Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 1 of 22
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`DELAWARE VALLEY REGIONAL
`CENTER, LLC, et al.,
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`Plaintiffs,
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`Case No. 1:23-cv-119 (TNM)
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`U.S. DEPARTMENT OF HOMELAND
`SECURITY, et al.,
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`v.
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`Defendants.
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`MEMORANDUM OPINION
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`Several Chinese nationals invested in a U.S. center funding a transportation project.
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`They did so for a shot at lawful permanent residency through the “investor visa” program. After
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`they invested, Congress changed the law governing those visas. The investors now claim that
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`they qualify for set-asides in the new law that would allow them to get visas faster. But the
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`Government disagrees. So the Chinese investors, the entity benefitting from their investment,
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`and the regional center sued the Department of Homeland Security, U.S. Citizenship and
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`Immigration Services (“USCIS”), and USCIS’s director (collectively, the “Department”) under
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`the Administrative Procedure Act. They contend that a statement on USCIS’s website violates
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`the new law’s terms and is arbitrary or capricious. The Department moves to dismiss. The
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`Court will grant that motion because what Plaintiffs challenge is not final agency action under
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`the APA. Even if it were, Plaintiffs fail to state a claim that it is contrary to law or arbitrary and
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`capricious.
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`1
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 2 of 22
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`I.
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`A.
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`The United States provides “investor visas” to immigrants who help create jobs. See 8
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`U.S.C. § 1153(b)(5). Foreign investors can get those visas in a few different ways. One is to
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`contribute to a USCIS-designated “regional center” that creates jobs. 8 U.S.C. § 1153(b)(5)(E).
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`Congress established the regional center program as a five-year pilot. See Departments
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`of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriations Act of
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`1992, Pub. L. No. 102-395, § 610(a) (Oct. 6, 1992) (previously codified at 8 U.S.C. § 1153 note).
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`It set aside 300 visas a year for foreign investors who meet certain criteria. See id. After its
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`initial sunset, Congress periodically reauthorized the program until 2021. See Da Costa v.
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`Immigr. Inv. Program Off., No. 22-cv-1576, 2022 WL 17173186, at *2 (D.D.C. Nov. 16, 2022)
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`(summarizing this history). But in June 2021, the program lapsed for nine months. See id.
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`Then, in March 2022, Congress revamped the regional center program. See EB-5 Reform
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`and Integrity Act of 2022 (“Reform Act” or “Act”), Pub. L. 117-103, 136 Stat. 1070 (2022)
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`(codified at 8 U.S.C. § 1153(b)(5)). Apparently, the original program was rife with fraud and
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`raised national security concerns. See, e.g., Mirror Lake Village, LLC v. Wolf, 971 F.3d 373, 378
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`(D.C. Cir. 2020) (Henderson, J., concurring) (noting these problems).1 So Congress reformed
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`some parts and reauthorized the regional center program through 2027. See 8 U.S.C.
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`§ 1153(b)(5)(E).
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`Several of the Reform Act’s changes matter here. First, the Act reserves visas for three
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`types of foreign investors: twenty percent for investors in rural areas, ten percent for investors in
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`1 See also News Releases, Grassley, Leahy Introduce New EB-5 Investor Visa Integrity
`Reforms (Mar. 18, 2021), https://perma.cc/WB34-F743.
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`2
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 3 of 22
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`high unemployment areas, and two percent for investors in infrastructure projects. See Pub. L.
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`117-103, § 102(a)(2), 136 Stat. 1070 (2022). While these categories are not new, the reserved
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`percentages are.
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`Second, the Act raised the investment amounts required to qualify for these categories.
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`The minimum investment in a targeted employment area or infrastructure project—previously
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`$500,000—is now $800,000. See id. § 102(a)(3)(B), 136 Stat. 1070, 1072. In other words, the
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`Reform Act set aside more visas for investors in these categories, but it also raised the stakes for
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`them to qualify.
