Adrian Da Costa v. Immigration Investor Program Office

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 11, 2023 Decided August 18, 2023

No. 22-5313

ADRIAN DA COSTA AND JAYDE DA COSTA,
APPELLANTS

v.

IMMIGRATION INVESTOR PROGRAM OFFICE AND UR M.
JADDOU, DIRECTOR, U.S. CITIZENSHIP AND IMMIGRATION
SERVICES,
APPELLEES

Consolidated with 22-5320

Appeals from the United States District Court
for the District of Columbia
(No. 1:22-cv-01576)
(No. 1:22-cv-02171)

Jesse M. Bless argued the cause and filed the briefs for The
Da Costa Appellants.

Brad Banias argued the cause and filed the briefs for The
Bega Appellants.
 2
H. Ronald Klasko was on the brief for amicus curiae
Invest in the USA in support of The Da Costa Appellants.

Matthew T. Galati and Halston A. Chavez were on the
brief for amicus curiae American Immigrant Investor Alliance
in support of appellants.

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, Glenn M. Girdharry, Deputy
Director, and Vanessa Molina, Trial Attorney.

Before: HENDERSON, PILLARD and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: 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. We affirm.
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BACKGROUND

A.

In 1990, Congress amended the Immigration and
Nationality Act (INA or the Act), 8 U.S.C. § 1101 et seq., to
create an employment-based visa program for noncitizens who
invest in a job-creating enterprise. Immigration Act of 1990,
Pub. L. No. 101-649, § 121(b)(5), 104 Stat. 4978, 4989
(codified at 8 U.S.C. § 1153(b)(5)). (We use “noncitizen” as
equivalent to the statutory term “alien.” See Nasrallah v. Barr,
140 S. Ct. 1683, 1689 n.2 (2020) (citing 8 U.S.C.
§ 1101(a)(3)).) The job-creation visas are called “EB-5 visas”
because they are the “fifth employment-based visa category
available to foreign nationals.” Mirror Lake Vill., LLC v. Wolf,
971 F.3d 373, 374 (D.C. Cir. 2020). EB-5 visas are available
to noncitizens entering the country to engage in a new
commercial enterprise that “will benefit the United States
economy by creating full-time employment for not fewer than
10 United States citizens, United States nationals,” or certain
other residents. 8 U.S.C. § 1153(b)(5)(A)(ii).

Two years after creating the EB-5 program, Congress
created an additional path to qualify for an EB-5 visa through
what 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, 106 Stat. 1828, 1874-75 (1992). Under the
Regional Center Program, EB-5 petitioners “pool[] their
investments with 1 or more qualified immigrants” into “a
regional center in the United States, which has been designated
by the Secretary of Homeland Security on the basis of a
proposal for the promotion of economic growth, including
prospective job creation and increased domestic capital
investment.” 8 U.S.C. § 1153(b)(5)(E)(i).
 4
The INA sets general parameters for the government’s
adjudication of visa petitions and issuance of visas. It provides
that family-sponsored and employment-based visas “shall be
issued to eligible immigrants in the order in which a petition in
behalf of each such immigrant is filed.” 8 U.S.C. § 1153(e)(1).
We have referred to that statutory first-in, first-out directive as
the “priority rule.” Meina Xie v. Kerry, 780 F.3d 405, 408
(D.C. Cir. 2015).

The INA also imposes statutory caps on the worldwide
total number of all employment-based visas the government
may grant annually. 8 U.S.C. § 1151(a), (d); see Meina Xie,
780 F.3d at 406. The Act limits the number of visas for
particular subcategories within the broader category of
employment-based visas (which, in addition to EB-5 job-
creation visas, includes visas for workers with certain high
levels of ability or qualification, or who meet needs unmet by
workers available within the United States). 8 U.S.C.
§ 1153(b). EB-5 visas, for example, “shall be made available,
in a number not to exceed 7.1 percent of” the overall maximum
number of employment-based visas. Id. § 1153(b)(5)(A).

The INA also limits the number of visas that can be
awarded to individuals from a single country. Generally, for
“family-sponsored and employment-based immigrants” taken
together, “the total number of immigrant visas made available
to natives of any single foreign state . . . may not exceed 7
percent” of the total number of family-sponsored and
employment-based visas made available in that fiscal year. Id.
§ 1152(a)(2); see Meina Xie, 780 F.3d at 406. We refer to that
limit as the “per-country cap.”

USCIS and the State Department have separate roles in
processing visa applications and issuing visas. USCIS
processes petitions, 8 C.F.R. §§ 100.1, 103.2, 106.1, while the
 5
State Department tracks visa availability, allocates visas, and,
for visa-seekers residing outside the United States, issues visas
through its embassies and consulates worldwide to persons
USCIS determines to be eligible. 22 C.F.R. §§ 42.41, 42.42,
42.51. The State Department publicly announces visa
availability on an ongoing basis through its Visa Bulletins. 8
C.F.R. § 245.1(g)(1); Department of State, The Visa Bulletin,
https://perma.cc/F2RW-BYPY (last updated June 1, 2023).
We refer to the government generally unless we see a need to
distinguish between those agencies.

B.

