The U.S. Immigration Service has Denied or Failed to Act on Your Application for an Immigration Benefit, Now What?
April 12th, 2019
By: Claudia Lainez, Associate Attorney
Whether you are an individual seeking a green card through your marriage to a U.S. citizen, or a company hoping to hire a foreign national in any particular job, most applications for immigration benefits in the U.S. will be filed with U.S. Citizenship and Immigration Services (USCIS). If USCIS grants your application, your case is resolved, and you may continue your life and work in the United States. What happens, however, if USCIS unjustly denies your case? Unsubstantiated denials can lead to significant financial loss and can lead to family separation and suffering. Filing a claim against the U.S. government in federal district court may be one effective way to hold the government accountable and ultimately obtain the immigration benefit being sought.
Whatever the reason, there are various ways to access the federal courts to seek agency review. Filing a claim under Administrative Procedure Act (APA) is appropriate when an agency action is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706. For example, USCIS may have ignored the evidence of record filed in support of a visa application, or the agency could have reached an arbitrary or incorrect legal conclusion to deny a petition. An individual can also file an APA action to challenge unreasonable delays in the adjudication of his/her application or petition.
Has your green card application been pending for years? What about an application for an Employment Authorization Document (EAD)? A Mandamus action also challenges unreasonable delays in adjudication and compels the administrative agencies to act and issue a decision. While filing this type of complaint does not guarantee the outcome of the decision, the complainant will ultimately obtain resolution of the case.
Finally, a Declaratory Judgment action seeks a federal court judge to clarify or settle any legal issue and serves to challenge an agency decision, practice, or policy. For example, USCIS may have wrongfully denied a visa petition or an immigrant visa basing their decision on an unlawful practice or violating existing regulations. Filing a Declaratory Judgement action also paves a way for individuals to obtain positive case resolution.
Suing the government may sound like a costly or scary proposition, but it does not necessarily have to be so. Very often, the mere filing of a complaint leads to positive agency action, especially where there is no valid reason for the government to further delay a decision.
Federal court action is not the only way to hold the government accountable. Although likely less successful, there are a number of other avenues for challenging agency delays or agency decisions. For example, InfoPass appointments are available for individuals to schedule a time to speak to a USCIS officer for an update on a long-pending case. Practically, these appointments are limited, extremely hard to acquire, and do not generally result in any immediate relief.
Ombudsman’s requests allow an individual to laisse with USCIS about their case through the designated representative. However, before an Ombudsman becomes involved, the individual must take steps to resolve their case issue with USCIS first. As described, this can prove problematic given the limited availability of ways to communicate with USCIS. The Ombudsman’s office operates as an office of last resort, and typically, if successful, will only result in communication with USCIS for case resolution.
An individual can, and sometimes may need to, appeal a negative agency decision to the Administrative Appeals Office (AAO). The AAO is required to sustain, summarily dismiss, dismiss, or reject an appeal of a negative decision. While appealing to the AAO has logistical and cost-saving benefits, it also causes significant additional delays for case resolution. Moreover, appealing to the AAO often results in dismissed appeals, which may make a federal claim more difficult.
While there are various ways to challenge agency delays and unlawful or improper decisions, suing in federal courts allows individuals an audience before a federal judge, removed from the agency and its policies. It offers an individual the opportunity to immediately pursue extraordinary remedies while bypassing unnecessary, and very likely unsuccessful, intermediary efforts. Grossman Young & Hammond is committed to advocating for the rights of immigrants, their families, and their employers in federal courts.
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