Hassan v Noem et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MARK HASSAN, President of
Budget Appliances &
Mattresses Inc.,
Plaintiff,
v.
KRISTI NOEM, Secretary,
Department of Homeland
Security, et al.,
Defendants.
No. 25-cv-11469-DLC
MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION
TO DISMISS PLAINTIFF’S COMPLAINT
CABELL, U.S.M.J.
I. 	INTRODUCTION
Plaintiff 	Mark 	Hassan, 	President 	of 	Budget 	Appliances 	&
Mattresses 	Inc. 	(“Budget 	Appliances” 	or 	“plaintiff”), 	seeks 	to
hire a noncitizen with advanced knowledge of heating, ventilating,
air 	conditioning, 	and 	refrigeration 	systems. 	In 	order 	to 	hire 	a
noncitizen 	skilled 	worker, 	an 	employer 	must 	obtain 	a 	labor
certification 	from 	the 	Department 	of 	Labor 	(“DOL”) 	and 	pay 	a 	fee
in 	conjunction 	with 	completing 	an 	Immigrant 	Petition 	for 	Alien
Workers 	(“I-140 	petition” 	or 	“petition”). 	The 	United 	States
Immigration 	and 	Citizenship 	Services 	(“USCIS”) 	rejected 	three 	I-
140 	petitions 	filed 	by 	Budget 	Appliances. 	It 	rejected 	a 	first
petition, filed on January 17, 2025, because Budget Appliance did
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not 	pay 	a 	required 	asylum 	program 	fee 	(“asylum 	fee”). 	Budget
Appliance then submitted a second petition, along with the asylum
fee, 	but 	USCIS 	rejected 	the 	petition 	due 	to 	an 	expired 	labor
certification. 	Budget 	Appliance 	thereafter 	submitted 	a 	third
petition but USCIS rejected it again for the same reason.
Dissatisfied 	with 	the 	rejections, 	Budget 	Appliances 	filed
suit 	seeking 	to 	compel 	the 	defendants 1 	to 	“properly 	process” 	the
I-140 petition under the Mandamus and Venue Act (“MVA”), 28 U.S.C.
§ 1361, and the Administrative Procedure Act (“APA”), 5 U.S.C. §§
701 	et 	seq. 	In 	response, 	the 	defendants 	move 	to 	dismiss 	the
complaint, 	specifically 	the 	MVA 	and 	APA 	claims. 2 	(D. 	16). 	For
the 	reasons 	explained 	below, 	the 	court 	finds 	that 	the 	statutes
invoked do not entitle the plaintiff to relief and therefore will
allow the motion and dismiss the complaint in its entirety. 3
1 	The 	defendants, 	all 	sued 	in 	their 	official 	capacity, 	are: 	Kristi 	Noem,
secretary of the Department of Homeland Security; Kika Scott, director of USCIS;
Connie Nolan, associate director, USCIS Service Center Operations Directorate;
Martha Medina-Maltes, director, USCIS Chicago Service Center; and Pamela Bondi,
attorney general of the United States.
2 The plaintiff does not identify which I-140 petition it seeks to have USCIS
properly process. 	Out of an abundance of caution, the court addresses USCIS’
rejections of each petition, individually and collectively, as warranting relief
under the APA and the MVA.
3 To be clear, the complaint also seeks declaratory relief under the Declaratory
Judgment 	Act, 	28 	U.S.C. 	§ 	2201. 	(D. 	1, 	pp. 	5-7, 	13) 	(seeking 	declaratory
judgment for USCIS “to properly process the Plaintiff’s [petition]” and/or to
“Declare 	that 	[USCIS] 	erroneously 	and 	untimely 	rejected 	the 	Plaintiff’s
application causing the Labor Certificate to become stale”). 	The defendants
technically do not move to dismiss this claim but it too will be dismissed where
the court finds the plaintiff is not entitled to relief on the merits.
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II. 	THE PARTIES’ ARGUMENTS
The defendants seek dismissal of the APA claim under Federal
Rule 	of 	Civil 	Procedure 	12(b)(6) 	because 	USCIS 	rejected 	the
petitions in accordance with the plain language of the applicable
regulations. 4 	The 	regulations, 	they 	contend, 	mandate 	a 	valid 	as
opposed to an expired labor certification and payment of the entire
filing fee with the petition. 	Accordingly, USCIS’ rejections were
not arbitrary or capricious.
As 	to 	the 	MVA 	claim, 	the 	defendants 	contend 	the 	court 	lacks
subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1) for the same reason, i.e., USCIS acted in accordance with
the regulations. 	More specifically, the defendants argue that the
MVA claim fails because: 	(1) the plaintiff lacked “a clear right”
to 	the 	relief 	it 	sought, 	namely, 	to 	compel 	USCIS 	to 	process 	an
improperly 	filed 	I-140 	petition 	against 	the 	mandate 	of 	the
applicable 	regulations; 	and 	(2) 	USCIS 	did 	not 	violate 	a 	“clear
4 The defendants also assert that the plaintiff lacks standing to bring this
action. 	(D. 17, n.1). 	Pertinent thereto, the caption identifies the plaintiff
as “Mark Hassan, President of Budget Appliances & Mattresses Inc.” 	However,
Budget 	Appliances, 	not 	Hassan, 	submitted 	the 	three 	I-140 	petitions. 	The
defendants’ counsel explained during the hearing that she asserted the argument
“to 	preserve” 	as 	necessary 	a 	jurisdictional 	challenge 	under 	Federal 	Rule 	of
Civil Procedure 12(b)(1) if Mark Hassan as an individual, as opposed to Budget
Appliances, brought this action. 	As was apparent at the hearing, the defendants
only seek to preserve the argument but are not pressing the argument at this
juncture. 	As such, the court declines to address it.
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duty” 	to 	process 	the 	petitions 	in 	a 	manner 	contrary 	to 	the
regulations. 	(D. 16, 17).
More 	broadly, 	the 	defendants 	maintain 	that 	the 	case 	is 	moot
because 	USCIS 	acted 	in 	accordance 	with 	the 	regulations. 	(D. 	17,
pp. 	6-8). 	When 	the 	court 	queried 	the 	defendants’ 	counsel 	at 	the
hearing regarding what she meant vis-à-vis mootness, she responded
there 	was 	no 	case 	or 	controversy 	because 	the 	plaintiff 	filed 	and
USCIS 	rejected 	the 	petitions. 	Hence, 	there 	was 	no 	merit 	to 	the
petition, and the case was “done.”
The plaintiff disagrees. 	Regarding the APA, and as
previously stated, the plaintiff submitted a check to pay the
asylum fee. 	Of note, the instructions direct the employer to
submit the check separately. 	And, purportedly, the plaintiff
did just that by promptly submitting the fee in the second
petition. 	In addition, USCIS’ rejection of the first petition
based on the minor omission of the asylum fee that the plaintiff
promptly cured by submitting the second petition with that fee
was arbitrary, capricious, and contrary to law. 	(D. 18, pp. 2,
9-11). 	This is especially true because USCIS purportedly could
have accepted the first petition and issued a request for
evidence asking the plaintiff to submit the asylum fee as
provided under 8 C.F.R. § 103.2(a)(7)(ii)(D). 	(D. 18, p. 10).
