Khanna v. Mayorkas

• Decision Date: 25 June 2021
• Docket Number: Civ. No. 21-8712 (KM),Civ. No. 21-8715 (KM)
• Parties: MANAV KHANNA, et al. Plaintiffs, v. ALEJANDRO MAYORKAS, et al. Defendants. PRADEEP KUMAR PEDDI, et al. Plaintiffs, v. ALEJANDRO MAYORKAS, et al. Defendants.
• Court: U.S. District Court — District of New Jersey

MANAV KHANNA, et al. Plaintiffs, v. ALEJANDRO MAYORKAS, et al. Defendants.

PRADEEP KUMAR PEDDI, et al. Plaintiffs, v. ALEJANDRO MAYORKAS, et al. Defendants.

Civ. No. 21-8712 (KM)

Civ. No. 21-8715 (KM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

June 25, 2021

OPINION

KEVIN MCNULTY, U.S.D.J.:

The movants in these Temporary Restraining Order ("TRO") Applications (8712 Action DE 13; 8715 Action DE 12)¹consist of a subgroup of plaintiffs intwo related actions: Khanna, et al. v. Mayorkas, et al., Civ. No. 21-8712 (KM) ("8712 Action") and Peddi, et al. v. Mayorkas, et al., Civ. No. 21-8715 (KM) ("8715 Action"). Those actions have been consolidated for argument for purposes of this TRO application, and the Court will enter one Opinion and Order in each docket. As the arguments are identical, for ease of reference, I will refer to the briefing filed in the 8715 Action.

The movants seek a Writ of Mandamus to compel defendant United States Citizenship and Immigration Services ("USCIS") to adjudicate their Forms I-485, Application to Register Permanent Resident or Adjust Status, before 11:59 P.M. on June 30, 2021. For the reasons provided herein, I will deny the movants' request for emergent relief.

I. Summary

On April 8, 2021, plaintiffs in these related matters initiated an action to compel adjudication on their Forms I-485 on the basis of each plaintiffs' previously-approved Forms I-526, Immigrant Petition by Alien Entrepreneur. (8712 Action DE 1 at 2; 8715 Action DE 1 at 2.) As alleged in the complaints, all plaintiffs have invested at least $500,000 through the EB-5 Regional Center Program in order to obtain green cards for themselves and their families through the EB-5 visa program. (Id.)

Now, the plaintiffs, or some of them, seek a TRO compelling adjudication on their Forms 1-485 by June 30, 2021, the date the Regional Center Program is set to expire. (TRO Brief at 5.) If the Program is not renewed, the movants contend, then they "will lose their eligibility to obtain a green card throughtheir investments." (Id. at 11.) I ordered expedited briefing and held a hearing, at which neither side offered testimony, yesterday afternoon, June 24, 2021. Given the impending deadline, I have issued this opinion and order on an expedited basis.

a. The EB-5 Regional Center Program

In 1990, Congress amended the Immigration and Nationality Act ("INA") of 1965 to allocate, inter alia, a number of immigrant visas ("not to exceed 7.1 percent of such worldwide level") per year "to qualified immigrants seeking to enter the United States for the purpose of engaging in a new commercial enterprise." 8 U.S.C. § 1153(b)(5). That allotment is also known as the "fifth preference" in the "employment-based visa category," or the "EB-5" classification. See U.S. Sec. & Exch. Comm'n v. Hui Feng, 935 F.3d 721, 725 (9th Cir. 2019), cert. denied, 141 S. Ct. 1387 (2021) ("By statute, the Immigrant Investor Program is the fifth preference in the employment-based visa category, which gave rise to the nickname 'EB-5.'"). Pursuant to the Regional Center Program, also called the Immigrant Investor Program, foreign nationals may be eligible for an EB-5 immigration visa if (1) they have invested, or are "actively in the process of investing," in a new commercial enterprise, and (2) the investment results in the creation of at least ten jobs for workers in the United States.² 8 U.S.C. § 1153(b)(5)(A)-(D); 8 C.F.R. § 204.6(a)-(j).

Prior to the regulatory amendments of November 21, 2019, noncitizens who participated in the EB-5 program were required to invest $1 million in a new commercial enterprise, or at least $500,000 in a new commercial enterprise in a "targeted employment area."³ 8 U.S.C. § 1153(b)(5)(C); 3 C.F.R.§ 204.6(f) (2019); see also Dep't of Homeland Security, EB-5 Immigrant Investor Program Modernization, 84 FR 35750-01 (July 24, 2019) (explaining the increase in the minimum investment amount in targeted employment areas from $500,000 to $900,000).

