ATABEKOV v. CITIZENSHIP AND IMMIGRATION SERVICES USCIS (2024)

MEMORANDUM AND ORDER REGARDING DEFENDANTS’ MOTION TO DISMISS

This is an immigration case involving H-1B “specialty occupation” nonimmigrant visas under 8 U.S.C. § 1101(a)(15)(H)(i)(B), which allow certain foreign workers to work in the United States temporarily. Filing 8 at 7 (¶ 16). Plaintiff Amir Atabekov, who was the alien beneficiary of two employers’ successive H-1B visa petitions, challenges the revocation of the first employer's H-1B visa petition and the denial of the second employer's H-1B visa petition by defendant United States Citizenship and Immigration Services (USCIS) using what Atabekov alleges are “legally dubious and regulatorily improper processes.” Filing 8 at 1 (¶ 1). This case is now before the Court on the Motion to Dismiss Plaintiff's First Amended Complaint by defendants USCIS and Loren Miller in his official capacity as Director of the USCIS Nebraska Service Center. Filing 11. The Court will refer to defendants collectively as USCIS. USCIS seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction—specifically, Atabekov's lack of standing—and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim under the Administrative Procedures Act (APA). See Filing 11; see generally Filing 11-1. For the reasons set out below, USCIS's Motion to Dismiss is granted.

I. INTRODUCTION

Whether to grant or deny a motion to dismiss ordinarily turns on the sufficiency of the factual allegations in the Complaint. However, to put the factual allegations in this case in context, the Court must begin with a summary of the process for granting—as well as denying or subsequently revoking—an H-1B visa.

A. The H-1B Visa Process

1. H-1B Visas for “Specialty Occupations”

As Atabekov recognizes and the Eighth Circuit Court of Appeals has explained, “The H–1B visa takes its name from 8 U.S.C. § 1101(a)(15)(H)(i)(b), which defines a class of non-immigrant alien workers eligible to work in the United States temporarily to perform services in ‘specialty occupations.’ ” Greater Missouri Med. Pro-Care Providers, Inc. v. Perez, 812 F.3d 1132, 1133 n.1 (8th Cir. 2015); see also Filing 8 at 16.¹ Since fiscal year 2004, H-1B visas have been capped at 65,000 per year, with an additional 20,000 H-1B visas available to individuals who meet additional qualifications, such as earning a master's or higher degree from a United States institution of higher education. 8 U.S.C. § 1184(g)(1)(A)(vii), (g)(5)(A)–(C); see also Filing 8 at 8 (¶ 17).

2. The Two-Step Application Process

“A United States employer seeking to classify an alien as an H–1B”—rather than the alien himself or herself—“must file a petition on the form prescribed by USCIS in accordance with the form instructions.” 8 C.F.R. § 214.2(h)(2)(i)(A). Because the demand for H-1B visas exceeds the statutory cap each year,² the Department of Homeland Security instituted a two-step application process. 8 C.F.R. § 214.2(h)(8)(iii).

a. Step One: Registration

At step one, before an employer can file a petition for an alien beneficiary counted under the statutory cap, “the petitioner must register to file a petition on behalf of an alien beneficiary electronically through the USCIS website (www.uscis.gov),” and that registration “must be properly submitted in accordance with 8 CFR 103.2(a)(1), paragraph (h)(8)(iii) of this section [8 C.F.R. § 214.2] and the form instructions.” 8 C.F.R. § 214.2(h)(8)(iii)(A)(1); see also Filing 8 at 8 (¶ 19) (“[I]n 2019 the Department of Homeland Security promulgated a new rule that requires prospective employers to register on USCIS's website and submit an electronic registration on behalf of each employee for whom it hopes to file an H-1B petition.”). If the registration is randomly selected for the fiscal year, “USCIS will notify the petitioner of the selection of the petitioner's registered beneficiaries.” Id. This random selection, which the parties sometimes call a lottery, “will be made via computer-generated selection.” 8 C.F.R. § 214.2(h)(8)(iii)(A)(5)(ii); 8 C.F.R. § 214.2(h)(8)(iii)(A)(6)(ii).

Under 8 C.F.R. § 103.2(a)(1), “[e]very form, benefit request, or other document”—including an H-1B registration—“must be submitted to DHS and executed in accordance with the form instructions regardless of a provision of 8 CFR chapter I to the contrary.” 8 C.F.R. § 103.2(a)(1). That regulation continues, “The form's instructions are hereby incorporated into the regulations requiring its submission.” Id. Another regulation defines “form instructions”:

Form instructions means instructions on how to complete and where to file a benefit request, supporting evidence or fees, or any other required or preferred document or instrument with a DHS immigration component. Form instructions prescribed by USCIS or other DHS immigration components on their official Internet Web sites will be considered the currently applicable version, notwithstanding paper or other versions that may be in circulation, and may be issued through non-form guidance such as appendices, exhibits, guidebooks, or manuals.

8 C.F.R. § 1.2.

At issue in this lawsuit is an attestation that USCIS has required since early 2023 ³ with any H-1B registration. See Filing 8 at 11 (¶ 28). That attestation states,

I further certify that this registration (or these registrations) reflects a legitimate job offer and that I, or the organization on whose behalf this registration (or these registrations) is being submitted, have not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.

Filing 8 at 11 (¶ 28) (emphasis added).

b. Step Two: The H-1B Petition

If a petitioner is notified that its registration has been randomly selected, then at step two of the process, the petitioner must file a petition meeting the requirements of 8 C.F.R. § 214.2(h)(4)(iii)(B). Specifically,

(B) Petitioner requirements. The petitioner shall submit the following with an H–1B petition involving a specialty occupation:

(1) A certification from the Secretary of Labor that the petitioner has filed a labor condition application with the Secretary,

(2) A statement that it will comply with the terms of the labor condition application for the duration of the alien's authorized period of stay,

(3) Evidence that the alien qualifies to perform services in the specialty occupation as described in paragraph (h)(4)(iii)(A) of this section, and [the alien meets the “beneficiary qualifications” in 8 C.F.R. § 214.2(h)(4)(C)].

8 C.F.R. § 214.2(h)(4)(iii)(B).

3. Approval, Denial, and Revocation

USCIS notifies the petitioner of the approval, denial, intent to revoke, and revocation of any H-1B visa petitions. 8 C.F.R. § 214.2(h)(9)(i), (h)(10)(ii), (h)(11). More specifically, § 214.2 identifies the following grounds for denial of an H-1B petition:

(ii) Notice of denial. The petitioner shall be notified of the reasons for the denial and of the right to appeal the denial of the petition under 8 CFR part 103. The petition will be denied if it is determined that the statements on the petition were inaccurate, fraudulent, or misrepresented a material fact. There is no appeal from a decision to deny an extension of stay to the alien.

