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Phase number 23-5175, Delaware Valley Regional Center, LLC et al, at balance, versus United States Department of Homeland Security, et al.

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Ms.

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Hartnett for the balance, Mr. Goldsmith for the appellees.

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Ms.

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Hartnett, good morning.

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You may proceed when you're ready.

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Morning.

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If that's too high for you, there is a button where you can lower it a little bit.

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And it also, the more your voice hits the,

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The microphone, the better it is for the recording.

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I will do my best.

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Good morning, your honors, and may it please the court.

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Kathleen Hartnett on behalf of Appellants.

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I've reserved two minutes for rebuttal.

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Your honors, despite the complexity of the immigration system generally and the EB-5 process in particular, this case is straightforward, both on final agency action and on the merits.

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The USCIS policy at issue in this case is conclusive, unqualified, and presently having serious legal consequences, including for appellants here.

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They cannot seek or obtain an infrastructure project determination regarding their investment project because of the policy.

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Can I ask you a question about that?

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Yes.

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As I was reading through these papers, the question in my mind was, why can't your clients reapply for these reserved slots based on the infrastructure project that they invested in?

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Thank you, Your Honor.

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Because USCIS has made clear that their business plan for their project has already been adjudicated.

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And what USCIS has made clear first in the statements of policy at issue here, but then confirmed by its position in this case is that it believes that only infrastructure projects that are initiated applied for after the enactment of the RIA would be subject to such a determination.

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See, I was confused by that just because what you're challenging is actually you're reading a lot into this, what they said, you know, on their website and then in their manual, because all they said was,

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will adjudicate this when you apply.

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And to me, that doesn't mean that you can't reapply, not based on the words that you're challenging.

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And it just seemed to me that it would be a lot clearer if you applied, then they rejected it, and then we have a record to see why they did so, et cetera.

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But what's very odd to me about this case is that you are challenging

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Something very basic, you know, will adjudicate this when you apply and reading into it.

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Now we can never apply.

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And now, like you all these things that I just are not clear to me at all based on, you know, text.

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I understand your question.

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I do think this is and the court's familiar with some of USCIS's way of making policy and rules, including

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the Costa case, where the Q&A document is frequently where important.

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But it's not about where they did it.

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But the actual policy doesn't seem to necessarily imply what you think the consequences are.

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Your Honor, I understand that.

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Yeah, I didn't mean to say that.

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What I meant to say was that often, USAIs can speak in a little bit less clear or more oblique terms than desired.

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What the statement here means is that they will adjudicate this at the time of the application.

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And because our application has already been adjudicated, they will not adjudicate ours.

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And you should confirm that with the government, but that is our understanding.

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And thus, submitting a 956F would be futile.

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Just one follow-up on that.

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Can we just take their position in a brief to be their position too?

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It's just it's not sort of the administrative record.

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That's what I'm having trouble with.

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Well, they understood our complaint in this case to be what it is, that the policy, even though the words could have been more clear, is tantamount to saying,

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You must have your project initiated after the RIA to be able to have an infrastructure project determination.

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And so I agree with, I appreciate your point that the language is an oblique way of saying that.

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That is what the policy means.

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That's what the regulated community understands.

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And filling out and submitting a 956F, which I would also point out, they have not created a form to allow us to do this because they actually don't think we are able to do it.

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So I think there may be some confusion because you represent clients who are both the individual investors and also the project, is that right?

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Yes, Your Honor.

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The application that, at the time of adjudication of which this determination is made, is the application by the regional center project, the infrastructure project, not the application by the investor.

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Yes, Your Honor, mostly.

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So pre-RIA, there were two ways that you could try to get your business plan approved.

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You could attach it as, if you're an individual investor, you would attach the plan to your individual petition.

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Then in 2013, because that was cumbersome, you had all these people attaching plans to different petitions, USCIS issued a policy memorandum saying you can use, the regional center can do this at the exemplar level.

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So that's that term you see.

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An exemplar was essentially the post-RIA business plan.

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That allowed USCIS to make a determination based at the regional center level, and then all of the individual investors could point back to that plan.

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So the premise of, I took the premise, and she can speak to this herself, but I took the premise of Judge Pan's question to be that an investor could say, I want to be investing now in an infrastructure plan.

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And there wouldn't be a new determination as of that investor's application

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for the reserve visas, it would have to be that Delaware Valley is applying to say, we want to be a post-Act qualifying infrastructure center plan.

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That's how we would believe it would work, especially post-RIA, where the regional centers now must be the ones that file those.

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The new regime does not allow for the investors to do that as attachments.

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And can a regional center that was approved pre-act sort of step up its status under the act?

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Do you understand that to be clear or not clear?

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Sorry, did you say a regional center or a project?

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A project, I'm sorry.

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So we now know after the whole bearing litigation that a regional center at that level can step up.

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There is no place within the act.

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I mean there's no provision for that as we see it and nor is there been any process created by the USCIS to allow that.

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So essentially the projects that have been

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approved before the act, sort of stuck in the status of having been approved before the act.

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And again, we're doing our best here to understand what the regulators are telling us.

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From our perspective, we should be allowed to have the infrastructure project determination.

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There is no form for either an individual investor or for the regional center to actually obtain this additional finding.

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And I think we do now know for sure if there was ambiguity about it prior to the litigation, that

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the USCIS would deny that because they believe that the RIA only allows for infrastructure project determinations for projects after the act.

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And the district court and USCIS both say there's no final agency action here because the relevant legally binding effect is just directly from the statute, that the answer and the policy

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that you're challenging is simply a restatement of the statute.

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Yes, that's their position.

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It was not that we had another avenue, which again, I believe would be futile, but.

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But yes, their view was, because we're simply just challenging what Congress has told USCIS to do, that that's not a final agency action.

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And how can we tell whether your position, which is that the agency has added something significant, how can we tell whether that's the case?

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I mean, the district court didn't even seem to perceive anything about the statement on the website and in the policy to be

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to be in any, there's no daylight between that and the statute.

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And how are we supposed to determine which it is?

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Well, I mean, Your Honor, we respectfully submit that by law.

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So the district court sort of, I just didn't read the, it did not totally map the Q&A and the policy manual onto the statute itself.

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It is true that the second paragraph in the Q&A, which we did not highlight because it was simply the restatement of the statute, did not create a new policy.

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It replicated the definition of infrastructure project.

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If that is all that the USCIS had done, we probably wouldn't be here.

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But what they also did was they said that we will make adjudications about infrastructure projects at the time of adjudication of the application for the project.

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And so that was the, albeit I agree Judge Pan, a little bit cryptic sentence that they first put in the Q&A under a statement called policy.

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They then added to the policy manual.

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And it was that additional sentence that actually created

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which has been a very consequential and important policy, meaning that zero infrastructure project visas have since issued since March of 2022.

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And just to be clear, the language that you're referring to is filed or approved.

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So the language that created the final agency action is the point that would be adjudicated at the time of, so the policy that we're challenging is the policy whereby DHS will only adjudicate, but make a determination about an infrastructure project at the time it adjudicates

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whether the business plan may go forward.

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So it's this, excuse me, it's this sentence.

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USCIS will determine if the investment is in a qualified infrastructure project when adjudicated in the regional center's project application.

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That's the language that you object to, right?

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Correct, Your Honor.

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And if we think that the statute requires that, I know you would disagree, but if we think that the statute

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requires that, then it would seem to me that you not only lose the merits, right?

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Lose on the merits, if the statute, if you're objecting to a sentence that the statute requires, you would lose on the merits, correct?

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Yes.

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Okay.

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And then you would also probably lose on final agency action because it's not final agency action for an agency to accurately summarize a statute.

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I disagree there, Your Honor, just because it is not simply replicating what the statutes, it's not the words of the statute.

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I think if the agency made a choice about something that the statute does not expressly speak to, which is the time at which the infrastructure project adjudication is made.

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I think that into my hypothetical.

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No, I understand, but I do think there's a real risk.

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I think the statute requires

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the sentence that you object to, whether I'm not saying it requires that it be on the website, but I'm saying if I think that the statute requires USCIS to do what this sentence says USCIS will do, then it's not final agency action for USCIS to make a statement that says we will do what the statute requires us to do.

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And it requires us to do this thing.

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I actually, I do disagree with that for just an example, even a final rule.

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Oftentimes, an agency believes that the action it's taking is compelled by law.

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That will be their position in the litigation.

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They'll put it into the whole preamble of the notice in the federal register.

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They'll argue in their briefs.

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And so I think the Gomez decision, I appreciate it's a district court decision, but we cited it in our briefs, talks about in a way where the agency has decided to take an action here

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not to accept a form to make a process unavailable to us based on its view that that actually is what the law requires.

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That's almost more of a clearly final agency action because if you look at the two prongs of the inquiry, you have a conclusive position and you have a legal consequence.

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And so I actually do believe that those are two separate inquiries and here we're collapsed into one.

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It's a separate question of whether there was enough formality here.

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Was it, you know, did it meet the requirements of final agency action?

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So I would say that all the time agencies believe that their positions are

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compelled by law, but yet that doesn't prevent someone from challenging it as long as it hits the two prongs.

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Let me ask if I can.

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The final agency action inquiry, I think, is not jurisdictional.

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Do you agree with that?

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That's under this court's view.

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And it's a pragmatic one.

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And so I mean, here, this is just the practical consequence, which I think the court's opinion in Dacosta and many other of your cases in which you're encountering a complicated process is to look at what does this agency do in practice.

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And here we have an agency that frequently makes important statements on its website.

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This is a consequential one, as I pointed out.

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So far, 400 reserve visas have gone unused because they do not apply it.

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Congress did not expect that.

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200 more will be collapsing.

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I understand that.

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So it seems to me that what you are challenging, which is just we're going to evaluate whether you qualify for these new set-aside visas when you apply for them, the time that we adjudicate your application, that seems to be the default way statutes work.

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Like, this is a statute that says,

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Here's a new benefit.

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We're going to reserve 2% of the EB5 business for infrastructure projects.

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And to get that benefit, you have to show your business plan was approved, and you have to invest $800,000.

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And it seems like you have to apply in order to show that you qualify.

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That's implicit in the statute.

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That's the default way statutes work.

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They say, if you want this benefit, you need to meet these qualifications.

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you have to somehow show that you meet these qualifications.

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So it just seems to me that what the agency put on the website is the default rule, the implicit way that should work.

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And in my view, it shouldn't preclude someone like your clients from applying because I know that there is a lot of dispute about infrastructure project, but you also have to show you've invested $800,000.

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So that would require your clients to apply again

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in order to get these particular set-aside visas.

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I know that they've already been qualified for the non-reserved visas.

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But to get these, it seems like you would have to apply anyway.

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I don't see why this language is wrong.

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OK, this is more moving just to the contrary to law piece.

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There's just a really important point there, which is that the petitions have been granted, as you noted.

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So our individual investor clients had invested the amount that was required at the time several years ago.

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That's now been inflation adjusted in the new statute.

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But they got, nothing's been taken away from them because they're still in line for unreserved visa.

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This is a question about what did Congress intend for the new benefit to go to?

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Correct.

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And so your clients, they did what they were supposed to do.

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They qualified in the pre-RIA program, and they got what they asked for, which was a place in line in the unreserved visa pool.

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And now there's a new benefit, which it's not clear that they

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qualify for.

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So why shouldn't they have to apply to get this new benefit?

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Well, to begin with, the government hasn't interpreted the statute to allow that possibility.

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I guess that would have been a different case if they had.

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I understand that.

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But I just don't see the interpretation in this text of what we're talking about here.

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And I don't know that we can just rely on what they say in their briefs.

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It seems to me you would need to apply.

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They would need to reject it.

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There would need to be a record as to why.

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And then we can evaluate the position.

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But I just feel like we're

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This whole case is based on stuff that's not in a record.

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Well, to begin with, I believe they had taken the position there is not an administrative record available for this case.

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But if you applied and they rejected it, then there would be.

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Maybe there'd be a different one, but I really respectfully submit this is an immediate, I really want to answer your question because I think the point is that, and this is a different, this is 1154.

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It's in our addendum.

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People that already had petitions granted are, it's like being at the DMV.

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You're in the waiting room.

