If your immigration case has been pending far longer than USCIS’s own posted processing time, and letters, calls and a congressional inquiry have not moved it, you may be able to sue in federal court to make the agency decide it. That lawsuit is usually called a mandamus action. Two things about it are true at the same time, and every page that sells mandamus as a cure leaves out the second: a lawsuit can get you a decision, but it cannot get you an approval, and for some people, particularly some asylum applicants since July 2026, it can make things worse. This page explains how courts decide whether a wait is too long, which delays can be sued on in Montana, North Dakota, Wyoming, Utah and Colorado, what happened in our own cases, and what to try first.
How long is too long for a USCIS case?
There is no fixed number. Courts do not count from the day the form was filed and declare a winner at a deadline; they weigh the length of the delay against the reasons for it. Three markers help you place your own wait.
USCIS’s posted processing time. USCIS publishes the time within which it completes 80% of cases for each form and office. As of October 26, 2026, the USCIS processing-times tool showed 9.5 months for naturalization (Form N-400) at the Helena, Montana field office, and 9.5 months for family-based green card applications (Form I-485) at the same office. A case that is still inside the posted time is almost never a candidate for a lawsuit. Processing times shown are a snapshot as of the date indicated, taken from the USCIS processing-times tool. They change constantly, and we do not update articles continuously to track them — before making decisions, check the current time for your form and office at egov.uscis.gov/processing-times.
The 180-day statement in the statute. Congress has said that “the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application” (8 U.S.C. § 1571(b)). That sentence is framed as the “sense of Congress,” a goal rather than a deadline, and courts treat it as one factor among several, not as a rule that makes every case older than six months unlawfully delayed.
How courts actually measure. The Ninth Circuit, whose rulings bind federal courts in Montana and Idaho, has said that unreasonable delays usually involve delays of years, not months (In re A Community Voice, 878 F.3d 779, 786–87 (9th Cir. 2017)). In practice, in the immigration cases we see, a wait has to be well beyond the posted time, and the longer and less explained it is, the stronger the case. A two-year wait on a form USCIS normally finishes in ten months is worth a serious look. A two-year wait in a line USCIS works through in a published order may not be.
What is a mandamus lawsuit, and what can it actually get me?
A “mandamus” lawsuit asks a federal district court to order a government officer to perform a duty the law requires. The modern version is usually filed under two statutes together: the Mandamus Act (28 U.S.C. § 1361) and the Administrative Procedure Act, which requires agencies to conclude matters presented to them “within a reasonable time” (5 U.S.C. § 555(b)) and lets a court “compel agency action unlawfully withheld or unreasonably delayed” (5 U.S.C. § 706(1)).
The Supreme Court has set the limit on what a court can order: “Thus, a claim under § 706(1) can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take” (Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004) (emphasis omitted)). Deciding your I-130 or your N-400 is a discrete action USCIS is required to take. Approving it is not; the outcome stays with the agency. The Ninth Circuit applied the same limit in September 2026, holding that a court can compel only nondiscretionary steps and cannot order USCIS to grant a discretionary benefit such as advance parole (U Visa Appellants v. Director, USCIS, No. 24-6824 (9th Cir. Sept. 14, 2026)).
To decide whether a delay is unreasonable, federal courts in all three of our circuits generally use six factors from Telecommunications Research & Action Center v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984), known as the TRAC factors. Put in plain terms, the court asks: does the agency follow a “rule of reason” in the order it decides cases; has Congress set a timetable; are human health and welfare at stake rather than only money; would ordering the agency to act on your case push other people back in line; how serious is the harm to you; and (without any need to show bad faith) is there evidence of impropriety. The fourth factor is the one that sinks most suits: if your case is waiting in a line USCIS works through in a published order, a court will be reluctant to move you ahead of others who have waited just as long.
What happened when we sued? Four cases from our practice
These are real cases from our office, with the details changed so that no client, including the client in the story, could recognize the case. Each one teaches something that a list of legal factors does not.
The decision that did not solve the case. We sued to get a long-stalled marriage-based petition decided. Within a few months the government’s lawyer had the local USCIS office schedule the interview, and the petition was approved. It was exactly the result the lawsuit asked for, and it did not end the client’s problem: his real path to a green card ran through immigration court, where we later won a different form of relief. The suit got a decision. Whether that decision gets you where you are going is a separate question, and it should be answered before anyone files.
The suit that produced denials. We sued on behalf of a sponsor whose humanitarian parole requests for family members had sat for a long time. USCIS decided them within the period it had to answer the complaint, and most were denied because required background checks were not complete. The lawsuit forced the decision the agency was ready to make that week. The lesson we took from it: before suing, identify every step the agency still owes (background checks, a required interview, a pending request for evidence) and make sure the complaint, and the client, are ready for the decision that comes when those steps are rushed.
