Krihely v. Mayorkas

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RINA KRIHELY, :
:
Plaintiff, : Civil Action No.: 22-02973 (RC)
:
v. : Re Document No.: 4
:
ALEJANDRO MAYORKAS, et al., :
:
Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION TO DISMISS

I. INTRODUCTION

Plaintiff Rina Krihely sues Alejandro Mayorkas in his official capacity as Secretary of

the Department of Homeland Security; Merrick Garland in his official capacity as Attorney

General; Ur Jaddou in her official capacity as Director of United States Citizenship and

Immigration Services (“USCIS”); and Alissa Emmel in her official capacity as Chief of the

Immigrant Investor Program Office of USCIS (collectively, “Defendants”). Ms. Krihely seeks

relief under the Administrative Procedure Act (“APA”) (5 U.S.C. §§ 555, 706) and the

Mandamus Act (28 U.S.C. § 1361) based on allegations that Defendants have unreasonably

delayed adjudication of her I-526 immigration petition. Defendants moved to dismiss the

complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) on January

23, 2023 and submitted an erratum on February 3, 2023. Ms. Krihely filed an opposition on

March 31, 2023, and Defendants filed a reply on April 7, 2023. For the reasons set forth below,

the Court grants Defendants’ motion to dismiss.
 II. FACTUAL BACKGROUND

The U.S. government’s EB-5 program allots “immigrant investor visas” to those who

make a qualifying investment in the United States. See Compl. ¶ 25, ECF No. 1; 8 U.S.C.

§ 1153(b)(5)(A)(i)–(ii). Immigrants who contribute to “employment creation” of at least ten jobs

by investing at least $1,000,000 in a new commercial enterprise or at least $500,000 in a

“targeted employment area” are eligible for an EB-5 visa.1 See 8 U.S.C. § 1153(b)(5)(A)(i)–(ii),

(b)(5)(C)(i)–(ii); Compl. ¶ 25; Mem. P. & A. Supp. Defs.’ Mot. Dismiss (“Defs.’ Mot.”) at 1–2,

ECF No. 5-1. One way to satisfy the EB-5 requirements is to invest in a designated “regional

center,” which pools investments from immigrant investors. See Defs.’ Mot. at 2; Devani v. U.S.

Citizenship & Immigr. Servs., No. 22-cv-01932, 2023 WL 2913645, at *1 (D.D.C. Apr. 12,

2023).

Congress designed the Regional Center Program as a temporary or “pilot” program that it

has “periodically reauthorized.” Da Costa v. Immigr. Inv. Program Off., No. 22-5313, 2023 WL

5313526, at *3 (D.C. Cir. Aug. 18, 2023). However, the Regional Center Program’s statutory

authorization expired on July 1, 2021. Defs.’ Mot. at 7. About eight and a half months later, on

March 15, 2022, the President signed an appropriations bill into law that included a standalone

bill revising and reauthorizing the Regional Center Program. See Consol. Appropriations Act,

2022, Pub. L. No. 117-103, Div. BB, § 103, 136 Stat. 1070, 1070–1100; Defs.’ Mot. at 7.

During the period without authorization, USCIS placed previously filed I-526 petitions on hold;

USCIS then resumed processing them upon reauthorization. Defs.’ Mot. at 7–8; see EB-5

1
Subsequent to Ms. Krihely’s petition, Congress increased the minimum investment
levels to $1,050,000 and $800,000, respectively. See Consol. Appropriations Act, 2022, Pub. L.
No. 117-103, Div. BB, § 103, 136 Stat. 1070, 1072.

2
Reform and Integrity Act of 2022 Listening Session (“USCIS Listening Session”), USCIS, at 4–5

(Apr. 29, 2022), https://perma.cc/T2K9-YKCU?type=standard.

