When patience is no longer a virtue: mandamus filing as a solution for pending EB-5 applications

Special guest is Martin Lawler, one of the leading immigration lawyers in the U.S. With over 30 years of experience, he has helped thousands of clients from around the world. His book Professionals: A Matter of Degree is recognized as a leading text on employment-based visas.This conversation explores the option of filing a Mandamus suit when a pending EB-5 application is taking longer than expected.EB-5 applicants and their lawyers will want to hear Lawler’s thoughts on the slowdown in EB-5 processing, what a Mandamus filing actually means, how long the process takes, and the typical result after filing. Lawler shares his views on the three key people in a Mandamus action — and what statue will “hold the government’s feet to the fire.” He also shares what the government response may be. Does filing more than one Mandamus action make sense? Are certain jurisdictions more favorable to a Mandamus filing? Lawler explains.Read this article to learn when this powerful tactic can expedite the processing of an EB-5 application that is unreasonably delayed.Current EB-5 Petition Processing TimesMartin Lawler: I think there’s the truth and there is the USCIS [U.S. Citizenship and Immigration Services] posted processing times. Posted processing times for an I-526 is somewhere between 32 and 49 months. And the application for removal of conditional residence status (I-829) is also three to four years.I generally find that I-526s take two to three years, sometimes longer. And the I-829s, generally take two to four years.But processing times have slowed greatly. In the last quarter that we have statistics for (4th Qtr 2019) there are only about 500 adjudications of I-526 petitions and about a year earlier there were 3,000. So the EB-5 processing has slowed down considerably.Kurt Reuss: Can you speculate as to why I-829 and I-526 processing has slowed down so significantly?Martin Lawler: I think it’s intentional. I don’t think it’s just retraining or anything like that. But, it’s slowly gotten longer and longer over the years and the number of applications has gone up considerably in the last decade, even though applications have dropped over the last couple of years. So, we don’t really know why there’s been a slowdown.Kurt Reuss: Is there a solution for long-pending EB-5 applications?Mandamus ActionsMartin Lawler: Yes. And it’s called a Mandamus Action. Generally, we send inquiries through the IPO [Immigrant Investor Program Office] at the USCIS headquarters that process I-526 and I-829 EB-5 applications and that usually does not result in any type of adjudication. Sometimes we’ve gone to congressional offices and sought their help, and again, the only thing which really seems to bring a case to fruition is a Mandamus Action.Kurt Reuss: So what is a Mandamus Action?Martin Lawler: A Mandamus Action is basically a mini-lawsuit. It is filed in federal court where the court is asked to order USCIS to make a decision on a petition, such as an EB-5 I-526 application or the I-829 application. And the court will step in and make a decision. We’re not asking the judge to approve the petition; what you’re asking for in a Mandamus Action is an order forcing the government to make a decision on the application. Yes or no.Kurt Reuss: Just for context, what does “Mandamus” mean?Martin Lawler: You’re asking for a mandate from the court to make a decision on the application. You’re asking for a court order. Now most applications for mandamus, not all, but most, result in a settlement. There’s a decision made on the application before you actually go to court and argue your case before a judge.How long can mandamus action take?When one files the application in court, called the complaint, must then be served on government officials through the mail. After that, the government has 60 days to respond. Usually, within that time, a decision is made on the I-526 or I-829 application.Sometimes the U.S. attorney representing the government will come back and say “Can you give us some more time?” And usually one does grant more time to the U.S. attorney. Kurt Reuss: So their motivation is to get this done in 60 days. How long can a Mandamus decision take?Martin Lawler: Well, if there are special issues and the government does not want to settle, they can push back and force court hearings, arguing before the judge and briefing on the case. Things can drag out; it depends also on how long one waits before filing.I filed a few mandamus actions recently where the I-829 removal of conditional residency status application had been pending for four years. We filed those actions, spoke to the US attorney, and within a few weeks those applications had been pulled off the shelf and they got approved.If somebody tries to file a Mandamus Action after an I-526 has been on file for, let’s say, a few months or a year, I’m pretty sure the government