Zhang v. United States Citizenship and Immigration Services

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
HUASHAN ZHANG, et al., )
)
Plaintiffs, )
)
v. ) Case No. 15-cv-995 (EGS)
)
UNITED STATES CITIZENSHIP AND )
IMMIGRATION SERVICES, et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION

I. Introduction

Almost thirty years ago, Congress established the EB-5 Visa

Program (“the Program”) to stimulate the economy and create jobs

through foreign capital investment. Under the Program, “alien

investors” may become eligible to immigrate to the United States

in return for investing certain qualifying amounts of capital in

a commercial enterprise in the United States. Plaintiffs in this

case are individual alien investors whose EB-5 visa petitions

were denied by the agency that oversees the Program: the United

States Citizenship and Immigration Services (“USCIS”).

Plaintiffs allege that their petitions were denied based on

USCIS’ flawed interpretation of its own regulation. As such,

they challenge USCIS’ decisions to deny their petitions as

arbitrary and capricious in violation of the Administrative

1
Procedure Act (“APA”), 5 U.S.C. § 706, and the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1153(b)(5). Plaintiffs also

claim that USCIS exceeded its statutory authority under the INA

by denying their petitions and impermissibly applying its

interpretation retroactively. Finally, plaintiffs claim that

USCIS engaged in improper rulemaking without notice and comment,

also in violation of the APA.

Pending before the Court are: (1) plaintiffs’ motion for

summary judgment; (2) USCIS’ cross-motion for summary judgment;

(3) plaintiffs’ motion to certify class; and (4) plaintiffs’

motion to amend the complaint. Upon consideration of the

motions, the responses and replies thereto, the relevant case

law, and the entire record herein, the Court GRANTS IN PART

plaintiffs’ motion for summary judgment, DENIES USCIS’ cross-

motion for summary judgment, GRANTS plaintiffs’ motion to

certify class (albeit with a modified class definition), and

DENIES AS MOOT plaintiffs’ motion to amend the complaint. Rather

than approve plaintiffs’ petitions, however, the Court instead

VACATES USCIS’ denials of the class members’ petitions and

REMANDS the denials to USCIS for reconsideration consistent with

this Memorandum Opinion.

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II. Background

A. Statutory and Regulatory Background

The INA authorizes the United States to issue visas to

certain qualified immigrants. See Pub. L. No. 101-649 § 121(a)

(codified as 8 U.S.C. § 1153(b)(5)(1990)). In 1990, Congress

created the EB-5 Visa Program as one of five categories of

employment-based immigration preferences to “create new

employment for U.S. workers and to infuse new capital into the

country.” S. Rep. No. 101-55, at 21 (1989). To be eligible for

an EB-5 visa, an alien must “invest[]” a certain amount of

“capital” in a “commercial enterprise” to “benefit the United

States economy and create full-time employment for not fewer

than [ten] United States citizens or aliens lawfully admitted .

. . .” 8 U.S.C. § 1153(b)(5)(A). An alien investor must

generally invest $1,000,000 of “capital” into a new commercial

enterprise, but in economically depressed areas, or “targeted

employment areas,” the required amount of capital may be reduced

to $500,000. Id. § 1153(b)(5)(C); 8 C.F.R. §204.6(f)(regulating

the “required amounts of capital”).

In 1991, the Immigration and Naturalization Service

(“INS”)—USCIS’ predecessor agency—promulgated regulations to

implement the EB-5 Program. See 8 C.F.R. § 204.6 (1991). Among

other things, the regulations set forth the criteria necessary

to qualify for an EB-5 visa preference. See id. To apply, an

3
alien investor must first submit a Form I-526 immigration

petition (“petition” or “I-526 petition”). Id. § 204.6(a). The

petition must be “accompanied by evidence that the alien 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

[ten] qualifying employees.” Id. § 204.6(j). If the alien

investor’s I-526 petition is approved, he or she may apply for a

visa, which would allow the alien and his or her spouse and

children to be admitted to the United States on a conditional

basis. See 8 U.S.C. § 1202(a); 8 U.S.C. § 1186b(a)(1). If the

alien investor fulfills the EB-5 visa requirements within two

years, he or she may petition for permanent residence. Id. §

1186b(c)(1), (d)(2)(A). The burden of proof to establish

eligibility rests with the alien investor. See 8 U.S.C. § 1361.

To further delineate the general eligibility criteria, the

EB-5 regulations define certain key terms that are otherwise

undefined in the INA. 8 C.F.R. § 204.6(e). For example, to

“invest” in the new commercial enterprise and create employment,

the alien investor must “contribute [a qualifying amount of]

capital” to that enterprise. Id. “Capital” is defined as “cash,

equipment, inventory, other tangible property, cash equivalents,

and indebtedness secured by assets owned by the alien

entrepreneur, provided that the alien entrepreneur is personally

4
and primarily liable and that the assets of the new commercial

enterprise . . . are not used to secure any of the

indebtedness.” Id. To qualify as “capital,” the invested asset

must have been lawfully-obtained: “assets acquired, directly or

indirectly, by unlawful means . . . shall not be considered

capital.” Id. The regulations further clarify that a

“contribution of capital in exchange for a note . . .

obligation, or any other debt arrangement between the alien

entrepreneur and the new commercial enterprise does not

constitute a contribution of capital.” Id.

At issue in this case is whether loan proceeds invested as

cash constitute “cash,” as plaintiffs claim, or “indebtedness,”

as USCIS claims. On April 22, 2015, USCIS’ Immigrant Investor

Program Office (“IPO”) released remarks stating that invested

loan proceeds “may qualify as capital used for EB-5 investments,

provided that the requirements placed upon indebtedness by 8

C.F.R. § 204.6(e) are satisfied.” See USCIS, Immigrant Investor

Program Office, EB-5 Telephonic Stakeholder Engagement: IPO

Deputy Chief’s Remarks (Apr. 22, 2015), available at

https://www.uscis.gov/sites/default/files/USCIS/Outreach/PED_IPO

_Deputy_Chief_Julia_Harrisons_Remarks.pdf (hereinafter referred

to as “2015 IPO Remarks”)(emphasis in original). The remarks

specifically mandated:

5
 When using loan proceeds as EB-5 capital, a
petitioner must demonstrate first that they
are personally and primarily liable for the
indebtedness. That is, they must demonstrate
that they bear primary responsibility under
the loan documents for repaying the debt that
is being used to satisfy the petitioner’s
minimum required investment amount.

In addition, the petitioner must demonstrate
that the indebtedness is secured by assets the
petitioner owns and that the value of such
collateral is sufficient to secure the amount
of indebtedness that is being used to satisfy
the petitioner’s minimum required investment
amount.

Id. at 1. Plaintiffs argue that the 2015 IPO Remarks “announced

a change in [USCIS’] longstanding adjudicatory practice

concerning the classification of loan proceeds.” Pls.’ Mot. for

Summ. J. (“MSJ”), ECF No. 19 at 21. 1 In so doing, USCIS

“fundamentally reworked the definition of ‘capital’” under 8

C.F.R. § 204.6(e). Id. at 22. As such, plaintiffs challenge

USCIS’ interpretation of the regulation and argue that cash

obtained from third-party loans and invested in an enterprise

qualifies as “cash” within the regulatory definition of

“capital” rather than “indebtedness.” See generally Pls.’ MSJ,

ECF No. 19.

1 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
6
 B. Plaintiffs’ I-526 Petitions

The individually-named plaintiffs are two alien investors

who challenge USCIS’ decision to deny their petitions on behalf

of a putative class of alien investors. Compl., ECF No. 1 ¶ 1;

see Pls.’ Mot. for Class Certification (“Pls.’ Class Cert.

Mot.”), ECF No. 10. As certified below, the plaintiffs represent

all Form I-526 petitioners who: (1) invested cash in a new

commercial enterprise in an amount sufficient to qualify as an

EB-5 investor; (2) obtained some or all of the cash invested in

the new commercial enterprise through a loan; (3) filed an I-526

petition based on that investment; 2 and (4) received or will

receive a denial of their I-526 petition solely on the ground

that the loan used to obtain the invested cash fails the

collateralization test described in the USCIS 2015 IPO Remarks

announcement.

Named plaintiff Huashan Zhang is a citizen of the People’s

Republic of China seeking to immigrate to the United States with

his wife and children. Zhang Admin. R. (“Zhang A.R.”), ECF Nos.

27-2, 27-3, 27-4. On December 23, 2013, Mr. Zhang filed an I-526

2 Plaintiffs’ proposed class definition seeks to include
petitioners who “filed an I-526 petition prior to April 22,
2015.” Because the Court need not resolve the retroactivity
claim, as USCIS’ interpretation is contrary to the regulation
and violative of the APA, this date limitation serves no
purpose. The Court has therefore modified the class definition
accordingly. See infra Sec. III.B.7.
7
petition claiming that he fulfilled the minimum capital

requirement by investing $500,000 in cash in a new commercial

enterprise in Las Vegas, Nevada. Zhang A.R., ECF No. 27-2 at 4-

26. Mr. Zhang obtained the invested $500,000 via a loan from

Shaanxi Northwest Textile and Dyeing Company (“Shaanxi

Northwest”). Id. at 22. Mr. Zhang owns 99 percent of Shaanxi

Northwest. Id. The loan was secured by his undistributed profits

held by the company, which greatly exceeded $500,000. Id. at 22-

25; Zhang A.R., ECF No. 27-3 at 4 (loan agreement between

Shaanxi Northwest and Mr. Zhang). Shaanxi Northwest wired the

loan proceeds to Mr. Zhang’s personal account. Zhang A.R., ECF

No. 27-2 at 20, 25-26. Mr. Zhang then converted the loan

proceeds into U.S. currency and wired the funds into an escrow

account earmarked for the new commercial enterprise. Id.

On May 28, 2015, USCIS denied Mr. Zhang’s I-526 petition,

asserting that Mr. Zhang did not place the required amount of

capital at risk for the purpose of generating a return on his

investment. Zhang A.R., ECF No. 27-4 at 175-85. Interpreting the

invested cash loan proceeds as “indebtedness,” USCIS determined

that Mr. Zhang’s investment did not qualify as “capital” because

the Shaanxi Northwest loan was not secured by his personal

assets. Id. at 179-80. Instead, Mr. Zhang’s loan was secured

solely by his undistributed profits, which belonged to Shaanxi

Northwest until distributed. Id. Because Mr. Zhang had not met

8
the requirements for “indebtedness,” USCIS concluded that he

“had not placed the required amount of capital at risk for the

purposes of generating a return on his investment as the

shareholder loan proceeds do not constitute qualifying capital

pursuant to 8 C.F.R. § 204.6(e).” Id. at 180 (emphasis added).

Second named plaintiff Mayasuki Hagiwara is a Japanese

citizen seeking to immigrate to the United States with his wife

though the EB-5 Program. Hagiwara Admin. R. (“Hagiwara A.R.”),

ECF No. 27-1. On March 17, 2014, Mr. Hagiwara filed his I-526

petition with USCIS, asserting eligibility based on his $500,000

cash investment in a new commercial enterprise in Tonopah,

Nevada. Id. at 4-14. Mr. Hagiwara obtained the invested $500,000

via a personal loan from J. Kodama, Inc., a Hawaiian corporation

of which Mr. Hagiwara is a majority shareholder. Id. at 10. The

loan was secured by Mr. Hagiwara’s stock holdings in the

corporation. Id. at 254. The funds were wired and “released” to

the new commercial enterprise “for deployment” in accordance

with its business plan. Id. at 11.

