the adjudication of an application. These include
escalation requests, use of the USCIS’ Ombudsman’s
office as a public advocate and contacting the U.S.
federal government congressmen and senators to
contact USCIS on your behalf.
While many constituents believe congressional
inquiries are effective, anecdotal evidence indicates
that sometimes government agencies can be inclined
to justify issues and problems with a case that explain
the delay, rather than expediting
adjudications. It is important to
keep track of all communications
with and from USCIS and the USCIS
Ombudsman’s office. These steps
will also be used to demonstrate
to the federal court judge that the
investor attempted to resolve the
matter administratively.
However, if the form I-526 remains
unadjudicated after taking these
steps, filing a complaint for a writ of mandamus in
U.S. District Court is a final step to push USCIS to
act. As noted above, a writ of mandamus does not
ask for an approval of an EB-5 application; it merely
asks for an adjudication of an unreasonably delayed
petition. Therefore, it is possible that the filing of a
writ of mandamus may end up expediting a negative
decision if there are underlying problems involved.
Seeking experienced legal counsel is strongly
recommended in this scenario.
On the other hand, there may be significant reasons to
not file a writ of mandamus. For example, due to the
EB-5 visa backlog for Chinese nationals, allowing USCIS
to take time to adjudicate a form I-526 may actually
assist an investor whose child is less than 21 years
old but could eventually “age out,”
notwithstanding the provisions
of the Child Status Protection Act
(CSPA).
"...A writ of
mandamus does
not ask for an
approval of an
EB-5 application."
95
EB5 INVESTORS M AGAZINE
This is because the CSPA allows
th e d e r i va ti ve b e n ef ic ia r y to
deduct the time the form I-526
was pending form her or his actual
numerical age. With the increased
visa waiting time for Chinese -
mainland nationals, having the
extra months for a form I-526 adjudication could be
critical for child derivative beneficiaries. Additionally, it
may not be wise to file a writ of mandamus if there are
issues regarding the investor’s EB-5 project, such as a
lack of progress by the job-creating entity, problems in
the investor’s immigration history or source of funds,