Writ of Mandamus (Mandamus Action) is the EB-5 Investors Best Weapon Against Unreasonable Delay

May 19th, 2022 Colin Behring

If you are experiencing an unreasonable delay in the processing of your EB-5 petitions, a Writ of Mandamus can help speed things up.

What Is a Writ of Mandamus?

A writ of mandamus, or mandamus action, forces USCIS to act and review a petition. EB-5 investors can sometimes get subject to delays in processing. USCIS openly admits they have backlogs. You submitted a full and compliant petition, USCIS accepted your fees, USCIS has an obligation to provide the service of adjudicating the EB-5 petition. Technically speaking, the writ of mandamus is a petition you or your immigration lawyer must prepare and file with a Federal District Court. It can be used in cases where your case has had an unreasonable delay or if there has been an unlawful withholding of action. A writ of mandamus can be used on almost any petition whether it be I-526 petitions, I-485 petitions or I-829 petitions.

28 U.S.C. §1361 is the statute that allows a writ of mandamus to be filed. It is a straightforward statute that allows individuals to petition federal district courts to order an officer or employee of the United States or any agency to perform its duty.

How Much Does Writ of Mandamus Cost to file against USCIS?

The legal fees for filing with an attorney may be different depending on the circumstances of your case.  It comes down to complexity and how many hours of work are needed to achieve the filing. Contact us or your immigration attorney to get the latest market rates on what it takes to be successful with a writ of mandamus.

There Are Two Different Types of Writs of Mandamus

  • Peremptory Writ of Mandamus: There are court orders issued against USCIS, telling them they must act according to their lawful duty.
  • Alternative Writ of Mandamus: These are court orders that force USCIS to take a certain action or, alternatively, show the judge why it does not have to obey.

Either way, the writ will force some action on your case. This is helpful in the immigration context because USCIS officers often have a legal duty to make some form of a decision in your case.

How to Get a Writ of Mandate Issued

In order to get a mandamus issued, you and your lawyer must generally show the court that:

  1. you have a clear right to the relief request;
  2. the defendant (in this case USCIS) has a clear duty to perform the action you want to be ordered; and
  3. you do not have any other adequate remedies available

When Do You Have a Clear Right to Some Decision in the Immigration Context?

Whether it’s before you have your conditional greencard approved (I-526), after approval when you are trying to get your greencard through adjustment of status, or when you are trying to get conditions removed from your greencard (I-829) it is both your right and the duty of USCIS to have a final determination on your case. In both situations, most courts will find that there are no other adequate remedies available. EB-5 investors starting utilizing the writ of mandamus more and more after processing times reached new highs from 2019 onward.

Contact your immigration attorney to learn more about how a writ of mandamus can help speed up your case.

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