The EB-5 program offers foreign investors a pathway to becoming U.S. permanent residents. Specifically, the program grants legal permanent resident status to foreign nationals in exchange for an investment of $1,050,000 (or $800,000 for investments in targeted employment areas) in the U.S. economy.
The EB-5 program has historically been fraught with processing delays. These delays create undue stress and uncertainties for EB-5 investors and their families, especially those who invested before the EB-5 Reform and Integrity Act (RIA) was introduced in 2022.
While the RIA has significantly improved processing times, pre-RIA investors still suffer unreasonable delays. You can fight this delay by filing a mandamus action—or a writ of mandamus—to compel the United States Citizenship and Immigration Services (USCIS) to adjudicate your EB-5 application.
In this article, we’ll look at what a mandamus action is and debunk some common myths surrounding mandamus actions in relation to EB-5 applications.
What Is a Mandamus Action?
A Mandamus Action vs. a Complaint of Unreasonable Delay Under the Administrative Procedure Act
Common Misconceptions About Mandamus Actions
- Myth #1: A Mandamus Action Forces USCIS to Approve a Pending EB-5 Case
- Myth #2: You Can Only File a Mandamus Action for a Delayed I-829 Petition
- Myth #3: EB-5 Mandamus Lawsuits Are Always Successful
- Myth #4: Mandamus Lawsuits Are Always Unsuccessful; USCIS Always Wins
- Myth #5: USCIS Will Deny Your Petition in Retaliation When You File a Mandamus Lawsuit
Speed Up Your EB-5 Processing Times by Investing in Rural TEA Projects
What Is a Mandamus Action?
A mandamus action is a filing seeking a court order to compel a government agency to perform a duty required by law. In an EB-5 case, a mandamus action is a lawsuit with a U.S. district court to mandate that USCIS adjudicate a pending EB-5 investor’s petition.
A mandamus action can only be filed when an EB-5 investor believes USCIS has delayed adjudicating their petition for an unreasonable amount of time.
A Mandamus Action vs. a Complaint of Unreasonable Delay Under the Administrative Procedure Act
A mandamus action and an Administrative Procedure Act (APA) unreasonable delay complaint are consistent. Both seek to achieve the same goal of getting USCIS to adjudicate a case. However, they are distinct legal actions.
An APA complaint establishes that the investor has a right to relief, and USCIS has the non-discretionary duty to adjudicate the case. It simply means the investor has the legal right to request that USCIS adjudicate their petition and that USCIS is legally obligated to do so.
A mandamus action, on the other hand, forces USCIS to adjudicate the petition within a reasonable time frame.
Common Misconceptions About Mandamus Actions
A writ of mandamus can achieve many positive results for EB-5 investors facing prolonged processing delays. There are, however, many misconceptions surrounding mandamus actions. We’ve clarified some of these misconceptions below.
Myth #1: A Mandamus Action Forces USCIS to Approve a Pending EB-5 Case
A mandamus action does not force USCIS to approve your case. It only forces USCIS to adjudicate your case. A successful mandamus action simply means that USCIS will process your petition.
The outcome of the adjudication depends on the facts of the case. You may receive a request for clarification or request for evidence (RFE) requiring you to answer specific questions or provide additional supporting documents with which they’ll adjudicate the case. If USCIS examines your application and finds no need for clarification or further evidence, they will proceed to approve or deny your petition.
Myth #2: You Can Only File a Mandamus Action for a Delayed I-829 Petition
This is not true. You can file a mandamus action for a delayed I-526/I-526E or I-829 petition. USCIS will most likely respond faster to a mandamus action filed for a delayed I-829 petition, but an I-526E adjudication that extends beyond 18–24 months without any update from USCIS is substantial grounds for filing a mandamus action, especially if USCIS has been processing petitions with later priority dates.
Myth #3: EB-5 Mandamus Lawsuits Are Always Successful
There’s no guarantee that a mandamus lawsuit will be successful, as the government can fight the case. The success of a mandamus action depends on the specific facts of the case, such as the length of the delay, USCIS’s reasons for the delay, and the thoroughness of your legal arguments and documentation.
While there’s no guarantee of success in a mandamus lawsuit, an adequately prepared complaint demonstrating that the adjudication delay is unreasonable will increase your chances of success. Hence, working with an attorney experienced in preparing federal lawsuits is essential.
Myth #4: Mandamus Lawsuits Are Always Unsuccessful; USCIS Always Wins
As mentioned above, the outcome of a mandamus action depends on how well you can prove your case. Many EB-5 investors have had their petitions promptly adjudicated following a mandamus action.
However, USCIS may seek to dismiss the complaint entirely if they believe your case is not substantial. Instead of adjudicating your case, they’ll file a motion to dismiss. In such a situation, your attorney has to submit a brief defending the validity of your complaint and demonstrating why it should not be prematurely dismissed.
Myth #5: USCIS Will Deny Your Petition in Retaliation When You File a Mandamus Lawsuit
USCIS receives hundreds of mandamus lawsuits yearly, and there has not been any case where a denied petition was linked to a mandamus action.
What usually happens is that the mandamus action forces USCIS to process your petition, and they may issue an RFE or notice of intent to deny (NOID) if they find any discrepancies. But they will not outright deny your petition due to filing a mandamus lawsuit.
When Should an EB-5 Investor File a Mandamus Action?
A mandamus action is regarded as a last-resort tool for forcing USCIS to adjudicate an EB-5 petition that has been unreasonably delayed. This is because it requires additional legal costs and does not guarantee a favorable adjudication. Hence, investors should first consider other options to expedite their EB-5 process before resorting to a mandamus action.
You should file a writ of mandamus when two crucial criteria have been met:
- There’s no other adequate solution for addressing USCIS’s unreasonable processing delays.
- You can show that USCIS’s delay is causing you significant harm or hardship. This could be substantial personal stress, financial losses, or other problems.
Once these two criteria apply to your case, then a mandamus action would be appropriate—and more likely to be successful.
Speed Up Your EB-5 Processing Times by Investing in Rural TEA Projects
A mandamus action is helpful for investors facing unreasonable delays. Such an action expedites the processing of your EB-5 petition by forcing USCIS to adjudicate your case. However, mandamus actions are not always successful, and they involve additional expenses in legal fees.
This is why, instead of trying to relay on a writ of mandamus, the best way to ensure your EB-5 petition is processed within a reasonable timeframe is by investing within a rural targeted employment area (TEA), especially for investors from high-demand countries like India and China.
With the right rural TEA project and proper documentation, you can also increase your chances of faster adjudication through priority processing and set-aside visa quotas and eliminate the need for a mandamus action.
At EB5AN, we provide first-rate, low-risk EB-5 projects with a 100% USCIS approval rate to date. And many of our investors have received their I-526E approvals in less than 12 months. We can help you achieve the same results.
For more information about the EB-5 process and our projects, book a free one-on-one call with our EB-5 experts today.