The suit that surfaced a problem. We sued over a visa application that had been held in “administrative processing” at a U.S. consulate for a long time. In response, the government’s lawyer disclosed that the consulate had made a fraud finding, and the petition was sent back to USCIS for possible revocation. The family learned something it needed to know, sooner than it would have otherwise, but not the news it wanted. A lawsuit invites the government to look closely at the file. If there is something in the file, assume it will be found.
The suit that never needed a ruling. We have served as Montana local counsel, with out-of-state counsel admitted for the case, in an investor-program case filed in federal court in Montana because the project’s principals were here. It was resolved within weeks, without a court ruling, in the way the client wanted. Many delay suits end that way: the agency decides the matter, and the case is dismissed.
Results in any case depend on its own facts. What these four have in common is the point of this page: a lawsuit changes when the government decides, and sometimes how closely it looks, but not what the law allows it to decide.
Which immigration delays can be sued on?
The answer depends on the form, on whether the delay is a pause the law allows, and on where you live. A summary by form:
Marriage and family petitions (Form I-130)
The most common and usually the strongest vehicle. USCIS has a clear duty to decide the petition, and a long-stalled I-130 that is not waiting on a visa number is the classic delay suit. Preference-category petitions are different: USCIS openly prioritizes petitions for which a visa is currently available, which gives it a ready “rule of reason” answer.
Green card applications (Form I-485)
Possible in some places and close to closed in others. Several federal appeals courts, including the Eighth Circuit, which covers North Dakota, have held that a federal statute (8 U.S.C. § 1252(a)(2)(B)(ii)) takes away the courts’ power to review USCIS’s decision to hold an I-485 while visas are unavailable. See the circuit section below before relying on an I-485 suit.
Naturalization (Form N-400)
Two different situations. If USCIS has not yet interviewed you, a delay suit under the APA and the Mandamus Act is the route. If you have been interviewed and 120 days have passed without a decision, you do not need mandamus at all: a separate statute lets the federal court take over the case or send it back with instructions (8 U.S.C. § 1447(b)). Our page on going to federal court 120 days after the naturalization interview explains that route in full, including how the government’s lawyer usually handles it.
Work permits (Form I-765)
Possible but rarely worth it unless the delay is long and the harm is concrete, such as a lost job; by the time a suit is served, many work-permit cases have been decided. Our page on work permits and who can get one covers the application itself.
Asylum interviews (Form I-589)
Historically the most common mandamus filing in the country. Since July 28, 2026, also the one that most needs a status check before anyone sues. See the asylum section below.
Family of refugees and asylees (Form I-730)
Delay suits are filed over I-730s, with mixed results, and the delay is often at a consulate abroad rather than at USCIS, which changes who the defendant is. We have not filed one; our page on Form I-730 follow-to-join petitions explains the process.
Visa applications held at a consulate (221(g) “administrative processing”)
Unsettled. In the Ninth Circuit, an older decision allows a suit to compel a consulate to finish a visa application it has left undecided (Patel v. Reno, 134 F.3d 929, 931–32 (9th Cir. 1997), amended (1998)). In that case the consulate admitted it was holding the applications. Other courts, including the D.C. Circuit in an unpublished 2024 judgment, treat a 221(g) refusal as a final decision that leaves nothing to compel (Karimova v. Abate, No. 23-5178 (D.C. Cir. July 24, 2024)). Courts in the Eighth and Tenth Circuits have not settled it. Our page on what a 221(g) refusal means explains administrative processing itself.
Investor petitions (Form I-526 and I-526E)
Mostly a history lesson. In 2023 the D.C. Circuit held that USCIS’s visa-availability approach to EB-5 petitions is a reasonable way to manage the backlog (Da Costa v. Immigration Investor Program Office, 80 F.4th 330 (D.C. Cir. 2023)), and most later EB-5 delay suits, in D.C. and in the courts that followed it, have been dismissed. Our investor immigration guide tells the longer story.
Records requests (FOIA)
A Freedom of Information Act request that is overdue can also go to federal court, under a different statute with its own rules. Start with our page on how to get your USCIS file.
I have waited years for an asylum interview. Should I sue now?
Not before you know which of two groups you are in.
For years, a lawsuit after about five years of waiting was the field’s standard answer, and it often produced an interview. Two things have changed. First, USCIS schedules asylum interviews on two tracks, newest cases first on one and oldest first on the other, and it says it does so to discourage applications filed only to obtain a work permit (USCIS, Affirmative Asylum Interview Scheduling, read October 26, 2026). Federal district courts in California have repeatedly, and in Pennsylvania sometimes, accepted that system as a reasonable rule of reason even after waits of three or four years and more (for example, Kyaw v. Jaddou (N.D. Cal. May 6, 2025) and Aydin v. Zeleke (E.D. Pa. Dec. 5, 2025); district-court decisions are not binding precedent, but they show the trend).
