I received a denial for EB-1/O-1 and am wondering which route to take — I’m in the USA. Is a reopen the same as asking for the case to be reviewed by a different officer? My officer is effectively on a blacklist; he rarely approves cases. I’m considering a mandamus — is filing a lawsuit a realistic option in this situation, or does mandamus only work when there’s been no response for years?
Detailed analysis of the topic: Mandamus on visas and Congress: what actually works
When I looked into the question of a motion to reopen plus a parallel re-filing in another office, I received two completely opposite answers from two lawyers. One said that if the petition isn’t closed you can’t file a second one; the other strongly disagreed — calling the first one incompetent. In the end, the position is that parallel filing is technically possible, but USCIS can link the cases and that creates additional questions during adjudication. Reopen is not a change of officer — the same officer reviews their own decision, which rarely changes the outcome. For a different officer you need an appeal to the AAO. Regarding mandamus — it works against unreasonable delay without a decision, not against the decision itself. If mandamus is denied it won’t force approval; it can only require that some decision be issued.
Thanks, that’s clearer now. If the officer is genuinely biased, is there any point in spending time reopening the case with the same officer, or should you go straight for a mandamus or file a new petition?
A motion to reopen goes to the same officer — if they’re biased, your chances aren’t great. mandamus is about delays without a response, not denials — for a denial there’s a different tool. A motion to reconsider is the petitioner’s right; competent lawyers use it actively, especially when the officer clearly erred in the reasoning for the denial. There are options — don’t give up.
Refiling with an updated package is the only realistic way to be assigned to a different officer; an MTR only works if the decision contains a specific legal error, not merely a subjective assessment of the evidence.
Daisy-petal fortune-telling - a writ of mandamus doesn’t work for refusals, only for delays
About mandamus — it’s a remedy under 28 U.S.C. § 1361 to compel an agency to take action in the face of an unreasonable delay. If there’s been a denial (the decision has already been made), mandamus isn’t applicable. An appeal to the AAO is a separate avenue — they don’t reexamine the evidence; they review whether there was an error in the application of law. If the officer simply weighed the evidence differently, that’s not a legal error; you need to refile with a strengthened package.