8 C.F.R. § 214.2(h)(10)(ii) (emphasis added).

On the other hand,

USCIS will consider all the evidence submitted and any other evidence independently required to assist in adjudication. USCIS will notify the petitioner of the approval of the petition on a Notice of Action. The approval notice will include the beneficiary's (or beneficiaries’) name(s) and classification and the petition's period of validity․

8 C.F.R. § 214.2(h)(9)(i). If the petition is approved, the petitioner may employ the alien beneficiary, and the alien beneficiary is given a “cap number” allowing the alien beneficiary to obtain a visa for temporary employment in the United States. 8 U.S.C. § 1184(g)(3). The beneficiary is considered “cap exempt,” which for present purposes means that if the beneficiary obtains employment with another employer during the period that his or her visa is valid, the subsequent employer does not have to pursue the entire two-step process to obtain a visa allowing the beneficiary to remain in the United States but simply submits an H-1B petition to change the alien's employer. 8 U.S.C. § 1184(g)(7).

As to revocation, § 214.2 provides in pertinent part, “If the petitioner no longer employs the beneficiary, the petitioner shall send a letter explaining the change(s) to the director who approved the petition.” 8 C.F.R. § 214.2(h)(11)(i)(A); see also Filing 8 at 14 (¶ 35). “The director may revoke a petition at any time, even after the expiration of the petition.” 8 C.F.R. § 214.2(h)(11)(i)(B). The regulation also provides for “[i]mmediate and automatic revocation” if “the petitioner goes out of business, files a written withdrawal of the petition, or the Department of Labor revokes the labor certification upon which the petition is based.” 8 C.F.R. § 214.2(h)(11)(ii) (emphasis added); see also Filing 8 at 14 (¶ 35).

Section 214.2 identifies additional non-automatic grounds for revocation of an H-1B petition:

(A) Grounds for revocation. The director shall send to the petitioner a notice of intent to revoke the petition in relevant part if he or she finds that:

(1) The beneficiary is no longer employed by the petitioner in the capacity specified in the petition, or if the beneficiary is no longer receiving training as specified in the petition; or

(2) The statement of facts contained in the petition or on the application for a temporary labor certification was not true and correct, inaccurate, fraudulent, or misrepresented a material fact; or

(3) The petitioner violated terms and conditions of the approved petition; or

(4) The petitioner violated requirements of section 101(a)(15)(H) of the Act [8 U.S.C. § 1101(a)(15)(H)] or paragraph (h) of this section; or

(5) The approval of the petition violated paragraph (h) of this section or involved gross error.

(B) Notice and decision. The notice of intent to revoke shall contain a detailed statement of the grounds for the revocation and the time period allowed for the petitioner's rebuttal. The petitioner may submit evidence in rebuttal within 30 days of receipt of the notice. The director shall consider all relevant evidence presented in deciding whether to revoke the petition in whole or in part. If the petition is revoked in part, the remainder of the petition shall remain approved and a revised approval notice shall be sent to the petitioner with the revocation notice.

8 C.F.R. § 214.2(h)(11)(iii) (emphasis added); see also Filing 8 at 13 (¶ 34).

The same statute that provides for issuance of a visa upon approval of the petition also provides as follows:

If an alien who was issued a visa or otherwise provided nonimmigrant status and counted against the numerical limitations of paragraph (1) is found to have been issued such visa or otherwise provided such status by fraud or willfully misrepresenting a material fact and such visa or nonimmigrant status is revoked, then one number shall be restored to the total number of aliens who may be issued visas or otherwise provided such status under the numerical limitations of paragraph (1) in the fiscal year in which the petition is revoked, regardless of the fiscal year in which the petition was approved.

8 U.S.C. § 1184(g)(3) (emphasis added). In other words, the alien beneficiary of a visa obtained by fraud or willful misrepresentation loses his “cap number.” However, only revocation because of fraud or willful misrepresentation deprives an alien beneficiary of a “cap number” and ends the alien beneficiary's eligibility for reemployment in the United States unless an employer pursues the entire two-step process and obtains a new “cap number” and a new visa for the alien beneficiary in a new fiscal year. Compare 8 U.S.C. § 1184(g)(3) with 8 U.S.C. § 1184(g)(7) (providing that an alien already counted is not counted again unless the alien would be eligible for a full 6 years of authorized admission); see also 8 C.F.R. § 214.2(h)(2)(G) (quoted above in § I.A.3.).

B. Factual Background

The Court considers the following allegations as true, to the extent they are non-conclusory and not disguised legal conclusions, for the purposes of ruling on USCIS's Motion to Dismiss. This course is appropriate as to both the Rule 12(b)(6) challenge and the Rule 12(b)(1) challenge, where the latter challenge is “facial.” See Bauer v. AGA Serv. Co., 25 F.4th 587, 589 (8th Cir. 2022) (Rule 12(b)(6) standard (citing Pietoso, Inc. v. Republic Servs., Inc., 4 F.4th 620, 622 (8th Cir. 2021))); see also Pharm. Rsch. & Manufacturers of Am. v. Williams, 64 F.4th 932, 945 n. 7 (8th Cir. 2023) (Rule 12(b)(1) facial challenge standard).

1. Approval of the Original H-1B Petition for Atabekov

AI Cyber Solutions filed a registration for an H-1B visa in fiscal year 2023 for plaintiff Amir Atabekov, who is a citizen and national of Uzbekistan. Filing 8 at 3 (¶ 5). The registration was selected, AI Cyber Solutions filed an H-1B petition for Atabekov, and the petition was approved. Filing 8 at 3 (¶ 5). Atabekov's I-129 application for a nonimmigrant worker visa was approved on October 18, 2022. Filing 8 at 3 (¶ 5), 14 (¶ 36). Atabekov then began working for AI Cyber Solutions. Filing 8 at 3 (¶ 5).

