Case Name in Immigration Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HAMIDABANU NOORANI,
Plaintiff,
v.
DIRECTOR OF UNITED STATES
CITIZENSHIP AND IMMIGRATION
SERVICES,
Defendant.
8:25CV221
MEMORANDUM
AND ORDER
Hamidabanu 	Noorani (“Noorani”), 	a 	citizen 	and national of India, filed Form
I-918 (“I-918”) Petition for U Nonimmigrant Status (a “U-visa”) on December 13, 2024,
but to date, no decision has been made (Filing No. 13).1 	Noorani filed this action in
March 2025, seeking a court order under the Administrative Procedure Act (“APA”),
5 U.S.C. 	§ 	551 	et 	seq., 	requiring 	the 	Director 	of 	United 	States 	Citizenship 	and
Immigration 	Services 	(“USCIS”) 	to 	take 	certain 	actions 	with 	respect to his petition.
Specifically, 	Noorani 	wants 	USCIS 	to 	make 	what 	is 	known 	as 	a 	“bona 	fide
determination” (“BFD”), see 8 U.S.C. § 1184(p)(6), and decide whether he should be
placed on a waiting list for a U-visa. 	See 8 C.F.R. § 214.14(d)(2). 	He also asks this
Court to declare USCIS’s policy of foregoing waitlist determinations in certain U-visa
cases unlawful under 5 U.S.C. § 706(1) for allegedly failing to comply with 8 C.F.R.
§ 214.14(d)(2). 	See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004)
(explaining that a claim under the APA to compel agency action unlawfully withheld or
1 The Court’s previous order (Filing No. 14) used masculine pronouns to refer to
Noorani 	based 	on 	his 	amended 	complaint 	(Filing 	No. 	13), 	which 	uses 	masculine
pronouns and refers to Noorani as “Mr. Noorani.” 	Without explanation, the parties most-
recent filings (Filing Nos. 20, 21, 22) refer to Noorani as “she.” 	The Court will continue
to use masculine pronouns until further clarification is provided.
8:25-cv-00221-RFR-JMD Doc # 25 Filed: 11/25/25 Page 1 of 7 - Page ID #
<pageID>

2
unreasonably delayed can proceed where the agency failed to take a discrete agency
action that it is required to take).
The 	Court dismissed 	Noorani’s 	BFD claim pursuant to Federal Rule of Civil
Procedure 	12(b)(1) 	for 	lack 	of subject-matter jurisdiction (Filing No. 14) because the
BFD process is discretionary. 	See 8 U.S.C. § 1252(a)(2)(B)(ii) (stripping the Court of
jurisdiction 	to 	consider 	such 	challenges); 	see 	also 	Patel v. 	Dir., 	U.S. 	Citizenship &
Immigr. 	Servs., 	No. 8:25CV59, 2025 WL 1655294, at *4 (D. Neb. June 11, 2025)
(explaining 	that 8 	U.S.C. 	§ 1184(p)(6) “gives the Secretary [of Homeland Security]2
discretion 	over 	[employment 	authorization] 	for 	U-Visa 	applicants” 	under 	the 	BFD
process).
At the same time, the Court ordered the parties to submit supplemental briefing
addressing the Court’s subject-matter jurisdiction over Noorani’s remaining two waitlist
claims. 	Both parties have done that (Filing Nos. 20, 21, 22). 	For the reasons that follow,
the Director of USCIS’s (the “Director”)3 motion to dismiss Noorani’s waitlist claims
under Rule 12(b)(1) (Filing No. 5) is denied.
I. 	BACKGROUND
Congress created the U-visa program by enacting the Victims of Trafficking and
Violence Protection Act of 2000 (the “Act”), codified at 8 U.S.C. § 1101(a)(15)(U). 	The
Act permits aliens who are victims of certain serious crimes and assist law enforcement
to apply for a U-visa. 	See id. § 1101(a)(15)(U)(ii). 	U-visa petitioners may also apply for
an employment-authorization document (“EAD”) by filing Form I-765 Application for
Employment Authorization with their I-918.
