Demystifying the mandamus filing process
As processing times reach 29.6 to 61 months for Form I-526, Immigrant Petition by Alien Investor; 24.5 to 47.5 for Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status; and 52.5 to 98.5 for Form I-924, Application for Regional Center Designation, investors are increasingly turning toward the federal courts to compel action on their immigrant petitions.
These ongoing excessive processing delays are not reasonable and are likely to cause an adverse impact on those who are waiting for I-526, I-829 or I-924 approvals. Therefore, at a time when the processing of immigration applications is severely backlogged, a complaint for a writ of mandamus may be the most effective way to force USCIS into making a decision.
With all the information circulating regarding writs of mandamus, it may be difficult to separate the truth from rumors. Below is an overview of the mandamus process to help clarify things:
1. A writ of mandamus is a federal lawsuit seeking to compel agency action, not approval
A writ of mandamus is a legal action brought in federal court to compel inferior government officials or agencies to fulfill their duties. In the context of EB-5, the writ of mandamus is used to coerce USCIS to act and either approve or deny an immigration application. It does not seek approval of your petition by a federal judge.
2. There are circumstances where filing a writ of mandamus is not a good idea
Backlogged countries: As of the July 2020 Visa Bulletin, China is backlogged five years, with a priority date of July 22, 2015 and Vietnam is backlogged three years, with a priority date of May 15, 2017.
Effective March 31, 2020, USCIS has established a new adjudications process that will prioritize the processing of Form I-526 petitions where visas are immediately available or soon to be available. This new adjudication policy will result in extended processing delays for applicants from oversubscribed countries, such as China and Vietnam, including those currently in the pipeline.
If you are a Chinese or Vietnamese national facing a backlog, it would not make sense to pay attorney’s fees and filing fees to file a writ of mandamus when you are backlogged anyway.
Dependents close to aging out: According to the Child Status Protection Act (CSPA), a derivative beneficiary who turns 21 years of age while an application is pending is able to deduct the time the application was pending from their age to remain eligible for benefits under the underlying application.
Filing a writ of mandamus may accelerate adjudication of your application thereby risking derivative beneficiaries aging out and no longer being eligible for benefits.
Issues with EB-5 Projects: Issues may arise with the EB-5 project, such as source of funds or job creating entity problems. In these situations, it may be best to wait out the adjudication process to allow any issues to resolve.
3. Significant decreases in I-526 petitions in the last 3-4 Years have not translated into quicker processing times
Historical data released by USCIS shows that the number of I-526 applications have significantly decreased over the last years. In 2017, USCIS received 12,165 petitions compared to 6,424 in 2018 and 4,194 in 2019. USCIS only received 21 new I-526 filings from January to March 2020. Despite this, USCIS estimates processing times to be anywhere from 29.5 months to 61 months. We are currently facing 5-year processing times for the I-526, 4 years for the I-829 and over 8 years for the I-924. These processing times are not acceptable given that federal regulations mandate that immigration applications be adjudicated within 180 days!
Moreover, because of the new “visa availability” adjudication process, as opposed to “first in, first out” for I-526 applications, those countries that do not face a backlog should actually see accelerated adjudication. Yet, adjudication times have continued to increase.
4. The writ of mandamus timeline – Adjudication within 3 months
When to file a writ of mandamus: Currently, applicants should strongly consider pursuing a writ of mandamus if their Form I-526 has been pending over 18 months, their Form I-829 has been pending for over 12 months or, their project exemplar Form I-924 has been pending for over 12 months.
Exhaust administrative remedies: While your application is pending it is important to exhaust administrative remedies. Filing a writ of mandamus should be the applicant’s last resort. Once the writ is filed, it is important to show the federal judge that the applicant first contacted USCIS, the Immigrant Investor Program (IPO) through “escalate” requests, and the USCIS Ombudsman before pursuing litigation. More often than not, you will receive boiler plate responses from the government agencies stating that the application is still processing and that the application is still within “normal” processing time - 5 to 10 years, depending on the application.
Settlement: After filing the writ of mandamus and the appropriate defendants (i.e. directors of USCIS, DHS, IPO) are served, the defendants have 60 days to respond to the lawsuit. In that time, the U.S. Attorney, representing the defendants, will likely extend a settlement offer and ask for more time to adjudicate the application. There is always a possibility of encountering pushback from the U.S. Attorney, resulting in court hearings and/or a motion to dismiss. However, often U.S. attorneys do not want to take the time and expense to litigate this matter. It is more likely that the case will settle and some kind of adjudication on the underlying application will be made -- be it through a Request For Evidence (RFE), approval or denial. Once the U.S. attorney is brought into the lawsuit, it takes roughly three months for adjudication.
5. Fears over retaliation
Investors may be concerned about retaliation by USCIS for bringing a federal suit due to its unreasonable delay. Firstly, retaliation is illegal. Should USCIS respond in such a way as to issue a completely off-base, RFE, the applicant may have grounds to add retaliation to the litigation against the government. However, there is no reason to believe that USCIS would retaliate against a writ of mandamus and it is believed to be unlikely.
6. Filing a writ of mandamus does not always result in approvals
Remember, filing a writ of mandamus compels USCIS to take action, it does not ask the judge to approve your application and it does not seek approval from USCIS. Even if the lawsuit goes through litigation and the judge rules in your favor that translates into USCIS needs to make a ruling on your application. The application may be approved, denied or subject to an RFE.
A writ of mandamus is an important tool that the EB-5 community can rely on when USCIS unreasonably delays in performing its duties.