1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SERGE PHILIPPE BEGA, et al.,

Plaintiffs,

v.

UR JADDOU, Director,

U.S. Citizenship and Immigration Services,

Defendant.

Civil Action No. 22-02171 (BAH)

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiffs are four family members—three brothers, Serge Philippe Bega, Max Hubert 

Bega and Pierrot Serge Bega, and Phillipe’s son, Serge Brian Bega—who, as citizens of South 

Africa, “invested at least $2 million dollars in the United States in order to immigrate to the 

United States via investment.” Compl. at 1, and ¶¶ 26–28, ECF No. 1. They initiated this suit to 

compel the Director of the U.S. Citizenship and Immigration Services (“USCIS”), acting in her 

official capacity, to adjudicate their I-526 petitions, which have been pending without a decision 

for over three years. See Id. ¶¶ 5, 37, 172–73. USCIS moved to dismiss the complaint, under 

Federal Rule of Civil Procedure 12(b)(6), for failure to allege a plausible claim that the delay 

plaintiffs have encountered is “unreasonable as a matter of law” pursuant to the Administrative 

Procedure Act (“APA”). Defs.’ Mem. Pts. & Auth. Supp. Def.’s Mot. Dismiss (“Def.’s Mem.”) 

at 9, ECF No. 5-1.

For the reasons set forth below, the complaint is dismissed.
2

I. BACKGROUND

Briefly reviewed below is relevant statutory, regulatory, and factual background 

underlying the claims followed by the procedural history of this case.

A. Statutory and Regulatory Background

The Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., authorizes the 

issuance of visas to different categories of immigrants, including, under the so-called “EB-5” 

program, to immigrants who contribute to “employment creation” by investing in new 

commercial enterprises that create full-time jobs for American workers. Immigration Act of 

1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4989 (1990) (codified at 8 U.S.C. § 

1153(b)(5)); see 8 C.F.R. § 204.6 (2020) (defining the requirements and process for EB-5 “alien 

entrepreneur” classification). “An I-526 petition is the mechanism by which individuals who are 

eligible to immigrate to the United States through the EB-5 category obtain recognition from the 

government that they have satisfied the investment and job-creation requirements of that visapreference category.” Mokkapati v. Mayorkas, No. 21-cv-1195 (BAH), 2022 WL 2817840, at *1 

(D.D.C. July 19, 2022).

To qualify for a visa under the EB-5 program, an immigrant must file an I-526 petition 

with USCIS and “create full-time employment for not fewer than 10 United States citizens, 

United States nationals, or aliens lawfully admitted for permanent residence or other immigrants 

lawfully authorized to be employed in the United States (other than the immigrant and the 

immigrant’s spouse, sons, or daughters).” 8 U.S.C. § 1153(b)(5)(A)(ii); 8 C.F.R. § 204.6(a)–(c). 

To that end, the immigrant must have made or be in the process of making an investment of at 

least $1,000,000 generally or at least $500,000 into a “targeted employment area.” 8 U.S.C. 
3

§ 1153(b)(5)(C)(ii) (2019).

1

 USCIS permits certain so-called “economic units” to apply for 

categorization as a “targeted employment area” and designation as a “regional center” through 

the Immigrant Investor Pilot Program, also called the Regional Center Program. See

Departments of Commerce, Justice, and State, the Judiciary and Related Agencies 

Appropriations Act of 1993 (“Appropriations Act”), Pub. L. No. 102-395, § 610(a), 106 Stat. 

1828, 1874 (1992); 8 C.F.R. § 204.6(e), (m); Compl. ¶ 30.

Although Congress had consistently reauthorized the Regional Center Program since its 

establishment in 1992, Bromfman v. U.S. Citizenship and Immig. Servs., No. 20-cv-571 (BAH), 

WL 5014436, at *2 (D.D.C. Oct. 28, 2021), this authorization expired on June 30, 2021, see

Appropriations Act, amended by Consolidated Appropriations Act of 2021, Pub. L. No. 116-260, 

Div. O, § 104, 134 Stat 1182, 2148 (2020). Upon the program’s statutory sunset, USCIS 

announced that it would “not act on any pending I-526 petition ‘that is dependent on the lapsed 

statutory authority and was filed before the end of the statutory authorization.’” Bromfman, WL 

5014436, at *4 n.4 (citations omitted); id. at *4 (noting that, throughout lapse of program's 

authorization, any actions taken by USCIS “to process plaintiff’s application would not advance 

plaintiff’s efforts to obtain a Regional Center visa—since Congress has not authorized any” 

(cleaned up)).

