As I have advocated in previous blogs, one solution to resolve the unreasonable and inordinate delays in visa petition processing times is to take the government to court, either under the Mandamus Act, 28 U.S.C. §1361, or under the Administrative Procedures Act, 5 U.S.C. §555(b), or both. What is particularly compelling is that under the Equal Access to Justice Act, 28 U.S.C. §2412, a prevailing party shall be awarded attorney's fees where the government cannot show that its position "was substantially justified." The government has the burden of proving that its position was substantially justified. I would argue that the visa processing delays that we are experiencing now cannot be justified. In fact, there are fewer immigration petitions being filed, but the processing delays have increased disproportionatly. Therefore, it is most likely that the applicant and/or beneficiary would be awarded attorney's fees if the applicant prevails in Federal Court.
This would also apply to those who have been unjustifiably denied a visa petition, which is becoming more common nowadays. What's worse is that many visa petitions are being denied despite the fact that the applicants fulfill the legal requirements for the immigration benefits. The answer again is to pursue an appeal in Federal Court and seek attorney's fees to the extent that it can be shown that the government's position was not "substantially justified." The only caveat for denials of visa petitions is that even if the court rules that the visa petition was incorrectly denied, it does not necessarily mean that the government's position was not "substantially justified." In plain English, this means that its possible that attorney's fees may not be awarded even if you prevail in overturning the denial. I would argue that the same cannot be said for the unreasonable visa petition processing delays - those are patently unreasonable.
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If you have any questions regarding immigration law or the appealing of the denial of a visa petition, please do not hesitate to contact me, Santiago J. Padilla, Esq., either at 800-483-7197, or [email protected]