Delaware Valley Regional Center, LLC v. United States Department of Homeland Security

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 5, 2024 Decided July 9, 2024
No. 23-5175
DELAWARE VALLEY REGIONAL CENTER, LLC, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:23-cv-00119)
Kathleen R. Hartnett argued the cause for appellants. With
her on the briefs were Patrick J. Hayden and Adam M. Katz.
Aaron S. Goldsmith, Senior Litigation Counsel, U.S.
Department of Justice, argued the cause for appellees. With
him on the brief were Brian M. Boynton, Principal Deputy
Assistant Attorney General, and Glenn M. Girdharry, Assistant
Director.
Before: PILLARD, WALKER and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge PAN.

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PAN, Circuit Judge: Three Chinese individuals
(collectively, the “Investor Appellants”) invested in a project
to improve Philadelphia’s transit infrastructure as part of an
effort to obtain EB-5 visas — i.e., visas for foreign investors
who create jobs in the United States. See 8 U.S.C.
§ 1153(b)(5). United States Citizenship and Immigration
Services (“USCIS”) found the Investor Appellants eligible for
EB-5 visas and approved their visa applications. But the EB-5
visa program is oversubscribed, so the Investor Appellants are
in a “line” waiting for visas to become available.
In 2022, Congress changed the eligibility requirements for
EB-5 visas in the EB-5 Reform and Integrity Act of 2022
(“RIA”). See Pub. L. 117-103, § 102, 136 Stat. 49, 1070 (2022)
(codified at 8 U.S.C. § 1153(b)(5)). The RIA created a new
category of “reserved” EB-5 visas for foreigners who invest in
“infrastructure projects” that meet certain requirements. See 8
U.S.C. § 1153(b)(5)(B)(i)(I)(cc). After the passage of the RIA,
USCIS stated that it would determine whether a visa
applicant’s investment is in a qualified “infrastructure project”
at the time that USCIS adjudicates the “project application.”
That created uncertainty for the Investor Appellants. They
believed that they should be deemed eligible for the new
“reserved” visas based on their past investments in
infrastructure; and they interpreted USCIS’s statements about
prospectively adjudicating “project applications” as precluding
consideration of investments in infrastructure projects that
already had been approved by USCIS under the prior
regulatory regime.
The Investor Appellants and their project sponsors (the
“Project Appellants”) sued the Department of Homeland
Security and USCIS, arguing that previous investments in
already-approved infrastructure-focused projects should be
eligible for reserved EB-5 visas under the RIA. The district

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court dismissed the complaint, ruling that the government had
taken no final agency action under the RIA that may be
challenged at this time. Because we agree that the arguments
made by Appellants are premature, we affirm.
I.
A.
As part of the Immigration Act of 1990, Congress
established the EB-5 immigrant-investor visa program. See
Pub. L. No. 101-649, § 121, 104 Stat. 4978, 4987 (1990)
(codified at 8 U.S.C. § 1153(b)(5)). The EB-5 program is so
named because it is the “fifth employment-based visa category
available to foreign nationals” under the Immigration and
Nationality Act. Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373,
374 (D.C. Cir. 2020) (first citing 8 U.S.C. § 1101 et seq.; then
citing id. § 1153(b)(5)). EB-5 visas are allotted to immigrants
“who have invested capital in a new commercial enterprise that
will benefit the United States economy and create full-time
employment for ten citizens or non-citizens with work
authorization.” Id. (internal quotation marks and alterations
omitted) (quoting 8 U.S.C. § 1153(b)(5)(A)). As explained in
more detail below, an immigrant can satisfy the EB-5
employment-creation requirement by creating jobs indirectly
through USCIS’s Regional Center Program. See Immigrant
Investor Pilot Program, Interim Rule, 58 Fed. Reg. 44606,
44607 (Aug. 24, 1993) (noting that “immigrants participating
in the [Regional Center] program may credit jobs they create
indirectly”).
The EB-5 visa process is administered by USCIS and the
State Department. USCIS processes and approves the visa
petitions — i.e., it assesses whether petitioners qualify for the
requested visa. See 8 C.F.R. §§ 100.1, 103.2, 254.2(a). The
State Department determines how many visas are available and

