Filing an EB-5 Mandamus Complaint and What to Expect

The EB-5 visa program was created in 1990 to stimulate the U.S. economy via international investment, and has been in demand ever since by foreign nationals. It enables foreign nationals and their eligible dependent family members to obtain lawful permanent residency in the United States by investing in a commercial enterprise and creating 10 permanent full-time jobs for qualified U.S. workers.

Many international investors have enjoyed the benefits of the program as it is one of the most straightforward pathways toward obtaining permanent residency in the U.S. However, due to high demand for the program—especially from countries like India and China—and limited visa availability, backlogs occurred in the unreserved category, which can be frustrating for applicants. Even though the EB-5 Reform and Integrity Act (RIA) was signed into law in March 2022 and brought with it many improvements, obtaining a Green Card may take years for pre-RIA investors.

In recent years, EB-5 applicants who are experiencing long wait times have resorted to filing a complaint in federal court requesting the court to order a timely adjudication—a mandamus complaint. In this article, we will explain what a mandamus complaint is and what to expect from the process.

What Is a Mandamus Complaint?

A mandamus complaint is a federal lawsuit that orders USCIS to adjudicate an unreasonably delayed petition, filed by individuals who claim that government delay or inaction is causing them harm. It is filed to push USCIS to make a decision about their application. It does not, however, mean that the government will approve their application. Following the filing of the mandamus complaint, USCIS might adjudicate and approve or reject their application, or even issue a request for evidence (RFE) or a notice of intent to deny (NOID).

The Process of Filing a Mandamus Complaint

Your attorney will draft and subsequently notify USCIS of the existence of the mandamus complaint, requesting an amicable resolution. If this process fails, then the complaint is filed with the U.S. District Court. The parties will negotiate to settle, and only if they fail will the complaint proceed to trial. However, trials are rare as most mandamus complaints are settled before trial.

There is not an exact timeline as to when to file a writ of mandamus. However, the longer a petition has been pending, the more likely USCIS may be willing to settle or the district court will be willing to adjudicate the application. That said, it will be to the plaintiff’s benefit if they are able to demonstrate that their case has been pending longer than the published processing time on the USCIS website.

If the plaintiff resides within the U.S., the complaint can be filed where the plaintiff resides, or in the District Court of the District of Columbia. However, it is generally advised to avoid filing in D.C. if possible due to their mandamus complaint workload.

USCIS’s Response to Mandamus Actions

In many cases, after USCIS has been served the complaint and before it goes to trial, it will be settled by the parties. This is because the attorney representing USCIS will typically advise the agency to adjudicate rather than go through with a trial. However, it is important to note that this is more likely to happen if the petition has been waiting for a longer period of time.

USCIS might also file a Motion to Dismiss or a Motion for Summary Judgment. The agency might counter the complaint with a few different defenses, among which are that the case has not surpassed the published processing time; the plaintiff is trying to jump ahead of other applicants; and processing times are discretionary and not subject to judicial scrutiny.

The potential outcomes of a writ of mandamus could be as follows:

Settlement

As mentioned above, it is likely that USCIS will settle the complaint rather than allow it to go to trial.

Trial

The complaint might also go to trial, in which case the judge will make a decision on the adjudication. This mostly depends on how long the application has been pending, as well as the type of the petition, i.e., I-526E or I-829.

Request for Evidence or Notice of Intent to Deny

Even though a successful mandamus complaint will result in a faster USCIS decision, that does not necessarily mean the decision will be an approval. The decision might be a request for evidence (RFE) or notice of intent to deny (NOID). It is important to highlight that USCIS does not generally deny petitions without first issuing a request for evidence or notice of intent to deny.

Is Filing a Mandamus Complaint the Best Option for You?

While USCIS is not likely to retaliate against a mandamus complaint, initiating a mandamus action may not always be in the best interest of EB-5 investors. If any of the below criteria applies to your case, it might be wise to think twice before urging USCIS to rule on your application.

• For investors with children nearing the age of 21, quicker processing could have negative consequences. Under U.S. immigration regulations, applicants can maintain eligibility if the delay was due to USCIS’s actions.
• It’s advisable to avoid filing a mandamus complaint if there are issues with the chosen EB-5 project, or if there are complications in the investor’s immigration profile, like previous visa violations or concerns regarding the source of funds.
• Foreign investors from countries that have backlog issues, such as China and India, may not gain from a mandamus filing when a visa would still be unavailable even after USCIS makes a decision about their applications.
• Additionally, investors should keep in mind that if the delays stem from a poorly prepared petition, which might lead to a denial, pursuing a mandamus complaint could prompt USCIS to issue that denial sooner.

Invest in Rural TEA Projects for Faster Processing

As detailed above, mandamus complaints are not always fruitful, and oftentimes they are costly, making them a risky investment of funds and time.

For new investors, the best way to ensure faster application processing, and an EB-5 Green Card, is investing in rural TEA projects.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS project approval rate to date.

To learn more about obtaining U.S. Green Cards through an EB-5 project, schedule a free consultation with EB5AN.