The Forgotten Files: When Extraordinary Talent Meets Bureaucratic Shadows
Federal Judge Lets Visa Delay Suit Against Secretary Rubio Move Forward
A federal judge has refused to dismiss a case brought by three foreign nationals against U.S. Secretary of State Marco Rubio, ruling that their challenge over years-long visa delays may proceed. The decision marks a pivotal moment in a broader fight over consular processing, administrative delay, and judicial review.
The lawsuit, filed under the name Lyazat Tolymbekova, et al. v. U.S. Secretary of State Marco Rubio, et al., focuses on applications for EB‑1A visas—an immigration category reserved for individuals with “extraordinary ability.” The plaintiffs, hailing from Kazakhstan and Russia, say their cases have languished in administrative review for over 16 months, with little clarity on when or whether they will be decided.
The Applicants’ Plight
One plaintiff, Lyazat Tolymbekova, argues that the delay has kept her apart from her U.S. citizen daughter, forcing her to miss important life milestones, including her daughter’s graduation and recuperation from a medical issue. The other two plaintiffs—a project manager and a professional makeup artist—describe lost income, career disruption, and ongoing emotional uncertainty. All say they were told their files had been placed under Section 221(g) of the Immigration and Nationality Act, which allows consular officers to suspend final decision making while requiring further review or documentation.
The plaintiffs maintain that their cases are not being adjudicated in a reasonable time and that the government’s inertia is causing significant harm. Rather than asking for a specific decision outcome, they ask the court to require the State Department to make a final decision and to hold from further delay.
Government’s Defense: Consular Nonreviewability
In its motion to dismiss, the government contended that courts lack jurisdiction under the doctrine of consular nonreviewability, which generally holds that visa decisions made abroad by consular officers are insulated from judicial oversight—even controversial ones. In effect, the government argued that even delay should be beyond review because final visa adjudications are consular acts.
Further, the government asserted sovereign immunity, claiming that the plaintiffs’ request to force action is barred by the concept that the government cannot be sued absent clear congressional consent.
Judge Faruqui’s Ruling: Delay Is Reviewable
Magistrate Judge Zia M. Faruqui rejected the dismissal motion, reasoning that because the applicants have not yet received a final decision, their claims remain justiciable. He drew a crucial distinction: when an application is stuck under 221(g) without final adjudication, courts still maintain oversight over whether the delay is unreasonable.
“Section 221(g) decisions are not final actions,” Judge Faruqui wrote, adding that the State Department itself treats such cases as pending, subject to further review. Thus, the court retains the power to compel a decision.
On sovereign immunity, the judge held that the Administrative Procedure Act (APA) provides a mechanism by which individuals can demand agencies act when delayed. Since the plaintiffs seek injunctive relief—not damages or another monetary award—the APA claim survives scrutiny.
Faruqui clarified that the plaintiffs are not asking the court to choose “yes” or “no” on the visa applications. Rather, they request enforcement of the Department’s duty to adjudicate faithfully and promptly.
Agency Duty & Procedural Fairness
In his opinion, Judge Faruqui emphasized that the State Department must respect binding procedural obligations. Under foreign affairs and consular law, there is a “nondiscretionary duty” to proceed to a decision once required information is in hand. Consular offices are also required by regulation to act promptly on visa applications.
He cited the Accardi doctrine, which holds that agencies must comply with their own rules and internal policies, and cannot deviate arbitrarily from them. The extended, unexplained backlog in this case was incompatible, he concluded, with the Department’s established obligations.
The Stakes for Immigration Policy
Immigration advocates hailed the decision as a win for accountability. They argue that if successful, this case could open the door for other applicants languishing in lengthy administrative limbo to demand judicial intervention.
Because EB‑1A visas often go to scientists, performers, and innovators, delays in that category are especially consequential. These applicants typically bring value to the U.S. economy, cultural life, and technological advancement. Holding them in a bureaucratic standoff, advocates say, hurts both individuals and national interests.
Legal commentators expect this ruling may shift how courts view similar claims against the State Department—especially when delays last many months or years without explanation.
Rubio, the State Department, and What Lies Ahead
Secretary Rubio’s office has remained largely silent following the ruling. The State Department has previously acknowledged that visa demand is unusually high post-pandemic, but critics say that bureaucratic inertia and lack of transparency have aggravated delays.
With the dismissal motion denied, the case moves into discovery and full briefing. The plaintiffs will present evidence on how long their files have waited and whether the delays violate legal standards. The Department will defend its process and timing, likely pointing to internal constraints, security review, or staffing.
If the court ultimately finds the delays were unreasonable, it may order the Department to adjudicate within a specific timeframe. That kind of decision could have ripple effects across other visa categories and similar lawsuits.
This ruling draws a sharp line in the evolving tension between executive discretion in immigration and judicial oversight of administrative process. As the case continues, it may reshape how courts and agencies balance national interest, administrative burden, and the rights of applicants waiting in limbo.