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Companies across the nation are discovering that the federal courts can be used to jump-start their employees’ visa applications, stuck in bureaucratic limbo at the U.S. Citizenship and Immigration Services Agency. The immigration agency’s policy of conducting exhaustive background checks to ensure national security-coupled with a complex and shifting maze of administrative rules-significantly delays some work visa petitions, attorneys say. The delays and uncertainty hurt companies that rely on foreign workers with specialized skills and significant relationships with the company’s customers, prompting them to strike back through the court system. While relatively common in the Los Angeles area for the past several years, writ of mandamus complaints filed by companies to compel the immigration agency to process employees’ visa applications are springing up in other jurisdictions. Businesses testing the method include technology research and development company Tiax LLC in Cambridge, Mass.; Gemini Realty Inc. in Winter Park, Fla.; and construction material testing and engineering company Summit Testing & Inspection Co. in Akron, Ohio. Summit’s lawyer, Farhad Sethna, a solo practitioner in Akron, said he’s filed only a handful of mandamus cases, but wouldn’t hesitate to recommend them to future clients. “It is something that’s becoming more and more necessary to do,” Sethna said. “At a certain point you come across a brick wall.” Summit President John Malivuk said that the employee at issue, a geologist who has worked at the company first on a student visa and later on a professional visa, has key relationships with customers and would have been difficult for the 20-employee company to replace. Summit Testing & Inspection Co. v. Chertoff, No. 06-01296 (N.D. Ohio). Tiax LLC, which filed its case on behalf of an Indian mechanical engineer employed at the company, declined to comment. Tiax LLC v. Chertoff, No. 06-11401 (D. Mass.). Lawyers for Gemini, which wants to hire a Colombian native as public relations manager, did not return calls for comment. Gemini Reality v. Gonzalez, No. 06-00786 (M.D. Fla.). In California, many immigration attorneys consider mandamus cases filed by companies to be business as usual in an immigration process strewn with roadblocks and hurdles. The immigration agency is tightening requirements and changing definitions under immigration statutes, said Robert Dupont of Wilner and O’Reilly of Beverly Hills, Calif. Dupont estimated that he represents companies in about 10% of his mandamus cases. “We use the federal courts to try and keep them honest,” Dupont said. “We have found that for people trying to get [a professional] visa as an accountant, [for example] they try [to classify them as] a bookkeeper. They find ways to twist language or facts.” Cutting the backlog Chris Bentley, a spokesman for the immigration service, said that most mandamus cases brought against the agency stem from delays in background checks. “There are complications that arise, especially when it’s a common name,” Bentley said. The immigration agency is close to having a standard turnaround time of six months for all types of applications, including work visas, Bentley said. The agency expects quicker action on future cases because it has slashed a backlog of 3.8 million citizenship cases to fewer than 200,000 with a goal of zero backlog by Oct. 1. Although most background checks are processed quickly, investigating applicants with common names can be tricky and some cases simply take more time, Bentley said. “Our commitment is to work cases as quickly as possible without compromising national security,” Bentley said. Oakland, Calif.-based lawyer Kari Elisabeth Hong recently helped labor contractor Global Horizons Inc. with a case involving 329 delayed visa applications. Global Horizons Inc. v. Chertoff, No. 06-2495 (C.D. Calif.). In its April complaint, the Los Angeles-based Global Horizons claimed to have lost $2 million because of the government’s delay in processing applications for temporary alien agricultural workers. Although Hong had never used the mandamus method before, the company’s crop deadlines and awareness of other mandamus cases prompted the filing. Most petitions were favorably processed, and Global Horizons dismissed the case earlier this month.

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