However, Congress limited the number of available U-visas to 10,000 per year.
See id. § 1184(p)(2)(A). 	When USCIS determines a petitioner is eligible for a U-visa, but
2 USCIS is a component of the Department of Homeland Security.
3 Joseph B. Edlow is currently serving as the Director of USCIS.
8:25-cv-00221-RFR-JMD Doc # 25 Filed: 11/25/25 Page 2 of 7 - Page ID #
<pageID>

3
none is available due to the annual cap, USCIS places the petitioner on a waiting list.
8 C.F.R. § 214.14(d)(2) (explaining that “[a]ll eligible petitioners who, due solely to the
cap, 	are 	not 	granted 	U-1 	nonimmigrant status 	must be 	placed 	on 	a 	waiting 	list”).
USCIS’s decisions to place a U-visa petitioner on the waiting list is known as a “waiting
list determination” (“WLD”). 	See id. 	Priority on the waiting list is determined “by the
date the petition was filed with the oldest petitions receiving the highest priority.” 	Id.
USCIS grants deferred action or parole to those on the waiting list and may also grant
them an EAD. 	Id. 	U-visa petitioners who have not received a favorable BFD or WLD
are not entitled to deferred action or an EAD based on their pending I-918.
Due to the perennial backlog of petitioners on the waiting list, USCIS developed
the BFD process. 	See 8 U.S.C. § 1184(p)(6) (allowing the Secretary of Homeland
Security 	to 	“grant 	work 	authorization 	to 	any 	alien 	who 	has 	a 	pending, 	bona 	fide
application 	for 	nonimmigrant status 	under 	section 	1101(a)(15)(U)”); see also USCIS,
Policy 	Manual, 	Vol. 	3, 	Part C, 	Ch. 5, https://www.uscis.gov/policy-manual/volume-3-
part-c-chapter-5 (last visited November 21, 2025) (“USCIS Policy Manual”). 	Under the
BFD process, USCIS merely determines whether the petition is “complete and properly
filed” and “whether the petitioner poses a risk to national security or public safety” as
opposed to conducting a full eligibility evaluation. 	USCIS Policy Manual. 	If USCIS
determines the petition is “bona fide,” USCIS will grant the petitioner deferred action and
the opportunity to receive an EAD. Id.
Because a favorable BFD provides essentially the same benefits that petitioners
with a favorable WLD receive, USCIS generally does not conduct WLDs for aliens to
whom USCIS grants BFD deferred action and EADs. 	Id. 	Therefore, the next step for
both petitioners with favorable WLDs and BFDs is to await final adjudication when a
U-visa is available under the statutory cap. Id.
Noorani has yet to receive a BFD or WLD. 	His amended complaint asserts claims
for the “unlawful withholding[]” and “unreasonabl[e] delay[]” of a WLD in his case. 	See
8:25-cv-00221-RFR-JMD Doc # 25 Filed: 11/25/25 Page 3 of 7 - Page ID #
<pageID>

4
8 C.F.R. § 214.14(d)(2). 	He asks the Court, among other things, to (1) declare USCIS’s
policy of foregoing WLDs in petitions with favorable BFDs unlawful under 5 U.S.C.
§ 706(1) and (2) order USCIS to make a WLD in his case in thirty days.
II. 	DISCUSSION
A. 	Ripeness
The Director argues that Noorani’s request for a WLD is not ripe (Filing No. 20).
In the Director’s view, a “BFD is the preliminary adjudicative step” and “must first be
resolved before USCIS makes a WLD.” 	And since USCIS typically reserves WLDs for
petitions it deems “not ‘bona fide’” and thus unworthy of discretionary interim benefits
under the BFD process, the Director contends Noorani’s claim that his WLD is delayed is
premature. 	As the Director sees it, Noorani may not even need a WLD if his BFD
evaluation is favorable.
