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Accelerate Your EB-5 Green Card Approval with a Writ of Mandamus Action

Sam (00:00:08):
Hi everyone. This is Sam Silverman, managing partner at EB5 Affiliate Network. Thank you for joining us today. Today, we’re going to be talking about how to accelerate your EB-5 green card approval with a writ of mandamus action. And we’re going to be joined by Joe Barnett from Wolfsdorf and from EB5AN, Mike Schoenfeld as well, managing partner, will be joining us as well. During today’s webinar, we’re going to cover a lot of different, detailed information about the EB-5 process and about strategies that can be used to speed up the approval of a pending EB-5 petition. So, during the webinar, please use the chat box on your screen to enter in any questions that you have during the webinar, and at the end, any questions that still remain unaddressed, we will address them all at once at the end of the webinar. So, again, as we proceed during the webinar, questions that you have, please type them in the chat box. Most of them will probably be addressed by the content that we have, but if anything still remains unaddressed, we will cover them individually at the end of the webinar.

Sam (00:01:34):
This is a short summary of the different topics that we’re going to talk about today. A little bit about the presenters of the webinar, Wolfsdorf and EB5AN; about the process for EB-5 approval and USCIS adjudication; administrative remedies available for approvals; the writ of mandamus action, administrative procedures; act lawsuit. And then, we’ll conclude with a short question-and-answer session. So, first, we’ll talk a little bit about the presenters, for context. Joe Barnett will share a little bit about himself and Wolfsdorf Immigration.

Joey (00:02:21):
Hello, everyone. Thank you so much for joining. My name is Joseph Barnett. You can call me Joey. It’s a pleasure to be here with Sam and Mike. I am an EB-5 immigration attorney—I’ve been doing EB-5 for just about a decade now. And our firm, Wolfsdorf Rosenthal, has been in business since 1986. We handle all types of U.S. immigration, and we’re headed up by Bernard Wolfsdorf, who’s the past president of the American Immigration Lawyers Association. And I filed my first mandamus case back in 2013, and I have filed dozens of them since then. And I am very pleased to talk with you today about my experiences and the way to file a mandamus. And we’ve been very, very successful with mandamus lawsuits, and pretty much every single time I have filed one, I have been able to get a decision from the U.S. government in a relatively short period of time, and that’s what we will be discussing today.

Sam (00:03:31):
Great, thanks. Thank you, Joe. As I mentioned, I’m Sam Silverman, managing partner, joined by my other partner, Mike Schoenfeld. I’ll let him jump in and introduce himself.

Mike (00:03:45):
Hey everyone. Thanks. Thanks for joining. I think we may be stuck on the cover screen now—we’re working on the technical difficulty—but as Sam mentioned, I’m Mike Schoenfeld, one of the managing partners of EB5AN. I worked in private equity and at the Boston Consulting Group before Sam and I started EB5AN almost eight years ago at this point.

Mike (00:04:18):
And I apologize, give us one second to work on the screen here. All right, now it’s progressing. There we go. So, this is a little bit more information on our company. So, at EB5 Affiliate Network, we own and operate 14 regional centers that cover over 20 states, and we have over 1800 investors filed across all of our regional centers. Okay. And this is a slide that we like to show in terms of where investors have come from but filed under our regional fenders. And as you can see, investors from over 60 different countries have chosen to invest in projects that are sponsored by EB5 Affiliate Network.

Sam (00:05:23):
Thank you, Mike. We’re now going to jump into some more details on the EB-5 process and how USCIS adjudicates EB-5 petitions. So, Joey is going to talk to us a little bit about the process so that everyone is on the same page when we go into the different options for trying to speed up a pending application.

Joey (00:05:49):
All right. Thanks, Sam. Thanks, Mike. So, this slide here is an overview of the entire EB-5 process, which begins with the submission of an I-526 petition. When that I-526 is approved and a visa is available, which depends on your country of birth, you are able then to apply for an immigrant visa or to file for an adjustment of status application. And once your adjustment of status application is approved, or once you use that immigrant visa and enter the United States, your conditional green card period begins, and you have 24 months within the United States on that conditional green card status, where you can live wherever you want, you can work wherever you want, or you can just hang out at the beach and drink margaritas. That’s what you want to do. That’s the benefit of having the green card through EB-5 as opposed to being sponsored by an employer. And at the end of that 24-month period is when you file the I-829 to remove the conditions, and a mandamus action can help investors overcome delays that are associated in the EB-5 process.

Joey (00:07:16):
So, in my history, I have filed mandamus actions against USCIS for an I-526 that has been unreasonably delayed. I have also filed a mandamus against the Department of State when they are taking too long to issue an immigrant visa. It is also possible to file a mandamus action at the I-829 stage as well. So, there are different points in the EB-5 process where, if the government is unreasonably delaying, you can take action that you can move forward. Today, we’re going to be talking about the I-526 petition, really because the processing times have just jumped out of control in the past year, two years. And a lot of folks who have filed an I-526 are done being patient and waiting for USCIS to make a decision. So, if you go to the next slide, this talks about the average processing times right now, and USCIS just updated their processing times for I-526.

