Written by attorney Kyndra L. Mulder

The Writ of Mandamus: When the USCIS Refuses to Act.

• What is a Writ of Mandamus • Who is eligible to file a Writ of Mandamus?•The step-by-step process for filing a Writ of Mandamus.

What is a Writ of Mandamus?

As it relates to a petition or application filed with the USCIS, a Writ of Mandamus is a judicial remedy in the form of an order from the federal court to the USCIS to do a specific act which they are obligated under law to do - such as adjudicate a petition in a timely manner. When a lawsuit is filed by the petitioner or applicant with the federal court - against the USCIS - the court will review the record of the case and issue a final order. The court order will require the USCIS to adjudicate an application or petition usually within 30 to 90 days. The court may dismiss the lawsuit if the record indicates that the petition or application has not met the requirements for adjudication, the application of petition was not properly filed, or, the delay by the USCIS is reasonable, necessary or permissible.

Who Is Eligible to file a Writ of Mandamus?

Any person who meets the following requirements may sue the USCIS in federal court by filing a Writ of Mandamus:

  • The individual is eligible for an immigrant benefit,
  • Has correctly filed a petition or application with the USCIS.•The petition or application has been pending for an unreasonable period of time.

The Step-by-Step Process for Filing a Writ of Mandamus against the USCIS

Step 1: The first step is to file a complaint with the US District Court.

Step 2: Serve a copy of the lawsuit on the USCIS. The USCIS is given 60 days to file a response to the lawsuit.

Step 3: There is a period of time for the plaintiff and the USCIS to discover information regarding the case.There may also be settlement negotiations during this step. TheUSCIS may agree to adjudicate the petition without the necessity of proceeding with the lawsuit.

Step 4: If the petitioner and the USCIS cannot reach an agreement the case will be set for a hearing before a judge. The judge will enter an order either granting denying or dismissing the case.

Step 5: If the court has ordered the USCIS to adjudicate the petition or application the final order will usually give the USCIS 30 to 90 days.

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