Immigrants seeking to obtain permanent residency through the EB-5 program must first

file with USCIS an I-526 petition containing evidence of a qualifying investment. See Da Costa,

2023 WL 5313526, at *2; 8 C.F.R. § 204.6(a). “Once the petition is processed and a visa

becomes available—which may take years—the immigrant advances to conditional lawful

permanent residence status.” Punt v. USCIS, No. 22-1218, 2023 WL 157320, at *1 (D.D.C. Jan.

11, 2023) (internal quotations omitted). After two years, the petitioner may seek removal of the

“conditional” basis of lawful permanent resident status. See id. The I-526 petition is therefore a

preliminary step in the process toward becoming a lawful permanent resident. Defs.’ Mot. at 3;

see Da Costa, 2023 WL 5313526, at *2.

Ms. Krihely invested $500,000 in a Regional Center. Compl. ¶ 19. On November 20,

2019, she filed her Form I-526 petition with Defendant USCIS. Compl. ¶ 2. On October 2,

2022, approximately thirty-four months after submitting her petition, Ms. Krihely filed the

complaint at bar. At the time Ms. Krihely filed her complaint, the case processing time for I-526

petitions, determined by the amount of time by which 80 percent cases are completed, was 52.5

months. Compl. Ex. C, ECF No. 1-2. USCIS does not allow petitioners to place a request to

expedite adjudication until the application has been pending for longer than the “normal [case]

processing time[].” Compl. ¶ 10.

III. LEGAL STANDARD

To survive a motion to dismiss, a plaintiff must “state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). The complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

3
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A

plaintiff’s factual allegations, therefore, “must be enough to raise a right to relief above the

speculative level, on the assumption that all the allegations in the complaint are true (even if

doubtful in fact).” Twombly, 550 U.S. at 555 (citations omitted). “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements,” are insufficient. Iqbal,

556 U.S. at 678. A court need not accept a plaintiff’s legal conclusions as true, see id., nor must

a court presume the veracity of legal conclusions that are couched as factual allegations, see

Twombly, 550 U.S. at 555.

“In determining whether a complaint fails to state a claim, the court may consider only

the facts alleged in the complaint, any documents either attached to or incorporated in the

complaint, and matters of which [the court] may take judicial notice.” Palakuru v. Renaud, 521

F. Supp. 3d 46, 49 (D.D.C. 2021) (cleaned up). A court may take judicial notice of information

posted on official public websites of government agencies. Devani, 2023 WL 2913645, at *3,

n.1 (citing Arab v. Blinken, 600 F. Supp. 3d 59, 63 n.1 (D.D.C. 2022)).

Ms. Krihely invokes the Court’s mandamus jurisdiction under 28 U.S.C. § 1361 to

compel USCIS to adjudicate her I-526 petition.2 Compl. ¶ 46. Courts may issue writs of

mandamus to “compel an officer or employee of the United States or any agency thereof to

perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “[C]onsideration of any mandamus

petition starts from the premise that issuance of the writ is an extraordinary remedy, reserved

only for the most transparent violations of a clear duty to act.” In re Core Commc’ns, Inc., 531

F.3d 849, 855 (D.C. Cir. 2008) (internal quotation marks and citations omitted). The central

2
The Court evaluates claims of unreasonable delay under both the Mandamus Act and
the APA using the same standard. Mokkapati v. Mayorkas, No. 21-1195, 2022 WL 2817840, at
*4 (D.D.C. July 19, 2022); Palakuru, 521 F. Supp. 3d at 54.

4
question, then, is “whether the agency’s delay is so egregious as to warrant mandamus.” Id.

(quoting Telecomms. Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79 (D.C. Cir.

1984)).

Six factors guide the Court’s analysis for claims of unreasonable delay:

(1) the time agencies take to make decisions must be governed by a “rule of
reason”;

(2) where Congress has provided a timetable or other indication of the speed with
which it expects the agency to proceed in the enabling statute, that statutory
scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency
activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests
prejudiced by delay; and

(6) the court need not find any impropriety lurking behind agency lassitude in
order that agency action is “unreasonably delayed.”