Almost nine months later, on March 15, 2022, President Biden signed the Consolidated 

Appropriations Act of 2022 into law, which included the EB-5 Reform and Integrity Act of 2022 

reauthorizing the Regional Center Program. See Pub. L. No. 117-103, Div. BB, § 101, 136 Stat. 

1 The threshold amounts required for EB-5 investments have recently increased from $1,000,000 to 

$1,050,000 generally and from $500,000 to $800,000 for targeted employment areas. See 8 U.S.C. 

§ 1153(b)(5)(C)(ii). Plaintiffs’ petitions were filed in 2019, before these statutory monetary increases, however, and 

as such would be assessed based on the then-qualifying investment amounts. See Compl. ¶ 37; About the EB-5 Visa 

Classification, USCIS, available at https://www.uscis.gov/working-in-the-united-states/permanentworkers/employment-based-immigration-fifth-preference-eb-5/about-the-eb-5-visa-classification (accessed Nov. 28, 

2022). 
4

1070 (2022). The relevant agencies, including USCIS, have over the last few months 

reimplemented the program and resumed the intake and processing of I-526 petitions. See id.;

Mokkapati, 2022 WL 2817840, at *2. During the period of lapsed authorization, USCIS held in 

abeyance petitions filed before July 1, 2021 and rejected any petitions filed after that date, see id.

at *2, 6; Bromfman, WL 5014436, at *4 n.4.

Successful adjudication and approval of an I-526 petition confers eligibility for, but does 

not automatically provide, a visa to a petitioner. “Once the [I-526] petition is processed and [if] a 

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

permanent resident status.” Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373, 375 (D.C. Cir. 2020) 

(citing 8 U.S.C. § 1186b(a)). Thus, a successful adjudication of an I-526 petition represents only 

a foreign investor’s (and dependent family members’) eligibility to apply for two-year 

conditional permanent resident status either from within the United States or overseas from the 

State Department at the United States consular post in the petitioners’ home country. See Feng 

Wang v. Pompeo, 18-cv-1732 (TSC) 2020 WL 1451598, at *2 (D.D.C. March 25, 2020); 8 

U.S.C. §§ 1186b(a)(1), 1201(a), 1255(i); 8 C.F.R. § 245.2; 22 C.F.R. §§ 42.32(e), 42.41, 42.42.

Congress has placed annual limits on both the total number of individuals who can 

receive visas to become lawful permanent residents and the percentage of visas which can be 

granted to individuals from any one country. See generally 8 U.S.C. §§ 1151, 1152. The percountry limit permits no more than seven percent of employment-based visas to be allotted to a 

single country, unless cap numbers would otherwise go unused. Id. § 1152(a)(2), (3). As such, 

a visa “queue” can easily form when the number of applications exceeds the number of visas

available in a given year in any given category or country. Def.’s Mem. at 12. On January 29, 

2020, USCIS modified the case-assignment process for I-526 Petitions, aimed at better utilizing 
5

countries’ annual allocations of visas. USCIS Adjusts Process for Managing EB-5 Visa Petition 

Inventory, USCIS (Jan. 29, 2020) (“EB-5 Processing Announcement”), available at 

https://www.uscis.gov/news/news-releases/uscis-adjusts-process-for-managing-eb-5-visapetition-inventory (accessed Nov. 28, 2022). Under that new approach—termed the “Visa 

Availability” approach—priority is given to processing petitions from applicants from countries 

where EB-5 immigrant visas are, or will soon be, available. See Questions and Answers: EB-5 

Immigrant Investor Program Visa Availability Approach at A1, A2, USCIS, available at 

https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-basedimmigration-fifth-preference-eb-5/questions-and-answers-eb-5-immigrant-investor-programvisa-availability-approach (accessed Nov. 28, 2022). If a visa is or soon will be available for 

petitioners from a given country and the underlying project into which petitions invested has 

been reviewed, I-526 petitions are then reviewed in a first-in, first-out order. Id. at A1, A14. 

B. Procedural Background

Plaintiffs are seeking immigrant investor visas under 8 U.S.C. § 1153(b)(5). Compl. 

