EB5 Mandamus: Investor Tool to Fight USCIS Processing Delays

What is a Writ of Mandamus? Stopping Delays by Compelling USCIS to Do Its Job.

A writ of mandamus, also known as a “mandamus action” or lawsuit, is a court order compelling a government official or agency to perform a duty required by law.

In the context of EB-5 visas, a mandamus lawsuit is used to force United States Citizenship and Immigration Services (USCIS) to find and act on a filed EB-5 Investor petition or application that has been pending for an unreasonable amount of time.

USCIS, as part of its immigration services, plays a crucial role in processing these petitions, and your understanding of available legal remedies is essential when experiencing delays.

Understanding the Power of a Mandamus Lawsuit for EB-5 Investors

Uncertain and inconsistent processing times are probably the most significant source of frustration for EB-5 investors. Processing times have noticeably improved since Congress passed the EB-5 Reform and Integrity Act in March 2022 (“RIA”).

In fact, Behring investors have obtained I-526E approval in as little as eight months without the aid of a mandamus action or a personal expedite request.

USCIS does not always process EB-5 petitions and visa applications promptly, often leading to excessive delays. EB-5 investors do have options in the face of delay: the writ of mandamus or mandamus lawsuit and the personal expedite request.

This article will generally explain a mandamus action, its requirements when it can be filed, its likelihood of success, and why it is a valuable tool for EB-5 investors. However, none of this should be construed as legal advice, and you should always consult with your counsel to file any actions.

What are the Requirements to State a Claim for a Mandamus Lawsuit?

To successfully file a mandamus lawsuit, the EB-5 investor must meet the following requirements:

1. Clear Right to Relief: The EB-5 investor must demonstrate a clear legal right to the action they are requesting.
2. Non-Discretionary Duty: The duty the EB-5 investor asks USCIS to perform must be non-discretionary. In other words, it is an action that USCIS must legally undertake.
3. No Other Adequate Remedy: The EB-5 investor must show that no other adequate remedy is available to address USCIS’s unreasonable delay.
4. Demonstrable Harm: The EB-5 investor must demonstrate that the delay is causing significant hardship or harm. This can include financial loss, personal stress, or other adverse consequences.

It is crucial to consult an experienced immigration lawyer when considering a mandamus lawsuit to ensure this last resort suits your circumstances.

What is Considered an Unreasonable Amount of Time? Understanding Unreasonable Delays

Determining what constitutes an unreasonable amount of time depends on several factors, including the standard processing times for the specific type of petition and the case’s individual circumstances.

The courts follow guiding principles to assess if an agency action has been unreasonably delayed, which are known as the TRAC factors (outlined in Telecommunications Research & Action Center v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984)).

These include:

1. the time to act governed by a “rule of reason”;
2. statutory timeframe may supply content for this rule of reason;
3. delays less tolerable when human health and welfare are at stake;
4. the effect of expediting delayed action on agency activities of a higher or competing priority;
5. the nature and extent of the interests prejudiced by delay; and
6. the court need not find any impropriety lurking behind agency delay

Generally, if the processing time significantly exceeds the published USCIS processing times or other similar cases, it may be considered unreasonable.

For EB-5 petitions, unreasonable delays can occur in various stages, such as:

• I-526E Petition: Reasonable processing times can differ between pre-RIA I-526 and post-RIA I-526E petitions. Generally, if the processing time extends beyond 18-24 months without a decision or substantial update from USCIS, it could be grounds for filing a writ of mandamus. The I-526E petition may be possible in situations after 12 months. Also, check to see if USCIS is already processing petitions with later priority dates for the same EB-5 project.
• I-485 Adjustment of Status Application: For investors already in the U.S. on a different visa, the I-485 application adjusts their status to that of a lawful permanent resident. Delays exceeding 12-18 months could be considered unreasonable, especially if USCIS does not adequately explain the delay.
• I-829 Petition: This petition is filed to remove the conditions on the investor’s green card after two years.  Historically, if the I-829 petition is pending for more than 18-24 months, it could justify filing a writ of mandamus, as investors need the conditions removed to secure permanent residency. A mandamus lawsuit for the I-829 might be more successful than one for the I-526E petition or I-485 application because the Immigration and Nationality Act already provides that USCIS is required to process the I-829 petition within 90 days of filing or interview, whichever is later (see INA section 216A(c)(3)). Behring has had an investor successfully obtain their I-829 approval in just under eight months from the date of filing through a mandamus lawsuit.

