What should an EB-5 investor do if the I-526 petition has been pending beyond normal processing times?

Beyond making inquiries as to the status of the petition, an investor may consider filing a writ of mandamus, which would force USCIS to adjudicate. However, filing a mandamus action may carry some risks. The investor should also ensure that they understand the factors that affect I-526 processing times and what the USCIS processing time ranges really indicate.

An EB-5 investor can ask their immigration attorney to enquire about the status of their petition, or they can track its status through the USCIS Case Status Online portal. The processing time range displayed on the USCIS Processing Times pages hows delays rather than processing times. Half of petitions are processed in the time indicated by the lower number in the range, while 93% are processed by the time indicated by the higher number. That accounts for only 43% of petitions. Therefore, this information provides a rough estimate of the time it takes to process I-526 petitions.

The factors that affect processing times include the sources of investment funds, the investor’s country of origin, and errors in the petition. Proving that the EB5 investment funds derive from lawful sources is one of the cornerstones of the I-526 petition. If the sources are difficult to document, they are also difficult to verify, which slows down processing. Similarly, errors in the petition take time to clarify. Finally, if no visas are available for the investor’s country of origin, USCIS will not adjudicate the petition.

Some petitioners have little choice but to file a writ of mandamus, which carries certain risks. A major risk is that USCIS rejects the petition instead of issuing a request for evidence (RFE) if any information included in the petition is missing or inconsistent. Any investor considering this course should seek the counsel of an immigration attorney with relevant experience.