The EB-5 Immigrant Investor Program is a great way to achieve U.S. residency. However, long delays in processing can leave “unreserved” category investors frustrated and uncertain. Even after meeting all the requirements and making significant investments, many pre-RIA EB-5 petitioners wait years for the United States Citizenship and Immigration Services (USCIS) to make a decision.

When emails go unanswered and case status updates don’t change, some investors consider filing a mandamus action. However, this legal option isn’t a quick fix or a guaranteed way to speed up approvals. Instead, a mandamus action is a specific legal tool that requires a good understanding of immigration law and how the Administrative Procedure Act works.

In this article, we’ll clear up the confusion about mandamus actions. We’ll also explain what this legal option can and cannot do for your EB-5 case, when it might be a good idea to file one, and what you should expect from the process.

What Is a Mandamus Action?

A mandamus action is a type of federal lawsuit where someone asks a court to make a government agency or official complete a specific, legally required task. In EB-5 cases, this means asking the court to require USCIS to process a pending petition, such as an I-526E or I-829.

The goal of a mandamus action is not to change the outcome of your case but to push the immigration agency to act. It is based on the idea that USCIS must handle applications within a reasonable time, whether they approve or deny them. If this obligation is not met, applicants can ask the court to step in and address the delay.

Is a Mandamus Action the Same as a Complaint of Unreasonable Delay?

A mandamus action and an Administrative Procedure Act (APA) unreasonable delay complaint are quite similar. Think of it as using two different keys to unlock the same door. They’re both ways to tell a federal judge to compel USCIS to do their job. However, they are different legal actions.

An APA complaint shows that the investor has a right to relief, and USCIS must act on the case. A mandamus action, on the other hand, forces USCIS to make a decision within a reasonable time. While a mandamus action pushes a government official to do their job, an APA complaint says the agency is unlawfully delaying action, which violates APA rules.

While both options can overlap, which one to choose depends on your case and legal strategy.

Common Misconceptions About Mandamus Actions

Several misconceptions can lead applicants to misunderstand the purpose of mandamus actions, leading to potential risks. Here are some of the most common myths and the facts that debunk them.

1. A Mandamus Action Guarantees Approval of a Pending EB-5 Case

Many believe that filing a mandamus action will automatically result in the approval of their petition. This is false, as it only compels the government to take action on a case. A mandamus action does not dictate the outcome of the case.

Approval remains subject to the agency’s discretion. If the underlying petition lacks merit or required documentation, USCIS may still issue a denial.

2. Mandamus Actions Expedite EB-5 Processes Overall

The belief that filing a mandamus action accelerates the EB-5 petition and Green Card approval process is false. Instead, it only addresses specific processing delays, such as I-829 adjudications. USCIS must still follow due process.

3. Mandamus Actions Are Only for Applicants Waiting for Extreme Delays

Many EB-5 investors assume their petition would not warrant a mandamus action if USCIS hasn’t delayed their petition for years. While very long delays strengthen a mandamus case, any unreasonable delay beyond typical processing times can justify legal action. For example, if USCIS exceeds the published processing time for an I-526E or I-829 petition without explanation, it may qualify as “unreasonable.”

4. EB-5 Mandamus Lawsuits Are Always Successful

The government can always fight a mandamus lawsuit. Hence, there’s no guarantee that the action will be successful. Typically, the success of a mandamus action depends on the length of the delay, the reasons for the delay, the specific facts of the case, and the legal arguments.

While there’s no guarantee that a mandamus lawsuit will succeed, investors can improve their chances by preparing a strong complaint that shows the delay is unreasonable. Choosing the right EB-5 attorney is also key to success.

5. USCIS Will Deny Your EB-5 Petition in Retaliation When You File a Mandamus Lawsuit

EB-5 applicants often fear that suing USCIS will negatively impact their case. This opinion is false, as USCIS wouldn’t deny a petition because of a mandamus action.

Instead, what happens is that the mandamus lawsuit forces USCIS to process your EB-5 petition. They may proceed to issue an RFE or NOID if they find any discrepancies. But they will not outright deny your petition due to filing a mandamus lawsuit.

6. You Can Only File a Mandamus Action for a Delayed I-829 Petition

USCIS will most likely respond faster to a mandamus action filed for a delayed I-829 petition. But it doesn’t mean you cannot file a mandamus action for a delayed I-526E petition. Your action can gain more ground if USCIS has been processing petitions with later priority dates.

7. Mandamus Actions Are too Expensive and Lengthy

Some EB-5 investors assume that the cost and timeline of filing a mandamus action outweigh the benefits. However, the truth is that agencies prefer to resolve mandamus actions in EB-5 cases quickly to avoid prolonged litigation. While there are legal fees involved, they may be considered generally manageable compared to the financial and emotional costs of indefinite delays.

When Are Mandamus Actions Appropriate in EB-5 Cases?

EB-5 applicants must carefully consider the timing and details of their case before choosing a mandamus action to push USCIS to decide on delayed petitions. Knowing when a mandamus action is the right choice can help applicants make smarter decisions.

You can file a writ of mandamus when:

• Your petition processing has been unreasonably delayed without communication from USCIS.
• You have exhausted other administrative remedies.
• You can show that USCIS’s delay is causing you significant harm or hardship. This could be substantial personal stress, financial losses, or other problems.

Alternatives to Mandamus Actions

EB-5 applicants have other options to consider before filing a mandamus action for delays in their petition processing. These alternatives could help resolve delays without going to court, saving both time and money. Some of these options include:

1. Case Inquiries With USCIS

EB-5 applicants can directly contact USCIS to inquire about the status of their case when the petition goes beyond the normal processing times. The agency’s website has the “Case Status Online” tool that allows applicants to submit their questions or inquiries. While responses can sometimes be generic, persistent follow-ups may lead to meaningful updates or actions.

2. Contacting the Ombudsman

The Office of the Citizenship and Immigration Services Ombudsman assists EB-5 applicants experiencing delays or problems with USCIS. The Ombudsman serves as an independent intermediary and can escalate cases that involve unreasonable delays or errors. Filing a request for help through this office is often an effective way to prompt USCIS to review the case.

3. Engaging With the Regional Center or Project Sponsor

EB-5 investors participating in a regional center project can get valuable insight or assistance from working with the project sponsor or regional center itself. Regional centers often have experience navigating the EB-5 process and may be able to provide guidance or advocate on behalf of the investor.

Increase Your Chances of Success by Investing in a Low-Risk EB-5 Project

Processing delays shouldn’t be the end of your EB-5 journey. While mandamus actions offer one solution, they’re most effective as part of a comprehensive strategy that considers all available options. So, understanding when and how to use mandamus actions can help protect both your investment and immigration goals.

The most strategic path often begins with smart investment choices. Projects with strong track records of timely approvals can significantly impact your timeline.

Working with a reputable EB-5 firm like EB5AN can also streamline your journey. Our team specializes in guiding investors through every step of the way.

Book a one-on-one call with our EB-5 team today for more information about the EB-5 process and our projects.