UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LINHONG LIU,
Plaintiff, Case No. 1:25-cv-2855 (JMC)
v.
MARKWAYNE MULLIN, in his official
capacity as Secretary of Homeland Security, et
al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Linhong Liu sues seeking to overturn the United States Citizenship and
Immigration Services’ (USCIS) denial of her EB-5 investor visa petition. She names as Defendants
Secretary of Homeland Security Markwayne Mullin, Director of USCIS Joseph Edlow, the Chief
of the Immigrant Investor Program Office (Program Office) Alissa Emmel, and USCIS.1 Liu
contends that the denial of her EB-5 visa petition was arbitrary and capricious in violation of the
Administrative Procedure Act (APA). Defendants have moved to dismiss the action for lack of
subject matter jurisdiction. ECF 10. They argue that a recent amendment to the Immigration and
Nationality Act (INA) stripped federal courts of jurisdiction over investor visa determinations until
the visa applicant has exhausted all administrative appeals, which they contend Liu failed to do.
For the reasons below, the Court agrees it lacks jurisdiction. Accordingly, the Court will GRANT
the Government’s motion to dismiss for lack of subject matter jurisdiction.
1
Pursuant to Federal Rule of Civil Procedure 25(d), Defendant Markwayne Mullin has been substituted for former defendant Kristi Noem.
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I. BACKGROUND
Congress amended the INA in 1990 to create a new preference allocation of immigrant
visas for noncitizens who invest in job-creating enterprises in the United States (EB-5 visas).2
See Immigration Act of 1990, Pub. L. No. 101-649, § 121(b)(5), 104 Stat. 4978, 4989 (codified
at 8 U.S.C. § 1153(b)(5)). The EB-5 investor program is administered by USCIS and the State
Department. Del. Valley Reg’l Ctr., LLC v. U.S. Dep’t of Homeland Sec., 106 F.4th 1195, 1198
(D.C. Cir. 2024). To qualify for an EB-5 visa, a foreign national must invest lawfully obtained
capital in a new commercial enterprise (NCE) that “will benefit the United States economy by
creating full-time employment” for at least ten U.S. workers. 8 U.S.C. § 1153(b)(5)(A)(ii). After
making the qualifying investment, the foreign national must file a petition with USCIS—titled
Form I-526 Immigrant Petition by Alien Investor (I-526 petition)—“for classification as an
approved investor.” Da Costa v. Immigr. Inv. Program Off., 80 F.4th 330, 336 (D.C. Cir. 2023).
The I-526 petition is “one of the first steps to becoming a lawful permanent resident.” Mukkavilli
v. Jaddou, No. 22-cv-2289, 2023 WL 4029344, at *2 (D.D.C. June 15, 2023), aff’d, No. 23-5138, 2024 WL 1231346 (D.C. Cir. Mar. 22, 2024).
In March 2022, Congress passed the EB-5 Reform and Integrity Act (RIA), which
amended various aspects of the EB-5 visa process. See Pub. L. No. 117-103, div. BB, 136 Stat.
49, 1070 (2022) (codified at 8 U.S.C. § 1153(b)(5)). Relevant to the instant case, Section 103
added a new provision to the INA that provides for “administrative appellate review” by
USCIS’s Administrative Appeals Office (Appeals Office) and bars judicial review of agency
determinations involving the EB-5 visa process if those administrative remedies have not been
2
Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.
2
exhausted. See id., 136 Stat. at 1097–98 (codified at 8 U.S.C. § 1153(b)(5)(P)). The new
jurisdictional bar states: “[N]o court shall have jurisdiction to review a determination under this
paragraph until . . . the alien investor has exhausted all administrative appeals.” 8 U.S.C.
§ 1153(b)(5)(P)(ii).