Employing the same general reasoning as in Mr. Zhang’s

case, USCIS denied Mr. Hagiwara’s I-526 petition on March 27,

2015. Id. at 392-95. USCIS found that Mr. Hagiwara’s investment

did not qualify as “capital” pursuant to 8 C.F.R. § 204.6(e)

because he invested cash loan proceeds that were not secured by

personal assets. Id. at 394-95. Although Mr. Hagiwara protested

9
that he had invested “cash” and not “indebtedness,” USCIS

reasoned that investing loan proceeds is tantamount to investing

indebtedness, which must be secured by the petitioner’s personal

assets under the regulation. Id. at 395. USCIS concluded that

the regulation “clearly precluded” characterizing “all unsecured

third-party loans” as contributions of cash and denied his

petition. Id.

C. Procedural History

Plaintiffs filed their complaint on June 23, 2015 and all

pending motions were ripe for review by June 2016. However, the

Court stayed the case in March 2017 when the parties indicated

that they were amenable to settlement assistance from the

Court’s mediation program. Mediation efforts failed, and the

pending motions are ready for adjudication.

III. Analysis

Pending before the Court are: (1) plaintiffs’ motion for

summary judgment; (2) USCIS’ cross-motion for summary judgment;

(3) plaintiffs’ motion to certify class; and (4) plaintiffs’

motion to amend the complaint. The Court first considers the

cross-motions for summary judgment. The Court analyzes two of

plaintiffs’ four claims: (1) that USCIS’ interpretation of 8

C.F.R. § 204.6, the EB-5 regulation, is erroneous because it

contravenes the regulation’s plain meaning; and (2) that USCIS

violated the APA because its interpretation is a legislative

10
rule promulgated without notice and comment. Because the Court

agrees with plaintiffs on these two claims, it need not assess

plaintiffs’ two other claims: (1) that USCIS’ application of its

interpretation has been impermissibly applied retroactively; 3 and

(2) that USCIS’ interpretation is ultra vires and exceeds its

statutory authority conferred by the INA. The Court then

considers plaintiffs’ motion to certify class. Because the Court

grants in part plaintiffs’ motion for summary judgment and

motion to certify class, it need not consider the pending motion

to amend the complaint.

A. Cross-Motions for Summary Judgment

Though each of plaintiffs’ four claims against USCIS is

disputed, the essential issue is whether lawfully-obtained, loan

proceeds invested in the enterprise as cash are properly

characterized as “cash” or as “indebtedness” pursuant to 8

C.F.R. § 204.6(e). Because the Court agrees that USCIS’

interpretation of its regulation is plainly erroneous, denying

plaintiffs’ petitions pursuant to that interpretation was

arbitrary and capricious. Moreover, the Court finds that USCIS’

3 Plaintiffs agree that the retroactivity analysis need not be
reached if the Court finds that USCIS’ interpretation is
arbitrary and capricious. See Pls.’ MSJ, ECF No. 19 at 51
(“Indeed, the retroactivity analysis starts with the assumption
that the policy or interpretation at issue is not arbitrary and
capricious. If a rule is arbitrary and capricious, the issue of
retroactivity is moot because the rule cannot be applied
prospectively, much less retroactively.”).
11
interpretation effectively amends a regulation without notice

and comment, violating the APA.

1. USCIS’ Interpretation of 8 C.F.R. § 204.6(e) is Plainly
Erroneous

a. The Parties’ Arguments

Plaintiffs argue that USCIS’ interpretation 4—that third-

party loan proceeds invested as cash in a commercial enterprise

are properly characterized as “indebtedness” within the meaning

of “capital”—is plainly erroneous. Plaintiffs contend that

USCIS’ interpretation, as articulated in the 2015 IPO Remarks,

“ignores the plain language, structure, history, and purpose of

the regulation on which it purports to be based.” Pls.’ MSJ, ECF

No. 19 at 30. They argue that the plain meaning of the word

“cash” encompasses cash loan proceeds and the definition of

“capital” in the regulation mandates that lawfully-obtained

“cash” necessarily qualifies as “capital” without further

collateral prerequisites. Id. at 31-33 (“[C]ash obtained from a

loan is no less ‘cash’ than cash obtained from any other

source.”). Because plaintiffs invested the requisite amount of

4 Plaintiffs refer to USCIS’ interpretation of the regulation as
the “collateralization rule.” See, e.g., Pls.’ MSJ, ECF No. 19.
While the Court finds that USCIS’ interpretation was in fact a
legislative rule subject to the APA’s notice and comment
procedures, the Court will not refer to it as a “rule” and will
instead use the term “interpretation” for consistency and
clarity.
12
lawfully-obtained cash, they argue that they satisfactorily

invested “capital.” Id. at 30-35.

Plaintiffs also argue that cash loan proceeds cannot be

characterized as “indebtedness,” the only form of “capital” that

must be secured by assets owned by the alien investor. Id. at

33-34. Because indebtedness means the “condition of being

indebted,” plaintiffs contend that investing indebtedness is

only “an asset of value to the new commercial enterprise” when

“it describes an investor’s obligation to make monetary payments

to the enterprise at a later date.” Id. at 33 (emphasis added).

Thus, “indebtedness” is not a debt to an unrelated third-party

lender, but rather a debt to the enterprise itself. Id. at 33-

35. Plaintiffs also argue that USCIS’ interpretation is

inconsistent with the history and structure of the regulation

and the INA. See id. at 36-37. Finally, plaintiffs argue that

USCIS did not provide a rational explanation for its

interpretation and that USCIS ignored the unfair effect of

applying its interpretation retroactively to plaintiffs’ cases. 5

Id. at 37-38.

USCIS responds that its decision to deny plaintiffs’

petitions was “reasonable.” Defs.’ MSJ & Opp’n, ECF No. 22 at

5 The Court need not reach these additional arguments because it
finds that USCIS’ interpretation was contrary to the plain
meaning of its regulation.
13
13. According to USCIS, its decisions were based on its

“longstanding interpretation of its regulation” that cash loan

proceeds invested in an enterprise are properly characterized as

“indebtedness,” and thus must be personally collateralized to

qualify as “capital.” Id. at 24. Therefore, to qualify, a

petition must establish that the alien investor “secured the

loan using assets for which they own and are personally and

primarily liable.” Id.

USCIS also argues that its interpretation is not erroneous

because it “aligns with the foundational requirements that the

alien investor must demonstrate that he is placing capital he

owns directly at risk.” Id. at 25 (citing 8 C.F.R. §

204.6(j)(2),(3)). According to USCIS, an alien investor must

provide different evidence to show that his or her investment is

“at risk” depending on the source of that investment. See id. at

26. Because plaintiffs obtained their capital from loan

proceeds, USCIS argues that they must provide evidence of “any

loan . . . agreement . . . which is secured by assets of the

petitioner” to show that the investment is at risk. Id. (quoting

8 C.F.R. § 204.6(j)(2)(v)). USCIS further contends that if it

simply reduced all financial arrangements to “their tangible end

product – ‘cash,’” as plaintiffs argue, the agency would be

unable to investigate an investor’s ownership and source of

funds. Id. at 27.

14
 Finally, USCIS argues that because the agency is

interpreting its own regulation, it is entitled to “even greater

deference than the Chevron standard,” which plaintiffs have

failed to overcome. Id. at 24 (quoting Consarc Corp. v. U.S.

Treas. Dep’t, 71 F.3d 909, 915 (D.C. Cir. 1995)).

b. Standard of Review

“Summary judgment is the proper mechanism for deciding, as

a matter of law, whether an agency action is supported by the

administrative record and consistent with the APA standard of

review,” which “requires a reviewing court to ‘hold unlawful and

set aside agency action, findings, and conclusions found to be .

. . arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with the law.’” UPMC v. Sebelius, 793 F. Supp.

2d 62, 67 (D.D.C. 2011)(quoting 5 U.S.C. § 706(2)(A)). However,

due to the limited role of a court in reviewing the

administrative record, the typical summary judgment standards

set forth in Federal Rule of Civil Procedure 56(c) are not

applicable. Stuttering Found. Of Am. V. Springer, 498 F. Supp.

2d 203, 207 (D.D.C. 2007) (internal citation omitted). Rather,

“[u]nder the APA, it is the role of the agency to resolve

factual issues to arrive at a decision that is supported by the

administrative record, whereas ‘the function of the district

court is to determine whether or not as a matter of law the

evidence in the administrative record permitted the agency to

15
make the decision it did.’” Id. (quoting Occidental Eng’g Co. v.

INS, 7523 F.2d 766, 769-70 (9th Cir. 1985)). A reviewing court

will “hold unlawful and set aside agency action, findings, and

conclusions found to be . . . arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with the law.” Ludlow

v. Mabus, 793 F. Supp. 2d 352, 354 (D.D.C. 2001) (quoting 5

U.S.C. § 706(2)(A)); see also Tenet Healthsystems Healthcorp. v.

Thompson, 254 F.3d 238, 243 (D.C. Cir. 2001).

The arbitrary and capricious standard of review is

“narrow,” and “a court is not to substitute its judgment for

that of the agency.” F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502, 513-14 (2009)(citations and quotations omitted).

An agency rule will be found to be arbitrary and capricious “if

the agency has relied on factors which Congress has not intended

it to consider, entirely failed to consider an important aspect

of the problem, offered an explanation for its decision that

runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in

view or the product of agency expertise.” Motor Vehicle Mfrs.

Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.

29, 43 (1983).

A reviewing court “must give substantial deference to an

agency’s interpretation of its own regulations.” Thomas

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)(citations

16
omitted). However, such deference “is warranted only when the

language of the regulation is ambiguous.” Christensen v. Harris

County, 529 U.S. 576, 588 (2000)(emphasis added). If the

regulation is ambiguous, the agency's interpretation must be

given “controlling weight unless it is plainly erroneous or

inconsistent with the regulation.” Thomas Jefferson Univ., 512

U.S. at 512 (citations and quotations omitted). However, if an

“‘alternative reading is compelled by the regulation's plain

language or by other indications of the Secretary's intent at

the time of the regulation's promulgation,’” the Court need not

defer to the agency’s interpretation. Id. (quoting Gardebring v.

Jenkins, 485 U.S. 415, 430 (1988)).

c. USCIS’ Interpretation is Plainly Erroneous

The Court first considers whether USCIS’ interpretation—

that loan proceeds invested as cash are properly characterized

as indebtedness—is inconsistent with the plain meaning of the

regulation. If the regulation is clear that cash loan proceeds

are invested as “cash,” USCIS’ interpretation of 8 C.F.R. §

204.6(e), as set forth in the 2015 IPO Remarks, is “plainly

erroneous or inconsistent with the regulation” itself. Auer v.

Robbins, 519 U.S. 452, 461 (1997). As such, USCIS’ decisions to

deny plaintiffs’ petitions based solely on that interpretation

would also be erroneous. See id.; see also 2015 IPO Remarks at

1; See Zhang A.R., ECF No. 27-4 at 179-80 (“[P]etitioner has not

17
demonstrated that he has placed the required amount of capital

at risk . . . as the shareholder loan proceeds do not constitute

qualifying capital pursuant to 8 C.F.R. § 204.6(e).”); Hagiwara

A.R., ECF No. 27-1 at 394-96 (“Petitioner has failed to

establish by a preponderance of the evidence that his unsecured

loan . . . meets the regulatory definition of capital.”).

