EB-5 investors and projects continue to contend with lengthy delays in the processing of I-526 Petitions. Average processing times have steadily increased over the past few years, in stark contrast to USCIS new IPO statements that it would reverse the trend and achieve I-526 processing times of six months.
As of November 30, 2015, the average processing time for I-526s was 15.5 months. In addition, as U.S. immigration lawyers with a robust EB-5 practice can attest, many I-526s are not adjudicated within this time frame, especially when the relevant project does not have a previous I-526 approval. It is, after all, an “average” posted processing time.
For cases that appear to be entering processing limbo, what are some of the options available to prompt USCIS to act?
0 Days Beyond Posted Processing Time – Remain Patient, Refrain from Contacting USCIS
It is generally not productive to contact USCIS about an I-526 Petition before it has reached or exceeded the posted processing time. We respect USCIS’s request not to do so before that time. Hopefully the I-526 will be approved before the outer limit of the processing time frame is reached; but for clients inquiring about perceived delays, remind them of the current processing time and advise patience.
1+ Days Beyond Posted Processing Time – Email USCIS (USCIS.firstname.lastname@example.org)
If a client’s I-526 is beyond the average processing time and has still not been adjudicated, email USCIS regarding the delay. This provides written notice to USCIS of delay beyond the posted processing time and alerts it to potential administrative errors in the routing and placement of the petition package. Several years ago, such an email would usually result in some action within a short period of time. These days, multiple follow ups are commonly needed. We recommend following up again every 30 days after the initial email.
Standard responses from USCIS to email inquiries include language such as:
“This email is to notify you that receipt WAC1490XXXXXX is currently assigned to a USCIS Officer. We appreciate your patience as we work on your case.
While our processing times currently are beyond what we would like, USCIS has taken steps to increase capacity and is striving to ensure our commitment to our customers is being met.
As a reminder, you may check the status of your pending Form I-526 at any time through My Case Status.”
And to additional follow ups:
“There is no additional update to provide at this time. Please know that we are avidly working to reduce processing times.
Please click on “IPO Processing Dates” on the USCIS Processing Time Information page for the current Form I-526 processing time.
As a reminder, you may check the status of your pending Form I-526 at any time through My Case Status. ”
We have noticed that USCIS has been more creative in its boilerplate responses although the message remains the same: “just wait”.
60+ Days Beyond Posted Processing Time – Contact DHS Ombudsman’s Office (www.dhs.gov/case-assistance)
Submit Form DHS-7001 through the DHS “Ombudsman Case Assistance Online”. As its webpage states: “The Ombudsman provides an impartial and independent perspective to USCIS in an attempt to resolve problems with pending cases.” While the Ombudsman’s Office cannot compel USCIS to act, it can provide additional assistance in prodding USCIS to adjudicate a case.
If making a submission from outside the United States, the DHS online system may be inaccessible, but the applicable form (with attachments) can be sent via email after advising the Ombudsman’s Office of access issues. Once a submission is accepted, an email acknowledgement will be received assigning an Ombudsman case number and, in some cases, requesting additional information. It may take 90 days or more for action to resolve inquiries submitted to the Ombudsman, and recent increases in the number of I-526 related requests has made this option less effective.
Unreasonable Delay Beyond Posted Processing Time – Petition for Writ of Mandamus
For an I-526 significantly beyond posted processing times, the investor and project can consider petitioning for a writ of mandamus in federal court; this may be particularly called for in instances where multiple investors are similarly situated in terms of unreasonable delay. A writ of mandamus is an order from a court to a government agency requiring that the relevant official properly fulfill official duties or correct an abuse of discretion.
When filing the writ petition, it will be important to include evidence of past attempts to resolve issues directly with DHS/USCIS. USCIS will have 60 days to respond to the writ petition. If the court sides with the investor/project, it will order USCIS to fulfill its duties to adjudicate the I-526s in a timely manner (usually within 90 days of the court order). Filing the writ petition may, alternatively, result in USCIS agreeing to issue a decision on the I-526 in order to settle the court proceeding.
In either case, the process may be prolonged as government attorneys may request extensions to respond, especially as more and more investors, regional centers and projects turn to this remedy. Nevertheless, when other avenues have been exhausted and proven ineffective, this seems the most effective way to force action by USCIS. In some cases, USCIS action may ultimately be adverse to the investor, including the issuing of a denial, a Request for Evidence, or a Notice of Intent to Deny. At least such action may come sooner rather than later.
David Enterline has lived and worked in greater China over 20 years and manages his EB-5 practice with WTW Taipei Commercial Law Firm.
Ivan Torres, J.D., LL.M. (Chinese Law), has over a decade of legal experience mostly in greater China. He practices with WTW Taipei Commercial Law Firm in its EB-5 Department
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