UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MOHAMMADREZA MASROOR,

Plaintiff, v. Civil Action No. 25-256 (JDB) KRISTI NOEM, Secretary, DEPARTMENT OF HOMELAND SECURITY, et al.

Defendants.

MEMORANDUM OPINION

Plaintiff Mohammadreza Masroor challenges the U.S. Citizenship and Immigration

Service’s (“USCIS”) denial of a waiver to an employment requirement in his visa application.

USCIS moved to dismiss on the grounds that the decision to grant a waiver is committed to agency

discretion by law. Because this Court agrees, the motion is granted.

BACKGROUND

In May 2024, Masroor filed an I-140 Immigrant Petition seeking an EB-2 visa. Compl.

[ECF No. 1] ¶ 11. An EB-2 visa is available to noncitizens with “advanced degrees” or

“exceptional ability.”

(b)(2)(A). Ordinarily, such visas must be “sought by an

employer in the United States.”

However, Masroor—an entrepreneur—has no employer.

Compl. ¶ 2. So he applied for a “national interest waiver,” which, if granted, permits a person to

seek an EB-2 visa without an employer.

;

(b)(2)(B)(i). National interest

waivers may be granted “when the Attorney General deems it to be in the national interest.”

(b)(2)(B)(i).

1 USCIS rejected Masroor’s request for a waiver. Compl. ¶ 18. Specifically, USCIS found

that Masroor did not establish the substantial merit and national importance of his proposed

endeavor, that he was not well positioned to advance his proposed endeavor, and that it would not

be in the interests of the United States to grant his waiver.

Masroor appealed the denial to the

USCIS Texas Service Center, which rejected his request for a national interest waiver for

substantially the same reasons.

¶¶ 29–30.

Masroor petitions this Court to review the denial of his national interest waiver under the

Administrative Procedure Act (“APA”). Compl. ¶¶ 49–56. Now, USCIS moves to dismiss. See

Mot. Dismiss & Mem. Supp. Thereof (“Mot.”) [ECF No. 4]; Pl.’s Opp’n Def.’s Mot. Dismiss

(“Opp’n”) [ECF No. 7]; Reply Further Supp. Defs.’ Mot. Dismiss (“Reply”) [ECF No. 8].

STANDARD OF REVIEW

Federal courts must dismiss any claim over which they lack subject matter jurisdiction.

Fed. R. Civ. P. 12(b)(1). It is the plaintiff’s burden to establish subject matter jurisdiction, and a

court is “not required . . . to accept inferences unsupported by the facts or legal conclusions that

are cast as factual allegations.” Rann v. Chao,

(D.D.C. 2001). Courts must

consider subject matter jurisdiction before other arguments, such as whether a complaint fails to

state a claim, because “[w]ithout jurisdiction the court cannot proceed at all in any cause.” Steel

Co. v. Citizens for a Better Env’t,

(1998) (quoting Ex parte McCardle,

(1868)).

A complaint will only survive a motion to dismiss under Rule 12(b)(6) if it states a claim

upon which relief may be granted. To do so, 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,

(2009) (internal citation omitted). The court must accept the factual allegations in the

2 complaint as true and draw any reasonable inferences in the plaintiff’s favor. Sparrow v. United

Air Lines, Inc.,

(D.C. Cir. 2000).

ANALYSIS

Masroor challenges USCIS’s denial of a national interest waiver. But the Immigration and

Nationality Act expressly divests courts of jurisdiction to review such decisions. Although

Masroor seems to style his argument as, alternatively, a procedural challenge or a claim to enjoin

ultra vires agency action, his points amount to a disagreement with USCIS’s decision to deny his

waiver. That is exactly the type of determination that Congress committed to the agency. When

Congress commits a decision to agency discretion, courts may not re-weigh the evidence or

substitute their own decision-making for the agency’s. Accordingly, Masroor’s claims must be

dismissed.

I. APA

The APA provides a cause of action to individuals seeking review of certain agency

decisions. See

, 706. But a court lacks jurisdiction over such a claim if a statute

precludes judicial review. See Califano v. Sanders,

(1977);

(a)(1).

In the immigration context, Congress provided that “no court shall have jurisdiction to

review” any “[d]ecision or action of the Attorney General or Secretary of Homeland Security” that

is committed to “the discretion of the Attorney General or the Secretary of Homeland Security” in

title 8, chapter 12, subchapter II of the United States Code.

(a)(2)(B)(ii).

