Da Costa v. Immigration Inv'r Program Office

80 F.4th 330

Adrian DA COSTA and Jayde Da Costa, Appellants v. IMMIGRATION INVESTOR PROGRAM OFFICE andUr M. Jaddou, Director, U.S. Citizenship and Immigration Services, Appellees

No. 22-5313

Consolidated with 22-5320

United States Court of Appeals, District of Columbia Circuit

Argued May 11, 2023

Decided August 18, 2023

Appeals from the United States District Court for the District of Columbia (No. 1:22-cv-01576) (No. 1:22-cv-02171)

Jesse M. Bless argued the cause and filed the briefs for The Da Costa Appellants.

Brad Banias argued the cause and filed the briefs for The Bega Appellants.

H. Ronald Klasko was on the brief for amicus curiae Invest in the USA in support of The Da Costa Appellants.

Matthew T. Galati and Halston A. Chavez were on the brief for amicus curiae American Immigrant Investor Alliance in support of appellants.

Aaron S. Goldsmith, Senior Litigation Counsel, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Glenn M. Girdharry, Deputy Director, and Vanessa Molina, Trial Attorney.

Before: Henderson, Pillard and Pan, Circuit Judges.

Pillard, Circuit Judge:

Noncitizens can qualify for employment-based U.S. visas by investing in designated commercial enterprises that create jobs in the United States. After making a qualifying investment, a noncitizen must petition the United States Citizenship and Immigration Services (USCIS) for the visa. In these two consolidated appeals, investors who have waited several years for USCIS to approve their petitions sue the agency for what they see as unreasonably delayed action in violation of the Administrative Procedure Act. The district courts in both cases granted USCIS's motions to dismiss, holding that the investors' allegations do not show USCIS's delay to be unreasonable under the circumstances. We affirm.

BACKGROUND

A.

In 1990, Congress amended the Immigration and Nationality Act (INA or the Act), 8 U.S.C. § 1101 et seq., to create an employment-based visa program for non-citizens who invest in a job-creating enterprise. Immigration Act of 1990, Pub. L. No. 101-649, § 121(b)(5), 104 Stat. 4978, 4989 (codified at 8 U.S.C. § 1153(b)(5)). (We use "noncitizen" as equivalent to the statutory term "alien." See Nasrallah v. Barr, — U.S. —, 140 S. Ct. 1683, 1689 n.2, 207 L.Ed.2d 111 (2020) (citing 8 U.S.C. § 1101(a)(3)).) The job-creation visas are called "EB-5 visas" because they are the "fifth employment-based visa category available to foreign nationals." Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373, 374 (D.C. Cir. 2020). EB-5 visas are available to noncitizens entering the country to engage in a new commercial enterprise that "will benefit the United States economy by creating full-time employment for not fewer than 10 United States citizens, United States nationals," or certain other residents. 8 U.S.C. § 1153(b)(5)(A)(ii).

Two years after creating the EB-5 program, Congress created an additional path to qualify for an EB-5 visa through what is now called the Regional Center Program. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-395, § 610, 106 Stat. 1828, 1874-75 (1992). Under the Regional Center Program, EB-5 petitioners "pool[ ] their investments with 1 or more qualified immigrants" into "a regional center in the United States, which has been designated by the Secretary of Homeland Security on the basis of a proposal for the promotion of economic growth, including prospective job creation and increased domestic capital investment." 8 U.S.C. § 1153(b)(5)(E)(i).

The INA sets general parameters for the government's adjudication of visa petitions and issuance of visas. It provides that family-sponsored and employment-based visas "shall be issued to eligible immigrants in the order in which a petition in behalf of each such immigrant is filed." 8 U.S.C. § 1153(e)(1). We have referred to that statutory first-in, first-out directive as the "priority rule." Meina Xie v. Kerry, 780 F.3d 405, 408 (D.C. Cir. 2015).

The INA also imposes statutory caps on the worldwide total number of all employment-based visas the government may grant annually. 8 U.S.C. § 1151(a), (d); see Meina Xie, 780 F.3d at 406. The Act limits the number of visas for particular subcategories within the broader category of employment-based visas (which, in addition to EB-5 job-creation visas, includes visas for workers with certain high levels of ability or qualification, or who meet needs unmet by workers available within the United States). 8 U.S.C. § 1153(b). EB-5 visas, for example, "shall be made available, in a number not to exceed 7.1 percent of" the overall maximum number of employment-based visas. Id. § 1153(b)(5)(A).