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You've gotten through most of the lines, and now you're going to actually wait to get the visa.

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And there's one line that has the A numbers, and there's another line with the B numbers, and another line with the C numbers.

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Nothing has been prejudged about our clients as to which visa they're going to get.

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They're just waiting to get what is available to them.

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That's the State Department.

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But the problem here- It's an EB-5 visa pool, though.

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Correct.

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So they're sitting there in the waiting room with everyone else.

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They did not apply to and buy into a non-reserved line.

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Because if the unreserved, I'm sorry, but the unreserved line was all that there was when they applied.

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So they got exactly what they applied for.

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This is a wrinkle that's not fully fleshed out.

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They actually were in an employment area, TEA, which is another category that's no longer the subject of reserved visas.

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But the reason why they have $500,000 rather than the higher investment amount is because they already had been actually investing in both an infrastructure and a

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high unemployment area project.

[00:17:04] Speaker 05:
Wait, so I'm sorry.

[00:17:05] Speaker 05:
So did they have a reserved line that had been taken away from them by the RIA?

[00:17:10] Speaker 06:
Not by the RIA.

[00:17:10] Speaker 06:
Well, possibly yes, but that's not the problem because that wasn't going to get them the visas as quickly as this would.

[00:17:18] Speaker 04:
I know.

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Let me ask you a question that might help me.

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So it seems to me that when you're talking about your investor clients,

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The point of this program from the perspective of the United States is to use the value of a visa and permanent residency to incentivize investment in the United States.

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And so your position, it seems to me, decouples the qualifying for the investment and

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the eligibility for the visa and permanent residence and saying we've qualified to get a visa, whatever visas are available, we should equally be qualified for.

[00:18:09] Speaker 04:
And I think that there's a very basic congressional purpose that might

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that might be contrary to that, which is you've already invested.

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This is related to what Judge Pamela does.

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You've already invested, and you've gotten the offering that was then on offer, which wasn't as rich as the offering now, which is to get a priority date.

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And unfortunately, if you're from an oversubscribed country, that means you have a long wait.

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But bracket that for a minute.

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there's a separate issue with respect to so so arguably on the merits doesn't make sense to read the statute that somebody who's cleared step one that congress necessarily meant to give them eligibility for a reserve visa

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because they've already invested.

[00:19:01] Speaker 04:
But for your client that is a project, if they still need investment, why shouldn't they be able to step up and qualify as not just a project, but a project that is associated with eligibility for set-aside visas?

[00:19:23] Speaker 04:
And is that in this case?

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Thank you for the question.

[00:19:29] Speaker 06:
First of all, the project in this case is actually completed.

[00:19:31] Speaker 06:
The infrastructure.

[00:19:33] Speaker 01:
Completed.

[00:19:33] Speaker 06:
Yes.

[00:19:33] Speaker 06:
So all of the investors that are waiting for their visas have had to redeploy their capital to other situations, other investments, to keep it at risk to get their visa.

[00:19:42] Speaker 06:
And on the 500 to 800, I respectfully submit, I think that the district board just didn't.

[00:19:47] Speaker 06:
I hear that that could be a policy interest, that we are going to only incentivize people going forward, and thus you have to pay more, but you're going to get a better benefit.

[00:19:55] Speaker 06:
I respectfully submit that's not what the statute

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does and is not in the legislative history that isn't that's a that's an argument about what it could do.

[00:20:02] Speaker 06:
There's an equally strong argument that we think is correct, that this is it just starts the statute starts, but we're all within, you know, the five.

[00:20:11] Speaker 06:
First, they say there's going to be this many EB five visas a year.

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Second, they're going to go be dispersed in this percentages.

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That's those are current active requirements.

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Go spread them this way.

[00:20:22] Speaker 06:
And given the backlog that exists, if they were to read this to apply to already approved infrastructure projects as they should, there would be 400 additional visas that would have been out the door right away last year.

[00:20:34] Speaker 06:
So there is a policy interest in unclogging in rewarding the high value projects here.

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This was an actual real public infrastructure project that helped the people in the Philadelphia area, 6,000 jobs and

[00:20:46] Speaker 06:
The idea that Congress would have created a category of infrastructure project visas to have them go to waste.

[00:20:52] Speaker 04:
Well, they're not going to waste.

[00:20:53] Speaker 04:
I mean, it looks like it's slow getting going.

[00:20:55] Speaker 04:
But those ones that are unused, they roll over to the next year, right?

[00:20:58] Speaker 06:
For one year, then they go to the reserve pool.

[00:21:00] Speaker 04:
Then they go back to the reserve pool.

[00:21:02] Speaker 04:
So the people who are sitting on their priority date and waiting

[00:21:07] Speaker 04:
those will flow to them in keeping with the percentage, the country caps.

[00:21:14] Speaker 04:
I mean, the real bugaboo from your client's perspective is the country caps, right?

[00:21:20] Speaker 06:
Yeah, I just think that somehow for some reason, and I understand there's an instinct here to think about what could the reason be or whatever, kind of what's motivating it here, but we don't have any reliable indicia of that.

[00:21:31] Speaker 06:
We do have a statutory language.

[00:21:33] Speaker 06:
And I just think that's the part of the challenge that we're facing here is to just kind of start from the premise of normal statutory interpretation and it says that reserve visas shall be available now.

[00:21:43] Speaker 06:
We today that's what that provision is not about time limited it's only for five years, so there are times wasting and then we have another category that says infrastructure projects are filed or approved plans.

[00:21:55] Speaker 06:
What does approved mean there?

[00:21:56] Speaker 06:
So I'm just really taking us a little bit to our original argument, but I do think it's valid to start with the statute.

[00:22:01] Speaker 06:
Congress should draft a better statute if it doesn't want it to be.

[00:22:04] Speaker 05:
I find it sympathetic to your reading of approved, but it just seems to me that that's not all there is to it.

[00:22:09] Speaker 05:
It's an infrastructure project, and you have to invest $800,000, and it has to be certain types of projects.

[00:22:16] Speaker 05:
It seems like you're saying that based on what you've already done, the agency should have to sue a sponsor to go back and comb through the things that

[00:22:24] Speaker 05:
what that they've done before and see what might fit.

[00:22:27] Speaker 05:
But I don't think any of them will fit because none of them invested $800,000.

[00:22:31] Speaker 05:
You should have to reapply.

[00:22:34] Speaker 06:
Well, no, I appreciate your I think that's a I mean, that could have been a good regime to prepare that maybe made sense.

[00:22:40] Speaker 06:
I mean, the regional centers reapply, but they don't have to provide any additional investment.

[00:22:44] Speaker 06:
I think there might be a different story if the agency had said, look, we appreciate that there was an infrastructure project approved before.

[00:22:51] Speaker 06:
Can you please make sure you have all the

[00:22:53] Speaker 06:
I mean, it essentially is the same paperwork that was submitted before, but the investment amount is a different question.

[00:22:58] Speaker 06:
It's inflation adjusted, too.

[00:23:00] Speaker 06:
So it's not like there's the 800,000.

[00:23:01] Speaker 06:
And I think it's really helpful to look at that whole provision.

[00:23:04] Speaker 06:
It's in the addendum.

[00:23:05] Speaker 06:
It's not just tying the 800,000.

[00:23:07] Speaker 06:
If you invest 800,000, then you get a reserved visa.

[00:23:10] Speaker 06:
What it's saying is that that is an inflation adjusted

[00:23:13] Speaker 06:
amount and there's now a mechanism in the statute to continue to have it go up.

[00:23:16] Speaker 06:
It had been $500,000 since I think 1990s.

[00:23:21] Speaker 06:
And so there would have been a DHS rulemaking to try to move it up for inflation.

[00:23:25] Speaker 06:
It got struck down due to an appointments clause issue.

[00:23:28] Speaker 06:
So I think just really try and understand what is Congress trying to do here.

[00:23:31] Speaker 06:
I think we actually feel good about the policy argument that they realize there's a lot of people waiting for visas.

[00:23:37] Speaker 06:
There's infrastructure projects that have been filed or approved and we fit that bill.

[00:23:41] Speaker 06:
And right now those pieces are going to waste.

[00:23:43] Speaker 06:
And so I just doesn't, in our view, incentivize anyone for foreign investors.

[00:23:48] Speaker 04:
They're not ever going to waste, right?

[00:23:50] Speaker 04:
Because there are plenty of people in line.

[00:23:53] Speaker 06:
They're going to waste toward the point that the Congress was trying to make a point, which is like this program has been rife with fraud.

[00:23:59] Speaker 06:
We have some parts of the program that are really important.

[00:24:02] Speaker 06:
And those are things where there's an infrastructure project, where there's a real high unemployment area or a rural area that's being served.

[00:24:08] Speaker 06:
Those are supposed to be the ones that are the marquees.

[00:24:10] Speaker 06:
We have the marquee project.

[00:24:12] Speaker 06:
In our view, the only known infrastructure project, which is our clients who built this $6,000,

[00:24:18] Speaker 06:
And so we try to understand what was Congress doing, rewarding a regional center that was doing the right thing, rewarding the people that invested in that.

[00:24:26] Speaker 06:
And it's not a windfall for them to simply get

[00:24:28] Speaker 06:
priority in the visa line, just like, and I think an example, an analogy might be helpful, like in the I-130 process, say you're a permanent resident, you're sponsoring family members, you get upgraded to a citizen, then your family members go to the front of the line.

[00:24:41] Speaker 06:
It's just not that unusual for someone who already applied at a time, hoping for the best, sitting there in the DMV lounge, that suddenly there's a new process, a new line opens, the express line opens at the supermarket.

[00:24:52] Speaker 06:
Congress, the question is not.

[00:24:53] Speaker 05:
You wouldn't object to having to reapply based on your prior infrastructure?

[00:24:57] Speaker 06:
If they were to process it, I mean, everyone's nervous about any reapplication that requires, we might be here in two years on unreasonable delay, but I think the thing our client would not have minded having reapply to just to formalize their request for the infrastructure project determination.

[00:25:12] Speaker 04:
When you say our client, there you mean the project?

[00:25:15] Speaker 06:
Either, yes, it would be the project applying.

[00:25:17] Speaker 06:
I do think that the investment amounts should not go up because those are grandfathered in under 1154 and there's nothing in 1153 that conditions the reserved

[00:25:26] Speaker 06:
access for infrastructure projects to a higher investment amount.

[00:25:30] Speaker 06:
It would be actually not to pull on the unfairness thing, but these people have made their investment several years ago, 2016, 2017, their capital has been at risk the whole time.

[00:25:39] Speaker 06:
In a way, it's anyway, I think I would object to demands a lot.

[00:25:45] Speaker 04:
people, especially from countries like India and China, who then wait, wait, wait, wait.

[00:25:49] Speaker 04:
They have to keep their capital tied up.

[00:25:52] Speaker 04:
The United States benefits from that investment.

[00:25:54] Speaker 04:
People from undersubscribed countries are getting the benefit.

[00:25:57] Speaker 04:
People from oversubscribed countries aren't.

[00:26:00] Speaker 04:
I guess when you talk about unfairness, isn't it also somewhat unfair if, at the time of application, there are compatriots of your individual investor clients who have, let's say,

[00:26:15] Speaker 04:
higher priority date, they've been waiting longer.

[00:26:19] Speaker 04:
And if because of the RIA, your clients get set aside visas, they effectively jump ahead of their compatriots from an oversubscribed country who've been waiting longer.

[00:26:37] Speaker 06:
The immigration system is rife with occasional unfairnesses and just people would align your end.

[00:26:42] Speaker 06:
I do think that the other thing here, though, would be that this would say that new infrastructure project investors who invested only the inflation-adjusted amount would get to jump ahead of the line of people like our clients that have been waiting in the line for years now.

[00:26:54] Speaker 04:
They jump ahead only if they meet, as you were saying, the specific priority items, the areas of high unemployment,

[00:27:05] Speaker 06:
Real areas just focusing on like the infrastructure project the hypothetical one that doesn't appear to exist of the new infrastructure project.

[00:27:12] Speaker 06:
It's not going to be incentivized because no one's going to want to do this if they can't see this is flying.

[00:27:16] Speaker 06:
But yeah, assuming that project.