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allocates visas to approved applicants. See 22 C.F.R. §§ 42.41,
42.51. Moreover, the State Department limits the number of
visas that may be issued to nationals from each foreign country.
See 8 U.S.C. § 1152(a)(2) (Visas available to applicants from
any individual country will “not exceed 7 percent” of the total
number of family-sponsored and employment-based visas
made available in that fiscal year.). Once an immigrant
investor obtains an EB-5 visa, they may apply for a two-year
conditional lawful-permanent-resident status. Id. § 1186b(a);
8 C.F.R. §§ 216.1, 245.2. At the end of the conditional period,
the investor may file a petition to become a permanent resident
in the United States. See id. § 1186b(c), (d); 8 C.F.R. § 216.6.
Because the EB-5 visa program is oversubscribed, an
immigrant investor whose EB-5 petition is approved by USCIS
must wait in a virtual “line” until a visa becomes available. See
Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 336 (D.C.
Cir. 2023). The EB-5 process is especially lengthy for
investors from China — due to the high number of Chinese
applicants, many of them wait years for an available visa. For
example, in April 2024, visas were finally becoming available
for approved EB-5 petitioners from China who had filed their
petitions in December 2015. USCIS, When to File Your
Adjustment of Status Application for Family-Sponsored or
Employment-Based Preference Visas: April 2024,
https://perma.cc/YE45-U5AW (last visited July 3, 2024)
(“April 2024 EB-5 Visa Bulletin Charts”).
In 1992, Congress created a pilot program for obtaining
EB-5 visas that is now called the Regional Center Program.
See Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act, 1993,
Pub. L. No. 102-395, § 610(a), 106 Stat. 1828, 1874 (1992).
The program allows immigrant investors to satisfy the EB-5
employment-creation requirement by investing through

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regional centers, which direct the funds to job-creation
projects. Regional centers are USCIS-approved business
entities that work in specified geographic areas to facilitate the
pooling of EB-5 investments. 8 C.F.R. § 204.6(m)(3)(i) (A
regional center must submit a proposal which “describes how
[it] focuses on a geographical region of the United States, and
how it will promote economic growth.”); Doe v. McAleenan,
929 F.3d 478, 480 (7th Cir. 2019) (“Regional centers are
essentially clearinghouses for eligible investment
opportunities.”). As of 2023, there were 640 approved regional
centers in the United States. USCIS, Approved EB-5
Immigrant Investor Regional Centers, https://perma.cc/PUM2-
TWHL (last visited July 3, 2024). And as of 2021, over ninety
percent of EB-5 applicants invested in the United States
through a regional center. IIUSA, IIUSA Data Analysis:
Impact of the Lapse of the EB-5 Regional Center Program on
Investors, Investments and Job Creation,
https://perma.cc/9LNS-QNZS (Aug. 20, 2021).
Before the RIA was enacted, an EB-5 applicant
participating in the Regional Center Program could invest
either $1 million in the United States generally or $500,000 in
a “targeted employment area” to qualify for an EB-5 visa. See
8 U.S.C. § 1153(b)(5)(C) (2006); see also Zhang v. USCIS, 978
F.3d 1314, 1316 (D.C. Cir. 2020). A “targeted employment
area” was defined as a rural area or an area experiencing high
unemployment. See 8 U.S.C. § 1153(b)(5)(B)(ii) (2006).
Either type of investment could be made through a regional
center. See Regional Center Designation, Reporting,
Amendments, and Termination, USCIS Policy Manual (2021),
Vol. 6, Part G, Ch. 3, https://perma.cc/MZA2-XCEP.
Prior to the RIA, USCIS allowed visa applicants to submit
optional business plans that described their prospective
proposals for job creation. See 8 C.F.R. § 204.6(j)(4)(i) (noting

