Chinese nationals with approved EB-5 visa petitions filed suit under the Administrative Procedure Act against the Secretaries of State and Homeland Security. They sought a court order compelling the State Department to assign them visa numbers and process their applications immediately. The State Department assigns visa numbers in connection with the issuance of immigrant visas to comply with statutory caps. While the State Department issued visas to some appellants after the appeal was filed, the appellants agreed to dismiss claims regarding those individuals. The district court had previously granted the government's motion to dismiss, and the plaintiffs subsequently moved for reconsideration, which was denied.
The court analyzed whether the State Department failed to take a discrete agency action required by law under 5 U.S.C. § 706(1). Citing Da Costa v. Immigration Investor Program Office, the court reiterated that an approved visa petition merely makes a noncitizen eligible to stand in line for a visa number; it does not create an entitlement to issuance. The court noted that the EB-5 program is oversubscribed, meaning investors must wait in a virtual line until a visa becomes available. The appellants relied on 8 U.S.C. § 1153(b)(5)(A), which states that EB-5 visas shall be made available up to a certain percentage of the worldwide level. However, the court found this provision silent on when the State Department must assign a visa number. Because the State Department assigns numbers close to the time it is ready to issue a visa, and no statute prevents this practice, the court concluded there was no unlawfully withheld action.
The decision affirms that approved EB-5 petitioners remain subject to existing visa backlog procedures and cannot compel immediate visa number assignment via the APA. The ruling leaves the timing of number assignment to the State Department's discretion, provided it aligns with statutory caps. The mandate was withheld for seven days to allow for any petitions for rehearing.
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