When Waiting Is No Longer Reasonable: Can You Sue USCIS Over Immigration Delays?

By Becki Young and David H. Wetmore

For immigrants and their employers, waiting has always been part of the U.S. immigration process. But there is a point at which waiting for U,S. Citizenship and Immigration Services (USCIS) to decide your case becomes unreasonable—and potentially unlawful.

That point is becoming increasingly important as USCIS faces extraordinary backlogs and processing delays. Recent data analyzed by the American Immigration Council shows that the USCIS backlog has more than tripled over the past decade. Applicants who expected decisions within months may now find their cases languishing far beyond USCIS’s own published average processing times.

For some, the consequences are far more serious than mere inconvenience. A delayed immigration case can prevent someone from accepting a job or promotion, traveling internationally, reuniting with family, becoming a U.S. citizen, or making important long-term business and personal decisions.

When ordinary inquiries to USCIS do not work, there may be another option: a mandamus lawsuit in federal court.

What Is a Mandamus Lawsuit?

A mandamus lawsuit asks a federal court to require a government agency, including USCIS, to do something it is legally obligated to do.

In the immigration context, a mandamus action generally does not ask the judge to approve an immigration application. Instead, it asks the court to require the government to do its job and make a decision on the pending application or petition.

Federal law requires agencies to conclude matters presented to them within a reasonable time. When USCIS allows an application or petition to remain pending for an unreasonably long period, an applicant may be able to file suit in U.S. District Court under the Mandamus Act and the Administrative Procedure Act (APA).

Importantly, filing a lawsuit does not necessarily mean spending years in court. In many cases, the filing of the lawsuit itself prompts the government to act. The government may process the underlying immigration case before the federal court ever needs to decide whether the delay was unreasonable.

Of course, there is no guarantee. Every case is different, and the government can defend the lawsuit and argue that additional processing time is justified.

Case Study

At Grossman Young & Hammond, we have seen firsthand how filing a mandamus lawsuit in federal court can help resolve a prolonged delay in cases pending before USCIS.

In one recent case, a highly skilled foreign professional had been waiting many months for USCIS to process an employment-based petition that ordinarily should have been decided on an expedited basis. Despite repeated attempts to obtain information through ordinary channels, the case remained pending, leaving both the employee and the sponsoring organization unable to move forward with important plans.

After carefully evaluating the facts and the underlying immigration filing, our attorneys filed a mandamus action in federal court seeking an order requiring the government to decide our client’s petition. After we filed the mandamus action, the government decided on the petition, and the matter was successfully resolved.

As with all mandamus actions, the lawsuit did not ask the court to approve the immigration benefit. Rather, it sought to require the government to perform its legal obligation to act on a long-pending case. While every situation is different and results can never be guaranteed, this matter illustrates that federal litigation can be an effective tool when an immigration delay becomes unreasonable and traditional inquiries have failed to produce results.

How Long Is Too Long?

For most USCIS petitions and applications, there is no single legal deadline after which a delay automatically becomes unreasonable.

Courts instead look at the circumstances of the case, including how long it has been pending, the reason for the delay, the nature of the interests affected by the delay, and competing demands on the agency.

As a practical screening tool, we recommend comparing the case to USCIS’s current published processing time for that form and office.

At Grossman Young & Hammond, we generally consider a USCIS case that has been pending more than one year beyond the agency’s normal processing time to be a strong candidate to evaluate for mandamus litigation.

Cases that are six months to one year beyond normal processing times may also be candidates for a mandamus action, particularly where the delay is causing significant hardship. But these cases may present a greater litigation risk because the government has a stronger argument that the delay, while frustrating, has not yet become legally unreasonable.

These are not hard-and-fast rules. A much shorter delay may be unreasonable in unusual circumstances, while there may be legitimate reasons for a lengthy delay in another case. 

Our attorneys at Grossman Young & Hammond can provide an individualized consultation to assess your case and determine whether a mandamus action is the best action .

