Processing delays by U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) are common, but the problem has ballooned under the Trump Administration, likely as part of its clearly stated goal of reducing legal immigration. The American Immigration Lawyers Association (“AILA”) analyzed recent USCIS processing data and reported that USCIS’ overall average case processing time surged by 46% over the past two fiscal years, and by 91% since FY 2014.
This policy to delay, postpone, or even suspend contravenes the U.S. Congress’ mandate in the Immigration and Nationality Act that the processing of an immigration benefit application be completed within 180 days after the initial filing of the application. See 8 U.S.C. § 1571. By limiting the pace of adjudications or by sending applications into the black hole of “administrative processing,” the Trump Administration is placing American companies wishing to employ top talent out to dry; keeping high-skilled professionals out of the U.S. work force; and leaving working families in financial distress.
Wolfsdorf Rosenthal, LLP is often contacted by clients whose immigration applications, filed by another attorney, have not been processed within a reasonable amount of time and ask for assistance in getting the delayed application approved. Here are 3 things to know about remedying a past-due immigration application:
1. Communication. Filing a lawsuit against the U.S. government is not always the right decision, as the goal of getting an adjudication can sometimes be achieved informally through channels of communication with USCIS, DOS, or the U.S. Consulate. AILA also maintains relationships with USCIS both at the local and national levels, including a system of liaisons with direct access to supervisory-level USCIS personnel, and AILA attorneys can inquire through this process. Nevertheless, it’s possible that there may be an unexpected issue unbeknown to the immigrant or American company – such as prior U.S. immigration violations, or background checks involving common names or the potential use of sensitive technology – that are preventing the U.S. government from making a decision.
2. Use the Government’s Resources. In 2016 we blogged on the sixteen (16) steps which can speed up EB-5 applications, and many are appropriate for other U.S. immigration applications as well. While standard inquiries usually result in boilerplate USCIS responses, contacting the USCIS’ Ombudsman’s office for case assistance and asking offices of members of U.S. Congress to inquire about the case may produce results. Our experience with congressional inquiries is that unless the Congressperson or Senator personally call, the inquiry will not be productive and will sometimes even encourage USCIS officers to come up with tougher reasons than may have previously existed to justify the delay. With any inquiry, be sure to demonstrate why the delay is unreasonable compared to other, similar cases and the adverse consequences resulting from the delay.
3. Writ of Mandamus. A mandamus lawsuit asks a U.S. federal court to issue a writ (a command) to order a person to perform a non-discretionary statutory duty, here, to adjudicate the immigration application. Notably, it is not an order to approve an application, but it is unlikely that the U.S. government would “retaliate” against a plaintiff under the watchful eye of a U.S. federal judge. After filing the complaint, an attorney from the U.S. Department of Justice (DOJ) will be assigned the case and is required to respond or answer within 60 days, though the government will likely request a 30-day extension that is usually granted by the court. During this time, a Wolfsdorf Rosenthal attorney works with DOJ to assist USCIS and DOS (as applicable) to make a decision. While we have had great success with mandamus lawsuits, every case must be carefully analyzed before proceeding with a mandamus
Wolfsdorf Rosenthal, LLP was recently recognized by U.S. News – Best Lawyers 2019 “Best Law Firms” for its expertise in immigration law and has the experience, expertise, and infrastructure to help with all your immigration needs. As one of the fastest growing U.S. law firms specializing exclusively in immigration and nationality law, Wolfsdorf Rosenthal, LLP can assist in mandamus representation throughout the United States.