Form I-829 Mandamus
The Problem:
USCIS reports it takes more than 4.5 years to adjudicate a Form I-829. And neither your regional center nor your petition attorney have any incentive to get you a decision faster. The regional center wants to keep your money, and your petition attorney wants to keep the regional center happy.
The Law:
Unlike the law controlling adjudications of Forms I-526, Congress set a deadline for adjudications of Forms I-829: (1) hold an interview within 90 days of filing; and (2) make a decision within 90 days of the interview:
The Solution:
This statutory timeline is very helpful in litigation. First, it allows us to argue that there is an enforceable deadline at 6-months. When you have an enforceable deadline, there is no question of what is “reasonable.” Rather, at 6 months and a day USCIS has breached the deadline and can be compelled to make a decision. This is different than “unreasonable delay” cases. Second, even if there is not an enforceable deadline, the statutory timeline makes it clear that Congress did not want Forms I-829 to take months and years. So, we have a very strong case based on the language of the statute.
The Strategy:
Litigation is the most effective strategy, but there are litigation strategies. Petition attorneys masquerading as litigation attorneys are filling the courts with ill-advised group cases. But for an investor, right now, the most effective suit is an individual suit. The biggest problem with an individual suit is the cost. Petition attorneys charge a premium for these cases, knowing that a VAST majority of Form I-829 delay cases settle—USCIS agrees to make a decision on your Form I-829 and there is no fight. Given the incredibly high settlement rate, individual Form I-829 delay cases can and should be cost effective.
Cost and Process:
There are two viable options for
