Fighting Egregious Adjudication Delays Through Mandamus with Immigration Attorney Ron Klasko – Episode 83
EB-5 adjudication delays have become unreasonably long, doubling to a 45-month wait for I-526 petitions in recent months. On this episode, Mona and Mark are joined by top immigration attorney Ron Klasko to explain how we can use the Writ of Mandamus to address outrageous processing times. Listen in for insight into who can file a case, how it compels USCIS to make a decision, and when you should and should not pursue Mandamus.
EB-5 adjudication delays are getting longer and longer. As of December 1, 2018, USCIS had 13,125 pending I-526 petitions yet to be adjudicated. This translates to approximately 73,000 potential beneficiaries in the pipeline, representing over 7 years’ worth of immigrant visas. So, what can we do to move forward in the face of unreasonably long processing times?
With 30-plus years of experience, Ron Klasko is widely recognized as one of the country’s leading immigration attorneys. He is a two-time recipient of the AILA Founders Award and an expert on the Writ of Mandamus. On this episode of EB-5 Investment Voice, Ron joins Mona and Mark to discuss the unprecedented adjudication delays and explain why the egregious wait times give EB-5 petitioners cause to file Mandamus prior to their published processing times.
Ron walks us through the fundamentals of Mandamus, defining what it means, who qualifies as plaintiffs and defendants, and when it’s appropriate to file such a case in federal court. Listen in for clarification around the cost of filing a Mandamus petition and learn how a high volume of these cases might put pressure on USCIS to get its act together and expedite processing times—rather than defend themselves in court!
Unprecedented Adjudication Delays
- At the beginning of 2019, processing times for EB-5 petitions were advertised to be about 21 months. Now, the agency has doubled those numbers, publishing processing times on I-526s at 45 months or more. This week, USCIS increased processing times on I-924s to an outrageous 85 months.
- Part of the reason for these increases is to immunize USCIS against Mandamus cases. But Ron argues that these unreasonable wait times give EB-5 petitioners cause to file before their published processing times.
The Fundamentals of Mandamus
- The Writ of Mandamus simply requires government agencies to take the action they’re required to take. The statute is typically filed in conjunction with the Administrative Procedure Act, which gives you the right to go to court if the government has “unreasonably delayed” taking action on your case.
- There is no precedent around what constitutes an unreasonable delay because it’s a fact-specific issue. Ron suggests telling the investor’s story and demonstrating how they have been hurt in some way by the delay.
The Plaintiffs & Defendants in Mandamus
- In addition to individual immigrant investors, Regional Centers can file a Writ of Mandamus as well. In fact, Regional Centers commonly sponsor and pay for litigation on behalf of their investors, listing both the investors and the Regional Center as plaintiffs in the case.
- The Director of USCIS, the Director of the Investor Unit, and the Director of DHS are typically listed as defendants in a Mandamus case. If the adjudication delay is due to a security check, the Director of the FBI is listed as a defendant as well.
The Myth That Mandamus Compels Approval
- Filing a Writ of Mandamus is not asking the court to approve your case. Rather, it asks the court to compel USCIS to make the decision quicker, be it an approval or denial.
- Ron explains that the result of a case is unchanged by Mandamus. He has filed hundreds and believes that the outcomes (including the quality of the RFEs) are no different than they would have been without Mandamus.
The Cost of Filing a Mandamus Petition
- Filing Mandamus is not an inexpensive endeavor. In fact, if your firm charges an hourly rate, it can be quite costly.
- Law firms with extensive experience in filing Mandamus may be more affordable because they know exactly what to do. Ron charges a flat fee for the filing of a complaint and an additional flat fee in rare cases when the government presents a motion to dismiss.
The Likelihood of a Class Action Suit
- Ron is not currently aware of any litigation with nationwide impact against USCIS. However, if enough Mandamus cases are filed in federal court, the immigration service may face pressure from federal judges to get its act together.
- Something similar happened several years ago when there was a delay in the adjustment of status and naturalization applications. Hundreds of Mandamus cases were filed around the same time, and it made more sense for the agency to fix the issue rather than defend themselves in court.
The Right and Wrong Time to File Mandamus
- Chinese cases caught in quota backlog are not idea for Mandamus. If you’re in a 10-year line, it is less important that your petition be approved within 3 years.
- On the other hand, there are cases when an investor caught in backlog needs to know whether or not they’re approved. One example would be a Chinese investor wanting to file another I-526 after the new regulations go into effect. They will need to know whether their original application has been approved in order to retain their priority date, per the new rules.
- It is possible to file Mandamus on a case pending at the consulate despite the doctrine of consular nonreviewability. Remember, Mandamus is not seeking to have the court review the decision. It’s asking the court to force the consulate to make a decision.
- Only file Mandamus once you’ve tried all other available remedies. Make the prerequisite phone calls and email inquiries to the Ombudsman and Congresspersons before taking the case to federal court.