Speeding Up the EB-5 Process: How Writs of Mandamus Work

There is no doubt that the EB-5 program is one of the best ways to relocate to the United States. The EB-5 Immigrant Investor Program helps investors obtain permanent residency for themselves and their families. The EB-5 investment program also stimulates the U.S. economy by providing businesses with much-needed capital.

United States Citizenship and Immigration Services (USCIS) supervises the EB-5 program. As well as setting the requirements and regulations for the EB-5 investment program, USCIS also processes investor petitions. This means that all EB-5 investment petitions must be submitted to USCIS.

However, the USCIS adjudication process can be lengthy. For example, visa petitions such as Form I-526 and Form I-829 often take several years to be processed. Investors of certain nationalities can also face backlogs caused by a high volume of EB-5 investment petitions from their country.

If USCIS is taking an abnormally long time to process a visa petition, EB-5 investors can take action by filing a writ of mandamus.

Writs of Mandamus Explained

A writ of mandamus is a federal lawsuit that forces USCIS to adjudicate a visa petition. These lawsuits can be successful if an EB5 investment petition has been delayed arbitrarily. Filing a writ of mandamus enables EB-5 investors to have their visa petitions filed within a reasonable timeframe. EB-5 investors whose dependent children are approaching 21 and risk losing their eligibility for residency may be especially inclined to file writs of mandamus.

Is Filing a Writ of Mandamus Worthwhile?

EB-5 investors should carefully consider whether filing a writ of mandamus is worthwhile. The litigation process is costly, and writs of mandamus are never guaranteed to be successful. Moreover, an investor’s visa petition may be denied if a writ of mandamus is successful.

If an investor’s petition is unclear or needs additional supporting documentation, USCIS usually sends out a request for evidence (RFE). This gives the investor the opportunity to supply the missing evidence. However, if USCIS is forced to adjudicate an investor’s visa petition through a writ of mandamus, the petition may be denied outright without an RFE.

Potential EB-5 investors should view filing a writ of mandamus as a last resort. They should only take this measure when they are confident that their petition contains all the needed information and the adjudication process has been unjustifiably long. Before making the decision to file litigation against USCIS, an EB-5 investor should always consult with an immigration attorney.