Saharia v. United States Citizenship & Immigration Servs.

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ROHAN SAHARIA, Plaintiff, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, Defendant.

No. 21 Civ. 3688 (NSR)

United States District Court, S.D. New York

August 5, 2022

OPINION & ORDER

NELSON S. ROMAN UNITED STATES DISTRICT JUDGE

Plaintiff Rohan Saharia (“Plaintiff”), a citizen of India who applied for the EB-5 immigrant investor visa program brings this action against Defendant United States Citizenship and Immigration Services (“USCIS” or “Defendant”) alleging that it has unreasonably delayed his November 12, 2019 EB-5 application in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1). Presently pending before the Court is USCIS's motion to dismiss pursuant to Federal Rule of Civil Procedure § 12(b)(6).^[1] (ECF No. 17.) For the following reasons, the Court DENIES USCIS's motion to dismiss.

BACKGROUND

I. Factual Background

The following facts are derived from the Complaint and the documents referenced therein and are taken as true and constructed in the light most favorable to Plaintiff for the purposes of this motion.

Plaintiff is a citizen of India who currently resides in Tarrytown, New York. (Compl. ¶ 1, ECF No. 1.) On November 12, 2019, he filed an Immigrant Petition by Alien Investor (“Form I- 526” or “I-526”) with USCIS. (Id. ¶ 77.) He seeks what is known as an EB-5 immigrant visa under the Regional Center Program based on his $500,000 investment in the new commercial enterprise (“NCE”) Atlantic American Fortune Fund III, LP administered by the Smith South Atlantic Center, LLC. (Id. ¶¶ 76, 78.) To date, Plaintiff's EB-5 application has been pending for approximately 31 months because USCIS has yet to adjudicate his Form I-526 petition. (Id. ¶ 80.)

a. EB-5 Program

The EB-5 program allots visas to immigrants who have “invested . . . capital” in a NCE that will “create full-time employment for not fewer than 10 United States citizens” or foreign nationals authorized to work in the United States, excluding the applicant's spouse or children. 8 U.S.C. § 1153(b)(5). At the times relevant to the petition at issue in this case, applicants for the EB-5 program were required to invest at least $1,000,000 in a qualifying enterprise unless the project was in a “targeted employment area,” in which case the investment threshold was $500,000. 8 U.S.C. § 1153(b)(5)(B)(ii), (C)(ii); 8 C.F.R. § 204.6(f)(1)-(2).

Applicants can satisfy the EB-5 “job creation” requirement by showing that their investment will directly create full-time positions for at least 10 employees. 8 C.F.R. § 204.6(j)(4)(i). Alternatively, applicants who participate in the EB-5 Immigrant Investor Program (or “Regional Center Program”) can demonstrate that their investment is within an approved regional center and that the investment will “create jobs indirectly through revenues generated from increased exports resulting from the new commercial enterprise.” 8 C.F.R. § 204.6(j)(4)(iii), (m)(7). Participants in the Regional Center Program may show indirect job creation through “reasonable methodologies,” including “multiplier tables, feasibility studies, analyses of foreign and domestic markets for the goods or services to be exported, and other economically or statistically valid forecasting devices which indicate the likelihood that the business will result in increased employment.” 8 C.F.R. § 204.6(m)(7)(ii). Multiple investors may aggregate their investments, and one NCE can serve as the basis for multiple EB-5 petitions so long as each investor individually meets the monetary and job creation requirements. See 8 C.F.R. § 204.6(g).

Foreign nationals apply for the EB-5 Program using Form I-526, Immigrant Petition by Alien Investor. See 8 C.F.R. §§ 204.6(a), (c). Applicants must show by a preponderance of evidence that they are eligible to receive an EB-5 visa. 8 U.S.C. § 1361. Even after receiving approval of an immigrant visa petition, applicants must still show, among other things, edibility to receive an immigrant visa. See Firstland Int'l, Inc. v. U.S. I.N.S., 377 F.3d 127, 129 n.3 (2d Cir. 2004) (citing 8 U.S.C. § 1255(a)). “That is, the [USCIS's] approval of an immigrant visa petition is distinct from the issuance of an immigrant visa.” Id.