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`Third, the Act sets out new rules for approving business plans. Each application must
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`include a “comprehensive business plan for a specific investment project,” plus “credible
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`economic analysis regarding estimated job creation.” Id. § 103(b)(1), 136 Stat. 1070, 1079. But
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`Congress recognized that USCIS had approved some business plans under the old regime. So it
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`explained that “an approval before” the Reform Act’s enactment “shall be binding for the
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`purposes of the adjudication of subsequent petitions . . . by immigrants investing in the same
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`offering described[.]” Id. § 103(b)(1), 136 Stat. 1070, 1080. Thus, even if USCIS had approved
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`a business plan long before the Act’s enactment, immigrants could still properly invest in it and
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`petition for a visa. In other words, the Act did not nullify prior business plan approvals or
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`suggest that they must be reauthorized under the Act’s new terms.2
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`B.
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`After making a qualifying investment, a foreign national may petition USCIS for
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`classification as an immigrant investor using an I-526 petition. See 8 C.F.R. § 204.6. Such
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`petitions must include fees and evidence that an investor has put “the required amount of capital
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`2 The Reform Act includes several exceptions to this rule, but none are relevant.
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`3
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 4 of 22
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`at risk for the purpose of generating a return.” Id. § 204.6(a), (j). A properly filed investor visa
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`petition is a preliminary step to becoming a lawful permanent resident. See Palakuru v. Renaud,
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`521 F. Supp. 3d 46, 48 (D.D.C. 2021).
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`But obtaining approval of one’s investor visa petition is only half the battle. There must
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`also be a visa available for the type of immigrant applying. Often, the odds are slim. Few
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`employment-based visas are available each year, see 8 U.S.C. § 1151(d), and the same is true for
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`investor visas, see id. § 1153(b)(5)(A). Complicating matters further, each country cannot claim
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`more than seven percent of the available visas, regardless of demand. See id. § 1152(a)(2). In
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`sum, the number of investor visas is limited, and even if one is available, an immigrant may be
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`out of luck if too many of his countrymen have already obtained visas.
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`When demand exceeds supply for investor visas or for a country, applicants are put on a
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`waiting list. See id. § 1153(e)(3). Each investor in the queue is assigned a “priority date”—
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`typically the day he filed his petition. 22 C.F.R. § 42.54. To help applicants understand whether
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`a visa may be available for those who filed when they did, the State Department publishes a chart
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`each month listing generic cut-off dates for categories of petitions. See, e.g., Visa Bulletin for
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`May 2023, Dep’t of State, https://perma.cc/HNP4-9TAS (“Visa Bulletin Chart”). The May 2023
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`chart3 reads:
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`CHINA
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`Employment-based
`5th Unreserved
`(including C5, T5, I5, R5) 08SEP15
`5th Set Aside: Rural (20%) C
`5th Set Aside: High
`Unemployment (10%)
`5th Set Aside:
`Infrastructure (2%)
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`C
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`C
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`INDIA
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`MEXICO
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`PHILIPPINES
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`01JUN18
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`C
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`C
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`C
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`C
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`C
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`C
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`C
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`C
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`C
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`C
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`C
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`3 The Court edited this chart to remove irrelevant columns and rows.
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`4
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 5 of 22
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`The last three rows of the chart correspond to the Reform Act’s new categories for rural,
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`high unemployment, and infrastructure investors—visas are “reserved” for these investors. As
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`the May 2023 chart indicates, visas remain available (designated by a “C,” meaning current)
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`under all three categories. The “5th Unreserved” category corresponds to all other investors.
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`And it has cut-off dates for Chinese and Indian investors, indicating that investor visas have run
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`out for those countries, at least for now. See 8 U.S.C. § 1153(b)(5)(B)(i)(II) (reserved visas not
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`used within two fiscal years will be made available to those in the unreserved category).
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` An investor may access this chart to see whether a visa may be available to him. First,
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`the investor must figure out whether he is in the reserved or unreserved category. Second, he
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`must compare his priority date with the one listed in the chart. If his priority date falls before the
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`cut-off date in the applicable box, visas remain available for immigrants like him. But if his
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`priority date falls after the cut-off date, no more visas are available. If there is a “C” in the
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`applicable box, visas remain available regardless of his priority date.
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`Recall that the original regional center program lapsed for about nine months while
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`Congress reworked it. See supra Part I.A. During this time, visa processing was placed on hold.