2. The Change-of-Employer Petition and USCIS Notices

However, after a number of months working for AI Cyber Solutions, Atabekov received a job offer from a new employer. Filing 8 at 14 (¶ 37). Atabekov alleges that he attempted to transfer jobs on March 30, 2023, and that his new employer filed a new H-1B petition on his behalf. Filing 8 at 3 (¶ 5), 14 (¶ 37). However, on May 19, 2023, USCIS sent Atabekov's new employer a Notice of Intent to Deny (NOID) the change-of-employer H-1B petition. Filing 8 at 3 (¶ 5), 14 (¶ 38); Filing 8-3 (NOID). The NOID was in turn based upon USCIS's intent to revoke AI Cyber Solution's H-1B petition for Atabekov. Filing 8 at 3 (¶ 5). Indeed, at the same time USCIS sent the NOID to the new employer, USCIS issued a Notice of Intent to Revoke (NOIR) the previously approved H-1B petition filed by AI Cyber Solutions. Filing 8 at 14 (¶ 38).

a. The NOIR to the Original Employer and the Subsequent Decision

Atabekov alleges the following about the NOIR sent to his former employer, AI Cyber Solutions:

44. Turning to the revocation of the original I-129 itself, based on the revocation notice filed by Defendants, ECF No. 6-2, it appears that on April 17, 2023, USCIS sent AI Cyber Solutions, Inc. a NOIR based off of three registrations made for Plaintiff Atabekov. It appears the NOIR focused on a purported violation of the attestation requirements and threatened both a revocation with a finding of fraud and a potential referral to federal law enforcement agencies for investigation and potential further action. Id.

45. Importantly, Plaintiff Atabekov was no longer working for AI Cyber Solutions at the time of the issuance of the NOIR, and AI Cyber Solutions did have a mandatory duty to report to USCIS that the employment relationship between it and Plaintiff Atabekov had ceased. Rather than respond to the allegations themselves, AI Cyber Solutions simply requested the I-129 be withdrawn. USCIS acknowledged AI Cyber Solutions’ request, but because it did not offer a substantive response as to how it did not “work with” others to “unfairly increase the chances of selection” of Plaintiff Atabekov, USCIS not only revoked the petition, which would have not impacted Plaintiff Atabekov in any meaningful way, but did so with a finding of fraud. ECF No. 6-2 at 6. Thus, with a revocation of his original cap-subject H-1B petition based on a finding of fraud, Plaintiff Atabekov unknowingly was “no longer counted against the numerical limitations of [8 U.S.C. § 1184(g)(1)]” and was “no longer exempt from the cap under [8 U.S.C. § 1184(g)(7)].” Id. In short, Plaintiff Atabekov lost his cap number, and will be forced to be selected in a future H-1B lottery to have a chance at employment in the U.S. in an H-1B capacity in the future.

Filing 8 at 16–17 (¶¶ 44–45) (emphasis added).

Although the NOIR is not attached to the Amended Complaint, it is embraced by the Amended Complaint because the allegations quoted just above refer to it. See Rossi v. Arch Ins. Co., 60 F.4th 1189, 1193 (8th Cir. 2023). USCIS submitted a copy of the NOIR with its Motion to Dismiss. See Filing 11-2 (NOIR). The NOIR states, “The first issue to be discussed is whether you [i.e., AI Cyber Solutions] worked with another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary.” Filing 11-2 at 2. This issue tracks part of the language of the attestation to the H-1B registration. The NOIR states, “The last issue to be discussed is whether the petitioner willfully misrepresented a material fact(s) in the instant petition.” Filing 11-2 at 5. The NOIR sets out the evidence supporting USCIS's belief that AI Cyber Solutions’ attestation was “a willful misrepresentation of a material fact made to a USCIS official with the intent to deceive for the purposes of obtaining an immigration benefit” and AI Cyber Solutions’ failure to respond other than to seek withdrawal of the H-1B petition. Filing 11-2 at 2–5.

The allegations quoted above from the Amended Complaint also refer to the Revocation of Nonimmigrant Petition, which was USCIS's decision after AI Cyber Solutions responded to the NOIR, identifying it as ECF No. 6-2. See also Filing 11-3 (another copy of the Revocation). In other words, the Revocation like the NOIR is embraced by the Amended Complaint. See Rossi, 60 F.4th at 1193. The Revocation states that USCIS received AI Cyber Solutions’ response to the NOIR on May 16, 2023, but that response only requested withdrawal of AI Cyber Solutions’ H-1B petition for Atabekov. Filing 6-2 at 2. The Revocation then states,

As of 05/16/2023, the approval of your petition is automatically revoked per Title 8 Code of Federal Regulations (8 CFR), section 214.2(h)(11)(ii). However, this automatic revocation is being issued with a separate, continued finding of fraud.

Filing 6-2 at 2. The Revocation then set out its reasons for the continuing finding of fraud, explaining that “[t]he only issue to be discussed is whether you worked with another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase the chances of selection for the beneficiary.” Filing 6-2 at 2. This issue tracks part of the language of the attestation to the H-1B registration. The Revocation set out the evidence supporting USCIS's finding that AI Cyber Solutions’ attestation was “a willful misrepresentation of a material fact made to a USCIS official with the intent to deceive for the purposes of obtaining an immigration benefit” and AI Cyber Solutions’ failure to respond other than to seek withdrawal of the H-1B petition. Filing 6-2 at 2–5. Consequently, the Revocation states that AI Cyber Solutions’ H-1B petition was revoked with a finding of fraud, which meant “the beneficiary is no longer counted against the numerical limitations of section 214(g)(1) of the Act and is no longer exempt from the cap under section 214(g)(7) of the Act.” Filing 6-2 at 6.

b. The NOID to the New Employer and the Subsequent Decision

Turning to the NOID sent to Atabekov's new employer, Atabekov alleges the following:

39. In the substance of this NOID, USCIS focused almost entirely on the registrations that were submitted on Plaintiff Atabekov's behalf by his previous employer, AI Cyber Solutions. The NOID determined that three entities that had registered Plaintiff Atabekov in the H-1B lottery were “related through multiple facets.” Exh. 1 at 4. Notably, there was no finding that these companies were affiliates, parents, subsidiaries, or otherwise related as defined in 8 C.F.R. § 214.2(h)(2)[(i)](G) dealing with multiple petitions by related entities. Similarly, it appears no such finding was made in the actual Notice of Intent to Revoke (“NOIR”) sent to AI Cyber Solutions based on the ultimate revocation notice. ECF No. 6-2.

40. The NOID focused on the fact that one individual was a Registered Agent of one entity, Co-Owner of a second, and Registered Agent and Officer of a third. A different individual was Co-Owner/Officer/Director of one entity and Officer/Director of a second entity. A phone number is related to all three companies, though it is unclear in what way, and two of the companies additionally share office space. Exh. 1 at 4-5.

