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In two separate mandamus lawsuits, judges reject USCIS ‘average processing times’ as defense for lengthy EB-5 waits

In two separate legal challenges of the agency’s lengthy processing times, each judge rejected the USCIS argument that the cases in question were below the “average” processing times. In a case where a petitioner was waiting two years since filing her I-526, that judge said, “The fact that USCIS takes equally long or longer to adjudicate other applicants’ petitions does not in itself show that such delay is reasonable.” In a different case featuring 14 I-526 petitioners and one I-829 petitioner, that judge declared, “a reasonable time for agency action is typically counted in weeks or months, not years.”

Two separate but similar EB-5 lawsuits against the United States Citizenship and Immigration services appear to bode well for disgruntled investors who won’t idly sit by and wait as the agency’s petition processing time can be counted in years.

In the first mandamus lawsuit, a Mexican winery executive claimed unreasonably delayed processing as she filed her I-526 petition two years ago. California federal Judge Joseph C. Spero sided with the investor, using the six “TRAC” factors to weigh the evidence; the judge determined that the plaintiff’s case satisfied four of the six factors often used to consider unreasonable delay.

6 TRAC factors used in determining unreasonable agency delay

Typically, a judge will look at six TRAC factors, established by a landmark lawsuit (Telecommunications Research ||abc|| Action Center vs. The FCC) to establish if an agency delay is reasonable or not.

  • Does an agency’s delay follow a “rule of reason”
  • Has Congress has established a timetable
  • In the case of delays that might otherwise be reasonable, they are less tolerable when human health and welfare are factors
  • The court should consider the impact that expediting a delayed action might have on other agency activities of a competing or higher priority
  • The court should consider the nature and extent of the interests prejudiced by the delayed action
  • The court does not actually have to find any impropriety behind the delay to determine such agency action is “unreasonably delayed.”

In this case, Judge Spero found that the EB-5 investor’s arguments met four of the six TRAC factors: the USCIS delay was not dictated by a “rule of reason”; Congress has established a 180-day timeline for processing immigration petitions; the plaintiff’s ailing father satisfied the “human health” factor; and expediting the plaintiff’s case would not compromise other visa applicants.

USCIS argument of average processing times don’t sway Judge Spero

The immigration agency, in its motion to dismiss, contended that the Mexican I-526 petitioner’s processing wait was under the posted “average,” and less than the four-year limit determined by other federal court judgments.

The judge, however, rejected this position and responded that average processing times are immaterial and don’t justify the delay. He also pointed to the fact that the agency had recently moved from a “first in, first out” processing system to one based on visa availability — and USCIS admitted there was a visa available for the plaintiff.

The agency also argued that the Congress-supported timeline of 180 days for processing was not a mandate. The judge acknowledged this but still stated, “USCIS is correct that this timeline is not mandatory, but it nevertheless weighs in favor of finding the delay here — approximately four times Congress’s stated goal — to be unreasonable.”

The wine executive hoping to get her Green Card sooner rather than later must have since raised a toast to Judge Spero.

USCIS not ‘working at a reasonable pace’ for applications in general

In what must be seen as a win for all EB-5 investors, Judge Spero’s words condemn the general processing speeds USCIS has been taking to adjudicate EB-5 petitions: “The pleadings do not show that USCIS is working at a reasonable pace to process the applications pending before it, or that it has prioritized those applications in a reasonable way.”

In this case the plaintiff is represented by Namgiao Do and Martin James Lawler of Lawler & Lawler.

Different mandamus lawsuit gets similar ruling in favour of plaintiffs

Another lawsuit against USCIS for unreasonable EB-5 processing delays has reached a similar outcome. Fourteen I-526 petitioners and one I-829 petitioner are behind the complaint alleging delayed processing times.

In this case, USCIS once again used average processing times as a defense. It maintained that the plaintiffs’ processing was less than the median processing time of 30 months, and far less than the outer number of 61 months (the time posted to process 93% of cases at the time of the hearing.

Even processing times at low end of average USCIS range can be ‘unreasonable’

Judge Alex G. Tse — similarly to Judge Spero — denied the USCIS argument using “average” processing times as justification: “Although these ranges provide context, they don’t prove that the delays at issue are reasonable as a matter of law. For depending on the grounds for the delays, even processing times at the low end of the range could be unreasonable.”

Congress’s 180-day timeline is a factor; I-526 processing should take months, not years

Again, similar to Judge Spero, Judge Tse also pointed to a Congress-supported timeline: “Although there is no statutorily mandated timeline for USCIS to process [I-526] petitions, it is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” 

And Judge Tse also seemed to rebuke the agency for its general processing pace: A reasonable time for agency action is typically counted in weeks or months, not years.” Testify, brother, testify. 

The plaintiffs in this case are represented by Matthew Galati and Bradley Banias. 

Read about the first case in the article “USCIS Has To Face Winery Director’s EB-5 Visa Delay Claims” [ subscription required] 

Read about the second case in the Galati blog “We’ve Secured a Major Victory Regarding EB-5 Delays” 

See a description of TRAC factors

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