Comprehensive Answers to Questions About Writs of Mandamus
1. What Is a Writ of Mandamus?
Under U.S. federal law, the authority for a writ of mandamus is found in 28 U.S.C. § 1361, commonly referred to as the Mandamus Act. It provides that:
“The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.”
A writ of mandamus applies across various areas of law, including immigration law.
In the immigration context, the Mandamus Act is used to compel government immigration agencies to perform their legal duties. Specifically, when U.S. Citizenship and Immigration Services (USCIS) unreasonably delays adjudicating an immigration application, a writ of mandamus may be filed to require the agency to make a decision within a reasonable time.
A writ of mandamus is a court order directing USCIS or its officers to complete processing and issue a decision on a pending immigration case.
When filing a mandamus action, attorneys often also rely on the Administrative Procedure Act (APA), which prohibits federal agencies from engaging in “unreasonable delay.” Plaintiffs may ask the court to determine that the delay is unlawful and order the agency to adjudicate the application within a specific timeframe.
2. Is a Writ of Mandamus the Same as a Federal Writ of Mandamus?
The term “writ of mandamus” is broad and may include orders issued by state courts directing state agencies or officials to act.
A federal writ of mandamus specifically refers to an order issued by a federal court directing a federal agency or officer to perform a legal duty.
3. What Types of Immigration Cases Qualify for Mandamus?
Nearly every type of immigration case may be eligible for mandamus relief, provided the case has been unreasonably delayed.
Visa cases pending at U.S. consulates or embassies may also, in theory, be expedited through mandamus litigation.
Mandamus actions may apply to:
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All types of green card applications
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I-130 and I-730 family-based petitions
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I-140 employment-based petitions
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I-485 adjustment of status applications
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N-400 naturalization applications
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Various work visa petitions
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Immigrant visa processing
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EAD (work permit) applications
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I-589 asylum applications
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I-601 / I-601A / I-602 waivers
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I-360 petitions
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I-751 petitions
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I-290B motions
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I-526 and I-829 EB-5 petitions
4. My Case Has Been Pending at the Consulate With No Update. Can I File Mandamus?
Yes.
5. I Submitted Additional Evidence (RFE Response) and Have Heard Nothing. Can I File Mandamus?
Yes.
6. I Had My Green Card Interview but Have Not Received a Decision. Can I File Mandamus?
Yes.
7. For Non-Asylum Cases, Must I First Submit an E-Request or Contact a Congressman Before Filing Mandamus?
No. It is not legally required to exhaust those options before filing a mandamus action.
8. If I File Mandamus, Will My Case Really Be Decided Within 90 Days? What Are the Possible Outcomes?
Most cases receive a result within 90 days, and many within 60 days. In most situations, USCIS agrees to expedite processing, but expedited review does not guarantee approval. In rare cases, the government may file a motion to dismiss or otherwise defend the lawsuit.
9. Why Didn’t Congressional or USCIS Inquiries Work, but Mandamus Might?
Because mandamus is a judicial proceeding with formal deadlines and legal consequences if the government fails to respond. Other inquiries are helpful but lack binding timelines and enforceable consequences. They function more like a “soft reminder,” whereas mandamus is a legally enforceable action.
10. For Asylum Cases, What Is the Difference Between Requesting Expedited Processing and Filing Mandamus?
A USCIS expedite request is an internal agency procedure governed by USCIS priorities and resource constraints.
Mandamus is a judicial process with defined timelines and legal consequences.
Based on our experience, USCIS typically prioritizes cases involving mandamus litigation over internal expedite requests.
11. If Mandamus Succeeds, Does That Mean My Immigration Case Will Be Approved?
No.
Approval depends on the evidence, facts, and legal merits of the underlying case.
While filing mandamus should not legally influence the merits decision, whether it has indirect psychological effects is unclear. We do not have sufficient data to draw definitive conclusions.
12. If Mandamus Is Unsuccessful, What Happens?
Your case returns to its prior status, and you continue waiting for adjudication.
13. Could Filing Mandamus Harm My Case or Lead to Retaliation?
Approval depends on the evidence, facts, and legal basis of the original petition.
Legally, filing mandamus should not negatively affect the case. While we cannot conclusively determine indirect effects, our observations suggest that in certain credibility-dependent cases (such as marriage-based I-130 petitions or I-589 asylum applications), mandamus-filed cases appear to have had relatively favorable outcomes compared to similar cases. However, this is based only on observation and not controlled statistical studies.
14. How Long Must My Case Be Pending Before Filing Mandamus?
In theory, cases pending for six months may be eligible.
Whether filing is advisable depends on case type, jurisdiction, and adjudicating office. Consultation is recommended.
15. For Asylum Cases, Some Attorneys Say You Must Wait 3 Years Before Filing Mandamus. Others Say Sooner. What Is the Difference?
Legally, six months may suffice.
Strategic timing depends on case type, location, and adjudicating office. Consultation is recommended.
16. What Documents Are Needed to File Mandamus?
Basic personal information and information about the pending immigration application.
17. I Do Not Have My Full Case File. Can I Still File?
In theory, your name and date of birth may be sufficient. However, the more complete your information, the faster and more accurately we can proceed.
18. If Mandamus Is Successful, Will the Attorney Continue Representing My Immigration Case?
Generally, no.
19. Do I Need to Notify My Original Immigration Attorney?
Not required. It is entirely your choice.
20. Do I Need to Change My Immigration Attorney?
No.
21. Can Any Attorney File a Mandamus Case?
No.
Mandamus is federal litigation. The attorney must be admitted to practice before the relevant federal court. Not all attorneys—especially those licensed only in another state—have this qualification.
22. Should I File Mandamus?
Mandamus can accelerate adjudication. If faster processing aligns with your personal interests, it may be worth considering.
23. What Are the Costs?
The U.S. national average attorney fee ranges from $5,000–$10,000, plus approximately $500 for court filing and service fees.
Please contact us for consultation regarding our fee structure.
24. If Mandamus Is Not Successful, Do You Offer Refunds?
For certain case types and under agreed conditions defining what constitutes “unsuccessful,” we may offer refunds pursuant to a written agreement. In some cases, funds may be held through a third-party escrow arrangement for refund protection.
Court filing and service fees are non-refundable.
25. If I Am Not in California, Can You Represent Me?
It depends on the nature of your case, your residence, and the USCIS office handling your petition.
Our attorneys are licensed beyond California, and many USCIS offices have jurisdiction spanning multiple states. Consultation is recommended.
26. What Is Your Success Rate?
Past results do not guarantee future outcomes.
While our historical success rate has exceeded the national industry average (informal industry estimates suggest approximately 85%), each case is handled with careful attention to detail to avoid preventable errors and delays.
For an evaluation of your specific case, consultation is recommended.