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that evidence of job creation can be shown through “a
comprehensive business plan”). As part of the Regional Center
Program, USCIS also allowed regional centers to submit
business plans that outlined the job-creation potential of their
sponsored investment projects. See USCIS, Policy
Memorandum, EB-5 Adjudications Policy at 14 n.2, 23,
https://perma.cc/U9PW-G5AE (May 30, 2013) (“Policy
Memorandum”). If USCIS approved a regional center’s
business plan, individual investors who petitioned for EB-5
visas after investing in the project described in the business
plan enjoyed a streamlined application process: They could
append the approved business plan to their visa applications
and receive “deference” from USCIS in its assessment of
whether the petitioners satisfied the job-creation requirement.
See id. at 21, 23; see also J.A. 43 (describing Delaware Valley
Regional Center’s application and business plan). This
informal practice allowed USCIS to examine and approve a
job-creation proposal just one time for each regional-center
project, rather than repeating the analysis for each visa
petitioner who invested in that project. See Policy
Memorandum at 23 (“This policy of deference is an important
part of ensuring predictability for EB-5 investors and
commercial enterprises . . . , and also conserves scarce agency
resources, which should not ordinarily be used to duplicate
previous adjudicative efforts.”).
In March 2022, President Biden signed into law the EB-5
Reform and Integrity Act of 2022. The RIA retains the
Regional Center Program and still enables EB-5 petitioners to
“pool[] their investments” together through a regional center,
but it imposes new restrictions and requirements on regional
centers. See 8 U.S.C. § 1153(b)(5)(E)(i); see also, e.g., id.
§ 1153 (b)(5)(G) (requiring annual statements from regional
centers), (b)(5)(H)(ii)(II) (prohibiting foreign government
involvement in regional centers).

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As relevant here, the RIA created a new type of EB-5 visa
— a “reserved visa” — for investors who make certain types
of investments. 8 U.S.C. § 1153(b)(5)(B)(i)(I).1 The reserved
visas are set aside from the general pool of EB-5 visas. In
particular, the RIA provides that two percent of EB-5 visas will
be “reserved” for “qualified immigrants who invest in
infrastructure projects.” Id. § 1153(b)(5)(B)(i)(I)(cc). Because
there currently is no backlog for reserved visas, investors who
qualify for reserved visas effectively have priority over others
who are in the regular line for EB-5 visas. For example,
qualifying Chinese investors could receive reserved EB-5 visas
as soon as their visa applications are approved, even though
Chinese applicants in line for non-reserved EB-5 visas
currently face a nine-year backlog. See April 2024 EB-5 Visa
Bulletin Charts (noting that non-reserved EB-5 visas are
currently available for Chinese investors with a priority date
from December 2015, whereas there is no line for reserved
infrastructure-project visas, which are “current”).
The RIA provides a statutory definition of the type of
“infrastructure project” that qualifies an investor for a reserved
1 The “reserved visa” provision states:
Of the visas made available under this paragraph in
each fiscal year—
(aa) 20 percent shall be reserved for qualified
immigrants who invest in a rural area;
(bb) 10 percent shall be reserved for qualified
immigrants who invest in an area designated by the
Secretary of Homeland Security under clause (ii)
as a high unemployment area; and
(cc) 2 percent shall be reserved for qualified
immigrants who invest in infrastructure projects.
8 U.S.C. § 1153(b)(5)(B)(i)(I).

