How might filing a writ of mandamus affect a pending EB-5 petition?

Filing a writ of mandamus may force U.S. Citizenship and Immigration Services (USCIS) to adjudicate a pending EB-5 petition, but doing so can lead to unforeseen problems. It may be an option in some cases, but this action should be discussed with an experienced EB-5 immigration attorney.

EB-5 investment participants can file a federal lawsuit called a writ of mandamus to force USCIS, or the Immigrant Investor Program Office (IPO), to adjudicate a petition that has experienced unreasonable processing delays. Forcing adjudication does not guarantee approval—and, depending on the reason for the delay, it may actually result in a denial.

For example, if an error in an I-526 petition makes it impossible to approve the petition without correcting or clarifying the information, the adjudicator will have no choice but to deny the petition. Usually, this type of error may be addressed through a request for evidence (RFE), which gives the petitioner the opportunity to submit clarifications and thus potentially avoid an outright denial.

In addition, if an EB5 investment participant comes from a country experiencing a visa backlog, spending the time and money on filing a writ of mandamus doesn’t make sense. Because no visas are available, the approval of the petition would be meaningless. Similarly, if I-526 petition processing is delayed and an investor’s children might age out of the program if a major delay occurs between petition approval and visa availability, it’s more beneficial to leave the I-526 pending. Children’s ages will remain frozen while the petition remains pending.

Finally, no clear definition exists of “excessive delays,” and the definitions the courts rely on are based on the processing times the USCIS publishes. Consequently, the lawsuit might succeed before one judge but fail before another.

While filing a writ of mandamus is an option for EB-5 petitioners who seem to be experiencing unreasonable delays in the adjudication of their petitions, seeking legal advice is crucial. Anyone considering this course of action must engage an experienced immigration attorney who has dealt with such lawsuits in the past.