NOTE: What constitutes unreasonable delay is a complicated issue and can be a strategic consideration by your lawyer as to when it may be appropriate to file a mandamus lawsuit.

This can vary by petition type, even by court. Moreover, these standards can vary over time. If your petition has been pending adjudication for an extended period, you should discuss your specific situation with your lawyer.

Where Can the Mandamus Action Be Filed? What is Jurisdiction?

The mandamus lawsuit is typically filed in the U.S. District Court in Washington D.C., particularly for EB-5 investors who reside outside the United States.

The immigrant investor program office plays a crucial role in the adjudication process of EB-5 cases by USCIS, influencing the speed and outcome of petition adjudications.

In recent years, the U.S. District Court of the District of Columbia has trended away from granting mandamus for EB-5 investors.

EB-5 attorneys and investors have frequently reported that the D.C. District Court is dismissing mandamus lawsuits brought by EB-5 investors because the court views USCIS adjudication times as reasonable because:

1. the delays experienced by many EB-5 investors is consistent with USCIS-posted adjudication times;
2. There is no timeframe for adjudication mandated by statute; and
3. Granting mandamus to individuals or groups of investors allows them to jump the line at the expense of other investors.

EB-5 investors residing in the United States may file in the jurisdiction where they live or where their EB-5 project is located. Other courts may consider the TRAC factors differently and view extended processing times as unreasonable.

Thus, consulting with your EB-5 attorney about the latest court trends and legal developments is important to determine if, when, and where to file an EB-5 mandamus lawsuit.

What Does the Mandamus Lawsuit Process Look Like? 

1. Filing the Complaint: A complaint is a written document outlining the EB-5 investor’s claim for unreasonable delay. It is filed electronically with the appropriate U.S. District Court.
2. Serving the Complaint: The complaint must be served to USCIS, the defendant, providing USCIS a formal notice of the mandamus lawsuit. The U.S. Department of Justice (DOJ), which acts as the lawyer for USCIS, is also issued a copy of the notice and complaint.
3. Government Response: USCIS will have 60 days from the date of service of the complaint to file a response. USCIS may file an answer to the complaint, or it may seek to challenge various elements of the complaint (jurisdiction, venue, remedy sought, procedural defects, substantive challenges) and file a pretrial motion to dismiss the complaint.
4. Settlement Discussions: Upon receiving service of the complaint, the EB-5 investor’s lawyer may contact DOJ to see if the matter can be resolved amicably by USCIS agreeing to process the EB-5 petition / application within an agreed amount of time. Sometimes, USCIS will directly process the EB-5 petition soon after being notified.
5. Motions to Dismiss / Summary Judgment: Sometimes USCIS might not wish to settle the case. Instead, it will seek to dismiss your complaint entirely. When this occurs, the EB-5 investor’s lawyer will need to submit a brief (written legal arguments) to defend why the EB-5 investor has a valid legal claim that should not be dismissed prematurely. The judge may issue a decision on the written briefs alone or schedule a hearing for oral arguments before ruling on the government’s motion.
6. Trial: If the mandamus complaint is not dismissed, then the case will be scheduled for trial. A trial is a formal hearing scheduled before the judge. Trials for mandamus lawsuits are very rare. Almost all mandamus lawsuits are either resolved by settlement or a motion.

Mandamus cases can take a minimum of 3-6 months from the date of filing to settlement or a motion to dismiss. The timeline could be significantly longer if it were to proceed to trial.

Are Mandamus Actions Successful? 

The success of a mandamus action depends on several factors, including:

• The specific facts of the case
• The length of the delay
• The reasons provided by USCIS for the delay
• The thoroughness of the EB-5 investor’s documentation and legal arguments

There is no guarantee to success. Having a well-prepared mandamus complaint can increase your chances of success by demonstrating that the delay is unreasonable and that the petitioner has a clear right to timely adjudication.

It is crucial to work with an EB-5 immigration lawyer experienced with filing mandamus lawsuits. Moreover, immigration law plays a significant role in governing the success of mandamus actions by confirming the obligation of USCIS to adjudicate applications in a timely manner and providing specific legal remedies.

