Unreasonable EB-5 processing delay? Take the government to court
With EB-5 processing times slowing to a crawl, many frustrated applicants want answers — and adjudication. Law firm Klasko Immigration Law Partners says that constant inquiries won’t produce a faster adjudication — but a mandamus lawsuit often will, usually one to three months after filing the suit.
A mandamus lawsuit means a federal judge commands a government organization to perform a specific action, in this case, adjudicate an EB-5 petition. And it must occur within a determined EB5 processing time period. A federal judge will order adjudication to happen in such a time period if he or she believes the delay in processing is “unreasonable.”
It is worth noting that such an order to adjudicate does not have anything to do with actual approval; it is simply an order to adjudicate a petition.
While there is no specific time to actually file a mandamus lawsuit, it should be done after the end of typical EB5 processing times.
The government may argue for the mandamus case to be dismissed due to many reasons, but Klasko says in their experience the most often the outcome is adjudication rather than litigation.
Another point to note is that if a judge rules in favor of the EB-5 applicant, the judge may also order that the government pays the petitioner’s legal fees.
- New York
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