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If Immigration Case is Taking Too Long, File a Lawsuit

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Have you been waiting too long for your husband or wife to come to the United States?

Constantly clicking on the USCIS or CEAC website of the U.S. State Department?

Or perhaps you find yourself waiting months and months for your green card interview.

Could be that your naturalization case is taking way, way too long and you want to speed up your citizenship case.

We understand your frustration.

We know how long, long delays on the part of the Citizenship & Immigration Service or the National Visa Center or your loved one's embassy can severely impact your life.

Calling USCIS Over and Over

You have probably tried calling USCIS.

Their phone number is on speed dial. 1-800-375-5283. 1-800-375-5283. 1-800-375-5283.

Hello, is anyone there?

You file service requests.

You wait on hold for Tier 2 officers, who end up telling you nothing useful.

But USCIS refuses to give you a straight answer.

They may tell you the delay is due to an incomplete background check.

Security checks.

Covid! Covid! Covid!

You may even take the time and effort to make an expedite request.

But these rarely work.

At the end of the day, your case remains pending. And there is no end in sight!

USCIS Ombudsman

Next up, you try reaching out to the USCIS Ombudsman.

The Ombudsman is supposed to advocate with USCIS on behalf of people who have been negatively affected by the action (or inaction) of USCIS.

Hey, that's you!

But can the Ombudsman help you?

Don't get your hopes up.

In fact, would it surprise you to learn that the Ombudsman's office recently announced that they would no longer assist with people who think their immigration case has taken too long.

That's right! They have given up and can no longer offer assistance on delays.

Get a Member of Congress to Help

So, USCIS offers no help. No solutions.

That's okay, though, because you read online that members of Congress can help.

You may think that if you reach out to a U.S. Senator, a Congressman or a Congresswoman, that they will simply reach out to USCIS and get your case moving.

But here's the thing. The Senator or member of Congress is never involved.

These requests for assistance usually go to the unpaid college intern.

They ask you to fill out a little privacy form and you do that. Then they reach out to the agency.

But do you really think that they are going to listen to some college kid and then, after months of delay, say to themselves, oh, little Timmy from Senator Cruz's office emailed us, now we really better get to work.

Not going to happen.

Processing Times Keep Getting Longer and Longer

You may have noticed one of USCIS's latest tricks to justify their delays.

For years, the agency has posted their processing times for each case type, sorted by which service center was handling the case.

Guess what?

Instead of fixing the problems at the agency, they simply keep adjusting their processing times.

Cases taking too long? No problem, we will just announce longer processing times.

That will fix the issue. Not!

Take a look at this chart recently released by the American Immigration Lawyers Association.

In 2017, the average case at USCIS took 6.18 months. In 2022, that number has almost doubled.

Processing of I-130 petitions, the way that American citizens and lawful permanent residents sponsor family members, including spouses, for lawful permanent resident status increased by 57%.

Naturalization applications went from taking 7.9 months to 11.5 months on average.

But here's the thing.

USCIS has allowed these delays to balloon despite the fact that the number of applications have only increased by about 3 percent.

This is ridiculous.

Work Card Delays Are the Worst Ever

Just a few years ago, USCIS took about 60 days to approve work authorization.

You filed your I-765 request for employment authorization, USCIS obtained your fingerprints at a biometric appointment and hurried to approve the work card.

Not any more.

The USCIS facilities that produce employment authorization documents are taking six, seven, eight, even twelve months before reaching a decision.

This is true in spouse-based cases, employment cases and every other work card in between.

Sadly, immigrants are losing their jobs because USCIS can't do their job.

Unemployment is at record lows.

Hospitals are understaffed.

Employers can't keep the employees that they love.

This is only the beginning.

Because not only are immigrants having to wait for their work cards for way, way too long, their underlying green card cases are taking forever as well.

Even USCIS Admits there is a Problem

According to the agency, there are 9.5 million cases pending at USCIS. This is an increase of over 66% since 2019.

The agency is falling behind and it is not getting better.

Recently, USCIS announced a new initiative to "fix the backlog."

"USCIS remains committed to delivering timely and fair decisions to all we serve," USCIS Director Ur Jaddou said Tuesday. "Every application we adjudicate represents the hopes and dreams of immigrants and their families, as well as their critical immediate needs such as financial stability and humanitarian protection."

In order to try and clear this unreasonable backlog, the agency plans on expanding something called premium processing.

Premium processing allows immigrant applicants to pay extra money to try and get USCIS to do something that they are legally obligated to do.

Under the prior approach, premium processing was available for H-1b employment visas and some employment-based green cards.

The agency plans to expand premium processing to include other employment-based green cards, all work authorization documents and requests for extension of status for non-immigrants in the U.S.

Premium processing cases are supposed to be adjudicated within 45 days.

And all this can be had for an additional $2,500 premium processing fee.

This is on top of the filing fees that you already had to pay to get the case on file.

Time will tell. But this agency is supposed to be completely funded by the filing fees that people pay when filing.

