The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
Delayed adjudication is a significant concern for foreign nationals as they have reached “crisis proportions” according to Ron Klasko. Repetitive inquiries will not have any effect on the process. But there is hope. At Klasko Immigration Law Partners, LLP, our experienced immigration litigation lawyers have handled many delay complaints, most of which have been resulted in adjudications within one to three months after the filings of the complaints.
Filing a Mandamus Lawsuit
The best and often only way to expedite the adjudication of an application is to file a mandamus lawsuit. This lawsuit requests that a federal court judge order the government to take action in a specific case within a defined timeframe. Although the complaint does not and cannot request approval of the application by the judge, it does give the judge a chance to review the situation and determine whether or not the delay is “unreasonable.” If the judge believes the delay is unreasonable, he or she can order USCIS (or other government agency) to adjudicate the application.
The Government’s Response to the Complaint
There is no “correct” time to file a mandamus case, but usually it should not be before the expiration of normal processing times. The longer the application has been pending, the more likely it may be that a judge could find the delay to be unreasonable.
A mandamus case is filed in federal district court. There is a choice of courts, which may include the federal district court with jurisdiction over the place where the foreign national lives or the company does business, the district court where the service center is located, or the district court in D.C. Every government agency involved in the adjudication process could be named as defendants (such as USCIS, DHS, US Attorney General, and the FBI). The Assistant U.S. Attorney or an attorney in the office of Immigration Litigation will represent the government, very often, the government attorney will convince the agency to adjudicate the application or petition rather than litigate the mandamus case. If that does not happen, the government will most likely file a Motion to Dismiss.
The government’s arguments for dismissal are usually one or more of these defenses:
- The federal court should not handle cases involving national security.
- The court should not let the applicant “cut in line.”
- The government has complete discretion in the adjudication process, which is not subject to court review.
- The government does not have to adjudicate the application.
- The delay is not unreasonable.
If the judge agrees with the government’s argument, the mandamus case will be dismissed, and the applicant will retain his or her position before the mandamus filing. However, in our experience, this has rarely occurred.
It’s important to note that winning a mandamus case does not mean the judge is approving the original immigration application that was delayed. It simply means the judge is ordering the U.S. government agency responsible to complete clearances and adjudicate the application within a specified period of time. If the judge rules in favor of the foreign national, they may also order the U.S. government to pay the foreign national’s attorney fees under the Equal Access to Justice Act.
Do you think you have a case suitable for a mandamus lawsuit? For more information, click here for our FAQ section, which covers complications such as when the foreign national is living abroad or when filing for pending naturalization or adjustment of status. Schedule a consultation with an immigration litigation attorney to discuss your specific situation.