I am looking at filing the Writ of Mandamus for my EB-5 application. I have a choice of filling alone or as a member of a group of investors. Which option has a higher chance of being successful?
Consider individual filing, because unless the group can successfully pull together, any group efforts may not succeed for a host of reasons particularly due to the disparate characteristics of the group members. Further, the basis of delay in processing of I-526 petitions even on the same project may be multiple among petitioners and may simply be too much for the court to accept.
The chances for success in Mandamus depend not so much on filing individually or part of a group, although that can be a consideration, but upon the merits of your case and the unreasonableness of USCIS delay in adjudicating the petition. The chances also depend on the venue, on the judge, and on the AUSA (attorney representing the government).
If your case has been backlogged longer than others, this is beneficial. If you all substantially backlogged, it can be better to be part of a group.
Prepared properly, either could be a good option to get a decision on your case. This decision can be an approval, hopefully, but could also be a Request for Evidence or even a Notice of Intent to Deny. I have seen successful mandamus actions for both individuals and groups of investors, so it may depend on the circumstances of your case on which to pursue.
We have had success at both. However, I just received my very first motion to dismiss on a group mandamus. I think the critical issue is probably the date you filed the I-526. Any time in 2018 or later and it is more likely to be challenged. Group vs. individual really comes down to cost. It is cheaper in a group, but the downside is the status of the others in the group have the potential to impact the course your mandamus takes. The issue is not there when you file by yourself. So far, I have not really seen an adverse effect from the group, until the present motion to dismiss. My preference is still to file individually, but in order to have access to the courts, it is sometimes necessary for multiple people to share costs.
