The I-140 or I-485 is sitting, and both the company and the employee are paying for it
Employment-based cases have two parties waiting and two sets of consequences: a worker whose life is on hold, and an employer carrying a role it cannot fill or promote. That gives these cases something most immigration delays lack — a second plaintiff with its own documented harm.
Working thresholds, subject to the specifics of the category:
I-140 without premium processing: roughly 6 months or more with no action
I-485 with a current priority date: roughly 12 months of silence
EB-1A or a national interest waiver filed without premium: the same 6-month frame, though these are more often flagged for extended review
Harm is easier to evidence here than in most case types. A start date pushed back, a promotion withheld, a project that cannot be staffed, an H-1B running out of extensions — these are documentable business consequences, and they carry weight.
What a lawsuit cannot fix: visa availability
This is the honest limit and we would rather say it now than after you have paid. If your priority date is not current — if the category is retrogressed and no immigrant visa number is available — a federal court cannot help. No judge can create a visa number that Congress has not made available, and a delay caused by the annual quota is not an agency failing to act.
What a court can do is compel a decision on a case where the agency, not the calendar, is the reason nothing is happening. The first thing we check is which of the two you are dealing with.
Who brings the case
In employment matters the petitioning employer has its own stake in the delay and can be a plaintiff — sometimes alongside the beneficiary, sometimes on its own. That choice is strategic rather than administrative. A company plaintiff can put concrete operational harm in front of the court, while the employee brings the personal consequences. Which combination is strongest depends on the facts, and it is one of the first things we work out.
Common questions
Should we just use premium processing instead of suing?
Where premium processing is available for your form and category, use it — it is faster and cheaper than litigation, and we will say so. Mandamus is for the situations premium does not reach: cases where premium is unavailable, where it was paid and the agency issued a request rather than a decision, or where the I-485 rather than the I-140 is the stalled stage.
Our priority date is not current. Will a lawsuit move the case?
No, and we would not file one. When the category is retrogressed there is no visa number to issue, so there is nothing for a court to compel. The exception is where the I-140 itself is unadjudicated — that petition can and should be decided regardless of visa availability, and it is often worth pursuing on its own so the case is ready when the date becomes current.
Will suing damage our company's standing with USCIS for future petitions?
Petitions are adjudicated on their merits, case by case, and holding an agency to a reasonable timeline is a right rather than an affront. Across our federal filings we have not seen an employer treated adversely on later cases because an earlier delay was litigated.
Can the company file without involving the employee?
Often yes, particularly where the I-140 is the stalled filing and the employer is the petitioner. Whether that is the better route depends on who the delay is legally harming and what evidence each party can put forward. Where the employee has an expiring status or a lapsed work permit, adding them usually strengthens the case — see work permit delays.