UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA LIWEI AN Plaintiff, v. Civ. Action No. 21-385 ALEJANDRO MAYORKAS, et al., (EGS) Defendants. MEMORANDUM OPINION AND ORDER Plaintiff Liwei An (“Mr. An”), brings this lawsuit against Alejandro Mayorkas, Secretary of the U.S. Department of Homeland Security; Tracy Renaud, Acting Director of the U.S. Citizenship and Immigration Services; Sarah Kendall, Chief, Immigrant Investor Program Office; and the U.S. Citizenship and Immigration Services (“USCIS”) (collectively “Defendants”) pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 706; and the Mandamus Act, 28 U.S.C. § 1361; seeking a writ of mandamus and/or an order pursuant to the APA requiring Defendants to adjudicate his I-526 petition within 30 days. See generally Compl., ECF No. 1. Pending before the Court is Defendants’ Motion to Dismiss. See ECF No. 6. Upon careful consideration of the motion, the opposition and reply thereto, and the applicable law, Defendants’ Motion to Dismiss is DENIED. 1 I. Background The Immigration and Nationality Act (“INA”) authorizes the United States to issue visas to certain qualified immigrants. See Pub. L. No. 101-649 § 121(a) (codified as 8 U.S.C. § 1153(b)(5)(1990)). In 1990, Congress created the EB-5 Visa Program as one of five categories of employment-based immigration preferences to “create new employment for U.S. workers and to infuse new capital into the country.” S. Rep. No. 101-55, at 21 (1989). To be eligible for an EB-5 visa, an alien must “invest[]” a certain amount of “capital” in a “commercial enterprise” to “benefit the United States economy and create full-time employment for not fewer than [ten] United States citizens or aliens lawfully admitted . . . .” 8 U.S.C. § 1153(b)(5)(A). An alien investor must generally invest $1,000,000 of “capital” into a new commercial enterprise, but in economically depressed areas, or “targeted employment areas,” the required amount of capital may be reduced to $500,000. Id. § 1153(b)(5)(C); 8 C.F.R. §204.6(f) (regulating the “required amounts of capital”). Aliens who meet these requirements may file a Form I-526 petition. 8 U.S.C. § 1202(a); 8 C.F.R. § 204.6(a). Mr. An, a native and citizen of China, filed an I-526 petition on July 16, 2015. Compl., ECF No. 1 ¶ 18. As of the filing of the Complaint on February 12, 2021, Mr. An’s petition 2 was pending with no action from Defendants. Id. However, on April 13, 2021, Defendant USCIS issued a request for evidence (“RFE”) seeking additional information from Mr. An. Plaintiff’s Opp’n, (“Opp’n”), ECF No. 6 at 3. II. Standard of Review “A federal district court may only hear a claim over which [it] has subject matter jurisdiction; therefore, a Rule 12(b)(1) motion for dismissal is a threshold challenge to a court's jurisdiction.” Gregorio v. Hoover, 238 F. Supp. 3d 37 (D.D.C. 2017) (citation and internal quotation marks omitted). To survive a Rule 12(b)(1) motion, the plaintiff bears the burden of establishing that the court has jurisdiction by a preponderance of the evidence. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, (1992). Because Rule …
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