What is a writ of mandamus and when might it be an option in an EB-5 case?
In the context of EB-5, a writ of mandamus is a federal lawsuit that forces U.S. Citizenship and Immigration Services (USCIS), or the Immigrant Investor Program Office (IPO) to take action on a case that has been unreasonably delayed. “Mandamus” is from the Latin “mandare,” which according to Merriam–Webster.com means “enjoin.” Filing a writ of mandamus forces the adjudication of a case when the petitioner has experienced an unreasonable delay in adjudication.
EB-5 investors who are experiencing significant adjudication delays may be tempted to force USCIS to act, but doing so is not always in their best interests. First, adjudication does not equate to approval. If the petition contains an error that would make approval impossible without clarification or correction, the petition will be denied. In contrast, if adjudication takes place through the usual process, the adjudicator may issue a request for evidence (RFE) instead of simply denying the petition.
It would not make sense for EB-5 investors from backlogged countries to file a writ of mandamus, as they would incur legal fees with no clear benefit since no visas would be available. Similarly, filing a writ to compel the adjudication of an I-526 petition when the petitioner’s children are at risk of aging out of the program would not be beneficial. Children’s ages are frozen while the petition remains pending, and compelling adjudication only to face delays after approval will increase the risk of aging out.
The definition of “excessive delays” rests on the processing times published by USCIS. There are no clear guidelines on what constitutes a reasonable waiting period. This could mean that a writ of mandamus would fail before one judge but pass before another. Litigation may be the only way to establish a clear norm regarding what is considered a reasonable delay.
Mandamus is an option, particularly in cases that have been pending beyond the normal adjudication time without any clear reason from USCIS. However, anyone considering a writ of mandamus should consult an immigration attorney with experience filing such actions.