[00:27:18] Speaker 06:
My point is that those new investors would then be able to just pay an inflation adjusted amount 800,000 to get an immediate reserve visa.

[00:27:24] Speaker 06:
Whereas my clients, including the individual investors, invested $500,000 years and years ago, and they would still be waiting.

[00:27:32] Speaker 06:
So I would say there'd be an actual unfairness there to allowing new infrastructure project investors access to that, just because they pay down when we've been in the line for a lot longer and have an actual.

[00:27:42] Speaker 05:
Isn't this a new line?

[00:27:43] Speaker 05:
This is a different line from the one that you've been in.

[00:27:46] Speaker 06:
Oh, I'm just saying that we were just talking about the unfairness of possibly seeing the infrastructure people is jumping ahead of people with higher like longer dates.

[00:27:54] Speaker 05:
I'm with you on this.

[00:27:55] Speaker 05:
Yeah, it's more.

[00:27:56] Speaker 05:
I'm saying, isn't it a different line?

[00:27:57] Speaker 05:
Because now the RIA has created a new category.

[00:28:01] Speaker 05:
And now we're going to start a new line for this new category.

[00:28:03] Speaker 05:
If you look at it that way, join that line.

[00:28:05] Speaker 05:
You're no worse off than anybody else trying to join the line.

[00:28:08] Speaker 06:
If you look at it that way, I'm just saying that to the extent that they would be required to pay more when they've already had their money at risk for years, it would be kind of unfair to have them have to now pay $300,000 extra to join that line when they've actually been.

[00:28:20] Speaker 06:
They've had their money in this could be.

[00:28:23] Speaker 05:
part of the application I think you should file, which is like, we should be able to.

[00:28:26] Speaker 05:
That would be rejected.

[00:28:27] Speaker 05:
It would be rejected.

[00:28:27] Speaker 05:
It would be rejected.

[00:28:28] Speaker 05:
Even though it's inflation adjusted.

[00:28:30] Speaker 04:
It would be rejected because the project's already completed or because.

[00:28:35] Speaker 06:
There's no form to start.

[00:28:36] Speaker 06:
There's no, they haven't made, but even aside from that, if we.

[00:28:38] Speaker 04:
And here again, we're talking about the individual investor.

[00:28:40] Speaker 06:
Either one, I guess.

[00:28:41] Speaker 06:
I mean, there's a risk for the individual investor if they were to submit a revised petition.

[00:28:45] Speaker 06:
Yes.

[00:28:45] Speaker 06:
So that's why that's really, and it's also not at the investor level that the determination should be made.

[00:28:50] Speaker 06:
It's at the plan level.

[00:28:51] Speaker 06:
So, if there were a form tomorrow that our client could just simply file show that we had an infrastructure project USC already said it was one back in 2017 and we could get the determination because we filed a new form that would be great because I thought you said there's a statute that said that.

[00:29:06] Speaker 05:
It's inflation adjusted.

[00:29:07] Speaker 05:
So why isn't the amount invested good enough?

[00:29:10] Speaker 05:
That's our view.

[00:29:11] Speaker 06:
But we were, I think that you have to actually interpret the statute to make sure you agree with that, but that's our view.

[00:29:15] Speaker 05:
So you're saying that that's your view, but you don't know if the agency would take that view and it would just slow you down even more.

[00:29:20] Speaker 06:
I think currently, I mean, they can speak for themselves.

[00:29:23] Speaker 06:
I think the current thing would be your plan was already approved before.

[00:29:26] Speaker 06:
There's not a process for you to do this.

[00:29:27] Speaker 06:
And I guess maybe even if you were able to do it, you'd have to put in more capital.

[00:29:32] Speaker 06:
But that's speculation.

[00:29:34] Speaker 04:
So just to clarify, it's your position that the reserve visa provision should best be read just to instruct the AGC how to allocate EB-5 visas to those applicants whose petitions have been approved, whether their applications, the individual investor applications, were filed before or after the act.

[00:29:58] Speaker 06:
Yes, and that's because a combination of the B, the B5B provision, which just says the visas made available this year and they're currently available.

[00:30:05] Speaker 06:
Like there's a, you know, bullet in the cup that says like there's available for these 20%, 10%, 2%.

[00:30:11] Speaker 06:
That's the State Department, by the way.

[00:30:13] Speaker 06:
So the State Department's over there with their pile of visas, and then you have USCIS over here, not willing to make a determination here that would open that floodgate over at the State Department waiting room.

[00:30:26] Speaker 04:
And I gather that the high unemployment or rural area visas are on a different plane, or do you think the same should be true of those?

[00:30:39] Speaker 04:
Are there reserve visas that should be available to people who now are in

[00:30:46] Speaker 04:
who applied, who invested and applied before the Act and were cleared step one before the Act, are there people in line who should be pulled out and given the set-aside visas for those others?

[00:30:59] Speaker 04:
Is the statute parallel with respect to them?

[00:31:02] Speaker 06:
I think I want to be careful of not, with the caveat this, we haven't briefed this, so it would be, but my understanding is that the high unemployment area requires a new calculation.

[00:31:11] Speaker 06:
There's actually like in the Act some additional

[00:31:15] Speaker 06:
just process that has to happen that could not have happened before the act.

[00:31:18] Speaker 06:
So we have filed or approved plans.

[00:31:19] Speaker 06:
The act otherwise refers to plans approved before.

[00:31:22] Speaker 06:
So we fit the high unemployment, the way that works.

[00:31:25] Speaker 04:
It seems like it needs to be a new calculus part of the problem in the- And so the implication of that is that there kind of isn't at a kind of- I think so, but I'm not- At a political level, the project in which they invested wasn't

[00:31:42] Speaker 04:
that the qualifying thing when they invested?

[00:31:44] Speaker 04:
Is that what you're saying?

[00:31:45] Speaker 04:
I believe so.

[00:31:45] Speaker 04:
Where your clients was?

[00:31:46] Speaker 06:
Yes.

[00:31:47] Speaker 06:
And that's how they treated that category.

[00:31:49] Speaker 06:
And I think the important piece that I hope has come through in our briefing is that the F part of the statute makes clear that plans approved before still count.

[00:31:59] Speaker 06:
And so in this case, the infrastructure project, you could meet those criteria without some new process.

[00:32:04] Speaker 06:
You just have to look and figure out, is it actually a real?

[00:32:06] Speaker 04:
And that's not true of high unemployment or rural?

[00:32:08] Speaker 06:
Rural, I think, is similar to us.

[00:32:10] Speaker ?:
OK.

[00:32:11] Speaker 06:
That's my understanding, but I'm not an immigration lawyer.

[00:32:14] Speaker 04:
So on your theory, and I know that's not this case and we won't have to decide it, but just for understanding the nature of your argument, you would assume that if you prevailed that people who have a priority date and have long been working in the queue who had invested back when

[00:32:33] Speaker 04:
pre act in a project that meets today's rural areas.

[00:32:38] Speaker 04:
Definition should be pulled out of the queue and also given visas that are set aside under the act.

[00:32:44] Speaker 06:
I just, I'm not sure.

[00:32:46] Speaker 04:
I just, I mean, I'm not going to decide that in terms of your understanding of how to theoretically.

[00:32:50] Speaker 06:
Yes.

[00:32:51] Speaker 06:
I mean, I guess the point, yes, as a conceptual matter B says, these are the categories that are available effective immediately each year so far.

[00:32:58] Speaker 06:
the State Department has been allocating them to those categories and they haven't been used and they've been reverting to the regular pool and we're coming up on year two.

[00:33:06] Speaker 04:
What do we make of the fact that post act there's a an investment dollar difference between people who are applying that the investors who are seeking set-aside visas and the investors who are simply seeking

[00:33:23] Speaker 04:
priority date.

[00:33:24] Speaker 06:
So that's always been a distinction between people.

[00:33:26] Speaker 06:
The TEA was the prior thing.

[00:33:28] Speaker 06:
It was the prior kind of targeted employment area.

[00:33:31] Speaker 06:
So that's why our clients had 500 to start was that we kind of fit that.

[00:33:35] Speaker 06:
Then now we fit the infrastructure project now.

[00:33:38] Speaker 06:
But yes, there's always been a distinction.

[00:33:40] Speaker 06:
And I do think looking at the whole provision really makes clear it's an inflation adjustment because it says C2 adjustment for targeted employment area infrastructure projects.

[00:33:49] Speaker 06:
And then it goes right on to

[00:33:51] Speaker 06:
3 automatic adjustment and that's every 5 years it's going to go up again for inflation so I think if you look at see it's clear what they're doing here which they already tried to do in the struck down rule is to get something that's going to work going forward for making them amount work.

[00:34:05] Speaker 06:
It was not speaking to whether that was something that would have to be.

[00:34:09] Speaker 05:
There's no TEA dollar amount anymore.

[00:34:11] Speaker 05:
It's just $800.

[00:34:12] Speaker 05:
Like, instead of the $500, $1 million plan.

[00:34:15] Speaker 06:
It is $800 for TEA, but now it's fake.

[00:34:18] Speaker 06:
That's the generic term for both rural and high-end employment.

[00:34:21] Speaker 06:
So now TEA has become these two separate categories.

[00:34:24] Speaker 06:
And so yes, so for the priority line, it's the lower amount.

[00:34:31] Speaker 06:
For the regular line, it's the higher amount.

[00:34:33] Speaker 04:
TEA did not include infrastructure projects.

[00:34:35] Speaker 06:
not before.

[00:34:36] Speaker 06:
That's a new category in the statute, which has been also the Congress has been trying to pass since 2016.

[00:34:41] Speaker 06:
There was a bill with this language in 2016, 2017, um, back when the project was still happening.

[00:34:47] Speaker 06:
So I guess, you know, at the end, I, I appreciate it far exceeded my time, but we're just trying our best here with the statute to figure out what Congress meant.

[00:34:55] Speaker 06:
You have words that include us.

[00:34:57] Speaker 06:
You have no explanation on the other side.

[00:34:59] Speaker 06:
We don't know why they say filed or approved.

[00:35:01] Speaker 06:
We have people ready for visas that fit the bill and

[00:35:04] Speaker 06:
To the extent policy concerns are at issue.

[00:35:06] Speaker 06:
I think seeing a system that functions well where people are who put their capital at risk for valid investments actually get visas and see progress.

[00:35:13] Speaker 06:
I'd respectfully submit that will do much more to advance the Congress purpose and

[00:35:18] Speaker 04:
So just to pin it down, the individual investor clients applied at a sort of bargain rate and a lower rate for a TEA qualifying project before the act.

[00:35:31] Speaker 04:
That's correct.

[00:35:32] Speaker 04:
And therefore, their investment, in your view, is analogous to and checks the boxes of what a new investor would get for an $800,000 investment.

[00:35:45] Speaker 06:
Yes, that's correct.

[00:35:46] Speaker 06:
In fact, if it in the government doesn't just that we were still on the right.

[00:35:50] Speaker 06:
We're okay to be in line for that.

[00:35:51] Speaker 06:
If we actually were in an unreserved category, we'd have to have bought in with even more money back then.

[00:35:58] Speaker 02:
Yeah.

[00:35:58] Speaker 02:
That's one question that will push my math abilities well beyond their limit.

[00:36:04] Speaker 02:
But

[00:36:06] Speaker 02:
You've said a couple of times that 500,000 then is 800,000 now because of inflation.

[00:36:12] Speaker 02:
Bureau of Labor Statistics has an inflation calculator, and it says 500,000 then is 650,000.

[00:36:19] Speaker 06:
You have, I'm not saying it's right.

[00:36:22] Speaker 06:
No, we've done the calculation too, Your Honor, to be honest.

[00:36:24] Speaker 06:
I mean, yes.

[00:36:25] Speaker 06:
Kind of like rounding up.

[00:36:27] Speaker 06:
Oh, no.

[00:36:27] Speaker 06:
Sorry.

[00:36:28] Speaker 06:
Did you do 500,000 from when?