As 	to 	the 	MVA 	claim, 	the 	plaintiff 	counters 	that 	it 	had 	a
clear right to relief because it provided the first petition with
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an unexpired labor certification. 	Additionally, USCIS had a clear
duty 	to 	accept 	and 	adjudicate 	the 	first 	petition. 	Instead, 	it
rejected the petition due to the technical deficiency of not paying
the asylum fee. 	(D. 18, pp. 8-9).
Regarding mootness, the plaintiff contends it is not seeking
an advisory opinion. 	Rather, it seeks judicial review anent USCIS’
rejection 	of 	the 	petitions 	and 	USCIS’ 	refusal 	to 	recognize 	the
January 	17 	filing 	date. 	Effective 	relief 	is 	available, 	per 	the
plaintiff, 	because 	the 	court 	can 	“‘hold 	unlawful 	and 	set 	aside
agency action’ that is arbitrary, capricious, or contrary to law”
under the APA. 	(D. 18, p. 7) (quoting 5 U.S.C. § 706(2)).
Lastly, 	the 	plaintiff 	maintains 	that 	the 	foregoing, 	coupled
with its diligent efforts to correct the asylum fee error via the
second petition and USCIS’ repeated rejections, warrant equitable
tolling. 5 	A 	critical 	fact 	constituting 	extraordinary
circumstances, 	or 	so 	the 	plaintiff 	contends, 	is 	that 	USCIS 	held
the 	first 	petition 	for 	thirteen 	days 	before 	rejecting 	it 	and,
during that time, the labor certification expired. 	(D. 18, p. 10)
(D. 21, pp. 2, 6, 10). 	The tolling, the plaintiff explains, would
date the second petition as filed on January 17, 2025, and thereby
5 As elaborated in more detail elsewhere, equitable tolling requires the party
seeking the tolling to “prove: 	‘(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.’” 	Kwoka v. Enterprise Rent-A-Car Company of Boston,
LLC, 	141 	F.4th 	10, 	17 	(1st 	Cir. 	2025) 	(quoting 	Menominee 	Indian 	Tribe 	of
Wisconsin v. United States, 577 U.S. 250, 255 (2016)) (emphasis added).
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encompass 	a 	valid, 	unexpired 	labor 	certification. 	(D. 	21, 	p. 	11)
(the 	plaintiff’s 	brief 	asking 	to 	“reinstate 	the 	priority 	date 	of
January 	17, 	2025, 	as 	the 	original 	filing 	date”); 	(D. 	18, 	pp. 	10-
11) 	(the 	plaintiff’s 	brief 	stating, 	“Plaintiff 	diligently 	filed
the 	I-140 	petition 	within 	the 	labor 	certification’s 	statutory
window along with USCIS’ repeated erroneous rejections constitute
extraordinary circumstances” and asking to “credit[] the original
timely 	filing 	date”). 	Specifically, 	using 	the 	January 	17 	filing
date 	for 	the 	second 	petition 	renders 	the 	labor 	certification 	not
expired 	pursuant 	to 	20 	C.F.R. 	§ 	656.30(b)(1) 	(“section
656.30(b)(1)”), per the plaintiff’s argument. 6 	It is this 180-day
time limit which renders the labor certification expired that the
plaintiff seeks to equitably toll. 	(D. 18, p. 10); (D. 21, p. 3)
(the plaintiff’s brief citing 180-day rule in section 656.30(b) as
the applicable regulation).
Relatedly, the plaintiff argues that the time limit in section
656.30(b) is a claims-processing rule rather than a jurisdictional
limit 	and, 	as 	such, 	can 	be 	waived. 	(D. 	21, 	pp. 	3-4, 	6-7). 	The
plaintiff 	also 	asserts 	additional 	circumstances 	that 	support
equitable tolling. 	These are set out in the discussion section on
equitable tolling under Roman numeral V(D).
6 	By 	way 	of 	background, 	under 	section 	656.30(b)(1), 	a 	labor 	certification
typically expires 180 days after DOL granted the certification. 	20 C.F.R. §
656.30(b)(1).
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III. 	LEGAL STANDARD
A. 	Rule 12(b)(6)
To 	survive 	a 	Rule 	12(b)(6) 	motion 	to 	dismiss, 	the 	complaint
must 	contain 	“enough 	facts 	to 	state 	a 	claim 	to 	relief 	that 	is
plausible 	on 	its 	face” 	even 	if 	actual 	proof 	of 	the 	facts 	is
improbable. 	Bell 	Atlantic 	v. 	Twombly, 	550 	U.S. 	544, 	570 	(2007);
Miller 	v. 	Town 	of 	Wenham, 	833 	F.3d 	46, 	51 	(1st 	Cir. 	2016). 	The
“standard 	is 	not 	akin 	to 	a 	probability 	requirement,” 	but 	it”
requires “more than a sheer possibility that a defendant has acted
unlawfully.” 	Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016)
(citations and internal quotation marks omitted). 	In order for a
party 	to 	“survive 	a 	motion 	to 	dismiss, 	a 	complaint 	must 	include
‘enough facts to state a claim to relief that is plausible on its
face.’” 	In 	re 	ARIAD 	Pharms. 	Sec. 	Litig., 	842 	F.3d 	744, 	756 	(1st
Cir. 2016) (quoting Twombly, 550 U.S. at 570).
B. 	Rule 12(b)(1)
In 	considering 	a 	Rule 	12(b)(1) 	motion 	for 	lack 	of 	subject
matter 	jurisdiction, 	the 	court 	credits 	the 	plaintiff’s 	well-pled
factual 	allegations 	in 	the 	complaint 	and 	“draw[s] 	all 	reasonable
inferences 	in 	the 	plaintiff’s 	favor.” 	Andersen 	v. 	Vagaro, 	Inc.,
57 	F.4th 	11, 	13 	(1st 	Cir. 	2023) 	(citation 	omitted). 	It 	is 	also
permissible 	to 	“consider 	evidence 	submitted 	by 	a 	defendant 	. 	. 	.
.” 	Strahan 	v. 	Roughead, 	910 	F. 	Supp. 	2d 	358, 	363–364 	(D. 	Mass.
2012) 	(citing 	Merlonghi 	v. 	United 	States, 	620 	F.3d 	50, 	54 	(1st
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Cir. 	2010)) 	(additional 	citation 	omitted). 	Where, 	as 	here, 	the
defendants 	challenge 	subject 	matter 	jurisdiction, 	the 	plaintiff
bears 	the 	burden 	of 	proving 	jurisdiction. 	Johansen 	v. 	United
States, 	506 	F.3d 	65, 	68 	(1st 	Cir. 	2007); 	Davis 	v. 	Massachusetts,
779 	F. 	Supp. 	3d 	92, 	97 	(D. 	Mass. 	2025) 	(“[P]ursuant 	to 	Rule
12(b)(1), ‘the party invoking the jurisdiction of a federal court
carries the burden of proving its existence.’”) (quoting Johansen,
506 F.3d at 68).
IV. 	FACTUAL BACKGROUND 7
The facts are straightforward. 	Budget Appliances applied for
and received a labor certification from DOL. 	(D. 1, p. 39). 	The
certification 	expired 	on 	January 	22, 	2025. 	(D. 	1, 	pp. 	31, 	39).
