UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MAX VAN HOEGAERDEN HERRMANN TELLES, Plaintiff, Civil Action No. 21-395 (TJK) v. ALEJANDRO MAYORKAS et al., Defendants. MEMORANDUM OPINION Max Telles, an EB-5 immigrant investor visa applicant, sued the Secretary of Homeland Security and related government officials, alleging that they have unlawfully delayed the pro- cessing of his visa application. Defendants moved to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Defendants’ motion will be granted for the reasons explained below. Background A. The EB-5 Immigrant Investor and Regional Center Programs The EB-5 Immigrant Investor Program allocates visas to immigrants “seeking to enter the United States for the purpose of engaging in a new commercial enterprise.” 8 U.S.C. § 1153(b)(5)(A). When Telles applied, an interested immigrant must have invested $1,000,000 in an enterprise, or $500,000 in a “targeted employment area,” i.e., an “area designated by the Sec- retary of Homeland Security . . . as a high unemployment area.” Id. § 1153(b)(5)(C); (D)(viii).1 1 In July 2019, the threshold amounts required for EB-5 investments increased from $1,000,000 to $1,800,000 generally and from $500,000 to $900,000 for targeted employment areas. See Final Rule, EB-5 Immigrant Investor Program Modernization, 84 Fed. Reg. 35,750, 35,808 (July 24, 2019). The investment, in turn, must “create full-time employment” for at least ten United States workers. Id. § 1153(b)(5)(A)(ii). But under the Regional Center Program, “certain so-called ‘economic units’” can “apply for categorization as a ‘targeted employment area’ and designation as a ‘regional center.’” Bromfman v. USCIS, No. 21-cv-571 (BAH), 2021 WL 5014436, at *2 (D.D.C. Oct. 28, 2021). Once designated, an immigrant can “invest the requisite threshold amount of funds into the center” and meet the EB-5 job-creation requirement indirectly. Id.; see also Hulli v. Mayorkas, 549 F. Supp. 3d 95, 98 (D.D.C. 2021) (citing Pub. L. 102-395, title VI, § 610(b), 106 Stat. 1828, 1874 (1992)). To then obtain a visa, the immigrant investor must file a Form I-526 petition with U.S. Citizenship and Immigration Services (“USCIS”), an agency within the Department of Homeland Security. See 8 C.F.R. §§ 204.6(a), (c). “Once the Form I-526 is approved by USCIS, the appli- cant must still wait for a visa to become available, which, the D.C. Circuit has observed, ‘may take years.’” Sychev v. Jaddou, No. 20-cv-3484 (CKK), 2022 WL 951378, at *2 (D.D.C. Mar. 30, 2022) (quoting Mirror Lake Village, LLC v. Wolf, 971 F.3d 373, 375 (D.C. Cir. 2020)). “USCIS generally processes petitions according to a ‘first-in, first-out’ method, but prioritizes petitions from countries ‘where visas are immediately available, or soon available’ based on per-country limits. This process allows visa petitioners from countries where visas are immediately available to more efficiently use their country’s annual allotment of visas.” Palakuru v. Renaud, 521 F. Supp. 3d 46, 48 (D.D.C. 2021), appeal dismissed, No. 21-5048, 2021 WL 1440155 (D.C. Cir. Apr. 15, 2021) (footnote removed); see also USCIS Adjusts Process for Managing EB-5 Visa Petition Inventory, USCIS (Jan. 29, 2020), available …
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