Delay and Denial

(First See Below – How Long Is Too Long to Wait?) 

If you have one of these kinds of applications and have been waiting more than six months to a year for it to be reviewed (or for a receipt notice, biometrics appointment, or consulate appointment), it is worth contacting an attorney to consult about your options: 

• A T Nonimmigrant Visa, for a victim of human trafficking 

• A U Nonimmigrant visa, for a victim of other crimes, and the applicant has not received a Bona Fide Determination decision 

• An I-765 for an Employment Authorization document (work permit) 

• I-601A  

• I-360 VAWA application  
• An applicant is outside the United States and is waiting for an interview at a Consulate/Embassy for an unreasonably long time. 

For a delay lawsuit, the defendant is the Agency which is required by law to process an immigration application. For applications filed from inside the United States (such as U Visas and T Visas for the primary applicant), this is United States Citizenship and Immigration Services (USCIS). If the application is filed through a US Consulate outside the United States, the Department of State (DOS) reviews the application.  

For an expedite request, we contact a Congressional Representative or Senator who represents the area where the applicant lives, because Congress has the power to oversee the Agency required to process the application. 

We are asking the agency to do its job! The primary job of these federal agencies which review immigration applications is just that – to look at the application and make a decision. If they fail to do their job in a reasonable period of time, we can try to push them using one of these tools. 

Everyone understands that immigration applications take time to review, and that different kinds of applications can take more or less time. Some of the delays are caused by overall problems in the immigration system (which attorneys can try to challenge using the tools discussed in this article). However, there are some “normal” reasons for a long processing time, which may not need any Congressional or federal court action.  

• Normal Case Processing Time: The agency posts an estimated waiting time for every kind of application. In many cases, if an application is within this range, it may not be appropriate to take any further action.   

In some cases, the “normal” processing time for a case is so long, that a lawsuit may be needed anyway, even before a case goes beyond the government’s estimated wait time.  

In some cases, the government may not even post what its official processing time is, so attorneys estimate as best they can, based on their experience. 

• Complex cases: Some applications are so complicated they may take more time for the agency to review. Sometimes, the agency may issue a Request for Evidence (RFE) seeking more information about something relevant to an application. That can add to the processing time for a case.  

• Does the agency know how to contact the applicant? If the applicant moves (even temporarily), they must keep their address updated with USCIS. It is best to have an attorney help do this instead of doing it yourself, to make sure the correct form is filed with the correct agencies. Please inform an attorney working on your immigration case as quickly as possible that you intend to move or have moved.  

If an applicant has moved and has not informed their lawyer – and the lawyer has not updated USCIS with the correct form, it’s possible that the applicant and their attorney are missing important notices, RFEs – or even approvals!  

An applicant should make sure their attorney knows of a potential change in address, even if it may be temporary. 

• RFE / NOID issued: If an application was incomplete when filed, the agency may issue a Request for Evidence (RFE) or a Notice of Intent to Deny. (NOID).  

A law office may assist with RFE or NOID responses with a careful, strategic response. If the agency does not receive the desired response, they may deny the application.  Attorney assistance on such requests can be very valuable and help avoid delays or additional requests for information. 

USCIS’s processing estimate can change regularly. The USCIS website states that the estimates are based on how long it took the agency to adjudicate most (80%) of the cases it received in the past six months. The USCIS website also states – “Each case is unique, and some cases may take longer than others. Processing times should be used as a reference point, not an absolute measure of how long your case will take to complete.” (as of summer 2024) 

How to check case status: 

Some (but not all) immigration applicants can use the Receipt Number on a Receipt Notice to check the status of a specific case. This may give a short summary of the last step the agency took – for example, that the agency sent a Receipt Notice or a Request for Evidence.  

Current processing times and online case status checks are things that a law office may have information on, and so it’s best to have a consultation to figure out case status or how long a case might take, keeping in mind processing times and USCIS procedures change frequently. 

Important Note – some immigration applications cannot be tracked easily through this process because of victim-centric privacy and confidentiality protections. Primary T Visa (T-1) and U Visa (U-1), applicants may not be able to track the status of their application on the Case Status website (as of October 2024; please be aware this information may change over time). 

However, if the primary applicant also applied for any derivatives who are in the United States (a spouse or a child, for example), they may be able to check the case status of that derivative’s I-765 application using their I-765 Receipt Notice. Though each application may not be processed at the same time, this can give a good idea about how close an application is to a decision.  