[00:36:30] Speaker 06:
2016 which I thought is what that's for our people but the 500,000 has been the amount since I think 1990s so we so sure we're not gonna be I would we had done eight hundred thousand and one under the inflation calculator that you just did I would have been happy to say that but we didn't quite get there but our present value of money is higher than five hundred thousand and it's been at risk that whole time so your money you invested is present value is more than five hundred thousand obviously yes everything

[00:36:57] Speaker 02:
You get to 800,000 not by taking how much you invested, but by how much you would have been required to invest if you had invested the day the statute was in effect.

[00:37:08] Speaker 06:
I think it's a rough inflation investment, and I can provide the court the rulemaking that DHS did where it explained this more and then it got overturned.

[00:37:16] Speaker 06:
But yeah, the point is that from the 1990s, and I hope that's correct, it's been 500,000 or that amount.

[00:37:21] Speaker 06:
It needed to be adjusted for inflation.

[00:37:23] Speaker 06:
They've tried various ways, and the $800,000 is that.

[00:37:25] Speaker 06:
not a reward for people now.

[00:37:27] Speaker 06:
And so the point is our clients are in the middle of that.

[00:37:30] Speaker 06:
We don't have present value of $800,000 from that date, but we have more.

[00:37:34] Speaker 04:
But what you're saying is the $500,000 figure was introduced at the outset program in the 90s, and it was just Congress lagging that they kept it low.

[00:37:44] Speaker 04:
So the bargain that your clients got some 10 plus years later is on Congress for not having consistently over time

[00:37:55] Speaker 04:
done the adjustment.

[00:37:57] Speaker 04:
But conceptually, that's how you understand.

[00:38:00] Speaker 06:
Right.

[00:38:00] Speaker 06:
It's more just a rebuttal to the notion.

[00:38:02] Speaker 06:
I think that this is somehow like the Congress meant to increase the price of admission for the special visa.

[00:38:07] Speaker 06:
I think what they did was they actually adjusted the inflation for these visas generally, and they separately provided for infrastructure projects to now get reserve visas from the pool.

[00:38:19] Speaker 04:
Thank you.

[00:38:24] Speaker 04:
Mr. Goldsmith.

[00:38:29] Speaker 03:
Your Honor, may I please the court, Aaron Goldsmith, on behalf of the government, hear the district court properly dismiss the complaint for lack of final agency action, because the agency's guidance at issue does not mark the consummation of the agency's decision-making process.

[00:38:42] Speaker 04:
It's authoritative.

[00:38:43] Speaker 04:
I mean, your view is that it is the binding.

[00:38:47] Speaker 04:
It's final in the sense that it's what the statute says.

[00:38:50] Speaker 04:
For prong one is not at issue.

[00:38:52] Speaker 04:
in your view.

[00:38:54] Speaker 03:
It is at the issue.

[00:38:54] Speaker 03:
And if I could just respond to Judge Pan's question, because I think it goes to the heart of this entire litigation, that there is no reason the appellant in this case DVRC, the regional center, cannot file form I-956-F today.

[00:39:11] Speaker 03:
We're not saying that they are barred from doing so simply because they were designated under prior law.

[00:39:16] Speaker 03:
They can file it today.

[00:39:18] Speaker 03:
Let me explain how they would do that.

[00:39:20] Speaker 03:
on page six of the form, there is a box that says infrastructure project.

[00:39:25] Speaker 03:
They would check that box.

[00:39:27] Speaker 03:
Then there are two questions about the project.

[00:39:30] Speaker 03:
They would answer those questions.

[00:39:32] Speaker 03:
And then they would attach the business plan.

[00:39:34] Speaker 03:
And so it would follow the instructions and attach the business plan and the other documents requested in the instructions.

[00:39:42] Speaker 03:
So they could do that today.

[00:39:44] Speaker 03:
Once they do so, once they file, they're given what's called a receipt number.

[00:39:49] Speaker 03:
And then the individual investors could use that receipt number to file an I-526E.

[00:39:57] Speaker 03:
And again, they would check the box saying they're seeking an infrastructure visa, and they would comply with those instructions.

[00:40:04] Speaker 05:
And then, you know... So they can rely on the previously approved project in a new application?

[00:40:11] Speaker 03:
Well, they can't... I'm sorry, let me try this again.

[00:40:17] Speaker 03:
The fact that they were previously filed the petitions they hadn't approved project, that doesn't bar them from now filing the correct paperwork.

[00:40:26] Speaker 03:
And the correct paperwork is in a form I-956-F.

[00:40:30] Speaker 03:
They could file that today.

[00:40:32] Speaker 03:
And they can rely on the same business plan.

[00:40:35] Speaker 03:
They can submit the same business plan, correct.

[00:40:38] Speaker 04:
And your position is that that would be denied?

[00:40:40] Speaker 03:
No, the application, the project application might be approved.

[00:40:46] Speaker 03:
The real problem, the real fly in the women and the words of the district court judge would be with respect to the petition because they haven't invested the, they're not eligible for a, for infrastructure visa because they haven't invested 800,000, but we're not even at that point yet.

[00:41:04] Speaker 05:
But you wouldn't accept the inflation adjusted 500 that was

[00:41:11] Speaker 05:
I guess, invested years ago, which would have been the equivalent of 800.

[00:41:14] Speaker 03:
No, we read this.

[00:41:17] Speaker 03:
Again, government, like we make a decision, we deny it.

[00:41:21] Speaker 03:
We would write a written decision explaining, applying the law to the facts, explaining it.

[00:41:25] Speaker 03:
They could challenge that at the APA.

[00:41:26] Speaker 03:
You would have the option of taking administrative appeal.

[00:41:28] Speaker 04:
But our position- What was the fly in the ointment?

[00:41:31] Speaker 03:
That the fact that they have failed to invest the 800,000 required by statute.

[00:41:37] Speaker 05:
So that if they file a petition- Could they invest another 300,000?

[00:41:41] Speaker 03:
Well, in theory, they could.

[00:41:43] Speaker 03:
But as you just heard a few minutes ago, the project is completed.

[00:41:47] Speaker 03:
So I don't know how they would be able to invest the additional 300,000.

[00:41:51] Speaker 05:
They can't invest 300 in a different project.

[00:41:54] Speaker 05:
It has to be 800 all in one project.

[00:41:56] Speaker 04:
I believe that's a different qualifying infrastructure project if there were one.

[00:42:02] Speaker 03:
I think it would have to, we're a little bit ahead of ourselves because none of these applications or petitions have been filed, but I think that's correct.

[00:42:09] Speaker 03:
I think they would have to invest it in the same project.

[00:42:12] Speaker 03:
But again, if they did something different, they applied and we denied the petition.

[00:42:20] Speaker 03:
As you indicated, there would be an administrative record.

[00:42:22] Speaker 03:
There would be a written decision explaining our position.

[00:42:25] Speaker 03:
They could take an administrative appeal.

[00:42:27] Speaker 03:
They could challenge that petition, that denial

[00:42:31] Speaker 03:
district court under the APA.

[00:42:33] Speaker 03:
But we're not even.

[00:42:34] Speaker 04:
That would be another way to address it.

[00:42:37] Speaker 04:
But here, they are reading the statute, I think, or reading the rule the way you read the policy or answer the way you read it.

[00:42:51] Speaker 04:
And they're saying this is saying that the determination is only made post

[00:43:01] Speaker 04:
act with the application.

[00:43:03] Speaker 04:
And they believe that it's open to a different interpretation, which is that an already approved infrastructure project could be treated without a new application as an investment vehicle that qualifies the investors for the set-aside visas.

[00:43:26] Speaker 04:
That's their reading.

[00:43:28] Speaker 04:
to the extent that there's a difference between those two, how is there not reviewable final agency action at the policy level?

[00:43:39] Speaker 03:
Well, again, just to be clear, our objection is what, to use your Judge Pan's words, that this idea that we have to sua sponte go back and review previous petitions and filings.

[00:43:52] Speaker 03:
And I think that's what you're getting at.

[00:43:53] Speaker 04:
Well, no, I'm just asking you a much simpler question.

[00:43:56] Speaker 04:
How is this not final?

[00:43:59] Speaker 04:
final in the sense that there's a dispute about what the statute requires.

[00:44:05] Speaker 04:
And you may win it, but there's a dispute about the meaning of the statute.

[00:44:10] Speaker 04:
And your view is that, yeah, it's binding.

[00:44:14] Speaker 04:
It's the statute.

[00:44:16] Speaker 04:
And sure, it has consequences, but it's the statute.

[00:44:21] Speaker 04:
But they're saying, no, it's not the statute.

[00:44:23] Speaker 04:
We have an interpretation that says your policy, there's actually a little daylight between your policy or your answer and the statute.

[00:44:31] Speaker 04:
That is the issue that they say is the subject of final agency action that they want to have us decide.

[00:44:41] Speaker 04:
And what I don't understand is how the finality of that evaporates under your view.

[00:44:47] Speaker 03:
Well, it doesn't represent the consummation of the agency decision-making process because simply identifying.

[00:44:53] Speaker 04:
Well, you're saying because there was no agency decision-making process, Congress did the decision-making.

[00:44:59] Speaker 04:
But they're saying, no, no, at least recognize that we have articulated a different position and that the agents didn't choose it.

[00:45:10] Speaker 04:
That is a decision-making process, is it not?

[00:45:12] Speaker 03:
No, I don't think so, at least within the meaning of the APA.

[00:45:15] Speaker 03:
And I think you're going to disagree with me on this.

[00:45:18] Speaker 03:
But the view is simply referencing the correct form to file by itself is not a final agency action.

[00:45:27] Speaker 03:
It doesn't represent the confirmation of decision making process.

[00:45:31] Speaker 03:
There are no legal consequences that flow from simply identifying the correct form.

[00:45:38] Speaker 03:
Agencies run off forms that the fact that you have form

[00:45:42] Speaker 03:
someone has to use to self-identify, to provide a business plan to us so that we can review, that by itself is not final agency action.

[00:45:52] Speaker 03:
And there's no case that says simply identifying a correct form, it constitutes final agency action.

[00:45:59] Speaker 03:
And this case was not filed under 7061 to compel agency action unlawfully withheld.

[00:46:05] Speaker 03:
That is, if the point was, we had an obligation with the statute to review, sua sponte review

[00:46:12] Speaker 03:
previous filings, that would be a different matter.

[00:46:16] Speaker 03:
And just to be clear, these filings, each petition had, in many cases, over 1,000 pages of documents, financial documents, including the business plan.

[00:46:26] Speaker 03:
And each petition had the same, had also had 1,000 pages, because under prior law, you could not incorporate by reference.

[00:46:34] Speaker 03:
So if you went to the immigrant investor program office, you would see it's all in paper format.

[00:46:42] Speaker 03:
There are these multiple filings.

[00:46:44] Speaker 04:
But that burden is beside the point to the extent that we have one case before us.

[00:46:50] Speaker 04:
OK.

[00:46:50] Speaker 04:
And they just come to you and identify this project and could be completely reasonable for the agency to say, we're not going to go dig through files unless we know somebody cares about it and they have to come to us.

[00:47:03] Speaker 04:
That could be.

[00:47:04] Speaker 04:
But that's not this case.

[00:47:05] Speaker 04:
This case is a case in which we have before us

[00:47:09] Speaker 04:
a program.

[00:47:10] Speaker 04:
And this seems different from the argument in your brief, but what you're saying now is, oh, no, we don't mean to imply that only infrastructure projects that were so designated after the Act are eligible.

[00:47:25] Speaker 04:
Preact infrastructure projects are also eligible.

[00:47:29] Speaker 04:
They just have to kind of get a

[00:47:34] Speaker 04:
seal of approval as such and everything will be fine?

[00:47:38] Speaker 04:
Is that your current position?

[00:47:39] Speaker 03:
Well, what we said on page 27 of our answering brief is that there is no final agency action because they haven't filed the project application and the individuals haven't filed the petition and that there's been no application of law to the facts.

[00:47:52] Speaker 03:
And then we say at the bottom of the page, look, just because an investor can file a petition doesn't mean the petition is going to be approved.

[00:48:01] Speaker 03:
But then there would be at least a final agency action.

[00:48:03] Speaker 03:
So the issue is here, they did not self-identify.

[00:48:07] Speaker 03:
They did not file the correct paperwork.

[00:48:09] Speaker 04:
So your view is not just that the infrastructure project would have to refile, but that the investors would too.

