A writ of mandamus is an order from a court compelling a lower government body to perform an act that it has a clear duty to perform. In the context of the EB-5 process, a writ of mandamus can be an effective tool in moving forward an EB-5 case that is experiencing extensive delays.

In this article, we will take a closer look at the EB-5 application process, its timeline and potential delays, as well as what solutions EB5 investors can turn to, including a writ of mandamus.

 

The EB-5 Program

The EB-5 program, also known as the Immigrant Investor Program, provides a way for eligible investors, their spouses, and unmarried children under the age of 21 to obtain U.S. permanent residency status (informally known as a Green Card).

The EB-5 program was established in 1990 by the United States Congress as a way to encourage investment in the U.S. economy. The program requires that investors meet certain criteria, make a significant capital investment in a U.S. venture and, through that venture, create at least 10 full-time, permanent jobs for U.S. workers.

The EB-5 visa program has undergone various changes throughout the years. As it stands today, an investor can either make a direct investment in a business that they will own and operate, or they can invest in a government-approved EB-5 regional center.

Regional centers are business organizations designated by USCIS to sponsor various EB-5 investment projects. Regional centers gather funds from multiple investors and manage both the projects and the job creation process.

If an investment is made in a high unemployment or rural area, also known as a targeted employment area (TEA), the minimum EB-5 investment amount is $800,000. If the investment is made in any other region of the U.S., the minimum investment amount is $1,050,000.

The EB-5 program has numerous benefits, including the fact that no employment offer or other type of sponsorship is needed, and that the investor and their family have the freedom to live anywhere in the United States that they choose.

How to Apply for EB-5 Status

Invest in a Reliable EB-5 Project

The first step in the EB5 process is for the investor to find a suitable investment project that is compliant with all EB-5 requirements. Once the project is selected, the applicant must invest the required amount of capital in the project. When the investment is made, an I-526 or I-526E application is filed with the United States Citizenship and Immigration Services (USCIS). The I-526E application includes documentation of the investment, a business plan, a job creation plan and proof of lawful source of funds.

As of March 2024, the USCIS-published processing time for I-526 petitions is 55.5 months. While these published processing times are useful for planning purposes, actual processing times often vary.

Receive Conditional Green Card

Following the approval of an I-526E petition, the investor and their qualifying family members receive conditional permanent resident status for a period of two years. Toward the conclusion of the two-year period, the investor files an I-829 petition.

Remove Conditions and Become a Permanent Resident

The purpose of the I-829 is to provide USCIS with evidence that the investor’s project has met all program requirements during the initial two-year period. Processing times for I-829 petitions can vary on a case-to-case basis, but petitioners’ conditional permanent residency is extended during the processing period.

Finally, as a last step in the process, many EB-5 investors choose to apply for United States citizenship.

EB-5 Application Delays and How to Address Them

While the EB-5 program provides one of the most direct pathways to U.S. permanent residency, extensive processing times, at either the I-526 or I-829 stages, often pose significant challenges for investors. Fortunately, there are steps which, while limited, an investor can take to address potential case processing delays.

Prepare Your Application Carefully

Given the length of the EB5 application process, foreign nationals are encouraged to move steadily forward with the preparation of their petition and to avoid delays in filing their applications.

To avoid requests for evidence, applicants should also ensure that all submitted documents are accurate and complete.

To ensure the best results, investors should remain informed of changes to EB-5 regulations and processing times. Detailed records should also be kept of the application process and of all steps taken to communicate with USCIS. If delays occur, this approach will make it simpler to address and resolve issues.

Know Your Rights

USCIS provides an e-Request tool that allows applicants to inquire about applications and petitions that are outside normal processing times.

Applicants can also engage the Office of the Citizenship and Immigration Services Ombudsman, who serves as a bridge between USCIS and individuals applying for immigration benefits. Although the Ombudsman does not have the authority to change USCIS decisions or enforce policies, it can provide assistance in complex cases and facilitate communication.

It can sometimes be effective to solicit the assistance of a congressperson or senator to inquire about the status of a delayed petition. Congressional offices often have communication channels available to them that are not directly available to applicants.

Engage with the EB-5 Community

Joining EB-5 investor forums and platforms can provide support and up-to-date information. These groups may also organize to address broader issues within the EB-5 program.

On the other hand, hiring an immigration attorney or experienced industry professionals who specialize in EB5 petitions is highly recommended. Their expertise can be invaluable in navigating the intricacies of the EB-5 process and in resolving issues.

Writ of Mandamus as a Last Resort

As a recourse of last resort, investors experiencing unreasonable delays in the processing of their EB-5 petitions may consider filing a writ of mandamus in U.S. federal court. As noted above, a writ of mandamus is an order from a superior court compelling a government agency to act. In the EB-5 immigration law context, a writ of mandamus will compel USCIS to take action on a delayed EB-5 petition.

When taking mandamus action, a petitioner must establish that the delay is unreasonable. They must also establish that the delay is causing them undue hardship, that they have exhausted all other possible remedies, and that no other adequate remedy is available.

It is important to note that while a writ of mandamus lawsuit can force USCIS to take action, it cannot order the agency to rule in any particular way on any given application. In other words, filing a writ of mandamus does not ask a federal court to make a decision on an EB-5 application; rather, it only pushes USCIS to take action. The action taken by USCIS will then be an approval, a denial, or a request for additional evidence.

Although recent landmark court decisions have ruled in favor of petitioners and against government agencies (USCIS) in EB-5 mandamus lawsuit situations, extensive delays still persist. Moreover, taking mandamus action is not recommended under all circumstances.

Risks of Taking Mandamus Action

USCIS processing delays can actually benefit the children of applicants if the children are nearing the age of 21. This is because there are mechanisms in place under U.S. immigration law where an applicant’s eligibility age may be extended if USCIS was responsible for delayed processing times.

Additionally, filing a writ of mandamus is usually not recommended if there are issues regarding the investor’s EB-5 project, such as a lack of progress by the job-creating entity, or problems in the investor’s immigration case like history of visa violations or source of funds issues. It would also not be advisable for investors from countries with visa backlogs, such as China or India, to pay the high costs associated with filing a writ of mandamus if a visa would not be available to them at the time that their expedited case was decided by USCIS.

If there are problems involved with the petition, there is always the possibility that filing a writ of mandamus will only serve to expedite what is going to be a negative decision.

Seek Professional Assistance

Although filing a writ of mandamus can be a highly effective tool in propelling a stalled immigration case forward, it is often considered the remedy of last resort because of the high costs involved, and because a successful outcome is not guaranteed. When considering a mandamus lawsuit, it is highly recommended to work with an experienced EB-5 immigration attorney. An attorney specializing in this area will be able to successfully determine whether it is in an applicant’s best interest to pursue a writ of mandamus.

For additional information on filing an EB-5 petition and navigating potential EB-5 processing delays, please book a free call with EB5AN.