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Processing Delays and Petition Denials? Consider Litigation!

21 Aug

Given the recent months-long closure of USCIS offices due to COVID-19 and potential furloughs of USCIS employees at the end of the month, processing delays are naturally expected. But what about petitions and applications that were filed long before COVID-19 that have been pending a few months or maybe even a few years outside of normal processing times? How long is too long? 

If you are frustrated by processing delays, you are not alone. Such delays can have severe consequences for your ongoing employment authorization and restrict your ability to travel or vote. In these types of cases, one option may be to file a lawsuit against USCIS in federal court.  

The rules applicable to all federal agencies in the United States require that the agencies act on petitions and applications within a “reasonable time.” If you believe that USCIS has failed to properly adjudicate your case in a “reasonable time,” you can file a Writ of Mandamus. Such lawsuits can be used to challenge delays in the adjudication of visa applications and petitions by compelling the agency to act where they have a legal duty to do so but have not. Some situations where you can file the Writ of Mandamus include:

  1. N-400 Processing Delays: Regulations require that USCIS make a decision on an N-400 Application for Naturalization within 120 days of an applicant’s initial examination. A failure to render a decision within this 120-day timeline gives you the right to file a complaint with the appropriate federal district court having jurisdiction where you live. By filing a lawsuit, you are compelling USCIS to adjudicate your N-400 application.
  2. I-485 Processing Delays: Your I-485 Adjustment of Status application may remain pending outside of current processing times. Or you may have even attended your AOS interview, but the officer told you a decision could not be made. Several months or even years could pass without a response from the USCIS. While no time limit exists for USCIS to make a decision on a Form I-485, the courts have generally said that a delay of more than two years is unreasonable.
  3. EB-5 Processing Delays: Within the last two years, there have been substantive changes to the EB-5 program that have caused processing times to increase. Since December 2019, the estimated time to process a Form I-526 petition increased from 31.5 months to 52 months. Here, it is arguable that such a dramatic increase in processing times is imposing an unreasonable and prejudicial delay on many investors as there may be adverse impacts that could come from termination of a regional center or voluntary decision by the regional center to no longer stay in business.

H-1B Denials: Adding to the frustration over processing delays is USCIS’ seemingly improper denial of petitions. According to reports, denial rates rose from 6% in 2015 to 30% in the first quarter of 2020 for new H-1B petitions for initial employment. If you believe that USCIS has improperly adjudicated your H-1B petition, you may consider filing a federal lawsuit to challenge USCIS’ decision.  

Current USCIS adjudication practices under the “Buy American and Hire American” Executive Order have resulted in countless H-1B petitions being inconsistently adjudicated and improperly denied.

Because of USCIS misinterpretation of the law and the regulations on issues such as specialty occupation, contracts/itineraries, and third-party placement, many lawsuits have been filed against USCIS to request that judges review whether USCIS decisions are “arbitrary, capricious, an abuse of discretion or otherwise not accordance with the law.” Many of these lawsuits have been settled and resulted in favorable outcomes for the petitioner and beneficiary. 

As recently as August 19, 2020, following a lawsuit challenging the delayed production of employment authorization cards, USCIS entered into a consent decree allowing employers to accept approval notices in lieu of the actual card as a List C#7 document that establishes employment authorization for Form I-9 employment eligibility verification purposes. This consent decree illustrates the potential value of meaningful litigation.

While litigation can lead to fruitful results on cases, it is important to seek resolution through all available steps such as making InfoPass appointments, filing service requests, and reaching out to your congressional representatives before considering litigation. If you still have not received any meaningful response as to why your case has been significantly delayed, then it may be time to consider litigation. If you are considering litigation, reach out to your Foster attorney today.