So it is certainly not a guarantee that, even with premium processing, that cases will go faster.

Visa Delays at the Embassies Overseas are Even Worse

If you think things are bad at USCIS, wait until you hear about the delays in the State Department's handling of overseas visa cases.

When Donald Trump was President, he directed the Secretary of State to gut that agency from the inside out.

When longtime consular officials with years of experienced quit or resigned, the Department of State did not replace them.

Embassies have been understaffed now for years.

In addition, President Trump banned many different types of visas from being approved and issued. This led to huge backlogs.

And the embassy workers simply got used to not moving cases to completion.

Enter Joe Biden and his Secretary of State, Antony Blinken.

Blinken is a long-time politician with a long history of working in diplomacy.

Hopes were high but it does not appear that the Biden team has made speeding up immigration cases at the embassies.

Since January of 2021, when the Biden team took over, things have not improved.

In fact, the backlog seems to be getting worse!

Administrative Processing & Visa Refusals

Here's the thing about State Department delays.

When the State Department doesn't approve the case, they typically issue a "refusal."

The refusal might be a 221(g) refusal which causes the case to drop into "administrative processing."

Administrative processing is a fancy name for delay.

It means that the immigrant will not be getting their visa any time soon.

It means that the case is on hold.

And it means that a final decision has not been reached.

Some other refusals, though, do amount to a final decision.

When Nothing Else Works, You Might Want to Sue

The federal government is structured in three branches.

The Legislative Branch, Congress, makes the laws.

The Executive Branch, the President and government agencies, implement and enforce the laws.

The Judicial Branch, the Courts, interpret the laws.

A law passed by Congress, known as the Administrative Procedures Act (APA), has many rules that administrative agencies like USCIS and the State Department must follow.

One of those APA rules is that an agency must decide a matter before that agency in a "reasonable" amount of time.

The APA says that if a decision has been delayed for an unreasonable amount of time, the applicant can file a lawsuit in federal court.

In the lawsuit, the immigrant can ask a federal judge (who is appointed for life and is therefore independent) to order USCIS or the State Department to decide the case in a few months.

In addition, an old concept from the federal courts called the Writ of Mandamus, also allows immigrants to sue the Executive Branch (including USCIS and the Department of State).

So immigrants who face unreasonable delays have two separate causes of action, one under the APA and one through the Writ of Mandamus.

Special Rule for Post-Interview N-400 Delays

In addition to the protections given to immigrants suffering from long delays in the handling of their case, Congress has a special provision found in 8 U.S.C. 1447(b).

Section 1447(b) says that if you apply for naturalization and USCIS conducts your naturalization exam and interview, the agency has 120 days to make a final decision on your case.

If the agency fails to decide the case, the citizenship applicant can file an action in federal court asking a judge to either naturalize them or to send the case back to USCIS with instructions to decide the case in a certain amount of time.

This is a special lawsuit that is only available to naturalization applicants who already had their interview.

But these lawsuits work really well because the law makes it clear that a decision must be reached.

How APA and Mandamus Lawsuits Work

In order to bring an action in federal court, the immigrant must draft a complaint (the formal name of the lawsuit) and pay the federal court filing fee, which is currently $402.

The lawsuit is typically brought where the immigrant lives.

In the lawsuit, the immigrant invokes the federal court's jurisdiction and asks for the judge to order USCIS and/or the State Department to act.

Once the lawsuit is on file, the clerk of court will issue a set of documents called summonses.

One summons is issued for each defendant.

The immigrant usually sues the agencies at issue, the heads of those agencies and the local director (embassy official or USCIS office director) as defendants.

Once the summonses are issued, the immigrant's attorney sends a copy of the lawsuit and two copies of the summonses to each defendant by certified mail, return receipt requested.

Each defendant has a specific person who accepts service of the summons on their behalf.

When the defendant has been served, they have 60 days (two months) to respond to the lawsuit in federal court.

After Summons Delivered, Things Start Moving

In most cases, the agencies get to work on the underlying case after the defendants receive the lawsuit.

The agency might schedule another interview.

USCIS or the State Department might request more evidence.

Sometimes, they send a Notice of Intent to Deny.

The agencies even simply approve or deny the case after service.

Basically, anything is possible. So you need to make sure your case is in the strongest position possible before filing the lawsuit.

Suing the People Making the Decision is Scary

When we first started suing these agencies, we were not entirely sure how they would react.

Would they ignore us?

Might they deny the case just to punish our clients for having sued them.

That's not what happened.

The vast majority of cases ended up being approved.

Turns out they are used to being sued.

And they don't want to look bad in front of the federal judge.

In most cases, instead of fighting things out in court, the agencies simply finish the case.

This is true in over 90% of the cases.

We sue them, we send them a copy of the lawsuit with the summonses, they get to work, they reach a decision and we dismiss the case.

You never go to Court.

We never go to Court.

Nobody even talks to the judge in the vast majority of cases.

