Desperation drove Chao Li to sue the U.S. government this fall. For more than two years, the Chinese doctor had been waiting to become a legal permanent resident of the United States. Until he got his green card, he could not apply for grants — vital to his career as a researcher at the University of Oklahoma Health Sciences Center. Changing jobs was out of the question under terms of his employment-based visa.
Every time Li called to check on the delay, U.S. Citizenship and Immigration Services officials said they were waiting for an FBI name check. "I was so desperate. I had no idea what to do," Li said. The Internet provided the answer. On Web sites run by and for immigrants, Li learned how to file a lawsuit that might expedite his application. He downloaded a form, and in the space above the word "defendant," he carefully printed "Michael Chertoff," secretary of the U.S. Department of Homeland Security. Li filed the suit Sept. 29. A month later, he had his green card. Faced with long waits caused by a backlog of applications, more and more immigrants are following Li's path, using the courts to nudge U.S. Citizenship and Immigration Services, a unit of Homeland Security, to process stalled requests. In U.S. District Court for the Western District of Oklahoma alone, at least 30 cases against Chertoff were filed in 2006, including Li's, court records show. Such lawsuits seek what is called a "writ of mandamus" — a court order requiring a government agency or official to perform a duty, in this case, to process an application. The order does not require a favorable outcome for the immigrant — only that he gets an answer one way or the other. T. Douglas Stump, a national board member for the American Immigration Lawyers Association, has filed 18 such cases in Oklahoma, mostly for highly skilled medical researchers. "Every case to date has resulted in action: Either they've been granted green cards or naturalization," Stump said. Background checks U.S. Citizenship and Immigration Services are blamed for delays in processing immigration applications. But local immigration lawyers say the fault usually is with the FBI, which conducts security checks on every would-be immigrant to weed out criminals, drug traffickers and people with links to terrorism. The requirement, introduced after Sept. 11, 2001, nearly doubled the number of names immigration officials submitted annually and created a huge backlog at the FBI. "The sudden need for data overloaded the system years ago. We're still dealing with the result," Stump said. In May, immigration officials reported 235,802 FBI name checks pending. Sixty-five percent of those had been pending for 90 days or more, and 35 percent had been pending for a year or more, the report said. The initial check takes about two weeks, and 80 percent of cases are cleared in that time, according to immigration service documents. Most others are resolved within six months. But in less than 1 percent of cases, it takes the agency six months or longer to determine whether the immigration applicant is a threat to the country, the agency says. "Unfortunately, if you're in that 1 percent ... odds are it could be two to three years," Stump said.