41. USCIS sent this Notice of Intent to Deny to Plaintiff Atabekov's new employer, which is completely unrelated to these entities. Nonetheless, the NOID requested that the new petitioning employer “provide a detailed explanation and supporting documentation that explains these irregularities and demonstrates that AI Cyber Solutions, Inc. did not work with another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase the chances of selection for the beneficiary and that the registration is based on a legitimate job offer.” Exh. 1 at 5.

42. Failure to do so, per the NOID, would result in not only the original petition being revoked with a finding of fraud, but the petition to change employers being denied with a finding of fraud. Exh. 1 at 5.

43. Ignoring the legal infirmities behind the revocation of the previous petition discussed throughout the complaint, USCIS essentially required an unrelated company located nearly 1,000 miles away to verify that three companies had legitimate job offers for Plaintiff Atabekov when they registered him for the H-1B lottery, and that they did not run afoul of the undefined prohibition on “unfairly increasing the odds of selection” by working together. Failure to do so would result in a finding that this unrelated company committed fraud in attempting to transfer the employment of Plaintiff Atabekov. The company is not party to the instant action, but this explanation is given to highlight how absurd Defendant's revocation procedures are under these ultra-regulatory criteria.

Filing 8 at 15–16 (¶¶ 39–43) (emphasis added).

The NOID itself is attached to Atabekov's Amended Complaint. Filing 8-1. The NOID detailed the reasons that USCIS believed AI Cyber Security had worked with another registrant, petitioner, agent, or other individual or entity during the registration process to unfairly increase their chances of selection for Atabekov. Filing 8-1 at 4–5. The NOID then stated the following:

USCIS intends to revoke the previous petition with a finding of fraud per 8 C.F.R. § 2l4.2(h)(8)(iii)(A)(l). A notice of intent to revoke has been sent on April 17, 2023, pending response from the AI Cyber Solutions Inc.

USCIS intends to deny the instant petition with a finding of fraud in the previous petition per 8 C.F.R. § 2l4.2(h)(8)(iii)(A)(1).

Filing 8-1 at 5. The second paragraph concerning USCIS's intent as to the new employer's H-1B petition flatly contradicts Atabekov's allegation that the new employer's failure to contradict the finding that AI Cyber Solutions’ H-1B petition for Atabekov was fraudulent “would result in a finding that this unrelated company committed fraud in attempting to transfer the employment of Plaintiff Atabekov.” Filing 8 at 16 (¶ 43). The only finding of fraud contemplated by the NOID was as to AI Cyber Solutions, not as to the new employer.

The NOID directed the new employer to do the following to avoid denial of the H-1B change-of-employer petition:

Provide a detailed explanation and supporting documentation that explains these irregularities and demonstrates that AI Cyber Solutions Inc did not work with another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary and that the registration is based on a legitimate job offer.

Filing 8-1 at 5; see also Filing 8-1 at 7 (reiterating this direction). There was no direction to the new employer to demonstrate that it had not engaged in fraud, just as there was no allegation that the new employer had engaged in fraud.

Atabekov's Amended Complaint does not indicate what if any response his new employer provided to the NOID. However, USCIS's decision on the NOID, which is attached to the Amended Complaint as Filing 8-3, and is thus embraced by it, see Rossi, 60 F.4th at 1193, does detail how the new employer responded. The decision states that USCIS requested that the new employer submit evidence showing that the organization or the beneficiary is exempt from the H-1B cap. Filing 8-3 at 2. The decision states, “On July 21, 2023, USCIS received [the new employer's] response.” Filing 8-3 at 1. The decision states,

Following your response, the record contains the following evidence related to whether your organization or the beneficiary is exempt from the H-1B cap:

• Copies of Forms I-797, Approval Notice, that previously granted the beneficiary H-1B classification.

• Copy of the beneficiary's master's or higher degree.

• The beneficiary's payroll records.

• Information about your organization's products or services.

However, you have not established that your organization or the beneficiary is exempt from the H-1B cap.

Filing 8-3 at 2. The decision also states,

[Y]our response to USCIS’ NOID provided no new evidence or discussion to address the beneficiary was previously counted against the H-1B cap and not exhausted their full period of authorized H-1B admission and/or evidence that the beneficiary was previously counted against the H-1B and is seeking an exemption from the six-year period of authorized admission limitation.

You did not avail yourself of the opportunity to rebut the information or present new information on your behalf and USCIS’ preliminary determination of fraud from the previous petition.

Filing 8-3 at 8. The decision contains no finding of fraud or other improper action by the new employer. See generally Filing 8-3.

The new employer's H-1B petition for Atabekov was ultimately denied on August 8, 2023. Filing 8 at 3 (¶ 5); Filing 8-3 at 8. “[B]ased on that underlying revocation, and the loss of his cap-number, the change of status petition filed on behalf of Plaintiff Atabekov was similarly denied.” Filing 8 at 17 (¶ 46) (citing Exh. 3); Filing 8-2. Atabekov alleges, “This has left Plaintiff Atabekov without status in the United States, without work authorization in the United States, and without the ability to apply for a new H-1B visa.” Filing 8 at 17 (¶ 46).

C. Procedural Background

Atabekov filed his original Complaint in this matter on August 11, 2023. Filing 1. That Complaint asserted two claims, one under the Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A), and the other pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, seeking a declaration that Atabekov could not have committed fraud or willful misrepresentation such that he can be inadmissible under 8 U.S.C. § 1182(a)(6)(C)(i). Filing 1 at 16–19 (¶¶ 47–61). USCIS filed its first Motion to Dismiss, Filing 6, on October 17, 2023, pursuant to Federal Rule of Civil Procedure 12(b)(1) (subject-matter jurisdiction) and 12(b)(6) (failure to state a claim). In response to USCIS's first Motion to Dismiss, Atabekov filed an Amended Complaint as a matter of course on November 7, 2023. Filing 8; see also Fed. R. Civ. P. 15(a)(1).

