Civitas Capital Management, LLC et al v. Mayorkas et al

Memorandum Opinion and Order – Page 1
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CIVITAS CAPITAL MANAGEMENT,
LLC; CMB TEXAS REGIONAL CENTER,
LLC; VISITAR’S BUSINESS ALLIANCE
OF TEXAS REGIONAL CENTER AND DC
PARTNERS, d/b/a Houston EB-5 Regional
Center; INVEST IN THE USA; USA EB5
IMMIGRATION, LLC, d/b/a EB-5 Capital;
CANAM ENTERPRISES, LP; AMERICAN
LIFE INC. REGIONAL CENTER –
SEATTLE, d/b/a Golden Rainbow & Gateway
Freedom Fund; ADVANTAGE AMERICA
NEW YORK REGIONAL CENTER, LLC;
AMERICAN DREAM FUND, LLC; EB-5
NEW YORK STATE, LLC; PG EB5
SPONSER, LLC; PINE STATE
REGIONAL CENTER, LLC; and
ADVANTAGE AMERICA EB-5,
Plaintiffs,
v.
KRISTI NOEM, Secretary, Department of
Homeland Security, et al.,
Defendants.1
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Civil Action No. 3:24-CV-00984-L
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiffs’ Motion for Final Summary Judgment (“Plaintiffs’ Motion”)
(Doc. 	19), 	filed 	on 	September 	16, 	2024; 	and 	Defendants’ 	Cross-Motion 	for 	Summary
Judgment/Opposition to Plaintiffs’ Motion for Summary Judgment (“Defendants’ Cross-Motion”)
(Doc. 21), filed on November 22, 2024. Having considered the legal briefing, applicable law, and
1 Pursuant to Fed. R. Civ. P. 25(d), United States Secretary of Homeland Security Kristi Noem is
automatically substituted for Alejandro Mayorkas; and Director of United States Citizenship and
Immigration Services Joseph B. Edlow is automatically substituted for Ur M. Jaddou.
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Memorandum Opinion and Order – Page 2
recent developments after the close of briefing, Plaintiffs’ Motion and Defendants’ Cross-Motion
are denied without prejudice.
I. 	Factual Background and Procedural History
The United States Citizenship and Immigration Services (UCSIS)—an agency of the
United States Department of Homeland Security (DHS)—is charged with the responsibility to
collect fees for various immigration applications and benefits. See 89 Fed. Reg. 6194, 6195 (Jan.
31, 2024).2 At issue in this case is whether UCSIS properly promulgated a final rule in 2024
restructuring its filing fees for applicants seeking EB-5 visas. An understanding of the EB-5 visa
program and a review of relevant developments after the close of briefing are required to
contextualize the pending motions and the court’s decision.
A. The EB-5 Program
In 1990, Congress amended the Immigration and Nationality Act (INA) to establish the
employment-based, fifth preference immigrant visa program, commonly known as the EB-5 visa
program. See Immigration Act of 1990, Pub. L. No. 101-649, § 121(a), 104 Stat. 4978, 4987–90.
This program provides “employment creation” visas to prospective immigrants seeking to engage
in a new commercial enterprise in the United States. 8 U.S.C. § 1153(b)(5)(A).
A prospective EB-5 investor must first submit a Form I-526 (Immigrant Petition by
Standalone Investor) or a Form I-526E (Immigrant Petition by Regional Center Investor). 8 C.F.R.
§§ 106.2(a)(25), 204.6(a). Upon approval, investors may be eligible to obtain two-year conditional
lawful permanent resident status through adjustment of status within the United States or consular
processing abroad and subsequent admission to the United States. 8 U.S.C. § 1186b(a)(1); 8 C.F.R.
§§ 216.1, 245.2(a)(3).
2 The effect of the notice of proposed rulemaking as to potential changes to this rule is discussed further in
this Memorandum Opinion and Order.
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If granted conditional lawful permanent resident status, during the 90 days before the two-
year period expires, the investor may file a Form I-829 (Petition by Investor to Remove Conditions
on Permanent Resident Status) to remove the conditions on their permanent resident status. 8
U.S.C. § 1186b(d)(2); 8 C.F.R. § 216.6(c). On the Form I-829, the investor must, in general,
demonstrate that he or she has invested the requisite amount of capital over the required period of
time and created the requisite number of jobs. 8 U.S.C. § 1186b(d)(1).
In the EB-5 program, entities may be designated by DHS to serve as “regional centers,”
which pool individual EB-5 investors’ money within certain geographic areas. Id. § 1153(b)(5)(E).
Once designated, a regional center must “[c]ontinue to meet” statutory requirements and
“[p]rovide USCIS with updated information annually, and/or as otherwise requested by USCIS.”