would fight back, and the US attorney may not be so inclined to settle unless we have some exceptional reason for bringing an action relatively early in the process.Basically, what one is arguing in a Mandamus Action is the government’s delay has been unreasonable. And there are two competing factors: One, the government will argue that their processing times have not gotten to this case. They have a long backlog, but they’re also required under the administrative procedure act to take into account the individual’s situation.USCIS must take into account the Petitioner’s NeedsEach individual has different factors in their lives. Sometimes there are children who are aging out because quotas are backlogging; some people have medical problems; other people want their money back to fund their retirement, and so on.Kurt Reuss: So part of the decision from the government’s point of view is determining the need of the petitioner. How much responsiveness has to do with the person who works for the government and takes on the case?Martin Lawler: Well, I think one of the key persons in a Mandamus Action is the US attorney. Some US attorneys are strong advocates for the government and are less inclined to settle matters and part of it is the attitude of the judge. Some judges are more hands-off and they’re gonna give agencies great discretion.Each case is different. But a lot has to do with how long the application has been on file.How much is based on judge’s philosophy?Kurt Reuss: So the personalities of the judge and of the attorney representing the government are less important than the weight of a petitioner’s needs?Martin Lawler: It’s all three. I wouldn’t call it’s the ‘personality’ of the judge, I would say it’s their philosophy as to what is unreasonable.These days we’re facing I-526s that take many, many years. Then there’s the processing of the immigrant visa or the adjustment of status, and you then have to wait 21 months to file the I-829. And then you have the I-829 taking years. According to the processing times, you’re probably looking at seven, eight, nine years.In reality, it takes much less than that but they are stretching out to take quite a while, which is not what Congress intended. When we file our Mandamus complaints, we set forth in the complaint that there is a statute from Congress that immigrant petitions are supposed to be decided within 180 days; and there is an even a stronger statute for I-829s saying that they are to be decided within 90 days of the interview.And an I-829, as you know, is rarely, rarely interviewed, so there are statutes which we try to use to hold the government’s feet to the fire a little bit and get them moving along to have these applications completed.How long should you wait before filing a Mandamus action? Kurt Reuss: How soon after the statute of 180 days does your firm typically take a position where, if there was no cost associated with the petitioner, you would file a Mandamus?Martin Lawler: Generally, I think lawyers should wait about two years for an application to be on file before bringing a Mandamus action. I have one case right now because the petitioner is a 79 year old and I think that’s been on file for about 14 months. But if we wait for the processing time, it’ll take quite a few years more, and I think it’s time for a 79 year-old lady to have her peace and be done with immigration.Kurt Reuss: If I was a father of a 17 year old, I would be very anxious to get approval so she could go to school in the US. How long after 180 days would you recommend to me, before I file a Mandamus?Martin Lawler: Generally, I’d wait for about two years.Kurt Reuss: Even if my child wants to go to school? Because it strikes me — what’s the harm? Other than the cost? What’s the harm in filing a Mandamus?Martin Lawler: Well, the government’s position will be first, that there is a first-in-first-out adjudication of the I-526s and I-829s. And I’ve seen them argue that in court, but I’m saving up evidence to show that that is not true. The latest statement I’ve seen in somebody’s case was that they generally try to follow first-in-first-out. But we know that they don’t do that.They also claim sometimes that they have the right to allocate their resources how they see fit. They argue that normal processing times haven’t been met, and I’ve seen them say they shouldn’t pull cases out and adjudicate Mandamus for people who can afford to bring Mandamus Actions, which I think in EB-5 we’re generally dealing with fairly wealthy immigrants. So they might argue, why should this person’s application go faster than somebody else’s?What if I’m pushy for Mandamus filing?Kurt Reuss: Okay, so walk me through this. Let’s say I’m an insistent person and I say: “Okay Marty, it’s been nine months, we’re beyond the 180-day statutory limit by three months. Here’s the money, file a Mandamus.” Now you run into a problem in court, where the court pushes back and says: “Why should we rule