Once USCIS has approved an I-526 petition, the applicant may apply for two-year conditional lawful permanent resident (“LPR”) status. 8 U.S.C. § 1186b(a). The investor can eventually qualify for full, nonconditional LPR status by submitting a petition that demonstrates the investor has “maintained his or her capital investment” for over two years and “created or can be expected to create within a reasonable time ten full-time jobs for qualifying employees.” 8 C.F.R. § 216.6(a)(4)(iii)-(iv).

b. USCIS's Processing Procedures for I-526 Petitions

The Immigration and Nationality Act (“INA”) limits the total number of visas available to foreign nationals each year, as well as the number of visas available for nationals of any single country. See 8 U.S.C. §§ 1151, 1152. Most visa applications, including the one at issue here, are considered in the order they are filed. See 8 U.S.C. § 1153(e). USCIS formerly processed Form I-526 petitions on a “first-in, first-out” basis. See Press Release, U.S. Citizenship and Immigration Servs., USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory (Jan. 29, 2020), https://www.uscis.gov/news/news-releases/uscis-adjusts-process-for-managing-eb-5-visa-petition-inventory [hereinafter, USCIS Press Release]. However, in January 2020, USCIS announced that it would “give[ ] priority to petitions where visas are immediately available, or soon available.” Id. Under the new approach, USCIS evaluates the visa availability for a petitioner's country of birth and uses that information, “along with other factors, to determine which Form I-526 petitions should be processed first.” U.S. Citizenship and Immigration Services, Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach (April 2, 2021), https://www.uscis.gov/working-in-the-unitedstates/permanent-workers/employment-based-immigration-fifth-preference-eb-5/questions-and-answers-eb-5-immigrant-investor-program-visa-availability-approach. USCIS stated that the “new operational approach aligns with other visa-availability agency adjudications processes, is more consistent with congressional intent for the EB-5 Immigrant Investor Program, and increases fairness in the administration of the program.” USCIS Press Release.

c. Consolidated Appropriations Act of 2022

On March 15, 2022, Congress enacted the Consolidated Appropriations Act of 2022. In relevant part, this Act amended 8 U.S.C. § 1153(b)(5) of the INA by adding paragraph (E), which, inter alia, requires USCIS to make visas available to qualified EB-5 applicants who apply through a regional center through September 30, 2027. See Consolidated Appropriations Act of 2022, H.R. 2471, Div. BB, § 103(b)(1) (Mar. 15, 2022); see also 8 U.S.C. § 1153(b)(5)(E). Since then, on April 12, 2022, USCIS issued an additional alert, explaining that it had “resumed processing regional center-based Form I-526, Immigrant Petition by Alien Entrepreneur, filed on or before the sunset of the previous regional center program on June 30, 2021.” U.S. Citizenship and Immigration Services, I-526, Immigrant Petition by Alien Entrepreneur (April 12, 2022), https://www.uscis.gov/i-526.

II. Procedural Background

On April 26, 2021, Plaintiff brought the instant action. (Compl., ECF No. 1.) On July 30, 2021, USCIS sought leave to file a motion to dismiss, which the Court subsequently granted and issued a briefing schedule. (ECF Nos. 15 & 16.) On November 8, 2021, the parties filed their respective briefing on the instant motion: USCIS its notice of motion (ECF No. 17), memorandum in support (“Motion,” ECF No. 18), and reply (“Reply,” ECF No.19); and Plaintiff his response in opposition (“Response in Opposition,” ECF No. 20). The parties also filed supplemental letters with legal developments on the matters raised in their respective briefing. (See ECF Nos. 21, 22, 23, 24.)

LEGAL STANDARD

In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Freidus v. Barclays Bank PLC, 734 F.3d 132, 137 (2d Cir. 2013). To survive a motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Mere “labels and conclusions” or “formulaic recitation[s] of the elements of a cause of action will not do”; rather, the complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. In applying these principles, the Court may consider facts alleged in the complaint and documents attached to it or incorporated by reference. Chambers v. Time Warner, Inc., 282 F.3d 147, 15253 (2d Cir. 2002) (internal quotation marks and citation omitted).

DISCUSSION

Plaintiff only asserts one claim against USCIS: that it has unreasonably delayed his EB-5 application in violation of the APA, 5 U.S.C. § 706(1). (Compl. ¶¶ 91112.) He alleges that Congress has imposed an adjudication timeline for immigration visa petitions of 180 days and that since his petition is pending “outside this timeline,” USCIS has unreasonably delayed action in violation of the APA. (Id. ¶¶ 96, 103 (citing 8 U.S.C § 1571(b).) He further alleges that USCIS has taken affirmative actions, unknown to the public, to purposefully delay adjudications of EB-5 petitions, conduct which the Secretary of Department of...