For noncitizens seeking an EB-5 visa, the first step in the
application process is to file with USCIS a petition, called a
Form I-526, for classification as an approved investor. 8
C.F.R. § 204.6. The petition “must be accompanied by
evidence that the [noncitizen] has invested or is actively in the
process of investing lawfully obtained capital in a new
commercial enterprise in the United States which will create
full-time positions for not fewer than 10 qualifying
employees.” 8 C.F.R. § 204.6(j). For noncitizens participating
in the Regional Center Program, the evidence must show
investment in a designated Regional Center and demonstrate—
via “reasonable methodologies”—that the investment will
either directly or indirectly create 10 or more jobs. Id.
§ 204.6(j)(4)(iii), (m)(7).

After USCIS approves a Form I-526 petition, the
noncitizen proceeds to the second step: applying for
conditional lawful permanent resident status. In other words,
an approved petition makes the noncitizen “eligible to stand in
line for an immigrant visa number to be issued by the
Department of State.” See iTech U.S., Inc. v. Renaud, 5 F.4th
59, 61 (D.C. Cir. 2021) (describing equivalent process for
 6
Form I-140 petition). Individuals living outside the United
States apply for conditional lawful permanent resident status
through a process called “consular processing.” 8 U.S.C.
§§ 1186b(a)(1), 1201-02; 8 C.F.R. § 216.1; 22 C.F.R.
§§ 42.32(e), 42.41, 42.42; see USCIS, Consular Processing,
https://perma.cc/9N3P-6X7S (last updated Aug. 7, 2023).
Individuals already living in the United States apply through
“adjustment of status.” 8 U.S.C. §§ 1186b(a)(1), 1255; 8
C.F.R. §§ 216.1, 245.2. In a final step, after approximately one
year and nine months as a conditional lawful permanent
resident, the noncitizen may apply to remove the conditional
basis of their lawful permanent resident status. 8 C.F.R.
§ 216.6(a)(1)(i).

This appeal concerns the first step of the EB-5 visa
process: USCIS’s adjudication of Form I-526s. In January
2020, USCIS announced a modification to its first-in, first out
priority rule for that step, adopting what it calls the “visa
availability approach.” USCIS, USCIS Adjusts Process for
Managing EB-5 Visa Petition Inventory (Jan. 29, 2020),
https://perma.cc/DUG5-ARPL (last updated June 5, 2023); Da
Costa App. 16 (First Am. Compl. ¶¶ 71-73); Bega J.A. 12
(Compl. ¶ 63). In a question-and-answer format, USCIS
explained that before the January 2020 change, it had relied on
a simple first-in, first-out principle to adjudicate petitions,
meaning that “generally USCIS processe[d] Form I-526
petitions in the order received.” USCIS, Questions and
Answers: EB-5 Immigrant Investor Program Visa Availability
Approach, https://perma.cc/9P87-2J7G (last updated June 2,
2023). The announced amendment to that process sought to
avoid delays caused by adhering to first-in, first-out processing
of petitions from “oversubscribed” countries, i.e., those that
had already reached their visa limit under the relevant per-
country cap. Id.; see 8 U.S.C. § 1152(a)(2). As USCIS
explained, “the oldest Form I-526 petitions [were] primarily
 7
from countries that [were] oversubscribed,” such that, without
the modification, “petitioners without visa numbers available
would tend to be processed ahead of those with visa numbers
available.” USCIS, Questions and Answers: EB-5 Immigrant
Investor Program Visa Availability Approach. In the interest
of efficiency, USCIS decided not to make people from
countries with available visas wait for adjudication of earlier-
filed petitions from oversubscribed countries, given that those
earlier filers would remain unable to progress to the second step
until a visa became available under the per-country cap.

As USCIS explained in the January 2020 press release,
USCIS’s visa-availability approach “gives priority to petitions
where visas are immediately available” under the per-country
cap. USCIS, USCIS Adjusts Process for Managing EB-5 Visa
Petition Inventory; see 8 U.S.C. § 1152(a)(2). Thus, USCIS
continues to sequence adjudications according to the first-in,
first-out principle, with the caveat that it “first process[es]
petitions for investors for whom a visa is either now or soon
will be available.” USCIS, Questions and Answers: EB-5
Immigrant Investor Program Visa Availability Approach. In
other words, “[w]orkflows are generally managed in FIFO
[first-in, first-out] order when a visa is available or will be
available soon.” Id. Because the USCIS approach involves an
initial screening step for visa availability, and then processes
petitions in first-in, first-out order, we refer to its approach as
the “availability-screened queue.”

In the question-and-answer sheet, USCIS set forth its
rationales for its modified approach. Id. The agency stated that
prioritizing petitions for individuals from countries with
available visas improves consistency because it “aligns EB-5
processing with certain other USCIS operations and programs
that involve numerical caps for visa availability (for example,
preference category family visa petitions).” Id. The agency
 8
also explained that an availability-screened queue would “align
better with congressional intent for visa allocation” by
accounting for the per-country caps, and that it would “increase
fairness in the administration of the EB-5 immigrant investor
program” by eliminating pointless delays. Id.

