HOW TO FORCE USCIS TO MOVE FORWARD WITH YOUR CASE
Writ of Mandamus & Private Immigration Bills
If you have ever had to deal with the United States Citizenship and Immigration
Services (formerly the INS) you know that the agency does not always move forward with a
case even when the individual has taken all the correct steps. When this happens, the
aggrieved party ultimately has the option of filing a lawsuit. This usually is the only
option available to you when USCIS refuses to take action on your case.
This type of lawsuit is known as a “writ of mandamus” (Writ). A Writ is a form of civil
action designed to compel a government official to perform a duty owed to the
plaintiff. In this type of lawsuit you are the plaintiff and the government is the defendant.
It is important to note that mandamus only forces the USCIS to take action that it is
legally obligated to take. It is not used to force the USCIS to reach a
favorable result, and it can possibly result in a denial of the application.
Before filing the lawsuit
There are several initial steps that should be taken so that when the suit is filed,
the plaintiff has clearly done everything he or she can to resolve the problem.
A plaintiff who appears in court without having tried to resolve the situation in
other ways will not be viewed particularly sympathetically.
The first step
The first step to take when processing on a case that has gone beyond the stated
time is to make inquiries with the USCIS.
The second step
If no resolution is reached, the next step is to draw up the legal complaint that will be
filed in court. The suit will be filed in the federal court with jurisdiction over the petitioner
There are a number of formal requirements for the complaint, including a statement
that jurisdiction and venue are properly filed with the court. The lawsuit must also lay
out the facts of the case. Some of these facts should include efforts that have been
taken to resolve it. It is a good idea initially to send a copy of the complaint to the USCIS
office handling the case, with a letter explaining the situation and noting that if the case
is not resolved within a certain period, generally 30 days, further action will be taken.
This step will often have the desired effect, if not producing a decision, of at least
prompting the USCIS to begin working on the matter. If the USCIS asks for additional
evidence (which can sometimes function as a delaying tactic) and still will not take action
after the requested documentation is supplied, the mandamus process should be resumed.
If sending the complaint does not produce results, it should be rewritten to include the
latest efforts to resolve the case and sent to the USCIS again as well as to the appropriate
U.S. Attorney. This is when most cases are resolved. The U.S. Attorney does not want to
spend time in court defending the USCIS’ failure to take action. Consequently, the
U.S. Attorney often contacts the USCIS office and advises that it should act.
Filing the complaint
If after a month there is still no action on the case, the complaint should be updated.
Next the case should be prepared for actual filing. Procedures vary from jurisdiction
to jurisdiction, but the general process is the same. The complaint is taken to the Clerk
of Court, where it is registered as filed. When a suit is filed against the government,
a copy of the complaint must be sent to the government official who has failed to act
(the head of the USCIS office involved), the proper U.S. Attorney and the U.S. Attorney
General. This action often has the effect of prompting the USCIS to take action. If not, the
parties proceed with the case. As in any federal case, the first step is a conference with
the judge assigned to the case, the plaintiff’s attorney and the U.S. Attorney representing
the government. At the conference, the judge makes efforts to help the parties resolve
If this effort fails, the case then proceeds to trial. Given the large caseload of federal
courts, this process can take many months. A few months after the trial, the judge
issues a decision. If the decision is favorable to the plaintiff, the decision will also
include an order compelling the USCIS to take action on the application. If the USCIS
fails to act, officers of the agency are subject to being held in contempt of court.
Only rarely is there an excessive delay that does not have a favorable outcome,
at least at the trial stage of a mandamus case. The good news is that most of these
cases can be resolved with favorable results without having to go to court.
Private Immigration Bills
When there is no other form of relief available you may want to consider
Private Immigration Bill. Private bills are a rare form of relief from immigration laws.
Additionally, these bills are generally reserved for the most compelling cases, when
all other immigration options have been exhausted. In the legislative process,
private bills are treated like any other law, going through the committee process to a
vote by the full Congress. However, getting a private bill introduced is not easy.
The immigration subcommittees in both the House of Representatives and the
Senate have detailed rules on what is required for the introduction of such a bill.
The most important step in obtaining a private bill is finding a member of Congress
willing to sponsor it. Following the introduction of the bill, detailed information about
the person it will benefit needs to be supplied to the chair of the immigration
subcommittee by the member of Congress sponsoring it. The procedure from there
is similar to other legislation, although once passed by both houses of Congress and
signed by the President, the bill becomes a private, not public, law.
The members of Congress who support private bills do a tremendous amount of
work to ensure their success and, without their efforts; the beneficiary of the bill
would not have other immigration options.