Saharia v. United States Citizenship and Immigration Services

Background

Rohan Saharia, identified in the opinion as a citizen of India who resides in Tarrytown, New York, applied for the EB-5 immigrant-investor program. On November 12, 2019, he filed an Immigrant Petition by Alien Investor, Form I-526, with United States Citizenship and Immigration Services (USCIS). His application was based on a $500,000 investment in Atlantic American Fortune Fund III, LP, a new commercial enterprise administered by Smith South Atlantic Center, LLC, through the EB-5 Regional Center Program.

Saharia sued USCIS under the Administrative Procedure Act (APA), alleging that USCIS had unreasonably delayed adjudicating his Form I-526 petition. He sought a declaration that the delay was unreasonable and an order requiring USCIS to decide the petition. The complaint alleged that the delay harmed Saharia and his family by leaving them in uncertainty, restricting his employment options, potentially threatening their jobs and immigration status, and possibly forcing them to return to India.

USCIS moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. USCIS initially also argued that the case was moot because the EB-5 Regional Center Program had expired, but withdrew that argument after Congress restored authority for the program through the Consolidated Appropriations Act of 2022. The court therefore did not consider the mootness argument.

Legal framework

The APA authorizes courts to require an agency to act when it has unlawfully withheld or unreasonably delayed agency action. To assess unreasonable delay, courts apply the six factors identified in Telecommunications Research & Action Center v. Federal Communications Commission, commonly called the TRAC factors:

Because this analysis is fact-sensitive, the court evaluated the complaint’s allegations as true and drew reasonable inferences in Saharia’s favor, as required at the motion-to-dismiss stage.

Court’s analysis

First factor—rule of reason. USCIS said its visa-availability approach supplied a rational basis for deciding which Form I-526 petitions to process first. Under that approach, USCIS prioritizes petitions for applicants from countries where visas are available or soon will be available, considers whether the underlying project has been reviewed, and generally uses a first-filed, first-processed approach when appropriate. Saharia argued that USCIS’s stated procedures were inconsistent and that later-filed petitions had been approved before his. The court nevertheless concluded that USCIS’s process was governed by a rule of reason, so this factor favored USCIS.

Second factor—congressional timetable. Saharia relied on 8 U.S.C. § 1571(b), which states that Congress’s sense is that an immigrant-benefit application should generally be completed within 180 days after filing. USCIS argued that this provision was aspirational and did not create a binding deadline. The court agreed that the provision was nonbinding but concluded that it still indicated Congress’s goal of processing visa petitions within six months. Because Saharia had waited more than two years, this factor favored Saharia.

Third and fifth factors—health, welfare, and interests harmed by delay. The court found that Saharia plausibly alleged harm beyond merely being required to wait. He alleged limits on his ability to change jobs, accept new responsibilities, or start a company without risking his visa status. He also alleged that the delay, combined with the end of his H-1B term, could leave him, his wife, and his child with no choice but to return to India, while creating a risk of job loss. Accepting these allegations as true, the court found that both factors favored Saharia.

Fourth factor—effect of expediting other agency activities. USCIS argued that requiring it to decide Saharia’s petition would divert resources and move his petition ahead of other similarly situated applicants. Saharia argued that USCIS did not process petitions through a genuine queue and that deciding his petition would not interfere with higher priorities. The court concluded that Saharia had not shown why he should receive preferential treatment over other similarly situated applicants. It found that granting his requested relief would move him ahead of those applicants, so this factor favored USCIS.

Sixth factor—agency impropriety. Saharia alleged that USCIS had taken affirmative steps to delay Form I-526 adjudications, assigned staff to other matters, and expedited petitions involving some new commercial enterprises but not others. USCIS argued that these allegations did not support a reasonable inference of bad faith. The court found that the complaint lacked enough factual content to support an inference of bad faith or impropriety. It nevertheless treated this factor as neutral rather than weighing it against Saharia, explaining that a finding of impropriety was not required to conclude that agency action was unreasonably delayed.

Disposition

The court determined that three TRAC factors favored Saharia, two favored USCIS, and one was neutral. Balancing the factors at the pleading stage, it concluded that Saharia had stated a plausible claim for unreasonable delay. The court therefore denied USCIS’s motion to dismiss. This ruling allowed the claim to proceed; it did not finally decide whether USCIS’s delay was unreasonable.

The court directed USCIS to file an answer by September 2, 2022, and directed the parties to confer and jointly file a case-management plan and scheduling order by September 23, 2022. It also stated that, after approving the scheduling order, it would refer general pretrial matters to Magistrate Judge Judith C. McCarthy.