UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALEXEY SARAEV, et al., Plaintiffs,

v. No. 25-cv-01740-ZMF MARCO RUBIO, U.S. SECRETARY OF STATE, et al.,

Defendants.

MEMORANDUM OPINION

Since January 2024, Plaintiffs’ EB-1A visa applications have been in administrative

processing. Plaintiffs now seek an order to compel Defendants 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 Motion to Dismiss (“Defs.’ Mot. Dismiss”) 1–23, ECF No.

8. For the reasons set forth herein, the Court GRANTS Defendants’ motion.

I. BACKGROUND

A. Legal Background

The Immigration and Nationality Act (INA), codified at

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

. 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

(g). Specifically, no

visa shall be issued to an applicant if:

1 (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.

B. Factual Background

Plaintiff Saraev, a citizen of Russia, is a highly skilled software engineer. See Compl. ¶ 68.

Plaintiff Saraev is currently collaborating with a U.S.-based technology company to provide

high-level software engineering services.

Plaintiff Saraev’s inability to immigrate to the U.S.

has prevented him from fully participating in company operations and fulfilling the duties expected

of him.

. Plaintiff Saraev alleges financial losses, setbacks, and emotional turmoil as a

result of Defendants delay in completing administrative processing.

at 70–71.

In December 2024, Plaintiff Saraev submitted an EB-1A visa application to the U.S.

Citizenship and Immigration Services (“USCIS”). See Compl. ¶ ¶ 56, 58. Plaintiff Saraeva, spouse

of Plaintiff Saraev, is a derivative applicant for an immigrant visa. See

. In January 2024,

USCIS approved the petition. See

. On February 28, 2024, Plaintiffs submitted additional

forms and made the required payments. See

. On July 30, 2024, a consular officer at the

Embassy interviewed Plaintiffs and informed them that their application required further

administrative processing under Section 221(g) of the INA. See

. The Embassy asked

Plaintiffs to submit additional documentation, including Plaintiff Saraeva’s CV and university

transcripts. See

On August 2, 2024, Plaintiffs submitted the requested documentation to the

Embassy. See

.

2 On August 5, 2024, the Embassy requested Plaintiffs to submit additional information via

the email questionnaire (DS-5535 form). See Compl. ¶ 65. On August 8, 2024, Plaintiffs submitted

the requested documentation. See

To date, Plaintiffs’ visa application status on the State Department website remains

“Refused.”

. It further states, “[i]f you were informed by the consular officer that your case

was refused for administrative processing, your case will remain refused while undergoing such

processing. You will receive another adjudication once such processing is complete.” Compl., Ex.

C, ECF No. 1-3.

C. Procedural Background

On June 2, 2025, Plaintiffs filed suit 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 Compl. ¶ ¶ 20–21. Plaintiffs allege that Defendants’ failure to issue a

decision on their visa eligibility constitutes severe, particularized, and concrete injury. See

. Plaintiffs seek an order to compel Defendants to immediately and forthwith take all appropriate

action to issue final decisions on Plaintiffs’ immigrant visa applications. See

.

On June 20, 2025, the assigned district judge referred this case, with the parties’ consent,

to the undersigned to conduct all proceedings. See Order Referring Case to Mag. Judge 1, ECF

No. 5. On August 4, 2025, Defendant filed a Motion to Dismiss pursuant to Federal Rules of

Procedure Rule 12(b)(1) and 12(b)(6). See Defs.’ Mot. Dismiss at 7. The motion is now ripe for

decision. See Response in Opposition to Defendants’ Motion to Dismiss (“Pls.’ Opp’n”), ECF No.

9; Defendants’ Reply in Support of Defendants’ Motion to Dismiss (“Defs.’ Reply”), ECF No. 10.

3 II. LEGAL STANDARD

A. Subject Matter Jurisdiction – Federal Rules of Civil Procedure 12(b)(1)

A court must dismiss a complaint that “lacks 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,

(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.’”

Am. Nat’l Ins. Co. v. FDIC,

(D.C. Cir. 2011) (quoting Thomas v. Principi,

(D.C. Cir. 2005)).