Based on USCIS data regarding processing times for the
past several years, USCIS’s processing of Form I-526 petitions
has slowed considerably, even following the 2020 adoption of
the availability-screened queue. USCIS tracks and publishes
its median processing time for visa petitions. See USCIS,
Historical National Median Processing Time (in Months) for
All USCIS Offices for Select Forms by Fiscal Year: Fiscal Year
2018 to 2023 (up to April 30, 2023), https://perma.cc/5WTA-
DAN9 (last updated June 5, 2023). Its published data show
that the median processing time for a Form I-526 decided in
Fiscal Year (FY) 2018 was 17.9 months. The median time a
petition decided in FY 2019 had been pending was 19.0
months; FY 2020, 31.1 months; FY 2021, 32.5 months; FY
2022, 44.2 months. And, as of April 30, 2023, the median time
a petition decided this year had been pending was 49.4 months.
Id. In other words, the data show increasingly slow
adjudications, with a markedly increased lag by Fiscal Year
2020.

A nine-month gap in congressional authorization of the
Regional Center Program likely contributed to delays in
processing of those Form I-526 petitions that, like those at issue
in this appeal, are based on Regional-Center investments. See
Da Costa App. 16 (First Am. Compl. ¶¶ 65-70); Bega J.A. 22-
24 (Compl. ¶¶ 128-37). Congress created the Regional Center
Program in 1992 as a pilot program, Pub. L. No. 102-395,
§ 610, 106 Stat. at 1874, that it has periodically reauthorized,
see, e.g., Pub. L. No. 105-119, § 116, 111 Stat. 2440, 2467
(1997); Pub. L. No. 111-83, § 548, 123 Stat. 2142, 2177
 9
(2009); Pub. L. No. 114-53, § 131, 129 Stat. 502, 509 (2015).
A 2020 appropriations bill reauthorized the program, extending
the visa set-aside period to June 30, 2021. Consolidated
Appropriations Act of 2021, Pub. L. No. 116-260, Div. O.,
§ 104, 134 Stat. 1182, 2148 (2020). But by the time that period
expired, Congress had yet to reauthorize, causing a lapse from
the end of June 2021 until March 2022, when Congress passed
the EB-5 Reform and Integrity Act of 2022, extending
authorization through September 2027. Pub. L. No. 117-103,
Div. BB, § 103, 136 Stat. 1070, 1075 (2022). During the nine-
month gap in statutory authorization, USCIS paused
adjudicating I-526 petitions. Da Costa App. 16 (First Am.
Compl. ¶ 66); Bega J.A. 22 (Compl. ¶ 128).

C.

Before us are two cases we consolidated on appeal: The
Da Costa Plaintiffs and the Bega Plaintiffs separately sued
USCIS, challenging its failure to act on their Form I-526
petitions. They claim violations of the Administrative
Procedure Act, which requires an administrative agency to
decide a matter presented to it “within a reasonable time,” 5
U.S.C. § 555(b), and authorizes a reviewing court to “compel
agency action unlawfully withheld or unreasonably delayed,”
id. § 706(1). In reviewing the district courts’ decisions to grant
USCIS’s motions to dismiss for failure to state a claim, we
assume the truth of the facts alleged in the Da Costas’ and
Begas’ complaints. See Harris v. D.C. Water & Sewer Auth.,
791 F.3d 65, 68 (D.C. Cir. 2015).

Adrian DaCosta invested $500,000 in a USCIS-designated
Regional Center called Otay Village 8 Lender, LLC, and based
on that investment filed a Form I-526 on November 12, 2019,
with his wife Jayde Da Costa as the derivative beneficiary. The
Da Costas, who live in Durban, South Africa with their three
 10
minor children, allege that USCIS has unreasonably delayed
acting on their petition, even while their “health, lives, and
safety are riding on” its outcome. Da Costa App. 18 (First Am.
Compl. ¶ 86). They allege that Durban has experienced
“prolonged periods [of] riots, lawlessness, and erosion of civil
authority.” Da Costa App. 17 (First Am. Compl. ¶ 79). Other
problems there include “massive flooding” and inconsistent
access to public services; “many” Durban residents cannot
access “food, water, and shelter.” Da Costa App. 17 (First Am.
Compl. ¶ 81-85). Because of the challenges of life in Durban,
the Da Costas allege, their “three minor children face
immediate threats to health and safety and potential longer-
term threats to education and development.” Da Costa App. 27
(First Am. Compl. ¶ 147).

The four Begas, like the Da Costa couple, are EB-5
petitioners who challenged USCIS’s failure to have
adjudicated their Form I-526 petitions. Pierrot, Max, and
Phillippe Bega are brothers, and Brian is Phillippe’s adult son;
all four are South African citizens and residents. They each
invested at least $500,000 in programs administered by two
Regional Centers. Pierrot filed his petition in April 2019, Max
filed in May 2019, and Phillipe and Brian each filed in
November 2019. The Begas allege that the delays in
adjudicating their petitions introduce “unknown timelines and
uncertainties” that “prevent them from planning, selling assets
at opportune times, and making arrangements for their
families.” Bega J.A. 16 (Compl. ¶ 91). While this appeal was
pending, USCIS approved Pierrot, Max, and Brian’s Form I-
526 petitions. Bega v. Jaddou, No. 22-5320, Doc. 1995660
(D.C. Cir. Apr. 20, 2023) (notice of administrative action),
Doc. 2009838 (D.C. Cir. July 27, 2023) (notice of
administrative action). Phillippe’s petition remains pending.
 11
D.

In each of the two consolidated actions, the district court
entered judgment dismissing the case for failure to state a
claim. Da Costa App. 129; Bega J.A. 106. Both courts
analyzed the reasonableness of the timing of the agency’s
action by weighing the six factors we identified in
Telecommunications Research & Action Center v. FCC, 750
F.2d 70, 80 (D.C. Cir. 1984) (TRAC), commonly called the
“TRAC factors.”

