Many foreign nationals view the EB-5 Immigrant Investor Program as the most accessible way to relocate to the United States. Thousands of foreign nationals have obtained U.S. permanent resident status through the EB-5 investment program, and U.S. businesses have gained a valuable source of capital. Moreover, the EB-5 investment process is relatively straightforward. United States Citizenship and Immigration Services (USCIS), which oversees the EB-5 program, sets out clear requirements for investors.
However, the EB5 investment industry is plagued with certain problems, the foremost of which is USCIS’s notoriously low processing efficiency. The agency typically takes several years to adjudicate visa petitions such as Form I-526 and Form I-829, even if the adjudication ultimately results in a denial. To complicate matters, several countries with particularly high volumes of EB-5 investors have experienced processing backlogs. Chinese investors, for instance, are subject to a final action date that dictates when they can receive conditional permanent resident status.
Due to USCIS’s adjudication inefficiency, an EB-5 investor may find that the agency is taking an unreasonably long time processing their I-526 or I-829 petition. In this case, they may decide to take action and file a writ of mandamus.
What is a Writ of Mandamus?
In the EB-5 investment industry, a writ of mandamus is a federal lawsuit that orders USCIS to adjudicate an unreasonably delayed visa petition. An EB-5 investor should consider filing a writ of mandamus if USCIS is taking an unreasonably long time with their visa petition. This may also be a viable option for EB-5 investors with dependent children who could marry and thus become ineligible for permanent resident status.
Risks of Filing a Writ of Mandamus
However, filing a writ of mandamus can be risky because such litigation can only force USCIS to adjudicate a visa petition, not to approve it. If a writ of mandamus is filed successfully and USCIS is ordered to adjudicate a visa petition, the agency may issue an outright denial if any information is unclear, misleading, or out of compliance with EB-5 regulations. While USCIS typically sends a request for evidence (RFE) for visa petitions that need improvement, EB-5 investors who file a successful writ of mandamus cannot benefit from this provision.
Given this danger, filing a writ of mandamus should be the last resort to expedite an uncommonly slow adjudication process. Investors should only take this step if they are absolutely certain that all the necessary information is included in their petition and that the information is accurate. Moreover, filing a writ of mandamus can be very expensive, and there is no guarantee of success.
Despite the dangers of resorting to a writ of mandamus, there are legal precedents for successful litigation against USCIS. In the Keller Wurtz v. USCIS and Raju et al v. Cuccinelli lawsuits, the plaintiffs were disgruntled EB-5 investors who had waited approximately two years for their I-526 petitions to be adjudicated. The judges ruled in the investors’ favor, finding that, according to Congress, visa petitions such as Form I-526 should be processed within 180 days. This precedent may encourage other EB-5 investors to initiate mandamus litigation against USCIS.
Regardless of an EB-5 investor’s situation, they should always consult an immigration attorney with EB-5 experience. Competent immigration counsel can help EB-5 investors decide which steps to take if they experience an unreasonably long adjudication period.
