How will filing a mandamus help my EB-5 application?
I heard that I should file a mandamus, since my I-526 has been pending for several years with no information from USCIS. What is a mandamus? How does it help my EB-5 application? Also, I heard that if I file something with USCIS, they will ask for additional information, which will delay my case even more. Is it the same for the mandamus?
Check first with your attorney if you have one. The writ of mandamus is a motion you can file in court requesting that a court commands an agency to take specific action to resolve a matter before such agency. Filing a writ of mandamus requires that certain technicalities be observed, otherwise it will not succeed. Advisably, consult an attorney on this matter and to specifically address a number of questions you raised.
Mandamus is a lawsuit against the USCIS. Basically, you are requesting the federal court to force USCIS to take an action on your case as it has been unreasonably delayed. This is not an easy action that can be taken lightly. With over 17,000 I-526 applications filed and pending adjudication in the pipeline at USCIS, I am not sure how effective Mandamus action would be. It often has been the case that when we make an inquiry about a case stating that it has been more than normal processing times, USCIS tends to issue a RFE (Request for Additional Evidence) as it buys them 3-4 months more time while you are trying to gather additional evidence to submit. However, since you stated that your case has been pending for several years, I am not sure that not making an inquiry has helped you much. You should consult with your attorney or some other experienced EB-5 attorney so that you can decide on the prudent course of action to take. Good luck.
Mandamus is a lawsuit in federal court to force USCIS to act upon your case. It may or may not result in additional information in connection with your case. You should hire an experienced immigration attorney with experience in mandamus actions to evaluate your case and whether it should be an option.
A mandamus action is basically suing the government, forcing them to make a decision on your case. This is just ''a'' decision that is required, not necessarily a favorable one. This process requires an attorney, and will take some time to prepare and file.
Mandamus is a federal lawsuit and this decision needs to be carefully evaluated by competent counsel. It may result in a request for more information, but if indeed your case has been delayed for years, it may be a viable option.
If one case in USCIS is out of normal processing times, you can choose to sue the USCIS in court. You can file a Writ of Mandamus and ask the court to push USCIS to make a decision ASAP. But before you file the Writ of Mandamus, I suggest consulting an immigration attorney first.
You will need counsel to file the writ in federal court in Washington, D.C. Whether filing the writ will cause USCIS to request further information is highly fact-specific and must be discussed with your counsel.
A mandamus action is an action in federal court to compel the government to act on a matter. A mandamus action cannot be used to compel an approval it can only be used to compel a decision, and that decision could be positive or negative. Having filed around three dozen of these, I can tell you it is not my experience that USCIS will retaliate by issuing unnecessary RFEs or denying the petition out of spite. If USCIS needs more information, then it will issue an RFE as part of the expedited adjudication (assuming you are successful on the mandamus). Generally, unless there is a policy issue or some kind of investigation, USCIS will quickly adjudicate a petition and try to settle the lawsuit once a mandamus is filed. This seems to happen in more than 90 percent of cases. The process, from the time you file the mandamus action to the time you settle is usually in the three to four month range. If USCIS decides not to settle and decides to litigate the matter, timing could be six months to a year. If the petition is denied, you can file a different kind of lawsuit to seek review of the decision. Generally, Mandamus is an effective way to get cases un-stuck in 90-95 percent of cases. The downside is it is not cheap, and while it speeds things up, it is still not instantaneous. (There is something called an Order to Show Cause that can compel USCIS to act in a very short time frame - such as two weeks - but the standards for granting this kind of order are hard to meet, and it can increase the expense of the litigation).
If the court feels the government has delayed unreasonably, they can order the government to adjudicate. (They cannot order them to approve it though). If you prevail in the action and the court agrees the government has unreasonably delayed, you may possibly also get EAJA fees reimbursing you for attorney fee outlay.
John J Downey
A Writ of Mandamus is an action brought before a federal court and it asks that the court "command" the agency to perform their duty and process your application. It should not delay your process, but hopefully get some action on it.