In Da Costa v. Immigration Investor Program Office, No.
22-cv-1576, 2022 WL 17173186 (D.D.C. Nov. 16, 2022), the
district court held that two factors—“human health and
welfare” and the “nature and extent of the interests prejudiced
by delay”—favored the Da Costas, because of the challenges
of living in Durban during the wait. Id. at *10. On balance,
however, the district court concluded that the TRAC factors
taken together favored the government. The USCIS’s
availability-screened queue was supported by an “identifiable
rationale” that was “entirely justified in light of the agency’s
stated priorities.” Id. at *8. Plaintiffs’ allegation that USCIS
does not follow its stated approach was “conclusory,” and the
three-year period plaintiffs had thus far had to wait was not
“per se unreasonable.” Id. at *9-10.

The district court in Da Costa placed the greatest emphasis
on TRAC factor four: the effect that a ruling in plaintiffs’ favor
would have on the agency’s competing priorities. Id. at *10.
Granting relief to the Da Costas would require “directing the
agency to divert resources away from other petitions of
competing priority and bump Plaintiffs to the front of the line.”
Id. That factor, which the court explained “carries the greatest
weight” in this context, “plainly militate[d] in favor of
dismissal.” Id. at *10-11. Because the government employed
 12
a reasonable rationale without violating a statutory deadline or
engaging in impropriety, and because ruling for the Da Costas
would allow line jumping ahead of other eligible petitioners
who had been waiting longer, the court concluded that
Plaintiffs failed to state a claim of unreasonable delay. The
court also dismissed claims, which the Da Costas do not press
here, challenging USCIS’s temporary pause in adjudicating
Regional Center-based petitions during the gap in
congressional authorization.

The district court in the second consolidated case, Bega v.
Jaddou, No. 22-cv-2171, 2022 WL 17403123 (D.D.C. Dec. 2,
2022), reasoned similarly in dismissing the Bega Plaintiffs’
claims. “Taken together,” the court explained, “the TRAC
factors at play here—USCIS’s ‘rule of reason’ governing its
adjudicatory process, the lack of statutory processing
deadlines, the absence of any justification of expediting
plaintiffs’ petitions” ahead of others’, and “the absence of
allegations of harm to health or welfare—weigh heavily” in
favor of the government and therefore the Plaintiffs do not state
“a plausible unreasonable delay claim.” Id. at *8.

The Da Costa and Bega Plaintiffs appeal.

DISCUSSION

On de novo review, W. Org. of Res. Councils v. Zinke, 892
F.3d 1234, 1240-41 (D.C. Cir. 2018), we affirm the district
courts’ decisions to dismiss Plaintiffs’ cases for failure to state
a claim. The Plaintiffs have not stated a legally viable claim
that USCIS unreasonably delayed adjudicating their I-526
petitions. Taking their allegations as true, we conclude that
USCIS applies a “rule of reason” to adjudicate Form I-526
petitions, as required by TRAC, 750 F.2d at 80, and that the
relief Plaintiffs seek would involve disfavored line-jumping by
placing them ahead of other applicants who filed their Form
 13
I-526 petitions even earlier, see id. While those two factors
carry the greatest weight in our analysis, the absence of a
statutory deadline and absence of plausible allegations of
government misconduct also favor dismissing the claims.

A.

At the outset, we dismiss as moot the claims brought by
Pierrot, Max, and Brian Bega. USCIS adjudicated and
approved the Form I-526 petitions for those three Plaintiffs
while this appeal was pending. Bega v. Jaddou, No. 22-5320,
Doc. 1995660 (D.C. Cir. Apr. 20, 2023) (notice of
administrative action), Doc. 2009838 (D.C. Cir. July 27, 2023)
(notice of administrative action). Pierrot, Max, and Brian have
thus received the adjudications they sought. See Bega J.A. 29
(Compl. ¶ 173). Because “an event occur[red] while a case
[was] pending on appeal that makes it impossible for the court
to grant ‘any effectual relief whatever’” to those plaintiffs even
were they to prevail in the lawsuit, their claims are moot.
United States v. China Telecom (Ams.) Corp., 55 F.4th 939,
943 (D.C. Cir. 2022) (quoting Church of Scientology v. United
States, 506 U.S. 9, 12 (1992)); see also Liu v. I.N.S., 274 F.3d
533, 536 (D.C. Cir. 2001). The claims of the other Bega
Plaintiff, Phillippe, and those of the two Da Costa Plaintiffs,
remain justiciable because their petitions have not yet been
adjudicated.

B.

To state a claim for unreasonable delay, Plaintiffs must
first allege that the agency “failed to take a discrete agency
action that it is required to take,” Norton v. S. Utah Wilderness
All., 542 U.S. 55, 64 (2004) (emphasis omitted), and, second,
that the delay was unreasonable, Am. Anti-Vivisection Soc’y v.
U.S. Dep’t of Agric., 946 F.3d 615, 621 (D.C. Cir. 2020). Here,
USCIS does not contest Plaintiffs’ assertions of a
 14
nondiscretionary duty on the part of the agency to adjudicate
their Form I-526 petitions. USCIS Br. 24-32; see Meina Xie,
780 F.3d at 405-06, 408 (holding that plaintiff sufficiently pled
a nondiscretionary duty, arising from 8 U.S.C. § 1153(e)(1), for
the State Department to review her visa application). Our
analysis therefore turns on whether the circumstances Plaintiffs
allege, if proved, would show USCIS to have unreasonably
delayed adjudicating the petitions.

