Use The Federal Court To End Delays

Recently, In November of 2008, a client came to me because she has been trying to obtain legal permanent residency (green card) for her husband since January 2006. They were rapidly approaching their third year of waiting for an approval on their case and there was no sign that USCIS planned to provide an approval for their case.

This left my client and her husband applying year after year for employment authorizations, and many sleepless nights wondering what was happening with their case. We were later informed by USCIS officers that one significant reason why their case was delayed was the fact that years ago, an employment based petition had been filed for her husband by attorneys who have since been indicted and sentenced to prison terms for violating federal laws in filing immigration petitions.

When I reviewed the case I could see that this was a straightforward marriage-based petition filed by a committed and loving spouse. I also noticed that they had been interviewed in September of 2006 and that frequent inquiries had been made by prior attorneys. As they were approaching the three-year mark without explanation from USCIS, it was clear that the time for polite inquiries to USCIS had come to an end.

Typical processing times for legal permanent resident (I-485) applications are 8 to ten months. Once an interview is conducted a final decision on a case if it does not take place at the interview should take place within the next few weeks.

Where, as here, there is no reasonable basis for delay on a case I will discuss with a client the option of filing a Writ of Mandamus in Federal District Court. Once the complaint is filed, USCIS is given 60 days by statute to prepare a response to the District Court Judge explaining its reasons for extended delay in approving or denying petition for legal permanent residency. Many immigration cases are decided in less than 60 days to avoid further action before the Federal District Court.

Our Federal Court case filed on November 26, 2008 resulted in a second interview with USCIS and an approval of the legal permanent residency petition by January 30, 2009. Happily we were able to dismiss the Federal District Court complaint without ever setting foot within the Federal Court House. In many cases USCIS simply will not adjudicate cases unless they are able to compare the most recent applications to prior applications filed on behalf of the applicant. USCIS failure (or refusal) to retrieve old applications is sometimes the source of the delay, and depending on the age of the file, the old case file may have been archived deep in the recesses of the National Records Center which is the home to some 20 million immigration files spread over 4 miles of shelving.

Unfortunately, for many cases, only deadlines imposed by Federal District Court and the prospect of having to pay attorney's fees to a prevailing party, is sufficient to compel USCIS to take action on an immigrant petition. If you think you have waited too long, or that USCIS is not responding to your requests for a decision on your case, you should consult with an attorney. It is also recommended that you hire a qualified attorney familiar with the Federal Rules of Civil Procedure (He or She should have a copy) and willing to examine your complete immigration history prior to filing a Writ of Mandamus with the Federal Courts. Also filing of a Mandamus action in most cases guarantees Agency action on the case but not the outcome, meaning a case may be approved or denied based on whether the client qualifies for the benefit they have applied for.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.