The application process of the EB-5 immigrant investor program is complex and requires prospective investors to obtain the assistance of experienced EB-5 professionals to ensure that their application is filed accurately. However, the adjudication stage of the application is completely reliant on the United States Citizenship and Immigration Services (“USCIS”) and regardless of how accurate the application has been filed, there are applications that will be unreasonably delayed. At the occurrence of such situations the EB-5 specialist assisting the investor must look at solutions to rectify the situation, such as filing a writ of mandamus against USCIS.
It must be noted that USCIS has implemented procedures that will aid the process of all EB-5 applications so there can be no unreasonable delays. The visa availability approach is a direct attempt to ensure that I-526 petitions are approved once visas are available or soon to be available. In the September Visa Bulletin, it was once again confirmed that Indian nationals are now current. This means that they do not have any additional waiting periods. However, the increased popularity of the program in growing and emerging markets will continue to cause processing delays and this will likely cause an adverse impact on EB-5 investors waiting for their application approvals.
The writ of mandamus is a federal lawsuit that compels USCIS to take action on a case that has been unreasonably delayed. Filing a writ of mandamus does not force USCIS to approve the application; it only forces them to adjudicate the delayed application. The process allows for investors who have been waiting for action on either their I-526, I-829, or I-924 petitions to obtain an accurate conclusion of whether their application has been approved or rejected.
It is important for investors to understand that although the process of filing a writ of mandamus is available to every applicant, it is not advisable for all applicants to pursue this route. For example, applicants from China are required to wait post the approval of their I-526 petition as there are no visas available. The September Visa Bulletin stated that the priority date for applicants from China is 15 August 2015, meaning that they have a backlog of 5 years. In this situation filing for a writ of mandamus would not be advisable as it would only provide the applicant with adjudication of the I-526 but not the green card. If the applicant’s petition is approved and the applicant has children that are close to aging out, they would most likely age out before the applicant and their dependents can obtain their green cards and the children would miss out on the benefits.
Albeit, the writ of mandamus provides EB-5 investors with a security tool to ensure that there are sufficient checks and balances in place. However, the process is not always the best solution for all applicants and through working with an experienced EB-5 specialist, investors will be guided to making the correct decision for their application. As no two applications are the same, it is important for both EB-5 investors as well as advisors to be mindful of the fact that each case must be handled according to its own merits.
The American Legal Center is a team of U.S. licensed lawyers specializing in the EB-5 immigrant investor program. Working out of our Dubai offices, we have assisted many families based out of the GCC and emerging markets in obtaining their U.S. green cards. We will be your active guide throughout your EB-5 journey from the filing of your application to the receival of your U.S. green card.