When to File Mandamus

Written By Jennifer Cameron

In cases where USCIS delays seem unreasonable or result in severe consequences, filing a mandamus lawsuit can compel USCIS to take action.

Common Question:

  • Will USCIS deny my case because I am suing? No. USCIS will not retaliate by denying your case in response to being sued. However, if your case is weak or other issues would‘ve likely resulted in a denial, filing a mandamus lawsuit will expedite the denial.

Understanding the Mandamus Lawsuit

A mandamus lawsuit, also known as a writ of mandamus, is a legal action filed in federal court to compel a government agency, in this case, USCIS, to perform a nondiscretionary duty. A non-discretionary duty refers to a clear, ministerial, and legally mandated obligation. When USCIS has unreasonably delayed processing an application or taking a required action, a mandamus lawsuit can prompt action.

When to Consider Filing a Mandamus Lawsuit

While the decision to file a mandamus lawsuit should not be taken lightly, there are situations where it may be appropriate:

  • Unreasonable Delays: If USCIS has unreasonably delayed processing your application, significantly exceeding the typical processing times and causing you harm, a mandamus lawsuit may be considered.

  • Failure to Act: If USCIS has failed to take the required action, such as scheduling an interview, making a decision, or responding to inquiries, and your case is in limbo, a mandamus lawsuit can be a way to prompt the agency to act.

  • Consequences of Delay: If the delay in USCIS action has severe consequences for you or your family, such as loss of employment, status, or other significant hardships, it may be worth exploring the mandamus option.

Steps in Filing a Mandamus Lawsuit

  • Consult with an Attorney: Before taking legal action, consult with an immigration attorney specializing in mandamus lawsuits. They will assess the merits of your case and help you determine if filing a lawsuit is appropriate.

  • Draft the Complaint: Your attorney will draft a complaint outlining the specific facts of your case, the USCIS action you are seeking, and the legal basis for the mandamus petition.

  • File the Complaint: The complaint is filed in a federal district court with jurisdiction over your case. Your attorney will ensure the complaint is properly filed and served to USCIS.

  • USCIS Response: USCIS will be able to respond to the complaint, explaining its position and any reasons for the delay or inaction.

  • Discovery (if necessary): In some cases, discovery may be necessary to gather additional evidence or information related to the delay.

  • Hearing and Decision: The court may schedule a hearing to consider the arguments of both parties. If the court finds in your favor, it may issue an order compelling USCIS to take the required action within a specified timeframe.

Jennifer Cameron
Next

Religious Visas