In 2015, Liu filed an I-526 petition with USCIS, seeking to prove her eligibility for an
EB-5 visa based on a half-million-dollar investment in the United States. ECF 1 ¶¶ 1–2. Liu
received assistance from an intermediary, Xingguo Wei (Exchanger), to exchange her funds from
the Chinese renminbi into U.S. dollars and transfer them to the United States. Id. ¶ 36. On
September 10, 2024, USCIS’s Program Office issued a Notice of Intent to Deny (NOID) Liu’s
petition and requested more information about her investment. Id. ¶ 24. On October 16, 2024,
Liu responded to the NOID with the submission of additional evidence. Id. ¶ 25. Several weeks
later, the Program Office proceeded to deny her petition on December 4, 2024. Id. ¶ 26; ECF 1-2
at 28–43 (Liu’s notice of decision). The Program Office determined that Liu’s investment in the
United States derived from the Exchanger’s U.S. dollars, and that Liu’s supporting evidence was
insufficient to “demonstrate[] by a preponderance of evidence that [the] Exchanger was licensed
to conduct currency exchanges.” ECF 1-2 at 33. The Program Office also asserted Liu failed to
demonstrate that the money “transferred as part of the currency swap from the unlicensed
exchanger derived from lawful means.” Id.; ECF 1 ¶¶ 39–40 (discussing USCIS’s grounds for
denial, including “an insufficient showing that [Liu’s] investment funds were lawfully sourced”
and lack of clarity as to whether “the Exchanger obtained the U.S. Dollars from a lawful
source”).
As part of the Notice, the agency informed Liu of her appeal rights and stated that she
had 33 days from the date of the Notice to file a Form I-290B, Notice of Appeal or Motion. ECF
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1-2 at 28, 43. On January 6, 2025, Liu filed her first Form I-290B, Notice of Appeal or Motion,
requesting that the Program Office reopen or reconsider its denial. ECF 1 ¶ 27. On February 6,
2025, the Program Office dismissed her motion and affirmed the denial of her I-526 petition. Id.
¶ 28; ECF 1-2 at 19–21. The Office asserted that even though she submitted some new
statements and evidence, she failed to provide the specific documents demonstrating that she
obtained her capital through lawful means. Id. at 21–25. Liu then filed another Form I-290B
Motion on March 11, 2025, requesting the Program Office reopen or reconsider its denial. ECF 1
¶ 29. Once again, on April 28, 2025, the Program Office denied her motion. Id. ¶ 30; ECF 1-2 at
3–17. The Program Office found that her motion to reopen and/or reconsider was “untimely
filed,” ECF 1-2 at 6, but concluded that, even considering the additional evidence submitted, Liu
still failed to demonstrate that the funds used were obtained through lawful means. Id. at 6–16.
In each of its I-290B dismissals, the Program Office informed Liu that she had the right
to appeal to USCIS’s Administrative Appeals Office. ECF 1-2 at 16–17, 26. The Appeals Office
conducts de novo review of rejected I-526 petitions and denied motions to reopen or reconsider,
and can “look[] at the record anew” and “address new issues that were not raised or resolved” in
prior decisions. U.S. Citizenship & Immigration Services, AAO Practice Manual §§ 3.2, 3.4,
https://perma.cc/E6UZ-WBBT. Rather than appealing to the Appeals Office, however, Liu
initiated the present action, seeking an order from this Court setting aside the Program Office’s
denial of her I-526 petition. See ECF 1 at 22 (asking this Court to find that USCIS’s denial of her
I-526 was “erroneous” and “[i]ssue an order reversing the denial of her petition”); see also ECF
13 at 8–9 (Liu acknowledging that she did not appeal to the Appeals Office).
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II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(1), a court must dismiss a case over which it
lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b). “Federal courts are courts of limited
jurisdiction,” possessing “only that power authorized by Constitution and statute.” Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Jurisdictional limits “are especially
important in the agency review context . . . .” Humane Soc’y of the U.S. v. McCarthy, 209 F.
Supp. 3d 280, 283 (D.D.C. 2016) (citing Am. Petroleum Inst. v. SEC, 714 F.3d 1329, 1332 (D.C.
