Immigrant Investors Lose Visa Delay Suit Before D.C. Circuit

A group of South African immigrant investors lost a challenge to what they say are unreasonable wait times in getting their visa petitions adjudicated after a federal appeals court sided with the government in the case.

The EB-5 investor visa applicants alleged in two consolidated cases that US Citizenship and Immigration Services failed to follow its own rules for adjudicating the petitions, instead processing some petitions out of order in instances of favoritism.

Even if the agency was following the official policy, the wait times they faced were unreasonable, they argued.

But suggestions of misconduct don’t support a finding that USCIS isn’t following official policy, the US Court of Appeals for the District of Columbia Circuit found Friday. Nor do wait times alone show unreasonable delays, according to the court.

“The period that Plaintiffs’ petitions have been pending includes both the nine month pause in statutory authorization and the serious practical challenges posed by a global pandemic,” Judge Cornelia Pillard wrote for the court. “Considering those obstacles together with the competing demands on the agency, we cannot say as a matter of law that the processing time itself establishes that USCIS lacks a rule of reason.”

The D.C. Circuit affirmed findings by two lower courts that the plaintiffs hadn’t made a legally viable claim of unreasonable delays. The requested relief, the appeals court found, would also involve “line-jumping” by putting them ahead of other applications who had filed visa petitions earlier.

Slower Processing

The plaintiffs invested hundreds of thousands of dollars in regional center projects through the EB-5 program, which allows immigrants to seek permanent residency by investing a minimum amount in a US business that creates at least 10 jobs. Regional centers—which account for a majority of EB-5 investment—allow applicants to pool funds into larger enterprises like infrastructure projects.

USCIS processes immigrant investor petitions after screening for visa availability based on annual per country caps and then adjudicating petitions on a first-in, first-out basis. Processing times have slowed significantly, even after adoption of that policy in 2020—in part because of a lapse in congressional authorization for the regional center program in 2021.

Judges Florence Pan and Karen LeCraft Henderson joined the decision.

USCIS didn’t immediately respond to a request for comment.

Jesse Bless, an attorney for plaintiffs in one of the cases, said in an email that the circuit court had “succumbed to the fallacy that USCIS is rationally processing immigrant petitions at a reasonable pace – it just so happens that processing times have more than doubled since 2018 and are now taking over 50 months.”

Brad Banias, attorney for plaintiffs in the second consolidated case, said the ruling created a split with other appeals courts. “This decision will lead to more unreasonable delay litigation, not less,” he said in an email.

The case is Da Costa v. Immigration Investor Program Office, D.C. Cir., No. 22-05313, 8/18/23.