LIBRADO RUIZ SANTANA SUGEY PINEDA GUTIERREZ NAVEEN KUMAR ANGELINA FAJARDO ALBARRAN JAVIER OMAR MORALES ADAME EDUARDO LUEVANO v. JOSEPH EDLOW DIRECTOR CITIZENSHIP AND IMMIGRATION SERVICES (2026)

ORDER

The “U visa” program grants certain protections to non-citizens who are the victims of serious crimes and who provide assistance to law enforcement to help solve those crimes. This matter pertains to six non-citizen individuals who have sought U visas from the federal government and find themselves awaiting action on their applications. Defendant Joseph B. Edlow, the Director of U.S. Citizenship and Immigration Services (“USCIS”), has moved to dismiss on jurisdictional grounds, asserting that the Court lacks subject matter jurisdiction over the USCIS's adjudication of U visas, which is dictated by agency discretion. For the reasons below, Defendant's Motion to Dismiss [Doc. 10] is GRANTED.

I. BACKGROUND

The U visa is a humanitarian immigration benefit created by Congress for non-citizen crime victims who assist law enforcement in the investigation or prosecution of the crime committed against them. Created in 2000, the U visa offers these non-citizens a measure of protection from deportation and an eventual path to legal immigration status, creating an incentive to cooperate with law enforcement. When Congress enacted this program, it capped the number of U visas that could be issued annually at 10,000. 8 U.S.C. § 1184(p)(2)(A). USCIS has met that statutory cap every year since 2010.¹

Given the mismatch between the supply and demand of U visas, adjudication of U visa petitions happens in two stages. USCIS first determines whether a petitioner is eligible for a U visa. This preliminary decision is referred to as a “bona fide determination” — i.e., a weighing of the merits of the petition. This preliminary, bona fide determination can go one of three ways. See 8 C.F.R. § 214.14(d)(2). First, if the petitioner is deemed ineligible for a U visa, USCIS will deny the petition. Second, if the petitioner is deemed eligible for a U visa and the annual cap has not been reached for that fiscal year, USCIS will issue a U visa to the petitioner. Third, if the petitioner is deemed eligible for a U visa but the annual cap has been reached for that fiscal year, “eligible petitioners ․ must be placed on a waiting list.” Id. The waiting list operates on a first-come, first-served basis, and USCIS grants U visas to petitioners on the waiting list as they become available. Placement on the U visa waiting list comes with tangible benefits: the petitioner and their qualifying family members receive deferred action on removal from the country and may also receive work authorization. Id. According to USCIS's public statements, the standard processing time for U visa bona fide determinations is roughly 19.5 months. (MTD Am. Compl., Doc. 10 at 14). See also USCIS, Case Processing Times, https://egov.uscis.gov/processing-times/.

Plaintiffs are six non-citizen immigrants present in the United States: Librado Ruiz Santana, Sugey Pineda Gutierrez, Naveen Kumar, Angelina Fajardo Albarran, Javier Omar Morales Adame, and Eduardo Luevano. Plaintiffs have all filed I-918 petitions for U visas, on varying dates between January 30, 2023, and April 22, 2025. At time of filing, Plaintiffs had waited between 5 and 32 months for their eligibility determinations. Thus, they have now waited between 15 and 42 months. USCIS has not conducted a bona fide determination for any of the Plaintiffs' petitions and, as such, has not placed any of the petitioners on the U visa waiting list. (See Compl., Doc. 1 ¶¶ 16–20;² see also Am. Compl., Doc. 9 ¶¶ 15–18).

Plaintiffs filed suit in September 2025, contending that USCIS has unreasonably delayed adjudication on their U visa eligibility determinations and seeking an order compelling agency action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(1). (Compl., Doc. 1 ¶¶ 1–3). Plaintiffs amended their Complaint in January 2026. (See Am. Compl., Doc. 9). Defendant has moved to dismiss the Amended Complaint on two grounds, arguing, first, that the Court lacks subject matter jurisdiction and, second, that the complaint fails to state a claim. (MTD Am. Compl., Doc. 10). The Motion to Dismiss is fully briefed and ripe for the Court's consideration. (Id.; Response, Doc. 11; Reply, Doc. 12).

