United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 5, 2024 Decided July 9, 2024

No. 23-5175

DELAWARE VALLEY REGIONAL CENTER, LLC, ET AL.,

APPELLANTS

v.

UNITED STATES DEPARTMENT OF HOMELAND SECURITY, ET 

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:23-cv-00119)

Kathleen R. Hartnett argued the cause for appellants. With 

her on the briefs were Patrick J. Hayden and Adam M. Katz.

Aaron S. Goldsmith, Senior Litigation Counsel, U.S. 

Department of Justice, argued the cause for appellees. With 

him on the brief were Brian M. Boynton, Principal Deputy 

Assistant Attorney General, and Glenn M. Girdharry, Assistant 

Director.

Before: PILLARD, WALKER and PAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge PAN. 
2

PAN, Circuit Judge: Three Chinese individuals 

(collectively, the “Investor Appellants”) invested in a project 

to improve Philadelphia’s transit infrastructure as part of an 

effort to obtain EB-5 visas — i.e., visas for foreign investors 

who create jobs in the United States. See 8 U.S.C. 

§ 1153(b)(5). United States Citizenship and Immigration 

Services (“USCIS”) found the Investor Appellants eligible for 

EB-5 visas and approved their visa applications. But the EB-5 

visa program is oversubscribed, so the Investor Appellants are 

in a “line” waiting for visas to become available. 

In 2022, Congress changed the eligibility requirements for 

EB-5 visas in the EB-5 Reform and Integrity Act of 2022 

(“RIA”). See Pub. L. 117-103, § 102, 136 Stat. 49, 1070 (2022) 

(codified at 8 U.S.C. § 1153(b)(5)). The RIA created a new 

category of “reserved” EB-5 visas for foreigners who invest in 

“infrastructure projects” that meet certain requirements. See 8 

U.S.C. § 1153(b)(5)(B)(i)(I)(cc). After the passage of the RIA, 

USCIS stated that it would determine whether a visa 

applicant’s investment is in a qualified “infrastructure project” 

at the time that USCIS adjudicates the “project application.” 

That created uncertainty for the Investor Appellants. They 

believed that they should be deemed eligible for the new 

“reserved” visas based on their past investments in 

infrastructure; and they interpreted USCIS’s statements about 

prospectively adjudicating “project applications” as precluding 

consideration of investments in infrastructure projects that 

already had been approved by USCIS under the prior 

regulatory regime. 

The Investor Appellants and their project sponsors (the 

“Project Appellants”) sued the Department of Homeland 

Security and USCIS, arguing that previous investments in 

already-approved infrastructure-focused projects should be 

eligible for reserved EB-5 visas under the RIA. The district 
3

court dismissed the complaint, ruling that the government had 

taken no final agency action under the RIA that may be 

challenged at this time. Because we agree that the arguments 

made by Appellants are premature, we affirm. 

I.

A.

As part of the Immigration Act of 1990, Congress 

established the EB-5 immigrant-investor visa program. See

Pub. L. No. 101-649, § 121, 104 Stat. 4978, 4987 (1990) 

(codified at 8 U.S.C. § 1153(b)(5)). The EB-5 program is so 

named because it is the “fifth employment-based visa category 

available to foreign nationals” under the Immigration and 

Nationality Act. Mirror Lake Vill., LLC v. Wolf, 971 F.3d 373, 

374 (D.C. Cir. 2020) (first citing 8 U.S.C. § 1101 et seq.; then 

citing id. § 1153(b)(5)). EB-5 visas are allotted to immigrants 

“who have invested capital in a new commercial enterprise that 

will benefit the United States economy and create full-time 

employment for ten citizens or non-citizens with work 

authorization.” Id. (internal quotation marks and alterations 

omitted) (quoting 8 U.S.C. § 1153(b)(5)(A)). As explained in 

more detail below, an immigrant can satisfy the EB-5 

employment-creation requirement by creating jobs indirectly 

through USCIS’s Regional Center Program. See Immigrant 

Investor Pilot Program, Interim Rule, 58 Fed. Reg. 44606, 

44607 (Aug. 24, 1993) (noting that “immigrants participating 

in the [Regional Center] program may credit jobs they create 

indirectly”). 