Cir. 2013)). When reviewing a motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1), the Court “assume[s] the truth of all material factual allegations in the complaint
and construe[s] the complaint liberally, granting plaintiff the benefit of all inferences that can be
derived from the facts alleged.” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir.
2011). The Court can also “consider materials outside the pleadings in deciding whether to grant
a motion to dismiss for lack of jurisdiction,” Jerome Stevens Pharms. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005), including “materials attached as exhibits to the [c]omplaint.” Chen v.
Rodriguez, 200 F. Supp. 3d 174, 176 n.1 (D.D.C. 2016). “The plaintiff bears the burden of
establishing jurisdiction by a preponderance of the evidence.” Bagherian v. Pompeo, 442 F.
Supp. 3d 87, 91 (D.D.C. 2020). Courts must presume that a “cause lies outside [their] limited
jurisdiction” unless the party asserting jurisdiction establishes otherwise. Kokkonen, 511 U.S. at
377.
III. ANALYSIS
Defendants move to dismiss this action under Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction. ECF 10 at 1. Under the RIA’s new jurisdictional bar,
Defendants argue, this Court cannot consider Liu’s challenge because she failed to appeal the
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denial of her I-526 petition to the Appeals Office. Id. at 2. Liu responds that the RIA’s
exhaustion bar does not apply to her because the RIA was passed after her petition was filed—
although before her petition was denied—and it would be legally erroneous to apply the
exhaustion requirement “retroactively.” ECF 13 at 3. The Court agrees with Defendants that Liu
was required to comply with the RIA’s exhaustion provisions and dismisses Liu’s complaint for
lack of subject matter jurisdiction.
A. Statutory Exhaustion Under the RIA
In 2022, Congress enacted the RIA and included a new administrative exhaustion
requirement covering EB-5 visa petitions. The clear text of the Act requires petitioners like Liu
to proceed through the administrative exhaustion process before filing suit in federal court.
Specifically, 8 U.S.C. § 1153(b)(5)(P)(i) instructs USCIS to “provide an opportunity for an
administrative appellate review” by the Appeals Office of any “petition by an alien investor for
status as an immigrant under this paragraph.” Subsection (ii) then states that “no court shall have
jurisdiction to review a determination under this paragraph until . . . the alien investor has
exhausted all administrative appeals.” Id. § 1153(b)(5)(P)(ii).
Here, it is undisputed that Liu did not appeal the denial of her I-526 petition to the
Appeals Office before initiating this action.3 Although she filed two Form I-290B motions to
reopen or reconsider with the Program Office, both of which that Office dismissed, she declined
to seek administrative appellate review of that Office’s decisions. See ECF 1 ¶¶ 27–30 (stating
that Liu filed I-290B motions “requesting USCIS to reopen and reconsider her I-526 petition”);
3
Liu argues that “the failure to exhaust administrative remedies is an affirmative defense that the defendant bears the burden of pleading and proving.” ECF 13 at 4 (quoting Mackinac Tribe v. Jewell, 87 F. Supp. 3d 127, 138 (D.D.C. 2015)). In Mackinac Tribe, however, the court was evaluating a nonjurisdictional exhaustion requirement under Rule 12(b)(6). In contrast, in this case, the Court must evaluate whether Liu has established a basis for subject matter jurisdiction. See supra Section II.
6
ECF 10 at 2 (“While Plaintiff filed Motions to Reopen/Reconsider the I-526 petition denial with
the Immigrant Investor Program Office . . . , Plaintiff failed to appeal the decision to the
Administrative Appeals Office, which must hear appeals on EB-5 determinations.”); see ECF 13
at 8–9 (Plaintiff acknowledging that she did not appeal to AAO).
