Writ of Mandamus Can Expedite Your USCIS Application

Updated on 01/27/2023

Writ of Mandamus In Immigration

"Turtle Speed" of USCIS's Case Processing

If you look at the case processing speed of USCIS in the past two or three years, it is really anxious and helpless. There are too many cases whose processing times have increased significantly compared with the past.

In previous years, for a marriage-based green card application, if the USCIS officer does not approve the case within 120 days of the first interview, USCIS will arrange a second interview (Stokes Interview) within one year. Nowadays, there are many people who have waited for the second interview for three years.

In the past, for an I-751 petition to remove conditions on residence that needs interview due to unusual situations like divorce or USCIS seriously suspects the marriage, generally USCIS will schedule an interview in one or two years. Now, for most USCIS field offices, they are scheduling interviews for these I-751 petitions that was filed in the year of 2019.  

It is a nightmare for asylum applicants who filed their I-589 asylum applications before 2018. There are too many asylum applicants who have waited for 3-8 years without an asylum interview.

You waited year after year. You have made every effort to push the USCIS to process your application as early as possible. You tried e-request and phone calls to USCIS again and again, and contacted Senator and House Representative. None of them are helpful. All of their response is to ask you to wait patiently.

What should you do? Continue to wait indefinitely? Or is there any other way to urge the USCIS to process your case as soon as possible? Now, you can have writ of mandamus to expedite your USCIS application.  

1. What is writ of mandamus?

As we all know, the United States is a country with separation of powers. The USCIS is an executive branch while courts belong to the judicial system. In the field of immigration, writ of mandamus refers to petitioners or applicants who have petitions or applications pending with USCIS file a complaint against USCIS to the federal courts with jurisdiction, and request the judge to order the USCIS to perform its job duties within a certain period of time or to correct USCIS’ inaction.

2. What types of USCIS petitions or applications can have writ of mandamus?

As long as the prerequisite is met, almost all types of USCIS petitions and applications can file a writ of mandamus lawsuit. Thus, no matter family-based immigration, employment-based immigration, other categories of immigrant petitions, adjustment of status applications, naturalization or citizenship applications, asylum applications, non-immigration applications include work visa applications, EAD card applications and so on, all of these can start a  writ of mandamus lawsuit as long as they meet the filing requirements of writ of mandamus.

The most common applications to have writ of mandamus are I-589 application for asylum, N-400 application for naturalization, I-485 application for adjustment of status, I-730 refugee/asylee relative  petition, I-130 petition for alien relative, I-140 petition for alien worker, I-601 and I-602 application for waiver of inadmissible grounds,  I-360 petition for Amerasian, widow(er), or special immigrant, I-751 petition to remove conditions on residence, I-526 immigrant petition by investor, I-829 petition by investor to remove conditions on residence, and DS-260 immigrant visa application through NVC consular processing.

3. What are the requirements to file a writ of mandamus lawsuit?

There are three requirements to file a writ of mandamus lawsuit:

  • The plaintiff has clear right to relief or government action;
  • The defendant government owes a clear duty to the plaintiff; and
  • There is no other remedy available to the plaintiff.

The straightforward understanding of these three requirements are that the plaintiff’s petition or application has been outside the normal processing time of USCIS, and the plaintiff must prove that he or she has exhausted all other available reasonable methods to urge the USCIS to process it as soon as possible, but the USCIS still has not processed it. With the satisfaction of the three requirements, a writ of mandamus lawsuit can be filed.

4. How do I know whether my application has been outside the normal processing time of USCIS?

For most USCIS petitions and applications, petitioners or applicants can look at their case’s normal processing time through USCIS’s website of Processing Times. USCIS’s normal processing times vary significantly depends on different application type, different USCIS Service Centers and local USCIS field offices.

For any I-589 asylum application submitted between 2014 and 2019, it is automatically considered that these applications have been outside normal processing time of USCIS. If you are not sure whether your application is outside normal processing time of USCIS, you can consult a skilled immigration lawyer.

5. How to prove plaintiff has exhausted all other available "remedies"?

If your USCIS application has been outside normal processing time of USCIS, and you have made at least one inquiry to the USCIS (through e-request or call to USCIS, should have record), and thereafter at least one inquiry through the US Senator or House Representative, no response from USCIS or USCIS’s response is meaningless, it can be considered that you have exhausted all other available “remedies”.

For any I-589 asylum application submitted between 2014 and 2019, although plaintiffs didn’t make any inquiry to USCIS or Congressman, it is automatically considered that they have exhausted all other available “remedies”. For those who submitted their asylum applications less than three years, it had better to consult a skilled lawyer first because each USCIS asylum office has different policies to such applications with writ of mandamus.    

