Visa petitioners are not powerless over their languishing applications.
Some foreign nationals experience an unfortunate side of the U.S. immigration process when their visa petitions get held up for seemingly no reason, for months or even years. What can someone do in that situation?
He or she can sue the federal government to compel it to take action. These are the steps we take to remedy such a situation:
1. We determine whether the situation is far enough outside of the normal processing times as to warrant further investigation. There are general guidelines about how long it should take for immigration officials to review your application. If the normal “processing time” for your application is 6 months, and your application is still pending after 2 years, something is wrong.
Usually we will not take a case unless it has reached at least 1 year beyond the normally processing time.
2. Before taking legal action, we will first try to determine the reason the application is so far in excess of the normal processing times. This involves “due diligence” on our part, such as writing letters and sending emails to immigration officials and the State Department to try and pinpoint the problem. Sometimes we also contact members of Congress to see if they can assist us in getting answers.
Often, the reasons for delay can be resolved and the processing sped up, without resorting to a lawsuit. And in some cases, there are legitimate issues, such as marriage certificates that don’t match, fraudulent or lost documents, or criminal background red flags. Any of these can easily delay adjudication of a case.
3. If we are unable to find a reasonable explanation for the delay, a lawsuit against the Department of Homeland Security or U.S. State Department in federal court may be necessary. Such an action is known as a mandamus action, meaning that it is used to compel or mandate the government to take action; in this case, to process the application in question.
There are a several key reasons why we excel in this situation as opposed to other immigration law firms:
- Many firms are simply reluctant to sue the federal government. As our record clearly shows, we have no such reluctance.
- Some people, including attorneys, seem to be under the impression that one cannot sue the State Department for improper delays in adjudicating cases abroad. This is incorrect. The State Department does have a good amount of leeway in terms of the amount of time it needs to process cases, as well as discretionary decisions it makes - but it still has a legal obligation to move forward and not unnecessarily delay the processing of applications. We just brought a case against a consulate that had been pending for over 6 years. Due to our mandamus action, the case was adjudicated within 6 weeks.
Some clients are initially concerned that if they sue the federal government, it will somehow result in retaliation by the government against them, and that their petitions which would otherwise have been approved, will instead be red-flagged for denial. Those who share this worry can put their fears to rest. In the past 5 years, we have brought over 130 cases in federal court to resolve these situations and not once has anything of this nature occurred. Please do not be afraid to come forward and contact us if you think your immigration petition appears to be taking longer than normal to go through the system.
How long have you been waiting for your case to be adjudicated?
Mitchell C. ZwaikLong Island, NY
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