In his Amended Complaint, Atabekov asserts, “The revocation of the I-129 is actionable under the APA.” Filing 8 at 18 (¶ 50) (citing 5 U.S.C. § 702). He also alleges, “As a result of the improper revocation, Plaintiff Atabekov is ‘suffering legal wrong because of agency action’ and is ‘adversely affected or aggrieved by agency action,’ and is therefore entitled to judicial review under 5 U.S.C. § 702.” Filing 8 at 18 (¶ 51). He then asserts a single claim pursuant to 5 U.S.C. § 706(2)(A) that USCIS's revocation of his I-129 was arbitrary, capricious, and otherwise not in accordance with the law. Filing 8 at 18 (Count One). The gravamen of that claim is that the “new criteria” for the H-1B registration system set out in the attestation were not created through the notice-and-comment process, are not found in any policy guidance, and are entirely undefined, thus creating a system that is without authority. See Filing 8 at 19–21 (¶¶ 55–59). The challenge to the attestation is based on the part of the attestation requiring certification that the petitioner “ha[s] not worked with, or agreed to work with, another registrant, petitioner, agent, or other individual or entity to submit a registration to unfairly increase chances of selection for the beneficiary or beneficiaries in this submission.” See Filing 8 at 19 (¶ 56) (“There was no definition or clarification of what constitutes ‘working together’ or what activities ‘unfairly’ increase the chances of selection as opposed to fairly increasing the chances of selection.”). There is no challenge to the part of the attestation requiring certification “that this registration (or these registrations) reflects a legitimate job offer.” See Filing 8 at 18–21 (¶¶ 52–59).

On November 21, 2023, the Court denied USCIS's first Motion to Dismiss as moot without prejudice to filing of a motion directed at the Amended Complaint. Filing 10. As mentioned at the outset of this decision, USCIS then filed a Motion to Dismiss the Amended Complaint, seeking dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction—specifically, Atabekov's lack of standing—and pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim under the Administrative Procedures Act (APA). See Filing 11; see generally Filing 11-1. That Motion is now ripe and ready for disposition.

II. LEGAL ANALYSIS

Because USCIS's attack on the pleadings is two-pronged, the Court will address those prongs in turn to the extent necessary. The Court will begin with the threshold issue of subject-matter jurisdiction.

A. The Challenge to Subject-Matter Jurisdiction

1. Applicable Standards

a. Rule 12(b)(1) Standards

Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for a pre-answer motion to dismiss for “lack of subject-matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). The Eighth Circuit Court of Appeals has explained that on a Rule 12(b)(1) motion,

The plaintiff bears “the burden of proving the existence of subject matter jurisdiction,” and we may look at materials “outside the pleadings” in conducting our review. [Herden v. United States, 726 F.3d 1042, 1046 (8th Cir. 2013) (en banc)] (quoting Green Acres Enters., Inc. v. United States, 418 F.3d 852, 856 (8th Cir. 2005)). Because of the “unique nature of the jurisdictional question,” Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990) (citation omitted), it is the court's duty to “decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue,” id. at 730. As such, if the court's inquiry extends beyond the pleadings, it is not necessary to apply Rule 56 summary judgment standards. Id. at 729. Rather, the court may receive evidence via “any rational mode of inquiry,” and the parties may “request an evidentiary hearing.” Id. at 730 (quoting Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986)). Ultimately, the court must rule upon “the jurisdictional issue [unless it] is ‘so bound up with the merits that a full trial on the merits may be necessary to resolve the issue.’ ” Id. (quoting Crawford, 796 F.2d at 928).

Buckler v. United States, 919 F.3d 1038, 1044 (8th Cir. 2019); Am. Fam. Mut. Ins. Co. v. Vein Centers for Excellence, Inc., 912 F.3d 1076, 1081 (8th Cir. 2019) (“[A] motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) raises a factual challenge to the court's jurisdiction, and courts may look to evidence outside the pleadings and make factual findings.”) (citing Davis v. Anthony, Inc., 886 F.3d 674, 679 (8th Cir. 2018)).

The Buckler decision suggests that a challenge to subject matter jurisdiction pursuant to Rule 12(b)(1) is always “factual,” but “facial” challenges are also possible:

In deciding a motion under Rule 12(b)(1), the district court must distinguish between a facial attack—where it looks only to the face of the pleadings—and a factual attack—where it may consider matters outside the pleadings. Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990). In a factual attack, the “non-moving party does not have the benefit of 12(b)(6) safeguards.” Id. If the jurisdictional issue is “bound up” with the merits of the case, the district court may “decide whether to evaluate the evidence under the summary judgment standard.” Moss v. United States, 895 F.3d 1091, 1097 (8th Cir. 2018). This court is bound by the district court's characterization of the Rule 12(b)(1) motion. Carlsen v. GameStop, Inc., 833 F.3d 903, 908 (8th Cir. 2016) (“The method in which the district court resolves a Rule 12(b)(1) motion—that is, whether the district court treats the motion as a facial attack or a factual attack—obliges us to follow the same approach.”).

Croyle by & through Croyle v. United States, 908 F.3d 377, 380–81 (8th Cir. 2018). The “Rule 12(b)(6) safeguards” afforded the plaintiff on a facial challenge to subject-matter jurisdiction require the Court to “accept ‘the facts alleged in the complaint as true and draw[ ] all reasonable inferences in favor of the nonmovant.’ ” Bauer v. AGA Serv. Co., 25 F.4th 587, 589 (8th Cir. 2022) (quoting Pietoso, Inc. v. Republic Servs., Inc., 4 F.4th 620, 622 (8th Cir. 2021)).

In this case, USCIS acknowledges that a Rule 12(b)(1) challenge to subject matter jurisdiction may be either “facial” or “factual,” but USCIS does not expressly commit to one or the other kind of challenge in either its opening brief or its Reply. See Filing 11-1 at 16; see generally Filing 13. Atabekov argues that USCIS has asserted a “facial” attack where USCIS “claim[s] this Court lacks jurisdiction because Plaintiff lacks standing to bring this lawsuit.” Filing 12 at 2. The Court knows of no authority suggesting or holding that a challenge to standing is necessarily a “facial” challenge to subject-matter jurisdiction, and Atabekov has cited none. Nevertheless, the Court concludes that the challenge here is “facial” because the documents the parties have submitted are necessarily embraced by the Amended Complaint. See Rossi v. Arch Ins. Co., 60 F.4th 1189, 1193 (8th Cir. 2023) (“At the motion to dismiss stage, we can consider documents ‘necessarily embraced by the complaint,’ including ‘documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleadings.’ ” (quoting Zean v. Fairview Health Servs., 858 F.3d 520, 526 (8th Cir. 2017))). One attachment to Atabekov's Amended Complaint is the NOID sent to Atabekov's new employer, Filing 8-1; another is the Decision sent to Atabekov's new employer, Filing 8-3. Thus, these attachments are necessarily embraced by the pleadings. See Rossi, 60 F.4th at 1193. Similarly, although the NOIR and the Revocation are not attached to the Amended Complaint, they are embraced by the Amended Complaint because allegations in the Amended Complaint refer to them. See Rossi, 60 F.4th at 1193. USCIS submitted a copy of the NOIR and the Revocation with its Motion to Dismiss, see Filing 11-2 (NOIR); Filing 11-3 (Revocation), and the Court will consider them. Even considering these documents embraced by the Amended Complaint, Atabekov is entitled to Rule 12(b)(6) “safeguards.” Croyle, 908 F.3d at 380.

