How Investors Can Sue USCIS to Shorten EB-5 Processing Times

The EB-5 Immigrant Investor Program is one of the most straightforward pathways to obtaining a U.S. Green Card, if foreign nationals can fulfill all the eligibility requirements for a successful EB-5 process. This includes satisfying a minimum investment threshold of $800,000 to $1,050,000, creating 10 full-time jobs, and correctly filing several petitions.

While the EB-5 program offers a direct route to permanent residency, especially pre-RIA (EB-5 Reform and Integrity Act of 2022) investors can face long wait times. This may be due to issues with the specific investor’s case, delays from the United States Citizenship and Immigration Services (USCIS), and the complexity of the investment project.

Luckily, there are strategies to prevent undue delays and speed up your EB-5 process. Where USCIS is responsible for slowing down investors’ EB-5 application process, applicants can sue USCIS.

In this article, we will discuss potential delays in the EB-5 timeline and their impact on the investor. We will also explore the stages involved in suing USCIS to shorten EB-5 processing times.

Common Causes of Delay in the EB-5 Visa Application Process

The EB-5 process can be a complex one. Investors must apply caution, conduct due diligence, and prepare their applications well to ensure they achieve their goals. However, there are instances where foreign nationals do what’s needed and are still met with delayed processing times. Below are some of the factors that may extend the EB-5 visa process:

Increased Demand for EB-5 Visas

When USCIS receives higher volumes of EB-5 visa applications, the agency may struggle to keep up with all the applicants at the different stages of their application process. Economic factors, changes in immigration policies, or other internal operational challenges within USCIS may trigger the increase in demand for EB-5 visas across various categories.

Source of Funds Verification

A major prerequisite for the EB-5 program is lawful investment funding, so USCIS officials usually take their time to scrutinize the source of funds documents. If there are inconsistencies in investors’ records, the officials may require Requests for Evidence (RFE) and other additional information. The extra time applicants use to gather the additional documents, as well as their reviewing process, usually prolong processing times.

Visa Availability

The U.S. Congress places several restrictions on visa availability to ensure a fair distribution of visas across different countries. Generally, no single country must account for more than 7% of the visas given by USCIS in a fiscal year. Each year, there is a quota for the number of EB-5 visas that USCIS can issue.

Low visa availability in any given year would mean that USCIS has to push the remaining EB-5 visa applications to the following year, causing a delay in the processing times of affected investors. For nationals of certain countries like India and mainland China, these backlogs can cause unreasonable delays.

Suing USCIS to Shorten EB-5 Processing Times

Interruptions in the EB-5 application process usually result in longer processing times, negatively affecting all stakeholders involved. Investors begin to get frustrated as they cannot reap the financial or immigration benefits of their investment until their immigrant petitions are approved.

Furthermore, a prolonged EB-5 application process may taint the market perception of the EB-5 program, discouraging other foreign nationals from exploring that pathway to obtaining legal permanent resident status in the U.S.

When faced with unnecessary delays in their EB-5 process, investors can sue USCIS to shorten their processing times. This legal action is known as a writ of mandamus, which is a federal court order that compels a lower government agency to fulfill an obligation it’s clearly responsible for.

Steps Involved in Suing USCIS

Getting into a legal tussle with USCIS is a complicated process. It is also risky, as success is not guaranteed after spending time, money, and other resources. For these reasons, investors should attempt every other means to shorten their immigrant petition processing time before filing a writ of mandamus.

Below, we’ve outlined the step-by-step process of suing the agency to shorten your EB-5 processing time. This guide will help you understand the procedures involved and prepare you for the potential challenges you may face.

1. Retaining an EB-5 Immigration Attorney

Experienced EB-5 immigration lawyers serve as legal representatives and a support system throughout the application process and beyond. They protect the investor’s interests and mitigate expensive risks on their behalf.

Hiring a good immigration attorney is the first step in positioning yourself for success. However, in the case of a lawsuit against USCIS, you should also look for an attorney with litigation experience.

Your lawyer will evaluate your circumstances to confirm whether you have a strong case against USCIS. They can also confirm the feasibility of a win in federal court and draft strategies for maximizing the possibilities of a legal victory.

2. Identifying Grounds for Lawsuit and Gather Evidence

After selecting a competent legal professional, the next step is to collaborate with your attorney to identify a viable legal basis for challenging USCIS. This involves thoroughly examining USCIS’s obligations to investors, to identify areas where the agency has fallen short of its duty to foreign nationals.

Alongside a review of USCIS’s immigration policies, investors and their attorneys should consider judicial precedents on EB-5 programs and use successful cases as a blueprint for drafting their arguments.

Once affected investors have established a viable legal claim, the next step is to gather sufficient evidence. This includes detailed records of communications with USCIS, petition materials, receipts, and any additional information the court requires.

3. Pre-Litigation Negotiations

Before launching a legal battle against USCIS, an experienced attorney will suggest alternative dispute resolution options. This entails seeking administrative solutions within the immigration agency and advocating for your claim through discussions with USCIS’s Immigrant Investment Program Office (IPO). Another option is to connect with the CIS Ombudsman.

However, investors may take the matter to the U.S. federal court if the alternative resolution options do not yield the desired results.

4. Filing a Mandamus

This step marks the beginning of the litigation process. After the writ of mandamus is filed and the defendants are served, they have two months to respond. During this period, the U.S. attorney representing the defendants may offer a settlement and request additional time to handle the application. Cases where the U.S. attorney shows resistance could lead to court hearings or a motion to dismiss. However, they usually prefer not to engage in lengthy litigation and choose to settle the case and adjudicate the underlying application. Once a U.S. attorney is involved, it typically takes a few months to reach a decision, which could result in a Request for Evidence (RFE), an approval, or a denial.

When to Reconsider Filing a Writ of Mandamus

Taking mandamus action may not always be in the EB5 investor’s best interest. If any of the below circumstances apply to you, you may want to reconsider pushing USCIS to make a decision on your immigration case.

• Faster processing may be harmful to investors with children who are about to turn 21. This is because U.S. immigration law allows for an applicant’s eligibility to be extended if it was USCIS who caused the delay.
• It’s not a good idea to file a writ of mandamus if there are problems with the investor’s selected EB-5 project—like slow job creation progress—or with the investor’s immigration case, such as past visa violations or source of funds issues.
• Foreign investors born in backlogged countries like China and India would not benefit from filing a mandamus in cases where a visa would not be available to them even if USCIS adjudicates their petitions.
• Investors should also remember that if the delays are related to a poorly prepared petition that would result in a denial, filing a writ of mandamus may cause USCIS to issue that denial faster.

Connect With EB-5 Experts for Best Results

While a writ of mandamus can help move an immigration case along, it’s usually seen as a last resort because it can be expensive and there’s no guarantee it will have a positive outcome. If you’re thinking about filing a mandamus lawsuit, it’s best to consult with skilled EB-5 immigration lawyers who can assess whether it’s a good idea for you to pursue mandamus action.

To get your specific questions answered about how to shorten your EB-5 processing times, schedule a free consultation with EB5AN today.