As mentioned, to guide our unreasonable-delay analysis,
we ordinarily look to six non-exclusive TRAC factors. See 750
F.2d at 80. The two factors most important in this case are
factor one—whether the agency’s timing of adjudications
follows a “rule of reason”—and factor four—the effect that an
order “expediting delayed action” would have on “agency
activities of a higher or competing priority.” Id. We begin our
analysis with those two factors.

1.

As for TRAC factor one, “the time agencies take to make
decisions must be governed by a ‘rule of reason.’” Id. (quoting
Potomac Elec. Power Co. v. ICC, 702 F.2d 1026, 1034 (D.C.
Cir. 1983). In assessing whether an agency follows a rule of
reason, we evaluate the length of the delay in light of “the
complexity of the task at hand, the significance (and
permanence) of the outcome, and the resources available to the
agency.” Mashpee Wampanoag Tribal Council, Inc. v. Norton,
336 F.3d 1094, 1102 (D.C. Cir. 2003).

We conclude that USCIS employs a rule of reason to
adjudicate Form I-526 petitions. The government is statutorily
required to issue visas in the order the petitions are filed, 8
U.S.C. § 1153(e)(1), and is also constrained by the per-country
cap, id. § 1152(a)(2). USCIS’s pre-2020 priority rule satisfied
the bare order-of-filing requirement. Id. § 1153(e)(1). But, by
 15
failing to also account for the caps, it led USCIS to expend
agency resources to process earlier-filed petitions from
oversubscribed countries ahead of those from countries with
available visas, only for the former to sit in the oversubscribed
country’s visa line unable to move forward until a visa became
available to them. In its question-and-answer document,
USCIS explained that “the oldest Form I-526 petitions are
primarily from countries that are now oversubscribed,” so
under a simple first-in, first-out process, “petitioners without
visa numbers available would tend to be processed ahead of
those with visa numbers available.” USCIS, Questions and
Answers: EB-5 Immigrant Investor Program Visa Availability
Approach. USCIS’s availability-screened queue avoids that
“hurry up and wait” anomaly. As we understand it, USCIS’s
rule of reason calls for processing Form I-526 petitions from
nationals of countries as to which visas are currently available
in the order in which those petitions were received.

As counsel for the Da Costas conceded at oral argument,
the availability-screened queue “makes sense” and “[n]o one’s
disputing that.” Oral Arg. Tr. 18. Plaintiffs nonetheless
contend that the USCIS does not in practice follow a rule of
reason. First, they allege that USCIS is not in practice
following its official policy of screening for visa availability
then adjudicating on a first-in, first-out basis. Da Costa App.
26, 28 (First Am. Compl. ¶¶ 144, 151); Bega J.A. 10,
12 (Compl. ¶¶ 51, 61, 63). Second, Plaintiffs allege that
USCIS has granted “project-wide” out-of-order approvals, or
“blanket expedites” to petitions associated with certain
Regional Centers. Da Costa App. 28 (First Am. Compl. ¶ 150);
Bega J.A. 11 (Compl. ¶ 53). Finally, the Da Costas contend
that, even if USCIS is following its official visa availability
policy, the length of time they have had to wait is “per se
unreasonable.” Da Costa App. 26 (First Am. Compl. ¶ 140).
 16
Each of those three bases for impugning USCIS’s rule of
reason falls short. First, Plaintiffs do not plausibly allege that
USCIS is not following its stated approach. Plaintiffs’ theory
is that USCIS is publicly announcing an availability-screened
queue but applying a different, unannounced method. The Da
Costa Plaintiffs contend that, because visas are available for
South Africa, there is “no reasonable explanation why” USCIS
has not yet adjudicated their petition. Da Costa App. 26 (First
Am. Compl. ¶ 144). But those allegations do not account for
the possibility—indeed, the likelihood—that earlier-filed
petitions awaiting adjudication or processed ahead of theirs
were also filed by nationals of countries that are not
oversubscribed. In the same vein, Bega argues that USCIS has
“no processing logic” for adjudication, and instead
“systematically prioritizes later filed petitions over earlier filed
petitions for Form I-526 petitions.” Bega J.A. 10-11 (Compl.
¶¶ 52, 56). But USCIS does have a processing logic: Its stated
policy is to prioritize earlier-filed ahead of later-filed petitions
from any country as to which EB-5 visas are available. Bega
offers no allegations from which we could reasonably infer that
USCIS’s announced approach is not a processing logic. Nor
does he provide any substance for the allegation that USCIS
“systematically prioritizes” later-filed petitions. Those
conclusory assertions are insufficient to show that USCIS is not
following its publicly stated policy.

