Mokkapati v. Mayorkas

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ADITYA MOKKAPATI, et al., Plaintiffs, v. Civil Action No. 21-cv-1195 (BAH) ALEJANDRO MAYORKAS, Chief Judge Beryl A. Howell in his official capacity as Secretary of the Department of Homeland Security, et al., Defendants. MEMORANDUM OPINION Plaintiffs Aditya Mokkapati and Chaitanya Prasad Gullapalli, both citizens of India living in the United States on H-1B and F-1 visas, respectively, seek to compel defendants—senior officials at the U.S. Department of Homeland Security and the U.S. Citizenship and Immigration Services (“USCIS”)—to adjudicate their Form I-526 petitions that have been pending without decision for over two years. Compl. ¶¶ 23-24, 55, ECF No. 1. Plaintiffs assert that the “continued delay in the adjudication” of their petitions, which if granted may allow them to become lawful permanent residents of the United States, “has caused inordinate and unfair amounts of stress, expense, and hassle” and thus entitles them to relief under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 555(b), 706(1) et seq., and the Mandamus Act, 28 U.S.C. § 1361. Compl. ¶¶ 7, 35-36. During the pendency of plaintiffs’ petitions, statutory authorization for the EB-5 visa program through which plaintiffs seek permanent residence in this country lapsed in June 2021 and was recently renewed by Congress in March 2022. See id. ¶ 52; Defs.’ 1 Notice of Withdrawal of Mot. Dismiss in Part (“Defs.’ Notice”) at 1, ECF No. 18. 1 Defendants now move to dismiss the complaint, under Federal Rule of Civil Procedure 12(b)(6), for failure to state a plausible claim that any alleged delay is “unreasonable as a matter of law.” Defs.’ Mot. Dismiss and Mem. Supp. (“Defs.’ Mem.”) at 13, ECF No. 13. As further explained below, defendants’ motion to dismiss is granted. I. BACKGROUND Summarized below are brief reviews of the statutory, regulatory, and factual background underlying the claims followed by the procedural history of this case. A. Statutory and Regulatory Background The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., authorizes the issuance of visas to different categories of immigrants, including a fifth preference category (“EB-5”) visa issued to immigrants who contribute to “employment creation” by investing in new commercial enterprises that create full-time jobs for American workers. Immigration Act of 1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4989 (Nov. 29, 1990) (codified at 8 U.S.C. § 1153(b)(5)); see 8 C.F.R. § 204.6 (2020) (defining the requirements and process for EB-5 “alien entrepreneur” classification). An I-526 petition is “the mechanism by which individuals who are eligible to immigrate to the United States through the [EB-5 category] obtain recognition from the government that they have satisfied the investment and job-creation requirements of that visa-preference category.” Bromfman v. U.S. Citizenship and Immigr. Servs., No. 20-cv-571 (BAH), WL 5014436, at *1 (D.D.C. Oct. 28, 2021). To qualify for a visa under the EB-5 category, an immigrant must first file an I-526 petition with USCIS and “create full-time employment for not fewer than 10 United States 1 All references to …

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