A mandamus lawsuit forces “action,” not approval. Filing the mandamus does not necessarily mean your EB-5 petition or application will be approved.

An order or a settlement agreement means that your petition will be processed.

In other words, you may receive a Request for Clarification (typically, an email from USCIS to your lawyer to clarify a simple question) or a Request for Additional Evidence, which is a written request to submit additional documents, such as source of funds documents, translations, investment-related documentation, before USCIS can adjudicate the petition.

If the petition or application can be processed without the need for further clarification or evidence, your petition can be approved.

Will USCIS Respond Negatively or Retaliate Against a Mandamus Lawsuit?

EB-5 investors often worry that USCIS will respond negatively or retaliate against their petition if they file a mandamus action. It is important to understand that USCIS, as a government agency, is required to adjudicate petitions and applications based on the merits and in accordance with the law.

Filing a mandamus action is a legal right that EB-5 investors have when facing unreasonable delays. USCIS may not retaliate or respond negatively simply because a mandamus action has been filed. The primary focus of USCIS will be to resolve the issue of delay, often resulting in the expedited processing of the pending EB-5 petition.

How Does a Mandamus Strategy Differ from an Expedite Request?

While both mandamus actions and expedite requests aim to address delays in processing, they differ significantly in their approach and effectiveness:

• Expedite Request: An expedite request is an administrative request submitted directly to USCIS asking for faster processing based on specific criteria, such as severe financial loss or urgent humanitarian reasons. The decision to expedite is at the discretion of USCIS, and the EB-5 investor must provide compelling evidence to support his or her request. Expedite requests are often subject to strict criteria and may be denied without detailed explanations.

Behring investors have successfully had their I-526 & I-526E Petitions approved using personal expedite requests for personal or business reasons.

• Writ of Mandamus: A mandamus action, on the other hand, involves filing a lawsuit in federal court to compel USCIS to act on a delayed petition. It is a legal remedy used when administrative options, such as expedite requests, have been exhausted or have proven ineffective. Unlike expedite requests, a writ of mandamus is not at the discretion of USCIS but is decided by a federal judge. This legal approach can be more forceful and potentially more effective in addressing prolonged delays.

Behring investors have successfully filed mandamus lawsuits for delayed processing of both the I-526 / I-526E petition as well as the I-829 petition.

Consult your lawyer if you have compelling circumstances to seek an expedited review of your petition or writ of mandamus for delayed processing.

EB-5 Mandamus Lawsuit: A Useful Strategy; One of Last Resort

For EB-5 investors, lengthy delays in petition processing can have significant financial and personal consequences. Filing a writ of mandamus can expedite the processing of your EB-5 petition and provide a sense of control in dealing with USCIS delays.

The I-829 petition is crucial for transitioning from conditional permanent residency to permanent residency, and delays in this process can significantly impact investors.

It is typically considered a tool of last resort as the procedure requires additional legal costs, and there is not guarantee of a positive outcome. In limited situations, a delay in the processing of a petition can be useful for an EB-5 investor.

The adjudication time is typically subtracted from a child’s age in age-out scenarios, providing additional time to address any potential defects in the EB-5 investor’s petition or giving more time for an EB-5 investor to complete the investment if that investor has not yet fully funded the required investment amount.

It is always important to understand the risks and merits of filing a mandamus action. This strategy does not apply to all EB-5 investors.

Contact Behring Regional Center

Behring Regional Center is a highly experienced EB-5 operator known worldwide. Unfortunately, industry-wide delays in immigration processing are not uncommon due to the high volume of applications and limited resources.

These delays can create undue stress and uncertainty for EB-5 investors and their families. A writ of mandamus can serve as a powerful legal tool to ensure that USCIS fulfills its obligations in a timely manner, helping EB-5 investors move forward with their plans.

If you are an EB-5 investor experiencing significant delays with your EB-5 petition, you may consider consulting with an experienced immigration attorney about filing a writ of mandamus.

To learn more about this strategy and to determine if it is appropriate for your situation, contact Behring Regional Center..

We can provide referrals to experienced immigration attorneys who can guide you through the process and help you take the necessary steps to expedite your petition.

DISCLAIMER: The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program. You may contact Behring for a referral to an experienced EB-5 lawyer for a formal consultation and legal advice specific to your circumstances.