An immigration-related lawsuit in federal district court may sometimes be appropriate after an immigrant or nonimmigrant visa petition is either unreasonably delayed or arbitrarily denied.
A lawsuit for a delayed visa petition is typically filed to force government action after an agency has exceeded its own estimated timeframes for adjudicating an application or when the agency’s delay is simply unreasonable under the circumstances, regardless of the government’s estimated timeframes.
The goal of this type of lawsuit is to compel the agency to act, which could come in one of three forms: an approval, a denial, or the issuance of a Request for Evidence (RFE).
Individuals should also consider litigating a case that they and their attorney believe was erroneously denied. This is especially relevant in cases where it is evident that USCIS has ignored or mischaracterized the evidence submitted in support of the petition or improperly raised the burden of proof needed to demonstrate eligibility.
The basis for an erroneous denial suit could be a reasonable belief that the agency either misapplied or unjustly expanded the relevant legal standard for eligibility; the agency’s failure to consider crucial evidence and information; or the agency’s misunderstanding or mischaracterization of the evidence that was presented either in the original petition or in response to an RFE.
Types of litigation cases
Garfinkel Immigration Law Firm has expertise in litigating cases through federal court, including, but not limited to, the following examples:
USCIS visa petition denials
United States Citizenship and Immigration Services (USCIS) denials of H-1B (specialty occupation), L-1A (multinational manager), L-1B (specialized knowledge) and O-1 (extraordinary ability) nonimmigrant visa petitions can be reversed through litigation in certain situations.
In recent years, the government’s processing times for reviewing and approving a Form I-765 Application for Employment Authorization (EAD Card) has significantly increased from an average of three months in 2017 to more than a year in 2022 at most USCIS Service Centers.
An individual may want to consider litigating in federal court if their EAD card application has been pending for six or more months.
Form I-130, Petition for Alien Relative, is the form filed by a U.S. citizen or Lawful Permanent Resident (LPR, also known as a Green Card holder) which begins the process of helping an eligible relative, such as a spouse, receive a Green Card to live and work in the U.S. indefinitely.
Unfortunately, processing times for this type of petition have increased in recent years, often resulting in prolonged frustration and family separation. Litigating such delays may be an option, depending on the particulars of the case.
N-400 delays and naturalization interview decision delays
Form N-400 is used by Lawful Permanent Residents to apply for citizenship. USCIS reviews this form, schedules a naturalization interview and issues a decision.
Litigation is a useful tool to force USCIS to schedule a delayed naturalization interview or issue a final decision after a naturalization interview has been completed.
Consular processing delays
An individual may want to consider litigating in federal court if, after attending a visa interview, they are given a Form 221(g) and/or told that their visa application has been placed in “administrative processing.”
Consular officers often place visa applications in administrative processing so the visa applicant can provide additional requested documentation or to allow the government to conduct further security screening.
Although frustrating, most of these delays are resolved within a few weeks. Litigation is advisable, however, if an individual has not received a response from the U.S. Department of State (an update, approval or denial) after a prolonged period of time.
Individuals whose cases have been delayed, are in the RFE stage or have already had their visa petition denied by USCIS should consider discussing the potential benefits of, and any concerns related to, the litigation process with experienced immigration counsel.