The process for becoming a lawful permanent resident ("LPR") through the EB-5 Program is as follows. First, the noncitizen investor must file a Form I-526, Immigrant Petition by Alien Entrepreneur. Upon approval, if the investor is present in the United States, he or she files a Form I-485.⁴ If the investor is granted adjustment of status, then he or she is admitted to the United States and is given a conditional Form I-551, or "green card," for a period of two years. After that two year period, the investor then may become an LPR without conditions by filing a Form I-829 in accordance with statutory and regulatory guidelines and upon a showing that he or she satisfied the investment and job-creation requirements of 8 U.S.C. § 1153(b). See generally 8 U.S.C. § 1153; 8 U.S.C. § 1201; 8 U.S.C. § 1186b; 8 C.F.R. § 204.6; 8 C.F.R. § 216.6. The Attorney General shall terminate the permanent resident status of the noncitizen investor (and his or her spouse and/or child) if

before the second anniversary of the alien's obtaining the status of lawful admission for permanent residence, [the Attorney General determines] that--

(A) the investment in the commercial enterprise was intended solely as a means of evading the immigration laws of the United States,

(B)(i) the alien did not invest, or was not actively in the process of investing, the requisite capital; or

(ii) the alien was not sustaining the actions described in clause (i) throughout the period of the alien's residence in the United States; or

(C) the alien was otherwise not conforming to the requirements of section 1153(b)(5) of this title,

8 U.S.C. § 1186b(b)(1); see also Tingzi Wang v. United States Citizenship & Immigr. Servs., 375 F. Supp. 3d 22, 26-27 (D.D.C. 2019) ("[I]f a petitioner fails to meet these requirements, or neglects to file an I-829 petition, USCIS must terminate the petitioner's conditional immigrant visa.").

Notable for the present purposes, the approval of a visa petition, such as the I-526 petition, "vests no rights in the beneficiary of the petition." Matter of Ho, 19 I. & N. Dec. 582, 589 (BIA 1988). Instead, "[a]pproval of a visa petition is but a preliminary step in the visa or adjustment of status application process, and the beneficiary is not, by mere approval of the petition, entitled to an immigrant visa or to adjustment of status." Id. And, "[s]uccessful adjudication and approval of an I-526 petition makes a petitioner eligible for a visa, but does not automatically provide a visa." Nohria v. Renaud, No. 20-2085, 2021 WL 950511, at *2 (D.D.C. Mar. 14, 2021).

The INA imposes yearly limits to the total number of immigrant visits issued each year. See 8 U.S.C. § 1151. As stated, EB-5 visas are capped at 7.1 percent of all employment-based visas. 8 U.S.C. § 1153(b)(5)(A). Nevertheless, "'not less than three thousand' EB-5 visas are to be afforded to foreign investors investing in 'targeted investment areas' per fiscal year." Nohria, 2021 WL 950511 at *2 (quoting 8 U.S.C. § 1153(b)). Within that framework,

the State Department "allocate[s] immigrant visa numbers," see 22 C.F.R. § 42.51(b), and when the demand for visas is higher than the supply of visas for a given year in any given category, a visa queue forms. Visa petitions in that queue are organized by their "priority date," typically the date the petition was filed. See 8 U.S.C. § 1153(e); 22 C.F.R. § 42.54. A petitioner in the queue then becomes eligible for a permanent resident visa, barring any other indications of ineligibility, when the listed priority date for petitioner's country of origin and category printed in most recent monthly Visa Bulletin, published by the State Department, see, e.g., U.S. DEP'T OF STATE, VISA BULL. FOR SEPTEMBER 2020 45 (Sept. 2000), https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-september-2020.html (last accessed Mar. 14, 2021), falls on a date later than petitioner'spriority date, id. At that point, a visa is considered available to that petitioner. See id.

Id.

The Regional Center Program was initially established as a five-year pilot program in 1992. DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS ACT, 1993., PL 102-395, October 6, 1992, 106 Stat 1828. However, the program has been extended more than thirty times since then. Nadhar v. Renaud, No. 21-00275, 2021 WL 2401398, at *4 (D. Ariz. June 11, 2021). Most recently, the EB-5 Regional Center Program has been extended through June 30, 2021. Thus, if not reauthorized by Congress, the program is set to terminate on June 30, 2021 (the "sunset date"). On March 18, 2021, S.831 was introduced to provide for the reauthorization of the program through September 30, 2026.⁵

b. Movants Participation in the EB-Program

As alleged, each movant has invested $500,000 through the EB-5 Regional Center Program⁶ and each of the movant's completed I-526 petitions have been approved. (8712 Action DE 1 at 2; 8715 Action DE 1 at 2.) Each movant has also filed, and is awaiting adjudication of, a Form 1-485. (Id.) The dates that each family submitted their Form 1-485 ranges from March to December of 2020. (See 8712 Action DE 1; 8715 Action DE 1.) Thus, most movants have been waiting for a decision for over a year. (See id.; TRO Brief at 9-10.)

The movants now seek a TRO compelling USCIS to adjudicate their Forms 1-485 before the EB-5 Program terminates on June 30, 2021.

II. Discussion

a. Legal Standard

To obtain a temporary restraining order or a preliminary injunction, a petitioner must provide a "threshold" showing of two critical factors: (1) a likelihood of success on the merits of his claim; and (2) that he is "more likely than not to suffer irreparable harm in the absence of preliminary relief." Reilly v. City of Harrisburg, 858 F.3d 173, 179 (3d Cir. 2017). A likelihood of success on the merits requires "a showing significantly better than negligible but not necessarily more likely than not." See i...