【ARCFE Blog】 SHOULD INVESTORS FILE A WRIT OF MANDAMUS TO FORCE USCIS TO ADJUDICATE AN EB-5 PETITION?

12/03/2021 by Grace Feng

EB-5 investors may file a writ of mandamus against the USCIS due to the long approval waiting time for their EB-5 petition. However, before filing the lawsuit, investors should consider the risks of writ of mandamus in forcing the USCIS to make a decision.

What is the writ of mandamus and what are the risks?

In the EB-5 industry, writ of mandamus is a federal lawsuit to force the USCIS to process the EB-5 petition. Winning the lawsuit does not mean that USCIS is forced to approve the petition, but rather to force them to give a yes or no answer to the petition approval. 

Investors should be careful, normally if your EB-5 petition is missing information or documents, USCIS will send you a RFE to request for more evidence; however, in case that you use writ of mandamus to force them to give an answer, they will not send your that RFE notice and will just directly reject your petition.

Due to this risk, many EB-5 experts advise that using writ of mandamus should only be the last choice. Investors should only use it if they are completely sure that all the required information is accurate and has been submitted to the USCIS. Besides this risk, filing the lawsuit against USCIS might be costly and there is no guarantee of success.

Investors should consult an EB-5 expert and an immigration lawyer prior to making a decision to sue. Get in touch with ARCFE for a consultation today.