Case Name in Immigration Case - Unavailable

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
EMC INC., on behalf of Rekesh Mogili,
Plaintiff,
v.
UNITED STATES OF AMERICA, et
al.,
Defendants.
§
§
§
§
§
§
§
§
§
Civil Action No. 4:25-cv-302
Judge Mazzant
MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendants’ Motion to Dismiss Plaintiff’s Complaint
(the “Motion”) (Dkt. #4). Having considered the Motion and the relevant pleadings, the Court
finds that the Motion should be GRANTED.
BACKGROUND
This action concerns the denial by the United States Citizenship and Immigration Services
(“USCIS”) of an I-129, Petition for a Nonimmigrant Worker (the “I-129 Petition”) filed by EMC
Consulting Group, Inc (the “Petitioner”), on behalf of Rekesh Mogili (“Mogili” or
the “Beneficiary”) (Dkt. #1 at ¶¶ 29–30; Dkt. #4-2). The Petitioner filed the I-129 Petition on June
30, 2021, seeking to classify the Beneficiary as an H-1B specialty occupation worker (Dkt. #4-2).
On October 20, 2022, the I-129 Petition was denied based on USCIS’s determination that the
Petitioner failed to respond to its Request for Evidence or Notice of Intent to Deny within the
allotted period (the “Decision”) (Dkt. #4-1). Thus, USCIS considered the I-129 Petition
abandoned under 8 CFR § 103.2(b)(13)(i), and it was denied (Dkt. #4-1).
Case 4:25-cv-00302-ALM Document 13 Filed 01/12/26 Page 1 of 7 PageID #:
<pageID>

2
Through this lawsuit, filed on March 24, 2025, Plaintiff EMC Inc. (“Plaintiff”) seeks
judicial review of the USCIS’s Decision under the Administrative Procedure Act (“APA”).1
Specifically, Plaintiff requests a judgment setting aside the Decision to deny the I-129 Visa Petition,
filed by the Petitioner on behalf of the Beneficiary, on the ground that the decision was unlawful,
arbitrary, and capricious (Dkt. #2 at p. 11). Plaintiff further requests an order from the Court
requiring that USCIS approve the I-129 Petition and an award for its attorney’s fees and costs for
bringing this action (Dkt. #2 at p. 11).
On May 22, 2025, Defendants filed their Motion requesting the Court dismiss this action
under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure (Dkt. #4). Plaintiff did
not respond. The Motion is now ripe for adjudication.
LEGAL STANDARD
I. Rule 12(b)(1)
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a case for lack of subject
matter jurisdiction when the district court does not have statutory and constitutional power to
adjudicate the case. Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th
Cir. 1998). If a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the Court
will consider the jurisdictional attack under Rule 12(b)(1) before addressing any attack on the legal
merits. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).
In deciding the motion, the Court may consider “(1) the complaint alone; (2) the complaint
supplemented by the undisputed facts evidenced in the record; or (3) the complaint supplemented
1 Plaintiff initially filed suit on behalf of four different beneficiaries, including Mogili, under Case No. 4:23-cv-296.
On March 24, 2025, the Court entered an order in granting Defendants’ Motion to Sever Plaintiff’s action into four
different cases (Dkt. #19, Case No. 4:23-cv-296).
Case 4:25-cv-00302-ALM Document 13 Filed 01/12/26 Page 2 of 7 PageID #:
<pageID>

3
by undisputed facts plus the [C]ourt’s resolution of disputed facts.” Lane v. Halliburton, 529 F.3d
548, 557 (5th Cir. 2008) (quoting Barrera-Montenegro v. United States, 74 F.3d 657, 659 (5th Cir.
1996)). The Court will accept as true all well-pleaded allegations set forth in the complaint and
construe those allegations in the light most favorable to the plaintiff. Truman v. United States,
26 F.3d 592, 594 (5th Cir. 1994). Once a defendant files a motion to dismiss under Rule 12(b)(1)
and challenges jurisdiction, the party invoking jurisdiction has the burden to establish subject
matter jurisdiction. See Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir. 1980). The
Court will grant a motion to dismiss for lack of subject matter jurisdiction only if it appears certain
that the claimant cannot prove a plausible set of facts to support a claim that would entitle it to
relief. Lane, 529 F.3d at 557.
II. Rule 12(b)(6)
The Federal Rules of Civil Procedure require that each claim in a complaint include a “short
and plain statement . . . showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Each
claim must include enough factual allegations “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the complaint
fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When considering a
motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts in the
plaintiff’s complaint and view those facts in the light most favorable to the plaintiff. Bowlby v. City
of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the complaint, any
documents attached to the complaint, and any documents attached to the motion to dismiss that
are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.), L.P. v. Barclays
Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine whether the
Case 4:25-cv-00302-ALM Document 13 Filed 01/12/26 Page 3 of 7 PageID #:
<pageID>