on your case ahead of everyone else?”Do I get to file another mandamus in a year if I want, or six months from now if I want? What’s the downside to filing a mandamus that early.Martin Lawler: I think that governments can stick their heels in the soil a little bit and be resistant once they have a court kind of backing them up. I think it would be harder the second time around. I generally will tell the client, “you need to wait”. Now, if there are some extenuating circumstances, that could change things. Rupy Cheema: I would be worried that by filing a mandamus, maybe I’m asking for some unreasonable RFE [Request For Evidence] instead of them taking action.Martin Lawler: Well that’s a very good point. First of all, if it does cause an RFE to be issued, at least the Service has gotten to the case and it’s moving along and I can respond to any concerns that the adjudicator has.And with an agreement with the US attorney, kind of put the mandamus on hold until there is a decision. Usually, when an RFE is issued there is a response coming along fairly quickly, but not always. A lot of people have concerns about retaliation by the government by bringing a mandamus action in court. I think you will find that lawyers say they do not find that to be the case, but, in one case I did see a strange RFE issued.I’ve never seen one like it. They asked for a lot of documentation about the source of funds of the other EB5 green card investors including the American citizens in a smaller hotel project. And we got that evidence and we sent it in, and within three days the I-526 was granted.But, generally, I don’t see retaliation. I always review the documentation and question my clients and it’s best to submit a clean case. If somebody has serious issues, I probably would not be pushing a mandamus action.What does a Mandamus filing look like?Kurt Reuss: Can you paint me a picture of what a mandamus filing looks like? For example, how many pages is it? and what does it typically cost?Martin Lawler: Mandamus actions, a complaint can be 15 to 20 pages, sometimes a little shorter. It is filed online. You serve it with other papers issued by the court and then engage the US attorney in a dialogue. That is your typical case, with petitions getting resolved in two to three months after serving the government. It usually takes a month or two to put together a mandamus action and file it.The cost depends on whether the government pushes back or not. I charge a flat fee for researching and filing the mandamus action, engaging the government in dialogue to try to get it approved; and if the government does decide to oppose the action, then I charge hourly for briefing the case argument in court, and so on.Kurt Reuss: Can you give me a ballpark on what the initial filing will cost?Martin Lawler: Yeah. It’s around $15,000.What about the strategy of overwhelming the Department of State with a multitude of Mandamus filings?Kurt Reuss: We’re obviously in uncharted territory right now regarding processing times of EB-5 petitions. What if the industry got very active with Mandamus filings. Is there the potential that the US attorney’s office would just throw up their hands and say, “we can’t take on all these cases, so hey USCIS, you’re not doing your job and something needs to change here”?Martin Lawler: Well, we had a similar situation a couple of decades ago when the security clearances background checks were not being processed and some adjustments of status applications were languishing for years. A disconnect between the fees the immigration service wanted to pay the FBI to do these background checks. So with adjustment of status taking years, people started filing mandamus actions all over the country. And again, sometimes the US attorneys fought them and sometimes they tried to convince the government that their delay was unreasonable and get them approved, but they started being filed all over the country and courts were finding in favor of the plaintiffs, and eventually, the immigration service renegotiated their contract with the FBI and the security clearances were processed quickly, and that period of filing mandamus was over.Kurt Reuss: So, in some ways, the mandamus filings may have pushed the settlement.Martin Lawler: Absolutely. Yes.Kurt Reuss: Because you have judges, that, is in effect, determining whether or not a mandamus filing is reasonable and you have attorneys that are also part of the decision. Are there certain jurisdictions that you’re familiar with that are more receptive to a mandamus filing?Martin Lawler: No, I don’t think so. Other people may have a different view. I’m in California and many of my cases have been in California, but I’ve also argued them in New York, Florida and Arizona.How important is the choice of venue?Kurt Reuss: How do you determine where to file?Martin Lawler: Anyone can file in Washington DC, including if they are outside the United States.Factors include where you have