B. Stating a Claim Upon Which Relief Can Be Granted – Federal Rules of Civil Procedure 12(b)(6)

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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

(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.”

In evaluating a motion to

dismiss under Rule 12(b)(6), the 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.,

(D.C. Cir. 2000) (quoting Schuler v. United

States,

(D.C. Cir. 1979)) (citations omitted). However, “the court need not

accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the

4 complaint. Nor must the court accept legal conclusions cast in the form of factual allegations.”

Kowal v. MCI Commc’ns Corp.,

(D.C. Cir. 1994).

III. DISCUSSION

A. The Doctrine of Consular Nonreviewability

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,

, 906 (2024). Defendants claim that the doctrine of consular

nonreviewability bars Plaintiffs’ claims since the State Department refused Plaintiffs’ applications

under § 221(g). See Defs.’ Mot. Dismiss at 12–15. Defendants are incorrect. This was not a final

decision. First, Defendants rely on Karimova v. Abate to argue that an initial visa refusal under §

221(g) is a final decision. No. 23-5178,

(D.C. Cir. July 24, 2024). See Defs.’

Mot. Dismiss at 5. “But Karimova is unpublished. And ‘a panel’s decision to issue an unpublished

disposition means that the panel sees no precedential value in that disposition.’” Haeri Mehneh v.

Blinken, No. 24-cv-1374,

, at *5 (D.D.C. Dec. 16, 2024) (quoting D.C. Cir. R.

36(e)(2) and citing U.S. Ct. App. D.C. Cir., Handbook of Practice and Internal Procedures). This

Court again joins the other courts in this district that have refused to follow Karimova. See Haeri

Mehneh,

, at *5 (collecting cases). Second, “[t]he definition of final

demonstrates this [was not a final decision]: ‘[m]arking the last stage of a process; leaving nothing

to be looked for or expected.’ Final, Oxford English Dictionary, (2d ed. 1989). But [Plaintiffs are]

not in the last stage of the process. The State Department explicitly directed [them] to look for or

expect ‘another adjudication once such processing is complete. [Compl., Ex. C, ECF No. 1-3].””

Haeri Mehneh,

, at *5

5 B. 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.,

(D.C. Cir. 2023) (quoting Norton v. S. Utah Wilderness All.,

(2004)).

Defendants argue that Plaintiffs fail to identify a discrete agency action that consular

officers are required to take. See Defs.’ Reply at 3–4. “[Defendants’] argument has generally met

with a frosty reception from courts in this District, several of which have concluded that both the

APA and State Department regulations create a clear duty to adjudicate visa applications within a

reasonable time.” Rashidian v. Garland, No. 23-cv-1187,

, at *5 (D.D.C. Mar.

8, 2024). “Granting or refusing a visa to [a plaintiff] who has been interviewed is clearly a discrete

agency action . . . required by both the APA and the Department’s own regulation.” Khazaei v.

Blinken, No. 23-cv-1419,

, at *6 (D.D.C. Sept. 18, 2023); see also Vulupala v.

Barr,

, 100 (D.D.C. 2020) (“Granting or refusing a final visa application is a

mandatory agency action.”). First, the APA “imposes a general but nondiscretionary duty upon the

[State Department] to pass upon a matter presented to it ‘within a reasonable time,’

(b), and authorizes [this Court] to ‘compel agency action unlawfully withheld or unreasonably

delayed,’

§ 706(1).” Haeri Mehneh, at *6 (quoting Mashpee Wampanoag Tribal Council, Inc.

v. Norton,

(D.C. Cir. 2003)). Second, “Section 42.81(e) of the INA creates a

nondiscretionary duty requiring consular officers to reconsider within a reasonable time visa

applications refused under Section 221(g) and placed under administrative processing.”

at *6

(citing Ghannad-Rezaie v. Laitinen, No. 24-cv-11665,

, at *3 (D. Mass. Nov.

21, 2024)). Specifically,

(a) states “[w]hen a visa application has been properly

6 completed and executed before a consular officer in accordance with the provisions of INA and

the implementing regulations, the consular officer must either issue the visa, [or] refuse the visa.”