The INA also limits the number of visas that can be awarded to individuals from a single country. Generally, for "family-sponsored and employment-based immigrants" taken together, "the total number of immigrant visas made available to natives of any single foreign state . . . may not exceed 7 percent" of the total number of family-sponsored and employment-based visas made available in that fiscal year. Id. § 1152(a)(2); see Meina Xie, 780 F.3d at 406. We refer to that limit as the "per-country cap."

USCIS and the State Department have separate roles in processing visa applications and issuing visas. USCIS processes petitions, 8 C.F.R. §§ 100.1, 103.2, 106.1, while the State Department tracks visa availability, allocates visas, and, for visa-seekers residing outside the United States, issues visas through its embassies and consulates worldwide to persons USCIS determines to be eligible. 22 C.F.R. §§ 42.41, 42.42, 42.51. The State Department publicly announces visa availability on an ongoing basis through its Visa Bulletins. 8 C.F.R. § 245.1(g)(1); Department of State, The Visa Bulletin, https://perma.cc/F2RW-BYPY (last updated June 1, 2023). We refer to the government generally unless we see a need to distinguish between those agencies.

B.

For noncitizens seeking an EB-5 visa, the first step in the application process is to file with USCIS a petition, called a Form I-526, for classification as an approved investor. 8 C.F.R. § 204.6. The petition "must be accompanied by evidence that the [noncitizen] has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees." 8 C.F.R. § 204.6(j). For noncitizens participating in the Regional Center Program, the evidence must show investment in a designated Regional Center and demonstrate—via "reasonable methodologies"—that the investment will either directly or indirectly create 10 or more jobs. Id. § 204.6(j)(4)(iii), (m)(7).

After USCIS approves a Form I-526 petition, the noncitizen proceeds to the second step: applying for conditional lawful permanent resident status. In other words, an approved petition makes the noncitizen "eligible to stand in line for an immigrant visa number to be issued by the Department of State." See iTech U.S., Inc. v. Renaud, 5 F.4th 59, 61 (D.C. Cir. 2021) (describing equivalent process for Form I-140 petition). Individuals living outside the United States apply for conditional lawful permanent resident status through a process called "consular processing." 8 U.S.C. §§ 1186b(a)(1), 1201-02; 8 C.F.R. § 216.1; 22 C.F.R. §§ 42.32(e), 42.41, 42.42; see USCIS, Consular Processing, https://perma.cc/9N3P-6X7S (last updated Aug. 7, 2023). Individuals already living in the United States apply through "adjustment of status." 8 U.S.C. §§ 1186b(a)(1), 1255; 8 C.F.R. §§ 216.1, 245.2. In a final step, after approximately one year and nine months as a conditional lawful permanent resident, the noncitizen may apply to remove the conditional basis of their lawful permanent resident status. 8 C.F.R. § 216.6(a)(1)(i).

This appeal concerns the first step of the EB-5 visa process: USCIS's adjudication of Form I-526s. In January 2020, USCIS announced a modification to its first-in, first out priority rule for that step, adopting what it calls the "visa availability approach." USCIS, USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory (Jan. 29, 2020), https://perma.cc/DUG5-ARPL (last updated June 5, 2023); Da Costa App. 16 (First Am. Compl. ¶¶ 71-73); Bega J.A. 12 (Compl. ¶ 63). In a question-and-answer format, USCIS explained that before the January 2020 change, it had relied on a simple first-in, first-out principle to adjudicate petitions, meaning that "generally USCIS processe[d] Form I-526 petitions in the order received." USCIS, Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach, https://perma.cc/9P87-2J7G (last updated June 2, 2023). The announced amendment to that process sought to avoid delays caused by adhering to first-in, first-out processing of petitions from "oversubscribed" countries, i.e., those that had already reached their visa limit under the relevant per-country cap. Id.; see 8 U.S.C. § 1152(a)(2). As USCIS explained, "the oldest Form I-526 petitions [were] primarily from countries that [were] oversubscribed," such that, without the modification, "petitioners without visa numbers available would tend to be processed ahead of those with visa numbers available." USCIS, Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach. In the interest of efficiency, USCIS decided not to make people from countries with available visas wait for adjudication of earlier-filed petitions from oversubscribed countries, given that those earlier filers would remain unable to progress to the second step until a visa became available under the per-country cap.

As USCIS explained in the January 2020 press release, USCIS's visa-availability approach "gives priority to petitions where visas are immediately available" under the per-country cap. USCI...