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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

ElectroMedical Technologies Incorporated, 

et al., 

Plaintiffs, 

v. 

Kirstjen Nielsen, et al., 

Defendants.

No. CV-18-00508-PHX-GMS

ORDER 

 Pending before the Court is ElectroMedical Technologies Inc.’s appeal of two 

administrative determinations by the United States Citizenship and Immigration Services 

(“CIS”). For the following reasons, the Court will affirm the decisions of CIS. 

BACKGROUND 

To become a lawful permanent resident of the United States, applicants must follow 

a series of steps. An employer can file a I-129 petition with CIS requesting an H1-B visa 

for a qualified employee. This visa is typically valid for three years. Employers can later 

request an extension of the visa, but typically H1-B visas do not last for more than six 

years. Once an H-1B visa is issued, the employer can then file a for a Labor Certificate 

Provision from the Department of Labor and an I-140 petition with CIS. Once the I-140 

petition is approved, then the person can apply for adjustment to legal permanent resident 

status by filing a I-485 application. 
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Peter Gajic and ElectroMedical challenge two decisions by CIS in this lawsuit. 

First, they challenge CIS’s decision to reject Plaintiffs’ I-129 request for an extension of 

Gajic’s H-1B visa. This was the third I-129 application ElectroMedical filed after their 

lawsuit in the District of Arizona challenging a separate decision of CIS was dismissed in 

2013. Plaintiffs argued to CIS that Gajic is eligible for a retroactive extension of his H-1B 

visa—even though it expired years ago in 2009—because the delay was caused by 

ineffective assistance of counsel. To support its argument, ElectroMedical attached a letter 

from Attorney Salmon, who represented the company until 2012. In its decision, CIS 

found that the delay may have been initially caused by ineffective assistance of counsel, 

but the delay was not commensurate with the circumstances, and denied the application. 

 Plaintiffs also challenge an April 2017 decision by CIS denying an I-485 application 

for an adjustment of status for Peter Gajic, his wife, and son. CIS denied this application 

because Gajic and his family were unlawfully present in the United States for many years 

without a valid H-1B visa, and the agency found that the explanation for their extended 

unlawful presence was not commensurate with the circumstances. 

 The two issues before the Court are (1) whether the Court has jurisdiction to review 

the two CIS decisions and, if so, (2) whether the agency’s decisions were arbitrary, 

capricious, unsupported by substantial evidence or otherwise unlawful. 

DISCUSSION

I. Standard of Review 

When reviewing of agency actions under the Administrative Procedure Act, courts 

must “hold unlawful and set aside agency actions, findings and conclusions” that are 

“arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5 

U.S.C. § 706(2). Courts must also set aside final agency actions that are “unsupported by 

substantial evidence.” Id. 

 This inquiry is “narrow and a court is not to substitute its judgment for that of the 

agency.” Motor Vehicle Mfrs. Ass’n. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 30 

(1983). Instead, a court must determine whether the agency “examine[d] the relevant data 
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and articulate[d] a satisfactory explanation for its action including a rational connection 

between the facts found and the choice made.” Id. at 43 (internal citations and quotation 

marks omitted). An agency’s action is arbitrary and capricious “if the agency has relied on 

factors which Congress has not intended it to consider, entirely failed to consider an 

important aspect of the problem, offered an explanation for its decision that runs counter 

to the evidence before the agency, or is so implausible that it could not be ascribed to a 

difference in view or the product of agency expertise.” Id. 

 “Although [the] inquiry must be thorough, the standard of review is highly 

deferential; the agency’s decision is entitled to a presumption of regularity, and [a court] 

may not substitute [its] judgment for that of the agency.” San Luis & Delta-Mendota Water 

Authority v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014) (internal citations and quotation 

marks omitted). “Where the agency has relied on relevant evidence such that a reasonable 

mind might accept as adequate to support a conclusion, its decision is supported by 

substantial evidence.” Id. “Even if the evidence is susceptible of more than one rational 

interpretation, the court must uphold the agency’s findings.” Id. 

