The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Yiyun Wang, )
)
Plaintiff, )
) No. 24 C 9021
v. )
) Judge Jorge L. Alonso
United States Citizenship and, )
Immigration Services )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Defendant United States Citizenship and Immigration Services (“USCIS”) rejected a
petition for Plaintiff Yiyun Wang to receive an H-1B visa. In response, Wang filed this lawsuit.
USCIS now moves to dismiss under Rule 12(b)(1) arguing that Wang lacks Article III standing
and under Rule 12(b)(6) arguing that Wang failed to state a claim. Though Wang has standing
under Article III, she fails to state a claim under Rule 12(b)(6), and the case is dismissed.
Legal Standard
A Rule 12(b)(1) motion tests whether a court lacks subject matter jurisdiction, such as a
lack of standing. Bazile v. Fin. Sys. of Green Bay, Inc., 983 F.3d 274, 279 (7th Cir. 2020). To
survive dismissal, the plaintiff must “allege sufficient factual matter to support the inference that
standing exists.” In re Recalled Abbott Infant Formula Prods. Liab. Litig., 97 F.4th 525, 528
(7th Cir. 2024). This means that the plaintiff “must clearly allege facts demonstrating each element
of the standing inquiry.” Id. (citations omitted). The three elements of standing are (1) an injury in
fact (2) that is fairly traceable to the challenged action of the defendant and (3) that it is likely, not
merely speculative, that the injury will be redressed by a favorable decision. Id.
A Rule 12(b)(6) motion “tests whether the complaint states a claim on which relief may be
granted.” Richards v. Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). A complaint must provide “a
short and plain statement of the claim” and must “contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 677–78
(2009) (citations omitted). Facial plausibility exists when the plaintiff pleads factual content that
“allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. at 678.
In deciding a motion to dismiss—both a Rule 12(b)(1) facial challenge regarding subject
matter jurisdiction and a Rule 12(b)(6) failure to state a claim—the Court accepts the well-pleaded
facts in the complaint as true and draws reasonable inferences in the plaintiff’s favor. Esco v. City
of Chicago, 107 F.4th 673, 678 (7th Cir. 2024); Prairie Rivers Network v. Dynegy Midwest
Generation, LLC, 2 F.4th 1002, 1007 (7th Cir. 2021).
Background
Under the Immigration and Nationality Act (“INA”), United States employers may apply
for employment visas for foreign workers. 8 U.S.C. § 1101 et seq. The “H-1B visa” applies to
foreign workers who come to the United States temporarily to work in a “specialty occupation.”
8 U.S.C. §§ 1101(a)(15)(H)(i)(B). Congress placed an annual cap on the number of H-1B visas,
8 U.S.C. § 1184(g), and the demand for visas exceeds the cap. R. 13 at 2–3. To manage the high
demand, USCIS implemented a registration requirement. Id. The registrations are put in a random
selection lottery system and, USCIS notifies “all petitioners with selected registrations that the
petitioner is eligible to file an H–1B cap-subject petition on behalf of the beneficiary named in the
notice within the filing period indicated on the notice.” 8 C.F.R. § 214.2(h)(8)(iii)(C). USCIS “may
deny or reject” untimely petitions. 8 C.F.R. § 214.2(h)(8)(iii)(D)(3).
Plaintiff Yiyun Wang is a citizen of China. R. 1 ¶ 14. Axtria, an American technology
company, registered with USCIS to file an H-1B petition on Wang’s behalf. Id. at ¶¶ 16–17. The
lottery system selected Axtria’s registration and USCIS provided notice that Axtria should file its
petition between April 1, 2024 and June 30, 2024. Id. at ¶ 18. On June 14, Axtria mailed the
petition via UPS with a scheduled delivery date to USCIS of June 18. Id. at ¶ 19. UPS failed to
deliver the petition to USCIS and instead returned the petition to Axtria on July 9. Id. at ¶ 21.
Axtria mailed the petition a second time and it was delivered to USCIS on July 15. Id. at ¶ 22.
Though Axtria requested that USCIS equitably toll the time for filing, USCIS rejected the petition
as untimely without acknowledging or responding to Axtria’s request. Id. at ¶¶ 23–24.
In response, Wang filed this lawsuit seeking a court order (1) to compel USCIS to accept
the petition for filing; or (2) to set aside the rejection of the petition as unlawful and compel USCIS
to render a decision within thirty days. R. 1 ¶¶ 27–33. USCIS now moves to dismiss. R. 12.
Discussion
I. Standing
In its motion to dismiss, USCIS challenges only the second and third elements of standing.
R. 13 at 10–13. Regarding traceability, a plaintiff must show a “causal connection between the
injury and the conduct complained of.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). In
other words, the injury must be related to the defendant’s conduct and “not the result of the
independent action of some third party not before the court.” Id. (citations omitted). In its motion
to dismiss, USCIS argues that the rejection of Wang’s petition was caused by UPS’s late delivery
rather than by USCIS. R. 13 at 10–11. True, UPS’s botched delivery was part of the causal chain.
But traceability is “less demanding than proximate causation” and traceability “does not fail solely
because there are several links or because a single third party’s actions intervened.” O’Handley v.
Weber, 62 F.4th 1145, 1161 (9th Cir. 2023) (citations omitted). And as alleged, Wang’s injury—
her failure to obtain an H-1B visa—was also caused, at least in part, by USCIS because USCIS
declined to consider Axtria’s request for equitable tolling. See R. 1, ¶¶ 23–24. This is sufficient to
demonstrate traceability.1
Regarding redressability, if the Court were to compel USCIS to accept the petition, this
would remedy Wang’s injury. Alternatively, if the Court were to compel USCIS to consider the
petition, the likely result would be that USCIS would grant the H-1B visa—given a reasonable
inference in Wang’s favor that the only defect in the petition was its untimely arrival to USCIS.
