Mandamus Lawsuits for H1B, I-140, and Other Delays
Posted Apr 10, 2009
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We at the Murthy Law Firm have previously reported to our readers the usefulness of writ of mandamus actions in long-delayed adjustment of status (I-485) and naturalization cases. The writ of mandamus can also be an appropriate tool for other types of case processing delays. Many employers are experiencing long delays in U.S. Citizenship and Immigration Services (USCIS) processing of I-140 and I-129 petitions like H1Bs or L-1s for foreign workers. Regular MurthyDotCom and MurthyBulletin readers may recall from our NewsBriefs, New Developments in Mandamus Lawsuits (Mar 7, 2008) and Good News on Mandamus Lawsuits for Delayed Naturalization Applicants (May 9, 2008), that mandamus lawsuits may resolve unreasonable delays. Mandamus actions have also proven to be successful for I-140 and I-129 delays, and are described here for the benefit of our readers.
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Security Checks Delay H1Bs
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Increasingly, there are problems with lengthy delays in adjudicating certain I-129 petitions for H1B workers. These delays are not addressed by utilizing premium processing. One significant problem created by this is that H1B workers who are the beneficiaries of H1B extension requests with their current employers run close to or beyond the 240 days of additional employment authorization permitted based upon the pending H1B cases. Unless these H1B workers also have pending I-485 applications and Employment Authorization Documents (EADs), they may be forced out of their employment until the USCIS completes whatever background checks are underway. Other significant problems and uncertainties are created when it is not possible to get a decision within a reasonable period.
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Mandamus Lawsuits and H1B Delays
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The Murthy Law Firm successfully resolved delayed I-129 cases by filing writ of mandamus lawsuits. While a mandamus lawsuit cannot compel the USCIS to approve an I-129 petition, it can request that a Federal Judge order the USCIS to take action by approving it, denying it, or issuing a request for evidence (RFE). Once an RFE has been issued and responded to, it is expected that the USCIS will adjudicate the I-129 in a reasonable timeframe. Mandamus cases can be filed by employers who find that their I-129 filings simply are not being ruled upon within reasonable timeframes.
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Mandamus Lawsuits and I-140 Delays
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Similarly, the Murthy Law Firm has filed writ of mandamus lawsuits that have resulted in approvals of delayed I-140 petitions and, if eligible, the Adjustment of Status (I-485) applications based upon the particular I-140 petition. This has even included approvals for the I-485 applications filed by the spouse and children of an employee. While these I-140 petitions have been delayed for unnamed background investigations, the filing of a mandamus lawsuit has proven to be a successful mechanism for resolving a majority of the cases when there is no justification for further delay.
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Conclusion
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While the USCIS has a duty to ensure that a petition is based on a valid job offer in the correct category, it is not allowed to unreasonably delay selected petitions or those filed by a particular employer. Yet, this appears to be what is happening to some H1B-petitioning employers. The USCIS is increasing fraud detection efforts and investigating more cases. This is an appropriate government role. It is important to maintain integrity in benefits programs. If the review cannot be performed in a reasonable period, however, this is a failure in the system that must be addressed. Cases need to be decided in a timely fashion so that "good cases" can be approved and "problems" can be addressed. The writ of mandamus provides an avenue to force a decision in the event of long-delayed cases.