As discussed below, the Court first finds that the

regulation is unambiguous and USCIS’ interpretation contravenes

its plain meaning. The Court also concludes that USCIS’

interpretation is inconsistent with its own precedent and the

context and history of the EB-5 Program. As such, the Court

concludes that USCIS’ decisions to deny plaintiffs’ petitions

were arbitrary and capricious.

i. The EB-5 Regulation is Unambiguous

The INA mandates that visas must be made available when an

alien “has invested . . . capital” in a specified amount to

“benefit the United States economy and create full-time

employment for not fewer than [ten] United States citizens . . .

.” 8 U.S.C. § 1153(b)(5). Congress did not define “invest” or

“capital” in the statute. See id. In 1991, USCIS’ predecessor

agency, the INS, published regulations defining both:

Invest means to contribute capital. 6

6 The definition of “invest” further provides that “[a]
contribution of capital in exchange for a note, bond,
18
 Capital means cash, equipment, inventory,
other tangible property, cash equivalents, and
indebtedness secured by assets owned by the
alien entrepreneur, provided that the alien
entrepreneur is personally and primarily
liable and that the assets of the new
commercial enterprise upon which the petition
is based are not used to secure any of the
indebtedness. All capital shall be valued at
fair market value in United States dollars.
Assets acquired, directly or indirectly, by
unlawful means (such as criminal activities)
shall not be considered capital for the
purposes of section 203(b)(5) of the Act.

8 C.F.R. § 204.6(e)(emphasis added and alphabetical order

reversed).

“Capital” is therefore the type of asset that is invested

or “contributed” to the commercial enterprise for the purpose of

creating employment. See id.; 8 U.S.C. § 1153(b)(5). To be

considered “capital,” an invested asset must meet only two

requirements: (1) it must be contributed in one of the six

acceptable forms; and (2) it must be lawfully acquired. See 8

C.F.R. § 204.6(e). The definition approves six forms of

“capital”: “[1] cash, [2] equipment, [3] inventory, [4] other

tangible property, [5] cash equivalents, and [6] indebtedness

[so long as the invested indebtedness is secured by assets owned

convertible debt, obligation, or any other debt arrangement
between the alien entrepreneur and the new commercial enterprise
does not constitute a contribution of capital for the purposes
of this part.” 8 C.F.R. § 204.6(e). USCIS has not suggested that
plaintiffs entered into a “debt arrangement” with the enterprise
or that the enterprise guaranteed repayment of the invested
capital. See generally A.R., ECF No. 27.
19
by the investor, such that the investor is personally and

primarily liable, and that the enterprise is not used to secure

the debt].” Id.

The regulation does not define “cash” or “indebtedness”

within the definition of “capital.” However, the text plainly

directs the agency to view the transaction between the alien

investor and the enterprise to identify the particular asset

actually “contributed” to the enterprise. Id. (“invest means to

contribute capital”); 8 U.S.C. § 1153(b)(5)(visas shall be made

available to aliens who invest capital in an enterprise to

benefit the economy and create employment). USCIS must therefore

determine whether that contributed asset meets the definition of

“capital,” i.e., whether it was: (1) contributed in an

acceptable form; and (2) lawfully acquired. See id. In

plaintiffs’ cases, it is undisputed that the assets actually

contributed to the enterprises were cash loan proceeds. See

Hagiwara A.R., ECF No. 27-1 at 394-95; Zhang A.R., ECF No. 27-4

at 179-80. The Court must therefore determine whether the

regulation is unambiguous as to the central question: whether

cash loan proceeds are invested as “cash,” as plaintiffs argue,

or as “indebtedness,” as USCIS contends.

To resolve this question, the Court looks to the ordinary

meaning of cash. “When a word is not defined by statute, [the

court] normally construe[s] it in accord with its ordinary or

20
natural meaning.” Smith v. United States, 508 U.S. 223, 228

(1993). The plain and ordinary meaning of “cash” compels the

conclusion that loan proceeds invested in the form of cash must

be characterized as “cash” within the unambiguous definition of

“capital” set forth in the regulation.

First, the plain and ordinary meaning of “cash” is “money

or its equivalent” such as “currency or coins.” Cash, Black’s

Law Dictionary (10th ed. 2014); see Smith, 508 U.S. at 228-29

(determining the ordinary meaning an undefined statutory term by

turning to the Black’s Law Dictionary definition). Accordingly,

an investment was made in “cash” if the investor transferred

“money or its equivalent” to the investee. Cash, Black’s Law

Dictionary (10th ed. 2014). How the investor came up with the

cash to invest—whether through a loan, a bank account, or any

other source—does not affect whether the investment itself is

cash. Put differently, that the cash was obtained from proceeds

from a third-party loan does not make it anything other than

cash. See Davis v. Connecticut Cmty. Bank, 937 F. Supp. 2d 217,

224-25 (D. Conn. 2013) (“cash is an inherently fungible good”);

Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 195–96 (3d

Cir. 1990) (“[I]f a debtor with $100,000 cash in its general

coffers owes $10,000 to someone, there is no meaningful

distinction among which of those dollars is actually paid to

21
satisfy the debt.”). Nothing in the ordinary meaning of the word

“cash” suggests that it excludes cash proceeds from a loan.

Cash loan proceeds, or the cash “received upon selling,

exchanging, collecting, or otherwise disposing of collateral,”

Proceeds, Black’s Law Dictionary (10th ed. 2014), are not

transformed from cash into another asset when invested. Indeed,

cash loan proceeds are commonly characterized as “cash,”

consistent with the word’s ordinary meaning. See Pls.’ MSJ, ECF

No. 19 at 32 n.11 (pointing to “dozens of federal judicial

decisions . . . refer[ring] to the ‘cash’ proceeds of a loan”

and citing Drew v. Ocwen Loan Servicing, LLC, 2015 WL 5637569,

at *2 (M.D. Fla. Sept. 17, 2015), among other authority).

Moreover, USCIS itself has described the assets a borrower

receives from a loan as “cash proceeds.” See In re: Petitioner

[Redacted], 2012 WL 8524530, at *4 (AAO Aug. 14, 2012)

(unpub.)(analyzing an employment-based nonimmigrant visa

petition for a religious worker). 7

The “words of statutes or regulations must be given their

‘ordinary, contemporary common meaning.’” FTC v. Tarriff, 584

7 USCIS argues that these cited cases are “inapposite because
none of them address ‘cash’ with regards to the EB-5 program
definition of ‘capital’ found at 8 C.F.E. § 204.6(e).” Defs.’
MSJ & Opp’n, ECF No. 22 at 25 n.10. The Court disagrees. As
discussed, the definition of cash is undefined in the EB-5
regulation and, as such, the Court must turn to the term’s
ordinary, common meaning. Plaintiffs’ cited cases reflect the
common meaning of the word “cash.”
22
F.3d 1088, 1090 (D.C. Cir. 2009) (quoting Williams v. Taylor,

529 U.S. 420, 431 (2000))(examining the unambiguous common

meaning of the word “shall”). Because lawfully-acquired cash

unambiguously qualifies as “capital” under the regulation,

USCIS’ interpretation that cash loan proceeds do not qualify as

a “cash” investment is untenable. See Ass’n of Private Sector

Colleges and Univs. V. Duncan, 681 F.3d 427, 450 (D.C. Cir.

2012)(holding that an agency may not “reinterpret[] [a]

regulation in a way the text does not support”). Therefore, its

denials of plaintiffs’ petitions on that basis was erroneous as

contrary to the language of the regulation. 8 C.F.R. §

204.6(e)(“Capital means cash”).

USCIS neither offers its own definition of “cash,” nor

explains why cash proceeds from third-party loans are not

invested as “cash.” See generally Defs.’ MSJ & Opp’n, ECF No.

22; Defs.’ Reply, ECF No. 26. Instead, it emphasizes the

deference it is purportedly owed and concludes that its

interpretation is not clearly erroneous. See Defs.’ MSJ & Opp’n,

ECF No. 22 at 24. Indeed, without providing any support that the

provision is ambiguous, USCIS repeatedly asserts that the Court

should defer to its interpretation of its own regulation because

it is owed “an even greater degree of deference than the Chevron

standard, and must prevail unless plainly inconsistent with the

regulation.” Id. at 24-27 (citing Auer, 519 U.S. at 461;

23
Consarc, 71 F.3d at 915). However, such deference is only

warranted if the regulation at issue is ambiguous. Christensen,

529 U.S. at 588 (“But Auer deference is warranted only when the

language of the regulation is ambiguous.”); Thomas Jefferson

Univ., 512 U.S. at 512 (“[W]e must defer to the Secretary's

interpretation unless an alternative reading is compelled by the

regulation's plain language or by other indications of the

Secretary's intent at the time of the regulation’s

promulgation.”)(internal citations omitted). The Court concludes

that the regulation’s plain meaning is clear. As such, deference

to USCIS is unwarranted.

Moreover, USCIS’ interpretation is not one of several

“permissible constructions,” as it suggests. Defs.’ Reply, ECF

No. 26 at 13 (citing Holly Farms Corp. v. NLRB, 517 U.S. 392,

398-99 (1996) (analyzing an agency’s interpretation of an

ambiguous statute)). Instead, USCIS is “seeking to overcome the

regulation’s obvious meaning.” Christensen, 529 U.S. at 588; see

also In re Sealed Case, 237 F.3d 657, 667 (D.C. Cir. 2001)(“In

this case, the . . . regulation at issue [is] unambiguous and

directly address[es] the issue presented in this case. The[]

plain meaning therefore controls our decision.”). For example,

by attempting to regulate how an alien investor acquires

invested cash—beyond ensuring that the cash was legally acquired

and that the cash was not derived from the enterprise itself—

24
USCIS adds an additional requirement to the regulatory

definition of “capital” not found within the text. See 8 C.F.R.

§ 204.6(e). To illustrate, under USCIS’ interpretation,

“capital” does not include lawfully-acquired cash, but lawfully-

acquired cash not derived from a third-party loan. See 2015 IPO

Remarks; see also Zhang A.R., ECF No. 27-4 at 179-80

(determining that a lawfully-acquired, cash investment did not

qualify as capital based on Mr. Zhang’s method of obtaining it);

Hagiwara A.R., ECF No. 27-1 at 395-96 (same). As previously

discussed, the regulation sets forth only two conditions for a

cash asset to qualify as capital: (1) it was invested as cash

and (2) it was lawfully-acquired. See 8 C.F.R. § 204.6(e). The

fact that the regulation includes these two conditions

necessarily implies that no other conditions are necessary for a

cash investment to constitute capital. District of Columbia Fin.

Responsibility & Mgmt. Auth. v. Concerned Senior Citizens of the

Roosevelt Tenant Ass’n., Inc., 129 F. Supp. 2d 13, 16 (D.D.C.

2000) (“One of the most firmly established canons of

interpretation is expressio unius est exclusio alterios, that

is, the expression of one is the exclusion of the other.”)

(citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60

(1803) (“[a]ffirmative words are often, in their operation,

negative of other objects than those affirmed”)).

25
 In so doing, USCIS impermissibly creates “de facto another

regulation.” Christensen, 529 U.S. at 588. In Christensen v.

Harris County, the Supreme Court declined to defer to the

agency’s interpretation of its regulation in part because the

agency sought to add an additional requirement not found within

the regulation, contrary to the regulation’s “obvious meaning.”

