Here is an option worth exploring.
Co-Authored by: Rogelio Caceres – Chief Commercial Officer at LCR Capital Partners, Bernie Wolfsdorf – Founder and Managing Partner at Wolfsdorf Rosenthal LLP and Joseph Barnett – Partner at at Wolfsdorf Rosenthal LLP
How to compel the USCIS to Adjudicate your EB-5 Petition, Quickly!
The estimated time range for I-526 adjudications is now 31 to 52 months (which has increased from the previous update, which gave a range of 22 to 28.5 months). The latest processing timings can be viewed at this link.
Increasingly, EB-5 immigrant investors have become frustrated with long delays by USCIS to adjudicate I-526 and I-829 petitions. The facts, however, do not indicate that USCIS has suddenly become much more inefficient.
According to Suzanne Lazicki, one of the best independent analysts in the industry, explained the sudden shift as follows:
“The major report change is in the spread between the high and low end of the ‘estimated time range.’ Previous processing time report updates since early 2018 had around a 6-month spread; today’s report shows a 15+ month spread. I guess that USCIS is motivated here to redefine what counts as normal processing times by including outliers in the average.”
The high end of the estimated time range always roughly corresponds to the “receipt date for a case inquiry” in the processing report. The report page states this purpose for the case inquiry date: “to show when you can inquire about your case.” By suddenly adding 1-2 years to their estimate of what can be considered “outside normal processing time,” USCIS effectively cuts the number of petitioners who can hassle them with inquiries about overdue petitions. An understandable possible reason, even if the processing speed and backlog have not in fact changed.”
That said, several EB-5 investors risk the chance of current visas expiring (such as F-1’s, H1-Bs, E-2’s, O category visas, etc.). This is especially important given the multifold increase in the number of H-1B renewal applications being rejected by the USCIS most recently.
An Option to Force the USCIS to Adjudicate an I526 Petition
“The principal issue argued by a writ of mandamus lawsuit would be whether the USCIS has “unreasonably delayed” the adjudication of the petition.” Says Bernie Wolfsdorf – founder and Managing Partner of Wolfsdorf Rosenthal LLP.
Prevailing USCIS processing times (which the agency releases on its website) assist in determining whether an EB-5 application is delayed enough to warrant a relief sought by such a writ and it’s interpretation by a federal judge.
It may not be prudent to file a mandamus lawsuit prior to the average Form I-526 processing time listed, 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. However, to convince a federal judge that relief is warranted, an investor must allege in the writ of mandamus complaint how USCIS’ processing times have inexplicably jumped in recent months, despite increased EB-5 staffing at USCIS and large EB-5 filing fees to improve operational efficiencies. It is also not a recommended strategy in cases of applications from visa backlogged countries such as China, Vietnam or India where the dependent beneficiaries are at risk of “ageing out”. Seeking experienced legal counsel is strongly recommended in this scenario.
“Prior to filing a complaint for a writ of mandamus, it is advisable to try other, non-litigation strategies to resolve the delayed adjudication of an application. These include escalation requests, use of the USCIS’ Ombudsman’s office as a public advocate, and contacting the U.S. Congressional offices’ casework staff to interface with USCIS on your behalf. These steps may also be used to demonstrate to the federal court judge that the investor attempted to resolve the matter administratively. that the writ of mandamus lawsuit was the last resort after multiple attempts to resolve the matter, and that the investor is stuck in administrative limbo with clear detrimental effects to his/her family,” said Bernie Wolfsdorf.
Upon failure to get an appropriate response even after taking such steps, filing a Writ of Mandamus may be an option to compel the USCIS to adjudicate a delayed application, one way or another.
“Additionally, it may not be wise to file a writ of mandamus if there are issues regarding the investor’s EB-5 project, such as a lack of progress by the job-creating entity, problems in the investor’s immigration history or source of funds, SEC investigations into the Regional Center sponsoring the EB-5 project, adverse findings during FBI security checks, or the potential that USCIS may determine that a “material change” to the job-creating entity’s business plan has occurred” added Wolfsdorf.
“After a writ of mandamus is filed, an attorney from the U.S. Department of Justice (DOJ) is assigned to the case and will check with USCIS to inquire about the status of the application. The DOJ attorney will often review the substance of the case and may prefer to resolve the case through negotiation or settlement as opposed to fighting the merits of the case. However, EB-5 investors need to be aware that DOJ attorneys do not always respond with negotiation or settlement and may seek to dismiss the case.” Said Bernie Wolfsdorf
In the end, going down this road is an important decision and seeking qualified legal counsel is highly recommended.
On November 21st, 2019, the new regulations came into force, which includes the increase in the minimum investment amount to be $900,000 for TEA approved projects and $1.8 Mn for Non-TEA projects. Please consult your immigration attorney or LCR Commercial Representative for further information.