One of the most common calls we receive at our office sounds like this: I filed an application for asylum, adjustment of status or citizenship and it has been pending for a long time, what can I do? Long delays in processing times by USCIS (United States Citizenship and Immigration Services) are very common and very frustrating. Long delays in the adjudication of asylum applications, green card applications and citizenship applications leave individuals and families in limbo and cause a tremendous amount of stress. These processing delays also lead to increase costs for renewing work permits or green cards. These delays can also put vulnerable family members in other countries as risk of harm as asylum applicants in the U.S. wait for their interviews.
There are many reasons why USCIS delays cases, but there is usually only one effective solution – SUING USCIS IN FEDERAL COURT! Whether you call the lawsuit a Writ of Mandamus, or an Administrative Procedures Act unreasonable delay suit, these claims are designed to do the same thing, make the government do their job.
Many clients submit online inquires to USCIS about their stalled I-485 Green Card Applications and this does not resolve the case. Many clients contact their member of congress or the USCIS Ombudsman and this often fails to resolve the matter. We have found the most effective way to force USCIS to do their job is to sue them in federal district court. Under the right circumstances and with the right fact pattern, suing the government is usually successful in achieving a decision on the case. Suing the government does not guarantee that your case will be approved, but it usually results in a decision, fairly quickly, when all other strategies have failed.
It is important to remember that filing a federal lawsuit for every delayed immigration case is not going to work. The type of application and length of delay are very important details that go into determining whether or not to file a federal lawsuit. Lets look at some common scenarios:
Suing on long-pending affirmative asylum application.
An affirmative asylum application is one that was filed by someone in the United States, who is not already in immigration court removal proceedings. If you filed for asylum and you have been waiting for an interview at USCIS for more than five years, you probably have a very good chance at suing the USCIS asylum office to make them give you an interview. This does not work at every asylum office around the country, and does not work in every federal court, but if you filed for asylum more than five years ago and are still waiting on an interview, suing the government may be the best course of action, especially if you live in Florida.
If you have a notice to appear for immigration court or already have a court date, there is no reason to sue the USCIS asylum office to get an interview—you will not be successful because your need to see an immigration judge.
Suing on a long-pending I-485 Adjustment of Status Application.
If you filed for adjustment of status on Form I-485, and your case has been pending for 18 months or more, depending on the facts and circumstances of your case, you should consider suing the government. There may be reasons why your case is delayed, but if you are married to a U.S. citizen or are the parent of an adult U.S. citizen, or you are seeking a green card through employment or other family preference category and your case has been pending for more than 18 months, you should consider suing USCIS for a decision on your case.
Suing on a delayed decision from your N-400 Application for Naturalization.
This situation is the easiest to determine whether to sue. USCIS has 120 days after your citizenship interview to give you a decision on your application or they are in violation of the law. You can sue them on day 121 and be successful in forcing a decision or getting your citizenship application heard by a federal court judge.
It is important to remember, every case is different and even if your case has been pending for years, you should consult with an experienced and qualified immigration attorney who practices in federal court before filing a lawsuit. There may be reasons why you do not want to force the government to decide your case. Talk to an attorney about your case to discuss it further.
Suing the government does not make them angry at you and it should not affect the ultimate outcome of your case. Sometimes, suing the government is the only way to resolve your immigration matter. Call our office today if you have a long-pending immigration case and want to find out if filing a federal lawsuit is the right course of action for you. 407 228 2019.
John Gihon, Board Certified Immigration Attorney and Federal Court Practitioner.