decision by USCIS before the AUSA files an Answer or Motion to Dismiss .
If there is a decision by USCIS , one should immediately obtain documentation from USCIS confirming the adjudication .
THE RESULT FROM A MANDAMUS FOR THE EB-5 INVESTOR
The reply to the Mandamus Action by the USCIS may not be an approval , but the reply may be in the form of an RFE ( Request for Further Evidence ) or a NOID ( Notice of Intent to Deny ). The RFE or NOID may be comprised of questions or requests for information and clarification as to the I-526 / I-526E petition , covering either the authentication of the lawful source of investment funds by the investor , and / or the EB-5 project documentation ( e . g ., employment creation ) or a combination of both .
In regard to an RFE on a I-956F Form , the request from USCIS will be in regard to the EB-5 Regional Center Project documentation .
In regard to the I-829 petition , the RFE or NOID may request information , clarification , documentation in regard to the sustainment of the EB-5 investor investment in the project , and the required job creation criteria of 10 employees .
In preparing the response , one should immediately contact the EB-5 project to check if they have received any prior approvals for their EB-5 investors . If there have been prior approvals in regard to the project documentation , then one should argue to the USCIS , that deference should be given to these prior approvals .
" Based upon recent experiences , the USCIS is claiming that 5 years to adjudicate an I-526 / I-526E petition is reasonable . However , Mandamus actions continue to be ."
That is , the EB-5 investor should not have their I-526 / I-526E or I-829 petition , as to project documentation re-adjudicated .
Also , in the response to the RFE or NOID , remind USCIS that the test for adjudication is a preponderance of evidence standard which requires a 51 % or more likelihood for approval and this also applies to the request to source of funds authentication .
Based upon recent experiences , the USCIS is claiming that
5 years to adjudicate an I-526 / I-526E petition is reasonable . However , Mandamus actions continue to be filed after two years have passed without USCIS adjudication on I-526 / I-526E petitions .
In regard to I-829 adjudication delays by USCIS , Mandamus actions continue to often be successful when filed after waiting two years for adjudication .
The USCIS is in fact making decisions of either approval or RFEs / or NOIDs . In addition , the USCIS are usually favorably making prompt decisions on the responses to the RFEs or NOIDs .
Under the above circumstances , USCIS requests ( such as RFEs ) should still be welcomed as part of the process that an adjudication may be eminent .
The last word is USCIS should give deference to I-956F , I-526 , and I-829 Approvals in respect to project documentation , to allow a faster adjudication .
Edward Beshara , managing attorney
of BesharaPA Global Migration Law Firm in Orlando , Florida , has been committed
to offering approvable solutions to ensure a successful approach in obtaining U . S . business and family visas for the past 40 years . The firm specializes in E-2 investment visa and L-1 intra company visas . Beshara has been practicing EB-5 for the past 31 years and advises investors in obtaining residency by investment . He has served as a leading immigration attorney advising U . S . businesses to become compliant EB-5 projects and accept foreign national investors . Beshara is an active member of AILA , IIUSA , and IMC , and a former adjunct professor of business immigration law at University of Florida Law School .
84 EB5 INVESTORS MAGAZINE