Kaur v. Mayorkas

1

AMAN KAUR, SNEHA DSOUZA, Plaintiffs, v. ALEJANDRO MAYORKAS, in his official capacity as secretary, U.S. Department of Homeland Security, UR MENDOZA JADDOU, in her official capacity as Director, US. Citizenship and Immigration Services, UNITED STATES CITIZENSHIP & IMMIGRATION SERVICES, Defendants.

No. 22 Civ. 4514 (PAE)

United States District Court, S.D. New York

August 1, 2023

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiffs Aman Kaur and Sneha Dsouza bring claims against defendants United States Citizenship and Immigration Services (“USCIS”), Alejandro Mayorkas, in his official capacity as Secretary of the United States Department of Homeland Security (“DHS”), and Ur Mendoza Jaddou in her official capacity as Director of USCIS (collectively “defendants” or “the Government”). Dkt. 1 (“Complaint” or “Compl.”). Kaur and Dsouza claim that defendants have unreasonably and unlawfully delayed agency action with respect to their pending Form 1-526 petitions for employment-based immigration visas through the EB-5 Immigrant Investor Program.^[1] Id. ¶¶ 1-2, 5. They seek an order compelling defendants to adjudicate their applications within 15 days, pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 555(b) and 706(1), as well as mandamus relief under 28 U.S.C § 1361. Id. ¶¶ 1, 46. Now before the Court is defendants' motion to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). Dkt. 22 (“Mot.”). For the following reasons, the Court grants the motion to dismiss.

I. Background

A. Factual Background^[2]

1. Parties

Kaur is a citizen of India residing in New York City. Compl. ¶ 10. She is currently pursuing a certificate in prosthodontics at the Jonathan & Maxine Ferencz Advanced Education Program at New York University College of Dentistry in New York, where she receives formal instruction and training and treats patients. Id. ¶ 6. Kaur earlier obtained a bachelor's degree in dental surgery in India and completed a one-year orthodontic internship at the University of Texas Health San Antonio School of Dentistry. Id. Her internship involved treating patients with facial deformities, crowding of teeth, and orthognathic surgery, as well as working on various research studies. Id. Kaur's dental patients require full mouth rehabilitations, dentures, implants, and maxillofacial prosthetics, procedures beyond the scope of work of a generalist dentist; some of her patients have special needs. Id. With the support of a research grant, she is conducting a study titled “Stain Resistance of 3 Different Manufacturers of Artificial Teeth: An In-Vitro Study.” Id. She treats patients five days a week and has been exposed to COVID-19, as well as other contagious diseases, in the course of her work. Id. She “experiences great stress as she risks her own health to treat Americans during the COVID-19 pandemic.” Id. ¶ 27.

Dsouza is also a citizen of India and resides in Arlington, Texas. Id. ¶ 11. She is currently pursuing a master's degree in business administration and management at the University of the Cumberlands in Dallas, Texas, to improve her healthcare managerial skills. Id. ¶ 7. Dsouza earlier obtained a degree in physical therapy in India and graduated from Dallas Baptist University with a master's degree in kinesiology in May 2019. Id. Between August 14, 2019, and November 2021, Dsouza worked as a physical therapist assistant in Arlington, Texas; in that role, she helped treat patients with injuries requiring musculoskeletal, neurological, and cardiac rehabilitation, as well as post-COVID-19 patients with lung and cardiac rehabilitation, id. ¶ 7, and “risked her own health helping Americans regularly with post-COVID-19 and others[,] not knowing if they would infect her with CO VID-19,” id. ¶ 28.

USCIS is the agency within DHS responsible for administering the EB-5 program. Id. , ¶ 13. Mayorkas and Jaddou are sued in their official capacities as the Secretary of DHS and the Director of USCIS, respectively. Id. ¶¶ 14-15.

2. The EB-5 Visa and Application Process

Section 203(b)(5) of the Immigration and Nationality Act (“INA”) allows a foreign national to secure Lawful Permanent Resident (“LPR”) status by applying for an employment based, fifth-preference EB-5 visa. Id. ¶ 17; 8 U.S.C. § 1153(b)(5). An applicant can obtain an EB-5 visa by investing lawfully obtained capital in a commercial enterprise that will create or save 10 or more jobs for qualified U.S. workers. Compl. ¶ 17; 8 U.S.C. § 1153(b)(5). At the time relevant here, a $500,000 investment in a “targeted employment area” was a qualifying investment. Compl. ¶ 17; 8 U.S.C. § 1153(b)(5)(C); 8 C.F.R. § 204.6(f)(2).^[3]

The process of obtaining an EB-5 visa involves three steps. First, a petitioner must file an 1-526 application with supporting documents demonstrating that her investment is “at-risk,” the source of the investment funds is lawful, and the project will create 10 or more full-time jobs for qualified U.S. workers. Compl. ¶ 20; 8 U.S.C. § 1153(b)(5)(A), (D).

