It is widely known that the U.S. Citizenship and Immigration Service (USCIS) has been experiencing a backlog of pending applications. As of March 2022, USCIS has faced a backlog of 9.5 million applications.[i] Until 2019, applicants and their legal representatives were able to schedule in-person appointments at the local USCIS office to discuss any issues regarding their pending immigration case with a USCIS officer. [ii] This service was called InfoPass. Without this inquiry service, many immigrant attorneys have turned to another way to receive a response from USCIS officers sooner: Writs of Mandamus. Unfortunately, the federal court system is also facing a backlog of pending court cases, and this method will inevitably have a negative effect on future filings of Writs of Mandamus.

In recent years, many immigrants have filed Writs of Mandamus against USCIS over administrative delays, alleging violation of the “Administrative Procedure Act and the Constitution’s due process clause.”[iii]  Section 702 of the Administrative Procedure Act, states that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”[iv]This rule of law, along with 28 U.S.C 1361, which grants district courts original jurisdiction over writs of mandamus, gives immigrants the opportunity to compel USCIS agents to take a specific action, such as deciding on an application that has been pending for an unreasonably long time.[v]

For a writ of mandamus to be issued against USCIS, three elements must be met: “(1) the plaintiff must have a clear right to the relief, (2) the defendant must have a clear duty to act, and (3) no other adequate remedy must be available.”[vi] It has been advised that this method should only be used in extraordinary circumstances. Yet, in recent years, the increase in processing times of immigration applications has increased the number of writs of mandamus exponentially.[vii]  Many immigration attorneys favor this method because it forces USCIS to respond to their complaint within 60 days.[viii]

On July 22, 2020, approximately 75,000 putative Class Members filed a class action Writ of Mandamus to compel USCIS to issue and deliver Employment Authorization Documents (EADs) to members of the class who already acquired employment authorization but had yet to receive physical EAD cards.[ix] After a month of settlement discussions, USCIS agreed to produce EAD cards in 7 business days after their Biometrics appointments which we set throughout September 2020.[x] After at least six months of waiting for an EAD card without a response from USCIS, the class members were able to receive their EAD cards within six weeks of filing their Writ of Mandamus. This class action forced USCIS to quickly perform their duty because it was evident that the Plaintiffs had a clear right to relief due to their prior approval of employment authorization, USCIS had a clear duty to issue and deliver their EAD cards, and there was no other adequate remedy available as the EAD cards were necessary to show that Plaintiffs were authorized to work in the United States.

A quick Google search brings up a long list of immigration attorneys boasting similar success stories. However, many district courts have denied Writs of Mandamus as Plaintiffs instead try to use this method to “skip …  [their] pending immigration visa petition ‘to the front of the line.’”[xi] Even if the plaintiff has met all three elements, the court still has discretion when deciding to grant a Writ of Mandamus.[xii]

When exercising their discretion regarding claims of unreasonable delay, district courts have begun using a six-factor balancing test. This six-factor balancing test was outlined in 1984, however, it is only recently that the lower courts in the Eleventh District have begun using this test.[xiii] The six factors comprise:

• The time agencies take to make decisions must be governed by a rule of reason;

• Where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;

• Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

• The court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

• The court should also take into account the nature and extent of the interests prejudiced by delay; and

• The court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.[xiv]

As more Courts begin to rely on this test, one can foresee the negative impact. More writs of mandamus based on claims of unreasonable delays will be denied causing a ripple effect of fewer writs being filed. Without the court’s assistance in battling the USCIS backlogs, supporters of petitioners have had no choice but to turn to those who have true authority to combat the immigration backlog: Congress.

Many different proposals have been made in Congress. Each proposal focused on finding ways to alleviate the backlog, either by raising application fees to increase funding, increasing or removing Green Card per-country caps, or reclaiming unused green cards so that more green card petitions may be granted.[xv] However, what is needed is a law that not only does as stated above but also incorporates the 6-factor balancing test while providing a hard limit on processing times.

One solution would be an almost automated system that incorporates the six-factor test and automatically approves the petitioner if no grounds of inadmissibility are uncovered after a certain time. An automated system would reduce the workload of USCIS officials and accelerate the application process. However, a human element is still necessary to ensure the system works appropriately. If any grounds for inadmissibility are later uncovered, then USCIS officials may rescind the approval of the petition or immigration application. If a petitioner appeals this decision, then an immigration judge may access the system to review all the facts while exercising his discretion to determine whether there were grounds for inadmissibility and affirm or overrule the decision of the USCIS official. At the end of the day, hiring more employees, raising application fees, and increasing Green Card limits will not be enough if the actual system of processing immigration-related petitions continues to be inefficient.

[i] See Ryan J. Fennell, Note: Stuck On The Backburner: An Analysis Of USCIS’s Backlog Of Immigration Applications And Potential Reforms, 37 Geo. Immigr. L.J. 87, 94 (Fall 2022).

[ii] See Jillian Blake, USCIS No Longer Offers Online Self-Scheduling for InfoPass Appointments, NOLO https://www.nolo.com/legal-updates/uscis-no-longer-offers-online-self-scheduling-for-infopass-appointments.html (last visited Mar. 3, 2023).

[iii] Peter Hayes, Immigrants Sue to Force USCIS to Issue Stalled Work Documents, BL (July 23, 2020, 2:22 PM)

https://www.bloomberglaw.com/bloomberglawnews/immigration/BNA%20000001737c8cd0d0a3fffffc5b590001?bna_news_filter=immigration.

[iv] 5 U.S.C. § 702.

[v] See 28 U.S.C. § 1361.

[vi] Jones v. Alexander, 609 F.2d 778, 781 (5th Cir. 1980).

[vii] See Government Inaction on Immigration Paperwork Leads to Record High Lawsuits, Transactional Recs. Access Clearinghouse (July 12, 2022) https://trac.syr.edu/tracreports/civil/689.

[viii] See Fed. R. Civ. P. 12(a)(3).

[ix] See Verified Complaint at 1, Subramanya v. U.S. Citizenship & Immigr. Servs. et al.,  2:20-CV-3707, 2020 U.S. Dist. LEXIS 152323 (S.D. Ohio Aug. 21, 2020).

[x] See Subramanya v. U.S. Citizenship & Immigr. Servs., 2:20-cv-03707, 2020 U.S. Dist. LEXIS 152323, at *10 (S.D. Ohio Aug. 21, 2020).

[xi] Osechas Lopez v. Mayorkas, No. 22-CIV-21733, 2023 WL 152640 (S.D. Fla. Jan. 10, 2023).

[xii] See id. at *3.

[xiii] See id.

[xiv] Id. at *5 (quoting Telecomm. Rsch & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984)).

[xv] See Equal Access to Green cards for Legal Employment (EAGLE) Act of 2021, Immigr. Voice, https://eagleact.info (last visited Mar. 3, 2023); see also Legislation to Reduce Green Card Backlogs: Gaining Support in Congress, FWD.US (Sept. 14, 2022), https://www.fwd.us/news/green-card-backlogs.