In the event of an undue processing delay, applicants can follow-up with the IRCC in several ways before requesting an Order of Mandamus from Federal Court.
People who want to study, work or immigrate to Canada must submit a complete and accurate application package to Immigration, Refugee and Citizenship Canada (IRCC). Sometimes though, even when the applicant has done this, the processing period can drag on for months or even years.
In the event of an undue processing delay, and as a last resort, one can request an Order of Mandamus from Federal Court to compel the IRCC to decide the case. Before doing so though, the applicant must exhaust all other options of following up with IRCC after the expected processing time has passed.
Follow-up Options
Applicants have a few options for following up on their application:
- For applications submitted after 2010, file an ATIP (Access to Information and Privacy) application requesting their GCMS (Global Case Management System) notes. If the application was submitted before 2010, the applicant can request their CAIPS (Computer Assisted Immigration Processing System) or FOSS (Field Operations Support System) notes, along with GCMS records. (GCMS replaced both CAIPS and FOSS around 2010.) Due to COVID-19, if the ATIP application was submitted by paper outside Canada, it can take six to twelve months to process it in some countries. The GCMS notes may give you an idea if anything is wrong. If the IRCC officer has noted concerns or doubts, take this opportunity to submit additional evidence addressing those doubts, especially if the immigration application is in its early stages of processing.
- File one or more webform inquiries or call the IRCC customer center to see if the IRCC can provide a substantive response.
- If inquiries to the IRCC do not work, try asking the local Member of Parliament to file a status update request. This is normally an unpaid service.
- If the applicant submitted their application by themselves and completed the above actions, ask a lawyer to submit a formal request letter via the IRCC webform.
Applicants and their lawyers are not required by law to complete all the above actions. But if they have exhausted all attempts to get information from the IRCC, they have a better case for a mandamus application.
In practice, many applicants regularly ask the IRCC for updates about the status of their application. But unfortunately, some applicants may be asking for information outside of what the IRCC can provide. For example, some applicants have used the IRCC inquiry form to ask whether they can leave Canada while waiting for their Open Work Permit. This question is asking for legal advice instead of following up on their application status. A better inquiry would be: “I am writing to you to follow up whether my application is complete and whether I need to provide additional documents.” The applicant can submit any number of inquiries, but they should focus only on asking for information the IRCC can provide.
If an applicant still cannot get any substantive update regarding their application status, they can consider other options. For example, asking a local Member of Parliament to file a status update request or hiring a lawyer to send a formal request. Regardless of what method the applicant adopts, they must remember to write politely instead of blaming the IRCC for the delay.
Applying for an Order of Mandamus
If the average processing time the IRCC posted has passed and the efforts described above were unsuccessful, then the last resort is to apply for an Order of Mandamus. The Federal Court hears requests for these orders, which compel the IRCC to make a decision about the application. The applicant might think about hiring a lawyer to help them.
Before applying to court though, the applicant and their lawyer should consider three basic questions:
- Is the application complete?
- Have they exhausted all other options to follow up with the IRCC?
- Has there been an unreasonable delay in the processing time?
If the application is not complete, this will cause delays. Hence the suggestion for confirming with the IRCC in an inquiry whether the application is complete. If the IRCC asks the applicant to submit additional documents during the processing, this will extend the processing time. If the IRCC replies that the client’s application is complete and still in processing, the applicant can move to the next step in following up.
Regarding the second question, a formal lawyer request letter is often a good choice before applying for an Order of Mandamus. Unlike a demand letter, a formal lawyer request letter not only emphasizes how much the processing time has exceeded the average processing time, but also the applicant’s efforts to follow up with the IRCC. More importantly, this letter focuses more on how the delay has negatively impacted the applicant.
In Canada, the threshold for an Order of Mandamus is high. There are eight conditions that should be satisfied to warrant an Order of Mandamus, as per the 1994 Federal Court of Appeal case of Apotex v. Canada . And one of the conditions is “balance of convenience”.
One example of balance of convenience that may be in favour of an applicant who is already in Canada is the applicant not being able to renew their driver’s license unless they provide the registry office with a valid work permit rather than a document showing the client has “maintained status” . Another example is that the applicant’s health card will likely not be renewed until the applicant presents an unexpired study permit or work permit. If the applicant has good evidence to show the balance of convenience favours them, the lawyer’s letter will be more convincing.
