Currently, the average processing time for the I-526 by U.S. Citizenship and Immigration Services (USCIS) is approximately 17 months. However, USCIS recently announced that it is hiring more staff to work on reducing the backlog of EB-5 applications. Nevertheless, prolonged delays have led to increasing frustration among immigrant investors.
The following suggestions are provided to assist immigrant investors in accelerating the first step of the EB-5 process.
1. Use the receipt number on your I-797 Notice of Action to check the status of your I-526 online.
2. If your I-526 has been pending for longer than the average processing time published by USCIS, you may send an email to ImmigrantInvestorProgram@uscis.dhs.gov to inquire. USCIS typically responds within 14 calendar days; sometimes this is a template response, but other times it may state, "the file is currently with an officer," which implies that a decision will likely be made within about a month.
3. USCIS has established a follow-up procedure that requires you to enter "ESCALATE" (in all caps) in the subject line of the email. USCIS will have at least 3 weeks to review and respond. However, escalation requests often receive similar template responses as well. Therefore, it may be more helpful to use escalation requests in cases of extreme urgency.
4. Contact the USCIS Ombudsman, who can act as a public advocate to help resolve issues related to USCIS operations.
5. Contact federal Congressional Representatives or Senators for assistance. All USCIS offices have a Congressional Inquiry unit, and USCIS typically responds to congressional inquiries faster than to individual inquiries. Although many constituents believe congressional inquiries are more efficient, anecdotal evidence suggests that sometimes government agencies are inclined to explain the reasons for delay rather than expedite adjudication. In short, congressional inquiries should be used with caution. You can find the representative for your district through this link: http://congressional-district.insidegov.com/
It is strongly recommended to follow the steps above before filing a lawsuit against USCIS. It is also important to document all communications with USCIS and the USCIS Ombudsman. However, if the I-526 remains unadjudicated after taking these measures, filing a lawsuit in a U.S. District Court is the final step to compel USCIS to expedite a decision.
6. A writ of mandamus is a legitimate legal action that can force U.S. government officials to perform non-discretionary duties. A writ of mandamus does not require an approval; it only requires an adjudication for applications experiencing unreasonable delays. Therefore, if the investor has potential issues, filing a writ of mandamus could potentially accelerate a negative outcome. Consequently, it is strongly recommended to seek assistance from experienced legal counsel when using a writ of mandamus.
7. Before stating that you have "exhausted administrative remedies" in a mandamus petition, ensure that you have taken all the previously mentioned steps. Additionally, you may submit multiple online inquiries or escalation requests to USCIS before taking final measures. It is only recommended to retain professional counsel to file a writ of mandamus in the most severe cases.
8. Resolving issues through a writ of mandamus is primarily due to USCIS having "unreasonably delayed" the adjudication of an EB-5 application, requiring an explanation for the delay. The latest published USCIS processing times help determine whether the delay of an EB-5 application justifies a motion for a writ of mandamus. If the EB-5 application is within the average processing time of USCIS, a writ of mandamus should not be filed.
9. Section 555(b) of the Administrative Procedure Act ("APA"), 5 U.S.C. § 555(b), stipulates the independent duty of USCIS to "conclude a matter" "within a reasonable time" "due regard for the convenience and necessity of the parties or their representatives." If this duty is violated, immigrant investors may submit an independent claim based on the APA within their writ of mandamus petition.
10. There are some situations where you should not file a writ of mandamus. For example, due to the backlog of EB-5 visas for investors from mainland China, this allows USCIS time to assist investors whose children are under 21 but at risk of "aging out" in the adjudication of Form I-526.