EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 - Page 94

During this time, the Assistant United States Attorney (AUSAs) will consult with its client, USCIS, to determine the defendants’ strategy in the suit. Many times – but certainly not every time or perhaps not even most times – USCIS will decide to adjudicate the case rather than pursue a vigorous defense in court. It may therefore be possible to negotiate timeframes for adjudication without motions practice, discovery, or trial if both parties are in agreement that USCIS can adjudicate the case. Indeed, while adversarial, litigation against the government need not necessarily be hostile. That being said, mandamus is not premium processing. Plaintiffs are not guaranteed adjudications within certain timeframes by simply filing suit. AUSAs need not be aligned with plaintiffs and will often fully defend mandamus actions. While AUSAs could theoretically answer the allegations of a complaint on their merits, such answers are (at least now) extremely rare in immigration mandamus actions. What is far more common is for the AUSA to file a motion to get the case out of the court. These motions can be procedural (for example, a motion to transfer a case to a different venue or to sever the plaintiffs) or dispositive. "Indeed, while adversarial, litigation against the government need not necessarily be hostile" Most clients are concerned about retaliation. Specifically, they raise c o n c e r n s t h a t t h e f i l i n g of t h e complaint will provoke a summary denial of the petition, or perhaps revocation of an underlying visa such as an H-1B. While such retaliation may theoretically be possible, it is unlikely to occur and virtually no attorneys have experienced it despite representing over hundreds of clients in EB-5 related mandamus. Spuriously denying a case could provoke sanctions against government officials, including recoupment of attorney’s fees and costs. 94 EB5 INVESTORS MAGAZINE Dispositive motions usually take the form of being filed under Federal Rule 12(b)(6), which seeks dismissal for an alleged failure of the complaint to state a claim on which relief can be granted. In other words, the government argues that even if the court were to assume every fact alleged in the complaint is 100% correct, and all the inferences from those facts can be drawn in favor of the plaintiffs, the court still cannot order the petitions to be adjudicated because it is legally prohibited from doing so.