Joey (00:08:36):
And they’re saying that the estimated range is about 30 to 45 months. That’s what they’re saying, as of this month, and when you look into these processing times, what this says is that the time to complete about 50% of the Form I-526s is about 29.5 months. The time to complete about 93% of I-526 cases is taking that 44.5 months. So, if your case has been pending for under the 29 months or under the 45 months that is listed, USCIS would argue, well, you’re within normal processing times. And one of the things that I want to say is, just because you are… just because of the delay is unusual, that does not make it reasonable. And I think, when you’re going and doing these types of actions, my job as the attorney is to convince a federal court judge how unreasonable this is.

Joey (00:09:56):
One of the other—and we’re going to get into that in the next slide, which talks about USCIS processing and how this estimated time range has really jumped—but one thing that I want to mention is that at the beginning of last month, USCIS started doing this new processing for I-526, which is called the visa availability approach. And based on this new approach, USCIS is going to be prioritizing I-526s that were filed by those who are not subject to a visa backlog. So, pretty much that means anybody but an investor who was born in mainland China, and potentially in Vietnam—those are the cases that are currently backlogged. And so, this, as far as I’m concerned, is another great piece of information that you want to include in your complaint, saying that, “Look, the plaintiff here, the EB-5 investor, is eligible for this prioritized processing.”

Mike (00:11:15):
Joey, so looking at this, so… it’s clear. So, it’s saying now that it’s 29.5 to 45.5 months—does it feel like USCIS has been moving the goalpost back on us? What did processing times used to be in… about when did you start seeing this longer tail-end range that they started?

Joey (00:11:34):
Yep. So, when I first started doing [EB-5] back in 2011, it was taking on average six to eight months for USCIS to adjudicate an I-526. Until 2017, processing times were under two years or so, and only until recently have we seen this inexplicably jump and processing. And I think that coincides with the appointment of the new Immigrant Investor Program Office chief, as well as their intent to what they call “have integrity measures” to make sure that EB-5 applications are being properly adjudicated. And we’re going to talk about that. But interestingly, when USCIS wants to increase their fees, like they did a couple of years back, when they increased the fee from $1,500 to $3,765 for the I-526, they indicated that it would only take around six and a half hours for USCIS to adjudicate one I-526. When they wanted to do another price increase at the end of last year that hasn’t been implemented yet, they indicated it would take about eight and a half hours per I-526 to get adjudicated.

Joey (00:13:05):
So, that’s what we’re kind of working with, you know… six and a half to eight and a half hours per case. That means an adjudicator should be able to adjudicate one case every single work day. And when we look at the data on I-526 processing, it is very clear that that is not happening. And so, I want to draw everybody’s attention to the red square box here. These are statistics that were recently released, and they showed that only 455 I-526s were processed in the first quarter of 2020. So, that starts October 1, 2019, until the end of December, 2019. They only adjudicated 455 applications. When you look at historical processing, you can see that something has dramatically changed here, and that would be information that you want to provide in your complaint. You need to explain and clarify that drop-off in processing and the huge increase in the filing, in the average processing time, over the past 10 years. All of that information, I think, will get a federal judge to be sympathetic that this case has been pending for an unreasonable amount of time.

Joey (00:14:50):
Mike or Sam, you guys have any other comments on this slide?

Mike:
Yeah, so I would say, just focusing on the last four quarters, if we go back to the previous slide, you can see that the processing is down over 80% from the four quarters before. What they did all of last year in the last calendar year is less than they would do in a typical quarter previously. So, we’ve been trying to figure it out, and the reasons behind that have not been made very clear. We’re hopeful they pick it back up, but as you can see, this type of processing is not acceptable, and it will take many, many years to get through the backlog if they don’t improve the processing times.

Sam (00:15:33):
Yeah. One other thing to consider when looking at this slide is that the percentage of denials for applicants in the last several quarters is significantly higher than it has been previously. The dark blue shade in the boxes in Q3, for example, April to June, 2019—you can see the dark blue is, you know, almost half of applications, whereas in a year before then, 2018 Q3, the blue is, you know, less than 10%. So, it’s a combination of both a significantly greater percentage of applications being denied as well as just an overall significantly slower processing. And so, that’s why having one of these independent federal judges review one of these cases can be very advantageous instead of just waiting however long it may be for USCIS to eventually take action on a pending file.