Id.; see also Appalachian Power Co. v. Envtl. Protection Agency,

249 F.3d 1032, 1048 (D.C. Cir. 2001)(“ The Supreme Court recently

held that we should not defer to an agency's interpretation

imputing a limiting provision to a rule that is silent on the

subject . . . [in] cases in which the agency’s interpretation

postdated its adoption of the rule and was not itself subject to

the rigors of notice and comment.”) (citing Christensen, 529

U.S. at 588)). So here too. Had USCIS intended to further

regulate lawfully-acquired, loan proceeds invested in the

enterprise as “cash,” it could have explicitly done so or

amended the regulation. 8 As drafted, however, there is no textual

basis for USCIS’ interpretation. See 8 C.F.R. § 204.6.

USCIS also argues that its definition is compelled by other

sections of the regulation and by its own binding precedent. As

8 Indeed, USCIS has recently proposed changes to 8 C.F.R. § 204.6
to increase the required capital contribution, in part because
the EB-5 Program is “oversubscribed.” See Proposed Rule EB-5
Immigrant Investor Program Modernization, 82 Fed. Red. 4738
(Jan. 13, 2017).
26
will be explained in further detail below, the Court disagrees.

See infra Secs. III.A.1.c.ii,iii. Ultimately, the Court

concludes that the regulation is clear: an investor indeed

invests “capital” by contributing lawfully-acquired cash loan

proceeds to an enterprise. USCIS’ interpretation that “capital”

does not include lawfully-acquired “cash,” but rather only

includes lawfully-acquired cash not derived from third-party

loans contravenes the regulation’s plain meaning.

ii. USCIS’ Interpretation is Not Supported by the Text

USCIS argues that its interpretation is supported by the

regulation’s text in three ways. First, it argues that loan

proceeds are invested as “indebtedness” pursuant to the

regulation’s definitional section, 8 C.F.R. § 204.6(e). See

Defs.’ MSJ & Opp’n, ECF No. 22 at 24-27. Next, it argues that

its interpretation “aligns with the foundational requirements

that the alien investor must demonstrate that he is placing

capital he owns directly at risk” pursuant to 8 C.F.R. §

204.6(j)(2). Id. at 25. Third, it argues that its interpretation

is necessary to ensure that the alien investor derived his or

her invested funds from a lawful source pursuant to 8 C.F.R. §

204.6(j)(3). Id. at 25, 27. The Court will address each argument

in turn.

27
 (1) Cash Loan Proceeds are Not Invested as
Indebtedness

In arguing that cash loan proceeds are invested as

indebtedness, USCIS suggests that it must examine the manner in

which the investor acquired the invested asset (beyond ensuring

the asset was lawfully-acquired, which it is undisputedly

obligated to do) pursuant to 8 C.F.R. § 204.6(j)(3). See

generally Defs.’ MSJ & Opp’n, ECF No. 22. As discussed, USCIS

neither offers its own interpretation of the key terms, nor

explains why cash proceeds are invested as “indebtedness.” See

generally id.; Defs.’ Reply, ECF No. 26.

The regulation, 8 C.F.R. § 204.6, does not define the term

“indebtedness.” Instead, the regulation offers it as an

alternative asset to cash, qualifying as “capital” only if the

invested indebtedness is secured by assets that the alien

investor owns, such that the investor is personally and

primarily liable for the debt. 8 C.F.R. § 204.6(e). The assets

of the enterprise may also not be used to secure any of the

indebtedness. Id. Because indebtedness is undefined in the

regulation, it must be construed “in accordance with its

ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471, 476

(1994) (citing Smith, 508 U.S. at 228). To that end,

“indebtedness” means “the quality, state, or condition of owing

money.” Indebtedness, Black’s Law Dictionary (10th ed. 2014).

28
 Of course, an individual who takes out a loan is indebted

in a generic sense: the borrower is indebted to the lender to

whom he or she owes money. However, as discussed, the regulation

requires USCIS to consider the transaction between the alien

investor and the enterprise. In so doing, USCIS must identify

the asset actually contributed to the enterprise. See 8 C.F.R. §

204.6(e) (“invest means to contribute capital [to the

enterprise]”). Here, it is clear that the alien investor is not

contributing debt to the enterprise, but is contributing cash.

See Zhang A.R., ECF No. 27-2 at 20, 25-26; Hagiwara A.R., ECF

No. 27-1 at 11. The enterprise is free to deploy that invested

cash to create jobs for Americans. Indeed, an investor can only

contribute indebtedness if the investor’s “state of being

indebted” is to the enterprise itself. See 8 C.F.R. § 204.6(e).

In that sense, the indebtedness is an asset of value because the

investor is obligated to make payments to the enterprise at a

later date.

This reading is confirmed by USCIS’ longstanding, binding

precedent. While the Court will further examine the precedent,

see infra Sec. III.A.1.c.iii, USCIS published four “precedent

decisions,” which are binding on the agency. See Matter of Ho,

22 I. & N. Dec. 206 (BIA 1998); Matter of Hsiung, 22 I. & N.

Dec. 201 (BIA 1998); Matter of Izummi, 22 I. & N. Dec. 169 (BIA

1998); Matter of Soffici, 22 I. & N. Dec. 158 (BIA 1998). In

29
Matter of Izummi, USCIS considered an arrangement whereby an

investor promised to pay an enterprise in the future via a

promissory note. USCIS confirmed that such an arrangement can

constitutes investing “capital” pursuant to the regulation so

long as the alien investor was personally and primarily liable

for the indebtedness to the enterprise. See 22 I. & N. Dec. 169

(BIA 1998)(finding that the alien investor invested indebtedness

by promising to pay the enterprise in the future); see also

Matter of Hsiung, 22 I. & N. Dec. 201, 201 (BIA 1998) (“A

promissory note secured by assets owned by a petitioner can

constitute capital under 8 C.F.R. § 204.6(e) if: the assets are

specifically identified as securing the note; the security

interests in the note are perfected in the jurisdiction in which

the assets are located; and the assets are fully amenable to

seizure by a U.S. note holder.”). Under that arrangement, the

need for personal collateralization is entirely clear: when the

asset actually contributed to the enterprise is merely a

promise, the enterprise requires security. See Hsiung, 22 I. &

N. Dec. at 202 n.1 (“merely ‘identifying’ assets as securing a

loan, without perfecting the security interest, is not

meaningful since the note holder cannot be assured that the

identified assets will remain available for seizure in the event

of default.”). As here, however, when the enterprise receives

30
lawfully-acquired cash it can readily deploy, no security

interest is necessary. 9

Finally, the Court’s conclusion is also supported by a

USCIS policy memorandum released in May 2013. See USCIS, EB-5

Adjudications Policy (PM-602-0083)(May 30, 2013), available at

https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2

013/May/EB-5_Adjudications_PM_Approved_as_final_5-30-13.pdf. In

clarifying the definition of capital, USCIS stated: “the

definition of ‘capital’ is sufficiently broad that it includes

not only such things of value as cash, equipment, and other

tangible property, but it can also include the immigrant

investor’s promise to pay (a promissory note).” Id. at 3. USCIS

substitutes a “promise to pay” for the word in the regulation:

“indebtedness.” USCIS goes on to clarify that a “promise to pay”

may only be considered “capital” if it meets the indebtedness

requirements: “[capital] include[s] the immigrant investor’s

9 USCIS does not argue that the plaintiffs used or will use the
enterprise’s assets as collateral for the third-party loans. See
generally Defs.’ MSJ & Opp’n, ECF No. 22. However, assuming this
is a concern, USCIS could easily deny a petition based on an
investment of cash loan proceeds if the underlying loan was
secured by the enterprise. See 8 C.F.R. § 204.6(j)(2). As
explained more thoroughly below, USCIS must ensure that the
capital invested was “actually committed” to the enterprise. See
id.; infra Sec. III.A.1.c.ii.(2). If an alien investor invested
cash in the enterprise that could be seized by a lending third-
party, the investor has not truly “committed” the cash to the
enterprise. This is not to say that a loan must be secured by
the alien investor’s assets, rather that the loan must not be
secured by the enterprise’s assets.
31
promise to pay (a promissory note), as long as the promise is

secured by assets the immigrant investor owns, the immigrant

investor is liable for the debt, and the assets of the immigrant

investor do not for this purpose include assets of the company

in which the immigrant is investing.” Id.

(2) The “At Risk” Provision Does Not Support
USCIS’ Interpretation

USCIS argues that its interpretation that cash loan

proceeds are invested as indebtedness is necessary to ensure

that alien investors comply with the regulation’s “foundational

requirements that the alien investor . . . is placing capital he

owns directly at risk.” Defs.’ MSJ & Opp’n, ECF No. 22 at 25

(citing 8 C.F.R. § 204.6(j)(2),(3)); see also 2015 IPO Remarks.

In so arguing, however, USCIS conflates two separate regulatory

requirements.

In addition to establishing that the alien investor

invested a qualifying amount of “capital” in the new commercial

enterprise for the purpose of creating employment, the investor

must also demonstrate that the capital was put “at risk” “for

the purpose of generating a return on the capital.” See 8 C.F.R.

§ 204.6(j)(2). The regulation is clear that this requirement

ensures that the capital has actually been contributed, or

“invest[ed],” in the enterprise. See id. Specifically, the

provision requires that the investor show the “actual commitment

32
of the required amount of capital.” Id.; see also Matter of

Izummi, 22 I. & N. Dec. 169, 170-71, 186 (BIA 1998)(finding that

the alien investor had not placed his investment “at risk”

because the enterprise had given him the right to sell his

partnership interest back for the original price: “for the

alien’s money truly to be at risk, the alien cannot enter into a

partnership knowing that he already has a willing buyer in a

certain number of years, nor can be assured that he will receive

a certain price. Otherwise, the arrangement is nothing more than

a loan [to the enterprise].”); Matter of Ho, 22 I. & N. Dec.

206, 209-10 (BIA 1998)(finding the alien investor had not placed

his investment at risk because he maintained control over the

invested money); Chang v. USCIS, 289 F. Supp. 3d 177, 180, 187-

88 (D.D.C. 2018)(finding USCIS’ denial arbitrary and capricious

because the alien investors had placed their money at risk;

there was “no security that [the investors] would ever see

[their] money again”); Doe v. USCIS, 239 F. Supp. 3d 297, 306

(D.D.C. 2017)(finding USCIS’ denial arbitrary and capricious

because the alien investors had placed their money at risk; they

“were not guaranteed to receive any of their capital

contributions back, let alone make any return on their

investments”).

The “at risk” provision lists the types of documentation

that may establish the alien investor’s “actual commitment” of

33
capital. The list includes, but is not limited to, bank

statements showing that cash has been deposited into the

enterprise’s bank account, assets purchased by the alien

investor for use by the enterprise, and evidence of any “loan

agreement” or “other evidence of borrowing, which is secured by

assets of the petitioner, other than those of the new commercial

enterprise, for which the petitioner is personally or primarily

liable.” Id. § 204.6(j)(2)(i-v).

USCIS relies on these examples to argue that its

“interpretation of its regulation is not plainly erroneous

because the evidentiary requirements necessary to demonstrate

owned capital is ‘at risk’ are different based on how the

capital is obtained.” Defs.’ MSJ & Opp’n, ECF No. 22 at 26

(citing 8 C.F.R. § 204.6(j)(2)(v)). Because plaintiffs obtained

their capital from third-party loan proceeds, USCIS argues that

they must provide evidence of any loan agreement which is

secured by assets of the petitioner for which the petitioner is

personally and primarily liable. Id.