¶¶ 26–37. To that end, plaintiffs have collectively invested at least $2 million dollars into two

USCIS-designated Regional Centers. Id. ¶¶ 28, 30–36. Plaintiffs thereafter filed separate Forms 

I-526 between April and November of 2019, id. ¶ 37, and now complain that USCIS has taken 

no action on any of their I-526 petitions over the last three years. Id. ¶ 38. 

On July 23, 2022, plaintiffs initiated this litigation, challenging defendant’s delay in 

adjudicating their I-526 petitions under the APA. Id. ¶¶ 42–44. In response, defendant moved to 

dismiss plaintiffs’ Complaint, under Federal Rule of Civil Procedure 12(b)(6), for failure to state 

a claim, Def.’s Mot. Dismiss, ECF No. 5, which motion became ripe for resolution on October 

10, 2022, see Def.’s Reply Supp. Mot. Dismiss (“Def.’s Reply”), ECF No. 7. 
6

II. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, the “complaint must contain sufficient 

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Wood v. 

Moss, 572 U.S. 744, 757–58 (2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A 

claim is facially plausible when the plaintiff pleads factual content that is more than “‘merely 

consistent with’ a defendant’s liability,” but “allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 556–57 (2007)); see also Rudder v. Williams, 666 F.3d 

790, 794 (D.C. Cir. 2012). In deciding a motion under Rule 12(b)(6), the court must consider the

whole complaint, accepting all factual allegations in the complaint as true, even if doubtful in 

fact, and construe all reasonable inferences in favor of the plaintiff. Twombly, 550 U.S. at 555;

see also Atchley v. AstraZeneca UK Limited, 22 F.4th 204, 210 (D.C. Cir. 2022). Courts do not, 

however, “‘accept inferences drawn by [a] plaintiff[] if such inferences are unsupported by the 

facts set out in the complaint.’” Nurriddin v. Bolden, 818 F.3d 751, 756 (D.C. Cir. 

2016) (alteration in original) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C.

Cir. 1994)). In determining whether a complaint fails to state a claim, a court may consider only 

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

complaint and matters of which [the court] may take judicial notice.” N. Am. Butterfly Ass’n v. 

Wolf, 977 F.3d 1244, 1249 (D.C. Cir. 2020) (quoting Hurd v. District of Columbia, 864 F.3d 

671, 678 (D.C. Cir. 2017)) (alteration in original); see also Tellabs, Inc. v. Makor Issues & 

Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as 

well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to 

dismiss, in particular, documents incorporated into the complaint by reference, and matters of 
7

which a court may take judicial notice.”). A court “may judicially notice a fact that is not 

subject to reasonable dispute because it . . . can be accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned,” and may do so “at any stage of the 

proceeding.” FED. R. EVID. 201(b)(2), (d). Thus, judicial notice may be taken of factual content 

found on official public websites of government agencies. See, e.g., Cannon v. District of 

Columbia, 717 F.3d 200, 205 n.2 (D.C. Cir. 2013) (taking judicial notice of program details from 

document posted on the District of Columbia’s Retirement Board website); Carik v. U.S. Dep’t 

of Health & Human Servs., 4 F. Supp. 3d 41, 48 n.4, (D.D.C. 2013) (taking judicial notice of 

information on the federal agency’s website); Pharm. Rsch. & Mfrs. of Am. v. U.S. Dep’t of 

Health & Human Servs., 43 F. Supp. 3d 28, 33 (D.D.C. 2014) (same). 

III. DISCUSSION

Defendants contend that plaintiffs have failed to state a claim upon which relief can be 

granted because they “fail to plausibly allege that the delay they face is unreasonable” under the 

APA. Def.’s Mem. at 9. The APA requires agencies to “proceed to conclude a matter presented 

to [them]” in a “reasonable time,” 5 U.S.C. § 555(b), and authorizes reviewing courts to “compel 

agency action unlawfully withheld or unreasonably delayed,” id. § 706(1). In determining 

whether a delay in agency action is unreasonable, the D.C. Circuit has enumerated six guiding

factors:

(1) the time agencies take to make decisions must be governed by a rule of reason; (2) 

where Congress has provided a timetable or other indication of the speed with which it 

expects the agency to proceed in the enabling statute, that statutory scheme may supply 

content for this rule of reason; (3) delays that might be reasonable in the sphere of 

economic regulation are less tolerable when human health and welfare are at stake; (4) 

the court should consider the effect of expediting delayed action on agency activities of a 

higher or competing priority; (5) the court should also take into account the nature and 

extent of the interests prejudiced by delay; and (6) the court need not find any 

impropriety lurking behind agency lassitude in order to hold that agency action 

is unreasonably delayed.
8

Telecomms. Rsch. & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 80 (D.C. Cir. 1984) (internal 

quotations and citations omitted). Examining the available record using the TRAC factors 

demonstrates that plaintiffs have failed to state a claim for unreasonable delay.2 

