Olofin v. U.S. Citizenship and Immigration Services

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA OLADAPO OLATUNJI OLOFIN, et al., Plaintiffs, v. No. 22-cv-01684 (DLF) U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. MEMORANDUM OPINION Plaintiffs Oladapo Olatunji Olofin, his spouse Omobusola Christy Olofin, and their minor children, A.O. and A.O. (collectively, the Olofins), filed this action seeking to compel U.S. Citizenship and Immigration Services (USCIS) to process their Form I-526 application for immigrant visas through the EB-5 Immigrant Investor Program. Compl. ¶ 5, Dkt. 1. Before the Court is USCIS’s motion to dismiss, Dkt. 6. For the reasons that follow, the Court will dismiss the suit under Rule 12(b)(6) of the Federal Rules of Civil Procedure. I. BACKGROUND The EB-5 program aims to promote foreign investment in the United States. See 8 U.S.C. § 1153(b)(5)(A). A foreign investor may become eligible for an EB-5 immigrant visa if he invests $500,000 or more in a commercial enterprise located in an approved regional center within a “Targeted Employment Area,” creates at least ten jobs, and actually places his own capital “at risk” to generate a return. Compl. ¶¶ 23–24 (citing 8 U.S.C. § 1153(b)(5)(A)-(C); 8 C.F.R. § 204.6(e), (f)(1)–(3), (g)(1)). To obtain an EB-5 visa, a foreign investor must first file a Form I- 526 application with USCIS, which allows her “to obtain status as a legal U.S. resident, along with her spouse and children, on a conditional basis for two years.” Tingzi Wang v. USCIS, 375 F. Supp. 3d 22, 26 (D.D.C. 2019). If USCIS approves the investor’s Form I-526 application, the investor may then apply for an EB-5 visa and permanent lawful status via a Form I-829 petition. See id. at 26–27. In adjudicating Form I-526 applications, USCIS adheres to a “visa availability” approach, Compl. ¶ 26, which means it prioritizes adjudicating applications from petitioners from countries that have yet to meet their visa availability cap. See Da Costa v. Immigr. Inv. Program Off., No. 22-cv-1576, 2022 WL 17173186, at *3 (D.D.C. Nov. 16, 2022). The Olofins are nationals of Nigeria and residents of Oregon. Compl. ¶ 16. They invested $500,000 in a Sarasota, Florida-based limited partnership, which then invested that money in a mixed-use tower located in an approved regional center under the EB-5 program. Id. ¶¶ 28–29. The Olofins filed a Form I-526 application in October 2019. Id. ¶¶ 1–2. USCIS acknowledged receipt of their Form I-526 application on October 17, 2019, but has yet to adjudicate it. Id. ¶¶ 30, 38. The Olofins filed this action on June 13, 2022, seeking injunctive relief under the Administrative Procedure Act or a writ of mandamus compelling USCIS to process their Form I- 526 application. See id. ¶ 5. USCIS moved to dismiss for failure to state a claim under Rule 12(b)(6). 1 See Defs.’ Mot. at 1–2. II. LEGAL STANDARDS Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to dismiss the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. …

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