b. Requirements for Standing

USCIS's specific challenge to subject-matter jurisdiction is an assertion that Atabekov lacks “standing” to pursue his claim. Filing 11-1 at 16. “Establishing subject matter jurisdiction requires a party to show it has standing to sue.” Quiles v. Union Pac. R.R. Co., Inc., 4 F.4th 598, 603 (8th Cir. 2021) (citing Young Am. Corp. v. Affiliated Computer Servs. (ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005)); Religious Sisters of Mercy v. Becerra, 55 F.4th 583, 601 (8th Cir. 2022) (“Article III standing must be decided first by the court and presents a question of justiciability; if it is lacking, a federal court has no subject-matter jurisdiction over the claim”). Furthermore, a court “will not reach the merits if the plaintiff does not have standing.” McGowen, Hurst, Clark & Smith, P.C. v. Com. Bank, 11 F.4th 702, 708 (8th Cir. 2021). “To establish standing to sue in federal court, a plaintiff ‘must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.’ ” McNaught v. Nolen, 76 F.4th 764, 768–69 (8th Cir. 2023) (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)); accord Quiles, 4 F.4th at 603 (stating the second requirement to be that the injury “is caused by the challenged conduct”). USCIS asserts a lack of “traceability” and a lack of “redressability” in Atabekov's case. See, e.g., Filing 11-1 at 18–22. The Court will consider those two requirements in turn.

2. “Traceability”

a. The Parties’ Arguments

USCIS argues that Atabekov cannot trace his purported injury to USCIS. Filing 11-1 at 18. This is so, USCIS contends, because the root of Atabekov's challenge is the action of his former employer AI Cyber Solutions, which is a third party not before the Court. Filing 11-1 at 18. USCIS argues,

AI Cyber Solutions Inc. was found to have worked with other companies having common ownership and other common factors to submit multiple H-1B registrations on behalf of Plaintiff to increase the odds that a registration submitted on Plaintiff's behalf would be selected in the H-1B lottery, all to the detriment of other registrants and beneficiaries who abided by the rules. See Defendant's Exhibit B at 5-6 [Filing 11-3 at 5–6]. As a result, the basis for the Notice of Intent to Revoke was 8 C.F.R. § 214.2(h)(11)(iii)(A)(2): the statement of facts contained in the petition was not true and correct, inaccurate, fraudulent, or misrepresented a material fact because the petitioner represented that the petition was based on a valid registration selection notice. Id.

Filing 11-1 at 18–19. USCIS argues that the NOIR gave AI Cyber Solutions the chance to respond to the evidence of fraud. Filing 11-1 at 20. However, USCIS points out that AI Cyber Solutions failed to address the question of fraud and instead requested that its H-1B petition for Atabekov be withdrawn, which resulted in the petition being revoked and the final finding of fraud. Filing 11-1 at 20. USCIS asserts that it followed its statutory mandate under 8 U.S.C. § 1184(g)(3) by revoking Atabekov's cap number as a result of the revocation of the petition based on a finding of fraud or willful misrepresentation and that Atabekov was then no longer cap exempt. Filing 11-1 at 20. Similarly, USCIS argues that the petition filed by Atabekov's new employer claimed that Atabekov was cap exempt, and when the new employer was provided the opportunity to establish such cap exemption, it was unable to do so, and its change-of-employer H-1B petition was denied. Filing 11-1 at 20. In short, USCIS contends Atabekov's injuries are not directly traceable to USCIS but are instead directly traceable to Atabekov's former employer's actions in submitting the registration, filing the petition, and failing to respond to the NOIR with evidence that it did not engage in fraud. Filing 11-1 at 20.

Atabekov counters that his primary injury is the loss of his H-1B cap number, which is directly caused by USCIS unilaterally creating and implementing a new, substantive policy in the form of the attestation that changed the way the H-1B program is run, contrary to regulations that have undergone notice and comment, and contrary to decades of practice and procedure. Filing 12 at 3–4. Atabekov argues that what happened is that AI Cyber Solutions’ registration for him was selected and approved and that he lawfully changed jobs to a new employer. Filing 12 at 4. He argues that AI Cyber Solutions properly notified USCIS of the change of employer, and what should have happened absent the new attestation requirement is that USCIS would have automatically revoked the approved H-1B petition with no impact on Atabekov's H-1B cap number. Filing 12 at 4–5. Atabekov asserts,

What happened instead is that USCIS—based on criteria found in an attestation that are ambiguous and vague, that are not in [a] regulation, that did not go through the notice and comment process, and indeed that were not even mentioned in the Federal Register notice creating the H-1B Registration program—sent a Notice of Intent to Revoke (“NOIR”) Plaintiff's petition with a finding of fraud. This attestation requirement is the core of this lawsuit.

Filing 12 at 5. Atabekov asserts that when AI Cyber Solutions failed to “grapple” with the NOIR and instead requested that its H-1B petition be withdrawn, the petition was revoked, Atabekov lost his cap number, and he was no longer cap exempt. Filing 12 at 5. In Atabekov's view, “The chain of causation is clear, and it is ultimately Defendants’ creation, implementation, and enforcement of the ultra vires policy, which they treat as the substantive equivalent of the regulations governing the H-1B program (and indeed supplanting some of those regulations), that caused the loss of Plaintiff's H-1B cap number.” Filing 12 at 5.

In reply, USCIS argues that Atabekov lost his cap number because his former employer not only violated the attestation requirement but failed to overcome the allegations of fraud when given the opportunity to do so prior to revocation. Filing 13 at 2. USCIS asserts that Atabekov's position cannot be reconciled with at least the spirit of regulations and policies prohibiting related entities from submitting multiple H-1B petitions on behalf of the same beneficiary in the same fiscal year without a legitimate business need to file more than one petition. Filing 13 at 2 (citing 8 C.F.R. § 214.2(h)(2)(i)(G)). USCIS argues that Atabekov's position also cannot be reconciled with the statute requiring restoration of a cap number to the total available when a visa has been issued by fraud or willful misrepresentation of a material fact and the visa is revoked. Filing 13 at 3 (citing 8 U.S.C. § 1184(g)(3)). USCIS argues that because the H-1B petition process is employer-centric or employer-driven, Atabekov's purported injury is a direct result of his former employer's failure to rebut findings of fraud lodged against it, while USCIS's actions were mandated by statute and regulations. Filing 13 at 4.

