The EB-5 Immigrant Investor Program was created by Congress in 1990 as an effort to boost the U.S. economy with foreign capital and create new jobs for U.S. workers. While it has helped thousands of foreign nationals receive U.S. green cards, it is no secret that EB-5 investors can be subject to extremely long processing times for their EB-5 petitions. Many EB-5 applicants wait years for their petitions to be adjudicated, with those from backlogged countries sometimes waiting up to five years. As of October 2020, there haven’t been any signs that United States Citizenship and Immigration Services (USCIS) will be processing applications any quicker.
These ridiculously long wait times can negatively impact those who have made an EB-5 investment. For example, if their child gets married during the prolonged waiting period, they are no longer eligible for a U.S. green card. USCIS does allow EB-5 investors to file a case inquiry to check the status of their petition, but only if their petition was filed before the given date for case inquiry, which can be found on USCIS’s Check Case Processing Times page. That said, the date for case inquiry is so far back that it basically prohibits any EB-5 investors from filing a case inquiry.
Filing a Writ of Mandamus
Although USCIS’s system can seem hopeless to those involved in an EB5 investment, there is still one more possible course of action. EB-5 investors can file a writ of mandamus, which is an order for USCIS to process an investor’s I-526 petition or I-829 petition immediately. However, this option can create potential risks for an EB-5 investor. With this course of action, USCIS is forced to immediately adjudicate the petition, which means if there is any inconsistent or insufficient information, the petition will just be denied. Under regular processing, the applicant may receive a request for evidence (RFE) and have a chance to provide the needed evidence to save their application, but this luxury is lost if one files a writ of mandamus.
It is important for investors to know that this route does not guarantee an approved petition. Anyone with an EB-5 investment who is considering filing a writ of mandamus should discuss their options with their immigration attorney to determine what the best course of actions is for their specific situation. Investors from backlogged countries should also keep their prolonged wait times in mind: As of October 2020, China and Vietnam are the only two backlogged countries, and investors from these two countries should anticipate longer wait times due to the large backlogs.
EB-5 Lawsuit Precedents
While it may seem hopeless to file a lawsuit against USICS, two precedents – Raju et al v. Cuccinelli and Keller Wurtz v. USCIS – seem to suggest otherwise. These cases include a total of 11 EB-5 investors who had waited between 22 and 29 months for their I-526 petitions to be adjudicated. Although these are not unusually long wait times for the EB-5 process, the judges seemed to believe that they are not “reasonable.”
According to USCIS’s estimated processing time ranges, investors could expect to wait 29.5 months to 74.5 months (2.5 to 6.2 years) during the time of the cases. USCIS referred to this time range to argue that the experienced delays were, in fact, “reasonable.” However, in both cases, the judges ruled that just because USCIS takes just as long to process other I-526 petitions does not make the processing time “reasonable.” The judges also referenced the congressional decree that immigration applications should typically be adjudicated in 180 days or less. These case rulings act as significant precedents because they have basically ruled that all of USCIS’s processing times are unreasonable.
Challenges for USCIS in 2020
These two court decisions add to an already long list of challenges that USCIS has faced in 2020. Because of the halt of immigration resulting from the COVID-19 pandemic, the agency has struggled to cover their operational costs. In August 2020, the agency expected to furlough roughly 70% of its employees but avoided this by cutting back on expenditures and increasing revenue and receipts. USCIS was then planning to increase filing fees for some immigration petitions to help offset the financial deficit, but this was prevented by a district court ruling on September 29, 2020. It is unknown how long USCIS will be able to continue operating in this deficit without a furlough.
These two lawsuits could force USCIS to begin processing EB-5 petitions much quicker than they have in the past. If more individuals with EB5 investments choose to file a writ of mandamus, USCIS will have to find a way to process EB-5 petitions in much shorter time frames, despite the financial challenges it is already facing.