The D.C. Circuit has held that § 1153(b)(2)(B)(i) falls within this jurisdiction-stripping

provision. Zhu v. Gonzales,

(D.C. Cir. 2005); see also Bestman v. U.S. Dep’t

of Homeland Sec., Civ. A. No. 20-564 (TJK),

, at *4 (D.D.C. Jan. 31, 2025).

3 That is because § 1153(b)(2)(B)(i)’s language—a national interest waiver “may” be granted if the

Attorney General “deems it to be in the national interest”—is “unfettered by any statutory standard

whatsoever,” thus evincing Congress’s intent to grant the attorney general “complete discretion”

over whether to issue a waiver. Zhu,

; see also Flores v. Garland,

, 89–

90 (5th Cir. 2023); Poursina v. USCIS,

, 871 (9th Cir. 2019); Kondapally v. USCIS,

, 25 (D.D.C. 2021) (a statute grants discretion if there is “no meaningful

standard against which to judge the agency’s exercise of discretion,” leaving “no law to apply”

(internal quotation marks omitted)).

Masroor does not deny that § 1153(b)(2)(B)(i) itself commits national interest waiver

determinations to the Attorney General’s discretion. Instead, he argues that USCIS has removed

its own discretion by issuing guidance on how it makes decisions under the statute. See Opp’n at

3. In Matter of Dhanasar,

(USCIS AAO 2016), USCIS explained that it “may”

grant a national interest waiver if a petition demonstrates “(1) that the foreign national’s proposed

endeavor has both substantial merit and national importance; (2) that the foreign national is well

positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to

the United States to waive the job offer and labor certification requirements.”

. Masroor

contends that, in his case, USCIS “fail[ed] to follow” these

binding legal standards,” and contends that because he challenges the “agency’s legal reasoning

. . . not its ultimate determination,” his suit is not barred by § 1252(a)(2)(B)(ii). Opp’n at 3.

But Masroor is mistaken. The Supreme Court recently rejected a similar argument in

Bouarfa v. Mayorkas,

(2024). Considering another discretionary immigration

determination, the Court held that “the availability of judicial review” is not “dependent on agency

practice” because “§ 1252(a)(2)(B)(ii) bars judicial review of decisions made discretionary by

4 legislation.” Id. at 17 (emphasis in original) (internal quotation marks omitted). In other words,

Congress’s decision to insulate national interest waiver determinations from judicial review in

§ 1252(a)(2)(B)(ii) is final. Arguments like Masroor’s create “perverse incentives” by

discouraging agencies from “exercising . . . discretion consistently” for fear of “losing

congressionally granted insulation from judicial review.” Id. Because national interest waiver

determinations are committed to agency discretion by statute, Dhanasar does not alter that

fundamental unreviewability.

Moreover, as the Ninth Circuit has explained, Dhanasar does not wash away agency

discretion; it expressly preserves it. Poursina, 936 F.3d at 874. Even when a petitioner

demonstrates all three Dhanasar factors, USCIS “may”—not must—“approve the national interest

waiver as a matter of discretion.”

; Poursina, 936 F.3d at 874. This is the

same reason that the D.C. Circuit concluded that national interest waivers are committed to agency

discretion. Zhu,

(explaining that the statutory “may” as opposed to “must”

committed the national interest waiver decision to the Attorney General’s discretion, even if the

other criteria in § 1153(b)(2)(B)(i) were nondiscretionary). And Dhanasar even specifically

confirmed that “the national interest waiver is purely discretionary.”

n.9

(internal quotation marks omitted).

Even if Dhanasar had not explicitly preserved discretion, its criteria are so broad that they

would not create a “meaningful standard against which to judge the agency’s exercise of

discretion.” Kondapally, 557 F. Supp. 3d at 25 (internal quotation marks omitted). Under

Dhanasar, the agency considers whether the petitioner’s proposed project has “substantial merit”

and whether a waiver would be “beneficial to the United States.”

. These

are “open-ended judgments” that “fall well short of an administrable legal standard” that could

5 permit review. Poursina, 936 F.3d at 874 (citation modified). In sum, Dhanasar does not provide

plaintiffs with a vehicle to challenge otherwise unreviewable national interest waiver

determinations.

