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Article: Mandamus Lawsuits on Delayed EB-5 Adjudications By Joseph Barnett

December 5, 2019

<div itemscope itemtype=”http://schema.org/Article”>
<h3 itemprop=”name”>
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Mandamus Lawsuits on Delayed EB-5 Adjudications
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/391975-article-eb-5-minimum-investment-amount-increases-to-900-000-november-21-2019-%E2%80%93-can-an-eb-5-applicant-invest-less-than-the-full-500-000-now-and-still-qualify-by-joseph-barnett-and-vivian-zhu#bio”>
<span itemprop=”author” itemscope itemtype=”http://schema.org/Person”>
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Joseph Barnett
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</span></span>
</a></i></h4><br/>
<div class=”post-content”>
<div class=”post-content”>
<p><span style=”color: #000000;”>By:&nbsp; <span style=”color: #0000ff;”><a style=”color: #0000ff;” href=”https://wolfsdorf.com/professionals/personal-joseph-barnett/”>Joseph Barnett</a></span></span></p>
<p><span style=”color: #000000;”>Writ of mandamus lawsuits against U.S. Citizenship and Immigration Services (“USCIS”) are <em>en vogue</em>, and for good reason:&nbsp; as of December 2, 2019, the estimated time range to process a Form I-526 petition has skyrocketed to 31.5 months to 52 months, and online case inquiries are only accepted for petitions filed before September 7, 2015.&nbsp; This is just wrong, and a travesty to those who have invested at least $500,000 and paid thousands of dollars more in fees to get their applications processed.&nbsp; Extended processing times can cause a detrimental effect on those who are patiently (and nervously) waiting in nonimmigrant status for I-526 approval or for those whose children will “age out”, and a writ of mandamus may be necessary to get USCIS to act when its unstated stated goal is to</span> <span style=”color: #0000ff;”><a style=”color: #0000ff;” href=”https://wolfsdorf.com/blog/2019/02/06/delays-in-u-s-immigration-applications-remedies-for-past-due-adjudications/”>delay, discourage, and deny</a></span><span style=”color: #000000;”>.&nbsp; Here are five things to know about lawsuits in federal court on delayed EB-5 adjudications.&nbsp;&nbsp;&nbsp;</span></p>
<ol>
<li><span style=”color: #000000;”><strong><u>USCIS Employee Hours to Process Form I-526 Petitions.</u></strong> When USCIS increased the filing fee for a Form I-526 petition in 2016 from $1,500 to $3,675, it stated the increase would further “efforts with the goal of improving operational efficiencies while enhancing predictability and transparency in the adjudication process.”&nbsp; It hasn’t.&nbsp; The government also stated that it would only take 6.5 hours to complete a Form I-526 adjudication.&nbsp; Yet, even as IPO continues to hire more staff and adjudicators, processing times continue to surge.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;</span></li>
</ol>
<p>&nbsp;</p>
<ol start=”2″>
<li><span style=”color: #000000;”><strong><u>First In, First Out?</u> </strong>Based on Form I-526 approvals that our firm has received, it’s clear that USCIS does not adjudicate petitions on a first-in, first-out basis.&nbsp; WR has recently received approvals for Form I-526 petitions filed as late as March 2018 but still have cases from early 2016 pending. &nbsp;Factors that appear to impact processing times include exemplar-approved projects, complex source of funds scenarios, and inconsistencies with prior immigration filings with USCIS and the State Department.&nbsp;</span></li>
</ol>
<p>&nbsp;</p>
<ol start=”3″>
<li><span style=”color: #000000;”><strong><u>Filing Prior to Average Processing Times.</u></strong> Some attorneys are reluctant to file a mandamus lawsuit prior to the average Form I-526 processing time listed at the time of filing, 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.&nbsp; While every case must be evaluated on its own, a plaintiff must adequately describe in the complaint how USCIS’ stated processing times have inexplicably hit the roof in recent months.&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</span></li>
</ol>
<p>&nbsp;</p>
<ol start=”4″>
<li><span style=”color: #000000;”><strong><u>Build the Record</u>.</strong> A federal judge will likely be more sympathetic to a plaintiff who can demonstrate that the writ of mandamus lawsuit was the last resort after multiple attempts to resolve the matter, and that he/she is stuck in administrative limbo with clear detrimental effects to his/her family.&nbsp; Review our</span> <a href=”https://wolfsdorf.com/blog/2016/06/08/options-eb-5-investors-form-526-petitions-pending-long/”>blog from 2016</a> <span style=”color: #000000;”>on steps that can be taken before resorting to litigation.</span></li>
</ol>
<p><span style=”color: #000000;”><u>&nbsp;</u></span></p>
<ol start=”5″>
<li><span style=”color: #000000;”><strong><u>Action for Unreasonable Delay by Agency under Administrative Procedures Act</u>.</strong> Aside from a writ of mandamus, a plaintiff has a cause of action to compel “agency action unlawfully withheld or unreasonably delayed” under the Administrative Procedures Act (“APA”), 5 U.S.C. § 706. Generally, when there is no specific statutory or regulatory deadline to make a decision, courts will follow the “TRAC” factors, from <em>Telecommunications Research &amp; Action Center v. FCC</em>, to determine whether a delay is unreasonable, which include the following:</span></li>
</ol>
<ul>
<li><span style=”color: #000000;”>The time agencies take to make decisions must be governed by a “rule of reason;”</span></li>
<li><span style=”color: #000000;”>Where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;</span></li>
<li><span style=”color: #000000;”>Delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;</span></li>
<li><span style=”color: #000000;”>The court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;</span></li>
<li><span style=”color: #000000;”>The court should also take into account the nature and extent of the interests prejudiced by delay;</span></li>
<li><span style=”color: #000000;”>The court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed</span></li>
</ul>
<p>&nbsp;</p>
<p><span style=”color: #000000;”>Wolfsdorf Rosenthal, LLP was recently recognized by U.S. News – Best Lawyers 2020 “Best Law Firms” for its expertise in immigration law and has the experience, expertise, and infrastructure to help with all your immigration needs.&nbsp; As one of the fastest growing U.S. law firms specializing exclusively in immigration and nationality law, Wolfsdorf Rosenthal, LLP can assist in mandamus representation throughout the United States.</span></p>
</div>

<p>This post originally appeared on <a href=”https://wolfsdorf.com/blog/2019/12/05/mandamus-lawsuits-on-delayed-eb-5-adjudications/” target=”_blank”>Wolfsdorf Rosenthal</a>. Reprinted with permission.</p>
</span>
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<a name=”bio”></a>
About The Author<br/>
</h4>

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<p>
<b>Joseph Barnett</b>is a partner at Wolfsdorf Rosenthal LLP and specializes in employment and business immigration cases, including immigrant petitions and non-immigrant visa applications for foreign entrepreneurs and investors, management personnel of international companies, individuals with EB-1 extraordinary ability, EB-2 national interest waiver, and alien workers. She also handles complex immigration cases such as protecting age-out derivative children under CSPA, mandamus litigation, consular inadmissibility, as well as preparing responses to Requests for Evidence, Notices of Intent to Deny, and Notices of Intent to Revoke.

</p>
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<p><hr/>
<div class=”ilwFinePrint”>The opinions expressed in this article do not necessarily reflect the opinion of <span itemprop=”publisher” itemscope itemtype=”http://schema.org/Organization”>
<span itemprop=”name”>ILW.COM</span></span>.</div></p>
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