Regarding the third question, in 2021 the Federal Court held in Ghufran Almuhtadi v Canada that a delay may be unreasonable if the following three criteria are met:
- the delay in question is prima facie (at first glance) longer than the nature of the process required
- the applicants are not responsible for the delay, and
- the authority responsible for the delay has not provided satisfactory justification.
Patience is Key
In conclusion, no matter how confident an applicant and their lawyer are, going to court is a stressful process that takes time and money. If the applicant is waiting double or triple the average processing time – which starts the day the IRCC receives your complete application and ends when the IRCC decides on it – it may be worth going to court. But usually, I encourage applicants to be patient and try all efforts to work with the IRCC to process their application and come to a decision quickly.
Looking for more information?
- The Charter of Rights and Freedoms and Migrant Farm Workers
by John Cooper
(Video) Don & Hazel's Pinoy Visa Update on the Accredited Employer Work Visa (AEWV) - Inadmissibility and Deportation of Permanent Residents in Canada
by Myrna El Fakhry Tuttle
- What To Do If Your Visa or Immigration Application is Delayed
by Babajide Kupoluyi
Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
Looking for articles like this one to be delivered right to your inbox?
FAQs
Why visa application is delayed? ›
Delays are usually caused by additional security and background clearances due to your citizenship, ties to specific countries, or field of study. These additional clearance checks may take several weeks to several months to process. There is no way to circumvent or expedite this process.
How can I speed up my immigration application? ›You can generally request expedited processing by calling the USCIS Contact Center at 800-375-5283 (TTY 800-767-1833) or by asking Emma after you have obtained a receipt notice. (You can access Emma by clicking on the Ask Emma icon on the top right of this page).
How can I check my visa application status? ›Track an application
Check whether this service is available at the Visa Application Centre you are visiting. You can also track your visa application status online. Use the Reference Number present on the invoice/receipt issued by the Visa Application Centre along with your last name to access this service.
One of the reasons processing times are so high is because Canada is processing record-high quantities of applications across many different categories. In 2022, IRCC aims to admit the highest number of new permanent residents on record — 431,000.
How long should I wait for a visa application? ›If a visa application is approved during a visa interview, the average processing time is 7-10 working days.
Why is US visa processing so slow? ›Many of our embassies and consulates continue to face staffing challenges that began during the pandemic. This means that ongoing visa delays are a worldwide problem, not one specific to India. But very few US missions in the world share the same volume and complexity of visa workload as India.
Which immigration office is the fastest? ›- If you are a green card holder for 3-5 years;
- If you have served in the U.S. military.
Among all field centers, the fastest one is usually the Nebraska Center, but the wait times change all the time, and it perhaps will not be the fastest one when you make your application.
Can a lawyer speed up my immigration case? ›Immigration attorneys can help speed up your immigration case in a few different ways. The most obvious is by using their knowledge and experience to make the process go more smoothly and easily.
How do I know if my visa is not approved? ›You can check your visa status with Visa Entitlement Verification Online (VEVO).
Why I cant check my visa status? ›
US Visa Status – No Status
The reason for this is that they take some time to review the documents and update the case status online. There is a few days delay. Some users have reported that it took them up to 10 days.
- apply online from outside Canada.
- submit a complete application, which includes. a medical exam (if needed) ...
- submit your biometrics results within 2 weeks of submitting your application (if needed)
In the event of an undue processing delay, and as a last resort, one can request an Order of Mandamus from Federal Court to compel the IRCC to decide the case. Before doing so though, the applicant must exhaust all other options of following up with IRCC after the expected processing time has passed.
Why is my Canada visa delayed? ›Things that can cause delays: Your medical and security screening takes longer than usual. We need to interview you. You communicate with us by mail instead of using an online account.
How long are visas taking right now? ›| Visa Type | Processing Time |
|---|---|
| B-1 visa | A couple of weeks to 2 months |
| B-2 visa | A couple of weeks to 2 months |
| H-1B visa | 3 to 6 months |
| H-1B1 visa | 4 to 6 months |
Issues such as missing signatures, or areas that haven't been filled out, are guaranteed to stall the process. If you submit copies of paperwork and documentation that are blurry or difficult to read, you may be asked to resubmit them. The same goes for photos.
How long is the wait for immigrant visa? ›It can take USCIS several months to process a green card petition. It can then take 1-2 months for an immigrant visa application to be transferred from USCIS to the NVC, with an additional 2-3 months for NVC to deal with its portion, although timelines can vary by case.
What is the fastest US visa to get? ›The US student visa (F-1 visa) is one of the fastest visas to process. In fact, the study permit is often processed directly before your embassy interview.