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visa. 8 U.S.C. § 1153(b)(5)(D)(iv). A qualified “infrastructure
project” must be presented to USCIS in the form of a “filed or
approved business plan.” Id.; see also id. § 1153(b)(5)(F)(i)(I)
(requiring, as part of a regional-center application, “a
comprehensive business plan for a specific capital investment
project”). Furthermore, (1) the project must be administered
by a governmental entity, (2) the governmental entity must
contract with a regional center to receive capital investment
under the Regional Center Program, and (3) the project must
use the capital investments to maintain, improve, or construct
a public works project. Id. § 1153(b)(5)(D)(iv).2
In addition, the RIA raised the minimum qualifying
investment amounts. Whereas the statute and accompanying
regulations previously required an investment of $1,000,000
for the general EB-5 program or $500,000 for targeted
employment areas, see 8 U.S.C. § 1153(b)(5)(C) (2006); 8
C.F.R. § 204.6(f) (2016), investor applicants now must invest
$1,050,000 to qualify for EB-5 visas generally, or $800,000 in
targeted employment areas or statutorily defined infrastructure
2 Subparagraph (D)(iv) provides:
The term “infrastructure project” means a capital
investment project in a filed or approved business
plan, which is administered by a governmental
entity (such as a Federal, State, or local agency or
authority) that is the job-creating entity contracting
with a regional center or new commercial enterprise
to receive capital investment under the regional
center program described in subparagraph (E) from
alien investors or the new commercial enterprise as
financing for maintaining, improving, or
constructing a public works project.
8 U.S.C. § 1153(b)(5)(D)(iv).

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projects, 8 U.S.C. § 1153(b)(5)(C). The RIA also provides for
automatic inflation-based adjustments of these amounts every
five years and requires the Secretary of Homeland Security to
publish the updated amounts in the Federal Register. See id.
§ 1153(b)(5)(C)(iii).
Under the post-RIA regulatory regime, regional centers
must submit two separate forms, the latter of which requires a
business plan. First, an “entity seeking regional center
designation must apply for such designation” using Form I-
956. USCIS, EB-5 Questions and Answers,
https://perma.cc/Z5SY-MQFB (Apr. 3, 2024). Second, after
USCIS approves the regional center’s designation, the regional
center must apply to USCIS for approval of each project that it
intends to sponsor by filing a Form I-956F. Id. (explaining that
Form I-956F must be filed “for each particular investment
offering through a new commercial enterprise that the regional
center intends to sponsor”); USCIS, Instructions for Form I-
956F, Application for Approval of an Investment in a
Commercial Enterprise at 1, https://perma.cc/C9XK-A2WR
(Apr. 1, 2024) (“Form I-956F Instructions”) (noting that Form
I-956F must be submitted to “request approval of [the]
project”). After a regional center has filed a Form I-956F,
individual investors may file petitions to receive visas based on
their investments in the project referenced in the Form I-956F.
See USCIS, EB-5 Questions and Answers,
https://perma.cc/Z5SY-MQFB (Apr. 3, 2024).
B.
After the enactment of the RIA, USCIS explained in two
forums — a Q&A and a policy manual — how it would
administer EB-5 visas under the new statute. First, in April
2022, USCIS posted on its website a set of “EB-5 Questions
and Answers” (the “Q&A”) related to the RIA. One question

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and answer discussed the definition of an “infrastructure
project” under the new law:
[Q:] How can I request that USCIS determine
whether a specific capital investment project
meets the definition of “infrastructure project”?
[A:] USCIS will determine if the investment is
in a qualified infrastructure project when
adjudicating the regional center’s project
application.
An infrastructure project is a capital investment
project in a filed or approved business plan,
which is administered by a governmental entity
(such as a federal, state, or local agency or
authority) that is the job-creating entity
contracting with a regional center or new
commercial enterprise to receive capital
investment under the Regional Center Program
from alien investors or the new commercial
enterprise as financing for maintaining,
improving, or constructing a public works
project.
J.A. 112 (emphasis added). The posted answer largely quotes
the definition of “infrastructure project” found in the RIA; but
it also includes a statement that USCIS will determine whether
a project is a qualified “infrastructure project” when it
adjudicates the regional center’s “project application.” The
term “project application” refers to the Form I-956F that a
regional center must submit to USCIS to seek approval of an
EB-5-eligible project. See Form I-956F Instructions at 1.