Second, Plaintiffs’ allegations that USCIS twice—in 2017
and at some point before 2015—unlawfully departed from the
priority rule then in place does not support a reasonable
inference that no rule of reason applies to the processing of
Plaintiffs’ petitions, which they filed in 2019. Bega alleges
that, in 2015, the Department of Homeland Security’s Inspector
General reported an instance of interference by political
appointees in the EB-5 petition adjudication process. Bega J.A.
27 (Compl. ¶ 155). He also alleges that, in 2017, USCIS
 17
showed favoritism to one Regional Center’s politically
connected commercial enterprise, Tryon International
Equestrian Center, by granting “expedited processing” to
petitions associated with that business’s investment project.
Bega J.A. 26-28 (Compl. ¶¶ 146-57). Bega alleges that USCIS
gave that special treatment because of the Tryon CEO’s
political donations. Bega J.A. 26 (Compl. ¶¶ 148-50). Bega
seeks to bolster that allegation with an undated USCIS email
acknowledging that, in April 2017, USCIS granted expedited
processing for one project, Bega J.A. 203, along with USCIS
emails from 2019 and 2020 discussing the litigation risk
associated with that undated email, Bega J.A. 204-06.

Those suggestions of special treatment for politically
connected petitioners in 2017 and the 2015 Inspector General
report of political influence do not support a reasonable
inference that USCIS has unreasonably delayed adjudicating
Bega’s 2019 petition. Taking his allegations as true, Bega’s
complaint suggests that USCIS has departed on occasion from
granting available EB-5 visas in priority-date order, but the
complaint does not tie that past misconduct, which allegedly
occurred well before Bega even filed his petition, to delayed
processing of his petition. Bega has not raised a reasonable
inference that USCIS currently is following a processing
system other than its official policy.

Third, the Da Costas allege that “[f]our-and-one-half years
to process an immigration petition is per se unreasonable.” Da
Costa App. 26 (First Am. Compl. ¶ 140). The wait is
undoubtedly maddening. The processing time for EB-5
petitions is long, and has been increasing over time, as USCIS’s
public statistics show. USCIS, Historical National Median
Processing Time (in Months) for All USCIS Offices for Select
Forms by Fiscal Year: Fiscal Year 2018 to 2023 (up to April
30, 2023). But courts’ narrow role in reviewing agency delays
 18
allows a claim to proceed only if the delay is unreasonable
within the meaning of the APA. Here, the length of the wait
alone is not sufficient to show that USCIS does not follow a
rule of reason in processing EB-5 applications. 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. 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 factors in addition to the elapsed time that we have
considered when evaluating the agency’s rule of reason—“the
complexity of the task at hand, the significance (and
permanence) of the outcome, and the resources available to the
agency,” Mashpee Wampanoag Tribal Council, 336 F.3d at
1102—do not favor the Plaintiffs. Adjudication of a Form
I-526 petition may well be simpler than completion of the tribal
recognition process in Mashpee Wampanoag Tribal Council,
id. at 1100, but the same principle we recognized in that case
applies with full force here: When an agency faces a shortage
of resources to resolve a backlog, we consider those resource
limitations and the labor needed to resolve them in assessing
agency delay. See id. at 1100, 1102. Here, the steps that
USCIS took to improve its efficiency in adjudicating Form
I-526 petitions by harmonizing the statutory visa caps with the
statutory directive to process petitions in the order in which
they are filed undercut the plausibility of Plaintiffs’ claims.

In sum, TRAC factor one—whether the timing of the
challenged agency action is governed by a rule of reason—
weighs in favor of USCIS. USCIS’s availability-screened
queue harmonizes the INA’s priority principle with its per-
country limits, 8 U.S.C. §§ 1152(a)(2), 1153(e)(1), and
Plaintiffs concede that the system “makes sense,” Oral Arg. Tr.
 19
18. Plaintiffs did not plausibly plead that USCIS, whether in
policy or practice, employs a different system. USCIS’s
current approach to sequencing the adjudication of Form I-526
petitions follows a rule of reason as TRAC requires.

2.

TRAC factor four, the effect on competing agency
priorities, strongly disfavors the Plaintiffs here. When
analyzing this factor, we “consider the effect of expediting
delayed action on agency activities of a higher or competing
priority.” TRAC, 750 F.2d at 80. For guidance in considering
competing agency priorities, we look to In re Barr
Laboratories, 930 F.2d 72 (D.C. Cir. 1991), where we
reviewed a challenge to the Food and Drug Administration’s
failure to adjudicate a generic drug application. Id. at 73. Even
though the agency missed a statutory deadline, we held that the
TRAC factors favored the government because of the strength
of factor four. Id. at 76. “[A] judicial order putting” one
company’s generic drug application “at the head of the queue
simply moves all others back one space and produces no net
gain.” Id. at 75.

Because USCIS prioritizes adjudication based on the date
a petition was filed, 8 U.S.C. § 1153(e); 8 C.F.R. § 204.6(d), a
court order requiring USCIS to adjudicate the Plaintiffs’ Form
I-526 petitions would move them ahead of longer-pending
petitions. Indeed, litigation by other Form I-526 petitioners has
caused some line jumping. Plaintiffs in another lawsuit
challenging the pace of EB-5 visa adjudications sought to
question whether USCIS followed a rule of reason by pointing
to examples of petitions processed out of filing order, but
ultimately “conceded that this ‘expedited’ treatment was the
result of litigation efforts on behalf of other plaintiffs in other
actions.” Jain v. Renaud, No. 21-cv-03115, 2021 WL
 20
2458356, at *5 (N.D. Cal. June 16, 2021). In the absence of
plausible allegations that USCIS is not applying its rule of
reason, moving Plaintiffs’ petitions to the front of the line
would disrupt competing agency priorities with no overall
improvement in the USCIS backlog.