Second, an interim final rule effective July 28, 2026 lets USCIS refer an affirmative asylum application to immigration court without an interview when, before any interview is scheduled, it decides the applicant is not eligible, for example because the application was filed more than a year after arrival (91 FR 47101). The rule applies to pending applications that have not yet been scheduled. It does not apply to applicants who keep another lawful basis to remain in the United States; USCIS says it will continue to interview them. DHS counted 444,724 pending applications (about 31% of a 1,434,145-case backlog) that were filed more than a year after the applicant’s last entry and never scheduled for interview, and said at least that many could be affected. A court challenge was filed in August 2026; as of October 26, 2026 the court had not ruled, and the rule is in effect (Immigration Equality v. Mullin, D.D.C.).
So the two groups are these. If you have another lawful status (a current work visa, for example) and a strong, timely claim, a delay suit still asks for something USCIS has said it will do: interview you. If you have no other lawful status, especially if you filed more than a year after arriving, a lawsuit that pushes your file to the top of an officer’s desk may produce a Notice to Appear in immigration court instead of an interview. That may still be the right move for some people, because immigration court is where a strong case is ultimately heard, but it should be a choice made with eyes open. Our asylum application guide covers the claim itself.
I’m in removal proceedings and my spouse’s I-130 is stuck. Does a lawsuit help?
It can still help, but for a different reason than it used to.
The old pattern was: sue to get the I-130 approved, then ask the immigration judge to take the case off the calendar (“administrative closure”) while the spouse applied for a provisional unlawful presence waiver (Form I-601A). That second step has nearly disappeared. As of October 2026, administrative closure is close to unavailable in practice: on June 22, 2026 a federal court in Texas, at the government’s own request, vacated the 2024 rule that expressly allowed it; the Fifth Circuit refused to stay that judgment on September 29, 2026; and a request to the Supreme Court for a stay (City of Baltimore v. Texas, No. 26A500) was denied on October 27, 2026, so the judgment stays in effect while the Fifth Circuit appeal goes on. Whether judges keep any closure authority under older regulations and decisions is disputed. Even before the Texas judgment, the Board refused to keep a case closed based only on a planned I-601A, and the Ninth Circuit upheld a denial of closure where the I-212 and I-601A could be pursued after a final order (Matter of Medina Madrid, 29 I&N Dec. 514 (BIA 2026); Ruiz v. Bondi, 163 F.4th 586 (9th Cir. 2025)). Our pages on the I-601A provisional waiver and marriage during removal proceedings explain where that leaves a couple today.
What has not changed is that an approved I-130 is the foundation of every remaining route: adjustment before the immigration judge for a spouse who was admitted or paroled, the I-212 and I-601A sequence after a final order, or consular processing. That is why I-130 delay suits keep their value for people in proceedings. Two cautions. A federal delay suit does not pause the removal case, and it does not protect anyone from arrest or detention; the Fourth Circuit (whose decisions do not bind courts in our states) ruled in August 2026 that the provisional-waiver rules do not shield people with final removal orders from arrest or removal while a waiver is pending (Sanchez v. Mullin, No. 24-1487 (4th Cir. Aug. 14, 2026)). And the immigration court calendar will not wait for the federal court.
Does it matter whether I live in Montana, North Dakota, or Wyoming, Utah or Colorado?
Yes. You will usually sue in the federal district where you live (28 U.S.C. § 1391(e)(1)(C)), and that court follows its own federal court of appeals. Our clients live in three circuits, and they do not agree.
North Dakota (Eighth Circuit). The Eighth Circuit held that the courts lack power to review USCIS’s decision to hold I-485 green card applications while visas are unavailable (Thigulla v. Jaddou, 94 F.4th 770 (8th Cir. 2024)). The Third, Fourth, Fifth and Eleventh Circuits have reached the same result (Kale v. Alfonso-Royals, 139 F.4th 329 (4th Cir. 2025), collects them). Those cases involved visa-retrogression holds, and they do not decide the I-130, an N-400 before interview, or a work permit. For a North Dakota client with a stalled I-485, the better vehicle, if there is one, is usually a different form.
Montana and Idaho (Ninth Circuit). The Ninth Circuit has not decided the I-485 question, and federal courts in California have split on it. The circuit applies the TRAC factors and measures unreasonable delay in years (A Community Voice, above). As of October 2026 we found no published District of Montana decision on a delay suit over a USCIS benefit, so a Montana judge will be working from Ninth Circuit principles and from decisions in other districts.
