Representing Clients in Federal Courts against the USCIS
The Law Office of David Sturman is one of the limited number of full service immigration law firms that also represent clients in U.S. District and Circuit Courts.
It is often advantageous or necessary for clients to seek relief against adverse decisions of the USCIS and U.S. State Department in U.S. Federal Court. U.S. District Courts have the power to both compel decisions by the USCIS on long delayed or forgotten applications and to independently review decisions of the USCIS and U.S. Embassies and Consulates.
In an action called Mandamus, an immigration petitioner or at times an applicant for immigration benefits has the right to file an action in U.S. District Court to compel the USCIS to make a decision on a long delayed application. Under the U.S. law entitled the Administrative Procedures Act, the USCIS must adjudicate a case before it in a reasonable time. Although the USCIS historically adjudicates most all applications and petitions in a timely manner, there is the occasional case wherein adjudication of an immigration petition inexplicably exceeds normal processing times. When this occurs, the aggrieved party has the right to file a Petition for Writ of Mandamus to force the USCIS to act in a timely manner.
Mandamus lawsuits must be filed in the U.S. District Court where the claim arose, normally in the state where the petitioner or applicant resides or where the USCIS is located. After filing, the complaint the lawsuit is served upon the USCIS through its attorney, the Office of the U.S. Attorney. Once served, the U.S. Attorney has only sixty days to reply and either provide justification for further delay or have the USCIS provide a decision on the long delayed application.
Normally in Mandamus actions, court appearances by the aggrieved party is not required. Most cases are resolved without the presence of the alien or petitioner. Although there are filing fees and attorney fees involved in preparing and filing a mandamus action, if the USCIS unsuccessfully contests the Mandamus action, the alien or petitioner may seek and receive money from the USCIS under the Equal Access to Justice Act that may cover all court costs and legal fees.
A Mandamus type action may be used to compel the USCIS to make a decision on a wide variety of petitions and applications ranging from petitions for nonimmigrant visas such as H-1 or L-1, to petitions for immigrant visas, to applications for permanent residence and naturalization. It is a very useful and effective tool to shake loose long delayed requests for immigration benefits.
Our office has successfully filed dozens of Mandamus actions against the USCIS and nearly all of the actions have resulted in forcing the USCIS to act on long delayed applications.
While Mandamus actions are used to force the USCIS to take action on delayed applications a Declaratory Relief federal action is used to review adverse decisions of the USCIS and Consulates of the U.S.
If the USCIS denies or rejects an application and all administrative review has been exhausted it is often advantageous to seek further review of the adverse administrative decision in U.S. District Court.
U.S. District Court judges have the power and authority to review many of the decisions of the USCIS. If a petition or immigration applications is denied by the USCIS, it is often possible to seek review by a U.S. District Court judge. Acting as a fully independent reviewer, a U.S. District Court possesses the jurisdiction to consider and reject and reverse administrative decisions of the USCIS and in many cases decisions of U.S. consulates abroad.
Decisions denying visa petitions, applications for permanent residence, applications for visas, and applications for naturalization can all be reviewed by a Federal Judge through the Declaratory Relief action. If the Court believes that the decision of the USCIS is not supported by the facts or law, it has the power to instruct the USCIS to reverse its decision to one favorable to the alien or petitioner.
The Law Office of David Sturman has succeeded in having U.S. District Courts review and reverse many adverse decisions of the USCIS and U.S. consulates. Proceeding to Federal Court to review decisions of the USCIS is a very effective tool to remedy incorrect administrative determinations.