“Plaintiffs have identified a clear, non-discretionary duty requiring a consular officer to adjudicate

[their] visa application[s].” Haeri Mehneh,

, at *6.

C. TRAC Factors

“Courts review claims of unreasonable delay in processing immigration petitions according

to ‘the same [standard] under both § 706(1) of the APA and the Mandamus Act,

.’” Ahmadi v. Scharpf, No. 23-cv-953,

, at *4 (D.D.C. Feb. 12, 2024)

(quoting Skalka v. Kelly,

(D.D.C. 2017)). In evaluating “a claim of

unreasonable delay” courts analyze “whether the agency’s delay is so egregious as to warrant

mandamus.” In re Core Commc’ns, Inc.,

(D.C. Cir. 2008) (quoting

Telecommunications Research & Action Ctr. v. FCC (“TRAC”),

(D.C. Cir. 1984).

To determine unreasonably delay, court analyze the six “TRAC factors”:

(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.

TRAC,

(cleaned up).

1. First and Second TRAC Factors

The first two factors are typically considered together. See Milligan v. Pompeo,

, 317 (D.D.C. 2020). Those factors evaluate “‘whether the agency’s response time

complies with an existing specified schedule and whether it is governed by an identifiable

7 rationale.’” Sawahreh v. U.S. Dep’t of State,

, 161–62 (D.D.C. 2022) (quoting

Ctr. for Sci. in the Pub. Int. v. U.S. Food & Drug Admin.,

(D.D.C. 2014)).

“Congress has supplied no timeline for processing waiver applications.” Didban v.

Pompeo,

, 176 (D.D.C. 2020). “Absent a congressionally supplied yardstick,

courts typically turn to case law as a guide.” Sarlak v. Pompeo, No. 20-cv-35,

,

at *6 (D.D.C. June 10, 2020).1 “District courts have generally found that immigration delays in

excess of five, six, seven years are unreasonable, while those between three to five years are often

not unreasonable.”

(citation omitted) (collecting cases). In addition, “many courts evaluating

similar delays have declined to find a two-year period to be unreasonable as a matter of law.”

Ghadami v. United States Dep’t of Homeland Sec., No. 19-cv-397,

, at *8

(D.D.C. Mar. 19, 2020).

Plaintiffs filed suit eleven months after Plaintiffs’ July 30, 2024 interview. Pls.’ Opp’n at

4. This delay is not unreasonable by comparison. See, e.g., Arab v. Blinken,

,

70 (D.D.C. 2022) (finding thirty months not unreasonable); Dastagir v. Blinken,

, 165 (D.D.C. 2021) (finding twenty-nine months not unreasonable). Accordingly, the first and

second TRAC factors favors Defendants.

2. Third and Fifth TRAC Factors

TRAC factors three and five concern the delay’s impacts on Plaintiff’s health, welfare,

and interests prejudiced. See TRAC,

. Plaintiff Saraev argues that the delay has put

1 Plaintiffs allege a Congressional timetable exists because

(b) states that “[i]t is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application.” See Pls.’ Opp’n at 38 (citing 8 U.S.C. 1571(b)). However, “[t]he 180-day period cited by Plaintiff is no more than an ‘aspirational statement’ that does not establish a firm timetable.” Khan v. Bitter, No. 23-cv-3046,

, at *3 (D.D.C. Aug. 20, 2024) (quoting Da Costa v. Immigr. Inv. Program Off.,

(D.C. Cir. 2023)). Plaintiffs themselves concede that the language in the provision is “merely precatory.” Pls.’ Opp’n at 38.

8 his career progression on hold indefinitely. See Compl. ¶¶ 10; See Pls.’ Opp’n, Ex. B. Plaintiff

Saraev also argues that he suffers from persistent anxiety and sleep disturbance from the delay.

