UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LYAZAT TOLYMBEKOVA, et al.,
Plaintiff, v. No. 25-cv-295-ZMF U.S. SECRETARY OF STATE MARCO RUBIO, et al.,
Defendant.
MEMORANDUM OPINION
Since January 2024, Plaintiffs’ EB-1A visa applications have been in administrative
processing. Plaintiffs now seek an order to compel Defendants and those acting under them to
immediately issue a final decision on Plaintiffs’ visa applications. See Compl. ¶¶ 51–52, ECF No.
1. In response, Defendants filed the instant motion to dismiss. See Defs.’ Mot. Dismiss, ECF No.
4.
For the reasons set forth herein, the Court will DENY Defendants’ motion.
I. BACKGROUND
A. Legal Background
The Immigration and Nationality Act (INA), codified at 8 U.S.C. § 1101 et seq., governs
the EB-1A visa—an employment-based visa for foreign nationals with extraordinary abilities in
the sciences, arts, education, business, or athletics. See 8 U.S.C. § 1201. If a consular officer
determines that an applicant lacks sufficient information to establish visa eligibility, the officer
may refuse the application under § 221(g) of the INA. See 8 U.S.C. § 1201(g). § 221(g) provides
that:
1 no visa . . . shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa . . . (2) the application fails to comply with the provisions of this chapter, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 1182 of this title, or any other provision of law.
8 U.S.C. § 1201(g).
B. Factual Background
All three plaintiffs completed visa interviews by January 2024. See Compl. ¶¶ 98, 122,
148. Following their interviews, U.S. Citizenship and Immigration Services (USCIS) placed
Plaintiffs’ applications into administrative processing pursuant to § 221(g) of the Immigration and
Nationality Act. See id. Plaintiffs’ applications have remained in administrative processing since
their interviews, a period of at least sixteen months. See id.
Plaintiff Lyazat, a citizen of Kazakhstan, holds a PhD in metallurgy, has published more
than 90 scientific articles, and was named the “Best University Teacher-2020” in Kazakhstan. Id.
¶¶ 88–90. She also holds two patents and two copyright certificates, authored a textbook on
materials science, and is a member of The Minerals, Metals & Materials Society. See id. ¶¶ 90–
91. On September 15, 2023, she submitted a Form I-140 seeking an EB-1A visa as a foreign
national with extraordinary abilities. See id. ¶ 92. USCIS approved the Form I-140 and forwarded
it to the National Visa Center (NVC) for pre-processing. See id. ¶ 94. On November 10, 2023, the
NVC found Plaintiff Lyazat’s application documentarily qualified. See id. ¶ 97. On January 23,
2024, Plaintiff Lyazat completed her visa interview. See id. ¶ 98. USCIS then placed her
application into administrative processing under § 221(g). See id. She was asked to submit
additional documents, including a resumé, which she promptly did by January 31, 2024. See id. ¶
99. Plaintiff Lyazat’s application has been in administrative processing since her interview in
2 January 2024, more than sixteen months ago. See id. ¶ 100. Plaintiff Lyazat’s husband and son are
derivative beneficiaries of Plaintiff Lyazat’s I-140 petition and derivative applicants for E-14 and
E-15 visas. See id. ¶ 93. As such, their applications remain in limbo as long as Plaintiff Lyazat’s
application is in administrative processing.
The in-limbo status of her and her families visa applications has caused Plaintiff Lyazat
severe mental anguish. Because she has been unable to enter the United States, she has been
separated from her daughter, a U.S. citizen, for nearly a decade. See Compl. ¶ 106. Consequently,
she could not attend her daughter’s college graduation nor be present to support her daughter when
she suffered a neck fracture in a car accident in 2024. See id. ¶ 107. Plaintiff Lyazat has also been
separated from her sister, a U.S. resident, since 2016, and was forced to miss her sister’s wedding,
baby shower, gender reveal party, and the birth of her niece. See id. ¶ 108.
Plaintiff Dmitrii is a citizen of Russia and a Project Manager with more than fifteen years
of experience working in construction. See id. ¶¶ 111–113. He has reviewed articles for academic
journals and published articles in trade periodicals. See id. ¶ 114. On March 17, 2022, Plaintiff
Dmitrii submitted a Form I-140 petition seeking an EB-1A visa. See id. ¶ 116. USCIS approved
the Form I-140 and forwarded it to the NVC for pre-processing. See id. ¶ 118. On June 30, 2023,
Plaintiff Dmitrii, his wife, and two children submitted the DS-260 immigrant visa application. See
id. ¶ 120. On August 17, 2023, the NVC found Plaintiff Lyazat’s application documentarily
qualified. See id. ¶ 121. On October 24, 2023, Plaintiff Dmitrii completed his visa interview. See
id. ¶ 122. USCIS then placed his application into administrative processing under § 221(g). See id.
