EB-5 Attorneys Shift Gears in Approach to Unreasonable Delays

What can an EB-5 investor do when wait times reach an unreasonable length? Why doesn’t it seem like EB-5 attorneys are pulling out all the stops to get their clients’ petitions through adjudication more swiftly? These are the tough questions the industry’s finest legal professionals regularly field from their EB-5 investment clients. And the answer isn’t always palatable.

As it stands, the only action readily available to EB-5 investors and their attorneys specifically designed to force the hand of adjudications on outstanding I-526 and I-829 petitions within the broken case inquiry system of United States Citizenship and Immigration Services (USCIS) is filing a writ of mandamus. Unfortunately, over time, experienced attorneys have designated this measure as a last resort in cases where wait times have become excessive (i.e., exceeding the published processing times).

Filing a writ of mandamus, which forces adjudicators to adhere to a deadline and immediately adjudicate a petition, poses an inherent threat for rejection when there are questions regarding an investor’s application. In regular processing, USCIS could simply issue a request for evidence (RFE), which allows a petitioner another opportunity to correct inconsistencies or insufficiencies in a submission, but this option is unavailable when adjudication is forced by a writ of mandamus. If an I-526 or I-829 petition contains insufficient information for approval, USCIS will issue a denial rather than an RFE if adjudicating the petition under a writ of mandamus.

The Time to Redefine “Reasonable Wait Times” Has Come

Under the commonly accepted definitions of terms like “reasonable wait time” and “excessive delays,” mandamus case results vary little, and settlements are rare. Only the cases with petitions with extreme delays tend to go anywhere, and even then, the U.S. government has typically submitted a motion for dismissal directly following the federal complaints filed by the few immigrant investors who have finally felt compelled to do so.

This is the norm, and industry experts seem to believe that without real effort to change it, adjudication delays will only increase further. Why? Because it is the Immigrant Investor Program Office (IPO) who defines what a “reasonable wait time” is, not the investors waiting. In response, the legal experts representing these tired and frustrated investors have come together to contemplate litigation.

EB-5 Lawyers Contemplate Litigation

Reviewing recent Visa Bulletins, any investor can see the IPO publishing ever-increasing processing times, which, when the accepted definition of “excessive wait time” is one that exceeds the published wait times, can only imply one thing: “reasonable” adjudication delays are effectively extended as well. This is the core issue EB-5 attorneys are ready to fight, and many see litigation as the only viable path for redefining what constitutes a reasonable delay.

Published Processing Times Do Not Indicate When Delays Are Reasonable

According to some industry experts, it would be a practical move for the EB-5 litigation bar to divorce published processing times from such a subjective definition of a “reasonable wait time” for EB5 investment adjudication. USCIS has only ever intended for published processing times to provide context for experienced delays. Legally, these published ranges in no way prove that a delay is unreasonable. We need a more relevant guidepost to help redefine what a “reasonable” processing time is.

As Congressional Intent Changes, Legislation Should Too

Additional evidence of the need to redefine the terms related to adjudication delays lies in congressional intent, both historically and as expressed at present. Congressional intent acting as a more reliable guidepost dates back 20 years, when Congress first expressed concerns over excessive immigrant benefit processing backlogs. At that time, they authorized funds allocated to dissolving backlogs on all petitions older than six months. The new legislation fell under the Immigration and Nationality Act, with language reading, “the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”

It wasn’t until the Department of Homeland Security was formed that Congress amended the verbiage to extend the mandate from 180 days to an entire year. This shift was the first to redefine a “reasonable” wait time, doubling it at a time when the legislative body felt the additional time was necessary. The question today is whether such a lengthy period is still necessary, and only actual metrics from the IPO itself can provide the insights needed to make that determination.

What Insights IPO Metrics May Provide

To start, evaluating IPO metrics would allow immigration specialists to pin down the workload capacity of its offices. Here is the data from 2019:

  • (212) staff adjudicators in 2018
  • An average of 8.65 hours to process an I-526 petition

Now, assume only half of those IPO adjudicators dedicate 100% of their work hours to I-526 adjudication. Here’s the math:

  • (106) adjudicators x 40 hours/wk x 50 wks/year = 212,000 dedicated I-526 work hours

When you divide touch time—the average amount of time it takes an adjudicator to process an I-526 petition—into dedicated work hours, you arrive at workload capacity. In this example, the equation looks like this:

  • 212,000 dedicated work hours / 8.65 hours touch time = 24,508 petitions

Based on this assessment of 2019 data, the IPO had the capacity to process more than 24,500 I-526 petitions that year. Yet, only a fraction of the petitions the IPO was theoretically capable of processing were actually completed. Naturally, every EB-5 case encompasses its own set of unique circumstances that must be factored into actual processing times, and within this discrepancy probably lies a large part of the problem. Other contributing factors are the roles of USCIS deference and IPO prioritization tactics in those delays.

USCIS’s Regional Center Deference and the IPO’s Visa Availability Approach

As a measure meant to streamline investment processing, USCIS interprets statutory authorization within the EB-5 Regional Center Program to mean it can prioritize individual investors’ EB-5 petitions when filed through a regional center. Furthermore, projects with an approved exemplar application on file are almost automatically granted deference. While the intent is to create a more efficient processing approach, the result has been that other well-qualified EB-5 investment participants are cast aside to wait an indeterminate amount of time.

Pair this unintended consequence with the recent implementation of the IPO’s new visa availability approach, in which the agency prioritizes EB5 investment petitions based on which countries have visas available, and there’s no good way to answer wait time questions from investors who have already been waiting far too long.

EB-5 Attorneys to Explore Group Action Strategies

The circumstances surrounding every EB-5 investment are different. Subsequently, USCIS and the IPO have a virtually endless stream of excuses for delays at their fingertips. This magnifies the difficulties in shifting the norms of what is considered a reasonable wait for processing. Time after time, these organizations use published wait times as their primary defense. Additionally, litigation on a given case typically isn’t even an option until an investor has already waited up to two years for their application to be processed. The worst part is that proceedings wind up increasing hard costs, personal stress levels, and the overall EB-5 investment risk.

For these reasons, innovation in this area of litigation has become a necessity, and these challenges have given rise to a new mindset in the EB-5 legal community. Namely, group actions within smaller jurisdictions may prove a wise strategy to pursue. This path would allow varied USCIS arguments to be addressed among smaller groups of individual investors facing the same types of delays. One lawsuit may move to compel the production of certain administration records, while another may wish to pursue discovery immediately. In effect, the court system would transform into a testing ground to design new precedents on defining reasonable delays.

One thing is certain in the EB-5 legal community at this point, however: nothing ventured, nothing gained. Any effort to seek out new and creative ways to protect the EB-5 Immigrant Investor Program community is better than no action at all.