In recent years, one of the biggest issues with the EB-5 program has been an ever increasing processing time for applicants petitions. USCIS has struggled to process petitions in a timely manner, and as a result, some EB-5 investors have been stuck waiting for their petitions to be processed for months or even years. Although USCIS has been working to improve processing times throughout the agency, such measures will take time to implement. Considering all this, it’s hardly surprising that mandamus suits are becoming more popular among EB-5 applicants.
What is a Mandamus Suit?
A writ of mandamus is a formal written order by a judge commanding a public agency or governmental body to perform an act required by law. Essentially, in mandamus suits, plaintiff’s argue that a government agency and/or employee has not performed a duty owed to the plaintiff, and are requesting that the Judge issue a writ of mandamus compelling the government to act.
How Can Eb-5 investors use a mandamus suit?
In the context of EB-5, a mandamus lawsuit aims to have a Judge order USCIS to issue a decision on a particular petition. While you might assume that this process would include an evaluation of the petition by the court, this is not in fact the case. A EB-5 mandamus suit is merely asking that USCIS deliver a “yes” or a “no” decision on a petition that has taken an unreasonable amount of time to process. The court will not rule on the merits of a petition, such as the legality of its source of funds.
First and foremost, it is always advised that you work with an attorney when considering filing a mandamus suit. By filing a mandamus suit you are taking adversarial legal action against the government, and the aid and expertise of an attorney will be required in order to be successful.
Generally speaking, attorneys may recommend considering a mandamus suit to EB-5 investors if their form I-526 has been pending for longer than 18 months, or if their Form I-829 has been pending for more than 12 months. While the prospect of compelling USCIS to make a decision on a case is certainly tempting to many EB-5 investors, filing a mandamus suit is not the best course of action for everyone. For example, Chinese investors would unfortunately not see much benefit from seeking a mandamus on their I-526 petition, as even with the approved I-526 the current backlog would leave them unable to acquire a visa.
What happens once i file a mandamus suit?
After finding an attorney to work with, and deciding that seeking a mandamus is the proper course of action, your attorney will begin the suit by filing a complaint/petition. This will allege all the facts of your case and the cause(s) of action for the suit. Following this the government will generally have a fixed period of time to respond.
During this time government attorneys will evaluate the case and determine what the proper course of action is. In some circumstances the government might determine that it’s not worth the time, money or effort to pursue a defense, and USCIS will simply adjudicate the case. This is by far the most ideal option for investors pursuing a mandamus action, as it gets their petition adjudicated without a lengthy court battle. However, this is far from a guaranteed outcome. In many cases, the government will choose to defend itself against EB-5 mandamus suits, often filing a motion to have the case dismissed.
While a mandamus suit can force USCIS into action after an unreasonable period of adjudication, it is not a cure-all for EB-5 investors stuck waiting for their petition to be processed. Mandamus suits should be viewed as a last resort, a route to take when all other options have been exhausted. However, for those who see no other way to get their petition processed, a mandamus suit can be the solution they need.