of the federal Administrative Procedures Act which requires
agencies to make decisions within a reasonable time, or under
the Mandamus Act ( 28 U.S.C. 1361), which vests federal district
courts with jurisdiction “to compel an officer or employee of the
United States or any agency thereof to perform a duty owed to
In the EB-5 context, a mandamus lawsuit seeks to have a
judge to order USCIS / the IPO to decide a particular petition or
application. Note that the suit does not contemplate the actual
merits of the filing. That is, the mandamus court will be asked
to decide whether an investor’s source of funds was lawful
or whether the project indeed qualifies for exemplar status.
Accordingly, the issue before the judge is whether or not she/
he should force USCIS’ hand. A successful mandamus suit
will simply bring about the adjudication that has been delayed.
Cases with merit should lead to approvals. Cases without merit
should lead to denials. The filing of a mandamus, at least on its
fact, should have no effect.
WHAT ARE THE STEPS AND HOW
LONG DOES A MANDAMUS LAWSUIT
These processing times make little sense and look even worse
in context. The agency’s production in fiscal year 2019 was
terribly disappointing, with just a fraction of adjudications of
the year before. Combining these with the high fees, it is hardly
surprising then that EB-5 stakeholders
are turning to the courts to try to force
USCIS to finally act. USCIS production
of late has lagged compared to
historical trends. It is hardly surprising
then that mandamus actions are
growing quite popular.
Like most lawsuits, a mandamus action begins with the filing of
a complaint whereby the plaintiff(s) allege the operative facts
surrounding the delay, put forth their cause(s) of action, and
state their claims that the case filed in the proper court against
the proper defendants. Different lawyers will take different
approaches to their complaints including whether or not to sue
specific DHS/USCIS defendants such as Secretary Mayorkas,
or the interim heads of USCIS and the IPO. Some lawyers may
have favorite jurisdictions of where to file, although those
choices may be limited based on the plaintiffs’ residences.
"A successful mandamus
suit will simply bring
about the adjudication
that has been delayed"
Let ’s explore, in general terms ,
what a mandamus lawsuit is and
what litigants can generally expect.
Naturally, however, each affected EB-5
stakeholder and each lawsuit will have
different outcomes, experiences, and
circumstances. Nothing substitutes an attorney consultation,
but here you will find some general concepts and government
defense strategies from the last few years.
WHAT IS A MANDAMUS LAWSUIT?
Mandamus is a Latin word meaning “we command.” As
explained by Law.com, it is essentially a writ whereby a court
“orders a public agency or governmental body to perform an
act required by law when it has neglected or refused to do
so.” Jurisdictionally, these kinds of lawsuits can take one of
two (or both) forms. Suits can be lodged alleging a violation
Once a complaint is accepted by
a civil clerk’s office, the plaintiff’s
attorney must then effectuate service
of process. Although this is often
dramatized in movies against private
parties with process servers surprising
defendants from behind bushes or
using deception to lure in an unwitting
litigant, against the government service
is usually effectuated by U.S. mail.
Unlike suits against private parties, the
U.S. government normally has 60 days
to respond to the complaint, unless the
plaintiffs are seeking emergency relief.
HOW WILL THE GOVERNMENT
The 60 days following service may prove to be the most critical
for the plaintiffs in a mandamus action. During this time, the
complaint is reviewed by the government’s attorneys, who
normally work in the local U.S. Department of Justice Attorney’s
Office having jurisdiction over the suit. That individual must
then make a formal appearance in the case against the