“Using Mandamus as a Tool in EB-5 Adjudications”

08.16.13 | Archived

By Taher Kameli, Esq., Chicagoland Foreign Investment Group

One of the most valuable aspects of being a member of the Association to Invest in the USA (IIUSA), in my personal opinion, is the collaboration among Regional Centers and immigration attorneys.   We are colleagues, not competitors, for foreign investment and successful projects, and I strongly believe that a win for one is a win for all, especially when it comes to adjudication of immigration applications by, and guidance from, United States Citizenship and Immigration Services (USCIS). As our community continues to engage each other to ensure that the EB-5 Immigrant  Investor  Program  (EB-5  Program)  remains  an  important   part  of  United  States Economic development, as most recently demonstrated at IIUSA’s 3rd Annual EB-5 International Investment and Economic Development Forum in June 2013, I would like to share and expound on a topic I presented on the “EB-5 Regional Center-Related Litigation” panel with Attorney Ira Kurzban, Kurzban Kurzban, Weinger Tetzeli and Pratt P.A.: a complaint for a writ of mandamus.

A writ of mandamus is a legal action brought in federal court to compel an officer of the United States to take action and perform his or her non-discretionary duty.  In effect, it asks the judicial branch to order the executive branch, and its administrative agencies, to compel performance of ministerial or mandatory duties, such as an adjudication of a Form 1-526 Immigrant Petition by Alien   Entrepreneur   (Form 1-526) and Form 1-829 Petition by Entrepreneur to Remove Conditions (Form I-829), as well a prospective Regional Center’s Form 1-924 Application for Regional Center Under the Immigrant Investor Pilot Program (Form 1-924).  In my many years of practicing law, I have successfully brought actions for a writ of mandamus, including matters involving EB-5 cases, and I believe it to be an important tool that the EB-5 community can rely on when USCIS unreasonably delays in performing its duties.  It should be noted that, in the case of a Form 1-526 or a Form I-829, the proper plaintiff for the writ of mandamus is the foreign investor, not the Regional Center or the projects with which the investor is associated.   It is also important  to note the difference  between  asking  the court  to  order  USCIS  to  act  and  either approve or deny an immigration application and asking the court to order USCIS to approve an immigration application.   The former is appropriate for a writ of mandamus, while the latter is not.

Once a complaint for a writ of mandamus is filed in federal court, an attorney from the United States Department of Justice (DOJ) is assigned to the case.  The attorney  will notify USCIS that a lawsuit has been filed and ask the agency officer of the status of that particular case, so that the correct response or defense can be made in court.  In effect, the filing for a writ of mandamus causes DOJ to apply pressure to USCIS to make a decision.    Many times, even before the discovery period for the lawsuit commences, USCIS will issue its decision and either approve or deny the particular immigration application.

At a time when the processing of immigration applications is severely backlogged, a complaint for a writ of mandamus is an effective way to force USCIS into making a decision.   Further, if the complaint is presented in a manner which shows that the stimulation of the United States economy through capital investment by foreign investors and the creation of jobs for qualifying United States workers have been stymied by USCIS’ dilatory processes, a judge may be more sympathetic to a plaintiff’s case.

If you are an attomey, I hope to set a time to discuss strategies with regards to using a complaint for a writ of mandamus for EB-5 purposes.   If you are a non-attorney and are experiencing unreasonable delays by USCIS, I recommend that you speak with an attorney about the potential of using a complaint for a writ of mandamus to accelerate action.   I look forward to discussing any questions you may have regarding a complaint for a writ of mandamus and hope that our continued collective effort for faster USCIS adjudications will keep the EB-5 Program at the forefront of economic development in the United States.

**This article represents the views of the author and is being provided for educational purposes.  It should not be construed as official IIUSA policy or legal advice.**

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