Has anyone filed a mandamus action over an EB-1? What does it actually look like in practice, and what should you expect if you decide to sue the State Department? I’m looking for a primer on the topic — has anyone come across any decent material?
Mandamus petitions related to visa matters number a few hundred per year — not thousands, as many think. About 90% of them, according to those who track case law, are resolved before court: the visa is issued and the plaintiff files a voluntary dismissal. I’ve seen cases involving EB-1, EB-3, L1, O1, fiancée (K-1), DV — a wide range. Mandamus pressures the speed of processing, not the substance of the decision — you can’t use it to overturn a final denial. If you’re interested in what works in parallel, there’s a discussion about Congress.
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You wait at least a year, then file — there aren’t many EB-1 lawyers who do that.
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Listen, I myself was a dependent in a mandamus for an EB-1a — so I know how it looks from the inside. The hardest part is putting down $5–6k up front with no guarantees — the lawyer explained that few people decide to do that in the first year. I haven’t seen a single case where they ultimately denied the visa — in the worst case the court just doesn’t grant expedited review. Not as scary a tool as it seems)
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Basically, it’s a lawsuit in the federal district court for that district — the government has 60 days to respond after service of process, i.e., after official service. Most cases get resolved within that window: the State Department (DOS) realizes it’ll lose on timeliness and issues the visa without going to court. When I looked into this mechanism for a friend, the funny thing is the court almost never hears the case on the merits; the pressure already kicks in at the stage when the suit is served.
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