By 	way 	of 	background, 	to 	issue 	a 	labor 	certification, 	DOL 	must
determine:
(I) 	there 	are 	not 	sufficient 	workers 	who 	are 	able, 	willing,
qualified 	(or 	equally 	qualified 	in 	the 	case 	of 	an 	alien
described 	in 	clause 	(ii)) 	and 	available 	at 	the 	time 	of
application for a visa and admission to the United States and
at 	the 	place 	where 	the 	alien 	is 	to 	perform 	such 	skilled 	or
unskilled labor, and
(II) 	the 	employment 	of 	such 	alien 	will 	not 	adversely 	affect
the 	wages 	and 	working 	conditions 	of 	workers 	in 	the 	United
States similarly employed.
7 The facts are culled from the complaint (D. 1, pp. 4-14) and the exhibits (D.
1, pp. 16-112). 	See Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d
315, 	321 	(1st 	Cir. 	2008) 	(“Exhibits 	attached 	to 	the 	complaint 	are 	properly
considered part of the pleading ‘for all purposes,’ including Rule 12(b)(6).”)
(citations omitted).
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8 U.S.C. § 1182(a)(5)(A)(i). 8
By 	letter 	dated 	January 	9, 	2025, 	Budget 	Appliances 	offered
Fadi 	Fares, 	a 	noncitizen 	residing 	in 	Sweden, 	employment 	as 	a
skilled worker, specifically, an HVAC Supervisor Technician at its
Detroit facility. 	(D. 1, pp. 29, 77-78). 	Fares accepted the offer
on January 13. 	(D. 1, p. 78).
On January 17, the company submitted the first petition with
the 	labor 	certification 	to 	USCIS 	seeking 	to 	employ 	Fares. 	USCIS
received 	the 	petition 	the 	same 	day. 	(D. 	1, 	pp. 	8, 	81). 	The
petition included a check for the general filing fee in the amount
of $715.00, but not the asylum fee. 	(D. 1, pp. 8, 95). 	Regarding
the latter, the plaintiff acknowledged that it did not include the
$300.00 asylum fee. 	(D. 1, p. 9) (“Counsel received the notice on
February 7, 2025, and swiftly submitted the petition a second time
with the new Asylum Program Fee in the amount of $300.00.”). 	The
fees 	applicable 	to 	an 	I-140 	petition 	consist 	of 	a 	general 	filing
fee 	($715.00) 	and 	an 	asylum 	fee 	($300.00). 9 	(D. 	1, 	p. 	112); 	8
C.F.R. § 106.2(c)(13). 	The instructions for the asylum fee state,
“If 	paying 	by 	check 	or 	money 	order, 	submit 	the 	fee 	separately.”
(D. 1, p. 112).
8 During the hearing, the plaintiff’s counsel noted, correctly, that the labor
certification process can take more than a year. 	See PERM Processing Times,
https://flag.dol.gov/processingtimes 	(last 	visited 	February 	24, 	2025); 	see
generally Cicalese v. Univ. of Tex. Med. Branch, 456 F. Supp. 3d 859, 871 (S.D.
Tex. 2020) (“[G]overnmental websites are proper sources for judicial notice.”).
9 USCIS implemented the asylum fee in March 2024.
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On January 30, USCIS rejected the first petition because the
payment 	was 	incorrect 	or 	had 	not 	been 	provided. 	(D. 	1, 	p. 	81).
The 	accompanying 	letter 	from 	USCIS 	explained 	that 	the 	plaintiff
could resubmit the benefit request “as a new filing” and that the
“rejected 	benefit 	request 	will 	not 	retain 	a 	filing 	date.” 10 	(D.
1, 	p. 	82) 	(emphasis 	added). 	Further, 	the 	letter 	stated, 	in 	no
uncertain terms, that if Budget Appliances filed another petition,
it “must meet all requirements as of the date of the new filing.”
(D. 	1, 	p. 	82) 	(emphasis 	added); 	(D. 	1, 	p. 	82) 	(also 	noting 	the
petition was “not yet considered properly filed”). 	As previously
stated, the labor certification expired on January 22, i.e., during
the 	time 	USCIS 	was 	reviewing 	the 	first 	petition. 	(D. 	1, 	pp. 	31,
39).
Budget 	Appliances 	received 	the 	rejection 	notice 	on 	February
7. 	(D. 	1, 	p. 	9). 	The 	next 	day, 	it 	mailed 	the 	second 	petition
along with the general filing fee and the asylum fee. 	(D. 1, pp.
86-87). 	In particular, the petition included two checks, one for
the general filing fee ($715.00) and the other for the asylum fee
10 The letter refers to a “benefit request” as opposed to the petition. 	The
different terminology is immaterial. 	In that regard, the regulations define a
“benefit 	request” 	as 	any 	petition 	relating 	to 	immigration, 	a 	broad 	category
that 	would 	include 	the 	three 	petitions. 	8 	C.F.R. 	§ 	1.2 	(defining 	“benefit
request” as “any application, petition, . . . or other request relating to an
immigration . . . benefit . . .”); id. (Petition defined simply as “See Benefit
request.”). 	Given the immateriality of the distinction, the court refers, at
times, 	to 	a 	petition 	as 	opposed 	to 	a 	benefit 	request 	when 	referencing 	a
regulation.
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($300.00). 	(D. 1, p. 86). 	USCIS received the second petition on
February 11. 	(D. 1, p. 90).
On February 27, USCIS rejected the second petition, this time
for failure to submit a valid labor certification. 	(D. 1, p. 90).
Budget 	Appliances 	received 	this 	second 	rejection 	notice 	on 	March
10. 	(D. 1, p. 95) (March 10 letter by Budget Appliances’ counsel
to 	USCIS 	noting 	receipt 	of 	rejection 	notice 	with 	receipt 	number
IE0930345961); 	(D. 	1, 	p. 	90) 	(rejection 	notice 	with 	same 	receipt
number). 	The 	rejection 	notice 	invited 	Budget 	Appliances 	to
resubmit 	the 	petition 	if 	it 	had 	“a 	valid 	Labor 	Certification.”
(D. 1, p. 90).
On 	March 	11, 	Budget 	Appliances’ 	counsel 	wrote 	a 	letter 	to
USCIS asking the agency to “retain January 17 as the original date
of 	filing 	. 	. 	. 	.” 	(D. 	1, 	pp. 	9, 	95). 	The 	letter 	noted 	that
Hassan 	and 	the 	plaintiff’s 	counsel 	had 	telephoned 	USCIS 	and
explained 	the 	two 	previous 	rejections. 	As 	stated 	in 	the 	letter,
the 	USCIS 	official 	on 	the 	phone 	could 	not 	locate 	the 	rejection
notices 	and 	advised 	them 	“to 	resubmit 	the 	package 	and 	include 	a
letter 	explaining 	what 	happened 	because 	[they] 	originally 	filed
the petition before the Labor Certification expired on January 22,
2025.” 	(D. 	1, 	p. 	95). 	Counsel 	“then 	re-mailed 	the 	petition 	a
third time” on March 11. 	(D. 1, p. 9). 	USCIS received this third
petition 	on 	March 	12. 	(D. 	1, 	p. 	100). 	On 	April 	3, 	the 	agency
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rejected 	the 	petition 	again 	due 	to 	the 	absence 	of 	a 	valid 	labor
certification. 	(D. 1, p. 100). 	This lawsuit followed.