8 C.F.R. § 204.6(m)(6). Regional centers file—and pay fees in connection with—various forms
with USCIS, including application forms to be designated or to make amendments to a designated
regional center (Form I-956), approval applications for each project they sponsor (Form I-956F),
and annual statements (Form I-956G). See 8 U.S.C. § 1153(b)(5)(E), (F), (G); Delaware Valley
Reg’l Ctr., LLC v. DHS, 106 F.4th 1195, 1200 (D.C. Cir. 2024) (discussing USCIS forms).
On March 15, 2022, Congress passed the EB-5 Reform and Integrity Act of 2022 (“RIA”)
to improve the integrity and processing times for EB-5 visas. See Pub. L. No. 117-103, Div. BB,
136 Stat. 49, 1070. As part of RIA, Congress required USCIS to complete a fee study regarding
fees imposed by USCIS onto visa applicants. Based on the fee study results, RIA required USCIS
to create and adhere to new EB-5 application fees and visa applicant processing deadlines. See
Pub. L. No. 117-103 § 106(b). RIA specified that the fee study must be completed by March 15,
2023. It further specified that its provisions did not “require any modification of fees before the
completion” of the fee study. Pub. L. No. 117-103 § 106(f)(1). Pending completion of the fee
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study, USCIS remained responsible for setting fees for all immigration applications and petitions.
See 8 U.S.C. § 1356(m).
Since RIA’s passage, USCIS completed its required biennial review for fiscal years 2022–
2023 and, in this review, determined that its visa application fees were set at levels that did not
fully recover the cost of services USCIS provided. See 89 Fed. Reg. at 6195. In January 2023—
and prior to completion of the fee study—USCIS issued a proposed rule detailing and proposing
adjusted fees for immigration services and visa applications. See U.S. Citizenship and Immigration
Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements,
88 Fed. Reg. 402 (Jan. 4, 2023). On January 31, 2024, after the end of a notice-and-comment
period, but prior to completion of the requisite fee study, USCIS issued the final rule regarding
these fee changes (the “Final Rule”), which is the subject of this civil action. See U.S. Citizenship
and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit
Request Requirements, 89 Fed. Reg. 6194 (Jan. 31, 2024), as corrected, 89 Fed. Reg. 20101 (Mar.
21, 2024) (“Final Rule”).
B. The Instant Lawsuit
After the Final Rule went into effect on April 1, 2024, Plaintiffs filed this lawsuit. See
Compl., Doc. 1. Plaintiffs are owners and operaters of various EB-5 regional centers across the
United States, some of which are located in the Northern District of Texas. Am. Compl. ¶¶ 10-22,
Doc. 6. In the First Amended Complaint, the live pleading, Plaintiffs allege that the EB-5 fees in
the Final Rule constitute unlawful agency action in violation of the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701, et seq.; RIA, Pub. L. No. 117-103, Division BB, 136 Stat. 49 at 1070
(2022) (codified at 8 U.S.C. § 1153(b)(5)); § 286(m) of the Immigration and Nationality Act
(“INA”) (8 U.S.C. § 1356(m)); the Regulatory Flexibility Act (“RFA”); and internal guidelines as
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established by the Office of Management and Budget (“OMB”). See generally Am. Compl., Doc.
6.
C. Post-Briefing Developments
After the close of briefing, Plaintiffs filed a Notice of Supplemental Authority, notifying
the court of Defendants’ publication of a Notice of Proposed Rulemaking (NPRM) on October 23,
2025, to significantly lower filing fees related to EB-5 petitions. Pls.’ Notice 1, Doc. 33; see also
id. at 4-40 (U.S. Citizenship and Immigration Services Employment-Based Immigrant Visa, Fifth
Preference (EB-5) Fee Rule, 90 FR 48516 (proposed Oct. 23, 2025)). Among other things, the
NPRM acknowledges that Defendants failed to complete the EB-5 fee study by the statutory
deadline of March 15, 2023. Id. at 6 (NPRM, 90 FR at 48520 n.18) (“[T]he deadline provided in
section 106(b) [of the EB-5 Reform and Integrity Act of 2022] for promulgation of the regulations
has passed.”).
In addition, on November 18, 2025, Plaintiffs filed a Second Notice of Supplemental
Authority, see Doc. 34, advising the court of a “persuasive authority that is highly relevant to this
case.” Specifically, Plaintiffs notified the undersigned of a November 12, 2025 decision by a
federal district court in the District of Colorado. See Moody v. Noem, 2025 WL 3157554 (D. Colo.
Nov. 12, 2025). In that case, the court held, inter alia, that the “Final Rule’s promulgation of EB-
5 visa fees pursuant to § 106 of the Act violated” the APA. Id. at *11. Rather than invalidate the
Final Rule, as the plaintiffs had requested, the Moody court determined that “a stay of the Final
Rule’s imposition of EB-5 fees—those promulgated and imposed prior to and without the guidance
of § 106’s mandatory fee study—is appropriate.” Id. at *13. The court further noted that:
[T]o the extent such a stay poses any harm to Defendants, this harm is minimal, as
the notice and comment period for a revised fee rule based on the fee study ends
December 22, 2025, and presumably a final rule properly promulgated consistent
[with] § 106 will follow—both bringing the imposition of EB-5 fees into
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Memorandum Opinion and Order – Page 6
accordance with law and, from the Court’s current perspective, likely mooting
Plaintiffs’ claims.