See Pls.’ Opp’n, Ex. B. These emotional impacts are not sufficiently detrimental to his health and

welfare. See Mohammad v. Blinken,

, 168–69 (D.D.C. 2021) (finding factors

three and five weigh in favor of the government in spite of emotional, financial, and medical

hardship as they do not outweigh “the government’s interests in balancing its own priorities and

determining how to allocate scarce resources.”). Nor are the alleged professional and financial

harm sufficient. See Da Costa,

(finding that the “financial harms Bega alleges,

along with the uncertainty that results any time an individual must continue to wait to secure a

benefit, are insufficient to tip TRAC factors three and five in his favor.”). Accordingly, the third

and fifth factors weigh in favor of the Defendant.

3. Fourth TRAC Factor

The fourth TRAC factor, the effect of granting relief on the agency’s competing priorities,

weighs in Defendants’ favor. It “carries the greatest weight in many cases.” Sawahreh, 630 F.

Supp. 3d at 163 (quoting Milligan, 502 F. Supp. 3d at 319 (quotation marks omitted)). Consular

“[p]rocessing capacity is presently a zero-sum game.” Murway v. Blinken, No. 21-cv-1618,

, at *4 (D.D.C. Feb. 16, 2022). As evidence of this, Defendants have provided that as

of April 7, 2024, there were 40 analysts addressing a backlog of 72,000 pending requests. See

Compl., Ex. A, Declaration of Robert Jachim at ¶¶ 22-25. And “Federal agencies, not the Court,

are best positioned to manage the backlog of immigration cases.” Dastagir, 557 F. Supp. 3d at

167. Hence, “judicial ‘reordering[s] [of] agency priorities’ are inappropriate where ‘[t]he agency

is in a unique—and authoritative—position to view its projects as a whole, estimate the prospects

for each, and allocate its resources in the optimal way.’” Ghadami,

, at *9

9 (quoting In re Barr Lab’ys., Inc.,

(D.C. Cir. 1991)). “While the effect of an

individual case would be minimal, the accumulation of such individual cases being pushed by

judicial fiat to the front of the line would erode the ability of agencies to determine their priorities.”

Tate v. Pompeo,

, 150 (D.D.C. 2021).

Following other courts, this Court will not engage in judicial reordering by allowing

Plaintiffs to skip the line. See, e.g., Da Costa,

(“moving Plaintiffs’ [immigration]

petitions to the front of the line would disrupt competing agency priorities with no overall

improvement in the USCIS backlog.”); Arab, 600 F. Supp. 3d at 71 (deferring to “the State

Department’s priority-setting and resource-allocation” in I-130 visa application adjudication).

Accordingly, this factor also weighs in favor of Defendants.

4. Sixth TRAC Factor

The sixth TRAC factor requires the court consider “whether the agency’s bad faith caused

the delay.” Sawahreh, 630 F. Supp. 3d at 164. “The court need not find any impropriety lurking

behind agency lassitude in order to hold that agency action is unreasonably delayed.” TRAC,

(internal citations and quotations omitted). While a lack of information from

Defendants may be frustrating, it is not proof of bad faith. See Defs.’ Mot. Dismiss at 22.

Plaintiffs have not alleged bad faith regarding the Defendants’ motivations.

And the sixth

factor has been found inapplicable where a plaintiff fails to make such allegations. See Arabzada

v. Donis,

, 17 (D.D.C. 2024). “As TRAC directs, . . . the lack of plausible

allegations of impropriety does not weigh against [Plaintiffs] but instead is neutral in the

analysis.” Hajizadeh v. Blinken, No. CV 23-1766,

, at *6 (D.D.C. Aug. 2,

2024) (quoting Fakhimi v. Dep’t of State, No. 23-cv-1127,

, at *11 (D.D.C.

Oct. 23, 2023)). Thus, the sixth TRAC factor does not favor either side.

10 IV. CONCLUSION

Taken together, the TRAC factors weigh in favor of Defendants and Plaintiffs have “not

plausibly allege[d] an unreasonable delay.” Azeez v. Murphy, No. 23-cv-1947,

,

at *6 (D.D.C. Aug. 23, 2024). As such, Plaintiffs have failed to state a claim. See

(dismissing

similar case for failing to state a claim where the first, second, and fourth TRAC factors favored

the defendant).

Date: December 2, 2025 Zia M.Faruqui Digitally signed by Zia M.Faruqui Date: 2025.12.02 14:50:49 -05'00' ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE

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