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`See USCIS, EB-5 Reform & Integrity Act of 2022 Listening Session at 4, https://perma.cc/G29S-
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`QMPP. After the Reform Act passed, USCIS resumed processing. But it informed investors that
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`it would process pre-Act petitions based on the prior law and regulations. See EB-5 What’s New,
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`Alerts, USCIS, https://perma.cc/ST77-N7B6; see also Eligibility Requirements, USCIS Policy
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`Manual, USCIS, Vol. 6, Part G, Ch. 2, https://perma.cc/7BWV-837U.
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`Thus, investor visa petitions for infrastructure filed before March 2022 need not meet the
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`heightened capital requirements (now $800,000). Nor may those petitions qualify for the two
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`percent of visas now reserved under the Reform Act. Indeed, all petitions filed before the
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 6 of 22
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`Reform Act’s enactment are lumped into the “unreserved” category in the Visa Bulletin Chart.
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`This matters because no visas are available for Chinese nationals in the unreserved category who
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`invested after September 2015. But visas are available for Chinese nationals if they can qualify
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`for one of the Reform Act’s set-asides regardless of when they filed.
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`C.
`The crux of this case is that the three investor Plaintiffs want to be considered in the
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`Reform Act’s reserved infrastructure category, rather than in the unreserved category. This is
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`because they are all Chinese nationals who invested $500,000 in infrastructure before the Reform
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`Act passed but after the 2015 cut-off date for investors in the unreserved category. See Compl.
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`¶¶ 18–20, ECF No. 1 (filing dates are May 2017, December 2016, and August 2017); see also
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`Pls.’ Opp’n at 32, ECF No. 19. Thus, they only currently have a shot at a visa if they are in the
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`reserved infrastructure category. See, e.g., Visa Bulletin Chart (listing the current cut-off date
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`for unreserved Chinese investors as September 2015). And the other Plaintiffs—the regional
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`center and transportation authority benefitting from the investments—claim that they suffer
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`reputational harm and potential monetary loss if the investors do not receive visas. See Compl.
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`¶¶ 12, 79–80.
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`Plaintiffs contend that a statement on USCIS’s website destroys their ability to qualify for
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`reserved infrastructure visas. The sentence appears on a Questions & Answers page:
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`How can I request that USCIS determine whether a specific capital investment project
`meets the definition of “infrastructure project”?
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`USCIS will determine if the investment is in a qualified infrastructure project when
`adjudicating the regional center’s project application.
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`See EB-5 Questions and Answers: EB-5 Reform and Integrity Act of 2022, USCIS, (Apr. 2022),
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`https://perma.cc/FY8V-B8QK (emphasis added) (Questions & Answers).
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`Plaintiffs argue that the single sentence answer is a policy that contradicts the Reform
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`Act’s terms and is arbitrary or capricious. See, e.g., Compl. ¶¶ 62–67, 92, 95, 97.4 Their
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`argument as to why is convoluted. Essentially, Plaintiffs read the phrase “when adjudicating” to
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`mean that USCIS is precluding already-approved business plans from qualifying as infrastructure
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`under the Reform Act. See, e.g., id. ¶¶ 59, 61, 64. And that contradicts the Reform Act’s terms
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`because it defines “infrastructure project” as a “capital investment project in a filed or approved
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`business plan[.]” 8 U.S.C. § 1152(b)(5)(D)(iv) (emphasis added).5 In other words, Plaintiffs
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`claim that under the definition of “infrastructure project,” USCIS must decide again whether
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`plans it approved pre-Reform Act qualify as “infrastructure” under the Act’s new terms. See
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`Pls.’ Opp’n at 9, 15. If previously approved plans could qualify, the investor Plaintiffs could be
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`eligible for the Act’s new reserved visas.
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`USCIS incorporated the Answer into its Manual, explaining that it determines whether a
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`project meets the definition of an infrastructure project “during adjudication of” a business plan.
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`See Ex. B at 15. More, USCIS explains throughout the Manual that the Reform Act’s terms
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`apply only to petitions filed on or after its enactment date. See, e.g., id. at 13–15 (explaining the
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`standards for pre-Act and post-Act petitions). In other words, the Reform Act applies only
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`prospectively—to business plans and petitions filed after its enactment. And it does not
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`contemplate any reassessment of plans approved pre-Act.
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`The Department argues that Plaintiffs’ claims must be dismissed because the Answer is
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`not final agency action reviewable under the APA. See Defs.’ Mot. to Dismiss (MTD), ECF No.
