1000s of F-1 international students are facing extreme delays in getting their OPT issued. The problems are coming up at the initial lockbox stage where people are not getting receipts for months after filing (instead of the normal two to three weeks) and at USCIS service centers where the I-765 forms are adjudicated.

These delays are causing real problems for F-1s. People are having job offers pulled. People are not earning needed income. They are not getting the experience they came to the US to get. And employers are losing out, obviously, when they aren’t getting the OPT applicant’s services as they were expecting.

One way to address this massive failure on USCIS’ part is to litigate and seek a court order to adjudicate an application for employment authorization. And that’s why my firm, along with Kuck Baxter in Atlanta and Joseph & Hall in Denver are planning to file a mass mandamus action to force USCIS to speed things up.

The type of lawsuit that is filed for an unreasonable delay in adjudicating an immigration benefit is called a mandamus action. It’s a request for a judge to order an agency to act in a reasonable timeframe. Filing a mandamus doesn’t make your case go faster than it normally would. It’s just intended to make the agency adjudicate in a normal timeframe. The normal period to issue receipts is about two to three weeks and the historical normal time to adjudicate an I-765 is about 60 to 100 days. We’re now looking at potentially many months longer than 100 days. H-4 EADs are now taking upwards of eight months so we don’t like where OPT is now headed. We believe these long waits are intolerable and we want a judge to order USCIS to get our plaintiffs’ cases moving.

One of the most common reasons people decide not to sue is because of a fear of retaliation on the part of USCIS if they participate in a lawsuit. Happily, this is not something that has been a problem in the 30+ years I’ve been practicing either for my clients or for those of other law firms. First, it would be illegal for USCIS officers to engage in that type of behavior. Second, and more importantly, suing sends the signal that you are going to stand up for your rights and that you are not afraid to resort to the courts if USCIS officers don’t do their jobs. That tends to lead to being treated even more respectfully by USCIS officers. In short, retaliation is NOT something that should concern you.

If a judge rules and says USCIS has been unreasonable, wouldn’t that help everyone and mean you don’t need to participate? While we can’t make guarantees, we are hopeful this litigation will help everyone. However, those people who are named plaintiffs will have their cases handled first. That’s the way it works in mass and class actions.

Over the last year, our three firms have co-counseled on several mass mandamus actions and we have gotten positive results in each case. It can sometimes take a few weeks before things get moving (especially if the government lawyers try delaying tactics), but in this case, we think we have a good claim to make for an emergency order from the judge which would result in faster adjudicating than if nothing is filed.

As for our firm and our co-counsel firms, our team is led by some of the best-known immigration lawyers in the country – not just by the general public and news media, but by immigration lawyers across the country. Chuck Kuck is a former president of the American Immigration Lawyers Association (AILA). Jeff Joseph will rotate into the position of president of AILA soon. I’m known for the many books I write on immigration law and for serving on the board of AILA as well as pioneering the use of technology in the immigration law field.  Our firms are all sizeable compared to most other immigration firms and that means we’re able to put the kind of manpower needed to manage cases with hundreds of plaintiffs. And the agencies we sue certainly know us, particularly after the string of recent successful cases where we’ve teamed up.

It’s unfortunate that litigation has had to be the solution so many have turned to as the immigration system has broken down in recent years. But, alas, that is the reality in 2021 even with a President who says the right things about immigration.


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