V. 	DISCUSSION
As noted, the defendants move to dismiss the APA claim under
Rule 	12(b)(6) 	and 	the 	MVA 	claim 	for 	lack 	of 	subject 	matter
jurisdiction under Rule 12(b)(1). 	They also maintain the case is
moot. 	After 	explaining 	why 	the 	case 	is 	not 	moot, 	the 	court
examines 	the 	APA 	claim, 	the 	MVA 	claim, 	and 	equitable 	tolling
seriatim.
A. 	Mootness
“[A] case becomes moot only when it is impossible for a court
to 	grant 	any 	effectual 	relief 	whatever 	to 	the 	prevailing 	party.”
Gutierrez v. Saenz, 606 U.S. 305, 320 (2025) (citation and internal
quotation 	marks 	omitted). 	“[M]ootness 	enforces 	the 	mandate 	that
an actual controversy must be extant at all stages of the review,
not 	merely 	at 	the 	time 	the 	complaint 	is 	filed.” 	Am. 	Civil
Liberties 	Union 	of 	Mass. 	v. 	U.S. 	Conference 	of 	Catholic 	Bishops,
705 F.3d 44, 52 (1st Cir. 2013).
Here, the plaintiff seeks review of USCIS’ rejections of one
or 	more 	of 	the 	petitions 	and 	to 	compel 	USCIS 	to 	properly 	process
the 	petitions. 	In 	that 	regard, 	the 	complaint 	asks 	this 	court 	to
“grant the I-140 petition pursuant to [the [plaintiff’s] statutory
and regulatory rights.” 	(D. 1, p. 13) (emphasis added). 	Notably,
the APA encompasses such relief because it allows a reviewing court
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to “hold unlawful and set aside agency action” that is “arbitrary,
capricious, 	. 	. 	. 	or 	otherwise 	not 	in 	accordance 	with 	law.” 	5
U.S.C. 	§ 	706(2) 	(emphasis 	added). 	As 	a 	result, 	it 	is 	not
impossible for the court to grant effectual relief. 	Consequently,
this action is not moot.
B. 	APA Claim
“Under the APA, a reviewing court may” hold unlawful and “set
aside 	an 	agency’s 	decision 	if 	it 	is 	‘arbitrary, 	capricious, 	an
abuse of discretion, or otherwise not in accordance with the law,’
such as if it is ‘unsupported by substantial evidence.’” 	Atieh v.
Riordan, 	797 	F.3d 	135, 	138 	(1st 	Cir. 	2015) 	(quoting 	5 	U.S.C. 	§
706(2)) 	(additional 	citation 	omitted). 	“An 	agency 	action 	is
arbitrary and capricious when the agency[:]
relied 	on 	improper 	factors, 	failed 	to 	consider 	pertinent
aspects of the problem, offered a rationale contradicting the
evidence 	before 	it, 	or 	reached 	a 	conclusion 	so 	implausible
that 	it 	cannot 	be 	attributed 	to 	a 	difference 	of 	opinion 	or
the application of agency expertise.
Kinuthia 	v. 	Biden, 	702 	F. 	Supp. 	3d 	5, 	10 	(D. 	Mass. 	2023) 	(citing
Bos. Redevelopment Auth. v. Nat’l Park Serv., 838 F.3d 42, 47 (1st
Cir. 2016)).
The 	“standard 	is 	quite 	narrow” 	and 	review 	of 	the 	agency’s
“decision[] 	is 	‘highly 	deferential.’” 	Atieh, 	797 	F.3d 	at 	138
(citation 	omitted). 	Hence, 	“[a] 	court 	‘may 	not 	substitute 	its
judgment 	for 	that 	of 	the 	agency, 	even 	if 	it 	disagrees 	with 	the
agency’s conclusions.” 	Kinuthia, 702 F. Supp. 3d at 10 (citation
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14
and 	internal 	brackets 	omitted). 	“If 	the 	agency’s 	decision 	is
supported 	by 	any 	rational 	view 	of 	the 	record, 	a 	reviewing 	court
must uphold it.” 	Atieh, 797 F.3d at 138 (citation omitted).
Here, the defendants repeatedly argue that they complied with
the 	relevant 	regulations. 	Concerning 	the 	first 	petition, 	USCIS
rejected it given the failure to pay the asylum fee. 	As explained
below, the rejection is supported by a rational view of the record.
First, 	payment 	of 	the 	asylum 	fee 	is 	required 	for 	employers
who file an I-140 petition. 	8 C.F.R. § 106.2(c)(13) (“[T]he Asylum
Program Fee must be paid by any petitioner filing . . . an Immigrant
Petition for Alien Worker, I-140 Form . . . .”). 	Second, a separate
regulation 	mandates 	that 	“[e]ach 	form, 	benefit 	request, 	or 	other
document must be filed with the fee(s) required by regulation.” 	8
C.F.R. 	§ 	103.2(a)(7)(ii)(D) 	(emphasis 	added) . 	Third, 	another
regulation 	states 	that, 	“[e]xcept 	as 	otherwise 	provided 	in 	this
chapter 	I, 	fees 	must 	be 	paid 	when 	the 	request 	is 	filed 	or
submitted.” 11 	8 	C.F.R. 	§ 	103.2(a)(1) 	(emphasis 	added); 	see 	also
8 C.F.R. § 103.2(a)(7)(ii)(C) (“A benefit request will be rejected
if 	it 	is 	not: 	. 	. 	. 	(C) 	Filed 	in 	compliance 	with 	the 	regulations
governing the filing of the specific application, petition, form,
or request[.]”).
11 The plaintiff aptly does not identify a Chapter I regulation that provides
otherwise.
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USCIS’ action aligns with these regulations. 	It rejected the
first petition because it did not include the correct fees, namely,
the 	asylum 	fee. 	Further, 	the 	plaintiff 	does 	not 	dispute 	and, 	in
fact, 	repeatedly 	notes 	there 	was 	a 	fee 	deficiency 	in 	the 	first
petition, albeit minor or technical.
