Delaware Valley Regional Center, LLC v. United States Department of Homeland Security


UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA DELAWARE VALLEY REGIONAL CENTER, LLC, et al., Plaintiffs, Case No. 1:23-cv-119 (TNM) v. U.S. DEPARTMENT OF HOMELAND SECURITY, et al., Defendants. MEMORANDUM OPINION Several Chinese nationals invested in a U.S. center funding a transportation project. They did so for a shot at lawful permanent residency through the “investor visa” program. After they invested, Congress changed the law governing those visas. The investors now claim that they qualify for set-asides in the new law that would allow them to get visas faster. But the Government disagrees. So the Chinese investors, the entity benefitting from their investment, and the regional center sued the Department of Homeland Security, U.S. Citizenship and Immigration Services (“USCIS”), and USCIS’s director (collectively, the “Department”) under the Administrative Procedure Act. They contend that a statement on USCIS’s website violates the new law’s terms and is arbitrary or capricious. The Department moves to dismiss. The Court will grant that motion because what Plaintiffs challenge is not final agency action under the APA. Even if it were, Plaintiffs fail to state a claim that it is contrary to law or arbitrary and capricious. 1 I. A. The United States provides “investor visas” to immigrants who help create jobs. See 8 U.S.C. § 1153(b)(5). Foreign investors can get those visas in a few different ways. One is to contribute to a USCIS-designated “regional center” that creates jobs. 8 U.S.C. § 1153(b)(5)(E). Congress established the regional center program as a five-year pilot. See Departments of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations Act of 1992, Pub. L. No. 102-395, § 610(a) (Oct. 6, 1992) (previously codified at 8 U.S.C. § 1153 note). It set aside 300 visas a year for foreign investors who meet certain criteria. See id. After its initial sunset, Congress periodically reauthorized the program until 2021. See Da Costa v. Immigr. Inv. Program Off., No. 22-cv-1576, 2022 WL 17173186, at *2 (D.D.C. Nov. 16, 2022) (summarizing this history). But in June 2021, the program lapsed for nine months. See id. Then, in March 2022, Congress revamped the regional center program. See EB-5 Reform and Integrity Act of 2022 (“Reform Act” or “Act”), Pub. L. 117-103, 136 Stat. 1070 (2022) (codified at 8 U.S.C. § 1153(b)(5)). Apparently, the original program was rife with fraud and raised national security concerns. See, e.g., Mirror Lake Village, LLC v. Wolf, 971 F.3d 373, 378 (D.C. Cir. 2020) (Henderson, J., concurring) (noting these problems). 1 So Congress reformed some parts and reauthorized the regional center program through 2027. See 8 U.S.C. § 1153(b)(5)(E). Several of the Reform Act’s changes matter here. First, the Act reserves visas for three types of foreign investors: twenty percent for investors in rural areas, ten percent for investors in 1 See also News Releases, Grassley, Leahy Introduce New EB-5 Investor Visa Integrity Reforms (Mar. 18, 2021), https://perma.cc/WB34-F743. 2 high unemployment areas, and two percent for investors in infrastructure projects. See Pub. L. 117-103, § 102(a)(2), 136 Stat. …

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