Kalinowsky v. Mayorkas

Background

Mark W. Kalinowsky, a Canadian national residing in San Jose, California, filed a Form I-526 petition on November 19, 2019, through the EB-5 Regional Center immigrant-investor program. He invested $500,000 in a real-estate development project in Oakland, California, and sought visas for himself, his wife, and their two children.

Kalinowsky alleged that U.S. Citizenship and Immigration Services (USCIS) had unreasonably delayed deciding his petition. He brought claims under the Administrative Procedure Act, which allows courts in some circumstances to require an agency to take a legally required action after unreasonable delay, and under the Mandamus Act, which allows a court to compel a federal officer or agency to perform a duty owed to the plaintiff. The parties filed cross-motions for summary judgment, meaning each asked the court to rule because there was no genuine dispute about facts requiring a trial.

The court’s analysis

The court evaluated the delay under six factors from the Telecommunications Research & Action Center framework, commonly called the TRAC factors. The parties agreed that USCIS had a clear and mandatory duty to adjudicate Kalinowsky’s petition; the dispute was whether the delay was unreasonable.

The court concluded that the first factor favored USCIS because the agency’s visa-availability process was a rational and orderly way to process Form I-526 petitions. The court also held that USCIS’s decision to stop processing Regional Center petitions during the lapse in the program’s statutory authorization was not inconsistent with a reasonable processing system, particularly because applicants retained their place in the workflow.

The second factor favored Kalinowsky. Congress had not set a mandatory deadline for deciding Form I-526 petitions, but the court viewed congressional statements about processing times as indicating that adjudication should occur in months rather than years. Kalinowsky’s petition had been pending for more than 45 months, or 36 months even excluding the period when USCIS could not act because of the lapse in authorization.

The third and fifth factors favored USCIS. The court found that Kalinowsky’s concerns about uncertainty regarding his immigration status, long-term planning, and investment risks were not sufficiently compelling. It characterized those risks as inherent in the Form I-526 process and noted that Kalinowsky already resided in the United States and had obtained work and travel authorization while the petition was pending.

The fourth factor also favored USCIS. The court reasoned that ordering USCIS to decide Kalinowsky’s petition individually would move him ahead of other similarly situated petitioners without producing a net gain, because it would simply move other applicants back in the processing queue. The court also considered the agency’s discretion to prioritize its work and allocate resources.

The sixth factor did not change the analysis. The court found no evidence that USCIS had acted improperly or in bad faith in processing Form I-526 petitions generally or Kalinowsky’s petition specifically.

Disposition

The court held that USCIS’s delay was not unreasonable as a matter of law and that Kalinowsky was not entitled to relief under either the Administrative Procedure Act or the Mandamus Act. Judge Virginia K. Demarchi denied Kalinowsky’s motion for summary judgment and granted USCIS’s cross-motion for summary judgment.