I-526 EB-5 Approval Through The Use Of A Mandamus Lawsuit
Full Video Transcript
We had to sue the Department of Homeland Security, the California Service Center, and USCIS, the United States Citizenship and Immigration Services. Why? Because seven families have been just waiting far too long. What do you do if the government just doesn’t adjudicate your case? This was a mandamus lawsuit. Some of them have been waiting for over 10 months, and some of their friends have been waiting for over 20 months. In failing to adjudicate their case, they cannot travel, they cannot work, and their life is at a standstill. They practically might as well be in prison. It’s a grave violation of their human rights.
We officially filed a lawsuit on February 2nd, and by February 10th, the first approval already came in. By March 29th, we officially withdrew because all the cases got approved. Let’s get to it.
Now, before diving into the case, I just want to say we do not encourage mandamus actions. We really want to treat it as a last resort. I know many firms and many dear colleagues disagree with us; they want to directly jump into the federal lawsuit because they know that there’s no other way. In this case, there really is no other way, so we had to do it as well, jump on the bandwagon, sue the government, and get that approval.
But typically, we do a motion to reopen; we try to expedite; we have all these other videos to talk about how we do a motion to reopen and how we do expedited service. In this case, the seven families, most of them don’t know each other, some were in North Carolina or Chicago, some were in Cerritos, California, right next to us, Maryland, Pennsylvania. We brought the seven families together because they shared an underlying fact pattern: they were all EB-5 investors waiting for their green card to adjudicate, but it’s taking forever.
First, they need to get their EAD, and their employment authorization card; they need their travel permit, but it’s just taking forever. It used to only take three months to four months. Some of them have been waiting over 10 months, and some of their friends have been waiting for 20 months or so. They couldn’t bear the idea of not being able to work for that long. They couldn’t bear the idea of not being able to travel, especially during a pandemic where some of them needed to leave to care for their elderly.
So, because they couldn’t wait anymore after a lot of discussion, we put the case together, we filed it, and the case was approved. There’s a lot of reasons why we brought seven families together. One reason is that it saves costs, so everybody shares in legal fees. But another reason is because it adds to the oomph of what we’re trying to file. So, in the facts and procedural history of this case, where we laid out the history and the story of the seven applicants, it’s so powerful. We talked about one person needing to financially support his wife, needing to drive to work; he couldn’t get a driver’s license.
Another person has a 90-year-old mother living in a pandemic-stricken country and is dying and needs to travel. Another person just got a new job offer that’s really great, and their job and their livelihood in their career is dependent on the adjudication of their status. Combined together, it paints a picture about how inadequate the adjudication process is and the adverse consequences it’s having on a multitude of people and their storylines.
So all of that lays down the groundwork for why we filed, why the government needs to adjudicate now. It gets to the argument, right? Because you can’t just say we’ve been waiting too long; please expedite us. The government isn’t just going to grant you because you’re impatient. So why should the government approve your case? And this is where a really good fact-finding team can come up with really good arguments.
Normal processing time: four months. Historically, over the past two to three years, we went through every single quarter, all the government memos that went out talking about how fast they adjudicate these cases. But we found, and this is like the gold, we found in one of the memos, it only takes 12 minutes. Yet for our clients, it’s taking close to 10 months to adjudicate some of these cases. So that is extremely unreasonable.
We went back to the government’s own statistics in 2017, 2018, 2019, 2020. We showed the government, “This is how fast you used to do it in every single quarter of every single year, and this is what we were expecting, and this is what they relied on.” However, we understand COVID, but it is still unreasonable because it’s way too long.
Oh, and on paragraph 78, while USCIS attributes case backlog to the ASC closures, there is nothing in the regulations that require biometrics to approve the 765 or I-131. All of this is to assume that the government is going to rebut our argument, saying, “No, no, no, no, no, it’s taking a long time on us, but it’s not our fault; it’s the ASC and ASC the biometric centers; they are closed down because of COVID.” So it’s nobody’s fault. So we really just preemptively argued, “Sorry, you cannot use that excuse.”
This was a mandamus lawsuit that was filed in February. Within eight days, the first applicant already got their approval, and the work permit and the advanced parole were already being mailed to them. And within a month, one by one, their cases just got approved, and then we got to close the case.
There’s so much about mandamus that I could talk about, but we just want to lay it out here just to let you know if you’ve tried everything you could possibly do to expedite your case, it is unreasonable, and it’s having an adverse effect. If you run out of options, right, mandamus is a method of checks and balances for the courts to make sure the government is adequately adjudicating your case. If you have any questions, feel free to reach out. We’re going to make other videos talking about mandamus and the behind-the-scenes stuff, so stay tuned. Take care. Bye.
