EB-5 investors facing excessive processing delay have the option to sue USCIS. They can bring claims under the Administrative Procedures Act, which permits federal courts to compel agency action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1), and/or under 28 U.S.C. § 1361, which provides for mandamus: an order to compel the agency to do its duty.
But what is constitutes unreasonable delay? What is USCIS’s duty with respect to processing petitions? Is there any hope in suing USCIS over delay for petitions that have been waiting for less than the “normal processing” time defined on the USCIS Check Case Processing Times Page? When challenged in court, can USCIS actually support a claim that 3-6-year processing times are normal?
- New York
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