My application is delayed pending a name check. What can I do?
My application is delayed pending a name check. What can I do?
From: American Families United
http://americanfamiliesunited.org/index … Itemid=170
If you get this response, you application is being held up by a lack of response to USCIS by the FBI. You have no recourse to get answers from the FBI. Your Congressman and Senators also have no recourse to compel action. The only check on the system at this point in time is the ability to file a writ of mandamus law against USCIS suit in federal court.
However, it is important to know that the Department of Homeland Security/USCIS has proposed emergency rules that could take effect at any moment that would lead to the dismissal of all writ of mandamus cases. If you do not already have a case in progress, this means that it is probably too late to file with a reasonable hope of success.
Your best hope at resolution is to ask the Congress and Senate for to legislate a process that will give you a way to resolve these arbitrary backlogs without going to court. American Families United has such an amendment, and it is being considered for inclusion into the comprehensive immigration bill. Our lobbying efforts have contirbuted to very similar legislation to our proposal being introduced in two bills:
Citizen Promotion Act (Section 5)
STRIVE Act (Section 208)
We believe your money and time is best spent working towards a legislative fix than filing a writ of mandamus right now. This is especially true because it is widely expected that the STRIVE act will form the basis of the comprehensive immigration reform bill that will be introduced and voted on the House of Representatives. The comprehenisve immigration reform bill is expected to be introduced in May 2007.
General information about lobbying is available here.
Here are ways to you can help the lobbying effort:
* Make a one-time donation to help us pay for lobbying for April and May, the most critical time
* Sign up for recurring donations (see our progress here)
* Come with us to Washington DC on April 27th
* Join our call in effort
* Sign up on the forum to be included on announcements to call in and support this amendment
* Sign up as a volunteer to help organize people and raise funds for lobbying support
However, if you have the money and want to file a writ of mandamus case in addition to supporting a legislative fix, here are some general guidelines:
* If you are waiting on a naturalization case, you can file 120 days after you have had your interview. This is a hard and fast rule.
* If you are waiting on an application for permanent residence and you are the spouse of a US citizen, you can file after a “reasonable time”. “Reasonable time” has no legal meaning, but generally attorneys get results after twice the time that other cases are being handled or between two or three years of waiting.
* If you are waiting on an application for permanent residence and your application is employment-based, you can file after a “reasonable time” after your priority date is current. Usually people in this category are told that their case is delayed by a security check prior to their priority date being current, which leads to a lot of confusion. You can check if your priority date is current on the USCIS website based on your type of application.
* If you file to early, you will lose your case, and you will not get a second chance. Your case could then be delayed indefinitely.
* You should get a lawyer who specializes in writ of mandamus cases and you can expect to pay between $2,000 and $5,000.
* If you have ever had a run in with the law, even very minor, you should think twice about filing. If you file and there are grounds to deny your case, you may find yourself on the receiving side of an administrative backlash. You absolutely should speak with an attorney in this case.
* Your chances of winning a writ of mandamus case vary in different regions of the country.
Things you should do before you file a writ of mandamus case:
* Get INFOPASS appointments every month or two asking for the status of your case. Document these visits.
* Send letters to Congressmen or Senators asking them to inquire on your case. This is really optional. INFOPASS is enough. Congressional inquiries won't hurt, though.
Things you should avoid:
* Filing a Freedom of Information Act (FOIA) request from the FBI. This is a complete waste of your time. It slows down your application, bogs down the system in general, and does not help a writ of mandamus case.
* Refiling your case. Again, this will at a minimum slow down your case and bog down the system in general. It could lead to worse results.
* Believing that your Congressman or Senator can intervene and get results. A Congressman or Senator is unable to get results due to delays with the FBI. What a Congressman or Senator can do is change the law to introduce a process to ensure accountability. They cannot directly intervene, though.
* Taking another person's writ of mandamus case and using it as a template for your own case, and filing a case without a lawyer. If you are considering filing “pro se”, or without a lawyer, be aware that you have a much better chance if you are filing with a naturalization case, but it is generally a bad idea to do this.
Information on class action writ of mandamus law suits:
* Applications for permanent residence do not lend themselves to class action lawsuits because of the difficulty in defining a class.
* People who live in the same court districts and who are waiting on naturalization cases are in a better situation to consider this. CAIR and the ACLU have file writ of mandamus cases in LA and San Francisco.