Immigration: Another lawsuit over USCIS’ visa policy is dismissed

Where Iranian nationals seeking nonimmigrant visas, so that they can begin working for their respective US-based employers, alleged the delay violated the Administrative Procedure Act and sought relief under the Mandamus Act, their suit was dismissed. By refusing the visa applications, the government has already taken the discrete, required agency action, and plaintiffs have not pointed to any alternative statute or regulation that might provide a “clear indication of binding commitment” to take additional action resulting in a conclusive, unreviewable determination.

Background

Plaintiffs are Iranian nationals seeking H-1B and H-4 nonimmigrant visas. Plaintiffs have been waiting anywhere from 14-19 months for updates on their visas. Without their visas, plaintiffs are unable to begin working for their respective U.S.-based employers.

Plaintiffs allege that defendants’ delay in the adjudication of their visa applications violates the Administrative Procedure Act, or APA. Additionally, plaintiffs seek mandamus relief under the Mandamus Act. Defendant has filed a motion to dismiss.

Analysis

Asking a court to “compel agency action unlawfully withheld or unreasonably delayed,” may “proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Here, defendants contend that plaintiffs cannot establish a clear, non-discretionary duty for the State Department to re-adjudicate any non-citizen’s visa application. The court agrees.

Defendants here have already taken the discrete action required of them by issuing § 221(g) notices of refusal for administrative processing and thus have satisfied their obligation to adjudication the visa applications. After a refusal, such as a § 221(g) refusal for administrative processing, has been issued, there is no further discrete action is required under the Immigration and Nationality Act, or INA, or any other pertinent statute or regulation. Thus, this court lacks jurisdiction here. Many courts, both within the Fourth Circuit, and in other circuits, have come to the same conclusion.

Seeking to avoid this conclusion and the clear weight of authority in this regard, plaintiffs argue that the issuance of a § 221(g) refusal does not satisfy the State Department’s duty because the § 221(g) refusal is not necessarily “final.” This court defers the question of whether a refusal under § 221(g) is a “final adjudication,” because this court concludes that there is no clear mandatory duty under the INA or its implementing regulations requiring consular officers to reach a more definitive decision on a visa application that has already been refused.

Nothing in the regulations provide a “‘specific, unequivocal command’ for [the] State [Department] to issue a final, unreviewable decision.” Further, the absence of any finality requirement in 22 C.F.R. § 41.121(a) is telling because while the INA contains the general directive that visa applications “shall be reviewed and adjudicated,” it is 22 C.F.R. § 41.121(a) that contains the discrete requirement that visa applications “must” be issued or refused.

By refusing the visa applications, defendants here have already taken this discrete, required agency action, and plaintiffs have not pointed to any alternative statute or regulation that might provide a “clear indication of binding commitment” to take additional action resulting in a conclusive, unreviewable determination.

Defendant’s motion to dismiss granted.

Arshadi v. Platek, Case No. 1:24-cv-1632, June 3, 2025. EDVA at Alexandria (Alston). VLW 025-3-238. 9 pp.