By Matthew Galati, Principal, The Galati Law Firm
This is a member perspective and the views of the author are their own and do not necessarily reflect the views or position of IIUSA. The article was originally published on galati.law.
Matthew T. Galati is the Principal of The Galati Law Firm.
I have been honored to represent 22 joined plaintiffs facing USCIS’ I-526 adjudication delays in the lawsuit Gutta v. Renaud, 4:20-cv-06579-DMR (N.D. Cal. 2020). In Gutta, the plaintiffs’ I-526 filing dates ranged from October 2017 to November 2019. With the Court ruling that the plaintiffs had adequately stated a claim, this action opens the door to relief for the youngest group of I-526 delay cases to date.
As is typical when litigating mandamus against the government, the U.S. Department of Justice sought to quickly dispose of the matter by filing a Motion to Dismiss, Sever, and/or Transfer, arguing in part that the Court could not hear the case because the plaintiffs had not waited long enough for adjudication – using USCIS’ processing times as a defense. Magistrate Judge Donna Ryu mostly denied the Government’s motion, establishing important precedent for all EB-5 mandamus cases in the future.
Following Keller Wurtz and Raju, Gutta is the third major decision since August which has ruled in favor of EB-5 immigrants seeking to compel government action. A copy of the Court’s decision is attached. Co-counseling with our firm was Bradley Banias of Wasden Banias LLC.
The key takeaways from the decision are as follows:
1. USCIS’ processing times are not a per se bar to federal court.
USCIS’ published processing times are nonsensical, but are often cited by the Government to defend suits. Some immigrants and their filing attorneys are wary of bringing suits unless their cases are outside of processing times, which as of today is stated to be before June 21, 2017 (!). All plaintiffs in Gutta had later priority dates than USCIS’ so called “date of inquiry”, especially so at the time of filing the complaint last fall.
In seeking to dismiss the case, the Government advanced arguments materially similar to those previously advanced in Raju, namely, that the processing times control whether and if a plaintiff can bring an unreasonable delay case. The Court, however, stated that too many factual disputes were present to dismiss the case and noted that it would not adopt a bright-line test as to when a litigant can seek judicial relief. Given USCIS’ slowdown in processing and the Raju and Keller Wurtz precedents, the Northern District of California again netted a key victory for EB-5 investors wary of USCIS’ inconsistent and unexpectedly long processing times.
2. It is acceptable to join multiple I-526 plaintiffs together – they need not bring all claims separately.
The Government also argued that should the Court not dismiss the case, it must nevertheless sever the plaintiffs’ claims into 22 different suits rather than simply one.
The Court instead held that “forcing the parties to litigate the same issues in multiple fora across the United States does not serve the interests of judicial economy” and that the Forms I-526 at issue were sufficiently similar to be advanced in one suit.
3. It is appropriate to file mandamus suits outside of the District of Columbia.
In lieu of dismissal outright, the Government had also sought the Court to transfer the matter to the District of Columbia for further litigation, as it is home to the USCIS Investor Program Office (IPO). Plaintiffs opposed, having chosen California and meeting all venue requirements.
The Court agreed with our clients, stating in part that our “choice of venue is accorded substantial weight” and that the Government’s burden of litigating in California was relatively minimal as USCIS is well equipped to litigate around the country.
4. Investors may need to bring separate suits when encountering NVC transfer delays.
In a very limited victory for the Government, the Court dismissed several plaintiffs who, after their I-526 was approved while the suit was pending, sought an order to compel their approved cases to be transferred to the National Visa Center to commence consular processing. We respectfully disagreed with the outcome in this particular issue, nevertheless strategizing how to combat these additional NVC delays is something to be mindful of when bringing such suits in the future.