The EB-5 visa process is administered by USCIS and the 

State Department. USCIS processes and approves the visa 

petitions — i.e., it assesses whether petitioners qualify for the 

requested visa. See 8 C.F.R. §§ 100.1, 103.2, 254.2(a). The 

State Department determines how many visas are available and 
4

allocates visas to approved applicants. See 22 C.F.R. §§ 42.41, 

42.51. Moreover, the State Department limits the number of 

visas that may be issued to nationals from each foreign country. 

See 8 U.S.C. § 1152(a)(2) (Visas available to applicants from 

any individual country will “not exceed 7 percent” of the total

number of family-sponsored and employment-based visas 

made available in that fiscal year.). Once an immigrant 

investor obtains an EB-5 visa, they may apply for a two-year 

conditional lawful-permanent-resident status. Id. § 1186b(a); 

8 C.F.R. §§ 216.1, 245.2. At the end of the conditional period, 

the investor may file a petition to become a permanent resident 

in the United States. See id. § 1186b(c), (d); 8 C.F.R. § 216.6.

Because the EB-5 visa program is oversubscribed, an 

immigrant investor whose EB-5 petition is approved by USCIS 

must wait in a virtual “line” until a visa becomes available. See 

Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 336 (D.C. 

Cir. 2023). The EB-5 process is especially lengthy for 

investors from China — due to the high number of Chinese 

applicants, many of them wait years for an available visa. For 

example, in April 2024, visas were finally becoming available 

for approved EB-5 petitioners from China who had filed their 

petitions in December 2015. USCIS, When to File Your 

Adjustment of Status Application for Family-Sponsored or 

Employment-Based Preference Visas: April 2024, 

https://perma.cc/YE45-U5AW (last visited July 3, 2024) 

(“April 2024 EB-5 Visa Bulletin Charts”). 

In 1992, Congress created a pilot program for obtaining 

EB-5 visas that is now called the Regional Center Program. 

See Departments of Commerce, Justice, and State, the 

Judiciary, and Related Agencies Appropriations Act, 1993, 

Pub. L. No. 102-395, § 610(a), 106 Stat. 1828, 1874 (1992). 

The program allows immigrant investors to satisfy the EB-5 

employment-creation requirement by investing through 
5

regional centers, which direct the funds to job-creation 

projects. Regional centers are USCIS-approved business 

entities that work in specified geographic areas to facilitate the 

pooling of EB-5 investments. 8 C.F.R. § 204.6(m)(3)(i) (A 

regional center must submit a proposal which “describes how 

[it] focuses on a geographical region of the United States, and 

how it will promote economic growth.”); Doe v. McAleenan, 

929 F.3d 478, 480 (7th Cir. 2019) (“Regional centers are 

essentially clearinghouses for eligible investment 

opportunities.”). As of 2023, there were 640 approved regional 

centers in the United States. USCIS, Approved EB-5 

Immigrant Investor Regional Centers, https://perma.cc/PUM2-

TWHL (last visited July 3, 2024). And as of 2021, over ninety 

percent of EB-5 applicants invested in the United States 

through a regional center. IIUSA, IIUSA Data Analysis: 

Impact of the Lapse of the EB-5 Regional Center Program on 

Investors, Investments and Job Creation, 

https://perma.cc/9LNS-QNZS (Aug. 20, 2021). 

Before the RIA was enacted, an EB-5 applicant 

participating in the Regional Center Program could invest 

either $1 million in the United States generally or $500,000 in 

a “targeted employment area” to qualify for an EB-5 visa. See

8 U.S.C. § 1153(b)(5)(C) (2006); see also Zhang v. USCIS, 978 

F.3d 1314, 1316 (D.C. Cir. 2020). A “targeted employment 

area” was defined as a rural area or an area experiencing high 

unemployment. See 8 U.S.C. § 1153(b)(5)(B)(ii) (2006). 

Either type of investment could be made through a regional 

center. See Regional Center Designation, Reporting, 

Amendments, and Termination, USCIS Policy Manual (2021), 

Vol. 6, Part G, Ch. 3, https://perma.cc/MZA2-XCEP. 

