January 26, 2023

A Washington D.C. judge dismissed a lawsuit by a Dutch hotel EB-5 investor. According to the suit, the investor accused the U.S. Citizenship and Immigration Services (USCIS) of slowly processing his petition for permanent residency. However, the judge stated that the delay did not prove sufficiently egregious to grant the requested relief.

Allegedly, the hotel investor hoped to obtain mandamus relief. In addition, he hoped to challenge how the agency prioritizes the petitions of people coming from countries with available and soon-to-be available visas. However, according to the judge, the allegations by the investor failed to show anything unreasonable about the first-in, first-out system used by the USCIS.

Furthermore, the judge rejected the investor’s argument about the wait time for petitioners. According to the investor, waiting longer than the USCIS’s six-month period is unreasonable. However, the judge remarked that the 20-month wait was not excessive when compared to the similar wait time for others.

The hotel investor also hoped to obtain an immigrant visa through the EB-5 program. This program allows eligible immigrant investors to get a green card in exchange for certain investments that meet the program’s requirements. As such, he filed an Immigrant Petition by Alien Entrepreneur (Form I-526) petition. It would make him a conditional green card holder for a minimum of two years once a visa became available. In addition, it would require him to provide evidence of his relevant investment.

When the hotel investor filed a lawsuit, he had waited approximately 29 months to have his Form I-526 processed. However, the Regional Center Program had lapsed nine months into his wait.

Regardless, the judge decided that the USCIS’s delay in processing the petition did not prove egregious enough to warrant mandamus. According to the judge, they reserved a mandamus for clear violations of a duty to act by an agency or official. In addition, the hotel investor’s arguments failed to meet specific factors for granting a mandamus.

Furthermore, the judge determined the agency’s rule of reason in making decisions as the most crucial factor. With this statement, the judge cited examples of other courts in the district, finding identifiable rationale established by the USCIS. As a result, the judge’s decision aligned with previous findings.

The judge also mentioned that the investor agreed that the USCIS’s six-month deadline was not mandatory. As such, the judge did not find the wait times of 32-40 months for processing Form I-526 unreasonable.

The judge also considered how speeding up a delayed action would affect the high-priority activities of the USCIS. According to the judge, the courts would not typically force an agency to take action to place a plaintiff ahead of others. This result is what would happen if the judge approved this case.

According to the decision, the investor and USCIS had argued over whether the hotel investor hoped to get ahead of the other applicants. In addition, it mentioned that the hotel investor claimed he did not intend to improperly get ahead of others just because he is from an underrepresented country.

The judge agreed with the view of the USCIS that the hotel investor attempted to try to get ahead of others improperly. In this view, the USCIS pointed out that processing times for I-526 petitions were from 25-58.6 months when the hotel investor filed the complaint.

The judge stated that the two factors were dispositive in this case, but the other four were not in the investor’s favor.

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