Delays are, unfortunately, a common occurrence in processing EB-5 petitions. Official processing times from USCIS indicate extensive waiting times for EB-5 petition adjudications. Many investors find themselves frustrated with these long USCIS processing times, as well as estimated wait periods especially if their case is outside of the standard timeframe. While waiting is painful and frustrating for many investors in the EB-5 process, AIIA empathizes with EB-5 applicants whose family and life plans are derailed, and seeks to provide education about some of the common solutions with delayed petitions. We also offer referrals to lawyers with vast experience and top-notch expertise in these solutions with discounted legal fees for AIIA members.

There is, however, one action that EB-5 investors can take to compel the government to act on their petition: filing a Writ of Mandamus (WOM). A writ of mandamus is a formal legal order from a judge to a government official instructing a government officer or agency to fulfill their official duties, oftentimes when the official or their agency has demonstrated extreme negligence and delay in executing these duties. These suits have become a popular and powerful tool for immigrants (including non EB-5 immigrants) to force processing when USCIS has been negligent and apathetic in processing their petition within “a reasonable period of time”. They have also been successful in compelling the State Department and consulates abroad to act as well.

When can I file a mandamus?

“A reasonable period of time” for processing immigrant petitions varies depending on the type of petition or application filed, the date of filing and the specific details of the immigrant’s case. Generally, cases in which the applicant has waited longer than the current processing average listed on the USCIS website have stronger arguments for a successful mandamus suit. However, many attorneys have achieved victories with wait times much shorter, given that the processing estimates are quite long already. Expert EB-5 attorneys will evaluate the validity of these claims on a case-by-case basis and compare the investor’s circumstances with the growing precedents of mandamus case law. Although mandamus suits can technically be filed at any time, it is best to consult your immigration attorney to determine when a mandamus may be a viable option for your case, based upon when your petition may be adjudicated.

Retaliation from the government

A common concern among investors is the fear of USCIS retaliating against Writs of Mandamus by denying or delaying an investor’s petition. Yet, there is little evidence to suggest USCIS has sought to retaliate against investors who file mandamus suits. 

The goal of filing this lawsuit is to compel the agency to adjudicate the petition in a more timely fashion. The end result of the adjudication, whether it be an approval or denial will solely depend on the quality of the petition or application that was filed and responses to any Request for Evidence (RFEs) or Notice of Intent to Deny (NOIDs) that might be issued.

Investors should also keep in mind that filing a mandamus does not guarantee the investor’s petition will be processed faster. Investors must keep in mind a mandamus suit is still a lawsuit, one an attorney can lose if they are unable to make a strong and unique case for the investor against USCIS or where a judge sympathizes with the government’s defense. This is why hiring an attorney experienced in EB-5 litigation and immigration is so incredibly important. 

What happens after filing a Mandamus?

Once a mandamus has been filed, processed, and the target agency has been served, the government has sixty days to respond (extensions are often requested and granted). Traditionally, the U.S. government has quietly adjudicated petitions after a mandamus has been filed to prevent government funds from being spent in an easily-solved case. At this point, the case is usually dismissed because the action requested by the mandamus has been fulfilled. It is also possible for attorneys to agree upon deadlines for USCIS or the State Department to take action in exchange for dismissing the suit.

In the past decade, extensive USCIS processing times have caused many more investors to file for mandamus, meaning it has become harder for EB-5 investors to prove that their wait time is unreasonably long. Furthermore, the government is more likely to fight mandamus suits in court than before the program lapse. However, despite more resistance to the mandamus process, legal recourse through a WOM has saved investors months and years of time, securing their children against the possibility of “aging out” and preventing redeployment of their investor capital.

A mandamus case can take anywhere from nine months to two years, depending on the complexity of the case and how the investor’s circumstances compare to the rest of the EB-5 immigrant queue. Although the process is not instant, it has improved the situations of hundreds of EB-5 investors who have extensively shortened their path to residency.

The AIIA team has extensive experience working with ethical attorneys who have filed successful WOMs for their EB-5 clients. Our team offers referrals to qualified immigration attorneys who can consult you on filing a WOM and even file on behalf of your immigration petition. Additionally, AIIA members get a discount on WOM filings with partnered attorneys.