However, USCIS’ argument fails because it contradicts the

definition of capital, which unambiguously includes lawfully-

acquired cash, see 8 C.F.R. § 204.6(e), and “the definition of a

term in the definitional section of a statute controls the

construction of that term,” United States v. E-Gold, Ltd., 550

F. Supp. 2d 82, 91 (D.D.C. 2008) (quotations and citations

34
omitted); see also Texas Children’s Hosp. v. Burwell, 76 F.

Supp. 3d 224, 237 (D.D.C. 2014)(finding that the definitional

section “controls”). Indeed, the “at risk” requirement does not

modify the definition of “capital” in the definition subsection.

Instead, the non-exhaustive list of satisfactory evidence is

included to provide examples of “evidence” that an alien

investor may use to “show actual commitment of required

capital.” 8 C.F.R. § 204.6(j)(2). As plaintiffs’ correctly point

out, the “at risk” requirement “says what an investor must do

with ‘capital’ (i.e. place it ‘at risk’ for the purpose of

generating a return)—not what ‘capital’ is,” which is the issue

at hand here. Pls.’ Reply, ECF No. 24 at 22.

As such, the “at risk” provision does not provide USCIS

with a basis for its interpretation. Whether an alien investor

obtained the lawfully-acquired cash from a third-party loan is

irrelevant to whether that cash was actually committed to the

enterprise for the purpose of generating a return.

(3) USCIS Retains the Authority to Ensure That
Invested Assets are Derived From Lawful
Sources

USCIS also argues that classifying loan proceeds as cash

would “effectively cut off” the agency’s ability to look into

the petitioner’s “source of investment funds.” Defs.’ MSJ &

Opp’n, ECF No. 22 at 27. Not so. Regardless of the form of

capital invested, an asset will not qualify as “capital” if

35
“acquired, directly or indirectly, by unlawful means (such as

criminal activities).” 8 C.F.R. § 204.6(e). In that sense, no

asset—whether cash, indebtedness, or otherwise—will satisfy the

definitional requirement if obtained directly or indirectly by

unlawful means. See id.

The Court’s decision does not impact USCIS’ ability to

investigate whether the petitioner’s invested cash loan proceeds

were lawfully-acquired. As USCIS articulated in its 2015 IPO

Remarks, the agency may determine whether the loan proceeds were

obtained unlawfully or if the cash actually invested did not

likely come from the loan itself. See 2015 IPO Remarks at 2

(“Where the petitioner obtains a loan from a lawful source (such

as a reputable bank), the loan proceeds may, nevertheless, be

unlawful if the capital was obtained by unlawful means (such as

fraud on a loan application).”). And, notwithstanding the

Court’s decision, the burden of proof continues to remain with

the petitioner to establish eligibility. Matter of Brantigan, 11

I. & N. Dec. 493, 493 (BIA 1966)(“ the burden of proof required

of an applicant for United States citizenship never shifts”).

Thus, an investor investing cash loan proceeds must still

demonstrate that the proceeds were lawfully acquired.

36
 iii. USCIS’ Interpretation is Not Supported by its
Binding Precedent

Looking beyond the text, USCIS argues that agency precedent

compels its interpretation. Defs.’ MSJ & Opp’n, ECF No. 22 at

25-26. While “[a]rbitrary agency action becomes no less so by

simple dint of repetition,” Judulang v. Holder, 565 U.S. 42, 61

(2011), its arguments are nonetheless unpersuasive because the

only case it discusses as support, Matter of Soffici, is readily

distinguishable. Moreover, the Court finds that USCIS’ binding

precedent supports its decision.

In Matter of Soffici, the alien investor owned the

commercial enterprise in which he invested. 22 I. & N. Dec. 158,

161-62 (BIA 1998). Like the plaintiffs, the investor attempted

to invest third-party loan proceeds. See id. However, unlike the

plaintiffs here, the investor obtained the third-party loan in

the enterprise’s name and secured the loan with the enterprise’s

assets. Id. at 162. In so doing, the alien investor attempted

to, as USCIS puts it, “take credit” for the loan by arguing that

he had invested cash into the enterprise. See id.; Defs.’ MSJ &

Opp’n, ECF No. 22 at 25-26. USCIS denied the alien investor’s

petition because the alien had not invested any capital at all;

rather, he loaned the money to the enterprise, which took out

the loan in its own name. Soffici, 22 I. & N. Dec. at 162.

Moreover, the loan was secured by the enterprise’s assets,

37
meaning that the alien investor did not invest new “capital” to

create jobs. Id. In that regard, to the extent the alien

investor invested any capital at all, he invested indebtedness

because the investor was indebted to the enterprise itself. See

id. (“even if it were assumed, arguendo, that the petitioner and

[the enterprise] were the same legal entity for purposes of this

proceeding, indebtedness that is secured by assets of the

enterprise is specifically precluded from the definition of

‘capital.’”).

By contrast, plaintiffs here seek to invest cash obtained

from third-party loans into new commercial enterprises. See

generally Zhang A.R., ECF No. 27-4; Hagiwara A.R., ECF No. 27-1.

The primary difference between this case and Soffici is that

plaintiff-investors are not indebted to the enterprise, but to

third-party lenders. See id. Unlike Soffici, the new commercial

enterprises here received plaintiffs’ “new” capital to create

American jobs. See id. Unlike the enterprise in Soffici, which

bore the risk of loss, here, the enterprises received cash and

bear no risk of loss (as the loans were not collateralized by

the enterprises’ assets). See id.

Moreover, two other binding USCIS decisions support the

Court’s conclusion that investing “indebtedness,” pursuant to 8

C.F.R. § 204.6(e), involves promising to pay the enterprise in

the future via a promissory note. See Matter of Izummi, 22 I. &

38
N. Dec. 169 (BIA 1998)(finding that the alien investor invested

indebtedness by promising to pay the enterprise in the future);

Matter of Hsiung, 22 I. & N. Dec. 201, 201 (BIA 1998) (“A

promissory note secured by assets owned by a petitioner can

constitute capital under 8 C.F.R. § 204.6(e) if: the assets are

specifically identified as securing the note; the security

interests in the note are perfected in the jurisdiction in which

the assets are located; and the assets are fully amenable to

seizure by a U.S. note holder.”). Such precedent is consistent

with the Court’s conclusion that an investor invests

“indebtedness” when he or she is indebted to the enterprise

itself. The special conditions imposed only on indebtedness also

support this conclusion; because the asset actually contributed

to the enterprise is merely a promise, the enterprise requires

security in the form of personal collateralization. See Hsiung,

22 I. & N. Dec. at 202 n.1 (“[M]erely ‘identifying’ assets as

securing a loan, without perfecting the security interest, is

not meaningful since the note holder cannot be assured that the

identified assets will remain available for seizure in the event

of default.”). This security interest is necessary to guarantee

an actual investment in exchange for a visa preference. When the

enterprise receives cash, however, no security interest is

necessary.

39
 USCIS does not dispute that Matter of Hsiung provides that

a promissory note constitutes “indebtedness,” so long as the

note is personally collateralized. See Defs.’ Reply, ECF No. 26

at 15-16. Instead, it contends that Matter of Hsiung does not

limit its ability “to analyze indebtedness under any other EB-5

loan financing arrangement when interpreting the regulatory

definition of capital.” Id. at 15 (emphasis in original).

However, USCIS’ argument does not acknowledge that in Matter of

Hsiung, USCIS used the term indebtedness to refer to financial

arrangements between the alien investor and the commercial

enterprise. See 22 I. & N. Dec. at 201-02. Here, USCIS uses the

term indebtedness to refer to financial arrangements between the

alien investor and an unrelated third party, allowing USCIS to

inquire into the source of the invested cash (beyond whether the

cash was lawfully acquired and that the cash was not derived

from the enterprise itself). Such an interpretation runs

contrary to Matter of Hsiung and the plain meaning of “capital.”

iv. The Context and History of the Regulation Further
Undermine USCIS’ Interpretation

“Language, of course, cannot be interpreted apart from

context.” Smith v. United States, 508 U.S. 223, 229 (1993).

While the plain language of the regulation controls, the

regulatory and statutory context and the history of the EB-5

Visa Program bolsters the Court’s conclusion. See Roberts v.

40
Sea-Land Servs., Inc., 566 U.S. 93, 101 (2012) (“It is a

fundamental cannon of statutory construction that words in a

statute must be read in their context and with a view to their

place in the overall statutory scheme.”).

As stated above, “indebtedness” only qualifies as “capital”

if it is “secured by assets owned by the alien entrepreneur,”

for which the “alien entrepreneur is personally and primarily

liable,” and “the assets of the new commercial enterprise upon

which the petition is based are not used to secure any of the

indebtedness.” 8 C.F.R. § 204.6(e). The requirement that capital

be secured by assets owned by the investor applies only to

“indebtedness” and only serves a purpose if the alien investor

is indebted to the enterprise. See Matter of Hsiung, 22 I. & N.

Dec. 201, 202 n.1 (BIA 1998) (“[M]erely ‘identifying’ assets as

securing a loan, without perfecting the security interest, is

not meaningful since the [enterprise] cannot be assured that the

identified assets will remain available for seizure in the event

of default.”). These conditions ensure that the enterprise

actually receives the investment, achieving the statutory goal

of bringing new investments to the United States to create jobs.

See S. Rep. No. 101-55, at 21 (1989). The interpretation serves

no purpose when an alien investor has invested lawfully-acquired

cash, regardless of how the investor obtained that cash, so long

as the cash was not contributed in exchange for a debt from the

41
enterprise. As discussed, the enterprise is free to deploy the

cash loan proceeds invested.

Thus, not only is USCIS’ interpretation without a textual

or structural basis, but it is also unmoored from the purposes

animating the EB-5 Program itself. See 8 U.S.C. § 1153(b)(5).

The EB-5 Program was intended to “create new employment for U.S.

workers and to infuse new capital into the country.” S. Rep. No.

101-55, at 21 (1989). Following the enactment of the statute,

the INS originally proposed a definition of capital that did not

include indebtedness. See Proposed Rule Employment-Based

Immigrants, 56 Fed. Reg. 30703, 30713 (July 5, 1991).

Indebtedness was added to the definition of capital when the

agency promulgated its final rule. See Final Rule, 56 Fed. Reg.

60897, 60902 (Nov. 29, 1991). The agency explained that it

intended to expand the definition of capital because “Congress

intended the definition [of capital] to be broad.” Id. Indeed,

both parties agree that “indebtedness” was added to 8 C.F.R. §

204.6(e) in order to expand the assets that qualify as

“capital.” See Pls.’ MSJ, ECF No. 19 at 36-37; Defs.’ Reply, ECF

No. 26 at 11 (“during the rulemaking process, the agency

indicated that it made the definition of capital broad”).

However, USCIS’ interpretation narrows the assets that qualify

as capital. In its view, “cash” only qualifies as “capital” if

not derived from an uncollateralized, third-party loan. This

42
interpretation transforms the definition of “capital” from

“capital means cash” (among other things) to “capital means cash

not obtained from an uncollateralized, third-party loan.” See 8

C.F.R. § 204.6(e).

With Congress’ intent in mind, USCIS’ interpretation is at

odds with Congress’ broad statutory purpose because it narrows

the definition of capital. It may well be that USCIS has other

policy reasons for not wanting to accept lawfully-obtained cash

investments obtained from uncollateralized, third-party loans.

Whatever those reasons may be, USCIS’ interpretation is divorced

from the language of its own regulation and the statutory

purpose animating the EB-5 Program. As such, its interpretation

is plainly erroneous, and its denials based on that

interpretation are arbitrary and capricious.

