Although on occasion the reason for government adjudication delay may be an investigation of a particular factual or legal issue or even the government’s mishandling or losing of a file, the very large percentage of delayed application are delayed because of pending security, name check or criminal clearances.  Since these clearances are considered a matter of national security, the government will not provide any details regarding the type of clearances that are pending or any likely date for resolution of the clearances.

None.

When the problem is a delayed clearance, the only other alternative is filing a mandamus case in federal court. Even congressional or senatorial intervention will do nothing to expedite the clearance process.

The answer varies greatly depending upon the Assistant U.S. Attorney (“AUSA”) assigned to the case and the judge assigned to the case. Some AUSAs will work with us to try to get the case resolved quickly. Some judges will get involved with the case quickly and force action. Although we have had some cases resolved in less than a month after filing of the complaint in federal court, three to six months after filing is more normal.

If the government is convinced that there are “compelling circumstances” that require expediting, the AUSA will make efforts to try to get the case expedited. Examples of this could be medical issues, issues of the person losing eligibility for the benefit if there is a further delay, issues regarding the national interest, etc. In addition, even when there are no “compelling circumstances,” our experience is that many applications get expedited after the filing of the complaint and before the judge has to get involved without any formal notification that the case is being expedited.

This is highly unlikely, especially since there are so many mandamus cases being filed. In addition, the government cannot just deny a case for no reason. Before we file a mandamus case, we review carefully the applicant’s eligibility for the benefit sought (permanent residence or naturalization) to make certain that there is no basis for a denial.

All government agencies involved in the adjudication of the application could be named. Normally, this includes USCIS (and often the local district director, the regional center director and the commissioner of USICS in Washington), the Department of Homeland Security and the Attorney General of the United States. It is also often a good idea to include as a defendant the FBI, which has the mandate to process the clearances.

The official response is usually a Motion to Dismiss in which the government attempts to convince the judge that a mandamus case is not appropriate for an adjustment of status or a naturalization application. In some cases, the application is completed before the government files its Motion to Dismiss.

Although some judges agree with the reasons given to dismiss the application, our experience is that most judges agree with the legal argument that we provide in our Reply to the Motion to Dismiss and refuse to dismiss the mandamus case.

In that event, the case is dismissed; and the mandamus possibility is gone. The foreign national remains in the exact same position he was in before the filing of the mandamus case.

In most cases, the government voluntarily adjudicates the application before receiving a judge’s order requiring it to do so. If that does not happen, we request the judge to issue such an order requiring the adjudication of the application within a specified period of time.

No. The judge can only order the FBI to complete the clearances and order USCIS to adjudicate the application within a specified period of time.

The government usually raises some combination of the following defenses:

• cases involving national security are not appropriate for action by the federal court;
• the court should not allow the mandamus applicant to “jump ahead” of others standing in line;
• the government has complete discretion regarding how long to take in adjudicating  an application, and its discretion is not subject to court review;
• the government has no duty to adjudicate the application;
• the amount of delay in a particular case is not “unreasonable.”

​ If the judge issues an order in favor of the plaintiff (the foreign national) the judge can order the government to pay the foreign national’s attorneys fees under the Equal Access to Justice Act. But there is no guarantee that a judge will grant this in your favor.

Although the issues are a little bit different, a mandamus case can be filed for a long-pending naturalization applicant just as for a long-pending adjustment of status applicant. There are special provisions available if the naturalization applicant was interviewed and if no decision was made on the application for more than 120 days following the interview. In that event, the federal court judge can be requested to not only order USCIS to adjudicate the application but actually to have the federal court judge hold a hearing and decide the naturalization application.

When the mandamus case seeks action on a petition in which the employer (including a university) is the petitioner, the employer can and must be a plaintiff in the litigation.