Federal courts are an applicant’s best friend when it comes to USCIS delays

Shirley Zambrano Blog Leave a Comment

“Why is USCIS taking so long?” is a question immigration attorneys get asked by clients with more and more frequency these days. Despite the fact that we live in the era of instant messaging, video, and streaming, the U.S. government (and specifically, the United States Citizenship and Immigration Services – “USCIS”) cannot seem to reach the 21st century when it comes to file management and customer service.

Processing and adjudication of immigration applications is taking longer now than ever before, according to USCIS itself (http://bit.ly/2XzRcYq). For example, a naturalization application that would take on average 5.8 months to adjudicate in Fiscal Year (“FY”) 2015, would now take 10.1 months in FY 2019. Similarly, an application for status as a victim of trafficking would have taken 6.4 months to adjudicate in FY 2015 and it is now taking 14.9 months in FY 2019! (http://bit.ly/2XBqdLW). These applications represent lifelines for some deserving immigrants, and an unreasonable delay in adjudication can sometimes trigger deportation and/or family separation. So why is USCIS taking longer to do its job and what can you do to speed up this process?

Even though USCIS fees have steadily increased over the years, the backlog in the agency does not seem to ameliorate. The agency has admitted that personnel shortage, Trump’s “extreme vetting” policy for asylees, and in-person interviews for most benefits, have all contributed, among other things, to the agency’s backlog (http://bit.ly/2XzRcYq). In response, the agency has decided to expand adjudication offices to other states, digitize some immigration applications, and hire personnel for immediate needs. Id.

However, even with all these lofty plans in mind, the agency continues to fall short on efficiency and customer service. Take for example, USCIS’ e-filing system, which was announced in 2016. While individuals can file some immigration applications online now, most of them are still required to be submitted on paper and physically mailed to a USCIS office via the U.S. Postal Service. Even where you can e-file, USCIS’ e-filing system is so clunky and rigid that sometimes scanned documents are rejected because they are not scanned to USCIS’ undecipherable liking, which may leave you with no other option but to stick a stamp on the stack of documents and hope that the Postal Service delivers them on time.

Moreover, in the event there is a problem with an application or a question about your immigration process, USCIS expects applicants and attorneys alike to call their national hotline (1-800-375-5283) and schedule an appointment at a local USCIS office or listen to the agency’s automated information system which pretty much regurgitates the unhelpful information already listed on the USCIS website. Scheduling an appointment (called “InfoPass”) at a local USCIS office can take days and requires that you be available to pick up an unannounced call from a representative to offer you several time slots on which an officer can speak to you. If you miss this call (and sometimes it takes more than one), you will have to call the USCIS hotline and start again—a frustrating process that makes absolutely no sense.

If you are lucky enough to obtain an InfoPass appointment and speak to an immigration officer about the status of your case, you may still be disappointed to find out that no new information is available, or that no adequate reason exists for the delay in your paperwork. Other than insistently re-inquiring with USCIS, attorneys and applicants with delays in the adjudication of their paperwork are left with little choice but to wait for USCIS to issue a decision whenever it wants—and IF it wants to. It is at this point where a federal court can be your friend and mandate USCIS to issue a decision. This legal action is called a Writ of Mandamus and it is a lawsuit filed in federal court to make a federal judge mandate a federal agency to act on a case.

An attorney admitted to practice in federal court can file a mandamus, and in almost all cases, a decision will be issued by USCIS in 30-90 days. Keep in mind this is a decision and not an approval. An applicant must consult with a licensed attorney to discuss if a mandamus is the right tool for a particular case; you don’t want to make bad news travel fast, like the saying goes. Also, there is a possibility that the case in federal court turns complicated if the agency actually fights back, so consulting with an experienced attorney is a must when it comes to federal litigation.

The attorneys at Kuck Baxter Immigration have several years of experience litigating immigration cases in federal court. For more information give us a call at 404-816-8611.



About the Author

Shirley Zambrano

Associate Attorney

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