USCIS adjudication delays in EB-5 cases are neither new nor unusual. They have long been a drag on the EB-5 program.
EB-5 petitioners, and their attorneys, generally have two choices if confronted by an unreasonable adjudication delay. One choice is to wait– patiently or otherwise – for adjudication. The other choice, which has been utilized more frequently in recent years than ever before, is filing a complaint in federal court requesting the court to order a timely adjudication.
The following are some of the questions about EB-5 mandamus we are asked most frequently by our clients and the corresponding answers:
What is a mandamus complaint?
A mandamus complaint is an electronic filing with a federal district court seeking a court order requiring USCIS to adjudicate a pending petition.
Can a mandamus complaint request the court to order the approval of the pending petition?
No.
What is the difference between a mandamus and a complaint under the Administrative Procedure Act alleging unreasonable delay?
In most cases, complaints include both a request for mandamus and a request for a court to order adjudication because of unreasonable delay. Both causes of action should lead to the same result.
How long must a petition be pending before a mandamus complaint can be filed?
There is no exact period of time. Generally, the longer the petition has been pending, the greater the chance the court might order the government to take action.
Must the petition be pending beyond published processing times?
No. It is best if the plaintiff can allege that their case has been pending longer than the published processing time. However, in some cases, it can be shown that the government processing times are too long and constitute unreasonable delay.
Where should the mandamus be filed?
Generally, a mandamus complaint can be filed where the plaintiff resides (if in the US) or in the District Court of the District of Columbia. It is generally best to avoid filing in DC if possible. Because of the plethora of mandamus cases filed in DC, federal district court judges in DC have been largely unfriendly to EB-5 mandamus cases in recent years. In addition, there is an unhelpful DC Circuit Court precedent.
Are most EB-5 mandamus cases decided by the Judge?
No. In many cases, the attorney representing the government (usually either an attorney with the Office of Immigration Litigation of the Department of Justice or a US Attorney) will prevail on USCIS to adjudicate the petition rather than having to deal with a mandamus complaint. This is less likely if the petition has been pending for a shorter period of time. It is also less likely to happen with an I-526 or I-526E petition than it is with any other type of EB-5 petition.
What is the government’s response likely to be to an EB-5 mandamus complaint?
Assuming the government attorney is not able to get USCIS to adjudicate the petition, it is not unusual for the government to file a Motion to Dismiss for lack of jurisdiction.
If the government does not file a Motion to Dismiss, or if the Motion to Dismiss is denied, what happens next?
Both parties will file cross motions for summary judgment. The process of the filing and the cross motions and responses will take approximately 3-4 months. After that, the judge can make a decision at any time.
What are the government’s defenses likely to be?
Some of the defenses most frequently raised in a Motion to Dismiss or Motion for Summary Judgment are that USCIS uses a “rule of reason” and adjudicates on a “FIFO” basis; that the case is within the published processing time; that the plaintiff is trying to jump ahead of others who have filed after the plaintiff; and that processing times are discretionary and not subject to judicial scrutiny.
What is a normal timeframe for an EB-5 mandamus case?
The government has 60 days to respond to the complaint. In virtual every case, the government will request an extension of 30 days or more. If the case is going to settle—which means that USCIS adjudicates the petition—it is likely to happen during this approximate 90-day period after filing the complaint. The decision on the Motion to Dismiss may take approximately 4-8 months from the filing of the Motion.
If the mandamus is granted, will the court order attorney’s fees to be paid to the plaintiff’s attorney?
If the government’s position is determined by the court to be “not substantially justified,” the court can order the government to pay attorney’s fees.
Are EB-5 mandamus cases for I-829 petitions dealt with the same as with I-526 petitions?
Generally not. The government is more likely to adjudicate an I-829 petition rather than fight the EB-5 mandamus. The government is more likely to take a hardline position on the I-526 petition. Perhaps this is because the regulations impose a 90-day processing time for I-829 petitions.
Is the government likely to retaliate against a plaintiff who files a mandamus complaint?
In my experience, the answer to this is no. The government receives at least many hundreds of mandamus complaints every year. I can think of no example in the many hundreds of mandamus cases that our office has filed whereby the results of the adjudication appeared to be influenced negatively by the filing of a mandamus complaint.
Is it necessary to show that the plaintiff has been prejudiced by the government delay?
Although it is not necessary to show prejudice, the prejudice can certainly be a factor in whether a delay is considered to be “unreasonable.” As a practical matter, it is best if every mandamus complaint shows the prejudice caused to the plaintiff by the delay.
Can an EB-5 mandamus complaint include more than one plaintiff?
Yes. Generally, it’s best if all the plaintiffs allege a similar set of facts, such as investors in the same project.
Is it possible to file a mandamus complaint if USCIS has issued an RFE or NOID?
Yes. However, there should be some unreasonable delay following the response to the RFE or NOID.
Can a mandamus complaint be filed if a case is pending at the AAO?
Yes, if there is an unreasonable delay in the AAO adjudication.d.
The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.
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