Should I file a Mandamus to Get My RC Petition Moving: In a Nut-Shell

The EB-5 program was created by the Immigration and Nationality Act, and is still active and valid, thus the continued adjudication of direct investment cases. The Regional Center (RC) part of the program was established later, in what is really an appropriations act, whereby the US Congress decided to fund the so-called Pilot Immigration Program, with its visa set asides, and permission for indirect job counting.  That is Public Law 102-395 (October 6, 1992), Section 610, found at 106 Stat. 1874. 

What expired on June 30, 2021 was the only appropriations part of the EB-5 program that funds the operation and adjudication of the RC cases. So USCIS’s argument is basically that it has no money to administer the RC program. They would say that, without appropriations to pay for something, the government can’t do it. They are correct, generally.

Industry stakeholders, including the trade group lobbyists at IIUSA, have a long-term and a short-term goal. In the short-term, they would like to have a bill passed that would “grandfather” anyone who invested at the time the RC program was funded and authorized. That way, previously filed cases could proceed. Then, as a long-term goal, they are trying to have the appropriations for the program re-authorized. For those unfamiliar with the term, “grandfathering” something means that one would get the benefit now for something done previously. 

Some lawyers believe that a bill grandfathering the existing 99,000 investors that are in RC limbo, while it would be nice, is unnecessary to obtain relief for the existing investors, and that it could be done by obtaining a writ of mandamus against the government to compel the government to act on previously filed RC cases. 

The argument in favor of mandamus is that the EB-5 program was run as a fee-for-service operation, and that the fees were paid, and now USCIS owes the service. The claims that would be articulated in a Complaint for Writ of Mandamus would be based in “equity,” which are principles of fairness. There are defenses that USCIS could raise, certainly, but there are counters to those defenses, including the argument that USCIS, by not setting aside a portion of the collected filing fees for future fiscal years when the adjudication was likely to take place, has itself committed an act of misappropriation. USCIS would also argue that equitable claims are not binding against a government agency that acts as sovereign. The fee-for-service model is a counter to that defense. Other complications include the visa set asides in the 1992 Public Law.

The next question is, if it might be done, why hasn’t someone tried? 

Practicality. Even if the mandamus litigation processed quickly through the system, it would likely be a year before an order was issued compelling USCIS to do its job. By then, the program could be back up and running. Why waste the time and money?

Stakeholder fear. The big firms and Regional Centers are banking on the RC program coming back to life someday. They may be thinking that a visible lawsuit would make certain members of Congress antagonistic toward reauthorization, or that this kind of aggressive move will hurt them with regard to future cases. Lawyers are risk-averse, and big firm lawyers especially don’t like to lose. Generally, the bigger the firm, the more loyalty a lawyer has to institutions than to individual clients. Discretion may be good for the big firm lawyer, but it does nothing to help you if you are currently in RC limbo.

Lack of imagination. A mandamus action like this may have been attempted with regard to some government program in the past, but it’s unlikely that even the sophisticated and mature attorney would have that example in the forefront of their mind. It would be a complicated, high-level, and intellectual pursuit, and it’s uncertain how hard, or even if USCIS would fight back. 

USCIS’s Investor Program Office has weak leadership, and Congress really isn’t interested in the EB-5 program right now. In my opinion. If somebody doesn’t push these cases, nothing will happen.. A group of investors could fund the litigation at a reduced per capita cost. The mandamus could be brought as a multi-plaintiff lawsuit, or perhaps as a class action. Regardless, until Congress acts, which doesn’t appear likely, you can expect the current limbo to continue until somebody shakes up the industry with this kind of big-time mandamus.