Prior to the RIA, USCIS allowed visa applicants to submit 

optional business plans that described their prospective 

proposals for job creation. See 8 C.F.R. § 204.6(j)(4)(i) (noting 
6

that evidence of job creation can be shown through “a 

comprehensive business plan”). As part of the Regional Center 

Program, USCIS also allowed regional centers to submit 

business plans that outlined the job-creation potential of their 

sponsored investment projects. See USCIS, Policy 

Memorandum, EB-5 Adjudications Policy at 14 n.2, 23, 

https://perma.cc/U9PW-G5AE (May 30, 2013) (“Policy 

Memorandum”). If USCIS approved a regional center’s 

business plan, individual investors who petitioned for EB-5 

visas after investing in the project described in the business 

plan enjoyed a streamlined application process: They could 

append the approved business plan to their visa applications 

and receive “deference” from USCIS in its assessment of 

whether the petitioners satisfied the job-creation requirement. 

See id. at 21, 23; see also J.A. 43 (describing Delaware Valley

Regional Center’s application and business plan). This 

informal practice allowed USCIS to examine and approve a 

job-creation proposal just one time for each regional-center 

project, rather than repeating the analysis for each visa 

petitioner who invested in that project. See Policy 

Memorandum at 23 (“This policy of deference is an important 

part of ensuring predictability for EB-5 investors and 

commercial enterprises . . . , and also conserves scarce agency 

resources, which should not ordinarily be used to duplicate 

previous adjudicative efforts.”). 

In March 2022, President Biden signed into law the EB-5 

Reform and Integrity Act of 2022. The RIA retains the 

Regional Center Program and still enables EB-5 petitioners to 

“pool[] their investments” together through a regional center, 

but it imposes new restrictions and requirements on regional 

centers. See 8 U.S.C. § 1153(b)(5)(E)(i); see also, e.g., id.

§ 1153 (b)(5)(G) (requiring annual statements from regional 

centers), (b)(5)(H)(ii)(II) (prohibiting foreign government 

involvement in regional centers). 
7

As relevant here, the RIA created a new type of EB-5 visa 

— a “reserved visa” — for investors who make certain types 

of investments. 8 U.S.C. § 1153(b)(5)(B)(i)(I).1 The reserved 

visas are set aside from the general pool of EB-5 visas. In 

particular, the RIA provides that two percent of EB-5 visas will 

be “reserved” for “qualified immigrants who invest in 

infrastructure projects.” Id. § 1153(b)(5)(B)(i)(I)(cc). Because 

there currently is no backlog for reserved visas, investors who 

qualify for reserved visas effectively have priority over others 

who are in the regular line for EB-5 visas. For example, 

qualifying Chinese investors could receive reserved EB-5 visas

as soon as their visa applications are approved, even though

Chinese applicants in line for non-reserved EB-5 visas 

currently face a nine-year backlog. See April 2024 EB-5 Visa 

Bulletin Charts (noting that non-reserved EB-5 visas are 

currently available for Chinese investors with a priority date 

from December 2015, whereas there is no line for reserved 

infrastructure-project visas, which are “current”). 

The RIA provides a statutory definition of the type of 

“infrastructure project” that qualifies an investor for a reserved 

1 The “reserved visa” provision states:

Of the visas made available under this paragraph in 

each fiscal year—

(aa) 20 percent shall be reserved for qualified 

immigrants who invest in a rural area;

(bb) 10 percent shall be reserved for qualified 

immigrants who invest in an area designated by the 

Secretary of Homeland Security under clause (ii) 

as a high unemployment area; and

(cc) 2 percent shall be reserved for qualified 

immigrants who invest in infrastructure projects.

8 U.S.C. § 1153(b)(5)(B)(i)(I).
8

visa. 8 U.S.C. § 1153(b)(5)(D)(iv). A qualified “infrastructure 

project” must be presented to USCIS in the form of a “filed or 

approved business plan.” Id.; see also id. § 1153(b)(5)(F)(i)(I)

