A federal judge has allowed a lawsuit against Marco Rubio to move forward after rejecting the government’s attempt to have the case dismissed. The legal challenge was filed by three foreign nationals who say the U.S. government has unreasonably delayed decisions on their EB-1A visa applications. The plaintiffs applied for EB-1A visas, a category reserved for individuals with “extraordinary ability” in fields such as science, arts, and business. They argue their petitions have been stalled for more than 16 months without a final determination. The case, Lyazat Tolymbekova, et al. v. U.S. Secretary of State Marco Rubio, et al., involves a metallurgist from Kazakhstan, a Russian project manager, and a Russian makeup artist.
All three applications were placed in administrative processing under Section 221(g) of the Immigration and Nationality Act. That provision allows consular officers to temporarily refuse a visa while additional information or security checks are completed. The plaintiffs claim the prolonged delays have caused significant personal and professional hardship. Lyazat Tolymbekova says the delay has kept her separated from her U.S. citizen daughter, causing her to miss major milestones, including her daughter’s college graduation, and preventing her from providing support during a medical emergency. The other two applicants say the uncertainty surrounding their immigration status has forced them to pause career opportunities and postpone family plans. In seeking dismissal, the government argued that the court lacked authority to review the case under the doctrine of consular nonreviewability, which typically prevents courts from questioning visa decisions made by U.S. consular officers abroad.
However, Magistrate Judge Zia M. Faruqui ruled that the doctrine does not apply in this situation. He explained that a Section 221(g) refusal is not considered a final decision because the State Department’s own guidance indicates that such applications will be reconsidered once administrative processing is complete. Faruqui also rejected the government’s claim of sovereign immunity. He determined that the Administrative Procedure Act allows lawsuits seeking injunctive relief against federal agencies when plaintiffs are not requesting monetary damages. The judge emphasized that the State Department has a clear obligation to either approve or deny visa applications once they are properly submitted. According to the ruling, that duty has not yet been fulfilled in this case. Although the court did not decide whether the delays themselves are legally “unreasonable,” the ruling allows the lawsuit to proceed. The next phase of the case could ultimately determine whether the court will compel the government to issue final decisions on the visa applications.