A. Scope of Information Permissibly Considered

As a preliminary matter, the parties dispute the scope of factual information appropriately 

considered in analyzing the TRAC factors at the motion-to-dismiss stage. Plaintiffs challenge 

any reliance on defendant’s “extra-complaint factual averments” as improper without converting 

the pending motion to dismiss to one for summary judgement. Pls.’ Opp’n Def.’s Mot. Dismiss 

(“Pls.’ Opp’n”) at 2, ECF No. 6. Specifically, they assert that defendant’s “main arguments” rely 

“extensively” on “evidence beyond the complaint,” namely the details of the process USCIS 

follows to receive and adjudicate I-526 petitions, the effect compelling action on plaintiffs’ 

petitions would have on that process, and the fact and effect of the Regional Center Program’s 

sunsetting and reimplementation. Id. at 3. Further, plaintiffs contend that their complaint 

2 Plaintiffs argue that “Rule 12(b)(6) motions are inappropriate for unreasonable delay claims” because such 

claims are “naturally rife with questions of fact” that inform the TRAC factor analysis. Pls.’ Opp’n Def.’s Mot. 

Dismiss (“Pls.’ Opp’n”) at 2, ECF No. 6. The TRAC decision does not command assessment of the six factors only 

after completion of discovery, particularly in an APA case where discovery beyond the administrative record 

compiled by an agency may only be appropriate “when there has been a ‘strong showing of bad faith or improper 

behavior’ or when the record is so bare that it prevents effective judicial review.” In re Cheney, 334 F.3d 1096, 

1103 (D.C. Cir. 2003) (quoting Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir. 

1998) (emphasis added). Plaintiffs rely on a post-TRAC D.C. Circuit decision, as well as out-of-Circuit authority,

for the proposition that “[r]esolution of a claim of unreasonable delay is ordinarily a complicated and nuanced task 

requiring consideration of the particular facts and circumstances before the court.” Pls.’ Opp’n. at 1 (quoting 

Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1100 (D.C. Cir. 2003)). The majority view 

expressed by Judges on this Court, however, is that application of the TRAC factors is appropriate at the motion-todismiss stage when the facts alleged do not support a plausible claim of unreasonable delay. See Mokkapati, 2022 

WL 2817840, at *4 n.4 (collecting cases). As in those cases, the record here provides sufficient “undisputed facts to 

evaluate the TRAC factors and determine, not whether there has been an unreasonable delay as a factual matter, but 

rather whether plaintiffs’ complaint alleges facts sufficient to state a plausible claim for unreasonable administrative 

delay.” Id. (citing Sarlark v. Pompeo, No. 20-cv-35 (BAH), 2020 WL 3082018, at *5 (D.D.C. June 10, 2020)); see 

also Costa v. Immigration Inv’r Program Office, No. 22-cv-1576 (JEB), 2022 WL 17173186, at *8 (D.D.C. Nov. 

16, 2022) (rejecting same argument to conclude that “the facts alleged in the Complaint, coupled with facts of which 

the Court may take judicial notice, permit it to adequately evaluate the TRAC factors without discovery.”).
9

contains contrary allegations regarding the operation of the EB-5 program, and as such only the 

allegations in their complaint may inform the TRAC factor analysis. Id.

While generally true that a motion to dismiss is assessed based on the factual allegations

contained in the complaint, which allegations are assumed to be true, plaintiffs’ argument is 

misplaced under these circumstances. Contrary to plaintiffs’ argument, courts need not accept 

factual allegations in a complaint over countervailing judicially noticed evidence demonstrating 

that the fact is not reasonably disputable and “can be accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned.” FED. R. EVID. 201(b)(2). As noted, 

courts may judicially notice such facts and permissibly consider them in determining a motion to 

dismiss, with such treatment regularly accorded to facts found on the official, public-facing 

websites of government agencies as they relate to the operation of agency-run programs. See, 

e.g., Cannon, 717 F.3d at 205 n.2; Meyou v. U.S. Dep’t of State, No. 21-cv-2806 (JDB), 2022 

