Effects of Filing a Writ of Mandamus on EB-5 Visa Application

A Writ of Mandamus (Mandamus Action) is a form of lawsuit that involves a court ordering a lower government agency, public association, or corporation to perform or cease an action. A Writ of Mandamus for EB-5 Visa is filed to expedite the adjudication of petitions. An EB-5 Mandamus is commonly used for Form I-526 (Immigrant Petition by Standalone Investor) and Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) petitions. 

Immigrant investors with petitions pending due to unreasonable delays from U.S. Citizenship and Immigration Services (USCIS) processing are eligible to file for an EB5 Mandamus. The U.S. Citizenship and Immigration Services (USCIS) can approve, deny, or issue a Request for Evidence (RFE) after the service of an EB 5 Mandamus. EB 5 Mandamus should only be used as a last resort when there are no other available remedies. 

Our article explains when a Mandamus is applicable for EB-5 applications and when you become eligible for filing one. We also detail the steps for filing a Writ of Mandamus for EB5 and the potential costs to you. We’ve successfully helped numerous immigrant investors achieve US permanent residency through the EB 5 Visa USA Program by assisting them in choosing the best projects to invest in.

What is a Writ of Mandamus?

A Writ of Mandamus (Mandamus Action) is a legal remedy involving a court order that directs a subordinate court, lower government agency, public entity, or corporation to take or cease action. A Writ of Mandamus is a federal lawsuit filed when there is no other available remedy for a particular issue. Writs of Mandamus (Mandamus Actions), unlike appeals, only ask higher courts to rule on the issue and not decide on the issue.

What are the Types of Writs of Mandamus?

There are 2 types of Mandamus Actions filed in US courts. 

  • A Peremptory Writ of Mandamus is a judicial order to a subordinate court, government agency, or government official that requires them to take action or cease an action when the court determines that an official law, duty, or ruling requires them to do so.
  • An Alternative Writ of Mandamus is a court order that mandates the following.
    • Stating the allegations of a complaint against a government agency, business, court, official, or other public authority and
    • Ordering the party to either perform a legally required action or cease an action at a certain time, or to demonstrate to the court why the party has not done so or should not be required to do so. 
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How Does a Writ of Mandamus Work for EB-5?

Mandamus Actions are used by EB-5 Visa investors to facilitate the adjudication of their petitions, particularly after several years of delay. EB-5 Mandamus are usually filed for petitions such as I-526, I-485, and I-829. Form I-526 (Immigrant Petition by Standalone Investor) is the initial petition used to qualify for an EB-5 Visa and shows the investor’s capability to invest the required capital and create jobs. Form I-485 (Application to Register Permanent Residence or Adjust Status) is filed by EB5 investors in the USA to obtain Conditional Permanent Residence for 2 years. Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) is submitted during the final stage of the EB5 Visa application process to obtain Lawful Permanent Resident (LPR) status in the United States.

The U.S. Citizenship and Immigration Services (USCIS) is the government agency that receives and processes EB 5 petitions. Historic processing times show lengthy wait periods, especially for I-526 petitions (31-50 months) and I-829 petitions (22-49 months). An EB-5 Mandamus Action is generally justified if the adjudication of these petitions goes beyond the average U.S. Citizenship and Immigration Services (USCIS) processing times

What are the Benefits of Filing an EB-5 Mandamus?

EB 5 Visa investors who have experienced unreasonable delays in the adjudication of their petitions benefit from filing an EB5 Mandamus with the help of an EB-5 Visa Attorney. The main benefit of an EB5 Mandamus is the prompt resolution of a pending petition. USCIS is legally required to adjudicate petitions within reasonable timeframes. An EB 5 Mandamus Action is a legal way to solve issues that are commonly associated with the delayed processing of EB 5 Visa petitions such as dependent children aging out. 

What are the Risks of Filing an EB-5 Mandamus?

EB-5 Visa investors should always consult with their EB5 Visa Attorney prior to filing an EB 5 Mandamus. An EB 5 Mandamus does not guarantee approval of their petitions and only forces USCIS to decide on their petitions expeditiously. EB5 Mandamus lawsuits for I-829 petitions are more likely to be successful based on the statute of the U.S. Congress. I-829 petitions must be decided on by USCIS within 90 days of filing or interview according to the US Congress. There are I-526 Writs of Mandamus that the Biden administration took to court due to national security and fraud concerns. 