Joey (00:16:44):
Yep. And on this next slide, actually, these are remarks—this is a typo, and I apologize for this—this is actually from Sarah Kendall, who is the chief of the Immigrant Investor Program Office. When they had a stakeholder meeting in March, she talked about how they were going to be moving to this visa availability processing. And during her remarks, she indicated that case completion rates have decreased. And these are the reasons why—“they’ve been doing training, they’ve been working with outside enforcement agencies, and they are working on enhancing the integrity of the program.” But one thing I wanted to make clear in this slide here is that, in my experience, USCIS was never adjudicating cases on a first-in-first-out basis. Maybe that was their goal, but the actual processing of the I-526 has many different factors.

Joey (00:17:50):
For example, if the project or regional center project has an exemplar approval, well, then we would tend to expect that the processing of an investor’s application would be quicker than a project who doesn’t have an exemplar approval. Additionally, we have always seen that direct EB-5 cases are always pending longer than center cases. And based on my experience, USCIS will undoubtedly issue a request for evidence on a pending I-526 just to check in, to see the status of the business, before they approve the case. You know, I was looking at our firm’s records. We had filed thousands of I-526 applications. We have a case that was filed in 2019 that was approved. It somehow slipped through yet. We also have cases from 2016 still pending. So, again, this just goes to my point that it’s not adjudicated on a first-in-first-out basis, and that will certainly be different now that they have changed to the visa availability approach.

Joey (00:19:07):
So, before I get into the actual mandamus lawsuit, I think it is important to understand that when you are going to a federal judge and when you file a written mandamus lawsuit, you file it in federal court. And the reason why you file it in federal court as opposed to state court is because it is a question involving federal law—the immigration and nationality act is a federal law. And so, this is a federal question. That’s the subject matter jurisdiction, the jurisdiction of the court to hear a case, and only a federal court and federal judge has the ability to issue an order to compel the government to make a decision, but before a court does that, I do believe it’s important to show a judge that you have attempted to remedy the situation on your own. And so, USCIS has put together, you know… there’s sort of a process that you can do.

Joey (00:20:22):
These are not necessarily required, but I think it is a good thing to show that you’ve made a good-faith effort to go through the administrative process before relying on a federal judge to make an order. So, you can always send standard inquiries to USCIS. You can email them. You’ll probably get a boiler plate response back indicating that your case is within normal processing times and “we are striving to do a better job with processing while maintaining the integrity of the program.” Great. You can file an escalation request. You’ll likely also get a boiler plate response. You can file a case inquiry with the USCIS ombudsman’s office, which has an independent, I want to call it almost a watchdog of USCIS. And you can say, “Look, my case has been pending for an unreasonable time. Is there anything you can do to assist?”

Joey (00:21:25):
And again, it likely won’t help getting the adjudication done, but at least it shows that you are in this administrative limbo and that you have tried everything you possibly can before going to a judge. The same is true for a congressional inquiry. If you’re in the United States, you can always reach out to your congressman, to your senators, and they can inquire with USCIS on your behalf as well. So, these are all what we call “exhaustion of administrative remedies.” And it’s something that I like to build into my complaint to show, again, that you are stuck in administrative limbo.

Joey (00:22:16):
So, now let’s move on to the big kahuna—the writ of mandamus administrative lawsuit. I want it to be very clear, and I’m going to try to simplify this as much as possible. You file a lawsuit in federal court against the U.S. government. A writ of mandamus is actually an order by a judge compelling a U.S. government official to perform its non-discretionary duty. So, a mandamus is a claim that you put into a lawsuit. You are asking the judge to issue an order against the U.S. government, against USCIS, to make a decision on the application. I want to be very clear—this is a really important point—you are not asking the judge to approve the application. You are asking the judge to issue an order so that USCIS can adjudicate the application. You are not asking them to approve it. You’re not even asking USCIS to approve it.

Joey (00:23:36):
USCIS will look at the underlying application, and they will see if you comply with the eligibility requirements. So, again, if you filed a case that has a very difficult source of funds or the source of funds isn’t clear, or if you’re in a direct EB-5 case and the business hasn’t moved forward, it’s possible that when a judge issues the writ, USCIS comes back and either issues or requests for evidence, or potentially even denies the case. So, I always look at the underlying I-526 application and the personal circumstances of each case before determining whether it’s a good idea to move forward with a mandamus action. And once the complaint is filed, this is all done electronically. Then, the next step is serving the U.S. government a summons and a copy of the complaint. And when that happens, our Department of Justice attorney is assigned to the case. And the Department of Justice attorney—their client is USCIS.

Joey (00:24:51):
And so, the Department of Justice attorney, or the assistant U.S. attorney, will be representing USCIS moving forward. And they will almost be a liaison to USCIS because despite your inquiries, despite your escalations, we’re getting boiler plate responses, so the Department of Justice attorney can actually talk with its client and see what the status is of the case. And a lot of times, these guys don’t want mandamus cases on their docket. In my experience, they find them to be a nuisance. They have more important cases to be dealing with. And so, they will liaise with USCIS and try to get a decision or a request for evidence issued before a federal judge even gets to see the actual merits of the case. And generally, once you file the summons, the government has 60 days to respond. And they may ask for a continuance.

