Over the past few years, there has been a significant increase in the processing time for each step of the path to permanent residency for EB-5 investors. The processing time for Form I-526 (now I-526E for regional center petitions), the first step in the EB-5 journey, has seen a 175% increase since 2016, according to the U.S. Citizenship and Immigration Services (USCIS). The processing time for Form I-829, the final step in the EB-5 journey, has also increased by more than 128% since 2016.
These prolonged processing times cause ongoing uncertainty for EB-5 investors, which can significantly impact their ability to make important decisions about their career, family, place of residence, and other significant life choices. It is not merely a frustrating delay but a hindrance to the EB-5 investor's life.
However, EB-5 investors have options when faced with long processing times. They may seek relief from a U.S. federal district court to compel USCIS to adjudicate the Form I-526E or Form I-829 application. Filing a petition for mandamus is considered a tool of last resort, but it is increasingly sought after due to persistent and unexplained USCIS delays.
A writ of mandamus
A writ of mandamus is a legal recourse available to EB-5 investors where a U.S. federal district court mandates a government official to fulfill their duty to the plaintiff. In the context of EB-5 investors, a writ of mandamus would require USCIS to adjudicate the Form I-526E or Form I-829 application based on the argument that there has been an unreasonable delay that has harmed the investor.
Determining what constitutes harm to an EB-5 investor can be a challenging question to answer because the definition of "harm" can vary from case to case. The extent of explanation in the mandamus complaint would depend on the attorney drafting the complaint, but it should clearly identify and explain the harm suffered by the investor.
While mandamus is technically a lawsuit, it differs from traditional litigation because there is no lengthy and expensive discovery process, such as depositions or document requests. The record for mandamus cases is usually based on the underlying immigrant petition and any correspondence between the applicant and the government.
If a federal court grants the writ of mandamus, USCIS is required to adjudicate the application, but it does not guarantee approval. The granting of mandamus only obligates USCIS to act on the application and does not guarantee the outcome.
Requirements for filing a mandamus complaint for EB-5 Investors
The Mandamus Act requires that the complaint explains how the plaintiff is entitled to the relief sought, based on three elements: the plaintiff has a clear right to have USCIS adjudicate the application, USCIS has a clear duty to adjudicate the application, and no other adequate remedy is available.
USCIS's duty to adjudicate an EB-5 petition is confirmed by immigration law and regulations, as well as the filing fee charged for the application. A complaint filed in federal court may also challenge USCIS delay under the Administrative Procedures Act (APA), which requires USCIS to carry out its duty within a reasonable time. A federal court may compel USCIS adjudication under the APA if there have been unreasonable delays.
The TRAC factors courts use to evaluate adjudication delays
The TRAC factors, which stands for "Time, Reason, Administrative burden, and Consensus," are a set of factors that courts use to determine whether USCIS's adjudication delay is unreasonable. While the TRAC factors are intended as "useful guidance," they are not clearly defined elements, and each case is fact-specific, resulting in little consistency between cases.
The first two TRAC factors, time and reason, evaluate whether there is a valid reason for the USCIS adjudication delay. This includes the length of time the application has been pending adjudication, USCIS processing times, immigrant visa availability, and whether immigration law or regulations specify a processing deadline. However, these factors can potentially work against the investor's argument if the current and very long processing times establish a precedent of what is reasonable.
The third and fifth TRAC factors evaluate the impact that the USCIS adjudication delay has had on the EB-5 investor such as "health and human welfare at stake," that is, the impact on the investor. While some courts are sympathetic to how investors are impacted by USCIS delays, it may not be enough to overcome other TRAC factors.
The fourth TRAC factor assesses whether expediting the application would allow the EB-5 investor to jump the queue and improperly advance their application at the expense of other investors. According to USCIS (and some courts agree), compelling them to adjudicate the investor's petition within the "normal" processing time frame would allow the investor to "jump the line" ahead of similarly situated investors.
Finally, the sixth TRAC factor examines whether USCIS's impropriety contributed to the adjudication delay, but courts typically find this factor to be irrelevant.