Citing the general principle against retroactivity, Liu argues that the RIA’s exhaustion
mandate does not apply to her suit because her petition was filed in 2015, prior to the statute’s
enactment in 2022. ECF 13 at 3. The Court acknowledges the general presumption that courts
“read laws as prospective in application unless Congress has unambiguously instructed
otherwise.” Cox v. Kijakazi, 77 F.4th 983, 991 (D.C. Cir. 2023). But here, the Court does not
even need to parse whether Congress intended the RIA’s jurisdictional bar to apply retroactively
because the statute applies prospectively in Liu’s case.
The RIA states that courts lack jurisdiction to “review a determination” made on “a
petition by an alien investor” until “the alien investor has exhausted all administrative appeals”
of that determination. 8 U.S.C. § 1153(b)(5)(P)(i), (ii). The key date, then, is the date of the
agency’s “determination,” not the date the investor filed the petition. Although Liu filed her I526 petition before the statute’s enactment, the Program Office issued the denial of her petition,
i.e., the specific determination that Liu now challenges, on December 4, 2024, well after the RIA
went into effect in 2022. The Court therefore agrees with Defendants that the RIA’s
jurisdictional bar operates prospectively here based on the date of the agency’s “determination.”
8 U.S.C. § 1153(b)(5)(P)(i); ECF 14 at 3. Accordingly, Liu has failed to establish the basic
premise of her legal argument—that the RIA is being applied retroactively—and her objections
to the exhaustion requirement fall flat.
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Other courts in this district have reached the same conclusion in cases with similar facts.
See Cai v. Immigr. Inv. Program Off., No. 25-cv-1289, 2026 WL 713582, at *5 (D.D.C. Mar. 15,
2026); Maharaj v. Edlow, No. 25-cv-509, 2026 WL 1362433, at *2 (D.D.C. May 15, 2026)
(holding that the RIA’s exhaustion bar applies to a 2025 denial of a petition filed in 2017). For
example, in Cai, another court in this district assessed the retroactivity arguments made by an
EB-5 investor. See Cai, 2026 WL 713582, at *5. There, a foreign investor filed an I-526 petition
in 2016, and the Program Office denied his petition in 2024. Id. at *2. Mirroring Liu’s procedural
path, the applicant filed a Form I-290B Notice of Appeal or Motion, requesting the Program
Office reopen or reconsider its denial. Id. When the Program Office denied his motion, he
initiated a lawsuit seeking to set aside the denials under the APA rather than appealing to the
Appeals Office. Id. The investor argued that the RIA’s new jurisdictional bar did not apply to
him because he filed his I-526 petition before the RIA’s enactment in 2022. Id. at *3.
The court rejected that argument, stating the RIA’s “jurisdictional bar regulates not the
filing of an I-526 petition, but the failure to exhaust administrative appeals prior to seeking
judicial review.” Id. at *4; Maharaj, 2026 WL 1362433, at *3 (explaining that the jurisdictional
bar “constrains judicial review of agency EB-5 determinations[] and thus has legal force after
USCIS reaches a determination”). Cai received the decision from USCIS on his petition after the
RIA was enacted, and his failure to appeal was thus “post-enactment conduct” that occurred
“two years after the RIA was enacted.” Cai, 2026 WL 713582, at *4. Therefore, because the
Program Office “did not issue the determinations Mr. Cai . . . challenge[d] until after the RIA
went into effect in 2022,” the jurisdictional bar was not retroactively applied. Id. at *3. Sister
courts in other districts have also adopted this approach. See, e.g., Pac. Nw. EB-5 Reg’l Ctr. v.
Noem, No. 25-cv-597, 2025 WL 2645656, at *7 (W.D. Wash. Sept. 15, 2025) (holding that “the
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RIA’s exhaustion requirement addresses review of agency determinations, rather than review of
petitions, and thus is appropriately applied to any post-RIA agency determination”); Desai v.
Emmel, 821 F. Supp. 3d 1046, 1056 (N.D. Cal. 2026) (same).
