Recently, our firm received approval for a delayed I-485 application by filing a Writ of Mandamus (WOM) against USCIS with the Federal District Court of the Southern District of New York.  Because USCIS has offices in every state, a lawsuit against USCIS may be filed at any federal district court, regardless of the applicant’s residency. 

In immigration law, a Writ of Mandamus is a type of civil lawsuit that requests a federal court   to force USCIS to adjudicate a delayed pending application in a given period of time. In general, a strong WOM case usually has the following features: 1) the case is legally eligible to be approved; 2) USCIS has delayed adjudication beyond a reasonable period of time (for example, an I-485 case with available visa number and has two years past the posted processing timeframe), and 3) the applicant has made due efforts (such as multiple inquiries) to push for approval.   

The best scenario for a successful WOM case is a not favorable judgment from court for the plaintiff; rather, it is the approval of the pending case by USCIS within a very short period of time under pressure of a lawsuit.  Facing tremendous paperwork and legal costs, and the likelihood of failure in court, government agencies usually try to review and approve a pending immigration application right after receipt of a lawsuit.  By approving the disputed immigration case, government agencies can claim the issue moot and request dismissal of the case in court.  In a WOM lawsuit, the local U.S. District Attorney represents USCIS and all other federal administrative agencies. Essentially, an attorney who files a WOM deals with the local US District Attorney office.

The particular client we worked with for this case was born in mainland China. He was a derivative I-485 applicant whose case had been pending since 2006. His wife, the principle applicant, was born in Taiwan; she had already received her green card three years ago through an EB-2 petition. I-485 applications for both the derivative and principle were filed at the same time.   Based on the cross-chargeability rule, a derivative visa can be “charged” to a spouse’s country of birth (Taiwan is considered an independent special region for visa number purposes). Visa numbers have been readily available in the EB-2 category for almost the entire period of time the derivative applicant has been waiting (with the exception of a few months in 2007).

The client has made numerous inquires with USCIS without any positive results.  In late 2009, the client retained our firm to file a WOM.  After analyzing his case, we felt it had strong merit and met all standards of a good WOM case.

Based on our past experience, USCIS and other agencies are not likely to make any substantial effort without pressure from a lawsuit.  Out of courtesy, our attorneys still sent a “Notice of Intention to File a Writ of Mandamus and Declaratory Judgment” letter to USCIS on November 24, 2009.  As expected, we did not receive a response from USCIS.  In late December 2009, our firm filed a WOM lawsuit with the Federal District Court of the South District of New York, serving all related parties. As part of our strategy, we listed the Secretary of the Department of Homeland Security, Director of the FBI, Directors of USCIS, its service center and local offices, and the Attorney General of the United States as defendants.

Upon sending our complaints and officially serving all related parties, we called the US District Attorney office in New York City.  We were informed that they would come up with a solution very soon.

In two weeks, our office received I-485 approval for the client.  Meanwhile, the US District Attorney office sent us a settlement provision stating that there was no further dispute as the case had been approved and the issue had become moot.  Of course, our firm signed the settlement and ended the WOM case before starting any substantial hearings.

We received the best possible result for this case—approval of the client’s I-485 without going through a court hearing.  If US District Attorney office had decided to go to court and litigate the merit of the case, even though we would have received favorable judgment in the end, it would have cost the client $20,000 to $50,000 in attorney fees alone.  However, when we initially evaluated the case, we strongly believed that we could win without going through a hearing based on our analysis of past US District Attorney office cases and the strength of our particular case. 

Certainly, there are cases that US District Attorney office chooses to litigate, as some cases involve a government agency’s interests.  For example, if an I-485 has been delayed for less than one year or if a case involves an applicant with a suspicious background based on probable evidence, US District Attorney office is likely to take that case to trial and argue that the government has merit in taking more time to process it.  In such cases, US District Attorney office has to fight for government interests. 

One of the most important factors in a successful WOM is that an attorney needs to have substantive knowledge of immigration law.   The legal brief filed with the lawsuit has to carefully address a clear legal basis for the lawsuit, citing the Immigration and Naturalization Act, agency memoranda, and also incorporate an analysis of the facts.  In addition, filing and other procedures with the federal court involve expertise and experience.  Finally, and most importantly, an experienced attorney should be able to evaluate the strength and possible outcome of a case up front to give clients clear expectations. 

Please note, the WOM lawsuit strategy may be used for any immigration case pending at USCIS beyond a reasonable period of time.  Federal Courts have ordered USCIS to process I-485, H-1B, naturalization, and other immigration cases in a timely manner. 

The above mentioned case was handled by our co-managing attorney Jian Joe Zhou and another experienced attorney at our firm.  Actually, this case was not our first WOM case as we handled similar cases before; and in one case we received I-485 approval within three days after filing WOM.  For more detailed information about this case, please refer to “Green Card Approved in 3 Days Following Writ of Mandamus Filing”.   

Both Joe and another attorney are licensed to the Federal Court of the South District of New York and are eligible to file cases for applicants residing nationwide.  If you have any questions about WOM, please send your inquiries to attorney Jian Joe Zhou at jzhou@hooyou.com