Plaintiff Dmitrii was also asked to submit additional documents, which he did by October 29,
2023. See id. ¶ 123.
3 Plaintiff Dmitrii’s application has been in administrative processing since his interview in
October 2023, more than nineteen months ago. See id. ¶ 124. As a result, Plaintiff Dmitrii’s
livelihood, wellbeing, and career have suffered, as he has been forced to put his family’s plans on
hold indefinitely and stall his professional development. See id. ¶¶ 129–130. The U.S.-based
technology company Cartwheel has expressed interest in hiring Plaintiff Dmitrii, an offer which
Plaintiff Dmitrii has been unable to accept due to the uncertainty regarding his visa. See id. ¶ 127.
Finally, Plaintiff Mavliuda is a citizen of Russia and a make-up artist. See id. ¶¶ 134–135.
She has won numerous awards for her artistry, has been featured in Russian and U.S. publications,
and has done make-up for international fashion shows. See id. ¶¶ 137–139. On December 23, 2022,
Plaintiff Mavliuda submitted a Form I-140 petition seeking an EB-1A visa. See id. ¶ 140. USCIS
approved the Form I-140 and forwarded it to the National Visa Center for pre-processing. See id.
¶ 142. On October 12, 2023, the NVC found Plaintiff Mavliuda’s application documentarily
qualified. See id. ¶ 147. On December 12, 2023, Plaintiff Mavliuda completed her visa interview.
See id. ¶ 148. USCIS then placed her application into administrative processing under § 221(g).
See id. Plaintiff Mavliuda was also asked to submit additional documents, which she did by June
23, 2024. See id. ¶ 150. Plaintiff Mavliuda’s husband and two children are derivative beneficiaries
of her I-140 petition and derivative applicants for E-14 and E-15 visas. See id. ¶ 141.
Plaintiff Mavliuda’s application has been in administrative processing since her interview
more than seventeen months ago. See id. ¶ 151. Because her case has remained in processing, she
has had to refuse several job offers in the United States and put her career and personal life on
hold. See id. ¶¶ 155–157.
For each Plaintiff, the State Department Website states the application is “refused” and
“[i]f you were informed by the consular officer that your case was refused for administrative
4 processing, your case will remain refused while undergoing such processing. You will receive
another adjudication once such processing is complete.” Id.
C. Procedural Background
On January 31, 2025, Plaintiffs filed a Complaint against Marco Rubio, in his official
capacity as U.S. Secretary of State, and Robert Jachim, in his official capacity as Director of
Screening, Analysis, and Coordination. See id. ¶¶ 56–57. Plaintiffs allege Defendants and those
working under them improperly withheld action on the Plaintiffs’ visa applications and seek an
order to compel Defendants and those acting under them to immediately and forthwith take all
appropriate action to issue a final decision on Plaintiffs’ immigrant visa applications. See id. ¶¶
51–52.
On April 1, 2025, Defendant filed Motion to Dismiss pursuant to Federal Rules of Civil
Procedure Rule 12(b)(6) and 12(b)(1). See Defs.’ Mot. Dismiss. The motion is now ripe for
decision. See Pls.’ Opp’n Defs.’ Mot. Dismiss (“Pls.’ Opp’n”), ECF No. 5; Defs.’ Reply Supp.
Defs.’ Mot. Dismiss (“Defs.’ Reply”), ECF No. 9. On April 28, 2025, this case was referred to the
Honorable Magistrate Judge Faruqui to conduct all proceedings and order entry of final judgment.
See Order Referring Case to Mag. Judge 1, ECF No. 8.
II. LEGAL STANDARD
A court must dismiss a complaint that “lack[s] ... subject-matter jurisdiction.” Fed. R. Civ.
P. 12(b)(1). On a 12(b)(1) motion to dismiss, the plaintiff bears the burden of establishing subject-
matter jurisdiction. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). The court will
“assume the truth of all material factual allegations in the complaint and ‘construe the complaint
liberally, granting plaintiff the benefit of all inferences that can be derived from the facts alleged.’”
