UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) FENG WANG, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 18-cv-1732 (TSC) ) ) MICHAEL R. POMPEO, et al., ) ) ) ) Defendants. ) ) MEMORANDUM OPINION In 1990, Congress created the EB-5 Immigrant Investor program, which grants the U.S. Department of State (“State”) the authority to issue visas to foreign investors who contribute a specific amount of capital to U.S. companies and create at least ten U.S. jobs per investment. The statute creating EB-5 visas provides a path towards permanent residency, but it also sets various limits on the number of visas that may be issued each fiscal year. It also accords accompanying spouses and children of EB-5 principals (or those following to join the principals) the same status and order of consideration as the principal investors. Since 1990, State has counted these derivative spouses and children of principal immigrant investors toward the yearly caps on EB-5 visas. Since that time, there have been no legislative, regulatory or judicial objections to State’s counting policy. Page 1 of 23 Plaintiffs, who contend that this counting policy is unlawful, are thirteen Chinese EB-5 investors provisionally representing a class consisting of: 1 children of investors who have lost or will lose their status as derivative children (i.e., age out) and the class members they provisionally represent; and American Lending Center LLC (“ALC”), which is a U.S.-based regional center sponsor of projects funded with EB-5 investment capital. The Defendants are Michael R. Pompeo, in his official capacity as Secretary of State, Edward J. Ramotowski, in his official capacity as Deputy Assistant Secretary of State for Visa Services, the U.S. Department of State (“State”), and the United States of America. Plaintiffs have moved for a Preliminary Injunction, ECF No. 2 (“Pls. Mot.”), prohibiting Defendants from counting derivatives against the EB-5 caps and requiring Defendants to make available the full number of EB-5 visas that would be available if derivatives were not counted. Having reviewed the parties’ filings (including the brief of amicus curiae, Invest in the USA, and Defendants’ Opposition), the record, and the relevant case law, the court, for reasons set forth below, hereby DENIES Plaintiffs’ Motion for Preliminary Injunction. I. BACKGROUND A. EB-5 Visa Program The EB-5 program was created by the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978 (“The 1990 Act”). The 1990 Act amends the Immigration and Nationality Act, Pub. L. No. 82-414, 66 Stat. 163, 167 (1952) (“INA”), by providing visas under a fifth employment-based preference category, known as EB-5, 8 U.S.C. § 1153(b)(5). Through this 1 This court, on consent of both parties, granted provisional class certification to Plaintiffs for the sole purpose of resolving Plaintiffs’ Motion for Preliminary Injunction. See ECF No. 29. Page 2 of 23 program, immigrant investors can obtain lawful permanent residency in the United States for themselves and their spouses and children who are “accompanying or following to join” them, i.e., their derivatives. INA ...
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