Nowadays, unreasonable or inordinate delays in immigration petition processing times are causing clients significant stress, particularly because travel may be restricted while the immigration petition or application is pending. However, there is a solution which may have been viewed as extreme in previous years, but which now is getting renewed attention. That solution is filing a lawsuit against the United States Immigration and Citizenship Services ("USCIS") in federal court under the Mandamus and Venue Act of 1962. Under this Act, the party bringing the lawsuit is demanding that the court order USCIS to act and adjudicate the petition or application. In such a case, the party bringing suit must show that he or she has a clear right to the relief requested, that the government has a clear duty to perform the act in question, and that there is no other adequate remedy available.
The most common type of cases that fit this category are marriage-related adjustment of status cases. The federal courts have generally held that the Immigration and Nationality Act provides a clear right for a U.S. citizen to have the adjustment application for his or her spouse to be adjudicated. The question then becomes whether or not the delay experienced by the applicants is unreasonable. There are various court decisions on reasonableness but suffice it to state that the courts have held that a three- or four-year delay in adjudicating an adjustment petition is unreasonable. However, courts have also held that an 18-month delay is not unreasonable. Courts use various factors in determining whether a delay is reasonable.
However, if you feel that your case is subject to an inordinate delay, then filing a lawsuit under the Mandamus and Venue Act may be in order. The facts of each case, however, should be reviewed to determine whether or not the delay is inordinate.
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If you have any questions regarding immigration law, the process for immigrating to the U.S. or appealing an adverse immigration service decision, please contact Santiago J. Padilla at 1-800-483-7197.