An EB5 Writ of Mandamus should be a last resort and preferably filed when there is absolute assurance that all required documents and information are accurate and included in the petition. The USCIS issues a Request for Evidence (RFE) in mandamus cases that need additional information or denies the petition if there is missing information or requirements that do not comply with the EB-5 regulations. 

Who is Eligible to File an EB-5 Mandamus?

EB5 Visa investors with petitions that have been pending for more than 2 years are eligible to file for an EB5 Mandamus with the help of their EB 5 Visa Attorney. EB-5 investors must be able to prove that there is no other viable remedy other than an EB-5 Writ of Mandamus to address their complaint. EB-5 Attorneys are experts in the EB5 Visa Program and US Immigration Law. An experienced EB5 Attorney is able to properly advise immigrant investors who are considering filing a mandamus lawsuit and build a case for those disadvantaged by unreasonable delays. 

How to File an EB-5 Mandamus?

The process of filing an EB 5 Mandamus Lawsuit involves 7 steps.

  1. Preparing the mandamus complaint. The written EB5 Mandamus complaint is the legal record that specifies the jurisdiction, defendants, and legal remedy. The drafting of the EB-5 Mandamus takes between 7-10 days.
  2. Serving the notice to the USCIS. The EB-5 Mandamus is served to the Office of Legal Counsel of USCIS. A mutually agreeable settlement will be requested before filing the EB 5 Mandamus Action before the U.S. District Court.
  3. Filing the EB5 Mandamus Action. The US District Court receives the EB 5 Mandamus if the complaint has not been settled amicably within 60 days. The US government is formally notified that USCIS has been sued. A copy of the notification is also given to the U.S. Department of Justice (DOJ).
  4. Receiving a response from the US Government. USCIS and the US Department of Justice (DOJ) have 60 days to respond from the date that the EB 5 Mandamus Action was received. USCIS can challenge the proposed remedy, jurisdiction, and substance of the complaint.
  5. Entering a settlement. There are cases wherein the US Attorney requests a settlement negotiation by proposing proper USCIS action on the EB-5 investor’s petition.
  6. Filing motions. The U.S. Government may ask for a summary judgment to dismiss the entire EB5 Mandamus case. The court decides whether the EB-5 Mandamus case should go to trial.
  7. Going to trial. Trials before a judge are rare for EB 5 Mandamus complaints. EB 5 Mandamus complaints are usually resolved through settlements with USCIS issuing a decision on the pending petition.

How Much Does an EB-5 Mandamus Cost?

The cost of filing an EB-5 Mandamus is between $15,000 to $20,000. The EB5 Mandamus cost covers the legal fees of an EB-5 Visa Attorney and the processing fees for filing the complaint in court.

How Long Does It Take to Process an EB-5 Mandamus?

The US Government and USCIS have 60 days to respond to the EB 5 Mandamus complaint. EB5 Mandamus cases are usually settled within this period unless the US Attorney requests more time before a response is issued.

What are the Effects of Long I-829 Processing Times on an EB-5 Visa Application?

Long I-829 processing times further delay your ability to get Lawful Permanent Residence (LPR) status in the US. Given the current I-829 processing times, your Conditional Green Card will have expired before your removal of conditions petition is decided upon. The USCIS started sending receipt letters to EB5 investors with pending I 829 applications on January 11, 2023, extending their Conditional Permanent Residence by 2 years to address the Long I-829 Processing Times

Will an EB-5 Mandamus Negatively Impact an I-829 Petition?

No, an EB5 Mandamus does not negatively affect an I-829 petition. An EB-5 Mandamus is a legal course of action to push USCIS to decide on the I 829 petition that has been pending due to unreasonable delays.

Is it likely that an I-829 Mandamus will Go to Court?

No, I-829 Mandamus trials are rare and can be costly. USCIS typically agrees to settle by adjudicating the immigrant investor’s petition. 

Does an EB-5 Mandamus Lead to Approval?

No, an EB-5 Mandamus does not automatically result in visa approval. USCIS can approve, issue a Request for Evidence (RFE), or deny an EB5 petition after a Mandamus Action.