The EB-5 Visa program allows foreign investors to become eligible to apply for US permanent residency upon investing in the economy of America. However, the journey is often fraught with delays, especially when it comes to processing times. In such cases, mandamus actions can offer a legal remedy. Unfortunately, misconceptions surrounding these actions often deter applicants from considering this viable option.
In this blog, we’ll delve into the common misconceptions about mandamus actions in EB-5 cases and provide clarity on this critical legal tool.
What Is a Mandamus Action?
A mandamus action is a legal petition filed in federal court that compels a U.S. government agency to perform its duty. For EB-5 applicants, it usually means petitioning the court to order the United States Citizenship and Immigration Services (USCIS) to act on a delayed application within a reasonable time frame.
While mandamus actions are becoming popular among EB-5 applicants who experience delays, they are also surrounded by myths and misunderstandings. Let’s break down these myths.
Misconceptions About Mandamus Actions in EB-5 Cases
1. “The Guarantees of Mandamus Actions for Approval of EB-5 Petition.”
One of the most pervasive myths is that a mandamus action forces USCIS to approve the application. In reality, a mandamus action only compels the agency to make a decision—whether to approve or deny the petition—within a reasonable time.
Clarification: Filing a mandamus action does not influence the outcome of the decision; it merely expedites the process.
2. “The filing of a Mandamus action will irritate USCIS and also bring retribution.”
Many EB-5 investors are afraid of taking legal action against USCIS for fear that it would jeopardize their chances of getting approved or for fear of retribution. USCIS, however, is a federal agency governed by law, and mandamus actions are considered lawful remedies. Courts protect applicants from being penalized for seeking timely resolutions.
Clarification: Mandamus actions are a legitimate legal recourse and do not affect the fairness of USCIS adjudications.
3. “Delays Are Inevitable, and Nothing Can Be Done”
Some EB-5 investors believe that long processing times are unavoidable and that they have no choice but to wait. While delays are common due to the complex nature of the EB-5 program, prolonged inaction can be unreasonable and legally challenged.
Clarification: Applicants have the right to seek timely adjudication of their cases. Mandamus actions hold USCIS accountable for unjustifiable delays.
4. “Mandamus Actions Are Expensive and Not Worth It”
The cost of litigation often scares investors from instituting a mandamus action. Attorney fees and costs of court are incurred but usually far outweighed by a faster resolution, especially with such a high stake involving large investments and immigration goals at hand.
Clarification: Many applicants find mandamus actions a cost-effective solution compared to the risks of indefinite delays.
5. “You Must Wait Years Before Filing a Mandamus Action”
Another misconception is that applicants must wait several years before they can file a mandamus action. However, courts assess whether the delay is “unreasonable” rather than based on a specific timeframe. Factors like USCIS’s workload, the nature of the application, and the impact on the applicant are considered.
Clarification: Mandamus actions can be filed whenever a delay becomes unreasonable, even if it hasn’t been years.
6. “Mandamus Actions Are Rarely Successful”
Some believe that mandamus actions rarely result in positive outcomes. However, data and anecdotal evidence indicate that mandamus actions often result in USCIS acting, particularly in cases involving prolonged delays. Courts often rule for applicants when the delay is considered excessive.
Clarification: Mandamus actions are an effective tool in resolving processing delays when used appropriately.
How Can Quantum Global Residency Help?
At Quantum Global Residency, we specialize in guiding investors through the complexities of the EB-5 program, including cases of delayed processing. Our team of experts collaborates with seasoned immigration attorneys to explore all available remedies, including mandamus actions, ensuring a smooth path to achieving your U.S. residency goals.
Why Choose Us?
- Expertise in EB-5 Applications: Decades of experience handling complex cases.
- Tailored Solutions: Customized strategies based on your unique situation.
- Comprehensive Support: End-to-end guidance through the EB-5 process.
Final Thoughts
Misconceptions about mandamus actions in EB-5 cases often prevent investors from pursuing their right to timely adjudication. By separating fact from fiction, you can make informed decisions and ensure that unnecessary delays do not hinder your path to U.S. residency.
Quantum Global Residency is here to guide and assist you in your EB-5 journey. Reach out to us today to discuss how we can guide you through the process with confidence in the EB-5 program.