Contrary to Masroor’s artful framing, his claims are not about procedure or legal error, but

instead are disagreements with how USCIS exercised its judgment. He argues that USCIS “failed

to engage” with important evidence, “misunderst[ood]” his proposed business plan, and “focused

[too] narrowly” on unfavorable aspects of the record. Opp’n at 10–11. These are factual

arguments about the propriety of USCIS’s denial of the national interest waiver. But factual

disagreements with a discretionary decision are quintessentially unreviewable because

unreviewability flows from the “nature of the administrative action at issue” not the rationale

provided by the agency. Sierra Club v. Jackson,

(D.C. Cir. 2011) (internal

quotation marks omitted). Because Masroor’s arguments amount to a request that this Court re-

weigh the evidence in his favor, they cannot be heard.

II. Ultra Vires

In his opposition, Masroor argues that the denial of his national interest waiver petition was

ultra vires. Opp’n at 4–8. But this supposed claim does not appear in the complaint. Masroor

mentions ultra vires only three times in his initial filing; he does not list it as a cause of action or

specifically address any requirements of ultra vires review. Instead, the complaint merely uses

“ultra vires” as an adjective to describe conduct that Masroor believes is unlawful. E.g., Compl.

¶ 58 (“As a result of Defendants’ arbitrary, capricious, ultra vires, and otherwise unlawful decision

. . . .”). This contrasts with his APA claims, where Masroor explicitly lists two causes of action

and explains the theory of his claims. Compl. ¶¶ 49–56. Although Masroor devotes several pages

in his opposition to arguing that the waiver denial was ultra vires, Opp’n at 4–8, “it is axiomatic

6 that a party may not amend his complaint through an opposition brief,” Sai v. Transportation Sec.

Admin.,

, 33 (D.D.C. 2018) (citation modified). Accordingly, the complaint does

not allege an ultra vires claim and Masroor’s attempt to plead it through the opposition is

unavailing.

Even if Masroor had properly raised an ultra vires claim, it would fail. To state an ultra

vires claim, a plaintiff must establish “that (1) review is not expressly precluded by statute, (2)

there is no alternative procedure for review of the statutory claim and (3) the challenged action is

plainly in excess of the agency’s delegated powers and contrary to a specific prohibition in the

statute that is clear and mandatory.” Glob. Health Council v. Trump, No. 25-5097,

, at *12 (D.C. Cir. Aug. 13, 2025) (citation modified). Ultra vires claims are reserved for

extraordinary cases where “the agency action goes beyond mere legal or factual error and amounts

to a clear departure by the agency from its statutory mandate” or is otherwise “blatantly lawless.”

Fed. Express Corp. v. U.S. Dep’t of Com.,

(D.C. Cir. 2022) (citation modified).

Courts must be exceedingly cautious of exercising ultra vires review because it “seeks the

intervention of an equity court where Congress has not authorized statutory judicial review.”

Any ultra vires claim Masroor may raise fails on the first element. As previously discussed,

expressly precludes judicial review of national interest waiver determinations

because those judgments are committed to agency discretion. And to call a discretionary

determination ultra vires is nearly a contradiction in terms. When Congress grants an agency

discretion, the subsequent decisionmaking cannot go beyond that delegated power because

Congress has deliberately omitted statutory constraints. See Dalton v. Specter,

(1994) (“Where a statute . . . commits decisionmaking to the discretion of the President,” ultra

vires “review of the President’s decision is not available.”); Mountain States Legal Found. v. Bush,

7

(D.C. Cir. 2002) (holding ultra vires review unavailable where there are no

“discernible [statutory] limits on the President's discretion.”). Masroor cannot use ultra vires to

end-run Congress’s decisions to commit national interest waiver determinations to agency

discretion and thereby preclude judicial review.

Masroor’s ultra vires challenge also fails because it is simply a repackaging of his APA

claims. He argues that the agency failed to provide “meaningful analysis,” improperly applied the

Dhanasar test, and disregarded evidence that he believed important. Opp’n at 5–8. By their own

terms, these allegations do not go “beyond mere legal or factual error” as necessary to raise an

ultra vires claim. Fed. Express,

. And because the ultimate waiver determination

is committed to the agency, Masroor cannot identify any “statutory mandate” that USCIS

supposedly exceeded or explain how UCSIC’s determination (even if incorrect) amounts to

“blatantly lawless” action.

(internal quotation marks omitted). None of Masroor’s allegations

come close to the extremely high bar necessary to constitute ultra vires action.

Accordingly, Masroor’s ultra vires argument must be dismissed for failure to state a claim.

CONCLUSION

For these reasons, the Court will grant defendant’s motion to dismiss. A separate Order

shall issue on this date.

/s/ JOHN D. BATES United States District Judge

Dated: August 25, 2025

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