lived, where the EB-5 project you invested in is located. One can argue about where the venue is, but one can always file in Washington, DC.Kurt Reuss: have you found Washington DC to be a favorable venue?Martin Lawler: I haven’t filed one in Washington DC in quite awhile. I think that if a petition has been pending for a long time, that a US attorney and the courts are generally favorably disposed towards having the government make a decision. After all, the individual is paying thousands of dollars in filing fees and they have a right to a decision on their application.Kurt Reuss: So now the filing is done electronically?Martin Lawler: Now it is, yes.Kurt Reuss: So is there any reason why you would choose one venue over another.Martin Lawler: Yes, there are a number of factors. One is the cost. If I’m in San Francisco and I’m arguing a case in New York, if I have to actually go and argue the case, then it’s more expensive to fly me or one of my lawyers out there.Rupy Cheema: Martin, can you file a mandamus for a project on behalf of all the investors if there’s no action being taken?Martin Lawler: No, I don’t think so, no. If the project has filed an exemplar, the project would have the standing to seek a decision on the exemplar because they have filed as their application. A group of investors can get together, and I filed them for multiple investors in one project, but a project doesn’t have standing on behalf of the individual investors for a decision on there.Rupy Cheema: So a group of investors can do it.Martin Lawler: Yeah, a group of investors and some investors may want to participate and others may not.Kurt Reuss: So you file first online, and then you may ultimately end up in court.Martin Lawler: Yes, I always have to assume that yes, we will end up arguing the case in court, and there may be other factors pertaining to the individual or the jurisdiction.Mandamus filing: Court storiesKurt Reuss: Can you share with us any, anecdotes, any stories of a situation where you went into court and you expected to get a positive result and you didn’t, and maybe why?Martin Lawler: Well, I’ll give you two examples. We filed two mandamus actions on I-526s; they had both been on file about a year. They both had children who were going to age out when the Indian quota backlogged. We filed one in New York and one in Florida and the facts were almost identical. The US attorney pushed back in the New York case so we filed a motion for a temporary restraining order to expedite. And we only had a couple of days. The quota was about to backlog and the court was reluctant to order the government to decide the petition and we had very little time to marshal detailed evidence. We worked over the weekend and had a number of declarations from lawyers about the processing times and so forth, to no avail. The same week we had another case in Florida, identical facts. The US attorney did not oppose the action; we got an RFE, which we responded to, and got the approval of the I-526, and filed the adjustment of status that same day and saved those kids from aging out. So there are two, almost identical cases with two different decisions.Kurt Reuss: And one child entered the country almost immediately and the other one was suddenly subject to a retrogression of perhaps five years.Martin Lawler: Yes, we wanted to get the petitions approved while the quota was still open so children could immigrate with their parents.Kurt Reuss: So a good story will help your case. And if there’s no pressing need, then you don’t need to rush it.Martin Lawler: Well, there’s the old adage in the law that bad facts make bad law. So it’s usually good to give the government sufficient time to make a decision on the application but a couple of years seems to be unreasonable.Filing a Mandamus action: a summaryThis can be an effective measure to explore when a petitioner is finding that his or her application is taking longer than average. Many factors can influence the decision, including the judge’s philosophy and the petitioner’s particular situationHere are some key takeaways from this conversation:A mandamus action is a mini-lawsuit where one asks the court to order USCIS to make a petition decision based on an “unreasonable delay”It is not a request for approval, per seMost applications for mandamus end in a settlementAfter the complaint is filed and then mailed to the government, they have 60 days to respond (sometimes they request more time)The judge, the attorney representing the government, and the petitioner’s needs are the three key elementsA Congressional statue says that immigrant petitions should be decided within 180 daysLawyers should wait about 2 years before filing a mandamus actionIt’s not advisable to file multiple mandamus actions for the same petitionPetitions usually get resolved around two to three months after filingLawler usually charges about $15,000 to file a mandamus actionThe jurisdiction shouldn’t make a difference