TRAC, 750 F.2d at 80 (cleaned up). “Resolution of a claim of unreasonable delay is ordinarily a

complicated and nuanced task requiring consideration of the particular facts and circumstances

before the court.” Mashpee Wampanoag Tribal Council, Inc. v. Norton (“Mashpee”), 336 F.3d

1094, 1100 (D.C. Cir. 2003). However, courts apply the TRAC factors at the motion-to-dismiss

phase of cases involving unreasonable delay where the “record contains enough facts to evaluate

the TRAC factors.” Punt, 2023 WL 157320, at *3; see Devani, 2023 WL 2913645, at *3

(collecting cases).

IV. ANALYSIS

Ms. Krihely contends that it would be “premature” at the motion-to-dismiss stage to

analyze the TRAC factors without discovery. See Pl.’s Resp. Opp’n Defs.’ Mot. Dismiss (“Pl.’s

5
Opp’n”) at 10, 16–17, ECF No. 7. However, the record “contains enough facts to evaluate the

TRAC factors,” so the Court proceeds accordingly. See Punt, 2023 WL 157320, at *3. The D.C.

Circuit has identified the first TRAC factor as the “most important” of the six. Devani, 2023 WL

2913645, at *3 (citing Core Commc’ns, 531 F.3d at 855). Meanwhile, the fourth factor “carries

the greatest weight in many cases.” Milligan v. Pompeo, 502 F. Supp. 3d 302, 319 (D.D.C.

2020). Therefore, the Court begins its evaluation with these most important factors. Neither

favors relief.

A. First Factor

The first TRAC factor “requires an inquiry into whether there is any rhyme or reason for

the Government’s delay.” Palakuru, 521 F. Supp. 3d at 50–51 (internal quotations omitted).

“[T]he Court must determine ‘whether the agency’s response time complies with an existing

specified schedule and whether it is governed by an identifiable rationale.’” Devani, 2023 WL

2913645, at *3 (quoting Ctr. for Sci. in the Pub. Int. v. FDA, 74 F. Supp. 3d 295, 300 (D.D.C.

2014)).

USCIS’s adjudication of I-526 petitions conforms to a rule of reason. On July 18, 2023,

USCIS modified its petition-review system, announcing that it will group petitions filed on or

before November 30, 2019 by new commercial enterprise within the queue where the project has

been reviewed and a visa is or soon will be available. See USCIS Updates Visa Availability

Approach for Managing Form I-526 Petition Inventory (“USCIS Alert”), USCIS (July 18, 2023),

https://www.uscis.gov/newsroom/alerts/uscis-updates-visa-availability-approach-for-managing-

form-i-526-petition-inventory; Notice Suppl. Auth. at 2, ECF No. 9. Within that queue, USCIS

will order petitions in a “first-in, first-out” methodology, determined “by date of the earliest filed

petition in that queue for each [new commercial enterprise].” See Update to Visa Availability

6
Approach for Form I-526 (“USCIS Update”), USCIS (last updated July 18, 2023),

https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-

immigration-fifth-preference-eb-5/update-to-visa-availability-approach-for-form-i-526. The

purpose of the new policy is to “increase productivity” and “more efficiently process Form I-526

petitions” by allowing the agency to consider petitions related to the same commercial enterprise

simultaneously, given that the “project documents are often the same.” See id.

USCIS’s recent update did not change its general adherence to the “visa availability

approach,” whereby petitioners “from countries where visas are currently available or soon to be

available” receive priority. Defs.’ Mot. at 12; Devani, 2023 WL 2913645, at *3; Questions and

Answers: EB-5 Immigrant Investor Program Visa Availability Approach (“USCIS Q. & A.”),

USCIS (last updated Aug. 28, 2023), https://www.uscis.gov/working-in-the-united-

states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/questions-and-

answers-eb-5-immigrant-investor-program-visa-availability-approach. For petitions where visas

are available now or soon, USCIS follows a “first-in, first-out” approach.3 Defs.’ Mot. at 13;

Telles v. Mayorkas, No. 21-395, 2022 WL 2713349, at *3 (D.D.C. July 13, 2022).