No mandated adjudication timeframes result in inconsistent court decisions
When Congress has mandated a USCIS adjudication timeframe, courts tend to find a USCIS delay beyond the statutory timeframe to be unreasonable. Unfortunately, EB-5 petitions do not have a statutory adjudication timeframe, leading to inconsistencies in court decisions. Thus, court decisions on mandamus actions for EB-5 petitions exhibit wide variance, making it difficult for immigration lawyers and investors to predict court rulings.
In 2022, Congress reauthorized the EB-5 program and expressed the view that USCIS should complete adjudications within 240 days after receiving an EB-5 petition. However, this processing time frame is only an ambition expressed by Congress, and it is not a specific mandate. Therefore, without statutory deadlines, court decisions on mandamus actions for EB-5 petitions remain unpredictable.
Key consideration: venue for filing
When considering whether to file a writ of mandamus in EB-5 cases, it is important to carefully evaluate the choice of venue for filing the complaint.
While the U.S. District Court in the District of Columbia is a common choice for EB-5 cases, as it is where USCIS Immigrant Investor Program Office adjudicates the application, it may not always be the best option. Alternatively, it may be preferable to file in the district court where the EB-5 enterprise is located or where the EB-5 investor resides, as certain locations are known to have a consistent "leaning" when it comes to mandamus decisions.
Current mandamus trends
At present, choosing the appropriate venue for filing a complaint is crucial, as the U.S. District Court of the District of Columbia consistently dismisses mandamus actions brought by EB-5 investors. The court's position is that the USCIS adjudication timeframe is not unreasonable, as the years-long delay is consistent with USCIS adjudication timeframes.
Plaintiffs argue that current processing times are unreasonable, citing the 240-day processing time goal, however, USCIS typically responds that this goal is not mandatory or enforceable since Congress expressed an ambition rather than a mandate. Unfortunately, the U.S. District Court of D.C. usually agrees with USCIS and declines to find an unreasonable adjudication delay.
When evaluating the circumstances of the EB-5 investor and the personal impact of the USCIS adjudication delay, plaintiffs describe how the delay has affected the investor's mental health, as well as life decisions such as career, family, and personal life.
USCIS, on the other hand, argues that these uncertainties are inherent to the EB-5 journey. Although the D.C. district court typically sympathizes with the plaintiff and finds these factors to be in favor of the plaintiff, they are not sufficient to overcome the other factors that favor USCIS.
The U.S. District Court of D.C. reasons that granting the EB-5 investor’s writ of mandamus would permit the investor to “jump the line” at the expense of others. In this view, granting mandamus would unfairly prejudice other EB-5 investors who have been waiting for USCIS to adjudicate the application.
Though the district court in D.C. regularly denies the request to compel USCIS adjudication, EB-5 investors should not be dissuaded from pursuing action in federal district court. There are alternative venues to file the complaint, including the federal district court of the investor’s residence and the federal district court of the location of the investment enterprise.
Other federal district courts take a different approach to the TRAC factor analysis, finding that the years-long USCIS processing time is unreasonable, especially since the number of EB-5 petitions has drastically decreased in recent years. These courts argue that the "normal" USCIS processing time does not indicate the reasonableness of that processing time. From this perspective, persistent and unexplained adjudication delays are inherently unreasonable.
Considerations before pursuing mandamus
While faster processing may seem desirable, mandamus may not be the best option for every EB-5 investor. The application must be strong enough to withstand close scrutiny by USCIS and there are various reasons why an EB-5 investor may not want to pursue adjudication. For instance, if there are problems with job creation (which happens frequently, particularly if there are financial or project delays), it may not be wise to compel USCIS adjudication by filing a mandamus complaint.
In such a situation, the investor should utilize the USCIS adjudication delays to strengthen the business and resolve any issues with meeting the job-creation requirement.
Conclusion: mandamus is a last resort but it may be the right one
While mandamus should be considered a last resort, EB-5 investors harmed by long-delayed applications should carefully assess seeking such relief. To determine whether this remedy is appropriate for their specific situation, investors should seek guidance from an experienced immigration lawyer.