(requiring, as part of a regional-center application, “a 

comprehensive business plan for a specific capital investment 

project”). Furthermore, (1) the project must be administered 

by a governmental entity, (2) the governmental entity must 

contract with a regional center to receive capital investment 

under the Regional Center Program, and (3) the project must 

use the capital investments to maintain, improve, or construct 

a public works project. Id. § 1153(b)(5)(D)(iv).2 

In addition, the RIA raised the minimum qualifying 

investment amounts. Whereas the statute and accompanying 

regulations previously required an investment of $1,000,000 

for the general EB-5 program or $500,000 for targeted 

employment areas, see 8 U.S.C. § 1153(b)(5)(C) (2006); 8 

C.F.R. § 204.6(f) (2016), investor applicants now must invest 

$1,050,000 to qualify for EB-5 visas generally, or $800,000 in 

targeted employment areas or statutorily defined infrastructure 

2 Subparagraph (D)(iv) provides:

The term “infrastructure project” means a capital 

investment project in a filed or approved business 

plan, which is administered by a governmental 

entity (such as a Federal, State, or local agency or 

authority) that is the job-creating entity contracting 

with a regional center or new commercial enterprise 

to receive capital investment under the regional 

center program described in subparagraph (E) from 

alien investors or the new commercial enterprise as 

financing for maintaining, improving, or 

constructing a public works project.

8 U.S.C. § 1153(b)(5)(D)(iv).
9

projects, 8 U.S.C. § 1153(b)(5)(C). The RIA also provides for 

automatic inflation-based adjustments of these amounts every 

five years and requires the Secretary of Homeland Security to

publish the updated amounts in the Federal Register. See id.

§ 1153(b)(5)(C)(iii).

Under the post-RIA regulatory regime, regional centers 

must submit two separate forms, the latter of which requires a 

business plan. First, an “entity seeking regional center 

designation must apply for such designation” using Form I956. USCIS, EB-5 Questions and Answers, 

https://perma.cc/Z5SY-MQFB (Apr. 3, 2024). Second, after 

USCIS approves the regional center’s designation, the regional 

center must apply to USCIS for approval of each project that it 

intends to sponsor by filing a Form I-956F. Id. (explaining that 

Form I-956F must be filed “for each particular investment 

offering through a new commercial enterprise that the regional 

center intends to sponsor”); USCIS, Instructions for Form I956F, Application for Approval of an Investment in a 

Commercial Enterprise at 1, https://perma.cc/C9XK-A2WR 

(Apr. 1, 2024) (“Form I-956F Instructions”) (noting that Form 

I-956F must be submitted to “request approval of [the] 

project”). After a regional center has filed a Form I-956F, 

individual investors may file petitions to receive visas based on 

their investments in the project referenced in the Form I-956F. 

See USCIS, EB-5 Questions and Answers, 

https://perma.cc/Z5SY-MQFB (Apr. 3, 2024). 

B.

After the enactment of the RIA, USCIS explained in two 

forums — a Q&A and a policy manual — how it would 

administer EB-5 visas under the new statute. First, in April 

2022, USCIS posted on its website a set of “EB-5 Questions 

and Answers” (the “Q&A”) related to the RIA. One question 
10

and answer discussed the definition of an “infrastructure 

project” under the new law: 

[Q:] How can I request that USCIS determine 

whether a specific capital investment project 

meets the definition of “infrastructure project”?

[A:] USCIS will determine if the investment is 

in a qualified infrastructure project when 

adjudicating the regional center’s project 

application.

An infrastructure project is a capital investment 

project in a filed or approved business plan, 

which is administered by a governmental entity 

(such as a federal, state, or local agency or 

authority) that is the job-creating entity 

contracting with a regional center or new 

commercial enterprise to receive capital 

investment under the Regional Center Program 

from alien investors or the new commercial 

enterprise as financing for maintaining, 

improving, or constructing a public works 

project.

J.A. 112 (emphasis added). The posted answer largely quotes 

the definition of “infrastructure project” found in the RIA; but 

it also includes a statement that USCIS will determine whether 

a project is a qualified “infrastructure project” when it 

adjudicates the regional center’s “project application.” The 

term “project application” refers to the Form I-956F that a 

regional center must submit to USCIS to seek approval of an 

EB-5-eligible project. See Form I-956F Instructions at 1.
11

Thereafter, in October 2022, USCIS published an update 

to its Policy Manual.3 The relevant portion of the Policy 

Manual states:

For regional center-based petitions filed on or 

after May 14, 2022, investors may qualify for 

the reduced investment amount by investing in 

an infrastructure project. These projects are 

ones:

• That are administered by a 

governmental entity (such as a federal, 

state, or local agency or authority);

• Where the governmental entity, which 

serves as the job-creating entity, 

contracts with a regional center or new 

commercial enterprise to receive capital 

investment under the regional center 

program from investors or the new 

commercial enterprise; and

• That involve financing for maintaining, 

improving, or constructing a public 

works project.

