Our I-829 has been pending for 45 months now. We have not heard anything from USCIS since we responded to an RFE two years ago. Should we petition for a Mandamus action? If so, how long is it going to take for the district court to process the petition? Once the court issue the Mandamus, how long is it going to take for USCIS to act? What is the cost?
The court where the writ of mandamus action is filed will determine both the time and hearing procedures of the motion. Thus, a general time frame is not easy to predict even though the purpose of a writ of mandamus is to speed up an administrative matter. Also, any administrative agency such as the USCIS may appeal an unfavorable outcome unless it chooses to forebear from filing an appeal. Therefore, while the USCIS is required to comply with a mandamus order, it may appeal within the timeframe when an appeal is supposed to be taken for such an order but, it may choose to forebear. The cost of a writ of mandamus depends on your agreement with your attorney, so consult with attorneys to determine what you can afford and your preference.
First see if it is outside "normal" processing times as posted on the USCIS website. I agree 45 months does seem outrageous.
Every case is different, and we offer the possibility of payments for various stages of mandamus as most of those cases are settled before going into discovery.
From the time the complaint is served, it usually takes about 60 days to get a reply.
The Government has to respond to a Mandamus action within 60 days from receiving the Summons. Generally, and I emphasize, generally, you would have a decision from USCIS within 90 days from the date of Summons service or you will know that you have to litigate. The cost depends on the scope of services. The cost is fairly minimal for a Mandamus filing but if litigation is required, it will be more. Since you responded to an RFE, you can take advantage of correspondences with USCIS and the Ombudsman office. I would aggressively pursue the Ombuds office and see if you can get it dislodged within 30 days. If not, then a Mandamus is the way to go.
Most mandamus cases are settled and the process takes 90-120 days on average. There is no guarantee, however, that the government will not fight hard to delay and drag out litigation, but that usually is not the case. It depends on the specific facts.
When one files the mandamus, it must then be served on government officials through the mail. After that, the government has 60 days to respond. Usually, within that time, a decision is made on the I-526 or I-829 application. A Mandamus is only recommended for cases that have been in processing with no response for 2.5 years or more.
There are many variables to consider in answering your question. However, as a general statement preparing the application, having a hearing scheduled and heard and waiting for a decision can take up to three to six months. The cost of the application can vary with a range of $10,000 to $20,000.
I would suggest you have your lawyer contact a U.S. Senator to bug the USCIS. Many EB-5 cases are taking this long. If you file a mandamus case, the government will have 60 days to answer.
As with many legal services, it depends, but a consultation with a qualified attorney will result in a proper fee quote.
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