II. SUBJECT MATTER JURISDICTION

Defendant first moves to dismiss this action for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). Subject matter jurisdiction circumscribes the Court's power to hear a case and is thus a fundamental threshold issue. “[O]nce a federal court determines that it is without subject matter jurisdiction, the court is powerless to continue.” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Plaintiff bears the burden of establishing the Court's subject matter jurisdiction. McCormick v. Aderholt, 293 F.3d 1254, 1257 (11th Cir. 2002).

“Administrative action is presumptively subject to review by the courts.” Kanapuram v. Dir., USCIS, 131 F.4th 1302, 1306 (11th Cir. 2025) (citing Kucana v. Holder, 558 U.S. 233, 251 (2010)). Indeed, the APA explicitly empowers courts to “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). But that authority is not unlimited. Federal courts may not review or compel agency action that Congress has committed to an agency's discretion. Thus, the “presumption [of reviewability] can be overcome by ‘clear and convincing evidence’ of congressional intent to preclude judicial review.” Kanapuram, 131 F.4th at 1306 (citing Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 64 (1993)).

As relevant here, the Immigration and Nationality Act (“INA”) and the APA both limit judicial authority over discretionary agency action. First, the INA bars review of “any [ ] decision or action” of the Secretary of Homeland Security for which “the authority ․ is specified ․ to be in the discretion of” the Secretary. 8 U.S.C § 1252(a)(2)(B)(ii). Like the INA, the APA also precludes review of actions “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Again, Congress has specifically authorized courts to “compel agency action unlawfully withheld or unreasonably delayed.” Id. § 706(1). But the Supreme Court has held that Section 706(1) permits relief only “where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take.” Norton v. S. Utah Wilderness All., 542 U.S. 55, 64 (2004) (emphasis in original). Courts may therefore compel only ministerial, non-discretionary duties. Id. The contours of what decisions are discretionary are less than perfectly clear.

Courts in this District and, indeed, across the country, split on the issue of whether federal courts have jurisdiction to compel adjudication of a U visa petition. See, e.g., Hidalgo Canevaro v. Wolf, 540 F. Supp. 3d 1235, 1241–1243 (N.D. Ga. 2021) (Jones, J.) (holding that adjudication of U visa applications is discretionary because Congress “did not set a time by which an application must be considered for waitlist eligibility” and that court lacks subject matter jurisdiction); Alvarado v. Wolf, 2021 WL 3828644 (N.D. Ga. Aug. 25, 2021) (Jones, J.) (same); Hasan v. Wolf, 550 F. Supp. 3d 1342, 1349–1352 (N.D. Ga. 2021) (Boulee, J.) (same); Jiwani v. Dir., USCIS, 2026 WL 788945, at *7 (N.D. Ga. Mar. 18, 2026) (Cohen, J.) (holding same and collecting cases). But see, e.g., Moreno v. Wolf, 558 F. Supp. 3d 1357, 1364–1365 (N.D. Ga. 2021) (Thrash, J.) (“Congress gave the USCIS a non-discretionary duty to adjudicate U-visa applications when it required the agency to ‘promulgate regulations’ implementing the program. It follows then that the agency must perform this duty to adjudicate applications ‘within a reasonable time’ under the APA.” (citations omitted)); Lara Santiago v. Mayorkas, 554 F. Supp. 3d 1340, 1346–1348 (N.D. Ga. 2021) (Brown, J.) (same); Lara v. Mayorkas, 2021 WL 3073690, at *3 (N.D. Ga. Apr. 16, 2021) (Pannell, J.) (same).

A recent Eleventh Circuit case also provides relevant context for the Court's determination of its jurisdiction here. In Kanapuram, 131 F.4th at 1302, the plaintiffs applied for EB-2 employment-based visas and sought to compel USCIS's processing thereof. As in the instant case, the INA imposes a cap on the number of EB-2 visas that can be issued annually. The State Department estimates and publishes a “cut-off date” for the availability of different visa categories — i.e., if an applicant submitted a visa petition before that date, they will likely receive a visa that year. But that cut-off date can change, and even move earlier, when the statutory cap is reached. The potential that a cut-off date may move earlier is referred to as the “retrogression policy.” Id. at 1305. Meanwhile, the relevant statutory provision, Section 1255(a), explicitly “gives the Department of Homeland Security and USCIS broad discretion to determine and implement the adjudicative process for Form I-485 applications, within the bounds set by statute.” Id. at 1307.