USCIS determines whether a project meets the 

definition of infrastructure project during 

adjudication of the Form I-956F. A standalone 

3 The Policy Manual is USCIS’s “centralized online repository 

for USCIS’ immigration policies.” USCIS, Policy Manual, 

https://perma.cc/S52P-CUQR (last visited July 3, 2024). The Policy 

Manual “contains the official policies of USCIS” and “is to be 

followed by all USCIS officers in the performance of their duties.” 

Id. The Manual is available to the public on USCIS’s website. 
12

investor cannot establish eligibility through an 

infrastructure project.

J.A. 64 (emphasis added). The Policy Manual largely quotes 

the definition of “infrastructure project” under the statute; but 

it adds a statement that USCIS will determine whether a project 

constitutes an “infrastructure project” at the time that the 

agency adjudicates a project-approval application — i.e., the 

Form I-956F. 

C.

Appellants are business entities and individual investors 

who participate in the Regional Center Program. Delaware 

Valley Regional Center, LLC (“DVRC”) is a Philadelphiabased regional center that received USCIS approval in 2014 to 

“direct foreign investment into regionally significant 

development projects in the Delaware Valley metropolitan

area.” J.A. 13–14. DVRC has raised $623 million from 

foreign investors to loan to governmental entities in support of 

infrastructure initiatives. DVRC later received USCIS 

approval of a business plan for the Southeastern Pennsylvania 

Transportation Authority (“SEPTA”) Project. That project 

aimed to secure investments totaling $300 million for “[m]ass 

transit capital improvement” in the greater Philadelphia area. 

See id. at 45. DVRC raised $239.5 million from 479 investors 

for the SEPTA Project; approximately 90% of the investors are 

Chinese nationals. Appellant DVRC SEPTA II, LP is the 

limited partnership that owns the SEPTA Fund — the entity 

organized by DVRC “to receive investor funds and, in turn, 

provide those funds to SEPTA.” J.A. 12. 

Investor Appellants Wenjun Wang, Jialun Wang, and 

Cuijuan Liu are three Chinese nationals who invested in the 

SEPTA Project. Relying on those investments, they filed preRIA petitions for EB-5 visas, which USCIS approved in 2017 
13

and 2018. Investor Appellants satisfied the pre-RIA Regional 

Center Program’s requirements by each investing $500,000 in 

a targeted employment area. Each of the Investor Appellants 

has waited at least five years for an EB-5 visa since the 

approval of his or her petition. 

Appellants collectively contend that the Investor 

Appellants’ investments in the SEPTA Project qualify them for 

reserved EB-5 visas under the RIA. Appellants assert that the 

SEPTA Project meets all the statutory requirements to qualify

as an “infrastructure project” because (1) the SEPTA Project is 

an “investment project in a filed or approved business plan”; 

(2) the SEPTA Project is “administered by a governmental 

entity”; (3) SEPTA contracted with DVRC, a regional center, 

to receive capital investment under the Regional Center 

Program; and (4) the SEPTA Project provides “financing” for 

improvements and construction for SEPTA’s public transit 

system. J.A. 33 (emphasis omitted) (quoting 8 U.S.C. 

§ 1153(b)(5)(D)(iv)). In addition, Investor Appellants claim 

that their investments of $500,000 apiece in the SEPTA Project 

should be deemed sufficient to satisfy the RIA’s investment 

threshold.4 Thus, Appellants contend, the Investor Appellants 

4

Investor Appellants appear to fall short of the RIA’s 

requirement that those who seek infrastructure-project visas must 

invest at least $800,000 in a qualifying infrastructure project. See 8 

U.S.C. § 1153(b)(5)(C)(ii). Investor Appellants argue that they 

nonetheless qualify for two reasons. First, they claim that the 

monetary thresholds “attach to [visa-petition] approvals, not the 

available visas.” Appellant Br. 58. They therefore contend that, by 

investing $500,000 prior to the passage of the RIA, they each

received approval of their visa petitions, which is enough to qualify 

them to be considered for reserved infrastructure-project visas. See 

id. at 57 (arguing that “the [visa] petition grants noncitizens approval 

to stand in line for a visa”). Second, Investor Appellants assert that 
14

have met the requirements to receive reserved infrastructureproject visas. 