To be justiciable under the case-or-controversy requirement of Article III of the
United States Constitution, a case must be ripe. 	U.S. Const. art. III, § 2; Trump v. New
York, 592 U.S. 125, 131 (2020). 	The ripeness doctrine prevents courts from “entangling
themselves in abstract disagreements over administrative policies” and protects “agencies
from judicial interference until an administrative decision has been formalized and its
effects felt in a concrete way by the challenging parties.” 	Sch. of the Ozarks, Inc. v.
Biden, 41 F.4th 992, 998 (8th Cir. 2022) (quoting Abbott Labs. v. Gardner, 387 U.S. 136,
148-49 (1967)).
To demonstrate that his request is ripe for review, Noorani must show both “the
fitness of the issues for judicial decision and the hardship to the parties of withholding
court consideration.” 	Id. 	Noorani’s WLD claims are fit for judicial review if they
“would not benefit from further factual development and pose[] a purely legal question
not contingent on future possibilities.” 	Id. 	To satisfy the hardship prong, Noorani must
show he “has sustained or is immediately in danger of sustaining some direct injury” due
to USCIS’s allegedly unreasonable delay or withholding of a WLD. 	Hughes v. City of
8:25-cv-00221-RFR-JMD Doc # 25 Filed: 11/25/25 Page 4 of 7 - Page ID #
<pageID>

5
Cedar Rapids, Iowa, 840 F.3d 987, 992 (8th Cir. 2016) (quoting Abbott Labs., 387 U.S. at
148). 	A case is not ripe when it is depends on “contingent future events that may not
occur as anticipated, or indeed may not occur at all.” 	Trump, 592 U.S. at 131 (quoting
Texas v. United States, 523 U.S. 296, 300 (1998)).
Here, the Director identifies the contingent future event as the discretionary BFD
process. 	In his view, a favorable BFD eliminates the need for a WLD. 	The Director
notes that USCIS has yet to decide whether Noorani is entitled to deferred action and an
EAD through the BFD process. 	If USCIS determines that Noorani’s U-visa petition is
bona fide, he would no longer need to seek a WLD to obtain those benefits. 	See Argueta
v. Jaddou, No. 4:23-CV-3002, 2023 WL 8082113, at *6-7 (D. Neb. Nov. 21, 2023)
(concluding that U-visa petitioners who have received favorable BFDs lack an injury-in-
fact to bring a WLD claim because they have received the same benefits as petitioners
with a favorable WLD), reconsideration denied, No. 4:23-CV-3002, 2024 WL 639863, at
*1 (D. Neb. Feb. 15, 2024). 	Therefore, it would be premature, the Director contends, to
order a WLD for Noorani when USCIS has not even conducted a BFD.
Noorani counters that his waitlist claims are ripe because the discretionary BFD
process 	does 	not eliminate USCIS’s regulatory duty to make WLDs. 	See 8 C.F.R.
§ 214.14(d)(2) (stating that “[a]ll eligible petitioners who, due solely to the cap, are not
granted U-1 nonimmigrant status must be placed on a waiting list”) (emphasis added).
Noorani contends no additional facts are necessary for the Court to review this legal
question of whether a policy statement can eliminate a regulatory duty. 	He argues he has
established hardship because as long as his WLD is delayed or withheld, he does not have
the protection from physical removal that deferred action provides, nor does he have the
ability to qualify for an EAD—and by extension a social security number and driver’s
license.
The Court is not persuaded by the Director’s argument that Noorani’s WLD claims
are “contingent” on the BFD process. 	While a speedy and favorable BFD may deprive
8:25-cv-00221-RFR-JMD Doc # 25 Filed: 11/25/25 Page 5 of 7 - Page ID #
<pageID>

6
some U-visa petitioners of the requisite injury-in-fact to bring a WLD claim, that is not
the case here. 	Noorani has not had a BFD—favorable or otherwise. 	The waiting-list
regulation states that eligible petitioners who are not granted a U-visa due to the cap
“must” be placed on the waiting list. 	8 CFR § 214.14(d)(2). 	The plain language of the
regulation 	does 	not limit WLD eligibility to petitioners who received an unfavorable
BFD. 	Thus, the Court does not see the BFD process as a contingent future event. 	See
generally Barrios Garcia v. U.S. Dep’t of Homeland Sec., 25 F.4th 430, 441 (6th Cir.