This Court agrees with many others in this District that the “visa availability approach”

adheres to an “identifiable rationale.” See Devani, 2023 WL 2913645, at *3; see Da Costa, 2023

WL 5313526, at *6 (concluding that USCIS “employs a rule of reason to adjudicate Form I-526

petitions”). “The availability method ensures that candidates for whom a visa is available have

their applications processed in a timely manner.” Da Costa v. Immigr. Inv. Program Off., No.

3
Pursuant to the July 2023 update, petitions with visas available now or soon that are
linked to either a reviewed project (with multiple investors) or a “non-pooled” standalone project
are first grouped by new commercial enterprise, and then ordered according to the “first-in, first
out” approach. See USCIS Update.

7
22-cv-1576, 2022 WL 17173186, at *8 (D.D.C. Nov. 16, 2022), aff’d, No. 22-5313, 2023 WL

5313526 (D.C. Cir. Aug. 18, 2023). Moreover, a “first-in, first-out” workflow is “generally

treated as a rule of reason.” Telles, 2022 WL 2713349, at *3 (quotations omitted). USCIS’s

recent update, which aims to increase efficiency and reduce petition backlogs, see USCIS

Update, maintains—if not enhances—a system with a “specified schedule” and “identifiable

rationale,” see Devani, 2023 WL 2913645, at *3.

Contrary to Ms. Krihely’s assertions, the suspension of the Regional Center Program

does not negate the rule of reason; rather, USCIS resumed processing existing I-526 petitions

upon reauthorization of the program, preserving petitioners’ places in line. See Reply Supp.

Defs.’ Mot. Dismiss (“Defs.’ Reply”) at 10, ECF No. 8; USCIS Listening Session at 4–5. Ms.

Krihely also suggests that USCIS has “not complied with its own purported visa availability

approach.” Pl.’s Opp’n at 18–19. But this bare assertion, without more, fails to allege factual

matter sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at

555. Accordingly, the first factor weighs in favor of Defendants.

B. Fourth Factor

The fourth TRAC factor concerns the “effect of expediting delayed action on agency

activities of a higher or competing priority.” TRAC, 750 F.2d at 80. This factor is so weighty

that the D.C. Circuit has “refused to grant relief, even though all the other factors considered in

TRAC favored it, where a judicial order putting the petitioner at the head of the queue would

simply move all others back one space and produce no net gain.” Mashpee, 336 F.3d at 1100

(cleaned up). Because this is precisely the case here, the fourth factor favors Defendants.

When Ms. Krihely filed her complaint, her I-526 petition had been pending well short of

the 52.5-month period by which USCIS adjudicates eighty percent of petitions. Compl. ¶ 10.

8
Ms. Krihely’s arguments, therefore, do not “account for the possibility that many others in [her]

situation . . . filed their petitions before [she] did.” Telles, 2022 WL 2713349, at *4 (internal

quotations omitted); accord Punt, 2023 WL 157320, at *4. Were this Court to grant Ms. Krihely

relief, it would be allowing “line jumping ahead of other eligible petitioners who had been

waiting longer.” See Da Costa, 2023 WL 5313526, at *5.

Ms. Krihely does not allege that USCIS treated her differently from anyone else similarly

situated. See Punt, 2023 WL 157320, at *4. Consequently, granting her relief would effectively

let her “cut in line in front of others . . . simply because [she] sued in this Court.” See Bega v.

Jaddou, No. 22-cv-02171, 2022 WL 17403123, at *8 (D.D.C. Dec. 2, 2022), aff’d sub nom. Da

Costa v. Immigr. Inv. Program Off., No. 22-5313, 2023 WL 5313526 (D.C. Cir. Aug. 18, 2023)

(cleaned up). “It makes little sense to incentivize the creation of a queue of visa applicants

within the docket of the federal judiciary to determine the order of the queue for visa

applications.” Manzoor v. USCIS, No. 21-2126, 2022 WL 1316427, at *6 (D.D.C. May 3, 2022).