Contrary 	to 	the 	plaintiff’s 	position, 	the 	failure 	to 	submit
the 	asylum 	fee 	is 	neither 	minor 	nor 	technical. 	Rather, 	as
indicated 	above, 	it 	is 	required 	by 	mandatory 	language 	in 	the
regulations. 	8 	C.F.R. 	§ 	103.2(a)(1) 	(stating 	“fees 	must 	be 	paid
when 	the 	request 	is 	filed”) 	(emphasis 	added); 	8 	C.F.R. 	§
103.2(a)(7)(ii)(D) (stating “benefit request will be rejected if”
not 	submitted 	with 	correct 	fees). 	In 	short, 	the 	asylum 	fee 	must
be 	filed 	with 	the 	petition 	or, 	stated 	differently, 	when 	the
petition 	is 	filed. 	See 	Cowboy 	World 	Corp. 	v. 	Bondi, No. 	24-CV-
9929 (RA), 2025 WL 3287640, at *3 (S.D.N.Y. Nov. 25, 2025) (“Asylum
Program 	Fee, 	like 	all 	the 	other 	fees, 	is 	a 	fee 	‘required 	by
regulation’” and “failure to pay” this fee “is a sufficient ground
for 	the 	rejection 	of 	Petitioner’s 	I-140.”) 	(citing 	8 	C.F.R. 	§§
103.2(a)(1), 103.2(a)(7)(ii)(D), 106.2(c)(13)).
The 	petitioner 	next 	asserts 	that 	USCIS 	could 	have 	accepted
the 	first 	petition 	“initially 	and 	issued 	a 	Request 	for 	Evidence”
asking 	for 	the 	asylum 	fee 	under 	8 	C.F.R. 	§ 	103.2(a)(7)(ii)(D).
(D. 18, p. 10). 	This regulation reads as follows:
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(1) 	If USCIS accepts a benefit request and determines later
that the request was not accompanied by the correct fee,
USCIS 	may 	reject 	or 	deny 	the 	request. 	If 	the 	benefit
request 	was 	approved 	when 	USCIS 	determines 	the 	correct
fee 	was 	not 	paid, 	the 	approval 	may 	be 	revoked 	upon
notice.
8 C.F.R. § 103.2(a)(7)(ii)(D)(1) (emphasis added). 	By its terms,
however, 	the 	regulation 	does 	not 	apply. 	USCIS 	did 	not 	accept 	or
approve 	the 	first 	petition. 	It 	rejected 	it. 	Further, 	USCIS 	did
not “determine[] later” after it accepted the first petition that
the asylum fee was not paid. 	Rather, USCIS rejected the petition
due to nonpayment upon initial review.
Lastly, the plaintiff contends that the instructions for the
I-140 	form 	state, 	“If 	paying 	by 	check 	or 	money 	order, 	submit 	the
fee 	separately.” 	The 	plaintiff 	maintains 	it 	promptly 	submitted
the 	asylum 	fee 	by 	check 	“separately” 	via 	the 	second 	petition 	and
USCIS 	refused 	to 	treat 	the 	second 	petition 	as 	a 	continuation 	of
the 	first 	petition. 	“Separately” 	cannot 	and 	does 	not 	mean 	filed
with a second petition. 	This is because, as stated in the relevant
regulation, “[a] benefit request which is rejected will not retain
a filing date.” 	8 C.F.R. § 103.2(a)(7)(ii). 	Here, USCIS rejected
the first petition. 	In accordance with this regulation, the second
petition 	does 	not 	retain 	the 	filing 	date 	of 	the 	first 	petition,
i.e., January 17. 	The one-page letter accompanying the rejection
notice for the first petition bolsters this finding. 	It unerringly
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states, 	“Your 	rejected 	benefit 	request 	will 	not 	retain 	a 	filing
date.” 	(D. 1, p. 82). 12
Turning to the second and third petitions, USCIS’ rejections
are 	also 	based 	on 	a 	rational 	view 	of 	the 	record. 	Of 	note, 	the
parties 	do 	not 	dispute 	that 	a 	labor 	certification 	is 	required 	in
conjunction 	with 	an 	I-140 	petition 	for 	the 	plaintiff 	to 	hire 	and
employ Fares. 	(D. 1, p. 6) (complaint stating, “Employers are to
submit the original Labor Certification from [DOL] with an I-140,
Petition 	. 	. 	. 	.”); 	(D. 	17, 	p. 	4) 	(“After 	DOL 	grants 	the 	Labor
Certification, 	the 	employer 	may 	file 	an 	I-140 	petition 	and 	the
Labor Certification with USCIS . . . .”). 	To continue, an employer
seeking 	to 	hire 	a 	noncitizen, 	nonresident 	skilled 	worker 	must
obtain 	a 	labor 	certification 	from 	DOL 	for 	the 	employee 	to 	enter
the United States. 	See 8 U.S.C. § 1182(a)(5)(A) (nonresident alien
seeking to perform “skilled or unskilled” labor must have a labor
certification 	to 	enter 	United 	States); 13 	8 	U.S.C. 	§ 	1153(b)(3)(C)
(“[I]mmigrant visa” for noncitizen “may not be issued . . . until
consular officer is in receipt of” a labor certification); 8 C.F.R.
§ 205.5(l)(3)(i); see also SnapNames.com, Inc. v. Chertoff, No. CV
12 	The 	foregoing 	weighs 	against 	the 	application 	of 	equitable 	tolling, 	as
discussed 	infra. 	It 	is 	also 	not 	clear 	what 	the 	term 	“separately”
means. 	However, it does not matter because, as explained, “separately” does
not mean filing the asylum fee in the second petition.
13 	Although 	the 	statute 	includes 	exceptions, 	they 	do 	not 	apply 	to 	the
circumstances at issue here. 	See 8 U.S.C. § 1182(a)(5). 	As an aside, section
1182(a)(5) 	uses 	the 	term 	“alien,” 	which 	“means 	any 	person 	not 	a 	citizen 	or
national of the United States.” 	8 U.S.C. § 1101(a)(3).
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06–65–MO, 	2006 	WL 	3491005, 	at 	*4 	(D. 	Or. 	Nov. 	30, 	2006)
(“[E]mployment-based visa petitions, including those for “skilled
workers,” 	require 	a 	labor 	certification.”) 	(citing 	8 	C.F.R. 	§
204.5(l)(3)(i)). 	And, as previously stated, a labor certification
expires 180 days after issuance. 	20 C.F.R. § 656.30(b)(1). 	What
is more, it is USCIS’ policy to reject I-140 petitions accompanied
by an expired labor certification. 	(D. 1, p. 105) (USCIS’ Policy
Manual 	stating 	“USCIS 	rejects 	petitions 	that 	require 	an 	approved
labor 	certification 	if 	the 	. 	. 	. 	certification 	has 	expired 	. 	. 	.
.”). 	Adhering 	to 	this 	policy 	and 	the 	above 	regulation, 	USCIS
rejected 	the 	second 	petition 	because 	the 	labor 	certification 	had
expired 	by 	the 	time 	the 	agency 	received 	the 	second 	petition.
Likewise, 	USCIS 	rejected 	the 	third 	petition 	given 	the 	absence 	of
a valid labor certification.
