EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 | Page 95

Some attorneys try to avoid these motions at all costs. Others prefer a more intentional approach to obtain relief for the clients and move the law forward on behalf of those waiting amidst unconscionable processing times. Extensive briefing on these motions is required, usually with a response by the plaintiffs and a reply by the government. Additional motions may also be filed if they have merit. HOW WILL THE COURT REACT? Eventually, the judge will rule on the motion. There is no set timeframe for this process and different courts and different judges will move at different speeds. It is important for attorneys to research the relevant case law in the jurisdiction where the case will be filed, as some courts are more friendly to immigration mandamus cases than others. Complicating this, however, is that some courts such as the District of the District of Columbia (D.D.C.) have conflicting case law. The outcome of such a motion could simply be determined by which judge is assigned that particular case. If a judge rules in favor of the government on a Rule 12(b)(6) motion, the case is dismissed from the court, usually without prejudice to the plaintiffs filing a new action. However, this decision can be appealed to the Circuit Courts if the plaintiffs so choose. An appeal, or threat of an appeal, may provide additional negotiation leverage to settle a case. Custom, comprehensive business plans & RFE responses for EB-5 Direct & Regional Center projects Proud to be recognized as one of EB-5 Investors Magazine’s TOP 5 BUSINESS PLAN WRITERS Since 2016 "If a judge rules against the government, then the case must continue and the government must answer the complaint" If a judge rules against the government, then the case must continue and the government must answer the complaint. The parties may then continue with discovery, which may involve the taking of USCIS officials’ depositions. Prevailing against the government in a dispositive motion poses excellent opportunities for settlement. For example, in the seminal I-526 mandamus case Gutta v. Renaud, 2021 WL 533757, Case No. 20-cv-06579-DMR (N.D. Cal. Feb. 12, 2021), the judge denied the government’s motion to dismiss in February 2021. Shortly thereafter, all parties were able to reach a settlement agreement which guaranteed at least initial adjudication on the 22 plaintiffs’ cases before the EB-5 program is scheduled to sunset on June 30, 2021. MANDAMUS IS NOT A ONE SIZE FITS ALL OPTION Many EB-5 stakeholders, rightfully, consider mandamus to be a last resort. It can involve expensive legal fees. It certainly is not suitable for every case and some may be able to file in more friendly jurisdictions than others. Moreover, there are separate legal frameworks for filing a mandamus on an I-526, I-934, and I-829. There is also a much larger body of case law regarding mandamus on interim benefits such as work and travel authorization, as well as adjustment of status. Close consultation with an experienced attorney, capable of putting together a cogent strategy, is an absolute must. Matthew T. Galati is the principal of The Galati Law Firm. Matt Galati has worked in the EB-5 space since early 2011, representing investors and regional centers in both the transactional and litigation contexts. Beyond EB-5, Galati represents immigrants from all walks of life, including in family immigration, business startups, E-2 visas, and extraordinary ability cases. G a l a t i ’s l i t i g a t i o n p r a c t i c e i n c l u d e s representing clients before federal courts, in adversarial agency practice, appellate proceedings and EOIR. Most notably, Galati served as counsel (pro hac vice) in the seminal EB-4 case Shalom Pentecostal Church v. Beers, 2013 WL 12322086 (D.N.J. Sept. 16, 2013) which resulted in the elimination of two USCIS regulations. www.pinnacleplanwriting.com EB5INVESTORS.COM 95