[00:48:17] Speaker 04:
Correct.

[00:48:18] Speaker 04:
And would the investors lose their priority data?

[00:48:20] Speaker 03:
No, no, no.

[00:48:21] Speaker 03:
You can ride two horses at the same time.

[00:48:23] Speaker 03:
That is, if you have an approved petition for a regular EPI petition,

[00:48:30] Speaker 03:
I see my time has expired, but if I could just continue.

[00:48:32] Speaker 04:
Absolutely.

[00:48:33] Speaker 04:
You know, you know our practice before.

[00:48:35] Speaker 03:
So you could, you can continue your, you're locked in with that petition and then you can also file a new petition.

[00:48:42] Speaker 03:
And I form a form I five 26 E you check the box saying you'd like an infrastructure visa.

[00:48:50] Speaker 03:
And then that is separately adjudicated.

[00:48:53] Speaker 03:
And then what would happen is under 1154 B is, is that the approved petitions

[00:48:59] Speaker 03:
are sent over to the State Department.

[00:49:00] Speaker 03:
So the approved petition for a regular EB-5 petition was already sent over to the State Department.

[00:49:06] Speaker 03:
If they get an approval of a new petition, that would also be sent over to the State Department.

[00:49:12] Speaker 03:
And the State Department would see that it's stamped approved.

[00:49:15] Speaker 03:
It would have the priority date.

[00:49:16] Speaker 03:
And they would use that to schedule an interview for a consular officer.

[00:49:22] Speaker 03:
And then they would, at that point,

[00:49:26] Speaker 03:
formally apply for the visa and either be granted or denied at the visa.

[00:49:30] Speaker 04:
You're saying you can ride two horses at the same time, but you have to buy another horse.

[00:49:33] Speaker 04:
You can't ride the horse you're already on and go through whichever gate opens first.

[00:49:38] Speaker 04:
I would say you would have to file the correct paperwork.

[00:49:40] Speaker 04:
Well, but you also have to spend another $800,000.

[00:49:45] Speaker 03:
Well, again, here's the problem.

[00:49:48] Speaker 03:
Because their investment was less than $800,000, they have a problem.

[00:49:52] Speaker 03:
If their initial investment hypothetically were $800,000,

[00:49:56] Speaker 03:
They would not need to make an additional investment.

[00:49:58] Speaker 03:
They can ride the two horses.

[00:50:00] Speaker 03:
They would say, we have an approved one.

[00:50:02] Speaker 03:
Now there's this newly created program that didn't exist before for infrastructure visas.

[00:50:07] Speaker 03:
The agency's never previously been making determinations.

[00:50:10] Speaker 03:
Is this an infrastructure project within the meaning of the statute?

[00:50:13] Speaker 03:
Because there was no statutory definition of what an infrastructure project is.

[00:50:17] Speaker 03:
And then they would say, OK, we're filing a project application.

[00:50:24] Speaker 03:
That's what the regional center would file.

[00:50:25] Speaker 03:
They would take the receipt number, they'd file the individual petition, and they'd say, look, we've invested the 800,000, and the agency would make a decision.

[00:50:33] Speaker 03:
And for all we know, it might be denied for some reason unrelated to the 800,000.

[00:50:39] Speaker 03:
There could be some other defect, but we would at least have a final agency action at that point.

[00:50:45] Speaker 02:
What does that mean for these plaintiffs?

[00:50:49] Speaker 02:
What should they do?

[00:50:50] Speaker 02:
What are their options?

[00:50:52] Speaker 03:
Well, I think when the district court said this is the fly and the ointment, this is what I think the district court was referring to, which is if they file a petition and they admit they don't meet the minimum dollar amount, then the agency is going to deny the petition, and then they would sue

[00:51:11] Speaker 03:
under the APA saying that the government is not correctly interpreting the law or they would take an administrative appeal to the administrative appeals office.

[00:51:19] Speaker 03:
And they would doubt that's how you would get a decision, but it would be a decision based on administrative record.

[00:51:24] Speaker 02:
That's how they would get a negative decision.

[00:51:27] Speaker 02:
Maybe this is not appropriate, but I think, you know, if they, to get a positive decision, what do they need to do?

[00:51:35] Speaker 02:
Number one, they probably need to find a new $800,000, right?

[00:51:38] Speaker 03:
Well, they would either have to invest 300,000 in the project, which you just heard they can't do.

[00:51:46] Speaker 02:
What does that invest at 300,000 in a different project?

[00:51:49] Speaker 04:
It qualifies an infrastructure project, which I gather there aren't any, but there may be.

[00:51:54] Speaker 03:
So I don't think the agency's ever put out guidance on that specific point.

[00:51:58] Speaker 03:
I think the answer is no, but we're ahead of ourselves because they haven't even applied.

[00:52:02] Speaker 03:
If they had said, yes, we're doing this, and the agency says, well, that doesn't count, then we would litigate that issue.

[00:52:09] Speaker 04:
But Mr. Goldsmith, it's a little rough on people who are putting their life savings, tying them up for decades, to say, well, we'll tell you when we get there, whether you have any chance of getting the carrot that we've been holding out.

[00:52:26] Speaker 03:
So there is an inbox on the website where you can send inquiries about questions about how this program works.

[00:52:33] Speaker 03:
And Dave, over the past year, had received several thousand inquiries.

[00:52:38] Speaker 05:
Are they losing anything?

[00:52:40] Speaker 05:
Because I guess they qualified to just get into the unreserved visa, which is what they bargained for when they got their initial

[00:52:51] Speaker 05:
So I'm wondering, are they losing anything here?

[00:52:55] Speaker 05:
When you set aside the 2%, does that reduce their chances in the unreserved visa pool?

[00:53:03] Speaker 05:
Because I guess I think it's important that they're still in the same position that they bargained for and that they want.

[00:53:11] Speaker 05:
They are in the unreserved visa pool.

[00:53:13] Speaker 05:
That's correct.

[00:53:13] Speaker 05:
And they can get a visa that way.

[00:53:15] Speaker 05:
It's just difficult.

[00:53:16] Speaker 05:
And now there's a new, better way to do it, which would be

[00:53:20] Speaker 05:
a benefit, something in addition to what they previously had bargained for.

[00:53:25] Speaker 05:
And there's a question as to whether or not they can apply to get this new additional benefit, but are they in a worse position by the fact that now there is a new additional benefit?

[00:53:36] Speaker 05:
Does that worsen their chances in the pool that they're in?

[00:53:39] Speaker 03:
I'm not sure it does, except to the extent that I guess you could say, if anyone gets an infrastructure project

[00:53:47] Speaker 03:
before that.

[00:53:48] Speaker 03:
It's hard for me to answer.

[00:53:49] Speaker 04:
It does.

[00:53:49] Speaker 04:
I mean, anybody gets an infrastructure project or a rural areas project or an unemployment area project.

[00:53:55] Speaker 04:
And let's say those are also Chinese nationals.

[00:53:59] Speaker 04:
If there's a lot of Chinese nationals in those pools, then boom, the 7% gets used up and the priority date

[00:54:06] Speaker 04:
become stagnates where it is for the person who's in the original.

[00:54:10] Speaker 03:
Yeah, except that Congress made the decision to create the reserve thesis.

[00:54:13] Speaker 03:
I understand.

[00:54:14] Speaker 03:
We didn't create that program.

[00:54:17] Speaker 02:
But people will still be getting... Go ahead.

[00:54:19] Speaker 02:
I think we're on the same track.

[00:54:22] Speaker 02:
Okay.

[00:54:23] Speaker 02:
The ones Congress created, did it rob the general pool in order to create those or did it keep the general pool number the same and then just add these additional

[00:54:35] Speaker 02:
No, it's 2% of the 7.1% number.

[00:54:39] Speaker 02:
It's 2%.

[00:54:41] Speaker 02:
So it does make it.

[00:54:44] Speaker 02:
I mean, they are in a worse place.

[00:54:47] Speaker 02:
Assuming they can't take advantage of the Reform Act, they are in at least a slightly worse position after the Reform Act than they were before the Reform Act because they're grasping at a limited number of visas that have now become slightly more limited.

[00:55:06] Speaker 02:
I think that's correct.

[00:55:07] Speaker 05:
So can you have two places in line?

[00:55:09] Speaker 03:
You said you could ride two horses.

[00:55:11] Speaker 03:
You can.

[00:55:11] Speaker 05:
Can you stay in the unreserved pool and then meet the requirements for the reserved pool and be for that?

[00:55:16] Speaker 03:
Whatever gets you there first, yes.

[00:55:19] Speaker 03:
You can do both, yes.

[00:55:20] Speaker 05:
You can have two projects.

[00:55:21] Speaker 05:
The one that they did, and they can just do a whole new project.

[00:55:23] Speaker 05:
It makes $8,000 and be in two lines at once.

[00:55:26] Speaker 03:
Right, assuming they meet all the other requirements.

[00:55:28] Speaker 03:
Yes, that's correct.

[00:55:29] Speaker 04:
The problem, and I think you say the agency doesn't have guidance on it yet,

[00:55:35] Speaker 04:
Is it your position?

[00:55:36] Speaker 04:
Let's say the SEPTA project got filed post closure of that project to be treated as an infrastructure project under the act.

[00:55:52] Speaker 04:
And then an individual

[00:55:55] Speaker 04:
said, at the time, it was an infrastructure project.

[00:55:58] Speaker 04:
It is now an infrastructure project, parentheses, a completed one.

[00:56:04] Speaker 04:
And I invested in that infrastructure project.

[00:56:07] Speaker 04:
And my claim for visa is still alive, because my priority date is what it is.

[00:56:13] Speaker 04:
And post-Act, prospectively, I meet all the requirements for one of the 2% set-aside visas.

[00:56:24] Speaker 04:
Is your position that that person, based on the $500,000 that was adequate at the time, necessarily loses or that we don't know yet?

[00:56:34] Speaker 03:
I would have to, you know, I think our position is in order to get an infrastructure project visa, you must have invested 800,000.

[00:56:42] Speaker 03:
And that's because that's what Congress said in black and white.

[00:56:46] Speaker 03:
And we can't create a Frankenstein program taking some aspects from the new law and some aspects from the old law to create a new program that Congress never offers.

[00:56:55] Speaker 04:
They passed through that.

[00:56:56] Speaker 04:
They passed through the qualification under five, five 20s.

[00:57:05] Speaker 04:
Six.

[00:57:06] Speaker 04:
And the only question is, do they qualify for the set asides?

[00:57:14] Speaker 04:
And that really depends on whether their investment was a qualifying investment for an infrastructure project.

[00:57:21] Speaker 04:
If it was, because the project files a nine, whatever, nine and something E, I nine, then,

[00:57:35] Speaker 04:
it wouldn't be an inadequate investment because at the time it was fully adequate.

[00:57:40] Speaker 03:
So we read the statute differently, but we're ahead of ourselves because they haven't filed the petition.

[00:57:46] Speaker 03:
And the reason we read the statute the way that we do is because when Congress says in order to get infrastructure reset, it has to be 800,000, we think that means the investment has to be 800,000, that there's no exception and you can't have

[00:58:05] Speaker 03:
some aspects of old law apply and some aspects of new law.

[00:58:09] Speaker 03:
I would add that there are regional centers that were designated under old law who have now filed the correct paperwork, the I-956F to be designated as projects for areas of high unemployment.

[00:58:26] Speaker 03:
And then subsequently individual investors have filed the I-526E petitions in connection with it.

[00:58:35] Speaker 05:
So it's it sounds to me like your position at oral argument is a reasonable one.

[00:58:40] Speaker 05:
But when I look at this case.

[00:58:44] Speaker 05:
The.

[00:58:46] Speaker 05:
Helens came in and said oh my God you said you're going to adjudicate whether we qualify for these reserve visas at the time of.

[00:58:55] Speaker 05:
adjudication, I guess, at the time that we apply.

[00:58:57] Speaker 05:
And that means, and then they had a whole parade of horribles, that means we can never apply because we've already been approved.

[00:59:03] Speaker 05:
And this implies that you can't approve us again and all these things.

[00:59:07] Speaker 05:
And you didn't just say, no, that's not what it means.

