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  • Article: Options for EB-5 Investors When Form I-526 Petitions Are Pending Too Long. By Joseph M. Barnett, Esq.

    Options for EB-5 Investors When Form I-526 Petitions Are Pending Too Long

    by


    At a recent IIUSA meeting in April 2016 in Washington D.C., the USCIS Immigrant Investor Program Office Deputy Director Julia Harrison indicated that USCIS “found” and are working diligently on adjudicating approximately 2,000 Form I-526 petitions filed in 2012 and 2013.  The latest published information from USCIS indicates that it takes an average of 16.2 months for USCIS to adjudicate a Form I-526.  On a positive side, USCIS has continued to hire more adjudicators in an effort to reduce the backlog of EB-5 applications.  Yet, immigrant investors are increasingly frustrated with long delays.

    Below are sixteen (16) tips immigrant investors can use which can speed up the first step of the EB-5 process.

    1. Check the status of the Form I-526 online using the Receipt Number printed on the I-979 Receipt Notice.
    2. If the Form I-526 has been pending for longer than the average processing time published by USCIS, send an inquiry to ImmigrantInvestorProgram@uscis.dhs.gov. USCIS will generally respond within fourteen calendar days, but, unfortunately, it appears that most responses are boilerplate.  Though, from time from time, USCIS indicates that “the file is currently with an officer,” which ordinarily means that decision may be forthcoming in a month or so.
    3. USCIS has created a follow-up procedure which requires the use of the word “ESCALATE” (in all caps) in the email subject line. Allow a minimum of three weeks for review and response.  Be pleasant and firm when communicating with USCIS.  Unfortunately, an Escalation Request usually results in a similar, boilerplate response from USCIS.  It may be helpful to use the Escalation Request for more urgent situations.
    4. Contact the USCIS Ombudsman which can act as a public advocate to help resolve problems with USCIS operations. Unfortunately, while the use of the USCIS Ombudsman is high, it rarely results in the final adjudication of a Form I-526.
    5. Contact U.S. federal government congressmen and senators to assist with your case. All USCIS offices have a congressional inquiry unit, and responses to congressional inquiries are more promptly issued than to individual inquiries.  While many constituents believe congressional inquiries are effective, anecdotal evidence indicates that sometimes government agencies can be inclined to justify issues/problems with a case that explain the delay, rather than expediting adjudications.  In brief, congressional inquiry should be used cautiously.  To find your local congressman, use this link.

    These steps are highly encouraged before resorting to litigation against USCIS, as they show effort to resolve the matter administratively.  It is important to keep track of all communications with and from USCIS and the USCIS Ombudsman.  However, if the Form I-526 remains unadjudicated after taking these steps, filing a complaint in U.S. District Court is a final step to push USCIS to act.

