Best Times To Wait To Sue The Government

How long do I wait before I sue?

Unfortunately, there is no black and white answer for this question. The truth is that it’s different for everyone because everyone has different circumstances.

Scenario 1:

For example, a 6 month delay on advance parole may be unreasonable for someone with no current non-immigrant visa and a job that requires significant international travel.

Scenario 2:

A 6 month delay for work authorization for someone with a current H1B and a timely EAD renewal pending (and its 540-day auto-extension) may be reasonable.

The longer you wait, the stronger your delay case will be. The shorter you wait, the less likely you will get a quick settlement.

That said, the timelines below are guidelines (that do not take into account emergencies)

H4/H4 EAD – 4 months

The regulatory history of H4 EADs indicate the agency planned on approving these within 6 months. If you file at 4 months, your application will have been pending for 6 months by the time the government is required to answer your complaint. (waiting time of 4 months + 60 days the government has to respond to your complaint)

It’s your first H4 EAD and you have a job offer

If it’s your first H4 EAD and you have a job offer, we believe you can sue at 4 months.

It’s you are renewing, but still have work authorization

If you’re renewing, but still have work authorization, you will want to wait until 3 months prior to your work authorization expiring. The distress attributable to a lapse in work authorization render longer delays very harmful. Thus, if you file 90 days out, it gives you plenty of time to work with the government to get a decision before any lapse.

Combo Card (EAD/AP) – 6 months

The regulatory history of “interim benefits” is very strong that these cards should be issued at 6 months. Assuming you have work and travel through a non-immigrant visa, we would urge you to wait until at least 6 months. At that point, we think you’ll have a significant chance to resolve your case.

While it’s up to you if you want to file earlier, should the government fight, it will file a motion to dismiss which will diminish their appetite to settle. This could potentially push your wait time well beyond 6 months while the court makes their decision.

AP – 3 months

The analysis for approving an Advanced Parole associated with a pending Form I-485 is incredibly easy. If your I-485 is filed, you should get AP. You can only file an AP 4 months early. So if you wait 90 days, it gives the government 30 days to approve.

After 30 days, you will be able to tell the government that you do not have travel authorization. We believe that will help settle your case.

FOIA – 30 days

There is no benefit for waiting longer than 30 days to sue on a Freedom Of Information Act request. The government only has 30 days to answer a FOIA complaint. Assuming you limit your FOIA request, at 30 days, the agency is highly likely to either produce the documents or give you a certain timeline for producing the documents.

AOS – 18 months

Adjustment of status is a tough benefit to get expedited because, under the law, they provide interim benefits (work/travel) while it is pending. But as we know, retrogression is an ever present concern.

We see AOS delay suits work in the fourth quarter of the fiscal year, which starts in July. If you’ve waited 18 months, we would urge you to file these suits in June.

Keep in mind there is a lot of case law that says 18 months is a reasonable amount of time to wait, but we see a lot of settlements in individual suits for AOS each summer.

PLEASE REMEMBER, THESE ARE GUIDELINES

If you have an emergency or special circumstances, you may want to wait longer or file early. Either way, we at Pro se Pro will be here to point you in the right direction every step of the way.

Best TimeToWait.ts to serve your complaint