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NSC picking up new cases
- Thread starter getshm
- Start date
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Registered Users (C)
Does it has anything related with I-485 Litigation?
Just read some paper from website discussing about
Mandamus action
quote:
February 5 1999
SUING THE INS FOR BACKLOGS AND DELAYS
Hello everybody. This is Cyrus Mehta. Welcome to this week's edition of immigration matters.
Backlogs and delays are what first comes to the mind of any person who is dealing with the U.S. Immigration and Naturalization Service. The same applies to those who have filed labor certification applications with the Department of Labor.
There are delays in every area. Lawful residents who have waited patiently for five years and abided by all the laws of the United States have to wait for two years or more before they can acquire citizenship. Under the labor certification procedure, foreign workers have to wait for over four years in the New York and New Jersey regions in order to obtain a green card. Also, people who have filed routine applications for adjustment of status to permanent residence through marriage to a U.S. citizen have to wait for more than eighteen months before they are scheduled for their green card interview in New York. Even after that a file can take in excess of a year to close.
Clearly the system has broken, but what is the solution? The most obvious is for the Administration and Congress to reform it. But there clearly is no great desire from our elected representatives because immigrants cannot vote.
Fortunately, the law does allow affected parties to sue the INS, or other government agencies such as the Department of Labor, to compel them to perform a nondiscretionary duty owed to the affected party. Such a legal action is known as the Writ of Mandamus. It has been attempted successfully before to compel the INS to adjudicate petitions.
The best case for filing a Mandamus action is when the INS has actually indicated that it will reach a decision within a certain amount of days and has not. Typically, after filing an application for citizenship, INS responds that it will take 240 to 300 days to adjudicate such an application. If the INS has not acted within that period of time, a Mandamus action may be worth initiating against the INS. Similarly, if the Department of Labor has taken no action on a labor certification application for several years, and the foreign worker is soon going out of status, a Mandamus action might be able to bring about an effective result.
The Writ of Mandamus is limited to instances where the government has a clear duty to act, but does not. It cannot be used to expedite the petition of a green card holder's spouse under the family based second preference quota. It takes approximately five years for a visa number to become current under the family-based second preference because Congress explicitly created a quota for spouses of green card holders. The INS is under no duty to act if the quota is oversubscribed. However, once the spouse's visa number has become current and then files an application for adjustment of status, which then takes years for the INS to adjudicate, a Mandamus action might be appropriate.
Perhaps, an increased usage of Mandamus actions will ultimately force the government to work for immigrants, especially when the law requires it.
I hope you found this segment informative and helpful. If you have any questions please do not hesitate to call the Law Offices of Cyrus D. Mehta at 212-686-1581. The number once again is 212-686-1581. You could also e-mail us at info@cyrusmehta.com or visit our website at www.cyrusmehta.com.
This is Cyrus Mehta wishing you a wonderful weekend. See you again in two weeks.
end quote
Just read some paper from website discussing about
Mandamus action
quote:
February 5 1999
SUING THE INS FOR BACKLOGS AND DELAYS
Hello everybody. This is Cyrus Mehta. Welcome to this week's edition of immigration matters.
Backlogs and delays are what first comes to the mind of any person who is dealing with the U.S. Immigration and Naturalization Service. The same applies to those who have filed labor certification applications with the Department of Labor.
There are delays in every area. Lawful residents who have waited patiently for five years and abided by all the laws of the United States have to wait for two years or more before they can acquire citizenship. Under the labor certification procedure, foreign workers have to wait for over four years in the New York and New Jersey regions in order to obtain a green card. Also, people who have filed routine applications for adjustment of status to permanent residence through marriage to a U.S. citizen have to wait for more than eighteen months before they are scheduled for their green card interview in New York. Even after that a file can take in excess of a year to close.
Clearly the system has broken, but what is the solution? The most obvious is for the Administration and Congress to reform it. But there clearly is no great desire from our elected representatives because immigrants cannot vote.
Fortunately, the law does allow affected parties to sue the INS, or other government agencies such as the Department of Labor, to compel them to perform a nondiscretionary duty owed to the affected party. Such a legal action is known as the Writ of Mandamus. It has been attempted successfully before to compel the INS to adjudicate petitions.
The best case for filing a Mandamus action is when the INS has actually indicated that it will reach a decision within a certain amount of days and has not. Typically, after filing an application for citizenship, INS responds that it will take 240 to 300 days to adjudicate such an application. If the INS has not acted within that period of time, a Mandamus action may be worth initiating against the INS. Similarly, if the Department of Labor has taken no action on a labor certification application for several years, and the foreign worker is soon going out of status, a Mandamus action might be able to bring about an effective result.
The Writ of Mandamus is limited to instances where the government has a clear duty to act, but does not. It cannot be used to expedite the petition of a green card holder's spouse under the family based second preference quota. It takes approximately five years for a visa number to become current under the family-based second preference because Congress explicitly created a quota for spouses of green card holders. The INS is under no duty to act if the quota is oversubscribed. However, once the spouse's visa number has become current and then files an application for adjustment of status, which then takes years for the INS to adjudicate, a Mandamus action might be appropriate.
Perhaps, an increased usage of Mandamus actions will ultimately force the government to work for immigrants, especially when the law requires it.
I hope you found this segment informative and helpful. If you have any questions please do not hesitate to call the Law Offices of Cyrus D. Mehta at 212-686-1581. The number once again is 212-686-1581. You could also e-mail us at info@cyrusmehta.com or visit our website at www.cyrusmehta.com.
This is Cyrus Mehta wishing you a wonderful weekend. See you again in two weeks.
end quote