Nohria v. Renaud
| Decision Date | 14 March 2021 |
| Docket Number | Civil Action No. 20-cv-2085 |
| Parties | PRITI GARG NOHRIA, Plaintiff, v. TRACY RENAUD, Senior Official Performing the Duties of the Director, U.S. Citizenship and Immigration Services, Defendant. |
| Court | U.S. District Court — District of Columbia |
MEMORANDUM OPINION
Plaintiff Priti Garg Nohria, an Indian citizen residing in the United States, Compl. ¶ 28, ECF No. 1, seeks to compel the U.S. Citizenship and Immigration Services ("USCIS") to adjudicate her I-526 petition "for classification as a fifth preference immigrant to pursue permanent resident status based on investing $500,000 in a new commercial enterprise through a project that [d]efendant already approved for receiving pooled foreign investments," id. at 1, after her petition had been pending without decision for less than two years, id.; Def.'s Not. Suggestion of Mootness ("Def.'s Not."), ECF No. 13. USCIS has moved to dismiss the complaint, under Federal Rule of Civil Procedure 12(b)(6), for failure to "allege a plausible claim that the alleged delay constitutes an unreasonable delay upon which relief may be granted under the Administrative Procedure Act," Def.'s Mem. P&A Supp. Def.'s Mot. Dismiss ("Def.'s Mem.") at 1, ECF No. 7, and as moot because plaintiff's I-526 petition has been approved, Def.'s Not. Plaintiff disputes that her complaint is moot until USCIS transfers the approval of herpetition to the National Visa Center for processing, Pl.'s Resp. Order to Show Cause Relating to Def.'s Not. ("Pl.'s OTSC Resp.") at 2, ECF No. 14, and further contests USCIS's motion to dismiss, see generally Pl.'s Mem. P&A Opp'n Def.'s Mot. Dismiss ("Pl.'s Opp'n"), ECF No. 8.
For the reasons set forth below, this complaint must be dismissed as moot.
Following brief review of the statutory and regulatory background, the factual history underlying the claims and procedural history of this case are summarized below.
The Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 et seq., authorizes the issuance of visas to different categories of immigrants, including, under the so-called "EB-5" program, to immigrants who contribute to "employment creation" by investing in new commercial enterprises that create full-time jobs for American workers, see Immigration Act of 1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4989 (Nov. 29, 1990) (codified at 8 U.S.C. § 1153(b)(5)); see 8 C.F.R. § 204.6 (2020) (). To qualify for a visa under the EB-5 program, an immigrant must "create full-time employment for not fewer than 10 United States citizens or aliens lawfully admitted for permanent residency or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant's spouse, sons, or daughters)." 8 U.S.C. § 1153(b)(5)(A)(ii). To that end, the immigrant must have made or be in the process of making an investment of at least $1,000,000 generally or at least $500,000 into a "targeted employment area," 8 U.S.C. § 1153(b)(5)(C)(ii).2
A "targeted employment area" is defined as "a rural area or an area which has experienced high unemployment (of at least 150 percent of the national average rate)," id. § 1153(b)(5)(B)(ii). USCIS permits certain so-called "economic units" to apply for categorization as a "targeted employment area" and designation as a "regional center" through the Immigrant Investor Pilot Program. See Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act of 1993 ("Appropriations Act"), Pub. L. No. 102-395, § 610(a), 106 Stat. 1828, 1874 (Oct. 6, 1992); 8 C.F.R. § 204.6(m). To qualify for designation as a regional center, an economic unit must "promot[e . . .] economic growth," id. § 204.6(e); see Appropriations Act § 610(a), and the proposal for such designation must explain, inter alia, how the economic unit focuses on a geographic region of the United States and will promote economic growth through "increased export sales, improved regional productivity, job creation, or increased domestic capital investment." 8 C.F.R. § 204.6(m)(3)(i). Upon designation as a regional center, a foreign investor may then invest in the center to satisfy, with the requisite threshold amount of funds, the EB-5 employment-creation requirement by creating jobs indirectly. Id. §§ 204.6(j)(4)(iii), 204.6(m)(7)(ii); see also Interim Rule, Immigrant Investor Pilot Program, 58 Fed. Reg. 44,606, 44,607 (Aug. 24, 1993).
