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The EB-5 investment program remains one of the most popular ways for foreign nationals to obtain permanent resident status in the United States. By making an investment of at least $500,000 in a U.S business, the investor and their immediate family can qualify for green cards and enjoy the benefits of living in the United States.
However, the EB-5 program has a reputation for long delays. United States Citizenship and Immigration Services (USCIS) governs the EB-5 investment program and is responsible for adjudicating all EB-5 visa petitions from investors. This includes Form I-526, Immigrant Petition by Alien Investor, and Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. The high volume of applications, combined with inefficient processing by USCIS, leaves many foreign nationals waiting several years for the results of these petitions.
If an EB-5 investor experiences unreasonable delays, they have the option to take legal action.
How a Writ of Mandamus Works
In the context of the EB5 investment industry, a writ of mandamus is a court order that forces USCIS to adjudicate a visa petition that has been delayed unreasonably.
Two recent cases set precedents for successfully filing federal litigation against USCIS. Raju et al. v. Cuccinelli and Keller Wirtz v. USCIS both involved EB-5 investors who filed mandamus litigation against USCIS. Each plaintiff had been waiting for their Form I-526 adjudication for over two years. While USCIS argued that these long waiting times were representative of their standard processing periods, and therefore should not be considered unreasonable, the judges disagreed.
With these legal precedents in place, filing a writ of mandamus can be an appealing option for EB-5 investors who find themselves waiting for years. It can also be a solution for investors whose dependent children wish to marry or will soon age out, and therefore would no longer qualify for a U.S. green card through the EB-5 investment program.
Associated Risks
EB-5 investors should be aware that filing a writ of mandamus is not risk-free. It is a costly process and not guaranteed to succeed.
Even if the litigation is successful, it only orders USCIS to adjudicate the petition, which may not result in approval. Moreover, if the petition is not fully compliant with the EB-5 investment regulations, it may be denied outright by USCIS. Under normal circumstances, USCIS would issue a request for evidence (RFE) in the case of conflicting or unclear information. However, this right is waived by EB-5 investors who successfully file a writ of mandamus.
Therefore, federal litigation should only be pursued if the investor is certain that their petition contains correct and comprehensive information, that their EB-5 investment is fully compliant with all regulations, and that the adjudication process is unreasonably slow.
EB-5 investors are advised to consult with an experienced immigration attorney who has a good track record with EB-5 investors. Their advice will be invaluable regarding the EB-5 visa process, as well as when or how to file a writ of mandamus.
