For investors navigating the EB-5 process, delays in petition adjudication can be extremely frustrating. In some cases, delays can even jeopardize immigration plans, investments, and family security. In certain cases, EB-5 petitioners may seek relief through a legal tool known as a writ of mandamus.
What Is a Writ of Mandamus?
A writ of mandamus is a court order that compels a government agency or official to perform a duty they are legally required to carry out. It is not used to tell the agency how to decide a matter, but rather to compel the agency to make a decision when it has failed to act within a reasonable timeframe. In the context of EB-5, this legal remedy is typically used to address unreasonable delays by U.S. Citizenship and Immigration Services (USCIS).
Mandamus actions are filed in federal court, and while they do not guarantee a favorable outcome (such as an approval), they can successfully force USCIS to issue a decision on a long-pending application or petition.
Mandamus in the EB-5 Immigration Process
The EB-5 process involves several key stages that are often subject to prolonged government review.
The two main EB-5 forms that commonly experience significant delays are:
- Form I-526E: The initial immigrant petition by an investor, used to establish eligibility for a conditional green card.
- Form I-829: The petition to remove conditions on permanent resident status, filed after meeting job creation and investment requirements.
In cases where USCIS has delayed action on either of these petitions far beyond posted processing times, a petitioner may choose to file a writ of mandamus to compel USCIS to adjudicate the case.
When Is It Appropriate to File a Writ of Mandamus in EB-5 Cases?
Not all delays justify a writ of mandamus. Courts consider several factors before granting such relief, and a petitioner must demonstrate that:
1. The Delay Is Unreasonable
The petitioner must show that the government has failed to act within a reasonable period. Although there is no fixed rule, some attorneys consider delays of 18 to 24 months or more (depending on the type of petition and case complexity) as potentially unreasonable, particularly when they exceed USCIS’s posted processing times without justification.
2. There Is No Adequate Alternative Remedy
Before turning to litigation, petitioners are expected to exhaust other available remedies. This may include:
- Submitting online case inquiries to USCIS
- Contacting the USCIS Ombudsman
- Requesting assistance from a congressional representative
If these efforts do not result in progress or an explanation, a writ of mandamus may be considered.
3. The Duty Is Non-Discretionary
The law requires USCIS to adjudicate petitions, and it cannot indefinitely withhold a decision. Although USCIS has discretion in how it decides a petition (approve or deny), it does not have the discretion to refuse to act. This distinction is key to mandamus eligibility.
Risks and Considerations
Filing a writ of mandamus should be approached carefully. While it can spur USCIS into action, there are risks:
- If USCIS was already inclined to deny the petition, the mandamus action may simply hasten a negative decision.
- Courts will not order USCIS to approve a petition, only to act.
- Filing prematurely (before sufficient delay has occurred) can result in dismissal and unnecessary legal expenses.
The writ of mandamus is a powerful legal tool that can help EB-5 investors break through bureaucratic delays when USCIS fails to act on petitions. However, it is not a shortcut or guarantee of approval. EB-5 petitioners considering this option should carefully evaluate whether their situation meets the legal standards for mandamus and consult with experienced immigration litigation counsel. When used strategically and appropriately, a writ of mandamus can help restore momentum to an otherwise stalled EB-5 immigration process.
The above article is intended for informational purposes. Anyone that believes that they are experiencing a prolonged delay with regard to an EB-5 petition should consult with an experienced immigration attorney.