WL 1556344, at *2 n.3 (D.D.C. May 17, 2022); Arab v. Blinken, No. 21-cv-1852 (BAH), 2022 

WL 1184551, at *2 n.1 (D.D.C. Apr. 21, 2022); Giliana v. Blinken, No. 21-cv-1416 (CRC), 2022 

WL 910338, at *4 n.2 (D.D.C. March 29, 2022); Chowdhury v. Blinken, No. 21-cv-1205 (RCL), 

2022 WL 136795, at *1 n.1 (D.D.C. Jan. 14, 2022); Dastagir v. Blinken, 557 F. Supp. 3d 160, 

163 n.3 (D.D.C. 2021); Thakker v. Renaud, No. 20-cv-1133 (CKK), 2021 WL 1092269, at *1 n.4 

(D.D.C. March 22, 2021); ); Desai v. USCIS, No. 20-1005 (CKK), 2021 WL 1110737, at *1 n.2 

(D.D.C. Mar. 22, 2021); Palakuru v. Renaud, 521 F. Supp. 3d 46, 48 & n.3 (D.D.C. 2021).

Here, the factual assertions concerning the operation of the EB-5 program that plaintiffs 

argue were impermissibly relied upon in defendant’s Motion are derived from information 

available on the official USCIS website and cannot reasonably be disputed. See Pls.’ Opp’n at 3; 

see also Questions and Answers: EB-5 Immigrant Investor Program Visa Availability Approach
10

(“Questions & Answers”) at A1-A2, A14, USCIS, available at https://www.uscis.gov/workingin-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb5/questions-and-answers-eb-5-immigrant-investor-program-visa-availability-approach (accessed

Nov. 28, 2022) (describing the approach USCIS currently takes to the adjudication of I-526 

petitions); Chapter 1 - Purpose and Background, USCIS, available at

https://www.uscis.gov/policy-manual/volume-6-part-g-chapter-1 (accessed Nov. 28, 2022)

(discussing the sunsetting and reimplementation of the Regional Center Program, including the 

pause on the adjudication of Regional Center-affiliated I-526 petitions); EB-5 Reform & Integrity 

Act of 2022 Listening Session at 4–5, USCIS, available at

https://www.uscis.gov/sites/default/files/document/outreach-engagements/EB5_Reform_and_Integrity_Act_of_2022_Listening_Session.pdf (accessed Nov. 28, 2022) (same); 

EB-5 What’s New (“EB-5 Processing Announcement”), USCIS, available at

https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-basedimmigration-fifth-preference-eb-5/eb-5-whats-new-0 (accessed Nov. 28, 2022) (listing as a news 

“alert” the resumption of the processing of Regional Center-based I-526 petitions and the 

implementation of the visa availability approach). As a result, judicial notice is taken of the facts 

regarding the operation of the EB-5 visa program made publicly available on the USCIS website,

even if plaintiffs attempted to plead contradictory allegations to support their claims. To the 

extent defendant’s motion to dismiss relies on this publicly available factual background, those 

arguments are properly considered in the TRAC factor analysis.3

3 Ironically, even as they contest defendant’s reference to this publicly available background on the EB-5 

program, plaintiffs submit email printouts purportedly derived from FOIA requests on which they rely as support for

their own arguments on the TRAC factors’ application. See Pls.’ Opp’n at 10–12; Pls.’ Opp’n, Ex. A, Tryon Emails, 

ECF No. 6-1. Plaintiffs make no effort to explain how this plainly extra-complaint material may be considered on a 

Rule 12(b)(6) motion, including how these printouts would amount to evidence not subject to reasonable dispute, as 

the information presented cannot be said to “be accurately and readily determined from sources whose accuracy 
11

B. TRAC Factors 

a. Factors 1 and 2

The first and second TRAC factors weigh in defendant’s favor. These factors are 

“typically considered together,” Milligan v. Pompeo, 502 F. Supp. 3d 302, 317 (D.D.C. 2020), 

and “get at whether the agency’s response time complies with an existing specified schedule and 

whether it is governed by an identifiable rationale.” Ctr. for Sci. in the Pub. Interest v. United 

States Food & Drug Admin., 74 F. Supp. 3d 295, 300 (D.D.C. 2014). 

The first factor, asking whether the timeline for agency decision-making is governed by a 

“rule of reason,” is the most important. See In re Core Commc’ns Inc., 531 F.3d 849, 855 (D.C. 