Second, the petitioner must secure conditional two-year permanent residency. Compl. ¶ 21, An EB-5 applicant may file for adjustment of her immigration status after her 1-526 application has been approved or, beginning in 2022, at the time that she files her application. Compl. ¶ 21 & n.l; Mot. at 18; 8 U.S.C. § 1255(n). USCIS will approve an adjustment-of-status application only if the petition's priority date-in most cases, the date the 1-526 application was accepted by USCIS for processing and/or filed-is “current.” Compl. ¶ 21; Mot. at 5 n.4; see also 8 U.S.C. § 1153(e); 22 C.F.R. § 42.54. The priority date of an application is “current” when a visa for that category and country of chargeability is available. Visa Availability and Priority Dates, USCIS, https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates (last visited July 21, 2023) (“USCIS, Visa Availability and Priority Dates”).

As the final step to securing a visa, an EB-5 visa applicant must file an 1-829 petition within the 90-day period immediately before the applicant reaches two years as a conditional permanent resident. Compl. ¶ 22; EB-5 Immigrant Investor Process, USCIS, https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-process (last visited July 21, 2023) (“USCIS, EB-5 Immigrant Investor Process”). In such a petition, the EB-5 visa applicant must demonstrate that her investment was maintained throughout the two-year conditional residency period and that the investment in fact created 10 full-time jobs for qualified U.S. workers, Compl. ¶ 22. Once the petition is granted, the applicant secures LPR status without any conditions. USCIS, EB-5 Immigrant Investor Process. The EB-5 visa applicant can thereafter recover her investment. Opp. at 23. The Complaint alleges that USCIS takes “two to four years” to review 1-829 petitions and has a “backlog of over 11,000 applicants.” Compl. ¶ 36 n.5.

3. Plaintiffs' Pending 1-526 Applications and Current Status

On October 25, 2019, Kaur filed her 1-526 application. Compl. ¶ 24. On November 1, 2019, Dsouza filed her 1-526 application. Id. Each made a direct investment of $500,000 to build, open, and operate two restaurants and a gas station in Dunnigan, California. Id. ¶¶ 2, 12, 24. The Complaint represents that plaintiffs' 1-526 petitions are “fully documented with evidence demonstrating that their investment capital in the EB-5 Project came from a lawful source, and that the EB-5 project will be built and create the required number of jobs for U.S. workers in an area of high unemployment,” and that Kaur and Dsouza “have complied with all requirements to be classified as EB-5 immigrant investors.” Id. ¶¶ 25-26. This includes paying the $3,675 user fee to file the 1-526 application, a fee that plaintiffs allege, without specific support, “would cover a day or so of an adjudicator's time.” Id. ¶ 39; Opp. at 24.

Plaintiffs have a current priority date, but their 1-526 applications remain undecided. Compl. ¶ 38. Following updates in 2022 of the protocols for adjustment of status, plaintiffs filed their adjustment-of-status applications and “were granted interim work permits, but not travel permits called ‘Advanced Parole.'” Opp. at 8 n.2.

On October 13 and 17, 2022, Kaur and Dsouza, respectively, submitted requests to USCIS to expedite consideration of their applications. Opp. at 7, 11. On October 28, 2022, USCIS denied their requests. Id. at 8, 11.

The Complaint alleges that, since plaintiffs filed their applications:

They have endured great stress all the while not knowing whether they will be able to remain in the United States as permanent residents. Their capital remains invested during the pandemic and now remains at risk due to uncertain economic conditions caused by high inflation and the war in Europe threatening the economy. They seek security to remain in the United States and for return of their capital to invest in a secure way, not in the high risk restaurant industry, which is so vulnerable to loss in a pandemic or recession. They are also stressed and with very large investments at risk of loss.

Id. ¶ 37., In opposing the motion to dismiss, plaintiffs have attached declarations elaborating on the stress they have experienced as healthcare workers during the pandemic.^[4] Opp. at 11. Kaur states:

I am masked and wear Personal Protective Equipment but still am in close contact with patients and risked getting COVID-19. I have experienced great stress as I risk my own health to treat Americans during the COVID-19 pandemic, which has killed over one million Americans, including dentists, doctors

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