To be sure, the plaintiff correctly points out that the labor
certification 	expired 	during 	USCIS’ 	adjudication 	of 	the 	first
petition. 	Further, 	the 	plaintiff 	received 	the 	rejection 	notice
anent 	the 	first 	petition 	on 	February 	7 	and 	quickly 	submitted 	the
second 	petition, 	which 	USCIS 	received 	on 	February 	11. 	The
plaintiff 	contends 	the 	court 	therefore 	should 	overlook 	the
submission 	of 	the 	second 	petition 	with 	the 	expired 	labor
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certification and treat it as a continuation of the first petition
with that petition’s January 17 filing date. 14
First 	and 	foremost, 	USCIS 	rejected 	the 	first 	petition 	and,
per 	regulation, 	“[a] 	benefit 	request 	which 	is 	rejected 	will 	not
retain 	a 	filing 	date.” 	8 	C.F.R. 	§ 	103.2(a)(7)(ii). 	The
plaintiff’s attempt to treat the second petition as a continuation
of 	the 	first 	petition 	is 	directly 	contrary 	to 	this 	regulation.
Moreover, 	“USCIS’s 	failure 	to 	depart 	from 	its 	own 	regulations 	in
order to accept a deficient petition is not arbitrary, capricious,
or an abuse of discretion” under the APA. 	Espindola v. U.S. Dep’t
of 	Homeland 	Sec., 	1:20-cv-1596 	(MAD/DJS), 	2021 	WL 	3569840, 	at 	*5
(N.D.N.Y. 	Aug. 	12, 	2021). 	In 	Espindola, 	USCIS 	followed 	its 	own
regulations and rejected a visa petition because it was missing a
signature. 	Concomitantly, 	the 	court 	explained 	that 	“a 	rejected
petition for a missing signature will not retain its filing date.”
Id. (citing 8 C.F.R. § 103.2(a)(7)(ii)); accord Cowboy World, 2025
WL 3287640, at *1, *4 (rejecting APA claim because “USCIS followed
its 	own 	regulations[,] 	. 	. 	. 	properly 	rejected” 	two 	I-140
petitions, and USCIS’ “failure to depart from its own regulations
. 	. 	. 	is 	not 	arbitrary, 	capricious, 	or 	an 	abuse 	of 	discretion”)
(citing Espindola, 2021 WL 3569840, at *5).
14 	These 	same 	facts, 	according 	to 	the 	plaintiff, 	are 	germane 	to 	equitable
tolling.
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Second, 	the 	decision 	in 	Cowboy 	World 	is 	indistinguishable
except, perhaps, with respect to the plaintiff’s argument that the
labor 	certification 	expired 	during 	USCIS’ 	review 	of 	the 	first
petition. 	Overall, though, the facts are strikingly similar, and
the 	court’s 	reasoning 	is 	persuasive. 	See 	Cowboy 	World, 	2025 	WL
3287640, at *1, *3-4. 	To begin with the facts, USCIS received the
employer’s 	first 	I-140 	petition 	on 	September 	3, 	2024, 	and 	the
employer 	submitted 	a 	credit 	card 	to 	pay 	the 	fees. 	Difficulties
processing the credit card payment for the asylum fee led USCIS to
reject 	the 	first 	petition 	on 	September 	6 	for 	failure 	to 	pay 	the
asylum fee. 	See id. at *3-4. 	The employer filed a second petition
on 	September 	18. 	The 	USCIS 	rejected 	that 	petition 	because 	the
labor certification had expired. 	Id. at *1.
Next, 	the 	court’s 	reasoning 	is 	unassailable. 	It 	reads 	as
follows:
Because 	USCIS 	properly 	rejected 	Petitioner’s 	first 	I-140
submission, USCIS cannot be compelled to accept Petitioner’s
resubmission 	of 	the 	I-140 	with 	an 	expired 	labor
certification. 	The regulation is clear: 	“A benefit request
which 	is 	rejected 	will 	not 	retain 	a 	filing 	date.” 	8 	C.F.R.
§ 	103.2(a)(7)(ii); 	see 	Espindola 	v. 	U.S. 	Dep’t 	of 	Homeland
Sec., 2021 WL 3569840, at *1 (N.D.N.Y. 2021). 	Because USCIS
properly 	rejected 	Petitioner’s 	first 	I-140 	filing, 	the
original filing date is not retained for Petitioner’s second
filing. 	It 	is 	undisputed 	that 	when 	Petitioner 	re-filed 	its
I-140 on September 18, 2024 with the applicable filing fees,
the 	underlying 	labor 	certification 	had 	already 	expired.
Therefore, 	USCIS 	also 	properly 	rejected 	Petitioner’s 	second
filing 	of 	the 	I-140 	because 	it 	was 	not 	filed 	with 	a 	valid
labor 	certification, 	as 	required 	by 	law. 	[S]ee 	8 	U.S.C. 	§
1153(b)(3)(C) [additional citation omitted]; Espindola, 2021
WL 3569840 at *4–5 . . . .
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Cowboy 	World, 	2025 	WL 	3287640, 	at 	*4 	(omitting 	citations 	to 	the
record).
In sum, USCIS rejected the first petition due to the absence
of 	the 	asylum 	fee, 	which 	regulations 	require. 	8 	C.F.R. 	§
103.2(a)(7)(ii)(D); 	8 	C.F.R. 	§ 	103.2(a)(1); 	8 	C.F.R. 	§
106.2(c)(13). 	Given these regulations, the failure to submit the
fee was neither minor nor technical. 	Further, the second petition
does 	not 	retain 	the 	filing 	date 	of 	the 	first 	petition 	(January
17). 	8 	C.F.R. 	§ 	103.2(a)(7)(ii). 	In 	that 	regard, 	“separately”
does not mean that a different, subsequently filed petition, even
one 	submitted 	promptly 	after 	receipt 	of 	the 	first 	rejection,
retains 	the 	filing 	date 	of 	the 	first 	petition. 	See 	id. 	USCIS
rejected the second and third petitions due to the invalid, expired
labor certification. 	The rejections were in accord with the 180-
day regulation in section 656.30(b)(1). 	Per the foregoing, all of
the 	rejections 	are 	supported 	by 	a 	rational 	view 	of 	the 	record.
Simply 	put, 	USCIS 	acted 	in 	accordance 	with 	regulations, 	and 	the
APA claim fails to state a plausible claim for relief.
C. 	MVA Claim
As stated previously, the plaintiff seeks a writ of mandamus
“to 	compel 	the 	defendants 	to 	properly 	process” 	the 	I-140
petitions. 15 	(D. 1, p. 5). 	The defendants submit that USCIS acted
15 Similar to the MVA claim, the claim for declaratory relief seeks a declaration
for USCIS “to properly process the Plaintiff’s [petition]” and, concomitantly,
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in 	accordance 	with 	the 	applicable 	regulations 	in 	rejecting 	both
the first petition as well as the second and third petitions.
The MVA “vests district courts with ‘original jurisdiction of
any 	action 	in 	the 	nature 	of 	mandamus 	to 	compel 	an 	officer 	or
employee 	of 	the 	United 	States 	or 	any 	agency 	thereof 	to 	perform 	a
duty 	owed 	to 	the 	plaintiff’ 	. 	. 	. 	.” 	Ghasemi 	v. 	Rubio, 	Civil
Action No. 25-cv-10345-ADB, 2025 WL 3080581, at *4 (D. Mass. Nov.
