Writs are a legal mechanism with deep roots in both American and European legal history. The writ of mandamus was established in the U.S. in 1789 as a way to hold the government accountable by compelling an action as required by law. Now, 233 years later, the writ of mandamus offers foreign nationals, employers, and counsel an option, when other avenues fail, to push back on processing timelines that border on excessive.
A writ of mandamus is court order to a government official that orders the official to properly fulfill their duties or correct an abuse of discretion. Mandamus actions may prove to be helpful in situations where a foreign national faces harm or will face harm by extended case processing with no likelihood of adjudication in sight and when all other available options have been exhausted.
In January 2023, the U.S. Citizenship and Immigration Services (USCIS) proposed a new fee structure and released current data on the agency’s “hours per completion to process forms.” A USCIS report points to a decline in efficiency, with 82 percent of forms now taking longer for USCIS adjudicators to review. As a result, lower review times are significantly contributing to USCIS’ ever-growing application backlog.
USCIS data suggests that forms that now take longer to review account for 86 percent of the current backlog. Whatever the contributing factors may be, when processing times slow to a proverbial halt, there are other available avenues to explore, such as reaching out to a local congressional representative or the USCIS Ombudsman’s office, or considering a writ of mandamus.
To implement a writ of mandamus, there must be a pending immigration case, a clear right to relief, a clear duty for the government agency to perform the action that has been requested, and unavailability of other lawful remedies. Courts have found the “clear right to relief” requirement exists in several types of applications.
Mandamus actions can be helpful in cases in which a clear right to relief are applicable, such as certain naturalization and adjustment of status cases in which all other prerequisite requirements have been met and final adjudication of the case lingers in the balance of a reviewing USCIS officer.
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