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What is the EB-5 Visa Program and Why are the Visas Delayed?

The EB-5 visa program is an investor visa program that allows foreign nationals and their dependents to reside in the United States in order to manage large-scale investments.  This program presently requires an investment of either $500,000 in a targeted employment area (TEA) or $1,000,000 anywhere in the United States as well as the creation of full-time employment for at least ten American workers.  This visa program ultimately allows an investor and his or her dependents to obtain lawful permanent residence and a path to US citizenship.

While the EB-5 visa program is an attractive option, particularly because it is viewed as a “fast-track” to American citizenship, many investors have grown frustrated with the substantial delays processing their visa applications.  Currently, United States Customs and Immigration Services (USCIS) adjudicates I-526 petitions in approximately 20 to 25 months, and I-829 petitions take over 30 months.  However, due to administrative delays, bureaucratic issues and other considerations, some I-526 Petitions have been delayed for substantially longer.

What Is a Writ of Mandamus?

A writ of mandamus is a type of lawsuit filed in federal court that essentially asks the court to determine whether USCIS has unreasonably delayed making a determination on the immigration petition.  A federal judge will make a decision on whether or not a delay is unreasonable and require USCIS to take action.  A writ of mandamus will not force USCIS to approve an application for an EB-5 visa; instead, it is simply requesting a judge to order USCIS to adjudicate a petition that has been unreasonably delayed.

After a writ of mandamus is filed, an attorney from the Department of Justice is assigned to the case and will inquire with USCIS as to the status of the case.  The case may be resolved through settlement or negotiation, or by USCIS choosing to adjudicate the case in a timely fashion.  In other cases, USCIS may try to adjudicate the application quickly in order have the writ of mandamus dismissed rather than proceeding with a response to same to avoid having to address the delay in adjudication with the federal judge.

When Should a Writ of Mandamus Be Filed?

Because a writ of mandamus is a type of legal action, it is always advisable to seek legal advice from an attorney who is skilled in both immigration law and litigation before filing such a lawsuit.  There are a number of initial steps that can be taken before a writ of mandamus is filed.  These may include escalation requests, contacting senators and congressional representatives, and using the USCIS’s Ombudsman’s office as a public advocate.   While these steps may not ultimately be effective, they can be utilized as evidence should an investor ultimately be required to file a writ of mandamus to show that he or she attempted to resolve the issue through other channels before filing a lawsuit. That said, we have filed successful mandamus actions despite none of these actions having been taken.

After consideration of the above options, a writ of mandamus may be considered.  Our attorneys have filed more than a twenty successful writ of mandamus actions against USCIS for unreasonably delaying adjudication of an I-526 application in the last year alone.  On average we receive an adjudication within two months of filing the writ of mandamus.  In one case, USCIS approved the application in under two weeks.

It should be noted that there are situations in which filing a writ of mandamus may not be beneficial for an EB-5 visa investor.  For example, if there are problems with the investment itself that could be resolved through the passage of time, it may be wise to wait out the USCIS adjudication process.  An experienced attorney can help you determine if it will be advantageous to file a writ of mandamus based on the facts of your case.

Orlando, Tampa & Miami EB-5 Visa Lawyers Can Help with filing Writ of Mandamus to Cure a Delayed EB5 Filing

We have helped investors throughout the world obtain EB-5 visas, and successfully filed a number of mandamus actions to assist our clients in having their applications adjudicated in a timely fashion.  If you would like to learn more about EB-5 visas, contact Colombo & Hurd today at our Orlando office at (407) 478-1111, our Tampa office at (814) 444-1114 or our Miami office at (305) 455-0590 to schedule a confidential consultation.


Rusten Hurd

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