Plaintiffs’ argument that granting relief would not
prejudice other applicants rests on wishful thinking about how
the USCIS adjudication system works. The Da Costas and
Bega assert that, “[b]ecause USCIS can adjudicate dozens (if
not more) Forms I-526 at the same time, this factor does not
favor USCIS in the same way it would if USCIS could only
adjudicate them one at a time consecutively.” Da Costa App.
33 (First Am. Compl. ¶ 188); Bega J.A. 19 (Compl. ¶ 112).
Bega takes that claim one step further, alleging that “there is no
‘line’” because “USCIS has a pool of Form I-526 petitions and
it pulls them out as it sees fit, when it sees fit, and decides them
in an arbitrary order.” Bega J.A. 19 (Compl. ¶ 108). These
allegations fall short. For the reasons already explained, see
supra Discussion B.1, Plaintiffs’ allegations do not describe
USCIS using a system other than its publicly announced
availability-screened queue. USCIS does have a “line”:
petitions with available visas, processed in filing order by
priority date. Plaintiffs do not allege that they were singled out
for slower adjudication; plausible allegations to that effect
might have alleviated the line-jumping concern. See In re Barr
Lab’ys, 930 F.2d at 75-76. Instead, Plaintiffs appear similarly
situated to all other Form I-526 petitioners who are waiting for
USCIS to clear its petition backlog.

Plaintiffs seek individual, not systemic, relief. Both sets
of Plaintiffs request “an order compelling USCIS” to
“[a]djudicate [their] Form I-526 [petitions] within 14 days,” to
process any additional responses to a Request for Information
within 7 days, and to “[f]orward any approval to the National
 21
Visa Center [to begin consular processing] within 3 days.”
Bega J.A. 29 (Compl. ¶ 173); Da Costa App. 35 (First Am.
Compl. Prayer for Relief). Granting this individual relief
would necessarily come “at the expense of other similarly
situated applicants,” unlike “broader relief” that would avoid
“line-jumping” concerns. See Am. Hosp. Ass’n v. Burwell, 812
F.3d 183, 192 (D.C. Cir. 2016). Plaintiffs do not, for example,
challenge agency guidance governing Form I-526
adjudications. See, e.g., Almaqrami v. Pompeo, 933 F.3d 774,
777, 783 (D.C. Cir. 2019) (considering a challenge to a State
Department guidance memo “instructing consular officers
reviewing diversity visa applications” how to implement an
entry ban). “While judicial intervention could assist” the
Plaintiffs, “it would likely impose offsetting burdens on
equally worthy” EB-5 visa petitioners who are “equally
wronged by the agency’s delay.” See In re Barr Lab’ys, 930
F.2d at 73.

We do not make light of the troubling backlog of petitions
waiting for USCIS adjudication, nor does the increasingly
sluggish pace of adjudication escape our attention. Those
problems are serious. But Plaintiffs’ failure to plausibly allege
that USCIS operates without a rule of reason, together with the
effect that their requested relief would have on the queue of
petitioners waiting ahead of the Plaintiffs, weighs against
judicial intervention to expedite adjudication of Plaintiffs’
petitions.

3.

Plaintiffs’ arguments regarding the remaining TRAC
factors do not tip the scales in their favor. For TRAC factor
two, we consider whether Congress set a deadline for agency
action. TRAC, 750 F.2d at 80. Plaintiffs argue this factor
favors them because in 2000, in a bill amending the INA,
 22
lawmakers expressed “the sense of Congress that the
processing of an immigration benefit application should be
completed not later than 180 days after the initial filing of the
application.” Immigration Services and Infrastructure
Improvements Act of 2000, Pub. L. No. 106-313, Title II,
§ 202, Oct. 17, 2000, 114 Stat. 1262, 1262 (codified at 8 U.S.C.
§ 1571(b)). Plaintiffs allege that, “[w]hile not mandatory,
§ 1571(b) certainly provides a benchmark for ‘reasonableness’
for immigrant visa petitions.” Da Costa App. 29 (First Am.
Compl. ¶ 160); Bega J.A. 14 (Compl. ¶ 78).

We agree that, even though the language is insufficient to
set a deadline, we can look to Congress’s aspirational statement
as “a ruler against which the [agency’s] progress must be
measured.” See In re Pub. Emps. for Env’t Resp., 957 F.3d
267, 274 (D.C. Cir. 2020). This factor somewhat favors
Plaintiffs, as they have waited longer than 180 days. But the
delay has not reached the level of disproportionality we have
previously held sufficient to grant relief. See, e.g., id. at 273-
74.

The harm to Plaintiffs from the waiting time is also
insufficient to outweigh the factors weighing in favor of
dismissal. TRAC factors three and five apply similarly here, so
we consider them together. For factor three, “delays that might
be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake.” TRAC,
750 F.2d at 80. Factor five is a broader version of the same
idea: “[T]he court should also take into account the nature and
extent of the interests prejudiced by delay.” Id.

