A substantial number of investors’ I-526/I-526E and I-829 petitions are pending USCIS adjudication for years.
Based upon the new Reform and Integrity Act (RIA), a new form I-956F (which incorporates the compliant EB-5 Regional Center project documentation) has to be filed by the Regional Center project before the investor can file their I-526E petition. Upon receipt of filing the I-526E petition, the regional center will accept the investor funds into their project.
The I-956F form has to be approved before the EB-5 investor’s I-526E petition can be approved.
When filing a Mandamus claim, the investor can argue that the USCIS has a duty, based on the Immigration and Nationality Act (INA), to exercise discretion and adjudicate the petitions that have been filed within a reasonable period.
Filing a Mandamus Action in U.S. District Court will definitely lead to a reaction by USCIS, and if handled correctly will benefit the EB-5 petitioner for a faster adjudication. However, the Mandamus action cannot force the USCIS for a definite or positive decision.
WHAT COULD BE THE BASIS FOR AN EB-5 MANDAMUS FILING?
The EB-5 visa program allows foreign investors to obtain U.S. permanent residency by investing their lawful source of personal funds into their own direct business project or into a pooled EB-5 Regional Center project.
The new legislation changed EB-5 requirements such as updating the minimum investment requirements to $800,000 for a project in an area of high unemployment, rural area or infrastructure category. Projects in other geographical areas will require an investment of $1,050,000.
In addition, the new RIA allows a foreign investor to file their new I-526/I-526E petition concurrently with their I-485 Application for U.S. Conditional Permanent Residency, while they are in the U.S. under a lawful non-immigrant status, and their priority date is current. Each member of the family (spouse and minor children under 21 years of age) can also file their Applications for Conditional Permanent Residency and their Application for Employment Authorization and Permission to Travel (Advance Parole) while in the U.S. or abroad.
Also, a previously filed I-526 petition, before March 2022, may be the basis for an EB-5 investor to file an I-485 Application for US Conditional Permanent Residency.
Before November 2019, the minimum investment was $500,000 and the maximum was $1 million. After November 2019, the minimum was $900,000 and the maximum was $1.8 million. In June 2021, the minimum and maximum investment amounts reverted back to pre-November 2019 levels.
However, in June 2021, the EB-5 Regional Investor Program lapsed and as a result USCIS did not continue to adjudicate the I-526 petitions pending with USCIS. As a result, additional and substantial delay in adjudication occurred.
Now in 2023, Mandamus actions are being filed for those I-526 and I-829 applications that have been pending for a minimum of two years.
In addition, separate Mandamus Actions are being filed for those I-956F forms which have not been adjudicated by USCIS. The I-956F form needs to have been pending for several months. The goal is to insist that the USCIS act immediately, on the basis of the law, good faith and reasonableness.
The Mandamus complaint is asking USCIS to move faster in their adjudication on the basis that waiting for over 24 months is too long and unreasonable.
The Mandamus complaint will show that the USCIS is not working fast enough on petitions when immigrant visas are available i.e., excessive delays, in not following the visa availability rule, in the significant number of cases. (If visas are available, no retrogression, the petitions should be given priority for adjudication).
WHAT DOES IT TAKE TO FILE A MANDAMUS FOR AN EB-5 PETITION?
The Mandamus Action should include a signed affidavit by the Plaintiff investor clearly showing that the delay by USCIS in making a decision is causing irreparable harm to the investor and his family on a personal and professional level, such as more difficulty in travelling, and unnecessary hurdles in entering into business relationships into the U.S. as non-residents, and educational disruption and excessive costs in the U.S.
The Mandamus lawsuit action is usually filed in Washington D.C. However, if the EB-5 investor has a tie to another jurisdiction, they can file there, e.g., if the investor lives there or if the EB-5 project is located in another jurisdiction.
Briefly, the Mandamus Action will include a civil cover sheet, summons, and complaint. The complaint will include the following: contents, introduction, jurisdiction, venue, parties, facts, cause of action, and a statement showing that the investor is eligible for relief.
The defendants will include the Director of the USCIS, Secretary of the D.H.S., and the Chief of the Immigrant Investor Program Office.