Appellants believe that USCIS will not approve reserved 

EB-5 visas for the Investor Appellants, despite their asserted 

eligibility for such visas. Appellants filed a complaint in the 

district court, arguing that USCIS’s statements about the RIA 

in the Q&A and the Policy Manual constitute a USCIS policy 

that is contrary to the RIA and arbitrary and capricious. They 

claim that the Q&A and the Policy Manual “adopt[] an 

unlawful policy” because USCIS has stated that it will make 

infrastructure-project determinations only when a business 

plan is filed. J.A. 11. Such a policy, according to Appellants, 

excludes previously approved business plans like theirs from 

ever being evaluated for infrastructure-project eligibility under 

the RIA, and thus deprives the Investor Appellants of any 

opportunity to secure reserved EB-5 visas. 

The district court granted the government’s motion to 

dismiss, concluding that “what Plaintiffs challenge is not final 

agency action under the [Administrative Procedure Act 

(“APA”)].” J.A. 88. The court held that both the Q&A and the 

Policy Manual failed the test for final agency action because 

neither “marks the consummation of USCIS’s decision-making 

policy in the context of the investor visa statute,” id. at 97, nor 

“ha[s] any actual legal effect,” id. at 99. Instead, the court 

concluded that the agency’s statements “merely repeat[] what 

the [RIA] already requires.” Id. at 101. Appellants filed a 

timely appeal. We have jurisdiction under 28 U.S.C. § 1291. 

the $500,000 and $800,000 investments are essentially “of identical 

size” because the increased threshold in the RIA is simply meant to 

account for inflation. See id. at 58. We do not reach the merits of 

whether Investor Appellants qualify for infrastructure-project visas 

under the RIA and therefore do not address these arguments. 
15

II.

The district court dismissed Appellants’ complaint for lack 

of subject-matter jurisdiction, reasoning that Appellants had 

not identified any final agency action under the APA. But the 

question of finality is a threshold question for suit under the 

APA: It does not alter federal-court jurisdiction. See Trudeau 

v. Fed. Trade Comm’n, 456 F.3d 178, 185 (D.C. Cir. 2006) 

(explaining that “the APA neither confers nor restricts 

jurisdiction”). Instead, the finality inquiry operates as a 

gateway to whether Appellants can state a claim under the 

APA. Id. (“If there was no final agency action, there is no 

doubt that appellant would lack a cause of action under the 

APA.” (cleaned up)). Thus, although the district court erred in 

dismissing the complaint for lack of jurisdiction, if the 

complaint fails to state a claim on which relief can be granted 

we can affirm the judgment of dismissal under Federal Rule of 

Civil Procedure 12(b)(6). Id. at 187. We review de novo

whether Appellants stated a claim. 

III.

After the enactment of the RIA, USCIS took steps to 

inform the public about how the agency would administer the 

process of reviewing petitions for reserved EB-5 visas. In the 

Q&A and the Policy Manual, the agency stated that it would 

determine whether an investment project is an EB-5-eligible 

“infrastructure project” upon the filing of an application. 

Appellants, however, believe that the agency did more. 

According to Appellants, USCIS’s actions have foreclosed the 

possibility that business plans approved before the passage of 

the RIA — like the business plan for the SEPTA Project —

could ever be considered for reserved-visa eligibility. 

Appellants argue that the agency’s refusal to consider pre-RIA-
16

approved business plans is contrary to the RIA. See 8 U.S.C. 

§ 1153(b)(5)(D)(iv). 

In our view, Appellants misunderstand the agency 

statements at issue. The Q&A and the Policy Manual merely 

make explicit that those who seek to demonstrate their 

eligibility for infrastructure-project visas must do so by filing 

an application. Accordingly, the statements in the Q&A and 

the Policy Manual do not constitute final agency action. 

