Mandamus (Immigration Delays) FAQ
Before Filing The Lawsuit
Filing a Mandamus lawsuit to challenge delays in the processing of a visa application is intended to bring about the best possible outcome and resolve delays in the process. While we cannot guarantee success, we are confident that our efforts will result in a decision on your immigration case in a timely manner.
There are, however, some negative scenarios that we must consider as a possibility, even though we hope they will not occur. It is possible that the process could take longer than the average 2-6 months after filing the lawsuit, and in some cases, it may linger indefinitely. The opposing counsel may file a motion to dismiss the lawsuit, which the court could grant, resulting in the dismissal of the lawsuit.
In addition, the Consulate or Embassy may return the visa application to the NVC and USCIS for possible revocation, requiring a response and potentially causing further delays. Your immigration case may also be transferred to another Consulate or Embassy, or the Mandamus lawsuit may be transferred to another court, which could also contribute to delays.
Finally, it is possible that the final decision on your immigration case may not be the one we hoped for, with the possibility of denial or a negative outcome for other reasons.
The legal basis of the lawsuit is the argument that the relevant agencies have failed to take action on our clients' immigration cases within a reasonable period of time. Our clients have followed the legal process and fulfilled all necessary requirements for their petitions or visas to be approved, yet the agencies (such as USCIS, NVC, or the Consulate/Embassy) have not fulfilled their duty to reach a final decision in a timely manner.
We seek to prove that the delay in these cases is unreasonable by presenting the facts of each case and suing the agencies directly involved in the delay. We believe that our clients have a right to prompt and fair resolution to their immigration cases.
When we file a lawsuit, the court will issue a document called a summons, which we will deliver to the relevant agencies at their officially designated address. This is known as "service of process," which is the method of initiating a lawsuit under federal rules of civil procedure.
The process of serving the summons generally takes 21 days, as we are required to deliver it to the defendant agencies via USPS in accordance with federal law. This ensures that the agencies are properly notified that they are being sued.
Please rest assured that we are taking all necessary steps to ensure that the agencies are aware of the lawsuit and will work towards a resolution to your immigration case.
If the defendant named in your complaint resigns or is replaced, there is no need for concern. We sue the head of agencies such as USCIS and NVC in their official capacities, so the lawsuit will continue regardless of any staffing changes. The U.S. Attorney representing these defendants will handle all communication on their behalf, regardless of any changes to the agency's personnel.
Please rest assured that we are dedicated to pursuing a resolution to your immigration case and will continue to do so regardless of any changes within the named agencies.
After filing a lawsuit, the defendants will be formally notified of the legal action and given a 60-day period to respond to the complaint. During this time, our firm will communicate with the court and the defendants' attorneys to monitor the progress of the case and the processing of the visa applications.
Our clients may also receive updates from the Consulate or Embassy. Our firm will keep in regular contact with clients, providing updates on the case as well as any new information received from the defendants or the court.
We cannot predict how long a lawsuit will take or when a final decision will be made on an immigration case. We always hope for the best outcome as soon as possible, but every case is different.
Depending on which stage your immigration case is in at the point of filing the lawsuit, we may need to dismiss the lawsuit once that stage is completed. This is typically done when a petition is stuck at the USCIS and then it gets approved.
Dismissing the lawsuit at this point is a legal strategy we follow to ensure that we still have the option to file a lawsuit again, should the immigration case get stuck in one of the later stages. In our experience, not dismissing the lawsuit in this scenario closes the door for further litigation, and leaves our clients with no way to fight further delays.
In general, the defendants in a Mandamus lawsuit related to immigration would be the Department of State, the National Visa Center, and/or the United States Citizenship and Immigration Services (USCIS). These are the agencies that are responsible for processing immigration applications and determining whether an applicant is eligible for a visa or other immigration benefit. The specific defendants will depend on the specifics of the case, but typically one or more of these agencies will be named as defendants in the lawsuit. Agencies such as the FBI, and all the immigration actions they take, will fall under the bracket of one of these three agencies.
Naming specific defendants, such as USCIS, NVC, and the Embassy/Consulate, allows us to target the agencies that have direct control over the delay in the immigration case. This strategy increases the chances of successfully resolving the case and obtaining the desired outcome for our clients. Additionally, by naming the specific defendants, we can ensure that the lawsuit is not dismissed due to lack of jurisdiction or other legal reasons.
The filing of a Mandamus lawsuit is still an effective tool during the COVID-19 pandemic to challenge processing delays in immigration cases. While the Embassy/Consulate may not be fully operational due to COVID-19, the agencies are still responsible for processing cases in a timely manner. In some cases, the court may take the current pandemic situation into consideration when setting deadlines for the defendants to respond to the lawsuit. The court may also consider the current situation when determining whether the delay is reasonable. However, even during the pandemic, our legal team is able to gather evidence and present arguments to the court that demonstrates that the delay is not justifiable and that the immigration case should be processed without further delay.
After Filing The Lawsuit
It is important to note that winning a lawsuit does not guarantee that the outcome of the case will be favorable. However, it does mean that the court has ordered the government to take action on the case within a specific timeframe and that the client will have a better chance of getting a decision on their immigration case. Additionally, winning the lawsuit could also lead to a settlement agreement with the government, which could provide a more favorable outcome for the client.