5 Am. Nat’l Ins. Co. v. F.D.I.C., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi,
394 F.3d 970, 972 (D.C. Cir. 2005)).
B. Stating a Claim Upon Which Relief Can Be Granted – Federal Rules of Civil Procedure 12(b)(6)
In addition, a court must dismiss a complaint that “fail[s] to state a claim upon which relief
can be granted.” Fed. R. Civ. P. 12(b)(6). The “complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court
must “treat the complaint’s factual allegations as true . . . and . . . grant plaintiff the benefit of all
inferences that can be derived from the facts alleged.” Sparrow v. United Air Lines, Inc., 216 F.3d
1111, 1113 (D.C. Cir. 2000) (internal citations and quotation marks omitted). “However, the court
need not accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set
out in the complaint. Nor must the court accept legal conclusions cast in the form of factual
allegations.” Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
III. DISCUSSION
A. The Doctrine of Consular Nonreviewability
Defendants claim that the Doctrine of Consular Nonreviewability bars Plaintiffs’ claims.
See Defs.’ Mot. Dismiss. at 9–12. This argument is unpersuasive.
The doctrine of consular nonreviewability establishes that a consular officer’s final
decision to approve or deny a visa application is not subject to judicial review. See Dep’t of State
v. Muñoz, 602 U.S. 899 (2024). However, the doctrine is not triggered until a consular officer has
made a final decision regarding a visa application. See Nine Iraqi Allies Under Serious Threat
6 Because of His Faithful Serv. to the United States v. Kerry, 168 F. Supp. 3d 268, 290–91 (D.D.C.
2016). Defendants argue § 221(g) refusals constitute final decisions and thus are unreviewable.
See Defs.’ Mot. Dismiss. at 9–12. Not so.
First, defendants rely on the unpublished Karimova D.C. Circuit opinion to argue that an
initial visa refusal under INA § 221(g) is a final decision. This argument is irrelevant, as “[t]his
Court does not follow the unpublished Karimova decision.” Haeri Mehneh v. Blinken, No. 24-cv-
1374, slip op. at 6 (D.D.C. Dec. 16, 2024); see also Hajizadeh v. Blinken, No. 23-1766, 2024 WL
3638336, at *3 n.3 (D.D.C. Aug. 2, 2024) (“This court has considered Karimova but declines to
follow it.”); Sheikhalizadehjahed v. Gaudiosi, No. 24-cv-1136, 2024 WL 4505648, at *7 n.6 (E.D.
Cal. Oct. 16, 2024). “A panel's decision to issue an unpublished disposition means that the panel
sees no precedential value in that disposition.” D.C. Cir. Rule 36(e)(2).
Furthermore “even if the State Department chooses to characterize a [§] 221(g) notification
as a ‘refusal,’” it is “an interim decision is not sufficiently final to warrant the application of the
doctrine.” Vulupala v. Barr, 438 F. Supp. 3d 93, 98 (D.D.C. 2020). One need only read Plaintiffs’
visa application statuses on the on the State Department CEAC website to realize the § 221(g)
determinations were never intended to be final. Plaintiffs’ application statuses plainly inform them
“You will receive another adjudication once such processing is complete.” Compl. ¶ 100.
Other courts have found that a § 221(g) “refusal” is “not a final decision” and is reviewable.
Patel v. Reno, 134 F.3d 929, 932 (9th Cir. 1997). The binding Code of Federal Regulations
(“C.F.R.”), which governs the State Department’s internal operations, establishes the “Refusal
procedure” for visa applications:
When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provision of
7 law or implementing regulation under which administrative relief is available. Each document related to the refusal shall then be attached to Form DS–230 for retention in the refusal files. Alternatively, each document related to the refusal shall be electronically scanned and electronically attached to Form DS–260 for retention in the electronic refusal files.
22 C.F.R. § 42.81(b); see also Pls.’ Opp. at 26. Therefore, for a visa determination to qualify as a
“refusal” and be a nonreviewable “final decision,” it must meet these requirements. See Patel, 134
F.3d at 932.
Defendants have provided no evidence the § 221(g) determinations given to Plaintiffs meet
these requirements, and indeed it is clear they do not. First, Plaintiffs’ visa application statuses
plainly provide no “statutory provision of law or implementing regulation under which
administrative relief is available.” 22 C.F.R. § 42.81(b); see also Compl. ¶¶ 100, 124, 151
(Plaintiffs’ application statuses read that they will remain refused during administrative processing
and Plaintiffs would receive another adjudication once administrative processing has concluded
but fail to provide any statutory or regulatory means of relief). Indeed, the Foreign Affairs Manual
(FMA), the “authoritative source for the [State] Department's organization structures, policies, and
procedures that governs the operations of the State Department” makes clear that applicants who
receive § 221(g) refusals have no path to statutory or administrative relief. U.S. Dep’t of State,
Foreign Affairs Manual (FAM), https://fam.state.gov/ (last visited Aug. 14, 2025). For example,
while the FMA states that applicants who are found ineligible under INA § 214(b) are “free to re-
apply for a visa,” applicants, such as Plaintiffs, who receive § 221(g) refusals cannot re-apply and
must “wait for the results of additional administrative processing or comply with a request for
additional documentation or information within one year of the visa interview.” 9 FAM 403.10-
3(A)(5). Clearly, then, § 221(g) refusals provide Plaintiffs no avenue for relief, indicating the
decisions are not final.