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`4 As explained below, the Court is skeptical that this website text is a policy. Thus, it uses the
`term “Answer” to describe it.
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` Plaintiffs conveniently lop off the second half of the Answer, which imports the definition of
`infrastructure from the Reform Act.
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`7
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 8 of 22
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`17. Alternatively, it contends that Plaintiffs fail to state a claim under the APA that the Answer
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`is contrary to law or arbitrary and capricious. See id. That motion is now ripe.6
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`II.
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`Under Rule 12(b)(1), this Court presumes that a claim “lies outside [its] limited
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`jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). The
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`plaintiff bears the burden of overcoming that presumption by a preponderance of the evidence.
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`See, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). Because subject matter
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`jurisdiction implicates this Court’s power to hear a claim, the Court gives the allegations “closer
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`scrutiny” than would be required for a 12(b)(6) motion for failure to state a claim. Nepal v.
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`Dep’t of State, 602 F. Supp. 3d 115, 123 (D.D.C. 2022).
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`To defeat a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is
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`plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). The plaintiff
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`must plead “factual content that allows the court to draw the reasonable inference that the
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`defendant is liable for the misconduct alleged.” Id. While the complaint need not contain
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`detailed factual allegations, it must provide more than a “formulaic recitation of the elements of a
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`cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court may
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`consider “any documents either attached to or incorporated in the complaint, and matters of
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`which [courts] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d
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`621, 624 (D.C. Cir. 1997).
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`6 Plaintiffs request oral argument on the pending motions. Because the Court finds the parties’
`submissions sufficient to decide the issues, it declines this request. See LCvR 7(f).
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 9 of 22
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`III.
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`The Department argues that both of Plaintiffs’ claims fail because the Answer is not final
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`agency action. Alternatively, it urges that Plaintiffs fail to state an APA claim that the Answer is
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`contrary to law or arbitrary and capricious.
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`A.
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`Under the APA, agency action is limited to a “rule, order, license, sanction, relief, or the
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`equivalent or denial thereof, or failure to act.” 5 U.S.C. § 551(13); see also Norton v. S. Utah
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`Wilderness All., 542 U.S. 55, 62 (2004). For a Court to have subject matter jurisdiction over
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`claims about agency action, that action must also be “final.” 5 U.S.C. § 704; Cal. Cmtys. Against
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`Toxics v. EPA, 934 F.3d 627, 631 (D.C. Cir. 2019).
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`Agency action is final if it (1) concludes a decision-making process and (2) determines
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`“rights and obligations” or imposes “legal consequences.” Bennett v. Spear, 520 U.S. 154, 177–
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`78 (1997). Each of these requirements “must be satisfied independently[.]” Soundboard Ass’n
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`v. FTC, 888 F.3d 1261, 1267 (D.C. Cir. 2018). “[A]n agency merely express[ing] its view of
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`what the law requires of a party,” is typically not final agency action under the APA. Indep.
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`Equip. Dealers Ass’n v. EPA, 372 F.3d 420, 427 (D.C. Cir. 2004) (Roberts, J.).
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`1.
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`First, finality. The D.C. Circuit recently clarified that “courts should look first to the
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`matrix of statutes and regulations governing [a] specific action” to assess whether it is final. Cal.
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`Cmtys. Against Toxics, 934 F.3d at 641. In other words, situating the agency action in context
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`helps inform whether it is final. See id. And the Circuit explained that the finality analysis is
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`“separate and distinct from the test for whether an agency action is a legislative [or
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`interpretative] rule.” Id. The Department largely collapses these two inquiries in its motion to
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 10 of 22
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`dismiss. See, e.g., MTD at 12–16. Following Circuit precedent, the Court analyzes the finality
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`issue separately. Recall that to be final, agency action must be the consummation of a decision-
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`making process and carry legal consequences or create rights and obligations.
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`There is no evidence that the Answer marks the consummation of USCIS’s decision-
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`making policy in the context of the investor visa statute. Recall that the phrase Plaintiffs isolate
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`appears in a list of “Questions and Answers” USCIS posted after the Reform Act passed. See
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`supra Part I.C. These questions includes others such as “How can an entity become a regional
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`center?” and “How can I request that USCIS designate an area as a high unemployment area?”