Useful USCIS links about checking processing times and case status: While you may want to try these online tools, please remember that it still best to talk to an attorney about your case status. As with any website, links may break, and the USCIS customer service system is not always accessible or accurate.  

• More information about Case Processing Times – https://egov.uscis.gov/processing-times/more-info 

• Check USCIS Case Status online https://egov.uscis.gov/ 

• Check estimated processing times for some types of USCIS applications https://egov.uscis.gov/processing-times/.  

There is no single or simple answer to this.  

It may be a good time to speak to an attorney if it has been 6 – 12 months since an application has been filed, and there has not been any notice of agency action (nothing after receiving the Receipt Notice – or perhaps has not even received a Receipt Notice!). 

The longer it has been, the more important it is to contact an attorney to learn about the options. For U Visa applicants, we especially recommend speaking to an attorney six months after filing or to even plan a litigation strategy at the beginning of a case, before filing. 

We encourage applicants to plan for the time and cost of the legal work that may be needed after filing to speed an application along. Applicants should keep their attorneys informed of any major life changes – moving, marriage or divorce, criminal charges, a new or worsening medical condition, pregnancy and birth, or any other special needs and circumstances.

Requesting Expedited Review requires additional work from the legal team, so it may have a separate cost.  

Not all petitions are eligible to request Expedited Review, and not all difficult circumstances may be at the level that USCIS considers urgent. Our legal team understands that clients are facing many challenges, but we may only offer an Expedited Review option if, based on our analysis, it may be appropriate to do so. 

If USCIS Expedited Review, there may be other options that an attorney can discuss in a consultation.  

For more information, see: 

• USCIS’s page on Expedite Requests: https://www.uscis.gov/forms/filing-guidance/how-to-make-an-expedite-request 

• USCIS Policy Manual Chapter 5 – Requests to Expedite Applications or Petitions https://www.uscis.gov/policy-manual/volume-1-part-a-chapter-5  

We ask our clients to refrain from DIY (please do not “do it yourself”) as it may make an attorney’s task harder – or worse, complicate your case. 

A legal team may be able to help decide which district Senator or Representative may be the best one to speak to, and then contact the office with the request. The Congressional Staff may ask the applicant to sign a Privacy Waiver to allow the Staff to speak to the agency on behalf of the applicant. The staff may also request specific information from the applicant and their attorney.  

Requesting Liaison services usually requires additional work from a legal team and may add to the cost of the basic legal contract.  

Please note that the actual liaison services from a Representative or Senator are free. Any fees charged by Helen Tarokic Law are to cover our legal advice and time to analyze and prepare exactly what is needed for the Liaison request. 

T visa and U visa Applicants may worry that filing a federal lawsuit in court may put them and their families in danger. However, the lawsuit may (in certain cases) be done such that the petitioner’s full name is not used, or take other actions so that the name is not publicly visible on the lawsuit. 

Federal immigration litigation takes place mostly “on paper,” meaning that the applicant (now called the Plaintiff) typically will not have to go to court (and federal lawsuits are not in immigration court!). The litigation is filed in a federal court that has jurisdiction over the client’s case. The legal and factual arguments mostly take place with written communication and phone calls between the attorneys representing the Plaintiff and the agency.  

In many cases, the case may not even end up at court. We have had the experience that when the litigation is filed, USCIS moves to settle the matter outside of court by approving or denying the underlying petition, where appropriate. 

A lawsuit to challenge agency delay can make the agency focus on that application, review it, and “take agency action” – this could be an approval or denial, or even a request for more information. 

A mandamus lawsuit does NOT force an agency to approve the application; instead, the goal is to make the agency more quickly take action or make a decision. 

When the agency starts to review the application, it may issue a Request for Evidence (RFE) to ask for more information about the case. If this happens, it usually means that the RFE is issued faster than it would have been issued without the lawsuit. It is important to work with an attorney to respond to all RFEs with all the information needed and within the timeline allowed. The Plaintiff’s attorney may correspond directly with the USCIS attorney to let them know that the RFE response was sent, which may result in getting a faster decision. 

U Nonimmigrant Visa applications are especially held up by agency delays.  

The first hurdle is that only 10,000 U Visas are available every year for primary U-1 applicants (as of October 2024, the WISE act has not passed to eliminate the cap), but the agency receives many more applications per year and is already backlogged into the hundreds of thousands of cases.  