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Thereafter, in October 2022, USCIS published an update
to its Policy Manual.3 The relevant portion of the Policy
Manual states:
For regional center-based petitions filed on or
after May 14, 2022, investors may qualify for
the reduced investment amount by investing in
an infrastructure project. These projects are
ones:
• That are administered by a
governmental entity (such as a federal,
state, or local agency or authority);
• Where the governmental entity, which
serves as the job-creating entity,
contracts with a regional center or new
commercial enterprise to receive capital
investment under the regional center
program from investors or the new
commercial enterprise; and
• That involve financing for maintaining,
improving, or constructing a public
works project.
USCIS determines whether a project meets the
definition of infrastructure project during
adjudication of the Form I-956F. A standalone
3 The Policy Manual is USCIS’s “centralized online repository
for USCIS’ immigration policies.” USCIS, Policy Manual,
https://perma.cc/S52P-CUQR (last visited July 3, 2024). The Policy
Manual “contains the official policies of USCIS” and “is to be
followed by all USCIS officers in the performance of their duties.”
Id. The Manual is available to the public on USCIS’s website.

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investor cannot establish eligibility through an
infrastructure project.
J.A. 64 (emphasis added). The Policy Manual largely quotes
the definition of “infrastructure project” under the statute; but
it adds a statement that USCIS will determine whether a project
constitutes an “infrastructure project” at the time that the
agency adjudicates a project-approval application — i.e., the
Form I-956F.
C.
Appellants are business entities and individual investors
who participate in the Regional Center Program. Delaware
Valley Regional Center, LLC (“DVRC”) is a Philadelphia-
based regional center that received USCIS approval in 2014 to
“direct foreign investment into regionally significant
development projects in the Delaware Valley metropolitan
area.” J.A. 13–14. DVRC has raised $623 million from
foreign investors to loan to governmental entities in support of
infrastructure initiatives. DVRC later received USCIS
approval of a business plan for the Southeastern Pennsylvania
Transportation Authority (“SEPTA”) Project. That project
aimed to secure investments totaling $300 million for “[m]ass
transit capital improvement” in the greater Philadelphia area.
See id. at 45. DVRC raised $239.5 million from 479 investors
for the SEPTA Project; approximately 90% of the investors are
Chinese nationals. Appellant DVRC SEPTA II, LP is the
limited partnership that owns the SEPTA Fund — the entity
organized by DVRC “to receive investor funds and, in turn,
provide those funds to SEPTA.” J.A. 12.
Investor Appellants Wenjun Wang, Jialun Wang, and
Cuijuan Liu are three Chinese nationals who invested in the
SEPTA Project. Relying on those investments, they filed pre-
RIA petitions for EB-5 visas, which USCIS approved in 2017

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and 2018. Investor Appellants satisfied the pre-RIA Regional
Center Program’s requirements by each investing $500,000 in
a targeted employment area. Each of the Investor Appellants
has waited at least five years for an EB-5 visa since the
approval of his or her petition.
Appellants collectively contend that the Investor
Appellants’ investments in the SEPTA Project qualify them for
reserved EB-5 visas under the RIA. Appellants assert that the
SEPTA Project meets all the statutory requirements to qualify
as an “infrastructure project” because (1) the SEPTA Project is
an “investment project in a filed or approved business plan”;
(2) the SEPTA Project is “administered by a governmental
entity”; (3) SEPTA contracted with DVRC, a regional center,
to receive capital investment under the Regional Center
Program; and (4) the SEPTA Project provides “financing” for
improvements and construction for SEPTA’s public transit
system. J.A. 33 (emphasis omitted) (quoting 8 U.S.C.
§ 1153(b)(5)(D)(iv)). In addition, Investor Appellants claim
that their investments of $500,000 apiece in the SEPTA Project
should be deemed sufficient to satisfy the RIA’s investment
threshold.4 Thus, Appellants contend, the Investor Appellants
4 Investor Appellants appear to fall short of the RIA’s
requirement that those who seek infrastructure-project visas must
invest at least $800,000 in a qualifying infrastructure project. See 8
U.S.C. § 1153(b)(5)(C)(ii). Investor Appellants argue that they
nonetheless qualify for two reasons. First, they claim that the
monetary thresholds “attach to [visa-petition] approvals, not the
available visas.” Appellant Br. 58. They therefore contend that, by
investing $500,000 prior to the passage of the RIA, they each
received approval of their visa petitions, which is enough to qualify
them to be considered for reserved infrastructure-project visas. See
id. at 57 (arguing that “the [visa] petition grants noncitizens approval
to stand in line for a visa”). Second, Investor Appellants assert that

