354 F. Supp. 3d 13
D.C. Cir.2018Background
- The EB-5 program (Immigration Act of 1990) grants investor visas to foreign nationals who invest specified capital and create jobs; spouses and children "accompanying or following to join" are derivatives under INA §203(d).
- State Department has long (since at least 1965 practice and after 1990) counted derivative spouses and children against both the worldwide EB-5 cap and per-country caps when allocating visa numbers.
- Plaintiffs (13 Chinese EB-5 investors and American Lending Center LLC) challenge State's counting policy as unlawful and seek a preliminary injunction barring State from counting derivatives against the annual EB-5 caps and requiring release of the uncounted visa numbers.
- Plaintiffs also allege State’s cut-off date practice is final agency action arbitrary and capricious under the APA and that the counting policy violated APA notice-and-comment requirements.
- The court denied the preliminary injunction, finding plaintiffs unlikely to succeed on the merits, failing to show irreparable harm, and that the balance of equities and public interest favor the government.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether INA §203(d) precludes counting derivative EB-5 beneficiaries toward annual worldwide caps | §203(d) grants derivatives "same status" but does not require counting only principals; derivatives should not count against worldwide caps | Congress reenacted derivative language knowing State’s longstanding construction; legislative history and structure show Congress intended derivatives counted toward caps | Court: Not likely to succeed; State's interpretation is supported by statutory text, legislative history, and prior administrative practice |
| Whether derivatives counted to per-country caps must also be counted to worldwide caps | Derivatives can be chargeable for country caps without being counted against worldwide caps | Country chargeability rules presuppose counting; per-country caps are a subset of worldwide caps so counting applies to both | Court: Held they must be counted to worldwide caps as well |
| Whether State’s counting policy violated APA notice-and-comment rulemaking requirements | Counting is a substantive change needing notice-and-comment | State issued interim rule in 1991 and finalized in 1993; provided comment opportunity and adopted without change | Court: Not likely to succeed; State complied with notice-and-comment via prior rulemaking |
| Whether plaintiffs demonstrated irreparable harm warranting a preliminary injunction | Aging-out of derivative children, family separation, financial/business harms (ALC) constitute irreparable injury | Harm is speculative; family separation is not imminent or beyond remediation; economic harms are not irreparable | Court: Plaintiffs failed to show irreparable harm; injunction denied |
Key Cases Cited
- Munaf v. Geren, 553 U.S. 674 (Court reiterated preliminary injunction is extraordinary)
- Mazurek v. Armstrong, 520 U.S. 968 (movant must make clear showing for preliminary relief)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (preliminary injunction factors: likelihood of success, irreparable harm, balance of equities, public interest)
- Davis v. Pension Benefit Guaranty Corp., 571 F.3d 1288 (sliding-scale approach to injunction factors discussed)
- Sherley v. Sebelius, 644 F.3d 388 (likelihood of success may be independent requirement)
- Lorillard v. Pons, 434 U.S. 575 (Congress presumed aware of administrative interpretation on reenactment)
- Haig v. Agee, 453 U.S. 280 (relying on evidence of intent to repudiate longstanding administrative construction)
- Wisconsin Gas Co. v. F.E.R.C., 758 F.2d 669 (economic loss alone insufficient for irreparable harm)
- Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (irreparable harm must be beyond remediation)
- Nken v. Holder, 556 U.S. 418 (balance of equities and public interest when government is non-movant)