Joey (00:26:14):
They may file a motion to dismiss. They may file an answer. There are different responses that the government can make depending on the nature of the case. But in general, I have been able to get some sort of response from USCIS within about 120 days or so after filing the complaint. That’s the main advantage here—that you get the Department of Justice attorney on your side, and you hope that they work with you and USCIS to get a decision in a much quicker timeframe than you would have otherwise. Some drawbacks, as indicated here, is there’s no easy answer to what is an unreasonably delayed application. A judge will look at, well, what is the average processing time? They will look at, well, what is the government’s priorities? And so, that is why it is so important in the complaint to allege all of the information that we went over before the processing has dropped off, that processing time has blown up.

Joey (00:27:26):
All of this information will be helpful to convince a judge that this actually is an unreasonably delayed petition. There are also some jurisdictional issues that could arise, and that’s why it’s important to retain an experienced attorney to do your mandamus—because you need to be prepared to respond to a motion to dismiss, and a motion to dismiss can be based on numerous things. But the end result of a motion to dismiss is that the government wins, and they don’t need to adjudicate your case. So, you know, the judge doesn’t have to issue that writ of mandamus against USCIS to adjudicate the case. That’s the major drawback. In my experience, the way that I like to think about it is, a federal judge almost acts like a school principal, where USCIS is the teacher, and your case, and you guys, are the students.

Joey (00:28:45):
A federal judge makes sure that—as the principal makes sure that—the teacher is acting appropriately. You know, like, when there’s kids in school, you’re talking in class, maybe the teacher isn’t as strict, but as soon as that principal walks in, you know, the schoolteacher is going to be acting a lot more properly. And that’s sort of the same idea here—once we get a federal judge looking over the case, the goal is that USCIS will be adjudicating it much more quickly. One question that I always get is, “Well, what happens? Can the government retaliate against me for filing the mandamus, for filing the lawsuit?” In my seven years of doing mandamus cases, not once has that ever happened. USCIS will look at the underlying petition, but they’re not going to deny a case solely because you filed the lawsuit.

Joey (00:29:50):
And if that were to happen, although I’ve never seen it happen, then you would just amend your complaint and argue that they denied the case arbitrarily based on some factor that is outside of the law. And you have a First Amendment right to petition the government. So, I really don’t see retaliation being an issue. When I’ve spoken with government attorneys who have become private litigators, they’ve also indicated that the government isn’t that, let’s say… I don’t wanna say “responsible,” but the left hand doesn’t always talk to the right hand. And so, just because you file a lawsuit in federal court doesn’t mean that the actual officer will even know about that. So, again, it’s something that I get asked on all the time, and I’ve never seen it happen. So, if you go to the next slide here, we can kind of talk about some case studies here.

Joey (00:30:59):
Here in the first one, the case was pending for right around two years. We filed a mandamus shortly thereafter. We got a request for evidence based on their source of funds. We responded to that. We kept the case open. We asked for a continuance so that the judge… so that when we responded to the RFE, it didn’t take them another unreasonable amount of time. We had the case continued. So, they knew that there was some sort of deadline to respond and adjudicate the case. Here’s another case that we filed back in July of last year [2019]. And just about five, six months later, the I-526 was approved. I have filed three mandamus cases in the past month. When you look online, research shows that there’s been about 40 mandamus cases filed against the IPO, Immigrant Program Office, in the past six months or so.

Joey (00:32:07):
And so, you’re seeing this become a huge area of growth because investors are tired of waiting, especially those who are in the United States, and perhaps their underlying non-immigrant status is running out. For example, if they’re on an E-2 or an L1, or if they are on an F-1 and their OPT is running out, then they would have to either leave the country or find another way to remain in the United States. If the employment opportunities are not there, then they have a lot of anxiety and a lot of concern that their I-526 won’t be approved in time. And that’s why we’re seeing mandamus actions on the rise.

Joey (00:32:56):
So, when we talk about whether a mandamus case makes sense, you know… if you have filed a case before 2018, I think that is a reasonable amount of time. That means your case has been pending for two and a half years, pretty much—that’s a long time. And I think a federal court judge would be sympathetic to that. Those who were filed in 2018 or more present, more recently—I think you have to look at, sort of, the underlying personal circumstances—for example, is your status going out? And, you know, the other thing is, let’s say you filed a regional center case. The project has been approved under an exemplar application. Jobs are being created. You can demonstrate that construction has started, and maybe you can even show that other I-526s in the project have been approved as well. Well, in that case, then the government really should be looking at your specific source of funds under its deference policy.