2. USCIS Violated the APA’s Notice and Comment Requirement

Plaintiffs also argue that USCIS’ interpretation, as

articulated in the 2015 IPO Remarks, violates the APA’s notice

and comment requirement. Pls.’ MSJ, ECF No. 19 at 44-49. They

contend that USCIS’ interpretation is a “substantive” or

“legislative” rule necessitating notice and comment procedures

because it “carries the force of law” and is applied “with full

force in every case in which a petitioner uses the cash proceeds

of a loan as EB-5 investment capital.” Id. at 45. As evidence,

plaintiffs point to USCIS’ instructions ordering adjudicators to

43
deny cases in which a petitioner invested cash loan proceeds

unless that petitioner established that he or she is personally

liable for the loan. Id. at 46-47.

USCIS argues that it did not violate the APA’s notice and

comment procedures, putting forward two arguments. Defs.’ MSJ &

Opp’n, ECF No. 22 at 30-34. First, USCIS argues that plaintiffs

are time-barred from challenging the definition of “capital” as

procedurally deficient because the regulation is over twenty-

four years old, and the APA has a six-year statute of

limitations. Id. at 31. Second, USCIS argues that its

interpretation does not constitute a legislative rule requiring

notice and comment. Instead, USCIS posits that the

interpretation in the 2015 IPO remarks merely “clarified the

agency’s longstanding policy on how alien investors can satisfy

the definition of ‘capital’ . . . when investing loan proceeds.”

Id. at 32. Because its interpretation “sensibly conforms to the

words of a statute or existing legislative rule,” USCIS contends

that it did not establish a legislative rule requiring notice

and comment. Id. at 33. As such, it did not violate the APA.

Plaintiffs respond that their claim is not time-barred

because they do not challenge the existing regulation, as

codified in 8 C.F.R. § 204.6(e). Pls.’ Reply, ECF No. 24 at 39.

Instead, plaintiffs challenge USCIS interpretation as announced

in its 2015 IPO Remarks. Because plaintiffs filed suit within a

44
“few months” of the 2015 IPO Remarks, plaintiffs argue that

their claim is timely. Id. Plaintiffs also contend that USCIS’

interpretation is a legislative rule because it adopts a new

position inconsistent with existing regulations. Id. at 40-41.

a. Plaintiffs’ Claims are Not Time-Barred

As an initial matter, the Court agrees that plaintiffs’ APA

claims are not barred by the applicable six-year statute of

limitations. True, the APA provides a six-year window for

plaintiffs to challenge agency rules, see James Madison Ltd. by

Hecht v. Ludwig, 82 F.3d 1085, 1094 (D.C. Cir. 1996)

(recognizing the APA carries a six-year statute of limitations),

but it is abundantly clear that plaintiffs challenge USCIS’

interpretation of the regulation, not the underlying regulation

itself. See generally Pls.’ MSJ, ECF No. 19.

Indeed, plaintiffs do “no[t] dispute that the regulation

defining ‘capital’ was promulgated only after notice published

in the Federal Register and an opportunity for public comment.”

Pls.’ Reply, ECF No. 24 at 39. Instead, they challenge USCIS’

interpretation of that regulation as erroneous and violative of

the APA. See generally Pls.’ MSJ, ECF No. 19. Plaintiffs sued

USCIS on June 23, 2015, see Compl., ECF No. 1, just two months

after USCIS announced its interpretation on April 22, 2015, see

2015 IPO Remarks. As such, plaintiffs filed their APA claim well

within the applicable six-year statute of limitations.

45
 b. USCIS’ Interpretation is a Legislative Rule Subject to
the APA’s Notice and Comment Requirement

The APA requires federal agencies to publish “[g]eneral

notice of proposed rulemaking” in the Federal Register, 5 U.S.C.

§ 553(b), and “give interested persons an opportunity to

participate in the rule making through submission of written

data, views, or arguments,” 5 U.S.C. 553(c); Air Transp. Ass'n

of Am., Inc. v. F.A.A., 291 F.3d 49, 55 (D.C. Cir. 2002).

Section 553, however, exempts “interpretative rules, general

statements of policy, or rules of agency organization,

procedure, or practice.” 5 U.S.C. § 553(b). These exemptions are

to be “narrowly construed and only reluctantly countenanced.”

State of N. J., Dep't of Envtl. Prot. v. U.S. Envtl. Prot.

Agency, 626 F.2d 1038, 1045 (D.C. Cir. 1980). If an agency does

not follow proper rule-making procedures when required, a court

can “hold unlawful and set aside agency action, findings, and

conclusions found to be ... without observance of procedure

required by law.” 5 U.S.C. § 706(2)(D).

Determining whether a given agency action is interpretive

or legislative is an “extraordinarily case-specific

endeavor.” Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C.

Cir. 1987). Indeed, the APA does not define “interpretive rule,”

and “its precise meaning is the source of much scholarly and

judicial debate.” Perez v. Mortg. Bankers Ass'n, 135 S.Ct. 1199,

46
1204 (2015); see General Motors Corp. v. Ruckelshaus, 742 F.2d

1561, 1565 (D.C. Cir. 1984) (en banc) (describing the

distinction as “enshrouded in considerable smog”). “The D.C.

Circuit, however, has recognized a four-part test for

determining if a rule is legislative or interpretive.” Texas

Children's Hosp. v. Azar, 315 F. Supp. 3d 322, 337 (D.D.C.

2018)(citing Am. Mining Cong. v. Mine Safety and Health Admin.,

995 F.2d 1106, 1112 (D.C. Cir. 1993)). Whether “the purported

interpretive rule has ‘legal effect’” is determined by:

(1) [W]hether in the absence of the rule there
would not be an adequate legislative basis for
enforcement action or other agency action to
confer benefits or ensure the performance of
duties; (2) whether the agency has published
the rule in the Code of Federal Regulations;
(3) whether the agency has explicitly invoked
its general legislative authority; and (4)
whether the rule effectively amends a prior
legislative rule. If the answer to any of
these questions is affirmative, we have a
legislative rule.

Am. Mining Cong., 995 F.2d at 1112. The court must make this

determination itself; it cannot accept an agency’s

characterization of its own action: “it is well established that

an agency may not label a substantive change to a rule an

interpretation simply to avoid the notice and comment

requirements.” Air Transp. Ass’n, 291 F.3d at 55 (citing

Appalachian Power Co. v. EPA, 208 F.3d 1015, 1024 (D.C. Cir.

2000)).

47
 The second and third factors are not contested here: USCIS’

interpretation was not published in the Federal Register and

USCIS does not invoke its general rulemaking authority. See

generally Pls.’ MSJ, ECF No. 19; Defs.’ MSJ & Opp’n, ECF No. 22.

Evaluating the fourth factor, however, clearly suggests that

USCIS’ interpretation is a legislative rule. “With respect to

the fourth factor, ‘[t]he practical question inherent in the

distinction between legislative and interpretive regulations is

whether the new rule effects a substantive regulatory change to

the statutory or regulatory regime.’” Texas Children’s Hosp.,

315 F. Supp. 3d at 337 (quoting Elec. Privacy Info. Ctr. v. U.S.

Dep't of Homeland Sec., 653 F.3d 1, 6–7 (D.C. Cir. 2011)). As

has been extensively discussed, supra Sec. III.A.1.c, the Court

finds that USCIS’ interpretation was plainly erroneous because

it contradicted the plain meaning of the EB-5 regulation. By

requiring investors to personally collateralize loan proceeds

invested as cash, USCIS added an additional requirement to the

regulatory definition of “capital” not found within the text. In

so doing, USCIS impermissibly created “de facto another

regulation.” Christensen, 529 U.S. at 588.

It is well-settled that a policy that adds a requirement

not found in the relevant regulation is a substantive rule that

is invalid unless promulgated after notice and comment. See

Cent. Texas Tel. Co-op., Inc. v. F.C.C., 402 F.3d 205, 211 (D.C.

48
Cir. 2005) (“If a second rule repudiates or is irreconcilable

with a prior legislative rule, the second rule must be an

amendment of the first; and, of course, an amendment to a

legislative rule must itself be legislative.”)(citations and

quotations omitted); Air Transp. Ass’n, 291 F.3d at 56 (“As the

United States Supreme Court has noted, APA rulemaking is

required if an interpretation ‘adopt[s] a new position

inconsistent with ... existing regulations.’”)(quoting Shalala

v. Guernsey Mem'l Hosp., 514 U.S. 87, 100 (1995)); Nat'l Family

Planning & Reprod. Health Ass'n, Inc. v. Sullivan, 979 F.2d 227,

236 (D.C. Cir. 1992)(“[The agency] may not constructively

rewrite the regulation, which was expressly based upon a

specific interpretation of the statute, through internal

memoranda or guidance directives that incorporate a totally

different interpretation and effect a totally different

result.”); Nebraska Dep't of Health & Human Servs. v. U.S. Dep't

of Health & Human Servs., 340 F. Supp. 2d 1, 17 (D.D.C.

2004)(“Changing the interpretation of a regulation requires a

notice and comment period.”)(citing Paralyzed Veterans of

America v. D.C. Arena, 117 F.3d 579, 586 (D.C. Cir. 1997)). As

an example, USCIS has recently proposed increasing the required

capital contribution to qualify for an EB-5 visa, which would

amend a requirement found in 8 C.F.R. § 204.6. Understanding

that such a change would require notice and comment procedures,

49
USCIS proposed the amendment in the Federal Register. See

Proposed Rule EB-5 Immigrant Investor Program Modernization, 82

Fed. Red. 4738 (Jan. 13, 2017).

Moreover, USCIS’ interpretation creates a “binding norm

that is finally determinative of the issues or rights to which

it is addressed.” CropLife Am. V. EPA, 329 F.3d 876, 881 (D.C.

Cir. 2003)(citations and quotations omitted). To illustrate,

about a month before issuing the IPO Remarks, USCIS issued

instructions for adjudicators regarding “capital derived from

indebtedness.” See Hagiwara A.R., ECF No. 27-1 at 399-401; Zhang

A.R., ECF No. 27-4 at 183-185. In the instructions, USCIS states

that adjudicators “must” follow its interpretation by ensuring

that the petitioner has established that he or she is personally

and primarily liable for the loan when investing loan proceeds.

Id. If the petitioner is unable to demonstrate eligibility under

USCIS’ interpretation, an adjudicator “will” deny the petition.

Id. USCIS’ instructions make clear that its interpretation

carries the force of law: adjudicators are not free to exercise

discretion and the interpretation is binding on all petitions.

USCIS’ choice of words is of “great[] importance,” as the D.C.

Circuit has “given decisive weight to the agency’s choice

between the words ‘may’ and ‘will’” when determining whether an

interpretation or policy is binding. Brock v. Cathedral Bluffs

Shale Oil Co., 796 F.2d 533, 537–38 (D.C. Cir. 1986). Indeed, it

50
is clear that USCIS’ interpretation created a “binding norm that

is finally determinative of the issues or rights to which it

[was] addressed.” CropLife Am., 329 F.3d at 881; see also Am.

Bus Ass'n v. United States, 627 F.2d 525, 529 (D.C. Cir. 1980)

(“If it appears that a so-called policy statement is in purpose

or likely effect one that narrowly limits administration

discretion, it will be taken for what it is, a ... rule of

substantive law.”)(quotations and citations omitted). As such,

USCIS’ interpretation is a legislative, substantive rule subject

to notice and comment procedures. See 5 U.S.C. § 553(b),(c).

