Investors seeking U.S. permanent residency via the EB-5 process face increasingly extended delays due to extensive processing times for their immigrant petitions (Form I-526) by U.S. Citizenship & Immigration Services (USCIS).  USCIS has alleged that it is within its discretion to further prolong Form I-526 processing times, which can currently be up to 68.5 months. 

A group of 22 EB-5 investors recently obtained an important victory from a U.S. federal court in their challenge to USCIS’ excessive adjudication times. The plaintiffs had filed their respective Forms I-526 between October 2017 and November 2019, and they contended that although I-526 adjudication times were within USCIS’ published adjudication timeframes, these delays violated the Administrative Procedure Act.     

The lawsuit, Gutta v. Renaud, establishes precedent for EB-5 mandamus cases and represents another victory in EB-5 investors’ efforts against USCIS’ prolonged I-529 adjudication times. In the decision, the judge denied USCIS’ Motion to Dismiss and ruled in favor of the EB-5 investors seeking government relief to act on their I-526 petitions.  

USCIS has utilized the prolonged adjudication times as a defense when filing Motions to Dismiss in similar cases. Although the court in this case did not adjudicate the merits of the underlying I-526 petitions, this win is a milestone victory for similarly situated EB-5 investors as the court’s decision makes clear that adjudication times do not rule out access to federal courts to seek relief. EB-5 investors experiencing long adjudication delays can contact their Foster attorney to explore options for filing a mandamus lawsuit.  

As always, Foster will continue to monitor changes in the EB-5 program and will provide updates as appropriate via Foster Immigration Updates© and on the firm’s website at www.fosterglobal.com. For more information or if you have questions about your Form I-526 processing times, please do not hesitate to contact us at info@fosterglobal.com or call our immigration law firm at 713.229.8733.