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have met the requirements to receive reserved infrastructure-
project visas.
Appellants believe that USCIS will not approve reserved
EB-5 visas for the Investor Appellants, despite their asserted
eligibility for such visas. Appellants filed a complaint in the
district court, arguing that USCIS’s statements about the RIA
in the Q&A and the Policy Manual constitute a USCIS policy
that is contrary to the RIA and arbitrary and capricious. They
claim that the Q&A and the Policy Manual “adopt[] an
unlawful policy” because USCIS has stated that it will make
infrastructure-project determinations only when a business
plan is filed. J.A. 11. Such a policy, according to Appellants,
excludes previously approved business plans like theirs from
ever being evaluated for infrastructure-project eligibility under
the RIA, and thus deprives the Investor Appellants of any
opportunity to secure reserved EB-5 visas.
The district court granted the government’s motion to
dismiss, concluding that “what Plaintiffs challenge is not final
agency action under the [Administrative Procedure Act
(“APA”)].” J.A. 88. The court held that both the Q&A and the
Policy Manual failed the test for final agency action because
neither “marks the consummation of USCIS’s decision-making
policy in the context of the investor visa statute,” id. at 97, nor
“ha[s] any actual legal effect,” id. at 99. Instead, the court
concluded that the agency’s statements “merely repeat[] what
the [RIA] already requires.” Id. at 101. Appellants filed a
timely appeal. We have jurisdiction under 28 U.S.C. § 1291.
the $500,000 and $800,000 investments are essentially “of identical
size” because the increased threshold in the RIA is simply meant to
account for inflation. See id. at 58. We do not reach the merits of
whether Investor Appellants qualify for infrastructure-project visas
under the RIA and therefore do not address these arguments.

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II.
The district court dismissed Appellants’ complaint for lack
of subject-matter jurisdiction, reasoning that Appellants had
not identified any final agency action under the APA. But the
question of finality is a threshold question for suit under the
APA: It does not alter federal-court jurisdiction. See Trudeau
v. Fed. Trade Comm’n, 456 F.3d 178, 185 (D.C. Cir. 2006)
(explaining that “the APA neither confers nor restricts
jurisdiction”). Instead, the finality inquiry operates as a
gateway to whether Appellants can state a claim under the
APA. Id. (“If there was no final agency action, there is no
doubt that appellant would lack a cause of action under the
APA.” (cleaned up)). Thus, although the district court erred in
dismissing the complaint for lack of jurisdiction, if the
complaint fails to state a claim on which relief can be granted
we can affirm the judgment of dismissal under Federal Rule of
Civil Procedure 12(b)(6). Id. at 187. We review de novo
whether Appellants stated a claim.
III.
After the enactment of the RIA, USCIS took steps to
inform the public about how the agency would administer the
process of reviewing petitions for reserved EB-5 visas. In the
Q&A and the Policy Manual, the agency stated that it would
determine whether an investment project is an EB-5-eligible
“infrastructure project” upon the filing of an application.
Appellants, however, believe that the agency did more.
According to Appellants, USCIS’s actions have foreclosed the
possibility that business plans approved before the passage of
the RIA — like the business plan for the SEPTA Project —
could ever be considered for reserved-visa eligibility.
Appellants argue that the agency’s refusal to consider pre-RIA-