[00:59:11] Speaker 05:
All we're saying is reapply.

[00:59:12] Speaker 05:
You have a whole brief that doesn't lay all this out.

[00:59:16] Speaker 05:
I'm just wondering why you didn't just

[00:59:18] Speaker 05:
So the position that you're taking now at oral argument in your briefing, which would have perhaps given clarity to the appellants and avoided this entire appeal.

[00:59:28] Speaker 03:
So at two points in our brief, we said they haven't filed the I-956.

[00:59:33] Speaker 03:
They haven't filed the I-5268.

[00:59:36] Speaker 03:
And we said at the bottom, page 27.

[00:59:38] Speaker 05:
All this argument in the briefs about what does approved mean.

[00:59:41] Speaker 05:
That's correct.

[00:59:42] Speaker 05:
And instead of just saying, just apply again, and maybe you can be approved, you

[00:59:47] Speaker 05:
joined issue and said, no, no, you can't be approved.

[00:59:49] Speaker 05:
And I don't understand why you would do that when you're taking a different position now at O'Rourke.

[00:59:52] Speaker 03:
So what we're saying is that we wanted to respond to each and every argument that was raised in the opening brief, as do, and the key point is whether or not we have to sue Esponte, go back and look at the Oswald file.

[01:00:05] Speaker 03:
And we argued, we had all these arguments, statutory arguments, arguments about all the different provisions as to why we don't have to go back.

[01:00:12] Speaker 05:
It's just not all clearly laid out in your brief.

[01:00:16] Speaker 05:
I understand that that is actually what's driving your position.

[01:00:20] Speaker 05:
And I don't think that that's necessarily unreasonable.

[01:00:22] Speaker 05:
But just the way this whole thing is briefed, these sets of briefs talk about a hypothetical situation that now you're telling me is not the situation.

[01:00:32] Speaker 03:
No, it's not the situation.

[01:00:34] Speaker 03:
And they can file the I-956 application.

[01:00:41] Speaker 03:
And I think the district court hit the nail on the head when he said that the guidance is not the agency's last word.

[01:00:46] Speaker 03:
It just tells them how to begin the process of applying.

[01:00:50] Speaker 03:
That the guidance has no, in the district court's review, has no legal effect.

[01:00:56] Speaker 03:
And for those reasons, the decision of the district court should be affirmed.

[01:01:00] Speaker 04:
You referred to page 26 of your brief.

[01:01:03] Speaker 03:
I think it was at 27, but let me look at it.

[01:01:09] Speaker 03:
Yes, Your Honor.

[01:01:11] Speaker 03:
We said that second paragraph here, the regional server never filed the application and the individual investors never filed the I-526 petitions.

[01:01:24] Speaker 03:
And as a result, there was no agency adjudication of petition or other request.

[01:01:29] Speaker 03:
I didn't see that on page 27.

[01:01:33] Speaker 03:
It's page 27.

[01:01:34] Speaker 04:
You say DVRC never filed a form I-950.

[01:01:37] Speaker 04:
Oh, I see, I see.

[01:01:38] Speaker 04:
Appellant investors never filed a form I-526E to be sure they wouldn't be eligible in the footnote.

[01:01:49] Speaker 04:
But there was no agency adjudication.

[01:01:50] Speaker 04:
It seems like a futile action given the position of the agency.

[01:01:55] Speaker 04:
I mean, what they're challenging is an interpretation of the statute

[01:02:02] Speaker 04:
filed or adjudicated or filed or.

[01:02:07] Speaker 04:
Approved.

[01:02:08] Speaker 04:
Approved, thank you.

[01:02:09] Speaker 04:
And they're saying you're reading the approved out of the statute because they were approved pre-act.

[01:02:16] Speaker 04:
So they shouldn't need to file.

[01:02:18] Speaker 04:
I mean, that's their theory.

[01:02:20] Speaker 04:
And so you're not responding to their theory that approved.

[01:02:26] Speaker 04:
And you're denying that you're even taking a position.

[01:02:28] Speaker 04:
But of course you're taking a position.

[01:02:30] Speaker 04:
You're taking a position that both filed and approved are things that happen after the act.

[01:02:36] Speaker 04:
Am I right about that?

[01:02:37] Speaker 04:
Filed and approved are both in your view of the statute post act.

[01:02:42] Speaker 04:
Yes.

[01:02:43] Speaker 04:
Okay, they're taking a different position Why is your policy on that a?

[01:02:50] Speaker 04:
not final and Be not one that has consequences

[01:02:58] Speaker 03:
because it doesn't represent the culmination of the agency's decision.

[01:03:04] Speaker 04:
The agency's decision on policy, will we treat a pre-act approval of a project under, what was it, the TEA as an approved infrastructure project?

[01:03:21] Speaker 04:
That issue, you have taken a final position on, have you not?

[01:03:27] Speaker 03:
Again, I recognize that you disagree.

[01:03:30] Speaker 03:
No, I don't think that's true.

[01:03:31] Speaker 04:
You haven't.

[01:03:32] Speaker 04:
You might actually start treating... No, no, no, we're not... ...pretty act approvals... No, we're not.

[01:03:37] Speaker 04:
...of infrastructure projects or high unemployment area projects or rural areas as approved for purposes of the statute.

[01:03:47] Speaker 03:
No, no, we're just saying they have to follow the right paperwork.

[01:03:49] Speaker 04:
Right.

[01:03:50] Speaker 04:
And that is an interpretation of the law that differs from theirs, and that is final from USCIA, I assume.

[01:03:57] Speaker 03:
So I don't think it's a final agency action.

[01:04:00] Speaker 03:
I know you disagree.

[01:04:01] Speaker 03:
I'll just say that there's no authority we've been able to find.

[01:04:05] Speaker 03:
It's simply identifying what the correct form to file constitutes a final agency action.

[01:04:10] Speaker 04:
Articulating a disputed statutory interpretation is commonly

[01:04:17] Speaker 04:
something, whether it's in a guidance or in any kind of binding document that the agency says, this is going to be our thing.

[01:04:23] Speaker 04:
I mean, look at poet, bio refining.

[01:04:26] Speaker 04:
This is our thing.

[01:04:27] Speaker 04:
This is how we're going to do it final.

[01:04:29] Speaker 03:
But there was a little bit of a difference there because the guidance really limited the agency's discretion.

[01:04:39] Speaker 04:
And so is it your view that the agency here at USCIA retains discretion

[01:04:46] Speaker 04:
to treat some projects approved before the act as qualifying without filing anything further?

[01:04:56] Speaker 03:
No.

[01:04:56] Speaker 04:
It doesn't.

[01:04:57] Speaker 03:
No.

[01:04:58] Speaker 03:
But just to be clear, there was never any adjudication under the old law as to whether or not something constituted an infrastructure project within the meaning of the statute, because the statute didn't define what an infrastructure project was.

[01:05:09] Speaker 03:
And not only was there no definition, there was no infrastructure

[01:05:13] Speaker 03:
reserve set aside under the old law.

[01:05:15] Speaker 03:
So the agency necessarily could not have made a determination on that.

[01:05:19] Speaker 03:
And what the agency was deciding was they were approving petitions, applications, they were explaining when they would defer to prior, under the deference policy, they would defer to certain determinations that were set forward in exhibit one to the complaint.

[01:05:37] Speaker 03:
And I understand we're in the spirit as to whether or not this is final agency action.

[01:05:42] Speaker 05:
But is the agency action the actual words on the website and in the manual?

[01:05:48] Speaker 05:
Because the only words are, we're going to determine this when adjudicating the project application.

[01:05:55] Speaker 05:
And if that's the action, that seems consistent just with what the statute requires.

[01:06:02] Speaker 05:
And it seems to me that all these other arguments, well, that means we can never be approved.

[01:06:08] Speaker 05:
What is approved?

[01:06:09] Speaker 05:
What about people before?

[01:06:11] Speaker 05:
That's not reflected in the actual agency action, which is the words on the page.

[01:06:16] Speaker 03:
The words on the page simply say, we'll make a decision on the application when we make a decision on the application.

[01:06:21] Speaker 03:
That doesn't add up.

[01:06:22] Speaker 05:
So instead, you've taken a position just in this litigation about what that would all mean.

[01:06:27] Speaker 03:
What we've certainly had to do with that.

[01:06:30] Speaker 03:
So we've certainly taken a position as to the 800,000 issue.

[01:06:34] Speaker 03:
The answer, I think, is,

[01:06:37] Speaker 03:
You don't need to address those issues.

[01:06:40] Speaker 03:
You don't need to decide more than is necessary.

[01:06:42] Speaker 03:
The key issue here is that they simply haven't filed any of the paperwork.

[01:06:46] Speaker 03:
They haven't filed the application.

[01:06:48] Speaker 03:
But your position is they can.

[01:06:49] Speaker 03:
That they can, yes, correct.

[01:06:52] Speaker 04:
But that would be filed.

[01:06:53] Speaker 04:
That would not be approved.

[01:06:55] Speaker 04:
I mean, the way they're reading approved, it might refer to a preact approval, and you reject that.

[01:07:00] Speaker 05:
Well, wait, but wouldn't it be adjudicated when they apply?

[01:07:03] Speaker 04:
you're reading approved after the act.

[01:07:10] Speaker 03:
Well.

[01:07:11] Speaker 03:
Well, let me just say it to a certain extent, necessarily the

[01:07:18] Speaker 03:
You can't have something that's approved until after it's been filed.

[01:07:21] Speaker 03:
Like in a sequence of time, something is always filed before it is approved.

[01:07:24] Speaker 03:
It wouldn't make sense to say we stamped something approved before it was filed.

[01:07:27] Speaker 05:
But they can rely on the previously approved project you said.

[01:07:30] Speaker 05:
I thought you previously said that in this argument.

[01:07:32] Speaker 03:
Well, they're not barred from applying.

[01:07:37] Speaker 03:
They can apply.

[01:07:39] Speaker 05:
And could they possibly be approved based on the project that previously

[01:07:45] Speaker 05:
was the underlying project for the pre RIA.

[01:07:49] Speaker 03:
Yes, they don't need to receive designation.

[01:07:53] Speaker 03:
They've already been designated.

[01:07:54] Speaker 03:
They just need to file the I-956F to say that the project is

[01:07:59] Speaker 03:
a infrastructure project and they need to submit the business plan so that the agency can review it and make a determination.

[01:08:05] Speaker 03:
So it can be approved even if it was previously approved?

[01:08:07] Speaker 03:
Correct, correct.

[01:08:08] Speaker 04:
But there is a slightly, you say they don't need to be re-approved, but they kind of do because they're approved as a project, but now they need to be approved as an infrastructure project.

[01:08:19] Speaker 04:
It's kind of an extra check mark.

[01:08:21] Speaker 03:
Well, they were originally designated as a regional center and whether that

[01:08:28] Speaker 03:
was the subject of the bearing litigation, and that's really not before the court.

[01:08:32] Speaker 03:
There's no question that DVRC is a regional center.

[01:08:36] Speaker 03:
We're not disputing that.

[01:08:37] Speaker 03:
What we're saying is they have to file the correct paperwork to get a determination as to whether or not they're an infrastructure project.

[01:08:43] Speaker 04:
Right.

[01:08:43] Speaker 04:
That was what I was saying.

[01:08:44] Speaker 02:
OK.

[01:08:45] Speaker 04:
You're agreeing with that.

[01:08:47] Speaker 02:
Can I see if I'm following what I think is part of your argument?

[01:08:53] Speaker 02:
They have a reading of the statute about

[01:08:59] Speaker 02:
whether the word approved is referring to projects approved before the statute or merely projects approved after the statute.

[01:09:09] Speaker 02:
You disagree with that reading of the statute.

[01:09:13] Speaker 02:
You have stated that disagreement on your website.

[01:09:19] Speaker 02:
Let's say I think you're correct.

[01:09:22] Speaker 02:
You have a better reading of it.

[01:09:26] Speaker 02:
We can assume, just for the sake of argument, that that is the culmination of agency decision making.

[01:09:37] Speaker 02:
But there still might not be final agency action, because it may be that what you've done has not had any legal consequences.

[01:09:49] Speaker 02:
Correct, that's possible.