And the agencies don't seem to take it personally.

It's not like we are suing them for money.

And we aren't asking for anyone to be fired.

We are simply asking them to do their jobs and finish the case.

Like the law requires.

Even though we have filed hundreds of these cases, we have never seen an instance where we felt that our client was being treated unfairly because we sued.

They pretty much play things straight.

We don't view the lawsuit as impacting the actual outcome all that much.

And we aren't asking the judge to actually decide the case, but rather to make sure that the defendant agencies do.

Think of it as a fast-forward button.

To get you to the final outcome sooner rather than to keep on waiting.

Types of Cases in Which Lawsuits Work

As of this writing, Hacking Immigration Law, LLC, has filed over 1,100 mandamus and APA delay lawsuits against USCIS and the State Department.

We have filed them in different federal courts throughout the country.

California, Texas, Florida, Washington, D.C. and New York.

Small towns and big cities.

We sue for naturalization delays. Both for people who have had their interview and those who have not.

Green card delays is a big part of what we sue over - green cards based on marriage, or asylum or employment.

We have sued for delayed employment authorization documents (work cards).

We sue for asylum delays where cases have taken 4 or 5 years to get an interview and a decision.

One of the types of lawsuits that we have filed a ton is overseas family visa cases, like for spouses of U.S. citizens and lawful permanent residents.

We have helped end the suffering for hundreds of immigrants who waited too long for a final decision on their immigration case.

It is our favorite thing to do.

We developed our own system for filing these lawsuits quickly and efficiently to get you a final decision on your case.

Do Lawsuits Work Every Time?

No. Lawsuits do not work every time.

As mentioned, we have filed over one thousand, one hundred of these lawsuits over the past 8 years.

In most cases, the agency gets to work and issues a final decision.

We may give them an extension or two while they work things out and you need to be ready for that possibility.

In most cases, the government never actually answers the lawsuit.

They just get to work and then we dismiss the lawsuit when a final decision is made.

But in a small percentage of cases - less than 1 out of 10 cases, the government files a motion to dismiss.

They ask the judge to dismiss the lawsuit, arguing that the delay isn't their fault or that it hasn't really been an unreasonable amount of time.

Such motions used to be very rare.

But after COVID and Trump, these agencies seem more willing to tolerate these long delays.

They file these motions a little more often than they used to.

Here's the thing - we can't predict when they will file a motion to dismiss.

We wish we could.

But we have seen cases that seem very simple get a motion to dismiss.

We have also seen complicated cases get resolved quickly without such a motion.

Sometimes, the government attorney files a motion to dismiss AND the agencies keep working on the underlying case.

For instance, we had a motion to dismiss filed in a case in which a US citizen had waited for the U.S. consulate in Moscow to issue his wife a visa for years.

The government alleged that the embassy was closed.

We responded to the motion to dismiss.

But after that, the embassy issued the visa.

Like we said, it doesn't always make a lot of sense.

When the government files a motion to dismiss, it causes the case to be further delayed.

It's not good for the immigrant when a motion to dismiss is filed.

This is why we sometimes agree to an extension for the defendants to respond to the lawsuit.

To try and avoid the dreaded motion.

We Aren't Taking Over Your Underlying Case

We'd be happy to represent you in a lawsuit against the federal government.

Working on these cases and helping people get a final decision is rewarding work.

But when you hire us to file the lawsuit, we are not your attorney in the underlying case.

We don't take over your asylum case or your green card case or your citizenship matter.

That would be separate from the lawsuit.

So you can keep the lawyer you have.

Or you can keep handling the case itself.

Our immigration law team would be happy to help but that is different than the lawsuit.

Client success stories

We could fill pages and pages of web content with success stories from the clients that we have helped.

Here are just a few:

We helped this couple get green cards after waiting 9 years for a final decision.

Here's the story of Mohammad, a fellow in Houston who waited for years and years to become a citizen. It was not until we sued USCIS that he got approved.

Nazar was like many others, he thought USCIS would treat him fairly. But after four years, three interviews, USCIS scheduling and de-scheduling his oath ceremony, he realized that wasn't the case. Finally, he took our advice and filed a lawsuit.

A fellow in Florida named Venkat also hired us to sue USCIS because his case was taking too damn long.

These are just four of the hundreds of people that we have been able to help by filing a mandamus and APA delay lawsuit.

The lawsuits work. Not every time.

But the way we explain it to people is that just because you sue them, doesn't mean 100% that you will get a final decision. But if you don't sue them, you will probably keep waiting.

If You Need Lawsuit Help

If you would like to speak to us about how a lawsuit might move your case forward, please call (314) 961-8200.

You can email us at [email protected]

Join thousands of other immigrants who have joined our free Facebook group, which is called Immigrant Home.

Or check us out on YouTube. We have tons of free content about lawsuits and about immigration in general.

Good luck to you.

We hope you don't need us. But if you do, we are here for you.

Fighting for Immigrants. Every Day.

 

 

 

 

 

 

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