b. “Traceability” Standards

As to the “traceability” requirement for standing, the Eighth Circuit Court of Appeals has explained, “An injury is fairly traceable if the plaintiff shows ‘a causal connection between the injury and the conduct complained of’ that is ‘not ․ th[e] result [of] the independent action of some third party not before the court.’ ” Muff v. Wells Fargo Bank NA, 71 F.4th 1094, 1100 (8th Cir. 2023) (quoting In re SuperValu, Inc., 870 F.3d 763, 768 (8th Cir. 2017)). Put another way, “ ‘[T]raceability ․ requires the plaintiff to show a sufficiently direct causal connection between the challenged action and the identified harm. That connection cannot be overly attenuated.’ ” Crain v. Crain, 72 F.4th 269, 278 (8th Cir. 2023) (quoting Agred Found. v. U.S. Army Corps of Eng'rs, 3 F.4th 1069, 1073 (8th Cir. 2021)).

c. Atabekov's Injury Is Traceable to His Original Employer's Misconduct not USCIS's Actions

Atabekov asserts, “The chain of causation is clear, and it is ultimately Defendants’ creation, implementation, and enforcement of the ultra vires policy ․ that caused the loss of [his] H-1B cap number.” Filing at 5. However, Atabekov's “traceability” argument rests on the fallacy that USCIS's attestation requirement directly caused him to lose his cap number and cap exemption. Atabekov argues that absent the “new” attestation requirement, USCIS would have automatically revoked the approved H-1B petition but there would have been no impact on Atabekov's H-1B cap number because there would have been no finding of fraud. Filing 12 at 4–5. This argument is as flawed as a speeding driver's assertion that the government caused him to get a ticket by setting speed limits, but the speeder would not have received a ticket but for his conduct in violating the speed limit. The situation here is that any causal connection between Atabekov's injury and USCIS's attestation requirement is “ ‘th[e] result [of] the independent action of some third party not before the court,’ ” that is, AI Cyber Solutions, which falsely attested that it had a job for Atabekov and that it had not worked with any other registrants to unfairly increase chances of selection for Atabekov. Muff, 71 F.4th at 1100 (quoting SuperValu, 870 F.3d at 768). Because a fraudulent statement or willful misrepresentation by a third party—here, the employer filing the petition—is required to violate the attestation, any causal connection between the prohibition in the attestation and the loss of Atabekov's cap number is not sufficiently “direct”; it is instead “overly attenuated.” See Crain, 72 F.4th at 278 (internal quotation marks and citations omitted).

Atabekov's assertion that the cause of his injury is the “new” attestation requirement is also flawed for another reason. The challenged part of the attestation explicitly forbids one specific kind of fraud, defined with some precision as “work[ing] with, or agree[ing] to work with, another registrant ․ to unfairly increase chances of selection for the beneficiary [Atabekov].” Filing 8 at 11 (¶ 28). Yet, the applicable statutes and regulations already make clear that any kind of “fraud” or “willful misrepresentation” in the registration or petition process would result in revocation of the petition. See 8 U.S.C. § 1184(g)(3) (providing for restoration of an alien's cap number if an alien “is found to have been issued such visa or otherwise provided such status by fraud or willfully misrepresenting a material fact and such visa or nonimmigrant status is revoked”); see also 8 C.F.R. § 214.2(h)(10)(ii) (“The petition will be denied if it is determined that the statements on the petition were inaccurate, fraudulent, or misrepresented a material fact.”); 8 C.F.R. § 214.2(h)(11)(iii)(A)(2) (providing for revocation if “[t]he statement of facts contained in the petition ․ was not true and correct, inaccurate, fraudulent, or misrepresented a material fact.”). As a matter of plain language, these more general statutory and regulatory prohibitions on “fraud” and “willful misrepresentation” encompass the specific kind of fraud or willful misrepresentation prohibited by the challenged part of the attestation. Atabekov's injury is no more traceable to the challenged part of the attestation than it is to these other prohibitions on fraud and willful misrepresentation where it is the conduct of a third party, AI Cyber Solutions, that violated the prohibitions.

Atabekov lacks “standing” to assert his claim because his injury is not “traceable” to USCIS's actions. Thus, this Court lacks subject-matter jurisdiction over Atabekov's claim. Quiles, 4 F.4th at 603 (“Establishing subject matter jurisdiction requires a party to show it has standing to sue.”). Under these circumstances, even granting Atabekov Rule 12(b)(6) “safeguards” on USCIS's facial challenge to subject-matter jurisdiction, dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate. Coyle, 908 F.3d at 380-81.

Nevertheless, the Court will also consider whether Atabekov's injury is “redressable” as required for standing.

3. “Redressability”

a. The Parties’ Arguments

USCIS asserts that even if Atabekov could establish that his injury is fairly traceable to USCIS, a favorable decision from this Court would not redress his injury. Filing 11-1 at 20–21. USCIS asserts that this is so, because USCIS cannot reopen and reinstate an H-1B petition approval that was withdrawn by non-party AI Cyber Solutions and automatically revoked consistent with DHS regulations. Filing 11-1 at 21. USCIS also argues that restoring a cap number to a beneficiary when it was obtained based on a fraudulent petition would be inconsistent with 8 U.S.C. § 1184(g)(3). Filing 11-1 at 211.

Atabekov contends that USCIS's argument misses several key points. First, Atabekov argues that he is not requesting that his revoked I-129 be reinstated but only reopened with reallocation of his cap number. Filing 12 at 6. Atabekov also argues that the Court can remedy agency actions that are unlawful even if they are in accordance with agency regulations. Filing 12 at 7. He also argues that the Court has sufficient power to remedy his injury by invoking the basic powers of the judiciary, such as the All Writs Act. Filing 12 at 8.

b. “Redressability” Standards

As to the “redressability” requirement for standing, the Eighth Circuit Court of Appeals has explained, “Redressability exists when a favorable decision will relieve the plaintiffs of a discrete injury, even if it does not relieve them of every injury, or if the risk of injury would be reduced to some extent if [the plaintiffs] received the relief they seek.” Animal Legal Def. Fund v. Reynolds, No. 22-3464, 2024 WL 74907, at *4 (8th Cir. Jan. 8, 2024) (internal quotation marks and citations omitted). Thus, an alleged injury is not redressable where “even if the challenged provision were nullified, [the plaintiff] would not have received relief [because] its [conduct] would have remained prohibited,” for example, where “other unchallenged” regulations also prevented the plaintiff's conduct. Id.

c. Atabekov's Injury Is Not Redressable Even If the Court Nullifies the Challenged Part of the Attestation

As mentioned above, Atabekov asserts that the “attestation requirement is the core of this lawsuit,” and—contrary to the Court's conclusion above—he purportedly traces the chain of causation between the attestation and his loss of his H-1B cap number. Filing 12 at 5. It follows that the redressability question is whether his injury would be relieved if the Court were to nullify the challenged part of the attestation requirement. See Animal Legal Def. Fund, 2024 WL 74907, at *4 (explaining that an alleged injury is not redressable if the plaintiff would not receive the relief that the party seeks even if the challenged conduct were nullified). The Court concludes that even if the challenged part of the attestation requirement were nullified, Atabekov's injury would not be relieved, because other unchallenged parts of the attestation and other unchallenged regulations would also prohibit fraud or willful misrepresentation in the registration and petition for Atabekov's H-1B visa.