II. Analysis

 A. Jurisdiction 

In 1996, Congress enacted Illegal Immigration Reform and Immigrant 

Responsibility Act, which stripped federal courts of jurisdiction to hear challenges to 

certain CIS decisions. See 8 U.S.C. § 1252(a)(2)(B)(i)–(ii). Under Ninth Circuit precedent 

interpreting these provisions, a court lacks jurisdiction over an appeal of a determination 

by the CIS where “discretion is specified in . . . the statute in question” and the decision is 

a “matter of pure discretion, rather than discretion guided by legal standards.” Spencer 

Enter., Inc. v. United States, 345 F.3d 683, 689–90 (9th Cir. 2003). 

Because the decision is committed to the discretion of the Attorney General, courts 

generally lack jurisdiction to review the discretionary decision to deny an adjustment of 

status. See 8 U.S.C. § 1255(a) (“The status of an alien . . . may be adjusted by the Attorney 

General, in his discretion . . . to that of an alien lawfully admitted for permanent 
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residence”); see also Torres-Valdivias v. Lynch, 786 F.3d 1147, 1151 (9th Cir. 2015) (“The 

BIA’s ultimate discretionary decision to deny . . .adjustment of status . . . is therefore 

unreviewable.”); Hosseini v. Gonzales, 471 F.3d 953, 956–57 (9th Cir. 2006) (same). But 

if a decision to deny adjustment of status rests on nondiscretionary grounds—such as 

statutory ineligibility—district courts possess jurisdiction to review that decision. 

Mamigonian v. Biggs, 710 F.3d 936, 938 (9th Cir. 2013) (“We also hold that district courts 

have jurisdiction to hear cases challenging determinations made on nondiscretionary 

grounds respecting eligibility for the immigration benefits enumerated in 8 U.S.C. § 

1252(a)(2)(B)(i).”). Here, CIS’s decision to deny Gajic’s Form I-485 Application in April 

2017 was explicitly based on discretionary grounds: 

The Service can excuse violations of status under certain 

circumstances, however, the extended duration of your lapse of status and employment authorization are prohibitive and do not merit the favorable exercise of discretion, especially when 

considering that you continued to violate your status after all legal proceedings had been concluded in 2013. 

(Doc. 19-5 at 10). Accordingly, the Court lacks jurisdiction to review CIS’s discretionary 

decision to deny Gajic’s Form I-485 application, which is the only Form I-485 application 

that Gajic challenges here. 

In contrast, there is no similar statutory provision that specifies that the Attorney 

General has discretionary authority to accept or reject a H1-B application to renew a nonresident permit. Accordingly, the Court has jurisdiction to review CIS’s denial of Gajic’s 

I-129 application. See Hovhannisyan v. U.S. Dep’t of Homeland Sec., 624 F. Supp. 2d 

1335, 1145 (C.D. Cal. 2008) (holding that the court possessed jurisdiction over an appeal 

of an I-129 application). 

 B. Review of the Petitions 

Typically, a renewal of an H-1B visa may not be approved once the applicant’s 

lawful status has lapsed. 8 C.F.R. § 214(c)(4).1

 To overcome that barrier, an applicant 

 

1

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must demonstrate that the failure to timely file for renewal was due to extraordinary 

circumstances beyond the control of the petitioner or applicant, and that the delay in 

seeking renewal was commensurate with the circumstances. Id. An applicant bears the 

burden of establishing before the agency that the extraordinary circumstances exception 

applies. See 8 U.S.C. § 1361; Nat’l Hand Tool Corp. v. Pasquarell, 889 F.2d 1472, 1475 

(5th Cir. 1989) (“It is well settled that the applicant for a visa bears the burden of 

establishing eligibility.”). If a petitioner demonstrates that his untimely filing is due to 

ineffective assistance of counsel, that showing may satisfy the extraordinary circumstances 

exception. 8 C.F.R. § 214(c)(4). But even if a petitioner proves extraordinary 

circumstances caused the delay, he must still demonstrate that the delay was commensurate 

with the circumstances. Id. 

 Plaintiffs here only challenge the decision denying an extension of his H-1B visa 

dated July 22, 2016. (Doc. 27 at 5).2

 1. H-1B Petition 

In Mr. Gajic’s most recent application for an extension of his H-1B visa, 

ElectroMedical argued for the first time that ineffective assistance of counsel caused Mr. 