Liu attempts to fight this straightforward application of the RIA in two ways.4 First, she
argues that administrative exhaustion is not required because USCIS regulations fail to explicitly
mandate an appeal to the Appeals Office. See ECF 13 at 3 (citing Darby v. Cisneros, 509 U.S.
137 (1993)). That argument misunderstands the relevant doctrine. In Darby, the Supreme Court
held that federal courts lack the authority under the APA to impose their own administrative
exhaustion requirements where Congress and the agency have remained silent. 509 U.S. at 146–
47. In other words, exhaustion is a prerequisite to judicial review if—and only if—it is required
by statute or by an agency rule. Id. Darby did not, however, create a double-hurdle where both
Congress and the agency must act. Here, as discussed above, Congress explicitly mandated
exhaustion in the text of the RIA. The agency’s silence in its regulations does not somehow
undermine that statutory requirement—the agency cannot override or nullify an express
congressional command. Therefore, Darby does not apply here because the Court is interpreting
a statutory exhaustion requirement, not inventing one of its own.
Second, Liu contends that USCIS policy guidance contradicts the agency’s litigation
position and demonstrates that applying the RIA to her case operates retroactively. ECF 13 at 10.
Specifically, she relies on language in the USCIS Policy Manual indicating that certain
provisions apply only to petitions filed after March 15, 2022, the RIA’s enactment date, or
4
Plaintiff also briefly asserts that an appeal would have been futile because the Appeals Office’s “reversal rates” on “source of funds” legal questions is low. ECF 13 at 9. While courts can recognize futility as an exception to “judgemade exhaustion doctrines,” the Supreme Court has instructed that “a court may not excuse a failure to exhaust” when Congress has “set[] the rules” and established a “mandatory exhaustion regime[],” “foreclosing judicial discretion.” Ross v. Blake, 578 U.S. 632, 639 (2016).
9
“petitions filed on or after May 14, 2022,” the effective date of some of the Act’s provisions.
See, e.g., USCIS Policy Manual, Vol. 6, Part G, Ch. 2, § A.1 & n.1 (discussing substantive
requirements for petition eligibility); § A.4 & nn.52, 58 (discussing lawful source of funds
provisions). However, this language is not directed at the jurisdictional bar, but at substantive
requirements governing approval of visa petitions, including demonstrating job creation and
lawful sources of funds. See id.; see also Maharaj, 2026 WL 1362433, at *3 (distinguishing
statutory provisions that “alter[ed] [USCIS’s] substantive standards for approval” of immigration
petitions from the exhaustion provision that targets “appeals of agency determinations in federal
court”). Thus, while many substantive RIA provisions apply only to later-filed petitions, the
provision governing judicial review applies to appeals of agency “determination[s]” rendered
after the RIA’s effective date. See 8 U.S.C. § 1153(b)(5)(P)(ii); Pub. L. No. 117-103, 136 Stat. at
1100 (providing that the jurisdictional bar “shall take effect on the date that is 60 days after” the
RIA’s enactment). In any event, even if the statute conflicted with the agency’s policy guidance,
the Court could not ignore the statute’s plain language. See Christensen v. Harris Cnty., 529 U.S.
576, 587 (2000) (stating that interpretations contained in policy statements and agency manuals
“lack the force of law”); see also Del. Valley, 106 F.4th at 1198 (holding that certain statements
in the USCIS Policy Manual imposed no legal consequences independent from the RIA).
In sum, because the challenged agency denial in this case occurred after the RIA took
effect, the Court’s application of the RIA’s exhaustion requirement here is entirely prospective.
Liu was required to exhaust USCIS’s administrative appeals process before filing suit in federal
court, and because she did not do so, the Court will dismiss her complaint.
* * *
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For the foregoing reasons, Defendants’ motion to dismiss for lack of subject matter
jurisdiction, ECF 10, is GRANTED, and as a result Plaintiff’s complaint is DISMISSED. A
separate order accompanies this memorandum opinion.
SO ORDERED.
JIA M. COBB
United States District Judge
Date: July 29, 2026
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