Again, the applicable statutes and regulations already make clear that any kind of “fraud” or “willful misrepresentation” in the registration or petition process would result in revocation of the petition. See 8 U.S.C. § 1184(g)(3) (providing for restoration of an alien's cap number if an alien “is found to have been issued such visa or otherwise provided such status by fraud or willfully misrepresenting a material fact and such visa or nonimmigrant status is revoked”); see also 8 C.F.R. § 214.2(h)(10)(ii) (“The petition will be denied if it is determined that the statements on the petition were inaccurate, fraudulent, or misrepresented a material fact.”); 8 C.F.R. § 214.2(h)(11)(iii)(A)(2) (providing for revocation if “[t]he statement of facts contained in the petition ․ was not true and correct, inaccurate, fraudulent, or misrepresented a material fact.”). Again, as a matter of plain language, these more general statutory and regulatory prohibitions on “fraud” and “willful misrepresentation” encompass the specific kind of fraud or willful misrepresentation prohibited by the challenged part of the attestation. Even if the Court were to nullify the challenged part of the attestation requirement, Atabekov's H-1B status would have been revoked under these other unchallenged prohibitions on fraud and willful misrepresentation and the unchallenged part of the attestation.

For example, Atabekov asserts that the attestation described in the 2019 notice of final rule does not discuss “working together” or “unfairly increasing the chances of selection,” as set out in the 2023 attestation. Filing 12 at 10. Instead, he asserts that the attestation was described in the 2019 notice of final rule as follows: “DHS will require registrants to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed. This attestation is intended to ensure that each registration is connected with a bona fide job offer and, if selected, will result in the filing of an H-1B petition.” Filing 12 at 10 (citing 84 Fed. Reg. 88, 903 (Jan. 31, 2019)). Indeed, Atabekov asserts, “Throughout the final rule, all references to an attestation requirement relate solely to an attestation that a valid job offer exists.” Filing 12 at 11. The first line of the 2023 attestation likewise states, “I further certify that this registration (or these registrations) reflects a legitimate job offer ․” Filing 8 at 11 (¶ 28). Atabekov does not challenge this part of the attestation in AI Cyber Solutions’ registration or petition.

The Revocation decision details the evidence that three entities—AI Cyber Solutions, Techruit Solutions LLC, and Cyber Chasse Inc.—“appear to be related through multiple facets.” Filing 11-3 at 4. This evidence led USCIS to conclude, “Based on the 3 different related companies having the same registered the same [sic] beneficiary and the information above, you have not provided enough evidence to demonstrate that you have a valid offer of employment.” Filing 11-3 at 4. The Revocation then explains that AI Cyber Solutions’ response to the NOIR was not sufficient so that “USCIS’ preliminary determination of fraud on 04/17/2023, stands.” Filing 11-3 at 5. The Revocation thus would stand on a fraudulent attestation that AI Cyber Solutions had a valid offer of employment, irrespective of whether it could also properly rely on a fraudulent attestation that AI Cyber Solutions did not work with another registrant to submit a registration to unfairly increase chances for selection for Atabekov.

Consequently, Atabekov's injury is not “redressable,” he lacks standing, and this Court lacks subject-matter jurisdiction. Under these circumstances, even granting Atabekov Rule 12(b)(6) “safeguards” on USCIS's facial challenge to subject-matter jurisdiction, dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate. Coyle, 908 F.3d at 380-81.

B. The Alleged Failure to State a Claim

The second prong of USCIS's challenge to the Amended Complaint asserts failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). However, because the Court lacks subject-matter jurisdiction, it would be inappropriate for the Court to consider the adequacy of the statement of claims in the Amended Complaint. See McGowen, Hurst, Clark & Smith, P.C. v. Com. Bank, 11 F.4th 702, 708 (8th Cir. 2021) (explaining that a court “will not reach the merits if the plaintiff does not have standing”); Sianis v. Jensen, 294 F.3d 994, 997 (8th Cir. 2002) (“Subject matter jurisdiction is a threshold matter that [courts] are obligated to address at the outset.”); see also Andrade v. JBS USA, No. 422CV00164RGEHCA, 2022 WL 20689769, at *5 (S.D. Iowa Aug. 29, 2022) (“Because the Court lacks subject matter jurisdiction, it cannot consider Defendants’ motion to dismiss for failure to state a claim.”); Alissa's Flowers, Inc. v. State Farm Fire & Cas. Co., No. 2:20-CV-04093-BCW, 2020 WL 6555048, at *4 (W.D. Mo. Oct. 22, 2020), (“Because the Court lacks jurisdiction, it refrains from considering State Farm's 12(b)(6) arguments on the merits of Alissa's Flowers claims.”), aff'd, 24 F.4th 1212 (8th Cir. 2022). The Court does not address the second part of USCIS's Motion to Dismiss.

III. CONCLUSION

Upon the foregoing,

IT IS ORDERED that the Motion to Dismiss Plaintiff's First Amended Complaint by defendants USCIS and Loren Miller in his official capacity as Director of the USCIS Nebraska Service Center, Filing 11, is granted, and this case is dismissed for lack of subject-matter jurisdiction.

FOOTNOTES

1.   “Specialty occupations” are defined in 8 U.S.C. § 1184(i). The H-1B classification is further described in 8 C.F.R. § 214.2(h)(1)(ii)(B).

2.   See https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronic-registration-process (showing the increasing number of excess applications for H-1B visas over recent years).

3.   See H-1B Electronic Registration Process, USCIS, https://www.uscis.gov/working-in-the-unitedstates/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-electronicregistration-process.

Brian C. Buescher, United States District Judge