This success story is for a group of I-526 EB-5 approvals through the use of a mandamus lawsuit in 2023. In what is normally a 3 to 4 month adjudication process, we had clients waiting as long as 20 months for their case to be reviewed, 5 times the average processing time. In failing to adjudicate their case, these clients were unable to travel or work. Their lives were effectively at a standstill while waiting for their EB-5 investor visa case adjudication. Waiting so long for their cases to be reviewed and essentially putting their lives on hold for sometimes longer than a year was a grave violation of their human rights.
In February 2023 we filed a mandamus lawsuit on behalf of our I-526 EB-5 green card clients and 8 days later our first client had their I-526 EB-5 case approval. Within one month all clients had their I-526 EB-5 case approvals.
For this EB-5 immigration case, we had clients from across the US, living anywhere from Maryland to California to Chicago, and elsewhere, that had been waiting inordinate amounts of time to get their cases adjudicated. We had clients that had been waiting 10 months or even 20 months to get their cases reviewed.
While waiting for their adjudications our clients’ lives were essentially on hold. One client was left unable to drive because they couldn’t get their license without their case processing. Another client had been waiting to travel to see an ailing relative and provide care for them. This wasn’t possible without their EB-5 case review. Other clients were unable to work without their employment authorization card.
Waiting for their EB-5 cases to be reviewed and approved left our clients unable to support their families and essentially put their lives on hold. As a last resort option to help these clients gain their I-526 EB-5 green cards, we filed a mandamus lawsuit. We had to sue the Department of Homeland Security, the California Service Center, and USCIS, the United States Citizenship and Immigration Services.
A mandamus lawsuit is a special type of lawsuit brought against the government to help nudge the government into action, to do what it should legally be doing. In this case, the action that needed to happen was reviewing and adjudicating a group of clients’ EB-5 green card applications.
CHALLENGES IN THIS I-526 EB-5 CASE
For this case to be successful, we had to do more than simply say this was an inconvenience for our clients to wait so long for their cases to be adjudicated. We had to prove that the government wasn’t taking the action it should have been.
KEYS TO SUCCESS
Great Fact Finding
Part of the success of this I-526 EB-5 approval through use of a mandamus lawsuit can be attributed to our great fact finding team. Normal processing time for an I-526 EB-5 case is four months. We went through every single quarter, all the government memos that went out talking about how fast they adjudicate these cases. What we found in one of the memos is that it only takes 12 minutes. 12 minutes to adjudicate a case. Yet, for our clients, it had been close to 10 months or longer to adjudicate some of these cases. So that was extremely unreasonable.
Our team also went back to the government’s own statistics in 2017, 2018, 2019, and 2020. We showed the government how fast they used to adjudicate cases in every single quarter of every single year and let them know this is what we were expecting. These are the time frame’s our clients relied on. At the same time we were reasonable and communicated that we understand COVID caused delays in processing, but, in the end, it is still unreasonable because it’s much, much longer than it should be to adjudicate these I-526 EB-5 cases.
Proactively Rebutting Potential Arguments
In this I-526 EB-5 approval through the use of a mandamus lawsuit, we knew the government might argue that it wasn’t their fault it had been taking so long because they were waiting on other agencies to fulfill their obligations. They might say that the case backlog was due to the ASC closures. However, we provided evidence that there is nothing in the regulations that require biometrics to approve these cases; therefore, that argument would not be valid. We proactively highlighted this to avoid this potential argument from the government that would prevent this case from being successful or prolong the process even more.
One Lawsuit for Multiple Clients
You might also wonder why we bring together this group of clients from such a diverse range of places. Because they were all experiencing the same prolonged waiting period, bringing them together in one lawsuit helped to provide extra emphasis to this case. It provided a stronger argument.
For our clients, combining this effort into a single lawsuit also helped to reduce the cost for them. A win-win for everyone involved.
I-526 EB-5 APPROVAL THROUGH THE USE OF A MANDAMUS LAWSUIT CASE RESULT
After filing the mandamus lawsuit each of our clients saw their cases approved. The first case was approved just 8 days after filing. All clients’ I-526 EB-5 cases were approved within the month. As a result we were able to close the case and our clients were able to continue with their lives – traveling, working, and supporting their families.
EB-5 LAWYER COMMENTS ON THE CASE
Although we have colleagues who disagree, we don’t recommend a mandamus lawsuit as a first option. At Tsang & Associates we prefer to use other options such as motion to reopen or expediting service before we jump to a mandamus lawsuit. This option is really a last resort when all other options have been exhausted. In this particular case, the mandamus lawsuit was a last resort to approve the case and help our clients get their cases approved.
If you need assistance with an I-526 EB-5 approval, you can learn more about our I-526 EB-5 legal services or contact us with any questions. Learn more about the EB-5 immigrant investor visa program here.
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