Gajic’s original visa to lapse. In its decision to deny the extension, CIS explained that 

extraordinary circumstances due to ineffective assistance of counsel may have caused the 

 

period of previously authorized status expired may be excused in the discretion of the Service and without separate application, with any extension granted from the date the previously authorized stay expired, where it is demonstrated at the time of filing that: 

(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; 

(ii) The alien has not otherwise violated his or her nonimmigrant status; 

(iii) The alien remains a bona fide nonimmigrant; and 

(iv) The alien is not the subject of deportation proceedings . . .” 

2

 In their opening brief, Plaintiffs argue that CIS should have known that the delay in this case was likely caused by ineffective assistance of counsel in previous I-129 applications. (Doc. 25 at 3). However, Plaintiffs bear the burden to raise ineffective 

assistance as an extraordinary circumstance and concede that they did not do so in those first two petitions. (Id. at 4). 
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filing to be untimely initially but decided that the delay was not commensurate with the 

circumstances. (Doc. 1-2 at 2–4). CIS pointed to two periods of delay to support its 

decision. 

 First, CIS noted that after the request for an extension of stay was denied in 

September 2009, ElectroMedical waited for more than five years before filling a new 

request for an extension of stay. (Doc. 1-2 at 3). CIS explained that ElectroMedical “had 

sufficient notice and time to file an earlier request for extension of stay for the beneficiary.” 

Id. Plaintiffs argue here that this fails to consider the fact that the ineffective assistance of 

counsel was ongoing from 2009 until 2012, when Attorney Salmon stopped representing 

ElectroMedical. But this fact is not inconsistent with CIS’s determination. ElectroMedical 

does not allege that Andres Benach and Murthy Law—counsel representing the company 

in the 2013 lawsuit and subsequent applications to CIS—were ineffective. Had 

ElectroMedical filed an application for an extension of stay in 2012 or shortly after 

Attorney Salmon stopped representing the company, it could more persuasively argue that 

the delay was commensurate with the circumstances. 

Second, CIS noted that ElectroMedical waited more than a year after the conclusion 

of their first lawsuit to file a new request for an extension of stay. CIS explained that 

ElectroMedical “knew or should have known that the unfavorable decision on your lawsuit 

over the Form I-140 denial left the beneficiary without an opportunity to adjust status to 

permanent resident.” (Doc. 1-2 at 4). Because this delay was not caused by the ineffective 

assistance of counsel from 2009, CIS concluded that the overall delay in this case was not 

commensurate with the circumstances. (Id.). 

 Both reasons are sufficient to support CIS’s determination that the delay in this case 

was not commensurate with the circumstances. The Court must uphold CIS’s 

determination because it contains a rational connection between the facts found and the 

choice made. State Farm, 463 U.S. at 42. 

 Finally, Plaintiffs repeatedly cite to a CIS Guidance document for the proposition 

that “absent compelling negative factors, an officer should exercise favorable discretion 
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and approve the application.” (Doc. 27 at 11). But this statement, to the extent it is binding 

on the agency, only applies after the agency has determined that the applicant is otherwise 

eligible for the change in status. Because the agency determined that the delay in this case 

was not commensurate with the circumstances, Gajic is ineligible for an adjustment in 

status, and this guidance language is inapplicable. 

2. I-485 Petition

 Plaintiffs argue that this Court has jurisdiction to review CIS’s denial of the I-485 

application. To the extent that CIS’s decision rested upon a discretionary determination 

that the Plaintiffs’ were not eligible for an adjustment of status, this Court lacks jurisdiction 

to review that discretionary decision. See Torres-Valdivias, 786 F.3d at 1151. But because 

CIS did not err when it denied the request for an extension of Gajic’s H-1B visa, it 

necessarily did not err as a legal matter to the extent it denied ElectroMedical’s request for 

a I-485 request on that same basis. The Court must therefore uphold the determination of 

the CIS. 

CONCLUSION

 The Court lacks jurisdiction to review CIS’s discretionary denial of 

ElectroMedical’s I-485 Petition. ElectroMedical’s remaining challenges to the decisions 

lack merit. 

 IT IS THEREFORE ORDERED that the determinations of CIS are AFFIRMED. 

 IT IS FURTHER ORDERED directing the Clerk of Court to dismiss this action 

and enter judgment accordingly. 

 Dated this 16th day of April, 2019.