Naturalization Cases Are Different

Applicants for naturalization have an especially powerful remedy when USCIS fails to act after the naturalization interview.

Federal law provides that if USCIS has not processed an N-400 application within 120 days after the naturalization examination, the applicant may file an action in the U.S. District Court where the applicant resides.

This is significant because Congress has provided a specific deadline and a specific judicial remedy.

Once the 120-day period has passed, the federal court has jurisdiction to either decide the naturalization application itself or send the case back to USCIS with instructions to act.

As a result, an N-400 that remains undecided more than 120 days after the naturalization interview should be evaluated promptly for possible federal court action.

“I Contacted USCIS. Nothing Happened.”

We hear this frequently.

Many people with severely delayed cases have already submitted USCIS service requests, contacted the USCIS Contact Center, requested congressional assistance, or sought help from the Office of the Citizenship and Immigration Services Ombudsman.

Those efforts can be worthwhile, and in some cases they work. But they are fundamentally different from federal litigation.

A congressional office can ask USCIS about a case. The Ombudsman can request assistance. A service request can flag a delayed application. However, only a federal court canorder USCIS to take action and decide the pending application or petition.

That does not mean litigation should always be the first step. It means that applicants should not assume they must continue submitting inquiries indefinitely while their case remains stalled.

At some point, the question should change from “How do I ask USCIS again?” to “Do I have a legal basis to require USCIS to act?”

Is Filing a Lawsuit Against USCIS Risky?

This is one of the most common concerns we hear.

A mandamus lawsuit does not ask USCIS to approve a case that is not approvable. It asks USCIS to make the decision it is already responsible for making.

That distinction is important—but so is understanding the underlying immigration case before filing suit.

Litigation can bring additional attention to a case. Before filing, counsel should therefore evaluate not only the length of the delay but also the strength of the underlying application, whether there are unresolved eligibility or security issues, and whether there is any reason that accelerating adjudication could create an unintended problem for the applicant.

The goal is not simply to sue. The goal is to determine whether litigation is the right strategic tool to achieve the best possible result for the client.

GYH’s Approach to Mandamus Cases

Grossman Young & Hammond combines a sophisticated immigration practice with significant federal litigation experience.

Our immigration attorneys understand the underlying USCIS processes and the practical consequences that lengthy delays create for individuals, families, and employers. Our litigation team brings extensive federal court and government experience, including attorneys who previously litigated immigration matters in the federal courts on behalf of the U.S. Department of Justice.

That combination matters. A mandamus case sits at the intersection of immigration law, administrative law, and federal court litigation. Effective representation requires understanding all three.

We evaluate potential cases individually, looking at the type of immigration benefit involved, how long the matter has been pending, USCIS’s published processing time, the procedural history of the case, the reasons for any known delay, and the consequences of continued inaction.

Has Your Case Been Waiting Too Long?

If your USCIS case is significantly beyond normal processing times, you do not necessarily have to wait indefinitely.

You may want to speak with an attorney about federal court litigation if:

• Your N-400 naturalization application has remained undecided for more than 120 days after your naturalization interview;
• Your USCIS case has been pending more than one year beyond the agency’s normal processing time; or
• Your case is six months or more beyond normal processing times and the delay is causing substantial personal, professional, or financial consequences.

Not every delayed case should result in a lawsuit. But when government delay has moved from frustrating to unreasonable, a lawsuit in federal court may provide a powerful way to break the logjam. 

If your immigration case has been stuck at USCIS, contact Grossman Young & Hammond for an evaluation of whether mandamus or other federal court litigation may be appropriate in your case.  We have successfully represented numerous clients in federal court actions challenging unreasonable immigration delays, including employment-based cases in which prolonged government inaction prevented employers and foreign professionals from moving forward with critical workforce plans.

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*Disclaimer: This information is presented for the purposes of general education and does not constitute legal advice.