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Mandamus Litigation – the Solution for Unreasonably Delayed Employment and Travel Authorization Cards

Sep 18, 2020 | Investor Visas

USCIS processing times have been frustratingly long and made even worse due to COVID-19. Unfortunately, the delays are now getting longer and adversely impacting the lives of employers, employees and families. As a result, more immigrants are turning to the courts for a solution. The judicial system can provide relief when experiencing unreasonable delays for immigrant benefits – including processing an employment authorization document (EAD) and advance parole travel permits (AP) after an adjustment of status application has been filed. Depending on the facts, WR Immigration (WR) has a solution to compel USCIS to finalize adjudication within a reasonable amount of time by filing a lawsuit in federal court.

Filing a lawsuit against USCIS to adjudicate an EAD/AP has sadly become more common in other U.S. immigration contexts, such as for nonimmigrants on H-4 visas seeking work permission. The same legal theories can be applied to persons with pending adjustments including EB-5 investors with pending EADs/APs. EAD/AP applications that have been pending for well over 6 months may now be actionable.

In this process, WR attorneys prepare a complaint including information about each individual’s case and then the lawsuit is filed in federal district court.  After serving a summons and the complaint on USCIS defendants, the government has 60 days to respond to the lawsuit – by either filing an answer or challenging the lawsuit with a motion to dismiss. During this time, WR attorneys will seek to negotiate with USCIS to finalize the adjudication of each plaintiff’s EAD/AP.

We believe the USCIS delay is not due to lack of agency resources, the number of cases on file, or any provision in the law.  In most cases the delay is not justified, and a lawsuit in federal court can, in certain circumstances, push USCIS to process. WR expects demand for these cases to rise unless USCIS improves its processing times.

Contact Wolfsdorf Rosenthal LLP to obtain more information about this promising solution.

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