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EB-5 Attorneys Rethink the Fight Against Unreasonable Delays

EB-5 Attorneys Rethink the Fight Against Unreasonable Delays

The writ of mandamus: A seemingly singular option in the broken case inquiry system of United States Citizenship and Immigration Services (USCIS), it is an action designed to force the hand of USCIS adjudicators on pending I-526 and I-829 petitions. Unfortunately, this course of action also poses the inherent threat associated with immediate adjudication – rejection over a request for evidence (RFE) if insufficient or inconsistent information is found in the petition.

Because of this, filing a writ of mandamus has been designated a last-resort measure only in cases where wait times have become “excessive.” The process is simply too expensive and too risky an endeavor – and still offers no guarantee of EB-5 success. The EB-5 litigation bar has advised exactly this course of action for years, defining “excessive delays” as those which exceed published processing times.

Writ of Mandamus Action Isn’t Working

As it stands, mandamus case results vary little, settling only the longest pending petitions at the Immigrant Investor Program Office (IPO) and USCIS. In these rare settlement cases, the United States government has usually submitted a motion to dismiss following federal complaints officially filed by immigrant investors who have reached their wits’ ends. This has been deemed the norm, and with the published processing times standing at 30–50 months as of December 16, 2020, it is safe to assume that adjudication delays will only continue to increase. Why is that? Because right now, the IPO – not the investors – defines what a “reasonable” wait time is.

EB-5 Attorneys Contemplate Litigation

A glance through recent Visa Bulletins shows the IPO has published ever-increasing processing times, which implicitly extends “reasonable” adjudication delays. Form I-526 adjudication wait times are currently claimed to be two to four years, and in FY2020, only 1,359 I-526 petitions were resolved in the first six months. As a result, EB-5 attorneys are contemplating litigation as the only viable course for resetting the norm on what is considered a reasonable delay.

A Visible Path to Redefining Reasonable Wait Times

Some industry professionals believe that, as a practicality, the EB-5 litigation bar has to first separate actual processing times from what has been established as a reasonable amount of time for EB5 investment petition adjudication. This is because USCIS published processing times merely provide context for delays. As a matter of law, they do not prove in any way that the delays are reasonable. Alternative and more relevant guideposts must be used to define reasonable processing times.

Congressional Intent on Eliminating Backlogs

Congressional intent may serve as evidence for the need for a new definition. Congress’s express concern over excessive backlogs in benefit application processing for immigrants dates back two decades. At the time, the legislative body authorized an appropriation of funds for dissolving backlogs on pending petitions older than 180 days to confer status under the Immigration and Nationality Act. The language used was “the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.”

A few years later, when the Department of Homeland Security was created, Congress amended its verbiage on the matter to extend the mandate for eliminating backlogs from 180 days to one year. This doubled the definition of a reasonable wait time at a time when when Congress felt the added time was warranted. Is so much time still warranted? Actual IPO metrics would be crucial to determining that.

IPO Metrics on Workload Capacity

An evaluation of IPO metrics could pinpoint the workload capacity of its offices as a starting point. Let’s run through an exercise based on 2019 data. IPO data shows 212 adjudicators on staff in 2018, and USCIS claims it takes adjudicators an average of 8.65 hours to process an I-526 petition. This is known as the “touch time.” Then, assume that just half (106) of those IPO adjudicators are dedicated to working on I-526 applications 40 hours per week for 50 weeks per year. That equates to 212,000 work hours on I-526 petitions. Divide the dedicated hours by the touch time to find the workload capacity. We’ll save you the calculation and tell you – based on that formula, the IPO had the capacity to process 24,500 I-526 petitions a year in 2019.

While it is only fair to note that every EB-5 case is unique and that individual circumstances must be factored into processing times, as it stands, only a fraction of the petitions the IPO could theoretically be adjudicating are actually getting done. In all likelihood, therein lies a large part of the problem. Another area that should be further examined is the role of both USCIS deference and IPO prioritization in those delays.

USCIS Deference and IPO Prioritization

USCIS interprets statutory authorization for the EB-5 Regional Center Program as a license to prioritize individual EB5 investment participants’ petitions when they are filed through a regional center. Moreover, the agency grants deference to project fundamentals when there is an approved exemplar application on file. While this may seem like an efficient way to get through stacks of EB-5 petitions, the result of this interpretation has been to allow other well-qualified investors to be cast aside in the wait line for an indeterminate amount of time.

Furthermore, the IPO began prioritizing EB5 investment petitions by listing countries of origin that have visas available – also a tactic that may make sense in terms of tackling individual adjudicators’ caseloads. But where does it leave investors who have already been waiting?

A Strategy Emerges for Potential Group Action

Because every EB-5 investment is different, the individual explanations available to USCIS and the IPO for delays are virtually endless. This has made it difficult to shift the norm on what constitutes a reasonable wait time. USCIS holds up published wait times as a primary defense. Case-by-case litigation isn’t usually an option until a delay of a year and a half or two years has been established, and that’s only the beginning. The worst part is that these motions increase EB-5 investors’ hard costs, personal stress levels, and overall risks, making innovation in this type of litigation paramount.

As such, a new thought within the EB-5 legal community is emerging: it may be a wise strategy to pursue group actions in smaller jurisdictions. This would allow varying USCIS arguments to be addressed with small groups of individual investors experiencing the same kinds of delays. One suit may pursue discovery immediately. Another could move to compel the production of administrative records. The courts would become a testing ground for how to design a new precedent on what constitutes a reasonable delay.

One thing is certain – no action means no change. Following a year of unprecedented challenges, it seems there is no better time than the present to seek out new and creative ways to protect the EB-5 Immigrant Investor Program and its participants!