Cir. 2008); see also Norton v. S. Utah Wilderness All., 542 U.S. 55, 63–64 (2004); Tate v. 

Pompeo, 513 F. Supp. 3d 132, 147 (D.D.C. 2021). “Whether a ‘rule of reason’ exists for agency 

action ‘cannot be decided in the abstract, by reference to some number of months or years 

beyond which agency inaction is presumed to be unlawful, but will depend in large part . . . upon 

the complexity of the task at hand, the significance (and permanence) of the outcome, and the 

resources available to the agency.’” Tate, 513 F. Supp. 3d at 148 (quoting Mashpee Wampanoag 

Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1102 (D.C. Cir. 2003)).

As previously discussed, USCIS processes I-526 petitions based on a “Visa Availability” 

approach, which prioritizes petitions from countries for which visas are currently or soon to be 

available. Questions & Answers at A1. That approach does not impose any specific deadlines 

for the adjudication of a particular petition, but guides the general order in which applications are 

considered and aligns the EB-5 process with other agency adjudication processes as well as with 

the congressional intent behind the immigrant investor program. See EB-5 Processing 

cannot reasonably be questioned.” FED. R. EVID. 201(b)(2). Judicial notice will therefore not be taken of this 

material.
12

Announcement; Def.’s Mem. at 20–21. This method has repeatedly been upheld as “reasonable 

and well within the agency’s workload-management discretion” and “consistent with the ‘wide 

discretion’ afforded to USCIS by Congress in the ‘area of immigration processing,’” Mokkapati,

2022 WL 2817840, at *5 (quoting Skalka v. Kelly, 246 F. Supp. 3d 153–54 (D.D.C. 2017). See

also, e.g., Nohria v. Renaud, No. 20-cv-2085 (BAH), 2021 WL 950511, at *6 n.5 (D.D.C. March

14, 2021) (“The agency’s process is clearly governed by a solid rule of reason—the visa 

availability approach—meeting the first factor.”); Telles v. Mayorkas, No. 21-cv-395 (TJK), 

2022 WL 2713349, at *3 (D.D.C. July 13, 2022) (holding that USCIS’s processing of Form I526 petitions is governed by an “identifiable rationale” (internal quotation omitted)); Palakuru, 

521 F. Supp. 3d at 51 (holding that for I-526 petitions “a ‘first-in, first-out method’ satisfies the 

rule-of-reason inquiry”). This case is no different: USCIS’s process for adjudicating I-526 

petitions is governed by an identifiable rule of reason. 

As to the second factor—whether Congress has indicated a timetable for the agency 

action at issue—plaintiffs argue that 8 U.S.C. § 1571(b) and the EB-5 Reform and Integrity Act 

of 2021 both indicate a congressionally imposed deadline of 180 days for processing I-526

petitions. Compl. ¶¶ 81, 84; Pls.’ Opp’n at 8. Indeed, section 1571(b), “the preamble to 

legislation providing for the institution of measures to reduce the backlog in processing of 

immigration benefits by the now-defunct Immigration and Naturalization Service,” Arab, 2022 

WL 1184551, at *7, states that “[i]t is the sense of Congress that the processing of an 

immigration benefit application should be completed not later than 180 days after the initial 

filing of the application.” 8 U.S.C. § 1571(b). Similarly, section 6(b) of the EB-5 Reform and 

Integrity Act requires that new fees be set for the processing of EB-5 petitions at levels to 

recover the costs of adjudicating those petitions, based on “the goal of completing adjudications, 
13

on average, not later than . . . 180 days after receiving an application for approval of an 

investment in a new commercial enterprise.” EB-5 Reform and Integrity Act of 2021, H.R. 

2901, 117th Cong. § 6(b)(2) (2021). In plaintiffs’ view, these provisions “make plausible [that] 

Congress wanted [USCIS] to decide these petitions in 180 days.” Pls.’ Opp’n at 8. 