For the reasons exhaustively discussed, the Court cannot

agree with USCIS that its interpretation is not a legislative

rule because it “sensibly conforms to the words of a statute or

existing legislative rule.” Defs.’ MSJ & Opp’n, ECF No. 22 at

33. Indeed, the Court has already found that USCIS’

interpretation does not conform to the text of 8 C.F.R. §

204.6(e). Similarly, the Court does not find that USCIS’

interpretation is merely a clarification of its long-standing

policy. USCIS’ interpretation may well be long-standing, but it

is not a mere clarification of the governing regulation. The

interpretation modifies the plain meaning of the EB-5

regulation, effectively amending the rule. As such, it is a

legislative rule. See Am. Mining Cong., 995 F.2d at 1109.

51
Because USCIS did not submit the non-exempt interpretation for

notice and comment, USCIS violated the APA.

3. Remand is the Proper Remedy

Plaintiffs request that the Court approve their petitions

outright. See Compl., ECF No. 1 at 27-28. The Court concludes

that such a remedy is not appropriate: “[a]s the Supreme Court

has instructed . . . where ‘the record before the agency does

not support the agency action, . . . the proper course, except

in rare circumstances, is to remand to the agency for additional

investigation or explanation.’” Cty. of Los Angeles v. Shalala,

192 F.3d 1005, 1023 (D.C. Cir. 1999) (quoting Florida Power &

Light Co. v. Lorion, 470 U.S. 729, 744, (1985)). A reviewing

court is “not generally empowered to conduct a de novo inquiry

into the matter being reviewed and to reach its own conclusions

based on such an inquiry.” Florida Power, 470 U.S. at 744. This

is especially the case “in the field of immigration,” where

“there may be sensitive issues lurking that are beyond the ken

of the court.” Fox v. Clinton, 684 F.3d 67, 80 (D.C. Cir. 2012).

Therefore, the “course of prudence” is to remand the case

to USCIS for reconsideration of the class members’ petitions.

Id. USCIS’ decisions to deny the class members’ petitions are

therefore VACATED and the denials are REMANDED to USCIS for

reconsideration consistent with this Memorandum Opinion.

52
 B. Motion for Class Certification

Having determined that USCIS’ interpretation of its

regulation is erroneous and violates the APA, the Court must now

evaluate plaintiffs’ pending motion for class certification.

Pls.’ Class Cert. Mot., ECF No. 10. Plaintiffs seek

certification of the following class:

All Form I-526 petitioners who: (1) invested
cash in a new commercial enterprise in an
amount sufficient to qualify as an EB-5
investor; (2) obtained some or all of the cash
invested in the new commercial enterprise
through a loan; (3) filed a Form I-526
petition prior to April 22, 2015 based on that
investment; and (4) received or will receive
a denial of their I-526 petition on the ground
that the loan used to obtain the invested cash
fails the collateralization test described in
the announcement made by USCIS during its
April 22, 2015 EB-5 stakeholder engagement.

Id. at 1. Plaintiffs contend that the proposed class satisfies

the requirements of Federal Rule of Civil Procedure 23 because

the class members challenge the facial validity of USCIS’

interpretation of the EB-5 regulation. See generally id. The

class members all sought (or are seeking) to immigrate to the

United States via the EB-5 program but were denied (or will be

denied) for the same reason. See id.

USCIS opposes plaintiffs’ motion for class certification,

arguing that the proposed class lacks commonality and typicality

and, as such, class counsel may not fairly and adequately

represent all class members. See Defs.’ Class Cert. Opp’n, ECF

53
No. 13 at 11-15. USCIS also argues that plaintiffs do not seek

relief from an unlawful practice generally applicable to the

entire class. See id. at 15-16. Having carefully considered the

motions, the Court hereby GRANTS plaintiffs’ motion for class

certification, albeit with a slightly modified class definition,

discussed below.

1. Standard of Review

Class certification is governed by Federal Rule of Civil

Procedure 23 and proponents of the class action have the burden

of proof as to each of its requirements. See McCarthy v.

Kleindienst, 741 F.2d 1406, 1414, 1414 n.9 (D.C. Cir. 1984).

First, the party seeking certification must demonstrate that the

proposed class satisfies all four of the requirements listed in

Rule 23(a). See Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,

345 (2011). Specifically, the party seeking certification must

demonstrate that: “(1) the class is so numerous that joinder of

all members is impracticable; (2) there are questions of law or

fact common to the class; (3) the claims or defenses of the

representative parties are typical of . . . the class; and (4)

the representative parties will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a). “Rule 23(a)

ensures that the named plaintiffs are appropriate

representatives of the class whose claims they wish to

litigate.” Wal-mart, 564 U.S. at 349. Its “four requirements—

54
numerosity, commonality, typicality, and adequate

representation—effectively limit the class claims to those

fairly encompassed by the named plaintiff's claims.” Id.

(quotations and citations omitted).

Second, plaintiffs must demonstrate that the proposed class

satisfies at least one of the three requirements listed in Rule

23(b). See id. at 345. Here, the plaintiffs argue the proposed

class satisfies Rule 23(b)(2) because “the party opposing the

class has acted or refused to act on grounds that apply

generally to the class, so that final injunctive relief or

corresponding declaratory relief is appropriate respecting the

class as a whole.” Fed. R. Civ. P. 23(b)(2). In evaluating a

class proposed under Rule 23(b)(2), the “key” inquiry is whether

the “injunctive or declaratory remedy warranted” is of a

“indivisible nature,” “such that [the conduct] can be enjoined

or declared unlawful only as to all of the class members or as

to none of them.” Wal-Mart, 564 U.S. at 360 (quotations and

citations omitted). “In other words, Rule 23(b)(2) applies only

when a single injunction or declaratory judgment would provide

relief to each member of the class.” Id.

2. The Class is Sufficiently Ascertainable

Although Rule 23 does not “specifically require plaintiffs

to establish that a class exists, this is a common-sense

requirement and courts routinely require it.” Pigford v.

55
Glickman, 182 F.R.D. 341, 346 (D.D.C. 1998)(citing Franklin v.

Barry, 909 F. Supp. 21, 30 (D.D.C. 1995); Lewis v. Nat'l

Football League, 146 F.R.D. 5, 8 (D.D.C. 1992)). This “common-

sense requirement” ensures that any class is “clearly defined

[and] is designed primarily to help the trial court manage the

class.” Id. (citing Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.

Cir. 1994)). It is not designed to be a “particularly stringent

test,” but “plaintiffs must at least be able to establish that

the general outlines of the membership of the class are

determinable at the outset of the litigation” such that “it is

administratively feasible for the court to determine whether a

particular individual is a member.” Id. (quotations and

citations omitted).

USCIS does not dispute that the plaintiffs have

sufficiently established that a class exists or that the general

outlines of membership are determinable. See generally Defs.’

Class Cert. Opp’n, ECF No. 13 at 2, 9-17 (stating that the Court

“should deny plaintiffs’ motion for failure to identify an

ascertainable class” but only arguing that the proposed class

does not meet the Rule 23(a) and (b)(2) requirements).

Regardless, the Court finds that the plaintiffs’ proposed class

is based on objective criteria that can be easily determined.

See Thorpe v. District of Columbia, 303 F.R.D. 120, 140 (D.D.C.

2014)(finding that the proposed class was ascertainable because

56
the definitions were “fairly specific” and not “vague”). As

such, the proposed class is ascertainable and well-defined: “by

looking at the class definition, counsel and putative class

members can easily ascertain whether they are members of the

class.” Pigford, 182 F.R.D. at 346.

Indeed, plaintiffs’ class is readily ascertainable to both

class members and counsel. As discussed above, when USCIS denies

an I-526 petition, it issues written notice with the agency’s

reasons for denying the petition. See 8 C.F.R. § 204.6(k)(“the

petitioner will be notified of the decision, and, if the

petition is denied, of the reasons for the denial”); Hagiwara

A.R., ECF No. 27-1 at 392-397 (Notice of Decision); Zhang A.R.,

ECF No. 27-4 at 177-181 (Notice of Decision). Therefore, to

determine whether an individual meets the class definition, one

need only read the Notice of Decision (or the preceding Request

for Evidence, see e.g., Hagiwara A.R., ECF No. 27-1 at 245-250).

If the investor filed an I-526 petition that was denied solely

based on USCIS’ erroneous interpretation that cash loan proceeds

are invested as indebtedness, the investor is a member of the

class.

3. The Class is Sufficiently Numerous

The Court finds, and USCIS does not dispute, that “the

class is so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a); see generally Defs.’

57
Class Cert. Opp’n, ECF No. 13. The numerosity requirement is

determined on a case-by-case basis and “imposes no absolute

limitations”. R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 180

(D.D.C. 2015)(citations omitted). As such, plaintiffs “need not

prove exactly how many people fall within the class to merit

certification.” Id. (citing Kifafi v. Hilton Hotels Retirement

Plan, 189 F.R.D. 174, 176 (D.D.C.1999) (“So long as there is a

reasonable basis for the estimate provided, the numerosity

requirement can be satisfied without precise numbers.”)).

Generally speaking, “courts have found that a proposed class

consisting of at least forty members” satisfies Rule 23(a)’s

numerosity requirement. Johnson v. District of Columbia, 248

F.R.D. 46, 52 (D.D.C.2008).

Plaintiffs have provided a reasonable basis to assume there

are at least 134 EB-5 investors whose I-526 petitions have been

or will be denied based on USCIS’ erroneous interpretation of

its regulation that loan proceeds are invested as “indebtedness”

and not “cash.” See Peter D. Joseph Decl., ECF No. 10-6

(reporting that at least 134 investors from seven Regional

Centers received a Request for Evidence, Notice of Intent to

Deny, or Notice of Decision based on USCIS’ erroneous

interpretation). As such, the Court agrees that plaintiffs have

established the numerosity requirement.

58
 4. There are Questions of Law Common to the Entire Class and
Claims Typical to the Entire Class

Plaintiffs argue that there are questions of law or fact

common to the class and the representatives’ claims are typical

of the class—as Rule 23(a)(2) and (3) require—because the

plaintiffs challenge USCIS’ “uniform policy or practice,” which

affected or will affect each member. Pls.’ Class Cert. Mot., ECF

No. 10 at 20-23. Because the class definition requires that the

investor’s I-526 petition has been denied (or will be denied)

based on USCIS’ erroneous interpretation, the Court’s decision

resolves the issue central to each class member’s claim. See id.

USCIS argues that plaintiffs have not established commonality

and typicality because the putative class is too broadly drawn,

“bringing within its ambit differing factual circumstances and

differing legal claims.” Defs.’ Class Cert. Opp’n, ECF No. 13 at

11; see id. 11-14. It contends that the proposed class includes

“groups of aliens whose legal and factual interests differ”

because there are “different factual basis for their claims.”

Id. at 11. USCIS points to the “different loan agreements at

issue in these various investment projects,” id. at 13, and

argues that the definition impermissibly “treats[] all debt,

regardless of structure, the same,” id. at 12.

“The commonality and typicality requirements often overlap

because both serve as guideposts to determine whether a class

59
action is practical and whether the representative plaintiffs'

claims are sufficiently interrelated with the class claims to

protect absent class members.” R.I.L-R v. Johnson, 80 F. Supp.

3d 164, 181 (D.D.C. 2015)(quotations and citations omitted).

Because USCIS’ principal challenge to class certification goes

to both, the Court considers them together.

To establish commonality, plaintiffs must demonstrate that

“there are questions of law or fact common to the class.” Fed.