Joey (00:34:04):
And so, that again is another reason why it may make sense in a particular circumstance that this processing should be quicker than a normal processing. The other thing that I want to make clear is that if there isn’t a visa available—for example, a Chinese national—it may not make sense to file a mandamus if you filed your I-526 in 2017, because you wouldn’t really be able to move forward in the next step, which is to get your conditional green card, because there isn’t a visa available. Or let’s say that you have a child who could potentially age out—well, the longer you’re I-526 is pending, the more relief that you get under the child status protection. And so, again, these are personal circumstances that an attorney needs to look at and consider before deciding whether it makes sense to move forward with a mandamus action.

Joey (00:35:12):
And we kind of talked about administrative remedies and your preferred timeline. Again, once your I-526 gets approved, then if a visa is available, you will be able to move forward to that next step of the process. If, for whatever reason, you’re not ready to go, because you have business abroad or there are tax issues, then it may make sense to hold off on a mandamus prior to getting that all resolved. So, two groups—I think that was a very helpful summary on that. And, I mean, I think for some of these investors, one of the key takeaways is that the writ of mandamus does not always make sense, especially if you have those age-out issues or if your visa would be backlogged anyway, but for most other investors that don’t fall into those categories, it could be a great option to get the process moving more quickly.

Joey (00:36:07):
Exactly the way that I think about it is, the mandamus is just another arrow in your quiver of tools on how to get USCIS to act. And I think it’s something that we’re, like I said, we’re seeing a huge growth in this area over the past six months or so. And I really just have to clarify… I really have to say this. It may not be the best idea to use your EB-5 immigration attorney to do your mandamus because litigating in federal court is very different than filing cases in USCIS. With USCIS, you are dealing with a federal court judge. The complaint must be sufficiently pled to resist any motion to dismiss, and your attorney needs to be able to respond to a motion to dismiss in the event that it happens. It’s easier said than done.

Joey (00:37:10):
And so, when I am, you know, talking with a potential plaintiff, I am always looking at, well, what’s your I-526 date. Tell me about your source of funds. Tell me about the status of the project. Are funds remaining in escrow for your I-526 to be approved? You know, are you going to be falling out of status on your E-2 or your F-1 and we need the judge to issue that order so that you can move forward and not be displaced from your family, not have to move back abroad? This is, I think, even more important when you have U.S. citizen children—for example, an Indian national who came over on an H-1B, had children in the United States, they are U.S. citizens, and what would happen to those children if their parents are required to return back to India? I know it’s a completely different lifestyle over there. And so, you have to be thinking about that as well. Again, this is all different circumstances that we need to consider and include in the actual complaint.

Joey (00:38:29):
So, I guess my conclusion with mandamus and with APA lawsuits is that this is a great tool that if used in the correct circumstance—it’s a relatively simple way to get some sort of resolution on a pending case, I would say within about 120 days or so. And I would be happy to discuss the personal circumstances with anybody here. My contact information is at the beginning of the slide, and I think you’ll get a copy of the presentation just by registering here. So, feel free to reach out to me, and I would be pleased to discuss your case.

Sam (00:39:25):
Great. Thank you, Joey. We have received a number of specific questions that we’re going to address at the end of today’s presentation as well. And we’ll have the contact information also posted at the end of the presentation as well. Now we’re going to move on to the question-and-answer portion of the webinar. So, we’re going to pull up the list of questions, and we’ll start addressing them the best that we can. And here’s the contact information for both EB5 Affiliate Network and Joey at Wolfsdorf. So, you can reach out individually with any other follow-ups as well. Okay. So, going down the list of questions here, and there’s quite a few questions… so we’re going to try and cover each of them quickly so that everyone gets an answer. So, first question— “You spoke about”—and this is to Joey—“you spoke about L1 and E-2 visas, but shouldn’t H-1B folks be concerned about their time running out as well?”

Joey (00:47:00):
Absolutely. Absolutely. What is about those on H-1B is that if you have an employer who has sponsored I-140 application and it’s approved, then you can continue to extend out your H-1B beyond the normal six years. But if you want to change employers or, you know, if that timeline is still too short, then yes, absolutely. Mandamus may be something to look into for an for someone on an H-1B. And actually, one of the mandamus lawsuits that I filed earlier this month is for an individual who is on an H-1B. So yes, absolutely. They would be someone who would be looking into this.

Sam (00:48:00):
Great, the next question, and I can answer this one—“Will this presentation be available for participants?” Yes. If you registered, you’ll get an email with a link to the full video recording of the entire presentation. Next question—“Which jurisdiction for New Jersey candidates?”

Joey (00:48:22):
Yep. So, this is a good question. And it really relates to where you actually file the lawsuit. The way that the statute works is, you kind of have your choice on the jurisdiction on where you file. It’s okay to file where you are located, but I think, more importantly, you want to be looking at, well, where is the defendant located? I personally have been filing in Washington, DC, and I have had success there. I have heard that in some other jurisdictions, like in Texas or even New York, there has been some pushback on mandamus lawsuits for EB-5. There have been motions to dismiss, where in Washington, DC, I haven’t had to deal with that yet, and—knock on wood. I hope I won’t. But it is always a possibility. You also want to be looking at, you know… when you file a lawsuit, you are randomly assigned to a judge. And so, some judges may be more sympathetic than others. For example, if you’re located in Texas or in the South, you may see less sympathetic judges than if you’re filing in California and potentially, you know, Seattle area. But again, it is somewhat of a crap shoot on which judge is going to be assigned to your case.