Plaintiffs concede, however, that “these timelines are not mandatory” and are in fact 

indicative only of “legislative aspiration.” Compl. ¶¶ 81, 86. Such “a sense of Congress 

resolution is not law.” Emerg. Coal. to Defend Educ. Travel v. U.S. Dep’t of Treasury, 545 F.3d 

4, 14 n.6 (D.C. Cir. 2008). Absent any specific legislative deadline, “courts typically turn to case 

law as a guide.” Sarlak, 2020 WL 3082018, at *6; see Skalka, 246 F. Supp. 3d at 153–54 

(collecting cases). While “there is ‘no per se rule as to how long is too long’ to wait for agency 

action,” In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004) (quoting In 

re Int’l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)), “[d]istrict courts have 

generally found that immigration delays in excess of five, six, seven years are unreasonable, 

while those between three to five years are often not unreasonable,” Mokkapati, 2022 WL 

2817840, at *6 (quoting Sarlak, 2020 WL 3082018, at *6) (alteration in original). Consistent 

with that general expectation, the data published by USCIS indicate that eighty percent of I-526 

petitions comparable to those submitted by plaintiffs were adjudicated within fifty-eight and a 

half months. See Case Processing Times (“Processing Times”), USCIS, available at

https://egov.uscis.gov/processing-times/home (accessed Nov. 28, 2022). Plaintiffs’ wait of 

between thirty-two and forty months for adjudication of their I-526 petitions is therefore not 

unreasonable as a matter of law, especially when USCIS was unable to act on plaintiffs’ petitions 

for nine of those months while the Regional Center Program lacked authorization. See Compl. 

¶ 39; see also Mokkapati, 2022 WL 2817840, at *6. 
14

Given the foregoing, the first and second TRAC factors weigh in defendants’ favor.

b. Factors 3 and 5

The third and fifth factors consider whether “human health and welfare are at stake” and 

the “nature and extent of the interests prejudiced by delay.” TRAC, 750 F.2d at 80. Here, again, 

both factors weigh in defendant’s favor.

As to these factors, plaintiffs allege only that “the agency’s delay impacts human health 

and welfare, not merely economic interests.” Compl. ¶ 90. In the absence of other factual 

assertions that would allow the drawing of such an inference, this remains merely a conclusory 

allegation unentitled to presumptive acceptance at the motion-to-dismiss stage. See Nurriddin, 

818 F.3d at 756; Kowal, 16 F.3d at 1276. Otherwise, plaintiffs’ complaint raises only concerns 

regarding financial harm and the delay in their ability to immigrate. See Compl. ¶¶ 91–93. In 

contrast to other cases in which the third and fifth TRAC factors have been found to favor 

plaintiffs, here plaintiffs do not allege, for example, that their delayed adjudication hinders their 

ability “to travel internationally to visit family abroad,” Mokkapati, 2022 WL 2817840 at *6, or 

prevents them from being with their spouses, Didban v. Pompeo, 435 F. Supp. 3d 168, 177 

(D.D.C. 2020). Although the delay in processing their I-526 petitions no doubt does impact 

plaintiffs’ ability to plan for their future with certainty and to protect their investments, these 

uncertainties are inherent in the immigration process and economic in nature, and thus do not 

support a finding that the third and fifth TRAC factors weigh in plaintiffs’ favor. See Telles, 

2022 WL 2713349, at *4 (finding inability to “move forward” with “life in the United States” 

and “expense, stress, and uncertainty” to fall far short of health and welfare harm); Desai, 2021 

WL 1110737, at *7 (recognizing that although plaintiff has an interest in timely adjudication of 

an I-526 petition, “so too do many others facing similar circumstances” (internal quotation marks 
15

omitted)); Fangfang Xu v. Cissna, 434 F. Supp. 3d 43, 54 (S.D.N.Y. 2020) (noting that the 

“inability to plan [plaintiff’s] future” is an inherent part of the process). The third and fifth 

factors therefore support dismissal.

c. Factor 4

The fourth TRAC factor addresses whether expediting a petition “would harm other 

agency activities of equal or greater priority.” Mokkapati, 2022 WL 2817840 (quoting Sarlak, 

2020 WL 3082018, at *6). This factor can be decisive “where ‘a judicial order putting the 

petitioner at the head of the queue would simply move all others back one space and produce no 

net gain,’” even as “all the other factors considered in TRAC favor[]” relief. Mashpee, 336 F.3d 

at 1100 (quoting In re Barr Lab’ys, Inc., 930 F.2d 72, 75 (D.C. Cir. 1991)) (cleaned up). Here, 

this factor conclusively favors defendant.

