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Lawsuits Against the U.S. Immigration Service (USCIS and Department of Homeland Security)
Generally there are two actions that are commonly taken against the U.S. Citizenship & Immigration Services (USCIS): a Writ of Mandamus, and a Complaint for Naturalization.
Writ of Mandamus
- In What Cases an Immigrant Can Sue the USCIS?
- Who Is Eligible for Suing the USCIS?
- Family Benefits
- What Documentation Do I Need Before Suing the USCIS?
- What Is the Process Like for Suing the Immigration Service?
- What are the Filing Fees?
- What are the Fees of our Boston Immigration lawyers to Sue the U.S. Immigration Service?
- Video on Suing the Immigration Service
- Newsletter on Suing Immigration
In What Cases an Immigrant Can Sue the USCIS?
Under the current Immigration & Nationality Act and the Administrative Procedures Act a complaint (a legal action), or Writ of Mandamus, may be filed in the U.S. District Court if the USCIS has failed to issue a decision on a properly filed immigration application after a “reasonable” period of time.
The court will review the matter and may take one of several actions. The court is permitted to issue an order requiring that USCIS adjudicate (make a decision) on the application within a specific period of time, generally 30 to 90 days. The court is allowed to dismiss or terminate the lawsuit if it believes that the individual does not meet the requirements for the application or if it believes the delay by the USCIS is reasonable, necessary or permissible.
Who Is Eligible for Suing the USCIS?
Any immigrant who has properly filed an application for a benefit, for example a Form I-485 application for adjustment of status (green card), whose application has not been decided for an extended period of time.
The USCIS publishes “processing times” (https://egov.uscis.gov/) which can be used as a guide to what is a “reasonable” period of time.
Family Benefits
The benefits of obtaining an immigration status in the United States are innumerable, and often include the right to enter the United States after foreign travel, the right to accrue time to qualify for citizenship, the right to work, and potentially the right to file an Immigrant visa petition for immediate family members.
What Documentation Do I Need Before Suing the USCIS?
Evidence that you have properly filed an application for status with the USCIS and that you qualify for said status.
What Is the Process Like for Suing the Immigration Service?
Stage One: (Complaint)
Review the case for eligibility and prepare a complaint (formal legal action) for the U.S. District Court identifying the following issues:
- Jurisdiction;
- Factual Basis; and
- Relief Sought
Court issues an order [Cases are generally completed in 120-150 days]
Stage Two: (Service of Process)
After the case has been filed with the US District Court, the government is “served” with formal notice of the legal action and evidence that notice has been served on all divisions of the government must be filed with the Court.
Stage Three: (Answer)
The government (Dept. of Homeland Security & USCIS) must file a response within 60 days of service identifying the justification, if any, for not having completed the processing of the application.
Stage Four: (Settlement Negotiation)
If possible during the proceeding period of time we negotiate with USCIS and U.S. Attorney’s Office to request appropriate action on the pending application.
Stage Five: (Motion for Judgment or Trial)
If a suitable disposition cannot be agreed upon then a motion for judgment is filed with the Court and there is a hearing or trial scheduled by the court. The court will issue a decision on the application or remand (return) it to the USCIS with specific orders for the government to adjudicate the immigration petition.
What Are the Filing Fees?
Fees for U.S. District Court Complaint is $350.00, plus $50.00 (est.) for Service of Process.
What are the Fees of our Boston Immigration lawyers to Sue the U.S. Immigration Service?
Click here to learn more about our immigration legal fees.
Click here if you would like to come in for an initial consultation with one of our immigration attorneys in Massachusetts.
Complaint for Naturalization or Citizenship
Description
Under the current Immigration & Nationality Act a complaint (a legal action) may be filed in the U.S. District Court if the USCIS has failed to issue a decision on the application for more than 120 days after the date of the interview or examination for naturalization.
The court will review the matter and may take one of several actions. The court is permitted grant the application and naturalize the individual as a citizen. The court is allowed to deny the application if it believes that the individual does not meet the requirements for citizenship (legal permanent resident status; residence and presence in U.S.; and good moral character for requisite period of time(s)). The court may also remand the case to the USCIS with instructions to proceed with the application process.
Who Is Eligible
Any immigrant who has filed an application for naturalization, Form N-400, with the USCIS, has been interviewed and examined in connection with that application, has passed the English language and American History portions of the examination (if required), and at least 120 days has passed from the date of the interview/examination.
Family Benefits
The benefits of citizenship in the United States are innumerable, however some important benefits are the right to vote, the right to enter the United States, the right to travel with a U.S. Passport, the right to remain outside the U.S. for more than 6 months, and the right to file an Immigrant visa petition for immediate family members.
What Documentation Do I Need?
Evidence that you have filed an application for citizenship with the USCIS, Form N-400, and that you have been interviewed or examined and it has been at least 120 days since the date of the interview/examination with the immigration service.
What Is The Process Like?
Stage One: (Complaint)
Review the case for eligibility and prepare a complaint (formal legal action) for the U.S. District Court identifying the following issues:
- Jurisdiction;
- Factual Basis; and
- Relief Sought
Court issues an order [Cases are generally completed in 120-150 days]
Stage Two: (Service of Process)
After the case has been filed with the U.S. District Court, the government is “served” with formal notice of the legal action and evidence that notice has been served on all divisions of the government must be filed with the Court.
Stage Three: (Answer)
The government (Dept. of Homeland Security & USCIS) must file a response within 60 days of service identifying the justification, if any, for not having completed the processing of the naturalization application.
Stage Four: (Settlement Negotiation)
If possible during the proceeding period of time we negotiate with USCIS and U.S. Attorney’s Office to request appropriate action on the pending application.
Stage Five: (Motion for Judgment or Trial)
If a suitable disposition cannot be agreed upon then a motion for judgment is filed with the Court and there is a hearing or trial scheduled by the court. The court will issue a decision on the application or remand (return) it to the USCIS with specific orders for the government to adjudicate the naturalization petition.
What Are the Filing Fees?
Fees for U.S. District Court Complaint is $350.00, plus $50.00 (est.) for Service of Process.
