4 Reasons NOT To File Mandamus For Administrative Processing!
You went to your visa interview at a US consulate, but instead of getting your visa, you were told that your visa is in 221(g) or administrative processing. The word they use is that the visa is refused. This is an incredibly frustrating problem. In fact, you may even consider suing the consulate.
In case you don’t know me, I’m Josh Goldstein, an immigration lawyer, and I help people and families across the country and around the world get their visas out of administrative processing.
A mandamus lawsuit may not always be appropriate
Today, I want to talk to you about some of the limitations of the mandamus lawsuit. A mandamus lawsuit is not a magic bullet that fixes all cases that are stuck. There are problems and there are limitations to this and I want you to be aware of what they are.
There are four reasons why mandamus may not be appropriate for a delayed visa that’s stuck in administrative processing.
A visitor visa
Reason one: The visa that’s stuck is a visitor visa. If you filed an application for a B-1 or B-2 visitor visa, and they told you that the application is in administrative processing, mandamus would be inappropriate. Most visitor visa applications, unfortunately, are denied, and you have very few legal rights when it comes to an application to visit the United States.
I understand that the ability to visit the United States is incredibly important to a lot of people but it’s not something that I would take on as a lawyer. I’ve filed mandamus lawsuits to resolve delayed F-1 visas, L-1, J-2, and many other types of non-immigrant visas. But a visitor visa seems like too thin of a story to me, and I would not take on a case like that.
When it’s too soon
The second situation in which mandamus would be inappropriate to resolve an administrative processing delay is when it’s just too soon to file for mandamus. Let me give you a sense of what I’m talking about. I was contacted recently by somebody who filed a fiance petition for her fiance.
It was delayed in administrative processing for several months. She wanted to hire me to sue. When I looked at the facts, I realized that she filed her petition with USCIS less than a year ago. It’s only been nine months since she filed the petition.
Now, being without your fiance for nine months is an ordeal for anyone and I don’t want to make light of that. Nevertheless, the gist of a mandamus lawsuit is that you have to convince a federal judge who might be skeptical. You have to convince that judge that the delay has been unreasonable.
A lot of times people come to me after their visa applications have been delayed for years. I’ve had people who’ve been waiting for five years, or for two years for visas to be approved. If you’ve only been waiting for nine months, that’s less time than most applications take to be processed from start to finish for that particular type of case. I don’t think you’re going to be successful if you haven’t waited at least a year from when you filed the petition.
When there is a serious problem
The third type of case where it would make no sense to file a mandamus lawsuit is if you have a very serious problem with your immigration case. Something is seriously wrong, and you may or may not be eligible to get your visa approved.
Let me give you an example of what I’m talking about. A couple of days ago, I was contacted by someone from India. He went to his visa interview for his H-1B visa in Mumbai at the US consulate in Mumbai. Instead of getting the visa, he was told the H-1B visa would be in administrative processing. But at the interview, the consular officer was asking all sorts of questions about his employer’s criminal record.
There had been some financial improprieties at that company. And his employer, his boss, the owner of the company had a criminal history. It looked like there were some really serious and legitimate concerns about whether the petitioner was really eligible to file the petition for this guy. A mandamus lawsuit is not going to make a visa get approved if it otherwise doesn’t deserve to be approved.
When a mandamus works
I don’t think that you should rush off to federal court to sue unless you have a strong case. Most people do have a strong case. Most people who contact me are frustrated. They’re in administrative processing for no reason at all. They’re just told they’re in administrative processing. Their cases deserve to be approved, they’re eligible for the visa, and there’s no genuine reason why they’re not approved. It’s just this mysterious delay. In those situations, a mandamus works extremely well.
Can you wait it out?
The fourth reason why you should not consider filing a mandamus even if your visa is stuck in administrative processing is if you think you might be able to wait it out. Let me give you an example of what I’m talking about. A lot of people go to their interviews and get stuck in administrative processing, but then after a few weeks, or even a few months, they get their visas.
Now, if you think you can get your visa within a few months, then I think you should wait. I don’t think you should hire me to do a mandamus lawsuit. You’d be better off just waiting. Even though the wait may be excruciating and last for a long period of time, I think it would be a better course of action.
When to consider a lawsuit
The people who hire me and the people who consult with me for mandamus lawsuits have been waiting for a very long time. I talked to someone just a week ago who lived in Houston. Her husband is in Afghanistan, and he’s been waiting for five years. He’s been given that sad, lame excuse about why they can’t issue the visa for five years.
For someone who’s been waiting for five years, two years, or even just one year for administrative processing, it’s time to consider a lawsuit.
If you need help, or if you have questions, you don’t have to go about this alone. Just get in touch with me, message me, and I’ll be happy to help you.