Id. No appeal was taken.
Finally, the court takes judicial notice that, following the ruling in Moody, USCIS reverted
to the EB-5 fee schedule that was previously in effect. See USCIS, Court Order on Partial Stay of
DHS 2024 USCIS Fee Rule (Nov. 18, 2025).3 Further, DHS is working to promulgate an updated
EB-5 fee schedule and has published a notice of proposed rulemaking on that subject. See 90 Fed.
Reg. 48,516 (Oct. 23, 2025). The comment period closed on December 22, 2025. DHS is currently
reviewing the comments. Presumably, as noted by the Moody court, supra, a final rule properly
promulgated will follow—bringing the imposition of EB-5 fees into accordance with law.
II. 	Discussion
On September 16, 2024, Plaintiffs filed their Motion, requested the court enter summary
judgment in their favor and against Defendants on all claims; declare the portion of the Final Rule
concerning EB-5 related petitions unlawful and invalid; (3) declare that Defendants’ action in
publishing the Final Rule is arbitrary and capricious, in violation of, inter alia, RIA and the APA;
(4) enjoin Defendants from implementing and/or enforcing the Final Rule; (5) enjoin Defendants
to comply with RIA and conduct a fee study in compliance therewith within 90 days; (6) order
Defendants to refund fees in excess of those fees that would have been paid pursuant to the fee
schedule in place prior to the Final Rule; and (7) award Plaintiffs their reasonable attorneys’ fees
and costs pursuant to 28 U.S.C. § 2412. Brief in Support of Pls.’ Mot. for Final Summ. J. 41, Doc.
20.
3 See Court Order on Partial Stay of DHS 2024 USCIS Fee Rule (Nov. 18, 2025), available at
https://www.uscis.gov/newsroom/alerts/court-order-on-partial-stay-ofdhs-2024-uscis-fee-rule (last visited
Feb. 25, 2026).
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On November 22, 2024, Defendants filed an opposition to Plaintiffs’ Motion and a cross-
motion for summary judgment. See Defs.’ Cross-Motion, Doc. 21. Defendants argue, among other
things, that Plaintiffs have not proven Article III standing to sue or proven that Defendants’
promulgation of the Final Rule constituted agency action “unlawfully withheld or unreasonably
delayed,” or that the Rule was “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” See generally Brief in Support of Defs.’ Cross-Mot. for Summ. J. /
Opposition to Pls.’ Mot. for Summ. J., Doc. 22.
In light of the recent developments summarized above, all of which took place after
briefing closed, the court, in the exercise of its discretion, determines that the prudent course of
action is to deny the pending motions without prejudice. As noted previously, the court in Moody
has stayed the Final Rule’s imposition of EB-5 fees. See Moody, 2025 WL 3157554, at *11-13.
Challenging the Final Rule’s imposition of EB-5 fees is the gravamen of Plaintiffs’ Amended
Complaint and its Motion. Thwarting that challenge is the entirety of Defendants’ Cross-Motion
and opposition brief. Further, USCIS has reverted to the EB-5 fee schedule that was previously in
effect. See https://www.uscis.gov/newsroom/alerts/court-order-on-partial-stay-ofdhs-2024-uscis-
fee-rule (last visited Feb. 25, 2026). As previously discussed, the comment period on a proposed
updated EB-5 fee schedule closed on December 22, 2025, and DHS is currently reviewing the
comments. Presumably, a final rule properly promulgated will follow—bringing the imposition of
EB-5 fees into accordance with law and likely mooting Plaintiffs’ claims.
In consideration of the unusual posture of this case, to delve into the numerous arguments
presented by the parties in their cross-motions for summary judgment would be a waste of scarce
judicial resources. In addition, because the Final Rule’s imposition of EB-5 fees has been stayed,
and the challenged EB-5 fees are no longer being imposed, any declaration or ruling by the court
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would risk amounting to nothing more than an advisory opinion. The “oldest and most consistent
thread in the federal law of justiciability is that the federal courts will not give advisory opinions.”
Flast v. Cohen, 392 U.S. 83, 96 (1968) (quoting Charles Alan Wright, Federal Courts 34 (1963)).
III. 	Conclusion
Based on the foregoing, the court denies without prejudice Plaintiffs’ Motion for Final
Summary Judgment (Doc. 19), and Defendants’ Cross-Motion for Summary Judgment (Doc. 21).
The court directs the parties to file a joint status report on or before May 1, 2026, addressing the
progress/promulgation of a final rule based on the latest fee study (where the notice and comment
phase ended in December 2025) and whether any issues remain before this court.
It is so ordered this 26th day of February, 2026.
_________________________________
Sam A. Lindsay
United States District Judge
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