EB5 Investors Magazine (English Edition) Volume 5, Issue 1 - Page 96

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,