In recent years, processing on many U.S. immigration petitions and applications has slowed down considerably. Perhaps none have slowed more than the processing of I-526 petitions and I-829 petitions that EB-5 immigrant investors must file during their application journey. The United States Citizenship and Immigration Services (“USCIS”) processing times on these forms has grown to 44.5 months for I-526 petitions and 47 months for I-829 petitions (as of June 12, 2020). Is there anything that an investor can do to move his or her petition forward?
There is one option available that might help. For I-526 petitions and I-829 petitions that are significantly beyond posted processing times, the investor can consider petitioning for a writ of mandamus in federal court. A writ of mandamus is an order from a court to a government agency requiring that the relevant agency properly fulfill official duties or correct an abuse of discretion.
The concept of suing the government to force it to take action may seem futile or ill-advised in some cultures, but it is a common and beneficial option in the United States. Investors should not fear a negative result in taking this step.
When filing the writ petition, it is important to include evidence of past attempts to resolve issues directly with IPO/USCIS. The USCIS will have 60 days to respond to the writ petition. If the court sides with the investor, it will order USCIS to fulfill its duties to adjudicate the I-526 and I-829 petitions in a timely manner (usually within 90 days of the court order). If the government wants to contest the court’s order, the process could continue for several more months. Alternatively, often filing the writ can result in USCIS agreeing to quickly issue a decision on the I-526 or I-829 petition in order to settle the court proceeding.
In either case, the process may be prolonged as government attorneys may request extensions to respond, especially as more and more investors, regional centers and projects turn to this remedy. Nevertheless, when other avenues have been exhausted and proven ineffective, this seems the most effective way to force USCIS to take action on a petition. In some cases, USCIS may ultimately issues a decision that is adverse to the investor, including the issuing of a denial, a Request for Evidence, or a Notice of Intent to Deny. At least such action may come sooner rather than later and the investor may still have recourse to respond or contest the decision.
For more information, contact us today at firstname.lastname@example.org and speak with a U.S. immigration attorney in Ho Chi Minh City, Manila and Taipei.
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