The EB5 visa is an attractive path to permanent US residency, offering foreign investors and their families the opportunity to live, work, and study in the United States. However, as with many immigration processes, EB5 applicants often face long wait times and delays. Average processing times today can take between 18 and 36 months for applicants to receive their conditional green cards, with rural national interest projects seeing an average as little as 6 months. But in some cases, these delays can stretch far beyond normal processing times, leaving applicants uncertain about their future. This is where a legal tool known as a mandamus lawsuit can come into play.
Read more: Understanding EB-5 Timelines: From Application to Residency
What Is a Mandamus Lawsuit?
A mandamus lawsuit, formally known as a writ of mandamus, is a legal action filed in federal court to compel a US government agency—such as US Citizenship and Immigration Services (USCIS)—to perform its legal duty. In the EB5 context, this typically means asking the court to order USCIS to make a decision on a long-delayed EB5 application or petition.
It’s important to understand that a mandamus lawsuit does not ask the court to approve or deny your EB5 petition. Rather, it asks the court to require USCIS to act—specifically, to issue a decision in your case, whether that decision is approval or denial.
When Do EB5 Applicants Consider Mandamus?
Many EB5 applicants experience frustration with prolonged delays, especially with Form I-526E (the EB5 immigrant petition for regional center investors) or Form I-829 (the petition to remove conditions on permanent residency). Although processing times can vary significantly based on your country of birth, the specific USCIS service center, and current backlogs, delays that go far beyond published processing times may justify legal action.
Applicants typically begin considering mandamus once their petition has been pending 18–24 months or longer. At that stage, if USCIS has not acted despite inquiries, a mandamus can prompt the agency to issue a decision—often within 60–90 days.
Applicants often consider filing a mandamus lawsuit when:
- Their petition has been pending significantly longer than USCIS’s posted processing times.
- They have made reasonable inquiries to USCIS but received no satisfactory updates.
- They are experiencing personal, professional, or financial hardship due to the delay.
In recent years, LCR clients and other EB5 applicants have successfully used mandamus lawsuits to resolve these prolonged delays, making it an increasingly common strategy.
Does Filing a Mandamus Lawsuit Affect My EB5 Application?
Understandably, many applicants worry that suing USCIS could negatively affect their case. However, filing a mandamus lawsuit is a legal right and does not, in itself, harm your EB5 application. It simply requests that the agency follow its duty to adjudicate your petition.
Importantly, USCIS cannot deny your petition simply because you filed a mandamus. They remain focused only on the merits of your case—such as the strength of your petition, your lawful status and your admissibility. A mandamus also does not increase scrutiny; all petitions are reviewed thoroughly regardless of whether a lawsuit is filed.
That said, it is essential to work with an experienced immigration attorney who understands both EB5 law and federal litigation. A poorly prepared lawsuit or unrealistic expectations can complicate your situation.
Considerations When Filing a Mandamus Lawsuit
Although mandamus can be a powerful tool, it’s not a guaranteed solution for every applicant. Here are a few key considerations:
- Timing: Courts generally expect applicants to allow reasonable time for USCIS to process petitions. Filing too early may result in dismissal. Many applicants consider mandamus after at least 18–24 months of delay.
- Outcome: The court cannot order USCIS to approve your petition—only to make its decision. If your case is weak or incomplete, a denial is still possible.
- Process: In most cases, USCIS responds to mandamus by either approving the petition or requesting additional documents through a Request for Evidence (RFE). Well-prepared EB5 applications often receive approval after a mandamus filing.
- Cost: Mandamus lawsuits involve legal fees and court costs, which can be significant. Applicants should weigh these expenses against the benefits of a potentially faster resolution.
Is Mandamus Right for Me?
Mandamus lawsuits are typically pursued by applicants who have already experienced extreme delays—well beyond typical processing times—and who have strong, complete EB5 applications. If you are still within the average processing timeframe, or your petition has unresolved issues, a mandamus lawsuit may not be appropriate.
The first step is to consult a qualified immigration attorney with experience in EB5 cases and federal litigation. They can evaluate your specific situation, advise on timing, and help you decide whether mandamus is a strategic option.
Final Thoughts
For EB5 investors stuck in lengthy processing delays, a mandamus lawsuit can be an effective legal strategy to push USCIS to act. While not suitable for every case, it offers a potential solution for those facing uncertainty due to prolonged inaction. With USCIS often responding within 60–90 days and with no additional risk to your petition, mandamus can provide peace of mind for applicants seeking clarity. With the right legal guidance, mandamus can help EB5 applicants move one step closer to achieving their goal of US permanent residency.