Sam (00:50:00):
Great. Next question. What’s the earliest you can file a writ of mandamus with no serious consequences?” and then “Can 2019 applicants file?”

Joey (00:50:16):
So, let me just say this—the only possible drawback of filing the case, other than potentially some legal fees, less anxiety, you know, is they’re either going to move forward and adjudicate the case, or they’ll say that it hasn’t been pending for an unreasonable amount of time, and they dismiss your case and you’re back at the status quo anyway. I’m a bit reluctant to file a mandamus on a case that was submitted in 2019, unless there are some, you know, personal circumstances that make it compelling, because I just don’t think that a case that’s been pending for only 12 months or maybe 16 months—I don’t know if a judge would deem that to be unreasonable, and I don’t want to make bad case law, which is what could potentially happen.

Sam (00:51:24):
“Can writ of mandamus be filed after filing for an I-829?”

Joey (00:51:31):
Yes, they can. And as a matter of fact, what’s great about the I-829 regulation is that USCIS is supposed to make a decision within 90 days of filing, or 90 days of an interview, which they have been waiving [due to the COVID-19 pandemic]—whichever is earlier. Oh, there is actually a regulatory imposed limit on when they are supposed to be making these adjudications for I-829. And if your case has been pending for two years, three years, your I-829, you haven’t gotten your money back, the jobs have been created—by all means, I think it’s an acceptable strategy to move forward.

Sam (00:52:15):
Next question—“Can you talk a little bit about your success rate filing these cases? How many cases and what success rate?”

Joey (00:52:26):
Sure. My success rate is 100%. I have never gotten a federal judge to say, no, this has not been pending for an unreasonable amount of time. Most of the time, I don’t even get in front of a federal judge because I work with the Department of Justice attorney, who liaises with its client, USCIS, and helps to move the case forward, get it off the shelf and onto an adjudicator’s desk. So, our success rate has been 100%.

Sam (00:53:05):
Next question—“Once there’s been a ruling on the case in favor of the applicant, of the investor—at that time, how long, approximately, does it take to get the approval notice?”

Joey (00:53:19):
30 to 60 days to get the adjudication completed—30 to 60 days. But, again, just because they issue the order to adjudicate doesn’t mean it’s going to be an approval. They could issue a request for evidence. They could deny the case. But generally, whatever that next step is by USCIS, 30 to 60 days.

Sam (00:53:34):
Got it. So, 30 to 60 days for some update on the application?

Joey (00:53:47):
Correct.

Sam (00:53:52):
“What would the retainer fee be for a mandamus action? And an estimate of what the government filing fees, et cetera, would be.”

Joey (00:54:02):
Federal court filing fee? Our fees for mandamus can range because it depends on the circumstances of each plaintiff. Also, if there are numerous investors in the same project, it is possible to join them all as plaintiffs in one action, which would reduce our fees as well. So, it can vary. It can vary anywhere from, I want to say, $5,000 and upward. If there are a lot of plaintiffs in the same project, then we can talk about reducing fees. But in general, I have mostly been filing my cases individually. And the reason why I do that is because I believe that if you have 20 cases all part of the same complaint, it is much more work for the government to adjudicate 20 cases as opposed to adjudicate one. And so, I like doing it individually, though it is absolutely possible to file together with numerous pointers.

Sam (00:55:14):
Got it. So, if you were filing individually, what’s the range of expense that you’ve seen?

Joey (00:55:23):
I mean, I’ve seen some attorneys go as low as $2,500 just to file the complaint, but then there’s add-ons if you have to respond to a motion to dismiss… you know, there’s, add-ons if you have to, you know, file for a motion for summary judgment, depending on the nature of the case. But, you know, it ranges anywhere from… I think I’ve seen anywhere from $2,500 all the way up to $25,000. It depends on the case.

Sam (00:57:29):
Next question is for Joey—“After all of the admin options or steps have been exhausted, is there a difference between filing a mandamus action for a direct investment or a regional center project? Or are they both the same?”

Joey (00:57:45):
Same. One thing I would say… the one thing I would say with that is, for direct, I would anticipate getting a request for evidence on any direct I-526 filing. That’s my experience. They want to see that the business is moving forward. And so, unless you have some facts to rebut a request for evidence, you may want to hold off on a direct EB-5 case. So, again, it depends on the facts of the matter, but no, there’s no difference in terms of the process for a mandamus on a direct versus a regional center case.

Sam (00:58:35):
Got it. Do you work with the investors and guide them through the administrative steps that would want to be demonstrated prior to the filing of the lawsuit?