8 Moreover, Defendants have provided no evidence Plaintiffs’ documents have been submitted
for retention in the electronic refusal files, as required by 22 C.F.R. §42.81(b).
Notably, “[n]o provision for suspension of the visa applications or for a temporary refusal is
provided in 22 C.F.R. § 42.81.” Patel, 134 F.3d at 932.
We therefore conclude Plaintiffs’ § 221(g) determinations are not refusals within the meaning
of 22 C.F.R. § 42.81(b) and thus are not final decisions to which the doctrine of consular
nonreviewability applies. See Patel, 134 F.3d at 932.
B. The Doctrine of Sovereign Immunity
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.” F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). “[C]laims barred by sovereign immunity
must be dismissed for lack of subject matter jurisdiction.” Nepal v. U.S. Dep’t of State, 602 F.
Supp. 3d 115, 130 (D.D.C. 2022); See F.D.I.C., 510 U.S. at 475. However, Acts of Congress can
waive this immunity. See Bowen v. Massachusetts, 108 S. Ct. 2722, 2728 (1988).
Defendants assert that to overcome their 12(b)(1) motion, Plaintiffs must prove the
“‘government has unequivocally waived its immunity.’” Defs.’ Reply at 2 (quoting Tri-State Hosp.
Supply Corp. v. United States, 341 F.3d 571, 575 (D.C. Cir. 2003). Congress has done just that;
the Administrative Procedure Act (APA) contains such “waiver of sovereign immunity in section
702.” See Bowen, 108 S. Ct. at 2735. The APA provides:
An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on ground that it is against the United States.
5 U.S.C. § 702. Here, Plaintiffs seek injunctive, not monetary relief. See Compl. ¶
1. Further, visa adjudication is an agency action the State Department is required to
9 complete. See infra at III.C. Thus, the APA waives sovereign immunity in this case.
See 5 U.S.C. § 702.
C. Clear, Nondiscretionary Duty
“To state a claim for unreasonable delay [under the APA], [p]laintiffs must . . . allege that
the agency ‘failed to take a discrete agency action that it is required to take[.]’” Da Costa v. Immigr.
Inv. Program Off., 80 F.4th 330, 340 (D.C. Cir. 2023) (quoting Norton v. S. Utah Wilderness All.,
542 U.S. 55, 64 (2004)). Defendants argue that Plaintiffs fail to identify a discrete agency action
that consular officers are required to take. Not so.
“Granting or refusing a visa to [a plaintiff] who has been interviewed is clearly a discrete
agency action . . . required by . . . the APA.” Khazaei v. Blinken, No. 23-cv-1419, 2023 WL
6065095, at *6 (D.D.C. Sept. 18, 2023). The APA “imposes a general but nondiscretionary duty
upon the [State Department] to pass upon a matter presented to it ‘within a reasonable time,’ 5
U.S.C. § 555(b), and authorizes [this Court] to ‘compel agency action unlawfully withheld or
unreasonably delayed,’ id. § 706(1).” Haeri Mehneh, slip op. at 6. (quoting Mashpee Wampanoag
Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003)).
Moreover, the State Department’s own guidelines impose a clear, nondiscretionary duty
upon consular officers to adjudicate cases in administrative processing. See 22 C.F.R. § 42.81(a).
Issuance or refusal is mandatory. See id. “When a visa application has been properly completed
and executed before a consular officer in accordance with the provisions of INA and the
implementing regulations, the consular officer must either issue or refuse the visa[.]” Id. “There
are no exceptions to the rule that once a visa application has been properly completed and executed
before a consular officer, a visa must be either issued or refused.” 9 FAM 504.11-2(A). Per the
Accardi doctrine, administrative agencies are bound to follow their own guidelines. See United
10 States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954).1 Therefore, Defendants are bound to
follow the rules laid out in federal regulations. See C.F.R. § 42.8(a).
