Adrian Da Costa v. Immigration Investor Program Office, No. 22-5313 (D.C. Cir. 2023)
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Noncitizens can qualify for employment-based U.S. visas by investing in designated commercial enterprises that create jobs in the United States. After making a qualifying investment, a noncitizen must petition the United States Citizenship and Immigration Services (USCIS) for the visa. In these two consolidated appeals, investors who have waited several years for USCIS to approve their petitions sue the agency for what they see as unreasonably delayed action in violation of the Administrative Procedure Act. The district courts in both cases granted USCIS’s motions to dismiss, holding that the investors’ allegations do not show USCIS’s delay to be unreasonable under the circumstances.
The DC Circuit affirmed. The court explained that Plaintiffs do not state a claim of unreasonable delay. The availability-screened queue is a rule of reason, and the complaints do not allege that USCIS follows a process other than its officially stated policy. Ruling in favor of Plaintiffs would require USCIS to process Plaintiffs’ petitions ahead of those of other petitioners who have been waiting as long or longer for their EB-5 petitions to be adjudicated. Congress did not set a deadline for agency action, Plaintiffs allege primarily financial harm, and the allegations do not point to government impropriety.
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