Joey (00:58:45):
Yes, we do help. But it doesn’t necessarily need to be done through an attorney. A lot of times, for example, when you’re dealing with congressional offices, I find actually that those offices are more sympathetic. If the investor is the one who is contacting them, they will also require you to sign some sort of privacy act statement so that they can contact USCIS on your behalf. And so, sometimes the attorney, as the middleman, can just slow that down.

Sam (00:59:24):
Got it. Got it. Okay. Yes. Next question. Yes, there will be a recording. If you registered, you’ll get an email with the recording.

Sam (00:59:37):
So, the question is, “Can you file this with a group of investors?” We addressed that earlier. Yes, it can be done individually or with a group.

Sam (00:59:47):
Next question—“If someone wants to file a mandamus, do they need to wait 19 months?” No, there’s no specific time that you’d have to wait.

Sam (01:00:40):
This is for you, Joey—“Should we delay filing a mandamus due to the COVID situation?”

Joey (01:00:46):
It’s a great question. I have talked with Bernie, the managing partner of my firm, about this a lot recently because, although I haven’t seen it, I think it’s possible for the government to come back and say, “Well, look, we’re under these work-from-home orders. And, you know, we can’t adjudicate as fast as we used to.” I think I would be able to respond to that and show why that is not a valid claim. Number one, we know that USCIS is still adjudicating EB-5 cases. We know that the processing numbers have gone down dramatically even before COVID began. And three, from what I understand, even those who are under these shelter-from-home orders, they are still able to go into the office, grab a case and to bring it in a box home and adjudicate it at home. So, I don’t think they’ve stopped processing EB-5 cases just because of COVID.

Sam (01:01:55):
“Obtaining a response from USCIS in 120 days… does that mean either an approval or a denial or an RFE related to the I-526 application?”

Joey (01:02:36):
Correct. That is, again, that is a general estimate, but we have seen within 120 days or so you will get some sort of response from the U.S. government, whether that is an approval and a denial or an RFE. Or, let’s say that you responded to an RFE two years ago, and you haven’t gotten anything since then. I think that is also a perfect time to file a mandamus case, and they may end up issuing a notice of intent to deny. So, but yes, within 120 days generally or so is when we would see some sort of response by the government.

Sam (01:03:23):
Next question. “My I-526 has been pending for 38 months. How much time do I wait before I inquire with USCIS about my case?”

Joey (01:03:33):
I would do it the moment you hang up from this webinar.

Sam (01:03:42):
“Is filing a mandamus action, a good strategy for an overdue I-824, filed to change an approved I-526 from adjustment to consular processing? We’ve had no success filing repeated case status inquiries on processing an I-824.”

Joey (01:04:01):
I’d have to look closely at the regulations to see if there is a non-discretionary duty. I think there probably is. And yes, although I have seen that, you know, I-824s, I think, can take around a year or so for them to do, it’s a huge pain in the butt. But that is what I’ve seen in general for the process.

Sam (01:04:30):
“If an I-526 was filed in December 2019, can we use them in a mandamus filing to accelerate the application process?”

Joey (01:04:39):
I don’t think five, six months is… I would not file that case.

Sam (01:04:51):
“If an EB-5 initial I-526 filing was done by another attorney, not you, would you be able to take over and complete the mandamus?”

Joey (01:05:02):
Absolutely. And to clarify, being your attorney to work with you on a mandamus litigation is separate than being the G-28 attorney of record with USCIS. So, if you were to retain me to file your mandamus, and USCIS makes some sort of decision on your case, that approval notice, or that RFE, will go to your G-28 attorney on record. Good question. Or, I’m happy to take over the case as well, but that’s a separate matter.

Sam (01:05:50):
“Can you co-counsel that action with the original filing I-526 attorney?”

Joey (01:05:57):
Yes.

Sam (01:06:05):
A lot of these questions are repeats that we’ve already covered. Legal fees—again, that ranges. Average time—about 120 days. “How many mandamus actions have you filed in the last four months?”

Joey (01:06:25):
Four. Excuse me, three. I am working on another. I should be filing another one next week.

Sam (01:06:39):
“How has COVID affected timelines in the federal court system?”

Joey (01:06:44):
It hasn’t. Everything is done pretty much electronically with federal court. So, there really isn’t a reason why COVID would make an issue if there is a hearing. From what I understand, they’ve been doing telephonic hearings, and it hasn’t been an issue.

Sam (01:07:27):
One question we got is related to job creation—“Investing in a project where the jobs have already been completed, how do you show that the capital remains at risk?” The answer to that is that as long as the money remains invested and at risk, you’re showing that that requirement has been met. The job creation requirement only needs to be met once during the investment period, and in that project because the building is already built and the jobs have been created, you’ve met the job requirement at the time you joined the project, and the money just can’t be repaid—it has to remain invested and at risk until the investor has completed the two-year conditional residence period.