As established, this Court does not follow the unpublished Karimova decision nor its
commentary on consular officers’ duties. Haeri Mehneh, slip op. at 6. Even so, Karimova narrowly
applies to “‘Section 555(b) of the APA as the source of the consular officer’s alleged duty to act’”
and is thus inapplicable. Id. (quoting Karimova v. Abate, No. 23-5178, 2024 WL 3517852, at *3
(D.C. Cir. July 24, 2024). Karimova does not address the duties Plaintiffs raise under the INA and
its implementing regulations. 2024 WL 3517852. This Court, however, “finds that they create a
duty to act.” Haeri Mehneh, slip op. at 6.
Defendants plainly failed to uphold this duty, and in doing so have subjected Plaintiffs to
prolonged purgatory. During this period, Plaintiffs have been unable to visit family in times of joy
and crisis, advance their distinguished careers in the United States or elsewhere, or establish
security and stability for their families. Defendants cannot shirk their responsibility to provide
Plaintiffs a clear, certain decision regarding their visa applications.
1 The Accardi doctrine asserts federal agencies must follow their own regulations and procedures, and that if an agency fails to do so, its actions can be challenged in court. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954). “Regulations with the force and effect of law supplement the bare bones” of federal statutes, and that, even in areas of expansive discretion, agencies must follow their own “existing valid regulations.” Id. at 266, 268. Two decades later, the Supreme Court applied the doctrine to strike down a Bureau of Indian Affairs benefits determination because it did not comply with the procedures set forth in the agency's internal manual. See Morton v. Ruiz, 94 S. Ct. 1055 (1974). “In doing so, the Court noted that Accardi's teachings apply with particular force in those cases in which ‘the rights of individuals are affected,’ stating that ‘it is incumbent upon agencies to follow their own procedures . . . even where [they] are possibly more rigorous than otherwise would be required.’” Damus v. Nielsen, 313 F. Supp. 3d 317, 335 (D.D.C. 2018) (quoting Morton, 94 S. Ct. at 1074). In this District, to determine whether Accardi applies to such policies, judges consider (1) whether the policies bind the agency and (2) whether the policies are “‘procedural rules benefiting the agency’” or “‘procedural rules benefitting the party otherwise left unprotected.’” Damus, 313 F. Supp. 3d at 336 (quoting Lopez v. FAA, 318 F.3d 242, 247 (D.C. Cir. 2003)). In Damus, the Court did not find an Accardi problem when Plaintiff’s visa interview was not scheduled. Id. However, in contrast to the case at hand, the policies at issue did not protect individual rights or “impose binding norms on the agency.” Id. In contrast, the adjudication of visas is a binding norm of the State Department and directly affects individuals’ rights to have their visa applications adjudicated.
11 D. TRAC Factors
Plaintiffs claim, on the merits, that Defendants have unreasonably delayed adjudicating
their visa applications. See Compl. ¶ 2. “The central question in evaluating ‘a claim of
unreasonable delay’ is ‘whether the agency's delay is so egregious as to warrant mandamus.’” In
re Core Commc'ns, Inc., 531 F.3d 849, 855 (D.C. Cir. 2008) (quoting Telecomms. Rsch. & Action
Ctr. (“TRAC”) v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984)). Unreasonable delay claims are analyzed
using the six “TRAC” factors establish in TRAC.2 See id.
Here, the Court declines to analyze the TRAC factors. Neither party briefed the TRAC
factors, leaving this Court with limited information to assess whether Defendants’ actions might
be unreasonable. See Defs.’ Mot. Dismiss; Pls.’ Opp’n; Defs.’ Reply. “Resolution of a claim of
unreasonable delay is ordinarily a complicated and nuanced task requiring consideration of the
particular facts and circumstances before the court.” Mashpee Wampanoag Tribal Council, Inc,
336 F.3d at 1100. Because the parties have not briefed the fact-intensive TRAC factors, the record
is inadequate to resolve the statutory issue pending.
IV. CONCLUSION
For the foregoing reasons, the Court will DENY Defendants’ motion to dismiss the case.
Zia Digitally signed by Zia M.Faruqui Date: September 5, 2025 M.Faruqui Date: 2025.09.05 13:45:34 -04'00' ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE
2 The six TRAC factors are: “(1) the time agencies take to make decisions must be governed by a rule of reason; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority; (5) the court should also take into account the nature and extent of the interests prejudiced by delay; and (6) the court need not find any impropriety lurking behind agency lassitude in order to hold that agency action is unreasonably delayed.” See TRAC, 750 F.2d at 80 (internal citations and quotation marks omitted).