2022) (noting that USCIS “wields sole and unadulterated discretion to set forth, abide by,
and eliminate the BFD process”).
Furthermore, Noorani’s amended complaint alleges that USCIS is both unlawfully
withholding his WLD in favor of the BFD process and unreasonably delaying his WLD.
Noorani’s WLD is currently delayed. 	And the Director does not deny that USCIS might
not even conduct a WLD for Noorani. 	Indeed, that is the Director’s principal argument—
that USCIS may not need to conduct a WLD for Noorani. 	Noorani’s WLD claims
represent 	a 	challenge 	to 	actual agency 	delay 	and 	inaction, 	not a 	speculative 	delay.
Noorani has also established that he experiences the hardship because he lacks deferred
action 	and 	the 	opportunity 	to 	pursue an EAD. 	The Court therefore concludes that
Noorani’s WLD claims are ripe.
B. 	Failure to State a Claim
Lastly, 	the 	Director’s 	supplemental 	briefing 	on 	the 	Court’s 	subject 	matter
jurisdiction (Filing No. 20) states Noorani’s WLD claims “alternatively, fail[] to state a
claim upon which relief can be granted” under Federal Rule of Civil Procedure 12(b)(6).
However, this argument is not accompanied by a motion. 	A new argument embedded
within a brief is not a proper way to request dismissal. 	See Fed. R. Civ. P. 7(b)(1).
Under Rule 7(b)(1), a request for a court order must be made by motion. 	The
motion must be in writing; state with particularity the grounds for seeking the order; and
state the relief sought. 	See id.; see also NECivR 7.1 (explaining that a substantial issue
8:25-cv-00221-RFR-JMD Doc # 25 Filed: 11/25/25 Page 6 of 7 - Page ID #
<pageID>

7
of law must be supported by a separate brief, filed, and served with a motion). 	Because
arguments inserted into a brief do not constitute a motion, the Court need not consider the
Rule 12(b)(6) issue here. 	See also Wolgin v. Simon, 722 F.2d 389, 394 (8th Cir. 1983)
(concluding that the request for leave to amend embedded in a brief in opposition was not
a proper motion and the trial court did not abuse its discretion by denying the request).
Moreover, the embedded Rule 12(b)(6) argument fails to identify precisely which
WLD claim is to be dismissed for failure to state a claim. 	The Director repeatedly refers
to Noorani’s WLD claims in the singular. 	It is not entirely clear to the Court whether the
Director seeks to dismiss Noorani’s second claim that the policy of withholding WLDs in
U-visa petitions with favorable BFDs is unlawful or Noorani’s third claim that USCIS
has unreasonably delayed a WLD in his case—or both. 	Because the Director’s argument
does not state with particularity the relief sought, it does not comply with Rule 7(b)(1).
Accordingly, the Director of United States Citizenship and Immigration Services’s
Motion to Dismiss (Filing No. 5) pursuant to Federal Rule of Civil Procedure 12(b)(1) as
applied 	to 	plaintiff 	Hamidabanu 	Noorani’s 	second 	and 	third 	claims 	in 	challenging
USCIS’s 	withholding 	of 	waitlist 	determinations 	and 	delay 	in 	making 	waitlist
determinations in Noorani’s amended complaint (Filing No. 13) is denied.
IT IS SO ORDERED.
Dated this 25th day of November 2025.
BY THE COURT:
Robert F. Rossiter, Jr.
Chief United States District Judge
8:25-cv-00221-RFR-JMD Doc # 25 Filed: 11/25/25 Page 7 of 7 - Page ID #
<pageID>