United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued February 21, 2020 Decided October 27, 2020 No. 19-5021 HUASHAN ZHANG AND MASAYUKI HAGIWARA, APPELLEES v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, ET AL., APPELLANTS Appeal from the United States District Court for the District of Columbia (No. 1:15-cv-00995) Christopher A. Bates, Counsel to the Assistant Attorney General, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Matthew J. Glover, Counsel to the Assistant Attorney General, Glenn M. Girdharry, Assistant Director, and Aaron S. Goldsmith, Senior Litigation Counsel. Joshua S. Press, Attorney, entered an appearance. Ira Kurzban argued the cause for appellees. With him on the brief was John P. Pratt. Before: MILLETT, KATSAS, and RAO, Circuit Judges. 2 Opinion for the Court filed by Circuit Judge KATSAS. KATSAS, Circuit Judge: Certain visas are available to prospective immigrants who invest capital in the United States. A longstanding regulation, promulgated in 1991, defines the required capital to include cash or indebtedness secured by the immigrant’s assets. This appeal presents the question whether, under the regulation, the proceeds of a loan qualify as cash or indebtedness. We hold that loan proceeds qualify as cash, and we therefore affirm a decision affording relief to a class of foreign investors denied visas under a contrary interpretation adopted and announced by the government in 2015. I A In 1990, Congress amended the Immigration and Nationality Act (INA) to establish the employment-based, fifth preference immigrant visa program, commonly known as the EB-5 visa program. See Immigration Act of 1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4987–90. This program provides “employment creation” visas to prospective immigrants seeking to engage in a new commercial enterprise in the United States. 8 U.S.C. § 1153(b)(5)(A). To qualify for such a visa, an applicant must have “invested” or be “actively in the process of investing” a minimum amount of “capital” in the new enterprise, which must create full-time jobs for at least ten qualifying workers. Id. In recent years, the minimum required investment has been either $1,000,000 or, if the investment was made in a targeted area, $500,000. See id. § 1153(b)(5)(C); 8 C.F.R. § 204.6(f) (2019). A targeted area is a rural area or one experiencing high employment. 8 U.S.C. § 1153(b)(5)(B)(ii). 3 In 1991, the Immigration and Naturalization Service (INS) promulgated implementing regulations for the EB-5 visa program. From then until 2019, the regulations defined the terms “capital” and “invest” as follows: Capital means cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness secured by assets owned by the alien entrepreneur, provided that the alien entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the petition is based are not used to secure any of the indebtedness. *** Invest means to contribute capital. A contribution of capital in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the alien entrepreneur and the new commercial ...
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