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approved business plans is contrary to the RIA. See 8 U.S.C.
§ 1153(b)(5)(D)(iv).
In our view, Appellants misunderstand the agency
statements at issue. The Q&A and the Policy Manual merely
make explicit that those who seek to demonstrate their
eligibility for infrastructure-project visas must do so by filing
an application. Accordingly, the statements in the Q&A and
the Policy Manual do not constitute final agency action.
Moreover, as government counsel confirmed at oral argument,
Investor Appellants are not precluded from applying for
reserved EB-5 visas.
A.
Under the APA, courts may review only “final agency
action.” 5 U.S.C. § 704. To be “final,” an agency action must
meet two conditions: It must (1) “mark the consummation of
the agency’s decisionmaking process”; and (2) determine
“rights or obligations” or impose “legal consequences.”
Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (cleaned up).
An agency action does not impose binding duties — and
therefore causes no “legal consequences” — when it “merely
clarifies . . . existing duties” under a statute. Catawba Cnty. v.
EPA, 571 F.3d 20, 34 (D.C. Cir. 2009).
The RIA created a new category of reserved infrastructure-
project visas and charged USCIS with assessing who qualifies
for those visas. That assessment requires the agency to
determine whether a visa applicant has invested in a qualified
“infrastructure project” under the statute. See 8 U.S.C.
§ 1153(b)(5)(B)(iii)(I) (“The Secretary of Homeland Security
shall determine whether a specific capital investment project
meets the definition of ‘infrastructure project’ set forth [under
the statute].”). An immigrant investor who seeks a reserved
infrastructure-project visa must work with a regional center to

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apply in two steps: First, the regional center applies for its
proposed project to receive qualified “infrastructure project”
status by filing a Form I-956F; and second, the individual
immigrant applies for a reserved visa, based on an investment
in the qualified “infrastructure project.”
In the challenged statements, USCIS explained how it
would administer the first step of the process — i.e., the
designation of an investment project as a qualified
“infrastructure project.” In the Q&A that was posted on its
website, USCIS stated that it “will determine if the investment
is in a qualified infrastructure project when adjudicating the
regional center’s project application.” J.A. 112. Later, in the
Policy Manual, USCIS explained that it will “determine[]
whether a project meets the definition of infrastructure project
during adjudication of the Form I-956F,” i.e., the project-
approval application. J.A. 64. Both statements made explicit
an existing requirement: that parties who wish to qualify for
reserved EB-5 visas must demonstrate their eligibility to the
agency. The existing duty to demonstrate such eligibility for a
requested benefit extends to regional centers that seek to
sponsor EB-5 applicants’ “infrastructure project[s],” as well as
individual immigrants who seek reserved visas.
The statute mandates that the agency “shall determine” if
a capital-investment project is a qualified “infrastructure
project,” 8 U.S.C. § 1153(b)(5)(B)(iii)(I), and such a
determination cannot be made without information from the
sponsoring regional center, which presumptively must be
provided in an application. Under governing regulations,
USCIS routinely assesses qualifications for immigration
benefits at the time of application. See 8 C.F.R. § 103.2(b)
(requiring applicant to “establish that he or she is eligible for
the requested benefit at the time of filing the benefit request”).
The USCIS statements in the Q&A and the Policy Manual thus

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do not impose any new “concrete consequences” on Appellants
when considered within the context of “the specific statute[]
and regulations that govern” this case. Cal. Cmtys. Against
Toxics v. EPA, 934 F.3d 627, 637 (D.C. Cir. 2019). Consistent
with what is plainly contemplated by the RIA, USCIS stated
only that it requires regional centers and visa applicants to
submit forms that demonstrate their eligibility for a new
benefit. Thus, the statements in the Q&A and the Policy
Manual merely “clarif[y] existing duties” and do not constitute
“final agency action.” Catawba Cnty., 571 F.3d at 34.
Appellants argue that USCIS has issued an interpretation
of the RIA that is contrary to law. Specifically, they infer from
USCIS’s statements in the Q&A and the Policy Manual that the
agency has categorically excluded pre-RIA-approved business
plans from consideration for infrastructure-project status. See
J.A. 12–13 (asserting that “the Policy means that Defendants
will never make determinations regarding already-‘approved’
projects and thus never will determine formally that the SEPTA
Project is an ‘infrastructure project’”). That decision,
according to Appellants, is contrary to the text of the RIA,
which requires the Secretary of Homeland Security to
determine whether projects in “filed or approved business
plans” are “infrastructure project[s].” See 8 U.S.C.
§ 1153(b)(5)(D)(iv). Appellants contend that their SEPTA
Project business plan was previously “approved” when they
applied for regular EB-5 visas, and that the prior approval of
their business plan makes them eligible for reserved visas.
Appellants have not established that USCIS has adopted
that interpretation of the RIA. Nothing in the challenged
statements precludes a previously approved EB-5 petitioner
from filing a new petition for a reserved visa, based on an
infrastructure investment that complied with pre-RIA
requirements. DVRC can file a Form I-956F to seek status as

