Mandamus Lawsuits on Delayed EB-5 Adjudications

By:  Joseph Barnett

Writ of mandamus lawsuits against U.S. Citizenship and Immigration Services (“USCIS”) are en vogue, and for good reason:  as of December 2, 2019, the estimated time range to process a Form I-526 petition has skyrocketed from 31.5 months to 52 months, and online case inquiries are only accepted for petitions filed before September 7, 2015.  This is just wrong, and a travesty to those who have invested at least $500,000 and paid thousands of dollars more in fees to get their applications processed.  Extended processing times can cause a detrimental effect on those who are patiently (and nervously) waiting in nonimmigrant status for I-526 approval or for those whose children will “age out”, and a writ of mandamus may be necessary to get USCIS to act when its unstated stated goal is to delay, discourage, and deny.  Here are five things to know about lawsuits in federal court on delayed EB-5 adjudications.   

1. USCIS Employee Hours to Process Form I-526 Petitions. When USCIS increased the filing fee for a Form I-526 petition in 2016 from $1,500 to $3,675, it stated the increase would further “efforts with the goal of improving operational efficiencies while enhancing predictability and transparency in the adjudication process.”  It hasn’t.  The government also stated that it would only take 6.5 hours to complete a Form I-526 adjudication.  Yet, even as IPO continues to hire more staff and adjudicators, processing times continue to surge.      

2. First In, First Out? Based on Form I-526 approvals that our firm has received, it’s clear that USCIS does not adjudicate petitions on a first-in, first-out basis.  WR has recently received approvals for Form I-526 petitions filed as late as March 2018 but still have cases from early 2016 pending.  Factors that appear to impact processing times include exemplar-approved projects, complex source of funds scenarios, and inconsistencies with prior immigration filings with USCIS and the State Department. 

3. Filing Prior to Average Processing Times. Some attorneys are reluctant to file a mandamus lawsuit prior to the average Form I-526 processing time listed at the time of filing, with the thought that a federal judge may not determine that the delay to adjudicate is “unreasonable,” if all other immigrant investors are equally situated.  While every case must be evaluated on its own, a plaintiff must adequately describe in the complaint how USCIS’ stated processing times have inexplicably hit the roof in recent months.         

4. Build the Record. A federal judge will likely be more sympathetic to a plaintiff who can demonstrate that the writ of mandamus lawsuit was the last resort after multiple attempts to resolve the matter, and that he/she is stuck in administrative limbo with clear detrimental effects to his/her family.  
5. Action for Unreasonable Delay by Agency under Administrative Procedures Act. Aside from a writ of mandamus, a plaintiff has a cause of action to compel “agency action unlawfully withheld or unreasonably delayed” under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. Generally, when there is no specific statutory or regulatory deadline to make a decision, courts will follow the “TRAC” factors, from Telecommunications Research & Action Center v. FCC, to determine whether a delay is unreasonable, which include the following:

• The time agencies take to make decisions must be governed by a “rule of reason;”
• Where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;
• Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;
• The court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;
• The court should also take into account the nature and extent of the interests prejudiced by delay;
• The court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed

Wolfsdorf Rosenthal, LLP was recently recognized by U.S. News – Best Lawyers 2020 “Best Law Firms” for its expertise in immigration law and has the experience, expertise, and infrastructure to help with all your immigration needs.  As one of the fastest growing U.S. law firms specializing exclusively in immigration and nationality law, Wolfsdorf Rosenthal, LLP can assist in mandamus representation throughout the United States.