A Writ of Mandamus: What It Means for EB-5 Investors

United States Citizenship and Immigration Services (USCIS), which functions under the purview of the Department of Homeland Security, has always been up front about long processing times for EB-5 investment petitions. More than two years is not an uncommon wait time for EB-5 investors, and those applying from countries experiencing visa backlogs like China may find themselves waiting for much longer. But is the wait acceptable? EB-5 investment participants don’t always think so. These significant delays have real-world implications for those awaiting adjudication throughout the EB-5 investment process.

Besides the incalculable “missed opportunity” losses associated with postponing a life in the United States, there are also increased risks associated with, for instance, individual capital terms while meeting EB-5 capital requirements, or the possibility of previously eligible dependents losing their opportunity for a U.S. green card by aging out or getting married while waiting for adjudication.

So, what can a foreign investor with an active EB-5 investment do about USCIS taking an inordinate amount of time to adjudicate an I-526E petition? While recourse is scant, EB-5 investors caught in a processing holding pattern do have options.

This article will look at how a writ of mandamus can be an effective option to expedite the adjudication of an EB-5 visa petition.

What is the EB5 Immigrant Investor Program?

The EB5 Immigrant Investor Program was established by Congress in 1990 to stimulate economic growth through the creation of jobs for U.S. workers. A foreign national who invests in an eligible new commercial enterprise (NCE) becomes eligible for permanent resident status (a Green Card) along with their spouse and unmarried children under 21. Investing in the EB5 program is widely considered to be the most straightforward route to permanent residency for foreign nationals, although the process can take many years.

There are two key requirements of an investment under the EB5 program. Firstly, the investor must invest a minimum amount in the NCE. If the NCE is located in a targeted employment area (TEA), the minimum is $800,000. If outside a TEA, then the minimum is $1,050,000. Secondly, the investment must create ten new full-time jobs for U.S. workers.

There are two investment models under the EB5 program. The EB5 investor can invest directly in a qualifying NCE or invest as one of a pool of investors in an NCE sponsored by an EB5 regional center. Regional centers are economic entities approved by USCIS. They manage EB5 investor capital across multiple projects in the EB5 industry and ensure that USCIS requirements are met.

The direct investment model best suits a single investor who wants to own and operate their own commercial business. In contrast, multiple EB5 investors pool their capital in a regional center’s EB5 project and will typically have a less hands-on managerial role.

Once an investor has invested in an eligible EB5 project, they file Form I-526E if they invested in a regional center project or Form I-526 if they invested directly. Once approved, the investor can apply for conditional EB-5 visas (conditional Green Cards) for themselves and their dependents. These EB-5 visas are valid for two years.

Within 90 days of the expiry of their EB5 visa, the investor must then file Form I-829, which is a petition to remove the conditions on their EB-5 visa. Once the petition is approved, the investor and their dependents become lawful permanent residents of the United States and become the holders of permanent Green Cards.

USCIS Processing Times

Some EB-5 investors believe that their I-526 processing wait times are too long and would be willing to take legal action against USCIS. However, these investors may be concerned that USCIS will argue that their average processing times are “reasonable” and prevent the investors from taking legal action. This is especially true when investors’ petitions are still listed within the estimated processing time frame.

That said, there are two lawsuits (Raju et al. v. Cuccinelli and Keller Wurtz v. USCIS) on record in which judges disagreed with this argument.

Between each immigration case, nearly a dozen EB-5 investors who had submitted I-526 petitions within 22 to 29 months prior filed writs of mandamus for delayed processing. By EB-5 historical standards, it was not abnormal to wait that long (and often longer) for adjudication in the year of the lawsuit (2020).

Based on estimated processing time ranges published by USCIS at the time, these plaintiffs were not actually facing excessive waits, and USCIS argued as much. They said delays reaching four years were “reasonable,” in fact. Evidence included estimated case processing time ranges (which sometimes reached beyond six years).

However, the judges didn’t see it that way. In both suits, the federal court sided with the EB-5 immigrants. They opined that the USCIS’s argument of it taking just as long to adjudicate other I-526 petitions doesn’t make the wait times for any of them “reasonable.”

The reason this decision became a landmark immigration case is that the judge essentially ruled that the majority of USCIS’s I-526 petitions were being adjudicated with unreasonable delays.

Furthermore, both judges referred to the congressional decree that said immigration application processing times should not extend beyond 180 days. They both found that “reasonable processing times” should fall within a count of weeks or possibly months – not years. Both lawsuits ended in victory and should serve as a precedent for EB-5 investors seeking resolution in their own processing wait times today. The administrative procedures act may also be relevant.