[01:09:50] Speaker 02:
And the reason it would, and I'm not endorsing this,

[01:09:54] Speaker 02:
The argument would go, the reason it doesn't have any legal consequences is because the statute required this the day before your answer was posted on the website, the day it was posted, the day after it was posted.

[01:10:11] Speaker 02:
Their legal rights have not changed simply because you have stated on your website

[01:10:19] Speaker 02:
the accurate meaning of the statute.

[01:10:22] Speaker 02:
That is your argument, right?

[01:10:26] Speaker 03:
I think so.

[01:10:26] Speaker 03:
And I think that's what the district court said on page 101 of the joint verdict.

[01:10:30] Speaker 02:
Does that have any limit?

[01:10:34] Speaker 02:
My guess is that there are cases that an agency puts a statement on their website that is an accurate statement

[01:10:47] Speaker 02:
that the statute, an accurate statement of what the statute requires.

[01:10:50] Speaker 02:
And a panel will sometimes say, well, that does change.

[01:10:53] Speaker 02:
That does have legal consequences.

[01:10:55] Speaker 02:
That is final agency action.

[01:10:57] Speaker 02:
Are there cases out there like that?

[01:11:00] Speaker 02:
Yes.

[01:11:03] Speaker 03:
I mean, the decision that was just referenced, POET, said that basically the agency took the position this isn't fine.

[01:11:11] Speaker 02:
What do you see as the limiting principle on the argument that I laid out?

[01:11:16] Speaker 02:
That if you're just summarizing what the statute is, you're not actually creating any legal consequences.

[01:11:23] Speaker 03:
What's the limit to that?

[01:11:25] Speaker 03:
It's a difficult question to answer in the abstract because

[01:11:29] Speaker 03:
Inquiry into finality is a practical inquiry.

[01:11:33] Speaker 03:
So it's more like you know when you see whether or not it has practical implications beyond what the statute says.

[01:11:44] Speaker 03:
So there might be some situation.

[01:11:46] Speaker 03:
It's hard for me to say what is the outer limit.

[01:11:48] Speaker 03:
I can imagine.

[01:11:49] Speaker 02:
Let's say that the statute says the agency is allowed to do x, y, and z. And the agency says on its website, we're going to do y.

[01:11:57] Speaker 02:
I see how that's changed the legal regime a little bit.

[01:12:01] Speaker 02:
Because you might have thought they were going to do X, but instead they said, we're just going to do Y. But if the statute says the agency is required to do X, Y, and Z, and then they say on their statute, we're going to do X, Y, and Z, that seems like legal consequences.

[01:12:16] Speaker 02:
There are no legal consequences.

[01:12:18] Speaker 02:
There are no legal consequences in that hypothetical.

[01:12:20] Speaker 02:
So is that?

[01:12:21] Speaker 02:
That's not final agency action.

[01:12:22] Speaker 02:
Right.

[01:12:22] Speaker 02:
So I mean, is that basically the line you said is kind of

[01:12:26] Speaker 02:
You made it sound like it's something to like, you know, prep.

[01:12:29] Speaker 02:
Every day is a new day, and it's like, I know when I see it, but.

[01:12:33] Speaker 03:
Yeah, I mean, if it's just repeating what the statute already says, then there are no practical consequences.

[01:12:38] Speaker 03:
There are no final agency actions.

[01:12:39] Speaker 03:
I see my time has expired.

[01:12:41] Speaker 03:
Respectfully would ask the court from the decisions.

[01:12:44] Speaker 04:
Let me just ask, does your position on the answer that you just gave to Judge Walker

[01:12:52] Speaker 04:
Does it entail that the appellant's reading of the statute is, in effect, frivolous?

[01:13:00] Speaker 04:
They don't have a plausible alternative reading of the statute, and therefore, there are no consequences because they never had an alternative reading that needs to be decided that the rejection of which affects their client.

[01:13:17] Speaker 03:
Well, if the statute is unambiguous on something, then yes, there's no alternative other than to apply, even if people disagree about the meaning of the statute, because you can have a disagreement as to an unambiguous provision of statute.

[01:13:32] Speaker 04:
If you responded to the filed or approved saying, well, there does seem to be some surplusage there, you didn't take the position that what that means is that the secretary can either treat something as an infrastructure project based on a filing before it's been fully approved or after it's been approved, both of those occurring after the act, you didn't take that?

[01:13:54] Speaker 03:
No, no, we didn't.

[01:13:55] Speaker 03:
We said it's unambiguous.

[01:13:57] Speaker 04:
on that point.

[01:13:57] Speaker 04:
Well, that would be unambiguous reading, too.

[01:14:00] Speaker 04:
You just have a reading that says, yeah, there's some unexplained belt and suspenders here.

[01:14:04] Speaker 04:
And I'm just curious why.

[01:14:07] Speaker 03:
Why do we think it's unambiguous?

[01:14:10] Speaker 03:
Well, we think.

[01:14:11] Speaker 04:
Why are two words used when your view is that only one really is operative?

[01:14:18] Speaker 03:
So we don't know subjectively why Congress used it.

[01:14:23] Speaker 03:
But our theory is the same.

[01:14:26] Speaker 03:
what the district court suggested as possible.

[01:14:29] Speaker 03:
Previously, under prior regulations, you needed to have an approved application designating a regional center as a regional center before you could file an I-526 petition.

[01:14:41] Speaker 03:
Under the current statute, there was a change.

[01:14:46] Speaker 03:
And that's in subparagraph F. It says that now it just needs to be filed.

[01:14:51] Speaker 03:
And once it's filed, you get a receipt number and then

[01:14:54] Speaker 03:
the individual investors can file petitions.

[01:14:56] Speaker 03:
So that the adding of filed or approved is just kind of a reference to this change in the statute.

[01:15:07] Speaker 03:
Now that might not be correct.

[01:15:09] Speaker 03:
I mean, obviously we don't know that for a fact that that's what the Congress had in mind, but that's a reasonable- So approved is kind of a withered away appendage of an earlier time.

[01:15:21] Speaker 03:
No, I think it emphasizes a change that the Reforming Integrity Act made to the prior practice of the agency.

[01:15:30] Speaker 03:
Under the agency's regulations prior to the enactment of the statute, it had to have an approved application for designation of a regional center.

[01:15:42] Speaker 03:
Now you just need to have, before you could file a petition, now you just need to have a file

[01:15:49] Speaker 03:
application for designation now again in this case the regional centers already been designated so that's not really the issue but but that's one reasonable possibility as to why congress use those those words but that seems to be further support for the appellant sorry to be beating a dead horse here that

[01:16:08] Speaker 04:
Their theory is that, OK, then approved in that context refers to the prior practice, because now it only needs to be filed.

[01:16:15] Speaker 04:
So post-act, file and get a number.

[01:16:19] Speaker 04:
And the fact that they're referring also to approved projects means those ones back when you had to have an approved project.

[01:16:26] Speaker 03:
And just to be clear, it's filed or approved business plan.

[01:16:30] Speaker 03:
It doesn't use the term product.

[01:16:31] Speaker 03:
I know I've done the same thing here in oral argument.

[01:16:36] Speaker 03:
I just want to make sure we're talking about.

[01:16:37] Speaker 04:
That's helpful.

[01:16:38] Speaker 04:
Thank you.

[01:16:38] Speaker 03:
Yeah.

[01:16:40] Speaker 03:
So that is their theory of the case.

[01:16:42] Speaker 03:
We don't think that makes sense for the reasons we set out in our complaint.

[01:16:50] Speaker 03:
Thank you.

[01:17:00] Speaker 06:
Thank you, Your Honors.

[01:17:01] Speaker 06:
I have just a couple points I'd like to make.

[01:17:04] Speaker 06:
One is just whether something was a policy was actually made by the website posting in the policy manual.

[01:17:11] Speaker 06:
I think it's an important question.

[01:17:12] Speaker 06:
You've raised it.

[01:17:13] Speaker 06:
I would direct the court's attention to A-64.

[01:17:16] Speaker 06:
So that's the Joint Appendix at 64, which includes that's the word says USCIS, the language you've already been describing in the policy manual, determines whether a project meets the definition of infrastructure project

[01:17:30] Speaker 06:
during adjudication of the form I-956F.

[01:17:35] Speaker 06:
That's the policy.

[01:17:37] Speaker 06:
And then they have a footnote there, 81, and that goes back to the provision of the statute.

[01:17:43] Speaker 06:
What they're citing is the part of the statute, the RA that says, the Secretary of Homeland Security shall determine whether a specific capital investment project meets the definition of infrastructure project set forth in subparagraph D. What the statute says

[01:17:58] Speaker 06:
is that the Secretary of Homeland Security shall make a determination as to whether a project is an infrastructure project.

[01:18:04] Speaker 06:
What the policy says is that they will make it at the time of an adjudication of a Form 956F, which that form is the application for a post-RIA investment project.

[01:18:15] Speaker 06:
That's a new form that was not a form available before the RIA.

[01:18:19] Speaker 06:
And so I think it's, I appreciate your questions earlier, Judge Pan.

[01:18:21] Speaker 06:
What is the policy?

[01:18:22] Speaker 06:
The policy is that USCIS will not make an infrastructure project determination

[01:18:28] Speaker 06:
with respect to already approved plans.

[01:18:30] Speaker 06:
That is the policy.

[01:18:32] Speaker 06:
The policy has manifested itself.

[01:18:33] Speaker 06:
If we called them up and they told us that, that would be the policy.

[01:18:36] Speaker 06:
The way they've expressed that policy is through this language.

[01:18:40] Speaker 05:
But I think opposing counsel just said that if you reapplied, they would consider that previously.

[01:18:44] Speaker 06:
I find that to be frankly offensive as a suggestion, both because this litigation has been going on for well over a year now.

[01:18:51] Speaker 06:
I look back at the motion to dismiss at the district court level.

[01:18:53] Speaker 06:
We were told that this was an interpretive rule, not a legislative rule, and it wasn't final agency action.

[01:18:58] Speaker 06:
And that website post can't be final agency action.

[01:19:00] Speaker 06:
No one ever told us to file any form.

[01:19:03] Speaker 06:
Now, in the opposing refund appeal, they do have that reference that you all heard about during my opponent's presentation.

[01:19:09] Speaker 06:
And they have a footnote saying, to be sure, you have to actually meet the requirements.

[01:19:13] Speaker 06:
We have every reason to believe.

[01:19:14] Speaker 06:
We're not here for fun.

[01:19:15] Speaker 06:
We're here because we have a real stake in this.

[01:19:17] Speaker 06:
Because we know if we file that form, it's going to be denied.

[01:19:20] Speaker 06:
Their view is that we have to have a project that meets the post RIA definition.

[01:19:26] Speaker 06:
to be approved.

[01:19:27] Speaker 06:
And we don't need that.

[01:19:28] Speaker 06:
We were a pre RIA approved project.

[01:19:30] Speaker 06:
We are an infrastructure project.

[01:19:32] Speaker 06:
Our investors invested 500, not 800.

[01:19:34] Speaker 05:
Their position.

[01:19:35] Speaker 05:
Does that mean that their policy is wrong or just that you don't qualify because your particular project ended?

[01:19:42] Speaker 06:
I think that I think it's two things.

[01:19:45] Speaker 06:
They've made a policy determination with respect to not approving, not issuing infrastructure project determinations for already approved projects.

[01:19:52] Speaker 06:
That's the policy, and we would fail under that.

[01:19:55] Speaker 05:
But the money is a separate thing that you would fail under anyway.

[01:19:57] Speaker 05:
We'd fail both.

[01:19:57] Speaker 05:
It could just be that you're not eligible for this reserved visa.

[01:20:01] Speaker 05:
We are eligible.

[01:20:01] Speaker 05:
Because you don't meet the qualification from the statute.

[01:20:06] Speaker 06:
We do.

[01:20:07] Speaker 06:
Again, we talked about the grandfathering provisions, so you have to understand our position with respect.

[01:20:11] Speaker 06:
In 1154, our people are waiting in the waiting room.

[01:20:15] Speaker 06:
Congress, it's like, I think an analogy might be of the CARES Act.

[01:20:18] Speaker 06:
Congress says, give $1,200 subsidy to every person.

