The long processing times for EB-5 petitions at United States Citizenship and Immigration Services (USCIS) are no secret. EB-5 investors regularly have to wait years—as many as five for those from severely backlogged countries such as China—and as of October 2020, USCIS gives little indication of processing times decreasing. Besides the missed opportunity costs of delaying their new life in the United States, EB-5 investors face various downsides due to USCIS’s long processing times, including the possibility of their dependent children marrying and thus losing eligibility for a U.S. green card.
What can someone with an active EB-5 investment do if USCIS is taking an excessively long time to adjudicate their I-526 petition? Recourse for EB-5 investors stuck in USCIS processing limbo is limited—filing a case inquiry is possible but only if the petition was filed before USCIS’s date for case inquiry, which is displayed alongside USCIS’s estimated case processing time ranges. However, the listed date for case inquiry is so far back that it hardly encompasses any investors, virtually rendering it useless.
Filing a Writ of Mandamus
USCIS’s broken case inquiry system leaves filing a writ of mandamus as the only really viable course of action to force USCIS to adjudicate a pending petition. In the EB-5 context, a writ of mandamus is an order for USCIS to adjudicate a given I-526 or I-829 petition. EB-5 investors must be aware of the inherent danger of forcing USCIS to immediately adjudicate a petition: if there is insufficient or inconsistent information in the petition, USCIS will reject it rather than send a request for evidence (RFE), which offers an investor a second chance to salvage their EB-5 dreams.
Filing a writ of mandamus should be a last-resort measure in cases of excessively long wait times because it’s an expensive, risky endeavor that certainly doesn’t guarantee EB-5 success. Any EB-5 investor who feels that filing a writ of mandamus may be the right step for them is encouraged to consult their EB-5 immigration lawyer to review their situation and determine whether it’s a good idea. Additionally, EB-5 investors from backlogged countries—as of October 2020, China and Vietnam—must also keep in mind the naturally longer waiting times they must incur as a result of the high EB-5 demand from their country.
Precedent for Success in USCIS EB-5 Lawsuits
EB-5 investors may be concerned about filing a lawsuit against USCIS if their petition is still listed within the estimated processing time range. After all, USCIS can argue that their normal, or average, processing times are “reasonable.” However, two lawsuits against USCIS—Raju et al v. Cuccinelli and Keller Wurtz v. USCIS—show that judges disagree.
Together, the lawsuits included 11 EB-5 investors who had filed their I-526 petitions between 22 months and 29 months prior to the lawsuit date. Based on USCIS’s estimated processing time range, it’s far from abnormal to not receive an adjudication in such a time period, so by EB-5 standards, these investors were not facing excessively long wait times.
Indeed, USCIS chose to argue that delays of up to four years were “reasonable.” As evidence, they referenced their estimated case processing time ranges, which at the time spanned from 29.5 to 74.5 months (2.5 to 6.2 years). In both cases, the judges sided with the investors, arguing that the fact that USCIS takes just as long or longer to adjudicate other I-526 petitions does not prove that the waiting times are indeed “reasonable.” In this way, the judge essentially ruled that most of USCIS’s EB-5 adjudications are made with unreasonable delays.
Both judges also referenced the congressional decree that immigration applications should generally be processed in no more than 180 days. They argued that “reasonable processing times” should be counted in weeks or months, not years, and thus both lawsuits ended in victory for the EB-5 investors.
USCIS Already on Shaky Ground
These two defeats in court only add to USCIS’s hardships in 2020. Barely staying afloat financially, in August 2020, the immigration agency already narrowly avoided carrying out a major furlough where around 70% of its employees would have lost their jobs. Thousands of USCIS employees managed to hold onto their jobs thanks to reduced spending and upticks in revenue and receipts, but the longevity of these measures is unknown. The immigration body proposed filing fee increases for certain immigration petitions, including the I-526, I-829, and I-485 petitions, but the legislation was enjoined on September 29, 2020, costing USCIS millions in lost funds each day the proposal is enjoined.
Now, with the ruling of these two lawsuits USCIS may be forced to adjudicate EB-5 petitions faster. USCIS’s already unreasonably long processing times have only increased in 2020, with the agency citing the effort and changes made to avert the August 2020 furlough as reasons for further delays. However, the agency may have no choice but to straighten itself out and get to work on EB-5 petitions—the precedent set by the successes of these two lawsuits may inspire more applicants with active EB5 investments to file a writ of mandamus, and if judges continue to side with the investors, USCIS will find itself in hot water.