As many individuals have unfortunately experienced, lengthy immigration delays have increased dramatically in recent years. Both at the USCIS processing stage and during the consular process, it is now not uncommon to face indefinite delays with few or no updates from the relevant authority. On one hand, these delays are understandable. Both USCIS and the consulates abroad are still facing significant backlogs due to Covid-19-related closures, staffing shortages, and limited appointment availability. On the other hand, these delays are often becoming unreasonable and leaving those affected in very difficult situations. Lengthy immigration delays result in families being separated, applicants being unable to work, academic studies being put on hold, and people’s lives otherwise being disrupted. Fortunately, when all other options have been exhausted and it seems like it may be hopeless, there is a way to compel action from the government: file an immigration lawsuit.

While nobody enjoys litigation, this is a good option when USCIS or a consulate abroad is not taking any action on your case and all other remedies have already been exhausted. That said, filing a lawsuit is serious, so before taking this step, it’s important to understand the process and implications. This comprehensive guide will provide everything you need to know before moving forward.

Background:

When an immigration case is significantly delayed by USCIS or a consulate, one option for relief is to compel action by filing an immigration lawsuit. The kind of action typically used is called a “writ of mandamus.” There is also a basis under the Administrative Procedure Act (“APA”), which is very similar.

The authority to file a writ of mandamus is found under 28 USC § 1361, which provides in the relevant part: “Action to compel an officer of the United States to perform his duty: The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or agency thereof to perform a duty owed to the plaintiff.”

When filing a mandamus lawsuit, you must prove that (1) you have a clear right to the relief requested; (2) that USCIS/the consulate in question has a clear, nondiscretionary duty to perform the act in question; and (3) that there is no other adequate remedy available to the plaintiff.

Notably, 28 USC § 1361 only grants the appropriate district court the authority to compel an agency to act on a case – it does not give the court any authority to review the substance of the actual case. This means that filing a writ of mandamus will compel the agency or consulate to take action, but not to necessarily approve the case. Once the writ is filed in the appropriate federal court, USCIS or the U.S. consulate must answer the complaint within 60 days. Typically, USCIS or the consulate will simply make a final decision on the underlying immigration case within those 60 days, to render the federal lawsuit moot rather than fight it. The final decision will be either an approval or a denial or in the case of a consulate, the issuance or refusal of the visa.

There is also a right to similar relief under the APA, which allows litigants to challenge an agency’s unreasonable delay. The APA requires agencies to conclude matters “within a reasonable time” and authorizes a federal court to “compel agency action unlawfully withheld or unreasonably delayed.” Because of the similarities in requirements and potential remedy, and because courts typically consider the claims interchangeably, the American Immigration Lawyers Association (“AILA”) recommends pleading both an APA and mandamus cause of action when filing the lawsuit.

There is no law or bright-line rule for how long a person must wait before filing a lawsuit, although the delay does need to be excessive to warrant this kind of action. Normally, this kind of action is reserved for cases that have been pending for over a year, but it really depends on the circumstances. Overall, this kind of relief should be considered on a case-by-case basis, looking at all factors with the guidance of a skilled immigration attorney.

Once you decide you want to file a lawsuit, it is important you take the necessary steps to build your case and set yourself up for success. The recommended process is explained below.

Procedure:

First, Exhaust All Administrative Remedies

Before filing a lawsuit, it is important to exhaust all administrative remedies. This means you must show you have no other adequate remedy available and all avenues for relief have already been explored. To do this, you should take whatever escalation steps possible and show that these steps have been unsuccessful. This can include placing a service request for cases beyond the normal processing times, sending follow-up emails to the consulate, seeking assistance from a local congressman, calling USCIS, scheduling an InfoPass appointment to try to get an update, etc. Documenting these steps will allow you to show the court that the case is not only delayed but that any attempts to close the matter with the agency/consulate have been unsuccessful to date.

Second, Give Written Notice of Intent to File a Lawsuit

After taking any available action to try and get a decision on the case, if there is no resolution, the next step is to provide notice to the relevant parties. This means alerting USCIS or the consulate, as well as the local U.S. attorney, of your intention to file a lawsuit if there is no resolution within 30 days. Sometimes just giving appropriate warning of a forthcoming lawsuit will have the desired effect. Even if not immediate, this warning usually prompts USCIS or the consulate to begin working on the matter to avoid litigation, so this is a critical step that can be just as effective as actually filing the suit.

Next, If No Action, File the Lawsuit

After giving notice of the intent to take legal action, if there is no movement within 30 days, the lawsuit should be filed and served upon the relevant defendants (USCIS, the Department of State, etc.) and the local U.S. attorney.

The complaint must be filed with the local district court that has proper jurisdiction. The complaint will assert jurisdiction, list the defendants, state the relevant facts, explain that all available remedies have been exhausted, state the cause of action (both mandamus and APA), and assert a prayer of relief. After filing the complaint, USCIS or the Dept. of State will have 60 days to answer. The relevant agency will have two options: oppose the mandamus or take action on the underlying immigration case. Often, the government will settle the issue by assuring the court they will make a decision within a specified period.

Normally, what happens after a lawsuit is filed is the case starts to see movement – either some action or a final decision is issued. Interviews get scheduled, an RFE gets issued, etc. Most of the time, the government will try to make the lawsuit moot by issuing a final decision on the underlying immigration case within the 60-day response period.  However, should the government decide to fight the lawsuit, they may either file a motion to dismiss or answer the complaint explaining their opposition / why they do not believe they are required to take action. In that event, the case will move forward in the litigation process.

 

Special Considerations for Consular Delays:

While it is possible to file a lawsuit based on consular delays, this option can be more challenging and should be reserved only for clear cases of excessive delay. If a person is seeking to compel a U.S. embassy or consulate to adjudicate a visa application or petition abroad, the government is likely to argue that such a claim is barred under the doctrine of consular nonreviewability. Congress granted consular officers the authority and discretion over visa decisions, so the government may argue that courts lack jurisdiction to review these purely discretionary decisions. However, some courts have rejected this argument, on the basis that consular officers have a duty to act under the regulations, by either issuing or refusing the visa. As such, if you file a lawsuit on the basis of consular delays, it is important to argue that the doctrine of consular nonreviewability does not preclude challenges to the government’s failure to decide. In other words, where the ultimate decision by the consulate cannot be reviewed by the court, the fact a decision has not been timely made can be.

For cases involving consular delays, ILBSG advises working closely with an experienced attorney to ensure you have a strong case before moving forward with a lawsuit.

Conclusion:

Filing a lawsuit against the government can be an attractive option for cases that have been excessively delayed. When all available remedies have already been exhausted, a lawsuit may be the final option available to compel action on your case. To ensure the best possible outcome, it is important to carefully document all steps taken prior to filing suit, as well as make sure that the delays are, in fact, excessive. Taking the necessary action before filing can ensure that once the complaint is filed, the government will do whatever is necessary to move the case forward to a final resolution, to avoid litigation and render the lawsuit moot.

Because filing an immigration lawsuit against the government is serious, the decision to file should not be taken lightly. This involves careful strategizing to build the strongest case possible. However, where all the requirements are met, lawsuits are a great option for getting much-needed relief in unreasonably delayed cases. If you think you have a strong case that warrants legal action by the courts, reach out to an ILBSG attorney to discuss the next steps.

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