Wyoming, Utah and Colorado (Tenth Circuit). The Tenth Circuit has not decided the I-485 question either. It does have an unusually strong rule once a delay is found unreasonable: “once a court deems agency delay unreasonable, it must compel agency action” (Forest Guardians v. Babbitt, 174 F.3d 1178, 1191 (10th Cir. 1999)). Other circuits leave the court discretion to refuse relief even then. The District of Colorado has decided a handful of immigration delay suits in 2025 and 2026, with mixed results; we found none from Wyoming or Utah.
What happens after the lawsuit is filed?
The complaint names the officials responsible for the case, usually the USCIS Director and the head of the office holding the file, and is served on them, on the U.S. Attorney for the district, and on the Attorney General. The government then has 60 days to respond (Federal Rule of Civil Procedure 12(a)(2)). In that window an Assistant U.S. Attorney contacts the agency, and in many cases the agency schedules the interview or decides the case. The suit then ends by agreement. Where the government thinks the delay is defensible, it files a motion to dismiss, and the case becomes real litigation, with briefing and a ruling. Our naturalization 120-day page describes the government lawyer’s role in more detail.
What does a delay lawsuit cost, and can I get my fees back?
The court’s fee. Filing a civil case in federal district court costs $405 as of October 2026: the $350 statutory fee (28 U.S.C. § 1914(a)) plus a $55 administrative fee (Judicial Conference fee schedule, effective December 1, 2023).
Our fee. We charge a flat fee, paid in advance, for preparing, filing and serving the complaint and for the routine follow-up when the government responds by deciding the case and the suit is dismissed. If the government instead contests the suit with a motion to dismiss or for summary judgment, that stage is quoted separately, because how much work it takes depends on what the government argues.
Getting fees back. The Equal Access to Justice Act lets a “prevailing party” recover attorney’s fees from the government when the government’s position was not substantially justified (28 U.S.C. § 2412(d)). The catch is that most delay suits end because the agency acts on its own, and the Supreme Court has held that a lawsuit that merely prompts the defendant to change course (the “catalyst” theory) does not make the plaintiff a prevailing party (Buckhannon Board & Care Home v. West Virginia DHHR, 532 U.S. 598, 610 (2001)). In the Ninth Circuit, a court order that adopts the parties’ agreement can carry enough judicial approval to qualify (Carbonell v. INS, 429 F.3d 894 (9th Cir. 2005)), but fee recovery is the exception in delay cases, not something to plan on.
What should I try before suing?
Three things, in roughly this order, and keep a dated copy of every one.
- A USCIS case inquiry. Once your case is outside the posted processing time, USCIS’s online “case outside normal processing time” inquiry is the first formal step. If there is a real emergency, an expedite request is a separate route with its own criteria.
- A congressional inquiry. Your U.S. Representative’s or Senator’s caseworkers can ask USCIS about your case, and they often get answers individuals cannot. Our page on congressional inquiries for immigration cases explains how to ask.
- The CIS Ombudsman. The Office of the Citizenship and Immigration Services Ombudsman accepts case assistance requests when the normal channels have failed.
These steps matter for more than their own chance of working. A record showing that you asked, repeatedly and through proper channels, and got no answer is evidence for the TRAC factors and for the harm the delay is causing you. A lawsuit filed without that record looks premature.
What can go wrong if I sue USCIS?
- A denial. The agency decides the case and says no, and for many benefits there is no appeal, only a new filing or a different federal lawsuit challenging the denial itself.
- A closer look at the file. A lawsuit puts your file on someone’s desk. Old problems (a prior visa refusal, a misstatement, a criminal record) will be seen.
- Referral to immigration court. For asylum applicants without other lawful status, the July 2026 rule makes this a real outcome, as explained above.
- No protection from enforcement. A pending delay suit does not stop a removal case, a detention or a deportation.
- A dismissal. If the court finds the delay reasonable, or finds it lacks power to review it, you have spent the filing fee and the legal fee and are back in line.
What does our federal-court work look like?
We are a small immigration firm with a growing federal-court practice, not an experienced federal litigation outfit, and we would rather you know that than learn it later. We have filed mandamus and APA actions in federal district court, including the cases described above. We have also taken an APA challenge to a denial through summary judgment, and lost. Delay suits on asylum interviews are the most common kind of mandamus in the country; we have not filed one ourselves, and this page describes them from the case law, not from our own cases. When a case calls for federal court, we tell you what the court can and cannot do before you pay anything, and we tell you when the better move is something other than a lawsuit. Our federal court overview shows the other kinds of federal cases and where each is covered on this site.
If your case is well past the posted processing time and the usual inquiries have not moved it, bring your receipt notice, every inquiry and response you have, and a short timeline to a strategy consultation. The first question we will answer is not whether you can sue, but whether a decision now will get you where you are trying to go. Contact us to arrange one.