4, 2025); 28 U.S.C. § 1361. 	A writ of mandamus is “an extraordinary
writ reserved for special situations.” 	In re City of Fall River,
Mass., 	470 	F.3d 	30, 	32 	(1st 	Cir. 	2006). 	Entitlement 	to 	the 	writ
requires 	the 	plaintiff 	to 	establish 	that 	it 	“has: 	(1) 	a 	‘clear’
right to relief; (2) no other adequate remedy; and that (3) there
is ‘a clearly defined and peremptory duty’ on defendant’s part to
do 	the 	action 	sought.” 	Kris 	v. 	Lippoth, 	Civil 	No. 	24-40135-DHH,
2025 WL 70329, at *1 (D. Mass. Jan. 10, 2025) (citation omitted);
Kinuthia v. Biden, Civil Action No. 21-11684-NMG, 2022 WL 17653503,
at 	*9 	(D. 	Mass. 	Nov. 	9, 	2022) 	(citation 	omitted), 	Report 	and
Recommendation 	Adopted, 	Kinuthia 	v. 	Biden, 	Civil 	Action 	No. 	21-
11684-NMG (D. Mass. Jan. 6, 2023), ECF No. 53.
As 	noted, 	the 	defendants 	argue 	that 	the 	plaintiff 	lacked 	a
clear right to relief and USCIS did not violate a clear duty. 	They
a 	declaration 	that 	USCIS 	“erroneously 	and 	untimely 	rejected 	the 	Plaintiff’s
application causing the Labor Certificate to become stale.” 	(D. 1, pp. 5-7,
13). 	As discussed infra, as well as with respect to the APA claim, USCIS acted
in 	accordance 	with 	the 	pertinent 	regulations. 	As 	such, 	the 	requests 	for
declaratory relief are without merit.
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are 	correct. 	As 	explained 	with 	respect 	to 	the 	APA 	claim, 	USCIS
acted 	in 	accordance 	with 	the 	applicable 	regulations 	in 	rejecting
the first petition due to the failure to pay the asylum fee. 	See
8 C.F.R. §§ 103.2(a)(1); 8 C.F.R. 103.2(a)(7)(ii)(C), (D); 8 C.F.R.
§ 	106.2(c)(13). 	Further, 	“separately” 	submitting 	the 	asylum 	fee
by check does not and cannot mean submitting the fee in the second
petition. 	See 8 C.F.R. § 103.2(a)(7)(ii) (“A benefit request which
is 	rejected 	will 	not 	retain 	a 	filing 	date.”). 	Contrary 	to 	the
plaintiff’s argument, USCIS did not reject the first petition based
on a technical deficiency of the nonpayment of the asylum fee. 	As
explained, regulations mandate payment of that fee with the I-140
petition 	as 	well 	as 	“when 	the 	request 	is 	filed 	or 	submitted.” 	8
C.F.R. § 103.2(a)(1); see 8 C.F.R. § 103.2(a)(7)(ii)(D).
USCIS also acted in accordance with the pertinent regulations
and statutes in rejecting the second and third petitions based on
the 	invalid, 	expired 	labor 	certification. 	As 	explained, 	a 	labor
certification 	is 	required 	for 	a 	nonresident, 	noncitizen 	skilled
worker to enter the United States. 	See 8 U.S.C. § 1182(a)(5)(A);
8 U.S.C. § 1153(b)(3)(C). 	By regulation, a certification expires
180 	days 	after 	issuance. 	20 	C.F.R. 	§ 	656.30(b)(1). 	When 	the
plaintiff 	filed 	and 	the 	USCIS 	received 	the 	second 	and 	third
petitions, the labor certification had expired.
In short, where, as here, USCIS rejected the three petitions
based 	on 	the 	germane 	regulations 	and 	statutes, 	the 	plaintiff 	is
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unable 	to 	establish 	“a 	‘clear 	right 	to 	the 	relief’” 	or 	a 	clearly
defined and peremptory duty by ISCIS not to reject the petitions.
See 	Espindola, 	2021 	WL 	3569840, 	at 	*4 	(rejecting 	MVA 	claim 	to
accept 	temporary 	nonimmigrant 	visa 	for 	foreign 	worker 	lacking
signature because plaintiffs failed “to demonstrate a ‘clear right
to the relief sought’ or that the USCIS had a ‘plainly defined and
peremptory duty to perform the act in question.’”); accord Cowboy
World, 	2025 	WL 	3287640, 	at 	*4 	(rejecting 	entitlement 	to 	mandamus
writ because petitioner failed to allege “facts on which he has ‘a
clear right to the relief sought’”) (citation omitted).
Thus, largely for the reasons stated vis-à-vis the APA claim,
USCIS 	denied 	the 	petitions 	in 	accordance 	with 	the 	regulatory 	and
statutory 	framework 	as 	well 	as 	USCIS 	policy. 	Accordingly, 	the
court 	lacks 	subject 	matter 	jurisdiction 	over 	the 	MVA 	claim. 	See
Espindola, 	2021 	WL 	3569840, 	at 	*4 	(rejecting 	MVA 	claim 	because
court 	lacks 	subject 	matter 	jurisdiction); 	see 	also 	Gonzalez 	v.
USCIS, Civil 	Action 	No. 	21-10286-FDS, 	2022 	WL 	658658, 	at 	*1, 	*4
(D. Mass. Mar. 4, 2022); Khitab v. Novak, 524 F. Supp. 2d 105 (D.
Mass. 2007) (allowing motion to dismiss for lack of subject matter
jurisdiction to compel immigration authorities to act on petition
for naturalization).
D. 	Equitable Tolling
Equitable 	tolling 	applies 	to 	claims 	processing 	rules, 	which
can be waived, as opposed to jurisdictional rules, which cannot be
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waived. 	See Riley v. Bondi, 606 U.S. 259, 273-275 (2025); United
States 	v. 	Wong, 	575 	U.S. 	402, 	408-409 	(2015). 	Here, 	the 	180-day
time 	limit 	is 	a 	claims 	processing 	rule 	as 	opposed 	to 	a
jurisdictional rule. 	Indeed, “It is hornbook law that limitations
periods 	are 	‘customarily 	subject 	to 	“equitable 	tolling.”’”
Holland 	v. 	Florida, 	560 	U.S. 	631, 	646 	(2010) 	(quoting 	Young 	v.
United States, 535 U.S. 43, 49 (2002)); see Riley, 606 U.S. at 276
(noting 	that, 	after 	a 	1995 	decision, 	Court 	has 	“repeatedly 	found
that filing deadlines, including some couched in mandatory terms,
are 	not 	jurisdictional”). 	Accordingly, 	the 	180-day 	time 	limit
rule is subject to equitable tolling.
