Case Delay Lawsuits | Suing the Government for Case Delays

What is a Case Delay Lawsuit?

A case delay lawsuit is also called a Mandamus lawsuit or APA (Administrative Procedures Act) lawsuit. Under the APA, any government agency which includes all the immigration agencies such as DHS, USCIS, DOL, etc., must conclude a matter brought before the agency in a reasonable time. If the government does not act within a reasonable amount of time, individuals and companies, also called the Plaintiff in the lawsuit, can sue the government in federal court to compel the government to act. Winning a mandamus or APA lawsuit will result in the court ordering the government to act by a certain date, and if the individual wins the case, attorney fees can also be awarded to the person suing the government. Having a good immigration attorney representing you in these cases will be a key factor in determining the outcome of your case in federal court. The Visa Pros at Weinstock Immigration Lawyers understand how frustrated you must feel because of these government delays and that you have a lot to lose.

How do I know if I have a good case to sue?

When choosing whether to sue or not to sue, you must first consult with the best immigration lawyer you can find who has significant experience in suing the government in many cases. The experienced immigration attorney you choose will determine how long your case has been pending, whether the case falls within published government processing times or whether the case falls outside of published government processing times. Because some agencies, like USCIS, publish processing times that are updated on a monthly basis, it may be easy to prove in court that cases that fall outside of the published processing times are unreasonable.

Even if your case is not outside published processing times, or even if the agency does not publish its processing times publicly, your immigration attorney can still prove that the agency decision is delayed unreasonably. Some examples of this include if there is a threat of permanent loss of benefit, such as DV-lottery cases that must be completed by September 30 or the benefit is lost. Also, cases, where there is a medical emergency that would result in a loss of benefit or child age-out cases, can also result in a permanent loss of benefit and merit an expedite by the government to protect the individual from this harsh consequence. Analyzing your case requires very specialized immigration law expertise and experience in various federal courts across the country.

Can I sue the government for long delays in EAD applications?

In the recent past, clients have experienced major delays by USCIS in the processing of their EAD applications or work card applications in almost all categories. As a result, published USCIS processing times for EAD applications are now over 8 months and some take over one year. Many clients cannot start working without a valid EAD and others have to stop working and experience major financial losses. U.S. employers who have employed or want to employ individuals in pending EAD status are stuck without employees to do jobs, hurting  their businesses. As a result, many individuals try to file expedite requests with USCIS. Unfortunately, most expedite requests submitted to USCIS for EAD expedites are being denied by USCIS and we do not know how long it will take USCIS to reduce this backlog. There may be a strong case to be made that a delay of over 6 months for a temporary benefit like an EAD could be unreasonable. Historically, USCIS was able to process EAD applications within 90 days or less. In addition, a permanent benefit like a green card application can be processed in a year or less, so waiting this long for a temporary benefit may be unreasonable. Also, EAD extensions or renewals that are taking very long times could be unreasonable because USCIS has already determined that the person is approvable for an EAD once. While they have to confirm the person still qualifies, it should not take as long as an initial application.

A great immigration attorney can craft legal arguments and provide supporting evidence that will prove how unreasonable this kind of delay is, what the harm is to the individual, and successfully convince a federal court that USCIS is unreasonably delaying those EAD applications.

Is it expensive to sue the government for case delays?

Hiring a highly regarded immigration attorney with experience in successfully prevailing over mandamus and APA lawsuits against the government is not cheap. At the same time, if the lawsuit results in a faster adjudication of your immigration application, such as an EAD, it may be worth the investment. For example, if you make $48,000 per year, you are losing about $4,000 per month (less taxes) in lost wages as long as your EAD remains pending. If you can get your EAD approved 2-12 months faster, you have the potential to gain a lot more than you will pay an attorney to file a lawsuit against the government. In addition, if you win a court judgment on your case, you may be able to get the attorney’s fees you paid reimbursed by the agency that unreasonably delayed your application, based on the Equal Access to Justice Act.

What are EAJA fees to get my legal fees paid back?

Equal Access to Justice Act or EAJA is a federal law that provides for a financial benefit for people who prevail over lawsuits against the federal government. For mandamus and APA lawsuits over case delays, if the federal court decides that your case was unreasonably delayed, you may be able to get EAJA fees from the government. If you prevail in your EAJA fees application, you can get the judge to order the government to pay back all or part of the legal fees you paid to bring the lawsuit against the government. There are certain legal requirements you must meet in order to win an EAJA fees award, and our immigration attorneys will be delighted to analyze your specific situation to see if you qualify for such an award. The Visa Pros at Weinstock immigration lawyers have successfully won EAJA fee awards in mandamus and APA cases against the government in many cases over the past two decades and we are very pleased that we were able to achieve the desired results for these clients in need that had no other recourse but to sue the government over unreasonable delays.

Will suing the government harm me in any way?

Generally speaking, suing the federal government should not harm you in any way if all you are doing is suing them to make a decision in your case. The court cannot compel the agency how to decide your case, only that the agency must decide the case within a certain timeframe. U.S. agencies cannot retaliate against individuals who sue them, they have to apply the law to each case they adjudicate. If they do not apply the law, they have to justify their position and can be sued in federal court over a federal question and the interpretation of federal laws. So, if you clearly qualify for a benefit, you should not be afraid of suing the government because the U.S. is a free country. You will not be denied just because you sued the government and there are no secret “black lists” of people who sue the government like in other countries. However, you must carefully consider all the facts of your case together with your immigration attorney before you decide to sue because all considerations in your case must be weighed.

What is the next step I should take in considering a lawsuit?

At a minimum, you should consult with a reputable immigration attorney who has experience in suing the government over case delays to get a professional evaluation of your particular situation. The Visa Pros’ immigration lawyers team has decades of experience in the immigration field including suing the U.S. government in federal court and hundreds of client reviews and testimonials. Our immigration attorneys have successfully sued various government agencies over case delays and are ready to challenge the legal system to get our clients the results they desire.

Our immigration expert team offers a free screening to determine whether we can help you or not. From there, we will suggest one of our best immigration attorneys to consult with. If you are ready to start your immigration case, contact us today to choose one of our best immigration lawyers to discuss your potential lawsuit or call (770) 604-1603.

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