Business Visas do not always move at the speed of business,
how you can better control the process:
by Bradley Banias
You hired a foreign national to work for your company in a crucial role. The job starts in 8 months. Accordingly, you performed the necessary labor market test, filed the right business visa applications, and paid the filing fees.
Then . . . you started waiting.
After 60 days, nothing.
After 120 days, nothing.
Your company is moving forward, but its visa petition has stopped. And as time marches forward, your company can no longer wait to fill this crucial position, and the agency charged with adjudicating the visa petition will provide no substantive update, timeline, or answers.
1. You can continue to wait.
2. You can report the delay again and again to the same agency that is causing the delay.
3. You can contact your elected representative, but your elected representative’s staff is likely to get the same answers as your attorney.
4. You can give up. Or…
5. You can consider going to court.
A writ of mandamus is an order from a federal court that compels a government official to act. A petition for a writ of mandamus is just like any other civil law suit against the government; you file a complaint, the government answers, you file motions, and the judge makes a decision. However, rather than winning money, the judge may require the agency to make a decision on your petition within a particular period of time.
Given this limited purpose, if litigated correctly, a mandamus action can be timely and cost effective:
First, if your business can show it will be significantly harmed by further delay, you may be able to get an expedited hearing. If you qualify for such, your lawsuit may take two weeks to litigate.
Second, you can predict (and control) the costs because mandamus actions are limited in scope. Typically, they do not require written discovery, depositions, trials, or hearings. And if you win, you may be able to collect your attorney’s fees from the government if their defense of the delay was substantially unjustified.
Finally, if notice of the suit is sent to the correct litigating components of the federal government, the agency may be willing to make a decision before you file suit!
Though relatively straightforward, mandamus lawsuits require an attorney with federal court and immigration law experience. Without such experience, a mandamus suit can languish on a court’s docket for months with no response. Pleading the claim correctly is essential to keep the government from trying to dismiss your complaint for various reasons.
In summary, if your business’s growth, development, or expansion is being hindered by a delayed visa petition, consider a mandamus suit, but make sure you have an attorney capable of handling your matter at the speed of business.