When should mandamus action be taken against the USCIS?

If your application goes beyond the normal processing time, you can file a writ of mandamus to compel USCIS to make a decision on your case. In your case, you might want to wait a few months.

You should consult your immigration attorney to discuss this issue. Current processing times for I-526 petitions are about 13.3 months; however, some cases do pend longer and some cases are reviewed much quicker. Your immigration attorney should be able to make a service request to the USCIS EB-5 unit regarding your I-526 and also weigh on a decision whether or not it is prudent and feasible to file a mandamus action.

Such a decision should be made on a case-by-case basis, in close consultation with your immigration attorney. In most cases, mandamus is effective only when the delay can be shown to be unreasonable. Your case has not been pending for an unreasonable amount of time in comparison with the average processing time for an I-526 petition, which processing time currently is 13.3 months. That said, you should consult with an experienced EB-5 immigration attorney who can advise you in greater detail regarding what can be done in your case.

It is on a case by case basis. Seek out competent legal advice.

Please remember that the EB-5 regulations and policies clearly state that the investor cannot be involved in managing the U.S. business until the investor obtains their conditional permanent residency. The investor should always check with the USCIS processing times for the I-526 petition and the stated department processing times for the U.S. consulate process. Currently the process is estimated at 18 months. Therefore if the actual processing time is taking a lot longer than the time stated on the USCIS website, and the USCIS has not responded in a timely manner to inquiries as to the status, then the investor will have the opportunity to file a mandamus action in federal court to force the USCIS to make a decision on the case.

Thank you for your inquiry. As long as it may seem for you, an 18-month wait in the context will not seem very long to a federal court judge. You can certainly try a mandamus, but I would first exhaust all the other options you have (assuming you have a competent immigration attorney helping you with your case).

First try more direct inquiries to the EB-5 email address and see what they say.

When the case is outside the current processing times and there has been follow-up with the Immigration Service.

While 18 months appears like a long period, that is not necessarily so; thus, stay away from mandamus litigation. In a couple of instances mandamus action is appropriate, but most of the time it is ill-advised and should not be undertaken. Furthermore, a writ of mandamus is not a panacea to any supposedly delayed application pending with the USCIS. The utility of such action is very minimal at best and can cause even more delay as both you and the USCIS will be locked in litigation as you keep throwing briefs at each other. Advisably to get a better understanding of what mandamus action is intended to accomplish and when and how it is usually filed, consult an attorney.

While mandamus actions can force USCIS to issue a decision, it may not be a favorable one. If you are already making other status update requests to USCIS, the mandamus action may be your best bet. Please note that normal processing time is more than 13 months.