Del. Valley Reg'l Ctr., LLC v. U.S. Dep't of Homeland Sec.

106 F.4th 1195

DELAWARE VALLEY REGIONAL CENTER, LLC, et al., Appellants v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al., Appellees

No. 23-5175

United States Court of Appeals, District of Columbia Circuit

Argued April 5, 2024

Decided July 9, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:23-cv-00119)

Kathleen R. Hartnett argued the cause for appellants. With her on the briefs were Patrick J. Hayden and Adam M. Katz.

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, and Glenn M. Girdharry, Assistant Director.

Before: Pillard, Walker and Pan, Circuit Judges.

Pan, Circuit Judge:

Three Chinese individuals (collectively, the "Investor Appellants") invested in a project to improve Philadelphia's transit infrastructure as part of an effort to obtain EB-5 visas — i.e., visas for foreign investors who create jobs in the United States. See 8 U.S.C. § 1153(b)(5). United States Citizenship and Immigration Services ("USCIS") found the Investor Appellants eligible for EB-5 visas and approved their visa applications. But the EB-5 visa program is oversubscribed, so the Investor Appellants are in a "line" waiting for visas to become available.

In 2022, Congress changed the eligibility requirements for EB-5 visas in the EB-5 Reform and Integrity Act of 2022 ("RIA"). See Pub. L. 117-103, § 102, 136 Stat. 49, 1070 (2022) (codified at 8 U.S.C. § 1153(b)(5)). The RIA created a new category of "reserved" EB-5 visas for foreigners who invest in "infrastructure projects" that meet certain requirements. See 8 U.S.C. § 1153(b)(5)(B)(i)(I)(cc). After the passage of the RIA, USCIS stated that it would determine whether a visa applicant's investment is in a qualified "infrastructure project" at the time that USCIS adjudicates the "project application." That created uncertainty for the Investor Appellants. They believed that they should be deemed eligible for the new "reserved" visas based on their past investments in infrastructure; and they interpreted USCIS's statements about prospectively adjudicating "project applications" as precluding consideration of investments in infrastructure projects that already had been approved by USCIS under the prior regulatory regime.

The Investor Appellants and their project sponsors (the "Project Appellants") sued the Department of Homeland Security and USCIS, arguing that previous investments in already-approved infrastructure-focused projects should be eligible for reserved EB-5 visas under the RIA. The district court dismissed the complaint, ruling that the government had taken no final agency action under the RIA that may be challenged at this time. Because we agree that the arguments made by Appellants are premature, we affirm.

I.

A.

As part of the Immigration Act of 1990, Congress established the EB-5 immigrant-investor visa program. See Pub. L. No. 101-649, § 121, 104 Stat. 4978, 4987 (1990) (codified at 8 U.S.C. § 1153(b)(5)). The EB-5 program is so named because it is the "fifth employment-based visa category available to foreign nationals" under the Immigration and Nationality Act. Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373, 374 (D.C. Cir. 2020) (first citing 8 U.S.C. § 1101 et seq.; then citing id. § 1153(b)(5)). EB-5 visas are allotted to immigrants "who have invested capital in a new commercial enterprise that will benefit the United States economy and create full-time employment for ten citizens or non-citizens with work authorization." Id. (internal quotation marks and alterations omitted) (quoting 8 U.S.C. § 1153(b)(5)(A)). As explained in more detail below, an immigrant can satisfy the EB-5 employment-creation requirement by creating jobs indirectly through USCIS's Regional Center Program. See Immigrant Investor Pilot Program, Interim Rule, 58 Fed. Reg. 44606, 44607 (Aug. 24, 1993) (noting that "immigrants participating in the [Regional Center] program may credit jobs they create indirectly").

The EB-5 visa process is administered by USCIS and the State Department. USCIS processes and approves the visa petitions — i.e., it assesses whether petitioners qualify for the requested visa. See 8 C.F.R. §§ 100.1, 103.2, 254.2(a). The State Department determines how many visas are available and allocates visas to approved applicants. See 22 C.F.R. §§ 42.41, 42.51. Moreover, the State Department limits the number of visas that may be issued to nationals from each foreign country. See 8 U.S.C. § 1152(a)(2) (Visas available to applicants from any individual country will "not exceed 7 percent" of the total number of family-sponsored and employment-based visas made available in that fiscal year.). Once an immigrant investor obtains an EB-5 visa, they may apply for a two-year conditional lawful-permanent-resident status. Id. § 1186b(a); 8 C.F.R. §§ 216.1, 245.2. At the end of the conditional period, the investor may file a petition to become a permanent resident in the United States. See id. § 1186b(c), (d); 8 C.F.R. § 216.6.