This meets the standard, stated above, for redressability. USCIS argues, however, that the Court
cannot “compel USCIS to violate its own regulation to accept Axtria’s untimely petition for
adjudication.” R. 13 at 12.
It is correct that courts cannot compel an agency to violate a regulation. Taylor v.
McCament, 875 F.3d 849, 853–55 (7th Cir. 2017). Indeed, where the plaintiff seeks relief that
would require an agency to violate or exceed its statutory authority, the court is “unable to provide
relief” and the plaintiff thus lacks standing. Id. at 853. For example, in Patel v. Rodriguez, the
plaintiffs sought to compel USCIS to issue 80,000 U-visas. Id. (citing Patel v. Rodriguez, 2015
WL 6083199 (N.D. Ill. Oct. 13, 2015)). The statute at issue imposed an annual cap on U-visas,
and the cap had already been reached for the year in question. Id. Thus, the court in Patel could
not compel USCIS to grant the visas because such relief would necessarily cause USCIS to violate
its statutory authority. Id. As such, the court was “unable to provide [the requested] relief,” and
the plaintiffs lacked standing. Id.
1 Regarding traceability, the parties dispute whether Axtria acted diligently to ensure that the
petition reached USCIS in a timely manner. Cf. R. 17 at 3 with R. 21 at 5. Wang moves to strike
USCIS’s diligence argument. R. 22. Because the Court did not rely on the diligence argument to
reach a finding on traceability, Wang’s motion to strike is denied as moot.
The facts of this case, however, are different. Here, the statute at issue provides that USCIS
“may deny or reject” untimely petitions. 8 C.F.R. § 214.2(h)(8)(iii)(D)(3) (emphasis added).
Critically, the relevant statutory language provides USCIS with discretion. Thus, if the Court
ordered USCIS to accept or consider the petition, this would not cause USCIS to exceed its
statutory authority because USCIS had discretion to accept the petition in the first instance. In sum,
the injury is redressable.
For the reasons stated above, Wang has alleged sufficient factual matter to support the
inference that standing exists.
II. Failure to State a Claim
Wang’s first claim is a mandamus claim seeking to compel USCIS to accept the petition
for filing. R. 1 ¶¶ 27–28. District courts have the authority to issue a writ of mandamus to compel
an agency to perform a duty owed to a plaintiff. 28 U.S.C. § 1361. “Mandamus relief will be
granted if the plaintiff can demonstrate that the three enumerated conditions are present: (1) a clear
right to the relief sought; (2) that the defendant has a duty to do the act in question; and (3) no
other adequate remedy is available.” Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th Cir.
2017) (citations omitted). As a matter of law, Wang cannot establish these elements. As discussed,
the relevant statute provides the USICS with discretion to deny or reject untimely petitions and
USCIS exercised that discretion when it rejected the petition. Wang thus does not have a clear
right to have her petition accepted. Nor does USCIS have a duty to accept the petition.
In her response brief, Wang argues that this was not an issue of discretion, but rather that
USCIS was obligated to accept any untimely petition if the requirements for equitable tolling were
met. R. 17 at 5–6. But Wang is unable to identify any relevant legal authority to suggest that USCIS
would be obligated to accept an untimely petition. Wang’s argument relies on a decision from the
U.S. Department of Justice Board of Immigration Appeals which found that the Board of
Immigration was obligated to accept late-filed appeals where the party could establish that
equitable tolling applied. See Matter of Morales-Morales, 28 I&N Dec. 714 (BIA 2023). But the
Morales case is not binding, not persuasive, and frankly irrelevant. The case involves a different
agency, a different set of regulations, and a different legal issue—an appeal deadline as compared
to a visa petition. Indeed, other courts have expressly found that USCIS has discretion to reject
untimely petitions. See Intel Corp. v. U.S. Citizenship & Immigr. Servs., 739 F. Supp. 3d 762, 775
(N.D. Cal. 2024) (finding that USCIS did not violate the INA or its implementing regulations “by
denying the petitions as untimely, where that decision was entirely consistent with 8 C.F.R.
§ 214.2(h)(8)(iii)(D)(3)” and that “USCIS may have had the option to reopen Intel’s petitions on
a discretionary basis” but that this “does not establish that it was required to do so.”). Wang thus
cannot establish a mandamus claim.2
Wang’s second claim is brought under the Administrative Procedure Act (“APA”) and
seeks a court order setting aside the rejection of the petition as unlawful and compelling USCIS to
render a decision. R. 1 ¶¶ 29–33. Under § 706 of the APA, district courts have the authority to
review agency decisions. 5 U.S.C. § 706. But before courts may review an agency’s decision under
§ 706, the review must first “clear the hurdle of § 701(a)” which provides that judicial review is
not allowed where the relevant statutes “preclude judicial review” or where “agency action is
committed to agency discretion by law.” Heckler v. Chaney, 470 U.S. 821, 828 (1985) (citing
5 U.S.C. § 701). As already discussed, the relevant statute provides USCIS with discretion to reject
untimely petitions. As such, Wang cannot clear the hurdle of § 701(a). The Court thus lacks
authority to review this decision. Wang cannot proceed on her APA claim.
2 Because the first two elements are not met, Wang cannot bring a mandamus claim, and the Court
need not address the third element.
Conclusion
For the reasons stated above, the motion to dismiss [12] is granted. Though Wang has
standing under Article III, she fails to state a claim under Rule 12(b)(6), and the case is thus
dismissed. The motion to strike [22] is denied as moot.
SO ORDERED. ENTERED: June 27, 2025
HON. JORGE L. ALONSO
United States District Judge