UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NIKUNJ DEVANI, Plaintiff, v. No. 22-cv-01932 (DLF) U.S. CITIZENSHIP AND IMMIGRATION SERVICES, et al., Defendants. MEMORANDUM OPINION Plaintiff Nikunj Devani filed this action to compel U.S. Citizenship and Immigration Services (USCIS) and several affiliated government officials to process his Form I-526, formally known as “Immigrant Petition by Alien Investor,” under the EB-5 Immigrant Investor Program. Compl. ¶ 1, Dkt. 1. Before the Court is USCIS’s Motion to Dismiss. Dkt. 6. For the reasons that follow, the Court will dismiss this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. I. BACKGROUND A. Statutory and Regulatory Background The EB-5 program aims to promote foreign investment in the United States. See Compl. ¶ 14; 8 U.S.C. § 1153(b)(5)(A). Under the regulations in effect at the time of Devani’s application, a foreign investor could become eligible for an EB-5 immigrant visa if he invested either $1,000,000 for standard investments or $500,000 in a so-called “targeted employment area,” Compl. ¶ 15; 8 C.F.R. § 204.6(f) (2016), which may include projects in designated regional centers that are “involved with the promotion of economic growth” (the Regional Center Program), 8 C.F.R. § 204.6(e), (m) (2016); see also Da Costa v. Immigr. Inv. Program Off., No. 22-cv-1576, 2022 WL 17173186, at *1 (D.D.C. Nov. 16, 2022). The petitioner’s investment must also have created full-time employment for at least ten United States citizens, permanent residents, or other immigrants authorized to be employed in the United States. 8 C.F.R. § 204.6(e), (j)(4) (2016). To obtain an EB-5 visa, a foreign investor must first file a Form I-526 petition with USCIS. Id. § 204.6(a); Compl. ¶ 16. “Once the [I-526] petition is processed and 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 U.S.C. § 1186b(a)); see also Compl. ¶ 19. In adjudicating I-526 petitions, USCIS adheres to a “visa availability” approach, which means it prioritizes adjudicating applications, on a modified “first- in, first-out” basis, by petitioners from countries that have yet to meet their visa availability cap determined by Congress. Compl. ¶ 18; Da Costa, 2022 WL 17173186, at *3. Authorization for the Regional Center Program expired on June 30, 2021. See Da Costa, 2022 WL 17173186, at *2. At that point, USCIS announced that it would not accept new petitions nor act on any pending petitions dependent on the Regional Center Program. Bromfman v. USCIS, No. 20-cv-571, 2021 WL 5014436, at *4 n.4 (D.D.C. Oct. 28, 2021) (citing USCIS, “About the EB 5 Visa Classification” (Oct. 4, 2021), https://www.uscis.gov/working-in-the-united- states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/about-the-eb-5- visa-classification (last accessed Oct. 12, 2021)). Nine months later, the Regional Center Program was reauthorized, and USCIS resumed processing I-526 petitions. See DaCosta, 2022 WL 17173186, at *2 (citing EB-5 Reform and Integrity Act of 2022, Pub. L. 117-103, § 103, 136 Stat. 1070, 1075 (2022)); Bega v. Jaddou, No. 22-cv-02171, 2022 WL 17403123, at …
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