It is imperative that one exactly follow the Service Rules of the Court, e.g., Service of the Complaint Mandamus on the U.S. Attorney’s Office (AUSA) for the district. As a result, the U.S. Attorney will file their Appearance and will have to respond.
The Attorney for the EB-5 investor must be admitted to practice in the District Court where the Mandamus Action is filed or apply for admission Pro Hac Vice, meaning they get permission to practice in a certain jurisdiction in a particular case.
The EB-5 investor attorney can also co-counsel with a designated local counsel who will also be accepting service of documents. With proof of service of the complaint, the U.S. Attorney representing USCIS, has 60 days to respond to the investor. The U.S. Attorney may request a 30-day extension for USCIS to reply i.e. to make a decision either Approval, Request for Evidence (RFE), Notice of Intent to Deny (NOID) or Denial. The Mandamus action is not forcing the USCIS to grant an approval.
As a strategy, the investor’s attorney can state to U.S. Attorney, they will allow a 14-day extension on the basis the defendant does not file a Motion to Dismiss.
While discussing the request for an extension by USCIS to respond, the investor’s attorney should discuss with the U.S. Attorney, that the investor would require an immediate response from USCIS, as to what steps they are taking to resolve the delay, in order to make an adjudication on the pending petitions.
The goal is to resolve this matter of USCIS delay, to obtain a decision by USCIS before the AUSA files an Answer or Motion to Dismiss.
If there is a decision by USCIS, one should immediately obtain documentation from USCIS confirming the adjudication.
THE RESULT FROM A MANDAMUS FOR THE EB-5 INVESTOR
The reply to the Mandamus Action by the USCIS may not be an approval, but the reply may be in the form of an RFE (Request for Further Evidence) or a NOID (Notice of Intent to Deny). The RFE or NOID may be comprised of questions or requests for information and clarification as to the I-526/I-526E petition, covering either the authentication of the lawful source of investment funds by the investor, and/or the EB-5 project documentation (e.g., employment creation) or a combination of both.
In regard to an RFE on a I-956F Form, the request from USCIS will be in regard to the EB-5 Regional Center Project documentation.
In regard to the I-829 petition, the RFE or NOID may request information, clarification, documentation in regard to the sustainment of the EB-5 investor investment in the project, and the required job creation criteria of 10 employees.
In preparing the response, one should immediately contact the EB-5 project to check if they have received any prior approvals for their EB-5 investors. If there have been prior approvals in regard to the project documentation, then one should argue to the USCIS, that deference should be given to these prior approvals.
That is, the EB-5 investor should not have their I-526/I-526E or I-829 petition, as to project documentation re-adjudicated.
Also, in the response to the RFE or NOID, remind USCIS that the test for adjudication is a preponderance of evidence standard which requires a 51% or more likelihood for approval and this also applies to the request to source of funds authentication.
Based upon recent experiences, the USCIS is claiming that 5 years to adjudicate an I-526/I-526E petition is reasonable. However, Mandamus actions continue to be filed after two years have passed without USCIS adjudication on I-526/I-526E petitions.
In regard to I-829 adjudication delays by USCIS, Mandamus actions continue to often be successful when filed after waiting two years for adjudication.
The USCIS is in fact making decisions of either approval or RFEs/or NOIDs. In addition, the USCIS are usually favorably making prompt decisions on the responses to the RFEs or NOIDs.
Under the above circumstances, USCIS requests (such as RFEs) should still be welcomed as part of the process that an adjudication may be eminent.
The last word is USCIS should give deference to I-956F, I-526, and I-829 approvals in respect to project documentation, to allow a faster adjudication.
Ed Beshara
Edward Beshara is the managing partner at Beshara PA Global Migration Law Firm, which provides successful solutions for EB-5 investors and their families, EB-5 direct and regional center projects. Beshara is a member of the IIUSA (Invest in the USA) New Investor Markets and Best Practices Committees, and is on the Advisory Committee and Task Force of the Investment Migration Council, Geneva. He is a former Adjunct Professor of Business Immigration Law at the University of Florida’s College of Law.
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