Plaintiffs argue that mandamus in this case “would have no effect on a USCIS activity of 

a higher or competing priority” because the agency has not established a real “line” that 

plaintiffs’ petitions stand in and has sufficient resources and funding to process many petitions 

concurrently. Compl. ¶ 95; Pls.’ Opp’n at 9–10. This argument fundamentally mischaracterizes 

USCIS’s adjudication process. As previously discussed, USCIS’s Visa Availability approach 

runs concurrently with their “first in first out” rule and thus does place petitioners, such as 

plaintiffs, in an adjudication queue: for all those petitioners from a country for which a visa is 

available or will soon be available, their petitions are reviewed in first in, first out order. See 

Questions & Answers at A1, A14. Consequently, granting plaintiffs’ requested relief would 

effectively “let [them] cut in line in front of others”—here, other South Africans and petitioners 

from other countries with available visas—“simply because [they] sued in this Court.” See 

Manzoor v. USCIS, No. 21-cv-2126 (CKK), 2022 WL 1316427, at *6 (D.D.C. May 3, 2022) (“It 
16

makes little sense to incentivize the creation of a queue of visa applicants within the docket of 

the federal judiciary to determine the order of the queue for visa applications.”). Despite 

plaintiffs’ understandable frustration with USCIS’s pace of adjudication, judicial relief cannot 

serve as a vehicle for plaintiffs to “jump the line, functionally solving their delay problem at the 

expense of other similarly situated applicants.” Am. Hosp. Assoc. v. Burwell, 812 F.3d 183, 192

(D.C. Cir. 2016). As a result, the fourth factor weighs strongly in defendant’s favor. 

d. Factor 6

The last TRAC factor provides that “the court need not find any impropriety lurking 

behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’” TRAC, 

750 F.2d at 80. Here, this factor is neutral. 

Plaintiffs allege that USCIS “has taken affirmative actions, unknown to the public, to 

purposefully delay adjudications of EB-5 petitions and applications contrary to law.” Compl. 

¶ 141. Specifically, they contend that that USCIS has “artificially inflated” EB-5 processing 

times to create a preemptive defense to potential lawsuits and Congressional inquiries. Id. ¶ 143. 

Additionally, plaintiffs assert that USCIS “slowed down the adjudications in” plaintiffs’ cases by 

engaging in political favoritism when selecting EB-5 projects for expedited processing. Id.

¶¶ 148, 157–58. Despite plaintiffs’ claim that “relevant and probative evidence” of artificial 

inflation exists, no such evidence is described or cited in the Complaint. Id. ¶ 143. Likewise, the 

Complaint’s assertion of political favoritism is not given any factual enhancement or citations to 

any sources, let alone reliable sources, and thus appears to be a speculative observation. See id.

¶¶ 148, 157–58. 

Plaintiffs’ allegations on these points lack “factual content that allows the court to draw 

the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 
17

at 678. As TRAC directs, however, the lack of plausible allegations of impropriety does not 

weigh against plaintiffs, and therefore “does not alter the Court’s analysis.” Thakker, 2021 WL 

1092269, at *8; Palakuru, 521 F. Supp. 3d at 53 (considering the sixth TRAC factor “neutral” 

even though the plaintiff alleged that the government had engaged in “purposeful delay” and 

“artificially inflate[d] Form I-526 processing times”).

***

Considering the six TRAC factors in their totality, plaintiffs have not stated a claim under 

the APA for unreasonable delay. While the delay plaintiffs have undergone awaiting 

adjudication of their I-526 petitions is unfortunate, nearly a year of that delay is attributable not 

to defendant, but to Congress’s delay in reauthorizing the Regional Center Program. See 

Mokkapati, 2022 WL 2817840, at *7. Moreover, plaintiffs’ position is no different than many 

other similarly situated individuals who have also waited years for the adjudication of their 

petitions, and USCIS, too, “face[s its] own challenges in determining how best to deploy scarce 

resources during an unprecedented global pandemic and while [it] work[s] to reimplement the 

Regional Center Program under the recently enacted EB-5 Reform and Integrity Act of 2022.” 

Id. 

Taken together, the TRAC factors at play here—USCIS’s “rule of reason” governing its 

adjudicatory process, the lack of statutory processing deadlines, the absence of any justification 

for expediting plaintiffs’ petitions ahead of those of similarly situated individuals, and the 

absence of allegations of harm to health or welfare—weigh heavily in defendant’s favor and do 

not evidence a plausible unreasonable delay claim.
18

IV. CONCLUSION

For the foregoing reasons, defendant’s motion to dismiss is granted. An order consistent 

with this Memorandum Opinion will be entered contemporaneously.

Date: December 2, 2022

__________________________

BERYL A. HOWELL

Chief Judge