Moreover, as government counsel confirmed at oral argument, 

Investor Appellants are not precluded from applying for 

reserved EB-5 visas.

A.

Under the APA, courts may review only “final agency 

action.” 5 U.S.C. § 704. To be “final,” an agency action must 

meet two conditions: It must (1) “mark the consummation of 

the agency’s decisionmaking process”; and (2) determine 

“rights or obligations” or impose “legal consequences.” 

Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (cleaned up). 

An agency action does not impose binding duties — and 

therefore causes no “legal consequences” — when it “merely 

clarifies . . . existing duties” under a statute. Catawba Cnty. v. 

EPA, 571 F.3d 20, 34 (D.C. Cir. 2009). 

The RIA created a new category of reserved infrastructureproject visas and charged USCIS with assessing who qualifies 

for those visas. That assessment requires the agency to 

determine whether a visa applicant has invested in a qualified 

“infrastructure project” under the statute. See 8 U.S.C. 

§ 1153(b)(5)(B)(iii)(I) (“The Secretary of Homeland Security 

shall determine whether a specific capital investment project 

meets the definition of ‘infrastructure project’ set forth [under 

the statute].”). An immigrant investor who seeks a reserved 

infrastructure-project visa must work with a regional center to 
17

apply in two steps: First, the regional center applies for its 

proposed project to receive qualified “infrastructure project” 

status by filing a Form I-956F; and second, the individual 

immigrant applies for a reserved visa, based on an investment 

in the qualified “infrastructure project.” 

In the challenged statements, USCIS explained how it 

would administer the first step of the process — i.e., the 

designation of an investment project as a qualified 

“infrastructure project.” In the Q&A that was posted on its 

website, USCIS stated that it “will determine if the investment 

is in a qualified infrastructure project when adjudicating the 

regional center’s project application.” J.A. 112. Later, in the 

Policy Manual, USCIS explained that it will “determine[] 

whether a project meets the definition of infrastructure project 

during adjudication of the Form I-956F,” i.e., the projectapproval application. J.A. 64. Both statements made explicit 

an existing requirement: that parties who wish to qualify for 

reserved EB-5 visas must demonstrate their eligibility to the 

agency. The existing duty to demonstrate such eligibility for a 

requested benefit extends to regional centers that seek to 

sponsor EB-5 applicants’ “infrastructure project[s],” as well as 

individual immigrants who seek reserved visas. 

The statute mandates that the agency “shall determine” if 

a capital-investment project is a qualified “infrastructure 

project,” 8 U.S.C. § 1153(b)(5)(B)(iii)(I), and such a 

determination cannot be made without information from the 

sponsoring regional center, which presumptively must be

provided in an application. Under governing regulations, 

USCIS routinely assesses qualifications for immigration 

benefits at the time of application. See 8 C.F.R. § 103.2(b) 

(requiring applicant to “establish that he or she is eligible for 

the requested benefit at the time of filing the benefit request”). 

The USCIS statements in the Q&A and the Policy Manual thus 
18

do not impose any new “concrete consequences” on Appellants 

when considered within the context of “the specific statute[] 

and regulations that govern” this case. Cal. Cmtys. Against 

Toxics v. EPA, 934 F.3d 627, 637 (D.C. Cir. 2019). Consistent 

with what is plainly contemplated by the RIA, USCIS stated 

only that it requires regional centers and visa applicants to 

submit forms that demonstrate their eligibility for a new 

benefit. Thus, the statements in the Q&A and the Policy

Manual merely “clarif[y] existing duties” and do not constitute 

“final agency action.” Catawba Cnty., 571 F.3d at 34. 

Appellants argue that USCIS has issued an interpretation 

of the RIA that is contrary to law. Specifically, they infer from 

USCIS’s statements in the Q&A and the Policy Manual that the 

agency has categorically excluded pre-RIA-approved business 

plans from consideration for infrastructure-project status. See 

J.A. 12–13 (asserting that “the Policy means that Defendants 

will never make determinations regarding already-‘approved’ 

projects and thus never will determine formally that the SEPTA 

Project is an ‘infrastructure project’”). That decision, 

according to Appellants, is contrary to the text of the RIA, 

which requires the Secretary of Homeland Security to 

determine whether projects in “filed or approved business 

plans” are “infrastructure project[s].” See 8 U.S.C. 