Foreign investors seeking EB-5 visas must first file a petition with USCIS, using Form I-526, to petition for classification as an EB-5 investor. See 8 C.F.R. §§ 204.6(a), (c). The burden of proof rests on petitioners to establish, by a preponderance of the evidence, that they are "eligible to receive [the] visa" for which they are petitioning. 8 U.S.C. § 1361; see Matter ofChawathe, 25 I. & N. Dec. 369, 375-76 (2010). USCIS adjudicates I-526 petitions based on the totality of the evidence presented. See id. at 375-76. "Once the petition is processed and [if] a visa becomes available—which may take years—the immigrant advances to 'conditional' lawful permanent resident status." Mirror Lake Vill. LLC v. Wolf, 971 F.3d 373, 375 (D.C. Cir. 2020) (citing 8 C.F.R. § 216.6(a)(4)(iii)-(iv)). Successful adjudication and approval of an I-526 petition makes a petitioner eligible for a visa, but does not automatically provide a visa. At the same time, approved eligibility status permits foreign investors (and their dependent family members) to apply for two-year conditional permanent resident status either from within the United States or overseas from the State Department at the United States consular post in the petitioner's home country. See 8 U.S.C. §§ 1186b(a)(1), 1201(a), 1255(i); 8 C.F.R. § 245.2; 22 C.F.R. §§ 42.32(e), 42.41, 42.42.
After an I-526 petitioner is successfully adjudicated, approved and eligible for a visa, the petitioner is then subject to various limits generally applicable to visa availability and issuance before obtaining the visa. The INA imposes annual limits on the total number of immigrant visas issued each year. See 8 U.S.C. § 1151. As relevant here, the agency first caps the worldwide level of employment-based immigrants each fiscal year, 8 U.S.C. § 1151(d), then limits the number of employment-based visas that may be granted to individuals from a single country to 7 percent, see id. § 1152(a)(2), and further limits the number of EB-5 visas to 7.1 percent of all employment-based visas granted, see id. § 1153(b)(5)(A). That said, "not less than three thousand" EB-5 visas are to be afforded to foreign investors investing in "targeted investment areas" per fiscal year. See 8 U.S.C. § 1153(b). Subject to this allotment 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, avisa 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's priority date, id. At that point, a visa is considered available to that petitioner. See id.
The agency historically managed pending I-526 petitions on a first-in, first-out (FIFO) basis until it switched, on March 31, 2020, to a "visa availability" process, which gives "priority to petitions where visas are immediately available, or soon available." See U.S. CITIZENSHIP AND IMMIGRATION SERVICES, USCIS ADJUSTS PROCESS FOR MANAGING EB-5 VISA PETITION INVENTORY ("EB-5 Processing Announcement") (Jan. 29, 2020), https://www.uscis.gov/news/news-releases/uscis-adjusts-process-for-managing-eb-5-visa-petition-inventory (last accessed Mar. 14, 2021). Using the latter process, the USCIS Immigrant Investor Program Office (IPO), the unit in charge of handling investor program applications, Compl. ¶ 53, is able to designate particular petitions to prioritize for processing by factoring in the availability of EB-5 immigrant visas and determining whether a visa is available or soon to be available to a petitioner. Def.'s Mem. at 6. The agency ascertains visa availability by comparing the petitioner's country of birth with the State Department's Visa Bulletin, which indicates the availability of visas by country. Id. Once an I-526 petition is designated for priority, however, the IPO resumes ordering its adjudicative priority list "in FIFO order." SeeU.S. CITIZENSHIP AND IMMIGRATION SERVICES, QUESTIONS AND ANSWERS ("Questions and Answers") (Sept. 17, 2020), https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/questions-and-answers-eb-5-immigrant-investor-program-visa-availability-approach (last accessed Mar. 14, 2021).
After a petition is designated for priority and rises to the top of the FIFO list, it may be approved and proceed to the National Visa Center for pre-processing. See U.S. DEPARTMENT OF STATE, IMMIGRANT VISA PROCESS, https://travel.state.gov/content/travel/en/us-visas/immigrate/the-immigrant-visa-process/step-1-submit-a-petition.html (last visited Mar. 14, 2021). According to the government, this process is an improvement over the previously...
To continue reading
Request your trial
-
Patel v. United States Citizenship & Immigration Servs.
...14, 2021). Patel argues that this system is only theoretical but “in practice, there's no rhyme or reason to [USCIS's] approach.” Pl.'s Resp. at 5. However, the only factual allegation that makes to support this argument is that he is from a country for which visas are currently available a......