[01:20:21] Speaker 06:
The agency says, we'll do that for people at the time that they applied for it.

[01:20:24] Speaker 06:
And some people had already applied at the time they submitted their taxes.

[01:20:28] Speaker 06:
Some people already submitted their taxes that year.

[01:20:31] Speaker 06:
Therefore, they didn't get to get the subsidy.

[01:20:34] Speaker 06:
The government can decide to give new benefits to already existing people.

[01:20:37] Speaker 06:
That's not a problem.

[01:20:38] Speaker 06:
That's not a retroactivity problem here.

[01:20:40] Speaker 05:
I agree with that.

[01:20:41] Speaker 05:
It's just, it seems that there are additional qualifications that perhaps your clients just don't need.

[01:20:46] Speaker 06:
I think the qualification is that they have approved petition.

[01:20:49] Speaker 06:
They have that and that they've invested in infrastructure project, a determination that they will not make.

[01:20:52] Speaker 06:
If they make that determination, if they just had a form saying for your prior approved, for pre-RIA approvals, please submit 956Z and we can show them that we had an infrastructure project.

[01:21:03] Speaker 06:
The USCIS said in approving our project that it was an infrastructure project and we could take that tomorrow and all the people with the 526 is approved could get their visas.

[01:21:11] Speaker 06:
The problem is that's not their position.

[01:21:13] Speaker 05:
Except for the $800,000.

[01:21:14] Speaker 06:
But I hope I convince you that that really is an inflation adjustment.

[01:21:17] Speaker 06:
That is not that.

[01:21:18] Speaker 06:
And I really ask you to read that part of the statute.

[01:21:21] Speaker 05:
I guess so.

[01:21:21] Speaker 05:
I just feel like all of this we're kind of getting ahead of ourselves because.

[01:21:26] Speaker 05:
there's no agency record on any of this, like what they would actually do.

[01:21:30] Speaker 06:
I think this is what the, I appreciate your points.

[01:21:32] Speaker 06:
I don't want to argue.

[01:21:33] Speaker 06:
It's more, this is what the APA was made for.

[01:21:34] Speaker 06:
When an agency makes a consequential determination of policy that affects the regulated community in a clear way, we could file forms all day that would be denied and come in that way where we can challenge a policy.

[01:21:44] Speaker 06:
And I think that that, from the beginning of this case, we've made clear why we think this is a final agency action.

[01:21:48] Speaker 06:
We've had nothing but shifting arguments on the other side as to what it is.

[01:21:52] Speaker 06:
This is teed up for the court in a way that's,

[01:21:54] Speaker 06:
and we are the ones that have an explanation of what approved means, they don't.

[01:21:59] Speaker 06:
That whole response that they were giving to you, Judge Pillard, about this being about some change in process, there was no change in process.

[01:22:07] Speaker 06:
People could always apply for their 526s pending the business plan being filed or approved.

[01:22:12] Speaker 06:
So this is just obfuscation on the other side as to what approved means.

[01:22:16] Speaker 06:
We have a meaning, they don't, and in that case, we should win the statutory interpretation argument, and it's one of real moment, and that's why we're here.

[01:22:24] Speaker 04:
But you don't dispute that there is some supplemental determination USCIS would have to make to confirm that the SEPTA project was an infrastructure project, which is a new category under the RIA.

[01:22:38] Speaker 06:
Correct.

[01:22:38] Speaker 06:
And I think an agency faithfully interpreting the statute, giving meaning to all the words, would have put a form up on its website, 956 whatever, and would say for people that want to have their prior projects approved, there's no form that is for that.

[01:22:53] Speaker 04:
And I took Mr. Goldman to be saying, well, there's a check box on 956F where you can say.

[01:23:01] Speaker 06:
That's for new projects.

[01:23:02] Speaker 04:
But you could say, fill in all the things that ask for information, C, prior, C, prior, C, prior.

[01:23:08] Speaker 04:
Check that box.

[01:23:09] Speaker 04:
Boom.

[01:23:11] Speaker 06:
I guess anyone can fill out any form and send it in.

[01:23:13] Speaker 06:
It's a brown peg in a square hole.

[01:23:14] Speaker 06:
And they have voluminous instructions, none of which suggest that that's appropriate.

[01:23:19] Speaker 06:
And look, they made clear both on the website posting, which I agree is a little oblique, but their position in this case is that prior approvals don't count.

[01:23:27] Speaker 06:
And I guess they've changed that here at argument.

[01:23:29] Speaker 06:
But we have no reason to believe that that would be granted.

[01:23:33] Speaker 06:
But in any event, we're here now with a final agency action.

[01:23:36] Speaker 06:
We're here now with an argument that's contrary to law.

[01:23:39] Speaker 06:
And all we want would be someone to make the infrastructure policy project determination so that our people can have access to the reserve visas that will, again, expire soon.

[01:23:48] Speaker 04:
Well, in the meantime, you've given you something to talk to them about to try to hasten approval of your.

[01:23:54] Speaker 06:
Well, I mean, I think that's just on that note, by the way, it's not that we brought this because we were trying to avoid a process.

[01:24:01] Speaker 06:
There was not a process.

[01:24:02] Speaker 06:
There's not a form.

[01:24:03] Speaker 06:
And that's why we brought this action.

[01:24:04] Speaker 06:
They never disputed that for the entire time we were in district court, just to be clear.

[01:24:08] Speaker 06:
But also, we're here now because this is of consequence to people in their lives.

[01:24:17] Speaker 02:
state law diversity case, and it said $80,000 is in dispute.

[01:24:24] Speaker 02:
That's more than the $75,000 threshold that was decided in 1996.

[01:24:29] Speaker 02:
Do you think we should dismiss for lack of jurisdiction because $80,000 today is worth less than $75,000 in 1996?

[01:24:37] Speaker 06:
I'm not sure if there's a law on whether, like, can you kind of

[01:24:45] Speaker 06:
grow into diversity jurisdiction?

[01:24:47] Speaker 06:
Is that what you're suggesting?

[01:24:49] Speaker 02:
I'm saying ACME companies sues beta companies.

[01:24:53] Speaker 02:
Oh, they meet the requirements at the time.

[01:24:55] Speaker 02:
They sue in 2024.

[01:24:57] Speaker 02:
Yeah.

[01:24:57] Speaker 02:
And they say, there's $80,000 in dispute, so we clear the $75,000 threshold.

[01:25:04] Speaker 02:
This court has diversity jurisdiction.

[01:25:06] Speaker 02:
Could we come back and say, no, we actually lack diversity jurisdiction?

[01:25:10] Speaker 02:
Because it's true you have $80,000, and it's true Congress said there was a minimum $75,000.

[01:25:17] Speaker 02:
But it said that in 1996.

[01:25:18] Speaker 02:
And $80,000 today is worth much less than $75,000 was worth in 1996.

[01:25:30] Speaker 06:
I think you have to apply the statutory threshold that Congress set.

[01:25:33] Speaker 06:
But I think here that's exactly what our point is, is that we met the statutory threshold at the time the petitions were granted.

[01:25:39] Speaker 02:
You want to get a benefit that Congress has said will go to people who have put up $800,000 and you haven't put up $800,000 and you say, well, we should get credit for having done $800,000 because we did $500,000 when only 500 was required and 500 at the time Congress decided to require it is now worth it.

[01:26:06] Speaker 06:
I understand your point.

[01:26:07] Speaker 06:
It seems like you may not be sympathetic to our argument on this front, but I just would respectfully say it would be different if we were in here saying that the amount is now tomorrow.

[01:26:14] Speaker 06:
The Congress clearly said to get a reserve visa going forward, you must invest $800,000 going forward.

[01:26:19] Speaker 04:
But isn't your point, we filed with $80,000 when the amount in controversy was $75,000?

[01:26:27] Speaker 04:
I think so.

[01:26:29] Speaker 04:
And our case is still pending when Congress raises it to $150,000.

[01:26:33] Speaker 04:
If our case is still pending,

[01:26:35] Speaker 04:
we don't have to file another, we don't have to submit another $70,000 to meet today's amount of controversy because when we filed, we met it done.

[01:26:44] Speaker 06:
My math was worse than yours and that was a better answer than mine.

[01:26:47] Speaker 06:
But yes, that is my point.

[01:26:48] Speaker 06:
I think the point though is that we're not trying to read into like, we're not saying we're here now and we invested 600, but you should count it as 800 because it's inflation.

[01:26:55] Speaker 06:
My only point was like, we have to understand what was the 800 doing.

[01:26:58] Speaker 06:
And I think the district report through no

[01:27:00] Speaker 06:
Bad faith just misunderstood that as a condition to the new visa as opposed to just simply the inflation adjustment in this provision.

[01:27:06] Speaker 06:
Meanwhile, reserve visas are allocated in this provision.

[01:27:09] Speaker 06:
And then over here, it says make the determination.

[01:27:11] Speaker 02:
And Judge Pillard, what Judge Pillard just said may be the perfect way to read a statute.

[01:27:18] Speaker 02:
I think that's different than saying, well, we should care about whether there's been inflation between 1991

[01:27:26] Speaker 06:
Just to be clear, I'm not making a generalized inflation argument.

[01:27:28] Speaker 06:
My only point is to understand what the $800,000 is and whether we're trying to cheat the system here by not paying $300,000 more.

[01:27:35] Speaker 06:
And respectfully, my point is that that was not supposed to be a higher threshold now to get the new visa.

[01:27:40] Speaker 06:
That was a correction for inflation generally for the priority visas.

[01:27:45] Speaker 02:
You actually probably benefited from the fact that $500,000 in 1991 or whatever year

[01:27:54] Speaker 02:
that was originally set was actually worth a lot less than... We know it was worth $650 present dollars for the people in our case.

[01:28:09] Speaker 02:
A lot more, rather, than it was when you invested $500,000 in 2012.

[01:28:15] Speaker 06:
I think the point of the inflation point was just to really kind of debunk the notion that somehow, if it would be a different statute altogether, if the Congress had said, we believe that you have to buy in with a higher amount to get these special visas,

[01:28:24] Speaker 06:
And therefore, we're doing that.

[01:28:25] Speaker 06:
That is not the statute Congress wrote.

[01:28:27] Speaker 06:
The statute Congress wrote said we were adjusting the amount of buying in for both special and non-special visas generally.

[01:28:34] Speaker 06:
We also are making reserve visas available.

[01:28:36] Speaker 06:
and you should make infrastructure project determinations for filed and approved.

[01:28:40] Speaker 06:
So we're not.

[01:28:41] Speaker 04:
I mean, your clients are in the non-special visa queue, and they have priority date in that.

[01:28:48] Speaker 04:
And under the RIA, the investment amount for that has gone up to over a million dollars.

[01:28:53] Speaker 04:
And nobody's arguing that they're disqualified because they haven't paid a supplement.

[01:28:57] Speaker 06:
That's a great point.

[01:28:58] Speaker 06:
Yes.

[01:28:58] Speaker 06:
So to be clear, we're not really going to, again, this is maybe our fault, too, in the brief.

[01:29:01] Speaker 06:
We're using the line.

[01:29:02] Speaker 06:
I know what analogy to use.

[01:29:04] Speaker 06:
We are in a waiting room.

[01:29:05] Speaker 06:
So it's not like we're trying to like jump the queue and go to the other queue.

[01:29:08] Speaker 06:
We don't have any, we are waiting for a visa bulletin that has our date.

[01:29:11] Speaker 06:
At that point, we can then apply and be in a line.

[01:29:13] Speaker 06:
So right now we are in a massive waiting room waiting for- You're in a line in the sense of the priority date.

[01:29:18] Speaker 06:
Correct, but we're not, right, but we haven't made that application yet.

[01:29:22] Speaker 06:
We make the application.

[01:29:23] Speaker 06:
So we wait for whatever visa is available to us, we will apply for that.

[01:29:27] Speaker 06:
And so we're not like in one line.

[01:29:30] Speaker 06:
Thank you.

[01:29:31] Speaker 04:
Thank you.

[01:29:32] Speaker 04:
Thank you all for.

[01:29:34] Speaker 04:
bearing with us as we have so many questions today.

[01:29:39] Speaker 04:
Case is submitted.