4
complaint states a claim for relief that is plausible on its face. “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the well-pleaded facts do not
permit the [C]ourt to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal, 556 U.S. at 679
(quoting FED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556
U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine
if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough facts
to raise a reasonable expectation that discovery will reveal evidence of the necessary claims or
elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. Thus, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. at 678 (quoting Twombly, 550 U.S. at 570).
ANALYSIS
Defendants urge the Court to dismiss Plaintiff’s complaint for the following reasons: (1) the
Court lacks subject matter jurisdiction because Plaintiff lacks standing; and (2) Plaintiff has failed
Case 4:25-cv-00302-ALM Document 13 Filed 01/12/26 Page 4 of 7 PageID #:
<pageID>

5
to state a claim that USCIS violated the APA (Dkt. #4 at pp. 8–11). The Court will first address the
jurisdictional challenge and then address the substantive challenge.
I. Rule 12(b)(1)
The Court begins with Defendants’ Rule 12(b)(1) jurisdictional challenge based on
Plaintiff’s lack of standing (Dkt. #4 at p. 8). Standing is “an essential and unchanging part of the
case-or-controversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).
To establish standing, a plaintiff must show an injury-in-fact that is fairly traceable to the challenged
conduct, and the injury will likely be redressed by a favorable decision on the merits. Id. at 560-61.
A petitioner is entitled to a right of review of a USCIS decision. See 5 U.S.C. § 702 (“A person
suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action
within the meaning of a relevant statute, is entitled to judicial review thereof.”). But a person suing
under the APA must satisfy Article III’s standing requirements. Match-E-Be-Nash-She-Wish Band
of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224 (2012).
Here, Defendants argues Plaintiff’s complaint should be dismissed for lack of subject
matter jurisdiction because Plaintiff’s purported injury is not fairly traceable to USCIS and Plaintiff
cannot establish that the injury is redressable (Dkt. #4 at p. 8). Specifically, Defendants argue that
Plaintiff, EMC Inc., is not the Petitioner that filed the I-129 Petition—EMC Consulting Group,
Inc. (Dkt. #4 at pp. 8–9). Thus, Defendants ask the Court to find that Plaintiff lacks standing to
seek judicial review of the Decision that does not affect it (Dkt. #4 at pp. 8–11). The Court agrees.
Moreover, because Plaintiff has not responded to Defendants’ Motion, it is presumably undisputed
that Plaintiff and Petitioner are different entities. As such, to the extent Plaintiff is challenging the
Decision related to the I-129 Petition for which it was not the Petitioner, there is an absence of
standing to do so because Plaintiff has not suffered a “legal wrong” or injury. Id.; see also Kale v.
Case 4:25-cv-00302-ALM Document 13 Filed 01/12/26 Page 5 of 7 PageID #:
<pageID>

6
INS, 37 F. App’x 90, *2 (5th Cir. 2002) (per curiam) (unpublished) (a visa-petition beneficiary, as
opposed to the petitioner, does not have standing to challenge the denial of the petition).
Accordingly, dismissal under Rule 12(b)(1) is warranted and Defendants’ Motion should
therefore be GRANTED.
II. Rule 12(b)(6)
Because the Court has established that the Court does not have jurisdiction to adjudicate
this action, the Court need not address Defendants’ challenge under Rule 12(b)(6) for failure to
state a claim upon which relief can be granted. However, in addition to Plaintiff’s lack of standing,
the Court also finds the I-129 Petition was abandoned as Defendant argues (Dkt. #4-1). Under the
Title 8, Code of Federal Regulations, “[i]f the petitioner or applicant fails to respond to a request
for evidence or to a notice of intent to deny by the required date, the benefit request may be
summarily denied as abandoned, denied based on the record, or denied for both reasons.” See 8
C.F.R. § 103.2(b)(13)(i). Further, “[a] denial due to abandonment may not be appealed, but an
applicant or petitioner may file a motion to reopen under § 103.5.” See 8 C.F.R. § 103.2(b)(15).
Here, the Decision stated that the USCIS issued a request for evidence or notice of intent
to deny to the Petitioner, providing it with an allotted period in which to respond (Dkt. #4-1 at p. 2).
There is no allegation in Plaintiff’s complaint that it timely filed such a motion to reopen the matter
as required under 8 CFR § 103.5(a)(2) before seeking judicial review by this Court. Moreover,
because Plaintiff has not responded to Defendants’ Motion, it is presumably undisputed that the
Petitioner failed to timely respond to USCIS’s requests thereby abandoning its I-129 Petition.
Thus, in addition to its lack of standing, Plaintiff has also failed to state a claim that USCIS violated
the APA for denying the I-129 Petition. Accordingly, dismissal under Rule 12(b)(6) is warranted,
and Defendants’ Motion should be GRANTED.
Case 4:25-cv-00302-ALM Document 13 Filed 01/12/26 Page 6 of 7 PageID #:
<pageID>

7
CONCLUSION
It is therefore ORDERED that Defendants’ Motion to Dismiss Plaintiff’s Complaint
(Dkt. #4) is hereby GRANTED and the case is hereby DISMISSED with prejudice.
It is further ORDERED that the Clerk is directed to CLOSE this civil action
IT IS SO ORDERED.
Case 4:25-cv-00302-ALM Document 13 Filed 01/12/26 Page 7 of 7 PageID #:
<pageID>