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Filing a writ of mandamus to force action on a delayed green card or citizenship application 

At times, no action is taken by the USCIS on applications for green cards or citizenship for years. In cases in which USCIS provides no answers or updates, it is possible to file a writ of mandamus, a federal lawsuit to force the agency to take action. 

To file a writ of mandamus, you must meet four conditions. One, you must have a lawful right to the request. Two, the USCIS must have a clear duty to perform the action ordered. Three, you must not have any other options available. Four, the processing time for your case must be unreasonably delayed. 

Filing a writ of mandamus does not mean the USCIS will approve your case — it only makes sure action will be taken on your case within 60 days. Though approvals for cases does fall under the USCIS’s power, the agency can still be held accountable for delays deemed overly long. 

The Administrative Procedure Act ensures that, in cases in which federal agencies fail to take action within a reasonable amount of time, or unlawfully withholds action, they can be ordered to do so. For example, action on a document like the permanent residence application I-485 is in the hands of the USCIS. But if it fails to make a timely decision, it’s possible to file a lawsuit against it under the act. 

In cases a writ of mandamus is filed, the court makes a judgment based on six factors: 

  1. How long the case has been with the USCIS. Each case is different, but in one instance, the court ruled that four years was too long a processing time for a green card application. 
  2. Whether the agency had a time limit in place to make a decision. If one existed, then of course the case would be in favor of the plaintiff. 
  3. Whether, due to delay by the USCIS, the plaintiff’s health or welfare has been affected. 4. Whether ruling in favor of the plaintiff might be discriminatory toward similar cases. 5. Whether a humanitarian factor is present. 
  4. Whether the USCIS’s reason for delay is unjustifiable. 

Before considering filing a writ of mandamus, you should wait to make sure you have a persuasive case. When filing, you must submit as evidence the agency’s violation of the Administrative Procedure Act. Even if your filing of a writ of mandamus is rejected, you are able to file again.

Law Offices of Gary J. Kim
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