Yes — and your immigration lawyer keeps the case they built
A mandamus lawsuit is not your immigration case. It is a separate action, filed in a different forum — a United States district court — against a different party: the government officials who have failed to decide your application. You can hire separate counsel for that lawsuit without changing anything about who represents you before USCIS. This page explains how I structure the engagement so that hiring me creates as close to zero friction with your current attorney as the practice of law allows.
Your application before USCIS — the I-485, the I-130, the N-400, whatever it may be — is an administrative proceeding. Your attorney of record there filed a Form G-28, built the record, and answers the agency’s requests. A delay lawsuit under 28 U.S.C. § 1361 and the Administrative Procedure Act is something else entirely: a civil action in federal district court asking a judge to order the agency to decide the application it has left sitting. Different forum, different rules, different skill set, different case number.
Because they are different proceedings, nothing in the law requires your current attorney’s permission, participation, or sign-off for you to retain litigation counsel for the federal action. Your attorney remains your attorney. Their G-28 stays exactly where it is. The record they built stays theirs to manage. When the court orders the agency to act — or the agency acts on its own once the complaint lands on its desk — the decision issues in the administrative case your attorney has been handling all along.
Retaining separate counsel for a discrete court proceeding is not an exotic arrangement; it is how litigation ordinarily works. Businesses with excellent transactional lawyers hire trial counsel when a dispute reaches a courtroom. The transactional lawyer is not fired; the trial lawyer does not take over the client’s affairs. The same division of labor applies here, for the same reason: federal court litigation is its own craft.
My engagement is limited in scope, in writing: it covers the federal delay action and nothing else. I do not review your attorney’s work for the purpose of second-guessing it, I do not re-file or “fix” anything in the administrative record, and I do not become your immigration lawyer. I need copies of a handful of documents — receipt notices, any Requests for Evidence and the proof they were answered, and the current posted processing time for your form. Copies, not originals, and not the file: your attorney’s file is their work product and I have no reason to ask for it.
If you want your attorney kept in the loop — and I encourage it — I will copy them on my communications and share the complaint before it is filed. Many attorneys, once they see the arrangement, prefer to stay involved as co-counsel; I maintain a standing framework for exactly that, described on a companion page written for them. Either way, when the federal case ends, my engagement ends with it. You return to being represented by one lawyer: the one you started with.
One more point of reassurance, because clients ask: a mandamus lawsuit is directed at the government’s delay, not at anyone’s work. It does not allege that your application was badly prepared — indeed, the premise of the suit is that the application is ready to be decided. Filing it says nothing critical about your attorney, and courts and USCIS both understand these suits for what they are: a request that an overdue decision finally be made. Whether suing can hurt your underlying case is a fair question with a reassuring answer — I address it separately on Does Mandamus Hurt My Case?
Do I need my current lawyer’s permission? No. The decision to go to federal court over a delay is yours. That said, I offer coordination as a matter of course — most attorneys welcome it, and the companion page below is written to answer their questions directly.
Will my lawyer be offended? In my experience, rarely — and almost never once the scope is clear. Federal court practice requires separate bar admissions and a different toolkit; many excellent immigration practitioners simply do not litigate, just as I do not prepare labor certifications. A delay lawsuit filed by separate counsel is a compliment to no one and an accusation against no one; it is a procedural tool aimed at the agency.
What will it cost? A flat fee, quoted before engagement, covering the action through resolution in the district court. Your fee arrangement with your current attorney is not affected in any way.
What do you need from me? Copies of receipt notices and RFE correspondence, your current address, and a few facts about the delay’s impact. That is usually all.
Write to me at simone@bertollini.com or on WhatsApp with your form type, receipt date, and the current posted processing time. Please do not send documents until I ask for them. I will tell you candidly whether the delay supports a claim — and if it does not yet, I will tell you that too.