In the simplest terms, if USCIS finds a U Visa petition to be valid, it is supposed to grant a “Bona Fide Determination” (BFD) and place the applicant on a waiting list for the next available U Visa. While they wait to be placed on the waiting list, the applicant is eligible for a work permit and deferred action (an agreement not to pursue deportation). 

However, due to the extreme backlog, even getting a Bona Fide Determination seems to take years and USCIS does not always issue BFDs on a “first-come first-serve basis.” 

Litigation may speed up this process of receiving a BFD and work authorization for bona fide U visa applicants. A Mandamus lawsuit may make USCIS review that U Visa petition and – if the petition is approvable – place the applicant on the waiting list and grant them a work permit and deferred action.   

Please keep in mind that getting the temporary work permit does not mean the person will get actual U visa status faster. The goal of BFD lawsuits is simply to get the temporary work permit and temporary deferred action. With a work permit, the client may then get a social security number and often a driver’s license (driver’s license rules depend on state law; this article will not address those state laws). 

U Visa and T Visa applicants may apply for certain family members as derivatives, even though those family members are outside the United States. For example, a U-1 or T-1 (primary) applicant could apply for a spouse (U-2 or T-2) or an unmarried child under 21 (U-3 or T-3) prior to obtaining U-1 or T-1 status. A consultation is needed to determine what to file and whether the family member is eligible for derivative status. An attorney may be able to advise on whether T or U Visa applicants can apply for their parents and siblings in some situations.  

Applications for a derivative who lives outside the United States are processed through the Department of State rather than USCIS, which processes the T-1 or U-1 case. Due to agency delays, several important steps for the family member outside the United States can slow down for months, or even years. An attorney may be able to advise about using expedite requests or litigation (or even both) to bring the family member to the United States more quickly.  

It is heartbreaking for both the attorney and the applicant when we believe the applicant truly deserves the remedy they’re asking for, and yet the agency denies the petition. 

If an application has been denied, it may still benefit the applicant to have an attorney review the application and the denial letter.  

Sometimes, unfortunately, there is nothing that can be done to overturn a denial of a U Visa or T Visa Application. However, if an attorney believes that the applicant is eligible for this remedy and that USCIS made a mistake in denying the application, there may be some tools in federal court to challenge or appeal the denial of an application.  

This short overview may not cover all the tools or all the times when this is an option, but we can summarize the most common types of litigation that Helen Tarokic Law PLLC has offered for our clients. If your U or T Visa has been denied and you’d like to learn about your next options, please book a consult with us.  

When an applicant submitted a valid T or U Visa application – and yet USCIS denied the petition – it may be possible to appeal USCIS’s denial using federal litigation.  

Litigation challenging USCIS’s denial of the T or U application may involve one or more of the following: 

• Highlighting the relevant evidence that was already submitted and arguing that it was indeed legally sufficient to grant the applicant’s case. 

• Working with the applicant to gather more information about the trafficking or other type of victimization, as well as how the trauma of that experience affected or continues to affect the survivor. 

• Explaining changes to the U and T visa regulations that have some kind of retroactive or informative effect, such that the case can be approved in light of new law or policy, but based on old evidence/the old petition. 

• Bundling issues together – having clients join group lawsuits that highlight a pattern of denials or incorrect agency action. There may be strength in numbers.  

If we bundle a lawsuit, the clients will not meet or know each other’s names. Their information will be held confidentially from one another, as required by law. The purpose of a group lawsuit is to try to make sure that the court can see a pattern of a problem, and to try to get change for every person on the lawsuit at a more affordable price. 

Sometimes, an attorney reviews a case and determines that re-filing is a better option. Or, perhaps a different type of application may work better. Sometimes the lawsuit is the best way to go.  

Also, it has been our experience that some doors are only temporarily closed, meaning at one point, an option was not possible, but due to a new change in policy or law, or due to new facts in a person’s life, a new door may open. For this reason, we recommend annual consultations for those who still have not been able to achieve their immigration goals. Additionally, for existing clients, we usually need clients to book an annual consultation to make sure they have comprehensive advice, especially for clients whose cases may take years to be resolved.  

We know it may feel sad or frustrating to have lost a case. We know it is hard to go through a new consultation, and that it can be an emotionally draining process. Please do your best to collaborate with our team, stay as positive as possible, and if we offer a “rescreening,” please know we do this to try to make sure we leave no stone unturned.