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`See id. The answers explain which forms to file and often closely track the Reform Act’s
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`language and definitions. See id. In other words, the website generally helps interested parties
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`understand the Act’s terms and processes.
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`Now consider what Plaintiffs call the “Policy.” While they provide the question and first
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`sentence, they leave out the second sentence:
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`How can I request that USCIS determine whether a specific capital investment project
`meets the definition of “infrastructure project”?
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`USCIS will determine if the investment is in a qualified infrastructure project when
`adjudicating the regional center’s project application.
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`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.
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`See id.
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`Read in the context of the Reform Act, the whole answer informs the public that USCIS
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`determines whether the investment is in a qualified “infrastructure project” (first sentence),
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`which has a particular statutory meaning (second sentence). The second paragraph lifts the
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 11 of 22
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`definition of “infrastructure project” from the Reform Act. See 8 U.S.C. § 1152(b)(5)(D)(iv).
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`And USCIS echoes these statements in its Manual, explaining that it “determines whether a
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`project meets the definition of [an] infrastructure project during adjudication of the Form I-
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`956”—a form created after the Reform Act passed. Ex. B at 15; Gov’t Reply at 8, ECF No. 21.
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`The Answer and the Manual cannot reasonably be interpreted as USCIS’s “last word” on
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`anything. Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 478 (2001). Typically, the agency
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`must “arrive[] at a definitive position on the issue” for it to mark the end of a decision-making
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`process. Darby v. Cisneros, 509 U.S. 137, 144 (1993) (cleaned up). Reading both parts of
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`USCIS’s answer reveals that the agency tells interested parties how to begin seeking
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`infrastructure classification under the Reform Act and provides the relevant statutory definition.
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`USCIS merely explains a preliminary step it takes in adjudicating a petition.
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`The Manual serves a similar informational function. It helps investors understand the
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`statutory standards the agency applies to pre-Reform Act petitions versus post-Act ones. See Ex.
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`B. “This is not the stuff of final agency decisionmaking.” Mass. Coal. for Immigr. Reform v.
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`DHS, 621 F. Supp. 3d 84, 95 (D.D.C. 2022) (finding that a DHS Manual failed Bennett’s first
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`prong because it merely helped an agency decide whether environmental analysis was required
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`by law).
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`Even if the Answer met Bennett’s first prong, it is not final agency action because it
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`creates no new obligations and has no legal consequences. See Bennett, 520 U.S. at 156.
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`The D.C. Circuit has explained that analysis under Bennett’s second prong is
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`“pragmatic,” and must consider “how agency pronouncements actually affect regulated entities.”
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`Sierra Club v. EPA, 955 F.3d 56, 63 (D.C. Cir. 2020). Factors to consider include whether the
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 12 of 22
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`agency statements had any actual legal effect, the agency’s characterization of them, and whether
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`the agency has applied them as if they were binding. See id.
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`The Answer has no legal effect. On this point, Independent Equipment Dealers
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`Association v. EPA is instructive. There, the D.C. Circuit held that an agency letter neither
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`imposed obligations nor had any legal consequences because it “merely restated in an abstract
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`setting” the agency’s interpretation of regulations. See 372 F.3d at 427. The Circuit reasoned
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`that the letter “neither announced a new interpretation of the regulations nor effected a change in
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`the regulations themselves.” Id. Rather, it was “purely informational in nature . . . [c]ompelling
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`no one to do anything[.]” Id. In sum, “an agency merely express[ing] its view of what the law
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`requires of a party,” without more, does not qualify as final agency action. Id. Similarly, in
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`Catawaba County v. EPA, the Circuit held that an agency memo did not impose binding legal
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`duties on anyone because it clarified regulated parties’ existing duties under the statute and
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`explained the processes they should follow. See 571 F.3d 20, 34 (D.C. Cir. 2009).
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`So too here. As explained, the Answer notes that USCIS determines whether a capital
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`project meets the Reform Act’s definitions of infrastructure while adjudicating the regional
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`center’s application. See Questions & Answers. And it imports the definition of “infrastructure
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`project” from the Act. See id. This “purely informational” language restates the law, rather than
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`reinterprets it. Indep. Equip. Dealers Ass’n, 372 F.3d at 427. USCIS is neither compelling
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`investors or regional centers to do anything nor altering their legal rights. Instead, it informs
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`them of the process it follows and the legal standards that Congress enacted. Cf. id.; see also
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`Catawaba County, 571 F.3d at 34.