R. Civ. P. 23(a)(2). To that end, class members' claims must

depend on a “common contention [that] . . . is capable of

classwide resolution—which means that determination of its truth

or falsity will resolve an issue that is central to the validity

of each one of the claims in one stroke.” Wal–Mart, 564 U.S. at

350. In other words, the representative plaintiffs must show

that the class members have “suffered the same injury.” Id.

(quotations omitted). Indeed, commonality is satisfied when

plaintiffs challenge “a uniform policy or practice that affects

all class members.” DL v. District of Columbia, 713 F.3d 120,

128 (D.C. Cir. 2013). To demonstrate typicality, plaintiffs must

establish that the class representatives’ claims or defenses are

“typical of the claims or defenses of the class.” Fed. R. Civ.

P. 23(a)(3). “Typicality means that the representative

plaintiffs must ‘possess the same interest and suffer the same

60
injury’ as the other class members.” R.I.L-R, 80 F. Supp. 3d at

181 (quoting Falcon, 457 U.S. at 156).

Here, it is clear that all members of the class “suffered

the same injury” or will suffer the same injury: denial of their

I-526 petition based on USCIS’ erroneous interpretation of 8

C.F.R. § 204.6 that cash loan proceeds are invested as

“indebtedness” and therefore must be personally collateralized.

Walmart, 564 U.S. at 350. Indeed, the challenged interpretation,

as announced in USCIS’ 2015 IPO Remarks, is a “uniform policy or

practice . . . [that] affects all class members.” R.I.L-R, 80 F.

Supp. 3d at 181 (quoting DL, 713 F.3d at 128). By terms of the

approved and modified class definition, USCIS’ erroneous

interpretation must be the sole basis for every class member’s

existing or forthcoming I-526 petition denial. This common

injury is “capable of classwide resolution” because the Court’s

decision resolves “each one of the claims in one stroke”—it

vacates and remands USCIS’ denials. Walmart, 564 U.S. at 350.

Petition-specific factual differences among class members

would not defeat commonality or typicality. Indeed,

“demonstrating typicality does not mean showing that there are

no factual variations between the claims of the plaintiffs.”

Bynum v. District of Columbia, 214 F.R.D. 27, 35 (D.D.C. 2003).

Here, the Court concludes that the named plaintiffs’ claims are

“based on the same legal theory as the claims of the other class

61
members,” namely that USCIS’ interpretation of 8 C.F.R. § 204.6

is erroneous and violates the APA. Id. As such, the typicality

requirement is satisfied as “the named plaintiffs' injuries”—

petition denials based on the erroneous interpretation—“arise

from the same course of conduct that gives rise to the other

class members' claims.” Id.

The Court is not persuaded by USCIS’ arguments to the

contrary. For example, USCIS points to the “different loan

agreements at issue” and argues that plaintiffs’ “overbroad”

definition lacks commonality and typicality because “the

structure of the third party loan invariably affects [USCIS’]

determination.” Defs.’ Class Cert. Opp’n, ECF No. 13 at 12-13.

But plaintiffs do not challenge USCIS’ interpretation as

erroneously applied in different circumstances. Instead,

plaintiffs’ challenge the facial validity of USCIS’

interpretation that cash loan proceeds are invested as

indebtedness. See generally Pls.’ MSJ, ECF No. 19. By

invalidating USCIS’ interpretation and vacating its denials

based on that interpretation, the Court’s decision resolves all

class members’ claims, as all class members received or will

receive denials solely based on USCIS’ erroneous interpretation.

Indeed, because USCIS’ interpretation is erroneous, the Court

disagrees that class certification “would quickly devolve into

hundreds of individualized inquiries about each plaintiff’s

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particular circumstances,” as USCIS contends. Defs.’ Class Cert.

Opp’n, ECF No. 13 at 13-14.

Finally, the Court rejects USCIS’ suggestion that

commonality and typicality cannot be satisfied because the

proposed class is “not limited in geographic scope.” Id. at 12.

“Nothing in Rule 23 . . . limits the geographical scope of a

class action that is brought in conformity with that Rule.”

Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Instead, a court

must “take care to ensure that nationwide relief is indeed

appropriate in the case before it” to avoid “improperly

interfer[ing] with the litigation of similar issues in other

judicial districts.” Id. The Court has done so here. Plaintiffs

challenge a federal agency’s interpretation of its rule

established in the course of implementing a federal immigration

program. Any geographic limitation of the class would be

entirely arbitrary. See id. at 702-03 (affirming certification

of a nationwide class challenging the administration of a

federal program). Moreover, USCIS has not identified any ongoing

litigation regarding the same issue in other districts. See

generally Defs.’ Class Cert. Opp’n, ECF No. 13. As such, there

is no reason to believe that certifying a nationwide class would

foreclose adjudication by other courts.

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 5. The Representative Plaintiffs and Counsel Will Fairly and
Adequately Protect the Interests of the Class

Plaintiffs argue that the representative parties will

fairly and adequately protect the interests of the class because

there is no conflict between the named plaintiffs and the rest

of the class and counsel is competent to represent the class.

Pls.’ Class Cert. Mot., ECF No. 10 at 24. USCIS does not dispute

that counsel is competent to represent the class, but instead

argues that the class representatives cannot fairly represent

the class because their “legal and factual circumstances . . .

are so distinct from the proposed class.” Defs.’ Class Cert.

Opp’n, ECF No. 13 at 14. Specifically, USCIS points to the fact

that the named plaintiffs obtained loans from businesses they

principally owned. Id. at 14-15.

As discussed, the class members all suffered or will suffer

the same injury: denial of their I-526 petitions based on USCIS’

erroneous interpretation of its regulation. As such, the

representative members’ interests are aligned with the rest of

the class. The Court again rejects USCIS’ argument that

plaintiffs have conflicting interests based on their specific

loan arrangements because plaintiffs do not challenge any

particular application of USCIS’ interpretation. Instead,

plaintiffs challenge USCIS’ interpretation of its regulation

generally.

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 Finally, the Court finds that class counsel is more than

competent to represent the class. See, e.g., Kurzban Decl., ECF

No. 10-7. Counsel has decades of experience with both

immigration litigation and class actions. See generally id.

Based on the briefing in this case, counsel clearly devoted

substantial time and efforts to this litigation and will

continue to zealously represent all class members.

6. USCIS’ Erroneous Interpretation Applies Generally

Plaintiffs argue that they have established that USCIS

“acted or refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding

declaratory relief is appropriate respecting the class as a

whole” pursuant to Rule 23(b)(2). Plaintiffs contend that all of

the class members’ I-526 petitions have been or will be denied

for the same reason. Pls.’ Class Cert. Mot., ECF No. 10 at 24-

25. USCIS argues that plaintiffs do not seek relief from a

generally applicable unlawful practice because USCIS’

interpretation of its regulation is not a “new eligibility

rule.” Defs.’ Class Cert. Opp’n, ECF No. 13 at 15. Instead,

USCIS contends that its interpretation is “longstanding,” and

therefore plaintiffs “have not shown that injunctive or

declaratory relief is appropriate.” Id. at 15-16.

Plaintiffs’ proposed class satisfies Rule 23(b)(2) because

USCIS’ interpretation of its regulation has been or will be

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applied generally to the entire class and plaintiffs seek

declaratory and injunctive relief that will benefit the class as

a whole. As in R.I.L-R v. Johnson, plaintiffs’ “suit challenges

a policy generally applicable to all class members.” 80 F. Supp.

3d at 182. As has been discussed, “a determination of whether

that policy is unlawful would resolve all class members’ claims

‘in one stroke.’” Id. (quoting Wal-Mart, 564 U.S. at 350).

USCIS’ arguments to the contrary are devoid of merit. Even

assuming USCIS’ interpretation is “longstanding” and is not a

“new eligibility rule,” it does not follow that certification is

inappropriate. First, the Court has indeed determined that

USCIS’ interpretation is a legislative rule subject to the APA’s

notice and comment procedures, lending support to the argument

that its interpretation is a formal “policy.” See supra Sec.

III.A.2. Second, “courts have never required [class

certification under 23(b)(2)] to turn on whether the party

opposing the class has adopted . . . a formal policy. Rather, it

is enough to show that a defendant ‘has acted in a consistent

manner toward members of the class so that his actions may be

viewed as part of a pattern of activity.’” Bynum, 214 F.R.D. at

37 (quoting 7A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY

KANE, FEDERAL PRACTICE AND PROCEDURE § 1775 (2d ed. 1986)).

Indeed, USCIS cannot dispute that its purportedly “longstanding”

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interpretation is being applied consistently and to the

detriment of the proposed class.

7. Court Modification of the Class Definition

Accordingly, the Court finds that plaintiffs have

established that a class action is appropriate pursuant to

Federal Rule of Civil Procedure 23. As such, the Court GRANTS

plaintiffs’ motion for class certification, albeit with two

modifications to the class definition.

First, plaintiffs limit the proposed class to all investors

who “filed a Form I-526 petition prior to April 22, 2015.” Pls.’

Class Cert. Mot., ECF No. 10 at 1. Plaintiffs propose defining

the class in this manner so “all proposed class members would

benefit if the Court determines that the collateralization rule

cannot be applied retroactively (Count II).” Id. at 22. The date

is significant because USCIS publicly announced its erroneous

interpretation on April 22, 2015 and plaintiffs argue that USCIS

retroactively applied its interpretation to investors who

applied for an EB-5 visa prior to that announcement. See id. at

12-14. However, the Court ultimately does not reach plaintiffs’

retroactivity claim because it concludes that USCIS’

interpretation is plainly erroneous and violates the APA. 10

10Plaintiffs agree that the retroactivity analysis need not be
reached if the Court finds that the interpretation is arbitrary
and capricious. See Pls.’ MSJ, ECF No. 19 at 51 (“Indeed, the
retroactivity analysis starts with the assumption that the
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Therefore, because any denial based on USCIS’ interpretation is

erroneous, the date limitation strikes the Court as unduly

arbitrary.

Second, the Court amends the definition to clarify that

only investors who received a denial of their I-526 petition

solely based on the USCIS’ interpretation are included in the

class. The class does not include investors who received denials

for multiple reasons. As such, the Court certifies the following

class:

All Form I-526 petitioners who: (1) invested
cash in a new commercial enterprise in an
amount sufficient to qualify as an EB-5
investor; (2) obtained some or all of the cash
invested in the new commercial enterprise
through a loan; (3) filed a Form I-526
petition based on that investment; and (4)
received or will receive a denial of their I-
526 petition solely on the ground that the
loan used to obtain the invested cash fails
the collateralization test described in the
USCIS 2015 IPO Remarks announcement.

IV. Conclusion

For the foregoing reasons, the Court GRANTS IN PART

plaintiffs’ motion for summary judgment; DENIES USCIS’ cross-

motion for summary judgment; GRANTS plaintiffs’ motion to

policy or interpretation at issue is not arbitrary and
capricious. If a rule is arbitrary and capricious, the issue of
retroactivity is moot because the rule cannot be applied
prospectively, much less retroactively.”). Thus, plaintiffs’
proposed temporal limitation serves no purpose.
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certify class, albeit with a modified class definition; and

DENIES AS MOOT plaintiffs’ motion to amend the complaint. USCIS’

decisions to deny plaintiffs’ and class members’ petitions are

therefore VACATED and the denials are REMANDED to USCIS for

reconsideration consistent with this Memorandum Opinion. The

Clerk of Court is directed to close this case, with such closure

being without prejudice to a motion to re-open following further

USCIS proceedings. An appropriate Order accompanies this

Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan
United States District Judge
November 30, 2018

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