By Jianhua Zhang

As those familiar with the immigration process already know, final green card issuance depends on I-485 approval. In order to receive I-485 approval, one must have an approved I-140. After receiving I-140 approval, visa number availability is the main determinant in the last step towards receiving a green card. For visa number availability and visa bulletin analysis, please refer to the following article.

Unfortunately in some cases, I-485 applicants already have an approved I-140, but USCIS will delay the processing of their I-485, despite visa number availability. Certain delays are considered “normal”. However, what happens in the event of an “excessive” delay? What kind of legal action can applicants pursue?

In the past, our firm has been asked to take on multiple WOM cases from frustrated I-485 applicants who miss visa number availability. Some of these applicants even have approved EB-1(a) or EB-1(b) petitions. So in theory, these clients should not face any delays in receiving I-485 approval. Such delays cause hardships to not only applicants’ families, but to their job security as well.

Recently, we helped one of our clients successfully file a Writ of Mandamus (WOM) for his family’s pending I-485 case. We started to prepare his case in October 2009 just as a visa number became available again to him and his family. After consulting with attorney Jerry Zhang, this client decided to retain us despite the fact that his priority date had passed one month prior to this (a visa number became available to him in September of 2009).

Upon comparing this client’s case to a previously successful one, our firm determined that this client’s case was weaker. With the exception of a couple months right after July 2007, the previous case had continuous visa number availability. In that sense, this past case had a much stronger basis. However, we decided to move forward for the following reasons:

1. Although a visa number had just become available to the client and his family, visa numbers had been available to them for several months in 2007 and for two months in 2008.
2. The client made numerous attempts to contact USCIS over the course of two years before contacting our firm, including making an Info pass appointment, sending letters and phone inquiries to USCIS, and sending letters inquiries to a congressional liaison.
3. As of April of 2008, the client had already cleared the name check.

Based on the above facts, our firm believed that this case would result in a positive outcome.

In order to ensure a successful WOM, a plaintiff must show that he/she has exhausted all possible remedies. Without such evidence, a WOM has no merit and certainly weakens the plaintiff’s ability to achieve a successful WOM. Furthermore, it also raises the risk that a case will be brought to court or that the opposing counsel will file a motion to dismiss the case. A number of other factors are also considered in a WOM case like the length of time a case is pending after a visa number becomes available, efforts by applicants and attorneys to contact USCIS, opportunities offered to USCIS to resolve a case, reason(s) that USCIS gives for the delay, and the applicant’s need for I-485 approval. To further establish that our client had exhausted all possible remedies and that USCIS had failed to carry out its duties, we sent USCIS a “Notice of Intention to File for a Writ of Mandamus and Declaratory Judgment” together with a well-drafted complaint one week after the client retained us. Although this complaint was not yet brought to the federal district court, its purpose was to alert USCIS that we were prepared to file suit against them and other relevant respondents, including the U.S. Attorney General, FBI, the director of the USCIS, the secretary of the Department of State, etc.

As case approval is the ultimate goal of a WOM, we mailed out the Notice of Intention to USCIS with a complaint one week after the client retained us instead of requesting a court to force USCIS to adjudicate the client’s case. In the Notice of Intention to USCIS, we informed USCIS that the client had retained our firm to represent him in connection with his WOM, documented all administrative remedies, and included past visa bulletins to show when the client’s visa number had become available. We also requested that USCIS expedite the processing of our client’s I-485 application and that if we did not receive a favorable decision on his case within 60 calendar days, we would proceed with legal action.

On December 2, 2009, we received confirmation from USCIS that they had updated their CRM system to include us as the client’s sole representative.

On December 9, 2009, we called USCIS and were told that our client’s case was still under review by the officer’s supervisor. According to our past experience, delays are usually caused by security issues. However, this client had already passed the FBI name check. This indicated that there was either an internal glitch or other inefficiency in the government’s security system.

As going to court is both time-consuming and expensive for clients, we always try to handle cases with USCIS first. On February 1, 2010 we inquired again with USCIS regarding our client’s case status before filing a WOM. After speaking with an officer, we learned that the client’s case had been pre-adjudicated months ago. Unfortunately, the case was still under a supervisor’s review.

On March 24, 2010, we filed a WOM with the federal district court. From February 2, 2010 to March 24, 2010 we inquired three additional times with USCIS informing them that we were prepared to file a WOM. On March 30th, six days after filing the WOM, our client received an email notice indicating that new cards had been ordered for him and his family.

We believe that approval of this client’s I-485 stemmed directly from our firm’s Notice of Intention to File a Writ of Mandamus and the Complaint sent to USCIS on October 16, 2009, subsequent inquiries and timely notification to USCIS of the WOM case, and of course, from our WOM filing on March 24, 2010.

Our firm is very happy about the results of this case. In the client’s email to attorney Jerry Zhang, he said “you can imagine how excited we are about the good news after waiting for five years and how we are grateful for so many helpful and kind people, especially your excellent attorneys”!