It's Mandamus Time! Maybe.

On February 12, 2021, the United States District Court for the Northern District of California rejected a Motion to Dismiss filed by USCIS in a case seeking a Writ of Mandamus related to I-526 processing. The interesting thing about the case - Gutta v. Renaud, N0. 20-cv-06579 (DMR) - is that most of the I-526’s in question were relatively new compared to USCIS’s posted processing times. 

This case gives hope to applicants at other stages of EB5 processing, including I-485’s, which at this stage have a posted processing time of up to 31.5 months. If you file a Complaint for Mandamus early in USCIS’s posted processing window, it won’t be summarily dismissed as premature. 

Facts of the case.

The facts of the Gutta case are simple. The I-526 investors got tired of waiting for the Investor Program Office (IPO) to adjudicate their I-526’s, so they filed a Complaint seeking a Writ of Mandamus. USCIS responded with a Motion to Dismiss, in which they said the delays were not out of the ordinary. The plaintiff investors responded to the Motion by saying that, just because the delays were not out of the ordinary, does not mean the delays are acceptable, especially if USCIS deliberately created the delays. The Court agreed, saying that, as long as it is possible that USCIS actually did create the delays, the case should not be dismissed. 

You can read the case here: https://www.leagle.com/decision/infdco20210216c34

What is in it for you?

In a typical Mandamus case, no investor wants the case to go any further than the Complaint. The hope is that, once USCIS sees the Mandamus Complaint, it will move the case along and adjudicate the I-526, I-485, or I-829, and send the investor on his or her way to lawful permanent residency. And that’s exactly what happens - usually.

There are some lawyers and forces in the EB5 marketplace that want to change the world - or at least change the EB5 industry. They would be perfectly happy spending the next year or two  litigating the issue of whether USCIS actually does deliberately delay adjudications. But who pays for that? In Gutta, there are 22 plaintiff investors to share the cost. The lawyer who filed the case is well-known, competent, and will rightfully use the case to burnish his credentials in the industry. He may even be willing to work the case for less than his usual fee.

In my opinion, the aggregation of 22 investors in the Gutta case means that it is less likely that USCIS will just adjudicate their cases to get rid of them all. The 22 investors may have signed on to change the EB5 industry without realizing it. 

I think a single plaintiff investor who files a Complaint for Mandamus has a much greater chance of getting his/her petition or application approved quickly, under the radar. 

On the other hand, if an investor files a Complaint for a Writ of Mandamus alone, and if USCIS fights back, what single investor will be financially willing to fight to change the EB5 industry? 

The point is, if you are thinking of filing for a Mandamus, there is no clear answer, and the typical arguments against filing them while early in USCIS’s processing window may not apply. 

However, while litigation sometimes has a very expensive life of its own, if what you really want is a fast quiet adjudication, it might be better to file your own Mandamus Complaint. If you bite off more than you can chew, you can withdraw the Complaint later or find a bunch of other investors that want to change to world and gang up with them. 

Most importantly, a Mandamus action is about when and how your petition or application is decided, not about what decision will be rendered. 

For more information or counseling on the intricacies of Federal Court Litigation, feel free to contact me. I am a member in good standing and admitted to the Bar in New Jersey and New York. In my former life as a business litigation attorney, I appeared in Federal Courts all over the United States.