Bega alleges financial harm: “[T]he unknown timelines
and uncertainties prevent[s] [him] from planning, selling assets
at opportune times, and making arrangements for [his]
famil[y].” Bega J.A. 16 (Compl. ¶ 91). He also alleges that the
 23
requirement to keep his capital continuously invested until he
qualifies for unconditional lawful permanent residency
exacerbates his financial risk. Bega alleges that, because of the
time he has been waiting, the project in which he originally
invested is complete and the Regional Center is authorized to
“‘re-deploy’ [his] investment into a new project,” which might
be a “riskier venture.” Bega J.A. 16 (Compl. ¶ 92). The
financial harms Bega alleges, along with the uncertainty that
results any time an individual must continue to wait to secure a
benefit, are insufficient to tip TRAC factors three and five in his
favor.

The Da Costas allege health and welfare harms, but their
allegations are generalized to the population of the city where
they live, not tied to their individual circumstances or the EB-5
petition process. The Da Costas allege that their home city,
Durban, South Africa, has faced “prolonged periods [of] riots,”
flooding, and inconsistent access to government-provided
electricity and water. Da Costa App. 17 (First Am. Compl.
¶¶ 79-84). Many residents of Durban cannot access “basic
necessities, food, water, and shelter.” Da Costa App. 17
(Compl. ¶ 85). The Da Costas allege that “a visa petition
approval would allow Plaintiffs to leave a home ravaged by
civil unrest and natural disaster.” Da Costa App. 30 (Compl.
¶ 169).

Like any EB-5 petitioner seeking to immigrate, the Da
Costas undoubtedly place importance on their ability to obtain
a visa petition. But their allegations do not specifically link
their personal circumstances to conditions in Durban; they do
not, for example, allege that they are unable to access
electricity, water, food, or shelter. Without allegations linking
the delayed adjudication of their petition to health or welfare
harms, TRAC factors three and five do not favor them.
 24
The Da Costas nonetheless argue that this court should
follow the Sixth Circuit’s decision in Barrios Garcia v. DHS,
25 F.4th 430 (6th Cir. 2022), to hold TRAC factors three and
five alone sufficient to reverse the district court’s judgment of
dismissal. In Barrios Garcia, the Sixth Circuit held that
plaintiffs who had applied for visas and authorization to work
stated a claim for unreasonable delay of their placement on the
waitlist for U-visas, a special category of visa for “noncitizen
victims of serious crimes who cooperate with law
enforcement.” 25 F.4th at 436, 455. The plaintiffs alleged that,
while living in the United States awaiting their visas, they were
unable to “obtain a social-security number or identification
cards,” to “garner healthcare, car insurance, or lawful
employment,” or to “lawfully travel to and from the United
States.” Id. at 452. They also were unable to seek deferred
action while they awaited their authorization, leaving them at
risk of deportation. Id. Assessing those allegations, the Sixth
Circuit held that, “based on [the] factual allegations [about
harm to health and welfare] alone,” the plaintiffs “sufficiently
alleged that USCIS has unreasonably delayed deciding whether
to place principal petitioners on the U-visa waitlist.” Id.
Barrios Garcia is inapposite here because Plaintiffs’
complaints lack the kind of allegations of harm that supported
relief in that case.

The final consideration—TRAC factor six—is neutral
here. For factor six, the court considers whether there is “any
impropriety lurking behind agency lassitude,” although it need
not find any “in order to hold that agency action is
‘unreasonably delayed.’” TRAC, 750 F.2d at 80 (quoting Pub.
Citizen Health Rsch. Grp. v. Comm’r, FDA, 740 F.2d 21, 34
(D.C. Cir. 1984)). Here, Bega alleges that the government
engaged in impropriety because USCIS expedited petitions
associated with the Tryon International Equestrian Center’s
investment project, the previous administration cut resources
 25
for visa adjudications, and USCIS “artificially inflate[s]” its
reports of processing times “to create a potential defense
against lawsuits. Bega J.A. 25-28 (Compl. ¶¶ 142-57). The Da
Costas offer a more general allegation that USCIS has
“accorded significant [processing time] benefits to certain
projects,” which, although unclear, appears to be a reference to
the Tryon International Equestrian Center allegations. Da
Costa 34 (First Am. Compl. ¶ 193).

For the reasons already explained, see supra Discussion
B.1, Plaintiffs’ claims about isolated incidents of assertedly
improper expediting in 2015 and 2017 do not plausibly allege
government misconduct. Assuming the truth of Plaintiffs’
allegations of resource cuts, such cuts would not show
government impropriety. The allegation about fraudulently
inflated processing times is conclusory and implausible.

In sum, 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. We therefore affirm the dismissals of Plaintiffs’
complaints.

C.

The shortcomings in Plaintiffs’ complaints do not excuse
the persistent lack of clarity in USCIS’s official disclosures
about the EB-5 program, and in its counsel’s advocacy in this
court. At oral argument, government counsel was unable to
describe how the USCIS petition processing system works. See
 26
Oral Arg. Tr. 43-49. After counsel appeared on behalf of the
State Department before us in Meina Xie seven years ago, we
noted similar problems: Government counsel was “distinctly
obscure about the interaction of” the relevant statutory
provisions and, at oral argument, was unable to point to any
“elucidating regulations.” Meina Xie, 780 F.3d at 406-07. We
observe here, as we did there, that the advocacy on appeal fell
short of the high standards we expect from counsel for the
United States. We trust the government will take the requisite
steps to ensure that its future advocacy on behalf of USCIS is
appropriately clear and informed.

* * *

For the foregoing reasons, we affirm the district court
judgments dismissing Plaintiffs’ claims.

So ordered.