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a qualified “infrastructure project” for the SEPTA Project, and
that application can cross-reference the previously approved
business plan. See Response Br. 63 (“[T]he [Q&A] merely
states that USCIS will determine whether an investment is a
qualified infrastructure [project] ‘when adjudicating’ the Form
I-956F application, the form that a regional center submits to
USCIS to make this determination.”). At oral argument,
USCIS confirmed that this path is open to DVRC, and that “the
project application might be approved.” Oral Arg. Tr. at 41:2-
3.5 Moreover, upon approval of DVRC’s application for
designation of the SEPTA Project as a qualified “infrastructure
project,” we see nothing that prevents the individual Investor
Appellants from applying for reserved EB-5 visas based on
their investments in the SEPTA Project — even if those
investments also were previously approved.
In sum, we understand USCIS’s statements in the Q&A
and the Policy Manual merely to articulate the normal process
for seeking an immigration benefit: Parties who seek to
comply with the requirements for reserved visas under the RIA
must establish their eligibility in applications filed with USCIS.
See 8 C.F.R. § 103.2(b). This means that a regional center must
apply for its proposed project to receive qualified
“infrastructure project” status by filing a Form I-956F; and
5 See Oral Arg. Tr. at 39:15–19 (“[T]here is no reason the
appellant in this case, DVRC, the regional center, cannot file a Form
I-956F today. We’re not saying that they are barred from doing so
simply because they were designated under prior law. They can file
it today.”); see also id. at 39:21–40:3 (explaining that a regional
center with a previously-approved business plan could check the
“infrastructure project” box on page 6 of the Form I-956F and attach
the already-approved “business plan” thereto); see also USCIS,
Form I-956F, Application for Approval of an Investment in a
Commercial Enterprise at 6, https://perma.cc/6C8X-73MW (last
visited July 3, 2024).

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individual immigrants must then apply for a reserved visa,
based on their investment in that qualified “infrastructure
project.” If either type of application is rejected, the
unsuccessful applicant is entitled to appeal the denial within
USCIS’s internal procedures, and the agency record
presumably will include the reasons for the denial. Thereafter,
an unsuccessful applicant may seek judicial review of that final
agency action in this court. See 8 U.S.C. § 1153(b)(5)(P)(i),
(ii). Appellants must follow that well-established procedure,
rather than anticipate that their applications will be rejected
based on an unfavorable interpretation of the RIA. Appellants
have not established that anything in USCIS’s policies prevents
them from filing applications for infrastructure-project
designation and reserved EB-5 visas, in reliance on the SEPTA
Project and prior investments in that project. Appellants will
have the opportunity to litigate the issues they seek to raise in
this appeal if it turns out that the agency’s policy is, in fact,
what they believe it to be.
* * *
In the case before us, Appellants challenge statements
made by USCIS in the Q&A posted on its website and in the
Policy Manual that was amended after the RIA was enacted.
But the statements do not carry the weight that Appellants
assign to them — they do not announce the automatic denial of
infrastructure-project eligibility for all pre-RIA-approved
business plans. Because USCIS “tread[s] no new ground” in
the challenged statements, Indep. Equip. Dealers Ass’n v. EPA,
372 F.3d 420, 428 (D.C. Cir. 2004), the agency took no final
agency action. We therefore affirm the district court’s
dismissal of the claims for lack of finality under the APA.
So ordered.

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