What is the average wait time for US visa appointment? ›The current wait-time at Indian consulates for the B1/B2 visas (Interview Required Visitors) are: New Delhi: 596 days. Chennai: 625 days. Mumbai: 638 days.
Which state is easiest to get green card? ›- 8 — Washington.
- 7 — District of Columbia.
- 6 — Georgia.
- 5 — Maryland.
- 4 — New Jersey.
- 3 — New York.
- 2 — Illinois.
- 1 — California.
Which state is easy to get US citizenship? ›
The top 3 best overall metro areas for immigrants to become U.S. citizens are Cleveland, Ohio; Riverside, California; and Louisville, Kentucky. The worst 3 metro areas for immigrants to become U.S. citizens are all in Texas: Austin, Houston, and Dallas.
What is USCIS doing to improve processing times? ›Effective through December 2023, the State Department will also waive the requirement for new, in-person interviews for certain green-card applicants, students, exchange visitors, and high-skilled immigrants. The current administration is also taking steps to ensure the USCIS is properly funded.
Can I walk in to USCIS office? ›USCIS field offices do not allow walk-ins. You must have an appointment to visit an office. Field offices in the U.S. and its territories provide: Interviews for all non-asylum cases (for example, getting a Green Card);
How do I know which USCIS is handling my case? ›With your receipt number, you can check the status of your case on www. uscis.gov and also register on our Web site for automatic case status updates while we process your case. Processing Times: Applications are processed by visa preference category in the order they are received.
How much does a US immigration lawyer cost? ›Hourly rate — Immigration lawyers usually charge $100 to $600 per hour. It usually comes with consultation or immigration court proceedings, for example: removal proceedings.
How can I force immigration to make a decision? ›If a U.S. Consulate or the USCIS have delayed your Green Card or Citizenship case for an unreasonable time, you can file a Writ of Mandamus in Federal District Court to force the U.S. Government to make a final decision.
Can you pay to speed up your immigration process? ›Premium Processing
Premium processing provides expedited processing for Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. Premium processing guarantees processing within 15 calendar days, or the premium processing fee will be refunded.
Call the USCIS Contact Center: 1-800-375-5283. If you're deaf, hard of hearing or have a speech impairment, call TTY 1-800-767-1833. Information you'll need: Your USCIS Receipt Number.
Will I be notified if my visa is refused? ›If denied a visa, in most cases the applicant is notified of the section of law which applies. Visa applicants are also advised by the consular officer if they may apply for a waiver of their ineligibility. Several of the most common reasons for visa ineligibilities are explained below.
What can make a visa to be denied? ›- Not Following the Visa Guidelines.
- Wrong Visa Category.
- Providing Incorrect or Insufficient Information.
- Mistakes in Documents.
- Fake Documents.
- Failure to Meet Financial Requirements.
- Insufficient Ties with the Home Country.
- Visa Interview.
How long can an Embassy hold your passport? ›
If the passport is not collected within 14 calendar days from the selected location, the passport will be sent back to the respective Embassy or Consulate and you can pick it from there.
How long does administrative processing take? ›According to the U.S. Department of State, most administrative processing cases conclude 60 days or less after the visa interview.
Why are visas backlogged? ›An NVC backlog is the result of many new cases, and not enough being processed. Each time U.S. Citizenship and Immigration Services (USCIS) approves a case, such as Form I-130 (Petition for Alien Relative), this increases the backlog.
Will USCIS speed up in 2023? ›As cycle times improve, processing times will follow, and applicants and petitioners will receive decisions on their cases more quickly. USCIS will increase capacity, improve technology, and expand staffing to achieve these new goals by the end of FY 2023.
How long does a U.S. immigration visa take? ›Although visa processing time is typically Five working days, processing time for specific cases may vary due to individual circumstances and other special requirements.
How many immigration cases are backlogged? ›ASIDE FROM SHIFTING BORDER POLICY, there's another ongoing problem within the federal agencies that adjudicate immigration proceedings: a growing backlog of more than 11 million cases across the Department of Justice and the Department of Homeland Security (DHS).
Why I am not getting my visa? ›Your visa may be rejected, if you have provided wrong information in your visa application form. If you have a past history of criminal activities against you. If you apply for a visa without a valid justification on a short notice.
Are Uscis processing times improving? ›Immigration to the U.S. isn't exactly quick and easy, but processing times may be improving in 2023! But before we can talk about what changes the agency will go through to speed things up, it's worth understanding how USCIS processing times grew so long over the last few years.