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Lawsuit Without Interview

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Can I file a lawsuit even if I haven't had my interview yet? Hi, I'm Jim Hacking, immigration lawyer, practicing law throughout the United States at our office here in St. Louis, Missouri.

You know we filed a lot of lawsuits out of our office. We have sued USCIS, and the asylum office, and the State Department, and the embassies, many, many, many, many, many times. It is, of course, my favorite thing to do because I get to take people who are absolutely stuck with the federal government, they can't get any answers, the ombudsman can't help them, the Senator can't help them, and we come in, file a lawsuit and get the case moving and then we dismiss the lawsuit.

We had a question this week from Andrew. Andrew wanted to know, "Well, can you file a lawsuit if you have not had your interview yet?" And of course this would apply to citizenship cases, green card cases, and overseas visa cases and asylum cases. So it applies to most situations. But of course, the lawsuit is under two provisions of the law.

One is a writ of mandamus, so that is a writ asking a federal judge to compel the government to do something that they are legally obligated to do. In this case, decided an immigration case before them.

The second provision of the law that we file under is the Administrative Procedures Act, which says that any federal agency that has a case in front of them, that they are responsible to decide that in what's called a reasonable amount of time. And so the question of whether or not you've had an interview does not really impact whether or not the delay is reasonable.

So in answer to your question, Andrew, you can file a lawsuit even if you haven't had your interview. So of course, in the citizenship context, there's this really nice little provision of the law, 8 U.S.C. 1447(b), which says that you can sue in federal court if 120 days have gone by since your interview. That's a little extra provision that gives you a little extra protection and a separate path into federal court. But all federal courts are open and receptive to lawsuits based on an unreasonable delay, and that's whether or not you've had your interview.

Now, there may be times where you want to wait to see what happens at your interview or to get an interview, but the tricky thing is, is that now USCIS, in the old days, they would interview you on cases they had questions about, unquestionable cases. But now what they do is they just sit on it and they never give you the interview.

And so I think that's sort of where Andrew's question is coming from is that, "Look, I filed this case a year and a half ago, two years ago. I haven't even had my interview yet." What's going to happen if you file a lawsuit? Will they just say, "Well, he hasn't had his interview yet so the lawsuit can't go forward?" Well, no, Andrew, that isn't what happened.

In fact, what happens when you file a lawsuit on a case that hasn't had an interview is that you see a lot of movement relatively quickly because the agency scrambled to get that interview completed.

Now, in most of our embassy cases, those involved situations where there has not been an interview, but we've certainly filed many where there has been an interview on those State Department cases. But over here in the United States for a citizenship green card asylum, we're seeing all kinds of cases where people are not ever getting their interview. So those are ones where we're more inclined to sue right away and where we see more action right away.

So what happens is we filed a lawsuit, we mail a copy to the defendants. When they get the copy in the mail, they get 60 days to respond, and towards the end of those 60 days you start seeing a lot of activity. The US attorney calls me or emails me and says, "Jim, here's what we're going to do in Andrew's case, we're going to get him scheduled for an interview.

Can we have another 30 days to conduct that interview?" And I say, "sure." And then towards the end of those 30 days, they say, "Jim, we completed Andrew's interview. We're going to need another 30 days to finally decide the case." I say, "Thumbs up, let's do it," because we're seeing lots of good movement and then the cases is resolved. So yes, Andrew, absolutely, you can file a lawsuit even if you have not had your interview.

We hope you found that helpful. Andrew and everybody else, we hope you're staying safe and that everything's good in your life. If you have questions or need help with a immigration matter, including lawsuits, give us a call, 314 961-8200. You can email us at [email protected]. Be sure to join us in our Facebook group, it's called immigrant home. We'd love to see in there. And if you liked this video, we ask that you please subscribe to our YouTube channel and that you shared it out on social so that we can spread the word to all the people who need to know about immigration in the United States. Thanks a lot. Have a great day.

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