*Practice limited to federal immigration law. Licensed in NY, MA, but not in CA.

Delayed Visa for I-730 Asylee Relative Petition — Should You File a Mandamus Lawsuit?

 

Today, we are talking about the I-730. This is a visa petition that’s filed by someone who has asylum status on behalf of his or her spouse and children. These applications tend to get delayed. And I file mandamus lawsuits to resolve these delays.

And the questions are, “Well, how would that work? And also, would the president’s most recent proclamation prevent the issuance of visas that were filed by those with asylum?” Let’s dive into this.

 

Help with delayed immigration cases

My name is Josh Goldstein and I’m an immigration lawyer in Los Angeles. We also have an office in Boston. I help people across the country and around the world with all sorts of immigration cases, work permits, green cards, citizenships, and visa petitions. But I’m especially interested in helping people who have delayed immigration cases.

It seems like these days, with Donald Trump, everything is delayed. And we file mandamus lawsuits to help people with delayed immigration cases. That means delayed visas for people who are stuck in 221(g) administrative processing and delayed naturalization applications, delayed green cards, and so on. That’s what we do.

 

A frustrated applicant from Egypt

Today’s issue came up because I was contacted by somebody from Egypt, who is the beneficiary of an asylee relative petition, the I-730. And he was interested in mandamus. He’s incredibly frustrated. This delay was really eating at him.

And so he asked me, “Listen, why should I bother doing a mandamus lawsuit to resolve the delay over the processing of this visa? Because the president’s most recent proclamation bars the issuance of visas that are connected to asylum.” And I said, “Well, I don’t agree with that.”

And he argued with me. He was combative. And he said, “Look, I contacted the consulate. And the consulate in Cairo told me that they could not issue the visa for me because of the president’s proclamation.”

He had asked the consulate, “Please, I want to know. Are asylee relative visas banned by President Trump’s proclamation or are they exempt?” And the consulate in Cairo said, “We cannot process those cases due to the president’s proclamation.”

 

Do not take legal advice from the consulate

I have a few important things to say about this. First of all, do not take your legal advice from the consulate. They don’t care about you. Their job is not to advocate for you. They don’t give out legal advice to people. And they don’t necessarily even know what the law is.

So if you’re sending an anonymous email to the consulate and you’re getting back a response, this might have been an automated response. We don’t know. But you should never ever take legal advice from a consulate, a USCIS officer or anyone else. These people are not friends. They’re not on your side. They may not be lawyers.

 

Go to the right person for legal advice

If you need legal advice, contact me. If you don’t want to contact me, contact another lawyer. Or contact me and then get a second opinion from another lawyer. But do not take legal advice from the consulate.

If you were arrested and charged with a criminal offense and you’re an innocent person, would you ask the police for legal advice? No. Of course not. You’d get a criminal defense attorney. You’re going down the wrong path with this.

 

Why the consulate is wrong (and what you should do)

But I want to explain exactly why the consulate is wrong and what you should do if you do have an I-730 asylum-based visa petition. First of all, we need to go back to the first presidential proclamation. This was the one that was issued on April 22nd, 2020.

 

The presidential proclamation

And this presidential proclamation lists out the terms and conditions that apply to the proclamation. First of all, it only applies to people who are outside the United States as of the effective date of the proclamation. That’s April 22nd.

Second, it says it does not apply to the following people… This is in Section 2. It goes through all the people that the presidential proclamation does not apply to. It lists permanent residents. So if you have a green card and you’re outside the US, you don’t have to worry about this.

In Section 3, it says, “Nothing in this proclamation shall be construed to limit the ability of an individual to seek asylum, refugee status, withholding of removal, protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, consistent with the laws of the United States.”

 

The proclamation has been extended

That proclamation was good for 60 days. And on June 22nd, a second presidential proclamation extended the first proclamation until the end of the year. But it’s Section 3 (c) that pertains to asylum. And it says that, “Nothing in the proclamation shall be construed to limit the ability of an individual to seek asylum.”

So it’s pretty clear to me that this presidential proclamation has nothing to do with limiting the ability of an individual to seek asylum. So the consulate in Cairo is simply wrong. Now, when I pointed this out to our friend in Egypt, he argued with me once again. He said, “Look, I’m not seeking asylum, I’m seeking a visa based on asylum.” But that’s splitting hairs.

 

Why the proclamation won’t prevent the issuance of this visa

If you are seeking asylum through an alien relative petition, an I-730, you are seeking asylum on a derivative basis. And so my argument and my belief is that, with an I-730 relative petition, there’s nothing in the presidential proclamation that would prevent the consulate from issuing this visa.

I have several pending mandamus cases to challenge the delayed processing of this particular type of visa to help people. That’s my position. And I also think that, the consulate of Cairo, they’ve got it wrong. Maybe other consulates have got it wrong too.

 

You have to fight back

And so you have to ask yourself, “What are you going to do with this information?” Are you just going to rely on the position of the consulate? Or are you going to fight back? Let me tell you something. Right now, you are not going to get a visa from a consulate without a fight. You have to fight them.

And how do you fight them? You file a mandamus lawsuit if there’s been an unreasonable delay. And I would argue that if your I-730 has been pending for more than a year, there has been an unreasonable delay. It shouldn’t take more than a year to get your wife, your husband or your children to be with you in the United States. It shouldn’t take more than a year.

If it did, that would be ridiculous. That would be unreasonable. And the remedy that you can seek to fight back is to file a mandamus lawsuit to challenge the delay. That’s what you need to do. The consulate has got it wrong. Anybody who relies on legal advice from the consulate is making a mistake.

 

If you have questions

If you have questions about this or if you need help, get in touch with me. I’m here to help you. And if you found this information helpful, I would ask you to subscribe to my YouTube channel and keep checking this blog. I’m going to be posting new information all the time for your benefit.

You can’t get discouraged right now. There’s a lot of negative news about immigration. You have to be optimistic. You have to be relentless. You have to fight for your rights. I’m here to help.

Josh Goldstein
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