In Kanapuram, plaintiffs challenged not merely the delay in the processing of their visas, but also the use of the retrogression policy more broadly. Against that backdrop, the Eleventh Circuit held that it did not have jurisdiction to compel adjudication because the retrogression policy — and, thus, the pace of visa adjudication — were exercises of agency discretion. “As the Fifth Circuit has explained, [Section] 1255(a)'s grant of discretion includes not only the ultimate decision to approve or deny a visa, but also ‘actions taken in the course of the decision-making process—including the pace at which that process is undertaken[.]’ ” Kanapuram, 131 F.4th at 1307 (citing Cheejati v. Blinken, 106 F.4th 388, 394 (5th Cir. 2024), cert. denied, 145 S. Ct. 1126 (2025)).

The interpretive reach of the Kanapuram decision is yet unclear. But the Court is loath to apply it so broadly that it would be controlling as to the pace of U visa adjudication. The Eleventh Circuit held that it “lack[ed] jurisdiction to review both the decision ․ and the inextricably intertwined process prescribed by the Secretary for reaching that decision.” Id. at 1308 (quoting Geda v. Dir., USCIS, 126 F.4th 835, 844 (3d Cir. 2025)). But that decision was specific to the unique retrogression policy at issue. Moreover, an unduly broad reading of Kanapuram would essentially render Section 706(1) of the APA — which explicitly empowers courts to “compel agency action unlawfully withheld or unreasonably delayed” — void in the immigration context.

III. FAILURE TO STATE A CLAIM

Against that murky backdrop, the Court assumes arguendo that it has jurisdiction and finds that, either way, the result is the same: dismissal. In addition to its jurisdictional argument, Defendant alternatively moves to dismiss Plaintiffs' claims for failure to state a claim. Under Rule 12(b)(6), the Court accepts well-pleaded factual allegations as true and determines whether the complaint states a plausible claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678, 680–681 (2009).

Under the APA, an agency shall, “within a reasonable time ․ proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). The Court notes that, on its face, Plaintiffs' operative, amended complaint does not state a claim for relief, as it does not even indicate when Plaintiffs filed their U visa applications, making it impossible to determine whether the agency's delay in adjudicating them has been reasonable. (Compare Doc. 1, with Doc. 9). The operative complaint states only that “Plaintiffs' petitions have been pending for periods ranging from several months to multiple years.” (Amd. Compl., Doc. 9 ¶ 16). Thus, the Court would be well within its authority to stop its analysis here and dismiss the Amended Complaint as without merit.

However, the Court acknowledges Plaintiffs' prior representation that, as of July 2026, they have been waiting between 15 and 42 months for adjudication of their U visa applications. Specifically, Plaintiffs Librado Ruiz Santana and Sugey Pineda Gutierrez have waited 42 months for adjudication of their applications. Plaintiff Naveen Kumar has waited 17 months. Plaintiff Angelina Fajardo Albarran has waited 16 months. Plaintiff Javier Omar Morales Adame has waited 19 months. Plaintiff Eduardo Luevano has waited 15 months. (Compl., Doc. 1 ¶¶ 16–20).

The Court first notes that, according to USCIS's publicly available estimates, the average processing time for U visa applications is 19.5 months.³ Case Processing Times, USCIS, https://egov.uscis.gov/processing-times. Four of the six Plaintiffs have thus waited less time than the average U visa petitioner. And, in reality, the significant backlog of U visa applications means it is not uncommon for applicants to wait much longer than 19.5 months for an initial determination. Thus, at first blush, it is difficult to say that, for at least those four Plaintiffs, the agency's delay is unreasonable.

In evaluating whether an agency's delay is reasonable in context, courts look to the six considerations set forth in Telecommunications Research and Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984) (“TRAC”). Those considerations are:

(1) the time agencies take to make decisions must be governed by a “rule of reason,”

(2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason;

(3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake;

(4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority;

(5) the court should also take into account the nature and extent of the interests prejudiced by delay; and

(6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ”

Id. at 80; see also Hidalgo Canevaro, 540 F. Supp. 3d at 1244 (applying TRAC considerations to U visa unreasonable delay claim). The Court will weigh each of these considerations in turn.⁴

Rule of Reason (#1) & Competing Priorities (#4).