However, the judges’ rulings appear not to have had an impact on USCIS processing times, which are now at record high levels.

Steps to Take Before Filing a Writ of Mandamus

A writ of mandamus is a legal recourse that effectively forces USCIS to adjudicate an unreasonably delayed petition. Within the context of an EB5 investment, a writ of mandamus may be used to demand that USCIS adjudicate either Form I-526 (or I-526E) or Form I-829.

Consulting an Immigration Attorney

EB-5 investors who are considering a writ of mandamus should consult an experienced immigration attorney to review their case.

An attorney may look at the naturally longer wait averages associated with a particular country’s demand for the program and offer insights into why an investor may want to wait it out a bit longer before taking this kind of action. Ultimately, an attorney can help an EB-5 investor determine whether this type of filing would more likely help or hinder processing based on the investor’s unique circumstances.

A writ of mandamus is only recommended as a last-resort measure. Other options should be explored first.

Request an Update on the Status of the Case

EB5 investors can track the status of their I-526 and I-829 petitions online using the USCIS Case Status Online Tool. If the adjudication of a petition is taking longer than the USCIS’s case processing times then the investor, or their immigration attorney, should submit an e-Request to USCIS regarding the unreasonable delay. This will prompt USCIS to check that there are no potential administrative problems that have resulted in the stalling or misplacement of the petition.

Contact the Ombudsman

The Office of the Citizenship and Immigration Services Ombudsman (CIS Ombudsman) has, in the past, assisted with cases that have not been adjudicated within USCIS processing times. The CIS Ombudsman cannot expedite petitions, but it can bring issues to the attention of USCIS and recommend solutions.

However, as of September 2022, the CIS Ombudsman was advising EB-5 investors that if processing times are the only issue that the investor is encountering, then it can’t provide immediate assistance. The CIS Ombudsman is working with the USCIS to address systemic issues causing the lengthy processing delays.

What is a Writ of Mandamus?

A writ of mandamus is a civil action lawsuit that seeks to force a government entity to do something. In the case of an I-526 or I-829 petition, a federal district court is being asked, in the writ, to order USCIS to make a decision on a delayed petition.

In filing a writ of mandamus, the petitioner must argue that the processing time for the petition is unreasonable. The petitioner should also argue that their particular situation warrants timely consideration. USCIS is required, when adjudicating a petition, to take into account a petitioner’s needs. The petitioner may, for example:

• Need to access their invested funds.
• Have health issues or need to leave their home country urgently for personal safety reasons.

Filing a writ of mandamus does not come without its risks. Litigation can only force USCIS to adjudicate a petition, not to approve it. A successful writ of mandamus may result in an outright denial if it is not compliant with EB5 regulations. It may also result in a Request for Evidence or a Notice of Intent to Deny, but at least these are actions to which the investor can respond.

Filing a writ of mandamus can be expensive, with no guarantee of success.

What the Process Looks Like

A writ of mandamus immigration petition is filed online. It can be a lengthy document of 15-20 pages that can take a month or so to prepare and file. The cost to file a writ of mandamus petition depends on the complexity of the case.

The writ of mandamus will typically include:

• The relief sought in the petition.
• Presentation of the issue.
• Facts and evidence to explain and support the petition.
• Reasons for the issuance of the writ of mandamus.

USCIS has 60 days to respond to a writ of mandamus petition. Often just the filing of the writ of mandamus can result in USCIS quickly making a decision on the petition in question.

If the writ proceeds and the federal district court finds in favor of the petitioner, then it will order USCIS to fulfill its duty to adjudicate the relevant petition, usually within 90 days of the court order.

It is not unusual for USCIS to request extensions to respond to a federal courts order, particularly as more and more investors are resorting to writs of mandamus. If USCIS decides to oppose the federal court order, then the process can continue for several months.

If the writ of mandamus is successful then the investor’s petition may be approved, denied, or issued with a Request for Evidence or a Notice of Intent to Deny.

Completing the EB-5 Immigration Process

Regardless of an EB-5 investor’s situation, they should always consult an immigration attorney with EB-5 experience and experienced industry professionals, including EB5AN. Competent immigration counsel can help EB-5 investors to decide which steps to take regarding legal action against other government agencies if they experience an unreasonably long adjudication period.

As expert operators in the EB5 sector, we have a list of experienced EB-5 immigration attorneys that we would be pleased to recommend.

The EB5 program is a route for foreign nationals to obtain permanent residency for themselves and their families in the United States and enjoy many of the benefits and opportunities available to U.S. permanent residents. If you would like to learn more about the EB5 program, all the fees involved in EB-5 immigration, or about an immigration attorney, please contact EB5AN.