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Writ of Mandamus

Often, green card or citizenship cases can be delayed for extended periods by USCIS, due to FBI security checks, lost files or requests for evidence. It’s when those delays go on for unreasonable periods of time that a petitioner can file aWrit of Mandamus. When a petitioner has a “clear and certain claim” to a prompt response from USCIS, and the USCIS official in question has a “duty [that is] nondiscretionary, ministerial, and so plainly prescribed as to be free from doubt,” and “no other adequate remedy is available” (Patel v. Reno, 134 F.3d 929, 931 (9th Cir. 1997)), an attorney can petition a Federal District Court for a Writ of Mandamus.

A Writ of Mandamus (28 U.S.C. § 1361) orders a federal agency, government officer, public body, corporation or individual to fulfill mandatory or ministerial duties or correct an abuse of discretion. USCIS is legally required to make a decision on all immigration applications, so a writ of mandamus compels the entity to take action in instances of unreasonable delays or unlawful withholding of action (Atlantic & Gulf Stevedores, Inc. v. Donovan, 274 F.2d 794, 802 (5th Cir.1960)).

There are two kinds of writ:
  • Peremptory – USCIS ordered to act by a federal district court that determines something as an official duty of the officer
  • Alternative – USCIS ordered to either take a specific action or argue in a hearing why the official should not take that specific action

Usually if an applicant files a writ of mandamus or submits an intent to file, that will be enough to compel USCIS to take action, even before the court responds.

Citizenship cases and adjustment of status filings often experience long delays at USCIS that are listed as “under review” or “still pending.”

N-400: Naturalization and Mandamus

After you pass the English and civics tests successfully, USCIS has 120 days from the date of applicant interview to render a decision on naturalization cases. Some people can wait for years, however, for a final decision.

When that 120 days have passed with no decision, an applicant can file a wit of mandamus to the federal district court that has authority over the relevant USCIS office. This court doesn’t make a decision on your case, but orders the USCIS office to make a decision, usually to approve or deny the application for citizenship. A writ of mandamus doesn’t necessarily strengthen your chances of being approved.

I-485: Permanent Residence and Mandamus

After a family-based visa (I-130) or immigrant visa (I-140) petition is approved, an applicant submits I-485 for adjustment to lawful permanent resident status.

Generally Federal Courts consider a delay over two years to be unreasonable, but there is no hard time limit on USCIS for adjustment of status applications. In these situations, an applicant would submit a “Notice of Intention to File for a Writ of Mandamus and Declaratory Judgment” to USCIS and see if that compels an officer to take action.

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