    1. A writ of mandamus is a legal action brought in federal district court to compel an officer of the United States to take action and perform his or her non-discretionary duty. A writ of mandamus does not ask for an approval; it merely asks for an adjudication of an unreasonably delayed petition.  Therefore, it is possible that the filing of a writ of mandamus may end up expediting a negative decision if there are underlying problems involved.  Seeking experienced legal counsel is strongly recommended in this scenario.
    2. BE SURE TO TAKE THE STEPS MENTIONED ABOVE BEFORE FILING THE WRIT OF MANDAMUS LAWSUIT to show “exhaustion of administrative remedies.” Moreover, submitting multiple online inquiries or escalation requests to USCIS prior to taking this final action is advised.  An attorney should be retained to file a writ of mandamus for only the most egregious situations.
    3. The principal issue presented by a writ of mandamus lawsuit is whether USCIS has “unreasonably delayed” the adjudication of an EB-5 petition, the length of which is subject to interpretation. Current USCIS processing times assist in determining whether an EB-5 petition has been sufficiently delayed to warrant mandamus relief.  A writ of mandamus should not be filed if the EB-5 petition has been pending for less than the current USCIS average processing time.
    4. The Administrative Procedures Act (“APA”) provides USCIS with an independent duty to “conclude a matter presented to it,” “within a reasonable time,” “[w]ith due regard for the convenience and necessity of the parties or their representatives” in accordance with 5 U.S.C. § 555(b). A violation of this duty allows an immigrant investor to bring a separate claim under the APA in his/her complaint for a writ of mandamus.
    5. There may be significant reasons to not file a writ of mandamus. For example, due to the EB-5 visa backlog for Chinese nationals, allowing USCIS to take time to adjudicate a Form I-526 may actually assist an investor whose child is less than 21 years old but could eventually “age out,” notwithstanding the provisions of the Child Status Protection Act (“CSPA”).  This is because the CSPA allows the derivative beneficiary to deduct the time the Form I-526 was pending from her or his actual numerical age.
    6. Issues which should be considered before filing a writ of mandamus include the following, not exhaustive, list:
      • A lack of progress by the job-creating entity,
      • Problems in the investor’s immigration history or source of funds,
      • SEC investigations into the Regional Center sponsoring the EB-5 project,
      • Adverse findings during FBI security checks, and
      • Potential that USCIS may determine that a “material change” to the job-creating entity’s business plan has occurred, which would require the investor to file a new Form I-526.
    7. Once a writ of mandamus is filed, an attorney from the U.S. Department of Justice (“DOJ”) is assigned to the case and will check with USCIS to inquire about the status of the application. The DOJ attorney will often review the substance of the case and may prefer to resolve the case through negotiation/settlement as opposed to litigating the merits of the case.  However, attorneys and litigants need to be aware that DOJ attorneys do not always respond with negotiation/settlement.  Be prepared to respond to a motion to dismiss.
    8. The proper plaintiff for a writ of mandamus lawsuit is the foreign immigrant investor, not the Regional Center, new commercial enterprise, or job creating entity associated with that foreign immigrant investor. Expect the DOJ attorney to argue that neither a Regional Center, a new commercial enterprise, nor a job creating entity have standing to bring a writ of mandamus lawsuit on behalf of the foreign immigrant investor.
    9. The DOJ attorney may argue that the U.S. District Court does not have proper jurisdiction to grant a writ of mandamus because (a) USCIS has no duty to adjudicate an EB-5 petition, (b) USCIS has discretion to adjudicate EB-5 petitions as it sees fit, (c) the amount of time the EB-5 petition has been pending is not unreasonable, (d) the Immigration and Nationality Act bars judicial review of mandamus cases, or (e) the immigrant investor did not exhaust administrative remedies. It is advisable to draft the complaint for a writ of mandamus in a manner which addresses these issues head on.
    10. Because a writ of mandamus is filed against individual officers acting in their official capacity, 28 U.S.C. § 1391(e) governs the venue of a complaint for a writ of mandamus. For immigrant investors located outside of the U.S., it may only be possible to file a writ of mandamus lawsuit in the district court in which a defendant resides, which likely will be the District Court of District of Columbia.  Expect the DOJ attorney to file a motion for a change of venue in the event a writ of mandamus lawsuit is filed elsewhere.
    11. A writ of mandamus may also be filed against the U.S. Department of State (“DOS”) and a particular U.S. consular office if an immigrant visa is not issued within a reasonable amount of time. However, as the U.S. Supreme Court stated in Kerry v Din, there is limited judicial review of consular visa decisions.  Accordingly, the DOJ attorney in such a case will likely argue, among other defenses, that the U.S. District Court does not have proper jurisdiction under the doctrine of consular non-reviewability.  Further, a U.S. District Court judge will not get into the merits of an immigrant visa application; it will only order that the U.S. consular office make a decision (either approve the application and issue the visa, or deny the application).

    This post is designed to provide practical and useful information on the subject matter covered.  However, it is provided with the understanding that no legal, tax, accounting, or other professional services are being rendered or provided.  If legal advice or other expert assistance is required, the services of a competent professional should be sought.

    This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2016 Wolfsdorf Connect - All Rights Reserved. Reprinted with permission.


    About The Author

    Joseph Barnett Joseph Barnett is licensed as an attorney in the State of Illinois and the State of Wisconsin and practices exclusively in immigration and nationality law. Mr. Barnett's practice focuses in the area of EB-5 Immigrant Investor Program and other business immigration matters. Mr. Barnett received his J.D. from Vermont Law School. Mr. Barnett may be contact at jbarnett@wolfsdorf.com

    For more information on the EB-5 PROGRAM AND GETTING YOUR I-526 PETITION ADJUDICATED, REGISTER HERE for a free webinar on June 14, 2016 at 7:00 PM Pacific standard time (June 15, 2016 at 10:00 AM Beijing Time).


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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