Sam (01:08:53):
Joey, do you want to quickly comment on that as well from an immigration perspective?

Joey (01:09:00):
Yeah. A lot of EB-5 projects are structured this way, where they use some sort of short-term temporary financing, which has been contemplated to be replaced by EB-5 capital in the future. Generally, that EB-5 capital is cheaper capital than the traditional mezzanine financing or, you know, a traditional bank loan, and USCIS has allowed jobs to be counted that were created through those initial construction expenditures from a senior bank loan or a mezzanine loan to EB-5 investors, as long as it was contemplated to be short-term financing.

Sam (01:09:49):
Yep, exactly. Yep. Go ahead.

Joey (01:09:50):
I think that was an issue that was really big, I want to say maybe in 2017 or so. We saw a lot of project RFEs about that. And I haven’t really seen a lot of that recently, and to be honest, a lot of projects need that sort of short-term temporary financing to get the project off the ground, to start the construction, because if I-526s aren’t being approved and money hasn’t been released, then the project could result in delays. So, this is a good thing, I think, from a policy point of view, to get these projects off the ground.

Sam (01:10:39):
Next question. “Can a mandamus action be done for an I-829?” Yes. We addressed that earlier. “Can [a mandamus action] be filed related to an I-485?” Joey answered that earlier—yes, probably. “Are processing times the same for all countries?” It varies, the backlog, based on the number of pending investors by country, and USCIS updated their policy a few months ago that they’re not going to be processing applications from countries where there is a backlog pending, including China. So, in general, no, unless it’s China or Vietnam, currently. Average fees with the regional center and attorney to file a writ of mandamus—there is no engagement of the regional center. This is a completely immigration attorney–focused action. So, the regional center is not a participant in the filing or in the preparation of a writ of mandamus. “Can I change the law firm if there was a query or I-526 was rejected?” Yes. You can always change law firm, change attorneys, at any moment, at any time, for any reason, as the client, who is the investor in one of these EB-5 projects. “Do you have investor numbers for EB-5 applicants filed during the last quarter of 2019?” They only have it available for October, November, and December, which is listed in our presentation on slide 10.

Joey (01:13:06):
Sam, I can’t seem to hear you.

Sam:
Well, we had one question related to the appropriateness of a mandamus filing in the case where previous investors in the project had already gotten approval. Does that create an issue if you’re an investor who has not been one of those earlier approvals filing an application now?

Joey:
No, not at all. And I think that’s actually great evidence if USCIS has already approved others. That means that the project that you invested in is approvable. And so, really they should all, because of their deference policy, only be looking at your source of funds.

Sam:
Yep. Yep, exactly. Let’s see… there’s just a few other questions here. “Does the investor need to participate in the federal court hearing in person or on the phone?”

Joey:
No.

Sam (01:14:16):
Okay. “What’s approximately the minimum amount of period you’d want to wait to pass before you filed a mandamus? Like, what would be the minimum amount of time that would be considered unreasonable, that you’d feel comfortable filing an action?”

Joey (01:14:31):
This is a great question. I think different attorneys have different opinions on this. Certainly, I would feel comfortable filing cases that were submitted in 2017 or earlier—2019 and afterwards, I would say no, unless maybe there’s some personal circumstances. 2018 is where it starts, you know… it’s kind of a gray area. And again, it depends on their personal circumstances—if there’s an exemplar approval, if other I-526s in the same project have been approved—there’s a lot of factors to consider. I’m not sure if that went through. But I will say that I am filing cases in the second half of 2018 right now because of non-immigrant visa extensions or non-immigrant statuses soon ending.

Sam (01:15:43):
Yep. Yep. Okay. So, we’ll go through one… there’s one final question here. “If I’m investing in my own project to achieve the minimum level of investment, does that mean if I built a home for $900,000, then could I move on to another one for $900,000?” Yes. Reach out to us—we can help you review the job creation aspects of that type of a project and help you determine what the best structure would be. And then, the final question is, “If my daughter is potentially going to age out, would filing a mandamus action potentially help avoid that from happening?” For Joey.

Joey (01:16:21):
You’d have to look at the specifics. But yes, I mean, it can help. Yes, absolutely. Especially if there is no visa wait time. So, if there are age-out issues, that could be a very good reason to file the mandamus.

Sam (01:16:40):
Yep. Okay. Very good. Very good. Thank you very much, everyone, for joining, and again, if there are other questions or you want to sit down with Joey to discuss the specifics of your case, please call or email him. The information is on the screen. And if you have questions related to creating your own EB-5 project and being an investor yourself, please reach out to EB5AN—call us or send us an email or visit either of those websites for additional information, and we’d be happy to try and answer any EB-5 questions that you have for us. So, thank you, again, for joining, and we look forward to helping you address any EB-5 issues and questions that you have going forward.

Mike (01:17:31):
Thanks, everyone.