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It’s no secret that the EB-5 Immigrant Investor Program often includes considerably long wait times for investors waiting for their I-526 and I-829 petitions to be adjudicated. With the case inquiry system of United States Citizenship and Immigration Services (USCIS) remaining virtually useless, many applicants have attempted to force the adjudication of their petition by filing a writ of mandamus. However, since this action forces USCIS to immediately adjudicate one’s petition, if there is any insufficient or inconsistent information, it will result in a denial instead of a possible request for evidence (RFE).
Because the risk of denial is much higher, it is advised to only file a writ of mandamus in extreme circumstances. Even in cases when the “excessive delays” are longer than the published processing times, this route does not always end in success.
Why Writ of Mandamus Isn’t Effective
Currently, the only writ of mandamus cases getting settled are the rare few experiencing the longest delays at the Immigrant Investor Program Office (IPO). In December 2020, the published processing times were 30–50 months, and it is expected that adjudication times will keep increasing. Unfortunately, “reasonable” wait times are defined by the IPO and their published processing times, which means that filing a writ of mandamus is not a helpful option for the vast majority of those involved with an EB-5 investment.
EB-5 Attorneys Considering Legal Action
With I-526 petition processing times at two to four years as of February 2021 and only 1,359 I-526 petitions being adjudicated in the first half of FY2020, many EB-5 attorneys believe that it is time to take action. If the Visa Bulletin is any indicator of future trends, matters are only going to get worse as processing times continue to increase. EB-5 attorneys are contemplating legal action as a means to redefine what is considerable a “reasonable” delay.
What is Needed to Redefine Reasonable Wait Times
Many EB-5 professionals feel that there must be a new benchmark used to define “reasonable” wait times. They argue that USCIS’s published processing times are meant to provide context for delays, not to set the standard of what is “reasonable.” For the efficiency of the EB-5 program to improve, there must be a distinction between actual processing times and what is considered a reasonable delay.
Congress’s Definition of Reasonable Delays
A look back at how this definition came to be can help explain why a new definition of “reasonable” is needed. Over two decades ago, Congress authorized a collection of funds as a solution for excessive backlogs on immigration benefit applications. Petitions pending more than 180 days were granted status under the Immigration and Nationality Act, which stated “the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” When the Department of Homeland Security was created, the language was changed from 180 days to one year. Because of this, the definition of a “reasonable” wait time also drastically increased. Although this extension might have been necessary at the time, this change from nearly two decades ago is no longer an accurate guide for reasonable processing delays.
IPO’s Workload Capacity
Another factor of I-526 petition processing volume, or the lack thereof, is the IPO’s workload capacity. A simple breakdown of the metrics can provide some insight into this problem. According to 2019 data, the IPO had 212 adjudicators on staff in 2019. According to USCIS, it takes an average of 8.65 hours for an I-526 petition to be processed. So, assuming that half of the adjudicators on staff were assigned to work on I-526 petitions, and assuming they worked 40 hours per week for 50 weeks per year, adjudicators could have collectively spent 212,000 hours processing I-526 petitions. This equates to 24,500 petitions being completed in 2019.
Unfortunately, only a small fraction of this number was actually processed in 2019. While it is important to point out that every petition is unique and could involve factors that extend processing times, it is obvious the IPO is not processing petitions at full capacity. Perhaps IPO prioritization should be reviewed further to possibly resolve some of the unreasonably long delays.
The Downside to Exemplar Projects and the New Processing Approach
USCIS is known to prioritize EB5 investment participants applications who have chosen to file through an EB-5 regional center. If the regional center project has received exemplar status, the I-526 petition can be expedited, since the project fundamentals have already been approved by USCIS. While this is good news for regional center investors, several qualified EB-5 investors who invested directly are left waiting indefinitely for their petitions to be adjudicated.
Additionally, the new visa availability processing approach for I-526 petitions also has negative consequences for many EB-5 investment participants. While this new approach is great for new applicants from countries with readily available visas, it pushes those who have already been waiting even further back in the system.
The Potential for Group Action
Unfortunately, USCIS and the IPO have endless excuses and reasons for these unreasonably long processing delays. To make matters worse, the option of legal action is not even viable until an investor has already waited close to two years for adjudication. If the investor chooses to follow through with a lawsuit, they increase the overall cost of their EB-5 journey, as well as the risk for their petition to be denied.
However, many in the EB-5 community are beginning to consider the idea of group action. This would involve small groups of investors experiencing the same type of delays addressing USCIS and their excuses in smaller jurisdictions. With multiple groups addressing different issues, it could begin to paint a picture of how to go about redefining a “reasonable” delay. With all that the EB-5 program has faced in 2020, now is the time to bring about new change and improve the program for the sake of EB-5 investors.