§ 1153(b)(5)(D)(iv). Appellants contend that their SEPTA 

Project business plan was previously “approved” when they 

applied for regular EB-5 visas, and that the prior approval of 

their business plan makes them eligible for reserved visas. 

Appellants have not established that USCIS has adopted 

that interpretation of the RIA. Nothing in the challenged

statements precludes a previously approved EB-5 petitioner 

from filing a new petition for a reserved visa, based on an 

infrastructure investment that complied with pre-RIA 

requirements. DVRC can file a Form I-956F to seek status as 
19

a qualified “infrastructure project” for the SEPTA Project, and 

that application can cross-reference the previously approved 

business plan. See Response Br. 63 (“[T]he [Q&A] merely 

states that USCIS will determine whether an investment is a 

qualified infrastructure [project] ‘when adjudicating’ the Form 

I-956F application, the form that a regional center submits to 

USCIS to make this determination.”). At oral argument, 

USCIS confirmed that this path is open to DVRC, and that “the 

project application might be approved.” Oral Arg. Tr. at 41:2-

3.5 Moreover, upon approval of DVRC’s application for 

designation of the SEPTA Project as a qualified “infrastructure 

project,” we see nothing that prevents the individual Investor 

Appellants from applying for reserved EB-5 visas based on 

their investments in the SEPTA Project — even if those 

investments also were previously approved. 

In sum, we understand USCIS’s statements in the Q&A 

and the Policy Manual merely to articulate the normal process 

for seeking an immigration benefit: Parties who seek to 

comply with the requirements for reserved visas under the RIA 

must establish their eligibility in applications filed with USCIS. 

See 8 C.F.R. § 103.2(b). This means that a regional center must 

apply for its proposed project to receive qualified 

“infrastructure project” status by filing a Form I-956F; and 

5 See Oral Arg. Tr. at 39:15–19 (“[T]here is no reason the 

appellant in this case, DVRC, the regional center, cannot file a Form 

I-956F today. We’re not saying that they are barred from doing so 

simply because they were designated under prior law. They can file 

it today.”); see also id. at 39:21–40:3 (explaining that a regional 

center with a previously-approved business plan could check the 

“infrastructure project” box on page 6 of the Form I-956F and attach 

the already-approved “business plan” thereto); see also USCIS, 

Form I-956F, Application for Approval of an Investment in a 

Commercial Enterprise at 6, https://perma.cc/6C8X-73MW (last 

visited July 3, 2024). 
20

individual immigrants must then apply for a reserved visa, 

based on their investment in that qualified “infrastructure 

project.” If either type of application is rejected, the 

unsuccessful applicant is entitled to appeal the denial within 

USCIS’s internal procedures, and the agency record 

presumably will include the reasons for the denial. Thereafter, 

an unsuccessful applicant may seek judicial review of that final 

agency action in this court. See 8 U.S.C. § 1153(b)(5)(P)(i), 

(ii). Appellants must follow that well-established procedure, 

rather than anticipate that their applications will be rejected 

based on an unfavorable interpretation of the RIA. Appellants 

have not established that anything in USCIS’s policies prevents 

them from filing applications for infrastructure-project 

designation and reserved EB-5 visas, in reliance on the SEPTA 

Project and prior investments in that project. Appellants will 

have the opportunity to litigate the issues they seek to raise in 

this appeal if it turns out that the agency’s policy is, in fact, 

what they believe it to be. 

* * *

In the case before us, Appellants challenge statements 

made by USCIS in the Q&A posted on its website and in the 

Policy Manual that was amended after the RIA was enacted. 

But the statements do not carry the weight that Appellants 

assign to them — they do not announce the automatic denial of 

infrastructure-project eligibility for all pre-RIA-approved 

business plans. Because USCIS “tread[s] no new ground” in 

the challenged statements, Indep. Equip. Dealers Ass’n v. EPA, 

372 F.3d 420, 428 (D.C. Cir. 2004), the agency took no final 

agency action. We therefore affirm the district court’s 

dismissal of the claims for lack of finality under the APA. 

So ordered.