Particularly given the recent reauthorization of the Regional Center Program, USCIS is entitled

to deference to set its own priorities and allocate its resources. See Mokkapati, 2022 WL

2817840, at *6; see also Telles, 2022 WL 2713349, at *5.

Ms. Krihely disputes “whether there is a line” and requests discovery to investigate the

existence of the queue and, if one exists, assess “what modicum of harm would result if Plaintiff

received an adjudication.” Pl.’s Opp’n at 21. However, Ms. Krihely’s conclusory suggestion

that USCIS does not follow a queue in I-526 adjudication, without further factual basis, fails to

“raise a right to relief above the speculative level.” See Twombly, 550 U.S. at 555. Moreover,

“[t]he existence of a backlog of I-526 petitions is unfortunately not hypothetical.” Da Costa,

2022 WL 17173186, at *10 (rejecting a plaintiff’s argument that without discovery, the court

9
cannot assess whether there is a line for I-526 adjudication); USCIS Q. & A. (“Workflows are

generally managed in FIFO [first-in, first-out] order when a visa is available or will be available

soon.”).

The Court is inclined to agree with Ms. Krihely that the “normal processing time” for an

I-526 petition, 52.5 months, or nearly four-and-a-half years, is substantial.4 See Da Costa, 2023

WL 5313526, at *7 (describing a wait of four-and-a-half years for processing as “undoubtedly

maddening”); Uranga v. USCIS, 490 F. Supp. 3d 86, 105 (D.D.C. 2020) (declaring a four-year

wait for adjudication of U-visas to be unreasonable, but denying the plaintiff’s mandamus

action). But according to Circuit precedent, such a finding alone does not “justify judicial

intervention, even when the agency’s pace is . . . ‘glacial.’” Uranga, 490 F. Supp. 3d at 105

(quoting Mashpee, 336 F.3d at 1097) (internal citation omitted). In the TRAC context, the

reasonableness of a delay “cannot be decided in the abstract” but rather depends upon agency-

specific determinations. Mashpee, 336 F.3d at 1102. Furthermore, Ms. Krihely does not point to

any “unique considerations that warrant an expedited review” of her petition, nor does she

contend that the agency has treated her unfairly or differently than any of the other applicants

waiting in the I-526 queue.5 Uranga, 490 F. Supp. 3d at 105.

4
The Court reiterates, however, that at the time Ms. Krihely filed her complaint, she had
not waited 52.5 months; rather, approximately 34 months had passed. For nine of those months,
the Regional Center Program lacked congressional authorization, and most courts in this District
have excluded those months for the purpose of calculating an agency’s delay. See, e.g., Devani,
2023 WL 2913645, at *4. From the perspective of the Court, then, Ms. Krihely’s petition had, as
of the date on which she filed her complaint, therefore been stalled for approximately 25
months—a length that, while considerable, falls well within the range that courts in this District
have found to be not unreasonable as a matter of law. See Devani, 2023 WL 2913645, at *4 (32
months); Bega, 2022 WL 17403123, at *7 (32 to 40 months); Telles, 2022 WL 2713349, at *4
(33 months); Punt, 2023 WL 157320, at *4 (20 months).
5
Ms. Krihely argues that USCIS’s pause in adjudicating I-526 petitions during the sunset
period without statutory authorization was incorrect and unlawful, relying heavily on a single
out-of-Circuit case, Behring Reg’l Ctr., LLC v. Mayorkas, No. 22-cv-02487, 2022 WL 2290594

10
 “Since ordering the agency to adjudicate [Ms. Krihely’s petition] now would merely

move [her] up the line, and move everyone else back, in the view of the Court of Appeals, that

would create more unfairness than it would remedy given the likely number of equally worthy

applicants.” See id. Accordingly, the Court agrees with other courts in this District that have

found that the fourth TRAC factor weighs against relief in substantially similar situations. See,

e.g., Punt, 2023 WL 157320, at *4; Devani, 2023 WL 2913645, at *5.

