!
What Is a Writ of Mandamus?
A writ of mandamus is a petition you or your immigration lawyer must prepare and file with a Federal District Court. It can be used in cases where your case has had an unreasonable delay or if there has been an unlawful withholding of action. An important aspect of this is that you MUST have an immigration case pending.
28 U.S.C. §1361 is the statute that allows a writ of mandamus to be filed. It is a straightforward statute that allows individuals to petition federal district courts to order an officer or employee of the United States or any agency to perform its duty.
How Much Does Writ of Mandamus Cost?
The cost of filing a petition for writ of mandamus in California is $500, but may vary in other states.
The legal fees for filing with an attorney may be different depending on the circumstances of your case.
There Are Two Different Types of Writs of Mandamus
- Peremptory Writ of Mandamus: There are court orders issued against USCIS, telling them they must act according to their lawful duty.
- Alternative Writ of Mandamus: These are court orders that force USCIS to take a certain action or, alternatively, show the judge why it does not have to obey.
Either way, the writ will force some action on your case. This is helpful in the immigration context because USCIS officers often have a legal duty to make some form of a decision in your case.
How to File a Writ of Mandamus Lawsuit Against USCIS
In order to get a mandamus issued, you and your lawyer must generally show the court that:
- you have a clear right to the relief request;
- the defendant (in this case USCIS) has a clear duty to perform the action you want to be ordered; and
- you do not have any other adequate remedies available
When Can I File a Writ of Mandamus Lawsuit?
Whether it’s naturalization or adjustment of status (green card), it is both your right and the duty of USCIS to have a final determination on your case. In both situations, most courts will find that there are no other adequate remedies available. The exception is that, on very rare occasions, a few courts have found that an applicant for adjustment of status still has other adequate remedies until they have gone through removal proceedings. However, most courts have implicitly or explicitly rejected that idea, so it is important to be aware of it, but it will most likely not be a concern.
In cases where you have applied for citizenship and have passed the English and civics tests, USCIS must make a decision within 120 days of the interview date. However, it is not uncommon for years to pass without a decision. In those cases, you or your lawyer can file a writ of mandamus to order USCIS to decide on your case.
If you submitted an I-485 after either an I-130 Petition for Alien Relative or I-140 Immigration Petition for Alien Workers, you also have a clear right to a determination. However, the timing is a little different compared to naturalization. In these cases, courts will generally consider a delay unreasonable after two years pass from filing. It is also generally advisable to first file a “Notice of Intention to File for a Writ of Mandamus and Declaratory Judgment” with USCIS in the hopes that it encourages them to act before they are legally forced to. If not, then you can go ahead and file the petition for a writ of mandamus with the court.
Will a Writ of Mandamus Change the Outcome of My Case?
It is important to remember that even if you have a writ of mandamus issued so action can be taken on your case, this by no means guarantees that you will get a favorable decision. The court can order the USCIS officer to make some decision on your case but cannot order them to make a specific decision.
If your case has seen an unreasonable or unlawful delay, we may be able to help! You can schedule an initial consultation with today, don't hesitate to contact us at (949) 478-4963.