It is important to note that defendants, such as federal agencies, may request an extension in order to gather more information or evidence related to the case. This is a common practice in the legal system and is not necessarily an indication of wrongdoing or an attempt to delay the case. Additionally, it is common for defendants to request an extension to the court's response deadline in order to have more time to prepare their defense. As a legal team, we agree to these extensions as it is a standard part of the litigation process and it gives the defendants the opportunity to address the issues raised in the lawsuit. It is also important to note that if we do not agree to the extension and the defendants file a Motion to Dismiss, it could be detrimental to our case and the outcome may not be favorable for our client.
When filing a Mandamus Lawsuit, the goal is to challenge the processing delay of an immigration case and to force the Embassy/Consulate to take action and make a final decision. While we always hope for a favorable outcome, there is no guarantee that the decision will be in the client's favor.
It is possible that after filing a Mandamus Lawsuit, the immigration case may be returned to the USCIS or the NVC for further review. In such cases, it could be possible that the visa application is sent back to the NVC for possible revocation. This would present a new challenge and further delay. The immigration case would then be returned to USCIS, who would then issue a notice of intent to revoke the previously approved visa application. The applicant would then be afforded an opportunity to respond to the notice of intent to revoke.
Preparing a response to the notice of intent to revoke is not covered in the limited scope of services we provide, which only covers matters directly related to the lawsuit itself. This would require additional legal and other fees. Our clients would not be obligated to hire us to prepare a response to a notice of intent to revoke, and we would not be required to assist them. Whether we could assist them and how much that might cost would be evaluated on a case-by-case basis.
The 60-day timeframe for the defendants to respond to the lawsuit begins after the defendants have been formally notified of the lawsuit through the process of "service of process." This is the method of initiating a lawsuit under the federal rules of civil procedure, and it involves the court issuing a document called a summons, which is then mailed or delivered to the agencies at their officially designated address.
Once the defendants have been served with the summons, the court will set a timeframe for them to acknowledge and respond to the complaint. This timeframe is typically 60 days from the day they received the lawsuit.
It's important to note that we cannot expedite the process of issuing summons, as the service of process must be done in accordance with federal law. Failure to do so would cause the service of process to fail and the lawsuit would be dismissed.
The timeline of a lawsuit is set by the court and is standard across all District Courts. This includes the time allowed for the summons to be served, the deadline for the defendants to respond, and any additional court-mandated deadlines.
However, it's important to note that the timeline for the lawsuit is separate from the timeline for the immigration case. The lawsuit is intended to address delays in the immigration case, but the two processes have different timelines.
In some cases, the filing of a lawsuit results in immediate movement in the immigration case. In others, there may be no movement in the immigration case until the lawsuit reaches its deadline. At this point, the defendants must respond to the complaint filed and may request an extension if they believe the immigration case will be resolved soon or if additional documents are needed from the applicant.
It's important to note that every case is different, and the outcome and timeline can vary. The purpose of the lawsuit is to push the defendants to take action on the immigration case, and the goal is to have that happen before a judge reviews the lawsuit and issues an order.
DocketBird is a court viewer that our firm uses to monitor the progress of lawsuits we have filed. Once a lawsuit is filed, our clients will start receiving email notifications from DocketBird. These notifications are sent automatically and will provide updates on any filings or activity in the lawsuit. Our clients are added to the distribution list for these notifications and will receive them at no cost. However, clients will not have access to the DocketBird platform, it is only for internal use of our firm.
Once a lawsuit is filed, it will be pending before the court. However, it is unlikely that the court will make a meaningful decision unless a Motion to Dismiss is filed and a final decision is reached by the judge. Our goal is to resolve the lawsuit before it reaches the judge.
In most cases, our clients achieve their goal of having their visa petition approved or visa issued, as a result of the agencies taking action in response to the lawsuit, rather than through a court ruling. The lawsuit serves as a tool to push the agencies to take action and complete the immigration case processing.
It is important to note that the timelines for the lawsuit may not necessarily align with the timelines for the immigration case. Typically, our clients see action in the immigration case before a judge makes a final decision. The duration of the lawsuit process varies depending on the case and the agency's response.
If a decision is made on an immigration case but the medical examination has expired before the visa is issued, the applicant will likely be required to update the medical examination in order for the case to proceed. It is important to note that the processing of an immigration case will not continue unless the applicant complies with all requests made by the agency. This includes updating expired medical examinations. It is advisable that you keep track of the expiration date of the medical examination and take the necessary steps to renew it in order to avoid any delays in the processing of your case.
If an immigration case is refused under section 221(g) of the Immigration and Nationality Act, it does not necessarily mean that the case has been denied. A refusal under section 221(g) means that the case is being held in administrative processing, which is a common practice when additional information or documentation is required. In this case, the embassy or consulate will provide instructions on what is needed to proceed with the case and the application will be held until the requested information is submitted and reviewed. Therefore, it is important to understand that a refusal under section 221(g) is not a final decision and the applicant still has the opportunity to submit the requested information and continue with the case.
Please review Josh's advice on being refused: Click here.