C. Second Factor

The second TRAC factor prompts the Court to consider whether “Congress has provided

a timetable or other indication of the speed with which it expects the agency to proceed.” TRAC,

750 F.2d at 80. Here, this factor tips somewhat in Ms. Krihely’s favor.

Congress declared that “[i]t is 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.” 8 U.S.C. § 1571(b). This provision applies to I-526 petitions. See id.

The parties agree that this “sense of Congress” is not mandatory or binding on USCIS. See

Compl. ¶ 27; Defs.’ Mot. at 16. Indeed, “a sense of Congress resolution is not law.” See

Devani, 2023 WL 2913645, at *4 (cleaned up). Many courts have thus concluded that the

language is merely “hortatory” and “precatory,” ignoring the 180-day timeline. See, e.g., id.;

(N.D. Cal. June 24, 2022). See Pl.’s Opp’n at 6–9, 13, 18. But as a court in this District found in
an opinion affirmed by the D.C. Circuit, the Government’s position in Behring is not in tension
with its position here. See Da Costa, 2022 WL 17173186, at *7. In Behring, the Government
claimed that it had authority to continue to regulate existing Regional Centers during the sunset
period and to process forms granting permanent residency to immigrant investors—but not to
process I-526 petitions for conditional residency. Id. Moreover, the plain language of the statute
creating the Regional Center Program did not establish any obligation for USCIS to continue
processing I-526 forms after June 30, 2021; instead the EB-5 program was a “pilot” whose
authorization lapsed. Id. at *6.

11
Punt, 2023 WL 157320, at *4; Da Costa, 2023 WL 5313526, at *9 (describing Congress’s

statement as “aspirational”).

However, “the question posed in TRAC is not whether Congress has established a binding

timetable,” but “whether Congress has ‘provided . . . [an] indication of the speed with which it

expects the agency to proceed.’” Uranga, 490 F. Supp. 3d at 103 (quoting TRAC, 750 F.2d at

80). Congress’s language in § 1571(b) certainly provides such an indication. See Thakker v.

Renaud, No. 20-1133, 2021 WL 1092269, at *6 (D.D.C. Mar. 22, 2021). “[A]fter all, Congress

had the option of saying nothing on the subject at all.” Uranga, 490 F. Supp. 3d at 103; accord

Telles, 2022 WL 2713349, at *4. Here, Ms. Krihely’s application had been pending for over two

years at the time she filed her complaint, excluding the period where the Regional Center

Program lacked congressional authorization—far longer than Congress’s stated goal of six

months. Consequently, this Court joins others in this District in finding that the second factor

tips in Plaintiff’s favor. See Thakker, 2021 WL 1092269, at *6; Uranga, 490 F. Supp. 3d at 103;

Telles, 2022 WL 2713349, at *4. Even so, because the 180-day threshold is “aspirational, not

mandatory,” the Court “weigh[s] it accordingly.” Telles, 2022 WL 2713349, at *4.

D. Third and Fifth Factors

The third and fifth TRAC factors are “often considered in tandem.” Devani, 2023 WL

2913645, at *4. Together, these factors prompt the Court to consider the impact of delay on the

plaintiff-petitioner. See TRAC, 750 F.2d at 80. When the harm is primarily economic and

“human health and welfare” are not at stake, these factors generally weigh in favor of the agency.

See id.; Bega, 2022 WL 17403123, at *7. Conversely, the “prolonged and indefinite separation

of families” has tipped the third and fifth factors in favor of plaintiffs. See Mokkapati, 2022 WL

2817840, at *6.

12
 By contrast, the financial risks that a petitioner has undertaken to apply for an EB-5 visa

are “insufficient to tip TRAC factors three and five in [the petitioner’s] favor.” Da Costa, 2023

WL 5313526, at *9. Difficulties planning for the future and protecting investments are

“economic in nature” and thus favor defendants. Bega, 2022 WL 17403123, at *7; see Telles,

2022 WL 2713349, at *4. The assertion that the delay in processing petitions has put a

plaintiff’s life “on hold” fails to rise to the level of health-and-welfare harms on which the third

and fifth factors hinge. Thakker, 2021 WL 1092269, at *7.