6. What happened after filing a writ of mandamus lawsuit?

Similar to other types of lawsuits, after the plaintiff files a complaint to the federal court and the USCIS is served, the USCIS needs to respond the complaint. After the USCIS is served, in most cases, the USCIS will settle with the plaintiff, which means the USCIS will take action to the application of the plaintiff in a specific timeframe (at most 90 days).   Here, “take action” varies depends on plaintiff’s application type and application stage. For example, if the plaintiff is waiting for an interview, then USCIS’s action will be schedule an interview for the plaintiff. If the plaintiff is waiting for a final result from USCIS, then USCIS’s action will be adjudicating the application.   In summary, through settlement in a writ of mandamus lawsuit, the USCIS will immediately take action to your USCIS application.  

If the USCIS holds the opinion that the plaintiff’s lawsuit is vexatious, it is possible that the USCIS will contest the lawsuit in a specific timeframe (at most 90 days).  If this happened, the plaintiff can select to continue the lawsuit (fight against USCIS), or withdraw thus end the lawsuit of writ of mandamus.

7. If I win the writ of mandamus lawsuit, does it mean my USCIS application will get approved as well?

No. If the lawsuit is successful, a writ of mandamus can mandate that the USCIS take an immediate action to your application. However, it does not mean your application will get approved by USCIS.  

8. Will I be retaliated by the USCIS in the future if I ever filed a writ of mandamus lawsuit?

If the plaintiff is litigating in good faith with legal basis and evidence, there is no legitimate reason for retaliation at all. A large number of successful cases show that there is no causal relationship between writ of mandamus and application approval rate of USCIS.

9. What happened to my USCIS application if the writ of mandamus lawsuit is unsuccessful?

If the writ of mandamus lawsuit is unsuccessful, nothing changes to your USCIS application. You continue to wait for USCIS’s further action to your application. The USCIS will not retaliate or bring trouble to your application just because you ever filed a lawsuit of writ of mandamus.

10. How much does it cost to have a writ of mandamus?

The federal court’s fee is around $500. Besides court fee, the cost of hiring a lawyer will be expensive.  The average attorney fee ranges from $5,000 to $10,000, and it will cost even more if the USCIS contests rather than settles the lawsuit of writ of mandamus.

Our attorney fee is very reasonable. If the lawsuit if writ of mandamus is not successful, we will refund half of the attorney fee.

11. What documents needed to start a writ of mandamus lawsuit?

The primary document to start a writ of mandamus lawsuit is an application receipt notice from USCIS, or other documents that can prove you have an application pending with USCIS. For non asylum applications, evidence to prove applicants have exhausted all other available “remedies” is also necessary; please refer to item 5 above.

12. I do have an application pending with USCIS, but I don't have any document to prove it, can I file a writ of mandamus?

Yes, we can help you obtain a copy of your application from USCIS. Generally, it will take about 4-8 weeks.

13. Must I notify my previous lawyer about my lawsuit of writ of mandamus?

It is not a must. However, if the receipt notice and all other documents of your application are kept by your previous lawyer, it is recommended to get a copy from your previous lawyer because it takes several weeks to get a copy from USCIS.

14. Must I change my previous lawyer if I file a writ of mandamus?

It is not mandatory at all. The lawsuit of writ of mandamus and your USCIS application are two completely separate cases; one is a federal court ligation while another is a USCIS application. The two cases can be represented by different attorneys.

15. Is any lawyer qualified to file a writ of mandamus lawsuit?

No. Writ of mandamus can only be filed with a federal court with jurisdiction. Thus, only those who have admission to these federal courts are qualified to file a writ of mandamus lawsuit. Actually, many lawyers don’t have admission to any federal courts.

16. I am not in California, can you help me file a writ of mandamus lawsuit?

Yes. No matter which state are you in, we can help you file a writ of mandamus lawsuit.

Conclusion

The favorable result of writ of mandamus lawsuit is that the USCIS will expedite the processing of your USCIS application. However, it also means you will obtain a final adjudication (approval or denial) from USCIS very soon. For certain applicants, USCIS’s denial means they have to leave the United States or go through removal proceeding in immigration court, which is probably not expected by them. Thus, it is highly recommended to consult an immigration lawyer thoroughly before you take any action to have a writ of mandamus.

Through DYgeencard.com, no matter which state are you in, you can always have a skilled lawyer to help you have a writ of mandamus. Our price is reasonable and our success rate is very high. We also guarantee that if the lawsuit of writ of mandamus is failed, we will refund half of the attorney fee. Welcome to have a free consultation at 888-919-8555 or [email protected] or schedule an appointment online.