As 	previously 	stated, 	equitable 	tolling 	requires 	the
plaintiff 	to 	“prove: 	‘(1) 	that 	he 	has 	been 	pursuing 	his 	rights
diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.’” 	Kwoka v. Enterprise Rent-
A-Car 	Company 	of 	Boston, 	LLC, 	141 	F.4th 	10, 	17 	(1st 	Cir. 	2025)
(quoting Menominee Indian Tribe of Wisconsin v. United States, 577
U.S. 250, 255 (2016)); accord Holland, 560 U.S. at 649 (petitioner
“‘entitled to equitable tolling’ only if he shows ‘(1) that he has
been 	pursuing 	his 	rights 	diligently, 	and 	(2) 	that 	some
extraordinary circumstance stood in his way’ and prevented timely
filing.”) 	(citation 	omitted). 	The 	doctrine 	is 	“‘sparingly’
invoked . . . .” 	Jobe v. I.N.S., 238 F.3d 96, 100 (1st Cir. 2001)
(citing 	Irwin 	v. 	Dep’t 	of 	Veterans 	Affairs, 	498 	U.S. 	89, 	96
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(1990)). 	A 	“lack 	of 	legal 	knowledge” 	does 	not 	“constitute[] 	an
‘extraordinary 	circumstance.’” 	Trivedi 	v. 	Gen. 	Elec. 	Co., 	Civil
Action 	No., 	2020 	WL 	9744754, 	at 	*6 	(D. 	Mass. 	Aug. 	13, 	2020)
(citation omitted).
Within 	the 	above 	two-part 	framework, 	five 	factors 	guide 	the
determination: 	“(1) a lack of actual notice of a time limit; (2)
a 	lack 	of 	constructive 	notice 	of 	a 	time 	limit; 	(3) 	diligence 	in
the pursuit of one’s rights; (4) an absence of prejudice to a party
opponent; 	and 	(5) 	the 	claimant’s 	reasonableness 	in 	remaining
ignorant 	of 	the 	time 	limit.” 	Jobe, 	238 	F.3d 	at 	100 	(citation
omitted); 	see 	also 	Kwoka, 	141 	F.4th 	at 	17 	(stating 	five 	factors
are “consider[ed] ‘within the Supreme Court’s two-part standard”)
(citation 	omitted). 	Of 	note, 	“The 	fundamental 	principle 	is 	that
equitable tolling ‘is appropriate only when the circumstances that
cause 	a 	party 	to 	miss 	a 	filing 	deadline 	are 	out 	of 	his 	hands.’”
Gyamfi 	v. 	Whitaker, 	913 	F.3d 	168, 	175 	(1st 	Cir. 	2019) 	(quoting
Jobe, 238 F.3d at 100).
The defendants maintain that extraordinary circumstances are
absent. 	They are correct. 	To begin, the plaintiff identifies the
following 	as 	extraordinary 	circumstances: 	(1) 	the 	ambiguity 	in
the 	instructions 	to 	submit 	the 	asylum 	fee 	“separately” 	if 	paying
by check (D. 18, p. 6) (D. 21, pp. 6, 9-10); 16 (2) USCIS’ retention
16 The plaintiff adds two facts that evidence the ambiguity: 	(1) the unusually
high number of rejections of I-140 petitions for failure to include the asylum
fee; and (2) the December removal of the language to “separately” file the fee
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of 	the 	valid 	labor 	certification 	until 	it 	expired 	during 	its
adjudication 	of 	the 	first 	petition 	while 	knowing 	about 	the
ambiguity 	in 	the 	instructions 	of 	submitting 	the 	asylum 	fee
separately (D. 18, p. 10) (D. 21, p. 6); (3) the submission of the
second petition with the separate check of $300.00 for the asylum
fee paid “separately” in accordance with the instructions (D. 18,
p. 3) (D. 21, pp. 9-10); (4) the March letter explaining the error
of rejecting the first petition for failing to include the asylum
fee 	(D. 	18, 	p. 	3) 	(D. 	21, 	pp. 	9-10); 	and 	(5) 	USCIS’ 	repeated
erroneous rejections of the three petitions (D. 18, pp. 2, 10) (D.
21, 	p. 	10). 	None 	of 	these 	circumstances 	are 	extraordinary 	alone
or 	in 	combination. 	Importantly, 	as 	previously 	indicated,
“separately” 	does 	not 	mean 	submitting 	the 	asylum 	fee 	by 	check 	in
another petition. 	See 8 C.F.R. §§ 103.2(a)(1), 103.2(a)(7)(ii).
Moreover, 	there 	is 	no 	ambiguity 	vis-à-vis 	“separately” 	when
applied 	in 	the 	context 	of 	the 	circumstances 	here, 	namely,
submitting 	the 	$300 	check 	in 	the 	second 	petition 	as 	a 	substitute
for not submitting the fee with the first petition. 	See 8 C.F.R.
§§ 103.2(a)(1), 103.2(a)(7)(ii).
Moreover, the five factors do not warrant extending the 180-
day 	time 	limit 	of 	the 	labor 	certification 	and 	thereby 	render 	it
timely when the plaintiff submitted the second and third petitions.
if paying by check. 	The plaintiff further notes that USCIS did not return the
labor certification when it rejected the first petition.
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The plaintiff had constructive knowledge of the 180-day time limit.
DOL 	approved 	the 	labor 	certification, 	and 	the 	plaintiff 	received
it on July 26, 2024. 	(D. 1, pp. 12, 17). 	The approval noted the
January 	22 	expiration 	date. 	(D. 	1, 	p. 	17). 	The 	time-period
between 	July 	26 	and 	January 	22 	is 	exactly 	180 	days. 	To 	be 	sure,
the 	plaintiff’s 	prompt 	filing 	of 	the 	second 	petition 	indicates
diligence. 	Contrarily, however, he waited until early January to
offer 	Fares 	employment, 	thereby 	delaying 	the 	process 	until 	the
month 	the 	certification 	expired. 	Thus, 	except 	for 	the 	thirteen-
day period during which USCIS adjudicated the first petition, the
delay 	that 	caused 	the 	plaintiff 	to 	miss 	the 	180-day 	deadline 	was
to a large degree within the plaintiff’s control.
As also explained, USCIS correctly adhered to regulations and
statutes 	in 	rejecting 	the 	second 	and 	third 	petitions 	for 	lack 	of
a valid unexpired labor certification. 	Applying equitable tolling
in 	the 	manner 	the 	plaintiff 	suggests 	would 	conflict 	with 	these
regulations 	and 	is 	therefore 	inadvisable. 	See 	generally 	Katz 	v.
U.S. 	Dep’t 	of 	Labor, 	857 	Fed. 	Appx. 	859, 	863 	(7th 	Cir. 	2021)
(discounting 	plaintiff’s 	reason 	to 	find 	extraordinary
circumstances 	based 	on 	nonreceipt 	of 	administrative 	law 	judge’s
order by email and contending order should have been mailed while
noting 	“[a]gency 	regulations 	authorize 	service 	by 	email”)
(unpublished).
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In sum, for these and other reasons, equitable tolling is not
warranted.
VI. 	CONCLUSION
In 	accordance 	with 	the 	foregoing, 	the 	motion 	to 	dismiss 	(D.
16) 	is 	ALLOWED 	as 	to 	the 	APA 	and 	MVA 	claims. 	The 	court 	for 	the
same 	reasons 	will 	also 	deny 	the 	requests 	for 	declaratory 	relief.
Accordingly, the complaint is DISMISSED in its entirety.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED: 	March 18, 2026
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