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`The Answer lacks other indicia of legal effect, too. There is no evidence that USCIS
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`treats its language as an additional, binding legal duty. To be sure, Plaintiffs point to general
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`Case 1:23-cv-00119-TNM Document 25 Filed 06/07/23 Page 13 of 22
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`statements in the Manual that it is “controlling” and “is to be followed by all USCIS officers.”
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`See Pls.’ Opp’n at 16, 19; see also Compl. ¶¶ 65–66. But this language does not mean it creates
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`binding legal duties separate from, or on top of, those in the Act itself. Indeed, telling USCIS
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`officers that they have to follow the Answer is effectively the same as telling them to follow the
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`Reform Act. Viewed within the context of the Reform Act, the Answer is “all bark and no bite”
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`(if it barks at all) because it has “no independent legal authority.” Cal. Cmtys. Against Toxics,
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`934 F.3d at 637.
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`Plaintiffs raise a few counterarguments, but none persuade. For Bennett’s first prong,
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`they argue that the Answer is attributable to USCIS because it is posted on its website. See Pls.’
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`Opp’n at 16. And they contend that the Manual contains the “official policies of USCIS” and
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`must be followed. See id. at 16–17. But neither fact is evidence that the Answer marks the
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`consummation of any agency decision-making process. This is not a case in which the agency
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`puts forth its “official position about how the Act and its regulations apply to the facts” of a
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`particular center or investor’s petition. Bellion Spirits, LLC v. United States, 7 F.4th 1201, 1208
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`(D.C. Cir. 2021). Nor is it a case in which the agency is stating what it believes is “the only
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`permissible interpretation of [a] statute” governing how regulated parties must act. Cal. Cmtys.
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`Against Toxics, 934 F.3d at 636. Rather, the agency is advising regulated parties generally about
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`what the Act says, using the language of the Act itself, and about USCIS’s processing of
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`petitions.
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`For Bennett’s second prong, Plaintiffs seize on the Circuit’s language that any analysis
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`must be “pragmatic.” See Pls.’ Opp’n at 18. They then implore the Court to see that the agency
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`is engaging in senseless policy. See, e.g., id. (“The Policy renders an entire category of investors
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`ineligible for an entire category of visas.). They argue that USCIS—through the Answer—is
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`refusing to reassess previously approved business plans under the Act’s new terms. See id. at 19.
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`According to Plaintiffs, this is foolish because “Investor Plaintiffs could receive visas in the
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`reserved visa line—a line that presently has zero investors waiting in it.” See id. at 18.
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`As the Court explains below, it is the Reform Act itself that compels this result, not the
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`Answer. And the Circuit has noted that “[i]n characterizing the [legal consequences] inquiry as
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`pragmatic, we do not . . . encourag[e] some sort of common-sense approach. Quite the
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`opposite.” Cal. Cmtys. Against Toxics, 934 F.3d at 637. Rather, the word “pragmatic” refers to
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`a straightforward application of Bennett’s second prong “based on the concrete consequences an
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`agency action has or does not have as a result of the specific statutes and regulations that govern
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`it.” Id. Here, as explained, the Answer lacks concrete legal consequences when viewed in the
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`Act’s context. It merely repeats what the Reform Act already requires. So if the Answer did not
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`exist, the agency would process petitions the same way.
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`Plaintiffs also suggest that agency action has legal consequences if it “presently and
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`directly limits or defeats a party’s ability to realize an advantageous arrangement.” Pls.’ Opp’n
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`at 18 (cleaned up). In the primary case they cite, the Circuit found that an agency had
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`“effectively foreclose[d]” an airline from operating in a way that foreclosed business just “as
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`would an express prohibition.” Spirit Airlines, Inc. v. DOT, 997 F.3d 1247, 1253 (D.C. Cir.
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`2021). The Circuit held that such an action affected the airline’s legal rights because it
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`essentially hampered its ability to compete at a particular airport. See id. at 1253–54.