Here, Ms. Krihely alleges that as a result of the delay, she “suffers immediate and future

harm in the form of distress, and professional disruption.” Compl. ¶ 12. She further points to

the uncertainty of having to wait, see id. ¶ 54, and her inability to “make any additional financial

planning for the business or [her] family,” “leave the U.S. for business trips which hurt future

contractual obligations and potential business opportunities,” and apply for business loans, see

Compl. Ex. B ¶ 7, ECF No. 1-2. The Court does not question the disruption Ms. Krihely has

experienced, but, excepting the “vague and conclusory reference to [dis]tress,” see Telles, 2022

WL 2713349, at *4, her alleged harms are all “economic in nature,” see Bega, 2022 WL

17403123, at *7.

The only other arguably non-economic harms that Ms. Krihely raises are that her

temporary status has made health insurance too costly, putting her and her family at risk of not

receiving “appropriate care,” and that she cannot travel internationally to see her family. See

Compl. Ex. B ¶ 7. These harms do not rise to the level of grave threats to health and welfare that

tipped these factors toward the plaintiffs in other cases because Ms. Krihely’s immediate family

lives together, and she has not identified a “serious” threat to her or her family’s health.

Compare Mokkapati, 2022 WL 2817840, at *6 (holding that the plaintiffs’ interest in reuniting

13
with loved ones abroad tipped the third and fifth TRAC factors in the plaintiffs’ favor) with Da

Costa, 2023 WL 5313526, at *10 (highlighting that the plaintiffs have not linked their personal

circumstances to conditions in South Africa and have not alleged inability to access electricity,

water, good, or shelter); Punt, 2023 WL 157320, at *5. Instead, the harms Ms. Krihely has

identified are “inherent” risks of the EB-5 visa process. See Da Costa, 2022 WL 17173186, at

*10. Consequently, the third and fifth TRAC factors weigh in favor of Defendants.

E. Sixth Factor

Finally, the sixth and final factor, the question of agency impropriety, is neutral. Ms.

Krihely alleges, without elaborating, that Defendants made a “policy decision to under-staff” the

office charged with processing I-526 petitions, Compl. ¶ 43, but she “does not press these

arguments in support of the sixth [TRAC] factor,” Palakuru, 521 F. Supp. 3d at 53 (holding that

the sixth factor was neutral where the plaintiff alleged that the Government had engaged in

“purposeful delay” without providing further factual basis for the claim). Ms. Krihely’s charge

is nothing more than a “speculative observation” that lacks the “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

See Bega, 2022 WL 17403123, at *8; Thakker, 2021 WL 1092269, at *8 (quoting Iqbal, 556

U.S. at 678). In fact, USCIS is “expand[ing] staffing” and updating technology to reduce

backlogs in addition to its updates to the visa availability approach. See Reducing Processing

Backlogs, USCIS (last accessed Sept. 20, 2023), https://egov.uscis.gov/processing-

times/reducing-processing-backlogs; USCIS Update. Therefore, Ms. Krihely “has not alleged

specific facts sufficient to permit a reasonable inference of bad faith here.” See Punt, 2023 WL

157320, at *5. As in Palakuru, then, the sixth factor does not affect the Court’s analysis.

***

14
 Taken together, all but the second of the TRAC factors weighs in favor of Defendants.

The Court does not make light of the difficulties Ms. Krihely has faced as a result of the delayed

adjudication of her Form I-526. All told, she has now waited over three-and-a-half years since

filing her petition, a considerable period. But even the “troubling backlog of petitions” and the

“increasingly sluggish pace of adjudication” are not sufficient for judicial relief here. Da Costa,

2023 WL 5313526, at *9.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: September 25, 2023 RUDOLPH CONTRERAS
United States District Judge

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