EB-5 Info: What Is A Writ of Mandamus?

When EB-5 petition processing times are excessively slow, an EB-5 investor may be interested in looking into filing a writ of mandamus.

What is a writ of mandamus?

A writ of mandamus is a court order that would compel an agency to take action. For EB-5 investors, a writ of mandamus means filing a federal lawsuit to force USCIS to take action on their EB-5 petition and either approve or deny it.

USCIS lengthy processing times:

With extremely long processing times being posted on USCIS case processing times, EB-5 investors may be interested in filing a writ of mandamus, but it may not be the right option for every investor. Investors from backlogged countries such as Mainland China and Vietnam may not want to file a costly mandamus, knowing they face extra long wait times due to the new visa availability approach prioritizes other countries’ applicants over their own.

Despite the new visa availability approach prioritizing EB-5 petitioners from countries where visas are immediately available, adjudication times have still gone up. Additionally, with the extremely low volume of I-526 petition filings that were received between January 2020 and March 2020 (only 21!), one would hope adjudication times would decrease, but they have not.

USCIS was scheduled to furlough 70% of its workplace at the end of August, but was able to avert it for now. Although the furlough was averted, they may still use it as a way to excuse the long processing times. In their statement, USCIS Deputy Direct for Policy Joseph Edlow said, “…averting this furlough comes at a severe operational cost that will increase backlogs and wait times across the board, with no guarantee we can avoid future furloughs.”

EB-5 investors should contact an experienced EB-5 attorney to discuss a writ of mandamus. It may only need to be a last resort. Also, even if an EB-5 investor is successful with their writ of mandamus, it merely compels the agency to take action. 

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