First, the Court finds that USCIS's policy of processing U visa applications on a “first in, first out” basis is a “rule of reason.” (See MTD, Doc. 10 at 4–5). See Jiwani, 2026 WL 788945, at *9 (collecting cases in the Northern District of Georgia). “Indeed, it would appear that if this Court were to grant Plaintiff's request to order the adjudication of Plaintiff's application in contravention of the first-in, first-out order, it would undermine this rule of reason by ‘simply moving all other petitioners back one space and producing no net gain.’ ” Id. (quoting Alvarado, 2021 WL 3828644, at *7).

The fourth TRAC factor, which considers the competing priorities of an agency, goes to the same issue. Judicial intervention here would simply allow Plaintiffs to “cut the line” in front of other U visa petitioners who have awaited adjudication for an equally long time. In this case, each U visa petitioner has a competing interest — for the time and resources of USCIS.

To this point, “Plaintiffs expressly disavow any request for preferential treatment, expedited processing, or movement ahead of other U visa petitioners.” (Am. Compl., Doc. 9 ¶ 2). It is unclear, then, how Plaintiffs envision their relief sought. Adjudication of their petitions would, inherently, divert resources from adjudication of those submitted earlier. See also Flores v. Sec'y, DHS, 2026 WL 1847415, at *9 (N.D. Ala. June 26, 2026) (“Because USCIS processes petitions for U Visas in the order in which they were received (see, e.g., 8 C.F.R. § 214.14(d)(2)), this court cannot order that Plaintiffs cut the line—i.e., order USCIS to adjudicate Plaintiffs' petitions for U Visas immediately or in a time certain, ahead of those unadjudicated petitions that were filed before Plaintiffs' petitions—without ordering USCIS to violate its own regulation and policy.”). This reality weighs against a finding of unreasonable delay, particularly given the enormous backlog of unprocessed U visa petitions and the relatively short wait time that Plaintiffs have endured, compared to the agency-published average.

Human Health & Welfare (#3) & Interests Prejudiced (#5).

Undoubtedly, the delayed processing of their U visa petitions significantly prejudices Plaintiffs' welfare. Indeed, it is not difficult to understand why Plaintiffs feel they are in a “legal limbo.” (Amd. Compl., Doc. 9 ¶ 19). The agency's delay in processing their U visas has deprived Plaintiffs of stability in many facets of their lives, including deferred action on removal and tangible employment benefits. 8 C.F.R. § 214.14(d)(2). Both the third and fifth TRAC factors recognize that serious concern. Sadly, however, the reality is that “every U Visa applicant waiting to be considered for waitlist eligibility is in the same position, and thus a juridically-sanctioned re-ordering of USCIS's process would net no prioritization of human welfare.” Hidalgo Canevaro, 540 F. Supp. 3d at 1245.

IV. CONCLUSION

Plaintiffs face a difficult situation. They came forward to assist law enforcement, as the U visa contemplates, and have waited for USCIS to act on their petitions in a timely manner. Certainly, “USCIS simply does not possess unfettered discretion to relegate aliens to a state of ‘limbo,’ leaving them to languish there indefinitely.” Mayorkas, 2021 WL 3073690, at *3 (quoting Kim v. Ashcroft, 340 F. Supp. 2d 384, 393 (S.D.N.Y. 2004)) (cleaned up). But given the significant backlog of U visa applications and the constraints on USCIS's processing of them, it is not the case here that the agency has left Plaintiffs to “languish [ ] indefinitely,” even for those who have waited a longer time. As such, Defendant's Motion to Dismiss [Doc. 10] is GRANTED. This matter is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to CLOSE the case.

IT IS SO ORDERED this 20th day of July, 2026.

FOOTNOTES

1.   USCIS, Petition for U Nonimmigrant Status, by Fiscal Year, Quarter, and Case Status, http://www.uscis.gov/sites/default/files/document/data/i918u visastatistics fy2024 q4.xlsx.

2.   Though the Amended Complaint is operative, the Court refers to the original Complaint only for contextual information.

3.   The Court notes that this estimate relates to the agency's preliminary determination, not issuance of the visa itself.

4.   The second and sixth TRAC factors are immaterial to the Court's consideration here. Where “no statute sets a deadline for an agency action, the second TRAC factor is not relevant to an ‘unreasonably delayed’ analysis.” Jiwani v. Dir., USCIS, 2026 WL 788945, at *10 (N.D. Ga. Mar. 18, 2026) (quoting Barrios Garcia v. DHS, 25 F.4th 430, 453 (6th Cir. 2022)). Additionally, Plaintiffs have not alleged impropriety on the part of the agency.

Honorable Amy Totenberg United States District Judge