Because the EB-5 visa program is oversubscribed, an immigrant investor whose EB-5 petition is approved by USCIS must wait in a virtual "line" until a visa becomes available. See Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 336 (D.C. Cir. 2023). The EB-5 process is especially lengthy for investors from China — due to the high number of Chinese applicants, many of them wait years for an available visa. For example, in April 2024, visas were finally becoming available for approved EB-5 petitioners from China who had filed their petitions in December 2015. USCIS, When to File Your Adjustment of Status Application for Family-Sponsored or Employment-Based Preference Visas: April 2024, https://perma.cc/YE45-U5AW (last visited July 3, 2024) ("April 2024 EB-5 Visa Bulletin Charts").

In 1992, Congress created a pilot program for obtaining EB-5 visas that 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(a), 106 Stat. 1828, 1874 (1992). The program allows immigrant investors to satisfy the EB-5 employment-creation requirement by investing through regional centers, which direct the funds to job-creation projects. Regional centers are USCIS-approved business entities that work in specified geographic areas to facilitate the pooling of EB-5 investments. 8 C.F.R. § 204.6(m)(3)(i) (A regional center must submit a proposal which "describes how [it] focuses on a geographical region of the United States, and how it will promote economic growth."); Doe v. McAleenan, 929 F.3d 478, 480 (7th Cir. 2019) ("Regional centers are essentially clearinghouses for eligible investment opportunities."). As of 2023, there were 640 approved regional centers in the United States. USCIS, Approved EB-5 Immigrant Investor Regional Centers, https://perma.cc/PUM2-TWHL (last visited July 3, 2024). And as of 2021, over ninety percent of EB-5 applicants invested in the United States through a regional center. IIUSA, IIUSA Data Analysis: Impact of the Lapse of the EB-5 Regional Center Program on Investors, Investments and Job Creation, https://perma.cc/9LNS-QNZS (Aug. 20, 2021).

Before the RIA was enacted, an EB-5 applicant participating in the Regional Center Program could invest either $1 million in the United States generally or $500,000 in a "targeted employment area" to qualify for an EB-5 visa. See 8 U.S.C. § 1153(b)(5)(C) (2006); see also Zhang v. USCIS, 978 F.3d 1314, 1316 (D.C. Cir. 2020). A "targeted employment area" was defined as a rural area or an area experiencing high unemployment. See 8 U.S.C. § 1153(b)(5)(B)(ii) (2006). Either type of investment could be made through a regional center. See Regional Center Designation, Reporting, Amendments, and Termination, USCIS Policy Manual (2021), Vol. 6, Part G, Ch. 3, https://perma.cc/MZA2-XCEP.

Prior to the RIA, USCIS allowed visa applicants to submit optional business plans that described their prospective proposals for job creation. See 8 C.F.R. § 204.6(j)(4)(i) (noting that evidence of job creation can be shown through "a comprehensive business plan"). As part of the Regional Center Program, USCIS also allowed regional centers to submit business plans that outlined the job-creation potential of their sponsored investment projects. See USCIS, Policy Memorandum, EB-5 Adjudications Policy at 14 n.2, 23, https://perma.cc/U9PW-G5AE (May 30, 2013) ("Policy Memorandum"). If USCIS approved a regional center's business plan, individual investors who petitioned for EB-5 visas after investing in the project described in the business plan enjoyed a streamlined application process: They could append the approved business plan to their visa applications and receive "deference" from USCIS in its assessment of whether the petitioners satisfied the job-creation requirement. See id. at 21, 23; see also J.A. 43 (describing Delaware Valley Regional Center's application and business plan). This informal practice allowed USCIS to examine and approve a job-creation proposal just one time for each regional-center project, rather than repeating the analysis for each visa petitioner who invested in that project. See Policy Memorandum at 23 ("This policy of deference is an important part of ensuring predictability for EB-5 investors and commercial enterprises . . . , and also conserves scarce agency resources, which should not ordinarily be used to duplicate previous adjudicative efforts.").

In March 2022, President Biden signed into law the EB-5 Reform and Integrity Act of 2022. The RIA retains the Regional Center Program and still enables EB-5 petitioners to "pool[ ] their investments" together through a regional center, but it imposes new restrictions and requirements on regional centers. See 8 U.S.C. § 1153(b)(5)(E)(i); see also, e.g., id. § 1153(b)(5)(G) (...