Sheiner v. Mayorkas

Gabrielle Helen Sheiner, Plaintiff v. Acting Secretary Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security; Ur M. Jaddou, Director, United States Citizenship and Immigration Services; Alissa Emmel, Chief, Immigrant Investor Program Office, United States Citizenship and Immigration Services; and United States Citizenship and Immigration Services, Defendants¹ OPINION & ORDER Gabrielle Helen Sheiner commenced this action on June 14, 2021, alleging that Alejandro Mayorkas, Tracy Renaud, Sarah Kendall, and United States Citizenship and Immigration Services (collectively, “USCIS”) unreasonably delayed adjudication of her Form I-526 Immigrant Petition by Alien Investor (“I-526 petition”) in violation of the Administrative Procedure Act (“APA”). Sheiner also seeks a writ of mandamus compelling USCIS to adjudicate her I-526 petition, pursuant to the Mandamus Act. Pending before the court is USCIS’ motion to dismiss the compliant in its entirety for failure to state a claim, pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc. 39. For the reasons set forth below, the motion is GRANTED. I. BACKGROUND² The EB-5 Program The Immigration and Nationality Act permits foreign nationals to obtain Lawful Permanent Resident (“LPR”) status by applying for an employment based, fifth-preference (“EB-5″) visa. 8 U.S.C. §1153(b)(5). During the relevant period, a foreign national could obtain an EB-5 visa by investing $500,000 in a new commercial enterprise³ (“NCE”) in a “targeted employment area”⁴ that results in the creation of at least ten full-time jobs for those eligible to work in the United States. Id. §1153(b)(5)(C)-(D). In making this investment, the foreign investor must place his capital at risk. Id. §1153(b)(5)(F). Up until June 30, 2021, the Immigrant Investor Pilot Program (the “Pilot Program”) — also known as the “Regional Center Program” — authorized USCIS to designate certain economic entities as “regional centers” in which foreign nationals could invest through an NCE. 8 C.F.R. §§204.6(j)(4)(iii), (m); 14. Statutory authorization for the Pilot Program expired on July 1, 2021. Between July 1, 2021 and March 15, 2022, USCIS placed I-526 petitions on hold until Congress passed legislation reauthorizing the program. On March 15, 2022, President Biden passed the Consolidated Appropriations Act of 2022 which reinstated the Pilot Program with some amendments. See The EB-5 Reform and Integrity Act of 2022, Pub. L. No. 117-103. Since then, USCIS has announced they have resumed the processing of I-526 petitions based on the Regional Center Program which were filed before statutory authorization lapsed. See USCIS, Policy Manual, Volume 6, Part G, Chapter 1, available at /https://www.uscis.gov/policy-manual/volume-6-part-g-chapter-1. The Court takes judicial notice of the USCIS Policy Manual as a public record. See Akran v. United States, 997 F. Supp. 2d 197, 203 (E.D.N.Y. 2014) (internal quotation marks and citations omitted) (recognizing that agency and administrative records are public records of which a court may take judicial notice). The first step to obtain an EB-5 visa is to file an I-526 petition with USCIS. See 8 C.F.R. §204.6(a); 16. According to Sheiner, USCIS has regularly stated at public stakeholder meetings that its goal for adjudicating I-526 petitions is six months or less. 32. Likewise, in processing immigrant applications, including I-526 petitions, 8 U.S.C. §1571(b) states that “[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application[.]“ 31. If the I-526 petition is approved, the investor may then apply for two-year conditional LPR status.⁵ See 8 U.S.C. §1186b; 16. Once an applicant receives conditional LPR status, he may work anywhere in the United States and start a business. 19. The EB-5 investor, however, must maintain his investment at risk until the end of the two-year conditional residence period. 17. At the conclusion of the two-year conditional period, if USCIS determines that the investor has fulfilled the EB-5 requirements, it will grant him an EB-5 visa and unconditional LPR status. 16. The Immigration and Nationality Act limits the number of immigrant visas issued to foreign nationals and the percentages of visas allotted to each country of origin. 8 U.S.C. §§1151, 1152. On January 29, 2020, USCIS issued a press release (the “Press Release”), announcing that it was changing its process for reviewing I-526 petitions from its prior “first-in, first-out,” approach to a “visa availability” approach. See Press Release, U.S. Citizenship and Immigration Services, USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory (Jan. 29, 2020), https://www.uscis.gov/archive/ uscis-adjusts-process-for-managing-eb-5-visa-petition-inventory.⁶ In contrast to its previous approach, i.e., reviewing petitions in the order in which they were filed, USCIS now prioritizes petitions filed by individuals from countries where visas are immediately available. USCIS determines whether a visa is available to a petitioner by comparing his country of birth with the Department of State’s Monthly Visa Bulletin, which indicates the availability of visas by country. Id.; see Department of State, Bureau of Consular Affairs, Visa Bulletin for June 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html (last visited March 17, 2023).⁷ USCIS manages their inventory by factoring in whether a visa is available to a petitioner and whether the NCE associated with that petitioner has been approved. See USCIS, Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach (April 2, 2021) https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/questions-and-answers-eb-5-immigrant-investor-program-visa-availability-approach.⁸ When a visa is determined to be available to a petitioner under these two criteria, USCIS generally manages these petitions on a first-in-first-out basis. See USCIS, Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach (April 2, 2021) https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/questions-and-answers-eb-5-immigrant-investor-program-visa-availability-approach. By consequence, the visa availability approach purportedly enables petitioners to better use their annual-per-country allocation of EB-5 visas and permits qualified petitioners from traditionally underrepresented countries to have their petitions approved in a more timely fashion. See id.; Press Release. Sheiner Sheiner is a citizen of Canada who currently resides in New York City.

4, 18. On June 14, 2019, she filed an I-526 petition with USCIS after investing $500,000 into an NCE named Cleveland International Fund — One University Circle Apartments, Ltd. (the “Fund”), through the then-operative Pilot Program.