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`Plaintiffs stretch the caselaw by suggesting that they meet Bennett’s second prong on this
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`basis. For starters, the Circuit has instructed that courts must look to the “matrix of statutes and
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`regulations governing [the] specific action”—here, the investor visa scheme. Cal. Cmtys.
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`Against Toxics, 934 F.3d at 641. So Plaintiffs’ reliance on Spirit Airlines is of limited utility.
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`More, here the investor Plaintiffs chose to put their money “at risk” for a shot at a visa.
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`See 8 C.F.R. § 204.6(a). That investors are judged on the law in place when they filed does not
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`mean that USCIS is altering their legal rights through the Answer as the agency did in Spirit
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`Airlines. Cf. 997 F.3d at 1253. Indeed, recall that the Reform Act allows investors to petition
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`based on infrastructure projects approved before the Act passed. See supra Part I.A. Congress
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`explained that “an approval before” the Reform Act’s enactment “shall be binding for the
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`purposes of the adjudication of subsequent petitions . . . by immigrants investing in the same
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`offering described[.]” Pub. L. 117-103, § 103(b)(1), 136 Stat. 1070, 1080 (2022). This language
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`preserves the legal rights of investors by allowing them to tie petitions to pre-Act regional
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`centers.
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`In sum, Plaintiffs seize on the Answer, label it a “Policy,” and argue that the agency is
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`refusing to consider whether already-approved business plans qualify as “infrastructure” under
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`the Act. But labeling something a policy does not make it final agency action. Cf. Mass. Coal.
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`for Immigr. Reform, 621 F. Supp. 3d at 97. And as we will see below, Plaintiffs’ real gripe is
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`with Congress, which did not make the Reform Act retroactive. Because the Answer fails both
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`parts of Bennett’s test for final agency action, this Court cannot review it under the APA.
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`B.
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` Even if the Answer and statements in the Manual were final agency action, Plaintiffs fail
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`to state a claim that they are contrary to law or arbitrary and capricious.
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`1.
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`Faced with a contrary to law claim, this Court “first consider[s] whether Congress has
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`directly spoken to the precise question at issue by looking to the statutory text.” Baystate
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`Franklin Med. Ctr. v. Azar, 950 F.3d 84, 92 (D.C. Cir. 2020) (cleaned up). And the Court gives
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`the Reforms Act’s terms their “ordinary, contemporary, common meaning, as informed by the
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`context of the overall statutory scheme.” Sault Ste. Marie Tribe of Chippewa Indians v.
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`Haaland, 25 F.4th 12, 21 (D.C. Cir. 2022).
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`Plaintiffs begin by walking through the text of the Reform Act. Recall that it reserves
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`certain percentages of visas for investors in infrastructure projects. See 8 U.S.C.
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`§ 1153(b)(5)(B)(i)(I). And it instructs the Secretary to “determine whether a specific capital
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`investment project meets the definition of ‘infrastructure project.’” Id. § 1153(b)(5)(B)(iii)(I).
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`The Act defines “infrastructure project” as “projects in both filed or approved” business plans.
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`Id. § 1153(b)(5)(D)(iv) (emphasis added). Plaintiffs argue that “approved” business plans
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`include those approved before the Reform Act passed—such as the project they invested in. See
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`Pls.’ Opp’n at 24. And because USCIS is only prospectively classifying projects as
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`infrastructure under the Reform Act, it ignores “approved.” See id. at 24–25; see also id. at 31
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`(“Congress imposed an affirmative duty on Defendants to make infrastructure project
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`determinations” for pre-Act plans through the word “approved”).
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`Plaintiffs’ textual evidence is thin. They primarily rely on the definition of “approved”
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`and two canons of construction. See Pls.’ Opp’n at 24–25. Plaintiffs argue that approved means
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`“to give formal sanction to” or “confirm authoritatively,” and note that it is in the past tense. See
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`id. They also cite the conjunctive-disjunctive canon and the canon against superfluity to argue
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`that “filed” and “approved” must mean different things. See id. at 25. In short, “approved” must
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`refer to pre-Reform Act business plans. See id. And because USCIS is not reopening those
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`plans and reassessing them under the Act’s new terms, it is ignoring “approved.” See id.
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`But that is not the best way to read the Answer or the Act. Recall that the sentence
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`following the portion Plainti